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In Crimes Against Humanity in the 21st Century, Dr Robert Dubler SC and Matthew Kalyk provide a comprehensive analysis o

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Crimes against humanity in the 21st century: law, practice, and threats to international peace and security
 9789004347670, 9789004347687

Table of contents :
Copyright
Contents
Foreword
Preface
1 The Origins of the Concept of Crimes against Humanity
2 The Nuremberg Precedent
3 From Nuremberg to the Hague
4 1993–1998: The Modern Definition of Crimes against Humanity
5 The Law of the International and Internationalised Tribunals
6 The Law of the International Criminal Court
7 State Practice after the Rome Conference of 1998
8 Crimes against Humanity and Threats to International Peace and Security
9 Crimes against Humanity under Customary International Law and the ICC: The Chapeau Elements
10 Crimes against Humanity under Customary International Law and the ICC: The Underlying Crimes
11 Prosecuting Crimes against Humanity in Domestic Courts
12 Conclusion
Index

Citation preview

Crimes against Humanity in the 21st Century

Crimes against Humanity in the 21st Century Law, Practice and Threats to International Peace and Security

By

Robert Dubler SC Matthew Kalyk

leiden | boston

Library of Congress Cataloging-in-Publication Data Names: Dubler, Robert, author. | Kalyk, Matthew, author. Title: Crimes against humanity in the 21st century : law, practice, and threats to international peace and security / by Robert Dubler, Matthew Kalyk. Description: Leiden ; Boston : Brill/Nijhoff, 2018. | Includes index. Identifiers: LCCN 2018001849 (print) | LCCN 2018002031 (ebook) | ISBN 9789004347687 (E-book) | ISBN 9789004347670 (hardback : alk. paper) Subjects: LCSH: Crimes against humanity (International law) | International Criminal Court. | International criminal courts. | Security, International. | Customary law, International. | Crimes against humanity--21st century. Classification: LCC KZ7145 (ebook) | LCC KZ7145 .D83 2018 (print) | DDC 345/.0235--dc23 LC record available at https://lccn.loc.gov/2018001849

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. isbn 978-90-04-34767-0 (hardback) isbn 978-90-04-34768-7 (e-book) Copyright 2018 by Koninklijke Brill nv, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill nv provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, ma 01923, usa. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Foreword by Geoffrey Robertson QC vii Preface xi 1

The Origins of the Concept of Crimes against Humanity 1

2

The Nuremberg Precedent 35

3

From Nuremberg to the Hague 100

4

1993–1998: The Modern Definition of Crimes against Humanity 157

5

The Law of the International and Internationalised Tribunals 202

6

The Law of the International Criminal Court 307

7

State Practice after the Rome Conference of 1998 393

8

Crimes against Humanity and Threats to International Peace and Security 573

9

Crimes against Humanity under Customary International Law and the icc: The Chapeau Elements 638

10

Crimes against Humanity under Customary International Law and the icc: The Underlying Crimes 745

11

Prosecuting Crimes against Humanity in Domestic Courts 959

12 Conclusion 1052 Index 1077

Foreword A crime may be said to be “against humanity” when the very fact that a fellow human being could conceive and commit it demeans all members of the human race, wherever they live and whatever their culture or creed. It not only deserves but demands punishment, irrespective of time (it can never be forgiven) or place – hence a universal jurisdiction arises to hold perpetrators to account. It includes genocide, and mass murder or systematic torture when authorised by a political power, and it imputes liability not only to heads of state and to military or political commanders (irrespective of immunity or amnesty), but to bureaucrats, ideologues, propagandists and others complicit in its commission. It is a crime so outrageous that the international community is obliged by its own law to intervene, irrespective of state sovereignty, to ensure that it is stopped and that its perpetrators are eventually punished. The crime against humanity now has a 21st Century legal definition, embedded in Article 7 of the Rome Treaty of the International Criminal Court (ICC), which covers any “widespread or systematic attack directed against a civilian population pursuant to a state or organisational policy.” This definition, and other elements and consequences of the crime, have received detailed explication in the judgements of a number of international courts and tribunals, and from regional human rights court and local supreme courts. There have been commentaries from many distinguished jurists, mostly since the 1990’s when the crime shed any necessary connection with war and thus became available for use against states and statespeople who direct internal oppression. One of the great merits of this book, written by and for legal practitioners, is that it accurately analyses all these precedents and works them into a coherent exposition of the international criminal law that has emerged today, seventy years on from the judgement at Nuremberg. I was, by happenstance, born on the very day of that judgement, so the length of my life is a measure of the time taken so far to fulfil its promise that perpetrators of great crimes will eventually be held to account. This began well enough, with that great post-war human rights triptych of 1948-49 – the Genocide Convention, the Universal Declaration of Human Rights and the Geneva Conventions – followed in later years by the ‘good conventions’ against torture and apartheid and mistreatment of women and of children. But none had enforcement mechanisms – as someone noted when surveying the killing fields of Rwanda, “the road to hell is paved with good conventions.” As a student in the 70’s I joined Amnesty and wrote grovelling letters – which was all you could

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do – to Amin and Pinochet and other mass-murderers, begging them to desist. The letters were never answered, although a quarter of a century later I did have the satisfaction of filing a brief for Human Rights Watch against Pinochet when he was arrested in London in 1999. This had been made possible by a new interest in global justice, sparked when the UN established criminal courts in 1994 to punish crimes against humanity in the Balkans (the ICTY) and in ­Rwanda (the ICTR). At the fag-end of a century in which 150 million lives had been lost through war and repression, it was as if the millennium had ushered in a new trend in international affairs – justice, rather than diplomatic expediency. Tyrants who might previously have been induced to leave the bloody stage only with an amnesty in their back pocket and their Swiss bank accounts i­ ntact might now face trial in an international court for crimes against humanity The trend continued into the 21st century, creating precedents and forensic practices as Milošević, Karadžić and Mladić, Charles Taylor and Hissène Habré, and hundreds of their accomplices were indicted at courts in The Hague and elsewhere. The UN court in Sierra Leone, of which I was the first President, decided that recruiting children for war was such a crime, and that prosecution for other crimes against humanity could not be avoided by pleading an amnesty. The ICTR and ICTY became active in fine-tuning the law and extending its liability to accomplices – councillors and politicians and propagandists. Thus the development of international criminal law proceeded at a fast pace (­although the trials themselves were slow and laborious). The process seemed, by 2011, to have become established as an element of international ­peace-keeping: that was when the Security Council unanimously authorised “all necessary means” to stop Colonel Gaddafi from taking further lives of his own people in Libya. This was pursuant to its ‘responsibility to protect’ obligation to protect victims from crimes against humanity being committed by their own government. The ICC prosecutor, after the Security Council referred the situation in Libya, speedily indicted Gaddafi, his son Saif and his spymaster Senussi. But 2011 was the high-watermark of humanitarian intervention. The International Criminal Court’s actions against Gaddafi created over-optimistic expectations for international justice, exemplified by the first peaceful protestors in Damascus, with their banners reading “Assad to The Hague”. After his brutal forces had killed 800 of them in the first few months I wrote an article for The Independent urging that the situation in Syria should be referred to the ICC by the Security Council. Of course it was not – the Russians threatened to veto, anxious to protect their naval base in the Mediterranean, and by now 450,000 have been killed while half of Syria’s people are internally or ­externally

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d­ isplaced. Assad has gotten away with it, and the message is all too clear: no perpetrator with big-power support in a pole-axed Security Council will be sent for trial at an international court any time soon. As for the intervention in Libya, that country has gone from bad under Gaddafi to worse under his violent and warring successors: it has not passed without notice, in North Korea and elsewhere, that had the Colonel developed weapons of mass destruction, and in particular a nuclear bomb, NATO would have been reluctant to intervene. The cause of international justice is not helped by the resurgence of support for state sovereignty, reflected in the rhetoric of Donald Trump, the UK vote for Brexit, and the election of inward-looking nationalist parties in Poland and Hungary. Nor has it been assisted by all the African states – Chad, Malawi, the Congo, South Africa, Uganda, Djibouti and Kenya – which have thumbed their nose at the ICC by welcoming Omar-Al-Bashir, head of state of the Sudan, despite his indictment for genocide and crimes against humanity. The authors of this book carefully explain the ICC reaction (p.224 et seq) but their work has gone to press before the latest Bashir travel embarrassment: on 23rd November 2017 he was welcomed in Sochi by President Putin, who actually sent a Russian VIP plane to bring him into the country to sign an agreement to purchase a Russian nuclear power station. This was the first real defiance by a ‘Big 5’ power, and it demonstrates all too clearly the current lack of respect for the Court. Notwithstanding the current travails of international criminal courts, the crime against humanity is an important concept which judges and diplomats, journalists and politicians must understand. It is not only a basis for international prosecution, but an argument for extradition of perpetrators as it is an argument for asylum made on behalf of persons likely to be subjected to it. It is a matter for policy-makers always to take into account in international relations. The popular reversion to notions of sovereignty will not affect demands for Magnitsky laws (adopted so far in the US, Canada and several European countries) under which individuals implicated in crimes against humanity are denied entry, have their bank accounts frozen and (in some models) are refused entry for their parents to go to hospitals or their children to have private schooling. Magnitsky laws must be passed by national parliaments and applied by a national tribunal so they, do not involve international criminal jurisdiction, but make use of its principles and precedents in order for the state to sanction those believed to have abetted international crimes. There will, then, be many occasions for determining whether a crime against humanity has taken place, and given the looseness of the political rhetoric in which the phrase is frequently to be found it will be important to adhere to the definitions and qualifications in what is now a developed customary law. There

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are still “grey areas” of course – does the requirement of an “organisational policy” include ISIS (at least when it has territory) but not the mafia? … and so on. But the full scope of the law, and most of its questions, are settled coolly and comprehensibly in a book which will be of great assistance to practitioners. The authors are right to survey the pre-Nuremberg history and to analyse some of the lesser Nuremberg cases – involving Nazi judges and industrialists and propagandists, which remain important precedents. The fin-de-siècle story, of how liability for crimes against humanity was extracted from its war context in the Nuremberg charter and developed as a free-standing rule of international criminal law, is well told. The authors’ warning that the rule is one of international law, and should respect its requirements of sufficient state practice and juristic approval, is important at a time when international justice must inch its way forward against populist suspicion of being an incursion on sovereignty. Those appointed as international judges, especially if they have a human rights background, can be all too willing to extend the law to cover behaviour which is appalling but was not criminal by international standards at the time it was committed. My appeal court in Sierra Leone had to decide in 2004 whether it was an international crime in 1996 to recruit children for front-line fighting. At that time there was no state practice to make it a crime, and indeed the defendant, Hinga Norman, had himself been recruited by the British army at the age of 14. My colleagues, over-concerned that it should be a crime held (mistakenly, as later cases have shown) that it was indeed a crime by 1996. I dissented, pointing out that state practice was only sufficient by 2002, when the ICC statute outlawing child recruitment came into force. I was described – correctly if not always favourably – as a “moderate positivist”. Moderate positivism is, I believe, the way forward for international criminal law, and this book will greatly assist that process, by its systemic analysis of all the precedents we can now be positive about. Geoffrey Robertson QC Doughty Street Chambers January 2018

Preface On 5 December 2003, an Australian mp stated ‘[o]ur government is engaged in a continuing crime against humanity’.1 The statement was made in respect of the Australian government’s policy of mandatory detention of asylum seekers prior to the determination of their claims for asylym. Of course, one may think that this is just another example of the label ‘crime against humanity’ being used as a rhetorical figure of speech and outside its strict or technical meaning in international law. The term has been used to describe terrorist attacks, policies of assimilation, and the destruction of the social safety net.2 It appears the term can be used to describe anything which outrages us.3 Yet, there is often more to it than rhetoric. Australian barrister, Julian ­Burnside qc, as well as various other academics have made submissions to the International Criminal Court (icc) that the Australian Government’s policy is in fact a ‘crime against humanity’ as defined in Article 7 of the Rome Statute of the International Criminal Court (icc Statute).4 By parity of reasoning, then-President George Bush may also have committed crimes against humanity by the United States’ detention of persons at Guantánamo Bay.5 Likewise with the imprisonment of American nationals of Japanese descent during the

* The authors would like to acknowledge the assistance of Jessica Xiao, Uzma Sherieff, Laura Stockdale, Aimee McIntyre, Lyndall Thomas and Francis Kalyk in the completion of this text. 1 Kate Reynolds mlc, News Release: Democrats – The lone voice for refugess (2003) Australian Democrats viewed 1 May 2006. 2 Richard Vernon ‘What Is a Crime Against Humanity?’ (2002) 10 Journal of Political Philosophy 231, 249. 3 As Cherif Bassiouni puts it, ‘[t]he term crimes against humanity has come to mean anything atrocious committed on a large scale’: Cherif Bassiouni, ‘Crimes Against Humanity’, viewed 21 October 2006. 4 Margo Kingston, ‘Australian Crime against Humanity’, Sydney Morning Herald (Sydney) 8 July 2003’; Communique to the Prosecutor at the International Criminal Court, accessed at http://www.julianburnside.com.au/whatsinside/uploads/2016/11/Communiqu%C3%A9-to -ICC.pdf on 4 June 2017; The Situation in Nauru and Manus Island: Liability for crimes against humanity in the detention of refugees and asylum seekers, accessed at http://docs.wixstatic .com/ugd/b743d9_e4413cb72e1646d8bd3e8a8c9a466950.pdf on 4 June 2017. 5 See James G. Stewart, ‘Rethinking Guantánamo: Unlawful Confinement as Applied in International Criminal Law’ (2006) 4  Journal of International Criminal Justice 12.

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Second World War by then-President Roosevelt makes him guilty of this international crime along with the Nazi leaders.6 Crimes against humanity is a mechanism by which the perpetrators of some of the worst atrocities may be held to account by the international community. At the same time, however, adopting an overly broad and insufficiently rigorous interpretation of crimes against humanity has the potential to delegitimise the significance of the crime, undermine the confidence that it will be applied correctly by courts and dissuade states from supporting international institutions such as the icc. Today, this constraint upon leaders of State Parties to the icc Statute, such as the United Kingdom, France and Australia, would appear to depend upon the proper interpretation of Article 7 of the icc Statute. Similarly, the constraint upon former state leaders who are not parties to the icc Statute such as Henry Kissinger or George Bush Senior may depend upon the right of other states to prosecute for committing a ‘crime against humanity’. One difficulty lies in the fact that, unlike the crime of genocide, for instance, the definition of crimes against humanity is not set out in any one treaty. The crime is one of customary international law that has been implemented differently in different settings. The icc Statute is one and perhaps the most prominent statute – others include the statutes of the World War ii tribunals (the London Charter, the Tokyo Charter, Allied Control Council Law No 10), the statutes of the ad hoc Tribunals created by the un Security Council (the International Criminal Tribunal for the Former Yugoslavia (icty), the Statute of the International Criminal Tribunal for Rwanda (ictr)) and the statutes of the various other hybrid tribunals including in Sierra Leone, East Timor and Cambodia. Appendix 1 sets out the definitions of the crime in each of these international or ‘hybrid’ instruments and the definition in the ilc 1996 Draft Code. In addition the right to invoke universal jurisdiction over those accused of committing crimes against humanity remains controversial in theory and difficult in practice. Another difficulty lies in the loose concepts contained in definition of crimes against humanity, such as a ‘widespread or systematic attack directed against any civilian population’ and a ‘State or organizational policy to commit such attack’. Many questions remain: how many victims need to be killed for an attack to be ‘widespread or systematic’, what determines whether a group of people are a ‘population’ or a ‘civilian’ population, and what kinds of actors can have the requisite ‘State or organiszational policy’. 6 P. Hwang, ‘Defining Crimes Against Humanity in the Rome Statute of the International Criminal Court’ (1998) 22 Fordham International Law Journal 457, 475.

chapter 1

The Origins of the Concept of Crimes against Humanity crimes against humanity are as old as humanity itself.1

∵ 1 Introduction The object of this chapter is to explore the main foundations, legal and other, of the concept of crimes against humanity prior to 1945. One has to refer to the ‘concept of crimes against humanity’ because crimes against humanity, in its strict sense, only first entered positive international law in 1945 when the four Allied powers, France, the Soviet Union, the United Kingdom and the United States established the International Military Tribunal at Nuremberg and granted it jurisdiction to try the captured Nazi leaders with three categories of crimes: ‘crimes against peace’ (Article 6(a)); ‘war crimes’ (Article 6(b)); and ‘crimes against humanity’2 (Article 6(c)).3 Hence, the concept of crimes against humanity is heavily associated with the Nuremberg Trial. It would be wrong, however, to conclude that the underlying concept has no genealogy before that date. Its roots, in fact, can be traced back over the centuries.

1 Jean Graven, ‘Les crimes contre l’humanité’ (1950-I) 76 Recueil des Cours 427, 433. 2 There appears to be no definitive statement as to how the designation ‘crimes against humanity’ was arrived at. Jackson, the United States representative, said the headings had been suggested to him by an eminent scholar of international law and Clark says Professor Lauterpacht has been credited as the author: Roger S. Clark, ‘Crimes against ­Humanity at Nuremberg’ in George Ginsburgs and Vladimir Kudriavtsev (eds), The Nuremberg Trial and International Law (Martinus Nijhoff: Dordrecht, 1990) 172, 189 fn 54; see also M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law (2nd rev. ed., Kluwer Law International: The Hague, 1999) 17. 3 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, done in London, England, opened for signature 8 August 1945, 82 unts 280 (entered into force 8 August 1945), to which was annexed the Charter which established the Nuremberg Tribunal (hereinafter ‘the London Agreement’ and ‘London Charter’ respectively).

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004347687_002

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Despite its rich tradition, which is explored in this chapter, frequently the historical and legal analyses of crimes against humanity suffer from undue emphasis being placed on the Nuremberg and Tokyo trials after the Second World War and the definition of the crimes as contained in the London C ­ harter ­(Article 6(c)) and the Tokyo Charter of 1946 (Article 5(c)).4 This analysis places the genealogy of crimes against humanity in the laws and customs of war, an outgrowth of war crimes, and limits such crimes to situations of war or some form of armed conflict. It is important to appreciate that the concept of crimes against humanity enjoys a legal and historical tradition independent of the laws of war and the Nuremberg Precedent. To trace the history of those roots, it is useful to provide a working definition of ‘the concept of crimes against humanity’. The concept, in essence, has three elements: (1) The existence of a crime under a higher, basic, natural or international law which applies to all persons, irrespective of position or status, and regardless of any contrary positive or local law. (2) Such higher law applies to persons of all nations at all times and can ­never be the subject of any state derogation. (3) Perpetrators of such crimes can be subject to individual criminal responsibility before courts applying directly that higher law, not merely the ­local law of a particular state.5 The concept of crimes against humanity set out above draws heavily upon the traditions of natural law – the tradition that a sovereign is always answerable to a higher law. The defining, though not exclusive, aspect of the concept of crimes against humanity is the notion that certain conduct is unlawful, even when committed by a sovereign or a Head of State towards its own people under the colour of local law or state authority. This chapter argues that it is this tradition, rather than the laws of war, which sets the background for the trial of the Nazi leaders for their role in the Holocaust. As there are few international 4 Proclamation of the Supreme Commander for the Allied Powers, 19 January 1946, tias 1589, 4 Bevans 20, 27, to which was appended the Charter of the International Military Tribunal for the Far East, done in Tokyo, Japan, opened for signature 19 January 1946 (entered into force 19 January 1946) (‘Tokyo Charter’). 5 These three elements contain the essence of the Nuremberg Principles, see: The Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, Report of the International Law Commission to the United Nations General Assembly, un gaor, 5th sess, Supp 12, un Doc. A/1316 (29 July 1950).

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trials to draw upon prior to the Nuremberg Trial, this chapter largely presents the views of scholars on the concept of crimes against humanity along with relevant state practice in five separate historical periods commencing with ancient civilisations and ending with the outbreak of the Second World War. There is a particular reason for discussing the historical aspects of the concept of crimes against humanity. Article 6(c) of the London Charter, discussed in Chapter 2, was not drafted in a vacuum. The underlying philosophical, moral and, finally, legal bases for this crime have been part of the regulation of state and human behaviour for centuries. The authors of the first definition of a ‘crime against humanity’ drew upon the problems, debates and resolutions which had been mooted in the past and which remain relevant today. 2

Ancient Civilisations

2.1 Political and Legal Thought The tradition of natural law is generally traced back to Greek philosophers who denied the absoluteness of the state and its ability to pass laws contrary to justice. For Plato (427–347 bce) the law ‘is sovereign over the authorities and they its humble servants’.6 Similarly, Aristotle (384–322 bce) said ‘…we will not have a man to rule another, for a man rules with one eye to his own interest and becomes a tyrant. We will have the law for our ruler…’.7 Aristotle drew a distinction between ‘particular’ and ‘universal’ law. The former may be passed by men but the latter is unchanging, being ‘the law of nature. For there is a natural and universal notion of right and wrong, one that all men instinctively apprehend’.8 Sophocles (c496–406 bce) echoed this idea when he had Antigone justifying his transgression of Creon’s law: ‘Because it was not Zeus who ordered it … The unchangeable unwritten code of Heaven’.9 The tradition of natural law was continued by Roman Stoics, such as Seneca (c4 bce-65 ce), Epictetus (c55-c135 ce) and Marcus Aurelius (121–180 ce)10 6 Plato, The Laws of Plato, transl. Alfred E. Taylor (J.M. Dent & Sons: London, 1934) 99–100. 7 Aristotle, The Ethics of Aristotle, transl. James A.K. Thomson (Allen & Unwin: London, 1953) 156. 8 Lane Cooper, The Rhetoric of Aristotle (1965) 73. 9 Quoted in Elies van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (tmc Asser Press: The Hague, 2003) 225. 10 He said: ‘The common possession of reason is synonymous with the necessity of a common law…. That common law makes fellow-citizens of us all. If this is so, we are members of some political community in the sense that the world is in a manner of a State’: see Hersch Lauterpacht, International Law and Human Rights (Stevens: London, 1950) 94.

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who envisaged one single common law of humanity based on a common possession of reason.11 Ulpian (100–228 ce), in company with other lawyers of the Roman era, said that whilst a person could be a slave under civil law, all persons by natural law were free.12 According to Cicero (106–43 bce) ‘true law’ is ‘of universal application, unchanging and everlasting … And there will not be different laws at Rome and at Athens, or different laws now and in the ­future, but one external and unchangeable law will be valid for all nations and all times’.13 Amartya Sen argues that the notion of the limited authority of the state also has support in the writers of the same time in non-western civilisations.14 In support, he refers to Confucius (c551–479 bce), who did not recommend blind allegiance to the state;15 Buddhism, originating in India in the sixth century bce as an agnostic form of thought, which places great importance on freedom, free choice and volition;16 and the works of Kautilya (c350–275 bce), an influential Indian writer, who, like Aristotle, supported slavery for the lower classes, yet thought slavery unacceptable for the upper classes saying it is wrong for the state to deny the upper classes freedom from undue government interference.17 2.2 State Practice Generally, state practice did not live up to the lofty ideals of the above writers, with the possible exception of the Greek city-state. By the fifth century bce a system developed in Athens where a citizen could complain to a scribe who would gather the Assembly to act as jury and decide all issues.18 With the jury numbering between ten and as many as 6,000 it had, writes Robinson, only the ‘vaguest ideas of the law’.19 As a result, writes Phillipson, Greek rulers realised the need to observe ‘traditional usages and principles spontaneously enforced 11

For an account of these writers see: Bertrand Russell (ed), History of Western Philosophy (Simon and Schuster: London, 2000) 260–276; and Whitney J. Oates (ed), The Stoic and Epicurean Philosophers (Random House: New York, 1940) 224–280. 12 Ulpian, Digest, transl. Tony Honoré (Oxford University Press: Oxford, 2002) I.17.3.2. 13 Marcus Tullius Cicero, De Re Publica and De Legibus (first published 1928), transl. Clinton W. Keyes (Harvard University Press: Cambridge, 1977) 211. 14 Amartya Sen, Development as Freedom (Oxford University Press: Oxford, 1999) 234. 15 See Confucius, The Analects of Confucius, transl. Simon Leys (Norton: New York, 1997) 14.22, 70. Confucius says loyalty to family may be a higher virtue than obedience to a bad ruler: 13.18, 63; and even rebellion may be justified if a state has lost its way: 14.3, 66. 16 Sen, above n 14, 236. 17 R.P. Kangle, The Kautilya Arthashastra (University of Bombay: Bombay, 1972) 235–239. 18 See Cyril Robinson, A History of Greece (9th ed, Methuen: London, 1957) 271–278; Humphrey D.F. Kitto, The Greeks (Penguin Books: London, 1957) 127–128. 19 Robinson, above n 18, 273.

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by human conscience’.20 Such a system applied the law with equal force to both the poor and the powerful. Pericles himself was prosecuted and fined before a jury in 430 bce.21 This was, to the Greeks, the essence of the rule of law itself. Whilst the Assembly in both Sparta and Athens passed ­regulations – psephismata or ‘things voted’ – the law, nomoi, was largely unwritten. It represented the basic laws of the state – the moral and creative power of the polis.22 To the Greek way of thinking such laws represented general principles of morality, immutable and unchanging.23 The disadvantage of such a system of criminal law, which relied essentially upon custom as interpreted spontaneously by the people, was its uncertainty and potential for abuse. After Socrates’ trial and death in 399 bce, Plato distrusted democratic rule.24 Stoic philosophy and the theory of natural law only had theoretical relevance to the actual law and practice of Rome.25 Nevertheless, the Romans did divide the law, or jus positivum, into jus gentium and jus civile. The jus gentium applied to all communities in the Roman Empire. Crimes against the law of nations are sometimes called delicti jus gentium.26 This, however, tends to reduce international criminal law to the law of the lowest common denominator – the minimum standards of international criminal law agreed to by all nations. The alternative, and sounder, classical foundation for crimes against humanity, in

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Coleman Phillipson, The International Law and Custom of Ancient Greece and Rome (MacMillan: London, 1911) 59. Robinson, above n 18, 180. According to Professor Kitto, the nomoi was designed not only to receive justice in the individual case, but also to inculcate justice, which was one reason why the young Athenian, during his two years with the colours, was instructed in the nomoi ‘which are the basic laws of the state’: see Kitto, above n 18, 94. For example, Sparta, with her laws of Lycurgus, was admired for her Eunomia – being well lawed – because it was supposed her laws had not changed for centuries: Kitto, above n 18, 94. Robinson, above n 18, 274–275. This can, for example, be seen in the Justinian codification Corpus Juris Civilis, the Pandects of which contain references by Ulpian and others to higher universal values that can be traced to the writings of Plato and Aristotle. For example, there are references to the law being in furtherance of justice and equity, some of the principles or maxims of which continued in the common law: see Hessel Yntema, ‘Roman Law and its Influence on Western Civilization’ (1949) 35 Cornell Law Quarterly 77; and Edward D. Re, ‘The ­Roman Contribution to the Common Law’ (1961) 29 Fordham Law Review 447. For example, Bassiouni says ‘Such crimes are appropriately called delicti jus gentium’: M. Cherif Bassiouni, International Extradition: United States Law and Practice (3rd rev. ed., Oceana Publications: New York, 1996) 298.

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its non-technical sense, is the Greek concept of nomoi with its notion of universal right and wrong inherent in the human condition. 3

The Middle Ages in Europe

3.1 The Laws of God as Higher Law The Church dominated Middle Ages saw an affirmation of the idea of a higher law superior to the authority of the state. St Augustine’s (354–430) highly influential City of God emphasised that the sovereign only possessed limited authority on earth, secondary to the laws of God (as interpreted by the Church) and justice.27 Basing himself upon the practice of plebeian resistance to senatorial decrees, St Augustine suggested there was a right of ‘humanity’ to respond to ‘abominable’ state acts.28 He stated: ‘In the absence of justice, what is sovereignty but organised brigandage? For what are bands of brigands but petty kingdoms?’29 Such a doctrine remained dominant for centuries, reinforced, perhaps most influentially, in the works of St Thomas Aquinas (c1225–1274) who wrote: But in order that the volition of what is commanded may have the nature of law, it needs to be in accord with some rule of reason. And in this sense is to be understood the saying that the will of the sovereign has the force of law; or otherwise the sovereign’s will would savour of lawlessness rather than of law.30 This was echoed by Bracton (c1210–1268) in England when he stated that a sovereign has two superiors, God and law.31 This was also the position of leading 27

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For an outline of the writings of St Augustine, see Russell, above n 11, 351–363; and Herbert A. Deanne, The Political and Social Ideas of St Augustine (Columbia University Press: New York, 1963). Saint Augustine, The City of God, transl. David Knowles (Penguin: Harmondsworth, 1972) 180. Saint Augustine, The City of God (Vernon J. Bourke, ed.), transl. Gerald G. Walsh, Demetrius B. Zema, Grace Monahan and Daniel J. Honan (Doubleday & Company, Inc.: New York, 1958) 88. St Thomas Aquinas, Treatise on Law: Summa Theologica, Questions 90–97 (Regnery/Gateway: Indiana, 1979) 4. For an outline of the writings of Aquinas see Russell, above n 11, 444–454. Henry de Bracton, De Legibus et Consuetudinibus Angliae (George E. Woodbine ed, 1915– 42) vol II.29–30. Coke and others used the work in their legal arguments against the King in the English civil war.

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continental jurists such as Gratian (died c1155) and Beaumanoir (­ c1250–1296).32 Similarly, Suárez (1548–1617) said: ‘Lex injusta non est lex’.33 This doctrine, described by German writer, Grieke, as ‘radical to the very core’,34 led writers such as Thomas More (1478–1535),35 Languet (1518–1581)36 and Gentili (1552–1608)37 to hold that a tyrant who acts contrary to the laws of God or nature is a criminal and rebellion or foreign intervention is justified ‘unless we wish to make sovereigns exempt from the law and bound by no statutes and precedents.’38 Such views came to be known as the theory of a ‘just war’39 which can also be found in the Islamic tradition of jihad40 and in ancient Chinese philosophical traditions.41 By this doctrine certain crimes transcend national boundaries; foreign nations have a right to punish such crimes by intervention; and the crimes in question can be made the subject of legal punishment if thought appropriate. For example, de Victoria (1480–1546) asserted ‘a prince who has on hand a just war is ipso jure the judge of his enemies and can inflict a legal punishment on them, according to the scale of wrongdoing’.42 Hugo Grotius 32 33

Lauterpacht, above n 10, 85. ‘An unjust law is not law’: Francisco Suárez, De Legibus ac Deo Legisltore (first published 1612, 1948 ed) II.XIV.8. 34 Lauterpacht, above n 10, 96. 35 Thomas More, Utopia (first published 1516), G.M. Logan, R.A. Adams and C.H. Miller (eds) (Cambridge University Press: Cambridge, 1995) 56. 36 See the discussion of Hubert Languet’s and Philippe Duplessis-Mornay’s Vindicae Contra Tyrannos in Ellery C. Stowell, Intervention in International Law (J Byrne & Co: Washington d.c., 1921) 55. 37 Gentili said: ‘as far as I am concerned, the subjects of others do not seem to me to be outside of that kinship of nature and the society formed by the whole world’: Alberico De Gentili, De Jure Belli Libri Tres (first published 1612), transl. John C. Rolfe (Clarendon Press: Oxford, 1933) i, xvi. 38 Ibid. 39 For a summary of the just war theory in international law, see: Joachim von Elbe, ‘The Evolution of the Concept of the Just War in International Law’ (1939) 33(4) American Journal of International Law 665; John Eppstein, The Catholic Tradition of the Law of Nations (Burns & Oates: London, 1935); and Richard Regan, Just War: Principles and Cases (Catholic University of America Press: Washington d.c., 1996). 40 See James T. Johnson, The Holy War Idea in Western and Islamic Traditions (Pennsylvania State University Press: Pennsylvania, 1997); James T. Johnson and John Kelsay (eds), Cross, Crescent and Sword: The Justification and Limitation of War in Western and Islamic Traditions (Greenwood Press: New York, 1990). 41 See Bassiouni, above n 2, 49–50. 42 James B. Scott, The Spanish Origins of International Law i: Francis de Victoria and his Law of Nations (Clarendon Press: Oxford, 1934) 234.

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(1585–1645), the most influential of the writers on just war theory, also derived the law of nations from the law of nature.43 He was quoted by Sir Hartley Shawcross44 and us prosecutors45 at Nuremberg to explain the charges of crimes against humanity. In a series of oft-quoted passages, Grotius set out what can be described as the first modern statement of the concept of crimes against humanity in international law: But the case is different if the wrong be manifest. If a tyrant like Busiris, Phalaris, Diomede of Thrace, practises atrocities towards his subjects, which no just man can approve, the right of human social connection is not cut off in such a case.46 Grotius also suggested that: It is to be understood also that kings … have the right of requiring punishment, not only for injuries committed against them or their subjects, but also for those which do not peculiarly touch them, but which enormously violate the laws of nature and nations in any persons … Indeed it is more honourable to punish the injuries of others than your own…47 Thus, based upon natural law principles, Grotius asserted that in the case of ‘atrocities’ or crimes which ‘enormously violate the laws of nature and nations’, states have both a right of foreign intervention and a right to punish the perpetrators for acts committed outside the prosecuting state’s jurisdiction. This 43

For a summary of the writings of Grotius, see: Hersch Lauterpacht, ‘The Grotian Tradition in International Law’ (1946) 23 British Year Book of International Law 1. 44 See Speeches of the Chief Prosecutors at the Close of the Case Against the Individual Defendants (published under the authority of hm Attorney-General by hm Stationery Office, 26–27 July 1946) (Command Papers 6964) (‘Speeches of the Chief Prosecutors’), 63. 45 See the address of Brigadier General Taylor, Chief of Counsel for the United States in United States v Flick and others 6 Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No 10, 87–89 (‘Taylor Address’). 46 Hugo Grotius, De Jure Belli ac Pacis Libri Tres (first published 1646), transl. William Whewell (1925) II.xxv.§8(2). 47 Ibid, II.xx.§40. Lauterpacht says of the first passage quoted (note 45) that it is the ‘first authoritative statement of the principle of humanitarian intervention’: see Lauterpacht, above n 43, 46. It is important, however, to tie this statement with the second statement quoted above which appears first in Book ii, ‘On Punishment’, to conclude that Grotius supports the proposition that a tyrant’s atrocities towards his own people are crimes under international law.

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links the concept of crimes against humanity with the principle of humanitarian intervention discussed in Section 5.1. 3.2 State Practice The Church and the doctrine of a higher law did at times curb the power of the state to commit what may be seen as a crime against humanity, in its loose sense. In 390, St Ambrose (c339–397) forced the Emperor to do public penance in the cathedral of Milan after the slaughter of thousands of civilians by ­Roman soldiers at Thessalonica.48 From about the thirteenth century, however, the papacy was eclipsed by the rising power of the northern towns of Italy and the kings of France and England. Kings began to assert the divine right to rule without interference from the Church. Nevertheless, whilst the dominance of the papacy may have declined, orthodox legal theory still denied the authority of either king or parliament to pass arbitrary or unreasonable laws contrary to justice.49 English jurists such as Fortescue (c1394–1476),50 Hooker ­(c1553–1600),51 Hale (1609–76)52 and even arguably Blackstone (1723–80)53 ­upheld this view. Coke (1552–1634) in cases decided in 160854 and 161055 said the courts may hold laws of parliament to be void, and said ‘Magna Carta is

48 49

50

51

52 53

54 55

Russell, above n 11, 339–340. According to Sir Pollock, ‘The omnipotence of Parliament was not the orthodox theory of English law, if orthodox at all, even in Holt’s time’: Frederick Pollock, ‘A Plea for Historical Interpretation’ (1923) 39 Law Quarterly Review 163, 165. Fortescue said: ‘Thus we have also found that the rules of the political law, and the sanctions of customs and constitutions ought to be made null and void, so often as they depart from the institutions of nature’s law’: John Fortescue, De Natura Legis Angliae, transl. Stanley B. Chrimes (Cambrigde University Press: Cambridge, 1942) vol i, Ch 29. Hooker said: ‘laws they are not which public affirmation hath not made so’: Richard Hooker, The Law of Ecclesiastical Polity (J.M. Dent & Sons: New York, 1925), cited in Lauterpacht, above n 10, 85. ‘Hale described as wild and “against all natural justice” the proposition that the king may make, repeal or alter laws as he pleases’: Lauterpacht, above n 10, 96. The controversy with Blackstone is that on the one hand he refers to ‘the immutable laws of nature’ being ‘of course superior in obligation to any other’ and to Acts of Parliament being void where ‘contradictory to common reason’: Sir William Blackstone, Commentaries On The Laws Of England (first published 1765–1769, 4th ed, 1770) 40–41 and 91. He, however, also refers to the power of Parliament to do ‘everything that is not naturally impossible’: 41. Calvin’s Case (1608) 7 Co. Rep. 1, 4b. Doctor Bonham’s Case (C.P. 1610) 8 Co. Rep., 114a and 118a; see also Theodore Plucknett, ‘Bonham’s Case and Judicial Review’ (1926) 40 Harvard Law Review 30.

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such a fellow that he will have no sovereign’.56 Some of the principles of Magna Carta were acknowledged by royalty beyond England, for example, by Alfonso ix in 1188 at the Cortes of Leon, by King Andrew ii in 1222 in Hungary, by ­Peter iii in 1283 at Aragon, by Philip the Fair of France in 1311 and by Louis x of France four years later.57 Of particular interest is the oft-quoted trial of Peter von Hagenbach.58 In 1474 in Breisach, Hagenbach was tried before a tribunal of 28 judges from allied States of the Holy Roman Empire. Charles, the Duke of Burgundy, had appointed Hagenbach the Governor of Breisach, Austria. The Duke of ­Burgundy was allowed to rule the town as an interim pledge until the Archduke of A ­ ustria repaid a debt to the Duke. Hagenbach sought to reduce the populace of Breisach to a state of submission by committing such atrocities as murder, ­rape and illegal confiscation of property.59 When the town rebelled and was retaken by Austria and her allies, Hagenbach was arrested and accused of having ‘trampled under foot the laws of God and man’.60 He was found guilty and put to death. The trial, such as it was,61 possibly represents the first supranational trial for crimes against humanity in its non-technical sense. Some describe the trial as the first international war crimes trial.62 As the Swiss-Burgundian War did not commence until 1476, Hagenbach’s atrocities were not committed in the context of war.63 The notion that tyranny, itself, is a crime was invoked in the trial of Charles i in England in 1649. He was charged with being a ‘Tyrant, traitor and murderer’ who had ‘traitorously and maliciously levied war against the present 56

57 58

59 60 61

62 63

Sir Edward Coke, ‘Speech on the Petition of Right, 1628’ in John Rushworth, Historical Collections of Private Passages of State, Weighty Matters of Laws, Remarkable Proceedings in Five Parliaments (1659) vol. 1, 562. See Lauterpacht, above n 10, 85. See Timothy McCormack, ‘From Sun Tzu to the Sixth Committee: The Evolution of an International Criminal Law Regime’ in Timothy McCormack and Gerry Simpson (eds), The Law of War Crimes: National and International Approaches (Kluwer Law International: Boston, 1997) 31, 37–39; Bassiouni, above n 26, 463 and 517; Georg Schwarzenberger, International Law as Applied by International Courts and Tribunals (Stevens: London, 1968) vol. ii, 462–466. See Bassiouni, above n 2, 463. Schwarzenberger, above n 58, 465. Vaughan says “[t]he execution was resolved on first; the trial was a mere formality”: Charles Vaughan, Charles the Bold: The Last Valois Duke of Burgundy (Longman: London, 1973) 284. Schwarzenberger, above n 58, 462–466. Bassiouni calls it ‘The first modern international prosecution for war crimes’: see Bassiouni, above n 2, 517. McCormack, above n 58, 38.

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­ arliament’ contrary to his ‘limited power to govern by and according to the P laws of the land and not otherwise’.64 The Solicitor General John Cooke relied on natural law and the works of Bracton to say that a King always remains under God and the law. 3.3 Piracy – International Law’s First Crime against Humanity? Many modern international law scholars state that piracy is a crime under customary international law dating from the 1600s65 and ‘may be regarded as the very first “crime against humanity”’.66 Writers from the antiquities through to the Middle Ages, however, did not just single out pirates alone as the outcasts of the world. Cicero referred both to pirates (pirata) and brigands/bandits (praedones – land based predators) as hostis humani generis.67 St Augustine famously compared a tyrant with a pirate.68 Ayala (c1548–1584) referred to piracy as being a crime under the jus gentium of nations, as well as acts contrary to the laws of God including religious persecution.69 Gentili took pirates to be criminals which called ‘all men to arms’, along with any ‘general violation 64 65

66 67

68

69

See Nalson’s Trial of Charles i (1684) in Cobbett’s Complete Collection on State Trials (1809) vol iv, 995. See Robert Jennings and Arthur Watts (eds), Oppenheim’s International Law (9th rev. ed., Longman: London, 1996) vol 1, 746–755; Alfred P. Rubin, The Law of Piracy (Transnational Publishers: New York, 1988); and Harvard Research in International Law, ‘Piracy’ (1932) 26(1) American Journal of International Law 739. The United States Supreme Court in us v Smith 18 us (5 Wheat) 153 (1820), 154 held that there existed ‘the crime of piracy [on the high seas] as defined by the law of nations’. Geoffrey Robertson, Crimes Against Humanity: The Struggle for Global Justice (Penguin: London, 2000) 208. See M. Cherif Bassiouni, ‘Universal Jurisdiction For International Crimes: Historical Perspectives and Contemporary Practice’ (2001) 42 Virginia Journal of International Law 81, 108 where the author reviews Contra Verres, transl. L.H.G. Greenwood (1953); De Officii, transl. L.H.G. Greenwood (1953); De Re Publica, above n 13. ‘If this band of criminals, by recruiting more criminals, acquires enough power to occupy regions, to capture cities, and to subdue whole populations, then it can with fuller right assume the title of kingdom, which in the public estimation is conferred upon it, not by the renunciation of greed, but by the increase of impunity. The answer which a captured pirate gave to Alexander the Great was perfectly accurate and correct. When that king asked the man what he meant by infesting the sea, he boldly replied: “What you mean by warring on the whole world. I do my fighting on a tiny ship, and they call me a pirate; you do yours with a large fleet, and they call you a Commander”.’ St Augustine, The City of God, above n 29, 88. Balthazar Ayala, De Jure et Officiis Bellicis et Disciplina Militari Libri iii (first published 1582), transl. J.P. Bate (Carnegie Institution of Washington: Washington d.c., 1912) 88.

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of the common law of humanity’.70 Grotius said the same for pirates as well as ‘those who act with impiety towards their parents’ and ‘against those who kill strangers’.71 In both Roman times and the Middle Ages the phrase hostis h­ umani generis was applied to conduct well beyond that of pirates.72 What did distinguish piracy from other ‘crimes against humanity’, in its loose sense, was that in the Middle Ages a practice developed which saw ships which came into contact with pirates on the high seas exercising jurisdiction over them irrespective of the nationality of either the pirate or his victim.73 This has led some scholars to argue that piracy jure gentium only represents a rule of ­jurisdiction which grants to nations the right to apply their own municipal law to a pirate, rather than there existing an international crime of piracy as such.74 It should be pointed out that in the Middle Ages there existed other examples of the exercise of extraterritorial jurisdiction over criminals75 and heraldic courts enforced codes of conduct over knights generally in the Holy Roman Empire.76 Whilst these examples of the exercise of an extraterritorial criminal jurisdiction tended to fade away with the introduction of modern nation states, piracy remained a crime of ‘universal jurisdiction’. This was essentially because universal jurisdiction over the pirate did not conflict with the principle of state sovereignty. By its modern definition,77 piracy is committed for ‘private ends’ 70 71 72

73 74

75

76 77

Gentili, above n 37, I.ccii. Grotius, above n 46, II.xx.§40(3). In Roman times it was applied to early Christians: Tertullianus, Apologia, transl. J.P. Waltzing and A. Severyns (1929) xxxvii, 8. In 1584 it was applied to William the Silent by Phillip ii who condemned him by decree leading to his assassination: Herbert H. Rowen (ed), The Low Countries in Early Modern Times (Harper & Row: New York, 1972) 77–79. See Bassiouni, above n 2, 229 n 172; Bassiouni, above n 65, 109–110. This is the view of: Georg Schwarzenberger, ‘The Problem of an International Criminal Law’ in Gerhard Mueller and Edward M. Wise (eds), International Criminal Law (Sweet & Maxwell: New York, 1965) 3, 9; and Antonio Cassese, International Criminal Law (Oxford University Press: Oxford, 2003) 24. (United Kingdom) Viscount Sankey lc in In re Piracy Jure Gentium [1934] ac 586, 589 (Privy Council) said ‘the trial and punishment of [pirates], are left to the municipal law of each country’. Towns in Northern Italy in the Middle Ages prosecuted banniti (exiles), vagabundi (vagrants), latrones (thieves or robbers) and assassini (murderers) even if the acts were committed outside the town’s jurisdiction: see Luc Reydams, Universal Jurisdiction: ­International and Municipal Legal Perspectives (Oxford University Press: Oxford, 2003) 29. Leslie Green, ‘Human Rights and the Law of Armed Conflict’ (1980) 10 Israeli Year Book of Human Rights 9, 11. The definition is codified in United Nations Convention on the Law of the Sea, done in Montego Bay, Jamaica, opened for signature 10 December 1982, 516 unts 205, Art 101(1) (entered into force 16 November 1994).

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on the high seas or outside the jurisdiction of any state. The Permanent Court of International Justice in 1927 in the Lotus Case said of piracy: …as the scene of the pirate’s operations is the high seas, which it is not the right or duty of any nation to police, he is denied the protection of the flag which he may carry and is treated as an outlaw – as the enemy of mankind – hostis humani generis – whom any nation may in the interests of all capture and punish.78 If piracy is used as a general precedent for crimes against humanity it would reduce its application to a very limited sphere – where the locus delicti is the high seas or other places outside the jurisdiction of any state and is committed for private ends. The better approach is to regard piracy as sui generis, rather than as a precedent for more modern notions of crimes against humanity.79 4

From the Treaty of Westphalia to the Nineteenth Century

4.1 Liberalism and the Principles of Territoriality/Non-interference Between the signing of the Treaty of Westphalia (1648) and the nineteenth century, liberalism became the dominant force in western political and legal philosophy. The most influential writer was John Locke (1632–1704), who repeated earlier natural law concepts when he stated that a person can cede certain powers to a government but the government can never have ‘arbitrary power over the life, liberty or possessions of another’.80 Kant (1724–1804) expanded on this by saying that one ought to treat all persons as an end in themselves and never as a means to an end.81 There were many followers of Locke over the next 100 years including Sidney and J.S. Mill in England, Paine, Jefferson and Adams in the United States and Voltaire and Montesquieu in France.82 These writers, unlike Grotius, did not support foreign intervention to uphold people’s natural rights. They put forward two other means to curb the power of the 78 (pcij) ss Lotus (France v Turkey), Permanent Court of International Justice, p.c.i.j (ser. A) No 10 (1927) (‘Lotus Case’). 79 (pcij) This was the view of Judge Moore in the Lotus Case: above n 78, 70. 80 John Locke, Second Treatise of Government (first published 1690), J.W. Gough (ed) (Blackwell: Oxford, 1956) xi.§135. 81 Immanuel Kant, The Metaphysical Elements of Justice: Part i of The Metaphysic of Morals (first published 1785, 1965 ed). 82 For a summary of the influence of Locke, see Russell, above n 11, 617–622; and Lauterpacht, above n 10, 135–140.

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state: keeping the legislative, executive, and judicial functions of government separate83 and permitting a right to rebel.84 The influential publicists on international law that followed Grotius continued to conceive of the law of nations as being synonymous with the law of nature,85 but over time they supported the principles of territoriality and non-interference in a foreign nation’s affairs. De Vattel (1714–67) denied the absolute power of the state,86 and said any foreign power may rightfully assist the oppressed people who are in revolt,87 but supported the inviolability of a state’s domestic jurisdiction.88 He criticised Grotius’ view that princes may punish persons for offences committed outside the territory because it ‘opens the door to all the poisons of zealots and fanatics and gives to ambitious men pretexts without number’.89 Similarly, Wolff (1679–1754) accepted the ideology of natural rights90 but said ‘To interfere in the government of another … is opposed to the natural liberty of nations’.91 ‘Approval is not to be given to the opinion of Grotius, that kings … have a right to exact penalties from anyone who savagely violates the law of nature or of nations’.92 Kant supported a 83

84

85

86

87 88 89 90 91 92

Locke paid little attention to the role of the judiciary. His followers, such as Montesquieu in France and Adams in America, saw the courts as being an important check on the power of the state. Adams’ influential Thoughts on Government, published in 1776, advocated an independent judiciary with judges appointed for life: see Charles F. Adams (ed), The Works of John Adams (Little, Brown & Co: Boston, 1840); and David McCullough, John Adams (Simon & Schuster: New York, 2001) 100–104. Jefferson said ‘The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants’: see Thomas Jefferson, Writings, vol iv, 467, cited in Lauterpacht, above n 10, 92. Pufendorf (1632–94) affirms the view that the legislator is subject to the higher law of nature and of reason: Samuel Pufendorf, De Jure Naturae et Gentium Libri Octo (first published 1688, 1934 ed) VIII.i.§§2, 6. ‘The moment he attacks the Constitution of the state the Prince breaks the contract which bound the people to him; and the people become free by the act of the sovereign and henceforth they regard him as an usurper seeking to oppress them’: Emer de Vattel, The Law of Nations or the Principles of Natural Law (first published 1758), transl. Charles G. Fenwick (1916 ed) i, iv, § 51; see also i, iii, §35. Vattel, above n 86, II.iv.§56. ‘To intermeddle in the domestic affairs of another Nation or to undertake to constrain its council is to do it an injury’: Vattel, above n 86, I.iii.§37. Vattel, above n 86, II.i.§7. Christian Wolff, Jus Gentium Methodo Scientifica Pertractatum, transl. Joseph Drake (Clarendon Press: Oxford, 1934) §16. Wolff, above n 90, §256. Wolff, above n 90, §§169. He also said: ‘God himself is capable of punishing a wrong done to himself, nor for that does he need human aid’: §637.

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r­ epublican liberal constitution for each state,93 but said ‘No state shall forcibly interfere in the constitution and government of another state’ unless the state ‘should split into two parts’.94 Beccaria (1738–1794) also criticised the notion that foreign states have the right to punish others for events that take place outside their territories.95 By the middle of the nineteenth century the general principle of non-­ interference in the domestic affairs of another state was well established. The precise limits of this doctrine were, however, unclear. The analogy made by Wolff between the ‘natural rights’ of states and individuals has been rightly criticised as a poor one when it comes to grave human rights abuses.96 A state has no intrinsic value or rights itself. Its value lies in the extent to which it can protect the rights of its citizens. If the abuse is manifest, the principle of noninterference may permit a greater evil to occur. On the other hand, a right of unilateral state action to enforce the law of nature may itself be abused. 4.2 Hobbes and the Rise of Positivism Hobbes (1588–1679) argued that in a state of nature there is “a war of all against all” which can only be held in check by strong government.97 Rebellion is an evil only encouraged by the ancient authors’ praises of the right to invoke some unwritten higher law and even a despotic sovereign is preferable to anarchy.98 Because no court of natural justice exists, neither the people nor other states, but only God, can judge a sovereign.99 St Ambrose, Hobbes said, was wrong to 93

Immanuel Kant, Practical Philosophy (first published in 1795), transl. Mary J. Gregor (Cambridge University Press: Cambridge, 1996) 8:350. 94 Kant, above n 93, 8:346. 95 Beccaria said: ‘The place of punishment can certainly be no other than that where the crime was committed’: Cesare Beccaria, An Essay on Crimes and Punishments (first ­published 1764, 2nd American ed, 1819; Academic Reprints ed, 1953) 135–136. He also said: ‘There are also those who think, that an act of cruelty committed, for example, at Constantinople may be punished at Paris, for this abstracted reason, that he who offends ­humanity should have enemies in all mankind, and be the subject of universal execration, as if judges were to be the knights errant of human nature in general, rather than guardians of particular conventions between men’: 135. 96 See Charles R. Beitz, Political Theory on International Relations (Princeton University Press: New Jersey, 1979) 71–83; and Fernando Tesón, A Philosophy of International Law (Westview Press: Colorado, 1998) 39–47. 97 Thomas Hobbes, Leviathan (first published 1651, J.M. Dent & Sons ed, 1914) and, in particular, I. xv. 98 Ibid. 99 ‘…there being no Court of Naturall Justice, but in the Conscience onely where not Man, but God raigneth’: Hobbes, above n 97, II.xxx, 189.

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condemn the Emperor after the massacre at Thessalonica because to charge a sovereign with crimes against humanity was both impossible and dangerous.100 Following revolutions in America and France in the eighteenth century, an avalanche of criticism fell upon the notion of natural rights, for example by Burke (1729–1797),101 Bentham (1748–1832)102 and von Gentz (1764–1832).103 Positivism began to dominate as legal theory over natural law,104 though the legal theory of positivism does not condemn either rebellion or foreign intervention.105 In the area of criminal law, most clearly in the German legal tradition but also in the Civilist French system, some special rules developed, such as the principle nullum crimen sine lege (no crime without law). In the 1800’s, this principle was developed by von Feuerbach, Enrico Ferri and Franz von Liszt in the German tradition. However, the principle had a tradition before that in the eighteenth century in the writings of Voltaire, Montesquieu, Rousseau and Beccaria who dealt with the ‘principles of legality’.106 This prohibited ex post facto criminal law and required all crimes to be codified with sufficient specificity as a bulwark against the arbitrary rule of judges.107 100 Hobbes said that just as a master cannot do injury to a slave so a State cannot do injury to a citizen: Thomas Hobbes, De Cive: Philosophical Rudiments Concerning Government and Society (first published 1647, Howard Warrender ed, 1983) viii,§7, 119. 101 Burke criticised the French Declaration of 1789 calling it a ‘digest of anarchy’, doubting the wisdom of attempting to define natural rights: see Edmund Burke, Reflections on the French Revolution (J.M. Dent & Sons: London, 1910) 56. 102 Bentham’s most famous phrase was that ‘natural rights is simple nonsense; natural and impresciptible rights [an American phrase], rhetorical nonsense, nonsense upon stilts’: Jeremy Bentham, Anarchical Fallacies (Thoemmes: Bristol, 1995 repr. of the 1843 ed) 491. 103 He said the French Declaration as ‘destructive of its own purposes’: Friedrich von Gentz, Ueber die Deklaration der Rechte (1792), cited in Lauterpacht, above n 10, 125 fn 27. 104 In England this was led by John Austin, The Province of Jurisprudence Determined (first published 1832), David Campbell and Philip Thomas (eds), (Dartmouth Publishing Co: Aldershot, 1998). 105 The legal theory of positivism is merely that a law remains the law even if it offends nature or is immoral; the right to resist remains: see Haim Cohn, ‘The Right and Duty of ­Resistance’ (1968) 1 Human Rights Journal of International and Comparative Law 491. ­Others, such as Hobbes, say it is better to obey the law because it is the law, otherwise anarchy will result if the people are encouraged to disobey any law with which they disagree. This is a philosophical issue, not a legal one. 106 For a review of these writings see Bassiouni, above n 2, 91–97 and 123–140. 107 According to Beccaria, ‘If the interpretation of laws is an evil, their obscurity, which necessarily entails interpretation, is obviously another evil’: Cesare Beccaria, On Crimes and Punishment, transl. David Young (Hackett: Indianapolis, 1986) 12–13. Montesquieu said

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In one sense the criticism of natural rights made by positivists is valid. The laws of nature cannot supply the solution to the problem of protecting a person from the excesses of the state unless they are grounded in some positive law not a mere declaration on the rights of man.108 On the other hand, positivism is not incompatible with subjecting the state to legal controls nor is the principle nullum crimen sine lege incompatible with the concept of crimes against humanity. The answer for the positivist is to make the state subject to a written constitution. This avoids the vice of subjecting the validity of the law to someone’s interpretation of an unspecified and unwritten higher law. Similarly, crimes against humanity can be defined in some written law, including in an international treaty, like any other crime. The real issue is whether it is preferable to accept absolute sovereign immunity rather than to permit subjects to rebel, foreign countries to intervene or international agencies to respond when a state mistreats its people. Every argument in favour of strong government put forward by Hobbes is valid in favour of strong international government (including a strong international criminal law) to prevent states falling into a war of all against all and a state abusing its own people. 4.3 State Practice 4.3.1 Fundamental Rights in State Constitutions From the seventeenth and eighteenth century, the liberal principle that no person may be harmed in his life, health and liberty without due process became enshrined in the state constitutions of many nations. In 1688, England built on Magna Carta with the Habeas Corpus Act, the Petition of the Rights, the Act of Settlement, and the Bill of Rights. The right to be free from arbitrary killing, arrest, and torture found expression in the United States Declaration of Independence (1776), its Constitution (1789), the amendments to it passed two years later and the French Declaration of the Rights of Man (1794). Lauterpacht, writing in 1950, said that the recognition of persons’ fundamental rights

the nation’s judges were only the mouths through which the law spoke, they were unable either to address the law’s force or its rigor: Charles Montesquieu, L’Espirit Des Lois (1748) XI.iii.§127. 108 The most telling complaint made against the concept of natural rights by Bentham, amongst others, is that mere declarations of rights do nothing to protect person’s socalled natural rights because people are no more born free than they are born fully clothed. ­Better to have one Act of Habeas Corpus than a declaration of so-called natural rights.

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existed in the constitutions of so many states that it had become a general principle of the constitutional law of civilised nations.109 4.3.2 The Principle of Non-interference The 1648 Treaty of Westphalia, signed after the Thirty-Years’ War of religion, saw a decline in the exercise of intervention on religious grounds but it did not see a decline in interventions on other grounds.110 Following revolutions in the United States and France, set alight by notions of the inalienable rights of man, monarchical Europe looked on with horror. The British fought a long war against American independence. The powers of Europe tried to intervene against Revolutionary France. In response to such conduct the Jacobin Constitution of 1793 stated: ‘The French people declares itself the friend and natural ally of free peoples; it does not interfere in the government of other nations, it does not allow other nations to interfere in its own’.111 The rest of Europe paid little attention to such notions. Great Britain, Austria, Prussia and Russia formed an alliance, later joined by France, to intervene in other countries to stop revolutionary uprisings.112 Expeditions followed to crush revolutions in Naples, Greece and Spain.113 In such circumstances it is little wonder that liberals such as Kant supported both republican governments and the principle of non-interference at the international level. However, when in 1823, Spain’s South American colonies revolted, the United States adopted the Monroe Doctrine. The Monroe Doctrine was a highly qualified policy of non-intervention. It opposed ‘any interposition for the purposes of oppressing … or controlling in any other manner the destiny of those states whose independence the United States had recognised’.114 In 1823, B ­ ritish Foreign Secretary Canning disclaimed for Great Britain and denied for others, the right to require any changes in the internal institutions of i­ndependent states.115 This principle came thereafter to be accepted by other nations.

109 See Lauterpacht, above n 10. The number has increased since 1950. 110 See Leo Gross, ‘The Peace of Westphalia’ (1948) 42(1) American Journal of International Law 20. 111 See Simon Chesterman, Just War or Just Peace?: Humanitarian Intervention and International Law (Oxford University Press: Oxford, 2001) 22. 112 Ibid. 113 See Sylvester John Hemleben, Plans for World Peace Through Six Centuries (University of Chicago Press: Chicago, 1943) 103. 114 President Monroe’s Annual Message of 2 December 1823: see John Basset Moore, A Digest of International Law (1906) Vol vi, 401–403. 115 Annual Register (1823) lxv, 114: see Chesterman, above n 111, 23.

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Thus, only well after the Treaty of Westphalia did the principle of non-­ interference come to be widely accepted in international relations. Subsequently, the limited formulation of the principle of non-interference adopted by Britain in 1823 left unresolved the right to intervene where a state commits atrocities against its own people. 5

The Laws of Humanity from the Eighteenth Century to World War i

5.1 Humanitarian Interventions The link between humanitarian interventions, being foreign interventions by force to stop or prevent gross abuses of human rights occurring within another state, and crimes against humanity, in its loose sense, is obvious. Both stem from the liberal proposition that persons throughout the world are endowed with certain inalienable rights and a gross violation of such rights is an affront felt by all. The link was made, for example, by Sir Hartley Shawcross,116 us prosecutors117 and military tribunals118 at Nuremberg to explain the juridical ­foundation of crimes against humanity in international law. As Shawcross put it: ‘The fact is that the right of humanitarian intervention by war is not a novelty in international law – can intervention by judicial process then be illegal?’119 This section considers the frequently referred to interventions of the period.120

116 Speeches of the Chief Prosecutors, above n 44. 117 See Taylor Address, above n 45. (Nuremberg) Taylor made the same submissions in United States v von Weizsäcker 13 Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No 10 (‘ccl 10 Trials’). 118 (Nuremberg) See United States v Altstötter et al., reprinted in 3 Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No 10, 954 (1951) (‘The Justice Case’) 981–982. 119 Speeches of the Chief Prosecutors, above n 44. 120 For an account of these interventions: see Sean Murphy, Humanitarian Intervention: The United Nations in an Evolving World Order (University of Pennsylvania Press: Philadelphia, 1996); Michael Reisman and Myres McDougal, ‘Humanitarian Intervention to Protect the Ibos’ in Richard Lillich (ed), Humanitarian Intervention and the United Nations (University Press of Virginia: Charlottesville, 1973) 167; Chesterman, above n 111, 24–35; John N. Moore (ed), Law and Civil War in the Modern World (Johns Hopkins University Press: Baltimore, 1974) 220–221; Ian Brownlie, International Law and the Use of Force by States (Oxford University Press: Oxford, 1963) 338–339; Jean-Pierre Fonteyne, ‘The Customary International Law Doctrine of Humanitarian Intervention: Its Current Validity under the un Charter’ (1974) 4 California Western International Law Journal 203.

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5.1.1 Intervention in Turkish Held Greece in 1827 In 1826–7 Greece, then part of the Turkish Empire, was involved in a revolutionary struggle with the Ottoman Porte.121 Public opinion among the ­European Powers favoured Greece as reports of atrocities and cruelties were received.122 On 8 February 1826 in Great Britain, the Secretary of State for the Colonies reported: But when it is understood, that, whether with the consent of the Porte or not, designs avowed by Ibrahim Pacha to extirpate systematically a whole community, to seize upon the women and children of the Morea, to transport them to Egypt, and to re-people the Morea from Africa and Asia, to change, in fact, that part of Greece from a European state, into one resembling the States of Barbary; His Majesty cannot, as the sovereign of an European state, hear of such an attempt.123 On 6 July 1827 Great Britain, France and Russia signed a treaty which stated that the powers felt compelled to intercede ‘no less by sentiments of humanity, than by interests for the tranquillity of Europe’.124 When Turkey rejected the declaration, a blockade was imposed and the Turkish forces were defeated in battle at Navarino on 20 October 1827. The Ottoman Porte accepted the terms of the London treaty and his Egyptian army withdrew from Morea.125 5.1.2 Intervention in Turkish Held Lebanon in 1860 There were reports of atrocities again in the Ottoman Empire in 1860 in Greater Syria.126 In June and July 1860 several hundred Maronite Christians sought refuge on Mt Lebanon, in a walled town near Damascus under the supposed 121 For an account of this intervention see Fonteyne, above n 120, 208; Chesterman, above n 111, 29–32; Moore, above n 120, 220–221; Brownlie, above n 120, 339. 122 See Jennings and Watts, above n 65, vol i, 441 fn 18: ‘thus Great Britain, France and Russia intervened in 1827 in the struggle between revolutionary Greece and Turkey when public opinion reacted with horror to the cruelties committed during the struggle’. 123 Christopher M. Woodhouse, The Battle of Navarino (Hodder & Soughton: London, 1965) 35–36. 124 Treaty Between Great Britain, France and Russia for the Pacification of Greece, done in ­London, England (entered into force 6 July 1827), preamble, [2], reproduced in Edward Hertslet, The Map of Europe by Treaty (1875) vol 1, 769–770. 125 Chesterman, above n 111, 30. 126 See Louis Sohn and Thomas Buergenthal, International Protection of Human Rights (Bobbs-Merrill: Indianapolis, 1973) 143–180; Brownlie, above n 120, 340; Chesterman, above n 111, 32–33.

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protection of the Turkish Governor.127 Sohn and Buergenthal reproduce the account of an anonymous contemporary writer: [A]fter a conversation between the governor and the Druses, the gate was thrown open and in rushed the fiends, cutting down and slaughtering every male, the soldiers cooperating … I have good reason to believe, after a careful comparison of all the accounts, that from 1,000 to 1,200 males actually perished in that one day.128 On 3 August 1860, under strong compulsion from the western powers, the Turkish Sultan in a conference between Austria, Great Britain, France, Prussia, Russia and Turkey adopted a Convention.129 Under the protocol France landed troops and patrolled the coast of Syria to prevent a recurrence of the massacres.130 At the request of the European powers, Turkey established the Extraordinary Tribunal of Beyrout which, under the supervision of a commission of the Treaty powers, tried some of those responsible for the atrocities.131 5.1.3 us Intervention in Cuba in 1898 In 1898 there were reports of atrocities committed by the Spanish military against the local Cubans fighting for independence including accounts of forcing vast numbers of the Cuban population into concentration camps.132 One report estimated that 200,000 Cubans died in such camps.133 The United States intervened in favour of Cuban independence. President McKinley’s Message to Congress on 11 April 1898 outlined four justifications for the intervention including ‘the cause of humanity’.134 A subsequent joint resolution of Congress stated: ‘The abhorrent conditions which … have shocked the moral sense of the

127 See John Merriam, ‘Kosovo and the Law of Humanitarian Intervention’ (2001) 33 Case Western Reserve Journal of International Law 111, 119 fn 44. 128 Sohn and Buergenthal, above n 126, 145. 129 Convention Between Great Britain, Austria, Prussia, Russia and Turkey, respecting ­Measures to be Taken for the Pacification of Syria, done in Paris, France (entered into force 5 ­September 1860), vol 2, 1455, preamble [1], reproduced in Hertslet, above n 124. 130 Merriam, above n 127, 119. 131 See Sohn and Buergenthal, above n 126, 165; Schwarzenberger, above n 74, 21. 132 See Murphy, above n 120, 55–56; Fonteyne, above n 120, 206; Brownlie, above n 120, 46; Chesterman, above n 111, 33–35; Reisman and McDougal, above n 120, 182–183; Sohn and Buergenthal, above n 126, 180. 133 Robert Ferrell, American Diplomacy: A History (3rd ed, Norton: New York, 1975) 350. 134 Moore, above n 120, Vol 6, 219–220.

