Human right and the responsibility to protect

The protetion of Human Rights all over the world has always posed problems related to the implementation, to the protection of this rights and, in a deeper way, to the possibility of forcing their respect when the violator is a recognized country.
The main answer to these problems was the humanitarian intervention, defined as a forcible action (military intervention) by a State or an alliance of States in the territory of a third State, without its consent and without Security Council’s authorization, in order to stop atrocities which are committed in the third State against its own population. This intervention is first of all against the desire of the State. Secondly, the action is not decided in order to protect citizens of the interventing countries, but to protect citizens of the country in which the intervention takes place. Furthermore, the action is not decided by a multilateral organization, but is an unilateral action.
The Security Council later decided to introduce the concept of humanitarian intervention intended as a threat to peace. Examples of recognized cases are: apartheid (Rhodesia and South Africa ’70), overturning of a democratically elected government (Haiti, 1994), consistent flux of refugees (Iraq and Bosnia ’90) and dimension of the humanitarian tragedy (Somalia 1992).
The use of this kind of intervention created, and still creates, a so called dilemma between international laws scholars. Infact, we need to find a correct balance between two fundamental principles in international law: respect of State sovereignty and concrete and effective protection of human rights of the individual. Moreover, the question of humanitarian intervention deals with the regulation of the recourse to force in international law. As we know, the UN Charter prohibits the recourse to force for the solution of States’ disputes (art. 2.3 and 4), make safe just the “inherent right to self defence” of each State in case of armed attack(art. 51) and
provides a system of collective security recognizing a central role to the Security Council (Chapter VII).
The lack of efficiency of the Security Council has created the conditions to force these rules.
In 2000 the Canadian government invites an international commission (International Commission on Intervention and State Sovereignty) to consider the question of the legitimacy of humanitarian intervention: whether, to what extent, under what kind of conditions is it legitimate for States to intervene -in particular through military action –in another State to protect people who are suffering grave violations of human rights and to stop such violations?
In 2001 this Commission elaborated a doctrine called “the responsibility to protect”(R2P); it can be considered to some extent a new approach to the doctrine of humanitarian intervention.
This doctrine is based on three main contents. The theoretical foundation of the concept of “R2P” is the idea that sovereign States have a responsibility to protect their own citizens from human rights violations; when they are unwilling or unable to do so, that responsibility must be borne by the broader community of States
the international community has a complementary duty to protect
Secondly, the question of military intervention has to be considered as part of a broader context that includes:
  • the responsibility to prevent(to face root and direct causes of the crises)
  • the responsibility to react(to respond to grave situations in a proper way, but just in extreme cases, with military intervention)
  • the responsibility to rebuild(to provide, especially after a military intervention, full assistance with reconstruction and reconciliation).
The legitimacy of the military intervention is considered to be conditional on some elements:
  • just cause threshold: large scale loss of life or a large scale ‘ethnic cleansing
  • right intention: the primary purpose of the intervention must be to halt or avert human suffering
  • last resort: military intervention can only be justified when every non-military option for the prevention or peaceful resolution of the crisis has been explored
  • proportional means: the scale, duration and intensity of the planned military intervention should be the minimum necessary
  • reasonable prospects: there must be a reasonable chance of success
  • right authority: the intervention should be always authorized by someone who legitimately has the power to do so

In 2005 all the Nations agreed at the UN on the “Responsibility to Protect” (R2P), based on three major points:

  • State sovereignty implies responsibility, and the primary responsibility is to protect its people;
  • The international community has a responsibility to assist the state if it is not able to protect its population on its own;
  • If the state fails to protect its citizens from crimes against humanity and peaceful measures have failed, the international community has the responsibility to intervene through coercive measures such as economic sanctions. Military intervention is considered the last resort.

This means that every single human on the planet has the right to be protected by wars and crimes, first by their own country and then by the world community.
The "Responsibility to Protect" has other specific duties:

  • To prevent atrocities, wars and crimes;
  • To react and respond to situations with appropriate measures, getting along with human needs;
  • To rebuilt and provide a full assistance with recovery, reconstruction and reconciliation.

