Human Rights Challenges in Shunibia

The current crisis in Shunibia is a political and economic conflict between the Kuzas from the South and the Chens from the North. The government, military and the economic resources of Shunibia is controlled by the North, which leaves the South in a very unfair disadvantage.

Morocco is deeply concerned with about this severe issue. We believe a concrete resolution and a firm decision is needed to address the human rights violation in Shunibia.

Morocco is committed to protecting human rights and upholding the international human rights principles. Our commitment is shown in our ratification of over 8 international convention concerning human rights protection.

Morocco is concerned with cases of racial and religious hatred; severe human rights violation by the military troops resulting to alleged disappearances of persons and over 500 people being killed in Shunibia. The Convention on the Prevention and Punishment of the Crime of Genocide criminalises genocide. Article 1 obligates state parties to enforce its prohibition. The ruling in Prosecutor v. Kayishema and Ruzindana recognised the crime of genocide is a part of international customary law. The ruling in Prosecutor v. Rutaganda states that the intent is inferred from the material evidence including a consistent pattern of conduct by an accused. Therefore, Morocco is in favour of special groups to address this grave human rights issue. If you are seeking a politics dissertation help, our experts are there to help you navigate through the complexities of the subject matter.

It is also concerning that Shunibia is seeing cases of rapes, disappearance of people, torture and execution of two Kuza leaders. The Convention against Torture and other Inhuman or Degrading Treatment or Punishment, Article 2 obligates a state party to take measure to prevent acts of torture. According to the ruling in Šečić v. Croatia, states must take measures to prevent ill-treatment and must investigate such acts. The International Convention for the Protection of All Persons from Enforced Disappearance treats such forced disappearance as a crime against humanity. Therefore, Morocco favours a special group for prevention of torture.

It is reported that the Shunibia government subjected two Kuza rebels to torture and were sentenced to death and executed after a short trial without any appeal. Article 6 of the International Covenant on Civil and Political Rights (ICCPR) recognises the right to life as the supreme right. Mr. Bertil Wennergren in the Charles Chitat Ng v. Canada before the Human Rights Committee in January 1994 ruled that death penalty may, however, be restricted to the most serious crimes. Therefore, Moroco is in favour of initiating a moratorium instead of a death penalty and creating a special group to that effect.

There are reports that various Kuzas leaders were subject to torture by the Shunibia government. Article 16 of the Convention prohibits cruel, inhuman or degrading treatment. It violates ICCPR. Morocco is in favour of a special group to address and monitor actions to prevent actions amounting to torture.

Shunibi has imposed a law to restrict abortion without giving due consideration to the physical health of the mother and their choices. According to the Convention on the Elimination of All Forms of Discrimination against Women, both men and women should have access to full enjoyment of the rights. Article 12 obligates a state to take measures to that effect. The Mauritian Women Case, the Broeks v the Netherlands, the Avellanal v. Peru, etc are cases highlighting sex-based discriminatory acts. Therefore, Morocco is in favour of special groups of women rights and health groups to ensure the safeguard their rights.

Reports state that the Shunibia government has closed the universities and schools allowing limited educational provisions only to men and excluding women and children. Article 14 of the Convention on the Elimination of All Forms of Discrimination against Women states should ensure women have access education. Article 28 of the Convention on the Rights of the Child recognises the rights of the children to education. This right is directly applied by party states’ superior courts, for instance, the Supreme Court of the Dominican Republic in Bencosme v. Devers; or the Supreme Administrative Court of Bulgaria in Kerezov v. Minister of Justice. Therefore, Morocco is in favour of a special group to address the violation of the concerned rights of the women and children.

Shunibia is showing signs of an outbreak of a health crisis. There is a scarcity of medicines and medical supplies and care and a potential health crisis with the spread of Ebola. The Shunibia government has the duty under Article 2 (1) of the International Covenant on Economic, Social and Cultural Rights to ensure a progressively realisation of rights under the Covenant, including the right to health. The Universal Periodic Review 2019 conducted by the World Health Organization reiterates the obligations on States to adopt appropriate legislative and policy frameworks to promote and protect the right to health. Morocco supports a formation of a special group on healthcare to address this urgent risk of a health crisis in the Shunibia.

A new world order with peace and development cannot be envisioned without addressing the health and economic crisis. We hope that the international system is more democratised to enable all states to participate fully in any peace making. Particularly, we hope that the African Union can further help in collaboration with all the states that are concerned with this conflict.

