Crimes against humanity Introduction
Crimes against humanity, as defined by the Rome Statute of the International Criminal Court Explanatory Memorandum, "are particularly odious offences in that they constitute a serious attack on human dignity or a grave humiliation or degradation of human beings."
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They are not isolated or sporadic events, but are part either of a government policy or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. Murder, massacres, dehumanization, extermination, human experimentation, extrajudicial punishments, death squads, military use of children, kidnappings, unjust imprisonment, slavery, cannibalism, torture, rape, political, racial, or religious persecution, and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. Isolated inhumane acts of this nature may instead constitute grave infringements of human rights, or depending on the circumstances –war crimes, but are not classified as crimes against humanity.
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Definition of ‘Crimes against Humanity’ under Rome Statute of International Criminal Court Article 7 (1) provides that ‘crime against humanity’ means any of the following acts when
committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population;
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"Rome Statute of the International Criminal Court". Court". United Nations Treaty Collection. United Nations. Retrieved May 4, 2015 2 http://en.wikipedia.org/wiki/Crimes_against_humanity#cite_note-1
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(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or 3
serious injury to body or to mental or physical health .
Article 7 clause (2) further define following words
(a) ‘Attack directed against any civilian population’ means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack; (b) ‘Extermination’ includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population; (c) ‘Enslavement’ means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children;
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"Rome Statute of the International Criminal Court". United Nations Treaty Collection . United Nations. Retrieved May 4, 2015.
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(d) ‘Deportation or forcible transfer of population’ means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law;
(e) ‘Torture’ means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions; (f) ‘Forced pregnancy’ means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy; (g) ‘Persecution’ means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity; (h) ‘The crime of apartheid’ means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime; (i) ‘Enforced disappearance of persons’ means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.
Article 7 (3) reads as “For the purpose of this Statute, it is understood that the term ‘gender’
refers to the two sexes, male and female, within the context of society. The term ‘gender’ does not indicate any meaning different from the above.”
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Further ‘The Rome Statute Explanatory Memorandum’ states that crimes against humanity are particularly odious offenses in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings. They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. However, murder, extermination, torture, rape, political, racial, or religious persecution and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. Isolated inhumane acts of this nature may constitute grave infringements of human rights, or depending on the circumstances, war crimes, but may fall short of meriting the stigma attaching to the category of crimes under discussion. On the other hand, an individual may be guilty of crimes against humanity even if he perpetrates one or two of the offences mentioned above, or engages in one such offense against only a few civilians, provided those offenses are part of a consistent pattern of misbehavior by a number of persons linked to that offender (for example, because they engage in armed action on the same side or because they are parties to a common plan or for any similar reason.) Consequently when one or more individuals are not accused of planning or carrying out a policy of inhumanity, but simply of perpetrating specific atrocities or vicious acts, in order to determine whether the necessary threshold is met one should use the following test: one ought to look at these atrocities or acts in their context and verify whether they may be regarded as part of an overall policy or a consistent pattern of an inhumanity, or whether they instead constitute isolated or sporadic acts of cruelty and wickedness
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Definition under the Charter of the International Military Tribunal
The Charter of the International Military Tribunal usually referred to as the Nuremberg Charter or London Charter (Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis) was the decree issued on 8 August 1945 that set down the laws and procedures by which the Nuremberg trials were to be conducted. 4
http://en.wikipedia.org/wiki/Crimes_against_humanity#cite_note-Horton-2
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Article 6 (c) provided that:Crimes Against Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
Article 6 also provides that:Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan."
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Nuremberg Tribunal
After the Second World War, efforts were made at international level to try war criminals of Second World War. At the Moscow Conference in 1943, the three great powers acting in the name of the members of the United Nations declared that those German officers who had been responsible for atrocities, massacres and executions would be sent back to the countries in which their condemnable deeds were done so that they could be tried and punished. During the Yalta conference of 1945 to which England, America, and Russia were parties, these states again reaffirmed their determination of bringing war criminals to justice. Subsequently, the United Nations War Crimes Commission was constituted under the chairmanship of Lord Wright to draw up the list of war criminals with powers of automatic arrest in most countries of the world. A charter was adopted by the prosecutors of the four Allied Nations (United States, France, Great Britain and the Soviet Union). On August 8, 1945, an agreement was signed in London among the representatives of the United States, France, Great Britain and the Soviet Union, to try the major war criminals of Second World War whose offences had no particular geographical location. By this 5
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Jyoti Rattan and Vijay Rattan, Public International Law , UN and Human Rights, p261-268 (2 ed)2014.