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people of the United States have been a disgrace to Christian c­ ivilisation… .135 After a short military engagement, Spain conceded defeat and Cuba became independent. The relevance of the Cuban intervention to crimes against humanity, in its non-technical sense, is demonstrated by the remarks of President Theodore Roosevelt (who fought in Cuba) in his famous State of the Union address in 1904: …there are occasional crimes committed on so vast a scale and of such particular horror as to make us doubt whether it is not our manifest duty to endeavour at least to show our disapproval of the deed and our sympathy with those who have suffered by it. …in extreme cases action may be justifiable and proper. What form the action shall take must depend upon the circumstances of the case; that is, upon the degree of the atrocity and upon our power to remedy it. The cases in which we could interfere by force of arms as we interfered to put a stop to intolerable conditions in Cuba are necessarily very few. Yet … it is inevitable that such a nation should desire eagerly to give expression to its horror on an occasion like that of the massacre of the Jews in Kishenef, or when it witnesses such systematic and long extended cruelty and oppression of which the Armenians have been victims, and which have won for them the indignant pity of the civilised world. …[C]hronic wrongdoing, or an impotence which results in a general loosening of the ties of civilised society, may in America, as elsewhere, ultimately require intervention by some civilised nation, and in the Western Hemisphere the adherence of the United States to the Monroe doctrine may force the United States, however reluctantly, in flagrant cases of such wrongdoing or impotence, to the exercise of an international police power.136 5.1.4

Some Other Interventions of the Nineteenth and Twentieth Centuries In 1877–8 Russia declared war upon the Ottoman Porte relying upon Turkey’s alleged mistreatment of the Christian populations in Bosnia, Herzegovina and Bulgaria.137 In 1913, Bulgaria, Greece and Serbia intervened in M ­ acedonia.

135 Joint Resolution of April 20 1898 [Res. 24] 30 Stat. 738 (Spanish-American War). 136 State of the Union Message, 6 December 1904: see Moore, above n 120, vol 6, 596. 137 See Murphy, above n 120, 54–56; Moore, above n 120, Vol 6, 3; Chesterman, above n 111, 27; Fonteyne, above n 120, 211–212; Fernando Tesón, Humanitarian Intervention: An ­Inquiry

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Again, protection of the Macedonian Christians was given as a reason.138 Whilst there was mistreatment of the Christian population in the Balkans under Ottoman rule,139 most writers conclude that territorial conquest was the primary motive for these interventions.140 In addition, there were many instances of complaints by the western powers about Turkey’s alleged mistreatment of its Christian population without any military intervention – Great Britain in 1843 against the execution of apostates from Islam141 and in 1866 on behalf of the Christians of Crete;142 ­Austria-Hungary and Russia in 1903 on behalf of the Christians of Macedonia;143 the United States in the period 1904–1914, and Russia in 1913, both on behalf of the Armenians.144 5.1.5 Conclusion How do these instances of ‘humanitarian intervention’ inform us about crimes against humanity, in its loose sense? Five points can be made. (a) The Principles of Sovereignty and Non-interference The oft-stated premise that the Treaty of Westphalia ‘signalled a new political commitment to sovereignty, heralding the development of a new norm of non-intervention’145 is something of an exaggeration, particularly where grave breaches of human rights are involved. Throughout the period from 1648 to World War i and even 1939, nations invoked exceptions to such a norm for conduct said to be an affront to ‘the sentiments of humanity’.146 For e­ xample, at

138 139

140 141 142 143 144 145 146

into Law and Morality (Transnational Publishers: New York, 1988) 178; Reisman and ­McDougal, above n 120, 182; Stowell, above n 36, 128–131. See Tesón, above n 137, 178; Fonteyne, above n 120, 213; and Chesterman, above n 111, 27 fn 148. Christian inhabitants were exhorted to convert to Islam or they faced extreme taxation, subjugation and even execution: see Michael P. Scharf, Balkan Justice: The Story behind the First International War Crimes since Nuremberg (Carolina Academic Press: Durham, 1997) 22. Great Britain at the time referred to the Russian intervention as a ‘power grab’: see ­Murphy, above n 120, 54–56. See Schwarzenberger, above n 74, 20–21. See Fonteyne, above n 120, 210–211; Reisman and McDougal, above n 120, 181; and Chesterman, above n 111, 25 fn 132. See Fonteyne, above n 120, 212–213; Reisman and McDougal, above n 120, 183; and ­Chesterman, above n 111, 25 fn 133. See Chesterman, above n 111, above n 108, 25–26; Sohn and Buergenthal, above n 123, ­181–194; and Brownlie, above n 120, 340. Chesterman, above n 111, 42. Treaty Between Great Britain, France and Russia for the Pacification of Greece, above n 124.

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the Peace Conference of 1856 which was considering alleged misrule in Naples, the British representative, Clarendon, acknowledged the principle of noninterference in the internal affairs of other states, but affirmed exceptions to the rule which allowed foreign powers the right and duty to demand improvements of governments.147 (b) Crimes Which Shock the Conscience of Humanity In 1905 Oppenheim said ‘public opinion and the attitude of the Powers are in favour of such [humanitarian] interventions’.148 This is of significance in itself. It supports the basic liberal premise that gross abuses of human rights do in fact shock the conscience of humanity and are felt throughout the world. For example, British Foreign Secretary Palmerston in 1833 relied upon ‘the ground of humanity’ as justification for its protest to Brazil about that country’s treatment of slaves.149 (c) The Content of Crimes against Humanity Crimes against humanity, in its non-technical sense, may be evidenced by the ‘crimes’ which prompted the interventions discussed. These generally involved large-scale violations of human rights such genocide in Morea, widespread and systematic murder, religious persecutions, deportations and arbitrary internment in inhumane conditions. The atrocities were often, though not ­always, the result of an explicit state policy. State impotence or inaction in the face of atrocities being committed by others was also regarded as a sufficient ground for intervention in the case of Morea and the Lebanon. It does of course still require a leap of faith to treat such interventions as evidence of the existence of an international crime as such. For example, Brownlie writes that the prevention of racial extermination in Morea could not be discussed ‘in terms of a legal concept which probably did not exist at the time’.150 Chesterman goes further to state that Brownlie is ‘clearly correct’ to say there was an absence of a customary norm prohibiting genocide at the time.151 It is not immediately clear why racial extermination and the mass deportation of an entire population (today called genocide) could not be a ‘legal concept’ at the time. It was recognised publicly by three civilised nations as being contrary to the sentiments of humanity which justified military ­intervention. The 147 148 149 150 151

Schwarzenberger, above n 74, 21. Lassa Oppenheim, International Law (Longman: London, 1905) vol 1, 186. Schwarzenberger, above n 74, 20. Brownlie, above n 120, 339. Chesterman, above n 111, 30.

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­intervention had the support of a number of leading publicists, discussed further below. What may be regarded as missing is the concept of individual criminal responsibility, as opposed to state responsibility – a question the international community had to return to after the First World War. It is significant that the European Powers secured the conduct of criminal trials under their supervision after their intervention in Lebanon. (d)

Was the Right of Humanitarian Intervention Part of Customary International Law? According to Brownlie, a majority of publicists at the time recognised the right.152 Chesterman, after a comprehensive review of such writers, says a majority is only arrived at by combining those who assert the right exists with those who say such interventions are morally blameless, but essentially outside international law.153 His conclusion is that ‘the status of humanitarian intervention at the start of the twentieth century was unclear’.154 This was also the conclusion of Oppenheim.155 On the other hand, Fonteyne, like the International Law Association,156 writes that whilst divergent views existed as to when humanitarian intervention could be instituted ‘the principle itself was widely, if not unanimously, accepted as an integral part of customary international law’.157 If one assumes such a principle existed in customary international law at the time, then it adds force to the view that crimes which justify humanitarian interventions are crimes in international law. (e) The Laws of Humanity and of Nations Whilst Grotius referred to the ‘laws of nature and nations’, several writers on international law in the nineteenth century referred to the interests, rights, grounds or laws of ‘humanity’, but their sense, at times, appears to be the same. Wheaton in 1836 referred to a right of foreign interference ‘where the general 152 153 154 155 156

Brownlie, above n 120, 338. Chesterman, above n 111, 35–36. Chesterman, above n 111, 35. Oppenheim, above n 148, vol 1, 186–187. ‘The doctrine of humanitarian intervention appears to have been so clearly established under customary law that only its limits and not its existence is subject to debate’: see International Law Association, ‘The International Protection of Human Rights by General International Law’ in International Commission on Human Rights, Interim Report of the Subcommittee (1970) 11. 157 Fonteyne, above n 120, 235. See also Ellery C Stowell, ‘Humanitarian Intervention’ (1939) 33(4) American Journal of International Law 733.

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interests of humanity are infringed by the excesses of a barbarous and desperate government’.158 Antoine Rougier in 1910 justified humanitarian intervention for acts contrary ‘aux lois de l’humanité’.159 Arntz in 1875 said ‘however worthy of respect the rights of sovereignty and independence of states may be, there is something even more worthy of respect, namely the law of humanity or of human society that must not be violated’.160 Hershey in 1918 said forcible interference ‘has been justified on grounds of humanity’ ‘where great evils existed, great crimes were being perpetrated, or where there was a danger of race extermination’.161 Similarly, Oppenheim in 1905, whilst not endorsing the position, referred to the fact that many jurists supported interventions ‘in the interests of humanity’.162 De Martens in 1883 referred to interventions to stop persecutions and massacres as being justified ‘by common religious interest and by considerations of humanity’.163 The publicists who referred to the ‘laws of humanity’ frequently did not speak in terms of international crimes (a term of uncertain meaning at the time)164 but the majority of the discourse may be regarded as containing such an underlying premise. 5.2 Slavery as a Crime against Humanity In 1772 Lord Mansfield in England held that slavery was unlawful on the soil of England.165 This was not a popular judgment at the time.166 By 1807, England 158 Henry Wheaton, Elements of International Law (Carey, Lea & Blanchard: Philadelphia, 1836) II.i.§69, 95. 159 ‘[T]o the laws of humanity’: Antoine Rougier, ‘La théorie de L’intervention d’humanité’ (1910) 17 Revue Générale de Droit International Public 468, 472. 160 See Gustave Rolin-Jaequemyns, ‘Note sur la théorie du droit d’intervention’ (1875) 8 Revue du droit international et de la législation comparée 673, 675. 161 Amos S. Hershey, The Essentials of International Public Law (rev. ed., Macmillan Co: New York, 1927) 239. 162 Oppenheim, above n 148, vol 1, 186–187. 163 Fedor de Martens, Traité de droit international, transl. Alfred Léo (A. Chevalier-Maresq: Paris, 1883) vol 1, 398. 164 There was reference at the time to offences against the law of nations such as in Article 1, Section 8, clause 10 of the Constitution of the United States, and in Blackstone’s Commentaries, which listed piracy, violations of safe conduct and infringement of the rights of ambassadors: above n 53, vol iv, v. 165 Lord Chief Justice Mansfield said: ‘The air of England is too pure for any slave to breathe. Let the black go free’: see Keith Mason, Constancy & Change (Federation Press: Sydney, 1990) 77. 166 At the time slavery was widely practised on colonial plantations and according to Mason there were 15,000 slaves then in England: Mason, above n 165, 77.

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led a legislative attack on the slave trade, banning its ships from engaging in the trade.167 For most of the nineteenth century the British Navy liberated the victims of Arab slavers by intercepting ships, freeing the victims and educating them in schools on the Seychelles.168 The first international declaration about slavery occurred in 1815 at the Congress of Vienna. It stated that slavery was ‘repugnant’ to the values of the civilised international community.169 Subsequent treaties outlawing slavery included the Treaty of London of 20 December 1841, the Treaty of Washington of 7 April 1862 between the United States and the United Kingdom, and The General Act of Brussels of 2 July 1890.170 By 1945 there were 26 international instruments prohibiting slavery and slavery related practices,171 the most significant being the widely ratified Slavery Convention of 1926.172 Based upon these treaties, it is often said that slavery is an international crime173 and was by 1945.174 In an article written in 1906, Robert Lansing, a former United States Secretary of State, wrote that the slave trade had become a ‘crime against humanity’ – possibly the first use of the term as such in the international arena.175 The prohibition against slavery within a nation’s t­ erritory, 167 See Robertson, above n 66, 13. 168 Robertson, above n 66, 14. 169 Declaration Relative to the Universal Abolition of the Slave Trade, done in Vienna, Austria (entered into force 8 February 1815), 63 Consolidated Treaty Series 473. 170 See M. Cherif Bassiouni & Edward M. Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law (Martinus Nijhoff: Dordrecht, 1995) 132–137 where these treaties are reproduced. 171 See M. Cherif Bassiouni, International Criminal Law Conventions and their Penal Provisions (Transnational Publishers: New York, 1997) 637–734 where the relevant parts of many of the treaties are reproduced. 172 Slavery, Servitude, Forced Labour and Similar Institutions and Practices Convention of 1926, done in Geneva, Switzerland, opened for signature 25 September 1926, 60 l.n.t.s. 253 (entered into force 9 March 1927). 173 Bassiouni says ‘The cumulative effect of these instruments establishes that slavery, slave related practices and forced labor were prohibited before 1945 under conventional international law … These instruments also establish the customary international law basis for the prohibition of these practices and for their inclusion as part of “crimes against humanity”’: Bassiouni, above n 2, 309–310. See also M. Cherif Bassiouni, ‘Enslavement as an International Crime’ (1991) 23 New York University Journal of International Law and Politics 445; and Jennings and Watts, above n 65, 979–982. 174 For example, Bassiouni says ‘no-one can doubt’ that even before 1945 slavery constituted a violation of ‘general principles of law’: Bassiouni, above n 2, 309–310. 175 Robert Lansing, ‘Notes on World Sovereignty’ (1921) 15(1) American Journal of International Law 13, 25. Clark also gives this opinion, noting that the article was written in 1906: Clark, above n 2, 179.

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unlike piracy, however, came without any rules governing jurisdiction or the enforcement of such crimes. Hence, like piracy, it provides something of an imperfect precursor to ‘crimes against humanity’ as understood in its subsequent technical sense. 5.3 War Crimes and the Laws of Humanity The discourse on the ‘laws of humanity’ exerted its influence on the laws of war. In 1868, by the Saint Petersburg Declaration, the use of certain weapons in times of war was declared to ‘be contrary to the laws of humanity’.176 Following the First Hague Convention of 1899,177 came the 1907 Hague Convention, being a comprehensive convention on the rules of war on land. It provided in its Preamble: Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilised people, from the laws of humanity, and the dictates of the public conscience.178 This became known as the Martens Clause after Fyodor Martens who drafted it. According to Schwelb the ‘laws of humanity’ had thereby become a source of the law of nations itself.179 Bassiouni says the Martens Clause, by its reference to the ‘laws of humanity’, draws upon a collective experience of the conduct of armed conflict and in particular the protection of civilians by ­combatants.180 Alternatively, as argued above, the ‘laws of humanity’ in the Martens Clause 176 Declaration Renouncing the Use, in Time of War, of Certain Explosive Projectiles, done in St. Petersburg, Russia, 29 November 1868 and 11 December 1868, 138 Consolidated Treaty Series 297 (entered into force 11 December 1868). 177 Convention with Respect to the Laws and Customs of War on Land, done in The Hague, The Netherlands, opened for signature 29 July 1899, 187 Consolidated Treaty Series 429 (entered into force 4 September 1900), Preamble, [9]. 178 Convention Respecting the Laws and Customs of War on Land and its Annex: Regulation Concerning the Laws and Customs of War on Land, done in The Hague, The Netherlands, opened for signature 18 October 1907, 187 Consolidated Treaty Series 227 (entered into force 26 January 1910), Preamble, [8]. 179 Egon Schwelb, ‘Crimes Against Humanity’ (1946) 23 British Year Book of International Law 178, 180. 180 See Bassiouni, above n 2, 60–61.

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draws upon the tradition of natural law and confirms that in times of war states ‘remain’ bound by those minimal obligations of humanity which it was assumed the law of nations already imposed on states in times of peace. 6

From 1914 To 1939

6.1 Atrocities in Armenia and World War i It is estimated a million Armenians under Turkish rule lost their lives during a genocide which pre-dated the outbreak of the First World War.181 In 1913 ­Russia’s Foreign Minister warned of possible intervention.182 In a joint declaration on 28 May 1915 the Governments of France, Great Britain and Russia denounced the Ottoman Government’s massacre of the Armenian population as ‘crimes against humanity and civilisation’.183 It stated that all members of the Turkish Government and its agents would be held responsible.184 After World War i a commission from ten Allied countries was established to report on war crimes. The Greek delegation presented to the Commission the Armenian Memorandum which quoted the 1915 Declaration of France, Great Britain and Russia.185 The Commission found that in respect of its Armenian and Greek s­ peaking civilians Turkey had engaged in internments under inhumane conditions, the forcible deportation of several million people, massacres, torture, rape, ­enforced prostitution and pillage.186 There was also a charge of pillage against Austrian troops for their conduct at Gorizia, an Austrian town.187 The Commission concluded that these acts, whilst not war crimes, were breaches of

181 See Vahakn Dadrian, ‘Genocide as a Problem of National and International Law: The World War i American Case and its Contemporary Legal Pontifications’ (1989) 14 Yale Journal of International Law 221, 223; and David Matas, ‘Prosecuting Crimes Against Humanity: The Lessons of World War i’ (1990) 13 Fordham International Law Journal 86. 182 G.P. Gooch and Harold Temperly (eds), British Documents on the Origins of the War 1898– 1914 (hmso: London, 1926) vol 10, Part i, no. 429 (at 381–382) and no. 494 (at 441–442). 183 The statement is reproduced in Schwelb, above n 179, 181. 184 Schwelb, above n 179, 181. 185 Schwelb, above n 179, 181. 186 The Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, Report presented to the Preliminary Peace Conference, 29 March 1919, reproduced in (1920) 14 American Journal of International Law 95 (‘Commission’s Report’), at Annex i and summarized in the body of the Report at 114–115. 187 Commission’s Report, above n 186; see also Schwelb, above n 179, 181.

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international law, described as ‘offences’ against ‘the laws of humanity’.188 The Commission called for the establishment of a High Tribunal to try offenders189 according to ‘the principles of the law of nations as they result from the usages established amongst civilised peoples, from the laws of humanity and from the dictates of public conscience’.190 A Memorandum of Reservations was presented by the two United States’ representatives.191 They objected to the Report’s use of ‘laws of humanity’ writing: …a judicial tribunal only deals with existing law and only administers existing law, leaving to another forum infractions of the moral law and actions contrary to the laws and principles of humanity … the laws and principles of humanity are not certain, varying with time, place, and ­circumstance … There is no fixed and universal standard of humanity.192 The Treaty of Sèvres with Turkey, signed on 10 August 1920 by 21 nations, called for the trial and punishment of those responsible for the Armenian genocide.193 The Allied Powers reserved ‘to themselves the right to designate the Tribunal’ to be recognised by Turkey.194 Article 144 required the Turkish Government to repatriate those driven from their homes by fear of massacre from 1 January 1914 – a date before the commencement of war.195 This Treaty was never ratified and in the end there were no international prosecutions arising out of World War i. Instead the Treaty of Lausanne included a Declaration of Amnesty for all offences committed between 1914 and 1922196 which covered

188 189 190 191 192

193

194 195 196

Commission’s Report, above n 186, in the heading to Annex 1, 127. Commission’s Report, above n 186, 123. Commission’s Report, above n 186, 122; see also Bassiouni, above n 2, 65. Commission’s Report, above n 186, 127. There was a separate reservation by Japan on similar grounds: 151. Commission’s Report, above n 186, 144. The American Representatives also objected to a Head of State being subjected to criminal responsibility saying this would deny ‘the very conception of sovereignty’: 136. Treaty of Peace between the Allied Powers and Turkey, done in Sèvres, France, opened for signature 10 August 1920 (‘Sèvres Treaty of Peace’), British Treaty Series No 11 (1920) (never ratified) in particular, Arts 226 and 230. Sèvres Treaty of Peace, above n 193, Art 230. Sèvres Treaty of Peace, above n 193, Art 144. Treaty of Peace Between the Allied Powers and Turkey, done in Lausanne, Switzerland, opened for signature 24 July 1923, 28 l.n.t.s. 11 (entered into force 24 July 1923).

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events after the conclusion of the war, said to be connected with the political events of that period.197 In early 1919 Turkey did establish a Special Military Tribunal which prosecuted and convicted a number of offenders between April 1919 and July 1920198 but many were later released to assuage local opinion.199 When Great Britain requested the transfer of certain criminals to British custody200 the Turkish Government responded that such transfer ‘would be in direct contradiction with its sovereign rights in view of the fact that by international law each state has the right to try its own nationals’.201 In May 1919, Britain seized 67 detainees from the military prison202 but in the end they were released.203 Bassiouni204 and Clark205 suggest that the opinio juris described above dealing with the atrocities in Armenia should be seen as having its ­intellectual or historical antecedents in the laws of war and the Preamble to the 1907 Hague Convention. This seems too narrow an interpretation. The war only ­serendipitously intersected with the atrocities in Armenia, which had been the subject of complaint and threatened intervention before the war commenced. Clark rightly points out that there was no attempt in the Declaration of 1915 to link the atrocity with the war.206 In two instances, described above, the Allies went beyond the dates of the war in their treatment of the events in Armenia. 6.2 Events between the Wars Following the failure effectively to prosecute war criminals after the First World War there were some attempts to establish an international criminal 197 See Schwelb, above n 179, 182. 198 See Dadrian, above n 181; Timothy McCormack, ‘Their Atrocities and Our Misdemeanours’ in Mark Lattimer and Philippe Sands (eds), Justice For Crimes Against Humanity (Hart Publishing: Oxford, 2003) 107, 123–125. 199 When Kemal came to power the prosecutions stopped and those convicted were released such that none of the defendants served out their full sentences: McCormack, above n 198, 123–125. 200 Bassiouni, above n 2, 67 fn 103. 201 Reprinted in Dadrian, above n 181, 285. 202 Dadrian, above n 181; see also Bassiouni, above n 2, 67, fn 103. 203 Ibid. Lord Curzon said ‘I think we made a great mistake in ever letting these people out. I had to yield at the time to a pressure which I always felt to be mistaken’: James F. Willis, Prologue To Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First World War (Greenwood Press: London, 1982) 163. 204 See Bassiouni, above n 2, Chapters 2 (in particular at 69–72) and 4. 205 Clark says the 1915 Declaration of Britain, France and Russia on Armenia has its intellectual antecedents in the laws of war and the Martens Clause to the Hague Convention: see Clark, above n 2, 178. 206 Clark, above n 2, 178.

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court.207 The League of Nations’ Advisory Committee of Jurists in 1921 recommended that the League consider the President’s proposal for setting up a High Court of International Justice to try ‘crimes against public order and against the universal law of nations’ said to be already recognized in international law.208 The Committee on the Permanent Court of International Justice of the First Assembly of the League of Nations in 1920, however, said ‘There is not yet any international penal law recognised by all nations’.209 The Rapporteur of the Third Committee stated ‘there was no defined notion of international crimes and no international Penal Law’210 and no agreement was reached on the proposal.211 The international community in the aftermath of the First World War attempted to construct a system for the protection of national minorities by various bilateral treaties. This only applied to a limited number of countries,212 though it did produce some interesting decisions such as the famous M ­ inority Schools in Albania decision of the Permanent Court of International Justice which held that the treaties prohibited the banning of the use of minority languages in schools.213 According to Lauterpacht, however, it failed to afford protection in many cases of flagrant violations and the bilateral treaty between Poland and Germany expired in 1937.214

207 According to Lippman, calls for the establishment of an international penal code began after the inadequate results of the Leipzig trials after World War One where only a handful of war criminals were tried and frequently acquitted before German courts: Matthew Lippman, ‘Nuremberg: Forty-five Years Later’ (1991) 7 Connecticut Journal of International Law 1, 12–16. 208 McCormack, above n 58, 51–53. The proposal was not accepted by all of the Committee. 209 Schwarzenberger, above n 74, 23. 210 McCormack, above n 58, 52. 211 McCormack, above n 58, 51–55. 212 Peace treaties between the Allied Powers and Poland, Romania, Czechoslovakia and the Serb-Croat-Slovene State sought to guarantee equal protection of life and liberty to all inhabitants: see William Schabas, Genocide in International Law: The Crimes of Crimes (Cambridge University Press: Cambridge, 2000) 23. The Upper Silesian Convention of May 1922, between Germany and Poland provided for a tribunal to entertain actions brought by nationals of either party against their own state: see Lauterpacht, above n 10, 50–51. According to Schabas this led the Nazis to delay applying its Nuremberg laws discriminating against Jews of the region until the Convention’s expiry in 1937: Schabas, 24. 213 This was because that state had to have regard to ‘preserving the characteristics which distinguish them [the minority] from the majority, and satisfying the ensuring special needs’: Minority Schools in Albania (Advisory Opinion), Permanent Court of International Justice, p.c.i.j. (ser. A/B) No. 64 (6 April 1935), [17]. 214 Hersch Lauterpacht, An International Bill of the Rights of Man (Columbia University Press: New York, 1945) 219.

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Between the wars the view that only states are subjects of international law reached its height in the textbooks of the time.215 This led to the notion, for example, that if a nation’s treatment of an alien’s life, liberty or possessions falls below certain minimal standards, upon protest by the foreign state (not the individual), the law of nations will be engaged and the host state will be in breach of its international obligations.216 It will not breach international law, however, if a state mistreats its own nationals. On the whole, the notion of an international criminal law had not progressed very far when war broke out again. 7 Conclusion This chapter has argued that the concept of crimes against humanity, in its non-technical sense, has a long and rich tradition independent of the laws of war. It rests on an idea with a continuous thread in legal and political thought since the antiquities – the idea that certain values are both universal to the human condition and ultimately superior to the state and any of its laws. As explained by Locke and enshrined in the constitutions of most countries of the world, no state (or person) is entitled to commit a serious and manifestly arbitrary – meaning without due process of law – attack upon a person’s life, liberty, well-being or possessions. Despite this rich tradition, frequently scholars have placed the genealogy of crimes against humanity in the laws and customs of war, an outgrowth of war crimes, rather than the laws of humanity or natural law.217 The more relevant precursor to what in 1945 became crimes against humanity in its strict sense is the doctrine of humanitarian intervention (considered in Section 5.1), not the 215 Lauterpacht, above n 10, 3–47. For example, Lauterpacht’s 1937 edition of Oppenheim’s International Law, left intact the conclusion that the law of nations did not recognize the so-called ‘rights of man’: Hersch Lauterpacht, Oppenheim’s International Law: A Treatise, (5th rev. ed, Longmans: London, 1937) 509. Similarly, Phillip Brown, when referring to the notion of individuals having rights enforceable against a person’s own state, stated that this ‘repudiates the classic doctrine that states alone are subjects of international law’: Phillip Marshall Brown, ‘The New York Session of the Institut de Droit International’ (1930) 24(1) American Journal of International Law 126, 127. 216 Brown, above n 215, 7; Henry J. Steiner and Philip Alston, International Human Rights in Context: Law, Politics and Morals (2nd ed, Oxford University Press: Oxford, 2000) 81–90. 217 For example, see: Clark, above n 2, 177–179; Schwelb, above n 179, 179–183; Matthew Lippman, ‘Crimes Against Humanity’ (1997) 17 Boston College Third World Law Journal 171, 173, where the author says the ‘history of crimes against humanity begins with the Martens Clause’; and Bassiouni, above n 2, Chapters 2 and 4.

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Preamble to the Hague Conventions or the laws of war – the traditional starting point for the history of crimes against humanity. The doctrine of humanitarian intervention, best enunciated in President Roosevelt’s 1904 address,218 with all of its unresolved status in international law, represents an attempt to reconcile the notion of universal crimes based upon natural law with an international system made up of equally sovereign states. Similarly, the concept of ‘crimes against humanity’, as later chapters make clear, is not just about describing evil conduct, it is equally about piercing the veil of state sovereignty and invoking an international criminal jurisdiction because the perpetrators enjoy impunity due to state complicity, impotence or indifference. This chapter has also argued that it is inaccurate to suggest, as some have, that the inviolability of acts within a sovereign’s own territory is at the heart of modern international legal theory since its enunciation after the Treaty of Westphalia.219 The so-called Westphalian model of sovereignty did not occur immediately after the Treaty of Westphalia was signed. This was a myth invented much later to exaggerate the lineage of the principle of non-­interference.220 It was only in the middle of the nineteenth century that non-interference clearly became the dominant view. It is grounded in the fear that to permit states to interfere in the affairs of other states, including by invoking an extraterritorial criminal jurisdiction, would provide ‘ambitious men pretexts without number’.221 In addition, there was the concern for the rights of defendants raised by positivists who complained that the vagaries of a criminal jurisdiction based upon the ‘laws of humanity’ would offend the principle nullum ­crimen sine lege. Even so, neither the principle of non-interference nor the principle nullum crimen sine lege ever precluded action in cases of widespread and grave human rights abuses. These principles always had to compete with another principle with a longer tradition. This held, in the words of Grotius, that in the case of manifest atrocities ‘the right of human social connection is not cut off’.222 Whilst the concept of crimes against humanity, in its non-technical sense, has a tradition over many centuries, its status in international law in 1945 was replete with uncertainty and controversy. It was only the extraordinary events of the Second World War which led to crimes against humanity, in its strict sense, entering positive international law for the first time. 218 219 220 221 222

State of the Union Message, above n 136. Chesterman, above n 111, 42. Gross, above n 110. Above n 90. Above n 46.

chapter 2

The Nuremberg Precedent The defendants denounce the law under which their accounting is asked. Their dislike for the rule which condemns them is not original. It has been remarked before “that no man e’er felt the halter draw, With good opinion of the law”.1

∵ 1 Introduction The chilling parallels between the Armenian genocide before the First World War and the genocide of Jews before the Second World War may be more than mere coincidence. Hitler, in a speech to his generals before invading P ­ oland, is alleged to have exhorted them to strike hard, saying: ‘Who after all is t­ oday speaking about the destruction of the Armenians?’2 This time the Allies made 1 Closing address of Justice Jackson (Counsel for the United States at the Nuremberg Trials), Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945–1 October 1946 (26 July 1946) vol xix, 398 (‘Trial of the Major War Criminals’). The quotation comes from John Trumbell’s poem, McFingal (1776) iii.489. 2 The statement is taken from notes which purports to summarise a speech delivered by Hitler to Army Corps Commanders and Commanding Generals at Obersalzberg on 22 August 1939 on the eve of the Polish invasion: ‘Our strength lies in our quickness and our brutality; ­Genghis Khan has sent millions of women and children into death knowingly and with a light heart. History sees in him only the great founder of States … [a]nd so for the present only in the East I have put my death-head formations in place with the command relentlessly and without compassion to send into death many women and children of Polish origin and language. Only thus we can gain the living space we need. Who after all is today speaking about the destruction of the Armenians?’: quoted in M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law (2nd rev. ed., Kluwer Law International: The Hague, 1999) 68, fn 107, citing the statement reported in 7 Documents On British Foreign Policy, 1919–1939 (3rd ser.), Edward Woodward and Rohan Butler (eds), Documents on British Foreign Policy 1919–1939 (9 vols., 1949–1955) 258. At the Nuremberg Trial the prosecution sought to ­introduce it into evidence but when its authenticity could not be verified, the Tribunal r­ ejected it. Dadrian puts forward a strong case for its veracity: Vahakn Dadrian, ‘The Holocaust and Legal Interconnections Between the Armenian Genocide and the Jewish © koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004347687_003

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good their promise to bring to trial the perpetrators. But when the Allies ­defined crimes against humanity in Article 6(c) of the London Charter,3 were they creating a new offence or merely codifying an existing one? What was the juridical basis in international law for the first trial for crimes against humanity at Nuremberg? This chapter explores these questions. The discussion in Chapter 1 suggests there were three possible precedents for the Nuremberg Trial in international law. First, there was the reference to ‘the laws of humanity’ in the Preamble to the Hague Convention of 1907,4 the traditional starting point for most analyses of crimes against h ­ umanity in ­international law. After the First World War, however, the United States ­objected to any international prosecutions based upon the so-called ‘laws of ­humanity’ because it had no specific content, and the proposal to try the Turks went ­nowhere.5 u.s. Supreme Court Justice Robert Jackson, the head of the American delegation to the London Conference which drafted the Charter, made reference to the Preamble to the 1907 Hague Convention, but, u ­ ltimately, he did not invoke this precedent to which his own government had earlier objected.6 Secondly, the doctrine of humanitarian intervention, which Chapter 1 argued was the strongest precedent for the concept of crimes against humanity prior to the Second World War.7 The difficulty which this precedent raised for the Allies was that Hitler relied upon this doctrine at the commencement of the Second World War to justify his intervention in Czechoslovakia and the Allies.8

3

4

5 6

7 8

­Holocaust: From Impunity to Retributive Justice’ (1998) 23 Yale Journal of International Law 504, 538–541. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, done in London, England, opened for signature 8 August 1945, 82 unts 280 (entered into force 8 August 1945), to which was annexed the Charter which established the Nuremberg Tribunal (hereinafter ‘the London Agreement’ and ‘London Charter’ respectively). Convention Respecting the Laws and Customs of War on Land and its Annex: Regulation Concerning the Laws and Customs of War on Land, done in The Hague, The Netherlands, opened for signature 18 October 1907, 187 Consolidated Treaty Series 227 (entered into force 26 ­January 1910), Preamble, [8]. See Chapter 1, Section 6. See Section 2 below; Bassiouni, above n 2, 17–19. See also Kriangsak Kittichaisaree, International Criminal Law – Beyond the Nuremberg Legacy (Oxford University Press: Oxford, 2001) 85–86. See Chapter 1, Sections 5.1 and 7. See letters from Sir N Henderson to Viscount Halifax, 15 March 1939 in Edward Woodward and Rohan Butler (eds), Documents on British Foreign Policy 1919–1939, Third Series, vol iv, 1939, no. 257 and 259, 256–257.

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Thirdly, there was the natural law tradition which says that inherent in the human condition is the need for all persons to be protected from any s­ erious and arbitrary attack on a person’s life, liberty, wellbeing and possessions. ­Jackson, in an early draft, did invoke ‘the principles of criminal law as they are generally observed in civilised states’.9 In the result, however, the Allies drafted a definition of crimes against ­humanity which contained an element with no real precedent at all. They ­required that the crime be committed in connection with either acts of ­international aggression or war crimes. This was the so-called ‘war nexus’. This chapter traces the history of the drafting of Article 6(c) of the London Charter followed by a consideration of the Nuremberg Trial and Judgment. The Tokyo Charter10 is also briefly examined. An analysis is undertaken of the meaning and content of crimes against humanity under the law of the London Charter and the Nuremberg Judgment. Consideration is also given to whether Article 6(c) codified existing crimes or legislated for new offences under international law and the relationship between the principle nullum crimen sine lege and the concept of crimes against humanity. The final section considers the entry of Article 6(c) into international customary law after 1945 and some concluding remarks are made about the introduction of the ‘war nexus’ to the nascent concept of crimes against humanity in international law. 2

The Drafting of the London Charter

The Declarations of the Allies and the Work of the United Nations War Crimes Commission (unwcc) During the Second World War, as in the First World War in respect of Armenia, the Allies issued a number of declarations condemning the persecution of the Jews and other atrocities of the Nazis in occupied territories and warned that those responsible would be held to account.11 At first, the declarations did not

2.1

9 10

11

See text accompanying note 31. Proclamation of the Supreme Commander for the Allied Powers, 19 January 1946, tias 1589, 4 Bevans 20, 27, to which was appended the Charter of the International Military Tribunal for the Far East, done in Tokyo, Japan, opened for signature 19 January 1946 (entered into force 19 January 1946) (‘Tokyo Charter’). Many of these declarations are referred to in: Egon Schwelb, ‘Crimes against Humanity’ (1946) 23 British Year Book of International Law 178, 183–187; and Leila Sadat-Wexler, ‘The Interpretation of the Nuremberg Principles by the French Court of Correction: From Touvier to Barbie and Back Again’ (1994) 32 Columbia Journal of Transnational Law 289, 300–303; Bassiouni, above n 2, 13–16 and 73–74; and are collected in Report of Robert H

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explicitly deal with conduct beyond traditional notions of war crimes.12 Over the course of the war, however, calls were made for the retributive ­action of the Allies to encompass also atrocities committed by the Nazis against its own nationals. For example, The London International Assembly13 in ­October 1943 recommended that the Allies establish an international court to ­prosecute acts beyond war crimes (for example, crimes against German Jews) because the Nazis’ ‘criminal policies concerned humanity as a whole, and [the] condemnation should be pronounced, not by one individual country, but by the United Nations, in the name of mankind’.14 Of particular interest in this regard is the work of the United Nations War Crimes Commission (unwcc).15 The unwcc was established by decision of a diplomatic conference of the Allies in 1943 to collect evidence and assist in the prosecution of war criminals.16 The us representative on the Legal C ­ ommittee of the Commission suggested that the offences to be prosecuted ought to ­include offences he called ‘crimes against humanity’ – probably the first reference to the phrase in the Second World War – being those crimes committed against stateless persons or against any persons because of their race or religion.17 He proposed that such offences be termed ‘crimes against humanity’ because they represented breaches which, though committed ­during the war, had characteristics which set them apart. The Commission in 1943 recommended that the Allied governments consider whether the United Nation’s retributive action should cover crimes against persons ‘because of race, nationality, religious or political belief, ­irrespective

12 13

14 15

16 17

Jackson, United States Representative to the International Conference on Military Trials: London, 1945 (Department of State Publication 3080, Government Printing Office, Washington dc, 1949) (‘Jackson Report’) 9–17. The most important of these was probably the Moscow Declaration of October 1943 signed by Roosevelt, Churchill and Stalin in which warning was given that those responsible for ‘atrocities’ would be punished. See, for example, Schwelb, above n 11, 183–187. The Assembly was created under the auspices of the League of Nations: see Timothy McCormack, ‘From Sun Tzu to the Sixth Committee: The Evolution of an International Criminal Law Regime’ in Timothy McCormack and Gerry Simpson (eds), The Law of War Crimes: National and International Approaches (Kluwer Law International: Boston, 1997) 31, 56. The Punishment of War Criminals: Recommendations of the London International Assembly (London International Assembly) vol i, 8: see Bassiouni, above n 2, 72–73. The name, the ‘United Nations’, was used at the time to describe the Allies. This is not to be confused with the current United Nations, the Charter for which did not come into force until after the war. unwcc, History of The United Nations War Commission (hmso: London, 1948) 112. History of The United Nations War Commission, above n 16, 175.

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of where they have been committed’ and ‘without regard to nationality’.18 The advice received back, however, revealed that no consensus amongst the ­Allies could be reached on this issue.19 The State Department at the time was ­lukewarm about extending war crimes to crimes committed against minorities within Germany’s borders.20 Similarly, the British Ambassador, Lord Halifax, stated the United Kingdom’s position in a dispatch of 19 August 1944 to the us Secretary of State as follows: … a clear distinction exists between offences in regard to which the United Nations have jurisdiction under International Law, i.e. war crimes, and those in regard to which they had not. Atrocities committed on racial, political or religious grounds in enemy territory fell within the latter ­category … the prosecution of [such] offenders by enemy authorities would give rise to serious difficulties of practice and principle.21 It is not hard to surmise that the uk had in mind Hitler’s reliance upon humanitarian intervention at the commencement of the Second World War. On 15 March 1939, Hitler justified his intervention in Czechoslovakia upon the ‘­assaults upon life and liberty’ perpetrated on ‘our German brethren’ who were being persecuted by the ‘intolerable terroristic regime’.22 The uk feared that the concept of crimes against humanity could be misused to justify s­ imilar  ­interventions in the future. In the House of Commons the British Foreign ­Secretary (on 4 October 1944) and the Minister of State (on 31 January 1945) said the ­preferred position of the uk was that post-war German ­authorities, not the ­Allies, ought to punish for atrocities that are not strictly war crimes.23 18 19

20 21

22 23

History of The United Nations War Commission, above n 16, 176. See Roger S. Clark, ‘Crimes against Humanity at Nuremberg’ in George Ginsburgs and Vladimir Kudriavtsev (eds), The Nuremberg Trial and International Law (Martinus Nijhoff: Dordrecht, 1990) 177, 179–180; Schwelb, above n 11, 184–185; Anne Tusa and John Tusa, The Nuremberg Trial (Macmillan: London, 1983) 22–23. William Schabas, Genocide in International Law: The Crimes of Crimes (Cambridge University Press: Cambridge, 2000) 32. Clark, above n 19, 180. Similarly, the British Lord Chancellor wrote to the Chairman of the Commission on 23 August 1944 stating ‘This opens a very wide field ... I feel I should warn you, however, that the question of acts of this kind committed within enemy territory raises serious difficulties’: quoted in Schabas, above n 20, 32. See Woodward and Butler, above n 8, no. 257 and 259, 256–257. See especially Hansard, House of Commons, 4 October 1944, col. 906 and 31 January 1945: see Schwelb, above n 11, 186.

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Nevertheless, on 24 March 1944, President Roosevelt made a statement condemning the Nazis for committing ‘crimes against humanity in the name of the German people’.24 The President said that: In one of the blackest crimes of all history – begun by the Nazis in the days of peace and multiplied by them a hundred times in time of war – the wholesale systematic murder of the Jews of Europe goes on unabated every hour (emphasis added).25 The President warned that ‘none who participate in these acts shall go unpunished’.26 On 2 May 1945, the President issued Executive Order 9547 to provide for the prosecution of ‘atrocities’ and ‘war crimes’.27 Whether pre-war atrocities were international offences that ought to be prosecuted by the Allies remained controversial at the time. In a memorandum of 22 January 1945 to the President to assist him at the Yalta Conference, the Secretary of War, H L Stinson, Secretary of State, E R Stettinius, and ­Attorney-General, F Biddle said ‘pre-war atrocities are neither ‘war crimes’ in the technical sense, nor offences against international law … Nevertheless, the declared policy of the United Nations is that these crimes, too, shall be ­punished; and the i­nterests of post-war security and a necessary rehabilitation of German peoples, as well as the demands of justice, require that this be done.’28 In its Aide-Memoire of 23 April 1945, Britain expressed doubts about putting on trial the Nazis for crimes beyond war crimes and argued for summary execution of the Nazi leaders.29 The ussr, whilst the most vocal and active in calling for the trial and punishment of war criminals, including the Nazi leaders, did not in its public statements deal with conduct beyond war crimes.30 At the Potsdam Conference of July–August 1945, the us position prevailed. Summary execution for the Nazi leaders was rejected. Instead, the Allies said Nazi leaders ‘who have participated in … atrocities or war crimes shall be arrested and brought to judgment’.31 With the Nazi leaders captured and 24 25 26 27 28 29 30 31

Jackson Report, above n 11, 12–13. Jackson Report, above n 11, 12. Jackson Report, above n 11, 12. Jackson Report, above n 11, 21. Jackson Report, above n 11, 5–6. Jackson Report, above n 11, 18–19. Georg Ginsburgs, ‘The Nuremberg Trial: Background’ in Ginsburgs and Kudriavtsev, above n 19, 9–29. See Schwelb, above n 11, 187, quoting The Times (3 August 1945).

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­awaiting trial, a definition for the most commonly used term to date – ‘atrocities’ – had to be agreed upon. 2.2 The London Conference Teams from the four major powers, the United States, the United Kingdom, France and the Soviet Union met in London between 26 June and 8 August 1945 to draft the treaty for the prosecution of Nazi leaders.32 On 6 June 1945, Justice Jackson, the United States’ representative at the conference, sent a report to the President, who approved it.33 It was widely published in Europe and the United States and accepted as the official position of the United States at the London Conference.34 Justice Jackson’s remarks about crimes against humanity are thoughtful, radical and remarkable, given the final definition adopted. As to the doctrine of act of state, Jackson stated, ‘[w]e stand on the principle of responsible ­government declared some three centuries ago to King James by Lord Chief Justice Coke, who proclaimed that even a King is still “under God and law”’.35 As to the danger of being ‘enmeshed’ in a ‘multitude of doctrinal disputes’ in defining the crimes which should be charged,36 he wrote, ‘[w]e propose to punish acts which have been regarded as criminal since the time of Cain and been so written in every civilized code’.37 Jackson suggested the following wording:38 (b) Atrocities and offences, including atrocities and persecutions on racial or religious grounds, committed since 1933. This is only to recognise the principles of criminal law as they are generally observed in civilised 32

33 34 35 36 37 38

For an account of the drafting process, see: Clark, above n 19, 180–192; Bassiouni, above n 2, 19–29; Schwelb, above n 11, 188–197; Matthew Lippman, ‘Crimes Against Humanity’ (1997) 17 Boston College Third World Law Journal 171, 177–188; Bradley Smith, The American Road to Nuremberg: The Documentary Record 1944–1945 (Hoover Institution Press: ­Stanford, 1982); and Bradley Smith, The Road to Nuremberg (Basic Books: New York, 1981). Most accounts of the drafting process rely heavily on the Jackson Report, which includes a collection of the main documents used prior to and during the conference along with notes by Jackson’s assistant of proceedings at the conference. Jackson Report, above n 11, 42–54. Jackson Report, above n 11, xvi. See the commentary of the Yale Law School, accessed online at on 11 June 2006. Jackson Report, above n 11, 47. Jackson Report, above n 11, 48. Jackson Report, above n 11, 50. Jackson Report, above n 11, 50–51.

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states. These principles have been assimilated as a part of International Law at least since 1907. The Fourth Hague Convention provided that inhabitants and belligerents shall remain under the protection and the rule of “the principles of the law of nations, as they result from the usage established amongst civilised peoples, from the laws of humanity and the dictates of the public conscience”. Jackson appears to rely upon the ‘general principles of law recognised by civilised nations’39 as both higher law and a source of international law, a view that can be traced back to Plato, Saint Augustine and the tradition of Grotius.40 The American draft definition of 14 June 1945 proposed prosecuting: ‘Atrocities and offences including atrocities and persecutions on racial or religious grounds, committed since 1 January 1933 in violation of any applicable provision of the domestic law of the country in which committed’.41 As Clark says, this provision made no attempt to apply an international standard.42 The British on 28 June 1945 altered the us draft to read: Atrocities and persecutions and deportations on political, racial, r­ eligious grounds in pursuance of the common plan or enterprise referred to in subparagraph (d) hereof [common plan or enterprise aimed at ­aggression], whether or not in violation of the domestic law of the country where perpetrated.43 This was clearly an international standard, applicable irrespective of, not ­pursuant to, the local law.44 The British Representative, Sir David Fyfe, said, however, that there should be no discussion at the trial ‘as to whether the acts are violations of international law or not. We declare what the law is so that there won’t be any discussion on whether it is international law or not.’45 The British draft introduced the ‘war nexus’ for the first time – offences had to be ‘in pursuance of the common plan or enterprise’ to launch a war of aggression. This likely stemmed from the British view that atrocities committed within

39 40 41 42 43 44 45

Statute of the International Court of Justice (‘icj Statute’), Art 38(1)(c). See Chapter 1, Sections 2 and 3. Jackson Report, above n 11, 55. Clark, above n 19, 182. Jackson Report, above n 11, 87. See Clark, above n 19, 183. Jackson Report, above n 11, 99.

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a ­nation’s territory do not otherwise attract a right of intervention by other states under international law. On 19 July 1945, the French, drawing upon the preamble to the 1907 Hague Convention, proposed prosecuting any person responsible for preparing or carrying out ‘the policy of atrocities and persecutions against civilian populations … and who is responsible for the violations of international law, the laws of humanity, dictates of the public conscience, committed by the armed forces and the civilian authorities in the service of those enemy Powers’.46 On 20 July 1945, the British delegation put forward a re-draft which referred to ‘systematic atrocities’ without a war nexus.47 At the session of 23 July 1945, Fyfe, however, said: ‘I have in mind only such general treatment of the Jews as showed itself as a part of the general plan of aggression’.48 Going into that session no war nexus existed in the latest drafts of the United States, France and Great Britain. Three days later, on 23 July 1945, the Soviet Union then proposed its own draft which limited ‘atrocities against the civilian population’ to ‘violations of the laws and customs of warfare’.49 Things were obviously fluid and the ­British and us delegations responded on the same day. The British delegate, Fyfe, said that it was ‘important politically’ to extend the definition to cover the ill treatment of Jews in Germany before the war but only for ‘such acts as the ­terrorization and murder of their own Jewish population in order to prepare for war; that is, preparatory acts inside the Reich in order to regiment the state for aggression and domination’.50 Jackson agreed, saying: It has been a general principle of foreign policy of our Government from time immemorial that the internal affairs of another government are not ordinarily our business; that is to say, the way Germany treats its ­inhabitants … is not our affair any more than it is the affair of some other government to interpose itself in our problems. The reason that this program of extermination of Jews and destruction of the rights of minorities becomes an international concern is this: it was a part of a 46 47 48 49 50

See the Draft Article on Definition of “Crimes” submitted by the French Delegation on 19 July 1945: Jackson Report, above n 11, 293. See the Proposed Revision of Definition of “Crimes” (Article 6) submitted by the British Delegation on 20 July 1945: Jackson Report, above n 11, 312. Jackson Report, above n 11, 329. See the Redraft of Definition of “Crimes” submitted by the Soviet Delegation on 23 July 1945: Jackson Report, above n 11, 327. Jackson Report, above n 11, 329.

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plan for making an illegal war. Unless we have a war connection as a basis for reaching them, I would think we have no basis for dealing with atrocities. They were a part of the preparation for war of for the conduct of the war in so far as they occurred inside of Germany and that makes them our concern.51 Jackson also wanted the atrocities to be limited to acts involving a sectarian animus,52 but this appeared to be objected to by Professor Trainin.53 The next day, 24 July 1945, the delegates considered a compromise Soviet draft (submitted by the British to the conference) which separated out ‘atrocities’ from ‘persecutions’ in paragraph (b): Atrocities against civilian populations including (inter alia) murder and ill-treatment of civilians and deportation of civilians to slave labour, and persecutions on racial or religious grounds where such persecutions were inflicted in pursuance of the aggression or domination referred to in paragraph (a) above.54 Professor Gros, a member of the French delegation, objected to Jackson’s reasoning in linking persecutions with waging an aggressive war: I have one remark on (b), where we appear as wanting to prosecute because of racial or religious treatments only because they were connected with the war. I know it was very clearly explained at the last session by Mr Justice Jackson that we are in fact prosecuting those crimes only for that reason, but for the last century there have been many interventions for humanitarian reasons. All countries have interfered in the affairs of other countries to defend minorities who were being persecuted … ­perhaps if we could avoid to appear as making the principle that those interventions are only justified because of the connection with aggressive war …55 Professor Gros thereby wanted to bring the concept of crimes against humanity within the doctrine of humanitarian intervention. His account of history 51 52 53 54 55

Jackson Report, above n 11, 331. Jackson Report, above n 11, 332–333, see also the American Redraft of 25 July 1945, where the acts were required to be ‘on political, racial or religious grounds’: 374. Jackson Report, above n 11, 333. See the Redraft of the Soviet Definition of “Crimes” submitted by the British Delegation on 23 July 1945: Jackson Report, above n 11, 359. Jackson Report, above n 11, 360.

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is probably closer to the mark than that of Jackson who overlooks the United States’ intervention in Cuba and President Roosevelt’s State of the Union address of 1904.56 Professor Gros also stated that it could be difficult for the prosecution to establish that pre-war atrocities were linked to Hitler’s plans for aggression.57 Fyfe for the uk insisted proof would not be a problem58 and the French came to accept the definition proposed by the uk.59 On 31 July 1945, Jackson accepted making persecutions a separate offence and came back with a proposed Article 6. It had three defined categories of crimes – ‘crimes against peace’ (Article 6(a)); ‘war crimes’ (Article 6(b)); and ‘crimes against humanity’60 (Article 6(c)). The last category was defined as: 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 International Tribunal, whether or not in violation of the domestic law of the country where perpetrated.61 This became the adopted draft in the Charter appended to the Treaty signed on 8 August 1945, except the final English and French text had a semi-colon between the different types of crimes after the words ‘before or during the war’ but the comma remained in the Russian text. This suggested the ‘war nexus’ may not apply to the ‘murder-type’ crimes. However, by a Berlin Protocol on 6 October 1945, the parties stated that the Russian text was correct and the semicolon in the English and French version should be amended to a comma and ‘the French text should be amended’.62 Whilst a comma in the English still leaves its meaning ambiguous, the amendment to the French text makes it clear that both the murder-type crimes and the persecution-type crimes only come within the jurisdiction of the new 56 57 58 59 60

61 62

See Chapter 1, Section 5.1.3. Clark writes that Gros’ comment is a ‘little hyperbole’: Clark, above n 19, 187. Jackson Report, above n 11, 361. Jackson Report, above n 11, 361–362. The British redraft of 28 July 1945 was accepted by the French: Jackson Report, above n 11, 390. There appears to be no definitive statement as to how the designation ‘crimes against humanity’ was arrived at. Jackson said the headings had been suggested to him by an eminent scholar of international law and Clark says Professor Lauterpacht has been credited as the author: Clark, above n 19, 189, fn 54; see also Bassiouni, above n 2, 17. Jackson Report, above n 11, 395. Clark, above n 19, 190–192.

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tribunal when such crimes are committed in execution of or in connection with war crimes or crimes against peace.63 Jackson’s position, supported by the British, thereby prevailed, but it is curious that the French support for a broader definition remained in the French text until it was amended after execution.64 The War Nexus in the Definition of Crimes against Humanity in Article 6(c) The war nexus as formulated in Article 6(c) was novel. No support for such a proposition can be found in any treaties, statements of governments or ­publicists, the custom and practice of states or general principles of law recognised by civilised nations. Further, it lacks coherence as a general principle of criminal law. The first category of crimes may be committed before the war but only when c­ ommitted in execution of or in connection with a war of aggression or war crimes. It is hard to imagine how a sensible prosecution can be mounted for such a crime before the outbreak of war. Even after war has broken out, the drawing of a connection between the ill treatment of civilians and the waging of war is ­difficult to comprehend – is it a temporal connection or a causal connection? As Schwarzenberger put it: 2.3

[The] limited and qualified character of the rule on crimes against humanity as formulated in the charters of the Nuremberg and Tokyo Tribunals militates against the rule being accepted as one declaratory of international customary law. This rudimentary legal system does not know of distinctions as subtle as those between crimes against humanity which are connected with other types of war crimes and, therefore, must be treated as analogous to war crimes in the strict sense and other types of inhumane acts which are not so linked and, therefore, are beyond the pale of international law.65 According to Schwelb ‘… it is clear that what has been introduced by the Charter are not international criminal provisions of universal application’.66 ­Lombois

63 64 65 66

Clark, above n 19; Schwelb, above n 11, 194–195. See Schwelb, above n 11, 187–188 and 193–195; Clark, above n 19, 190–192; Bassiouni, above n 2, 25–30. Georg Schwarzenberger, International Law as Applied by International Courts and Tribunals (Stevens: London, 1968) vol ii, 498. Schwelb, above n 11, 207.

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47

refers to the London Charter and Judgment as ‘un droit ad hoc’.67 Bassiouni concludes ‘The policies of the United States and the United Kingdom … were a combination of principle and pragmatism, procedural fairness and technical laxity, establishing an ad hoc system of justice … In that experience … expedience was not conducive to sound and valid outcomes’.68 The best conclusion is that the war nexus in Article 6(c) is an ad hoc rule of jurisdiction for the combined military tribunal established by the Allies and peculiar to the moment. But despite this, it was a rule designed deliberately to avoid the pitfalls of setting a precedent for states to try the ordinary crimes of citizens of other states committed entirely on the territory of such other states. Why did Justice Jackson on 23 July 1945, contrary to his initial definition, insist on a connection with waging a war of aggression? According to Bassiouni it ‘was probably motivated by a desire … to strengthen its legality by connecting it to the more established notion of war crimes’.69 The answer, however, likely lies in Jackson coming to accept the British position that to permit international intervention on the ground of humanity, absent a nexus with aggression or war, was a dangerous precedent abused by Hitler himself. As he stated at the London Conference: [O]rdinarily we do not consider that the acts of a government towards its own citizens warrant our interference. We have some regrettable circumstances at times in our country in which minorities are unfairly treated. We think it is justifiable that we interfere or attempt to bring retribution to individuals or to states only because the concentration camps and the deportations were in pursuance of a common plan or enterprise of making an unjust or illegal war in which we became involved. We see no other basis on which we are justified in reaching the atrocities which were committed inside Germany, under German law, or even in violation of German law, by authorities of the German state.70 It would seem Jackson did not want to establish a precedent by which some power in the future may seek to hold leaders in the United States (or other states) accountable for ‘crimes against humanity’ committed in their own ter­ ritories in times of peace unless connected with a plan of aggression. Lippman, relying on the above comments states ‘Jackson may have feared that a contravention of Germany’s domestic jurisdiction would lead to scrutiny of racial 67 68 69 70

‘An ad hoc law’: Claude Lombois, Droit Pénal International (Dalloz: Paris, 1979) 157. Bassiouni, above n 2, 18–19. Bassiouni, above n 2, 78. Jackson Report, above n 11, 333.

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segregation in the United States’.71 Jackson was probably also conscious of the political mood of the time. To Stalin, Churchill and Roosevelt, their ­primary objective in having an international trial was to firmly establish a new crime, being ‘crimes against peace’, not an existing crime, based upon the laws of ­humanity or the doctrine of humanitarian intervention.72 Hence, as evil as ‘crimes against humanity’ were, they could not be given too great a p ­ rominence on their own lest they be used in the future as a pretext for aggression. With the drafting done, the trial could begin. The inherent flaws in Article 6(c), however, resulted in crimes against humanity being dealt with in the judgment in a way which satisfied very few. 3

The Tokyo Charter of 1946

General McArthur, by Special Proclamation issued on 19 January 1946, established the International Military Tribunal for the Far East.73 The Proclamation cannot claim the status of an international treaty74 because General McArthur only cursorily consulted the other Allied Powers.75 Article 5(c) of the ­Proclamation defined crimes against humanity as follows: 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 or ­racial 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. 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 person in execution of such plan.

71 72 73 74 75

See Lippman, above n 32, 184 fn 52. See Bassiouni, above n 2, 17. Tokyo Charter, above n 10. See Bassiouni, above n 2, 32. Lippman, above n 32, 202. Nevertheless, Article 8 allowed nations at war with Japan to appoint counsel and participated: Australia, Canada, New Zealand, Great Britain, India, the United States, the Philippines, China, the Soviet Union, France and the Netherlands: see Beth Van Schaack, ‘The Definition of Crimes against Humanity: Resolving the ­Incoherence’ (1999) 37 Columbia Journal of Transnational Law 787, 789.

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By Article 5(c), crimes against humanity were at first defined in similar terms to those in the London Charter with the omission of religious grounds for persecution probably because religious persecution was not seen as having relevance in the Far East. The words ‘against any civilian population’, which originally appeared in the text, were omitted shortly before the trial opened.76 This was done so that the prosecution could bring charges for killing enemy combatants in connection with crimes against peace and, like the war nexus in Article 6(c) of the London Charter, has no basis in customary law.77 These charges did not clearly go beyond traditional notions of war crimes because the victims were persons other than Japanese nationals and were committed outside Japan.78 In its judgment, the Tribunal did not deal with these charges saying that they were subsumed under the crimes against peace charges.79 4

The Trial and Judgment of the International Military Tribunal at Nuremberg

4.1 The Indictment Count Four of the Indictment dealt with crimes against humanity.80 It stated that the prosecution would rely on the facts in Count Three (war crimes) as also constituting crimes against humanity. War crimes were set forth in categories which followed those set out in Article 6(b), including offences such as plundering of public and private property. Count Four said that these ‘methods and crimes constituted violations of international conventions, of internal penal laws, of the general principles of criminal law as derived from the criminal law of all civilised nations and

76 See Further Proclamation of Major General Marshall on the Command of General Macarthur, executed on 26 April 1946: 4 Bevans 27; Bernard V.A. Röling and Antonio Cassese, The Tokyo Trial and Beyond (Polity Press: Cambridge, 1992) 56–57. 77 See Counts 39–43 and 45–52 of the Indictment: Robert Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (Cambridge University Press: Cambridge, 2005) 249; see also Kittichaisaree, above n 6, 88. 78 Schwelb, above n 11, 215–216. 79 See the Judgment of the International Military Tribunal for the Far East in Bernard V.A. Röling and C.F. Rüter, The Tokyo Judgment (Amsterdam University Press: Amsterdam, 1977) 452–458. 80 See Trial of the Major War Criminals, above n 1, vol i, 27 and 65–67; see also Lippman above n 32, 189–190; and Clark, above n 19, 193.

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were involved in and party to a systematic course of conduct’.81 The reliance on ‘­general principles’ suggests the prosecutors wanted to ground their case on some recognised international source, not solely the terms of the London Charter. 4.2 The Addresses The French Chief Prosecutor, François de Menthon, in his opening address of 17 January 1946 said: … this body of Crimes against Humanity constitutes, in the last ­analysis, nothing less than the perpetration for political ends and in a systematic manner, of ordinary crimes (crimes de droit commun) such as theft, ­looting, ill treatment, enslavement, murder, and assassinations, crimes that are provided for and punishable under the penal laws of all civilised States. No general objection of a juridical nature, therefore, appears to hamper your task of justice. … [T]hough they be not codified in an inter-State penal code, [they] exist in the penal code of every civilised country.82 He thus treats crimes against humanity as being analogous with serious domestic crimes but committed for political ends and in a systematic manner. He further submitted that the London Charter was in effect the method by which the ‘territorial jurisdiction of sovereign States’ affected by the crimes of the Nazis was ceded to the Tribunal in respect of the crimes committed in their territories.83 Whilst it would be foremost the duty of the German state to punish its own nationals who have violated international law, following ­Germany’s unconditional surrender, ‘there is no German State and the four occupying Powers were the highest authority and had the right to adjudge the guilt of German nationals for the crimes committed.84 Sir Hartley Shawcross, Chief Prosecutor for the United Kingdom, in his ­closing argument delivered on 26 and 27 July 1946 initially dealt with the charge of crimes against humanity on the basis of international law. He referred to the 81 82

83 84

See Trial of the Major War Criminals, above n 1, vol i, 65. Trial of the Major War Criminals, above n 1, vol v, 340–341. Whilst the frequent translation of ‘crimes de droit commun’ is ‘common law crimes’, the author prefers the translation ‘ordinary crimes’ as the French legal system does not recognize a ‘common law’ as it is known in the Anglo-American legal system: see Sadat-Wexler, above n 11, 317, fn 115. Trial of the Major War Criminals, above n 1, vol v, 340. Trial of the Major War Criminals, above n 1, vol v, 352.

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works of Grotius, John Westlake and to state practice in support of a right of humanitarian intervention, saying: Normally international law concedes that it is for the State to decide how it will treat its own nationals; it is a matter of domestic jurisdiction … Yet international law has in the past made some claim that there is a limit to the omnipotence of the State and the individual human, being the ultimate unit of all law, is not disentitled to the protection of mankind when the State tramples upon his rights in a manner which outrages the conscience of mankind … The same view was acted upon by the European powers which in times past intervened in order to protect the Christian subjects of Turkey against cruel persecution. The fact is that the right of humanitarian intervention by war is not a novelty in international law – can intervention by judicial process then be illegal? The Charter of this Tribunal embodies a beneficent principle – much more limited than some would like it to be – and it gives warning for the future – I say, and repeat again, gives warning for the future, to dictators and tyrants masquerading as a State that if, in order to strengthen or further their crimes against the community of nations they debase the sanctity of man in their own countries, they act at their peril, for they affront the international law of mankind.85 But in the end, he did not ground the charges on this doctrine. He said the Allies: … thought it right to deal with matters which the Criminal Law of all countries would normally stigmatise as crimes: murder, e­ xtermination, enslavement, persecution on political, racial or economic grounds … when committed with the intention of affecting the international community – that is in connection with the other crimes charged – [they

85

Quoted in Schwelb, above n 11, 198. In his opening address on 4 December 1945, he said: ‘So also in regard to Crimes against Humanity. The rights of humanitarian intervention on behalf of the rights of man, trampled upon by a state in a manner shocking the sense of mankind, has long been considered to form part of the recognized law of nations. Here too the Charter merely develops a pre-existing principle. If murder rapine, and robbery are indictable under the ordinary municipal laws of our countries, shall those who differ from the common criminal only by the extent and systematic nature of their offenses escape accusation?’

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become] not mere matters of domestic concern but crimes against the Laws of Nations.86 4.3 The Nuremberg Judgment87 The Tribunal, in dealing with certain legal arguments about the London Charter, largely adopted the submissions of the French Prosecutor. It said ‘the Charter was the exercise of the sovereign legislative power by the countries to which the German Reich unconditionally surrendered; and the undoubted right of these countries to legislate for the occupied territories has been recognised by the civilized world. […] In doing so, they have done together what any one of them might have done singly’.88 Whilst it remarked that ‘[t]he law of the C ­ harter is decisive, and binding upon the Tribunal’,89 the Tribunal also stated that: The Charter is not an arbitrary exercise of power on the part of the victorious Nations, but in the view of the Tribunal, as will be shown, it is the expression of international law existing at the time of its creation; and to that extent is itself a contribution to international law.90 Relying upon various treaties (principally the Kellogg-Briand Pact91) and international declarations, the Tribunal concluded that aggressive war is a crime under international law, and state immunity cannot apply ‘to acts which are condemned as criminal by international law’.92 It came to the same conclusion for war crimes, largely by relying upon the prohibitions provided for in the Hague Convention.93 However, the Judgment conspicuously contains no discussion as to the status of crimes against humanity in international law. The Tribunal said ‘The Tribunal is of course bound by the Charter, in the definition which it gives both of

86 87

88 89 90 91

92 93

Schwelb, above n 11, 198. Judicial Decisions, International Military Tribunal (Nuremberg), Judgment and Sentences (1 October 1946) (‘Nuremberg Judgment’) reprinted in (1947) 41 American Journal of International Law 172, 172–333. Nuremberg Judgment, above n 87, 216. Nuremberg Judgment, above n 87. Nuremberg Judgment, above n 87. Treaty between the United States and other Powers providing for the renunciation of war as an instrument of national policy, done in Paris, France, opened for signature 27 August 1928, 94 L.N.T.S. 57 (entered into force 24 July 1929). Nuremberg Judgment, above n 87, 221 and 217–224. Nuremberg Judgment, above n 87, 218.

