CRIMES AGAINST HUMANITY
"It is permitted in time of grave danger to walk with the devil until you have crossed the bridge" (Old Balkan proverb)

    When most people think of crimes against humanity, they are thinking of genocide, and genocide is a crime.  It is also sometimes an eruption of violence which takes place during "intractable" or unsolvable conflicts.  An interesting sociological or criminological feature of genocide is the widespread sense of complicity, no matter how implicit, and a sense that somehow "society" has failed.  When studying genocide, then, it is probably best to remember the audience or bystander role.  Smith (2005), in fact, goes further and argues there are four roles to consider -- victim, perpetrator, bystander, and hero.  How broad a perspective must be brought to bear on the problem is a matter of debate, however, as the field of genocide studies is mostly locked in a state of self-definition (like a lot of other academic fields of importance to humanity). 

    A brilliant review of the literature on genocide studies is contained in Prof. Valentino's (2004) book, Final Solutions.  He prefers the term "mass killing" to avoid some definitional difficulties, but otherwise is known for setting the standard at 50,000 intentional deaths over a five-year period as part of the definition of genocide  The number 50,000 is somewhat arbitrary, as was the 20,000 figure used for many years in the mid-twentieth century, but it should be noted that the trial of Saddam Hussein in 2006 made specific reference to a charge of genocide involving 50,000 deaths.  Valentino's point is that any theory which can explain 50,000 deaths is as good, or better, than any theory which can explain 20,000 deaths, and he has his own theory involving a thesis about the role of political leaders and their small group of followers (often acting without the support of broader society), but his excellent summary of the extant (existing) theories about genocide is as follows:

• plural society theory -- Kuper's (1983) theory that deep social cleavages, such as ethnic stratification, in a society are the root causes of genocide, especially when a certain amount of dehumanizing oppression or discrimination occurs, accompanied by polarization, facilitated identification of enemies, and the likelihood of intergroup conflict.  Valentino (2004) finds little empirical support for this theory which boils down to nothing more than suggesting bad intergroup relations cause genocide.

• scapegoat theory -- Staub's (1989) theory which draws upon frustration aggression research in social psychology to explain how minority groups or powerless majorities are often blamed for hardships when a society is wracked by severe crisis.  Valentino (2004) finds this theory weak because it implies that leaders of a genocide would publicize or popularize their undertaking, and most genocides are things leaders try hard to keep secret.

• political opportunity theory -- Harff's (1984; 1987; 2004) theory that national crises encourage genocide because they provide incentives, opportunity, and cover for revolutionary elites seeking to consolidate power or implement genocidal ideologies.  Valentino (2004) reviews research which shows that even for a society experiencing both civil and international war at the same time, there is only a 3-8% greater chance of experiencing a genocide. Although wars and revolutions encourage genocidal thinking, there is no predictive validity about the probability of it being carried out.

• power concentration theory -- Rummel's (1994; 2003) theory that genocide is more likely when a nondemocratic form of government exists which concentrates power in the hands of a few.  The corollary is that democracies never kill their own citizens.  Valentino (2004) takes issue with this, arguing that democracies do their killing overseas, often in a highly undemocratic fashion in covert, counterinsurgency operations. It is also possible to find undemocratic systems of government which do not kill anybody.

    Genocide is, of course, only one part of the picture in looking at the broader concept of crimes against humanity.  There is much confusion over the origin of the phrase "crimes against humanity," even confusion over how the words first came into parlance (Luban 2004).  Two misconceptions are especially prevalent -- the Hague Convention origin theory -- and the Nuremberg Tribunal origin theory.  First of all, it is incorrect to state that the phrase "crimes against humanity" is stated in the preamble to the 1907 Hague Convention, but what is really being referred to there is the Martens clause which mentions the "laws of humanity...and the dictates of public conscience."  If one is interested in finding the first use of the words "crimes against humanity, that source might properly be the 1915 Declaration by the governments of France, Great Britain and Russia denouncing the massacre of Armenians taking place in Turkey.  The problem with the Hague Convention origin theory is that there is no accepted interpretation of the Martens clause in international law (see The Martens Clause and the Laws of Armed Combat or The Martens Clause: Half a Loaf or Pie in the Sky?).  The Martens clause in the 1907 Hague Convention preamble was based upon and took its name from a declaration read by Professor von Martens, a Russian delegate at the Hague Peace Conferences in 1899.  Martens introduced the declaration after delegates at the Peace Conference failed to agree on the issue of the status of civilians who took up arms against an occupying force.  Large military powers argued that they should be treated as francs-tireurs and subject to execution, while smaller states contended that they should be treated as lawful combatants.  Although the clause was originally formulated to resolve this particular dispute, it has subsequently reappeared in various forms over the years as falsely justifying all sorts of ideas regarding the breadth of customary law and the limits of treaties.  The depth of controversy over the meaning of francs-tireurs was not lost on jurists who were analyzing the illegal combatant status of war on terror detainees in Gitmo.  