Morocco has always believed in dialogue. What we have presented today is a human dimension of development, which means freedom, equality, health, well-being, protection and security and other wider range of human values. This is the most important and crucial task of all of us here during this time and during the crisis in Shunibia. We would favour appointing special groups on the various human rights issues as spoken here. We also encourage our colleagues on the Security Council to vote with us on these lines as they will be the most reasonable measures to deal with the crisis.

Reaffirming the position taken by Foreign Minister of Morocco on behalf of Moroco in relation to the Shunibia issue, Morocco’s stand is to address the human rights crisis in Shunibia. Morocco is primarily focussed on the issue of genocide. Its Foreign Minister has favoured the creation of a Special Group on the Prevention of Genocide to address the grave human rights issue in Shunibia.

Morocco is determined that if the situation in Shunibia continues, it will threaten the international peace and security. Morocco is convinced that the Security Council will put an end to the crimes committed in Shunibia by taking effective measures to bring justice and prosecute responsible for such serious violations of international humanitarian law.

Morocco believes that the establishment of the Special Group on the Prevention of Genocide will contribute to ensuring that the violations of international humanitarian law are halted and effectively redressed. Morocco stresses that the member states will cooperation to strengthen the legal and judicial system of Shunibia considering particularly the necessity for the legal and judicial framework to deal with multiple suspects in the crime.

Morocco stresses urgency on the establishment of the Special Group considering the collection of evidentiary information of the sever violation of international humanitarian law committed in Shunibia.

Shunibia is currently undergoing a human rights crisis. There have been reports of racial and religious hatred; severe human rights violation by the military troops resulting to alleged disappearances of persons and over 500 people being killed in Shunibia; cases of rapes of women and girls, and disappearance of people; torture and execution of two Kuza leaders; and burning of villages. These instances constitute severe violation of international humanitarian laws, particularly those concerning the crimes of genocide.

The Charter of the International Military Tribunal or Charter of the Nürnberg Tribunal; the Convention on the Prevention and Punishment of the Crime of Genocide; and the Rome Statute of the International Criminal Court provide the necessary legal and judicial system to address the crime of genocide occurring in Shunibia.

The Convention on the Prevention and Punishment of the Crime of Genocide criminalises genocide. Article 1 recognises the genocide as a crime, whether in the time of peace of war, under international law. States are obligated to prevent and to punish. The crime of genocide, as stated in Article 2, consists of acts with intent to destroy ‘a national, ethnical, racial or religious group’. Such acts may include killing, causing serious bodily har or mental harm, or deliberate inflicting conditions of life to bring its physical destruction. Article 3 makes it punishable any act of genocide, conspiracy or attempt to commit the crime; direct and public incitement to commit the crime; or complicity in genocide.

The Preamble of the Rome Statute of the International Criminal Court provides for bringing the most serious crimes that concern the international community to justice and the prosecution of the perpetrators of these crimes must be taken at the national level with international cooperation. Genocide is one of the most serious crimes. Article 6 also provides the same kind of acts as that of the Convention on the Prevention and Punishment of the Crime of Genocide. Article 5 provides that this crime is within the jurisdiction of the International Criminal Court (ICC). It can determine the individual responsible for this crime. Article 25 gives this jurisdiction to the ICC, including punishing and those who directly and publicly incite others to commit genocide, as provided under Article 25(3)(f). Thus, Article 33(2) stated that orders by the Government or a superior, whether military or civilian, are unlawful.

The Charter of the Nürnberg Tribunal provides for prosecution and punishment of the major war criminals. Article 6 gives jurisdiction to the International Military Tribunal to try and punish persons, or members of organisation for crimes against peace, war crime and crime against humanity. The crime against humanity includes persecution on the grounds of political view, race, or religion. This criminalisation is irrespective of the fact that the domestic law may not criminalise such acts mentioned. Article 6 also makes the leaders, organisers, instigators or accomplices who participated in formulating or executing a common plan or a conspiracy to commit the crimes mentioned, criminally responsible. Article 7 provides that any person responsible for the crimes cannot be exempted whether they are the Heads of the State or the responsible public officials. Article 8 also provides that such person shall not be exempted despite the claim that they acted on the order of the Government or the superior, though the punishment may be mitigated.

The laws mentioned above provide for prevention and punishment with the object of delivering justice without interference from the domestic law jurisdiction. Genocide is one of the most severe crimes against humanity. Punishing those who are responsible is necessary to address the grave threat that genocide poses to international peace and security. The laws provide a wide net to persecute any person or entity, whether in the government or a civilian who has directly or indirectly acted in committing or inciting the crime of genocide.