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agreement the Charter known as Nuremberg Charter was adopted by which International Military Tribunal commonly known as Nuremberg Tribunal was established to try war criminals especially Nazi leaders at Nuremberg. Article 5 contained an invitation to other members of the United States to adhere to the agreement, and no less than 19 states eventually did so. In this way a total of 23 nations combined in a legal process by presenting a common indictment against the war criminals before a single tribunal. The four victorious powers accordingly set out on November 20, 1945, on the great Nuremberg trial. The hearing of the evidence and the arguments of the counsel for the accused ended on September 30, 1946. Judgment was delivered on October I. 1946. Out of the 22 leaders of the Third Reich, who were the accused in the case, the Tribunal based sentence of death sentence on 12 of them: three were sentenced to life imprisonment and four were condemned to various terms of punishment, only three were acquitted Composition of the Tribunal
The Nuremberg Tribunal consisted of four members, each with an alternate. The members and alternates were to be appointed by the four parties to the London Agreement. Under the Charter of the Nuremberg Tribunal, a Government could not replace its appointed member or his alternate during a trial. The choice of the President was left to the members of the Tribunal. Significantly the presence of all four members of the Tribunal or the alternate for any absent member was necessary to constitute a quorum. Further, voting by majority was rule. However, where the votes were evenly divided, the President had a casting vote. For the election of the tribunal’s President and decisions on convictions and sentences, however, the votes of three out of the four members of the tribunal or (their alternates) were required. Procedure
Summary procedure rather than laborious process of international adjudication was followed. Article 13 of the Nuremberg Charter provides certain procedural safeguards for the accused at Nuremberg. Each was allowed a period of thirty days before the commencement of his trial to study the indictment and prepare his case. An opportunity was given for the engagement of defence counsel and for the procurement of witnesses and documentary evidence, as well as the privilege to examine all documents submitted by the 6
prosecution. The defendants were given the right to address motions, applications and other requests to the Tribunal. The accused were informed by the presiding judge, General Nikitchenko, at the very first session of the Court that a special clerk had been appointed “to advice the defendants of their right and to take instructions from them personally as to their choice of counsel, and generally to see that the ir rights of defence are known to them.” An accused was entitled to conduct his own defence before the Tribunal or to have counsel's assistance. At the request of the accused, any person qualified to conduct cases before the Courts of his own country or any other person so authorised by the Tribunal could act as counsel.
Main Charges against The War Criminals
The main charges against these accused were that they had committed war crimes, crimes against peace and crime against humanity during the Second World War. Under the leadership of Hitler these accused had committed inhuman atrocities upon the Jews. These accused were also charged for having violated the Treaty of Versailes, 1919 and the Pact of Paris, 1928. Significantly Great emphasis was laid on the Pact of Paris, 1928, because through it the parties had renounced war as an instrument of national policy for the settlement of international disputes. Violation of Kellogg Briand Pact or the Pact of Paris, 1928
It was pleaded that the League of Nations (where Germany was also a member) had declared aggressive war to be a crime on September 24, 1927. Then the Kellogg Briand Pact or the Pact of Paris, 1928 (on the initiative of Frank B. Kellogg, at that time U.S. Foreign Secretary, in co-operation with Briand, French Foreign Minister) solemnly condemned war as an instrument of settling international disputes and undertook to settle such disputes by peaceful methods. The signatory states were almost all the nations in the world, including Germany, Japan and Italy. They had bound themselves not to resort to war as an instrument of national policy. 7
Arguments by War Criminals
i) It was argued on behalf of the defendants that a fundamental principle of criminal law (international and domestic) is that there can be no punishment of crime without a preexisting law i.e., Nullum crimen sine lege i.e., a person cannot be criminally liable under law unless his conduct constitutes a crime . Further another principle is, nulla peona sine lege i.e. a person convicted by the Court may be punished by the existing law. Other pleas were that ex post facto punishment is abhorrent to the law of all civilised nations, that no sovereign power had made aggressive war a crime at the time the alleged criminal acts were committed, that no statute had defined aggressive war, that no penalty had been fixed for its commission and that no Court had been created to try and punish offenders. ii) The defendants also submitted that in doing what they did, they were acting under the orders of Hitler and, therefore, they could not be held responsible for the acts committed by them in carrying out these orders of superior. Observations made by the Tribunal
i) Rejecting the first argument of the accused, it was observed by the Tribunal that the maxim Nullum crimen sine lege was not a limitation of sovereignty, but was in general a principle of justice. Those who in violation of treaties and assurances had attacked neighbouring states without warning have obviously committed wrong and must be punished. Further the attacker must know that when they commit wrongs then it would be unjust if their wrongs go unpunished. ii) The Tribunal further opined that The general treaty for the renunciation of war of August 27, 1928, more generally known as the Pact of Paris, or the Kellogg-Briand Pact, was binding on 63 nations, including Germany, Italy and Japan at the outbreak of war in 1939 therefore, violators of this treaty must declared guilty. iii) Rejecting the second argument of the accused, it was observed by the tribunal that The Nuremberg Charter under Article 3 specifically provides that “the fact that the defendant acted pursuant to the order of the Government or of a superior shall not free him from responsibility; but may considered in mitigation of punishment”. Therefore, those who
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have committed wrongs/crimes while obeying the order of the superior may be considered for mitigating, the punishment. Judgment and Principles laid down
While delivering the judgment, the Nuremberg Tribunal laid down the following principles: i.