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War Crimes and Crimes Against Humanity. With respect to War Crimes, however, as has already been pointed out, the crimes defined in Article 6, Section (b), of the Charter were already recognized as War Crimes under international law’.94 This may be taken as stating that crimes against humanity, in contrast, were not already recognised under international law. The Tribunal stated that the principle nullum crimen sine lege ‘is not a limitation of sovereignty, but is in general a principle of justice’95 and because the defendants must have known that what they were doing was wrong ‘it would appear that the maxim has no application to the present facts’.96 The last statement does not appear in the French text.97 The meaning of these remarks is discussed further in Section 7 below. Whilst these comments were directed to crimes against peace, the principle was likely thought to have relevance to the counts dealing with crimes against humanity. The Judgment followed the approach in the Indictment in dealing with war crimes and crimes against humanity in the one narrative under different headings.98 In respect of civilians, this covered ‘Murder and Ill-treatment of Civilian Population’; ‘Pillage of Public and Private Property’; ‘Slave Labour Policy’ and ‘Persecution of the Jews’. The narrative covered conduct both before the war and where the victims were German nationals in Germany. The Tribunal then made its only statement about Article 6(c): With regard to crimes against humanity, there is no doubt whatever that political opponents were murdered in Germany before the war, and that many of them were kept in concentration camps in circumstances of great horror and cruelty. The policy of terror was certainly carried out on a vast scale, and in many cases was organised and systematic. The policy of persecution, repression and murder of civilians in Germany before the war of 1939, who were likely to be hostile to the Government, was most ruthlessly carried out. The persecution of Jews during the same period is established beyond all doubt. To constitute Crimes against Humanity, the acts relied on before the outbreak of war must have been in execution of, or in connection with, any crime within the jurisdiction of the Tribunal. The Tribunal is of the opinion that revolting and horrible as 94 95 96 97

98

Nuremberg Judgment, above n 87, 248. Nuremberg Judgment, above n 87, 217. Nuremberg Judgment, above n 87, 217. Trial of the Major War Criminals, above n 1, vol i, 231. The French version reads: ‘la maxime Nullum crimen sine lege ne limite pas la souverainetés des Etats: elle ne formule qu’une règle généralement suive’. Trial of the Major War Criminals, above n 1, 229–247.

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many of these crimes were, it has not been satisfactorily proved that they were done in execution of, or in connection with, any such crime. The Tribunal therefore cannot make a general declaration that the acts before 1939 were Crimes against Humanity within the meaning of the Charter, but from the beginning of the war in 1939 War Crimes were committed on a vast scale, which were also Crimes against Humanity; and insofar as the inhumane acts charged in the Indictment, and committed after the beginning of the war, did not constitute War Crimes, they were all committed in execution of, or in connection with, the aggressive war, and therefore constituted Crimes against Humanity.99 Hence, the thesis that Nazi pre-war atrocities were linked to the making of war was rejected on the evidence and the Allies’ hopes of punishing those ­responsible for these acts were dashed.100 Many, such as Lauterpacht,101 ­Sadat-Wexler,102 and van Schaack,103 have criticised the Tribunal for being too literal in its interpretation of Article 6(c). Such a view is unwarranted as the flaw lies in the drafting not the finding which has stood the test of time.104 To the Tribunal’s credit it held that the tender of Mein Kampf was not enough to make out a criminal conspiracy,105 just as Gros had feared may be the result.106 The Tribunal then dealt with the individual defendants. Of the 22 defendants indicted, only two were convicted of crimes against humanity alone ­( Julius Streicher107 and Baldur von Schirach108). Streicher was accused of ‘speaking, writing, and preaching hatred of the Jews’ for 25 years including calling for their annihilation from 1938.109 The 99 Trial of the Major War Criminals, above n 1, 249. 100 See the Redraft of Definition of “Crimes” submitted by the Soviet Delegation on 23 July 1945: Jackson Report, above n 11, 327; Telford Taylor, The Anatomy of the Nuremberg Trials (Knopf: New York, 1992) 35–36, 75–76. 101 Hersch Lauterpacht, International Law and Human Rights (Stevens: London, 1950) 36. 102 Sadat-Wexler, above n 11, 308. 103 Schaack, above n 75, 803–807. 104 See Smith, The Road to Nuremberg, above n 32, 234: ‘Today no serious historian would maintain that Hitler slaughtered Jews and Gypsies of Europe merely as a calculated step in a fixed plan to conquer first Europe and then the world’. 105 The Tribunal said ‘The planning, to be criminal, must not rest merely on the declarations of a party program, such as are found in the 25 points of the Nazi Party, announced in 1920, or the political affirmations expressed in Mein Kampf in later years’: Nuremberg Judgment, above n 87, 222. 106 Clark, above n 19, 361–362. 107 Nuremberg Judgment, above n 87, 293–296. 108 Nuremberg Judgment, above n 87, 309–311. 109 Nuremberg Judgment, above n 87, 294.

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­ ribunal ruled that this continued after knowledge of mass exterminations of T Jews in the occupied territories of Eastern Europe,110 and concluded that: Streicher’s incitement to murder and extermination at the time when Jews in the East were being killed under the most horrible conditions clearly constitutes persecution on political and racial grounds in connection with War Crimes, as defined by the Charter, and constitutes a Crime Against Humanity’.111 The reasoning, which has somewhat harshly been the subject of criticism,112 is sound. Incitement to murder Jews, including those of German nationality, constitutes persecution within the meaning of Article 6(c). Because the incitement encompasses Jews of non-German nationality who were being murdered in the East – being a war crime – such persecution is in connection with war crimes. This is made clear in the French text which says the persecution is a war crime as defined by the Charter and equally a crime against humanity.113 Von Schirach was convicted of crimes against humanity for his role in deporting Jews from Vienna to ghettos in the East.114 In the course of its conviction of the Accused, the Tribunal said: As has already been seen, Austria was occupied pursuant to a common plan of aggression. Its occupation is, therefore, a “crime within the jurisdiction of the Tribunal,” as that term is used in Article 6(c) of the Charter. As a result, “murder, extermination, enslavement, deportation, and other inhumane acts” and “persecution on political, racial, or religious 110 Nuremberg Judgment, above n 87, 295. 111 Nuremberg Judgment, above n 87, 296. 112 Sadat-Wexler wrote that the Tribunal does ‘not in any way explain how exactly those acts violated Article 6(c)’: above n 11, 308. Similarly, Schaack concludes that the case ‘reveals that the Tribunal was satisfied by evidence of a merely tenuous connection between the acts alleged to be crimes against humanity and the war’: above n 75, 806. Schwelb and Lippman suggest that, by reason of the Tribunal’s reference to Streicher’s conduct against Jews prior to 1 September 1939, it may have relied on pre-war conduct: Schwelb, above n 11, 205; and Lippman above n 32, 195. This is not consistent with the Tribunal’s ultimate finding of a connection with war crimes. This alone appears to ground the finding of guilt, not the pre-war conduct. This may seem an extraordinary result as the pre-war conduct was the principal basis for the charge against him. Nevertheless, he received the death sentence and, as has been said, no matter how heinous a crime may be, you can only hang a man once. 113 Trial of the Major War Criminals, above n 1, vol i, 324. 114 Nuremberg Judgment, above n 87, 311.

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grounds” in connection with this occupation constitute a Crime against Humanity under that Article.115 The majority of the other defendants were convicted of both war crimes and crimes against humanity. The Tribunal dealt with both crimes in a single ­narrative which included conduct towards German nationals in Germany. Sometimes that narrative included references to persecutions which took place before the outbreak of war (in the cases of Goering,116 Frick117 and Funk118) but presumably the Tribunal did not rely on these. Thus, the Judgment ended with a whimper so far as crimes against humanity were concerned.119 Many writers such as Lippman,120 Sadat-Wexler,121 and Hwang122 along with those writing closer in time to the events such as Schwelb,123 Kelsen,124 and Herzog,125 have been critical of the Tribunal’s reasoning and, in particular, its failure to explain the meaning, content or juridical basis for crimes against humanity where such crimes are separate from war crimes. These comments expect too much of the Tribunal. The Tribunal was not an international court established to decide issues of international law. It was a combined military tribunal of four nations appointed to decide upon the enemies’ guilt of defined charges. The status of crimes against humanity in customary international law, ­discussed in the next section, was the subject of mixed signals by the A ­ llies. 115 116 117 118 119

120 121

122 123 124 125

Nuremberg Judgment, above n 87, 310. Nuremberg Judgment, above n 87, 274. Nuremberg Judgment, above n 87, 292. Nuremberg Judgment, above n 87, 297. Cassese says the reticence and what could be viewed as the embarrassment of the Tribunal to deal with crimes against humanity are striking: Antonio Cassese, International Criminal Law (Oxford University Press: Oxford, 2003) 70. ‘[T]he Nuremberg Tribunal failed to provide a principled distinction between war crimes and crimes against humanity’: Lippman, above n 32, 201. ‘... one of the most unfortunate legacies of the imt Judgment is that it failed to provide any criteria that could be used to distinguish crimes against humanity either from war crimes or from ordinary municipal crimes such as torture, murder or rape’: Sadat-Wexler, above n 11, 310. Phylilis Hwang, ‘Defining crimes against humanity in the Rome Statute of the International Criminal Court’ (1998) 22 Fordham International Law Journal 457, 460. Schwelb, above n 11, 206–207. Hans Kelsen, ‘Will the Judgment in the Nuremberg Trial Constitute a Precedent in International Law?’ (1947) 1(2) International Law Quarterly 153. Jacques-Bernard Herzog, ‘Contribution à l’étude de la définition du crime contre l’humanité’ (1947) 18 Revue Internationale De Droit Pénal 155, 162.

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They wished to condemn the Nazi pre-war atrocities, but did not want to support the view that ordinarily states have the right to intervene in such ­circumstances. For the Tribunal to have produced a dissertation on the status and meaning of crimes against humanity in international law – including the likely conclusion that it was new law – would have been fraught with political controversy. 5

The Meaning of Crimes against Humanity under the Law of the Charter and the Nuremberg Judgment

The Meaning of ‘in execution of or in connection with any crime within the jurisdiction of the Tribunal’ In the Judgment, crimes against humanity went beyond war crimes in only two cases: where the crimes took place in territories occupied not only by war, but also by aggressive threats of war (as in the case of Schirach); and where, in the course of committing war crimes, attacks on civilians not protected by the laws of war also took place (as in the case of Streicher). For example, during the war, the Nazis implemented a slave labour policy and a policy to exterminate Jews. Such policies reached foreign nationals in occupied territories and German nationals in Germany. The former constituted war crimes (and crimes against ­humanity) and the latter, crimes against humanity in connection with those war crimes. The alternative analysis is that the acts, as the Tribunal said, were connected with the aggressive war.126 This suggests the atrocities were performed in fulfilment of some war aim but this was not explored in the Judgment.127 5.1

Are the Elements of War Crimes and Crimes against Humanity, Apart from the Nationality of the Victim, Synonymous? Biddle, the American judge on the Tribunal, dealt with the suggestion that the Nuremberg Judgment had reduced ‘the meaning of crimes against humanity to a point where they became practically synonymous with war crimes’, by saying:

5.2

126 Nuremberg Judgment, above n 87, 221 and see 217–224. 127 Zoller says the connection drawn at times between crimes against humanity and the other crimes was ‘juridically fragile’: Elisabeth Zoller, ‘La Définition des Crimes Contre L’humanité’ (1993) 120(3) Journal du droit international 549, 554. Schwelb says the connection with other war crimes or crimes against peace was presumed after the outbreak of war: Schwelb, above n 11, 204.

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I agree. And I believe that this inelastic construction is justified by the language of the Charter and by the consideration that such a rigid interpretation is highly desirable in this stage of the development of international law.128 Similarly, the French member of the Tribunal, Donnedieu de Vabres, writing after the Judgment, submitted that, except for von Schirach, crimes against humanity and war crimes were found to be within the same rubric (même rubrique) and by always linking crimes against humanity with war or aggression, the Tribunal did not breach the nullum crimen sine lege principle.129 He further thought the murder-type crimes in Article 6(c) had the same elements as war crimes.130 This means if a Nazi soldier kills two Jews in his custody, one an alien from an occupied territory and the other a German national from Germany, the former is a war crime (and a crime against humanity) and the later, a crime against humanity alone. Herzog, in an influential article of 1947, followed the approach of the French Prosecutor. He wrote that crimes against humanity are international ‘ordinary crimes’ (‘crime international de droit commun’) which, until international criminal law is properly codified, must be defined by analogy to the elements of the applicable municipal crimes – murder, assault, false imprisonment, etc.131 This was also the conclusion of the German academic, Dahm: ‘crimes against humanity regularly represent common offences’.132 128 Francis Biddle, ‘The Nuremberg Trial’ (1947) 33 Virginia Law Review 679, 695. Biddle also said: ‘With one possible exception, von Schirach, crimes against humanity were held to have been committed only where the proof also fully established the commission of war crimes’: ibid. 129 Henri de Vabres, ‘Le Jugement de Nuremberg et le principe de légalité des délits et des peines’ (1946–47) 27 Revue de droit pénal et de criminologie 811, 826–827; Henri de Vabres, ‘Le procès de Nuremberg devant les principes modernes du droit pénal international’ (1947-i) 70 Recueil des cours 525, 527. 130 Vabres, ‘Le Jugement de Nuremberg’, above n 129, 823 131 Herzog, above n 125, 160–166, in particular, 164 ‘Le crime contre l’humanité est matérialisé par le même fait que le crime de droit commun, et, partant, trouve sa qualification dans la même loi pénale’. He concludes that crimes against humanity are ordinary crimes committed against the individual in the service of a bandit State (l’état bandit): 160. Aroneanu also referred to the crime as a ‘crime international de droit commun’: Eugène Aroneanu, ‘Le crime contre l’humanité’ (1946) 13 Nouvelle Revue de Droit International Privé 369, 411. 132 Georg Dahm, Völkerrecht, vol. iii (Stuttgart Kohlhammer, 1961) 300 (‘Verbrechen gegen die Menschlichkeit sind in aller Regel zugleich auch gemeine: Verbrechen’). Similar conclusions were reached by other German writers: see Alfred Verdross and Bruno Simma,

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On the whole, the suggestion that the underlying elements of war crimes and crimes against humanity, apart from the nationality of the victim, are largely synonymous and are to be defined by analogy to the elements of the applicable domestic or war crimes is consonant with the text of the Charter (at least for crimes of the ‘murder-type’), the way in which the Indictment was framed and the approach of the Nuremberg Tribunal.133 Persecution on the other hand, generally has no analogy in either domestic crimes or war crimes. The Nuremberg Tribunal did not offer any analysis of its meaning or scope. One interpretation would be to limit its reach to acts which amount to one or more of the enumerated ‘murder-type crimes’ but committed with a sectarian animus as an aggravating factor in the offence. Alternatively, it may be thought that acts which on their own cannot amount to an ‘inhumane act’ may take on the character of a crime against humanity if undertaken as part of a policy of persecution against some group on one of the prohibited grounds. The latter approach probably has more support from Nuremberg and is discussed further in Chapter 10. The Nuremberg Tribunal did appear to include within the counts of crimes against humanity the deprivation of social and economic rights suffered by the Jews, along with property offences. This is discussed further below. Are There Any Other Elements to Crimes against Humanity under Article 6(c)? Frequently, further elements are put forward as being required under Article 6(c) in order to distinguish crimes against humanity from either war crimes or municipal crimes. First, the need for a discriminatory animus is sometimes mentioned,134 but outside the persecution-type crimes in Article 6(c), there is little basis in the text of the Charter, its drafting or the Judgment for ­requiring

5.3

U ­ niverselles Völkerrecht (1st ed., Duncker & Humblot: Berlin, 1976), 226; Ernst Reibstein, Völkerrecht, vol ii (Verlag Karl Alber: Freiburg/Munich, 1961) 332. 133 This was the conclusion of the International Association of Penal Law which in 1947 passed a resolution defining ‘crimes against humanity’ simply by reference to the underlying crimes and without the war nexus: Joseph Dautricourt, ‘Crime Against Humanity: European View on its Conception and its Future’ (1949) 40 Journal of Criminal Law and Criminology 170, 171–172. 134 See, for example: International Law Commission, Draft Code of Offences against the Peace and Security of Mankind, un gaor, 9th sess, Supp. 9, 11, un Doc. A/2693 (29 July 1954) discussed in Chapter 3, Section 3.3.2(ii); and (Canada) Regina v Finta [1994] 1 scr 701 discussed in Chapter 3, Section 4.3.

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a special motive for all of the listed crimes. This was the conclusion of the Secretary-General in 1949.135 Secondly, it has also been said that the phrases ‘crimes against humanity’ and ‘other inhumane acts’ make ‘inhumanity’, ‘cruelty or barbarism’ an element of all crimes against humanity.136 ‘Humanity’ can mean either the quality of ­being human – humaneness – or, all human beings, that is, ‘humankind’.137 In the former sense, ‘crimes against humanity’ suggests that the offences’ d­ efining feature is the value they injure, namely humaneness. De Menthon supported this view, saying the offences are ‘crimes against the human status’.138 Somewhat more cryptically, he said that if the authorities arrest and judge a woman for acts of resistance, it is a legitimate act; if they interrogate her under torture, it is a war crime; if they deport her to an extermination camp or use her for medical experiments, it is a crime against humanity.139 To have the concept of ‘humanity’ as an element of the crime has serious difficulties. Such an element is particularly vague and, apart from some minor property crimes, could be said to exist already in most war crimes and municipal crimes. A more fundamental problem with this approach lies in trying to discover the elements of a ‘crime against humanity’ from the label itself devoid from a consideration of the manner in which the term has actually been applied historically.140 Thirdly, there is the frequent suggestion that the crimes under Article 6(c) must be part of a large-scale atrocity (which emphasises the second meaning of humanity – that is, all humankind).141 The Nuremberg Tribunal did find that Nazi atrocities were committed on a ‘vast scale’142 but did not suggest that this was a necessary requirement. The case for this suggestion is often based upon 135 Memorandum of the Secretary-General on the Charter and Judgment of the Nürnberg Tribunal, un Doc. A/CN.4/5 (3 March 1949), 67–68. 136 See, for example: Schwelb, above n 11, 194–55, David Luban, ‘A Theory of Crimes against Humanity’ (2004) 29 Yale Journal of International Law 85, 86–90; (Canada) Regina v Finta, above n 134, 820–823. 137 The distinction is referred to by Schwelb, above n 11, 194–55; Richard Vernon, ‘What is a Crime against Humanity?’ (2002) 10 Journal of Political Philosophy 231, 236–237; and Antonio Cassese, above n 119, 67. 138 Quoted in Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (revised ed., 1965) 257. 139 Quoted in Georges Levasseur, ‘Les crimes contre l’humanité et le problème de leur prescription’ (1966) 93 Journal de Droit Internationale 259, 270–271. 140 Luban, above n 136, 90. 141 Luban, above n 136, 88–90. 142 Nuremberg Judgment, above n 87, 249.

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the phrase ‘any civilian population’ in Article 6(c), as opposed to ‘any civilian’. For example, Schwelb says the word ‘population’ suggests ‘that a larger body of victims is visualised and that single or isolated acts committed against individuals are outside its scope’.143 Fourthly, a further suggestion was made in the highly influential 1948 report of the unwcc, which put forward eight principles summarising the elements of crimes against humanity derived from the London and Tokyo Charters and Control Council Law 10.144 The third principle said: (c) Isolated offences did not fall within the notion of crimes against ­humanity. As a rule systematic mass action, particularly if it was authoritative, was necessary to transform a common crime, punishable only under municipal law, into a crime against humanity, which thus became also the concern of international law. Only crimes which either by their ­magnitude and savagery or by their large number or by the fact that a similar pattern was applied at different times and places, endangered the international community or shocked the conscience of mankind, warranted intervention by States other than that on whose territory the crimes had been committed, or whose subjects had become their victims.145 This reasoning tries to link Article 6(c) with previous humanitarian interventions, a proposition expressly rejected by the drafters. The Report also relied upon the word ‘population’ for its conclusions.146 There are some difficulties with this argument. First, the text refers to ­murder and extermination separately, suggesting perhaps that one murder can be a crime against humanity.147 This was the view of Doudou Thiam, Special Rapporteur for the International Law Commission (ilc), who wrote in 1989 that the London Charter and the Tokyo Charter (along with Allied Council Control Law No 10, discussed in Chapter 3) were concerned not only with mass crimes (extermination, enslavement, deportation) but also ‘with cases ­involving i­ndividual victims (murder, imprisonment, torture and rape)’ and 143 144 145 146 147

Schwelb, above n 11, 191; see also Memorandum of the Secretary-General, above n 135, 67. History of The United Nations War Commission, above n 16. History of The United Nations War Commission, above n 16, 179. History of The United Nations War Commission, above n 16, 193. Alternatively, Schwelb says extermination was intended to cover the early stages of formulating a policy of large scale murder which are too remote to amount to complicity: Schwelb, above n 11, 192.

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there is no ‘mass’ element required for crimes against humanity.148 Similarly, the ilc in its 1996 Report noted that the requirement that the acts be committed in a ‘systematic manner or on a large scale’ was not included in the London Charter.149 Secondly, the crime of ‘persecution’ does not include a requirement that it be committed against ‘any civilian population’. It also covers ‘political’ persecutions, the victims of which do not readily form a ‘population’ as such. The victims of the Nazis, the subject of the Nuremberg Judgment, included not only groups, such as the Jews, but also any political opponent of the policies of Hitler. It could be argued, however, that the crime of persecution suggests that some policy element or systematic conduct is required. Early in the drafting of Article 6(c), there were references to a ‘policy of atrocities’150 but ultimately the term was dropped. Thirdly, it needs also to be remembered that the phrase ‘against any civilian population’ was deleted altogether from the definition in the Tokyo Charter so the crime could encompass attacks against the military. At the time this was not seen as being a radical departure from the Nuremberg precedent. In the end, it was the war nexus alone which was chosen as the so-called ‘international element’ – the feature distinguishing crimes against humanity from domestic crimes. The phrase ‘any civilian population’, in the history of the drafting, was primarily directed towards ensuring that the offences applied to cases where the civilians were of the same nationality as the perpetrator. It was to ensure that conduct which may not be a war crime, stricto sensu, because the victim was a civilian of one of the Axis powers or a citizen of a country such as Austria, which was never at war with Germany, could still be prosecuted at Nuremberg as a crime against humanity if linked to Germany’s aggression or war crimes. Hence, the phrase was primarily intended simply to provide that the victim could be a civilian of any population. The better view is that at Nuremberg the words, ‘any civilian population’, did not require that for all crimes against humanity there must be an attack against a civilian population, as such (implying an attack carried out in a systematic manner or on a large scale) or that the victim must belong to some group which shares some common feature marking it out for persecution. As a British Military Court at Hamburg in 1948 in the Feurstein case put it after the 148 Doudou Thiam, Seventh Report on the Draft Code of Offences against the Peace and Security of Mankind [1989] 2 Year Book of the International Law Commission 81, 89[64], un Doc. A/ CN.4/419 & Corr.1 and Add.1 (1989). 149 Report of the International Law Commission on the work of its forty-eighth session, 6 May– 26 July 1996, un gaor, 51st sess, Supp. 10, reprinted in [1996] 2 Year Book of the International Law Commission 79, 94, [3]–[4], un Doc. A/51/10 (26 July 1996) (‘1996 ilc Report’). 150 See above, Section 2.2.

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Genocide Convention was drafted ‘genocide is aimed against groups whereas crimes against humanity do not necessarily involve offences against or persecutions of groups.’151 The unwcc thought offences of the murder-type and ‘probably’ of the persecution-type could not be committed against members of the armed forces.152 Again, this does not appear to be borne out by the text, at least where the persecution-type crimes are concerned. The common law rule of interpretation, known as the ejusdem generis rule, may suggest that violence to the person is a requirement of ‘other inhumane acts’, thereby excluding property offences. The Nuremberg Judgment, however, was clear in its finding that plunder of public and private property is both a war crime and a crime against humanity. It also referred to numerous acts of economic or social persecution of the Jews without always making it clear whether they were relied upon as crimes against humanity or just as historical background. For example, the Judgment refers to the progressively more oppressive treatment of Jews consisting of discriminatory laws limiting the offices and professions open to Jews, restrictions on family life and rights of citizenship, burning and demolishing synagogues, looting businesses, imposing collective fines, seizing assets, restricting movement, creating ghettos and forcing the wearing of a yellow star.153 This narrative was repeated for individual defendants such that it is fair to conclude that at least the more severe of these acts of persecution were regarded as crimes against humanity. This view has been taken in subsequent cases.154 Both Schwelb155 and Lauterpacht156 support the view that ‘Pillage, 151 Trial of Valentin Feurstein and Others, Proceedings of a Military Court held at Hamburg (4–24 August 1948), Public Record Office, Kew, Richmond, file no. 235/525, Law Reports of Trials of War Criminals, u.n. War Crimes Commission (hmso: London, 1949), vol xv, 138. 152 History of The United Nations War Commission, above n 16, 178. 153 Nuremberg Judgment, above n 87, 243–247. 154 (icty) Prosecutor v Tadić (Trial Chamber Judgment), Case No IT–94–1–T (7 May 1997) (‘Tadić – Trial’), [632] [704]-[708]; Prosecutor v Kvočka et al. (Trial Chamber Judgment), Case No IT-98-30/1-T (2 November 2001) (‘Kvočka – Trial’), [184]–[205]; and (Nuremberg) United States v Flick and others 6 Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No 10 (‘Flick Case’), 27. See also United States v von Weizsäcker 13 Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No 10 (‘Ministries Case’), 471, 675–678; and (ictr) Prosecutor v Georges Ruggiu (Trial Chamber Judgment and Sentence), Case No ICTR-97-32-I (1 June 2000) (‘Ruggiu – Trial’), [21]. 155 Schwelb, above n 11, 191. 156 Hersch Lauterpacht, ‘The Law of Nations and the Punishment of War Crimes’ (1944) 21 British Year Book of International Law 58, 79.

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plunder, and arbitrary destruction of public and private property may, in their effects, be no less cruel and deserving of punishment than acts of personal violence’.157 5.4 Article 6(c) and the Need for a ‘state policy’ Article 6(c) of the London Charter contains no explicit requirement that crimes against humanity must be committed pursuant to a policy of a state. However, the definition necessarily implies the need for a state policy in two ways. First, Article 6(c) requires that crimes against humanity be committed ‘in execution of or in connection with any crime within the jurisdiction of the International Tribunal’, namely war crimes or the crime of aggression (or crime against the peace, as it was there referred to). The Tokyo Charter required a similar nexus.158 Both the crime of aggression and war crimes necessarily ­imply a connection with a state policy. The crime of aggression implies a formulation of a plan or policy for international intervention at the highest levels of the state, while a war crime requires state authorities’ involvement given the armed conflict must be of an international character. This same point is made by Luban.159 While, in theory, a crime may be committed by a ‘rogue’ soldier, such a crime is unlikely to be found to be ‘part of’ the relevant attack where they are not linked in some way to the authorities responsible for the relevant ‘attack’.160 Secondly, the opening sentence of Article 6 of the London Charter makes clear that one additional element (apart from the war nexus) that separates Article 6(c) from municipal crimes was that the defendants must be ‘acting in the interests of the European Axis countries’. Hence, a person who commits an isolated act against one or even a group of civilians cannot commit a crime against humanity under Article 6(c) unless the conduct is in support of some state policy or its interests. Of course, for a crime to be in execution of or in connection with a war of aggression presupposes conduct in support of an explicit state policy and one formulated at the highest level. Similarly, a crime in connection with war crimes will require state actors or at least action 157 158 159 160

Lauterpacht, above n 156, 79. See Chapter 2, Section 3. Luban, above n 136, 95. This was the finding of the Court in the British Occupied Zone in the Weller case: Decision of the Supreme Court for the British Zone dated 22 June 1948, S. StS 5/48, in Entscheidungen des Obersten Gerichtshofes für die Britische Zone, Entscheidungen in Strafsachen, vol. i, pp. 19–25.

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supported by the state so that the principles governing state responsibility are engaged. Hence, crimes against humanity as defined under Article 6, as a whole, do require conduct in service of a state’s interests and, thereby, some connection with a policy of a state. As de Menthon put it, the crime must be carried out for some ‘political ends’, or, perhaps more accurately, the crime must, when viewed objectively, serve some political ends. Schabas has argued to the same effect.161 This does not necessarily mean that either explicit state participation or even an explicit state policy to commit the crimes is required. Under Article 6, what is required is simply conduct which supports the interests of the state which most likely will be evidenced by state encouragement or, at least, state complicity or toleration. The more difficult issue is whether this political element ought to be regarded as an essential feature of the offence itself under international law or merely an ad hoc rule governing the Nuremberg Tribunal’s jurisdiction. This question is considered further below at Section 8. However, at the very least it can be said that it was the finding of the Nuremberg Judgment that the ‘crimes against humanity’ considered were in fact either war crimes or ‘were all ­committed in execution of, or in connection with, the aggressive war, and therefore constituted crimes against humanity’.162 6

Were Crimes against Humanity New Crimes in International Law?

Much has been written on this issue. It was submitted by the defendants at Nuremberg that the London Charter was an illegitimate legislative act which created new crimes ex post facto based on the victors’ power not international law.163 Three separate propositions are involved: (1) the Nuremberg Tribunal was applying international law; (2) crimes against humanity were not existing crimes under international law; and 161 William Schabas, ‘State Policy as an Element of International Crimes’ (2008) 98(3) Journal of Criminal Law and Criminology 953, 954, 961. 162 See above at Section 4.3. 163 See the Motion Adopted by All Defence Counsel on 19 November 1945 and the Statement Before the Nuremberg Tribunal of Dr Herman Jahrreis, Counsel for Defendant Jodl, in Wilbourn Benton and Georg Grimm (eds), Nuremberg: German Views of the War Trials (Southern Methodist University Press: Dallas, 1955) 27–75.

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(3) the Allies had no right under international law to punish German state officials for conduct towards German nationals in Germany. 6.1 Was the London Charter International Law? The Nuremberg Tribunal could have been exercising: (a) the law of the Allies over enemy combatants; (b) German occupation law as the sovereign power in Germany under that country’s unconditional surrender;164 or (c) international law. The terms of the London Agreement and Charter are somewhat confused on this question,165 as were the addresses of the prosecutors166 and the ­judgment of the Nuremberg Tribunal.167 The four allied nations were unquestionably the controlling powers in Germany. The political leaders of the four nations were, however, endeavouring to enact an international instrument, not just an occupation ordinance. It was intended to set a precedent in international law, particularly in outlawing aggression. This is reinforced by the fact that 19 countries subsequently signed the London Agreement. Accordingly, the Nuremberg Tribunal, whilst de facto a joint military occupation tribunal, was purporting to be an international court trying its enemies for international offences pursuant to an international treaty enacted for that purpose.168

164 See George Finch, ‘The Nuremberg Trial and International Law’ (1947) 41(1) American Journal of International Law 20, 22; Hans Kelsen, ‘The Legal Status of Germany according to the Declaration of Berlin’ (1945) 39(3) American Journal of International Law 518; and Egon Schwelb, ‘The Legal Status of Germany’ (1946) 40(4) American Journal of International Law 811. 165 See Schwelb, above n 11, 209–212. 166 See above, Section 3. 167 See above, Section 4.2. 168 The view of writers is varied on the question. Schwarzenberger, for example, says the Nuremberg and Tokyo Tribunals ‘were in substance more akin to municipal war crime courts than to truly international tribunals’: Georg Schwarzenberger, ‘The Problem of an International Criminal Law’ in Gerhard Mueller and Edward M. Wise (eds), International Criminal Law (Sweet & Maxwell: New York, 1965) 3, 31. Kranzbühler, counsel for Admiral Dönitz, questioned whether the Nuremberg Tribunal was truly an international court, stating that it was merely a joint occupation court: Otto Kranzbühler, ‘Nuremberg Eighteen Years Afterwards’ (1965) 14 De Paul Law Review 333, 337. Jescheck classified the imt as an occupational court: Hans-Heinrich Jescheck, Die Verantwortlichkeit der Staatsorgane nach Völkerstrafrecht (Ludwig Röhrscheid Verlag: Bonn, 1952) 285ff. Schwelb argues that to classify the Tribunal as a local occupation court does not sufficiently take account of the other features of the Tribunal and the London Charter: Schwelb, above n 11, 210. Schick says the Charter was intended to be international law not an occupation law: Franz

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Were the Proceedings on Count 4, Crimes against Humanity, Permitted under International Law? In the broad, three schools of thought exist.169 The first holds that crimes against humanity were not international crimes and the defendants’ convictions for these crimes by the Allies were not valid under international law. This camp includes Schwarzenberger,170 Schick,171 Jaspers,172 many German ­writers such as Ehard,173 Jescheck,174 Kranzbühler175 and Knieriem,176 Chief Justice Stone of the us Supreme Court177 and many government officials from the ­Allies themselves.178 The main arguments are twofold: first, the ill treatment of nationals by the state in their own country is not an international offence and, secondly, international law, outside of the case of war crimes prosecuted by belligerents against each other’s nationals ‘provides that no state shall intervene in the territorial and personal sphere of validity of another national legal order’,179 a fortiori where the defendants are state officials acting pursuant to their official duties. The second school of thought more or less accepts the novelty of this category of crimes under international law but holds that international law at that time did not recognise the nullum crimen sine lege rule in the same way 6.2

169

170 171 172 173 174 175 176 177 178

179

Schick, ‘The Nuremberg Trial and the International Law of the Future’ (1947) 41 American Journal of International Law 770, 781. See also Cryer, above n 77, 38–39. Some of these are canvassed in Kyle Chaney, ‘Pitfalls and Imperatives: Applying the Lessons of Nuremberg to the Yugoslavia War Crimes Trials’ (1995) 14(1) Dickinson Journal of International Law 57; and in Joseph Rikhof, ‘Crimes Against Humanity, Customary International Law and The International Tribunals for Bosnia and Rwanda’ (1995) 6 National Journal of Constitutional Law 231. Schwarzenberger, above n 65, 497–498. Schick, above n 168, 785. Karl Jaspers, ‘The Significance of the Nuremberg Trials for Germany and the World’ (1947) 22 Notre Dame Law Review 150. Hans Ehard, ‘The Nuremberg Trial against the Major War Criminals and International Law’ in Benton and Grimm, above n 163, 76 and 99–100. Jescheck, above n 168, 283–284. Otto Kranzbühler, ‘Nuremberg as a Legal Problem’ in Benton and Grimm, above n 163, 106 and 119. August von Knieriem, Nürnberg (Klett: Stuttgart, 1953). Alpheus Mason, Harlan Fiske Stone: Pillar of the Law (Viking Press: New York, 1956) 715. See above, Section 2.1. The conclusion of the Hetherington Inquiry in the uk was that the status of crimes against humanity in international law was unclear at the time of the Second World War: Thomas Hetherington and William Chalmers, Report of the War Crimes Inquiry (hmso: London, 1989) [6.44]. Schick, above n 168, 785.

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as it ­applied in some domestic legal traditions, particularly in civil law countries with a codified criminal law. In this category are, for example, Kelsen,180 Bassiouni,181 Woetzel,182 Wechsler183 and Cassese.184 It is said that the strict prohibition against ex post facto laws was then ‘a moral maxim destined to yield to superior exigencies whenever it would be contrary to justice’.185 Bassiouni, in his book length consideration of the matter, does not go so far. He says international law did prohibit ex post facto criminal laws but not completely.186 There existed some, though not total flexibility, to create new crimes by analogy. Hence, war crimes may be extended by analogy during war when directed at a belligerent’s own nationals. Whilst this matches the result at Nuremberg, the actual terms of Article 6(c) extended to conduct committed before the war. The third school holds that the crimes set out in Article 6(c) were existing crimes under international law. In this school are Lord Wright,187 Quincy Wright,188 Graven,189 Aroneanu,190 Pella,191 Levasseur192 and the many decisions of courts and tribunals after Nuremberg discussed in Chapter 3. Typical of the eclectic approach of this school, Quincy Wright draws upon ‘humanitarian interventions’ by states, the preamble to the Hague Convention of 1907, statements of governments at international conferences, conventions dealing with the rights of minorities, the content of extradition treaties, and the views of publicists such as Grotius.193 Frequently, writers try to overcome the lack of precedence by saying international law is more like the common law not the 180 181 182 183 184 185 186 187 188

189 190 191 192 193

Kelsen, above n 124, 164–165. Bassiouni, above n 2, Chapters 2–4. Robert K. Woetzel, The Nuremberg Trials in International Law (Stevens: London, 1962). Henry Wechsler, ‘The Issues of the Nuremberg Trial’ (1947) 62 Political Science Quarterly 11, 23–25. Cassese, above n 119, 69–72. Cassese, above n 119, 72. Bassiouni, above n 2, Chapter 4. Quincy Wright, ‘War Crimes under International Law’ (1946) 62 Law Quarterly Review 40, 48–49. Quincy Wright, ‘The Law of the Nuremberg Trials’ (1947) 41(1) American Journal of International Law 38; and Quincy Wright, ‘Legal Positivism and the Nuremberg Judgment’ (1948) 42(2) American Journal of International Law 405. Jean Graven, ‘Les crimes contre l’humanité’ (1950-i) 76 Recueil des Cours 427, 466–467 and 543–544. Eugène Aroneanu, Le Crime Contre L’Humanité (Dalloz: Paris, 1961) 48–50. Vespasien V. Pella, Mémorandum présenté par le Secrétariat, un Doc. A/CN.4/39 (24 ­November 1950) in [1950] 2 Year Book of the International Law Commission 278, 347. See Levasseur, above n 139, 270–271. Wright, ‘The Law of the Nuremberg Trials’, above n 188, 60–61.

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civil law system. It is based on custom which is declared to be law though such a declaration may not have any legal precedent.194 6.3 The Juridical Bases for Crimes against Humanity in 1945 There were three commonly accepted possible juridical bases for crimes against humanity in 1945, each yielding a different definition. 6.3.1 The Doctrine of Humanitarian Intervention The custom and practice of states, as detailed in Chapter 1, may be said to evidence both a doctrine of humanitarian intervention and the existence of international crimes under customary international law.195 As Shawcross put it, if international law allows intervention by force in the case of internal atrocities, it may be regarded as also permitting a belligerent in the course of its intervention to take into custody and try any individual suspected of being a party to such atrocities. The closest precedent for such a principle is the case of the intervention in Lebanon in 1860. The European Powers, after strong threats of intervention, won the agreement of Turkey both to a right to send troops to the area and to the creation of a Tribunal to try those responsible for atrocities against Christians with the Treaty Parties to have input into the Tribunal’s proceedings.196 On such a view, crimes against humanity are atrocities committed against persons on a large scale where the territorial state concerned is either unable or unwilling to respond. The problem with this view, apart from the doctrine’s unclear status before 1914, is that after the First World War the sources relied upon in support of the outlawing of aggression can also be relied upon to deny the right of humanitarian intervention by force. That was certainly how many of the Allies and, ultimately, the drafters of the London Charter viewed the matter at the time. Crimes against peace pull in the opposite direction to crimes against humanity. 6.3.2

The General Principles of Law as Recognised by Civilised Nations197 This represents the widest juridical basis for crimes against humanity and probably the most controversial. Chapter 1 explored the strong link between the natural law tradition and the concept of crimes against humanity. From the antiquities to the present there is a golden thread – certain values are universal

194 Wright, above n 187, 51. 195 See Chapter 1, Section 5.1. 196 Chapter 1, Section 5.1.2. 197 See icj Statute, Art 38(c).

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to all humanity, and hence, certain crimes, such as murder, extermination, enslavement, deportation and other inhumane acts,198 are universal crimes the world over. Can this be a ‘general principle of law as recognised by civilised nations’? Schwarzenberger,199 Werle,200 Tomuschat201 and Meron202 think this source is the strongest foundation for crimes against humanity at Nuremberg. ‘General principles’, including the domestic penal law of civilised nations, as a source for crimes against humanity, features in Jackson’s paper before the London Conference, the Indictment at Nuremberg and in the addresses of Shawcross203 and de Menthon at Nuremberg.204 It also features in several cases ­under the Allies’ Control Council Law No 10 and Canadian law which enacted the offence of crimes against humanity after the London Charter.205 Resort to ‘general principles’ in international criminal law is controversial. Whilst the principle may only require the objective fact that most countries uphold the same principle of law in their legislation or case law, eminent publicists immediately after the war did not consider that, for example, murder was an international crime by reason of this source.206 According to Schachter,207 198 These are the crimes listed in Article 6(c) of the London Charter. 199 Schwarzenberger, above n 65, 23–27. 200 ‘Here too, however, one could argue that a recognised source of international law – ­general principles of law – could justify the punishment of crimes against humanity’: Gerhard Werle, Principles of International Criminal Law (tmc Asser Press: The Hague, 2005) 10. 201 Christian Tomuschat, ‘The Legacy of Nuremberg’ (2006) 4(4) Journal of International Criminal Justice 830, 834–835. 202 Theodor Meron, ‘Revival of Customary Humanitarian Law’ (2005) 99(4) American Journal of International Law 817, 830. 203 ‘If murder, rapine, and robbery are indictable under the ordinary municipal laws of our countries, shall those who differ from the common criminal only by the extent and systematic nature of their offences escape accusation?’: quoted in Werle, above n 200, 10. 204 See Trial of the Major War Criminals, above n 1, vol i, 65. 205 See Section 7.2 below and Chapter 3, Sections 2.2, and 4.3. 206 See, for example: Lassa Oppenheim and Hersch Lauterpacht, International Law – A Treatise (8th rev. ed, Longman: London, 1955) vol i, 29–30; and Max Sorensen, ‘Principes de droit international public’ (1960-iii) 101 Recueil des Cours 26, 26–34. 207 The universally accepted common crimes – murder, theft, assault, incest – that apply to individuals are not crimes under international law by virtue of their ubiquity, remarks Schachter: Oscar Schachter, International law in Theory and Practice (Nijhoff: Dordrecht, 1991) 50ff. (United States) The us Court of Appeal in Flores v Southern Peru Copper Corp 343 F. 3d 140 (2nd Cir., 2003), 155 said: ‘[T]he mere fact that every nation’s municipal [i.e.: domestic] law may prohibit theft does not incorporate ‘the Eighth Commandment Thou Shalt not steal... [into] the law of nations’. It is only where the nations of the world have

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Cassese208 and Bassiouni,209 neither domestic penal law nor ‘general principles’ can create international crimes, at least not consistently with some minimal requirement of specificity. For example, Cassese writes: One can also add that it is indeed very difficult for conduct to be internationally criminalised on the sole basis of a general principle of law; such general principles, it is submitted, may rather fulfil the role of filling gaps in the treaty or customary regulation of offences, or the way such offences are prosecuted and punished.210 To others the intuitive belief that the conduct is criminal is a sufficient source of international law. Hence, the debate is often seen as a battle between the naturalists and the positivists.211 The positivists probably represented the dominant view in 1945 (and today), but even the positivist may be able to accept that acts which are crimes all the world over are ‘criminal according to the general principles of law recognised by the community of nations’. For example, Jescheck suggests it may be necessary for international criminal law to resort to ‘general principles of law derived by the court from national laws of legal systems of the world’ (as stated in Article 21(1)(c) of the icc Statute) because classic international law did not offer sufficient rules of criminal law. ‘National law was not only to fill these gaps, but also to take psychological reasons into

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demonstrated that the wrong is of mutual, and not merely several, concern, by means of express international accords, that a wrong generally recognised becomes an international law violation’. ‘… such [general] principles of law do not contain any specific prohibition of crimes, which can only be found in customary international law’: Cassese, above n 119, 149, fn 27. ‘… general principles of law can seldom satisfy the minimum standards of specificity that legality requires’: Bassiouni, above n 2, 207. The author also says ‘it is important to bear in mind that ‘general principles’ are not, in this writer’s opinion, capable in and of themselves, of creating international crimes unless they rise to the level of jus cogens’: ibid, 283. Antonio Cassese, ‘Balancing the Prosecution of Crimes against Humanity and Non-Retroactivity of Criminal Law: The Kolk and Kislyiy v Estonia Case before the echr’ (2006) 4 Journal of International Criminal Justice 410, 416, citing (icty) Prosecutor v Furundžija (Trial Chamber Judgment), Case No IT-95-17/1-T (10 December 1998) (‘Furundžija – Trial’), [177]–[178]. Cassese also says: ‘General principles of law recognised by the community of nations constitute a subsidiary source, which courts may resort to whenever primary sources of international law (treaty and custom) do not yield any results’: ibid, 415. See also Werle, above n 200, 47–48. See Wright, ‘Legal Positivism and the Nuremberg Judgment’, above n 188; and Bassiouni, above n 2, Chapter 3.

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account’.212 Even if one assumes that certain domestic crimes are also international offences, this does not address the oft-stated prohibition on states, at least by force, imposing their jurisdiction over the acts of another state towards its own nationals within its own territory. 6.3.3 The Preamble to the Hague Convention of 1907 From this international source, and the attempts to prosecute those responsible for genocide in Armenia, it may be argued that a belligerent during war is subject to the ‘laws of humanity’ in respect of its treatment of its own ­nationals.213 The Hague Convention may demonstrate state ‘recognition’ of the general principles of criminal law of civilised nations during times of war. After the First World War, however, no definition of the ‘laws of humanity’ was agreed upon and, hence, its content remained unclear. Again, this source does not answer the complaint about jurisdiction. In the result, it is probably most persuasive to accept that crimes against humanity were novel international crimes. More clearly, the Allies, merely by their own treaty, had no right under international law to force German officials to appear before their own military tribunal for conduct towards German nationals, including for acts before the commencement of the war.214 This was the dominant view expressed at the time by German academics such as Ehard,215 Jescheck,216 Kranzbühler217 Dahm,218 and Schätzel219 which led to their being a lack of acceptance in that country in the 1950’s of the legal foundation for the Tribunal’s Judgment with respect to the charges of crimes against humanity and crimes against peace.220 212 Hans-Heinrich Jescheck, ‘The General Principles of International Criminal Law Set Out in Nuremberg, as Mirrored in the icc Statute’ (2004) 2(1) Journal of International Criminal Justice 38, 40. 213 See Chapter 1, Section 6. 214 No doubt conscience of this, the Nuremberg Tribunal, in the result, did not base any actual verdict solely upon such conduct. 215 Hans Ehard, ‘The Nuremberg Trial Against the Major War Criminals and International Law’ (1949) 43(2) American Journal of International Law 223, 231 and 243. 216 Jescheck, above n 168, 283–284. 217 Kranzbühler, above n 168, 338. Kranzbühler was lead defence counsel for Grand Admiral Karl Doenitz who was sentenced to a prison term of 10 years. 218 Dahm, above n 132, 292. 219 Wilhelm Schätzel, ‘Das Recht des Kriegsverbrechers auf rechtliches Gehör’, in Wilhelm Sauer, Festschrift für Wilhelm Sauer (Walter de Gruyter: Berlin, 1949) 249, 249. 220 See Christoph Burchard, ‘The Nuremberg Trial and its Impact on Germany’ (2006) 4(4) Journal of International Criminal Justice 800.

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The Principle of Nullum Crimen Sine Lege and the Concept of Crimes against Humanity

Nearly every prosecution for crimes against humanity, from Nuremberg in 1946 to the prosecution of Saddam Hussein in 2006, has been met by a claim by the defence that the prosecution has breached the prohibition on retroactive criminal punishment. Every such attempt has failed. Nevertheless, a continual tension exists between the principle nullum crimen sine lege and the concept of crimes against humanity. This is so because frequently the later concept is alleged to be a pre-existing international customary norm which, absent any clear treaty definition or authorisation, is then used to justify the application of charges of crimes against humanity irrespective of the absence of such an offence in local positive law at the time. This section outlines the main arguments and offers some conclusions on the matter. 7.1 The Nullum Crimen Principle at Nuremberg The proposition put forward by scholars, such as Cassese and Bassiouni, amongst others,221 that an international treaty of four nations in 1945 could, but cannot now, create ex post facto international offences in order to avoid injustice is not a very attractive principle. It really accepts the argument in the first school of thought set out in Section 6.2 that while the punishment at Nuremberg may have been just, it was not grounded in any existing rule of international law. In 1945 the very notion of an ‘international criminal law’ was clouded in doubt. So it is hardly surprising that international law may not have yet formulated its own equivalent version of the nullum crimen principle. The principle is frequently regarded as encompassing a principle of specificity, the ban of analogy and a prohibition on retroactivity.222 Whilst such a principle in 1945 was well entrenched in the civil law tradition it was not as fully developed in other legal systems, particularly the common law tradition. Bassiouni, in his work on crimes against humanity, undertook a comparative study of ­legal systems at the time of Nuremberg.223 He concluded that a strict p ­ rinciple ­prohibiting any retroactive criminal punishment, including a ­prohibition against applying a new offence by analogy with existing criminal offences, could not be said to be a general principle of law recognised by the community of ­nations at the time. On the other hand, Jescheck has expressed the view that

221 See Section 6.2 above. 222 See, for example, Jescheck, above n 212, 38. 223 Bassiouni, above n 2, Chapter 4.

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i­nternational criminal law of the time (limited essentially to war crimes) did contain a ban on analogy as well as the principle of non-retroactivity.224 A distinction, however, needs to be made between, on the one hand, acceptance of the view that the lex lata of international customary law did not contain the nullum crimen principle in 1945 (including a strict prohibition against ex post facto punishment) and, on the other hand, the assertion of an alleged right of some nations in 1945 to create and apply new international offences ex post facto. The difficulty with such an asserted right becomes more acute when it is applied by a military tribunal towards the nationals of states which have not been a party to the creation of those offences. For example, Dahm, somewhat typically of the reaction of German scholars at the time, wrote that the individual ought not only to be protected against the state but also against the ‘civitas maxima of the international community’.225 Much less has been written about the Allies’ right to prosecute the Nazis in respect of criminal offences, not alleged to be international offences, but simply as new criminal offences enacted by them whilst acting as the occupying powers in and for Germany.226 Finch wrote at the time that an occupation law could cover conduct after but not before the commencement of hostilities.227 The reason for such a distinction is not clear. Perhaps a better commencing date would be after the Allies declared that they would hold the enemy individually accountable for atrocities perpetrated against their own nationals so that the perpetrators were on reasonable notice of potential criminal prosecutions. Jescheck, who regards the London Charter as an occupational law, expresses the view that the Allies’ powers of prosecution of German state officials was governed by international law (as expressed, for example, in the Hague Convention of 1907, the Geneva Convention relative to the Treatment of Prisoners of War of 1929 and state practice) and only extended to war crimes.228 The charge of crimes against humanity and crimes against peace went beyond pre-­ existing ‘occupational law’. This essentially is the conclusion also reached by this text in the discussion at Section 6 above. On the other hand, Schwarzenberger assumes the Allies, as the sovereign power in Germany (not just the 224 Jescheck, above n 212, 42. 225 Georg Dahm, Zur Problematik des Völkerstrafrechts (Vandenhoeck & Ruprecht: Göttingen, 1956) 61. 226 Schick does not consider the matter because he says the Allies were not proceeding pursuant to their powers as occupiers: Schick, above n 168, 781. 227 Finch, above n 164, 22–23. 228 Jescheck, above n 212, 38–39.

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‘occupying power’) could enforce retrospective criminal laws for Germany.229 Whilst, by virtue of Germany’s unconditional surrender, this may be right as a matter of strict international law at the time, the Allies were at pains to distance themselves from the exercise of any arbitrary sovereign power not grounded in some pre-existing norms. This denial of an exercise in arbitrary power was repeated by the Nuremberg Tribunal itself. This raises the question of what is the essence or true purpose of the nullum crimen principle.230 Three possible approaches to the principle can be discerned. First, the common starting point for the nullum crimen principle lies in the French revolution and the need to ensure the protection of the accused against the arbitrariness of a judge’s interpretation of loose legal concepts. The fear is that the judiciary may use broad criminal laws to support a sovereign’s political purposes against dissidents. By this rationale, the real issue is whether or not the application of the law can be regarded as being ‘arbitrary’. Such a notion is, of course, inherently imprecise. Nevertheless, it would not cover a case where the accused did not genuinely believe that his or her conduct was innocent or not blameworthy. Hence, it has sometimes been argued that the principle nullum crimen, particularly in the common law tradition at the time of the Second World War, has no application to conduct which is malum in se.231 This may be what the Tribunal had in mind when it stated the principle nullum crimen is not a restriction on sovereignty but is ‘in general a principle of justice’.232 This view was not limited to lawyers from an Anglo-American background. Carl Schmitt, a German lawyer, argued that the viciousness of crimes against humanity is malum in se. In such a case, pre-existing positive law was unnecessary to establish the criminal nature of such conduct. Indeed, argued Schmitt, for a defendant to rely upon the nullum crimen objection to the charge of crimes against humanity would reflect badly upon the defendants.233 229 Schwarzenberger, above n 168, 30–31. 230 As to the various rationales see Albin Eser, in Adolf Schönke and Horst Schröder, Strafgesetzbuch (27th ed, Beck: Munich, 2006), 1ff. 231 This is the view of Cassese who writes that at the time international law did not prohibit the retroactive application of criminal laws to ‘conduct that is socially harmful or causes danger to society’: see above n 210, 416–417. 232 Nuremberg Judgment, above n 87, 217. 233 See Carl Schmitt, ‘Das internationalrechtliche Verbrechen des Angriffskrieges und der Grundsatz “Nullum crimen, nulla poena sine lege”’, reprinted in Helmut Quaritsch (ed.), Das internationalrechtliche Verbrechen des Angriffskrieges und der Grundsatz ‘Nullum crimen, nulla poena sine lege’ (Duncker: Berlin, 1994) 15, 23. According to Burchard, Schmitt laid down his analysis in an expert opinion which was to be, but was never actually used in

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Secondly, there is the stricter view, popular in the German legal tradition based on the work of Anselm von Feuerbach, that ‘fair notice’ of criminal punishment must be given to an accused.234 This legal rationalist view of things requires in all cases that the crime be the subject of some prior positive law. As Christoph Burchard points out ‘German lawyers call for a clear lex that lays down a criminal sanction for such an illegal act; without such a law, individuals cannot be held accountable.’235 It is argued that this is too important a principle to permit derogation based upon some notion of a higher justice. Hence, as Ehard put it in 1949, it is: immaterial whether the defendant considers himself above the law …. Even the criminal enjoys the protection of the law, although he does not in his own mind recognize the binding force of the legal order.236 Similarly, Jescheck criticises the Nuremberg Tribunal for, contrary to prevailing legal opinion, having a ‘relaxed attitude’ to the nullum crimen principle which appeared to justify the conviction of Streicher for the persecution of Jews as a crime against humanity (a crime unknown to international law) and ­irrespective of any local law.237 It should be noted that the Nazis themselves removed the nullum crimen principle from the German Criminal Code in 1935. Based upon this fact, it was argued by Jackson at Nuremberg238 and by Bassiouni239 that the Nazis could hardly complain about a retrospective application of the criminal law which they had accepted as possible in the German legal system of the time.

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235 236 237

238 239

the Flick Case, above n 154. It was only published in 1994. Nevertheless, the expert opinion was passed on to other defence counsels like Kranzbühler: above n 217, 807, fn 40. The German author Franz von Liszt, relying on the works of Anselm Feuerbach, called the nullum crimen principle the ‘Magna Carta of the criminal’: Franz von Liszt, ‘Deterministische Gegner der Zweckstrafe’ (1893) 13 Zeitschrift für die gesamte Strafrechtswissenschaft 325, 358. Burchard, above n 220, 828–829. Ehard, above n 215, 236. Jescheck, above n 212, 41–42. The French translation of the Nuremberg Judgment suggests the Tribunal was acutely aware of this charge and it was at pains to record that the same conduct was in any event also a war crime, being incitement to murder Jews in occupied territories: see text accompanying notes. Trial of the Major War Criminals, above n 1, vol i, 170. M. Cherif Bassiouni, ‘The Nuremberg Legacy: Historical Assessment Fifty Years Later’ in Bradley Cooper (ed), War Crimes. The Legacy of Nuremberg (tv Books: New York, 1999) 291, 298.

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­ ccording to von Hodenberg, however, it was hypocritical for the Allies to A ­reinstitute the nullum crimen principle in the German Criminal Code, but then to apply international criminal law with retroactive force much as the Nazis had done within Germany.240 Many in Germany had sympathy for the remarks of Kranzbühler, who, as one of the lead defence counsel at Nuremberg, stated: Nuremberg was conceived, and can only be understood, as a revolutionary event in the development of international law. If one were to tackle the criticism of the venture with the idea that no ex post facto laws may be applied, or similar conservative conceptions, one need not speak about Nuremberg at all. Law in the conventional sense of the term had been knowingly disregarded at Nuremberg.241 There exists, however, a third approach. This recognises that ‘international criminal law’ does not operate in a vacuum. It exists alongside the domestic criminal law of states – being a body of law whose core principles may be regarded as being of universal application. Under this third approach, provided an international offence does not travel beyond the general principles of criminal law recognised by the community of nations, the nullum crimen principle can have no application. This was recognised at an early stage by those ­contemplating prosecuting the Nazis for conduct which subsequently was encompassed within the charge of ‘crimes against humanity’. For example, Wechsler (Assistant Attorney General) in a memorandum to the us Attorney General, stated: It may be opposed to this view that any treaty definition which goes beyond the laws of war would have retrospective application in violation of the principle nullum crimen sine lege … I think it a sufficient answer that the crime charged involves so many elements of criminality under the accepted laws of war and the penal laws of all civilized states that the incorporation of the additional factors in question does not offer the type of threat to innocence which the prohibition of ex post facto laws is designed to prevent.242 240 Hodo von Hodenberg, ‘Zur Anwendung des Kontrollratsgesetzes Nr. 10 durch deutsche Gerichte’ (March 1947) Süddeutsche Juristen-Zeitung 114, 120. 241 Kranzbühler, above n 168, 335. Kranzbühler was lead defence counsel for Grand Admiral Karl Doenitz who was sentenced to a prison term of 10 years by the imt. 242 Memorandum dated 29 December 1944: see Bradley Smith, The American Road to Nuremberg, above n 32, doc. 27, 84 at 86.

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This was, in essence, the submission of de Menthon, the French Prosecutor at Nuremberg – provided crimes against humanity followed the accepted elements of the penal laws of civilised states, the defendants could not complain about any injustice.243 By and large, this argument was accepted by most German scholars and lawyers244 such as Berber245 and Jescheck, who followed de Menthon to hold that a crime against humanity was actually no more than a politically motivated and systematic commission of ordinary crimes, such as theft, murder and manslaughter.246 Similarly, Dahm concluded that ‘crimes against humanity regularly represent common offences’;247 hence, the nullum crimen objection could not be raised for this charge before the Nuremberg Tribunal. 7.2 The Nullum Crimen Principle after Nuremberg After the war, the Allies (ussr, the United States, Great Britain and France) administered Germany through the Control Council. Law No 10 (ccl 10) established Tribunals in each of the zones of occupation in Germany to try persons accused of committing war crimes, crimes against peace and crimes against humanity.248 These proceedings are discussed in Chapter 3. Defendants frequently complained about the retrospective application of the offence of ‘crimes against humanity’ created by ccl 10 which was universally rejected by the tribunals. In the Hostages Case, the Tribunal said: It is not essential that a crime be specifically defined and charged in accordance with a particular ordinance, statute or treaty if it is made a crime by international convention, recognised customs, and usages of war, or the general principles of criminal justice common to civilised nations generally. If the acts charged were in fact crimes under ­international law

243 Ibid. 244 See Burchard, above n 220, 807, who also cites Verdross and Simma, above n 132, 226; and Reibstein, above n 132, 332. 245 Friedrich Berber, Lehrbuch des Völkerrechts, Vol. ii (Beck: Munich/Berlin, 1962) 255. 246 Jescheck, above n 168, 298ff. This was despite Jescheck’s view that the charge of crimes against humanity went beyond pre-existing ‘occupational law’ (as he put it) which, at least for state officials, only extended to war crimes: above n 212, 38–39. 247 Dahm, above n 132, 300 (‘Verbrechen gegen die Menschlichkeit sind in aller Regel zugleich auch gemeine Verbrechen’), quoted in Burchard, above n 220, 807. 248 See Allied Control Council Law No 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, 20 December 1945, Official Gazette of Control Council for Germany, no. 3, 50–55 Berlin (31 January 1946) (‘ccl 10’).

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when committed, they cannot be said to be ex post facto acts or retroactive pronouncements249 In the RuSHA Case, the Tribunal referred to the Hague Convention of 1907250 and said the acts of the defendants were in violation ‘of the laws and customs of war, of the general principles of criminal law as derived from the criminal law of all civilised nations, of the internal penal laws of the countries in which such crimes were committed’.251 In the Einsatzgruppen Case,252 the Tribunal stated that it ‘has jurisdiction to try all crimes against humanity as long known and understood under the general principles of criminal law’.253 Accordingly, the nullum crimen principle cannot apply as ‘no one can claim the slightest pretence at reasoning that there is any taint of ex post factoism in the law of murder.’254 In the Medical Case the Tribunal said performing medical experiments on persons (including German nationals) which sometimes lead to their death was ‘in complete disregard of international conventions, the laws and customs of war, the general principles of criminal law as derived from the criminal law of all civilized nations and Control Council Law No 10.’255 In the result, the us military courts under Control Council Law No 10, which also sat at Nuremberg, frequently resorted to the ‘general principles of criminal justice’ to deny that the charges of crimes against humanity either represented new offences or infringed the nullum crimen principle.256 Some have today criticised such a lax approach to the prohibition against retroactive punishment as being inconsistent with the modern approach,257 whilst

249 (Nuremberg) United States v List et al. 11 ccl 10 Trials 1230 (1950) (‘The Hostages Case’), 1239. The Tribunal also said that customary international law must be elastic enough to meet new conditions. 250 Convention Respecting the Laws and Customs of War on Land, done at The Hague, The Netherlands, opened for signature 8 October 1907, 187 Consolidated Treaty Series 227 (entered into force on 26 January 1910). 251 (Nuremberg) United States v Ulrich Greifelt 4 ccl 10 Trials 597 (‘The Ru Case’), 618. 252 (Nuremberg) United States v Otto Ohlendorf et al. 4 ccl 10 Trials 411 (‘The Einsatzgruppen Case’), 411, 412 and 415–416. 253 (Nuremberg) The Einsatzgruppen Case, above n 252, 499. 254 (Nuremberg) The Einsatzgruppen Case, above n 252, 459. 255 (Nuremberg) United States v Karl Brandt 2 ccl 10 Trials 171 (‘The Medical Case’), 183. 256 See Chapter 3, Section 2.2.4 and The Hostages Case, above n 249, reprinted in (1948) 15 Annual Digest 632, 634–635. 257 See Mohamed Shahabuddeen, ‘Does the Principle of Legality Stand in the Way of Progressive Development of the Law?’ (2004) 2 Journal of International Criminal Justice 1007.

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others uphold the essential validity of the conclusion reached for the conduct in question.258 Interestingly, the German Supreme Court in the British Occupied Zone when dealing with charges of crimes against humanity under ccl 10 followed the more relaxed approach of the Nuremberg Tribunal towards the nullum crimen principle. It held that: [r]etroactive punishment is unjust when the action, at the time of its commission, falls foul not only of a positive rule of criminal law, but also of the moral law (Sittengesetz). This is not the case for crimes against humanity. In the view of any moral-orientated person, serious injustice (schweres Unrecht) was perpetrated, the punishment of which would have been a legal obligation of the State. The subsequent cure of such d­ ereliction of a duty through retroactive punishment is keeping with justice. This also does not entail any violation of legal security ­(Rechtssicherheit) but ­rather the re-establishment of its basis and presuppositions.259 According to Burchard, ‘[w]hile German jurists vehemently defended its r­ etroactive application in the years 1947–1949, in the years up to 1951, ccl 10 was increasingly evaded by the West German judiciary, partly because of its alleged violation of the nullum crimen principle’ and this coincided with the mood in the country as a whole which viewed the Nuremberg proceedings from the 1950’s in a negative light.260 In 1949, West Germany, by Article 103 Section 2 of the Grundgesetz, enacted a prohibition on ex post facto ­prosecutions ­without any exceptions. This can be contrasted with the position in East ­Germany (gdr). Under Article 135 Section 3 of the gdr’s 1949 Constitution, an exception to the prohibition against retroactivity was allowed in order ‘to overcome Nazism, Fascism and Militarism or that were necessary to prosecute crimes against humanity’. This exception was not repeated in the 1968 and 1974

258 See Meron, above n 202. 259 (Nuremberg) Case against Bl., Supreme Court for the British Zone in Entscheidungen des Obersten Gerichtshofes für die Britische Zone in Strafsachen, Judgment of 4 May 1948, vol i, 1–6, at 5 (‘Entscheidungen’) (translation from Cassese, above n 119, 72, fn 15). See also M. and others, Supreme Court for the British Zone in Entscheidungen, Decision of 28 March 1950, vol ii, 375–381, at 380–381. 260 Burchard, above n 220, 811–812.

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­ onstitutions, but Article 91 made crimes against humanity, crimes against C peace and war crimes directly binding.261 The Supreme Court of Canada in Regina v Finta had to consider the validity of the retrospective domestic application of crimes against humanity to a former Nazi official.262 Cory J (for the majority) followed the view of Professor Kelsen that any retrospective application of the law was just and permissible.263 Relying principally upon ‘the common domestic prohibitions of civilised nations’ (citing Schwarzenberger in support), La Forest J (in dissent) concluded that no retroactive punishment for crimes against humanity was involved.264 The same issue arose in the Australian High Court decision of P­ olyukhovich v The Commonwealth265 where the parliament had also introduced new ‘war crimes’, analogous to persecution as a crime against humanity, into local law and sought to apply that law retrospectively to an alleged Nazi war criminal living in Australia. Toohey J, in the majority, said the London Charter and ccl 10 codified crimes against humanity in international law266 but the ­former represented the better codification of international law (which required a war nexus) because it was the exercise of an international jurisdiction over Nazi war criminals.267 Brennan and Deane JJ, in dissent, would have struck down the statute as impermissible retroactive criminal law. Brennan J thought crimes against humanity had an uncertain status at the time of the Second World War.268 Dawson J, as part of the majority, did not consider whether or 261 ‘The generally accepted norms of international law relating to the punishment of crimes against peace and humanity and of war crimes constitute directly binding law. Crimes of this kind do not fall under the statute of limitations.’ (‘Die allgemein anerkannten Normen des Völkerrechts über die Bestrafung von Verbrechen gegen den Frieden, gegen die Menschlichkeit und von Kriegsverbrechen sind unmittelbar geltendes Recht. Verbrechen dieser Art unterliegen nicht der Verjährung’): quoted in Burchard, above n 220. 262 (Canada) Regina v Finta, above n 134; see also discussion in Judith Bello and Irwin Cotler, ‘Regina v Finta’ (1996) 90(3) American Journal of International Law 460; and Lippman, above n 32, 245–249. 263 Burchard, above n 220, 874. 264 Burchard, above n 220, 764, 783–784. 265 (Australia) (1991) 172 clr 501. 266 (Australia) (1991) 172 clr 501, 675–676. Toohey J relies upon diplomatic instances and legal commentary in the nineteenth century, the Report to the Peace Conference of 1919, the Martens clause in the Hague Convention, and the Municipal Penal Law of States. 267 (Australia) (1991) 172 clr 501, 676. 268 (Australia) (1991) 172 clr 501, 587–588.

