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Encyclopedia of the Palestine Problem

CHAPTER EIGHT Part 2 of 2

 

The Economic and Social Council transmitted the draft to the Third Session of the General Assembly (ECOSOC res. 153 (VII)).

Following consideration of the draft text in the Legal Committee (Sixth Committee) of the General Assembly in 1948, the Assembly by Resolution 260A(III) unanimously approved the text of a Convention on the Prevention and Punishment of the Crime of Genocide and proposed it for signature and ratification or accession. The scope of the Convention is not limited to crimes of the nature described committed during war. Its preamble and substantive articles read:

The Contracting Parties,

Having considered the declaration made by the General Assembly of the United Nations in its resolution 96(1) dated 1 1 th December, 1946, that genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world;

Recognizing that at all periods of history genocide has inflicted great losses on humanity; and

Being convinced that, in order to liberate mankind from such an odious scourge, international co-operation is required,

Hereby agree as hereinafter provided:

ARTICLE I

The Contracting Parties confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.

ARTICLE II

In the present Convention, 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:

Killing members of the group;

Causing serious bodily or mental harm to members of the group;

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

Imposing measures intended to prevent births within the group.

ARTICLE III

The following acts shall be punishable:

Genocide;
Conspiracy to commit genocide;
Direct and public incitement to commit genocide;
Attempt to commit genocide;
Complicity in genocide.

ARTICLE IV

Persons committing genocide or any of the other acts enumerated in Article 111 shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.

ARTICLE VIII

Any Contracting Party may call upon the competent organs of the United Nations to take such action under the Charter of the United Nations as they consider appropriate for the prevention and suppression of acts of genocide or any of the other acts enumerated in Article III.

THE INTERNATIONAL BILL OF HUMAN RIGHTS

In the preamble of the United Nations Charter, the United Notions have expressed their determination, "to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, and in the equal rights of men and women." Article I of the Charter states that one of the purposes of the United Nations is the "promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion."

The United Nations Genera1 Assembly, in Article 13 of the Charter, is enjoined "to initiate studies and make recommendations for the purpose of the realization of human rights and fundamental freedoms." Article 15 of the Charter states that the United Nations "shall promote universal respect for, and observance of human rights and fundamental freedoms for all." Article 56 states "all members pledge themselves to take joint action in cooperation with the Organization for the achievement of the purposes set in Article 55." The Economic and Social Council was enjoined by Article 68 to set up a Commission for the promotion of human rights.

The Commission on Human Rights was established in 1946 and was able to draft The Universal Declaration of Human Rights in 1947, which was adopted by the General Assembly on the 10th day of December, 1948. The thirty Articles of the Declaration set forth the basic right and fundamental freedoms to which all men and women everywhere in the world are entitled to without any discrimination.

PROMOTION OF HUMAN RIGHTS IN THE UNITED NATIONS

The Economic and Social Council authorized the Commission on Human Rights to establish a sub-cornmission on the protection of minorities and a sub-commission on the Prevention of Discrimination and other sub-commissions. The General Assembly instructed the Economic and Social Council to widen the scope of studies to include the right of peoples to self-determination and economic, social, cultural and political rights. On December 14, 1960, the General Assembly adopted a Resolution entitled "Declaration on the granting of Independence to Colonial Countries and Peoples." It proclaimed "the necessity of bringing a speedy and unconditional end of Colonialism in all its forms and manifestations." The operative paragraphs declare that:

1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and cooperation.

2. All peoples have the right to self-determination, by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

4. All armed action or repressive measures of all kinds directed against dependent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete independence, and the integrity of their national territory shall be respected.

6. Any attempt aimed at partial or total disruption of the National unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations.

The General Assembly, on November 20, 1963, adopted the United Nations Declaration on the Elimination of all Forms of Racial Discrimination. In 1964, it adopted the Draft Convention on the Elimination of all Forms of Racial Discrimination. The General Assembly on the 16th day of December, 1966, by Resolution 2200A(XXI), adopted and opened for signature, ratification and accession The International Covenant of Civil and Political Rights. Eighty-three members of the United Nations have already made declarations ratifying this Covenant. (Up to the present day Israel has not ratified this covenant.)(33)

The following is an abstract of the International Covenant on Civil and Political Rights:

Part 1, Article 1 (1) states: "All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development."