    Second of all, while it is true that the Nuremberg trials set a rather unusual precedent in the laws of war, creating for the first time (as the story goes) "an international judicial body applying universal jurisdiction over war criminals" (Scharf 2005), it is a bit of a stretch, as Morris (2001) points out, to consider this mere occupation court as anything more than a variant of the Tokyo tribunal, established by national, not international consent for jurisdiction over the nationality of the defendants, the special case being that Germany surrendered unconditionally and therefore lost sovereignty to expressly give such consent.  While the words "crimes against humanity" were specifically used in the Nuremberg Charter, the distinction made in the Charter between such crimes and war crimes reflected more an overwhelming sense of "victor's justice" (bordering quite closely on being ex post facto laws) and the evidence being "beyond the pale" (e.g., Winston Churchill called for summary executions).  There was no attempt at Nuremberg, for example, to find any jurisprudential foundation for crimes against humanity, other than to assume what the Nazis did to certain civilian population groups was an affront against all civilized nations.  Some of the nations participating in Nuremberg might have been guilty of crimes against humanity themselves if such a jurisprudential foundation was explored.  Much of Ward Churchill's (2002) more sensible writings emphasize this "clean hands" approach, repeatedly pointing out the history of the "American Holocaust" where US government policy allowed the systematic extermination of over 80% of the native American population as an example of a jurisprudential approach toward when a country can law claim to the moral high ground.  It is doubtful, at least ethically, whether a country which has not examined its own past can lay claim to passing judgment on another.

FOUNDATIONS IN THE LAW OF PIRACY   

    It is correct, both historically and legally, to make the case that crimes against humanity have their origin in the laws of piracy under international law.  As Shaw (2003), points out, piracy was the first offense clearly belonging to the sphere of universal jurisdiction, which is important, since "jurisdiction" is a legal concept not to be taken lightly.  For hundreds of years, all states have had both arrest and punishment powers over pirates, provided, of course, that they have been apprehended on the high seas or within the territory of the state concerned.  Tribunals for piracy can take place anywhere, and punishment for piracy can take place regardless of nationality.  Although piracy is the foundation for the whole sub-discipline of international criminal law (e.g., crimes against peace, war crimes, terrorism), piracy is also international law’s foundational bete noire (Simpson 2005).  In fact, during the trial of Adolf Eichmann, piracy law was cited (In Re Piracy Jure Gentium, 1934 App. Cas. 586, 598) to refute the defense claim that Israeli law had no jurisdiction over the defendant.  As Sir Edward Coke, Emerich de Vattel, Hugo Grotius, and numerous other jurists have stated, pirates are truly criminals against mankind, and are hostis humani generis, which means they have renounced all the benefits of society and government, and have reduced themselves to the savage state of nature, and that by declaring war against all mankind, all mankind must declare war against them, so that every community has a right under the rule of self-defense to inflict that punishment upon them as every individual would.  Under contemporary international law regarding the suppression of piracy (see Robertson 2005), the "law of nations" language in the High Seas Convention is not attuned with US domestic law which requires piracy to be for private ends and involve another ship.  Senator John Kerry's (1998) book, The New War, makes the case that foreign criminal law ought to be imported into the United States precisely because international notions of piracy are far superior to US domestic notions.  International piracy law recognizes attempt as the same as successful piracy.  Piracy can also be committed for political reasons, although the 1982 United Nations Convention on the Law of the Sea (UNCLOS II) places little weight on motive (however see Are Terrorists Evil Because of What They Do or Because of What They Are?).  Pirates are not any one nation's enemies, but rather the enemies of all; i.e., enemies of the whole human race.  If terrorists can be considered the world's "new pirates," then humanity criminals should be considered similarly.

    The United States once went to war against piracy, specifically against the Islamic "Barbary" pirates of Istanbul, Morocco, Algeria, Tunisia and Tripoli.  The point is worth mentioning for its parallels to the modern war on terrorism.  The Islamic pirates were the scourge of the Mediterranean Sea and its opening into the Atlantic for about two hundred years, from 1615 to 1815.  They preyed upon Christian and other non-Islamic ships in the name of the prophet and for plunder, committing horrible acts of atrocity against millions of Europeans, Brits, and Americans they captured, tortured, raped, mutilated, and enslaved.  Women, for example, were made into concubines for Islamic markets, and boys were mutilated to create eunuchs who brought higher prices in the markets.  They started attacking American ships shortly after the American Revolution, and the Continental Congress decided to try appeasing the pirates by paying tribute and ransom (to free seized ships and release slaves).  Not much of this appeasement strategy worked, but some of it did, and by 1800, the U.S. was paying the pirates about 20% its gross domestic product.  John Adams was the chief advocate of the appeasement strategy, and Thomas Jefferson was the chief advocate of going to war with the pirates.  When Jefferson became president in 1801, he dispatched a group of frigates to go after the pirates, but this was only six short years after the U.S. had created its Navy and Marine Corps.  That part of the Marine Corps anthem "to the shores of Tripoli" recounts the mission to go after the pirates, and the early Marine Corps use of a high leather collar to protect against cutlass slashes led to the nickname "leathernecks."  By 1815, after fourteen years of war, consisting mostly of naval bombardment and Marine raids, an end was brought to the Islamic practice of capturing sex slaves at sea.  The European powers continued to pay tribute, until the French finally got fed up and in 1830 conquered Algeria, which was the pirate's last stronghold. 