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not crimes against humanity were existing offences because, in his view, ‘the wrongful nature of the conduct’ could not ‘have been described as innocent or blameless conduct merely because of the absence of proscription by law’.269 Hence, the three main schools of thought as to the customary law status of Article 6(c) of the London Charter, discussed in Section 6, are reflected in these judgments. The view of Toohey J that the London Charter, with its war nexus, codified, or intended to codify, international law is particularly unpersuasive and is not born out by the history of its drafting.270 The issue arose again in the trial and conviction of Saddam Hussein and six co-accused for crimes against humanity allegedly committed in 1982. The offence was first introduced into Iraqi law after the us led invasion of the country in 2003.271 It defined the offence in line with Article 7 of the icc Statute rather than Article 6(c) of the London Charter and, hence, without a war n ­ exus. ­Article 19(2) of the new Constitution and Article 1 of the new Penal Code (as well as penal law No 111 of 1969) enshrined the prohibition against punishment ‘except for an act the law considers a crime at the time of its commission’. The defendants relied upon this principle to complain about the charges of crimes against humanity. The Iraqi High Tribunal stated that ‘[t]hese objections if true are considered very serious’.272 It answered the claim with detailed argument. It accepted the correct position to be that local crimes under Iraq’s Constitution require legislation. On the other hand, international crimes may be found in custom and can be punished in a state273 if the conduct at the time was an offence under international customary law without any written local law being in operation at that time and even if local law was contradictory.274 Like the approach of the Tribunals under ccl 10 discussed above, it thought that ‘crimes against humanity’ existed in international customary law prior to 1945 and the acts 269 (Australia) (1991) 172 clr 501, 643. This conclusion was in respect of the law’s validity under the Australian Constitution rather than under international law. 270 See Section 2 and in particular the remarks of Fyfe accompanying notes above. 271 See Chapter 5, Section 3.5. 272 (iht) The judgment and sentence in Al Dujail, Case No 1/9 First 2005, was issued by the Iraqi High Tribunal Trial Chamber on 5 November 2006, unofficial English translation accessed online at on 22 April 2007. This was upheld by the Appellate Chamber on 26 December 2006, unofficial English translation accessed online at on 22 April 2007. 273 The Court referred to England, Australia, Canada, Belgium, France and Italy as being examples of this. 274 It relied upon Article 11 of the Universal Declaration of Human Rights and Article 15 of the iccpr, discussed below.

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(murder, imprisonment, torture, theft and plunder of property) were crimes under both Iraqi law, and the penal law of all nations.275 It held that ‘crimes against humanity’, as understood in modern international law and without a war nexus, had by 11 November 1970 entered i­ nternational customary law – a proposition considered, and very much doubted, in ­Chapter 3.276 It also relied upon Article 15(2) of the International Covenant on Civil and Political Rights (iccpr), discussed below. It should be noted that the Tribunal had jurisdiction over domestic offences, which the Tribunal clearly believed was also applicable, so, unlike the case of Nuremberg, the conviction for crimes against humanity was largely symbolic. Article 7 of the European Convention on Human Rights, Article 15 of the International Covenant on Civil and Political Rights and Other International Instruments Article 7 of the European Convention on Human Rights277 (in turn based upon Article 11 of the Universal Declaration of Human Rights) is in the following terms:

7.3

1.

2.

No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. This article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according the general principles of law recognized by civilized nations.

The wording of Article 7(1) appears to support a strict approach to the principle of legality, one at odds with the relaxed approach taken at Nuremberg. In reality, the European Court of Human Rights has adopted a liberal interpretation of the Article. Ill-defined crimes at common law, including new interpretations 275 Later references suggest, however, that it may have accepted the possibility that before 1970 there was a need for a war nexus. 276 It relied principally upon the 1968 Convention On The Non-Applicability Of The Statutes Of Limitations To War Crimes And Crimes Against Humanity which entered into force on 11 November 1970, discussed in Chapter 3, Section 3.1. 277 Convention for the Protection of Human Rights and Fundamental Freedoms, done in Rome, Italy, opened for signature 4 November 1950, 213 unts 222 (entered into force 3 September 1953).

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of existing crimes have been upheld provided such an interpretation can be said to be reasonably accessible and foreseeable on the part of a d­ efendant with the aid of legal advice.278 Further, any de facto immunity enjoyed by a defendant who is a former state official is not relevant. In the German Border Guards case, former state officials from East Germany were prosecuted for implementing that state’s ‘shoot to kill’ policy towards those attempting to leave the country.279 The fact that the officials could not have foreseen a prosecution could not be prayed in aid if, as found by the Court, their conduct was in fact unlawful at the time. This approach was also followed by the Supreme Court in Germany. It, however, appeared to go further. It also relied upon human rights principles to hold that the state order to shoot persons at the border was void and Article 103(2) of the Grundgesetz could not uphold such inhumane defences or state orders. This would represent something of a return to the lax approach to the principle of legality adopted by the Nuremberg Tribunal but instead of referring to the needs of ‘justice’, the human ‘right to life’ was invoked as the superior principle. Article 7(2) is of particular relevance when it comes to charges of crimes against humanity. The preparatory works disclose an intention to prevent the nullum crimen principle affecting ‘laws, which under the very exceptional circumstances at the end of the Second World War, were passed in order to suppress war crimes, treason and collaboration with the enemy and do not aim at any legal or moral condemnation of these laws’.280 It could be seen as adopting the third approach to the nullum crimen principle discussed above as enunciated by de Menthon at Nuremberg, many scholars at the time and the approach of the subsequent proceedings before us military tribunals at Nuremberg. The European Commission of Human Rights has relied upon Article 7(2), rather than the 7(1), to uphold the validity of ex post facto local 278 See, for example, (ECtHR) S.W. v The United Kingdom (Decision on Merits), European Court of Human Rights, App No 20166/92 (22 November 1995), [34]–[36]; C.R. v The United Kingdom (Decision on Merits), European Court of Human Rights, App No 20190/92 (22 November 1995), [32] and [34]. 279 (ECtHR) Streletz, Kessler and Krenz v Germany (Judgment), European Court of Human Rights (Grand Chamber), App Nos 34044/96, 35532/97 and 44801/98 (22 March 2001). 280 (echr) See European Commission of Human Rights decisions: X v Belgique, App No 268/57 (20 July 1957) reprinted in vol i Yearbook of the European Convention 239, 241; and X v Belgique, App No 1028/61 (18 September 1961) reprinted in vol iv Yearbook of the European Convention 325, 334–336. See also Pierre Rolland, ‘Article 7” in Louis-Edmond Pettiti, Emmanuel Decaux and Pierre-Henri Imbert, La Convention européenne des droits de l’homme: commentaire article par article (Economica: Paris, 1995) 299–301.

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prosecutions for crimes of collaboration committed during the Second World War.281 In 1952, when West Germany ratified the Convention, it made a reservation of this so called ‘Nuremberg clause’.282 In Kolk And Kislyiy v Estonia283 the European Court on Human Rights had to consider the validity of convictions entered on 10 October 2003 for ‘crimes against humanity’ committed by the defendants (who were of Estonian and Russian nationality) in March 1949 when that offence was only first introduced into Estonian law in 1994.284 The conduct consisted of participating in the deportation of civilians (which totalled more than 20,000)285 from Estonia to remote parts of the ussr whilst the defendants were acting as officials of the then Estonian Soviet Socialist Republic. The ussr invaded Estonia in June 1940, incorporating it into the Soviet Union. Interrupted by the German occupation in 1941–1944, Estonia remained occupied by the Soviet Union until its restoration of independence in 1991. The decision is discussed further in Chapter 7. The defendants argued that crimes against humanity committed during the war could possibly be considered an international offence or within the terms of Article 7(2) of the European Convention on Human Rights, thereby permitting its retroactive application by local laws of 1994. However, crimes against humanity could not be applied to conduct after the war as no such prosecution would have been within the jurisdiction of the Nuremberg Tribunal. Therefore, so the argument went, the prosecution for crimes against humanity for ­conduct in the ussr in 1949 must be impermissibly retroactive and in violation of Article 7.

281 (ECtHR) See decisions of 20 July 1957 and 18 September 1961, above n 280; and De Becker v Belgique, App No 214/5 (9 June 1958) reprinted in vol ii Yearbook of the European Convention 215, 226. 282 The reservation is as follows: ‘In conformity with Article 64 of the Convention [Article 57 since the entry into force of Protocol No. 11], the German Federal Republic makes the reservation that it will only apply the provisions of Article 7 paragraph 2 of the Convention within the limits of Article 103 paragraph 2 of the Basic Law of the German Federal Republic. This provides that any act is only punishable if it was so by law before the offence was committed’. According to Burchard, form about this time ‘[t]he West German judiciary was wearying of Nuremberg’s anti-Nazi attitude’: above n 220, 814. The reservation was withdrawn on 5 October 2001. 283 (ECtHR) Kolk and Kislyiy v Estonia (Judgment), European Court of Human Rights, App Nos 23052/04 and 24018/04 (17 January 2006) (‘Kolk and Kislyiy – Appeal’). 284 See Chapter 7 for a discussion of this section. 285 (ECtHR) Kolk and Kislyiy – Appeal, above n 283, 8.

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The Court noted that deportation of the civilian population was expressly recognised as a crime against humanity in the London Charter (Article 6 (c)) and this had been affirmed as a principle of international law by Resolution No 95 of the General Assembly of the United Nations on 11 December 1946.286 After quoting Article 7(2) of the Convention, with its reference to ‘general principles’, it stated ‘[t]his is true of crimes against humanity’.287 The Court’s reasoning, particularly on the need for a connection with either war crimes or crimes against peace at the time, is not clear. By referring to Article 7(2) rather than Article 7(1), the Court appears to have regarded the underlying offences in Article 6(c), such as the deportation of civilians from the country of their nationality, without any other requirement such as a nexus to war crimes or crimes against peace, as being conduct which is ‘criminal according to the general principles of law recognised by the community of nations’, at least, after the un General Assembly resolution of 1946. Cassese criticises such reasoning of the Court saying: ‘crimes against humanity manifestly did not amount to a general principle of law, let alone a rule laid down in the legislation of most countries of the world’.288 This somewhat overlooks the different proposition that may be involved when considering the scope of Article 7(2) as opposed to Article 7(1). Certain common domestic crimes such as murder, enslavement, deportation and other inhumane acts, such as rape or torture, without more, may not constitute the international offence known as ‘crimes against humanity’, stricto sensu. Nevertheless, they may be covered by Article 7(2) because such is ‘criminal according the general principles of law recognized by civilized nations’. The Court confused matters somewhat by remarking that it saw no reason to dispute the finding of the local courts that the acts were crimes against humanity under international law at the time of their commission. If true, this would allow Estonia to invoke Article 7(1) of the Convention rather than ­Article 7(2).289 Cassese argues that in 1949 the international offence known as ‘crimes against humanity’ came with the nexus to war crimes or crimes against peace as set out in Article 6(c) of the London Charter.290 The correctness of this proposition is accepted by the authors and explored further in Chapters 3 and 7. Nevertheless, Cassese agrees with the convictions for crimes against humanity, stricto sensu, on the basis that the deportation of civilians by the 286 (ECtHR) Kolk and Kislyiy – Appeal, above n 283, 8–9. 287 (ECtHR) Kolk and Kislyiy – Appeal, above n 283, 9. 288 Cassese, above n 210, 415. 289 (ECtHR) Kolk and Kislyiy – Appeal, above n 283, 9. 290 Cassese, above n 210, 415.

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ussr was related to its unlawful occupation of Estonia, being a crime against the peace. The subsequent conviction of officials for such acts by the liberated state of Estonia has its parallel in the conviction of von Schirach for crimes against humanity at Nuremberg for his deportation of Jews from Austria. The full consequences of such a view of course will not be lost on those who regard Nuremberg as an exercise in victors’ justice. It suggests that Stalin ought to have joined Göring in being sentenced to hang at Nuremberg. Article 15 of the iccpr is in similar terms to Article 7 of the European Convention on Human Rights.291 This time West Germany did not declare a reservation to Article 15(2), which contains the same Nuremberg clause as ­Article 7(2) of the European Convention. A prohibition on retroactivity can also be found in Article 9 of the Inter-American Convention on Human Rights, ­Article 7 of the African Charter of Human and Peoples’ Rights, Article 99 of the Third Geneva Convention and Article 67 of the Fourth Geneva Convention. The travaux préparatoires of the iccpr suggest that the goal of Article 15(2) was to ‘confirm and strengthen’ the principles of Nuremberg and Tokyo and to ‘ensure that if in the future crimes should be perpetrated similar to those punished at Nürnberg, they would be punished in accordance with the same principles’.292 There have been few decisions of the Human Rights Committee on Article 15 and none have relevantly considered the meaning of Article 15(2).293 The Approach of the International Criminal Tribunals since Nuremberg The Secretary-General, in his report on a draft statute for the International Criminal Tribunal for the former Yugoslavia (icty), stated that the customary law status of the offences within the jurisdiction of the Tribunal ought to be ‘beyond doubt’.294 The icty has consistently accepted that the principle nullum crimen sine lege applies, irrespective of the words of the Statutes. It has said that the crimes charged must rest ‘on firm foundations of customary law’ and be defined with sufficient clarity for them to have been reasonably

7.4

291 Article 15(2) provides an exception for conduct which ‘was criminal according to the general principles of law recognized by the community of nations’. 292 Marc J. Bossuyt, Guide to the “Travaux Préparatoires” of the International Covenant on Civil and Political Rights (Martinus Nijhoff: Dordrecht, 1987) 331–332; see also Sarah Joseph, Jenny Schultz and Melissa Castan, iccpr: Cases, Materials and Commentary (3rd ed, Oxford University Press: Oxford, 2000) 347. 293 See Communication No. R.7/28, Weinberger v Uruguay (29 October 1978), un gaor, 36th sess. supp. 40, un Doc. A/36/40 (29 September 1981); and Joseph et al., above n 292, 341. 294 Report of Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), un Doc. S/25704 (3 May 1993), [34].

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f­ oreseeable and accessible at the date of the offence.295 It has, however, adopted a liberal approach to the discernment of international customary offences and their elements, sometimes following the broad approach of the European Court of Human Rights to the nullum crimen principle.296 Its jurisprudence with respect to crimes against humanity is discussed in Chapter 4. The International Criminal Tribunal for Rwanda (ictr) has at times purported to go beyond customary law and has relied on treaty law binding on Rwanda and has also referred to Rwandan domestic law.297 The Appeals ­Chamber, however, has accepted that the conduct must be clearly defined under international criminal law.298 Other international criminal tribunals have also held that the principle nullum crimen sine lege is part of international criminal law and applicable to prosecutions for crimes against humanity.299 Whilst defendants before the international or so-called hybrid criminal tribunals, such as in Sierra Leone and East Timor, have complained about the ­retroactive application of the charges of crimes against humanity, the courts 295 See (icty) Prosecutor v Hadžihasanović et al. (Jurisdiction in Relation to Command Responsibility), Case No IT-01-47-AR72 (16 July 2003) (‘Hadžihasanović– Jurisdiction’), [55]; Prosecutor v Blaškić (Appeals Chamber Judgment), Case No IT-95-14-A (29 July 2004) (‘Blaškić – Appeal’), [110], [139] and [141]; Prosecutor v Vasiljević (Trial Chamber Judgment), Case No IT-98-32-T (29 November 2002) (‘Vasiljević – Trial’), [193], [199], [202]; Prosecutor v Milutinović et al. (Decision on Motion Challenging Jurisdiction), Case No IT-99-37-AR72 (21 May 2003) (‘Milutinović – Jurisdiction’), [9]–[10]. See also Guénaël Mettraux, International Crimes and the Ad Hoc Tribunals (Oxford University Press: Oxford, 2005), Chapters 2 and 3; and Meron, above n 202. 296 For example, see (icty) Hadžihasanović – Jurisdiction, above n 295, [12], [34]; Milutinović – Jurisdiction, above n 295; and Vasiljević – Trial, above n 295, [201]. 297 (ictr) Prosecutor v Akayesu (Trial Chamber Judgment), Case No ICTR-96-4-T (2 September 1998) (‘Akayesu – Trial’), [604]–[609]; Prosecutor v Kayishema and Ruzindana (Trial Chamber Judgment), Case No ICTR-95-1-T (21 May 1999) (‘Kayishema – Trial’), [156]– [158], [597]–[598]; Prosecutor v Musema (Trial Chamber Judgment), Case No ICTR-96-13-T (27 January 2000) (‘Musema – Trial’), [242]; and Prosecutor v Semanza (Trial Chamber Judgment), Case No ICTR-97-20-T (15 May 2003) (‘Semanza – Trial’), [353]. 298 (ictr) Prosecutor v Bagilishema (Appeals Chamber Judgment), Case No ICTR-95-1A-A (3 July 2002) (‘Bagilishema – Appeal’), [34]. In Prosecutor v Kordić and Čerkez (Appeals Chamber Judgment), Case No IT-95-14/2-A (17 December 2004) (‘Kordić – Appeal’), [44]– [46] the Tribunal appeared to suggest that it was enough if a treaty was binding on all the parties concerned which made the conduct criminal, though it may be regarded as difficult to see how a treaty can provide for individual criminal responsibility outside of customary law. 299 See Chapter 5, Section 3.2 (Special Court for Sierra Leone) and Section 3.1 (Special Panels in East Timor) and, in particular, see (spet) Prosecutor v Joao Franca da Silva (Judgment), Special Panel Case No 4a/2001 (5 December 2002) (‘Da Silva – Judgment’).

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in all cases have upheld the charges principally on the ground that the offences already existed under customary international law.300 Finally, Article 22 of the icc Statute incorporates a ban on analogy; the principle of non-retroactivity with respect to the crimes defined in the Statute; and requires its defined offences to be strictly construed.301 7.5 Conclusion The liberal view of the Nuremberg Tribunal that the principle of legality is only a ‘principle of justice’ has not survived modern developments. Without further elaboration, it provides an unconvincing legal justification for the prosecution of crimes against humanity by the combined military tribunal of the Allies at Nuremberg. The core prohibition against ex post facto criminal punishment is today well established both as a part of international criminal law and as a part of international human rights law which acts to limit the conduct of a state towards its own nationals.302 A prosecution for the international offence known as ‘crimes against humanity’, unless it is established in international customary law at the time of the offence, will infringe this principle of legality. The extent to which the requirement of specificity applies to international criminal law remains less than clear. Those who take a strict approach view with suspicion such ‘catch-all’ and ill-defined offences as ‘persecutions’ and ‘other inhumane acts’ in Article 6(c) of the London Charter. Some scholars and tribunals have argued that international offences, unlike what may be a required stricter approach under some domestic penal codes, may not need to be prescribed in precise and exact terms.303 Bassiouni has argued that the rule ejusdem generis with respect to analogous conduct can apply to provide 300 (spet) Da Silva – Judgment, above n 299. In the case of the icty and the ictr, see Chapter 4. 301 According to Saland, the Chair of the working group dealing with Article 22 of the icc Statute, ‘[t]he material content of the principle of legality (that a person is not criminally responsible unless the act constitutes a crime under the Statute) was never a contentious issue’: Per Saland, ‘International Criminal Law Principles’, Chapter 7 in Roy Lee (ed), International Criminal Court: The Making of the Rome Statute – Issues, Negotiations, Results (Kluwer Law International: The Hague, 1999) 189, 194–195. 302 See, for example, Cassese, above n 119, 145–148; M. Cherif Bassiouni, Introduction to International Criminal Law (Transnational Publishers: New York, 2003) 218; and Bruce Broomhall, International Justice and the International Criminal Court (Oxford University Press: Oxford, 2003) 26–39. 303 (icty) Prosecutor v Aleksovski (Appeals Chamber Judgment), Case No IT-95-14/1-A (24 March 2000) (‘Aleksovski – Appeal’), [127]; Cassese, above n 119, 145-147; Bassiouni, above n 2, 203ff.

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content to the offences of ‘persecutions’ and ‘other inhumane acts’ in Article 6(c) of the London Charter. Whilst this controversy will continue,304 a defendant will remain entitled to receive the benefit of any doubt as to the correct ­interpretation of the offence known as ‘crimes against humanity’ including, for example, whether it requires a nexus with war crimes or crimes against peace.305 This is not the end of the matter. There still remains the exception now codified in Article 15(2) of the iccpr. This may be regarded as crystallising or codifying customary international law in this new field of international law. According to some international criminal law scholars such as Cassese306 and Bassiouni307 the notion of conduct being ‘criminal according the general principles of law recognized by civilized nations’ misstates the issue because ‘general principles’ can only play a limited role in the creation of international crimes. This view overlooks the different proposition advanced above as the ‘third approach’ to the nullum crimen principle. Resort to ‘general principles’ admits an exception to the prohibition against retroactivity, even if this source may not lead to the creation of international offences, stricto sensu. The rule of international law, codified in Article 15(2) of the iccpr, simply reflects the view oft-expressed before, at and after Nuremberg, that because the conduct prosecuted at Nuremberg was ‘so clearly criminal under every domestic legal system in the world that it could hardly be said that the prospect of criminal liability for them was unpredictable’.308 Similarly, as Christian Tomuschat explains: crimes against humanity could be conceived of as an amalgamation of the core substance of criminal law to be encountered in the criminal codes of all ‘civilized’ nations. To be sure, crimes against humanity came in new clothes. The alleged offenders were not charged under a national statute, but directly under international law. However, it was easy to demonstrate that the punishable character of crimes against humanity was established in accordance with general principles of international law as 304 305 306 307 308

See Meron, above n 202; and Shahabuddeen, above n 257. See Cassese, above n 119, 156–157; and icc Statute, Art 22(2). See Cassese, above n 210, 414–417. See Bassiouni, above n 2, 218. See Meron, above n 202, 830; see also Theodor Meron, ‘International Criminalization of Internal Atrocities’ (1995) 89(3) American Journal of International Law 554, 567; and Michael P. Scharf, ‘Application of Treaty-Based Universal Jurisdiction to Nationals of ­Non-Party States’ (2001) 35 New England Law Review 363, 375.

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set out in Article 38 of the Statute of the pcij. Thus, the argument of retroactivity largely missed the point.309 In the Čelebići case the icty Trial Chamber considered whether or not the charges of war crimes in internal armed conflict, if beyond existing international customary law at the time of the offences, could be said to infringe the nullum crimen principle. It stated: Moreover, the second paragraph of Article 15 of the iccpr is of further note, given the nature of the offences charged in the Indictment. It appears this provision was inserted to avoid the situation which had been faced by the International Tribunals in Nürnberg and Tokyo after the Second World War. These tribunals had applied the norms of the 1929 Geneva Conventions and the 1907 Hague Conventions, among others despite the fact that these instruments contained no reference to the possibility of criminal sanctions. It is undeniable that acts such as murder, torture, rape and inhumane treatment are criminal according to “general principles of law” recognised by all legal systems. Hence, the caveat contained in Article 15, paragraph 2, of the iccpr should be taken into account when considering the application of the principle of nullum crimen sine lege to the present case. The purpose of the principle is to prevent the prosecution and punishment of an individual for acts which he reasonably believes to be lawful at the time of their commission. It strains credulity to contend that the accused would not recognise the criminal nature of the acts alleged in the Indictment. The fact that they could not foresee the creation of an International Tribunal which would be the forum for prosecution is of no consequence.310 The above passage was applied by a Special Panel of the District Court in East Timor in respect of the retroactive domestic application of charges of crimes against humanity in East Timor.311 In the end, the correct approach to the modern nullum crimen principle is that, based upon the Nuremberg proceedings for crimes against humanity, 309 Tomuschat, above n 201, 834–835. 310 (icty) Prosecutor v Delalić et al. (Appeals Chamber Judgment), Case No IT-96-21-A (20 February 2001) (‘Čelebići – Appeal’), [313]. 311 Public Prosecutor v Sarmento and Mendonca (Decision on Defence Motion to Amend Indictment), Special Panel Case No 18a/2001 (24 July 2003) (‘Mendonca – Indictment’), [20] and [30]; see also Chapter 5, Section 3.1.3(c).

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now codified in Article 15(2) of the iccpr, there is an exception for certain serious criminal conduct which can safely be claimed to be ‘criminal according to the general principles of law recognized by the community of nations’. This ­principle has relevance for prosecutions where there is no international or extraterritorial jurisdiction involved at all. A new government in a postconflict society, can, without violating international law, overturn amnesties, statutes of limitation or any other legal immunity enjoyed by a prior regime ­provided its retroactive punishment is limited to conduct universally recognised as criminal under the penal laws of all civilized states and which reaches the same level of seriousness as the crimes prosecuted at Nuremberg.312 This would cover, for example, murder, extermination, enslavement, deportation and other inhumane acts, such as torture or rape. It also means that the Allies, as the new sovereign power in post-war Germany following that country’s unconditional surrender, could, as suggested by the French Prosecutor, retrospectively apply the novel charges of ‘crimes against humanity’ provided the underlying elements of such charges are analogous to the world’s ubiquitous serious domestic crimes. In a way, the legitimacy of such prosecutions was greater when, as occurred in the British and French zones after the war, the prosecutions took place before newly constituted G ­ erman courts, rather than before the military tribunals of the Allies. This exception to the nullum crimen principle also supports the conclusion reached in Section 5 above that at Nuremberg the actual elements of a ‘crime against humanity’ are best regarded as being analogous to the elements of the equivalent domestic crimes found in the penal codes of the world’s main legal systems, provided the criminal conduct also serves some political interest of the rogue state, thereby warranting the extraordinary criminal jurisdiction being assumed by the Allies as the new power in and for Germany. This raises the question of the status of the crime of persecution in Article 6 (c). Bassiouni, when briefed as an expert in the Finta case to consider the status of the crime in the penal law of nations at the time of the Second World War, concluded it was not generally recognised as a crime by that name in most legal systems.313 Hence, it could not be said, without further elaboration, to be ‘criminal according to the general principles of law recognised by the 312 (Ethiopia) This was, in substance, the conclusion reached by Judge Nuru Seid in dissent in the recent Mengistu Genocide Trial in the Ethiopian Federal High Court: see Special Prosecutor v Col. Mengistu Haialemariam et al. (Judgment), File No. 1/87 (12 December 2006), quoted in Firew Kebede Tiba, ‘The Mengistu Genocide Trial in Ethiopia’ (2007) 5(2) Journal of International Criminal Justice 513, 520. 313 Bassiouni, above n 2, 326–327.

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community of nations’. It does, however, have a long tradition in the doctrine of humanitarian intervention which explains its presence as a crime against humanity in Article 6(c). The crime probably does not present a problem so far as the nullum crimen principle is concerned provided it is confined to such serious criminal conduct as has warranted the intervention of states in the past.314 This would ­generally confine its operation to the crimes of the ‘murder-type’, including ‘other inhumane acts’, but which are carried out for the prohibited reasons. In other words, it is an aggravated form of the other crimes mentioned in Article 6 (c) of the London Charter. For example, whilst Streicher was sentenced to hang for his crime of persecution, his conduct involved incitement to murder Jews – a serious crime in the penal codes of most states and the Tribunal believed such conduct amounted to a war crime for non-German Jews in any event. This question is discussed further in Chapter 10 when considering the definition of persecution under the icc Statute. 8

Crimes against Humanity Enters Customary Law

Nineteen countries signed the London Agreement after the Allies, France, the United Kingdom, the Soviet Union and the United States executed it. This enhanced its status in international law. The Peace Treaties with Italy, Romania, Hungary, Bulgaria and Finland required the surrender for trial of persons suspected of committing ‘crimes against humanity’ without defining the term.315 As concluded by Schwelb, it is likely the terms were intended to have the same meaning as under Article 6(c).316 Thus, 28 countries after the Second World War had endorsed in treaties the concept of crimes against humanity. The General Assembly of the United Nations on 11 December 1946 unanimously affirmed ‘the principles of international law recognized by the Charter of the Nürnberg Tribunal and the judgment of the Tribunal’.317 Whilst not generally commented upon by scholars, within those ‘principles of ­international law’ was not only the definition of crimes against humanity contained in

314 315 316 317

See Chapter 1, Section 5. See Schwelb, above n 11, 212; and Cassese, above n 119, 73. Schwelb, above n 11, 212. Affirmation of the Principles of International Law Recognized by the Charter of The Nürnberg Tribunal, un ga Resolution 95(i), un gaor, 1st sess, 55th plen. mtg, un Doc. A/236 (11 December 1946).

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­Article 6(c), but also the exception to the prohibition on ex post facto punishment argued for in the last section. Insofar as Article 6(c) is concerned, the majority of international law scholars rely on this resolution to conclude that, at least after December 1946, crimes against humanity – as defined under Article 6(c) – entered customary international law.318 The same view was reached by the ilc in its Nürnberg Principles in 1950 and the ilc Special Rapporteur in 1951.319 A minority view points out that General Assembly declarations are not binding and that its resolution simply acknowledged the outcome reached not necessarily a principle of general application.320 The latter argument ignores the intention at Nuremberg for the crimes in Article 6 of the London Charter to have general application.321 Justice Jackson described the drafting process as follows: The Soviet Delegation proposed and until the last meeting pressed a definition which, in our view, had the effect of declaring certain acts crimes only when committed by the Nazis. The United States contended that the criminal character of such acts could not depend on who ­committed 318 ‘But whatever the state of the law in 1945, Art. 6 of the Nuremberg Charter has since come to represent general international law’: Ian Brownlie, Principles of Public International Law (4th rev. ed, Clarendon Press: Oxford, 1990) 562. (United Kingdom) This statement was adopted by Lord Bingham in the uk House of Lords in R v Jones et al. [2006] ukhl 16, [18]. See also Dinh Nguyen Quoc, Patrick Daillier and Alain Pellet, Droit international public (6th rev. ed, lgdj: Paris, 1999) 677; and Cassese, above n 210, 415–416. ‘Its [the General Assembly] pronouncements on the international law of war crimes and crimes against humanity must be regarded as authoritative’: David Matas and Susan Charendoff, Justice Delayed: Nazi War Criminals in Canada (Summerhill Press: Toronto, 1987) 90. 319 See discussion of this point in Chapter 3, Section 3.3: Formulation of the Principles Recognised in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, un ga Resolution 177(ii), un gaor, 2nd sess, 123rd plen mtg, 111–112, un Doc. A/519 (29 November 1947); [1951] 2 Year Book of the International Law Commission 56[120], un Doc. A/CN 4/44 (27 July 1951). 320 Ehard, above n 215, 242. See also Hans-Heinrich Jescheck, ‘Development and Future Prospects of International Criminal Law’ in M. Cherif Bassiouni, International Criminal Law, vol. 1 (Crimes) (Transnational Publishers: New York, 1986) 83. 321 (ECtHR) This was accepted as the effect of un ga Resolution 95(i), above n 317, by the European Court of Human Rights in Kolk and Kislyiy – Appeal, above n 283, 8–9; (France) though the French Court of Cassation in 1993 in Boudarel took the view that under a law which incorporated the London Charter only acts of the Nazis or their supporters were covered: Boudarel, Cour de cassation (chambre criminelle), 1 avril 1993, published in Bull. No. 143, 351–355.

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them and that international crimes could only be defined in broad terms applicable to statesmen guilty of the proscribed conduct. At the final meeting the Soviet qualification was dropped and agreement was reached on a generic definition acceptable to all.322 This point becomes particularly important in determining whether or not there existed a requirement under custom at the time that crimes against humanity be committed pursuant to a state policy. It was argued above, of course, that the requirement of the ‘war nexus’ as well as the requirement that the defendants must have been ‘acting in the interests of the European Axis countries’ necessarily implied a requirement of a state policy.323 Mettraux contests this, arguing that the ‘historical records of the drafting of the Nuremberg Charter’ suggest that the ‘real function of the phrase … was to make it clear that, although the law applied by the Tribunal was to be universal in scope the reference to persons “acting in the interest of a State” was to make it clear that the jurisdiction of the Tribunal was limited to the Nazi leaders and that did not concern any of the Allied leaders or commanders’. Mettraux points to the Justice Jackson’s view that the phrase ‘should be removed from the definition as ‘if it is a crime for Germany to do this, it would be a crime for the United States to do it[;] I don’t think we can define crimes to be such because of the particular parties who committed the acts …’324 At best, however, this demonstrates only that the phrase was political insofar as it was applied only to Axis powers only – not insofar as it required the perpetrator to be acting in the interests of a state. First, as discussed above, the Nuremberg Charter also required that crimes be committed ‘in execution of or in connection with any crime within the jurisdiction of the International Tribunal’, namely war crimes or the crime of aggression (or crime against the peace, as it was there referred to).325 Seen in that light, Justice Jackson appears to be saying only that the definition should not be limited to one of the two States to the armed conflict; not that it should not be limited to states. Even the two cases where crimes against humanity alone were found to have been 322 Jackson Report, above n 11, vii–viii. 323 See Section 5.4 above. 324 Guénaël Mettraux, ‘The Definition of Crimes Against Humanity and the Question of a “Policy” Element’, in Nadya Sadat (ed), Forging a Convention for Crimes Against Humanity (Cambridge University Press: New York, 2011), 159, citing International Conference on Military Trial, London 1945, Minutes of Conference Session of 24 July 1945. 325 See Section 2.2 above.

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committed (Streicher and von Schirach) were in fact committed in connection with war crimes and aggression, respectively.326 Secondly, there are other clear statements made by Justice Jackson that this link with a plan or policy of war and aggression was in fact the sole reason for the Allied states interfering in the affairs of another state.327 Similar comments were made by the French Chief Prosecutor, François de Menthon, in his opening address to the Nuremberg tribunal, where crimes against humanity were described as being essentially ‘the perpetration for political ends and in a systematic manner, of ordinary crimes’.328 Thirdly, the Nuremberg Judgment itself supports this conclusion. It found that the atrocities committed prior to the outbreak of war in 1939 did not amount to crimes against humanity notwithstanding that the ‘policy of terror was certainly carried out on a vast scale, and in many cases was organised and systematic’.329 Further, it found that the ‘crimes against humanity’ were either war crimes or ‘were all committed in execution of, or in connection with, the aggressive war, and therefore constituted crimes against humanity’.330 It was therefore very much an articulated premise on which all its judgments were delivered. While some may argue that the Tribunal was only considering crimes against humanity as set out in Article 6(c) as opposed to crimes against humanity under customary international law, this argument must fail given that, as accepted by the majority of scholars at the time, Article 6(c) was representative of customary international law at the time. Fourthly, as to the status of the General Assembly Resolution, it is hard to ignore a unanimous declaration of all members of the United Nations which expressly affirms a principle of international law. According to Schwarzenberger the ‘maximum of legal significance that can be attributed to this Resolution

326 See Sections 2.3 and 4.3 above. 327 See Section 2.3 above: (‘[O]rdinarily we do not consider that the acts of a government towards its own citizens warrant our interference. We have some regrettable circumstances at times in our country in which minorities are unfairly treated. We think it is justifiable that we interfere or attempt to bring retribution to individuals or to states only because the concentration camps and the deportations were in pursuance of a common plan or enterprise of making an unjust or illegal war in which we became involved. We see no other basis on which we are justified in reaching the atrocities which were committed inside Germany, under German law, or even in violation of German law, by authorities of the German state’). 328 Trial of the Major War Criminals, above n 1, vol v, 340–341. See above, Section 4.2. 329 See Section 4.3 above. 330 See Section 4.3 above.

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is that, in future, any member of the United Nations will be precluded from contesting these principles as rules of international law’.331 Finally, to dismiss the ‘war nexus’ and the ‘axis interests’ clauses as ‘mere jurisdictional’ requirements (except to the limited extent identified above) is to misunderstand the discussions at the London Conference. As discussed above, despite being an ad hoc (and perhaps unprincipled) requirement, the nexus was a very deliberate limit on what would otherwise have been an incredibly broad principle of international jurisdiction over the ordinary crimes committed by citizens of foreign states within the territory of that foreign state.332 Such a broad jurisdiction would have run the very risk of the abuse of humanitarian intervention that the uk and us delegations at the London Conference were concerned to avoid. Accordingly, this limitation appears very much intended to fit within the new world order sought to be created by the same parties through the un Charter, which would prohibit not only the use of force but also the intervention of one state into the internal affairs of another state outside the limited exception of self-defence and international intervention by the un Security Council. As such, it may be regarded as an interpretative declaration of the circumstances when collective measures may be taken ‘for the prevention and removal of threats to the peace’ as provided for in Article 1(1) of the un Charter. The minority view has few supporters today and the customary law status of crimes against humanity as defined in Article 6(c) is generally accepted. The un Secretary-General in 1993 said Article 6(c) has ‘beyond doubt become part of customary international law’.333 This meant that the ‘war nexus’, whilst an ad hoc rule of jurisdiction peculiar to the moment, suddenly acquired the status of a rule of international law, despite it being ill-suited as a general principle applicable to all future ‘crimes against humanity’, as understood in its non-technical sense. 9 Conclusion The first actual trial for crimes against humanity at Nuremberg has been ­overshadowed by its legacy. Sixty years later, Nuremberg is still described as

331 Schwarzenberger, above n 168, 31. 332 See Section 4.3 above. 333 Report of Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, above n 294, [55].

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‘the precedent’.334 But for what is it a precedent? Many point to the principle that individuals, including state officials, can be held responsible directly under international law for the purported international crimes in the London Charter.335 This undoubtedly was a major achievement given the failure to secure any international prosecutions after the First World War. Nevertheless, as a general and lasting precedent it suffered from two notable vices. First, its jurisdiction was limited to crimes committed in the interests of the Axis Powers and was not applied to any equivalent crimes of the Allies. Second, the Tribunal’s composition was limited to representatives of the four major Allied powers. Hence, the charge that has never been adequately ­refuted – that Nuremberg represented victor’s justice not the creation of a truly international criminal law. Whilst some see Nuremberg as a bold step towards penetrating the principle of state sovereignty in favour of individual human rights, others see in Nuremberg the Allies breaching both international law and the nullum crimen principle. It needs to be pointed out that the desire to put on trial a nation’s enemies in one’s own courts may need to be curtailed as much as encouraged. As Schwarzenberger put it, Nuremberg’s legacy is that ‘still tighter ropes’ can be ‘drawn in advance round the necks of the losers of any other world war’.336 One of the other legacies of Nuremberg is the principle that crimes against humanity are only engaged when international peace and the interests of states are affected. The General Assembly’s unanimous endorsement of crimes against humanity made the concept a part of the constitutional order of the international community – a law of the United Nations to be read with its Charter. The requirement that crimes against humanity must be linked to war means such crimes are no longer based upon the laws of humanity or natural law, its true antecedent, but upon the need to preserve international peace. Support for these general themes can be found in the United Nations Charter, the drafting of which was taking place at about the same time (May–June 1945) in San Francisco as the London Conference.337 334 For example, see Dominic McGoldrick, ‘Criminal Trials before International Tribunals: Legality and Legitimacy’ in Dominic McGoldrick, Peter Rowe and Eric Donnelly (eds), The Permanent International Criminal Court: Legal and Policy Issues (Hart Publishing: Oxford, 2004) 9, 19; see also David Luban, ‘The Legacies of Nuremberg’ (1987) 54(4) Social Research 779. 335 See, for example: Tomuschat, above n 201; McGoldrick, above n 334, 19; Clark, above n 19, 198–199. 336 Schwarzenberger, above n 168, 31. 337 See, for example: Leland M. Goodrich, Edvard Hambro and Anne P. Simons, Charter of the United Nations: Commentary and Documents (3rd rev. ed, Columbia University Press: New York, 1969).

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Whilst there are references to fundamental human rights in the United Nations Charter,338 they are not of themselves capable of overriding other express principles set out in the Charter and in particular, Article 2. Foremost amongst these is the prohibition on the resort to force contained in Article 2(4), except with Security Council authorisation. Even then, the Security Council can only act in response to a threat to international peace, not, for example, a state’s mistreatment or persecution of its own nationals. Further, both the sovereign equality of states and the inviolability of a state’s ‘domestic jurisdiction’ are expressly recognised in Article 2. Overall, the un Charter embraces the principle that the ‘domestic jurisdiction’ of sovereign states is immune from any coercive interference by either other states or the international community beyond what had hitherto arguably been the position. The Nuremberg definition of crimes against humanity and the un Charter’s support for human rights, both with their radical potential to penetrate statehood, only justify crimes against humanity and human rights respectively, as a state value, not as a human value; they override state sovereignty only when their perpetration or breach threatens the peace and security between states. For hundreds of years, and right up to the Nuremberg Trial, the concept of state sovereignty has had to compete with the natural law notion that there exists a higher law, the ‘law of humanity’. Crimes against humanity, as drafted and interpreted at Nuremberg, put an end to such notions, just as the un Charter put an end to the notion of humanitarian intervention. The un Charter, along with the criminalisation of aggression, committed the international community to unbreachable nation-states beyond that experienced in the past. Crimes against humanity are to be grounded in ­international peace and the security of relations between states, not the right of individuals to be protected from states. As Louis Henkin writes: ‘Perhaps because we now wish to, we tend to exaggerate what the Charter did for human rights’.339 The same can be said in respect of what Article 6(c) did for the concept of crimes against humanity in international criminal law.340 As Luban concludes, its legacy is at best equivocal and at worst immoral.341

338 un Charter, Arts 1, 13, 16, 55–57, 62, 68, 73 and 76. 339 Louis Henkin, ‘International Law, Politics, Values and Functions’ (1989) 216 Recueil des Cours 9, 216. 340 As Lippman concluded: ‘The drafters thus defaulted on the opportunity to provide protection for human rights in times of peace as well as war’: Lippman, above n 32, 188. 341 See David Luban, Legal Modernism (University of Michigan Press: Detroit, 1994) 336ff.

chapter 3

From Nuremberg to the Hague The phrase ‘crimes against humanity’ has, in the last half-century, also become a commonly used one in international treaties and the writing of publicists. There is little real difficulty about its meaning1

∵ 1 Introduction This chapter considers the period between 1945 and 1993, when the next ­international instrument, the Statute for the International Criminal Tribunal for the Former Yugoslavia (icty), defined crimes against humanity.2 This was a period when the concept of crimes against humanity grappled with, but did not resolve, its own definition.3 Immediately after the Nuremberg Judgment, experts, commentators and judges tried to depart from the definition contained in Article 6(c) of the London Charter, including the requirement that the crimes be committed in connection with war crimes or crimes against peace – the so-called war nexus. The war nexus was frequently said to be an ad hoc jurisdictional requirement of the Nuremberg Tribunal rather than a necessary element of the offence itself. The alternative definitions put forward, however, varied widely and no consensus emerged. In addition, there is the difficulty presented by the legacy of Nuremberg itself. As discussed in Chapter 2, the cornerstone for the case that crimes against humanity were part of international customary law rested upon a ­combination 1 (Australia) Polyukhovich v The Commonwealth (1991) 172 clr 501 (‘Polyukhovich’), 596 (Deane J). 2 Discussed in Chapter 4. 3 For some writings on this issue, see: Matthew Lippman, ‘Crimes Against Humanity’ (1997) 17 Boston College Third World Law Journal 171; Phylilis Hwang, ‘Defining Crimes Against Humanity in the Rome Statute of the International Criminal Court’ (1998) 22 Fordham International Law Journal 457; Beth Van Schaack, ‘The Definition of Crimes against Humanity: Resolving the Incoherence’ (1999) 37 Columbia Journal of International Law 787; Simon Chesterman, ‘An Altogether Different Order: Defining the Elements of Crimes Against Humanity’ (2000) 10 Duke Journal of Comparative and International Law 307.

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of the Nuremberg Trial and General Assembly Resolution 95(i),4 which affirmed the definition of crimes against humanity contained in the London Charter. In contrast, what are the sources relied upon for the oft-made assertion that by 1993 the war nexus in the definition of crimes against humanity had ‘withered away’? This chapter considers this question. The first section considers the jurisprudence of the post war military tribunals under Control Council Law No 10 (ccl 10); the second section examines international sources; and the third section considers state practice. The final section attempts an analysis of the incoherence that marks the attempts to define crimes against humanity in international law at this time. The authors suggest that three different principles underlie the concept of crimes against humanity – ‘the humanity principle’ which focuses on crimes which shock the conscience of all humanity; ‘the impunity principle’ which focuses on the fact that the crimes take place in a jurisdictional vacuum due to state complicity, indifference or impotence and, finally, there is the notion that crimes against humanity, unlike ordinary crimes, must ‘threaten international peace’. No satisfactory definition of this offence can be offered which does not take account of each of these principles. These principles involve both the elements of the criminal offence itself and the existence of circumstances required for the exceptional jurisdiction to try under international law. Hence, one cannot divorce the question of the proper definition of crimes against humanity, stricto sensu, from a consideration of the tribunal which it is asserted ought to have the jurisdiction to try the alleged perpetrators. 2

Control Council Law No. 10

2.1 Introduction After the war the Allies (ussr, the United States, Great Britain and France) administered Germany through the Control Council. Law No 10 established Tribunals in each of the zones of occupation in Germany to try persons accused of committing war crimes, crimes against peace and crimes against ­humanity.5

4 Affirmation of the Principles of International Law Recognized by the Charter of The Nürnberg Tribunal, un ga Resolution 95(i), un gaor, 1st sess, 55th plen. mtg, un Doc. A/236 (11 ­December 1946). 5 See Allied Control Council Law No 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, 20 December 1945, Official Gazette of Control Council for Germany, No 3, 50–55 Berlin (31 January 1946) (‘ccl 10’).

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This was clearly an occupation law rather than international law.6 The reference to the London Charter and the Moscow Declaration in the Preamble suggests the Council was, however, purporting to follow those international precedents. Generally, that is how the Tribunals in the us Zone viewed ccl 10.7 Article ii (1)(c) of ccl 10 defined crimes against humanity as follows: Crimes Against Humanity: Atrocities and offences, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecution on political, racial or religious grounds, whether or not in violation of the domestic laws of the country where perpetrated. The main difference in the London Charter is that the ‘war nexus’ is not included.8 Unfortunately the legislative history of ccl 10 is sparse and no record exists as to the Allies’ intent in excluding reference to the war nexus.9 Both Schwelb and Bassiouni assume the nexus was dropped because the law was not an international instrument.10 In the French zone the prosecutions for crimes committed against nationals of Axis countries were less influenced by ccl 10 than the us and British proceedings which are discussed below.11

6 (Nuremberg) In United States v Altstötter et al. (1947) 3 Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No 10, 954 (us Government Printing Office, Washington dc, 1950) (‘The Justice Case’), the Tribunal said at 964 that the Allies were exercising ‘supreme legislative power in governing Germany’. But it also said at 984: ‘it enforces international law as superior in authority to any German statute or decree’. 7 (Nuremberg) For example, see United States v Flick and others 6 ccl 10 Trials 3, 1212–1213 (‘The Flick Case’); United States v von Weizsäcker 13 ccl 10 Trials 114–117 (‘The Ministries Case’); The Justice Case, above n 6, 972 and 982; United States v List et al 11 ccl 10 Trials 757 (‘The Hostages Case’), 1241–1242. 8 The other differences are the inclusion of the words ‘atrocities and other offences’; the specific crimes are but examples of ‘atrocities and other offences’ and imprisonment, rape and torture are included in the specific crimes. 9 Schaack, above n 3, 808. 10 Egon Schwelb, ‘Crimes against Humanity’ (1946) 23 British Year Book of International Law 178, 218–219; and M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law (2nd rev. ed., Kluwer Law International: The Hague, 1999) 33–35. 11 Robert Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (Cambridge University Press: Cambridge, 2005) 41. The French required instructions from higher quarters before prosecutions could be commenced for crimes committed against nationals of Axis countries: see Schwelb, above n 10, 219.

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2.2 The us Zone The United States prosecuted 12 cases and 177 defendants under ccl 10 before us military tribunals sitting at Nuremberg.12 These trials have been influential in the search for the definition of crimes against humanity and three of the main cases are now discussed.13 2.2.1 The Flick Case The defendants were charged with crimes against humanity, including in ­respect of their pre-war appropriation of Jewish owned German industries and use of slave labour during the war.14 Based on the reference to the London Charter in the Preamble to ccl 10, the Tribunal held the same war nexus ought to be implied into the definition15 and, following the Nuremberg Tribunal’s ruling, it concluded that it had no jurisdiction over crimes committed before the war.16 This ruling was followed in the Ministries Case where the Tribunal said, without the nexus to war, ccl 10 would be an impermissible ex post facto criminal law.17 The Flick Tribunal also considered whether the compulsory confiscation of industrial property could be a ‘crime against humanity’. The Tribunal noted the distinction between industrial property (such as ore and coal mines) and the dwellings, household furnishings, and food supplies of the Jewish people.18 Applying the doctrine of ejusdem generis, it said ‘other persecutions’ must be deemed ‘to include only such as affect the life and liberty of the oppressed peoples. Compulsory taking of industrial property, however reprehensible, was 12

See Telford Taylor, The Anatomy of the Nuremberg Trials (Knopf: New York, 1992); and ­ elford Taylor, Final Report to the Secretary of the Army on the Nuremberg War Crime Trials T under Control Council Law No. 10 (15 August 1949). Telford Taylor was the lead counsel for the United States. 13 Matthew Lippman, ‘The Other Nuremberg: American Prosecutions of Nazi War Criminals in Occupied Germany’ (1992) 3 Indiana International and Comparative Law Review 1. 14 (Nuremberg) The Flick Case, above n 7, 1212; see also Lippman, above n 3, 205–207; and Matthew Lippman, ‘War Crimes Trials of German Industrialists: the “Other Schindlers”’ (1995) 9 Temple International and Comparative Law Journal 173, 185–206. 15 (Nuremberg) The Flick Case, above n 7, 1212–1214; see also Schaack, above n 3, 813–814; and Lippman, above n 3, 205–206. 16 (Nuremberg) The Flick Case, above n 7, 1213. 17 (Nuremberg) The Ministries Case, above n 7, 116–117, where the Tribunal held it was not established ‘that crimes against humanity perpetrated by a government against its own nationals, are of themselves crimes against international law’; see Schaack, above n 3, 817 fn 143. 18 (Nuremberg) The Flick Case, above n 7, 1212–1215.

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not in that category.’19 The Tribunal did hold that it did not matter that the defendants were not state agents or officials. It was enough if they were acting in furtherance of state policy.20 The issue of property offences arose in other ccl 10 trials. In Farben, the Tribunal held that plunder and spoliation of property located in ­German-occupied countries was a war crime but declined to hold the conduct a crime against humanity.21 In the Ministries Case, the Tribunal held stealing personal property of concentration camp inmates was a crime against humanity.22 In Pohl, the defendants were convicted for crimes against humanity for the ­confiscation of personal property.23 2.2.2 The Justice Case The Justice Case involved allegations that various German jurists (legal officials, judges and lawyers) had distorted the law to assist the perpetration of Nazi atrocities. Whilst the judgment only dealt with conduct during the war, the Tribunal addressed itself fully to the question of the war nexus, saying it had been ‘deliberately omitted from the definition’.24 The Tribunal referred to interventions and threatened interventions in Greece, Turkey, Lebanon, Romania, Russia and Cuba.25 It concluded that crimes against humanity did not require a nexus to war, but rather involved ‘acts of such scope and malevolence, and they so clearly imperilled the peace of the world that they must be deemed to have become violations of international law’.26 This view appeared to be influenced by the 1948 United Nations War Crimes Commission ­(unwcc) Report.27 The juridical basis for crimes against humanity therefore was held to be the doctrine of humanitarian intervention – a proposition the Allies at the London Conference explicitly rejected.28 Based on the words ‘against any civilian population’ in ccl 10, the Tribunal said crimes against humanity must be strictly

19 (Nuremberg) The Flick Case, above n 7, 1215. 20 (Nuremberg) The Flick Case, above n 7, 1201–1202; followed in United States v Krauch 8 ccl 10 Trials 1081, 1167–1192 (‘The Farben Case’). 21 (Nuremberg) The Flick Case, above n 7, 1201–1202. 22 (Nuremberg) The Ministries Case, above n 7, 611. 23 (Nuremberg) United States v Oswald Pohl, 5 ccl 10 Trials 958, 978. 24 (Nuremberg) The Justice Case, above n 6, 974. 25 (Nuremberg) The Justice Case, above n 6, 981–982. These are discussed in Chapter 1, ­Section 5.1. 26 (Nuremberg) The Justice Case, above n 6, 982. 27 See Chapter 2, Section 5.3. 28 See Chapter 2, Section 2.

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construed to exclude isolated cases of atrocity or persecution.29 The required elements were said to be a ‘conscious participation in systematic government organized and approved procedures’30 on a nation-wide basis31 and ‘governmental participation is a material element of the crime against humanity’.32 These elements have, at best, a tenuous grounding in the Nuremberg Judgment and the text of either ccl 10 or the London Charter, and they have not always been present in the instances of humanitarian intervention referred to by the Tribunal.33 Despite this, the judgment has been frequently cited when it comes to defining a crime against humanity.34 2.2.3 The Einsatzgruppen Case The Einsatzgruppen Case involved the prosecution of 22 defendants who, as part of an extermination squad, the Einsatzgruppen, were accused of slaughtering over a million people.35 At the time it was described as the largest mass murder trial in history. The Tribunal said ccl 10 had removed the war nexus, but, instead of relying on the doctrine of humanitarian intervention, it said ‘the present Tribunal has jurisdiction to try all crimes against humanity as long known and understood under the general principles of criminal law’.36 The Tribunal also declared that:37 Crimes against humanity … can only come within the purview of this basic code of humanity because the state involved, owing to indifference, impotency or complicity, has been unable or has refused to halt the crimes and punish the criminals.

29 (Nuremberg) The Justice Case, above n 6, 982. 30 (Nuremberg) The Justice Case, above n 6, 982. 31 (Nuremberg) The Justice Case, above n 6, 984–985: ‘Simple murder and isolated atrocities do not constitute the gravamen of the charge … The charge in brief, is that of conscious participation in a nationwide government-organised system of cruelty and injustice’. 32 (Nuremberg) The Justice Case, above n 6, 984. 33 See Chapter 1, Section 5.1. 34 (Australia) For example, see the judgment of Toohey J in Polyukhovich, above n 1, discussed in Section 4.2 below. 35 (Nuremberg) United States v Otto Ohlendorf 4 ccl 10 Trials 411, 411–412 and 415–416 (‘The Einsatzgruppen Case’). See also Benjamin Ferencz, ‘From Nuremberg to Rome: A ­Personal Account’ in Mark Lattimer and Philippe Sands (eds), Justice For Crimes Against Humanity (Hart Publishing: Oxford, 2003) 35, 36. 36 (Nuremberg) The Einsatzgruppen Case, above n 35, 499. 37 (Nuremberg) The Einsatzgruppen Case, above n 35, 498.

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2.2.4 Other ccl 10 Trials Other cases resorted to ‘general principles of law’ to accept the pre-existing status of crimes against humanity in international law and that the prohibition against retrospective punishment could not apply to such charges under ccl 10. These cases have already been discussed in Chapter 2.38 They did not deal with the war nexus directly because the indictments were limited to acts committed during the war. The implication from reliance upon ‘the general principles’ source, however, would be that the war nexus only governs the ­jurisdiction to try, not the elements of the offence itself. In the Medical Case, two defendants, accused of performing medical experiments on persons (including prisoners of war) which sometimes lead to their death, advanced a defence of state sanctioned euthanasia towards the chronically ill and the condemned.39 Assuming a state could act towards its own citizens in such a way, the us Tribunal under ccl 10 said ‘the Family of Nations is not obligated to give recognition to such legislation when it manifestly gives legality to plain murder and torture of defenceless and powerless human beings of other nations’ (emphasis added).40 It was unnecessary for the Tribunal to consider whether wider defences to charges of crimes against ­humanity may be available where the person is a citizen of the state accused of the mistreatment. 2.3 The British Zone / West Germany The British authorities assigned prosecutions for crimes against humanity under ccl 10 to the German courts when committed by persons of German nationality against German nationals or stateless persons where charges ­under German domestic law could also be laid.41 This perhaps suggests that the uk, consistent with its position before the London Conference, believed that ­offences against German nationals should be prosecuted by the new

38 See Chapter 2, Section 7.2. 39 (Nuremberg) United States v Karl Brandt 2 ccl 10 Trials 171 (‘The Medical Case’), 174–178, 183, 197–198 (regarding the defendant Brandt) and 224–226 (regarding the defendant Gerhardt). 40 (Nuremberg) The Medical Case, above n 39, 198 (regarding Brandt) and 227 (regarding Gerhardt). The same view was expressed in United States v Ulrich Greifelt 4 ccl 10 Trials 597 (‘The Ru Case’), 654–655. 41 Ordinance No 47, published in Military Government Gazette, Germany, British Zone of Control, no 13, 306, cited by Schwelb, above n 10, 219.

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­ erman authorities rather than the Allies.42 This jurisprudence has frequentG ly been overlooked by commentators and judges writing in English, but the icty, ­particularly under the influence of Judge Cassese, has made use of this case law.43 2.3.1 The Denunciation Cases There were a number of prosecutions of defendants for ‘denouncing’ persons to the Nazi authorities which then lead to the persons’ arrest and persecution.44 In Sch., the accused had denounced her landlord to the Gestapo solely out of revenge which ended with the landlord’s conviction and execution.45 Following conviction, the accused appealed against the decision, arguing that crimes against humanity were limited to participation in mass crimes and did not include action against a single person for personal reasons.46 The Supreme Court dismissed the appeal and stated:47 … a crime against humanity as defined in ccl 10 Article ii 1(c) is committed whenever the victim suffers prejudice as a result of the National Socialist rule of violence and tyranny (Gewalt-oder, Willkürherrschaft) to such an extent that mankind itself was affected thereby … [which occurs] if the character, duration or extent of the prejudice were determined by the National Socialists rule of violence and tyranny or if a link between them existed. 42

See Chapter 2, Section 2.1. For an account of these trials, see Henri Meyrowitz, La répression par les tribunaux allemands des crimes contre l’humanité et de l’appartenance à une organisation criminelle (lgdj: Paris, 1960). 43 See Chapter 4. 44 See, for example, the judgments of the Supreme Court for the British Zone in (Nuremberg) Entscheidungen des Obersten Gerichtshofes für die Britische Zone in Strafsachen, vol i, 6–10, 11–18, 19–25, 45–49, 49–52, 91–95, 385–391; vol ii, 17–19, 67–69, 144–147; vol iii, 56–57 (‘Entscheidungen’); cited in Antonio Cassese, International Criminal Law (Oxford University Press: Oxford, 2003) 83. 45 (Netherlands) Decision of Flensburg District Court (30 March 1948) in Justiz und ­n sVerbrechen, Sammlung Deutscher Strafurteile wegen Nationalsozialististischer Tőtungsverbrechen 1945–1966, (Amsterdam University Press, 1968–75) vol ii, 397–402 (‘Justiz und ns-Verbrechen’). 46 Decision of the Supreme Court for the British Zone (26 October 1948) in (Nuremberg) Entscheidungen, above n 44, vol i, 122–126. 47 Decision of the Supreme Court for the British Zone (26 October 1948) in (Nuremberg) Entscheidungen, above n 44, vol i, 124 translated in (icty) Prosecutor v Tadić (Appeals Chamber Judgment), Case No IT–94–1–A (15 July 1999) (‘Tadić – Appeal’), [260].

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This was followed in other cases, which confirmed that ‘the motives (“Beweggründe”) prompting a denunciation are not decisive (nicht entscheidend)’48 and the accused need not support the tyranny,49 nor must the accused act systematically;50 it is sufficient if his single action is objectively connected with the system of violence and tyranny.51 In Harlan Veit the Court of Assizes summarised the jurisprudence of the Supreme Court, by saying crimes against humanity involves ‘any conscious and willed attack that, in connection with the Nazi system of violence and arbitrariness, harmfully interferes with the life and existence of a person or his relationship with his social sphere, or ­interferes with his assets and values, thereby offending against his human dignity as well as humanity as such’.52 48

Decision of the Braunschweig District Court (22 June 1950) in (Nuremberg) Justiz und ­n s-Verbrechen, above n 45, vol vi, 631–644, 639 translated in Tadić – Appeal, above n 47, [260]. 49 In (Nuremberg) P, the Defendants, who were doctors and a jurist, participated in the transfer of mentally ill persons to other institutions where the patients were secretly killed in gas chambers. In most cases they objected to these instructions and tried to save their patients’ lives, but the Supreme Court for the British Zone said a crime against humanity can be committed by a person who may not wish ‘to promote National Socialist rule’ and ‘who acts perhaps out of fear, indifference, hatred for the victim or to receive some gain … [if] the action remains linked to this violent and oppressive system (‘­Gewaltherrschaft’): Decision of the Supreme Court for the British Zone (5 March 1949), Entscheidungen, above n 44, vol i, 321–343, 341, translated in Tadić – Appeal, above n 47, [258] n 320. 50 In (Nuremberg) G, a member of the SA (Stormtroopers) participated in the mistreatment of a political opponent, not pursuant to orders, but for personal motives. The Supreme Court for the British Zone held that an attack against a single victim for personal reasons can be considered a crime against humanity if there is a nexus between the attack and the National Socialist rule of violence and tyranny: Decision of the Supreme Court for the British zone (8 January 1949) Entscheidungen, above n 44, vol i, 246–249, 247 translated in Tadić – Appeal, above n 47, [260] fn 322. 51 (Nuremberg) J and R, Decision of the Supreme Court for the British Zone (16 November 1948), Entscheidungen, above n 44, vol i, 167–171 quoted in Cassese, above 44, 66 fn 1. The Court also held that it is not necessary for the accused to act out of inhumane motives: K, Decision of the Supreme Court for the British Zone (27 July 1948), Entscheidungen, above n 44, vol i, 49–52, quoted in Cassese, above 44, 82–83. In K and P, the accused denounced P’s Jewish wife to the Gestapo for anti-Nazi remarks. The Supreme Court of the British Zone said ‘only the perpetrator’s consciousness and intent to deliver his victim through denunciation to the forces of arbitrariness or terror are required’: Decision of the Supreme Court for the British Zone (9 November 1948), Justiz und ns-Verbrechen, above n 45, vol ii, 499, translated in Tadić – Appeal, above n 47, [257]. 52 (Germany) Decision of the Schwurgericht District Court of Hamburg (29 April 1950), ­unpublished, translated in Cassese, above 44, 66 fn 1.

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2.3.2 The Case of Weller The Weller53 case involved the ill-treatment and assault of Jewish civilians by three persons including Weller, a member of the ss, who was at the time not in uniform and acting on his own initiative. The Jewish community complained to the head of the Gestapo who said Weller’s actions were not condoned. Weller was reprimanded by the district leader of the Nazi party and possibly fined 20 rm. The Supreme Court said crimes against humanity do not only cover ‘actions which are ordered and approved by the holders of hegemony’ but also:54 … when those actions can only be explained by the atmosphere and conditions created by the authorities in power. The trial court was [thus] wrong when it attached decisive value to the fact that the accused after his action was ‘rebuked’ and that even the Gestapo disapproved of the excess as an isolated infringement. That this action nevertheless fitted into the persecution of Jews affected by the State and the party, is shown by the fact that the accused … was not held criminally responsible in ­proportion to the gravity of his guilt. 2.3.3 Attacks on Members of the Military The Supreme Court for the British zone determined that crimes against humanity were applicable even if the victim was a member of the military.55 For example, in P. and others, three German soldiers were tried for trying to escape and were executed by order of a German Court Martial on the day of Germany’s surrender (10 May 1945).56 The Court held the executions were crimes against humanity because of the disparity between the offences and the punishment, even if the action could not actually support the Nazi tyranny.57 The reference to ‘civilian population’ in Article ii (1)(c) was only ‘illustrative’ of the crimes under consideration and did not preclude action between soldiers ­being a crime against humanity.58 53

Decision of the Supreme Court for the British Zone (21 December 1948), (Nuremberg) Entscheidungen, above n 44, vol i, 203–208. 54 Ibid, 206–207 translated in (icty) Prosecutor v Kupreškić et al. (Trial Chamber Judgment), Case No IT-95-16-T (14 January 2000) (‘Kupreškić – Trial’), [555]. 55 See Meyrowitz, above n 42, 282; and Cassese, above 44, 86–87. 56 (Nuremberg) P and others, Decision of the Supreme Court for the British Zone (7 ­December 1948); Entscheidungen, above n 44, vol i, 217, quoted in Cassese, above 44, 87. 57 Ibid, 228. 58 Ibid. Similarly, convictions for crimes against humanity were upheld by the Supreme Court for the British Zone in (Nuremberg) H, which involved the Court Martial of two German naval officers, and in R, which involved the denunciation of a member of the sa for remarks made by him: see H, Decision of the Supreme Court for the British Zone

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Such an interpretation is to be contrasted with the decision of Neddermeier, where a British Court acting under ccl 10 held the mistreatment of ­Polish soldiers whilst prisoners of war were only war crimes not crimes against humanity.59 2.4 The Russian Zone/East Germany (gdr) By Military Order of 1947, the Soviets transferred the authority to deal with Nazi perpetrators to the East German judiciary, other than for ‘important cases’.60 At first, these East German courts based their jurisdiction to prosecute crimes against humanity upon ccl 10 but this law was abolished by treaty with the Soviets in 1955. The High Court of the gdr ruled in 1961 that offences under Article 6 of the London Charter were directly applicable,61 which were then enacted in the gdr’s new criminal code of 12 January 1968.62 According to the courts of East Germany, in contrast to the approach of the German courts in West Germany,63 the London Charter was in accordance with the definition of crimes against humanity under customary international law and was the ­appropriate basis for charges against Nazi war criminals.64 The most notorious prosecution of Nazi war criminals in the gdr involved a series of trials under ccl 10 in 1950 in the town of Waldheim, Saxony. ­According to Burchard:65 (18 October 1949), Entscheidungen, above n 44, vol ii, 231; and R, Decision of the Supreme Court for the British Zone (27 July 1948) vol i, 45, both quoted in Cassese, above 44, 86–87. 59 (Nuremberg) Neddermeier, Judgment of 10 March 1949, in German-British Zone of C ­ ontrol, Control Commission Courts, Court of Appeal Reports, Criminal Cases, 1949, no 1, 58–60, quoted in Cassese, above 44, 88. 60 See Soviet Military Administration Order No. 201 (16 August 1947). 61 Neue Justiz 1961, 440–448, at 446ff. 62 Section 85, 91, 93; Section 95 discarded the defence of superior orders. 63 The German courts in West Germany did not imply a need for a war nexus and the ­Supreme Court took the view that ccl 10 was new law, not the codification of existing international law, which could be applied retrospectively in order to meet the demands of ‘justice’: (Nuremberg) Bl, Decision of the Supreme Court for the British Zone (4 May 1948), Entscheidungen, above n 44, vol i, 1–6. 64 See, for example, (Germany) the judgment against Hans Globke, Supreme Court of the German Democratic Republic (23 July 1963) in Neeue Justiz 1963, 449 at 507ff; the judgment against Horst Fischer, Supreme Court of gdr (25 March 1966), in Neue Justiz 1966, 193 at 203 et seq. Subsequently, this crime was included in the East Germany Criminal Code, summarised in G Wieland, Neue Justiz 1991, 49ff and cited in Gerhard Werle, P­ rinciples of International Criminal Law (tmc Asser Press: The Hague, 2005). 65 Christoph Burchard, ‘The Nuremberg Trial and its Impact on Germany’ (2006) 4(4) ­Journal of International Criminal Justice 800.