Part 3, Article 9 (1) states: "Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law."

Part 3, Article 12 (4) states: "No one shall be arbitrarily deprived of the right to enter his own country."

VIOLATION OF HUMAN RIGHTS IS A CRIME AGAINST HUMANITY

The aforementioned provisions of the United Nations Charter constitute legal obligations of United Nations members and the World Organization as a whole to promote respect for Human Rights, and therefore, they are legal rights of the individual recognized by international law and must be protected and not violated.

On December 13, 1966, the United Nations General Assembly adopted Resolution 2 184(XXI) which condemned "as a crime against humanity the policy of the Government of Portugal which violates the Economic and Political Rights of the indigenous population by the settlement of foreign immigrants in the Territories and by the exporting of African workers to South Africa," and "further condemns the activities of the financial interests operating in the Territories under Portuguese domination which exploit the human and material resources of the Territories and impede the progress of their people towards freedom and independence."

In 1968, the Commission on Human Rights adopted a resolution in which it inter alia reaffirmed "that the practice of apartheid is a crime against humanity."

The International Law Commission in its report to the General Assembly on 5 May-1 1 July, 1986 (10 A/41/10) attempted to define crimes against humanity. It states:

All writers, all resolutions, all judicial decisions agree that what characterizes a crime against humanity is the motive, that is, the intention to harm a person or group of persons because of race, nationality, religion or political opinions. The Charter of the Nuremberg Tribunal, the Charter of the International Military Tribunal for the Far East and Law No. 10 of the Allied Control Council all emphasize this aspect ....

Some members of the Commission indicated that the draft Code should expressly and specifically condemn, as a crime against humanity, any acts committed, with or without support from abroad, in order to subject a people to a regime not in keeping with the right of peoples to self-determination and to deprive such people of human rights and fundamental freedoms.

THE GENEVA CONVENTION OF 1949

(United Nations Treaty Series Volume 75 (1950) Nos. 970-973). In 1949, the International Committee of the Red Cross called for an international conference to develop, revise and reform the International Law of Belligerent Occupation. The Conference was held at Geneva from April 21 to August 12, 1949. It was attended by representatives of sixty-three states and by many observers of International Organizations. The Conference adopted four conventions relating to the following:

1. The Treatment of Prisoners of War

2. The Amelioration of the condition of the wounded and sick in Armed Forces in the field;

3. The Amelioration of the condition of the wounded, sick and shipwrecked members of Armed Forces at sea;

4. The protection of civilian persons in time of war.

At the close of the Conference, the Four conventions were signed by the representatives of sixty-one States.

The Fourth Geneva Convention for the protection of civilian persons in time of war contained many articles prohibiting the military occupier of a country from illegal practices against the civilian population. The following are a selection of these articles:

ARTICLE 27
Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.

Women shall be especially protected against any attackon their honour, in particular against rape, enforced prostitution, or any form of indecent assault.

ARTICLE 30
Apart from the visits of the delegates of the Protecting Powers and of the International Committee of the Red Cross, provided for by Article 143, the Detaining of Occupying Powers shall facilitate as much as possible visits to protect persons by the representatives of other organizations whose object is to give spiritual aid or material relief to such persons.

ARTICLE 31
The High Contracting Parties specifically agree that each of them is prohibited from taking any measure of such a character as to cause the physical suffering or extermination of protected persons in their hands. This prohibition applies not only to murder, torture, corporal punishments, mutilation and medical or scientific experiments not necessitated by the medical treatment of a protected person, but also to any other measures of brutality whether applied by civilian or military agents.

ARTICLE 32
No protected person may be punished for an offence he or she has not personally committed. Collective penalties and likewise all measures of intimidation or of terrorism are prohibited.

Pillage is prohibited.

Reprisals against protected persons and their property are prohibited.

ARTICLE 47
Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory.

ARTICLE 49
Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.

Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. Such evacuations may not involve the displacement of protected persons outside the bounds of the occupied territory except when for material reasons it is impossible to avoid such displacement. Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.