First R2P was a world initiative, then it became a norm, focuses on a set of principles. Countries are not sovereign, but responsible. That’s why they have the duty to prevent and avoid crimes against humanity: genocide, war crimes and ethnic cleansing. From then on, all the Nations have to take care first of its own people, then of the world community.

Practical example: Myanmar was a case for R2P?
In 1962 in Myanmar there was a military coup d'état that ended democratic rule in Burma (named Myanmar after a second coup d'état in 1988). After this event there was an escalation of the mistreatment of the Burmese people, in particular towards political dissidents and ethnic minorities. Human rights violations by the military junta included: the pervasive use of forced labor, forced recruitment of tens of thousands of child soldiers, rampant sexual violence, extrajudicial killings, torture and the displacement of over a million Burmese people.
The victory in the 1990 elections by the National League for Democracy (NLD) exacerbated the military junta’s repression of political opposition and Aung San Suu Kyi wasprevented from taking power by the military. In August 2007, a large peaceful demonstration began all over Myanmar after the junta raised gas and diesel oil prices by 500%. As a reaction, the government raided monasteries and arrested monks and students involved in the demonstrations.The military government has reported that nearly 3,000 citizens have been detained in connection with the protests, although other sources have placed the number as high as 6,000.
In September 2006, the UN Security Council had their first meeting on the situation in Burma and, in January 2007, proposed a resolution calling for the cessation of grave violations of human rights. China and Russia both used their veto to block this resolution claiming that Burma was not a threat to international peace and security.
In 2008 the Cyclone Nargis killed an estimated 140,000 people and left hundreds of thousands homeless and in desperate need of clean water and food.
The results were: mangrove forests devastated caused damage in the area, no possibility for the country to prevent the disaster for infrastructure and shelters and the actual destruction of hundreds of houses.
The rescue activities were delayed due to political reasons as the junta in Myanmar refused humanitarian access to Western nations. On May 6, 2008, the Myanmar government representation in NY formally asked the UN for help, but concretely it remained resistant to the most basic assistance.
As of May 7, the government of Myanmar had not officially endorsed international assistance, but stated that they were, ‘willing to accept international assistance, preferably bilateral, government to government.’
Thailand, was the first country to send medical and food supplies (worth US $100,000) via the Thai Red Cross. The junta also permitted Italian flights containing relief supplies from the United Nations, and 25 tons of emergency equipment.
Many other nations, international institutions, NGOs and private companies immediately offered assistance to Myanmar but most of their officials, supplies and stores were kept waiting in Thailand or at Yangon airport.
The junta declined to issue visas for all emergency personnel and issued visas to a limited number of people. Some 130 UNICEF staff, who were all working in the country before the cyclone, were redeployed with government permission, but another 100 UN staff could not gain visa clearance to enter the country.
This fact poses the question: could anyone intervene against the will of the military junta?
French Foreign Minister Bernard Kouchner invoking the Responsibility to Protect, said on 7 May: "We are seeing at the United Nations whether we can implement the Responsibility to Protect, given that food, boats and relief teams are there, and obtain a United Nations' resolution which authorizes the delivery (of aid) and imposes this on the Burmese government."
Many actors reacted with strong criticism, first of all Russia, China, UK, then humanitarian organizations, including the UN Office for Coordination of Humanitarian Affairs.
The question still stays but nothing happened. The answer to the question posed with the creation of the doctrine of R2P is still there as the requirements for R2P can be misunderstood or misused.