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From the end of April to mid-June, approximately 3,400 German i­ nmates of former Soviet internment camps were brought before special chambers of the Chemnitz district court (Landgericht). About 32 were s­ entenced to death (24 were executed); more than 140 were sentenced to life imprisonment; more than 1,800 were sentenced to 15–25 years in prison; most of the rest received sentences of up to 15 years; fewer than 10 were acquitted. These figures can be explained by the nature of the process. Trials rarely lasted longer than 20–30 minutes. All judges were hand-picked for their political loyalty. Sentences were regularly predetermined and chambers competed to award the most prison terms. There were no attorneys for the defendants, who were informed about the indictment on very short notice. The public was excluded from all except 10 show trials which, following the Stalinist model, took place before a group of hand-picked functionaries, and for which there was even a rehearsal. A West German court subsequently concluded that the trials involved a number of flagrant violations of due process, which made a mockery of any kind of regular administration of justice and rendered the sentences null and void.66 The Waldheim trials are a reminder of the need always to consider the ­tribunal – its composition and processes – which is being called upon to try those ­accused of crimes against humanity. As was remarked in Chapter 2, the desire to put on trial a nation’s enemies in one’s own courts may need to be controlled as much as encouraged. 2.5 Conclusion When the case is made for the ‘withering away’ of the war nexus in the definition of crimes against humanity after Nuremberg, ccl 10 is usually the first cited source.67 ccl 10 is similarly cited as being further evidence that there is no requirement that crimes against humanity be committed pursuant to a state policy.68 However, there are difficulties in relying upon ccl 10 in this way. 66 67

68

KG Berlin, 7 Neue Juristische Wochenschrift (1954), 1901ff. See, for example, Cassese, above 44, 73; (icty) Prosecutor v Tadić (Defence Motion for Interlocutory Appeal on Jurisdiction), Case No IT–94–1–AR72 (2 October 1995) (‘Tadić – Jurisdiction’), [140]; and (un) Report of the International Law Commission on the work of its forty-eighth session, 6 May–26 July 1996, un gaor, 51st sess, Supp. 10, un Doc. A/51/10 (26 July 1996), reprinted in [1996] 2 Year Book of the International Law Commission 79, 96[6] (‘1996 ilc Report’). See, for instance, Guénaël Mettraux, ‘The Definition of Crimes Against Humanity and the Question of a “Policy” Element’, in Leila Nadya Sadat (ed), Forging a Convention for Crimes Against Humanity (Cambridge University Press: New York, 2011) 162.

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First, the law was an occupational ordinance and it is not clear that the Allies were intending to codify an international offence when they defined crimes against humanity differently from that in Article 6(c) of the London Charter. The tribunals in the respective occupation zones applying CCL 10 were exercising a very different jurisdiction to that being exercised by the Nuremberg Tribunal – namely, a domestic jurisdiction rather than an international jurisdiction. While in practice the Tribunals were administered by the ussr, uk, us and France, these states were doing so as the highest authority in ­Germany in light of the German state’s defeat at the end of the Second World War. Accordingly, these bodies did not face the same concerns as the drafters of Nuremberg in finding a principled basis to warrant international intervention in ordinary domestic crimes as they, in effect, were simply administering ordinary domestic crimes. Secondly, the jurisprudence under ccl 10, while mixed, tends to reinforce the requirement of a war nexus or, at the very least, a connection with state policy. Most clearly, the East German courts (in the Russian Zone) held that the London Charter was in accordance with the definition of crimes against humanity under customary international law, therefore ought be applied. While the West German courts (in the British Zone) did not imply a need for a war nexus, they specifically found that ccl 10 was a new law that did not represent the codification of existing international law. In the us zone, two cases (Flick and the Ministries Case) held the London Charter impliedly governed ccl 10 and two (Justice and the Einsatzgruppen Case) said it did not. As Bassiouni says, the approach in Flick is more authoritative as it follows the Nuremberg Judgment and is, as such, more consistent with the principles of legality.69 Van Schaack says the holding in Justice and Einsatzgruppen was ‘arguably mere obiter dicta’ because only acts during the war were considered.70 But in any event, those decisions which did not view the war nexus as a necessary requirement, appeared to view a state policy as being necessary. The West German Supreme Court in Sch. held that a crime against humanity existed as such ‘whenever the victim suffers prejudice as a result of the National Socialist rule of violence and tyranny … ’. The requirement of a state policy of ‘violence and tyranny’ is not a particularly clear standard of criminal law. Cassese draws upon the cases in the British zone, particularly the Weller Case, to conclude that a crime against humanity can occur when there is merely state toleration or acquiescence in the violence of the defendant.71 69 70 71

Bassiouni, above n 10, 30 fn 66 and 155. Schaack, above n 3, 809–810. Cassese, above 44; Chapter 4 and in particular, 83–84.

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Similarly, in the us Zone, the Tribunal in the Justice Case considered that crimes against humanity required a ‘conscious participation in systematic government organized and approved procedures’ on a nation-wide basis, and stated that ‘governmental participation is a material element of the crime against humanity’.72 The Justice Case also required the persecution of civilian populations by state authorities carried out on a vast scale. Other us cases ­simply referred to ‘general principles of criminal law’, which do not necessarily imply a requirement of scale.73 In Einsatzgruppen, whilst referring to ‘­general principles of criminal law’ to ground the offence in existing international law, the ­Tribunal more cautiously thought that an international jurisdiction to try a ‘crime against humanity’ only arose in the case of state ‘indifference, ­impotency or complicity’. Ultimately, in the absence of other sources, there is a temptation to draw principles of wider application from ccl 10 and its jurisprudence – particularly where they deviate from the jurisdictional limitations imposed at Nuremberg. One has to be cautious about taking this approach too far. At best, the Justice Case, the Einsatzgruppen Case and the West German courts in the British Zone provide the first articulations of what the chapeau of crimes against humanity may look like outside a war nexus, with the former appearing to draw on the unwcc report of 1948.74 However, their findings were so disparate that it is difficult to draw any unifying principles out of them – let alone to say that they were definitive enough state practice to displace the definition of crimes against humanity in Article 6(c) of the Nuremberg Charter, as affirmed by the United Nations. Some of these authorities support the ‘war nexus’, and, at the very least they support a connection with state policy as being a requirement of crimes against humanity. Even so, their jurisdiction was very different from that at Nuremberg. In reality ccl 10 represented the exercise of a special municipal criminal jurisdiction for a country in transition from tyranny to democracy, rather than the exercise of a true international jurisdiction. Viewed in this light, ccl 10 supports the argument made in Chapter 275 that part of the Nuremberg Precedent is that a new government may punish retroactively conduct of the type prosecuted at Nuremberg because such conduct

72 73 74 75

The Justice Case, above n 6, 984. See Section 1.2(d) above. See Chapter 2, Section 5.3. See Section 7.

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is ‘criminal according to the general principles of law recognised by the community of nations’.76 3

International Sources77

3.1 The Convention on the Non-applicability of Statutory Limitations Precipitated by concern that offences of the Nazi era were about to be barred by laws of statutory limitation in Germany and other states,78 the General Assembly on 26 November 1968 adopted The Convention on the NonApplicability of Statutory Limitations to War Crimes and Crimes Against Humanity.79 Article i stated that no statutory limitation shall apply to: (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, Nürnberg, 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, 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 Crime of Genocide, even if such acts do not constitute a violation of the domestic law of the country in which they were committed. 76 Cf. Statute of the International Court of Justice, Art 38(1)(c). 77 The General Assembly passed resolutions in 1971 and 1973 calling upon states to arrest, extradite or punish persons suspected of committing war crimes and crimes against humanity: see Question of the Punishment of War Criminals and of Persons Who Have ­Committed Crimes against Humanity, un ga Resolution 2840, un gaor, 3rd Comm, 26th sess, Supp 29, 88, un Doc. A/8429 (22 December 1971); Question of the Punishment of War Criminals and of Persons Who Have Committed Crimes against Humanity, un ga Resolution 2712 (xxv), un gaor, 25th sess, Supp 28, 294, un Doc. 8233 (14 December 1970), Principles of International Co-operation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes against Humanity, un ga Resolution 3074 (xxviii), un gaor, 28th sess, Supp 30A, 78, un Doc. A/9030/Add 1 (3 December 1973). They did not deal with the definition of crimes against humanity and they are considered in Chapter 9. 78 See Richard Miller, ‘The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity’ (1971) 65 American Journal of International Law 476, 478–480; and Lippman, above n 3, 233. 79 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, done in New York, United States of America, opened for signature 16 December 1968, 754 unts 73 (entered into force on 11 November 1970).

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Many western countries (United States, Belgium, Italy, Greece, the United Kingdom, France and New Zealand) complained that in its drafting the Convention ought not attempt to redefine crimes against humanity or go beyond the London Charter.80 Complaints were made in particular about the lack of specificity and the political nature of the new crimes ‘eviction by armed attack or occupation’ (proposed by Arab states with Israel’s occupation in mind)81 and ‘inhuman acts resulting from the policy of apartheid’ (inserted at the ­insistence of African-Asian states with South Africa and colonial domination in mind).82 Other states were of the view that the opportunity should be taken to update the definition of crimes against humanity to take account of modern circumstances given that the original definition was drafted only by the four Allied nations and the composition of the un had changed since that time.83 The vote was split along ideological lines and the Convention was adopted by less than half of the members of the United Nations84 and has not been well supported since.85 The 1974 European Convention on the Non-Applicability of

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83 84 85

Greece proposed limiting crimes against humanity to the definition in the London Charter (un gaor, 3rd Comm., 23rd sess, 1563th mtg, 3 (1968) (Mr Stathatos)); Britain argued that Article i should be limited to ‘crimes against humanity as defined in international law’ (un gaor 3rd Comm., 23rd Sess., 1564th mtg, 1 (1968) (Lady Gaitskell)); Italy believed a thorough study should be done before constructing a definition of crimes against humanity (un gaor, 3rd Comm., 23rd sess., 1564th mtg, 4 (1968) (Mr Paolini)); the United States argued that the formulation of a definition was best performed by eminent jurists which should not be undertaken by the Third Committee (un gaor, 3rd Comm., 23rd Sess., 1564th mtg, 2 (1970) (Mrs Picker)); Norway argued the Convention should be limited to grave offences and any extension to ‘new types of crimes against humanity … would weaken the force of the instrument’ (un gaor, 6th Comm., 23rd sess., 1564th mtg (1970) (Mr Amlie)): see Miller, above n 78, 485, Lippman, above n 3, 233–234. France and Madagascar opposed the vagueness of the crime, and also said that not all expropriations could be regarded as a crime against humanity: Miller, above n 78, 490; Lippman, above n 3, 233–236. It was opposed by France, New Zealand, Norway, United Kingdom and Chile both because of the political nature of the crime and its lack of specificity: see Miller, above n 78, 491–492; and Lippman, above n 3, 233–234. Syria, Iraq, Morocco, the ussr, Guinea, Mauritania, Kenya and Cyprus: see Miller, above n 78, 485 and 487; and Lippman, above n 3, 233–234. Of the 126 Member States, 58 voted in favour, 7 against with 36 abstentions: Miller, above n 78, 477. There are 49 States Parties as at 7 October 2005: see Office of the United Nations High Commissioner for Human Rights, Convention on the Non-Applicability of Statutory Limitations

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Statutory Limitations only added the crime of genocide to the definition of crimes against humanity in the London Charter.86 According to Steven Ratner and Jason Abrams and the Group of Experts considering the possibility of prosecuting the Khmer Rouge for its ‘crimes against humanity’ in Kampuchea in the 1970’s,87 this Convention evidences recognition by states that crimes against humanity can occur outside the context of armed conflict because there was no opposition in the drafting to the words ‘whether committed in time of war or in time of peace’ as such. The same conclusion was reached by the eccc in Duch and in Case 00288 and by the Iraqi High Tribunal when considering the charge of crimes against humanity against Saddam Hussein for his role in the government’s attack against the Al-Dujail village in 1982.89 There are some difficulties in relying upon these sources as evidence that the ‘war nexus’ had disappeared from the customary law definition of crimes against humanity. First, the wording in Article i of the Convention may not, in fact, support the argument. Article 6(c) of the London Charter always permitted the possibility of crimes against humanity being committed outside the context of armed conflict in connection with crimes against peace and Article i expressly states that the crimes are ‘as they are defined in’ the London Charter. It is more likely that the words in Article i simply converted the statement in Article 6(c) of the London Charter (‘before or during the war’) to one to War Crimes and Crimes against Humanity (1968) accessed online at on 29 November 2005. 86 European Convention on the Non-Applicability of Statutory Limitations to Crimes against Humanity and War Crimes, done in Strasbourg, France, opened for signature 25 January 1974, European Treaty Series 82 (entered into force 27 June 2003). 87 Steven Ratner and Jason Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (2nd rev. ed, Oxford University Press: Oxford, 2001) 54–55 and 288–289; see also Report of the Group of Experts for Cambodia Established Pursuant to General Assembly Resolution 52/135, 53rd sess, Annex, un Doc. A/53/850 (15 March 1999) (‘Experts’ Report (Cambodia)’), [71]. 88 (eccc) Kaing Guek Eav alias Duch (Trial Chamber Judgment), Case File No. 001/18-072007/ECCC/TC (26 July 2010), [292]; Decision on Co-Prosecutors’ Request to Exclude Armed Conflict Nexus Requirement From the Definition of Crimes Against Humanity, Case File No. 002/19-09-2007/ECCC/TC (26 October 2011) (‘Sary – War Nexus Decision’), [33]. 89 (iht) The judgment and sentence in the Dujail Case was issued by the Iraqi High Tribunal Trial Chamber on 5 November 2006, unofficial English translation accessed online at on 22 April 2007. This was upheld by the Appellate Chamber on 26 December 2006, unofficial English translation accessed online at on 22 April 2007.

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c­ apable of application beyond the Second World War and, hence, the desire to include additional offences with no nexus to war.90 Secondly, the argument ignores the opposition at the time, expressed by some delegations in strong terms, to any departure from the London Charter or to the introduction of ‘new crimes’ (at least in a Convention that was dealing principally with the issue of statutory limitations). Mr Paolini of France, for instance, said the text ‘created new and dangerously vague offences, termed ‘crimes against humanity’ and confused the drafting of a legal instrument which would have serious consequences in the penal field with the enunciation of a political doctrine’ and the document was no longer of ‘interest to his delegation’.91 The argument also ignores the poor support the Convention ­received in the General Assembly and since. In the result, the 1968 Convention does not greatly advance the debate as to the definition of crimes against humanity in international law or the status of the war nexus, other than to highlight that its definition remained controversial at the time. 3.2 Other Conventions 3.2.1 The Genocide Convention On 11 December 1946, immediately following the General Assembly’s affirmation of ‘the principles of international law recognized by the Charter of the Nürnberg Tribunal and the judgment of the Tribunal’,92 it also unanimously affirmed ‘that genocide [described as ‘a denial of the right of existence of entire human groups] is a crime under international law which the civilised 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

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For example, the International Law Commission’s Nuremberg Principles deleted the phrase ‘before or during the war’ but stated that crimes against humanity are not limited to times of war because ‘such crimes may take place also before a war in connexion with crimes against peace.’: Principles of the Nuremberg Tribunal 1950, un gaor, 5th sess, Supp 12, un Doc. A/1316 (29 July 1950) (‘Principles of the Nuremberg Tribunal’), [123]. See also Section 3.3.1 below. un gaor, 3rd Comm., 23rd Sess., 1569th mtg, 2 (1968): Lippman, above n 3, 236. France in 1964 had introduced into domestic law the imprescriptibility of crimes against humanity based solely upon the London Charter: see Section 4.4 below. Affirmation of the Principles of International Law Recognized by the Charter of The N ­ ürnberg Tribunal, above n 4.

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punishable’.93 This resolution was a reaction to the finding of the Nuremberg Tribunal that pre-war persecutions were not punishable because of an absence of any proven nexus with the Second World War.94 Thus, whilst the international community was affirming Article 6(c) of the London Charter, with its war nexus, it was also affirming that the most serious ‘crime against humanity’ need not be limited to times of war. The 1948 Convention on the Prevention and Punishment of Genocide95 confirmed genocide as ‘a crime under international law’ applicable during times of war or peace.96 However, whilst some countries in its initial drafting referred to genocide as ‘an international crime against humanity’,97 according to William Schabas ‘[i]n order to avoid ambiguity and acutely conscious of the limitations of the Nuremberg Charter, the drafters of the Convention decided not to describe genocide as a form of crime against humanity’.98 Genocide in the Convention is defined to cover acts performed ‘with intent to destroy, in whole or part, a national, ethnic, racial or religious group’.99 The earlier reference to ‘political’ grounds was deliberately omitted, thereby increasing the divergence between genocide and ‘crimes against humanity’ as defined under the London Charter. As one military tribunal succinctly put it at the time:100 While the two concepts may overlap, genocide is different from crimes against humanity in that to prove it, no connection with war need be shown and, on the other hand, genocide is aimed against groups whereas 93

Crime of Genocide, un ga Resolution 96(i), un gaor, 1st sess, 2nd pt, un Doc. A/64/Add.1 (11 December 1946), 188. 94 The Cuban delegation, which jointly proposed the resolution, during the debates in the Sixth Committee noted result at Nuremberg, proposed the draft in order to establish the crime in times of peace: see William Schabas, Genocide in International Law: The Crimes of Crimes (Cambridge University Press: Cambridge, 2000) 42, and see 42–47 for the history of the resolution. 95 Convention on the Prevention and Punishment of Genocide, done in New York, United States of America, opened for signature 9 December 1948, 78 unts 277 (entered into force 12 January 1951). For a history of its drafting see Schabas, above n 94, Chapter 2. 96 Art 1. 97 Schabas, above n 94, 11. 98 Schabas, above n 94, 11. 99 Art 2. 100 (Nuremberg) Trial of Valentin Feurstein and Others, Proceedings of a Military Court held at Hamburg (4–24 Aug. 1948), Law Reports of Trials of War Criminals, u.n. War Crimes Commission (hmso: London, 1949), vol xv, 138.

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crimes against humanity do not necessarily involve offence against or persecutions of groups. 3.2.2 Apartheid Convention The 1973 International Convention on the Suppression and Punishment of Apartheid, declared apartheid a ‘crime against humanity’.101 Apartheid was defined in Article 2 as ‘inhuman acts [as defined] committed for the purpose of establishing and maintaining domination by one racial group of persons over other racial groups of persons and systematically oppressing them’. Article 3 defined individual criminal responsibility in very broad terms, encompassing members of organisations who ‘co-operate’ in acts of apartheid. Some Western countries complained about the political nature of the Convention and the indeterminacy of the crimes.102 Few Western countries have ratified the Convention103 and Cassese submits that it has not reached customary law status.104 This is notwithstanding its incorporation into the icc Statute.105 3.2.3 Conclusion Some have said that the Genocide and Apartheid Conventions have progressed the definition of crimes against humanity under customary international law, including the omission of the need for the war nexus.106 In the authors’ view, it is difficult to place much weight on these Conventions in this regard, given the discrete topics covered. Both genocide and apartheid fall into their own categories and their elements (including the absence of a nexus to aggression or war) cannot be applied to all crimes against humanity.107 101 International Convention on the Suppression and Punishment of Apartheid, done in New York, United States of America, opened for signature 30 November 1973, 1015 unts 243 (entered into force 18 July 1976). 102 See Roger Clark, ‘The Crime of Apartheid’ in M Cherif Bassiouni, International Criminal Law, Vol. 1 (Crimes) (Transnational Publishers: New York, 1986) 299. 103 There are 107 States Parties as at 7 October 2005: see Office of the United Nations High Commissioner for Human Rights, International Convention on the Suppression and Punishment of the Crime of Apartheid (1976), accessed online at on 29 November 2005. 104 Cassese, above n 44, 25. 105 See Chapter 10, Section 11. 106 Cassese, above n 44, 73; see also 1996 ilc Report, above n 67; (icty) Tadić – Jurisdiction, above n 67, [140]; and (eccc) Sary – War Nexus Decision, above n 88, [33]. 107 As Mr Spiropoulos, Special Rapporteur to the ilc for its draft code of offences, was recorded as putting it in the Sixth Committee of the un in 1950: ‘He was unacquainted

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Seen another way, the crimes of genocide and apartheid each have their own unique ‘internationalising’ factor that separates the crime from an ­ordinary domestic crime – genocide requires an act done ‘with intent to destroy, in whole or part, a national, ethnic, racial or religious group’, and apartheid requires the ‘purpose of establishing and maintaining domination by one racial group of persons over other racial groups of persons and systematically oppressing them’. These links can be seen to assuage an international community which was – as can be seen from the practice at Nuremberg as well as in the drafting of the Genocide Convention itself – concerned about the potential overreach involved with ‘crimes against humanity’. Accordingly, the most that can be said is that there was a widely held view that the war nexus was too limiting and the two specific Conventions were a reaction to this sentiment. What was to be done with the war nexus for ‘crimes against humanity’ generally remained unresolved by these Conventions. 3.3 International Law Commission108 3.3.1 The Nuremberg Principles Between the date of the Nuremberg Judgment in 1946 and the creation of the International Criminal Tribunal for the former Yugoslavia in 1993, efforts to resolve the meaning of crimes against humanity in international law centred on the work of the International Law Commission. In his report to President Truman of 9 November 1946, Justice Biddle, the us judge on the Nuremberg Tribunal, suggested the time had come to utilise the Nuremberg experience and draft a ‘code of offences against the peace and security of mankind’.109 Following a proposal submitted by the United States, the General Assembly in with any notion of crimes against humanity independent of the notion of crimes against peace, and of war crimes … He believed that crimes against humanity and the crime of genocide were two quite different things.’: Report of the Sixth Committee to the un General Assembly concerning the Report of the International Law Commission on the Question of International Criminal Jurisdiction (un Doc. A/1316), un gaor, 5th sess, Annexes 5, 9 and 10, un Doc. A/1639 (8 December 1950) (‘Report of the Sixth Committee’), reprinted in [1951] 2 Year Book of the International Law Commission 43, un Doc. A/CN 4/44 (12 April 1951), 55–56 [120]. 108 By Establishment of an International Law Commission, un ga Resolution 174(ii), 2nd sess, 123rd plen mtg, un Doc. A/RES/174(ii) (21 November 1947), 105, the General Assembly created the ilc with 34 elected members to promote the progressive development of international law and its codification. 109 Quoted in Draft Code of Offences Against the Peace and Security of Mankind – Report by J Spiropoulos, Special Rapporteur, [1950] 2 Year Book of the International Law Commission 255–256, un Doc. A/CN.4/25 (26 April 1950), [9]–[10].

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1947 asked the ilc both to prepare a draft code of offences against the peace and security of mankind and ‘to formulate the principles of international law recognised in the Charter of the Nürnberg Tribunal and in the judgment of the Tribunal’.110 The Commission considered both matters in its first session in 1949 and it expressly decided ‘that since the Nürnberg principles had been affirmed by the General Assembly, the task of the Commission’ ‘was not to express any appreciation of these principles as principles of international law but merely to formulate them.’111 It appointed Mr Jean Spiropoulos as Special Rapporteur to consider both the draft code of offences and the Nuremberg Principles. And, in 1950, the ilc issued its Nuremberg Principles.112 The ilc’s formulation of crimes against humanity (Principle vi(c)) largely followed Article 6(c).113 Whilst it kept the requirement for a link with crimes against peace and war crimes, it deleted the phrase ‘before or during the war’ contained in Article 6(c). This was ‘because this phrase referred to a particular war, the war of 1939.’ The Commission expressly stated that this was not meant to suggest that the crime could only be committed during war because ‘such crimes may take place also before a war in connexion with crimes against peace.114 It noted that whilst the Nuremberg Tribunal had not found that such a connection existed in the case of German pre-war persecutions, it did not thereby exclude the possibility that crimes against humanity might be committed also before a war.115 The only other remark it made on the meaning of crimes against humanity was to comment that the phrase ‘any’ civilian population meant crimes against humanity could be committed by a perpetrator against his own population.116

110 Formulation of the Principles Recognised in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, un ga Resolution 177(ii), un gaor, 2nd sess, 123rd plen mtg, un Doc. A/519 (17 November 1947), 111–112. 111 Formulation of the Principles Recognised in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, above n 110, [96]. 112 Principles of the Nuremberg Tribunal, above n 90. 113 ‘(c) 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 connexion with any crime against peace or any war crime’: Principles of the Nuremberg Tribunal, above n 90, [119]. 114 Principles of the Nuremberg Tribunal, above n 90, [123]. 115 Principles of the Nuremberg Tribunal, above n 90, [122]. 116 Principles of the Nuremberg Tribunal, above n 90, [124].

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The Sixth Committee of the un endorsed the Nuremberg Principles,117 though some delegates voiced concern at the continuation of the war nexus.118 The General Assembly invited governments to comment on them and instructed the ilc to prepare a draft code of offences against the peace and security of mankind taking account of those comments.119 3.3.2 Draft Code of Offences (i) The 1951 Draft Code Mr Spiropoulos, as Special Rapporteur between 1949 and 1954, produced three reports (1950, 1951 and 1954) and, during his time, the ilc adopted two draft codes (1951 and 1954). Mr Spiropoulos expressed the view that ‘Outside the crimes against humanity defined by the Nürnberg charter no concept of crimes against humanity existed under international law’120 and his first draft largely followed the London Charter’s definition.121 Despite this, the ilc in its third session in 1951 took the view that the Nuremberg Principles did not bind it and that it was free to modify or develop those principles.122 ­Accordingly, some ­delegates objected to the war nexus (said to be only a jurisdictional requirement of Nuremberg),123 whilst the majority thought these conditions necessary to exclude isolated domestic crimes.124

117 Report of the Sixth Committee, above n 107. 118 Mr Amado (Brazil) argued that without a war nexus the offences would become offences under ordinary law, whilst Mr Chaumont (France with the support of Israel) argued it was wrong as a matter of general international law to regard the war nexus as necessary (citing the crime of genocide as an example): Ibid, 55 [118], 56 [124]. Chaumont said the crimes distinguishing feature was that the crimes were committed with government complicity or toleration: ibid, 55 [118]. Mr Spiropoulos (Greece) thought outside the Nuremberg definition crimes against humanity did not exist in international law and genocide was a separate offence (ibid, 56 [120]) a position which had the support of Iran and Pakistan: Report of the Sixth Committee, above n 107, 56 [121], [123]. 119 Formulation of the Nürnberg Principles, un ga Resolution 488, 5th sess, 320th plen mtg, un Doc. A/1775 (15 December 1950). 120 Report of the Sixth Committee, above n 107, [120]. 121 Draft Code of Offences Against the Peace and Security of Mankind – Report by J Spiropoulos, Special Rapporteur, above n 109. 122 See [1951] 2 Year Book of the International Law Commission 58. 123 See ‘Summary Records of the 3rd Session, 91st meeting’, [1951] 1 Year Book of the International Law Commission 75. 124 [1951] 2 Year Book of the International Law Commission 58, 69–70 and 74.

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In the end, Article 2(10) of the adopted 1951 ilc Draft Code defined crimes against humanity in a way that diluted the war nexus as follows:125 Inhuman acts by the authorities of a State or by private individuals against any civilian population, such as murder, or extermination or enslavement, or deportation, or persecution on political, racial, religious or cultural grounds when such acts are committed in execution of or in connexion with other offences defined in this article. Accordingly, the nexus was widened to cover all crimes otherwise listed in the Code, namely, ‘offences against the peace and security of mankind’. This included not only war crimes (committed in an international armed conflict) and aggression, but also genocide, and other ‘offences’ of international interference such as state support of international terrorism126 and the fomenting of civil strife in another country.127 Much like the war nexus, however, this ­formulation was very much in keeping with the spirit of the internationalising aspect of the war nexus discussed in Chapter 2.128 (ii)

The 1954 Draft Code The General Assembly did not deal with the 1951 Draft Code and the matter was taken up again by the ilc in 1953 and 1954. After considering the comments of some governments, Mr Spiropoulos in his third report did not suggest any change to Article 2(10).129 In the 1954 proceedings, over the objection of many delegates the nexus to other offences was deleted by a majority of just one vote.130 Mr Scelle of France supported the

125 International Law Commission, Draft Code of Offences against the Peace and Security of Mankind, un gaor, 6th sess, un Doc. A/CN 4/44 (12 April 1951), reprinted in [1951] 2 Year Book of the International Law Commission 133–137, 136 (‘1951 ilc Draft Code’) (emphasis added). 126 ‘The undertaking or encouragement by the authorities of a State of terrorist activities in another State, or the toleration by the authorities of a State of organized activities calculated to carry out terrorist acts in another State’. 127 ‘The undertaking or encouragement by the authorities of a State of activities calculated to foment civil strife in another State, or the toleration by the authorities of a State of organized activities calculated to foment civil strife in another State’. 128 See Chapter 2, Section 8. 129 See ‘Summary Records of the 3rd Session, 267th meeting’, [1954] 1 Year Book of the International Law Commission 131 (‘Summary Records of the 3rd Session, 267th meeting’), fn 12. 130 See Summary Records of the 3rd Session, 267th meeting, above n 129, 132–133. The vote was 6 to 5 with one abstention.

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d­ eletion and invoked the precedent of humanitarian interventions,131 whilst other delegates thought that without the war nexus the offences were not international, but ordinary crimes.132 In the result, Article 2(11) of the 1954 ilc Draft Code defined crimes against humanity as follows:133 Inhuman acts such as murder, extermination, enslavement, deportation or persecution, committed against any civilian population on social, ­political, racial, religious or cultural grounds by the authorities of a State or by private individuals acting at the instigation or with the toleration of such authorities. By this draft, the defining feature of crimes against humanity was the requirement that the crimes be carried out ‘at the instigation or with the toleration of a state’. This definition appears to have more in common with the formulation in the Einsatzgruppen Case (discussed above134) than Article 6(c) of the Nuremberg Charter. However, as argued in Chapter 2, crimes against humanity under the London Charter always required conduct in service of a state’s interests and, thereby, some connection with a policy of a state.135 Some say the 1954 draft is evidence of the severing of the connection between war and crimes against humanity.136 However, such a view ignores the likelihood that the ilc was endeavouring progressively to develop the law, not codify existing crimes. This is evidenced by its decision not to be bound by the

131 See Summary Records of the 3rd Session, 267th meeting, above n 129, 132 [48]. 132 See Summary Records of the 3rd Session, 267th meeting, above n 129, 133. See also ‘­Summary Records of the 3rd Session, 269th Meeting’ [1954] 1 Year Book of the International Law Commission 142–144 (‘Summary Records of the 3rd Session, 269th meeting’). 133 (Emphasis added) International Law Commission, Draft Code of Offences Against the Peace and Security of Mankind, un gaor, 9th sess, Supp 9, 11, un Doc. A/2693 (29 July 1954) reprinted in [1954] 2 Year Book of the International Law Commission 149–152, 151–152 (‘1954 ilc Draft Code’). See also David H.N. Johnson, ‘The Draft Code of Offences against the Peace and Security of Mankind’ (1955) 4 International & Comparative Law Quarterly 445, 464–465; and Sydney Goldenberg, ‘Crimes against Humanity – 1945–1970’ (1971) 10 Western Ontario Law Review 1, 19 fn 53. 134 See above, at 2.2.3. 135 Chapter 2, Section 5. 136 Ratner and Abrams, above n 87, 289.

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Nuremberg Principles which had been endorsed by the Sixth Committee.137 For example, Mr Lauterpacht said the new offence would represent ‘taking a great step in the progress of international law’.138 Much like the formulations in the Justice Case and the Einsatzgruppen cases discussed above,139 the definition appears to be another attempt to formulate the ‘international’ component of crimes against humanity outside the war nexus. Such a view also ignores the fact that, ultimately, this ‘great step’ proved too difficult for the international community at the time. The Sixth Committee of the un held that it was premature to consider the Draft Code140 and on 4 December 1954, the General Assembly postponed consideration of the Draft Code ostensibly until the definition of aggression had been resolved.141 It is difficult, therefore, to say that this new definition was in any way endorsed by the international community. (iii) The 1991 Draft Code Nothing further happened for 27 years,142 until in 1981 the General Assembly called upon the ilc to resume work on the Draft Code.143 Mr Doudou Thiam was appointed Special Rapporteur in 1982. He issued no less than 13 reports between 1983 and 1995. In his fourth report of 1986, Mr Thiam wrote that ‘today’ crimes against ­humanity can be committed not only within the context of an armed conflict.144 He doubted that there was a need for a mass element or even state involvement.145 Rather, drawing upon the work of Meyrowitz and the ­jurisprudence 137 According to Bassiouni it was surprising that the very body which formulated the principles did not view is own definition as definitive or binding: above n 10. 138 See Summary Records of the 3rd Session, 269th meeting, above n 132, [40]. 139 See above, at 2.2.2, 2.2.3, and 2.5. 140 Draft resolution in sixth committee meeting adopted at 402nd meeting, un gaor, 9th sess, Annexes 1 and 8, un Doc. A/2807 (13 October 1954) (‘Draft Report of the Sixth Committee’). 141 See Draft Code of Offences Against the Peace and Security of Mankind, un ga Resolution 897 (ix), 9th sess, 504th plen mtg, un Doc. A/2890 (4 December 1954), [23]. 142 See Bassiouni, above n 10, 185; and Ferencz, above n 35, 39. 143 Report of the International Law Commission on the Work of its Thirty-Third Session, un ga Resolution 36/114, un gaor, 36th Sess, 92nd plen mtg, un Doc. A/RES/36/114 (10 December 1981). 144 Doudou Thiam, Fourth Report on the Draft Code of Offences against the Peace and Security of Mankind [1986] 2 Year Book of the International Law Commission 53 (‘Fourth ilc ­Report’), 56 [11], un Doc. A/CN.4/398 (11 March 1986). 145 Fourth ilc Report, above n 144, 58 [23]–[24].

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of the German courts under ccl 10, he submitted that the crime’s defining feature was an attack upon ‘human dignity’ or the ‘human person’.146 He also wrote that what was ‘unanimously’ accepted as a feature of crimes against humanity was ‘the intention to harm a person or group of persons because of their race, nationality, religion or political opinion’.147 His draft dropped the requirement of state toleration but instead required all inhuman acts to be ‘committed against elements of a population on social, political, racial, r­ eligious or cultural grounds’.148 This was quite a radical revision of the meaning of crimes against humanity over the Nuremberg Precedent and the 1954 Draft. The ilc referred this draft to a drafting committee for further consideration. By the 1986 proceedings it is of significance that a clear consensus had emerged a nexus with wars was no longer required.149 Mr Thiam’s draft in his seventh report suggested an offence as follows: All other inhuman acts150 committed against elements of any population or against individuals on social, political, racial, religious or cultural grounds including murder, deportation, extermination, persecution, and mass destruction of their property.151

146 Fourth ilc Report, above n 144, 56–58 and in particular at 56 [12]–[13], 57 [20]–[22]. See Meyrowitz, above n 42, 60 and Section 2.3, above. 147 Meyrowitz, above n 42, 58 [25]. 148 Meyrowitz, above n 42, 86. His draft included genocide, apartheid and breaches of international obligations with respect to the environment as also within the heading of ‘crimes against humanity’. 149 See ‘Summary Records of the 1958th meeting and 1960th meeting’, [1986] 1 Year Book of the International Law Commission 94, 96–97 and 103–104 (especially the statements of Messrs Malek, Flitan and Sinclair). For example, Mr Malek said ‘legal thinking and the jurists who had examined and clarified the concept of crimes against humanity had been virtually unanimous, since the Nürnberg Tribunal, in recognising that such crimes should be detached from warfare’: ibid, 96 [13]. 150 His draft article listed as separate offences genocide, apartheid, slavery, expulsion or forcible transfer of populations and serious and intentional harm to a human asset, such as the human environment. 151 Doudou Thiam, Seventh Report on the Draft Code of Offences against the Peace and Security of Mankind, [1989] 2 Year Book of the International Law Commission 81 (‘Seventh ilc ­Report’), 85–86 un Doc. A/CN.4/419 & Corr.1 and Add.1 (24 February 1989).

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On this draft, the crime need not be directed against a population as such. Rather, the common feature is that all crimes are required to have a discriminatory motive.152 In 1991 the ilc issued its Draft Code for discussion.153 Whilst the debate was often couched in terms of codifying existing law,154 the actual draft offences suggest the ilc were not particularly rigorous in this regard. Articles 15 to 26 covered a number of novel and difficult offences such as colonial domination (Article 18) and wilful and severe damage to the environment (Article 26). ­Article 21 was called ‘Systematic or Mass Violation of Human Rights’:155 An individual who commits or orders the commission of any of the following violations of human rights: – murder – torture – establishing or maintaining a person in the status of slavery, servitude or forced labor – persecutions on social, political, racial, or cultural grounds in a systematic manner or on a mass scale; or – the deportation or forcible transfer of a population shall, on conviction thereof, be sentenced [to…] According to the commentary, the ‘common factor’ for crimes against humanity was not a discriminatory animus, as suggested by Mr Thiam, but a serious violation of certain fundamental human rights,156 where ‘only systematic or

152 In this view Mr Thiam relies upon the 1943 draft of the United Nations War Crimes Commission (see Chapter 2, Section 2.1) rather than the London Charter as reflecting the crime’s ‘true meaning’: Seventh ilc Report, above n 151, 86 [32]–[35]. 153 See Report of the International Law Commission on the Work of its Forty-Third Session, un gaor, 46th sess, Supp 10, un Doc. A/46/10 (19 July 1991) (‘1991 ilc Draft Code’). 154 See, for example: Doudou Thiam, Second Report on the Draft Code of Offences against the Peace and Security of Mankind, [1984] 2 Year Book of the International Law Commission 89 (‘Second ilc Report’), 90 [11], un Doc. A/CN.4/377 (10 December 1984) (‘the purpose [of the report] is to formulate a list of offences today considered as offences’); and ‘­Summary Records of the 1820th meeting’, [1984] 1 Year Book of the International Law Commission 28, 29 (especially the statement of Mr Sinclair who said the crimes had to be recognised by the international community as offences). 155 Second ilc Report, above n 154, 103. 156 1991 ilc Draft Code, above n 153, 103[2].

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massive violations of human rights would be a crime’.157 Hence, the main ­feature of the crime, according to this draft, appears primarily to be that of scale by use of the notion of ‘systematic or mass-scale’ Even the concept of ‘systematic’ was said to require ‘a constant practice or to a methodical plan to carry out such violations’.158 Chapter 2 argued that the concept of crimes against ‘any civilian population’ in Article 6(c) of the London Charter did not import any notion of either scale or crimes of a collective nature. This was rejected by the ilc in its 1991 draft. The requirement of scale was seen as replacing the prior requirement of a nexus to war. However, whilst the 1991 definition marks the birth of the modern concept of crimes against humanity, it had its roots back over the centuries as reflected in the doctrine of humanitarian intervention and the tradition of Grotius. The definition also appeared reminiscent of the requirement in the Justice Case that crimes against humanity are ‘acts of such scope and ­malevolence, and they so clearly imperil […] the peace of the world scale’.159 But what of the need for state involvement or toleration? According to the commentary:160 It is important to point out that the draft article does not confine possible perpetrators of the crimes to public officials or representatives alone. Admittedly, they would, in view of their official position, have far reaching factual opportunity to commit the crimes covered by the draft article; yet the article does not rule out the possibility that private individuals with de facto power or organised in criminal gangs or groups might also commit the kind of systematic or mass violations of human rights covered by the article; in that case, their acts would come under the draft Code. This sets up a false choice between state actors (‘public officials or representatives’) and non-state actors (‘private individuals’). The concept of crimes against humanity, by and large, has always encompassed the acts of private individuals provided such conduct, or its toleration, can be linked with the interests or policy of a state, for example, by the private individuals’ conduct fitting within an overall pattern or course of conduct of state tolerated crimes. This appeared to be the position in the Justice Case and the Einsatzgruppen Case which preceded the ilc’s search for a replacement for the war nexus. 157 1991 ilc Draft Code, above n 153, [3]. 158 Ibid. 159 See above, at Sections 2.2.2 and 2.5. 160 1991 ilc Draft Code, above n 153, 103–104[5].

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The real issue is not whether or not the perpetrator is a state official but whether or not the perpetrator operates with the encouragement or toleration of a state or de facto power. The requirement that perpetrators be organised ‘in criminal gangs or groups’ similarly confuses matters if it is thought that this is all that is required. For example, can a criminal gang such as the Hells Angels really commit a crime against humanity? Many commentators were critical of the Draft as a whole, particularly on the ground of lack of specificity of the proposed offences.161 24 countries submitted comments on the draft and many were also critical of its lack of specificity,162 including Article 21.163 Brazil and the United States pointed out that Article 21 seemed to make cases of murder crimes against the peace and security of mankind, which they did not support.164 Brazil called for the ilc ‘to clarify the scope of the expression “in a systematic manner or on a mass scale”.165 The Netherlands suggested the ‘or’ in this expression be replaced by ‘and’, and that the Code should only cover crimes committed ‘in an official capacity’.166 Significantly, no government sought the re-introduction of the war nexus. (iv) The 1996 Draft Code Between 1993 and 1994, the ilc found itself being overtaken by events in the Security Council, which drafted the icty and ictr Statutes that included definitions of crimes against humanity (discussed in Chapter 4). In 1994, the ilc, aided by a drafting committee of experts which included Professor James Crawford, submitted its Draft Statute for an International Criminal Court with jurisdiction over crimes against humanity defined at Article 20(d).167 The crimes were not defined because of ‘unresolved issues about the definition’ which the Statute could not address.168

161 Bassiouni, above n 10, 187–191. 162 See Comments and Observations received from Governments [1993] 2 Year Book of the ­International Law Commission 59, un Doc. A/CN.4/488 and Add.1 (19 July 1993) and, for example, the comments from Switzerland invoking the principle nullum crimen: ibid, 106. 163 For example, the United States complained about its ‘vagueness’: ibid, 104[14]. 164 Ibid, 73[14] (Brazil); 104[14] (United States). 165 Ibid, 73[14] (Brazil). 166 Ibid, 87[62], [64]. 167 Report of the International Law Commission on the Work of its Forty-Sixth Session, un gaor, 49th sess, Supp 10, un Doc. A/49/10 (1 September 1994) (‘1994 ilc Report’); for discussion, see James Crawford, ‘The ilc Adopts a Statute for an International Criminal Court’ (1995) 89 American Journal of International Law 404. 168 1994 ilc Report, above n 167, 75 and 77.

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The ilc produced its last Draft Code in 1996.169 Clearly influenced by the icty and ictr Statutes, the enumerated crimes were reduced and included ‘crimes against humanity’ in Article 18 as follows:170 … any of the following acts, when committed in a systematic manner or on a large scale and instigated or directed by a Government or by any organisation or group: a) murder; b) extermination; c) torture; d) enslavement; e) persecution; f) institutionalized discrimination; g) arbitrary deportation or forcible transfer of a population; h) arbitrary imprisonment; i) forced disappearance of persons; j) rape, enforced prostitution and other forms of sexual abuse; k) other inhumane acts … The definition appeared to be an amalgamation of the requirement in the 1954 Draft Code – requiring the instigation or direction of state authorities – with the altered focus in the 1991 Draft Code on the scale of the atrocities rather than its authors. The ilc in its Report justified the omission of any war nexus by reference to events since Nuremberg (ccl 10, the Genocide Convention, the Statutes for the icty and the ictr and the case law of the icty).171 It noted that the requirement that the acts be committed in a ‘systematic manner or on a large scale’ was not included in the London Charter172 and the phrase ‘committed against any civilian population’ is not included in the draft. According to the Report’s commentary, ‘systematic’ means ‘pursuant to a preconceived plan or policy’173 and ‘large scale’ means acts ‘directed against a multiplicity of victims’ so ‘an isolated inhumane act’ ‘directed against a single victim is excluded’.174 The ilc also noted that an attack may be ‘widespread’ either

169 1996 ilc Report, above n 67. 170 1996 ilc Report, above n 67, 93–94. 171 1996 ilc Report, above n 67, 96, [6]. 172 1996 ilc Report, above n 67, 94, [3]–[4]. 173 1996 ilc Report, above n 67, 94, [3]. 174 1996 ilc Report, above n 67, 95, [4].

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b­ ecause of the ‘cumulative effect of a series of inhuman acts or the singular effect of an inhumane act of extraordinary magnitude.’175 In addition, the definition required the acts to be ‘instigated or directed by a Government or by any organisation or group’. The Report failed to explain what ‘organisation or group’ means, merely saying that it ‘may or may not be affiliated with a Government’.176 The commentary on Article 18 also stated:177 This alternative is intended to exclude the situation in which an individual commits an inhumane act while acting on his own initiative pursuant to his own criminal plan in the absence of any encouragement or direction from either a government or a group or organisation. This type of isolated criminal conduct on the part of a single individual would not constitute a crime against humanity. This wording fails to deal with the case of state ‘toleration’ which was in the 1954 Draft. The Draft itself was then overtaken by the creation of the icc ­discussed in Chapter 4. 3.3.3 Conclusion Like the case-law under ccl 10, discussed above in Section 2, there is a temptation to place reliance upon the work of the ilc as evidencing the development of crimes against humanity under customary law. It is easy to be cynical about the efforts of the ilc in drafting a definition of crimes against humanity. Not regarding itself as bound by either the London Charter, which had been endorsed by the General Assembly, or by its own Nuremberg Principles, which had been endorsed by the Sixth Committee, the ilc oscillated and vacillated between definitions, which have varied markedly on the key aspects, such as the need for a discriminatory motive, a mass element or state toleration. From a starting point of accepting Article 6(c) of the London Charter in 1950, the ilc did not significantly deviate in its next draft in 1951 in that it continued to maintain a required nexus between a crime against humanity and international threats to peace and security of some sort. Its first attempt to deviate from this in 1954 – where it proposed a requirement that there be the instigation or toleration of state authorities – could not be agreed on by the states involved. When the ilc next met 27 years later in 1991, there had been 175 Report of the Commission to the General Assembly on the work of its forty-eighth session [1996] 2 Yearbook of the International Law Commission 2, 47. 176 1996 ilc Report, above n 67, 95, [5]. 177 1996 ilc Report, above n 67.

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no new state practice in respect of crimes against humanity outside the state prosecution of Nazi war criminals discussed below.178 And whilst the abandonment of the war nexus no longer proved controversial by at least 1986, debate ranged as to what should replace it. Finally, by the time the 1996 Draft Code came about, it had been overtaken by the practice of the Security Council in respect of the icty and ictr (discussed in Chapter 4). Ultimately, it is difficult to regard the work of the ilc, for example by its last draft in 1996, as codifying the ‘true meaning’ of crimes against humanity in international law as opposed to attempting to progress it. It is far from clear that the ilc saw this as its role as far as crimes against humanity was concerned. The conclusion must be that the drafts of the ilc, including that of 1996, did not resolve the problem of the definition of crimes against humanity in international law and a consideration of state practice and other sources is required to further that matter.179 4

State Practice

4.1 Introduction Between 1945 and 1993, the concept of crimes against humanity was rarely incorporated into the domestic law of states. This is hardly surprising. If a state wished to prosecute a defendant for, say, murder, it did not need to turn to this international crime. Nor was there any international treaty requiring the suppression of such offences. Exceptions arose in the cases of Australia, Canada, France, Israel and the Netherlands, which are analysed in this section. 4.2 Australia The War Crimes Amendment Act 1989 (Commonwealth) made punishable ‘war crimes’ committed in Europe between 1 September 1939 and 8 May 1945.180 Section 7(3) defined this to include certain ‘serious crimes’181 if committed ‘in the course of political, racial or religious persecution’ or ‘with the intent to destroy in whole or in part a national, ethnic, racial or religious group’ and if committed in a territory involved in or occupied during the Second World War. Accordingly, it only incorporates either the persecution-type crimes of 178 See Section 4. 179 This is the view of Schaack, above n 3, 826; and Bassiouni, above n 10, 192–193; contra Hwang, above n 3, 487–488. 180 (Australia) See War Crimes Amendment Act 1989 (Cth), ss 5, 6 and 7. 181 (Australia) Such as murder: see War Crimes Amendment Act 1989 (Cth), s 6(1).

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Article 6(c) of the London Charter or genocide, and only when committed during World War 2. Section 17(2) also provided that it was a defence to a charge under the Act if the act ‘was permitted by the laws, customs and usages of war’ and ‘was not under international law a crime against humanity’. In the High Court decision of Polyukhovich v The Commonwealth,182 the ­appellant challenged the constitutionality of the legislation, inter alia, on the basis that it was impermissibly retroactive. While this challenge was rejected, each of the judges delivered separate judgments with differing levels of analysis of the principle of non-retroactivity and crimes against humanity under international law. Three of the majority judges (Mason CJ, Dawson and McHugh JJ) considered that the Australian Constitution allowed for ex post facto criminal legislation notwithstanding any inconsistency with international law.183 The final judge making up the majority decided the issue on a narrower basis. Toohey J considered that the law was not impermissibly retroactive as the underlying crime with which the accused was charged – murder – was ­universally condemned.184 As such, it cannot be said that the individual suffers any loss as they cannot be said to say they had ‘no cause to abstain’. The same view was reached by Dawson J in dicta, albeit his Honour explicitly relied on the fact that it would be ‘criminal according to the general principles of law recognized by the community of nations’ within Article 15(2) iccpr.185 While less directly addressed by the dissenting judges, both Gaudron J (in the context of domestic law)186 and Brennan J (in the context of international law)187 appeared to accept that the offence would not breach the principle of non-retroactivity if it was defined in accordance with international law at the time. Neither considered the formulation adopted by Toohey and Dawson JJ. In the course of discussion, a number of comments were made about crimes against humanity under customary international law. Toohey J considered that no clear definition of the crime appeared until Article 6(c) of the London Charter,188 with two exceptions. First, citing the Justice Case, that crimes against humanity must involve conduct directed at a ‘civilian ­population’,

182 (Australia) (1991) 172 clr 501. 183 (Australia) Polyukhovich, above n 1, 531–539 (Mason CJ); 642–643 (Dawson J); 719 (McHugh J). 184 (Australia) Polyukhovich, above n 1, 690–691. 185 (Australia) Polyukhovich, above n 1, 642–643 (Dawson J). 186 (Australia) Polyukhovich, above n 1, 707–708. 187 (Australia) Polyukhovich, above n 1, 567, 572–574, 576. 188 (Australia) Polyukhovich, above n 1, 676.

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meaning ‘[i]solated acts … unconnected with a larger design to persecute or exterminate a population’ did not come within the definition.189 Secondly, that the crimes must be committed ‘in execution of or in connection with any crime within the jurisdiction of the Tribunal’.190 His Honour noted that, while Control Council Law No 10 had dropped this second limitation, the tribunals there were exercising a municipal jurisdiction rather than a purely international one.191 His Honour ultimately considered that the view of the Nuremberg Charter should be preferred such that a crime against humanity under international law was required either to be itself a war crime or done in connection with a war crime.192 Notwithstanding Section 17 of the Act, his Honour concluded that the offence created under the Act under consideration was intended to operate in line with this formulation under international law at the time.193 The remaining judges who considered the issue considered that the Act under consideration was (at least potentially) broader than customary international law, although in a way that largely appeared to accept the requirement of the war nexus. Brennan J (in dissent) considered that, prior to 1945, it was not ‘clear’ whether crimes against humanity constituted an offence under customary international law outside where, as defined under the London Charter, it came with a war nexus.194 The Act was incompatible with the position under customary international law as it did not require such a link but required the defendant to raise as a ‘defence’ that the actions were not in line with customary international law (cf the equivalent Canadian statute considered below). Brennan J considered that the view in the Justice Case that atrocities not constituting war crimes ‘has not been accepted as an authoritative statement of customary international law’ and agreed with Toohey J that its difference to the London Charter reflects the different jurisdiction being exercised.195 Deane J considered it unnecessary to decide whether a ‘crime against humanity’ was criminalised under international law,196 but his Honour appeared 189 (Australia) Polyukhovich, above n 1, 669. 190 (Australia) Polyukhovich, above n 1, 669–670. 191 (Australia) Polyukhovich, above n 1, 671–672. 192 (Australia) Polyukhovich, above n 1, 676. 193 (Australia) Polyukhovich, above n 1, 680, 682. See also at 680–681 (noting that it would be insufficient that there be a mere temporal or spatial connection to the war but it must have a ‘strong, substantial connexion’). 194 (Australia) Polyukhovich, above n 1, 584, 586–589, 591. 195 (Australia) Polyukhovich, above n 1, 586–587. 196 (Australia) Polyukhovich, above n 1, 596.

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to consider that a war nexus was required to render it criminal. His Honour stated that ‘There is little real difficulty about its [crimes against humanity’s] meaning’ and considered crimes against humanity to be ‘a convenient general phrase for referring to heinous conduct in the course of a persecution of civilian groups of a kind which is now outlawed by international law but which may not involve a war crime in the strict sense by reason of lack of connexion with actual hostilities’.197 That is, that a war nexus was required to make in an offence stricto sensu. His Honour considered that the offence in question was defined in a particular way that did not require as an element of the offence that the crime be established in accordance with international law, particularly given that s 17(2) allowed for that theoretical possibility that a person may be convicted without it being in accordance with international law.198 Both Gaudron J (in dissent)199 and McHugh J (in the majority) appeared to agree with this conclusion.200 In the result, whilst the legislation was upheld, due to the death or infirmity of the contemplated defendants, no actual prosecutions under the statute have ever been completed. While it is not entirely clear whether or not they also considered a war nexus to be required, their Honours decision, like Deane J’s, appeared to be more concerned with the fact that no necessary requirement was present that the offence was required to be in accordance with international law.201 4.3 Canada The Criminal Code in 1987 granted extraterritorial jurisdiction over crimes against humanity, if also a crime under domestic law, defined as follows:202 … murder, extermination, enslavement, deportation, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group of persons, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission, and that, at that time and in that place, constitutes a contravention of customary international law or conventional international 197 (Australia) Polyukhovich, above n 1, 596. 198 (Australia) Polyukhovich, above n 1, 628–629. 199 (Australia) Polyukhovich, above n 1, 707–708. 200 (Australia) Polyukhovich, above n 1, 711–712. 201 (Australia) Polyukhovich, above n 1, 627–629 (Deane J); 700 (Gaudron J); 707 (McHugh J). 202 Criminal Code, rsc 1985, c. C-46, s 7(3.76).

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law or is criminal according to the general principles of law recognised by the community of nations. The Supreme Court in Regina v Finta considered this definition.203 Finta was charged with unlawful confinement, robbery, kidnapping and manslaughter in respect of his involvement in deporting Jews to concentration camps in Auschwitz and Stranshof. At trial, Professor Bassiouni led a team of experts who gave evidence as to the criminal law of 39 nations, as a selection of the 74 nations existing at the time. This was relied upon by the prosecution to demonstrate that the acts were ‘criminal according to the general principles of law recognised by the community of nations’.204 According to Cory J (for the majority) crimes against humanity are ‘inhumane acts’ ‘based on discrimination against or the persecution of an identifiable group of people’205 pursuant to state policy.206 There must be an added element of ‘inhumanity’, ‘cruelty and barbarism’ which requires a more severe punishment than an ordinary robbery or manslaughter.207 The required mental element, the majority said, ‘is that the accused was aware of or wilfully blind to the facts or circumstances which would bring his or her acts within the definition of a crime against humanity’.208 Whilst this includes knowledge of the ‘inhumanity’, ‘cruelty and barbarism’ that was involved, the accused need not believe his or her actions were inhumane.209 In dissent, La Forest J (joined by L’Heureux-Dubé and McLachlin JJ) agreed that state sponsored or sanctioned persecution against a particular group or population is a prerequisite of crimes against humanity, but said this related to the conditions needed to ground universal jurisdiction and it was misleading to suggest a higher degree of individual culpability is needed.210 The ­prosecution

203 (Canada) [1994] 1 scr 701. For discussion of this case see: Judith Bello and Irwin Cotler, ‘Regina v Finta’ (1996) 90(3) American Journal of International Law 460; and Lippman, above n 3, 245–249. 204 Bassiouni, above n 10, 300 n 62. 205 (Canada) Regina v Finta [1994] 1 scr 701, 813. 206 (Canada) Regina v Finta, above n 205, 822–823. 207 (Canada) Regina v Finta, above n 205, 818, 820. 208 (Canada) Regina v Finta, above n 205, 820. This would include knowledge of the policy of persecution: 822–823. 209 (Canada) Regina v Finta, above n 205, 822–823. 210 (Canada) Regina v Finta, above n 205, 754–755.

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only had to establish the requisite mens rea for the ordinary crimes with which the defendant was charged.211 The decision was heavily criticised by academics and the government for adding elements to the crime beyond international law requirements, particularly so far as the defendant’s knowledge is concerned.212 This was given as the reason for the defendant’s acquittal, despite strong evidence, and the ­government’s decision to abandon further prosecutions.213 In respect of the issue of retroactivity, both the majority and the minority considered that the Criminal Code did not violate any principle of nonretroactivity albeit for differing reasons. The majority considered that there was no violation because the London Charter and the Nuremberg trial had created ‘a new law’ which simply extended individual criminal responsibility over acts that were already illegal (although not criminal) under international law and were morally objectionable in circumstances where such persons who committed them were aware of their immoral character.214 By contrast, the minority considered the offences not to breach the principle of non-retroactivity as the underlying crimes were ‘of the sort that no modern civilized nation was able to sanction’ and have been ‘so widely banned in society that they can truly be said to fall to the level of acts that are mala in se’.215 4.4 France In 1964, France passed a law which stated that crimes against humanity, as defined in the London Charter, are imprescriptible by their nature.216 This was c­ onsidered in three cases: Touvier, Barbie and Boudarel. The Court of Cassation in its first ruling on jurisdiction in Touvier in 1975 followed the approach of ­Herzog217 and held ‘crimes against humanity … are ordinary crimes (crimes de droit commun) committed under certain circumstances and for

211 (Canada) Regina v Finta, above n 205, 756 and 763–765. 212 See Bello and Cotler, above n 203; and Cryer, above n 11, 121. 213 Bello and Cotler, above n 203; and Cryer, above n 11, 121. 214 (Canada) Regina v Finta, above n 205, 872–874. 215 (Canada) Regina v Finta, above n 205, 783–784. 216 Law No. 6401326, Journal Officiel de la République Francaise, 29 December 1964: see Leila Sadat-Wexler, ‘The Interpretation of the Nuremberg Principles by the French Court of Correction: From Touvier to Barbie and Back Again’ (1994) 32 Columbia Journal of T ­ ransnational Law 289, 320. 217 See Jacques-Bernard Herzog, ‘Contribution a l’étude de la définition du crime contre l’humanité’ (1947) 18 Revue Internationale De Droit Pénal 155.

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certain ­motives specified in the text that defines them’, without further elaboration.218 While this initial ruling appeared to suggest an intention to remain close to the words of Article 6(c), the court elaborated on this in its later decision in Barbie. Barbie, a German member of the Gestapo in Lyon, was prosecuted in 1982 for crimes against humanity (murder, torture and deportations).219 The Court of Cassation ruled the law was not retroactive even if the period of prescription had already expired before introduction of the 1964 law.220 The Court also ruled that:221 The following acts constitute crimes against humanity … inhumane acts and persecution, committed in a systematic manner in the name of a State practising a policy of ideological supremacy, not only against persons by reason of their membership of a racial or religious community, but also against the opponents of that policy whatever the form of their opposition’. While later cases followed this formulation, they nonetheless retained the r­equirement in Article 6(c) that the Accused be acting in the interests of the Axis powers. In Touvier, where the defendant was a Frenchman working for the Vichy Government, the Court of Cassation in 1992 agreed with the lower court’s ruling that the Vichy government could not ‘be categorised as a State practising a policy of ideological supremacy’.222 Based on the London Charter, it said the defendant must be acting ‘in the interests of the European Axis countries’.223 It ruled, however, that the evidence left open the conclusion that

218 Judgment of 6 February 1975, Cass. Crim., 1975 D.S. Jur., 388. See also Sadat-Wexler, above n 216, 326. 219 (France) Prosecutor v Klaus Barbie, Cour de cassation (chambre criminelle), 20 decembre 1985, Bull. No. 407 translated in Federation Nationale des Désportés et Internés Résistants et Patriotes and Others v Barbie (1988) 78 ilr 124 (‘Barbie’); Catherine Grynfogel, ‘Le concept de crime contre l’humanité: Hier, aujourd’hui et demain (1994) 74 Revue de Droit Penal et de Criminologie 13; and the case note: Bernard Edelman (1983) Journal du droit international 779, 790–795. 220 See (France) Barbie, above n 219, 132. 221 (France) Barbie, above n 219, 137. This would therefore cover ‘combatants’, such as ­members of the Resistance: 140. 222 (France) Crim. 27 novembre 1992, Bull. No.394, Cour de cassation (chamber criminelle), M. Touvier translated and reprinted in 100 ilr 338 (‘Touvier’). 223 (France) Touvier, above n 222, 363.

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Touvier had acted at the instigation of the Gestapo.224 Touvier was then convicted on the basis that he acted in furtherance of Nazi policy.225 Similarly, in the Boudarel case, the Court of Cassation in 1993 confirmed that crimes against humanity are limited to World War Two crimes committed by or on behalf of the Axis powers and could not apply to the alleged atrocities of a French serviceman in Vietnam in 1952–4.226 Sadat-Wexler227 and Cryer criticise the French jurisprudence for adding vague notions such as ‘policy of ideological supremacy’ which are ‘entirely ­extraneous to any international definition’.228 This of course begs the question as to what is the ‘international definition’. The requirement that a defendant’s conduct be in furtherance of the interests of a state or connected with state policy is clearly enough part of the Nuremberg Precedent, though the limitation that the ‘state’ be one of the Axis powers, so that France or other countries could never be a party to a crime against humanity is unsettling. In 1992, in response to the way in which the courts had appeared to limit the definition, an offence of crimes against humanity was specifically incorporated into the penal law with effect from 1994, as follows: … deportation, enslavement, or the massive and systematic practice of summary executions, enforced disappearances, torture or inhumane acts inspired by political, philosophical, racial or religious grounds and organised pursuant to a concerted plan against a group of the civilian population Whilst not requiring a ‘policy of ideological supremacy’ as such, its emphasis upon ‘massive and systematic’ action inspired by political, philosophical, racial or religious grounds and as part of a common plan against a civilian population may amount to much the same test.229 The definition has been described as idiosyncratic.230 In fact, it can be seen as reflecting a state’s genuine attempt to codify the offence’s definition under customary law at the time. The fact that the eventual definition adopted in 1998 at Rome was so different reflects the 224 (France) Touvier, above n 222, 363. 225 Sadat-Wexler, above n 216, 363. 226 Sobansky Wladyslav, 1 April 1993, (1994) Revue Générale de Droit International Public 471–474. 227 Sadat-Wexler, above n 216, 273, 353 and 366. 228 Cryer, above n 11, 122. 229 French Criminal Code, Art 212-1, [1], see also Chapter 6, Section 3.6. 230 Sadat-Wexler, above n 216, 273, 353 and 366; Cryer, above n 11, 122.

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fluidity of the crime’s definition under international law in the period 1993 to 1998. 4.5 Israel By article 1(a)(2) of the Nazi and Nazi Collaborators (Punishment) Law 1950, crimes against humanity are punishable in Israel if committed ‘in enemy territory’ during ‘the Nazi regime’.231 Crimes against humanity are defined as:232 Murder, extermination, enslavement, starvation or deportation and ­other inhumane acts committed against any civilian population, and persecution on national, racial, religious or political grounds. Whilst there are some other cases of interest,233 undoubtedly, the most influential Israeli case is that of Eichmann.234 The Supreme Court said crimes 231 For comments on the Act and prosecutions under it see: Orna Ben-Naftali and Yogev ­Tuval, ‘Punishing International Crimes Committed by The Persecuted’ (2006) 4 Journal of International Criminal Justice 128; and Jonathan Wenig, ‘Enforcing the Lessons of History: Israel Judges the Holocaust’ in Timothy McCormack and Gerry Simpson (eds), The Law of War Crimes National and International Approaches (Kluwer Law International: The Hague, 1997) 103, 105–109. 232 The relevant provisions are reproduced at 36 ilr 20, 30–31. 233 (Israel) Attorney-General of the State of Israel v Yehezkel Ben Alish Enigster, Tel Aviv District Court (4 January 1952), 18 ilr 540 (1951) (‘Enigster’) involved the persecution of Jewish concentration inmates by another Jewish inmate. The Court said inhumane acts must be ‘performed against a civilian population on a broad scale and systematically, as distinct from isolated acts so that it arouses the conscience of mankind against it’: 541. The Court said no discriminatory intent is required for crimes other than persecution and a prisoner in a concentration camp could commit a crime against humanity against another prisoner because ‘the perpetrator of a crime against humanity does not have to be a man who identified himself with the persecuting regime or its evil intention’: 542. In Pal v The Attorney General (1952) 18 ilr 542, the Israeli Supreme Court said that an individual who harms another may be liable for a crime against humanity if the perpetrator possessed the intent to harm a group and his or her act was in furtherance of this intent. In Honigman, the Israeli Supreme Court said that, as the death penalty was mandatory under the Act for crimes against humanity, the acts must not only be of the most severe kind, but also must be part of systematic, planned and organised actions of wider scope: see Ben-Naftali and Tuval, above n 231, 155. 234 (Israel) Attorney-General v Adolph Eichmann, District Court of Jerusalem, Criminal Case No. 40/61 (11 December 2011); see also Attorney-General v Adolph Eichmann, Supreme Court of Israel, Criminal Appeal 336/61 (29 May 1962) (‘Eichmann’). For a comment on the case see James Fawcett, ‘The Eichmann Case’ (1962) 27 British Yearbook of ­International Law 181.

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against humanity ‘have always been forbidden by customary international law’235 and are those that ‘damage vital international interests’ and ‘violate the universal moral values’ implicit in the penal codes of civilized states.236 The Court said, citing humanitarian interventions and concerns of the international community in the nineteenth and twentieth century as referred to in the Justice case,237 that the crimes of the Nazis ‘undermine the foundations of the international community as a whole and impair its very stability’238 and were ‘so embracing and widespread as to shake the international community to its very foundations’.239 Hence, as argued in Chapter 1, the humanitarian interventions of the past were seen as the progenitor of the concept of crimes against humanity in international law today. However, as pointed out in Chapter 2, it was this very origin that led to the concern at the London Conference to limit the ambit of crimes against humanity through the war nexus and the requirement that perpetrators be acting in the interests of Axis powers.240 4.6 The Netherlands In the Netherlands, municipal law was amended to make punishable war crimes and crimes against humanity as defined in the London Charter.241 ­Applying this law, the Courts made a number of findings of note. In Ahlbrecht (No 2),242 the Special Court of Cassation followed the unwcc,243 and said ‘crimes against humanity’ are characterised ‘by their magnitude and savagery, or by their large number or by the fact that a similar pattern was ­applied at different times and places’.244 It held the isolated shooting of a prisoner and the mistreatment of several others were war crimes but were not crimes against humanity.245 235 (Israel) Eichmann, above n 234, 297. 236 (Israel) Eichmann, above n 234, 291. 237 (Israel) Eichmann, above n 234, 296; see also (Nuremberg) The Justice Case, above n 6. 238 (Israel) Eichmann, above n 234, 296. 239 (Israel) Eichmann, above n 234, 304. 240 See Chapter 2, Sections 2.3 and 8. 241 See Richard Baxter, ‘The Municipal and International Law Basis of Jurisdiction over War Crimes’ (1951) 28 British Year Book of International Law 382, 384; and Schwelb, above n 10, 224 for a translation of the law. 242 (Netherlands) Special Court of Cassation, 11 April 1949, reprinted in (1955) 16 ilr 396 (‘Ahlbrecht (No 2)’). 243 See Chapter 2, Section 5.3. 244 (Netherlands) Ahlbrecht (No 2), above n 242, 397–398. 245 (Netherlands) Ahlbrecht (No 2), above n 242, 397–398.