The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated. The Protecting Power shall be informed of any transfers and evacuations as soon as they have taken place.

The Occupying Power shall not detain protected persons in an area particularly exposed to the dangers of war unless the security of the population or imperative military reasons so demand.

The Occupying Power shall not deport or transfer part of its own civilian population into the territory it occupies.

ARTICLE 51
The Occupying Power may not compel protected persons to serve in its armed or auxiliary forces. No pressure or propaganda which aims at securing voluntary enlistment is permitted.

The Occupying Power may not compel protected persons to work unless they are over eighteen years of age, and then only on work which is necessary either for the needs of the army of occupation, or for the public utility services, or for the feeding, sheltering, clothing, transportation or health of the population of the occupied country. Protected persons may not be compelled to undertake any work which would involve them in the obligation of taking part in military operations. The Occupying Power may not compel protected persons to employ forcible means to ensure the security of the installations where they are performing compulsory labour.

The work shall be carried out only in the occupied territory where the persons whose services have been requisitioned are. Every such person shall, so far as possible, be kept in his usual place of employment. Workers shall be paid a fair wage and the work shall be proportionate to their physical and intellectual capacities. The legislation in force in the occupied country concerning working conditions, and safeguards as regards, in particular, such matters as wages, hours of work, equipment, preliminary training and compensation for occupational accidents and diseases, shall be applicable to the protected persons assigned to the work referred to in this Article.

In no case shall requisition of labour lead to a mobilization of workers in an organization of a military or semi-military character.

ARTICLE 52
No contract, agreement or regulation shall impair the right of any worker, whether voluntary or not and wherever he may be, to apply to the representatives of the Protecting Power in order to request the said Power's intervention.

All measures aiming at creating unemployment or at restricting theopportunities offered to workers in an occupied territory, in order to induce them to work for the Occupying Power, are prohibited.

ARTICLE 53
Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.

ARTICLE 54
The Occupying Power may not alter the status of public officials or judges in the occupied territories, or in any way apply sanctions to or take measures of coercion or discrimination against them, should they abstain from fulfilling their functions for reasons of conscience.

ARTICLE 56
To the fullest extent of the means available to it, the Occupying Power has the duty of ensuring and maintaining, with the cooperation of national and local authorities, the medical and hospital establishments and services, public health and hygiene in the occupied territory, with particular reference to the adoption and application of the prophylactic and preventive measures necessary to combat the spread of contagious diseases and epidemics. Medical personnel of all categories shall be allowed to carry out their duties.

ARTICLE 66
In case of a breach of the penal provisions promulgated by it by virtue of the second paragraph of Article 64, the Occupying Power may hand over the accused to its properly constituted, non-political military courts, on condition that the said courts sit in the occupied country. Courts of appeal shall preferably sit in the occupied country.

ARTICLE 68
Protected persons who commit an offence which is solely intended to harm the Occupying Power, but which does not constitute an attempt on the life or limb of members of the occupying forces or administration, nor a grave collective danger, nor seriously damage the property of the occupying forces or administration or the installations used by them, shall be liable to internment or simple imprisonment, provided the duration of such internment or imprisonment is proportionate to the offence committed. Furthermore, internment or imprisonment shall, for such offences, be the only measure adopted for depriving protected persons of liberty. The Courts provided for under Article 66 of the present Convention may at their discretion convert a sentence of imprisonment to one of internment for the same period.

ARTICLE 76
Protected persons accused of offences shall be detained in the occupied country, and if convicted they shall serve their sentences therein. They shall, if possible, be separated from other detainees and shall enjoy conditions of food and hygiene which will be sufficient to keep them in good health, and which will be at least equal to those obtaining in prisons in the occupied country.

They shall receive the medical attention required by their state of health.

They shall also have the right to receive any spiritual assistance which they may require.

Women shall be confined in separate quarters and shall be under direct supervision of women.

Proper regard shall be paid to the special treatment due to minors.

Protected persons who are detained shall have the right to be visited by delegates of the Protecting Power and of the International Committee of the Red Cross, in accordance with the provisions of Article 143.

Such persons shall have the right to receive at least one relief parcel monthly.

