Putin's War Russian Genocide - the outtakes IV

Some more intros:

I. Crimes against humanity as condoned and condemned in history

However, in the cities of the nations that the LORD your God is giving you as an inheritance, you must not leave alive anything that breathes. – Deuteronomy 20:16, Bible, King James Version (1769)

Geoffrey Robertson in his seminal Crimes Against Humanity links the creation of international criminal law, as a global justice regime protecting basic rights regardless of political order to three events: firstly, the English Civil War (perhaps unsurprisingly for an English QC), secondly, modern constitutionalism as embodied by the American and French revolutions of the 18th century and thirdly, the proclamation of the Universal Declaration of Human Rights on 10 December 1948 following the atrocities of Holocaust, despite late 20th century detours.[1]

I must apologize for the word jumble we will now begin to experience with the terms international criminal law, international humanitarian law (sometimes IHL), international criminal law, war crimes, rules of war, laws of war, laws of conflict (LOC, conflict because formal war doesn’t have to be declared..), laws of humane war (?), laws of armed conflict, human rights, laws of humanity, sovereignty, conventions, declarations, treaties and various legalese appearing. Please blame the mixed bag of origin of terms, concepts, laws and legal theories, I will endeavour to reduce this word soup to its component parts.[2]

The development of international criminal law is somewhat entwined with the development of human rights as a concept – culminating in the legal order described at the end of this chapter.

Why are rights specifically important in relation to genocide and war crimes?[3] Because individual rights impede the state’s sovereignty to abuse them – most particularly via genocide and war crimes. This is especially important for trans-border rights and treatment of persons other than a state’s citizens. Genocide is a crime that can easily be perpretated on the citizens of a state without foreign war. Human rights stand in the way of this – a concept that even in the 21st century people, including lawyers, are uncomfortable with. Can’t a state treat its citizens like a farmer his chickens?

[1] Ibid., xxv-xxvii. I feel obliged, not for the purpose of balance or ‘giving both sides a voice’ to mention the contestation, completely wrong, that international law doesn’t exist, which is not a point of view, opinion, legal position but rather a wrong-headed assault on a MacBook keyboard: Steven Barrett, “Changing the Northern Ireland Protocol Won't Break the Law: The Spectator,” Changing the Northern Ireland Protocol won't break the law | The Spectator, June 13, 2022, https://www.spectator.co.uk/article/international-law-doesn-t-exist. The mention is for humorous and mental hygiene purposes, there is only so much atrocity that can be written down on each page. Oh, purged Soviet top lawyer Evgenii Pashukanis, author of The General Theory of Law and Marxism, up to 1935  proclaimed that international law doesn’t exist. Great minds think alike. Francine Hirsch, “The Soviets at Nuremberg: International Law, Propaganda, and the Making of the Postwar Order,” The American Historical Review 113, no. 3 (2008): 704, https://doi.org/10.1086/ahr.113.3.701.

[2] See Gary D. Solis, The Law of Armed Conflict: International Humanitarian Law in War (Cambridge: Cambridge University Press, 2021), 23-27.

I will define:
international humanitarian law - as the rules relating to the protection of civilians, lives, health and property as well as limiting use of weapons and treatment of prisoners and wounded/sick. The term laws of war is subsumed into this but may appear separately

international criminal law – as defined in the text above, relating to the abuse of international humanitarian law, up to the 20th century may be usually defined as war crimes, specifically serious violations of the Hague and Geneva conventions. Genocide and the ‘crime of aggression’, see Nuremberg trials, joins this post-World War Two. 

genocide – generally the usage given by Raphael Lemkin in his works, rather than the convention

crimes against humanity – atrocities against humans, violent or nonviolent, which may include abuse of international humanitarian law and genocide

[3] Note that genocide does not need to be a war crime. Genocide does not require conflict or war.

Thanks for reading Fallout! Subscribe for free to receive new posts and support our work.

7 May 2023 updated title and cover.