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The Special Court of Cassation in Pilz246 held that a German doctor’s refusal to provide treatment to a German soldier (of Dutch nationality) who had been shot while attempting to escape did not constitute a crime against humanity because the victim ‘no longer belonged to the civilian population of occupied territory, and the acts committed against him could not be considered as forming part of a system of “persecution on political, racial or religious grounds”.’247 The Special Court of Cassation in 1950 in Quispel ruled that persuading Dutch youths in Germany to join the Wehrmacht was not a crime against ­humanity because such crimes were to be limited to acts committed against the will of the victims and by violence.248 Finally, the Supreme Court (Hoge Raad) in 1981 in Public Prosecutor v Menten held crimes against humanity require ‘that the crimes in question form a part of a system based on terror or constitute a link in a consciously pursued policy directed against particular groups of people’.249 4.7 The us While not a prosecution, in Demjanjuk v Petrovsky,250 the Sixth Circuit Court of Appeals considered an extradition request from Israel for a former member of the ss at Treblinka during the war, for murder as a war crime and crimes against humanity. The definition of crimes against humanity was that provided under Israeli law (discussed above) – i.e. being limited to the punishment of Nazis during the war. As the Court held, ‘[t]he Israeli statute under which Demjanjuk was charged deals with “crimes against the Jewish people,” “crimes against humanity” and “war crimes” committed during the Nazi years’ and was ‘intended to punish under this law those involved in carrying out Hitler’s “final solution.”’251 The Court held that murder was a crime in the us and that Israel would have jurisdiction to prosecute the petitioner notwithstanding the fact that the crimes were committed in a third state. The Court held that international law recognized ‘universal jurisdiction’ over certain offences ‘based on the assumption that some crimes are so universally condemned that the perpetrators are 246 (Netherlands) In re Pilz, Judgment, District Court of the Hague (Special Criminal Chamber) (21 December 1949) (‘Pilz’) reprinted in (1950) 17 ilr 391. 247 (Netherlands) Pilz, above n 246, 392. 248 (Netherlands) See Quispel (1955) 16 ilr 395, 395–396. 249 (Netherlands) Public Prosecutor v Menten (Judgment), Supreme Court of the Netherlands (13 January 1981), reprinted in (1987) 75 ilr 331, 362–363. 250 (United States) Demjanjuk v Petrovsky (1985) 776 F.2d 571. 251 (United States) Demjanjuk v Petrovsky, above n 250, [22]–[23].

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the enemies of all people’.252 The Court held that the courts in the occupation zones in post-war Germany were based on the principle of universal jurisdiction and that the ‘criminal law for the punishment of Nazis and Nazi collaborators for crimes universally recognized and condemned by the community of nations’ provided a sufficient basis for extraterritorial jurisdiction.253 4.8 Conclusion The exceptional nature of jurisdiction over crimes against humanity is demonstrated by the limited examples of domestic prosecutions in the period. All such exercises were over crimes committed by Nazis in the Second World War. In the cases of Australia, Canada and Israel, it was introduced into domestic law in order to permit the extraterritorial prosecution of Nazi war criminals who may be found within their territories. In the Netherlands, crimes against humanity was introduced into local law because of a decision of its courts that the jurisdiction to charge the German military for war time acts could not simply be based upon breaches of domestic penal law unless the individuals also violated the laws of war.254 In France, the offence was introduced in order to avoid wartime atrocities being statute barred by domestic law. Only France’s latter law of 1992 (which entered into force in 1994) unequivocally granted its courts jurisdiction over crimes against humanity outside the context of the Second World War. By and large, the war nexus was retained in the limited number of state prosecutions of the period. In the case of France and the Netherlands, the legislations explicitly adopted the London Charter into domestic law – along with its war nexus. Further, while not explicitly requiring a war nexus, the legislation in Australia and Israel limited prosecutions of ‘crimes against humanity’ to Nazi wartime atrocities. The only real exception was Canada, which did not require a war nexus. However, it did require that ‘crimes against humanity’, as defined, be existing crimes under international law or at least be ‘criminal according to the general principles of law recognised by the community of nations’. Accordingly, it is probably best seen as being neutral on the subject. Whether this can encompass crimes against humanity without a war nexus was not explicitly dealt with by the Canadian courts because the only trial for crimes against humanity to date was for conduct committed during the Second World War.

252 (United States) Demjanjuk v Petrovsky, above n 250, [24]–[25]. 253 (United States) Demjanjuk v Petrovsky, above n 250, [26]–[27]. 254 See (Netherlands) Albrecht (No 1) as referred to in Baxter, above n 241, 384.

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Accordingly, to the extent that judicial statements in these decisions appear to point to factors outside the ‘war nexus’ as being the defining aspects of crimes against humanity, such statements should be treated with caution. For instance, the Australian legislation – that required a link with ‘political, racial or religious persecution’ or ‘the intent to destroy in whole or in part a national, ethnic, racial or religious group’ – and the French Court of Cassation in ­Barbie – which appeared to consider crimes against humanity as more concerned with the presence of ‘a State practising a policy of ideological supremacy’ – should be considered in their proper contexts. The only exception appears to be in Canada, where the decision in Finta – that crimes against humanity are ‘inhumane acts’ ‘based on discrimination against or the persecution of an identifiable group of people’ –identifies the position under custom. But even here, much like the decisions under ccl 10, the extent to which these definitions varied significantly precludes drawing any real principles from it. With the exception of Finta,255 all national prosecutions readily accepted that crimes against humanity were existing crimes at the time of the Second World War,256 but the stated elements of the offences varied markedly. The differences in these decisions is now further analysed.257 5

Attempting to Resolve the Incoherence

5.1 Introduction It is hardly surprising that widely different definitions of crimes against humanity were put forward in the period 1945–1993. There are significant principles of international law and practice involved. The moral and legal tensions involved in the concept of crimes against humanity are best analysed by recognising that two distinct issues arise. The first involves the elements of the crime itself, meaning the actus reus and mens rea. The second involves the question of the jurisdiction to try such crimes. Whilst some have argued that the two questions ought to be kept separate,258 this has rarely occurred when the definition 255 (Canada) Regina v Finta, above n 205. 256 (United States) This also was the conclusion of the courts in the United States: see M ­ atter of Extradition of Demjanjuk, 612 F. Supp. 571 (DC), affd 776 F.2d 571 (6th Cir. 1985), cert denied 475 us 1016 (1986), 567–568. 257 In particular, see Sections 5.3 and 5.4. 258 As Meron says, ‘[t]he question of what actions constitute crimes’ ought be ‘distinguished from the question of jurisdiction to try those crimes’: Theodor Meron, ‘International Criminalization of Internal Atrocities’ (1995) 89(3) American Journal of International Law 554, 555.

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of crimes against humanity has been debated. It is generally a­ ccepted that to found jurisdiction, some element is required beyond that found in domestic crimes.259 It is unclear, however, whether this additional element is part of the offence itself or a jurisdictional issue. Crimes against humanity have never had the luxury of being merely a normative prescription, such as was the case with the prohibition against slavery. By the Nuremberg Precedent, crimes against humanity are necessarily associated with foreign intervention. From the moment Grotius asserted a right of foreign states to prosecute for crimes against the law of nations, objection has been made against the concept of crimes against humanity on the ground that it may lead to pretextual and unjustified interference in the affairs of other states260 – hence, the need for high thresholds to prevent this occurring. As one delegate said in the 1951 ilc proceedings, the war nexus was necessary to ensure the draft code was limited to threats to the peace rather than becoming some Utopian international penal code.261 At the risk of over simplifying matters, three broad principles can be seen to be at work: threats to international peace (which can be seen largely through the war nexus), the humanity principle, and the impunity principles (both of which can be seen in the practice of the period that sought to depart from the war nexus). 5.2 Threats to International Peace As discussed in Chapter 2, the war nexus links crimes against humanity to threats to international peace. This contributed to its dwindling use after 1945 as the incidence of international armed conflict declined. This, in turn, led many scholars to conclude that, by 1993, the war nexus had ‘withered away’. There are two schools of thought as to how this occurred. As to the first school of thought, there is the view, popular amongst European scholars, that crimes against humanity was an existing international offence in 1945 and the war nexus in Article 6(c) of the London Charter was an ad hoc jurisdictional requirement not necessary as a matter of lex lata.262 The conclusion reached in Chapter 2, however, was that, on balance, it is more persuasive to regard crimes against humanity (with or without the war nexus) as a novel offence at that time and, more clearly, one over which no rule of 259 See, for example: Bassiouni, above n 10; see also Chapter 6. 260 See Chapter 1, Sections 3 and 4. 261 ‘Summary Records of the 3rd Session, 91st meeting’ [1951] 1 Year Book of the International Law Commission, 71 and 76. 262 See Chapter 2, Section 6.2.

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jurisdiction had been established to permit its extraterritorial enforcement by other states or the international community. The war nexus is best seen as a deliberate – if novel and ad hoc – rule of jurisdiction as well as acting as part of the offence’s ‘international requirement’ which distinguishes the international offence from ordinary domestic crimes. It cannot be divorced from the ­international offence’s ‘true definition’ at the time as it was deliberately included in order to place careful limits on the expansion or application of the international offence itself. Even if this view is not accepted, after 1946, one has to confront the fact that the definition – including its so-called ad hoc jurisdictional point – was endorsed by unanimous resolution of the General Assembly263 and the Sixth Committee of the un.264 If one accepts that Article 6(c) of the London Charter has come to represent at least a rule of the United Nations, if not general international law, this suggests that the war nexus at that time may have displaced any nascent competing principle in international law. Nevertheless, despite its intertwining with the elements of the offence, it fundamentally acts as a permissive rule of jurisdiction enabling either a truly international court or, at least, a supranational court of belligerents to try enemy foreign nationals not only for war crimes but also for conduct described as ‘crimes against humanity’ if linked to war. The jurisdictional nature of the rule has not always been appreciated in attempting to formulate a broader principle applicable outside the context of war. If seen as a rule of jurisdiction, the issue becomes not just one of determining the scope of the offence, but the nature of the institution with power to determine guilt. Properly understood, the definition of crimes against humanity can only be resolved in international law when linked with the jurisdiction of the particular court which it is asserted has jurisdiction under international law to try the perpetrators. This, of course, only occurred when the ad hoc Tribunals of the un and the icc were created. The second school of thought tends to accept the customary law status of the war nexus during the crime’s infancy,265 but holds that it was subsequently 263 See Affirmation of the Principles of International Law Recognized by the Charter Of The Nürnberg Tribunal, above n 4. 264 See Draft Report of the Sixth Committee, above n 140. 265 Bassiouni’s view is that a connection with war was necessary at the time: Bassiouni, above n 10, Chapter 4; similarly McCormack says, rightly in the author’s view, that ‘one incontrovertible legacy’ of Nuremberg ‘is the requisite nexus with armed conflict as an element of any crime against humanity’: Timothy McCormack, ‘Crimes against Humanity’ in Dominic McGoldrick, Peter Rowe and Eric Donnelly (eds), The Permanent International Criminal Court: Legal and Policy Issues (Hart Publishing: Oxford, 2004) 179, 184.

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‘abandoned’. This was the approach of the Appeals Chamber of the icty in Tadić and its much relied upon obiter remarks that ‘Although the nexus requirement in the Nuremberg Charter was carried over to the 1948 [sic] General Assembly resolution affirming the Nuremberg principles, there is no logical or legal basis of the requirement and it has been abandoned in subsequent state practice’.266 Lord Millett of the uk House of Lords in Pinochet No 3267 had the same view, as did Judges Loucaides and Levits in the European Court of Human Rights who held that East Germany’s ‘shoot to kill’ policy at the Berlin border from the 1960’s amounted to a crime against humanity.268 In Kolk and Kislyiy v Estonia,269 the European Court of Human Rights considered a conviction for crimes against humanity imposed by the courts of Estonia in 2003. The defendants were convicted for the act of deporting Estonian civilians in 1949 on the orders of the then occupying Soviet authorities. It held, without greatly exposing its reasoning, that the retroactive application of Estonian law was permissible because such acts, under Article 7(2) of the European Convention on Human Rights, were ‘criminal according to the general principles of law recognised by civilised nations’. It is unclear whether this means that, in 1949, ‘crimes against humanity’ did not require a nexus with war. Alternatively, as discussed in Chapter 2, it could mean only that a sovereign state may apply its own criminal law retrospectively to conduct within its territory without infringing the nullum crimen principle provided the conduct is ‘criminal according to the general principles of law recognised by civilised 266 (icty) Tadić – Jurisdiction, above n 67, [140]. 267 (United Kingdom) R v Bow Street Stipendiary Magistrate and Others, ex parte Pinochet Ugarte (No 3) [2000] 1 AC 146 (‘Pinochet No 3’) 272: ‘But this [the war nexus] appears to have been a jurisdictional restriction based on the language of the Charter. There is no reason to suppose that it was considered to be a substantive requirement of international law. The need to establish such a connection was natural in the immediate aftermath of the Second World War. As memory of the war receded, it was abandoned’ (see also Lord Brown-Wilkinson at 197; cf. Lord Goff at 211). On the other hand, Lord Slynn said ‘Indeed, until Prosecutor v Tadić after years of discussion and perhaps even later there was a feeling that crimes against humanity were committed only in connection with armed conflict even if that did not have to be international armed conflict’: R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte [2000] 1 AC 61 (‘Pinochet No 1’), 81. 268 (ECtHR) Streletz, Kessler and Krenz v Germany (Judgment), European Court of Human Rights, App Nos 34044/96, 35532/97 and 44801/98) (22 March 2001) (‘Streletz et al – Appeal’). 269 (ECtHR) Kolk and Kislyiy v Estonia (Judgment), European Court of Human Rights, App Nos 23052/04 and 24018/04 (17 January 2006) (‘Kolk and Kislyiy – Appeal’). See Chapter 2, Section 6 for a discussion of this case.

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nations’. This exception would cover the underlying offences in Article 6(c) – viz, murder, extermination, deportation, enslavement and other inhuman acts. Of those who argue against the war nexus as a legal element, many tend to point to the artificiality or irrationality of the war nexus. Oppenheim’s 1992 edition said the war nexus was ‘somewhat artificial’ and the autonomy of crimes against humanity is ‘now generally regarded’.270 Others relied upon the sources discussed in this chapter to sustain this argument. The Iraqi High Tribunal held that crimes against humanity without a war nexus had entered customary law by 11 November 1970 with the coming into force of The Convention on the Non-Applicability of Statutory Limitations.271 This school of thought includes Cassese,272 Ratner and Abrams,273 and the un appointed Group of Experts for Cambodia.274 For the reasons discussed in Chapter 2, the nexus’s ‘artificiality’ or ‘irrationality’ is not persuasive when it is properly understood as being a jurisdictional limitation on the crime. Similarly, the sources relied upon for the view that the war nexus had ‘withered away’ by at least 1991, discussed in this chapter, are generally found to be wanting. It is easy to regard the war nexus as obsolete ­after Nuremberg if one is focussing on the elements of the crime. In Chapter 2 it was argued that at Nuremberg the actual elements of the offence(s) were largely synonymous with either war crimes or analogous domestic crimes, with the possible exception of the offence of persecution. If one focuses on the war nexus as a rule of jurisdiction designed to prevent an excessive interference in a sovereign state’s criminal law, it is less clear that states regarded such a rule as being ‘obsolete’. The position of the United States today, with its opposition to the icc (shared by other countries), suggests it still refuses to recognise any rule of jurisdiction which permits either an extraterritorial or international prosecution of us nationals without its consent, even with a war nexus.

270 Robert Jennings and Arthur Watts (eds), Oppenheim’s International Law (9th rev. ed., Longman: London, 1996) 966. 271 See text accompanying n 89. The Tribunal also relied upon the Principles of International Co-operation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes against Humanity, un ga Resolution 3074 (xxviii), un gaor, 28th sess, Supp 30A, 78, un Doc. A/9030/Add 1 (18 December 1973), but these principles do not deal with the definition of crimes against humanity. 272 Cassese refers to most of the sources discussed in this chapter to conclude ‘[t]his evolution gradually led to the abandonment of the nexus between crimes against humanity and war’: Cassese, above 44, 73. 273 Ratner and Abrams, above n 87. 274 See Experts’ Report (Cambodia), above n 87.

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Perhaps more fundamentally, the practice discussed in this chapter demonstrates that, even if states agree that crimes against humanity should not be limited by the war nexus, there was a clear lack of consensus as to what is the alternative threshold or jurisdictional requirement to replace the war nexus. Whilst a consensus was reached on the crime of genocide in times of peace (without fully resolving the difficult issue of jurisdiction or enforcement), no consensus emerged as to the meaning of crimes against humanity in times of peace. In the period 1945–1992, outside the prosecution of Nazi war criminals, the proposition that purely internal atrocities can give rise to either an international criminal jurisdiction or a ‘threat to international peace’ (for example, as understood under Chapter vii of the un Charter) had little or no support in the state practice of the time. This made it difficult to apply the concept of crimes against humanity outside situations of armed conflict. In the end, the war nexus may have been like a piece of bad legislation; a consensus may have existed that it needed reform, but until a new consensus existed as to what was to replace it, it simply remained the law. In the end, the most convincing conclusion, as stated by William Schabas, is that the Tadić ruling that crimes against humanity can take place during peacetime without a nexus to war or aggression ‘moved the law forward dramatically’.275 5.3 The Humanity Principle When judicial decisions and the discussion of the ilc attempted to move away from the ‘war nexus’ as the defining link to war crimes, the notion of ‘crimes which shock the conscience of humanity’ was frequently seen as a threshold ­requirement of crimes against humanity. This may be described as the  ­‘humanity principle’. But what does ‘shock the conscience of humanity’ mean? The discussion during the period demonstrates a range of different answers. First, there is the notion of conduct which is ‘criminal according to the general principles of law recognised by the community of nations’. This was influential at the time of Nuremberg.276 It was also referred to in some cases under ccl 10,277 in the Canadian legislation and the remarks of La Forest J in Finta.278

275 See William Schabas, The un International Criminal Tribunals (Cambridge University Press: Cambridge, 2006) 23. 276 See Chapter 2. 277 See Sections 2.2.3 and 2.2.4 above. 278 See Section 4.3 above.

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Secondly, it has been said the crime must also constitute a sufficiently serious attack on the victim’s ‘humanity’,279 which may limit the offence to acts of personal violence. In the Nuremberg Judgment, this requirement of ‘seriousness’ was satisfied if the conduct was analogous to war crimes and could encompass some forms of personal property offences, which was followed in some subsequent cases.280 Thirdly, given the breadth of both conceptions of crimes against humanity, some cases, such as Justice and Eichmann, ground the concept of crimes against humanity in the former doctrine of humanitarian intervention. This suggests crimes against humanity involve notions of scale,281 persecution of a group or population282 and/or a discriminatory intent.283 By the 1991 and 1996 ilc Draft Codes, the defining aspect of the crime is that they are ‘committed in a systematic manner or on a large scale’. What was unresolved was whether all or some of these elements were necessary and whether they were elements of the offence or a rule of jurisdiction. 5.4 The Impunity Principle or the Need for a ‘State Policy’ The other major theory exposed in the judicial decisions and discussion of the period was the proposition that the international offence arises because the perpetrator enjoys protection or impunity from the territorial state. In the broad, this may be referred to as the requirement for some connection with 279 (Nuremberg) See The Flick Case, above n 7 (‘affect the life and liberty of the oppressed people’); Harlan Veit, above n 52 (‘harmfully interferes with the life and existence of a person or his relationship with his social sphere, or interferes with his assets and values, thereby offending against his human dignity as well as humanity as such’); unwcc, ­History of The United Nations War Commission (hmso: London, 1948), 179, which referred to a requirement of ‘savagery’; Meyrowitz, above n 42, 60; and (Canada) Regina v Finta, above n 205, 818 and 820, where the Court said there must be an added element of ‘inhumanity’, ‘cruelty and barbarism’ which requires a more severe punishment than an ­ordinary robbery or manslaughter. 280 See Chapter 2, Section 2.2.1. 281 (Nuremberg) See The Justice Case, above n 6, discussed in Section 1.2 (a); History of The United Nations War Commission, above n 279, 179; (Australia) Polyukhovich, above n 1; (France) the French practice discussed at Section 4.3 above; and (Netherlands) the practice of the Netherlands discussed at Section 4.6 above. 282 (Nuremberg) See The Justice Case, above n 6; (Canada) Regina v Finta, above n 205; (France) the practice of France; and (Netherlands) the Netherlands discussed at Sections 4.3 and 4.6 above. 283 Fourth ilc Report, above n 144, the Australian legislation and case law discussed at Section 4.2 above; (Canada) Regina v Finta, above n 205, discussed at Section 4.3 above; and (France) French Criminal Code, Art 212-1, [1].

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a ‘state policy’. State policy is used here in a loose sense to cover, for example, cases of toleration, acquiescence or even state indifference. As a result, it is preferable to refer to this requirement or principle as the ‘impunity principle’ rather than a requirement for a ‘state policy’ because, as explained in The Einsatzgruppen Case,284 it is the immunity that the defendant enjoys from the state which underlines the rationale for the principle rather than some strict requirement for, as an example, state action pursuant to some preexisting explicit plan such as Hitler’s Final Solution. Because the defendant enjoys at least de facto immunity, it is natural to think of creating an international or extraterritorial jurisdiction to take the place of the ‘bandit’ territorial or national state. At Nuremberg, this was reflected in the requirement of Article 6 of the London Charter that the defendants be persons who were acting in the interests of the Axis powers. After Nuremberg, as summarized above, the need for a state policy was referred to in the case law in Canada, France, and the Netherlands and under ccl 10. Further nearly all of the major works of scholars writing at the time, such as Mendelholm,285 Levasseur,286 Francillon,287 Pella,288 Herzog,289 Meyerowitz,290 and Aroneanu291 regarded state policy or toleration as a requirement. State policy can cover a range of circumstances, such as actual state participation pursuant to a clearly formulated state policy,292 non-state actors acting with the approval of the state,293 non-state actors acting without explicit 284 Above n 35, 498, discussed at Section 2.2.3 above. 285 Benjamin Mendelsohn, ‘Les infractions commises sous le régime Nazi sont-elles des ‘crimes’ au sans du droit commun?’ (1966) 43 Revue de Droit International De Sciences Diplomatiques et Politiques 333, 337–338 where the author argues that the distinguishing feature is that the crimes are sanctioned by the State. 286 Georges Levasseur, ‘Les crimes contre l’humanité et le problème de leur prescription’ (1966) 93 Journal de Droit Internationale 259, 271, where the author says crimes against humanity require a particular governmental policy. 287 Jacques Francillon, ‘Crimes de guerre, crimes contre l’humanité’ Juris-Classeurs, Droit International (1993) Fascicule 410, [63]–[64], where the author suggests state action is a required element of crimes against humanity. 288 Vespasian V Pella, Mémorandum présenté par le Secrétariat [1950] 2 Year Book of the International Law Commission 278, 348. 289 Jacques-Bernard Herzog, ‘Contribution a l’étude de la définition du crime contre l’humanité’ (1947) 18 Revue Internationale De Droit Pénal 155, 168. 290 Meyrowitz, above n 42, 255–257. 291 Eugène Aroneanu, Le Crime Contre L’Humanité (Dalloz: Paris, 1961) 56–57. 292 See (Nuremberg) The Justice Case, above n 6, discussed at Section 2.2.2. 293 See (Nuremberg) The Flick Case, above n 6, 1201, discussed at Section 2.2.1; The Farben Case, above n 20.

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­approval but with some loose form of state toleration or acquiescence294 and, finally, non-state actors who enjoy impunity simply because of state indifference or impotency,295 which may arise after the crime in question.296 In the 1954 ilc Draft Code, state instigation or toleration was seen as the single feature which marked out crimes against humanity from domestic crimes. Then, somewhat curiously, it disappeared totally from the 1991 ilc Draft Code to be then covered by the cryptic reference to the crimes being directed by ‘a State or any organization or group’ in the 1996 ilc Draft Code.297 Otherwise, all of the formulations of crimes against humanity in the period required, as a minimum, some form of state toleration, indifference, impotency or complicity. 5.5 Conclusion In the end, to come to an understanding of the concept of crimes against humanity in international law one has to have regard to each of the three principles discussed above and to consider them in the context of a jurisdictional component of crimes against humanity. It was always intended that the ilc Draft Code should operate with, and be implemented by, some international criminal jurisdiction and court. The General Assembly, in Resolution 260 B (iii) of 9 December 1948 invited the ilc ‘to study the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide or other crimes over which jurisdiction will be conferred upon that organ by international conventions’. It also requested that the ilc, in carrying out that task, ‘to pay attention to the possibility of establishing a Criminal Chamber of the International Court of Justice’. The Assembly, however, in Resolution 898 (ix) of 14 December 1954, decided to postpone consideration of the question of an international criminal jurisdiction until it had taken up the report of the special committee on the question of defining aggression where the issue languished for decades. It was only from 1993 that the international community began to think seriously about these issues.298 294 See the cases in Section 2.3 and the 1954 Draft Code of Offences discussed at Section 3.3.2 above. 295 (Nuremberg) The Einsatzgruppen Case, above n 35, 498, discussed at Section 2.2.3; and cases at Section 2.3. 296 See Weller, Decision of the Supreme Court for the British Zone (21 December 1948) in Entscheidungen, above n 44, vol i, 203–208, discussed at Section 2.3.2 above. 297 See Section 3.3.2 above. 298 After the establishment of the icty by the Security Council, the General Assembly, in Resolution 48/31 of 9 December 1993, took note of the report of the ilc on the work of its

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Conclusion: The Other Legacy of Nuremberg

The title of this chapter, which is a popular one in the literature, suggests some orderly linear progression in the development of international criminal law and the concept of crimes against humanity in the period from 1945 to 1993. As Koskenniemi points out, nothing could be further from the truth.299 In reality, prosecutions for crimes against humanity were limited to an ever-dwindling supply of former Nazis. Core aspects of its definition were clouded by doubts, and the whole notion of an international criminal law in 1992 appeared to be falling into desuetude.300 This is not to suggest that after the Second World War the actual incidences of ‘crimes against humanity’, in its non-technical sense, were dwindling – far from it. In Africa, there was no shortages of dictators accused of committing atrocities. For example, Idi Amin was President of Uganda from 1971 to 1979. In that period, there were reports of widespread human rights abuses, involving political and ethnic violence, particularly of Asians and the Acholi and Lango ethnic groups. An estimate from the International Commission of Jurists in 1977 put the number killed at not less than 80,000 and more likely around 300,000. A study with the assistance of Amnesty International suggested the figure was closer to 500,000. Amin fled the country on 11 April 1979 after a war with Tanzania. Saudi Arabia granted him asylum and a government stipend, on the condition that he indefinitely remain incommunicado. Whilst Uganda stated Amin would be prosecuted if he returned, no real efforts were made to bring him to trial and he died in Jeddah in 2003.

forty-fifth session devoted to the question of a draft statute for an international criminal court; invited states to submit to the Secretary-General written comments with a view to elaborating a draft statute, if possible at its forty-sixth session, in 1994. This led to the ilc’s Draft Statute of 1994 where careful note was taken of the various provisions of the icty Statute along with a recommendation to the General Assembly that it convene an international conference to conclude a convention on the establishment of an international criminal court (see [1994] 2 Yearbook of the International Law Commission, [90]) which eventually occurred in 1998 in Rome, discussed in Chapter 4. 299 Marti Koskenniemi, ‘Between Impunity and Show Trials’ (2002) 6 Max Planck Yearbook of United National Law 1, 34–35. 300 Material relating to Nuremberg was being excised from standard textbooks: Cryer, above n 11. Brownlie in 1990 said ‘the likelihood of setting up an international court is very remote’: Ian Brownlie, Principles of Public International Law (4th rev. ed, Clarendon Press: Oxford, 1990) 563–564.

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The tale of Mengistu Haile Mariam, who ruled Ethiopia from 1974 until 1991, is similar. He has been held responsible for the deaths or disappearances of tens of thousands of Ethiopians during the 1970s – a period known as the Red Terror – when Mengistu attempted to eliminate his political opponents. In 1991, he received asylum in Zimbabwe, with help from American officials who hoped his departure might stop the fighting. He has, according to one report, ‘lived a lavish but reclusive life in exile in Zimbabwe ever since’.301 This is ­despite being found guilty of genocide/crimes against humanity by an Ethiopian court on 12 December 2006.302 Zimbabwe, under Robert Mugabe continues to decline to extradite him. Things were not much better in South America. During military rule in ­Argentina from 1976–1983, the so-called ‘dirty war’ is reported to have led to the disappearance or murder of some 30,000 perceived opponents of the government along with the torture and intimidation of many more. Recent trials in Spain have involved military officers accused of involvement in ‘death flights’ during which political opponents were taken into helicopters before being thrown alive into the River Plate, which flows through Buenos Aires.303 When the military rule came to an end, the outgoing authorities passed laws of self-amnesty to prevent prosecutions for the past. A similar pattern occurred in Chile. Following the overthrow of Allende’s socialist government in 1973 by General Pinochet, an estimated 3000 political opponents disappeared at the hands of death squads. The end of Pinochet’s rule was marked by the passing of general amnesty laws for the military. If one turns to events in Asia, several examples of government-condoned atrocities can also be found in the period. India complained about Pakistani atrocities committed by the Army in East Pakistan (modern day Bangladesh) in 1971. According to the International Commission of Jurists over a nine-month period at least one million people were killed and ten million fled to India.304 India’s Prime Minister appealed to the United Nations to intervene because ‘the general and systematic nature of [the] inhuman treatment inflicted on the

301 Profile, Mengistu Haile Mariam, bbc News online (12 December 2006), accessed online at on 24 May 2007. 302 bbc News report (11 January 2007), accessed online at on 24 May 2007. It should be noted that the definition of genocide includes the persecution of political opponents, thus more closely resembling crimes against humanity under international law than genocide. 303 See Chapter 6. 304 International Commission of Jurists, The Events in East Pakistan 1971 (1972) 24–26, 97.

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Bangladesh population was evidence of a crime against humanity’.305 Such a call fell on deaf ears. Following Pakistan’s pre-emptive strike against Indian airfields, India intervened citing as one motive ‘to rescue the people of East Bengal from what they have been suffering.’306 After India intervened on the side of Bangladesh, it threatened to prosecute 195 captured Pakistani soldiers for genocide and crimes against humanity over their participation in the killing of approximately one million people.307 This threat was abandoned in 1973 in return for Pakistani recognition of Bangladesh. This suited the international community at the time, which had declined to endorse India’s intervention in the name of humanity.308 A similar history was repeated in the case of Cambodia. Between 1975 and 1979 the Khmer Rouge in Cambodia led by Pol Pot committed atrocities against the local population on a vast scale and no international response took place.309 Following border skirmishes, Vietnam intervened on behalf of the opposition and toppled the regime in 1979. This was received with open hostility by many members of the Security Council. The General Assembly, out of alleged respect for the un Charter, continued to accept the credentials of the Pol Pot delegate, whose regime was fighting a guerrilla campaign in the mountains.310 By 1996, not only had the new regime in Cambodia declined to take any positive steps towards prosecution of the former members of the Khmer Rouge, it had granted a pardon to Ieng Sary, the former Deputy Prime Minister.311 In the result, far from the Nuremberg Precedent ushering in a new province of international law and order, impunity was the overwhelmingly likely result for former dictators accused of committing human rights abuses after the ­Second World War. This should not be seen as an accident. It represents the 305 Quoted in Simon Chesterman, Just War or Just Peace?: Humanitarian Intervention and I­ nternational Law (Oxford University Press: Oxford, 2001) 73. 306 un Doc. S/PV.1606 (4 December 1971), [186]. 307 See Carla Edelenbos, ‘Human Rights Violations: A Duty to Prosecute?’ (1994) 7(2) Leiden Journal of International Law 5, 13. 308 See Chesterman, above n 305, 71–75. 309 It is estimated that some 2 million people or between one quarter to one third of the population perished: see Craig Etcheson, ‘The Politics of Genocide Justice in Cambodia’ in Cesare Romano, André Nollkaemper and Jann Kleffner (eds), Internationalized Criminal Courts and Tribunals: Sierra Leone, East Timor, Kosovo and Cambodia (Oxford University Press: Oxford, 2004) 181, 181. 310 See Chesterman, above n 305, 79–81. 311 Daphna Shraga, ‘The Second Generation un-Based Tribunals: A Diversity of Mixed Jurisdictions’ in Romano et al., above n 311, 15, 30.

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‘other’ legacy of Nuremberg – the legacy which holds that without a connection to the interest of states in preventing international aggression or a threat to international peace, atrocities committed wholly within a state ought not to bring about international intervention, or an international criminal jurisdiction; at least not by force. Sadly, it took the shock of Europe experiencing its third episode of a ‘crime against humanity’ in the one century to advance matters in any meaningful way. With the former Yugoslavia disintegrating in 1991, the Croats, Muslims and the Serbs were attempting to shore up their territories in Croatia, Bosnia and Herzegovina. At first, the violence was called ‘ethnic cleansing’, but its hallmarks were all too familiar – terror, violence and inhumane acts directed against one or more of the three main ethnic groups leading to their forced expulsion from the area under attack. On 16 May 1991, Mirko Klarin captured the mood of the time when he published an article in the Belgrade newspaper Borba entitled ‘Nuremberg Now!’312 Two years later the Security Council finally answered the call and created the International Criminal Tribunal for the former Yugoslavia. This next episode in the crime’s history – crimes against humanity in The Hague – is the subject of Chapter 4.

312 English Translation in The Path to The Hague, 43–45, quoted in William Schabas, The Law of the Ad hoc Tribunals (Cambridge University Press: Cambridge, 2006) 13.

chapter 4

1993–1998: The Modern Definition of Crimes against Humanity Nuremberg is ‘like a volcano, one could say, that it is inactive but not extinct’1

∵ 1 Introduction In 1993–1998 there was an explosion in the development of international criminal law, including the notion of crimes against humanity. Crimes against humanity in the hesitant state practice after the Second World War was heavily associated with prosecuting Nazi war criminals. Suddenly, the concept was applied to two new situations: the ‘ethnic cleansing’ in Yugoslavia and the ­genocide in Rwanda. This was achieved by the Security Council taking the novel approach of creating two ad hoc Tribunals (the International Criminal Tribunal for the former Yugoslavia (icty) and the International Criminal Tribunal for Rwanda (ictr)) to try persons responsible for grave breaches of humanitarian law in Yugoslavia and Rwanda. The Security Council acted pursuant to its powers, under Chapter vii of the un Charter, to take measures in response to threats to international peace. The cynical may say this was a poor substitute for the Security Council’s failure to authorise the use of force to stop the atrocities continuing. Nevertheless, the experiment of the ad hoc Tribunals laid the foundation for the Statute of the International Criminal Court at the Rome Conference of 1998. On 17 July 1998, following the trial judgment in Tadić, the Statute of the International Criminal Court (icc Statute) was adopted at the Rome C ­ onference. The Statute defines crimes against humanity at Article 7.2 One cannot, of 1 Claude Lombois, Droit Pénal International (Dalloz: Paris, 1979) 162. 2 For some of the major writings on Article 7 and the icc Statute see: Herman von Hebel and Darryl Robinson, ‘Crimes Within the Jurisdiction of the Court’ in Roy Lee (ed), The International Criminal Court: The Making of the Rome Statute – Issues, Negotiations, Results (Kluwer Law International: The Hague, 1999) 79; Phyllis Hwang, ‘Defining Crimes Against Humanity

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course, underestimate the historical significance of Article 7 and its definition of crimes against humanity. It had been 53 years since the crime was defined in an international treaty.3 It was the first ever attempt at a global treaty definition. That said, there is a temptation to regard Article 7 as the most authoritative statement of this difficult crime’s definition in customary law. On this view, all of the complex issues that have bedevilled the notion of crimes against humanity in international law – such as the status of the war nexus or the requirements for a discriminatory intent, state action or policy or a special mens rea – can now be regarded as resolved. Such a view is too simplistic and requires further analysis. In the end, the actual weight to be given to Article 7 of the icc Statute has to be carefully analysed along with other sources such as state practice since the Rome Conference, which is considered in Chapters 5 to 7. These developments, namely, the drafting of the statutes of the icty and ictr, the decisions of the icty in Tadić and the drafting of the Rome Statute, provide the foundations for the modern definition of crimes against humanity. This chapter seeks to analyse these developments, place them into chronological order, and evaluate the way in which they influence the definition of crimes against humanity. Section 2 of this chapter examines the drafting of the icty Statute4 and the ictr Statute.5 Section 3 examines a number of ­preliminary in the Rome Statute of the International Criminal Court’ (1998) 22 Fordham International Law Journal 457; Machteld Boot, Rodney Dixon and Christopher Hall, ‘Commenting on ­Article 7’ in Otto Triffterer (ed) Commentary on the Rome Statute of the International Criminal Court (Nomos Verlagsgesellschaft: Baden-Baden, 1999) 117; Roger S. Clark, ‘Crimes Against Humanity and the Rome Statute of the International Criminal Court’ in Mauro Politi and Giuseppe Nesi (eds), The Rome Statute of the International Criminal Court (Routledge: New York, 2001) 75; Timothy McCormack, ‘Crimes against Humanity’ in Dominic McGoldrick, Peter Rowe and Eric Donnelly (eds), The Permanent International Criminal Court: Legal and Policy Issues (Hart Publishing: Oxford, 2004) 179. 3 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, done in London, England, opened for signature 8 August 1945, Art 6(c), 82 unts 280 (entered into force 8 August 1945) (‘London Agreement’), to which was annexed the Charter which established the Nuremberg Tribunal (‘London Charter’). The icty and ictr Statutes are Security Council Resolutions, not international treaties as such. 4 Statute of the International Criminal Tribunal for the Former Yugoslavia, annexed to un sc Resolution 827 (1993), un scor, 48th sess, 3217th mtg, un Doc. S/RES/827 (25 May 1993) (‘icty Statute’). 5 Statute of the International Criminal Tribunal for Rwanda, annexed to un sc Resolution 955 (1994), un scor, 49th sess, 3453rd mtg, un Doc. S/RES/955 (8 November 1994) (‘ictr Statute’).

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discussions leading up to the icc Statute between 1994 and 1998. Section 4 examines the Tadić decisions of the icty.6 As the first decisions of a truly international court to consider the meaning of crimes against humanity in ­international law, the decisions are critical to an understanding of the crime’s modern definition. Section 5 considers the Rome Conference for the icc Statute and Article 7. This Section outlines the negotiations at the Rome Conference and the process of drafting Article 7 at that Conference. The chapeau elements of Article 7 are then briefly analysed with particular emphasis being placed on the novel and controversial aspects of those elements in the historical context of crimes against humanity. In conclusion, Section 7 analyses the ‘modern’ definition of a crime against humanity which developed in the period from 1993 to 1998. It explores the rationale for the modern threshold requirement of a crime against humanity – that is, the ‘widespread or systematic attack against any civilian population’ test – including its relationship with the notion of a threat to international peace in Chapter vii of the un Charter. As discussed in Chapter 3, one of the keys to understanding the meaning and role of crimes against humanity in international law is to appreciate that it is assumed that a crime against humanity threatens international peace and security, and hence, requires or permits an international response. 2

The Statutes for the icty and the ictr

2.1 The icty Statute (1992–1993) The icty arose to address the atrocities committed in the war that followed the violent breakdown of the former Yugoslavia. Yugoslavia was made up of six autonomous provinces – Serbia, Croatia, Bosnia & Herzegovina, Macedonia, Montenegro and Slovenia. From the Second World War, the ethnic and nationalist tensions that had historically existed between these separate states were largely kept under control by strongman and President-for-life, Josip Tito. After Tito’s death in 1980, however, these tensions re-ignited and nationalist groups began to seek autonomy. By 1992, under President Slobodan Milošević, the Serb-dominated Yugoslav army attacked the provinces that moved towards independence, first Slovenia 6 (icty) Prosecutor v Tadić (Defence Motion for Interlocutory Appeal on Jurisdiction), Case No IT–94-1-AR72 (2 October 1995) (‘Tadić – Jurisdiction’), [70] and [141]–[142]; Prosecutor v Tadić (Trial Chamber Judgment), Case No IT-94-1-T (7 May 1997) (‘Tadić – Trial’), [632].

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and then Croatia. As a un-monitored ceasefire stalled movements into these countries, the attention turned to Bosnia & Herzegovina. Centrally ­located and a patchwork of ethnicities and nationalities, Bosnia & Herzegovina became a battleground for land-grabs from both Serbia and Croatia. Most significantly, however, the Bosnian Serbs, under the leadership of President Radovan Karadžić, launched a campaign of ethnic cleansing against Bosnian Croats and Bosnian Muslims. This involved a pattern of taking over of municipalities with large or mixed Muslim populations, removing Muslim and Croats from positions of authority, imprisoning and mistreating the male soldier-age ­population in make-shift detention facilities and transferring or deporting the women and children. This also involved the persistent shelling and sniping of Muslim inhabitants in Sarajevo, known as the Siege of Sarajevo, and the atrocities at Srebrenica. The conflict led to the death of around 200,000 civilians and culminating in the 1995 Srebrenica massacre where 7,000 unarmed men were summarily executed in a few short days. The violence was perpetrated largely by the official Bosnian Serb, Bosnian Croat and Bosnian Muslim forces but also by Bosnian Serb paramilitary groups such as the Scorpions and Arkan’s tigers. In February 1993, in response to reports of these atrocities, the Security Council resolved to establish an international tribunal for the prosecution of persons responsible for violations of international humanitarian law in Yugoslavia.7 The Secretary-General was requested to submit a report and draft a statute for the Tribunal. A number of states made representations on the Tribunal’s jurisdiction over crimes against humanity. Of particular significance at the time was that it was not clear whether the armed conflict could be regarded as international so as to be within the traditional definition of a crime against humanity as set out in Article 6(c) of the London Charter of 1945: • Russia said crimes against humanity are reflected ‘in particular, in the Charter of the Nuremberg Tribunal’.8 7 un sc Resolution 808, un scor, 48th sess, 3175th mtg, un Doc. S/RES/808 (22 February 1993). See also Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, un Doc. S/25704/Add 1 (25 May 1993) (‘The Secretary-General’s Report’). For a history of the creation of the icty and the many Security Council Resolutions on Yugoslavia, see: William Schabas, The Law of the Ad Hoc Tribunals (Cambridge University Press: Cambridge, 2006) 13–24; and James O’Brien, ‘The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia’ (1993) 87 American Journal of International Law 639, 640–642. 8 Letter Dated 5 April 1993 from the Permanent Representative of the Russian Federation to the United Nations Addressed to the Secretary-General, un Doc. S/25537 (1993), 5.

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• Canada referred to serious crimes committed against any civilian population or identifiable group of persons provided such crimes were existing crimes under international law.9 • Italy suggested crimes against humanity consisted ‘of systemic or ­repeated violations of human rights … or discriminating against them on social, ­political, racial, religious or cultural grounds; or deporting or forcibly transferring populations’.10 • The Netherlands said crimes against humanity are ‘committed as part of the deliberate, systematic persecution of a particular group of people and/ or are designed systematically to deprive that group of people of their rights with government tolerance or assistance’.11 • The United States submitted crimes against humanity are serious crimes ‘that are part of a campaign or attack against any civilian population’ ‘on national, social, ethnic or religious grounds’.12 • The communiqué from Egypt, Iran, Malaysia, Pakistan, Saudi Arabia, Senegal and Turkey proposed that crimes against humanity be as ‘defined in articles 6(c) and 5(c) of the London and Tokyo Charters, respectively, and as further developed by customary international law, which covers certain serious crimes of violence, systemic pillage and looting, systemic destruction of public and private property, when committed as part of a policy of persecution on social, political, racial, religious or cultural grounds’.13 These submissions, whilst far from uniform, emphasise the need for largescale atrocities committed as part of a discriminatory policy of persecution against a civilian population or group – irrespective of any link to war crimes or aggression. Similar to the definition proposed in the 1991 ilc Draft Code, 9 10 11

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Letter Dated 13 April 1993 from the Permanent Representative of Canada to the United Nations Addressed to the Secretary-General, un Doc. S/25594 (1993), 3. Letter Dated 16 February 1993 from the Permanent Representative of Italy to the United Nations Addressed to the Secretary-General, un Doc. S/25300 (1993), 3. See Observations of the Kingdom of The Netherlands on the Establishment of an Ad Hoc Tribunal for the Prosecution and Punishment of War Crimes in the Former Yugoslavia dated 26 March 1993, quoted in O’Brien, above n 7, 649 fn 45. New Zealand, in its comment, also defined crimes against humanity without reference to armed conflict. Letter Dated 5 April 1993 from the Permanent Representative of the United States of America to the United Nations Addressed to the Secretary-General, un Doc. S/25575 (1993), 6. Letter Dated 5 April 1993 from the Representatives of Egypt, the Islamic Republic of Iran, Malaysia, Pakistan, Saudi Arabia, Senegal and Turkey to the United Nations Addressed to the Secretary-General, un Doc. A/47/920, S/25512, 2–3.

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this represented a marked departure from the definition in Article 6(c) of the London Charter. What was occurring was that states were expressing the view that a requirement of a discriminatory attack on a population or group ought to be the new touchstone in place of the war nexus in the modern definition of crimes against humanity. As argued in Chapter 3, it remained a moot point whether the war nexus was a requirement under customary law at the time and even more debateable whether there was instead a need for an attack on social, political, racial, religious or cultural grounds. The majority of states that made submissions to the Secretary-General (as set out above) appeared to support a policy element. Further, while a ‘policy element’ was dropped in the 1991 ilc Draft Code, the contrary conclusion was reached just two years later by the Security Council’s Commission of Experts, which was established to advise it on the conflict.14 In its Interim Report of 1993, the Commission concluded that crimes against humanity ‘are gross violations of fundamental rules of humanitarian and human rights law committed by persons demonstrably linked to a party to the conflict, as part of an official policy based on discrimination against an identifiable group of persons, irrespective of war and the nationality of the victim’.15 Following receipt of the above submissions, the Secretary-General issued his Report of May 1993. He wrote that ‘[c]rimes against humanity’ ‘are prohibited regardless of whether they are committed in an armed conflict, international or internal in character’.16 The only source cited in support is the Case concerning Military and Paramilitary Activities in and against Nicaragua (­ Nicaragua v United States of America) (Merits).17 It is difficult to take this d­ ecision as providing clear support for the proposition. The Court refers to ‘elementary dictates of humanity’ which must be abided by in any armed conflicts, whether of an international character or not. The Court did not refer to crimes against ­humanity as such, which have features different to that of war crimes. According to the Secretary General: ‘[c]rimes against humanity refer to inhumane acts of a very serious nature, such as wilful killing, torture or rape committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds’.18 14 See un sc Resolution 780 (1992), un scor, 47th sess, 3119th mtg, un Doc. S/RES/780 (6 October 1992). 15 Interim Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), 48th sess, Annex i, un Doc. S/25274 (9 February 1993), [49]. 16 The Secretary-General’s Report, above n 7, [47]. 17 (icj) [1986] icj Rep. 4, especially at 114, [218]. 18 The Secretary-General’s Report, above n 7, [48].

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No source is cited for this proposition, which appears to be the first use of the phrase ‘widespread or systematic attack against any civilian population’ in an international source on crimes against humanity. It was, however, likely based upon the 1991 ilc Draft Code of Offences which referred to crimes committed ‘in a systematic manner or on a mass scale’.19 In the version ultimately accepted, the question of whether a crime against humanity can occur outside the case of an armed conflict was left unanswered. On 25 May 1993, the Security Council by Resolution 827 approved the Secretary General’s Report and adopted unanimously without a vote the draft icty Statute,20 which defined crimes against humanity at Article 5 as: …the following crimes when committed in armed conflicts, whether international or internal in character, and directed against any civilian population: (a) murder; (b) extermination; (c) enslavement; (d) deportation; (e) imprisonment; (f) torture; (g) rape; (h) persecution on political, racial and religious grounds; (i) other inhumane acts. Accordingly, despite the Secretary-General’s comments, that a link to armed conflict is unnecessary and that the modern definition requires a discriminatory attack, in Article 5 it is the nexus to armed conflict which distinguishes crimes against humanity from domestic crimes. While many commentators at the time were hoping that any definition would no longer require such a link (for example, Bassiouni describes the required link to armed conflict as 19 20

See Chapter 3, Section 3.3. un sc Resolution 827 (1993), un scor, 48th sess, 3217th mtg, un Doc. S/RES/827 (25 May 1993). For some of the major works on the icty, see: Virginia Morris and Michael Scharf, An Insider’s Guide to the International Criminal Tribunal for the Former Yugoslavia (Transnational Publishers: New York, 1995); M. Cherif Bassiouni and Peter Manikas, The Law of the International Criminal Tribunal for the Former Yugoslavia (Transnational Publishers: New York, 1996); and John R.W.D. Jones, The Practice of the International Criminal ­Tribunals for the Former Yugoslavia and Rwanda (Transnational Publishers: New York, 1998).

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­‘troublesome’21), the Article draws heavily upon Article 6(c) of the London Charter. This implies that international criminal law had not progressed greatly since that time. For example, there was no attempt to borrow from the definition in the 1991 ilc Draft Code, by including any reference to the need for the crimes to be committed ‘in a systematic manner or on a mass scale’. Neither was there an attempt to draw upon the submissions of states and the views of the Commission of Experts at the time which emphasised the requirement of a policy of persecution. The continued link to armed conflict in Article 5 was likely due to the view of the Secretary-General that ‘the application of the principle nullum crimen sine lege requires that the international tribunal should apply rules of international humanitarian law which are beyond any doubt part of customary law’22 and that the London Charter (with its link to armed conflict) has ‘beyond doubt become part of customary international law’.23 Bassiouni speculates that the continued inclusion of the nexus to armed conflict was probably over concern about potential challenges to the legality of the statute.24 This suggests the Secretary-General may have accepted, as discussed in Chapter 3, that doubt still remained as to whether customary law required a link with war or, at least, armed conflict. Morris and Scharf state that the definition is based upon the London Charter because this met the standard of being beyond doubt part of customary international law particularly where the proposals of states varied so much that they could not provide a clear p ­ osition.25 Certain countries at the Security Council expressed the view that the definition does not create a new offence but only applies existing law.26 According to Schabas, ‘[w]ithout much doubt, it can be stated that the drafters of the icty Statute believed that such a limitation [the link to armed conflict] was imposed by customary international law and that to prosecute crimes against humanity in the absence of armed conflict would violate the maxim nullum crimen sine lege.’27 21 22 23 24 25 26 27

M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law (2nd rev. ed., Kluwer Law International: The Hague, 1999) 194. The Secretary-General’s Report, above n 7, [34]. The Secretary-General also says the draft statute does not create new law it only applies existing law: [29]. The Secretary-General’s Report, above n 7, [35]. Bassiouni, above n 21, 195. Morris and Scharf, above n 20, 77. un scor, 48th sess, 3217th mtg, un Doc. S/PV.3217 (25 May 1993), 7 (Venezuela); 19 (United Kingdom); 23 (New Zealand); 37 (Brazil); and 41 (Spain). Schabas, above n 7, 187.

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Some writers have suggested – without direct evidence in support other than the Secretary-General’s remarks about the lack of any need for a link with armed conflict – that the wording simply reflects the Security Council describing the factual situation (that of armed conflict) which the Council was dealing with at the time and that it was not providing a general definition applicable in all situations.28 The absence of any direct statement by any of the major participants that this was the thinking at the time makes this view difficult to accept. This has not stopped the icty Appeals Chamber in Šešelj29 concluding that the link to armed conflict in Article 5 is an ad hoc jurisdictional requirement of the icty, not an attempt to define an aspect of the crime’s international definition. Perhaps due to a desire by some states to have a more expansive definition than set out in Article 5, some members of the Security Council made interpretative statements, firstly, that even though the actual words of the Statute required the crimes to be committed ‘in armed conflict’, Article 5 was intended to apply to crimes committed ‘during a period of armed conflict’. Also, some states stated that the intention was to deal with a ‘widespread or systematic attack against any civilian population on national, political, ethnic, racial, or religious grounds’.30 Based on these statements, the icty has held that the required link to armed conflict in Article 5 is quite undemanding. It requires that the acts be undertaken ‘during’ armed conflict, as a mere temporal and geographic requirement governing the Tribunal’s jurisdiction, not as requiring some substantial or causative connection.31 Further that the geographical 28

See Larry Johnson, ‘Ten Years Later: Reflections on the Drafting’ (2004) 2(2) Journal of International Criminal Justice 368, 372; Guénaël Mettraux, International Crimes and the Ad Hoc Tribunals (Oxford University Press: Oxford, 2005) 152; see also Morris and Scharf, above n 20, 79–80, 82–83; and Gerhard Werle, Principles of International Criminal Law (tmc Asser Press: The Hague, 2005) 218–219. 29 (icty) Prosecutor v Šešelj (Decision On The Interlocutory Appeal Concerning ­Jurisdiction) Case No IT-03-67-AR72.1 (31 August 2004) (‘Šešelj – Jurisdiction’), [12]; see also Prosecutor v Kunarac, Kovac and Vukovic (Appeals Chamber Judgment), Case No IT-96-23 & IT-96-23 (12 June 2002) (‘Kunarac – Appeal’), [83]: “purely jurisdictional requirement”. 30 See un scor, 48th sess, 3217th mtg, un Doc. S/PV.3217 (25 May 1993), 11 (France); 16 (United States); 19 (United Kingdom which referred to ‘in time of armed conflict’ but without reference to the need for a discriminatory attack); and 45 (Russia). 31 (icty) See Tadić – Jurisdiction, above n 6, [70] and [141]–[142]; Tadić – Trial, above n 6, [632]; Prosecutor v Tadić (Appeals Chamber Judgment), Case No IT-94-1-A (15 July 1999) (‘Tadić – Appeal’), [249], [251] and [272]; Prosecutor v Kunarac, Kovac and Vukovic (Trial Chamber Judgment), Case No IT-96-23 & IT-96-23 (22 February 2001) (‘Kunarac – Trial’), [413]; Kunarac – Appeal, above n 29, [83]; Prosecutor v Kupreškić et al. (Trial Chamber Judgment), Case No IT-95-16-T (14 January 2000) (‘Kupreškić – Trial’), [546]; Prosecutor v Blaškić (Trial Chamber Judgment), Case No IT-95-14-T (3 March 2000) (‘Blaškić – Trial’),

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c­ onnection need not require a precise overlap with the specific area of the crime itself.32 By this interpretation, which has the support of many commentators,33 it will suffice if the acts occur at a time and place of armed conflict, in a general sense, such as when one speaks of ‘Germany during the war’.34 This represents a departure from the Nuremberg Precedent and the definition in Article 6(c) of the London Charter. O’Brien, however, argues that this interpretation of ­Article 5 is consistent with the actual approach of the Nuremberg Tribunal (if not the words of Article 6(c) of the London Charter), which assumed, without detailed analysis, a link with war crimes or crimes against peace after the outbreak of war.35 It may not be fair to assume that the Nuremberg Tribunal, whilst not fully articulating the nexus, did not require a substantive connection between crimes against humanity and the two other crimes.36 This approach is consistent with the detailed thesis put forward by Bassiouni that the principles of legality under international law at the time of the Second World War did not prohibit the limited extension of existing international ­offences – namely, war crimes – to conduct analogous to war crimes ­committed against a belligerent’s own nationals in times of war.37 The further development in international law ultimately brought about by the actual text of Article 5 of the icty Statute was that it endorsed the view that the offence could be extended, again by analogy, to the same conduct when committed during a non-international armed conflict.

[71]; and Kordić and Čerkez (Trial Chamber Judgment), Case No IT-95-14/2-T (26 February 2001) (‘Kordić – Trial’), [23] and [33]. 32 (icty) See Šešelj – Jurisdiction, above n 29. 33 O’Brien, above n 7, 649–650; Matthew Lippman, ‘Crimes Against Humanity’ (1997) 17 ­Boston College Third World Law Journal 171, 266 (Lippman calls in aid the fact that legislation in most Member States did not require a connection between crimes against humanity and another crime or armed conflict. In fact, the legislation then in force, with the exception of Canada, required a link to the Second World War: see Chapter 3); Morris and Scharf, above n 20, 83; Beth Van Schaack, ‘The Definition of Crimes against Humanity: Resolving the Incoherence’ (1999) 37 Columbia Journal of International Law 787, 827; and Mettraux, above n 28, 152. 34 (icty) For example, see Tadić – Jurisdiction, above n 6, [70]. Of course, in the case of non-international armed conflict, it is more difficult to be precise about the temporal and geographic parameters of the conflict. 35 O’Brien, above n 7, 650. 36 See Chapter 2, Sections 4 and 5. 37 Bassiouni, above n 21, Chapters 1–4.

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2.2 The ictr Statute (1994) The ictr was created in response to the Rwandan genocides in 1994. Historically, Rwanda was divided into two main ethnic groups: Hutu and Tutsi. While under Belgian rule, Rwanda was dominated by the Tutsi minority. Upon gaining independence from Belgium in 1962, a Hutu government came to power and the decades that followed were characterised by tensions, resentment and violence between the two ethnic groups. The result was that many Tutsis were forced out of Rwanda into neighbouring territories such as Uganda. This lead to the formation of the Rwandan Patriotic Front (rpf), an organisation comprised primarily by second-generation Tutsis trained in Uganda willing to use force to return Rwandan refugees to Rwanda. In the 1990s, violence flared as the dissatisfaction of the Tutsi diaspora combined with a slumping Rwandan economy and food shortages. In 1993, to the great frustration of many Hutus, the civil war culminated in the Hutu government, led by President Juvénal Habyarimana, entering into a cease-fire and power-sharing agreement with the rpf. Among the reasons for the subsequent increase in Hutu-Tutsi tensions was the fear amongst the Hutu population that the rpf would ultimately intend to return Rwanda to the pre-independence days of Tutsi domination. The fragile peace ended dramatically following the shooting down of the plane carrying President Habyarimana of Rwanda and President Ntaryamira of Burundi at Kigali airport on 6 April 1994. Immediately following this incident, a campaign of orchestrated violence by the Hutu militia with the support of the interim Rwandan government was unleashed against the Tutsi population.38 Within months, hundreds of thousands were killed, with an eventual death toll estimated at one million.39 The Secretary-General and others called for ‘the immediate and massive reinforcement’ of un troops with enforcement powers under Chapter vii of the Charter.40 Instead of a military intervention, the Security Council on 1 July 1994 requested the Secretary-General to establish ‘as a matter of urgency’ a C ­ ommission 38

39 40

Special Report of the Secretary-General of the United Nations on the United Nations Assistance Mission for Rwanda, un gaor, 49th sess, un Doc. S/1994/470 (20 April 1994) ­(‘Special Report of the Secretary-General’), [1]–[3]. For a discussion of the Rwanda genocide of 1994, see: Linda Melvern, A People Betrayed: The Role of the West in Rwanda’s Genocide (Zed Publishing: London, 2000); Gérard Prunier, The Rwanda Crisis: History of a Genocide (Columbia University Press: New York, 1995); and The United Nations and Rwanda 1993–96 (Department of Public Information, United Nations: New York, 1996). This was the estimate of the Secretary-General: see The United Nations and Rwanda 1993– 96, above n 38, 4. Special Report of the Secretary-General, above n 38, [13]–[14].

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of Experts to report on grave violations of international humanitarian law, including ‘possible’ acts of genocide.41 By this time, it was already obvious to the world that genocide was taking place and continuing. The Special Rapporteur for Rwanda of the un Commission of Human Rights in his first report of 28 June 1994 indicated that large-scale massacres of Tutsi had occurred and was organised by the Hutu militia for which the transitional Government of Rwanda bore responsibility.42 Before the Commission of Experts for Rwanda was established, in May 1994, the Commission of Experts for the former Yugoslavia issued its Final Report. Its Report was timely in considering the modern definition of crimes against humanity in the context of the atrocities in Rwanda. Unlike in the former ­Yugoslavia, it was unclear whether there was any armed conflict taking place in Rwanda at all. In its Report, the Commission of Experts stated that ‘crimes against humanity apply to all contexts’ and are ‘no longer dependent upon their linkage to crimes against peace or war crimes’.43 To support its view, the Commission took a somewhat strained view of the Nuremberg Judgment. It said the Nuremberg Tribunal ascertained that there are ‘elementary dictates of humanity’ to be recognised under all circumstances and that crimes against humanity in the London Charter were ‘conceived to redress crimes of an equally serious character [to war crimes] and on a vast scale, organized and systematic, and most ruthlessly carried out’.44 The Nuremberg Tribunal did refer to the charged conduct, on the facts before it, in these terms, but the Tribunal did not suggest they were legal requirements. The Tribunal certainly did not suggest that the ‘dictates of humanity’ gave rise to recognised crimes under international law in all circumstances.45 While not requiring a connection with war or armed conflict, the Commission of Experts concluded that crimes against humanity ‘must be part of a policy of persecution or discrimination’.46 This appeared to go back to the theory 41 42

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44 45 46

un sc Resolution 935 (1994), un scor, 49th sess, 3400th mtg, un Doc. S/RES/935 (1 July 1994). Report on the situation of human rights in Rwanda submitted by Mr René Degni-Ségui, Special Rapporteur of the Commission on Human Rights, un Doc. E/CN.4/1995/7 (28 June 1995), [43]. See also: un gaor, 49th sess, 3400th mtg, Annex i, un Doc. S/1994/1127 (1994). Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780, un scor, Annex, un Doc. S/1994/674 (27 May 1994) (‘Experts’ Report (Yugoslavia)’), [75]. Experts’ Report (Yugoslavia), above n 43, [73]–[74]. See Chapter 2, Sections 4 and 5. Experts’ Report (Yugoslavia), above n 43, [84]–[85].

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proposed in the first draft of un Special Rapporteur, Mr Doudou Thiam, prior to the 1991 ilc Draft Code,47 as well as a number of state submissions to the Secretary-General in relation to the icty Statute and the Secretary-General’s own report. The Commission of Experts for Rwanda issued its Preliminary Report on 1 October 1994. It accepted that a level of ambiguity existed about the content and legal status of crimes against humanity.48 It reported that since ­Nuremberg, crimes against humanity have ‘undergone substantial evolution’.49 It stated that the origins of crimes against humanity lay in ‘principles of humanity’ first invoked in the early 1800s by a state to denounce another state’s human rights violations of its own citizens.50 Whilst not stating expressly what was being referred to, the context suggests the Commission had in mind the examples of so-called humanitarian interventions of the nineteenth century.51 The Commission ultimately followed the remarks of the Interim Report of the Commission of Experts for the former Yugoslavia in concluding that crimes against humanity ‘are gross violations of fundamental rules of humanitarian and human rights law committed by persons demonstrably linked to a party to the conflict, as part of an official policy based on discrimination against an identifiable group of persons, irrespective of war and the nationality of the victim’.52 On 8 November 1994, the Security Council, acting under Chapter vii of the Charter, adopted the ictr Statute.53 According to the Secretary-General, it was an adaptation of the icty Statute to the circumstances of Rwanda, drafted by the sponsors of the resolution in consultation with other members of the Council.54 Article 3 (crimes against humanity) is as follows: 47 48

See Chapter 3, Section 3.3.2(iii). Preliminary Reports of the Independent Commission of Experts Established in accordance with Security Council Resolution 935, un scor, 49th sess, Annex, un Doc. S/1994/1125 (4 October 1994) (‘Experts’ Preliminary Report (Rwanda)’), [108]–[109]. 49 Experts’ Preliminary Report (Rwanda), above n 48, [114] and [116], where the Genocide Convention and the Apartheid Convention are relied upon. 50 Experts’ Preliminary Report (Rwanda), above n 48, [115]. 51 See Chapter 1, Section 5.1. 52 Experts’ Preliminary Report (Rwanda), above n 48, [118], quoting from the Interim Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), 48th sess, Annex i, un Doc. S/25274 (9 February 1993), [49]. 53 See un sc Resolution 955 (1994), un scor, 49th sess, 3453rd mtg, un Doc. S/RES/955 (8 November 1994). 54 Report of Secretary General Pursuant to Paragraph 5 of the Security Council Resolution 955 (1994), 50th sess, un Doc. S/1995/134 (13 February 1995), [9].

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The [ictr] shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds: (a) murder; (b) extermination; (c) enslavement; (d) deportation; (e) imprisonment; (f) torture; (g) rape; (h) persecutions on political, racial and religious grounds; (i) other inhumane acts. The key element of the definition is ‘a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds’. This appeared notably to combine the ‘widespread or systematic’ component with the ‘discrimination’ component discussed by the Commission of Experts but makes no explicit reference to the Commission’s requirement of a ‘policy’. Apart from the Commission of Experts, this definition can also be traced to the Secretary-General’s Report on the icty Statute and the comments of some members of the Security Council on 25 May 1993.55 Morris and Scharf, writing at the time, criticised the test as being too onerous and possibly a higher standard than that under the icty Statute.56 Meron wrote that by requiring both a discriminatory and a widespread or systematic attack, the Security Council may have inadvertently raised the burden for the prosecution beyond that required.57 Paust asserted it was deliberately done to ensure a limited definition for any future permanent court.58 The most persuasive conclusion, however, based on the remarks and submissions of the main actors at the time, is that the definition of crimes against 55

56 57 58

The Secretary-General’s Report, above n 7, [48] and text accompanying n 30 above. See also Interim Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), 48th sess, annex i, [49], un Doc S/25274 (1993). Virginia Morris and Michael Scharf, The International Criminal Tribunal in Rwanda (Transnational Publishers: New York, 1998), 196–199. Theodor Meron, ‘International Criminalization of Internal Atrocities’ (1995) 89(3) American Journal of International Law 554, 557. Jordan Paust, ‘Panel Discussion’ (1995) 89 American Society of International Law Proceedings 311, 311.