THE TRIBUNAL APPROACH

    The 1945 Charter of the International Military Tribunal (Nuremberg Charter) can be regarded as part of international law since it was affirmed by Resolution 95 of the UN General Assembly in 1946.  The subject matter jurisdiction provided the definitions of three categories of crimes by which the most notorious offenders could be charged with, as follows:

    Under international law set by the Nuremberg precedent, crimes against humanity are distinguished from mere domestic crimes by virtue of their "scope," or "mass nature."  Mass nature is defined by two criteria: (1) a large number of victims; and/or (2) a systematic state policy.  Massacres also have a mass nature, but their tendency to happen via police action and/or under martial law usually make them count as war crimes (but see Prof. Kuper's 1981 notion of "genocidal massacre" which counts small-scale massacres as genocides).  In addition to having the character of a mass nature, in order to qualify under international law as a crime against humanity, it must be shown that the targeted groups -- social groups, political groups, racial groups, religious groups, or other groups -- were targeted for mass murder because of their status as a group.  According to some who equate mass murder with genocide (e.g., Gellately & Kiernan 2003), an act of genocide constitutes a crime against humanity, i.e., any use of the terms "genocide" or "mass murder" automatically imply all the Nuremberg criteria for a crime against humanity are fulfilled.  However, it was not until 1948 that the term "genocide" found its way into the vocabulary of international law via the Convention on the Prevention and Punishment of the Crime of Genocide which didn't go into effect until 1951, and then only after extensive lobbying by Polish lawyer Raphael Lemkin.  The US didn't become a signatory until 1988, and then only after adding a proviso that it was immune from prosecution without its consent, a proviso copied by 50 Other Nations which are Nonparties to the Convention.  There are different ways different scholars have approached the definition of genocide (e.g., Harff's 1984 concept of "politi-cides;" Chalk & Jonassohn's 1990 sociological definition of "one-sided mass slaughter;" Rummel's 1997 concept of "democide" or government-sponsored killings other than capital punishment; and Power 's 2003 "race-murder" conception).  Additional terms that can be found in the literature are ethnocide (a term commonly used by sociologists of race relations), culturecide (an anthropological term for the disappearance of a culture), and the phrase "cultural genocide" which presumably refers to the attempt to destroy the cultural heritage of a people.  However, the 1948 Convention defines genocide as follows:

• killing members of a group

• causing serious bodily or mental harm to members of a group

• Deliberately inflicting on a group conditions of life calculated to bring about its physical destruction in whole or in part

• imposing measures intended to prevent births within a group

• forcibly transferring children of the group to another group    

    The most common defenses against complicity in genocide, the most common charge, according to Smith (2005), are dehumanization and hatred fueled by ethnic nationalism. Only the ethnic nationalism component appears to be the one most amenable to further analysis as to how genocide may be prevented in the future. Only in the 1990s did international law on the crime of genocide begin to be enforced, and then only with the International Criminal Tribunal for Rwanda.  There are some limitations of the 1948 Genocide Convention which ought to be pointed out.  A "group" is defined rather narrowly as a national, ethnic, racial or religious group, and does NOT include social or political groups, an exclusion that Russia insisted on when the Convention was ratified.  Immunity provisos and subtle, yet critical, definitional turns abound with the law of genocide, and always have, ever since the Nuremberg era all the way up to the modern international court era.  We'll return to the topic of genocide once we review two other tribunals and the modern court era.

CONTRIBUTIONS OF THE YUGOSLAVIA AND RWANDA TRIBUNALS

    The United Nations has established two special international criminal tribunals of note in Yugoslavia and Rwanda.  Special Courts, Special Tribunals, and Ad-Hoc Courts also exist in Sierra Leone, Cambodia, East Timor, and Iraq, but these two courts are shaping international law in significant ways.  The first such court was the ICTY (Y for Yugoslavia) established in 1993 to hear cases of genocide, crimes against humanity, and war crimes from the conflicts that ravaged the former Yugoslavia region.  It has garnered special attention for prosecuting former Yugoslav president Slobodan Milosevic.  The second such court was the ICTR (R for Rwanda), established in 1994 to prosecute those most responsible for the Rwandan genocide and help bring peace to the region.  The most notable thing about these two courts is their statutory definition of crimes against humanity, as any of the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds:

• murder -- the victim died, resulting from an act of the accused, motivated by intent to kill

• extermination -- any act or omission resulting in a mass killing event, including participation in planning

• enslavement -- the exercise of any powers attaching to the right of ownership over a person

• deportation -- involuntary evacuation from a territory of residence by threat of physical force

• imprisonment -- arbitrary deprivation of liberty without due process of law

• torture -- act or omission resulting in severe pain or suffering, deliberate, and aimed at obtaining information or a confession, or to punish any victim or a third person

• rape -- sexual penetration, however slight, with knowledge it occurs without consent

• persecution on political, racial and religious grounds -- it is disputed whether the actus reus or mens rea must be discriminatory, but there must be a resulting infringement of an individual's enjoyment of a basic fundamental right

• other inhumane acts -- a residual category for whatever has damaging effects on the victim