Right to housing


The housing issue can be included in the field of human rights. In fact “everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.” [1]
The presence of slums is the proof that this right is not always easy to gain. The urban environment nowadays is creating differences among population: one time social classes were determined by income, today there are other standards as origin, nationality and ethnicity involved in this process. The housing problem of people who live in suburbs out of cities is a serious social problem.
In the United Nations Millennium Declaration, world leaders decided to take up the slum challenge and to give a global response to this issue, setting the specific goal of achieving “significant improvement in the lives of at least 100 million slum dwellers by the year 2020” (target 11). This means that leaders were taking responsibility not only for the specific needs of slum dwellers, but also for side problems as poverty, unemployment, low incomes and the lack of access to basic urban services. The first step has been the production by UN-HABITAT in collaboration with the African Population and Health Research Centre (APHRC) of a baseline information on slums, surveying over 1 million household records and compiling data from over 316 different sub-national, national and international sources. This study represents a milestone in the efforts of UN-HABITAT to monitor progress in the implementation of the Millennium Development Goal 7, Target 11. It concerns the global estimation of slums at the country level, establishing quantitative and qualitative analysis of the statistical information produced. These data show that it’s not a marginal phenomenon, in fact today about one third of the world’s urban population lives in slums. Based on these preliminary estimates on slums, it will be possible to develop time series on slum indicators, helping to track in a more systematic manner the improvement in the lives of these informal dwellers. In this way governments would be able to set up their own targets aimed at meeting the MDG objective.
Over the past 10 years, the number of urban population living in slums in the developing world has declined significantly: from 39 per cent in 2000 to 33 per cent in 2010. The fact that more than 200 million slum dwellers have gained access to improved water and sanitation or durable and less crowded housing shows that countries and municipal governments have made serious attempts to achieve target 11. However, in absolute terms, the number of slum dwellers in the developing world will continue to rise in the near future. The progress made on the slum target will not be sufficient to offset the growth of informal settlements in the developing world.

Considerations on the respect of basic human rights in the Lomé and Cotonou Conventions

To get in touch with the promotion of human rights in the EU external actions is good to pay attention to the Lomé Convention, that was signed in 1975 by EU and the group of Africa Carribean Pacific States. The reasons that led the EU to manage a strong approach towards APC were basically linked to humanitarian and political set: the EU could not remain indifferent to the serious violations of human rights that occurred in ACP countries, most of whom were engaged in cruel conflicts. Shortly after, the european Commission deplored a continued denial of fundamental rights in conflict situations, proposing the EU to take all the measures to ensure that its assistance could have a deterrent effect on the violation of fundamental principles. Around the time of the Lomé I Convention renewal, the EU commission underlined the need of including in the general framework of the EU cooperation policies a strong plan of promotion of human rights and fundamental liberties, suggesting to add in Lomé II an explicit reference to the rights of the human person. The Commission considered particularly important to add the promotion and respect of basic human rights and the right to punish the States responsable of violations. Following these purposes, the Community aid policies could be oriented exclusively to satisfy the needs of local populations. The final goal of the EU cooperation should result in helping people to realize their dignity. However, ACP states - claiming the right of no-intervention in domestic affairs and the principle of sovereignty – refused to include in Lomé II the clauses concerning the respect of human rights. In 1983, the European Parliament asked to build up a concrete communitarian policy concerning the global respect of human rights - making an explicit reference to the substancial ACP states violations – by inviting the European Commission to raise suggestions and purposes regarding the develpment cooperation. The challenges faced by the Lomé I and II Conventions aroused great interests around the Lomè III Convention results. In fact, by signing the convention, both the parties reaffirmes their engagement in the protection of basic human rights, dignity of the human person, equal rights for men and women of all nations. In particular, article 4 of the Convention declares that the cooperation aims to promote social and economic progress in the ACP States through the satisfaction of basic needs and the free development of human capabilities, in the full respect of human dignity. So the Convention reaffirms a real engagement of both the parties to guarantee human dignity by ensuring the full respect of fundamental priciples such as freedom, democracy, rule of law and basic human rights. To satisfy these common goals, cooperation should ensure a concrete partecipation of the population in development processes, in order to realize the effective enjoyment of economic, social and cultural rights, the eradication of all forms of discrimination. Referring to the three categories of rights – economic, cultural and social – and the principles of equality, the Convention represents an important result able to better define human rights policies. However, due to the problems mentioned above, the Convention did not manage to subordinate assistance and development cooperation to the respect of fundamental principles. Finally, it is relevant to point out that violations of fundamental rights involved some significant repercussions in EU-ACP relations. It's now turn to analize the legal status of Article 5 of the fourth Lomé Convention as a fundamental principle of respect of human rights in the EU-ACP relations. First of all, it's relevant to clarify that the article 5 is able to justify punitive measures taken by the EU against ACP countries committing violations of the principles of democracy and human rights. Moreover, the article clearly states that the basilar principle around which the EU-ACP cooperation stands up is the respect and promotion of human rights, whose respect is considered to be a decisive vehicle to join a substainable development; therefore, cooperation should be the most appropriate way to ensure the full respect of human rightsf and fundamental freedoms. What explained before shows that development and cooperation have to be connected with such principles. Starting right from the provisions contained in Article 5 of Lomé, it should be noted the necessary interconnection that characterised the respect of human rights and development.So, considering development strategies concerning the consolidation of democracy and the rule of law is necessary to mention the Cotonou agreement – signed in the omomonimous town situated in Benin in 2000. This agreement replaces the fourth Lomé Convention, has a term of twenty years with the possibility of review and tries to adapt development strategies and cooperation programmes to the needs defined by time. By signing this agreement, which will also include six more pacific States in EU-ACP membership – so defining sixty-seven members – the EU and the ACP States have signed their engagement to ensure the promotion and respect of basic human rights and fundamental freedoms in cooperation programmes. The essential features of the Cotonou Agreement can be founded in the general provisions, which contain a reference to the objectives, principles and actors of the partnership. Both the parties give particular attention to the political dimension of their relations, emphasizing the political dialogue, conflict prevention and resolution and indicating as the final goal the promotion of political, social and cultural development of the ACP countries. To pursue this engagement, the EU gives particular attention to poverty eradication: it is only through a previous development of the country in all its forms that's possible to guarantee the full respect of human rights and fundamental freedoms. This explains why development is considered to be the core of the Agreement: the primary goals to be joint by the EU-ACP cooperation are the ultimate eradication of poverty, the establishment of sustainable development, the integration of ACP countries into the world economy. Finally, development strategies should be implemented by governments' concrete actions and national measures in order to promote development and guarantee the full respect of basic human rights - expecially in the most vulnerable countries.Another face of China: human rights and dissentsWe know that China is actually one of the first economies in the world, thanks to its progressive integration in the global trade and in the global economy. But a part of China that is less cited is the one about the human rights policy of the Chinese government, a big point of discussion and concern fot the entire international commmunity. Here is a important video where Harry Wu that talks about the "laogai", labour camps where the central Chinese government puts dissedents and everybody that goes against the Chinese Comunist Party. This video is taken from the italian broadcast "Quello che (non) ho", 16/05/2012.http://www.youtube.com/watch?v=XQGDWjolrsQ
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    INTERNATIONAL CRIMINAL LAW