The United States ratified the 1949 Geneva Convention and it came into force for the United States from the 2nd day of February, 1956. Thereafter, the United States incorporated the provisions of these conventions, together with the 1907 Hague Convention and 1929 Geneva Convention relative to the treatment of prisoners of war, into the Law of Land Warfare, a manual issued by the Department of the Army in July, 1956. This manual contains a summary of the Customary Law of War to which all states are subject.

The following sections extracted from the said manual summarizes the Law of Belligerent Occupation:(34)



SECTION 351 : MILITARY OCCUPATION
Territory is considered occupied when it is actually placed under the authority of the hostile army.

The occupation extends only to the territory where such authority has been established and can be exercised.

SECTION 353: SUBJUGATION OR CONQUEST DISTINGUISHED
Belligerent occupation in a foreign war, being based upon the possession of enemy territory, necessarily implies that the sovereignty of the occupied territory is not vested in the occupying power. Occupation is essentially provisional.

SECTION 358: OCCUPATION DOES NOT TRANSFER SOVEREIGNTY
Being an incident of war, military occupation confers upon the invading force the means of exercising control for the period of occupation. It does not transfer the sovereignty to the occupant, but simply the authority or power to exercise some of the rights of sovereignty. The exercise of these rights results from the established power of the occupant and from the necessity of maintaining law and order, indispensable both to the inhabitants and to the occupying force.

It is therefore unlawful for a belligerent occupant to annex occupied territory or to create a new State therein while hostilities are still in progress.

SECTION 359: OATH OF ALLEGIANCE FORBIDDEN
Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory.

SECTION 369: LOCAL LAW AND NEW LEGISLATION

The penal laws of the occupied territory shall remain in force, with the exception that they may be repealed or suspended by the Occupying Power in cases where they constitute a threat to its security or an obstacle to the application of the present Convention. Subject to the latter consideration and to the necessity for ensuring the effective adminishation of justice, the tribunals of the occupied territory shall continue to function in respect of all offences covered by the said laws.

The Occupying Power may, however, subject the population of the occupied territory to provisions which are essential to enable the Occupying Power to fulfil its obligation under the present Convention, to maintain the orderly government of the territory, and to ensure the security of the Occupying Power, of the members and property of the occupying forces or administration, and likewiseof theestablishments andlines of communications used by them.

SECTION 372: PROHIBITION AS TO RIGHTS AND RIGHTS OF ACTION

It is especially forbidden to declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party.

SECTION 380: RESPECT FOR HUMAN RIGHTS
Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected.

SECTION 382: DEPORTATIONS, TRANSFERS, EVACUATIONS

Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.

The Occupying Power shall not detain protected persons in an area particularly exposed to the dangers of war unless the security of the population or imperative military reason so demand.

The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

SECTION 393: DESTRUCTION AND SEIZURE OF PROPERTY

(a) Prohibition
It is especially forbidden to destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war.

(b) Occupying Power
Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.

SECTION 397: PILLAGE
(a) Treaty provision
Pillage is formally forbidden.

SECTION 399: PROPERTY CONTROL
Property within occupied territory may be controlled by the occupant to the degree necessary to prevent its use by or for the benefit of the hostile forces or in a manner harmful to the occupant. Conservators may be appointed to manage the property of absent persons (including nationals of the United States and of friendly States) and of internees, property managed by such persons, and property of persons whose activities are deemed to be prejudicial to the occupant. However, when the owners or managers of such property are again able to resume control of their property and the risk of its hostile use no longer exists, it must be returned to them.

Measures of property control must not extend to confiscation. However, the authority of the occupant to impose such controls does not limit its power to seize or requisitionproperty or take such other action with respect to it as may be authorized by other provisions of law.

SECTION 400: REAL PROPERTY OF A STATE

The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of theseproperties, and administer them in accordance with the rules of usufruct.