    Decisions made by the Special Courts have gone a long way toward liberating and standardizing what have been confusing and historicized legal concepts.  In particular, the Courts rely heavily on customary international law, avoid creating new offenses, avoid applying the law a posteriori, and confront the problem of the adherence of some but not all states to specific conventions.  In essence the general requirements of crimes against humanity have become: (A) that there is an "attack"; (B) that a link or "nexus" exists between the acts of the accused and the attack; (C) that the attack is "directed against any civilian population"; (D) that the attack is "widespread or systematic; and (E) the perpetrator have the appropriate mens rea.  Let's consider each of these elements individually, as Mettraux (2002) does:

    (A) An "attack" is different from an "armed conflict."  It is, of course, possible for an attack to occur in the context of an armed conflict, or the attack could precede, outlast, or run parallel to an armed conflict, but it is critically important that crimes against humanity be kept conceptually separate from armed conflicts (which emphasizes the criminal nature of the situation, and cuts off any masquerade of things being a military operation).  An attack covers the mistreatment of persons taking no active part in hostilities.  The scope of an attack is determined by what the Tribunals have called the "targeted civilian population, " and determination of this depends upon the prosecution's argument as to the geographical area covered by the indictment, and whatever satisfies the court that the attack is directed against a "population" rather than a loosely connected group of individuals.  An attack need not be large in scale.

    (B) The nexus between the act and the attack means that the underlying crime committed must form part of the attack.  This also means that the effect of the attack is likely to have knowledgeable consequences which the accused should have known.   The underlying crime need not have been committed in the heat of the attack for it to amount to a crime against humanity.  The crime could occur after the attack when the perpetrator is taking advantage of the situation after an attack. 

    (C) Any civilian population specifies that there is a target, not just incidental victims.  The population in question must have distinguishing features (nationality, ethnicity, for example), and it makes no difference if the population in question is stateless, or whether the perpetrator's nationality and the victim's nationality are one and the same.  This makes sense because historically, the original conception of a crimes against humanity was a focus on one's own population.  Isolated and random acts are excluded from the definition.  Numerically, the number of victims needs to be significant (to fulfill the requirements of being "widespread" or "systematic"), but international law does not set any minimum quantitative threshold.  Further, the targeted population must be of a predominantly civilian nature, and is not required to be completely civilian.

    (D) Widespread or systematic attack connotes the large-scale nature of the attack and the number of victims, but the conception is that an attack is "widespread" due to the cumulative effect of a series of acts, or due to the effect of a single act of extraordinary magnitude.  The word "systematic" refers to the organized nature of the violence and the improbability of its random occurrence. 

    (E) Mens rea requires proof of intent to commit the underlying offense, and that at least the offender knew they took a risk of participating in the implementation of an attack.  The perpetrator need not know the specific details, but their presumed awareness may be construed from their position in the hierarchy, their voluntary assumption of roles, their participation in violence, their membership in groups, their utterances, and their presence at the crime scene.  In addition, the perpetrator's knowledge may be inferred from public knowledge, such as media coverage.  When such presumed knowledge is proven, the accused's stated motive become irrelevant.  

THE INTERNATIONAL COURT APPROACH

    Since the invention of international military tribunals, genocide as well as a number of other crimes have been added to the category of crimes against humanity.  Apartheid and enforced disappearances come to mind as more recent examples of "other" crimes.  There have been developments specific to the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, but perhaps far more potential exists with the more recent International Criminal Court, an important institution finally created in 2002.  The U.N. has tried to create an ICC since 1947, and the issue gained momentum in the 1980s with narcoterrorists in Latin America, in 1990 with the Iraq invasion of Kuwait, with the genocides in Yugoslavia during 1991-1995, and the 1994-1995 genocides in Rwanda.  The final treaty, adopted in 1998, is called the Rome Statute of the International Criminal Court (see ICC website).  120 nations voted in favor of it that year, with seven (7) nations voting against it (including the U.S.), and with 21 nations abstaining.  Ratification by 60 nations followed in 2002, and as of 2004, 97 nations have ratified the treaty.  The ICC is located in The Hague, which is also home to a number of other international organizations.

    There are certain common elements to the above crimes: (1) no requirement of a nexus to war, which is consistent with all post-Nuremberg developments; (2) no requirement of a discriminatory motive on national, political, ethnic, racial or religious grounds, although the Rwanda Tribunal did require proof of motive, but the Yugoslavia Tribunal did not, and subsequent caselaw clarification in Prosecutor v. Tadic (1997) indicated that crimes against humanity need only have evidence of a discriminatory intent offered with regard to the category of "persecutions" which are defined as intentional and severe deprivations of fundamental rights contrary to international law by reason of the identity of the group or collectivity; (3) the requirement of a widespread attack, which is defined as massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims, however, anything done in a systematic manner or on a large scale usually qualifies; (4) directed against any civilian population, which includes resistance movements as per Prosecutor v. Kupreskic (2000), and may involve an "informal" organizational policy which doesn't have to be written down on official state documents; and (5) "knowledge of the attack" which is the MENS REA of crimes against humanity, or the intent to commit the underlying offense combined with knowledge of the broader context, or more precisely, as per Prosecutor v. Kayishema, the perpetrator must knowingly commit crimes against humanity in the sense that he must understand the overall context of his act.  Part of what transforms an individual act into a crime against humanity is the inclusion of the act within a greater dimension of criminal conduct; therefore an accused should be aware of this greater dimension in order to be culpable.  Accordingly, actual or constructive knowledge of the broader context of the attack is needed, which means that the accused must know that his act is part of a widespread or systematic attack on a civilian population and pursuant to some sort of policy or plan.  All elements are necessary to satisfy the mens rea requirement.       