    The International Criminal Law is a complex of international norms that defineand punish international crimes, require states to prosecute and punish the perpetrators, and lay down rules for the conduct of criminal prosecutions at the international level. The international criminal law is a branch of Public International Law, so its concepts, principles and legal institutions derived fromnational criminal law, humanitarian law and human rights norms. The purpose of International Criminal Law is to protect the international community from violation of its principles and values, perpetrated by individuals acting with purely private purposes, on behalf of a state. International norms also have a preventive function: they prosecute the harmful behaviour, in order to prevent the damage to occur. The formation of this law is recent and the catalog of international crimes dates to the end of nineteenth century. Until the end of the World War II it included only war crimes.The crimes against humanity and peace were introduced by Statute of the International Military Tribunal at Nuremberg (IMT) in 1945, and by International Military Tribunal for the Far East (IMTFE) in 1946. The crime against genocide was added in 1948;during the 80s the torture and aggression were criminalized and the terrorism was only recently considered.International crimes not include:piracy;illicit drug trafficking;the illegal trade in weapons;trafficking of nuclear material or toxic or harmful substances;the money laundering and apartheid , that was recognized as a crime against humanity in the ICC Statute.This because these crimes are committed against the state and not committed on behalf of a state. The most important regulatory instruments established by the statutes of international courts and tribunals are:
    • London Agreement, 8th August 1945, which established the substantive and procedural law applicable before the international court of Nuremberg;
    • Statute of the ICC (1998);
    • Resolutions adopted by the Board of Securityin 1993 and in 1994 for the adoption of the statutes of the ICTY and the ICTR. The resolutions are legally binding on all the UN member states on the strength of Article 25 of the UN Charter;
    • International Treaties that contain norms, whose violation is usually connected with the commission of a war crime: 1. Regulations annexed to the Fourth Hague Convention of 1907; 2. the four Geneva Conventions of 1949; 3. the two Additional Protocols to the Geneva Conventions of 1977; 4. the Treaties against terrorism introducted from the 70s ; 5 the recent treaties that forbid the use of certain kind of weapons.

