Human Rights - After the War II

Customary Law of Human Rights is governed by §702. Any state that practices genocide, slavery, murder or the causing of disappearance of individuals, torture, prolonged arbitrary detention, systematic or rational discrimination or consistent patterns of gross violations of internationally recognized human rights violates customary human rights law.

Those committing human rights atrocities in Iraq are subject to criminal prosecution in the international community. Until WWII, states often were not held responsible for these crimes taking place within their own territory under the notion of sovereignty. However, principles of sovereignty no longer provide such a shield to gross crimes against their own people. Through customary international law, the Nuremburg Tribunal was established to hear cases involving such crimes that violated the law of nations.

After the war, the Geneva Convention ratified these customs. Today, the international community, through the UN Security Counsel, can set up International Criminal Tribunals so that Iraqi government officials can be held responsible for crimes against humanity, the crime of genocide, war crimes and crime of aggression. These crimes may be tried by international criminal courts. This was done in Rwanda and Yugoslavia because the Counsel believed that prosecution of those responsible for serious human rights violations would help the country move forward and maintain peace. Prosecution is limited to cases in which jurisdiction can be established and the ICC court can only operate if other states do not first exercise jurisdiction

Those who could be tried in Iraq include person who, acting in the interest of the state, whether as individuals or as members of organizations, committed the above stated crimes. These individuals violated laws of the international community. Even if they acted under orders from Saddam Hussein, they are still liable for their crime. Their rank can be used as a mitigating factor before punishment is administered.

Crimes against humanity encompass action in defiance of “well established rules of international law.” The prison “cleansing” constitutes a crime against humanity. The numerous incidents involving torture – to prisoners, women and minorities would certainly be in defiance of the elementary dictates of humanity. Additionally, there has been evidence to suggest that the Iraqi government systematically murdered Kurds in the Anfal campaign, attempting to exterminate the Kurdish population. This is clearly a war crime under Nuremberg.

Most likely, Iraqi leaders could be tried for these crimes under the Rome Statute of the International Criminal Court, Article 7. By engaging in systematic and widespread murder of Kurds, deportation of non-Arab communities and forced expulsions of Kurds, Turkmans, and Assyrians from Kirkuck and other oil producing regions, torture, rape and persecution against Shi’a Muslims, the ICC has jurisdiction over certain state actors in Iraq.

Iraq is required under Article 4 of the Torture Convention to ensure that “all acts of torture are offences under its criminal law.” The newly formed Iraq is probably required to exercise jurisdiction against all state actors violating Article 4 of the Torture Convention. Jurisdiction can be exercised when the offences are committed within the state’s territory, when the alleged offender is a national of the state, and when the victim is a national and if the state considers it appropriate.



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