    As noted, the ICC is mandated to handle only three (3) types of crimes -- genocide, crimes against humanity, and war crimes.  It has been proposed that the ICC should handle other types of crimes, particularly crimes of aggression (when one state attacks and/or occupies part of another state), but there has been no agreement on what constitutes a crime of aggression.  In theory and in principle, the ICC should handle any "serious crime" of concern to the international community.  However, there are numerous problems even with the three crimes the ICC is organized to handle.  The most basic problem is that several nations party to the Statute still have yet to create what is called "implementing legislation" which specifies the technicalities over how they will cooperate with the ICC when under investigation.  Other problems relate to what might be called rather large "exceptions" (loopholes, if you will), as the following list illustrates:

• the Court cannot prosecute child soldiers who commit crime.  A few nations have signed off on the Optional Protocol (to the Convention of the Rights of the Child on the Involvement of Children in Armed Conflict) which prohibits recruitment of children under the age of eighteen, but many international conflicts frequently involve child soldiers between the ages of fifteen and eighteen, which is beyond the jurisdiction of the Rome Statute.

• the Court cannot prosecute crimes committed before July 1, 2002, which is the date when the Rome Statute went into force.  A special or ad hoc tribunal would have to be used, instead, to deal with crimes from the past, an issue which many victimized groups in world are concerned with and/or seek reparations for.

• the Court cannot prosecute economic warfare, economic exploitation, or any corporate crime committed in the name of profit-seeking which happens to lead to disaster, starvation, injury, death, or pillaging of resources. (However, see UN Global Compact for ways transnational corporations are urged to operate in a socially responsible manner.)

• the Court can only selectively prosecute the members of peacekeeping forces, depending upon nationality.  If the peacekeepers come from a country that has not signed or ratified the Rome Statute, they cannot be prosecuted.

• the Court cannot prosecute whole governments or armed groups, only individual members of governments or armed groups, analyzing how each one in the hierarchy committed, ordered, assisted, or tolerated the crime, which means that in rather large, complex cases, some offenders will go unpunished in order to have justice done in a timely fashion.

• the Court cannot prosecute someone who has lost the mental capacity to understand that they have committed a crime, and either suffers from a mental disease before or during trial, was in a state of unwanted intoxication, or acted to defend him or herself.  Likewise, the Court exempts those who believed they were under a legal obligation to obey orders of a government or a superior.

• the Court cannot issue the death penalty.  The maximum sentence which can be given is life imprisonment, and the sentence must be carried out in a state which has indicated its willingness to incarcerate such a person and meets international standards regarding humane treatment of prisoners.     

    WHEN AND WHERE CRIMES AGAINST HUMANITY OCCUR

    It would be quite easy to blame the usual atrocities associated with crimes against humanity on the behavior of an ever-declining number of totalitarian military states, but the fact is that the paradigmatic case of genocide, as well as a number of other crimes against humanity, will occur among a variety of nations.  There are places where "slow-moving genocide" occurs, so it's not always noticeable by the appearance of massacre.  There is also a relatively contested HISTORY of well-known and well-researched genocides which we will now cover in some depth, but it should be noted that the topic is quite controversial, and the standard disclaimer (which applies here as well) is that numbers and facts mentioned should not be construed as official numbers and facts.  For the sake of brevity, we'll only discuss genocides which have occurred in the 20th century and should be well-known.  Other places on the Internet, like Matthew White's website, try to be comprehensive and list as many as 27 genocides in the 20th century where the death toll exceeded 1,000,000. 

    (1) Namibia Genocide of 1904 -- German troops killed tribes of African warriors, put others in concentration camps, and used women as sex slaves.  Present-day settlers of the region claim no genocide happened.

    (2) Armenian Genocide of 1915 -- This refers to the forced mass evacuation and related deaths of hundreds of thousands (some estimates put the number at over a million) of Armenians at the hands of the Young Turks (rulers of the Ottoman Empire from 1908-1918), although the Turkish government strongly claims that a genocide did not happen.  Concentration camps were used, and the evidence is still disputed (see Wikipedia Entry on Armenian genocide) with some countries acknowledging it happened and others not.

    (3) Ukrainian Genocide of 1932 -- A man-made famine was instigated by Soviet leader Joseph Stalin against the Ukraine, an ethnic-Ukrainian region of the northern Caucasus, and the lower Volga River region, resulting in the starvation death of between 7 to 10 million people.  Soviet law and NKVD secret police squads were used (along with an internal passport system) to restrict the movements of Ukrainian peasants so that they could not travel in search of food.  They died while being able to see Soviet grain elevators filled with food, often next to their homes.

    (4) Jewish Holocaust of 1942 -- This refers to Nazi Germany's systematic state-sponsored persecution and genocide of various ethnic, religious and political groups during World War II, using killing squads and extermination camps to eliminate six million Jewish citizens, although other historical estimates on the exact number range from five million to over six million.  The Holocaust also included about 220,000 Sinti and Roma victims as well as numerous other "undesirables" such as Poles, Russian war prisoners and other Slavs, the mentally or physically disabled, homosexuals, Jehovah's Witnesses, Communists and political dissidents.  It is possible that the total number of Holocaust victims is upward of 26 million, although the number 9 to 11 million is probably more reliable.