    The category of International Crimes has emerged from:Codification of customary rules of war's law,Codification Hague, important processes celebrated at the end of the American Civil War, International Military Tribunal andNuremberg and Tokyo Trials. The creation of the IMT and the Nuremberg and Tokyo Trials introduced crimes against peace and crimes against humanity and the possibility that all the high state representatives be judged by the courts to serious violations committed during the war. Before they had immunity for acting in the name and on behalf of the state. The creation of ad hoc tribunals is a part of the process that led to the establishment of the ICC to judge individuals and supreme organs of the state that were accused to commit serious international crimes. This process can bedivided into six phases, from Treaty of Versailles to creation of ICC Statute and Mixed courts. The mixed courts have been established to repress criminal atrocities committed in many parts of the world and include international judges and local judges. The mixed courts have been established for a number of historical and practical reasons: - prosecute the perpetrators for serious crimes committed in a crisis situation, it can help the process of peacekeeping; - an emergency situation can cause the collapse of the judicial system. This system has difficulty to administer justice fairly and impartially. For example, in Cambodia, where the government was composed to people linked to the authors of the genocide and the processes were celebrated without equity; - the use of a national judicial system monitored by an international level, could be useful: the people involved in the administration of justice have familiar with the mentality, the language, the customs of the accused. The processes are celebrated in the place where the crimes were committed, this contributes to the spread of democratic legal principles between prosecutors and local judges. Also was created the opportunity to make known to the local population the atrocities of the past contributing to the process of gradual reconciliation. The mixed tribunals also have problems and practical difficulties about the cooperation between the national and the international components, differences in mentality, language, experience and understanding of law, financial resources and security problems originated by hatred, resentment and social conflict . After Germany's defeat the United States wanted topunish the enemy with a fair and impartial trial creating an IMT, respect the principles of justice and civilization and show to all humanity heinous crimes committed by the Nazi state.In the summer of 1945, the victorious nations adopted the Statute of the International Military Tribunal at Nuremberg on London Conference.The text judged individuals who had committed:crimes against peace, war crimes, crimes against humanity.
    The International Military Tribunal for the Far East was established by General MacArthur on 19th January 1946 for prosecute the major organs of the Japanese government that committed crimes in the occupied countries of South-East Asia. On 26th April the Statute was approved and on 3rd May the process began in Tokyo.The International Criminal Tribunal for the former Yugoslaviawas established in May 1993 by the United Nations in response to mass atrocities committed from 1991 to 2001 during the conflict in the Balkans. The ICTY has charged over 160 people and more than 60 individuals have been convicted. The ICTY considers the following crimes: grave breaches of the Geneva Conventions of 1949, violations of the laws or customs of war, genocide and crimes against humanity. The acts of genocide committed in Rwanda made urgent the establishment of an international criminal court. The international community was eager to create a tribunal for Rwanda to show that it was also attentive to the problems in developing countries.
    Initially the proposal to establish the ICTR came from the new Rwandan government who wanted obtein the support of the international community.
    The ICTR Statute was adopted by Security Council Resolution n.955, 8th November 1994, recognizing that serious violations of humanitarian law were committed in the territory of Rwanda between 1st January 1994 and 31st December 1994.The international community has long aspired to the creation of a permanent international court. The UN General Assembly in 1996 established a Preparatory Committee on the establishment of the International Criminal Court (PrepCom). After a series of meetings a draft final Statute was adopted during the Rome Diplomatic Conference in 1998. Only seven nations voted against the Statute (USA, Libya, Israel, Iraq, China, Syria, Sudan). On 1st July 2002 the Rome Statute entered into force after ratification by 60 countries; currently the Rome Statute is been adopted by 122 countries.

