crimes committed by totalitarian regimes - Ministrstvo za pravosodje

Crimes committed by totalitarian regimes
territories in order to destroy particular races and classes of people …”. 16 The UN General Assembly
resolution on Genocide adopted just after the Nuremberg judgment in 1946 stated that “genocide is a
crime under international law which the civilized world condemns, and for the commission of which
principals and accomplices – whether private individuals, public officials or statesmen, and whether the
crime is committed on religious, racial, political or any other grounds – are punishable”. 17
Genocide was recognised as a crime in international law independently of crimes against humanity
most clearly with the adoption of the Convention on the Prevention and Punishment of Genocide by the
General Assembly on 9 December 1948. However, this instrument also defined genocide as the intent
to destroy national, racial, ethnical or religious groups – the word “political” having been dropped. 18
Raphael Lemkin, known as the architect of the Genocide Convention, had not been enthusiastic about
the inclusion of political groups in the definition. 19 Nonetheless, he viewed the plight of peoples in
Baltic countries during the Soviet occupation during this period as coming within his conceptualisation
of genocide. 20 Despite several intervening opportunities to alter the definition of genocide to include
political or social groups in the intervening sixty years, the international community has consistently
refused to do so. 21 It is important to recall that most, if not all, such acts perpetrated against a political
or social groups, would be covered by the definition of “persecution” falling within crimes against
humanity.
2.3. Amnesties and vetting
The campaign to combat impunity is inextricably tied to the question of amnesties. Today, while
it acknowledges the amnesties are a legal concept which can foster peace and reconciliation, the United
Nations maintains that they cannot be granted for international crimes, such as genocide, crimes against
humanity or other serious violations of international humanitarian law. 22 The gradual rejection of
wholesale amnesties has evolved over the last three decades with their overturning by regional human
rights courts and domestic courts seeking to enforce human rights norms. 23
While blanket amnesties were no longer acceptable, it was equally acknowledged that
comprehensive prosecution was neither feasible nor advisable to achieve the political goals related
to reconciliation. 24 International human rights law requires states to undertake a good faith effort to
combat impunity in respect of gross violations. 25 A similar interpretation has been made in respect
serious violations of international humanitarian law and the amnesty provision contained in 1977
Additional Protocol II of the 1949 Geneva Conventions covering internal conflicts. 26
In a related matter, vetting of the public service of post-conflict or post-authoritarian societies of
persons responsible in past abuses especially from the ranks of the police, army and judiciary is also
viewed as crucial to the process of reconciliation and reinforcement of the rule of law. 27 Vetting is
the assessment of individual’s integrity, to decide upon their ability to hold public office and is based
on personal conduct. Therefore, it must be distinguished from wholesale dismissal or disqualification
based on political affiliation or association with a prior regime. Instead, legitimate vetting respects the
16
France et al. v. Goering et al. (1946) 22 IMT 203, pp. 45–46.
17
Resolution on the Crime of Genocide, G.A. res. 96(I) of 11 December 1946.
18
Schabas, Genocide.
19
UN Doc.E/447, p. 22.
20
Raphael Lemkin Papers, New York Public Library, Rare Books and Manuscripts Section, Box 2, Folder 16 (Ukraine, Soviet Genocide).
21
See for example, Rome Statute of the International Criminal Court, art. 6. However, the domestic penal codes of various countries,
including Slovenia (Penal Code (1994), Chapter 35, art. 373(2)), define genocide to include political groups: see Schabas, Genocide,
p. 141.
22
Report of the Secretary-General on the establishment of a Special Court for Sierra Leone, UN Doc.S/2000/915, para. 22.
23
See Revised Final Report on The Administration of Justice and the Human Rights of Detainees: Question of Impunity of Perpetrators of
Human Rights Violations (Civil and Political) (Joinet Report), UN Doc.E/CN.4/Sub.2/1997/20/Rev.1, paras. 1–6; and 2004 Rule of Law
Report, UN Doc.S/2004/616, para. 10.
24
Independent Study on Best Practices, including Recommendations, to Assist States in Strengthening their Domestic Capacity To Combat
All Aspect of Impunity (‘Orentlicher Report’), UN Doc.E/CN.4/2004/88, paras. 28ff; and UN Doc.E/CN.4/2005/102, para. 50.
25
D. Orentlicher, “Settling Accounts’ Revisited: Reconciling Global Norms with Local Agency”, International Journal of Transitional
Justice, 1/1 (2007), 10 at 14.
26
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed
Conflicts (Additional Protocol II), 8 June 1977, entered into force 7 December 1978, 1125 UNTS 609; and Prosecutor v. Tadić, Decision
on the Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber, 2 October 1995, Case No. IT-94-1, para. 134.
27
2005 Updated Set of Principles to Combat Impunity, UN Doc.E/CN.4/2005/102/Add.1, Principle 36(a); and E/CN.4/2005/102, para. 68.
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