    (5) Bangladesh Genocide of 1971 -- During the Bangladesh Liberation War (as it was called),  which lasted nine months, 3 million Bangladeshis were killed by the Pakistan Army.  On average, 11,235 people were killed each day. It was the first time in history so many civilian Muslims were killed by a Muslim Army.  Around 200,000 women aged between 8 years and 60 years were raped, and Pakistani forces also indulged in systematic ways to eliminate the intelligensia. Nearly 50,000 people were murdered just days before conflict ended.  Several thousand children (war-babies) were born, most of them were taken by families to Canada and countries in Western Europe (mainly France and Sweden), but others were taken to Mother Teresa in Calcutta.

    (6) Cambodian Genocide of 1975 -- During a four-year period, the Khmer Rouge (the Communist Party of Kampuchea), led by Pol Pot and others killed approximately 1.7 million Cambodians, organized the mass killing of ideologically suspect groups, ethnic Vietnamese, ethnic Chinese or Sino-Khmers, ethnic Chams, ethnic Thais, former civil servants, demobilized soldiers, Buddhist monks, secular intellectuals and professionals, and refugees.  Khmer Rouge cadres defeated in factional struggles were also liquidated in purges.  Many cities in Cambodia became ghost cities where the people died of starvation, illnesses, or execution.  Landmines are still widely distributed around the countryside.

    (7) East Timor Genocide of 1975 -- East Timor (one of only two Catholic nations in Asia) was invaded and occupied by Indonesia from 1975 until 1999, until the UN sponsored their right to self-determination, and Indonesia relinquished control of the territory in 2002.  During the invasion and 27-year occupation, an estimated 100,000 to 250,000 people were killed in an initial population of about 600,000.  Many of the 28,000 East Timorese refugees still residing in Indonesia have returned, but many continue to refuse repatriation.  East Timor and Australia continue to disagree over maritime boundaries.   

    (8) Guatemala Genocide of 1982 -- During the Civil War in Guatemala, a large number of Maya Native Americans were killed, with death tolls estimated at about 75,000 for this population group.  Other counts put the numbers at over 10,000 indigenous Guatemalans and peasant farmers, and about 100,000 were made homeless.  According to other estimates, tens of thousands were killed by regime death squads over an eighteen month period.  Ruler at the time was "The General" Efrain Rios Montt, widely considered among one of the bloodiest strongmen in Latin American history and a graduate of the Pentagon's School of the Americas (now called WHINSEC; note -- possibly a hundred graduates of this school went on to be implicated in human rights violations, but that's out of sixty thousand graduates).

    (9) Sikh Genocide of 1984 -- This is hotly disputed as to whether it was a genocide or not since Indians tend to believe it only involved commoners attacking Sikh families in the wake of the assassination of Indira Ghandi, and there has been little proof of government support, despite numerous commissions which have looked at the event.  Hence, history tends to refer to it as The Anti-Sikh Riots, but the Sikhs obviously see things differently.  The four-day riots occurred mostly in Delhi, involving by most accounts, about 3,000 deaths, rapes, burnings (dousing with kerosene), and cutting off the heads of children.    

    (10) Rwanda Genocide of 1994 -- The Rwandan Genocide consisted of the slaughter of roughly one million Tutsis and moderate Hutus during a timespan of 100 days where intelligence and news media coverage should have tipped international authorities off, but the UN was slow to act, and the US stayed out because of the possible political backlash similar to what occurred just a year earlier in a failed attempt to help the country of Somalia.  Both the First Congo War (1996-1997) and the Second Congo War (1988-2002) trace their origins to this genocide, and it continues to be a reference point for the ongoing Burundian Civil War, which just as late as August 2004, 150 Tutsi refugees in a UN refugee camp in Burundi were murdered by Rwandan and Congolese rebels, who had crossed the border from Rwanda in order to target this specific ethnic group. The rebels were believed to be linked with the Rwandan Interahamwe militia, who were responsible for much of the killings during the original Rwandan Genocide, but as of August 2005, there are no less than eight other militia or opposition groups (see Global Security.org Burundi Civil War).

    (11) Bosnian Genocide of 1995 -- This was an organized murder of Bosnian Muslims (Bosniaks) during the Bosnian War where the army of Republika Srpska (the Serb component of the ruling entity over Bosnia and Herzegovinia) targeted for extinction a wide group of Bosnian Muslims.  It also included organized ethnic cleansing carried out against Croats, Roma, and Bosniaks throughout a three-year period displacing nearly 1 million people.  More than 7,000 Muslim men and boys were massacred in Srebrenica in July 1995 alone.  Total numbers killed in the Bosnian Genocide are still being determined but they range anywhere between 100,000 and 250,000.