    THE CRIMES WITHIN THE JURISDICTION OF THE INTERNATIONAL CRIMINAL COURT (ICC)


    First of all it is important to remember what is the purpose of the ICC – the reason why the ICC have decided to regulate these crimes – expressed in the Preamble of the Rome Statute: to end impunity for the most serious crimes of concern to the international community. The crimes are considered “serious” because of their capacity to threaten the peace, security and well-being of the world. So their prevention, persecution and punishment is an interest of the entire international community that must be ensured by enhancing international cooperation, but also each single state have the duty to exercise its criminal jurisdiction over those responsible for international crimes by taking measures at the national level. Unfortunately, in many cases the states do not have the necessary capabilities, or political will, to do so.
    The Statute of the ICC recalls also the principles and purposes of the Un Charter, in particular Chapter VII about the prohibition of the use of force against other states: «All states shall refrain from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of UN».
    The Article 5 of the Rome Statute says what are these crimes within the jurisdiction of the Court:
    «The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes:
    (a) The crime of genocide;
    (b) Crimes against humanity;
    (c) War crimes;
    (d) The crime of aggressio
    This last crime is mentioned in the Statute, but it was defined later during the Kampala Conference in 2010, and is not yet under the jurisdiction of the ICC because it is still waiting the necessary ratifications. It can be considered as a crime against peace.

    THE CRIME OF GENOCIDE

    The necessity to regulate the crime of genocide became clear to the international community after the end of the World War II. In fact the term “genocide” was used for the first time during the trials of the Nuremberg Tribunal in relation to the crimes committed by the Nazi regime, and in 1948 was drafted the Convention on the Prevention and Punishment of the Crime of Genocide – the first legal instrument to recognize genocide as a criminal offence.
    Later this crime was recognized and defined by the Statutes of the ad hoc Tribunals.
    The Statute of the ICC includes the definitions and provisions of these previous instruments.
    Article 6: «For the purpose of this Statute, "genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
    (a) Killing members of the group;
    (b) Causing serious bodily or mental harm to members of the group;
    (c)Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
    (d) Imposing measures intended to prevent births within the group;
    (e) Forcibly transferring children of the group to another group»
    This definition is exactly the same given by the Convention against Genocide in its article 2.
    There are two main characteristics to consider a crime as a crime of genocide:
    - A “specific malice”, the intention to destroy a particular group, the pursuit of this aim by the criminals;
    - A specific target, the group as such.
    It is not required a relationship with a situation of armed conflict (that is a characteristic of war crimes).
    The Tribunal for Rwanda gave an important contribution to this issue because for the first time the so-called “ethnic rape” was recognized as an element of genocide.

    CRIMES AGAINST HUMANITY

    The crimes against humanity consist of many types of offences (unfortunately the twentieth century shows several examples of them). Also these crimes were regulated after the World War II: the Nuremberg Statute was the first legal instrument to address these crimes because of the necessity to distinguish some behaviors and acts committed by the hierarchs of the Nazi regime from the war crimes. In this instrument this kind of crimes are punishable only because occurred during a conflict, now they can be punishable regardless the situation of armed conflict.
    In the Article 7 of the Rome Statute these crimes are defined as:
    «Any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
    (a) Murder; (b) Extermination; (c) Enslavement; (f) Torture;
    (i) Enforced disappearance of persons; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
    (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
    (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender […]; (j) The crime of apartheid;
    (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health».
    These acts must be committed on a large scale, to be a systematic offence to human dignity. The article continues specifying these types of offences.
    Some of these crimes are also violation of human rights and so they are regulated also by the conventions on human rights and by proper conventions.
    It is important to underline that the crimes against humanity can be undertaken by a state towards its own citizens, while war crimes must be committed by an enemy state.

    WAR CRIMES

    War crimes are the first, among international crimes, to be specifically regulated by multilateral conventions. In fact, also in the past were made different attempts to codify some rules, procedures and behaviors to regulate the conduct of the wars and guarantee a minimum level of respect of human rights in situations of armed conflict. This has led to the customs codified in the Geneva Conventions of 1949 which form the International Humanitarian Law. The principles of the IHL have reached a high degree of diffusion and are recovered by the provisions of the ICC:
    Article 8, para.2: «For the purpose of this Statute, "war crimes" means: (a) grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention; (b) other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law […]».
    (Then the article also regulates – and defines – the internal conflicts and contains a long and very detailed list of the types of offences within war crime, including the provisions of the other legal instruments)
    A summarized definition of war crimes can be: «the direct violation of one provision of the International Humanitarian Law, which is completely relevant on the basis of the norms of International Law».
    To consider a crime as a war crime it is necessary the existence of a linkage between the offence and the conflict as a whole: «prove that the crime was committed in the course of, or as a part of, the hostilities». It is not relevant which kind of conflict (as in the Geneva Conventions with the exception of the Additional Protocol II)
    The main difficulties in relation to this issue are the continuous evolution of the methods, strategies and technologies of war and the increasing involvement of the civil population.