SECTION 402: OCCUPANT'S DISPOSITION OF REAL PROPERTY OF A STATE

Real property of the enemy State which is essentially of a non-military nature, such as public buildings and offices, land, forests, parks, farms, and mines, may not be damaged or destroyed unless such destruction is rendered absolutely necessary by military operations. The occupant does not have the right of sale or unqualified use of such property. As administrator or usufructuary he shouldnot exercise his rights in such a wasteful andnegligent manneras seriously to impair its value. He may, however, lease or utilize public lands or buildings, sell the crops, cut and sell timber, and work the mines. The term of a lease or contract should not extend beyond the conclusion of the war.

SECTION 405: MUNICIPAL, RELIGIOUS, CHARITABLE AND CULTURAL PROPERTY
(a) Treaty provision
The property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when State property, shall be heated as private property. All seizure or destruction of, or wilful damage to, institutions of this character, historic monuments, works of art and scierce, is forbidden, and should be made the subject of legal proceedings.

SECTION 406: PRIVATE PROPERTY: GENERAL
(a) Treaty provision
Private property cannot be confiscated.

(b) Prohibited acts
The foregoing prohibition extends not only to outright taking in violation of the law of war but also to any acts which, through the use of threats, intimidation, or pressure or by actual exploitation of the power of the occupant, permanently or temporarily deprive the owner of the use of his property without his consent or without authority under international law.

SECTION 407: PRIVATE REAL PROPERTY
Immovable private enemy property may under no circumstance be seized. It may, however, be requisitioned.

SECTION 418: LABOR OF PROTECTED PERSONS

The Occupying Power may not compel protected persons to serve in its armed or auxiliary forces. No pressure or propaganda which aims at securing voluntary enlistment is permitted.

SECTION 425: TAXES
(a) Treaty Provision
If, in the territory occupied, the occupant collects the taxes, dues, and tolls imposes for the benefit of the State, he shall do so, as far as possible, in accordance with the rules of assessment and incidence in force, and shall in consequence be bound to defray the expenses of the administration of the occupied territory to the sameextent as the legitimate Govemment was so bound.

SECTION 446: TREATMENT OF DETAINEES

Protected persons accused of offences shall be detained in the occupied country, and if convicted they shall serve their sentences therein. They shall, if possible, be separated from other detainees and shall enjoy conditions of food and hygiene which will be sufficient to keep them in good health, and which will be at least equal to those obtaining in prisons in the occupied country.

They shall receive the medical attention required by their state of health.

They shall also have the right to receive any spiritual assistance which they may also require.

Women shall be confined in separate quarters and shall be under the direct supervision of women.

Proper regard shall be paid to the special interest due to minors.

Protected persons who are detained shall have the right to be visited by delegates of the Protecting Power and of the International Committee of the Red Cross, in accordance with the provisions of Article 143.

Such persons shall have the right to receive at least one relief parcel monthly.

SECTION 448: PENALTY FOR INDIVIDUAL ACTS OF INHABITANTS
No general penalty, pecuniary or otherwise, shall be inflicted upon the population on account of the acts of individuals for which they cannot be regarded as jointly and severally responsible.

BREACHES OF THE FOURTH GENEVA CONVENTION OF 1949 ARE TRIABLE BY THE COURTS OF THE HIGH CONTRACTING PARTIES

Article 146 of the Fourth Geneva Convention of 1949 states:

The High Contracting Parties undertake to enact any Legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present convention defined in the following Article.

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provision of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.

Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article."

Article 148 states: "No High Contracting Party shall be allowed to absolve itself or any other High Contracting Party of any liability incurred by itself or by another High Contracting Party in respect of breaches referred to in the preceding Article."

Paragraph 3 of Article 149 states "that once the violation has been established, the Parties to the conflict shall put an end to it and shall repress it with the least possible delay."

In 1977, two protocols to the Geneva Conventions were signed by the contracting parties. Article 1, Paragraph 1 of Protocol No. 1 states, "the High Contracting Parties undertake to respect and to ensure respect for this Protocol in all circumstances." Paragraphs 3 and 4 of Article 1 state: "This Protocol, which supplements the Geneva Conventions of 12 August 1949 for the protection of war victims, shall apply in the situations referred to in Article 2 common to these conventions"; and the "situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of selfdetermination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations."