    (12) Kosovo Genocide of 1999 -- After Yugoslavian President Slobodan Milosevic abolished Kosovo's autonomy in 1989, the Kosovars set up a shadow government which eventually gave rise to the Kosova Liberation Army which shot up Serbian cafes and carried out sophisticated, well-executed attacks against carefully-chosen Serbian targets.  By 1998, Milosevic was carrying out a crackdown not only against the KLA, but on villages and towns throughout the province.  At the height of the situation, western officials spoke of a death toll as high as 100,000, which justified a NATO bombing campaign against Milosevic.  It now appears that about 10,000 people were killed in more than 100 massacres, although the numbers are hotly disputed and the search for mass grave sites is ongoing.

    (13) Sierra Leone Genocide of 1999 -- After this nation's economy collapsed in 1985, the Army took over, and by 1990, one warlord from Ivory Coast, Charles Taylor, had begun his war in Liberia, causing 80,000 Liberian refugees to flee to Sierra Leone.  Civilians were brutalized, and children were kidnapped and inducted into the Army.  By 1994, the Army seized control of the diamond areas, bauxite and titanium mines; and also by now, an estimated 50,000 have been killed and about half the country's 4.5 million people have been displaced.  Numerous coups follow, Nigeria steps in, as does the UN in 1998 with a small peacekeeping force.  Nothing seemed to stop the violence, as Sierra Leone forces took Freetown in 1999, and at least two weeks of arson, terror, murder and dismemberment followed. Cabinet ministers, journalists and civil servants were tortured and killed. Parts of the city were razed, with over 6000 civilians killed before UN peacekeepers (with US help) established some kind of order, but the area is still under peacekeeper control and Charles Taylor lives comfortably in Nigeria with extensive wealth on account of so-called blood diamonds which are a major part of the world's underground economy. Late-breaking news is that he has now been captured and awaiting extradition.

THE DEMOGRAPHIC FACTOR IN CRIMES AGAINST HUMANITY

    Transitional states have also been places where genocide occurs, and it is the consensus of much recent scholarship (e.g., Teitel 2002; Minow 2003; Elster 2004) that crimes against humanity are very much at risk of occurring before and during the transition (by coup, civil war, revolution, or communal conflict) from an autocratic to democratic regime.  The crimes produced in such so-called "transitional democracies" do not exist because transitional democracies want to come "clean" with their past (resulting in more "reporting" of crimes against humanity), although some of that may be the case afterwards; but because regime breakup creates what is considered the number one demographic cause of security problems -- mass migration, refugee flows, and internally displaced persons (IDPs, or persons not technically a "refugee" because they haven't been displaced outside their country of nationality).  Weiner (1995), Kaplan (2001), Keely (2003), and many others have documented the problems of migratory movements which range from backlash (hate crime) to human rights violations (systematic discrimination) to "ethnic cleansing" (a subtype of genocide defined as organized use of intimidation, terror, rape, starvation, and murder to effect forced removals).  Starvation, disease, overpopulation, crime, vigilantism, and militia action are all part of what this form of genocide looks like as both national and international officials frequently turn a blind eye.  Large population movements have inherently destablizing influences on global and regional security structures, and are symptomatic of an underlying political crisis which frequently involves US national security and foreign policy (Edwards 2005).  A couple of charts below (from Global IDP Project) indicate the extent and location of the problem:

    Space does not permit a full discussion of the massive problem of refugee flows nor the complex nature of refugee operations.  Suffice it to say that the world's primary refugee agency, the UN High Commissioner for Refugees (UNHCR), has been operating on "system overload" since at least 1994.  UNHCR functions under a key (but possibly outdated) legal document known as the 1951 Refugee Convention amended by a 1967 Protocol (which simply lifted the original European geographical restriction).  Any discussion of REFUGEE LAW would be incomplete without mentioning regional instruments such as the 1969 Africa Refugee (Addis Ababa) Convention (pdf) and the 1984 Latin American Cartagena Convention.  A modern migratory movement is likely to be a mix of the following types: a migrant who is someone seeking a new life for reasons of economic hardship; a refugee who is genuinely fleeing life-threatening persecution; internally displaced persons (IDPs) who are also fleeing persecution, but are trapped within their own country; and other which is a category used for people who are just fearful, seeking temporary refuge, or on the move for reasons undocumented.  Under international law, UN and public-funded humanitarian relief organizations are only allowed to assist genuine refugees, although in most situations, an effort is made to assist as many of the IDPs and others as possible.  However, once a refugee enters a country of asylum and refugee status is granted, refugees are required to respect the laws of that country.  All countries which are party to the 1951 Convention and/or 1967 Protocol (a total of 145 nations) must abide by the international law principle of non-refoulement, which means they have to accept refugees for asylum purposes and NOT try to forcibly return them to countries where they might face persecution.  Each country is somewhat free to set up exactly how they do this (e.g., accept some; expel others), but the idea of not using forcible return is a part of customary international law and binding on all states.  Persons who have committed war crimes or crimes against humanity cannot qualify for any benefits of refugee law.  Also, a soldier cannot be a refugee, but former soldiers may qualify.  Procedures vary by the immigration laws of different countries.  Under international law, the proof of persecution (the "agent of persecution") does NOT have to be specific.  All that's required is proof that no protection of life and limb takes place in the country of origin, and databases like REFWORLD (at www.unhcr.ch/refworld/) exist which are similar to State Dept. travel warnings which assist with country assessments.  Intelligence would help, but both the UN and other refugee organization tend to shun or avoid the word intelligence, preferring the word "information" instead.  Nations are allowed to only provide "temporary protection" when facing a mass influx of people, which means there is an understanding that refugees will eventually go elsewhere, but cooperation between states is less than perfect, exemplified by the Australian refugee crisis of 2001-2002.