    HUMAN RIGHTS VIOLATION IN RWANDA



    As everyone knows, Rwanda is a small country in equatorial Africa where in 1994 took place an horrible genocide.
    In 1994 Rwanda's population was composed by three ethnic groups: Hutu, that were 85%, Tutsi 14% and Twa 1%. Between Hutu and Tutsi there always been tension and rivalry and, when Hutu came to power, the violence began.
    Hutu extremist launched their plan to destroy the entire Tutsi civilian population; they even used radio programs and newspaper to spread violent message against Tutsi. Even the Rwandese army took part in it. Entire Tutsi families were killed and the women were systematically and brutally raped.
    The United Nations didn't authorize the use of term genocide because otherwise the UN would have been obliged to act to "prevent and punish" the perpetrators. (it was authorized only on May 21st).
    Recognizing that serious violation committed in Rwanda, the Security Council created the International Criminal Tribunal for Rwanda by resolution 955 on November 1994.
    The purpose of these measure is to contribute to the process of National reconciliation in Rwanda, it was established for the prosecution of people responsible for genocide and other serious violations of international law committed in Rwanda between January and December 1994 or in the neighboring states during the same period.
    The tribunal for R. Is governed by a Statute that establish the necessary framework for the functioning of the juridical system.
    The tribunal is structured in 3 organs: the chambers and the Appeals chamber, the office of prosecutor and the registry. The office of the prosecutor is based in Arusha and is divided in 2 divisions: the prosecution division and the Appeals and legal advisory division.

    The most famous judgment passed by the tribunal for R. Is the first sentence for genocide: the case of J.P. AKAYESU.
    Akayesu was born in 1953 and was a politician of the democratic Republican Movement for Rwanda. He served as a mayor of Taba community from April 1993 until June 1994. During his mandate as a mayor a lot of Tutsis were killed in his commune, and many others were victim of violence. Akayesu personally supervised the murder of various Tutsis. As mayor he had exclusive control over the communal police.

    Between April 7th and the end of June, 1994, hundreds of civilians went at the bureau communal looking for protection. The majority of these displaced civilians were Tutsi.
    The women were regularly taken by armed local militia and communal police and subjected to sexual violence.
    Akayesu knew that the acts of sexual violence and murders were being committed and, not only he facilitated and encouraged these activities, but was even present during some of these commissions.
    Akayesu's defence team argued that Akayesu had no part in the killings, and that he had been powerless to stop them.
    Despite these arguments, the Prosecutor argued that the crimes committed by Akayesu were of extreme gravity and that they deserved to be punished appropriately:
    1. Akayesu was in a position of authority and had the duty to protect the population and ensure its security
    2. He abused of his powers as Mayor to commit these crimes. He also used the municipal police under his responsibility, in the commission of the crimes.
    3. He was motivated by the intent to commit genocide
    So he was accused of: genocide and complicity in genocide, direct and public incitement to commit genocide, crimes against humanity: extermination, murder, torture, rape, other inhumane acts.
    On 2 September 1998, Trial Chamber I of the International Criminal Tribunal for Rwanda, found Jean Paul Akayesu guilty of 9 of the 15 counts proffered against him, including genocide, direct and public incitement to commit genocide and crimes against humanity.He’s serving his sentence in a prison in Mali.

    The Akayesu judgment is important because it is the first made by an international jurisdiction over the crime of genocide since the adoption of the 1948 Convention. It has particular interest because first of all the courts have made a reconstruction of the cases of genocide, punishable under Article. 2 of the Statute of the Court, and last but not least acknowledged for the first time that acts of sexual violence can be prosecuted as constituent elements of a campaign of genocide.