Paragraph 4 of Article 85 of Protocol No. 1 states: "In addition to the grave breaches defined in the preceding paragraphs and in the Conventions, the following shall be regarded as grave breaches of this Protocol, when committed willfully and in violation of the Conventions of the Protocol: (a) the transfer by the occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the occupied territory within or outside this territory, in violation of Article 49 of the Fourth Convention."

Article 86, Paragraph 1 of Protocol No. 1 states: "The High Contracting Parties and the Parties to the conflict shall repress grave breaches, and take measures necessary to suppress all other breaches, of the Conventions or of this Protocol which result from a failure to act when under a duty to do so."

PUNISHMENT OF CRIMINALS

International criminal law as adopted by all nations considers the following offences as war crimes and crimes against humanity:

Murder and massacres; Systematic terrorism; Putting hostages to death; Torture of civilians; Deliberate starvation of civilians; Rape; Abduction of girls and women for the puqose of enforced prostitution; Deportation of civilians; Internment of civilians under inhuman conditions; Forced labour of civilians in connection with the military operations of the enemy; Usu~ation of sovereignty during military occupation; Compulsory enlistment of soldiers among the inhabitants of occupied territory; Pillage; Confiscation of property; Exaction of illegitimate or of exorbitant contributions and requisitions; Debasement of the currency and issue of spurious currency; Imposition of collective penalties; Wanton devastation and destruction of property; Deliberate bombardment of undefended places; Wanton destruction of religious, charitable, educational and historic buildings and monuments; Destruction of merchant ships and passenger vessels without warning and without provision for the safety of the passengers and crew; Destruction of fishing boats and of relief ships; Deliberate bombardment of hospitals; Attack and destruction of hospital ships; Breach of other rules relating to the Red Cross; Use of deleterious and asphyxiating gases; Use of explosive or expanding bullets and other inhuman appliances; Directions to give no quarter; Ill-treatment of wounded and prisoners of war; Employment of prisoners of war on unauthorized works; Misuse of flags of truce; Poisoning of wells; Indiscriminate mass arrests for the purpose of terrorizing the population whether described as taking of hostages or not; Ill-treatment of interned civilians or prisoners; Carrying out of or causing execution to be carried out in an inhuman way; Refusal of aid or prevention of aid being given to shipwrecked persons; Intentional withholding of medical supplies from civilians; and Commission, contrary to the conditions of a truce, of hostile acts or the incitement thereto, and the furnishing of others with information, the opportunity or the means for that puqose.(35)

Punishment of criminals has been established by the Tribunals which tried war criminals after World War 11. The Intemationd Military Tribunal which tried major Nazi war criminals, namely Goering and others, sentenced them either to death by hanging or to imprisonment for life. Other war crime Tfibunals sentenced war criminals to death or imprisonment.

The following is an extract from the Law Reports of Trials of War Criminals, Volume 15, Pages 200-20 1 :

International law lays down that a war criminal may be punished with death whatever crime he may have committed. Some use has been made of the latitude allowed in this matter insofar as certain offences other than killing have, on occasion, been punished with death, for instance cases of torture andfor rape punished by the Norwegian and Australian courts. Illustrative Norwegian trials have been reported upon in these volumes. Among the Australian trials mention should be made of the trial of Tsugiji Matsumoto and others at Rabaul, 6th April, 1946, when three accused were sentenced to death for torturing a civilian inhabitant of occupied territory, and the trial of Hiroe Sakoda and others at Rabaul, 26th-29th April, 1946, when the accused Hiroshi Nakajima and Shigenobu Takahashi were sentenced to death for torturing another civilian. In each case the charge was one of torture; the record contains no mention of any death of the victims having resulted, and the findings and sentences were confirmed and carried out. In a third trial held at Rabaul on 13th December, 1945, an Australian Military Court sentenced to death Yoshio Taki on charges of rape and torture committed against a Chinese civilian of Rabaul, although the victim survived. Again the sentence was confirmed and carried out.

Death sentences have also been awarded by several Australian Courts for cannibalism and mutilation of the dead. These sentences have however usually been either commuted or overruled by the Confirming Authority.

On the other hand, it is open to the courts to award sentences less than the death sentence to accused found guilty of charges of unlawful killing and this has been done in many trials, including some Austrdian cases where the charges were explicitly charges of murder.