The crimes against International Law are committed by human beings not by abstract entities such as states and only by punishing individual who commit such crimes can the provisions of International Law be enforced.
ii.
Another principle laid down by the Tribunal was that a person acting in accordance with the orders of his government or his superior does not relieve him from responsibility under International Law, provided a moral choice was possible to him. Therefore, the Tribunal rejected that the plea of superior orders as an absolute defense. And it is provided in Article 3 of the Nuremberg Charter that superior orders might be considered in mitigation of punishment if the Tribunal determined that justice required this to be done. Significantly, this was also expressed in principle IV of the Report of the International Law Commission. Therefore, the plea of the immunity of a head of State was not admissible under this Charter. Accordingly, the Tribunal convicted Doenitz and sentenced him to ten years imprisonment. The Nuremberg Tribunal held that the personal immunity of heads of State from the civil and criminal law of other states is a rule of the law of peace. It does not apply to, a State of war.
iii.
And the fact that domestic law of the accused does not penalize an act which, under International Law, is a war crime does not relieve the individual who committed or ordered the act from responsibility and punishment.
iv.
According to the Tribunal, the conduct of aggressive war was highest international crime and Germany was responsible for starting aggressive wars against other countries which was against the Pact of Paris, 1928. Hence, persons responsible for organizing and conducting this War were declared guilty. The Tribunal held: “Planning and preparation are essential for the making of war. In the opinion of the Tribunal, aggressive war is a crime under International Law”
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v.
The Court also held the accused guilty for bad treatment towards the prisoners of war. The accused argued that since Russia had not signed the Geneva Convention relating to the treatment of the prisoners of war, they could not be punished for the bad treatment towards the Russian prisoners of war, but the Tribunal rejected even this argument and held them guilty.
vi.
The Tribunal also rejected the argument that the accused had raised the objection that unless there was pre-existing law, an act cannot be declared as crime nor can it be punished.
Criticism of the Tribunal and Trial
Significantly, the establishment of the Nuremberg Tribunal and trial by it was criticised by the modern jurists. The main criticisms are: i.
First, objection was raised regarding the Tribunal's international character. This, objection is based upon the universally recognized principle that there are limits to the criminal jurisdiction of every State. Every State has the right to create special tribunals to prosecute persons in its custody who have committed war crimes. Therefore each, of the parties to the Charter could individually create such a tribunal.
ii.
According to them, it was not proper to lay so much emphasis upon the Pact of Paris. In their view, the intention of the Pact of Park was not to make war an international crime. They have also pointed out that the charge of starting war and organizing or conducting aggressive war was not justifiably levelled. The Tribunal laid main emphasis On the Pact of Paris or the Kellogg-Briand Pact of 1928. Whereas, neither the Pact of Paris 1928 nor the Hague Convention of 1899 prescribed any sanctions for the enforcement of the provisions contained in them. Further the words of the Pact were not those of a penal statute rather they were the language of theology, not of law. Another thing was, although the KelloggBriand Pact declared aggressive wars as illegal, but such illegality could by no stretch be transformed into an international crime so as to make each individual participant liable for the same. Lastly, earlier also the Pact of Paris was violated i.e., in 1931. Japan invaded China in leaders in vindication of the Pact of Paris. The
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condemnation of this action of Japan resulted in her withdrawal from the League of Nations and there the matter ended. In 1935, Italy invaded Abyssinia, and although in September of that year Abyssinia appealed under Article 16 of the Covenant of the League, the violation of the Pact of Paris was not seriously agitated. Similarly, the annexation by Germany of Austria and Czechoslovakia in 1939 was also not opposed by the League of Nations even though it amounted to violation of Pact of Paris. Nonetheless, after Second World War when it was convenient for the victorious powers to try the Nazi leaders then they raised the issue of violation of Paris Pact. iii.