In order to effectively prevent and persecute the crime, the early warning signs of genocide should be identified. The United Nations Office on Genocide Prevention and the Responsibility to Protect can collect relevant information on political, human rights, humanitarian, social and economic developments in a country to detect early warning signs of crimes against humanity including genocide. It uses its Framework of Analysis for Atrocity Crimes to screen risks against the data collected. Mentioning an example for reference, this was done in 2015 by the Secretary-General/Special Adviser in regard to the situation in Burundi. They monitored and gather information regarding the claim that the government was arming the Imbonerakur, a youth group affiliated to the ruling political party CNDD-FDD. The Special Advisor coordinated with the stakeholders, including Burundi President, Second Vice-President, Minister of External Relations, and President of the ruling CNDD-FDD among others, and urged them to an open dialogue with the opposition.

Ms. Alice Wairimu Nderitu, Special Adviser to the Secretary-general on the Prevention of Genocide in her keynote speech on 9 December 2021, which was the International Day Of Commemoration And Dignity Of The Victims Of The Crime Of Genocide And Of The Prevention Of This Crime stated that the International community is often found lacking in determination to work together against atrocities. She emphasised on the effectively and timely respond to the warning signs of genocide. She stressed on preventing escalation of inter-group tensions and hate speech and incitement to violence. She stressed that the international community should invest in young people, especially those have grown up witnessing and experiencing genocides, war crimes, and other crimes against humanity.

Based on the provisions of the laws mentioned above, the criminalisation of genocide is focussed on the acts, which can be direct or participatory or physical or oral; and the intention, which can be intent to commit the act, whether in whole or in substantial part. Principles laid down by the ICTR and ICTY recognised these elements in the crime of genocide.

The Appeals Chamber in Nyiramasuhuko et al. (Butare) ruled that genocide involves commission through an agreement between individuals who have specific intent to commit the crime. It held that genocide involves the physical killing and another other direct participation in the crime. The conduct of the accused, such as presence at the crime scene, conducted, supervision, direction, lead role, or full exercise of their influence over the crime, forms an integral part of the crimes. They are involved in the direct and public incitement to commit the crime, which is completed as soon as the discourse in question is uttered or published. The effects of incitement may extend in time. It is still punishable irrespective of whether genocide is resulted or not from the incitement.

The ICTY recognises the primary importance of specific intent. In Tolimir Zdravko, ICTY ruled that killings may not be considered in the crime of genocide. That is why any act that results in the deliberate infliction of conditions of life with the motive to bring a physical destruction of a protected group is sufficient to hold it a crime of genocide. The target of a protected group is relevant in the consideration and determination of the specific intent of the perpetrator. In Popović et al,. ICTY ruled that the intent is to destroy a substantial part of the protected group based on nationality, ethnicity race or religion. The intent to commit genocide may comprise of a desired destruction of a selected number of persons.

Accordingly and as an example, in TOLIMIR Zdravko, ICTY ruled that the disappearance of such a selected number of person can have the desired impact upon the survival of the targeted group. For committing genocide, the genocidal act does not necessary be that all the leaders of the targeted group are killed, but targeting them might be an enough indication of genocide irrespective of the number of people killed.

ICTY in TOLIMIR Zdravko ruled that genocide is serious in nature as to contribute to the destruction of all or part of the group. It causes serious bodily or mental harm. The nature of the mental harm is more than temporary unhappiness, embarrassment or humiliation. It causes and inflicts grave and long-term disadvantage to the targeted group of people’s ability to lead a normal and constructive life. It threatens the physical destruction of the targeted group. In regard to sexual violence, the International Criminal Court, Elements of Crimes (2011), Article 6(b)(3) specifies that the act of serious bodily or mental harm “may include, but is not necessarily restricted to, acts of torture, rape, sexual violence or inhuman or degrading treatment”. In this regard, the ICTR’s Appeals Chamber in Seromba case held that to support a conviction for genocide, the bodily harm or mental harm must be serious and threatens the destruction of a selected group of people either in whole or in part. In Karemera & Ngirumpatse, the Appeals Chamber considered that sexual assaults may underpin a conviction of genocide. However, they cannot form the basis of a conviction for rape as a crime against humanity. Sexual violence is a broader category than rape.

While determining the crime of genocide, the Appeals Chamber in Nzabonimana Callixte held that surrounding circumstances are considered, including the place where incitement occurred; whether the audience was selected or limited. Public incitement occurs when speeches, shouting or threats in public places or at public gatherings. The direct and public incitement is an inchoate crime. It is punishable whether or not it results to an act of genocide. At the same time, in Nahimana Et Al. (Media Case), the Appeals Chamber ruled that it is also necessary to note the difference between a hate speech in general or speech that incites discrimination or violence, and direct and public incitement to commit genocide, which is more of a direct appeal to commit the act. In the act of genocide, the speech is not a mere vague or indirect suggestion. The incitement is preceded or accompanied by hate speech.