It has thus been seen above that the death sentence has been generally reserved for cases of killing unlawfully, torturing and rape. Similarly, a study made in Volume IV of the punishment meted out to certain military commanders and a police chief for not preventing crimes, including killings, on the part of their subordinates has shown that, after action by reviewing of appellate authorities, no guilty accused suffered death with the exception of Lt. General Masao Baba and General Yamashita; and in the case of Yarnashita there was some, though not uncontradicted, evidence that he had actually ordered his subordinates to commit atrocities.(36)

STATUTES OF LIMITATION SHALL NOT APPLY TOWARDS WAR CRIMES AND CRIMES AGAINST HUMANITY

The United Nations General Assembly adopted Resolution 239 1 (XXIII) on the 26th of November, 1968, in which it decided to adopt a convention on the non-applicability of statutory limitations to war crimes and crimes against humanity.

The most important parts of that convention are the following:

The States parties to the present convention,

Recalling resolutions of the General Assembly of the United Nations 3 (1) of 13 February 1946 and 170 (11) of ?1 October 1947 on the extradition and punishment of war criminals, resolution 95 (I) of 1 1 December 1946 affirming the principles of international law recognized by the Charter of the International Military Tribunal, Nurnberg, and the judgment of the Tribunal, and resolutions 2184 (XXI) of 12 December 1966 and 2202 (XXI) of 16 December 1966 which expressly condemned as crimes against humanity the violation of the economic and political rights of the indigenous population on the one hand and the policies of Apartheid on the other,

Recalling resolutions of the aonomic and Social Council of the United Nations 1074 D (XXXIX) of 28 July 1965 and 1158 (XLI) of 5 August 1966 on the punishment of war criminals and of persons who have committed crimes against humanity,

Noting that none of the solemn declarations, instruments or conventions relating to the prosecution and punishment of war crimes and crimes against humanity made provision for a period of limitation,

Considering that war crimes and crimes against humanity are among the gravest crimes in international law,

Convinced that theeffective punishment of war crimes and crimes against humanity is an important element in the prevention of such crimes, the protection of human rights and fundamental freedoms, the encouragement of confidence, the furtheranceof co-operation among peoples and the promotion of international peace and security,

Noting that the application to war crimes and crimes against humanity of the rules of municipal law relating to the period of limitation for ordinary crimes is a matter of serious concern to world public opinion, since it prevents the prosecution and punishment of persons responsible for those crimes,

Recognizing that it is necessary and timely to affirm in international law, through this Convention, the principle that there is no period of limitation for war crimes and crimes against humanity, and to secure its universal application,

Have agreed as follows:

ARTICLE I
No statutory limitation shall apply to the following crimes, irrespective of the date of their commission:

(a) War crimes as they are defined in the Charter of the International Military Tribunal, Numberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations, particularly the "grave breaches" enumerated in the Geneva Conventions of 12 August 1949 for the protection of war victims;

(b) Crimes against humanity whether committed in time of war or in time of peace as they are defined in the Charter of the International Military Tribunal, Nurnberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 (I) of 1 1 December 1946 of the General Assembly of the United nations, eviction by armed attack or occupation and inhuman acts resulting from the policy of apartheid, and the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, even if such acts do not constitute a violation of the domestic law of the country in which they were committed.

ARTICLE II
If any of the crimes mentioned in article I is committed, the provisions of this Convention shall apply to representatives of the State authority and private individuals who, as principals or accomplices, participate in or who directly incite others to the commission of any of those crimes, or who conspire to commit them, irrespective of the degree of completion, and to representatives of the State authority who tolerate their commission.

ARTICLE III

The States Parties to the present Convention undertake to adopt all necessary domestic measures, legislative or otherwise, with a view to making possible the extradition, in accordance with international law, of the persons referred to in article II of this Convention.

ARTICLE IV
The States Parties to the present Convention undertake to adopt, in accordance with their respective constitutional processes, any legislative or other measures necessary to ensure that statutory or other limitations shall not apply to the prosecution and punishment of the crimes referred to in articles I and 11 of this Convention and that, where they exist, such limitations shall be abolished.