As pointed out by Chief Justice Marshal of America, the Nuremberg Charter declared those crimes punishable which were not punishable at the time when the crimes were committed. This was contrary to the principles of criminal view.
iv.
According to Prof. Schick, some of the principles incorporated in the Nuremberg Charter were contrary to the law of nations. In his view, the orders of superior cannot be rejected without any reasonable ground.
v.
As most of its judges belonged to the victorious nations and there was absence of German judges on the Court, therefore, impartial justice was not possible.
vi.
The Nuremberg Military Tribunal cannot be called an international tribunal in real sense of the term because most of its judges belonged to the victorious nations.
vii.
In the Nuremberg trial, Anglo-Saxon trial procedures was predominate, and the German defendants and their counsel encountered considerable difficulties in accustoming themselves to such practices as cross examination to them was totally unfamiliar procedure.
viii.
One major criticism, by Germans was that the victorious nations of World War II failed to investigate war crimes committed by members of their own armed forces. The tribunal itself refused to undertake any such inquiry, and the terms of its Charter justified this view.
Despite the above criticism, it is admitted that the principles propounded in the Nuremberg Trial have greatly influenced International Law, particularly the laws of war relating to war crimes. The Nuremberg Tribunal made it clear that the laws of war are not only for States
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but they are also applicable to individuals, it is only by punishing them the provisions of the international also can be enforced. Impact of the Nuremberg Tribunal
On December 11, 1946, less than three months after the Nuremberg judgment, the General Assembly of the United Nations unanimously passed two relevant resolutions. On November 21, 1947, the General Assembly of the United Nations adopted a resolution affirming the principles of International Law recognized by the Charter and the judgment at Nuremberg. Later, in 1950, General Assembly directed the International Law Commission to “formulate the principles of International Law recognized in the Charter of the Nuremberg Tribunal and in the judgment of the tribunal.” Accordingly, the following principles were formulated: i.
Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment.
ii.
The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.
iii.
The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.
iv.
The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law provided a moral choice was in fact possible to him.
v.
Any person charged with the crime under international law has the right to a fair trial on the facts and law.
vi.
The crimes hereinafter set out are punishable as crimes under; international law:
Crimes against peace :
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(i) Planning, preparation, initiation or waging of a war of aggression or a war in
violation
of international treaties, agreements or assurances;
(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under ( i). War crimes: Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation to slave-labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property. wanton destruction of cities, towns, or villages, or devastation not justified by military necessity. Crimes against humanity : Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime. vii. Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principles VI is a crime under international law.
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Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, 1968 (came into force in 1970)
The preamble to the Convention provides that war crimes and crimes against humanity are among the gravest crimes in international law, and that the effective 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 furtherance of co-operation among peoples and the promotion of international peace and security. It further provides 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. It was felt necessary that, through this Convention, the principle that there is no period of limitation for war crimes and crimes against 6
humanity should be further strengthen, to secure its universal application . Article I of the Convention states that 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, Nuremberg, 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, Nuremberg, of 8 August 1945 and confirmed 2 by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 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
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Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity 1968. Retrieved from http://www.ohchr.org/ on May 4, 2015.
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Crime of Genocide, even if such acts do not constitute a violation of the domestic law of 7
the country in which they were committed . Article II says that 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 8
commission . Article III provides that the States, which are 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 9
article II of this Convention . Article IV says that the States, which are 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 II of this Convention 10
and that, where they exist, such limitations shall be abolished .
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Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity 1968. Retrieved from http://www.ohchr.org/ on May 4, 2015. 8 ibid 9 ibid 10 ibid
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Law House Pvt. Ltd, 2 ed.2014.
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KAPOOR.S.K., INTERNATIONAL L AW A ND HUMAN RIGHTS Central Law Agency,18 ed.2011.
Statutes
Rome Statute of the International Criminal Court
Internet
wikipedia.org
www.ohchr.org
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