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humanity was so fluid in 1994 that many states, including those who drafted the Statute, considered that ‘a widespread or systematic attack’ on discriminatory grounds was the modern or emerging or preferable requirement for all crimes against humanity. Accordingly, the view was taken that it ought to be promoted in lieu of requiring a link to armed conflict, as was the case under Article 5 of the icty Statute, even though the latter may have been strictly necessary under extant customary law.59 Article 3 contains no express ‘policy element’ as part of the definition. The context, in particular, the Commission of Experts’ Reports, suggests that some ‘policy element’ was necessarily seen as part of the concept of there being an attack on a civilian population on discriminatory grounds. On its face, the definition is vastly different to Article 5 of the icty Statute. Had the Secretary-General’s previous concerns about the need for a link to armed conflict under customary law been removed? In his Report of 13 ­February 1995, he said:60 [T]he Security Council has elected to take a more expansive approach to the choice of the applicable law than the one underlining the statute of the Yugoslav Tribunal, and included within the subject matter jurisdiction of the Rwanda Tribunal international instruments regardless of whether they were considered part of customary international law or whether they have customarily entailed the individual criminal responsibility of the perpetrator… Hence, the extent to which Article 3 was intended to be confined by existing customary law or created or crystallised an emerging new offence, must be open to doubt. While some have suggested that any such distinction between the two statutes may have been ‘unintentional’,61 this is difficult to accept. Hwang points out that the Articles on crimes against humanity in both the icty Statute and the ictr Statute both open with the phrase ‘The International Tribunal … shall have the power to prosecute persons responsible for the following crimes’. As a result, he concludes, ‘these articles are not intended to define crimes against humanity, but, rather to define the scope of the 59

60 61

This is the conclusion of Cryer: see Robert Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (Cambridge University Press: Cambridge, 2005) 253. Special Report of the Secretary-General, above n 38, [12]. Bassiouni and Manikas, above n 20, 458.

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­ ribunal’s jurisdiction over crimes against humanity’.62 While this view has no T direct evidence in support, it has support from scholars in the field.63 It has also been adopted by the ictr, where the Appeals Chamber in Akayesu held that a discriminatory motive was not a part of customary law, stating:64 [T]he Security Council did not depart from international humanitarian law nor did it change the legal ingredients required under international humanitarian law with respect to crimes against humanity. It limited at the very most the jurisdiction of the Tribunal to a sub-group of such crimes, which in actuality may be committed in a particular situation … This is to say that the Security Council intended thereby that the Tribunal should not prosecute perpetrators of other possible crimes against humanity. The requirement of a ‘widespread or systematic attack against any civilian population’ in Article 3 of the ictr Statute in fact was the first time the phrase appeared in a definition of crimes against humanity in an international ­statute or treaty. In the English, Chinese, Russian and Spanish versions, the disjunctive ‘or’ is used whilst in the French version the conjunctive ‘et’ is used. There does not appear to be any explanation for the difference in the record of p ­ roceedings or the literature. The ictr has held that because international customary law supports the disjunctive ‘or’ the French version must be taken (without direct evidence being offered) to suffer from an error in translation.65

62 Hwang, above n 2, 478. 63 Werle, above n 28, 219. 64 (ictr) See Prosecutor v Akayesu (Appeals Chamber Judgment), Case No ICTR-96-4-A (1 June 2001) (‘Akayesu – Appeal’), [464], [465]. 65 (ictr) See Prosecutor v Akayesu (Trial Chamber Judgment), Case No ICTR-96-4-T (2 September 1998) (‘Akayesu – Trial’), [579]; Prosecutor v Ntakirutimana (Trial Chamber Judgment), Case No ICTR-96-10-T & ICTR-96-17-T (21 February 2003) (‘Ntakirutimana – Trial’), [804]; Prosecutor v Bagilishema (Trial Chamber Judgment), Case No ICTR-95-1A-T (7 June 2001) (‘Bagilishema – Trial’), [77]; Prosecutor v Musema (Trial Chamber Judgment), Case No ICTR-96-13-T (27 January 2000) (‘Musema – Trial’), [202]–[203]; Prosecutor v Georges Anderson Nderubumwe Rutaganda (Trial Chamber Judgment), Case No ICTR-96-3-T (6 December 1999) (‘Rutaganda – Trial’), [68]; Prosecutor v Kayishema and Ruzindana (Trial Chamber Judgment), Case No ICTR-95-1-T (21 May 1999) (‘Kayishema – Trial’), [123]; Prosecutor v Gacumbitsi (Trial Chamber Judgment), Case No ICTR-2001-64-T (17 June 2004) (‘Gacumbitsi – Trial’), [299]; and Prosecutor v Muhimana (Trial Chamber Judgment), Case No ICTR-95-1B-T (28 April 2005) (‘Muhimana – Trial’), [525].

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Preparing for the Rome Conference (1994–1998)

In 1994, the ilc submitted its Draft Statute for an International Criminal Court (which merely referred to ‘crimes against humanity’ without definition).66 The General Assembly then established an Ad Hoc Committee to review the Draft Statute.67 The Committee expressed the view that the elements of the offence needed to be specified in the Statute. When it came to debating the Draft Statute’s definition of crimes against humanity, some delegations wanted to keep a nexus to armed conflict, others thought customary law was ‘questionable’ on this issue; some emphasised that ‘usually’ a ‘widespread or systematic’ attack was required, and others said the need for a discriminatory motive was ‘questionable and unnecessary’.68 In the end, the Ad Hoc Committee ‘discussed’ but did not draft a statute. The General Assembly then established the Preparatory Committee which met five times between 1995 and 1998.69 As Schabas explains, both the Ad Hoc Committee and the Preparatory Committee were ‘vexed’ by the contextual ­elements of crimes against humanity that set it apart from ordinary crimes.70 66

Report of the International Law Commission on the Work of its Forty-Sixth Session, un gaor, 49th sess, Supp. 10, un Doc. A/49/10 (22 July 1994) (‘1994 ilc Report’), [75] and [77], which stated that the crimes were not defined because of ‘unresolved issues about the definition’. For discussion, see James Crawford, ‘The ilc Adopts a Statute for an International Criminal Court’ (1995) 89 American Journal of International Law 404. 67 See un ga Resolution 49/53, un gaor, 49th Sess., Agenda Item 137, un Doc. A/RES/49/53 (9 December 1994); ‘The Permanent International Criminal Court’ in Mark Lattimer and Philippe Sands (eds), Justice For Crimes Against Humanity (Hart Publishing: Oxford, 2003) 173, 176; and Bruce Broomhall, International Justice and the International Criminal Court (Oxford University Press: Oxford, 2003) 71. The Committee met twice in 1995. 68 Report of the Ad Hoc Committee on the Establishment of an International Court, un gaor, 50th sess, Supp. 22, un Doc. A/50/22 (7 September 1995) (‘Ad Hoc Committee Report’), [52], [57] and [77]–[79]; Broomhall, above n 67, 32; Hwang, above n 2, 492. 69 See ‘Establishment of an International Criminal Court’, un ga Resolution 50/46, un gaor, 50th Sess., Supp No 49, un Doc. A/50/49 (vol i) (24 October 1995), 307; ­Christopher Hall, ‘The First Two Sessions of the un Preparatory Committee on the Establishment of an International Criminal Court’ (1997) 91(1) American Journal of International Law 177; ­Christopher Hall, ‘The Third and Fourth Sessions of the un Preparatory Committee on the Establishment of an International Criminal Court’ (1998) 92(2) American Journal of International Law 124; and Christopher Hall, ‘The Fifth Session of the un Preparatory Committee on the Establishment of the International Criminal Court’ (1998) 92(2) ­American Journal of International Law 331. 70 William Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press: Oxford, 2010) 141.

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However, almost all states on the Committee wanted a revision of the d­ efinition of crimes against humanity in Article 6(c) of the London Charter.71 ­Further, there was ‘general support’ for the requirement that crimes against humanity be widespread or systematic ‘to indicate the scale and magnitude of the offences’.72 There was nonetheless much disagreement, in particular focusing on three aspects: whether any link with an armed conflict was required, whether the widespread or systematic test should be cumulative or disjunctive; and, whether there was any requirement for a policy, plan or level of organisation.73 The us took the lead by submitting a paper74 and arguing at the first session that there was ‘no sound reason in theory or precedent’ to require that the crimes be linked with armed conflict.75 At the fifth session the us repeated this position.76 A majority of delegates agreed, but some opposed this view.77 Whilst a large number of states supported the criterion of ‘widespread or systematic’, some states thought crimes against humanity ought to be both ‘widespread

71 72 73

74

75 76 77

Hall, ‘The First Two Sessions’, above n 69, 180. Schabas, above n 70, 141. un Doc. A/AC.24 9/CRP.2/Add.3/Rev.1 (9 April 1996), cited in Schabas, above n 70, 142 (The Coordinator of the Preparatory Conference prepared a list of issues that would need to be discussed: In addition to whether there was any nexus with an armed conflict required (on which views differed): ‘The following were also mentioned as elements to be taken into account: an element of planning, policy, conspiracy or organization; a multiplicity of victims; acts of a certain duration rather than a temporary, exceptional or limited p ­ henomenon; and acts committed as part of a policy, plan, conspiracy or a campaign rather than random, individual or isolated acts in contrast to war crimes. Some delegations expressed the view that this criterion could be further clarified by referring to widespread and systematic acts of international concern to indicate acts that were ­appropriate for international adjudication; acts committed on a massive scale to indicate a multiplicity of victims in contrast to ordinary crimes under national law; acts committed systematically or as part of a public policy against a segment of the civilian population; acts committed in application of a concerted plan to indicate the necessary degree of intent, concert or planning; and exceptionally serious crimes of international concern to exclude minor offences, as in article 20, paragraph (2). Some delegations expressed the view that the criteria should be cumulative rather than alternative.’). Crimes against Humanity: Lack of a Requirement for a Nexus to Armed Conflict (25 March 1996), quoted by us Ambassador-at-Large For War Crimes Issues: see David Scheffer, ‘The United States and the International Criminal Court’ (1999) 93 American Journal of International Law 12, 14. Hall, ‘The First Two Sessions’, above n 69, 180; Hwang, above n 2, 492–493. See Scheffer, above n 74, 14. Hall, ‘The First Two Sessions’, above n 69, 180; Hwang, above n 2, 492–493.

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and systematic’.78 Finally, there were differing views on whether or not crimes against humanity required a discriminatory animus.79 Ultimately, these differences were not resolved in the Committee’s 1996 draft definition.80 Accordingly, in 1997, a working group of the Preparatory Committee produced a definition in two paragraphs that identified a number of the key unresolved issues. The first said: 1. For the purpose of the present Statute, any of the following acts constitutes a crime against humanity when committed [as part of a widespread [and] [or] systematic commission of such acts against any population]: [as part of a widespread [and] [or] systematic attack against any [civilian] population] [committed on a massive scale] [in armed conflict] [on political, philosophical, racial, ethnic or religious grounds or any other arbitrarily defined grounds]:81 The second paragraph listed the relevant acts, which went beyond the crimes in Article 6(c) of the London Charter to include forcible transfers of ­population (meaning within national borders), detention or imprisonment, torture, rape and other forms of sexual abuse and the forced disappearance of persons.82 The text of both paragraphs was incorporated largely unchanged into the Committee’s Draft Statute in 1998.83 Hence, despite the Committee’s work between 1995 and 1998, by the time of the Rome Conference the definition of crimes against humanity was not resolved.84 78 79 80 81

82 83

84

Hall, ‘The Third and Fourth Sessions’, above n 69, 127. Preparatory Committee 1996 Report, Vol 1, [87], cited in Schabas, above n 70, 157. See also Report of the Preparatory Committee on the Establishment of an International Court, un gaor, 51st sess, Supp. 22A, un Doc. A/51/22 (vol ii) (13 September 1996), 65–69. The square brackets, contained the various suggestions by delegations: see Decisions Taken by the Preparatory Committee at its Session held from 11 to 21 February 1997: Report of the Working Group on the Definition of Crimes, Annex i, un Doc. A/AC 249/1997/L.5 (12 March 1997), 4. Ibid, 5; Hall, ‘The Third and Fourth Sessions’, above n 69, 127–128. The definitions of many of these crimes, however, were still unresolved. Report of the Preparatory Committee of the Establishment of an International Criminal Court, Draft Statute and Draft Final Act, un Doc. A/Conf.183/2/Add 1 (14 April 1998); see also Hwang, above n 2, 494; Bassiouni, above n 21, 176; Broomhall, above n 67, 71. The draft statute contained some 1,400 square brackets: see Philippe Kirsch and John T. Holmes, ‘The Rome Conference on an International Court: The Negotiating Process’ (1999) 93(1) American Journal of International Law 2, 3; and Bassiouni, above n 21, 176.

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4 The Tadić Decisions of the icty 4.1 Background The icty operated out of The Hague, many miles from the conflict in the former Yugoslavia. At first, it struggled to bring any defendants into custody. The novel experiment of the Security Council seemed to be a toothless tiger. Then the German authorities found Duško Tadić, a possible war criminal, in its ­territory. He was offered to the icty, which agreed to take him to The Hague. He thus became the Tribunal’s first defendant. Duško Tadić was a local Serbian nationalist politician, café owner, part-time traffic policeman and occasional visitor at the Omarska concentration camp in Bosnia.85 He was hardly a major perpetrator of the atrocities which brought about the intervention of the Security Council, but he was the first defendant over which the Tribunal gained custody. Otherwise, it is unlikely that he would have been prosecuted before an international tribunal. He was convicted of crimes against humanity in respect of his participation in assaults and torture of non-Serbian civilians at the Omarska concentration camp in Bosnia, but before such a conviction was recorded the jurisdictional decisions of the Tribunal in his case had an enormous influence of the development of the law. 4.2 The Tadić Jurisdiction Decisions Tadić challenged the icty’s jurisdiction under Article 5 of the icty Statute, arguing that customary international law only conferred jurisdiction over crimes against humanity in connection with an international, not purely internal, armed conflict.86 On 10 August 1995, the Trial Chamber held that the war nexus ‘was peculiar to the context of the Nuremberg Tribunal’.87 It ruled a link to armed conflict was not necessary under customary law, relying on the ­Einsatzgruppen case, the ilc’s Special Rapporteur’s Report of 1989 and the 1992 edition of Oppenheim’s International Law.88 Despite Tadić abandoning on appeal his argument that international law required a connection with an international armed conflict rather than ­simply an 85 (icty) Tadić – Trial, above n 6, [180]–[192]. 86 (icty) See Tadić – Jurisdiction, above n 6, [77]. 87 (icty) Tadić – Jurisdiction, above n 6, [78]. 88 (icty) Tadić – Jurisdiction, above n 6, [79]–[81]; and (Nuremberg) The Einsatzgruppen case and the work of the ilc are discussed in Chapter 3, Sections 2.2.3 and 3.3.2 respectively. The 1992 edition of Oppenheim’s International Law said the link to war was ‘somewhat artificial’ and the autonomy of crimes against humanity ‘now generally regarded’ although ‘in practice they are often treated together with war crimes’: Robert Jennings and Arthur Watts (eds), Oppenheim’s International Law (9th rev. ed., Longman: London, 1996) 996.

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armed conflict, the Appeals Chamber on 2 October 1995 went on to confirm the view of the Trial Chamber in any event. It stated that whilst the London Charter was affirmed by the General Assembly, ‘there is no ­logical or legal basis for this requirement [the war nexus] and it has been abandoned in subsequent state practice’.89 It cited Allied Control Council Law No 10, the Genocide ­Convention and the Apartheid Convention as evidence of the r­ elevant state practice.90 The Appeals Chamber concluded that under customary i­nternational law, crimes against humanity do not require a connection to international armed conflict and ‘may’ not require a connection with any conflict at all.91 For the reasons explored in Chapter 3, one could question the extent to which these sources, or the reasoning, can justify the conclusion reached. Nevertheless, the remarks of the Appeals Chamber have been widely relied upon since to support the proposition that by 1991 (from when the icty’s temporal jurisdiction commenced) the war nexus was no longer a part of the definition of customary international law. 4.3 The Tadić Trial Judgment The Trial Chamber in its Judgment of 7 May 1997 rendered the first decision of a truly international court on the meaning of crimes against humanity. It discerned a number of elements which make up the offence. In particular, it turned to the word ‘population’ in Article 5, as one commentator put it, ‘as the rug under which all the remaining elements of crimes against humanity were swept’.92 The Chamber stated:93 [T]he ‘population’ element is intended to imply crimes of a collective nature and thus exclude single or isolated acts … Thus the emphasis is not on the individual victim but rather on the collective, the individual being victimized not because of his individual attributes but rather because of his membership of a targeted civilian population. This has been interpreted to mean, as elaborated below, that the acts must occur on a widespread or systematic basis, that there must be some form of a governmental, organisational or group policy to commit these acts and that the perpetrator must know of the context within which his actions are

89 (icty) Tadić – Jurisdiction, above n 6, [140]. 90 (icty) Tadić – Jurisdiction, above n 6, [140]. These sources are discussed in Chapter 3, Section 3.2. 91 (icty) Tadić – Jurisdiction, above n 6, [141]. 92 Hwang, above n 2, 482. 93 (icty) Tadić – Trial, above n 6, [644].

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taken, as well as the requirement imported by the Secretary-General and members of the Security Council that the actions must be taken on discriminatory grounds. It is difficult to discern all of these elements from the single word ‘population’. The Chamber relied principally upon the report of the United Nations War Crimes Commission (unwcc) of 1948 (which stated ‘[a]s a rule systematic mass action, particularly if it was authoritative, was necessary’ as only such crimes which ‘shocked the conscience of mankind, warranted intervention by States other than that on whose territory the crimes had been committed’) and the work of the ilc, to discern all of these requirements from the word ‘population’.94 It is of interest that the Trial Chamber went back to the unwcc report of 1948 to discern the definition under customary law. This report appears to ground crimes against humanity in the former doctrine of humanitarian intervention. Chapter 2 argued that this report, in fact, did not fairly state the actual meaning of crimes against humanity as defined under Article 6(c) of the London Charter.95 Under that definition, the emphasis was on requiring a link with aggression or international armed conflict in order to justify the Tribunal’s exceptional jurisdiction over German officials who had committed atrocities against their own nationals. Its drafters had deliberately decided not to draw upon the prior doctrine of humanitarian intervention to ground the concept of crimes against humanity because of its potential for abuse. The R ­ eport of the unwcc was, however, widely quoted after Nuremberg and would seem to have been taken by the Trial Chamber of the Tribunal as reflecting international customary law at least by 1991. The Trial Chamber held that the offence required ‘some form of policy to commit these acts’ (one of its stated elements) and that this policy ‘need not be formalized and can be deduced from the way in which the acts occur’.96 It quoted the Netherlands Hoge Raad in Public Prosecutor v Menten for the need for ‘the crimes in question [to] form part of a system based upon terror or constitute a link in a consciously pursued policy directed against particular groups of people’.97 It is a pity the Tribunal used the phrase ‘policy to commit these 94 (icty) Tadić – Trial, above n 6, [644], [645]–[649]. The unwcc report is discussed at Chapter 2, Section 5.3 and the work of the ilc is dealt with in Chapter 3, Section 3.3. 95 See Chapter 2, Section 5.3. 96 (icty) Tadić – Trial, above n 6, [653]. 97 (Netherlands) Public Prosecutor v Menten (Judgment), Supreme Court of the Netherlands (13 January 1981), reprinted in (1987) 75 ilr 331.

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acts’ which may be interpreted as requiring a policy or decision to commit the actual acts of the defendants rather than a general policy of persecution, mistreatment or terror against persons or groups that can be linked to the acts of the defendants. Such a narrow interpretation of the ‘policy element’ would be beyond its customary law origins, as explained in Chapters 2 and 3. Under the London Charter, offences had to be carried out in the interests of the Axis Powers. Scholars and case law thereafter required a link between the acts committed and the system, policy (in a loose sense), interests or actions of a state. This is a broad notion so that ‘a policy to commit these acts’ should not be taken to mean a policy in the sense of a state decision to carry out the specific crimes committed by the defendant. Rather, it requires a system of action or plan or policy (which need not be explicit) to mistreat or ‘attack’ some civilian population, which will be satisfied if the defendants crimes can be linked to such a state inspired plan, policy or system which may be inferred by a state’s implicit approval, assistance, encouragement or toleration afterwards.98 In Chapter 3, this ‘policy element’ is referred to as the impunity principle. This is because the element attempts to capture the essence of the international crime in the fact that a ‘bandit state’ directly or indirectly encourages or tolerates serious crimes, thereby allowing the perpetrator to enjoy de facto impunity. The Trial Chamber in Tadić held that whilst the ‘traditional conception was … that the policy must be that of a State’, ‘the law in relation to crimes against humanity has developed’ to cover non-state actors (‘organisations or groups’) which have de facto control over, or are able to move freely within, defined territory.99 It should be noted that non-state actors have ‘traditionally’ been perpetrators of crimes against humanity, if the other elements are met. This was decided in the Flick Case where it was held that it did not matter that the defendants were not state agents or officials.100 It was enough if they were acting in furtherance of state policy. What was new in the Tadić Judgment was the notion that a state-like force or organisation can formulate the relevant policy or ‘system’. The Trial Chamber regarded the forces in control of Serbian Autonomous Regions which had de facto control over parts of Bosnia as being in this sense an ‘organisation or group’. The Trial Chamber also noted that the ilc in its 1991 commentary to the Draft Code did not rule out groups organised in criminal gangs as also being 98 See Chapter 3 and, for example, (Nuremberg) The Einsatzgruppen Case, above n 88, 498. 99 (icty) Tadić – Trial, above n 6, [653]–[655]. 100 (Nuremberg) United States v Flick and others 6 ccl 10 Trials 3, 1201–1202; followed in United States v Krauch 8 ccl 10 Trials 1081, 1167–1192 (‘The Farben Case’).

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possible actors.101 The Prosecution asserted, and the Defence did not challenge, the proposition that the actor may be a ‘terrorist group or organization’ but the Trial Chamber, somewhat guardedly, said the assertion ‘conforms with recent statements regarding crimes against humanity’.102 Finally, two further findings of note were made in relation to the chapeau aspect of crimes against humanity. First, that the defendant must act out of discriminatory motives (relying on the statements of the members of the Security Council at the time). Secondly, the defendant must know both that there is an attack on the civilian population and that his acts fit in with the attack (described as being by way of either actual or constructive knowledge).103 The Trial Chamber in the result found that Tadić was guilty of crimes against humanity for his acts against non-Serbians. It found there was an armed conflict in the territory of Prijedor in Bosnia which involved both a widespread and systematic attack against the non-Serb population pursuant to a discriminatory policy by the Serbian Autonomous Regions in Bosnia and their armed forces in order to bring about a Greater Serbia and Tadić was knowingly involved.104 4.4 Conclusion The Tadić decisions up to 1998, the time of the Rome Conference, are important. On the face of the texts, the definition of Article 5 of the icty Statute is vastly different from Article 3 of the ictr Statute. Nevertheless, by resort to its view of customary law, the Tribunals in The Tadić decisions were able to bring them together. It held that the war nexus had been abandoned by states and instead the ‘true’ definition was that of a widespread or systematic attack of a collective, discriminatory nature against a targeted population pursuant to a policy of a state or de facto power (or possibly even a less defined ‘organisation’ or ‘group’) to commit such acts. It branded such a norm as customary on very limited material, particularly as at 1991. The ictr Trial Chamber in Semanza noted that the case-law did not ‘fully articulate’ the basis of state custom in support of the ‘widespread or systematic’ test, saying the Trial Chamber in Tadić had reviewed the ‘limited practice’ on this issue.105 As a matter of state practice, the most persuasive conclusion is that a new norm was emerging during the period 1991–1998 to replace the war nexus as 101 (icty) Tadić – Trial, above n 6, [654]–[655]. 102 (icty) Tadić – Trial, above n 6, [645]. 103 (icty) Tadić – Trial, above n 6, [652], [659]. 104 (icty) Tadić – Trial, above n 6, [660]. 105 (ictr) Prosecutor v Semanza (Trial Chamber Judgment), Case No ICTR-97-20-T (15 May 2003) (‘Semanza – Trial’), [329].

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the international or contextual aspect of crimes against humanity with the new test of a state or de facto power inspired widespread or systematic attack against a targeted population. It was still being ‘crystallised’, particularly the ­requirement for a discriminatory animus. Nevertheless, as discussed further below, the decision of the icty Trial Chamber in Tadić was very influential in the minds of the delegates and drafters at the Rome Conference. It was seen as the ‘latest word’ on the crimes’ customary law definition. It would seem that the ‘rules laid down by judges have generated custom, rather than custom [which has] generated the rules’106 5

Article 7 of the icc Statute

5.1 The Rome Conference ( July 1998) A total of 160 states, 33 international organisations and 236 non-governmental organisations (ngo’s) participated in the Rome Conference, held from 15 June to 17 July 1998.107 On 17 June 1998, the definition of crimes against humanity was discussed in the Committee of the Whole.108 Similar issues arose as had arisen at the Ad Hoc and Preparatory Committees. While many states considered that crimes against humanity could be committed in peacetime,109 some states (including China, India, Russia and some Middle Eastern states) expressed the view that 106 John Gray, The Nature and Sources of the Law (New York University Press: New York, 1937) 297. 107 The United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (‘Rome Conference’) was convened pursuant to ‘Establishment of an International Criminal Court’, un ga Resolution 52/160, un gaor, 52nd sess, 72nd plen mtg, un Doc. A/RES/52/160 (15 December 1997). For some of the major writings on the negotiations over Article 7 at the Rome Conference see: Kirsch and Holmes, above n 84; and Darryl Robinson, ‘Defining "Crimes Against Humanity" at the Rome Conference’ (1999) 93(1) American Journal of International Law 43. 108 See Hwang, above n 2, 494–495: based on the author’s notes of the Proceedings. The Committee of the Whole was the forum where government delegations expressed their general positions on issues, which were then referred to working groups and coordinators: Kirsch and Holmes, above n 84, 3. 109 Schabas, above n 70, 147 (Germany, Belgium, Czech Republic, Malta, Brazil, Denmark, ­Lesotho, Poland, Trinidad and Tobago, Australia, United Kingdom, Argentina, France, Cuba, Thailand, Slovenia, Norway, Cote d’Ivoire, South Africa, Egypt, Mexico, Colombia, Iran, us, Spain, Romania, Senegal, Venezuela, Italy, Ireland, Canada, Guinea, Switzerland, Sweden, Portugal, Yemen, Vietnam, Netherlands, Bahrain, Benin, Japan, Bangladesh, ­Niger, Austria, Uruguay, Sierra Leone, Israel, Chile, Kenya).

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crimes against humanity ought to be limited to situations of armed conflict.110 Other states framed the issue as whether crimes against humanity could apply to internal as well as international armed conflicts111 or thought that the term ‘civilian population’ implied an armed conflict nexus.112 Similarly, there was considerable disagreement over whether the criteria of ‘widespread’ and ‘systematic’ should be treated cumulatively or as alternatives.113 The French ­delegate raised the requirement of a discriminatory motive, but three delegates spoke against this.114 The definition was next discussed in a working group on 22 June 1998.115 Two states (China and Turkey) still sought a link with armed conflict.116 The treatment of ‘widespread’ and ‘systematic’ as either alternative or cumulative criteria continued to be debated with two states proposing deletion of ‘widespread’ altogether.117 The ‘Like-Minded’ group118 argued that the disjunctive test was established by existing authorities.119 The uk argued that planning by a government or an organisation ought to be a requirement, and the us proposed that ‘systematic’ means an ‘attack that constitutes or is part of, a preconceived plan or policy, or repeated practice over a period of time’.120 France no longer argued for a discriminatory motive which was not pursued by any other state.121 On 1 July 1998, when matters appeared to have reached a standstill,122 Canada123 issued a Background Paper on Some Jurisprudence on Crimes against 110 Hwang, above n 2, 495; Steven Ratner and Jason Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (2nd rev. ed, Oxford University Press: Oxford, 2001) 56; Schaack, above n 33, 841–844. Robinson says this was ‘strongly felt’ by a minority of delegations: above n 107, 45. 111 Schabas, above n 70, 147 (Syria, United Arab Emirates, Bahrain, Jordan, Lebanon, Belgium, Saudi Arabia, Tunisia, Morocco, Malta, Algeria, Costa Rica, Malawi, Sudan, Republic of Korea, Iraq, Russia, Ukraine). 112 Schabas, above n 70, 147 (Jamaica). 113 Hwang, above n 2, 495. 114 Hwang, above n 2, 495. 115 Hwang, above n 2, 495. 116 Hwang, above n 2, 496. 117 Hwang, above n 2, 496. 118 An informal group of more than 60 countries that were generally in favour of a strong and independent court: see Kirsch and Holmes, above n 84, 4; and McCormack, above n 2, 181. 119 Robinson, above n 107, 47; McCormack, above n 2, 186. 120 See ‘ngo Coalition for an International Criminal Court (Definitions Team), Informal Report’ (23 June 1998): Hwang, above n 2, 496. 121 Ibid. 122 Kirsch and Holmes, above n 84, 5. 123 Canada’s legal adviser, Kirsch, chaired the Committee of the Whole: Broomhall, above n 67, 72.

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Humanity.124 It argued (relying on the Tadić Jurisdiction Decision)125 that customary international law no longer required a link with armed conflict and (relying on the Tadić Trial)126 that, whilst ‘widespread’ or ‘systematic’ ought to be alternatives, all crimes must be carried out pursuant to some governmental, organisational or group policy.127 It put forward a compromise chapeau which read as follows:128 (1) For the purpose of the present Statute, a crime against humanity means any of the following acts when knowingly committed as part of a widespread or systematic attack against any civilian population… (2) For the purpose of paragraph 1: (a) ‘attack against any civilian population’ means a course of conduct involving the commission of multiple acts referred to in paragraph 1 against any civilian population, pursuant to or knowingly in furtherance of a governmental or organisational policy to commit those acts’. As discussed in Chapter 5, the requirement of a governmental or organisational policy as a prerequisite of all crimes against humanity was subsequently rejected by the icty and the ictr.129 One may speculate whether the final outcome of the Rome Conference may have been different had this rejection occurred by that time.130 On 1 July 1998, at an informal session, some delegations thought the Canadian draft went too far, whilst others thought it did not go far enough.131 Amongst those who thought the draft went too far, China continued to press for the nexus with armed conflict. In addition, some delegations feared the term ‘commission of multiple acts’ – which could merely be more than one act – did not ensure that the attack was committed on a ‘massive’ scale.132 In addition, according to Robinson:133 124 Canadian Delegation, ‘Background Paper on Some Jurisprudence on Crimes against Humanity’ (1 July 1998): Hwang, above n 2, 497. 125 (icty) Tadić – Jurisdiction, above n 6; see also Chapter 4, Section 3.1. 126 (icty) Tadić – Trial, above n 6. 127 Hwang, above n 2, 497. 128 Hwang, above n 2, 497. 129 See Chapter 4, Section 3.4, especially (icty) Kunarac – Appeal, above n 29. 130 This point has been made by Sadat: see Leila Nadya Sadat, ‘Crimes Against Humanity in the Modern Age’ (2013) 107(2) American Journal of International Law 107, 351. 131 Hwang, above n 2, 497–498. 132 Hwang, above n 2, 497–498. 133 Robinson, above n 107, 47.

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…another sizable group of delegations, including some Permanent members of the Security Council and many delegations from the Arab Group and the Asian Group, pointed out that, as a practical matter, a disjunctive test would be overinclusive. For example, a legitimate question was raised whether the “widespread” commission of crimes should be sufficient, since a spontaneous wave of widespread, but completely unrelated crimes does not constitute a “crime against humanity” under existing authorities. Amongst those who thought the draft was too restrictive, Costa Rica raised concerns about the difficulties a prosecutor would face in having to prove the existence of a policy in all cases.134 On 3 July 1998, the Chair of the Informals on Crimes Against Humanity, whilst noting that some delegates had problems with ‘knowingly’ and ‘multiple acts’, adopted it.135 On 6 July 1998, recognising that agreement would not be reached on a range of controversial issues, the Bureau of the Committee of the Whole released a Discussion Paper aimed at a compromise package.136 The definition of attack was revised and it read:137 7(2) … ‘Attack 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 organisational policy to commit such attack. The changes from the Canadian proposal were subtle: ‘commission of multiple acts’ became ‘multiple commission of acts’ (because otherwise the expression may be taken to require more than one separate category of crimes in paragraph 1);138 the word ‘knowingly’ was removed (probably because of a fear that it may mean the prosecutor would have to prove that all parties ­behind the 134 Robinson, above n 107, 47. 135 At the Rome Conference, there were two types of working groups, the formal and the informal. The “Informals”, as it became known, commissioned subcommittees for various topics, one being a subcommittee on crimes against humanity: Kirsch and Holmes, above n 84. McCormack says the Chair insisted on the removal of the war nexus over the objection of at least two states: above n 2, 185. 136 See Bureau Discussion Paper, un Doc. A/Conf.183/C.1/L.53 (6 July 1998), 2–3; Kirsch and Holmes, above n 84, 5; Broomhall, above n 67, 74; and Hwang, above n 2, 500. 137 Bureau Discussion Paper, above n 136, 2–3. 138 Robinson, above n 107, 48.

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­attack were acting with knowledge of the policy);139 ‘policy to commit such acts’ became ‘policy to commit such attack’ (so that the policy need not encompass the specific crimes charged such as rape);140 and ‘governmental’ became ‘State’. Outside the chapeau elements, Schabas points out that the draft did a number of other things. First, it reordered the list of crimes, placing crimes against humanity behind genocide and before war crimes, which Schabas argues implicitly suggests an alteration in the hierarchy of the international crimes.141 Secondly, the Bureau paper left out any discriminatory motive after it received no support whatsoever in the general debate.142 Thirdly, the Bureau draft also included the crime of apartheid (without opposition) and enumerated a number of gender crimes (for which it noted ‘[f]urther discussion is needed’).143 The paper also noted proposals to include terrorism and economic embargoes within the category of crimes against humanity, but these proposals ultimately had little support and were dropped.144 Apart from a minor grammatical change,145 the draft became Article 7 of the icc Statute which was adopted by 121 votes to 8 with 23 abstentions. The vote was not recorded, but it is known that states which opposed the draft included the United States, India, China and Israel. On the one hand, the immediate reaction of most human rights commentators to Article 7, and in particular its definition of ‘attack against any civilian population’, was to criticise it for defining crimes against humanity more narrowly than that required under customary law. For example, such complaints were made by the South Asian Human Rights Documentation Centre and ­Human Rights Watch.146 On the other hand, the definition required neither a link to armed conflict nor a discriminatory motive.147 The latter could be considered a ­somewhat 139 See the view expressed in the South Asian Human Rights Documentation Centre, “The North American Re-Write of Customary International Law: An ‘And’ By Any Other Name is Still an ‘And’” (2 July 1998), quoted in Hwang, above n 2, 499. 140 This was the concern of the Women’s Caucus: see Hebel and Robinson, above n 2, 95–96 fn 47. 141 Schabas, above n 70, 142–143. 142 Schabas, above n 70, 157. 143 Schabas, above n 70, 143. 144 Schabas, above n 70, 143. 145 The final ‘and’ in paragraph 1 was substituted with a comma: see Hwang, above n 2, 501 fn 259; Kirsch and Holmes, above n 84, 6–8. 146 See Schaack, above n 33, 498–500. 147 See Robinson, above n 107, 46–47.

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s­urprising result given that, even though it was not a requirement under ­Article 6(c) of the London Charter other than for the crime of persecution, several sources since then suggested a policy of persecution was, or had by 1998, become an element of the offence under customary law. Legislation from ­Australia and jurisprudence from Canada and France,148 the submissions of states on the draft icty Statute, both Commissions of Experts on the icty and the ictr Statutes, the Secretary-General’s Report on the draft icty Statute, Article 3 of the ictr Statute and the Tadić Trial Judgment all suggested that this was a necessary element. The remaining controversy was whether the required ‘attack’ should be ‘widespread and systematic’ or ‘widespread or systematic’. In the end, a compromise was reached by the device of introducing a definition of ‘attack against any civilian population’ which requires in all cases both a ‘policy element’ and the multiple commission of acts covered by The Article. As Hwang states: ‘As can be said of much of the Rome Statute, the definition of crimes against humanity in Article 7 gives cause for celebration in certain respects and continued vigilance or possible concerns in others’.149 Similarly, Bassiouni concludes ‘…the icc is a product of compromise, and like other international and national legal institutions it must sacrifice efficiency in order to safeguard other competing interests, such as state sovereignty and the right of those who will be impacted by its process’.150 5.2 The Chapeau Requirements of Article 7 The analysis below flags the difficult areas of interpretation in the chapeau requirements of Article 7 that the icc will confront in the future. In Chapter 9, after consideration of state practice since the Rome Conference, further ­analysis is provided of these difficult issues of interpretation. An analysis of the individual offences within Article 7 is provided for in Chapter 10. 5.2.1

A Widespread or Systematic Attack against Any Civilian Population Prior to 1998, there was some case law which held that members of the military could be a victim of a crime against humanity.151 The word ‘civilian’ was in brackets before the Rome Conference and some delegations at Rome

148 149 150 151

See Chapter 3, Sections 4.3 and 4.4. Hwang, above n 2, 501 Bassiouni, above n 21, 211. See Chapter 3, Section 2.3.3.

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q­ uestioned whether the term ‘civilian population’ should be removed.152 It remained in the draft probably because of the precedents in the icty and ictr Statutes. Cassese suggests a member of the armed forces may not be a victim of crimes against humanity under Article 7 but that this is narrower than customary law.153 This is considered further in Chapter 9. The ‘widespread or systematic attack against any civilian population’ test may be criticised on the grounds of lack of specificity, particularly for a criminal offence. It implies some element of scale and seriousness, but against what standard are such matters to be measured. The debate at the Conference does not assist in providing any specificity to the meaning to be given to these words. There was no clear statement at the Rome Conference as to the juridical or philosophical basis of crimes against humanity in international law without a war nexus. At the 1945 London Conference, it was Justice Jackson’s statement – that it is only when domestic crimes are committed in connection with aggression that other countries can become involved – which shaped the definition of crime against humanity at Nuremberg.154 Without some alternative defining principle, the ‘widespread or systematic’ test remains largely indeterminate. This is considered further in Chapter 8. 5.2.2 A Course of Conduct Involving the Multiple Commission of Acts This requirement is novel and clearly represents a political compromise. Literally, ‘the multiple commission of acts’ means more than one act – for e­ xample, two murders. It may be argued that two such crimes could not constitute an ‘attack on a civilian population’ because that term, as understood in ­customary international law, imports some minimal level of scale.155 For example, ­Robinson says ‘the plain meaning of the term “attack directed against any civilian population” implies some element of scale’.156 In addition, the history of its drafting suggests it was inserted in the definition to ensure some minimal level of scale for a purely ‘systematic’ attack, thereby bringing about a compromise between those delegations which regarded the qualifiers ‘widespread’ 152 Robinson, above n 107, 47 fn 22, and 51 fn 50; see also Hwang, above n 2, 496 and The Inter­ national Criminal Court: A Commentary on the Rome Statute (2nd ed, Oxford University Press: Oxford, 2016), 154. 153 Antonio Cassese, International Criminal Law (Oxford University Press: Oxford, 2003) 85–93. 154 See Chapter 2, Section 2. 155 See Chapter 3, Section 5.3 and Chapter 4, Section 4.3; Robinson, above n 107, 48; and ­Dixon, ‘Commenting on Article 7’, above n 2, 123. 156 Robinson, above n 107, 48 (emphasis added).

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and ‘systematic’ as cumulative requirements and those who saw them as true alternatives. Hence, the term ‘multiple commission of acts’ perhaps should not be taken as a code for when the requirement of scale is satisfied. But just when this element is satisfied remains elusive. This would suggest that, say, two ‘inhuman acts’, could not on their own, without more, constitute a ‘course of conduct’ amounting to ‘an attack directed against a civilian population’. Robinson, who was part of the Canadian delegation which drafted the definition, says ‘multiple commission of acts’ is a requirement less than ‘widespread’, which of course is a vague test in itself.157 On the other hand, one act of extraordinary magnitude – such as the dropping of a chemical bomb on a village leading to the extermination of thousands - may not come within the definition, unless ‘multiple acts’ covers a case involving one act of the perpetrator where there is more than one victim. The ilc in 1996 noted that the ‘widespread’ criteria could be fulfilled by the ‘singular effect of an inhumane act of extraordinary magnitude’.158 This certainly makes common sense. Accordingly, if taken literally, the term, ‘multiple commission of acts’, may lead to crimes against humanity under Article 7 having a meaning which is both narrower and broader than that under customary law. The matter is considered further in Chapters 8 and 9. 5.2.3 The Requirement of a Policy Article 7 requires the attack to be pursuant to, or in furtherance of a state or organisational ‘policy’ to commit such an attack. This is one of the controversial aspects of Article 7 because the ad hoc Tribunals since the Rome Conference have held it is not a requirement under customary law.159 On the one hand, Robinson argues that the mere existence of a policy is a low threshold relative to the ‘systematic’ test.160 Hence, he writes, it is wrong to say that ‘attack’, as defined in Article 7, must be both widespread and ­systematic. 157 Robinson, above n 107, 47. 158 Report of the International Law Commission on the work of its forty-eighth session, 6 May – 26 July 1996, un gaor, 51st sess, supp. 10, un Doc. A/51/10 (26 July 1996) (‘1996 ilc Report’), 95. 159 (icty) Kunarac – Appeal, above n 29, [98]; Prosecutor v Blaškić (Appeals Chamber Judgment), Case No IT-95-14-A (29 July 2004) (‘Blaškić – Appeal’), [100], [120], [126] and [130]. 160 Robinson, above n 107, 47. In support of a high threshold for the ‘systematic’ test, ­Robinson cites (ictr) Akayesu – Trial, above n 65, [580] which was delivered after the Rome Conference, where it held ‘The concept of systematic may be defined as thoroughly organised and following a regular pattern on the basis of a common policy involving substantial public or private resources’.

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He argues the result lies somewhere between treating, ‘widespread’ and ‘systematic’ cumulatively or as alternatives. He draws on a wealth of sources discussed in Chapter 3, as well as the Tadić Trial Judgment, to conclude that the “plain meaning of the phrase ‘attack directed against any civilian population’ [as well as implying an element of scale] also implies an element of planning or direction (the ‘policy element’)”.161 On the other hand, others, such as Judge Hunt of the icty, have criticized the definition as setting too high a threshold for the prosecution and beyond that set by customary law.162 At the time of the Conference, human rights commentators, such as Human Rights Watch, declared that the ‘policy’ requirement may take the matter beyond ‘systematicity’ as understood under ­customary law: While systematic has an established meaning in international law and can be demonstrated by a pattern of official actions or tolerance of abuse, ‘governmental or organisational policy’ may be susceptible to a narrower interpretation, such as a showing of affirmative and formal administrative acts.163 Cassese appears to take the same view.164 It has support in the icc Elements of Crimes, which provides that a ‘policy to commit such an attack’ requires that the State or organization ‘actively promote or encourage such an attack against a civilian population’.165 The Elements of Crimes provide that a policy may ‘in exceptional circumstances, be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack’.166 161 Robinson, above n 107, 47–51; see also Dixon, ‘Paragraph 2: Definitions of Crimes of Their Elements – (a) Attack’ in Triffterer, above n 2, 158, 158–159. 162 See David Hunt, ‘The International Criminal Court: High Hopes, Creative Ambiguity and an Unfortunate Mistrust in International Judges’ (2004) 2 Journal of International Criminal Justice 56, 64–66. He called the policy requirement ‘insidious’. 163 See Hwang, above n 2, 499 fn 252. See also The South Asian Human Rights Documentation Centre, “An ‘And’ By Any Other Name is Still an ‘And’”, above n 139, 499 fn 249. 164 Antonio Cassese, Cassese’s International Criminal Law (Oxford University Press: Oxford, 3rd ed, 2013) 106–107. 165 (icc) Elements of Crimes, Article 7, Introduction, [3]. 166 (icc) Elements of Crimes, Article 7, Introduction, fn 6, applied in Authorisation of an Investigation into the Situation in the Republic of Kenya (Pre-Trial Chamber ii Decision), ICC-01/09-19-Corr (31 March 2010) (‘Kenya – Authorisation’), [83]; and Prosecutor v Ruto et al. (Pre-Trial Chamber ii Confirmation Decision), ICC-01/09-01/11-373 (5 February 2012) (‘Ruto – Confirmation’), [210].

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However, the ‘policy element’ in Article 7 should be seen in the context of its drafting and what preceded it. At Nuremberg, Article 6 provided that the Tribunal only had jurisdiction when the defendants were ‘acting in the interests of the European Axis countries’.167 Hence, the requirement of a link to a state was common to all offences, not just crimes against humanity. Since Nuremberg, as discussed in Chapter 3, case law and scholars generally suggested that there was a need for a link between crimes against humanity and some ‘state policy’ or system of totalitarian rule. Some cases suggested that loose forms of state toleration or acquiescence, including failing to prosecute after the event,168 or even state impotency,169 may be enough to elevate domestic crimes to a crime against humanity if there is a link with some ‘state policy’ or system of totalitarian rule. This position makes sense in the context of the raison d’être of crimes against humanity. The perpetrator’s de facto impunity elevates the crime to the international stage. It is in such circumstances that the perpetrator is no longer an ‘ordinary criminal’ because he has the support of the state. What the Tadić Trial Chamber Judgment did was to include a de facto power, such as the Serbian forces in Bosnia, as the equivalent of a state for the purposes of the policy element. Hence, up to 1998, the ‘policy element’ for all crimes against humanity was commonly conceived as requiring some link between the acts of the perpetrator and a state or de facto power. This did not necessarily require the showing of affirmative and formal administrative acts. This history, including the remarks of the Trial Chamber in Tadić discussed above,170 all suggests that there should not be a narrow interpretation of the ‘policy element’ under Article 7. 5.2.4 State or Organization Closely linked to the question of the meaning of the ‘policy element’ in ­Article 7 is the breadth of interpretation to be given to the word organization in ­Article 7. Robinson after the Rome Conference argued against those who were critical of the policy element in Article 7 claiming that its potential for narrowing the scope of the offence is ameliorated by the inclusion of non-state 167 See Chapter 2, Section 5.3. 168 (Nuremberg) See the case law of the German Supreme Court under ccl 10, particularly the case of Weller, Decision of the Supreme Court for the British Zone (21 December 1948) in oghbz, vol i, 203–208, and the work of the ilc, particularly in 1954 (discussed in Chapter 3, Sections 2.3 and 3.3.2 respectively). 169 (Nuremberg) The Einsatzgruppen Case, above n 88, discussed in Chapter 3, Section 2.2.3. 170 See Section 3 above and (icty) Tadić – Trial, above n 6, [653]–[655].

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­‘organizations’ whose policy can ground a crime against humanity.171 There is nothing in Article 7 or the Elements of Crimes to assist in the meaning of ‘organization’. The question arises as to whether it is to be limited to a de facto power with state like features or can it be something broader? At the time of the Rome Conference, there were two broad camps. The first camp saw as an essential feature of a crime against humanity its political ­element – meaning the existence of an attack which was being pursued to further some policy of a state or state like political power. Apart from the sources mentioned in Chapter 3, well known scholars Cassese172 and Bassiouni173 supported this view, at least so far as extant customary law was concerned. The other camp saw the defining feature of a crime against humanity in its consequences and purposes, being a widespread or systematic attack directed against a civilian population and the qualifiers ‘widespread or systematic’ were true alternatives. Whilst a random or isolated act by a sole perpetrator could not amount to a crime against humanity, if the ‘attack’ was carried out by some organization or group, including, for example, a terrorist group or criminal gang, then this could amount to a crime against humanity as long as the attack was either widespread or systematic. Most human rights organizations such as Amnesty International and Human Rights Watch supported this approach at the Conference. The main source supportive of such a view at the time of the Rome conference was the ilc in its 1991 and 1996 commentary to its Draft Code.174 The Trial Chamber in Tadić left the issue open.175 The sources canvassed in Chapter 3 and above lead to the conclusion that as at 1998, as a matter of customary law, an attack by a criminal gang or a terrorist group without links to a state or de facto political power would be unlikely to amount to a crime against humanity. The Conference, however, was not bound by extant customary law. It may be of some relevance that at the Rome Conference India, Sri Lanka, Algeria, and Turkey proposed that terrorism be included within the definition of crimes against humanity, but this did not occur.176 Similarly, the governments of Barbados, Dominica, Jamaica and Trinidad and Tobago (originally in 1992) – with the support of the Vatican – called for a permanent international court to prosecute international drug traffickers, but this

171 Robinson, above n 107, 47. 172 Cassese, above n 153, 64. 173 Bassiouni, above n 21, 273–275. 174 Discussed at Chapter 3, Section 3.3.2. 175 (icty) Tadić – Trial, above n 6, [645], [654]–[655]. 176 Hebel and Robinson, above n 2, 85–86.

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too was not taken up.177 There was no consensus at Rome for including the crimes of international criminal gangs or terrorists, without more, within the purview of the icc. The records do not reveal any express references to the breadth to be given to the concept of an ‘organization’ by state delegations at the Rome Conference. The Swiss delegation at the Rome Conference questioned why, contrary to the formula in Tadić, the draft did not refer to the policy of a ‘group’ as well as that of an ‘organization’.178 According to Robinson, to the extent that there is a difference between ‘group’ and ‘organisation’, at Rome ‘it was considered that the planning of an attack against a civilian population requires a higher degree of organization, which is consistent with the latter concept’.179 However, according to Bassiouni, the term ‘organizational’ was intended to cover other units of the state such as the military, intelligence services, the police or similar organizational units.180 Absent further elucidation, it may be argued that the ordinary meaning of the word ‘organization’ should at least include a de facto power. This is consistent with the non-state actors under consideration by the icty Trial Chamber in Tadić – a judgment at the forefront of the minds of the drafters – namely, ‘forces which, although not those of the legitimate government, have de facto control over, or are able to move freely within, defined territory’181 (emphasis added). Ambiguity about the word ‘organization’ has relevance to interpreting the policy requirement. Militias with only a loose or indirect connection with a state frequently carry out atrocities. For example, there were Arkan’s Tigers in Bosnia, the Interahamwe in Rwanda and around 23 militia in East Timor in 1999. All gained support from state or municipal agencies and, hence, their attacks may amount to crimes against humanity as matter of customary law. If these groups are ‘organizations’ within the meaning under Article 7, then the policy requirement under Article 7 will be of less significance. Alternatively, if they are not ‘organizations’ and if the policy requirement is i­nterpreted 177 Hebel and Robinson, above n 2, 85–86; see also Geoffrey Robertson, Crimes Against ­Humanity: The Struggle for Global Justice (Penguin: London, 2000) 328. 178 Hwang, above n 2, 498. 179 Robinson, above n 107, at 50 fn 44. 180 M. Cherif Bassiouni, Crimes Against Humanity – Historical Evolution and Contemporary Application (Cambridge University Press: New York, 2011) 24, 28; and William Schabas, ‘State Policy as an Element of International Crimes’ (2008) 98(3) Journal of Criminal Law and Criminology 953, 973 (‘As I understand [Bassiouni’s] view, the term organization is meant to encompass bodies within a State such as the Gestapo and the ss’). 181 (icty) Tadić – Trial, above n 6, [654].

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­ arrowly, then the activities of private militia or secret death squads who n ­carefully distance themselves from any official links with the state may fall outside the definition in Article 7. In considering whether a criminal gang or a terrorist group can be an ‘organization’ within the meaning of Article 7, it needs to be borne in mind that under the icc Statute, unlike the case of the icty and the ictr, the principle of complementarity governs.182 This principle is expressed in Article 17, which states that it is only if the relevant state is ‘unable or unwilling’ to investigate and prosecute the perpetrators that the icc will have jurisdiction. As has been remarked, ‘[t]he theme of complementarity runs through the Statute, coming in at many places, but it is clear it is a major aspect of the icc’.183 For example, if states are vigorously pursuing a non-state actor, such as a terrorist organisation or criminal gang, then the icc will not have jurisdiction. This is consistent with the impunity principle outlined in Chapter 3 – the principle that crimes against humanity only arise when the defendant by reason of his links to a state or de facto power enjoys impunity from prosecution by the territorial or national state. The principle of complementarity reflects, for example, the remarks of the post-war us military tribunal in Einsatzgruppen: Crimes against humanity … can only come within the purview of this basic code of humanity because the State involved, owing to indifference, impotency or complicity, has been unable or has refused to halt the crimes and punish the criminals.184 In the past, the jurisdictional role played by this element discussed in Chapter 3 has often been underappreciated. Certain elements of a crime against humanity (such as the requirements of scale or the policy element) exist in order to prevent international criminal law overreaching into the domain of a state’s municipal criminal justice system. It may be legitimate to give a broad meaning to the term ‘organization’ in Article 7 (perhaps beyond its customary law meaning, so as to include criminal gangs or a terrorist group) because, under the principle of complementarity, this will not lead to any excessive interference in a state’s ordinary criminal jurisdiction over non-state actors because 182 For some writings on the principle: see Sharon A. Williams, ‘Article 17’ in Triffterer, above n 2, 383; and John T. Holmes, ‘Complementarity: National Courts and the icc’ in Antonio Cassese, Paula Gaeta and John R.W.D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press: Oxford, 2002) 667. 183 Cryer, above n 59, 146. 184 (Nuremberg) The Einsatzgruppen Case, above n 88, 498.

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if the state is at least willing and able to punish the perpetrators, the icc will have no jurisdiction. 5.2.5 The Special Mens Rea Article 7 requires the accused to have the special mens rea of being knowingly involved in a widespread or systematic attack. Was this a requirement under existing customary law? Before the Rome Conference of 1998, the issue was far from clear. Chapter 2 argued that under the Nuremberg Precedent crimes against humanity were ‘ordinary crimes’, analogous to war crimes or serious domestic crimes which did not require any special mens rea requirement.185 As argued by Schwarzenberger, the strongest juridical basis for the crimes in international law rests upon ‘the general principles of law recognized by the community of nations’.186 Similarly, many post-Second World War decisions grounded crimes against humanity in ‘the general principles of the penal laws of States’ and did not require any special mens rea.187 A special mens rea was not included in any of the ilc Draft Codes.188 The issue was controversial in Finta and split the Supreme Court of Canada. The majority accepted the expert view of Professor Bassiouni and held that the defendant must be aware of all the facts or circumstances that bring the acts within the definition of crimes against humanity.189 The majority ruling was criticised at the time as placing an unnecessary burden on the prosecution.190 Cory J in Finta stated that there needed to be a special mens rea because: [t]he degree of moral turpitude that attaches to crimes against humanity and war crimes must exceed that of the domestic offences of manslaughter and robbery. It follows that the accused must be aware of the conditions which render his or her actions more blameworthy than the domestic offence.191 185 See Chapter 2, Sections 5.2. 186 Georg Schwarzenberger, International Law as Applied by International Courts and Tribunals (Stevens: London, 1968) vol ii, 23–27. 187 See Chapter 3, Section 2. 188 See Chapter 3, Section 3.3.2. 189 (Canada) Regina v Finta [1994] 1 scr 701, 820; see also Chapter 3, Section 4.3. 190 See Judith Bello and Irwin Cotler, ‘Regina v Finta’ (1996) 90(3) American Journal of International Law 460. 191 (Canada) Regina v Finta, above n 189, 820.

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This rationale has been repeated by Robinson,192 and by the Appeals Chamber in Tadić.193 Similarly, Arendt and Sadat-Wexler argue that to equate wholly the elements of crimes against humanity with domestic crimes ‘banalizes it’,194 or, as Bassiouni puts it, this would remove from the crime its exceptional ­international content.195 It is, in essence, a moral argument to explain why the international community should intervene when otherwise it would not do so for ordinary domestic crimes. The special mens rea requirement, like the policy element and the requirement of scale, also acts as a curb on international interference in a state’s criminal justice system and, hence, would have been attractive to some state delegations at Rome. This view, whilst commonly held, is not universal. According to de Menthon (the French Prosecutor at Nuremberg),196 Herzog,197 Aroneanu198 and Garcia-Mora (in the context of extradition law),199 crimes against humanity are ‘ordinary crimes’ committed in special circumstances. La Forest J, in dissent in Finta, stressed that the charges of crimes against humanity were based on Canadian domestic offences. They require, he held, the same mens rea and have no additional stigma.200 La Forest J found that state sanctioned persecution of a group or population was the jurisdictional threshold which allowed Canada to invoke universal jurisdiction, it did not affect the degree of individual culpability.201 Whilst the Statutes of the icty and the ictr are silent on the matter, 192 Darryl Robinson, ‘Defining Crimes against Humanity at the Rome Conference’ (1999) 93(1) American Journal of International Law 43, 52. 193 (icty) Tadić – Appeal, above n 31, [271]. 194 Hannah Arendt, Eichmann In Jerusalem: A Report on the Banality of Evil (1963) 272. This also is the view of Sadat-Wexler: see Leila Sadat-Wexler, ‘The Interpretation of the Nuremberg Principles by the French Court of Correction: From Touvier to Barbie and Back Again’ (1994) 32 Columbia Journal of Transnational Law 289, 358. 195 Bassiouni, above n 21, 243. 196 See (Nuremberg) 1 Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945–1 October 1946, 27, 65–67. 197 Jacques-Bernard Herzog, ‘Contribution a l’étude de la définition du crime contre l’humanité’ (1947) 18 Revue Internationale De Droit Pénal 155, 164. It should be pointed out that Herzog came to his view on the premise that the world had not yet developed an international penal code: 170. 198 Eugéne Aroneanu, ‘Le crime contre l’humanité’ (1946) 13 Nouvelle Revue de Droit International Privé 369, 411. 199 See Manuel Garcia-Mora, ‘Crimes against Humanity and the Principle of Non-extradition of Political Offenders’ (1964) 62 Michigan Law Review 927, 944–953. 200 (Canada) Regina v Finta, above n 189, 754–755. 201 (Canada) Regina v Finta, above n 189, 754–755.

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Finta was followed by the Trial Chamber in Tadić without analysis, probably because an alibi defence was raised rather than any question of intent.202 It is not entirely persuasive to argue that the moral culpability of the perpetrator of crimes against humanity is or ought to be greater than that for ­perpetrators of domestic crimes. If one considers the many diverse defendants that have been charged with crimes against humanity, they have not all been high ranking state officials but have included foot soldiers and poorly educated villagers who have succumbed to the political circumstances of the time when otherwise they may never have turned to ‘crime’. The 17-year-old Nazi recruit or the villager who joins a militia in East Timor does not necessarily act in a more ‘heinous’ manner than the ordinary rapist or murderer. Following a state directive may in fact be a mitigating circumstance at least so far as sentence is concerned. The jurisprudence of the German Supreme Court under Control Council Law 10203 and the Special Panels in East Timor,204 demonstrate that it is not correct to say that a person convicted of, say, murder, as a crime against humanity deserves greater punishment than one convicted of the domestic crime of murder. Until Milošević fermented a culture of hate, Tadić, the ordinary café owner, may never have taken to torturing his fellow Bosnians. It is both the scale of the ‘attack’ (judged by its effect on the victims) and the special political circumstances of impunity which brought forth that attack which leads to a call for an international reaction. It is not the heinousness of the individual acts of defendants or the degree of their moral turpitude which defines a crime against humanity. At best, some level of heightened moral turpitude may come with the knowledge of knowing that a person’s otherwise ordinary crime is furthering the horror of the overall attack. Further, it obviously raises the burden for the prosecution. The icc may face the difficulty of finding a defendant guilty of say rape or murder, but not guilty of crimes against humanity due to the prosecution being unable to satisfy the special mens rea, leading to the defendant being released. For example, consider the case of two Serbians in Bosnia who are found to have raped a Muslim civilian. One may be guilty of a crime against humanity if aware of an attack on Muslims at the time, whilst the other may be acquitted if such knowledge cannot be proven. International judges may be tempted to infer knowledge by less than satisfactory evidence to avoid an acquittal. 202 (icty) Tadić – Trial, above n 6, [658]–[659]. 203 See Chapter 3, Section 2 and in particular the authoritative collection of cases in Justiz und NS-Verbrechen in respect of the prosecution of Nazi criminals generally. 204 See Chapter 6, Section 2.3.

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At Rome, the special mens rea requirement was incorporated into Article 7 with little debate about the matter. This was likely because few states were pushing for an offence less onerous than that set out in the Tadić Trial Judgment.205 Robinson, however, remarks that some observers at Rome in 1998 suggested that the special knowledge test ought not to be required.206 On the other hand, some delegations agreed to exclude the defence of superior orders for ‘orders to commit crimes against humanity’ in Article 33 ‘subject to the understanding that the definition of crimes against humanity … will identify an appropriately high level of mens rea’.207 In the result, as discussed in Chapters 5, 6 and 7, the special mens rea requirement in Article 7 has generally not been questioned since and is now firmly a part of customary law. In this sense, Article 7 can be seen as crystallising or clarifying this aspect of the offence. 6 Conclusion There is a great temptation to regard Article 7 as settling the meaning to be given to this difficult international crime under international law.208 At the time of its adoption, it could perhaps be seen as representing the opinio juris of 121 states and Article 7 now has the force of a treaty binding on over 100 states. Some authors and courts have assumed Article 7 is the most authoritative definition of crimes against humanity in international law.209 Different authors have different recollections of whether those at the conference were codifying or progressing the law. Some authors (including Hebel and Robinson) have argued that states at Rome viewed their task as defining the international crimes in question so as to reflect international customary law.210 McCormack, who attended the conference, believes the debate over the underlying crimes suggests some delegations were looking to progressively 205 See Chapter 5, Section 2.2. 206 Robinson, above n 192, 51. 207 Proposed New Text of Article 32, 42nd sess, un Doc. A/CONF.183/C.1/WGGP/L.9/Rev.1 (29 June 1998), cited in Cryer, above n 59, 289–290. 208 See, for example, (ECtHR) Korbely v Hungary (Dissenting Opinion of Judge Loucaides), European Court of Human Rights, App No 9174/02 (19 September 2008). 209 See McCormack, above n 2, 201; William Aceves and Paul Hoffman, ‘Pursuing Crimes against Humanity in the United States’ in Lattimer and Sands, above n 67, 245; and cases discussed in Chapter 7. 210 Hebel and Robinson, above n 2, 91 and fn 40; Leila Nadya Sadat and Richard Carden, ‘The New International Criminal Court: An Uneasy Revolution’ (2000) 88(3) Georgetown Law

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d­ evelop the law as much as codify existing law.211 Ratner and Abrams state that Article 7, since the Rome Conference, has largely been viewed as a codification of existing law, rather than the progressive development of the law.212 The distinction between the two is not always easy to draw and it may depend upon the issue in question. Cassese divides his analysis into areas where the Rome Statute sets out custom, areas where it is narrower than custom, and areas where it is broader than custom: • Areas where the Rome Statute sets out custom: requiring that a crime against humanity be committed ‘with knowledge’ of the attack; and the elements of the underlying crimes of ‘extermination’, ‘enslavement’, ‘deportation or forcible transfer’, ‘torture’, ‘imprisonment’ and ‘other severe deprivation of physical liberty’, ‘rape’, and ‘other inhumane acts’.213 • Areas where Article 7 is narrower than custom:214 the requirement that the target of ‘any civilian population’ (to the extent that it is read not to include military personnel215); the requirement of an ‘attack directed against any civilian population’ (in that it appears to exclude a widespread or systematic attack that is not actively promoted or encouraged by a state or an organization but merely tolerated or condoned); and the crime of ‘persecution’ as requiring a link to other crimes articulated in the statute. • Areas where Article 7 is broader than custom: the additional crimes of forced pregnancy, enforced disappearances, apartheid; and the inclusion of ‘gender’ and ‘cultural’ and ‘other grounds that are universally recognized as ­impermissible under international law’. Similarly, the icty has now held that the definition of persecution216 and the requirement for a policy217 in Article 7 are more restrictive than customary law. Cryer writes that the underlying crimes in Article 7, generally, only give concrete expression to existing law.218 Bassiouni concludes his assessment by Journal 391, 407–410; Mahnoush Arsanjani, ‘The Rome Statute of the International Criminal Court’ (1999) 93(1) American Journal of International Law 22, 26. 211 McCormack, above n 2, 181–182. 212 Ratner and Abrams, above n 110, 50. 213 Cassese, above n 164, 105. 214 Cassese, above n 164, 106–107. See also Cassese, above n 153, 91–94. 215 See Chapter 8, Section 4.1.3. 216 See Section 4.9. 217 (icty) Kunarac – Appeal, above n 29, [98]; and Blaškić – Appeal, above n 159, [100], [120], [126] and [130]. 218 Cryer, above n 59, 256–260.

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saying the expanded crimes ‘reflects the progressive evolution of customary international law’.219 Schabas concludes that the better view is that Article 7 is specific to the Rome Statute and should not be taken as confining the scope of international custom.220 Overall, Article 7 was drafted with the potential for the icc’s jurisdiction over State Parties very much in mind. Whilst state delegations used arguments about customary law to advance their positions, in the end, a compromise definition of crimes against humanity was reached based upon establishing an international court that states could live with for the future, not necessarily one that reflected the crime’s ‘correct’ definition under existing law, a near impossible task at that time in any event. As Kirsch and Holmes put it: Delegations were prepared to consider the inclusion of a broad range of crimes, if the jurisdiction of the court was limited, for example, by requiring State consent on a case-by-case basis or by permitting States to opt in or opt out of certain crimes. Conversely, the possibility of automatic jurisdiction upon ratification of a system close to universal jurisdiction provoked some delegations to argue for a limited range of crimes, narrower definitions and higher thresholds.221 Like the definitions in the icty and the ictr Statutes (and the definition in the London Charter), Article 7 also includes a statement of jurisdiction or threshold for the tribunal in question from which some of the elements of the international crime can be inferred. Each definition may, at the time of enactment, be in part broader as well as narrower than the position in customary law.222 Hence, there is a difficulty in treating Article 7 as reflecting the crime’s ‘true’ definition today, without further evidence of state practice. That said, the contextual or ‘international’ elements of crimes against humanity do involve quasi-jurisdictional notions. When the un endorsed the definition in Article 6(c), it also endorsed the view that one nation after war could prosecute the crimes of other nationals committed against their own nationals even when committed in times of peace The limitations argued for by the Allies at the London Conference (including the war nexus) were motivated by essentially the same concerns as the parties at Rome – a concern 219 220 221 222

Bassiouni, above n 21, 187. Schabas, above n 70, 144. Kirsch and Holmes, above n 84, 5. This is again Cassese’s conclusion: above n 153, 91; see also (icty) Kupreškić – Trial, above n 31, [580].