PRINCIPLES OF INTERNATIONAL C00PERATION IN THE DETECTION, ARREST, EXTRADITION AND PUNISHMENT OF PERSONS GUILTY OF WAR CRIMES AND CRIMES AGAINST HUMANITY

On December 3, 1973, the United Nations General Assembly adopted Resolution 3074 (XXVIII), in which it declared the following:

1. War crimes and crimes against humanity, wherever they are committed, shall be subject to investigation and the persons against whom there is evidence that they have committed such crimes shall be subject to tracing, arrest, trial and, if found guilty, to punishment.

2. Every state has the right to try its own nationals for war crimes or crimes against humanity.

3. States shall co-operate with each other on a bilateral and multilateral basis with a view to halting and preventing war crimes and crimes against humanity, and shall take the domestic and international measures necessary for that purpose.

4. States shall assist each other in detecting, arresting and bringing to trial persons suspected of having committed such crimes and, if they are found guilty, in punishing them.

5. Persons against whom there is evidence that they have committed war crimes and crimes against humanity shall be subject to trial and, if found guilty, to punishment, as a general rule in the countries in which they committed those crimes. In that connection, States shall co-operate on questions of extraditing such persons.

6. States shall co-operate with each other in the collection of information and evidence which would help to bring to trial the persons indicated in paragraph 5 above and shall exchange such information.

NOTES TO CHAPTER EIGHT

1. Judgment of the United States Military Tribunal in the Hostages Trial, Law Reports of Trials of War Criminals, Selected and Prepared by the United Nations War Crimes Commission (London: H. M. Stationery Office, 19491, volume 8, pp. 49-50.
2. Ibid., volume 6, pp. 34-35.
3. L. Oppenheim, International Law , edited by H. Lauterpacht (London: Lomgmans, Green & Co., 1952), Seventh Edition, lnternational Criminal Law volume 2, pp. 229-23 1.
4. Law Reports of Trials of War Criminals, volume 15, pp. 5-6.
5. Final Act, Second Peace Conference Held at the Hague in 1907 (London: H. M. Stationery Office, 19491, pp. 58-61.
6. Law Reports of Trials of War Criminals, volume 15, pp. 12- 13.
7. Ibid., p. 13.
8. Records of the Fourth Assembly, Plenary meetings, League of Nations Official Journal, Special Supplement No, 13, 1923, p. 403.
9. Records of the Eighth Ordinary Session of the Assembly, League of Nations Official Journal (Special Supplement No. 54), 1927.
10. Indictment presented to the International Military Tribunal sitting at Berlin on the 18th of October, 1945 (London: H. M. Stationery Office, 1945), cmd.6696, p. 3.
11. Ibid., p. 12.
12. Ibid., p. 13.
13. Ibid., p. 30.
14. Judgment of the lnternational Military Tribunal for the Trial of German Major War Criminals, Nuremberg, 30th September and 1st October, 1946 (London: H. M. Stationery Office, 1946). British Command Paper No. 6964, pp. 12-13.
15. Ibid., p. 42.
16. lbid., pp. 44-45.
17. Ibid., p. 64.
18. Law Reports of Trials of War Criminals, volume 15, p, 99.
19. Ibid., p. 101
20. Ibid., p. 105.
21. Ibid., p. 113.
22. Ibid., p. 114.
23. lbid., p. 117.
24. Ibid., p. 118.
25. Ibid., p. 121.
26. Ibid., pp. 122-123.
27. Ibid., pp. 123-124.
28. Ibid., pp. 126-127.
29. Ibid., pp. l29-13I.
30. Ibid., pp. 134-135.
31. Ibid., pp. 139-141,
32. Ibid., pp. 141-143.
33. Report of the Human Rights Committee to the General Assembly, Supplement No. 40 (A/41/40, p. 102).
34. The Law of Land Watfare: Department of the Army Field Manual FM 27-10, July 1946, pp. 138- 164.
35. Law Reports of Trials of War Criminals/u, volume 11, pp. 93- 94.
36. Ibid., volume 15, pp. 200-201



Encyclopedia of the Palestine Problem
By Issa Nakhleh

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