The focus is on the special intent to destroy a group. This is the distinguishing characteristic.

The case of Gambia v Myanmar represents how genocide is carried out. Gambia filed on 11 November 2019 an application to initiate proceedings against Myanmar, alleging that Myanmar was violating the Convention on the Prevention and Punishment of the Crime of by invoking Article IX of the Convention and Article 36, paragraph 1, of the Statute of the International Court of Justice.

The oral proceedings held on 10 December 2019 showed that there were killings by Tatmadaw soldiers of the members of the group systematically done in the form of corroborated mass killings, men, women and children were systematically moved from house to house, people were shot or were pulled out of their houses and executed them. Secondly, the targeted killing also caused serious bodily or mental harm to the group through widespread sexual violence committed to the purpose of destroying the Rohingyas as a group and their way of life. Crimes mentioned were committed in open public spaces or in front of the family and neighbours.

The oral proceedings also showed that the crime committed showed specific intent based on the long-standing policy that the Rohingya, based on their ethnic and religious differences, are an existential threat to the country’s racial and religious purity. Humanising terms were used in pervasive hate speeches and that the senior government officials and the state-owned press facilitate such hate speeches. The government has created an environment protecting and promoting extreme racist rhetorics with glorification of the Tatmadaw’s actions. The government has been taking systematic steps to that effect in the form of forceful segregation and confinement of the Rohingya in internment camps and ghettos, exposing them to extreme precariousness. They have been forced to accept the national verification cards that would make them recognised non-citizens and would be deprived of all essential goods and services that support life. They have been exterminated in the internment camps ghettos and villages. All these acts are systematic brutal acts perpetrated against the Rohingya.

There are hundreds of other cases involving the acts of genocide. The case of Bosnia and Herzegovina v Serbia And Montenegro is another example where mass killings and other genocidal acts of crime, including rapes were committed by Yugoslavia (Serbia and Montenegro) against the citizens of Bosnia and Herzegovina. The ICC in its 2007 judgment found evidences of the deliberate act of destruction of life in the form of harassment and malnutrition in camps, for example in Trnopolje camp, and rapes, beatings, torture, and killings. There were targeted killings of the citizens of Bosnia and Herzegovina. Further, there are General Assembly resolutions such as resolution 47/147 (1992), para. 4; 49/10 (1994), para. 14, and 50/193 (1995), para. 2 that condemn violations such as torture, rape, destruction of houses, disappearances and other violence that are aimed at forcing individuals to leave their homes. This is relevant to the issue of the number of rapes committed by Serbs against the Bosnian Muslims. The ICC held that rapes and sexual violence can be acts of genocide, if supported by the specific intent to destroy the protected group.

For acts of genocide, the act and the specific intent are necessary. The laws, cases and case laws demonstrate these essentials in the form of target killings, rape, and burning homes. Genocidal rape occurs under order from a higher authority being controlled and supervised. Rapes can be genocidal in case where they are unto death, as massacre, to kill, to destroy life, and to make forced exile. In genocide through war, mass rape is used as a tool, tactic, policy, plan, strategy, or a practice. This is recognised by the Rwandan and Yugoslav Tribunals that have prosecuted rape as a crime against humanity and genocide. The Rwanda Tribunal have conceived rape as a tool of genocide. The aim of such genocidal acts is targeted killings of a group, which can be based on ethnicity or religion. The targeted dehumanisation of a specific group, for example based on ethnicity, represents repression and an attempt to eliminate the group.

The international law framework present an accepted standards of behaviour acting as the guidelines for states to address the issues. However, the challenges with the international laws to address genocidal acts are evidenced by the occurrence of the acts themselves. The weak link is that the enforcement of the laws depend on the states. Thus, the set standards may be enforced or not enforced. The challenges mentioned here were found in the mediation attempt in Mozambique between the Resistência Nacional Moçambicana and the governing Liberation Front of Mozambique in Rome in 1990-1992; and between the National Union for the Total Independence of Angola and the Popular Movement for the Liberation of Angola in Estoril in 1992.

Human rights standards generally apply to targeted killings. The right to life is the predominant standard of protection. However, it is also argued that the international law has several exceptions. For instance, penal killings may be allowed in strictly limited case of capital punishment. Preventive force may be used to address imminent threat by targeted persons, who may be involved in hostilities. The limitation of the enforcement of human rights standards by the discretion of the states to enforce them demonstrates the territorial considerations. A state has human rights obligation but within its own territory. However, it has the responsibility to protect when there is human rights violation outside its territory. The question is, thus, whether states are doing enough to carry out this responsibility. This is also relevant where there is the debate about the effectiveness of the ICC in prosecuting genocide crimes. The ICC is a permanent, international mechanism to deal with the problems of war crimes, genocide, and other cases of mass human suffering. It aims to deter human rights abuses and prevent genocidal acts and other systematic human rights violations. It, thus, dampens the effect of mass atrocities.

