War crimes and genocide

Russia is now suspended from the Human Rights Council. Of the 175 members of the United Nations, at any one time 47 members of them are appointed to the Council. They represent various areas of the world. Ironically, the two countries until last week representing Asia and the Pacific States were Russia and Ukraine. By a two thirds majority the General Assembly can suspend the rights and privileges of any Council member that it decides has persistently committed gross and systematic violations of human rights during its term of membership.

And so the United Nations General Assembly voted to suspend Russia from the Council on Thursday. There were 93 votes in favour, 24 votes against and 58 abstentions.   Amongst those voting against were, of course, Russia, China, Cuba, North Korea, Iran, Syria and Vietnam. Those abstaining included India, Pakistan, Brazil, Mexico, Egypt, Saudi Arabia, United Arab Emirates, Jordan, Qatar, Kuwait, Iraq,  Singapore, South Africa, Thailand, Malaysia, Indonesia and Cambodia.

Of course this means very little in practical terms. It seems unlikely that Russia will feel so shamed by its suspension that it will withdraw from Ukraine, offering reparations for the destruction they have brought about. On the other hand this is only the second time that such a resolution has been passed, the other country sanctioned in this way being Libya, when Colonel Gaddafi was in charge. And look what happened to him. We can but hope that a precedent has been set!

Clearly, what the Russians have done in Ukraine is completely inconsistent with how we in the West now believe that countries should act and what so many treaties say. Russia has decided to invade a neighbouring country. It is a purely aggressive act, although it has alleged that it was in order to protect people in predominantly Russian speaking areas, which Russia had only just recognised as autonomous regions. They were said to be subject to attack by Ukrainian neo-Nazis. It was therefore both for the protection of those people and also to remove a ‘Nazi menace’ from the heart of Europe that they engaged in this ’Special Military Operation’.

We have seen all this unfold in great detail and so are aware that their reasons are completely spurious: instead the Russians are simply engaged in an attempt to recreate greater Russia. That their soldiers have committed war crimes in doing so is unarguable. We have all been sickened by what we have seen and by what has been described by the many witnesses, including respected journalists.

Worryingly, however, Mme Le Pen, potentially the new French president, says nothing has been proved and that, after this is all over, France can be chums with Putin again. And, of course, in the rigged Hungarian election another Putin sympathiser has been re-elected to office. So not quite the universal condemnation from his neighbours I would have wanted.

Over the millennia in which war was a normal part of how the world worked, there were some often poorly-observed conventions about how fighting should be conducted and how prisoners should be treated. But although it was mostly soldiers who had borne the brunt of war, when the weapons of war became even more destructive in the industrial era, the possibility of the indiscriminate destruction of whole towns and cities, and so civilians, became real - and commonplace. Hence the Geneva conventions outlawing of indiscriminate killing of civilians.

There was also the question of the aftermath of war. The winning side applied what was generally referred to as ‘victor’s justice’. They decided what penalties should be applied, who should be imprisoned or executed and what assets/land should be expropriated. In fact, little was done to prosecute individuals for war crimes after the Great War, even if what proved to be completely unmanageable reparations were imposed on Germany as a whole, something which in itself catalysed the rise of Mr Hitler.

There was though a determination to change things radically in the aftermath of the Second World War in light of the particular horrors carried out by the German regime.

The Nuremberg trials were conducted under the ‘International Military Tribunal Charter’. It had been developed during the closing stages of the war, based on international law concepts which had long been discussed in academic circles, if not by the man in the street or indeed the Nazi party. The Nazis had been very careful to modify their law to enable the atrocities of that dark period to be lawfully carried out under German law and also under the laws of the lands which they invaded.

The Charter however defined what amounted to war crimes and provided a process for their prosecution. The Nuremberg trials were the first test of the concept of war crimes as a breach of international rather than national law. They allowed of no national law justification and, as a result of subsequent treaties, prosecution would be able to take place in any country which had signed up to the relevant treaties.

Crimes against peace and crimes against humanity were to become a constant backdrop in time of war, telling those engaged in it how their actions would be judged. No more would following orders be an excuse and neither would it be possible to accuse such a process of being ex post facto laws, i.e. ‘victor’s justice’. Getting the war criminals before such a court is usually the hard part.

The Russians have also told us that Ukraine has no right to exist as a separate country. They consider the people there to be Russians. In reply, President Zelensky has accused the Russian government of genocide.

Now, superficially, genocide and war crimes are much the same, but the difference between them is actually quite important. It was the subject of much debate between two law professors - Hersch Lauterpacht, born in what is now Ukraine and Raphael Lemken, born in what is now Belarus – academics who were key to the development of both concepts, but who disagreed with each other as to the importance of ‘genocide’ in war crime prosecutions.

Lemkin was the one who framed the idea of genocide and came up with the name. Lauterpacht couldn’t see the point of it: any act covered by genocide, would involve the actions of individuals which would be war crimes.

The main distinction and the justification for genocide as a separate branch of international law, however, is that, as the name implies, war crimes can only be committed during a time of war, whereas genocide does not depend on there being a state of war. It can be committed by a government against a section of its own people. Nazi Germany, did just that - Kristallnacht took place in November 1938, and so prior to war.

So then, in 1946, the newly created United Nations had no difficulty in declaring both to be part of International Law.

In the Nuremberg trials, however, although Lemken had, literally, written the book on genocide, his attempts to persuade the prosecutors to use his ideas were mainly unsuccessful. Although in the closing speech for the prosecution by the British prosecutor, genocide was referred to, the judgements made no mention of it all. In reality, it was not needed against the particular group of people being tried. There was plenty of evidence that they had committed war-crimes.

But its definition means that genocide depends on there being a recognition that there are indeed groups of people who are distinct from their neighbours. Lauterpacht suggested that this in itself could cause difficulty by emphasising difference and even promoting hatred between groups who would not otherwise be regarded as obviously ‘different’.

It can though be argued that, with our tribal past, we are all of us already instinctively aware of subtle or not so subtle differences between different groups. In our own areas and particularly in our own countries we are far more able to recognise these difference than a foreigner would be. An outsider would not be aware of the cultural tropes which go with certain groups, whether accents, idioms, cakes or anything else which can speak of difference.

Once though a state or an organised group starts to persecute its own people or neighbours it has, necessarily, already made that distinction. The concept of genocide is therefore unlikely to be an encouragement to hatred. It is simply a recognition of a particular type of hatred, one to be combatted vigorously.

Paul Buckingham

10 April 2022

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