THE PERSISTENCE OF GENOCIDE

    As Power (2000; 2003) puts it (and is further paraphrased in this section), the epithet "Never Again" should be "Again and Again" because the dirty, ugly reality is that genocide just won't go away.  It's a recurring crime so monstrous, so horrible that special terms seem to need debate by scholars over how to define it.  Preventing it evades ordinary military and diplomatic solutions because surrender in war normally stops the killing, but surrender in the face of genocide only expedites the killing.  Nor is humanity the best hope for doing something about crimes against humanity.  There is a peculiar American attitude (likely found elsewhere too) toward genocide which is tied into a sort of "Holocaust industry" where a slew of movies make entertainment out of the subject (e.g., Schindler's List; Hotel Rwanda) or at least exhibition out of the subject (e.g., US Holocaust Memorial Museum).  Popular interest doesn't translate into popular outrage, and in fact, a sort of "Holocaust fatigue" may set in when people are reminded of something once too often, providing fuel for Holocaust deniers of all stripes. 

    Political leadership is slow to use the word genocide, and in fact, during no postwar case has an American president even attempted to argue that mass atrocity makes military or political intervention morally necessary.  No stern words were uttered over Cambodia, northern Iraq, Bosnia, or Rwanda; and when it came to Cambodia, Iraq, and Rwanda, there weren't even any economic sanctions (when sanctions came to Iraq, the leadership there was characterized as an "enemy of freedom" not a "killer of babies).  In Rwanda, the US even balked at helping to foot the bill for transport vehicles in the long-delayed deployment of a multinational UN force.  The sad truth is that leaving genocide alone threatens no vital American interests and risks no American lives.

    Misplaced hope exists in the "CNN Effect" where it is believed, erroneously, that reporters will access those areas of the world where genocide is about to happen, and then all those videos of carnage will stir the world up into some rescue effort.  The problem with such wishful thinking is that such news coverage has to compete with other news, tends to attract superficial interest, and further assumes that reporters will gain access to those conflict-ridden areas where it is more likely they'll be killed, "disappeared," or denied access.  The remoteness of a situation plays into an intellectual aloofness, and no amount of technology is likely to fix this.

    Finally, both the Genocide Convention and the ICC are so loaded with exemptions, reservations, stipulations, and immunities that nothing has gone quite as planned.  Frankly, both are impotent institutions.  Even at the international level, misuse, overuse, and abuse of the term have occurred, leading to a situation where the whole concept has lost salience.  Far from representing the ultimate wrong a nation can do, throwing around the word "genocide" has become an all-purpose political tool, where the label can be used to describe anything from segregation to birth control, or simply be used by anti-war, anti-WTO, and anti-police protestors.  Perhaps the original intent and meaning was all wrong; perhaps the original meaning and use needs to be rediscovered.  Who knows?  Terrorism has sidetracked us in becoming the world's "Enemy #1" when the ultimate enemy, the ultimate wrong has always been, and always shall be, genocide.

    What can be done about genocide, then?  One idea is to arm the populace.  A well-armed population enables, at least, the ability to fight back and resist.  There are some parallels to be drawn with the American case in that gun ownership prevents this sort of thing, at least according to some opinions.  In fact, serious scholarship has been directed toward just this solution.  In a typical genocide situation, the exterminating forces usually try to disarm the populace before they start exterminating them.  For this reason, and others, at least some scholars have talked about the Right to Resist Genocide as a newly emerging human right under international law (see Is Resisting Genocide a Human Right pdf). 

INTERNET RESOURCES
A List of Genocides from 1945 to 2002
Amnesty International Crimes Against Humanity Library
Application of the Law of Genocide to the Indonesian Situation (pdf)
Brookings-Bern Project on Internal Displacement
Case Law of the International Tribunals for Rwanda & Yugoslavia
Coalition for International Justice
Crimes Against Humanity: What Should the Offender Expect
Crimes of War Project
FIACAT.org
Forced Migration Online's Research Guide to International Refugee Law
Genocide Research Project at Univ. of Memphis
Global IDP Project
IMDB Hotel Rwanda (2004 movie) Discussion Boards
How the ICC & NGOs Contribute to the Prosecution of War Criminals
Human Rights and Reconstruction in Iraq
Human Rights Watch
Human Rights Watch World Report 2004
Human Rights Watch World Report 2005
InterAction.org
International Committee of the Red Cross
International Organization for Migration
International Rescue Committee
Nationmaster Entry for Crimes Against Humanity
Piracy Reporting Center
Pirates, Terrorists, and Other Enemies of Mankind (pdf)
Project on International Courts and Tribunals
Refugee Study Center at Univ. of Oxford
Refugees International
Saddam Hussein Trial Blog
South Asia Refugee Watch
Stanford Encyclopedia Article on International Justice
The Case for Supporting the International Court
U.N. Manual on Human Remains Postmortum Detection of Torture
Wikipedia Entry on Genocides in History
Wikipedia Entry on List of Massacres

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