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1. Sherrie L. Russell-Brown, ‘Rape as an Act of Genocide’ (2003) 21 Berkeley J. Int'l L. 350.
2. Catharine A. MacKinnon, ‘Rape, genocide, and women’s human rights’ in Tom Campbell and Mark Lattimer (eds.), Genocide and Human Rights (Routledge 2017) 133-144.
3. Doris E. Buss, ‘Rethinking ‘rape as a weapon of war?’ (2009) 17(2) Feminist legal studies 145-163.
4. I. William Zartman, ‘Preventing identity conflicts leading to genocide and mass killings’ (2010) International Peace Institute accessed 27 December 2021
5. Ibid
6. Ibid
7. Roland Otto, Targeted Killings and International Law: With Special Regard to Human Rights and International Humanitarian Law (Springer Berlin Heidelberg 2011) 536-537.

Conclusion

In the light of the international law framework, the cases and cases laws presented here, it is advisable to invoke the Convention on the Prevention and Punishment of the Crime of Genocide, Article IX and the Statute of the International Court of Justice, Article 36, paragraph 1, to bring the Shunibian crisis to the ICC jurisdiction.

Based on Article 1 and 2 of the Convention, government officials and representatives, officials from the military and police responsible for the genocidal acts should be tried and prosecuted. The killings, rapes, burning villages, torture, hate speeches evidence genocidal acts to target and destroy the Kuzas tribes. Alternatively, based on the Charter of the Nürnberg Tribunal, Article 6, the issues can be brought in the International Military Tribunal, which can prosecute those responsible for the crimes affecting the Kuzas. This criminalisation will not be affected by any domestic law of Shunibia that may not criminalise such criminal acts.

Based on the case law principles of the ICTR, ICTY and ICC, the genocidal acts affect the substantial part of the Kuzas. The acts are based on ethnicity. They evidence specific intent to commit genocide. The acts demonstrate a desired destruction of the Kuzas. The killing of the Kuzas leader, the rapes and burning of villages, the targeted killings show specific intent to cause serious bodily or mental harm. Public incitement through the speeches by government leaders in public and the subsequent harms meted out to the Kuzas demonstrate genocidal acts that must be prosecuted.

Looking for further insights on Hate Speech and the European Court of Human Rights? Click here.

1. Mark Gibney, ‘Universal Duties: The Responsibility to Protect, the Duty to Prevent (Genocide) and Extraterritorial Human Rights Obligations’ (2011) 3 Global Resp. Protect 123.
2. Benjamin J. Appel, ‘In the Shadow of the International Criminal Court: Does the ICC Deter Human Rights Violations?’ (2018) 62(1) Journal of Conflict Resolution 3-28
3. Courtney Hillebrecht, ‘The deterrent effects of the International Criminal Court: evidence from Libya’ (2016) 42(4) International Interactions 616-643.

A Special Adviser can be appointed to screen the risks using the Framework of Analysis for Atrocity Crimes. They can speak with the required stakeholders, including leaders of the Kuzas, representative of civilian organisation, and the government. They can recommend and urge the key parties to an open dialogue.

Shunibia is seeing a wide range of human rights suffering. Morocco favours special groups on the various human rights issues, especially the special group for Special Group on the Prevention of Genocide to prevent and punish the perpetrators.

Bibliography

Books

MacKinnon CA, ‘Rape, genocide, and women’s human rights’ in Tom Campbell and Mark Lattimer (eds.), Genocide and Human Rights (Routledge 2017)

Otto R, Targeted Killings and International Law: With Special Regard to Human Rights and International Humanitarian Law (Springer Berlin Heidelberg 2011)

Journals

Appel BJ, ‘In the Shadow of the International Criminal Court: Does the ICC Deter Human Rights Violations?’ (2018) 62(1) Journal of Conflict Resolution 3-28

Buss DE, ‘Rethinking ‘rape as a weapon of war?’ (2009) 17(2) Feminist legal studies 145-163

Gibney M, ‘Universal Duties: The Responsibility to Protect, the Duty to Prevent (Genocide) and Extraterritorial Human Rights Obligations’ (2011) 3 Global Resp. Protect 123

Hillebrecht C, ‘The deterrent effects of the International Criminal Court: evidence from Libya’ (2016) 42(4) International Interactions 616-643