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about jurisdictional overreach or of international interference in the domestic affairs of states. Accordingly, the adoption of Article 7 at the Rome Conference does on any view carry legal weight, particularly where there is evidence of a consensus by many states as to some of the elements of crimes against humanity as a matter of international law.223 As the Trial Chamber in Furundžija stated, it is evidence of opinio juris of the states at Rome and ‘[d]epending on the matter at issue, the Rome Statute may be taken to restate, reflect or clarify customary rules or crystallise them, whereas in some areas it creates new law or modifies existing law’.224 For example, the Appeals Chamber of the Special Court for ­Sierra Leone, when considering the requirements of a ‘joint criminal enterprise’, stated that the definition in the icc Statute ‘reflects the consensus reached by all of the States negotiating the Statute of the icc at the Rome Conference, and therefore is a valuable indication of the views of States and the international community generally on the question of what constitutes a common purpose.’225 Accordingly, certain comments may be made about Article 7 of the icc Statute. The lack of a discriminatory motive in Article 7, for instance, is significant because only France initially regarded it as an element at the Rome Conference. Similarly, the large consensus that Article 7 should not contain a link to armed conflict supports the abandonment of the war nexus in customary law. For example, McCormack says the abandonment of the war nexus in Article 7 represents ‘the affirmation of a new customary international norm’.226 Whilst the argument has much force, it may be a little simplistic. A small minority of states with large populations, such as India and China, still argued for the nexus. Those states may argue that until their ratification of the icc Statute, they remain objectors to the emergence of crimes against humanity without a war nexus under customary international law, at least as a rule of jurisdiction covering their nationals for acts committed in their own territory.227 More difficult still is the requirement that an ‘attack’ in Article 7 be committed pursuant to a ‘state or organizational policy’ given that this ­requirement 223 McCormack, above n 2, 180 and 186; Robinson, above n 107, 47. 224 (icty) Prosecutor v Furundžija (Trial Chamber Judgment), Case No IT-95-17/1-T (10 December 1998), [227]. 225 (scsl) Prosecutor v Brima, Kamara and Kanu (Appeals Chamber Judgment), Case No SCSL-2004-16-A (22 February 2008), [79]. 226 McCormack, above n 2, 185; see also Robinson, above n 107, 45–46; Hebel and Robinson, above n 2, 92–93; and Ratner and Abrams, above n 110, 57. 227 The issue of the war nexus is considered further in Chapter 7.

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was clearly the result of a political compromise when no clear consensus initially emerged. It therefore may be argued that this special definition was driven by politics and may be narrower than customary law as it existed at the time. On the other hand, there was a general consensus of states at the Rome Conference that because the requirement of a ‘policy’ was stated in the Trial Judgment in Tadić, this reflected the latest and most accurate statement of existing law which should be adopted and followed in Article 7. This supports giving the policy requirement in Article 7 some legal significance as a matter of customary law. Over time, a consensus appears to be emerging that Article 7 ought to be regarded as the authoritative definition of this crime (whatever may have been the prior position under customary law). The possibility of such a position was the view of the Canadian Appeal Court in Mugesera. Given the absence of any other treaty definition, this may occur despite the terms of Article 10 of the icc Statute which says the Statute is not to be used to limit or prejudice existing rules of international law. What is required in order to ascertain the current relationship between Article 7 and customary law is an analysis of state practice since the Rome Conference. This analysis is undertaken in Chapters 5, 6 and 7 and a conclusion is reached in Chapter 8.

Chapter 5

The Law of the International and Internationalised Tribunals 1

Introduction

This chapter considers the treatment of crimes against humanity in the case law of the international and ‘internationalised’ tribunals, apart from the icc. The relevant case law of the icc is dealt with in Chapter 6 and that of state courts is dealt with in Chapter 7. This chapter has two main purposes. Primarily, it seeks to critically consider how the tribunals have applied and developed the law of crimes against humanity and draw out the key jurisprudential themes and issues that have emerged. As explained in earlier chapters, any consideration of crimes against humanity must consider more than just the jurisprudence expressed by the tribunals. This jurisprudence must be considered in light of the particular ­jurisdiction being exercised – that is, both the nature of the particular empowering statute being interpreted and the nature of the tribunal that is interpreting it – and the particular conflict being considered by the particular tribunal. This approach continues the theme of this work that crimes against humanity contain both a substantive as well as a jurisdictional element, and, as will become clear, this is important in order to understand the precedential value of the decisions. Additionally, the various different forms of the tribunals have engendered a wide degree of international interest. Observers have been keen to see if they can provide a flexible alternative for dealing with perpetrators accused of committing crimes against humanity. On the one hand, some have criticised the narrowness of a single state prosecution for international crimes. On the other hand, some have criticised the lofty (and expensive) tribunals such as the ad hoc un Tribunals in cases of the former Yugoslavia and Rwanda. Hence, some general remarks are made about the effectiveness of the various tribunals in holding accountable those most responsible for the worst atrocities of the past. In order to pursue these ideas, discussion of the Tribunals can be divided into two sections:

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The ‘international’ tribunals, being the International Criminal Tribunal for the former Yugoslavia (icty) and the International Criminal Tribunal for Rwanda (ictr);1 The ‘internationalised’ or ‘hybrid’ tribunals, being the Special Panels for Serious Crimes in the District Court of Dili, East Timor, (the spet) the Special Court for Sierra Leone (scsl), the Extraordinary Chambers of Cambodia (eccc), the un administered courts in the territory of Kosovo, the Iraqi Special Tribunal (iht), the Court of Bosnia & Herzegovina (Court of BiH) the Extraordinary African Chambers of Senegal (eac), and the African Court of Justice and Human Rights (acjhr).2

While there is no clear dividing line between the categories, there are differences between the two which make it useful to divide them in this way – and, importantly, to distinguish both categories from domestic courts and tribunals.

1 Some writings in the field include: William Schabas, The un International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone (Cambridge University Press: Cambridge, 2006), Chapter 8, 185–225; Guénaël Mettraux, International Crimes and the Ad Hoc Tribunals (Oxford University Press: Oxford, 2005) 147–192; Guénaël Mettraux, ‘Crimes against Humanity in the Jurisprudence of the International Criminal Tribunals For The Former Yugoslavia and For Rwanda’ (2002) 43 Harvard International Law Journal 237; Flavia Lattanzi, ‘Crimes against Humanity in the Jurisprudence of the International Criminal Tribunals for the former Yugoslavia and Rwanda’ in Horst Fischer, Claus Kress, Sascha Lüder (eds), International and National Prosecution of Crimes Under International Law (Berlin Verlag: Berlin, 2001) 473; Joseph Rikhof, ‘Crimes Against Humanity, Customary International Law and the International Tribunals for Bosnia and Rwanda’ (1996) 6 National Journal of Constitutional Law 232, 232–268. 2 For some writings in the field: see Cesare Romano, André Nollkaemper, Jann K. Kleffner (eds), Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo, and Cambodia (Oxford University Press: Oxford, 2004); Diane Orentlicher, ‘Striking a Balance: Mixed Law Tribunals and Conflicts of Jurisdiction’ in Mark Lattimer and Philippe Sands (eds), Justice For Crimes Against Humanity (Hart Publishing: Oxford, 2003) 214; David Turns, ‘“Internationalised” or Ad Hoc Justice for International Criminal Law in a Time of Transition: The Cases of East Timor, Kosovo, Sierra Leone and Cambodia’ (2001) 6 Austrian Review of International and European Law 123; Hansjoerg Strohmeyer, ‘Collapse and Reconstruction of a Judicial System: The United Nations Mission in Kosovo and East Timor’ (2001) 95 American Journal of International Law 46; Suzannah Linton, ‘Cambodia, East Timor and Sierra Leone: Experiments in International Justice’ (2001) 12 Criminal Law Forum 185; Laura Dickinson, ‘The Promise of Hybrid Courts’ (2003) 97(2) American Journal of International Law 295.

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The international tribunals of the icty and the ictr can be distinguished by the fact that they have been established by the unilateral action of the Security Council of the United Nations without any direct state involvement. They are ad hoc organs of the un Security Council, are staffed entirely by international judges, and administer only international law. By contrast, the internationalised tribunals are often referred to as ‘hybrid’ tribunals because, while they have some ‘international’ aspects to them, they also apply local law. The internationalised tribunals further differ in that they have some direct involvement with a single state or territorial administration, although the actual legal bases for the Tribunals vary widely. In the case of the scsl and the eccc, the Tribunals arise out of an international treaty between a state (Sierra Leone and Cambodia, respectively) and the un. Similarly, the eac arose out of a treaty between Senegal and the African Union. In the case of East Timor and Kosovo, international institutions established under the un Security Council (namely, untaet, in East Timor, and unmik, in Kosovo) established the Tribunals. The case of the Court of BiH and the iht are more complicated. The Court of BiH may be said to only ‘just’ fall within the category of an internationalised tribunal. The tribunal was established by statute in Bosnia & Herzegovina, but with the collaboration and assistance of the un Security Council and international donors both to facilitate the post-war transition of Bosnia & Herzegovina as well as to facilitate the closure of the icty. Further, the Court is staffed by both Bosnian and international judges. The iht is technically not an internationalised tribunal at all. It started out as a quasi-international tribunal created by the occupying forces in Iraq in 2003 and was called the Iraqi Special Tribunal, a special occupation court set up to deal with the international crimes of the deposed regime analogous to the Nuremberg or Tokyo Tribunals after the Second World War. However, the original statute was replaced by the new government of Iraq and the Tribunal became the Iraqi High Tribunal, staffed by Iraqi judges appointed by the Iraqi government. Thereafter, it was a domestic court like the others considered in Chapter 7. However, given its origin and its high profile, it is dealt with in this chapter. The icc is dealt with in a separate chapter, as it is in many ways sui generis. The icc was created by States themselves, by signing up to an international treaty that accords the Court jurisdiction over various offences and by, for instance, referring matters to the Court. It can be also a mode for the international community to intervene – namely, by the un Security Council ­referring a matter, or by the Prosecutor initiating an investigation proprio motu. Further, while the icc is applying international law, in the sense of treaty law,

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live questions exists in a number of areas as to the extent to which the law it applies – that pursuant to the Rome Statute – differs from that applied under customary international law. The acjhr may also be analogous to this, albeit on a regional African level rather than a strictly international level. This chapter focuses on the way in which the Tribunals have reached conclusions on the customary law definition of the contextual elements of the crime and the relationship between such a definition and Article 7 of the icc Statute. The aim is not to provide a comprehensive analysis of the crime’s definition, but to begin a consideration of the persuasiveness of its main rulings and its precedential value in customary international law. A more traditional consideration of the crime’s meaning as a matter of customary law is considered in Chapter 9 and 10, where each of the chapeau elements of crimes against humanity and the elements of the underlying offences that make up crimes against humanity are described. 2

The International Tribunals (icty and ictr)

2.1 Background and the Statutes The background to the conflicts in Yugoslavia and Rwanda that underpin the icty and ictr have already been discussed in Chapter 4.3 Both situations involved large-scale atrocities committed against targeted civilian populations with the support of either the state or de facto powers. The statutes of the icty and ictr were also discussed in Chapter 4. Essentially, they were established unilaterally by the un Security Council acting under Chapter vii as ad hoc organs of the Security Council itself. 2.2 The Jurisprudence after the Rome Conference This section picks up the case law of the icty and the ictr after the Tadić Trial Judgment of 7 May 19974 and the Rome Conference of June–July 1998, discussed in Chapter 4. The case law from the icty and ictr is voluminous and covers many different aspects of the conflict in the former Yugoslavia and Rwanda, respectively. The icty and ictr have been extremely important in setting out the key principles for both the contextual elements and the underlying crimes for crimes against humanity. While Chapters 9 and 10 set out these developments more 3 See Sections 2.1 (for discussion of the former Yugoslavia) and 2.2 (for discussion of Rwanda). 4 (icty) Prosecutor v Tadić (Trial Chamber Judgment), Case No IT–94–1–T (7 May 1997) (‘Tadić – Trial’).

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comprehensively, this section seeks to highlight at a high level some of the more significant developments from the Tribunals relevant to the contextual elements of crimes against humanity. In addition to the development of legal principles, it is important also to bear in mind the particular factual circumstances that have been addressed by the respective tribunals. The conflict in Yugoslavia was multifaceted and included crimes committed by Serbs, Bosnian Serbs, Croats, Bosnian Muslims and Kosovans. While the majority of crimes were committed by the official forces of the respective authorities, a number of crimes were committed by Bosnian Serb paramilitary forces with the support of the Bosnian Serb authorities. At the icty, some of the key cases from a factual perspective have concerned prosecutions for: • the Srebrenica massacre (Karadžić,5 Krajišnik,6 Krstić,7 Erdemović,8 Popović,9 Blagojević10); • ethnic cleansing and mistreatment of civilians in various municipalities by Bosnian Serbs against Bosnian Muslims (Karadžić,11 Krajišnik,12 Kunarac,13 Mucić,14 Kvočka,15 Krnojelac,16 Jelisić,17 Brđanin,18 Martić,19 Stakić20); 5 (icty) Prosecutor v Radovan Karadžić (Trial Chamber Judgment), Case No IT-95-5/18-T (24 March 2016). 6 (icty) Prosecutor v Momčilo Krajišnik (Trial Chamber Judgment), Case No IT-00-39-T (27 September 2006); (Appeals Chamber Judgment), Case No IT-00-39-A (17 March 2009). 7 (icty) Prosecutor v Radislav Krstić (Trial Chamber Judgment), Case No IT-98-33-T (2 August 2001); (Appeals Chamber Judgment), Case No IT-98-33-A (19 April 2004). 8 (icty) Prosecutor v Dražen Erdemović (Trial Chamber Judgment), Case No IT-96-22-T (29 November 1996); (Appeals Chamber Judgment), Case No IT-96-22-A (9 October 1997). 9 (icty) Prosecutor v Vujadin Popović et al. (Trial Chamber Judgment), Case No IT-05-88-T (10 June 2010); (Appeals Chamber Judgment), Case No IT-05-88-A (30 January 2015). 10 (icty) Prosecutor v Vidoje Blagojević et al. (Trial Chamber Judgment), Case No IT-02-60-T (17 January 2005); (Appeals Chamber Judgment), Case No IT-02-60-A (9 May 2007). 11 (icty) Above n 5. 12 (icty) Above n 6. 13 (icty) Prosecutor v Dragoljub Kunarac et al. (Trial Chamber Judgment), Case No IT-9623-T & IT-96-23/1-T (22 February 2001) (‘Kunarac – Trial’); Prosecutor v Dragoljub Kunarac et al. (Appeals Chamber Judgment), Case No IT-96-23-A & IT-96-23/1-A (12 June 2002) (‘Kunarac – Appeal’). 14 (icty) Prosecutor v Zdravko Mucić et al. (Trial Chamber Judgment), Case No IT-96-21-T (16 November 1998); (Appeals Chamber Judgment), Case No IT-96-21-A (20 February 2001). 15 (icty) Prosecutor v Miroslav Kvočka (Trial Chamber Judgment), Case No IT-98-30/1-T (2  November 2001); (Appeals Chamber Judgment), Case No IT-98-30/1-A (28 February 2005).

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• the siege of Sarajevo by Bosnian Serb forces (Karadžić,21 Galić,22 Dragomir Milošević23); • crimes committed by various Bosnian Serb paramilitary groups such as Arkan’s Tigers (Ražnatović24), the Scorpions (Djukić25), the White Eagles (Vasiljević26), and the Dragan Nikolić unit (Zoran Vuković27); • crimes committed by the Serb forces or the Yugoslav Army forces against Croats (Perišić,28 Krajišnik,29 Mrkšić,30 Strugar,31 Stakić32);

16 (icty) Prosecutor v Milorad Krnojelac (Trial Chamber Judgment), Case No IT-97-25-T (15 March 2002); (Appeals Chamber Judgment), Case No IT-97-25-A (17 September 2003). 17 (icty) Prosecutor v Goran Jelisić (Trial Chamber Judgment), Case No IT-95-10-T (14  December 1999); (Appeals Chamber Judgment), Case No IT-95-10-A (5 July 2001) (‘Jelisić – Appeal‘). 18 (icty) Prosecutor v Radoslav Brđanin (Trial Chamber Judgment), Case No IT-99-36-T (1 September 2004); (Appeals Chamber Judgment), Case No IT-99-36-A (3 April 2007). 19 (icty) Prosecutor v Milan Martić (Trial Chamber Judgment), Case No IT-95-11-T (12  June 2007); (Appeals Chamber Judgment), Case No IT-95-11-A (8 October 2008) (‘Martić – Appeal’). 20 (icty) Prosecutor v Milomir Stakić (Trial Chamber Judgment), Case No IT-97-24-T (31 July 2003); (Appeals Chamber Judgment), Case No IT-97-24-A (22 March 2006). 21 (icty) Above n 5. 22 (icty) Prosecutor v Stanislav Galić (Trial Chamber Judgment), Case No IT-98-29-T (5 December 2003); (Appeals Chamber Judgment), Case No IT-98-29-A (30 November 2006). 23 (icty) Prosecutor v Dragomir Milošević (Trial Chamber Judgment), Case No IT-98-29/1-T (12 December 2007); (Appeals Chamber Judgment), Case No IT-98-29/1-A (12 November 2009) (‘Milošević, D – Appeal’). 24 (icty) Prosecutor v Željko Ražnatović (Trial Chamber Judgment), Case No IT-97-27-I (19 January 2001). 25 (icty) Prosecutor v Đorđe Djukić (Indictment), Case No IT-96-20-I (29 February 1996). 26 (icty) Prosecutor v Mitar Vasiljević (Trial Chamber Judgment), Case No IT-98-32-T (29  ­November 2002); (Appeals Chamber Judgment), Case No IT-98-32-A (25 February 2004). 27 (icty) Above n 13. 28 (icty) Prosecutor v Momčilo Perišić (Trial Chamber Judgment), Case No IT-04-81-T (6 September 2011); (Appeals Chamber Judgment), Case No IT-04-81-A (28 February 2013). 29 (icty) Above n 6. 30 (icty) Prosecutor v Mile Mrkšić et al. (Trial Chamber Judgment), Case No IT-95-13/1-T (27 September 2007); (Appeals Chamber Judgment), Case No IT-95-13/1-A (5 May 2009) (‘Mrkšić – Appeal’). 31 (icty) Prosecutor v Pavle Strugar (Trial Chamber Judgment), Case No IT-01-42-T (31 January 2005); (Appeals Chamber Judgment), Case No IT-01-42-A (17 July 2008). 32 (icty) Above n 20.

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• crimes committed by Bosnian Croat forces against Bosnian Muslims (Kordić,33 Naletilić,34 Prlić,35 Kupreškić,36 Blaškić,37 Furundžija,38 Ćorić39) and against Bosnian Serbs (Gotovina40); • crimes committed by Bosnian Muslim forces (Mucić,41 Rasim Delić,42 Hadžihasanović,43 Halilović44); • crimes committed by Macedonians (Boškoski, Tarčulovski);45 and • crimes committed in Kosovo by Serb forces (Đorđević,46 Šainović47) and by members of the Kosovo Liberation Army (Limaj48 and Haradinaj49). 33 (icty) Prosecutor v Dario Kordić & Mario Čerkez (Trial Chamber Judgment), Case No IT-95-14/2-T (26 February 2001); (Appeals Chamber Judgment), Case No IT-95-14/2-A (17 December 2004) (‘Kordić – Appeal’). 34 (icty) Prosecutor v Mladen Naletilić & Vinko Martinović (Trial Chamber Judgment), Case No IT-98-34-T (31 March 2003) (‘Naletilić – Trial’); (Appeals Chamber Judgment), Case No IT-98-34-A (3 May 2006). 35 (icty) Prosecutor v Jadranko Prlić et al. (Trial Chamber Judgment), Case No IT-04-74-T (29 May 2013). 36 (icty) Prosecutor v Vlatko Kupreškić et al. (Trial Chamber Judgment), Case No IT-95-16-T (14 January 2000) (‘Kupreškić – Trial’); (Appeals Chamber Judgment), Case No IT-95-16-A (23 October 2001). 37 (icty) Prosecutor v Tihomir Blaškić (Trial Chamber Judgment), Case No IT-95-14-T (3  March 2000) (‘Blaškić – Trial’); (Appeals Chamber Judgment), Case No IT-95-14-A (29 July 2004) (‘Blaškić – Appeal’). 38 (icty) Prosecutor v Anto Furundžija (Trial Chamber Judgment), Case No IT-95-17/1-T (10 December 1998) (‘Furundžija – Trial’); (Appeals Chamber Judgment), Case No IT95-17/1-A (21 July 2000). 39 (icty) Above n 35. 40 (icty) Prosecutor v Ante Gotovina et al. (Trial Chamber Judgment), Case No IT-06-90-T (15 April 2011); (Appeals Chamber Judgment), Case No IT-06-90-A (16 November 2012). 41 (icty) Above n 14. 42 (icty) Prosecutor v Rasim Delić (Trial Chamber Judgment), Case No IT-04-83-T (15 September 2008); (Appeals Chamber Judgment), Case No IT-04-83-A (29 June 2010). 43 (icty) Prosecutor v Enver Hadžihasanović & Amir Kubura (Trial Chamber Judgment), Case No IT-01-47-T (15 March 2006); (Appeals Chamber Judgment), Case No IT-01-47-A (22 April 2008). 44 (icty) Prosecutor v Sefer Halilović (Trial Chamber Judgment), Case No IT-01-48-T (16 November 2005); (Appeals Chamber Judgment), Case No IT-01-48-A (16 October 2007). 45 (icty) Prosecutor v Ljube Boškoski & Johan Tarčulovski (Trial Chamber Judgment), Case No IT-04-82-T (10 July 2008); (Appeals Chamber Judgment), Case No IT-04-82-A (19 May 2010). 46 (icty) Prosecutor v Vlastimir Đorđević (Trial Chamber Judgment), Case No IT-05-97/1-T (23 February 2011); (Appeals Chamber Judgment), Case No IT-05-97/1-A (27 January 2014).

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The Rwandan genocide was more unilateral, being perpetrated by Hutus against Tutsis. The violence was perpetrated by government officials and military officials (often through and with the support of the Interahamwe militia) as well as various private actors such as businessman, church officials and journalists and broadcasters. At the ictr, some of the notable cases from a factual perspective have included: • Rwandan Government ministers (Kambanda,50 Ntagerura,51 ­Niyitegeka,52 Nzabonimana,53Karemera,54Kamuhanda,55Ngirabatware,56Kaliman­zira57);

47 (icty) Prosecutor v Nikola Šainović et al. (Trial Chamber Judgment), Case No IT-0587-T (26 February 2009); (Appeals Chamber Judgment), Case No IT-05-87-A (23 January 2014). 48 (icty) Prosecutor v Fatmir Limaj et al. (Trial Chamber Judgment), Case No IT-03-66-T (30 November 2005) ) (‘Limaj – Trial’); (Appeals Chamber Judgment), Case No IT-03-66-A (27 September 2007). 49 (icty) Prosecutor v Ramush Haradinaj et al. (Trial Chamber Judgment), Case No IT-0484-T (3 April 2008) (‘Haradinaj – Trial’); (Appeals Chamber Judgment), Case No IT-0484-A (19 July 2010). 50 (ictr) Prosecutor v Jean Kambanda (Trial Chamber Judgment), Case No ICTR-97-23-T (4 September 1998); (Appeals Chamber Judgment), Case No ICTR-97-23-A (19 October 2000). 51 (ictr) Prosecutor v André Ntagerura (Trial Chamber Judgment), Case No ICTR-99-46-T (25 February 2004); (Appeals Chamber Judgment), Case No ICTR-99-46-A (7 July 2006). 52 (ictr) Prosecutor v Eliézer Niyitegeka (Trial Chamber Judgment), Case No ICTR-96-14-T (16 May 2003); (Appeals Chamber Judgment), ICTR-96-14-A (9 July 2004). 53 (ictr) Prosecutor v Callixte Nzabonimana (Trial Chamber Judgment), Case No ICTR98-44D-T (31 May 2012); (Appeals Chamber Judgment), Case No ICTR-98-44D-A (29 September 2014). 54 (ictr) Prosecutor v Édouard Karemera et al. (Trial Chamber Judgment), Case No ICTR-98-44-T (2 February 2012); (Appeals Chamber Judgment), Case No ICTR-98-44-A (29 September 2014). 55 (ictr) Prosecutor v Jean de Dieu Kamuhanda (Trial Chamber Judgment), Case No ICTR-99-54A-T (22 January 2004); (Appeals Chamber Judgment), Case No ICTR-99-54A-A (19 September 2005). 56 (ictr) Prosecutor v Augustin Ngirabatware (Trial Chamber Judgment), Case No ICTR99-54-T (20 December 2012); (Appeals Chamber Judgment), Case No ICTR-99-54-A (18 December 2014). 57 (ictr) Prosecutor v Callixte Kalimanzira (Trial Chamber Judgment), Case No ICTR05-88-T (22 June 2009); (Appeals Chamber Judgment), Case No ICTR-98-41-A (20 October 2010).

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• Rwandan military officers (Bagosora,58 Bizimungu,59 Ndindiliyimana60); • prefects of Rwandan provinces (Renzaho,61 Kayishema62); • former bourgmestres (mayors) of various communes e.g. the Taba Commune (Akayesu63), Bicumbi commune (Semanza64), Mabanza Commune (Bagilishema65) and Butare commune (Ntaganzwa66); • various journalists and broadcasters (Nahimana,67 Ngeze,68 Garyagwiza,69 Ruggiu70);

58 (ictr) Prosecutor v Théoneste Bagosora (Trial Chamber Judgment), Case No ICTR-98-41-T (18 December 2008); (Appeals Chamber Judgment), Case No ICTR-98-41-A (14 December 2011). 59 (ictr) Prosecutor v Casimir Bizimungu et al. (Trial Chamber Judgment), Case No ICTR-99-50-T (30 September 2011); (Appeals Chamber Judgment), Case No ICTR-99-50-A (4 February 2013). 60 (ictr) Prosecutor v Augustin Ndindiliyimana et al. (Trial Chamber Judgment), Case No ICTR-00-56-T (17 May 2011); (Appeals Chamber Judgment), Case No ICTR-00-56-A (11 February 2014). 61 (ictr) Prosecutor v Tharcisse Renzaho (Trial Chamber Judgment), Case No ICTR-97-31-T (14 July 2009); (Appeals Chamber Judgment), Case No ICTR-97-31-A (1 April 2011). 62 (ictr) Prosecutor v Clément Kayishema & Obed Ruzindana (Trial Chamber Judgment), Case No ICTR-95-1-T (21 May 1999) (‘Kayishema – Trial’); (Appeals Chamber Judgment), Case No ICTR-95-1-A (1 June 2001). 63 (ictr) Prosecutor v Jean Paul Akayesu (Trial Chamber Judgment), Case No ICTR-96-4-T (2 September 1998) (‘Akayesu – Trial’); (Appeals Chamber Judgment), Case No ICTR96-4-A (1 June 2001) (‘Akayesu – Appeal’). 64 (ictr) Prosecutor v Laurent Semanza (Trial Chamber Judgment), Case No ICTR-97-20-T (15 May 2003) (‘Semanza – Trial’); (Appeals Chamber Judgment), Case No ICTR-97-20-A (20 May 2005) (‘Semanza – Appeal’). 65 (ictr) Prosecutor v Ignace Bagilishema (Trial Chamber Judgment), Case No ICTR-95-1A-T (7 June 2001) (‘Bagilishema – Trial’); (Appeals Chamber Judgment), Case No ICTR-95-1AA (3 July 2002). 66 (ictr) Prosecutor v Ladislas Ntaganzwa (Trial Chamber Judgment), Case No ICTR-96-9-T (8 May 2012). 67 (ictr) Prosecutor v Ferdinand Nahimana et al. (Trial Chamber Judgment), Case No ICTR-99-52-T (3 December 2003); (Appeals Chamber Judgment), Case No ICTR-99-52-A (28 November 2007) (‘Nahimana – Appeal’). 68 (ictr) Above n 67. 69 (ictr) Above n 67. 70 (ictr) Prosecutor v Georges Ruggiu (Trial Chamber Judgment), Case No ICTR-97-32-T (1 June 2000).

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• church officials (Elizaphan Ntakirutimana,71 Seromba72); • various private actors such as the director of the Gisovu tea factory (Musema73) and a medical doctor at the Mugonero hospital (Gérard Ntakirutimana74); and • members of the Interahamwe militia (Rutaganda,75 Serushago,76 Kayishema77). 2.2.1 The Discriminatory Purpose / Armed Conflict Requirement The Appeals Chamber in Tadić handed down its judgment on 15 July 1999. In respect of the discrimination requirement, the Appeals Chamber upheld the prosecutor’s appeal. Taking a literal approach to the Statute, the Chamber held that a discriminatory motive was not necessary and that a discriminatory intent was only relevant for ‘persecutions’ under Article 5(h).78 The Chamber, reverting back to the Nuremberg Precedent, held that any such requirement would not be consistent with customary law.79 It said, for example, a campaign of terror carried out on random members of the population could constitute a crime against humanity.80

71 (ictr) Prosecutor v Elizaphan & Gérard Ntakirutimana (Trial Chamber Judgment), Case No ICTR-96-17-T (21 February 2003); (Appeals Chamber Judgment), Case No ICTR-96-17-A (13 December 2004). 72 (ictr) Prosecutor v Athanase Seromba (Trial Chamber Judgment), Case No ICTR-01-66-T (13 December 2006); (Appeals Chamber Judgment), Case No ICTR-01-66-A (12 March 2008). 73 (ictr) Prosecutor v Alfred Musema (Trial Chamber Judgment), Case No ICTR-96-13-T (27 January 2000) (‘Musema – Trial’); (Appeals Chamber Judgment), Case No ICTR96-13-A (16 November 2001). 74 (ictr) Above n 71. 75 (ictr) Prosecutor v Georges Rutaganda (Trial Chamber Judgment), Case No ICTR-96-3-T (6 December 1999) (‘Rutaganda – Trial’); (Appeals Chamber Judgment), Case No ICTR96-3-A (26 May 2003). 76 (ictr) Prosecutor v Omar Serushago (Trial Chamber Judgment), Case No ICTR-98-39-T (5 February 1999); (Appeals Chamber Judgment), Case No ICTR-98-39-A (14 February 2000). 77 (ictr) Above n 62. 78 (icty) Prosecutor v Tadić (Appeals Chamber Judgment), Case No IT–94–1–A (15 July 1999) (‘Tadić – Appeal’), [282]–[292]. 79 (icty) Tadić – Appeal, above n 78, [282]–[292]. 80 (icty) Tadić – Appeal, above n 78, [285].

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This view was followed by the ictr. Despite the requirement in the ictr Statute that the attack be perpetrated with a discriminatory intent, the A ­ ppeals Chamber followed the Tadić Appeal Chamber and held that this was not a ­requirement under customary international law.81 It concluded the chapeau requirement in Article 3 is a jurisdictional limitation upon the Tribunal, not an element of the mens rea of the crime. The accused need only be aware that his acts objectively ‘could further a discriminatory attack against a civilian population’ and there was no need to show the accused had a discriminatory intent.82 The same conclusion was arrived at by the icty in respect of the ‘armed conflict’ requirement in Article 5 of the icty Statute. This was, again, said to be a purely ‘jurisdictional’ prerequisite.83 One suspects that the Appeals Chamber may have been influenced by the outcome of the Rome Conference and the definition in Article 7, which does not require a discriminatory intent or a connection with an armed conflict. The result of these conclusions has been to bring the definition in Article 3 in the ictr Statute and Article 5 of the icty Statute more closely in line with Article 7 of the icc Statute based upon the Tribunals’ view of customary law. This has meant that the decisions of the icty and the ictr, despite their widely diverging definitions, are generally regarded as being of immense precedential value in discerning the meaning of crimes against humanity in customary law. 2.2.2 The Five Chapeau Requirements (a) The Tadić and Kunarac Decisions As discussed in Chapter 4, the Trial and Appeal Chamber decisions in Tadić were the first international decisions setting out the modern definition of crimes against humanity – that is, without any nexus with an armed conflict. The Appeals Chamber there confirmed that the key requirement was that there must be a widespread and systematic attack directed against any civilian population. The formulation in Tadić was subsequently broken down into the 5 elements that were to become the ‘chapeau’ elements of crimes against humanity by the Trial Chamber in the Kunarac case. Citing the Tadić Appeal Chamber, the Trial Chamber held that Article 5 requires ‘an attack (sic) directed against

81 (ictr) Akayesu – Appeal, above n 63, [464]. 82 (ictr) Akayesu – Appeal, above n 63, [467]. 83 (icty) Tadić – Appeal, above n 78, [249] and [251].

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any civilian population’84 which encompasses the following five sub-elements (which has become the locus classicus): 1. 2. 3. 4. 5.

there must be an attack; the acts of the perpetrator must be part of the attack; the attack must be ‘directed against any civilian population’; the attack must be ‘widespread or systematic’; the perpetrator must know of the wider context in which his acts occur and know that his acts are part of the attack.85

In 2002, the Appeals Chamber agreed with the Trial Chamber’s five sub-­ elements,86 which have been widely followed since. Further, the Appeals Chamber confirmed a number of foundational principles relevant to each of these elements – most of which simply confirmed the findings of the Kunarac Trial Chamber or earlier Trial Chamber decisions such as Tadić. The Chamber confirmed that an ‘attack’ is something separate from an ‘armed conflict’ – it may precede or outlast an armed conflict,87 and an attack may comprise not only of acts of violence committed by armed forces but ‘any mistreatment of the civilian population’.88 In respect of the requirement that an attack be directed against any civilian ‘population’, the Chamber confirmed that a whole geographical population need not be targeted. Rather: It is sufficient to show that enough individuals were targeted in the attack, or that they were targeted in such a way as to satisfy the Chamber that the attack was in fact directed against a civilian ‘population’, rather than against a limited and randomly selected number of individuals.89 Similarly, in respect of the requirement that an attack be ‘directed against’ any civilian population, the Appeals Chamber confirmed that the expression 84 (icty) Tadić – Trial, above n 4, [410]. It is of some significance that the Trial Chamber wrongly quotes Article 5 as including the words ‘an attack’. This does not appear in Article 5 but has been written into the text with the result that the definition has been brought into line with the definitions in the ictr Statute and the icc Statute, the texts of which are markedly different. 85 (icty) Tadić – Trial, above n 4, [410]. 86 (icty) Kunarac – Appeal, above n 13, [85]. 87 (icty) Kunarac – Appeal, above n 13, [86], citing Tadić – Appeal, above n 78, [251]. 88 (icty) Kunarac – Appeal, above n 13, [86]. 89 (icty) Kunarac – Appeal, above n 13, [90].

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requires that an attack be the ‘primary object of the attack’.90 The Chamber added, however, that it will be relevant in this regard to consider, inter alia: the means and method used in the course of the attack, the status of the victims, their number, the discriminatory nature of the attack, the nature of the crimes committed in its course, the resistance to the assailants at the time and the extent to which the attacking force may be said to have complied or attempted to comply with the precautionary requirements of the laws of war. The Chamber also confirmed the definitions of ‘widespread or systematic’ ­adopted by the Trial Chambers in Tadić and Kunarac. The term ‘widespread’ refers to ‘the large-scale nature of the attack and the number of victims’,91 while ‘systematic’ refers to ‘the organised nature of the acts of violence and the improbability of their random occurrence’.92 The Chamber also added that ‘patterns of crimes’, namely, ‘the non-accidental repetition of similar criminal conduct on a regular basis’ is ‘a common expression of such systematic occurrence.’93 (b) The Limaj and Haradinaj Decisions An important counterpoint to the principles to come out of Tadić and Kunarac were the cases concerning the Kosovo Liberation Army (kla), Limaj and Haradinaj. While often overlooked, the cases provide some of the most useful guidance on some of the more difficult issues in the interpretation of crimes against humanity. In Limaj, three accused were indicted for crimes against humanity allegedly committed by them and other members of the kla from May to around 26 July 1998 against civilians in central Kosovo.94 In 1998, kla elements, apart from attacking the Serbian special forces operating in Kosovo, launched acts of retribution against Serbian civilians suspected of having a role in the political or governmental organs of Serbia, especially the military or police, along with Kosovo Albanian civilians believed to be collaborating with Serbs.95 The acts

90 (icty) Kunarac – Appeal, above n 13, [91], citing Tadić – Trial, above n 4, [421]. 91 (icty) Kunarac – Appeal, above n 13, [94], citing Tadić – Trial, above n 4, [648]. 92 (icty) Kunarac – Appeal, above n 13, [94], citing Kunarac – Trial, above n 13, [429] and Tadić – Trial, above n 4, [648]. 93 (icty) Kunarac – Appeal, above n 13, [94], citing Kunarac – Trial, above n 13, [429]. 94 (icty) Limaj – Trial, above n 48, [1]. 95 (icty) Limaj – Trial, above n 48, [196], [199] and [207].

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included bombing businesses, murdering their proprietors, abducting, detaining, questioning and mistreating civilians.96 Ultimately, the Trial Chamber found that no crime against humanity was committed. The Chamber held that ‘targeting of a select group of civilians – for example, the targeted killing of a number of political opponents – cannot satisfy the requirements of Article 5’.97 It noted that: The nature of the “attack” alleged by the Prosecution in this case covers a set of circumstances considerably different from those considered previously by this Tribunal when dealing with the application of Article 5. Due to structural factors and organisational and military capabilities, an “attack directed against a civilian population” will most often be found to have occurred at the behest of a State. Being the locus of organised authority within a given territory, able to mobilise and direct military and civilian power, a sovereign State by its very nature possesses the attributes that permit it to organise and deliver an attack against a civilian population; it is States which can most easily and efficiently marshal the resources to launch an attack against a civilian population on a “widespread” scale, or upon a “systematic” basis. In contrast, the factual situation before the Chamber involves the allegation of an attack against a ­civilian population perpetrated by a non-state actor with extremely limited resources, personnel and organisation.98 The Chamber went further:99 … Although not a legal element of Article 5, evidence of a policy or plan is an important indication that the acts in question are not merely the workings of individuals acting pursuant to haphazard or individual design, but instead have a level of organisational coherence and support of a magnitude sufficient to elevate them into the realm of crimes against humanity. It stands to reason that an attack against a civilian population will most often evince the presence of policy when the acts in question are performed against the backdrop of significant State action and where formal channels of command can be discerned. 96 (icty) Limaj – Trial, above n 48, [196], [199]. 97 (icty) Limaj – Trial, above n 48, [187]. 98 (icty) Limaj – Trial, above n 48, [191]. 99 (icty) Limaj – Trial, above n 48, [212]–[213]. For its final two sentences, the Chamber referred to Kupreškić – Trial, above n 36, [552] and Tadić – Trial, above n 4, [654], respectively.

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Special issues arise, however, in considering whether a sub-state unit or armed opposition group, whether insurrectionist or trans-boundary in nature, evinces a policy to direct an attack. One requirement such an organisational unit must demonstrate in order to have sufficient competence to formulate a policy is a level of de facto control over territory. As was said by the Trial Chamber in Prosecutor v Tadić: the law in relation to crimes against humanity has developed to take into account forces which, although not those of the legitimate government, have de facto control over, or are able to move freely within, defined territory. The Chamber concluded that the kla did at times have de facto control of some territory so it could be an ‘organisation or group’ capable of formulating a ‘policy’ to commit ‘crimes against humanity’.100 The Trial Chamber, however, concluded that whilst there were many abductions and mistreatments of Serbian civilians and those perceived as being associated with the military or political organs of Serbia,101 the evidence did not establish that the kla evinced a policy to target innocent civilians or their properties per se.102 While the evidence established a kla policy of targeting perceived Kosovo Albanian collaborators who were believed to be or suspected of associating with Serbian authorities and interests,103 the kla did not have the resources or command structure to adequately control the implementation of the policy.104 The Kosovo Albanian citizens may have been abducted for other reasons, such as personal revenge and other motives or carried out by local elements of the kla acting independently of centralised control. The Chamber held that crimes against humanity precluded crimes that were against an isolated and randomly selected number of individuals: In this sense, the requirement that a “civilian population” be the target of an attack may be seen as another way of emphasising the requirement that the attack be of large scale or exhibit systematic features.105

100 (icty) Limaj – Trial, above n 48, [214]. 101 (icty) Limaj – Trial, above n 48, [216]. 102 (icty) Limaj – Trial, above n 48, [215], [217]. 103 (icty) Limaj – Trial, above n 48, [216]–[217]. 104 (icty) Limaj – Trial, above n 48, [216]–[217]. 105 (icty) Limaj – Trial, above n 48, [218].

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In the present case, the abductions occurred in diverse geographical locations, were relatively limited in number such that it was not possible to discern that the civilian population was itself the subject of an attack or that the Kosovo Albanian collaborators or perceived or suspected collaborators were of a class so numerous and widespread that they themselves constituted a ‘population’.106 The Chamber concluded that whether or not such individuals were correctly targeted, they were selected as individuals, rather than as members of a larger targeted population.107 There was ‘no attempt to target a civilian population as such’ (emphasis added).108 The Chamber concluded:109 Upon consideration of the evidence before it, the Chamber finds that at the time relevant to the Indictment there was no attack by the kla ­directed against a “civilian population”, whether Kosovo Albanian or Serbian in ethnicity, and no attack that could be said to indicate a “widespread” scale; however, as indicated earlier there is evidence of a level of systematic or coordinated organisation to the abduction and detention of certain individuals. While the kla evinced a policy to target those Kosovo Albanians suspected of collaboration with the Serbian authorities, the Chamber finds that there was no attack directed against a civilian population, whether of Serbian or Albanian ethnicity. This suggests that a connection with a state or state-like power will still have a role to play in determining if there has been an ‘attack’ of the requisite kind under customary law as interpreted by the icty. Similarly, the Trial Chamber in Bagilishema considered that terms ‘widespread’ and ‘systematic’, while conjunctive, tend to overlap.110 Accordingly, while the Trial Chamber accepted the position in Kupreškić that there was doubt as to whether there was a policy requirement as such, the Chamber considered that a policy would be an inherent feature of crimes against humanity as a matter of fact.111 That is, the fact that an attack is widespread or systematic will exclude – as a matter of fact – acts not committed as part of the policy of plan.112 106 (icty) Limaj – Trial, above n 48, [226]. 107 (icty) Limaj – Trial, above n 48, [228]. 108 (icty) Limaj – Trial, above n 48, [211]–[225], in particular, [211] and [215]. 109 (icty) Limaj – Trial, above n 48, [228]. 110 (ictr) Bagilishema – Trial, above n 65, [77], citing Blaškić – Trial, above n 37. 111 (ictr) Bagilishema – Trial, above n 65, [78]. 112 (ictr) Bagilishema – Trial, above n 65, [78].

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The same issue also arose in Haradinaj. During the 1998–1999 Kosovo-Serb conflict, Ramush Haradinaj was one of the most senior leaders of the kla. In particular, Haradinaj was alleged to have had overall command of the kla forces in the Dukagijn operational zone, located to the west of Priština. On 4 March 2005, Haradinaj was indicted while Prime Minister of Kosovo, but resigned the following day and voluntarily surrendered himself to the icty. The Prosecution alleged that there were attacks directed at part of the civilian population in 5 municipalities in Kosovo, namely, those persons of Serb ethnicity as well as s civilians perceived to be collaborating with the Serbs or otherwise not supporting the kla.113 In these regions, there were around 60,000 non-Albanians, of which 30,000 were Serb (14% and 7% of the population, respectively). The Prosecution alleged that the kla harassed, beat and killed many Serbian and Roma civilians and abducted more than 60 people (many of which were killed). Insofar as non-Albanians were concerned, the Prosecution alleged that 21 were murdered and 14 were expelled.114 Insofar as Albanians were concerned (namely, perceived collaborators), the Prosecution further alleged that 17 were killed and 4 were detained and mistreated.115 ­Additionally, the Prosecution adduced evidence of incidents involving the attacking of Serb cars, homes and a Serbian refugee settlement. Interestingly, while the Trial Chamber cited the Limaj decision on a number of occasions in the context of war crimes, it did not cite the Limaj decision in its discussion of crimes against humanity.116 Nonetheless, analogous findings were made at least as a matter of fact in ultimately deciding that there was not an attack on a civilian population. After noting that it had heard evidence ‘on a relatively small number of incidents’ and noting that ‘the evidence is often insufficiently precise to conclude who was or were responsible for the incidents and whether they formed part of a larger attack against a civilian population’,117 the Trial Chamber found that:118 … the ill-treatment, forcible transfer, and killings of Serbian and Roma civilians, as well as Kosovar Albanian civilians perceived to be collaborators or perceived not supporting the kla (whether taking these groups 113 (icty) Haradinaj – Trial, above n 49, [111]. 114 (icty) Haradinaj – Trial, above n 49, [113]. 115 (icty) Haradinaj – Trial, above n 49, [113]. 116 See in particular, (icty) Haradinaj – Trial, above n 49, [106] (where only the principles in Kunarac – Appeal, above n 13, were cited). 117 (icty) Haradinaj – Trial, above n 49, [118]. 118 (icty) Haradinaj – Trial, above n 49, [122].

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separately or as a whole), was not on a scale or frequency that would allow for a conclusion that there was an attack against a civilian population. The Trial Chamber also finds that some of the victims were singled out primarily for reasons pertaining to them individually, such as their real or perceived connection with the Serbian authorities or for other reasons, rather than being members of the civilian population. While the case was plagued with evidentiary difficulties and many of these incidents were not proven (such as the abduction of more than 60 people119), this finding is nonetheless significant. 2.2.3 The Policy Requirement While the elaboration of the 5 elements in Kunarac was largely in line with the earlier decisions in Tadić, the Appeals Chamber differed in one significant respect. It specifically found that, contrary to the decisions in Tadić, more recent decisions such as Kupreškić (14 January 2000)120 and decisions of the ictr,121 an ‘attack’ need not be supported by any policy or plan to satisfy the elements of crimes against humanity. This conclusion represented a significant jump in the jurisprudence of the Tribunal – and indeed for crimes against humanity generally – and must be analysed extremely carefully. Further, despite the Chamber’s clear statement of principle, it is not entirely clear that the requirements for some form of ‘policy’, in its loose sense, has indeed been resolved by the icty. (a) The Kunarac Decision The debate around the requirement of a policy per se came to a head in the Kunarac Trial (22 February 2001). The facts of the case were as follows. In April 1992, the municipality of Foča in Bosnia was taken over by Serb forces.122 The town was shelled,123 Mosques were destroyed,124 houses of Muslim residents 119 (icty) Haradinaj – Trial, above n 49, [118]. 120 (icty) Kupreškić – Trial, above n 36, [543] (the Trial Chamber concluded that the essence of ‘crimes against humanity’ ‘is a systematic policy of a certain scale and gravity directed against a civilian population’) and [551] (the Trial Chamber noted that ‘although the concept of crimes against humanity necessarily implies a policy element, there is some doubt as to whether it is strictly a requirement as such’). 121 (ictr) Akayesu – Trial, above n 63, [580]; see also Rutaganda – Trial, above n 75, [69]; Musema – Trial, above n 73, [204]; and Kayishema – Trial, above n 62, [123]–[125], [581]. 122 (icty) Kunarac – Trial, above n 13, [2]. 123 (icty) Kunarac – Trial, above n 13, [21]. 124 (icty) Kunarac – Trial, above n 13, [46].

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were burnt down125 and the Muslim men were beaten, killed and kept in detention centres in atrocious conditions while the women were detained and many subjected to rape and sexual abuse.126 The effect of the attack was to ‘effectively wipe[ ]out’ the Muslim population in the Foča Municipality and neighbouring municipalities, reducing the Muslim population from 40,513 prior to the war to only 10 after the war.127 There were also a number of detention facilities; at the primary facility, the KP Dom, there were estimated to have been at any given time, between 350 and 750 men detained.128 Foča was only one of a number of villages around the area taken in this manner around the same time.129 Of the 20 Muslim owned houses in Foča, only 6 remained with similar patterns occurring in neighbouring villages.130 The Trial Chamber noted that ‘[t]hose who could tried to flee en masse’ and in one region numbered between 1,500 and 2,000.131 The defendants were part of the Serb forces who were alleged to have raped women taken from the detention centres and who were kept in certain houses for that purpose for up to six months.132 In respect of the policy requirement, the Trial Chamber noted that ‘there has been some difference of approach’ ‘as to whether a policy element is required under existing customary law’.133 The Trial Chamber concluded that the defendants tortured, raped and enslaved Muslim women knowing that such conduct was part of an extensive and systematic attack on the Muslim civilian population in the Foča area by the local authorities, the Bosnian Serb Army and paramilitary groups.134 Referring to the Flick Case, the Trial Chamber held ‘the involvement of the state does not modify or limit the guilt or responsibility of the individual’ and torture, as a crime against humanity, does not require ‘the presence of a state official or of any other authority-wielding person’.135 In 2002, the Appeals Chamber then held that under customary law ‘neither the attack nor the acts of the accused needs to be supported by any form of 125 (icty) Kunarac – Trial, above n 13, [44]. 126 (icty) Kunarac – Trial, above n 13, [44], [2], [22]–[44] and [47]. 127 (icty) Kunarac – Trial, above n 13, [47]. 128 (icty) Kunarac – Trial, above n 13, [26]. 129 (icty) Kunarac – Trial, above n 13, [22] (others included Trosanj, Jelec, Gacko, Trnovace, Trbusce, Kalinovik, Miljevina and surrounding areas). 130 (icty) Kunarac – Trial, above n 13, [44]. 131 (icty) Kunarac – Trial, above n 13, [23]. 132 (icty) Kunarac – Trial, above n 13, [3]. 133 (icty) Kunarac – Trial, above n 13, [432]. 134 (icty) Kunarac – Trial, above n 13, [570]–[578] 135 (icty) Kunarac – Trial, above n 13, [493], [496]. See Chapter 3, Section 2.2.1 for a discussion of the Flick Case.

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‘policy’ or ‘plan”.136 A policy may be relevant to prove that the attack was systematic or directed against a population, but it is not a legal element of the crime.137 Given the state of international law on the matter from Nuremberg leading up to the conclusion of the Rome Conference (discussed in Chapters 2 to 4), this is a significant conclusion. The Appeals Chamber reached this conclusion in a concise statement with the only discussion contained in one footnote. The Chamber concluded that ‘[t]he practice reviewed by the Appeals Chamber overwhelmingly supports the contention that no such requirement exists under customary international law’.138 The practice cited was Article 6(c) of the Nuremberg Charter, the Nuremberg Judgment (in particular, Streicher and von Schirach), ccl 10, In re Ahlbrecht (Netherlands), Polyukhovich (Australia), Eichmann (Israel), Mugesera (Canada); In re Trajković (Kosovo);139 Moreno (Canada);140 Sivakumar (Canada).141 The Tribunal pointed additionally to the May 1993 report of the Secretary-General in relation to the icty142 and the work of the ilc.143 The Chamber noted that the same conclusion was reached in respect of genocide.144 According to the Chamber, the contrary authorities145 cited either went ‘clearly beyond the text of the statute to be applied’ and ‘merely highlight the 136 (icty) Kunarac – Trial, above n 13, [98]. 137 (icty) Kunarac – Trial, above n 13, [98]. 138 (icty) Kunarac – Trial, above n 13, [98]. 139 (Yugoslavia) In re Trajković, District Court of Gjilan (Kosovo, Federal Republic of Yugoslavia), P Nr 68/2000 (6 March 2001) (‘Trajković’), decision accessed online at on 4 October 2014. 140 (Canada) Moreno v Canada (Minister of Employment and Immigration), Federal Court of Canada, Court of Appeal, 1994g 1 F.C. 298 (14 September 1993) (‘Moreno – Appeal’). 141 (Canada) Sivakumar v Canada (Minister of Employment and Immigration), Federal Court of Canada, Court of Appeal, 1994g 1 F.C. 433 (4 November 1993) (‘Sivakumar – Appeal’). 142 See also Report of the Secretary- General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), un Doc. S/RES/25704 (3 May 1993), [47]–[48]. 143 [1954] 2 Yearbook of the International Law Commission (ilc), 150; Report of the ilc on the work of its 43rd sess, 29 April–19 July 1991, un Doc. A/46/10 (22 October 1991), 265–266; Report of the ilc on the work of its 46th sess, 2 May–22 July 1994, un Doc A/RES/49/10 (3 November 1994), 75–76; Report of the ilc on the work of its 47th sess, 2 May–21 July 1995, un Doc. A/RES/50/10 (2 November 1995) 47, 49 and 50; and Report of the ilc on the work of its 48th sess, 6 May–26 July 1996, un Doc. A/RES/51/10 (12 November 1996), 93 and 95–96. 144 Referring to (icty) Jelisić – Appeal, above n 17, [48]. 145 For further discussion of the sources cited by the Appeals Chamber, see William Schabas, ‘State Policy as an Element of International Crimes’ (2008) 98(3) Journal of Criminal Law and Criminology 953.

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factual circumstances of the case at hand, rather than impose an independent constitutive element’146 or have ‘been shown not to constitute an authoritative statement of customary international law’.147 (b) Analysing the Kunarac Decision The Chamber’s analysis can be questioned. Most obviously, the Appeals Chamber did not refer to the fact that Article 7 of the icc Statute with its requirement for a policy of either a state or organization was adopted by 121 states at the Rome Conference. Mettraux contends that there ‘seemed … to be good reasons’ for disregarding the icc Statute because the icc Statute does not necessarily reflect customary international law at the time.148 Mettraux states that ‘it is clear from the records of the negotiations in Rome that [A]rticle 7 is in no way a reflection of existing law, but a political compromise over contradictory views as to how broad or narrow the definition of that offence should be’.149 As was discussed in Chapter 4, while the question of the extent to which the definition in Article 7 of the icc Statute should be seen as codifying an existing crime is complex, the Rome Conference does lend support to the policy element being a requirement under customary international law. This is because the lead drafters put forward the policy element of the definition as representing existing law, derived from the Tadić Trial Judgment.150 Robinson (one of the drafters) argued at the Rome Conference that a broad ‘policy element’ can be seen as being implied in the concept of ‘an attack directed against a civilian population’.151 This was not seriously challenged by other delegations and there was only limited opposition to it being part of the definition at that time.152 Hence, the debate at the Rome Conference supports the view that the policy aspect of the definition was adopted because it was seen as reflecting customary law as most recently stated by the Trial Chamber in Tadić.153 In such circumstances, international tribunals have used the formulation in the icc 146 Citing (Netherlands) Public Prosecutor v Menten (Judgment), Supreme Court of the Netherlands (13 January 1981), reprinted in (1987) 75 ilr 331 (‘Menten – Judgment’), 362–363 and Supreme Court of the British Zone under ccl 10, OGH br. Z., vol. i, 19. 147 Citing (Nuremberg) In re Altstötter (1947) 14 ilr 278, 284; and (Australia) Polyukhovich v Commonwealth (1991) 172 clr 501 (‘Polyukhovich’), 586–587. 148 Mettraux (2005), above n 1, 173. 149 Mettraux (2005), above n 1, 174. 150 See Chapter 4, Section 5.2 and 5.2.3–4. 151 Darryl Robinson, ‘Defining “Crimes Against Humanity” at the Rome Conference’ (1999) 93(1) American Journal of International Law 43, 47–51. 152 See Chapter 4, Section 5.2 and 5.2.3–4. 153 See Chapter 4, Section 5.1.

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Statute as a source for discerning international customary law.154 It is a pity the Appeals Chamber in Kunarac did not consider such arguments. Sadat argues that the weight to be afforded to the icc Statute should be lessened given that – at the time of Rome Conference – there had been few judicial decisions of the ad hoc Tribunals.155 This does not detract from the argument that even if the matter at the time was not free from doubt, the opinio juris of 121 states at the Rome Conference supports or confirms or ‘crystalizes’ the policy element as being a part of the customary law definition. Sadat, unlike Mettraux, acknowledges that states were mindful of the need for the icc Statute to reflect customary international law and that international courts and tribunals have largely seen Article 7 as reflective of custom whether or not states did so at the Rome Conference.156 Further, the Chamber’s analysis of the sources cited can be challenged. Starting from the first source cited, Article 6(c) of the London Charter, as concluded in Chapter 2, by reason of the war nexus in the definition and the general requirement that the defendant be ‘acting in the interests of the European Axis countries’, there needed to be both a state policy linked to the acts of the defendant and also that such acts were linked to that state’s engagement in, or a plan to commit, crimes against peace or war crimes.157 Nothing in the Nuremberg Judgment alters this conclusion.158 The two defendants cited in Kunarac (Streicher and von Schirach) were the only two persons who were convicted of crimes against humanity alone. Even so, it is apparent from the judgment as a whole that the convictions were based upon the conclusion that the acts were committed in connection with a state policy to commit war crimes and crimes against peace respectively.159 Assuming the Nuremberg Precedent comes with an implied state policy requirement (along with the war nexus) one has to deal with the fact that such precedent was affirmed by the General Assembly and its Sixth Committee and, hence,

154 See, for example, (icty) Furundžija – Trial, above n 38, [227]; (scsl) Prosecutor v Brima, Kamara and Kanu (Appeals Chamber Judgment), Case No SCSL-2004-16-A (22 February 2008) (‘Brima – Appeal’), [79]. 155 Leila Nadya Sadat, ‘Crimes Against Humanity in the Modern Age’ (2013) 107(2) American Journal of International Law 334, 351. 156 Sadat, above n 155, 351 and 373. 157 Section 5.3. 158 See Chapter 2, Section 4.3 (where it was pointed out that the Nuremberg Judgment clearly drew a distinction between crimes committed prior to the war (which could not be crimes against humanity) and those committed after (which could)). 159 Ibid. See also Chapter 2, Section 8.

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is widely regarded as being the definition that entered into customary law at that time. The next source cited in support was ccl 10. As discussed in Chapter 3, the extent to which the definition in ccl 10 can be used as a precedent under customary law can be very much doubted.160 It was an occupation law based upon the Council’s authority over Germany after its surrender and without extraterritorial reach. Even then, the case law interpreted the definition as requiring either a war nexus (which implies a state policy) or a link with some state policy. The Appeals Chamber referred to only one of the many decisions made under ccl 10 which supported the need for a state policy element, the Justice Case.161 It dismissed the case as being ‘shown not to constitute an authoritative statement’ of custom, citing the remarks of Brennan J in the Australian High Court in Polyukhovich. Those remarks appear to have been taken out of context. Read in context, his Honour is merely stating, correctly, that the full description in the Justice Case of what amounts to a crime against humanity under ccl 10, including without a war nexus, has not been accepted as an authoritative statement of the crime’s customary law position prior to 1945. In support, his Honour pointed out that the tribunals under ccl 10 were not international judicial organs administering international law, but were domestic tribunals administering municipal law. His Honour in fact concluded, as the authors do in Chapter 2, that the customary law status of crimes against humanity at all pre-1945 is unclear.162 As discussed in Chapter 3,163 In re Ahlbrecht is not a persuasive source on the policy requirement, because the Dutch law in question specifically defined crimes against humanity as being in line with Article 6(c) (properly understood as coming with a policy requirement) and subsequent authority in The Netherlands upheld the policy element.164 Similarly, in Polyukhovich (Australia) and Eichmann (Israel), the courts were merely making some observations about some of the crime’s features and one judge in Polyukhovich even cited the Justice Case, with its policy requirement, in support.165 In neither case did the court expressly reject the implied requirement of some policy element. Further, both were interpreting legislation that was limited to atrocities

160 See Chapter 3, Section 2.6. 161 Discussed in Chapter 3, Section 2.2.2. 162 See the cited pages, 586–587 and the conclusion reached at [63]. 163 See Chapter 3, Section 4.6. 164 (Netherlands) Menten – Judgment, above n 146, 362–363. 165 (Australia) Polyukhovich, above n 147, 669.

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c­ ommitted during World War 2 (with Nazi defendants clearly in mind) – not legislation that applied more broadly. The Kosovan case of In re Trajković – decided 6 March 2001 – appeared to draw no distinction between the definition of the icty Statute and Article 7 of the icc Statute and appeared to apply the icty Appeal Decision in Tadić as reflecting the position under customary international law.166 Further, the decision was considering Article 142 of the Yugoslavian Criminal Code, which is not clearly crimes against humanity stricto sensu (the offence is called ‘War crime against the civilian population’) and which requires a connection to ‘war, armed conflict or occupation’.167 The remaining decisions referred to are all Canadian immigration decisions, two of which appeared not to challenge the superior Canadian authority in Finta which found that a policy was required. The Mugesera decision cited did not contradict Finta but indeed appeared to adopt it where relevant to its decision.168 Similarly, the Court of Appeal in Moreno did not even consider the elements of crimes against humanity.169 The final decision, Sivakumar170 on 4 November 1993 does not support the proposition that a policy element is not required. The Court stated that ‘[a] lthough crimes against humanity usually involve state action or policy, it can no longer be said that individuals without [a] connection to the state, especially those involved in paramilitary or armed revolutionary movements, can be immune from the reach of international law’. The Court was considering a decision to refuse a refugee visa to an individual accused of committing crimes against humanity as a member of the Tamil Tigers. By 1993, the Tamil Tigers were an armed group engaged in an internal armed conflict. They had an army, navy, had control of a large part of territory in the north of Sri Lanka, operated a fleet of merchant ships that engaged in legitimate international trade, and had established their own courts of law, police 166 (Yugoslavia) Trajkovic, above n 139, [7]. 167 Accessed online at on 4 October 2014. 168 (Canada) Mugesera v Canada (Minister of Citizenship and Immigration) [2005] 2 S.C.R. 100, 2005 scc 40, [55] (citing the majority in Finta to the effect that: ‘[w]hat distinguishes a crime against humanity from any other criminal offence under the Canadian Criminal Code is that the cruel and terrible actions which are essential elements of the offence were undertaken in pursuance of a policy of discrimination or persecution of an identifiable group or race’). 169 (Canada) Moreno – Appeal, above n 140. At one stage, the Court even refers to Bassiouni – a well-known proponent of the policy requirement – as an authority on the subject. 170 (Canada) Sivakumar – Appeal, above n 141.

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force, taxation laws and banking system.171 This is discussed further in Chapter 8. Hence, the Court does no more than state that a de facto power engaged in internal armed conflict can formulate a policy and commit crimes against humanity. A position later adopted by the icty. The Appeals Chamber also cited the May 1993 report of the ­Secretary-General in relation to the icty172 and the work of the ilc.173 The former is discussed in Chapter 4. It is unclear that the Secretary-General was excluding the need for some policy element as part of his stated requirement for a widespread or systematic attack directed against any civilian population. Further, many state submissions, along with the conclusions of the Commission of Experts of the time, referred to the policy requirement.174 The work of the ilc is discussed in Chapter 3.175 The conclusion reached was that the draft Codes of the ilc, including that of 1996, did not resolve the problem of the definition of crimes against humanity in international law and a consideration of state practice and other sources is required. Further, the requirement in its 1996 draft Code that the crimes be ‘instigated or directed by a Government or by any organisation or group’ – intended thereby to exclude ‘isolated criminal conduct’ – could be said to imply a policy element.176 The final two authorities cited by the Appeals Chamber – which it dismissed as being of little value – were the Menten case177 and the West German Supreme courts in British Occupied Zone decisions.178 In no way can either source be seen as referring only to the factual circumstances of crimes against humanity. Both regarded a link with a state policy as being necessary. The Chamber’s reference to sources supportive of the need for a policy element (of one form or another) was somewhat limited. Looking at the matter in some historical sequence, the flowing emerges. A state policy is implied in the Nuremberg definition. This was expressly stated to be so by French prosecutor de Menthon and not contradicted by the Tribunal which required crimes against humanity to have the required nexus with a state policy to commit crimes against peace or war crimes.179 171 See Gordon Weiss, The Cage (The Bodley Head: London, 2011) 7–8. 172 See also Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), un Doc S/25704 (3 May 1993), 47–48. 173 See above n 143. 174 See Chapter 4, Section 2. 175 See Section 3.3. 176 See Chapter 3, Section 3.3.2(iv). 177 See Chapter 3, Section 4.6. 178 See Chapter 3, Section 2.3. 179 See Chapter 2, Sections 4.2 and 4.3.

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Next, while not a requirement under ccl 10, the Tribunals and West German Supreme Court required the crimes either to come with the war nexus or a policy element.180 The requirement of a state policy was the widely held view of publicists writing at the time.181 It was stated to be an express requirement in the jurisprudence in France, Canada, The Netherlands and by one judge in Australia.182 In 1993–1994, the un Commissions of Experts and many state submissions to the Secretary–General referred to the policy element,183 as did the crimes definition in the French law of 1994.184 It was also found to be a requirement by the icty in the Tadić decisions,185 which then formed the basis for the requirement adopted by 121 nations at the Rome Conference in 1998. (c) Conclusion In the result, the conclusion that there was no need for any ‘policy element’ is somewhat surprising. Nevertheless, despite the authors’ criticisms of the reasoning of the Kunarac Appeals Chamber, its conclusion about the ‘policy element’ has not been seriously questioned since by the icty. It has been followed by the ictr.186 Part of the problem may be in failing to appreciate that the ‘policy element’, as a matter of customary law, is a broad concept. Used in this sense, there may not need to be either an explicit policy which has been formulated at a high level to commit either the acts of the defendant or the actual attack in question (as suggested by the Trial Chamber in Tadić). Further, it has never been a requirement under customary law that the defendants be state officials acting under express orders to fulfil such a state policy in respect of the attack. The range of prosecutions for crimes against humanity up to the Rome Conference suggest the key requirement is some link between the crimes of the defendant and some ‘attack’ on a civilian population which in turn fits in with a system, ideology, pattern or ‘policy’, in a loose sense, of a state or de ­facto power, which can be evidenced merely by showing that the state or de facto power promotes, encourages, permits or tolerates such attacks. For example, the Trial Chamber in Kupreškić thought the authors of such crimes 180 See Chapter 3, Section 2. 181 See Chapter 3, Section 5.4 (referring to Mendelholm, Levasseur, Francillon, Pella, Herzog, Meyerowitz, and Aroneanu). 182 See Chapter 3, Sections 4.2–4.4 and 4.6. 183 See Chapter 4, Section 2. 184 See Chapter 3, Section 4.4. 185 See Chapter 4, Section 4. 186 See, for example, (ictr) Semanza – Trial, above n 64, [329]; Semanza – Appeal, above n 64, [269].

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could be private individuals acting without direct governmental authority but with some sort of explicit or implicit approval or toleration by governmental authorities was a requirement.187 This is a proper description of the ‘policy element’, also described as the ‘impunity principle’ argued for in Chapter 3, and widely regarded as being a necessary part of all crimes against humanity, at least up to the Rome Conference of 1998. It is this political element which distinguishes the international offence from domestic crimes. Such a requirement can be seen as being implied in the requirement that the crime be of a collective nature, be part of a widespread or systematic attack against a civilian population and not be merely some isolated criminal conduct or the work of an individual criminal plan. The comments of the Appeals Chamber in Kunarac are not necessarily incompatible with such an implied requirement. What is missing in the analysis of the Appeals Chamber in Kunarac is consideration of the type of organisation which can commit a crime against humanity. For example, by reference to what requirement does one distinguish between a widespread (but non-systematic) attack on a population and some merely isolated criminal activity? If the five elements in Kunarac are all that is required, then a disorganised, spontaneous race riot can be a crime against humanity. This suggests that something more is impliedly required in the notion of a ‘widespread or systematic attack directed against any civilian population’ than a literal application of those words. This was suggested by the Trial Chamber in Limaj in the relevant passages cited above.188

187 (icty) Kupreškić – Trial, above n 36, [555]. 188 (icty) Limaj – Trial, above n 48. 189 In relation to the first question, see: (icty) Milošević, D – Appeal, above n 23, [50]; Mrkšić – Appeal, above n 30, [35]; Prosecutor v Stanišić & Simatović (Trial Chamber Judgment), Case No IT-03-69 (30 May 2013) (‘Simatović – Trial’), [965]. However, cf. (scsl) Prosecutor v Sesay, Kllon and Gbao (Trial Chamber Judgment), Case No SCSL-04-15-T (2 March 2009) (‘ruf – Trial’), [82] (as discussed further below, the Tribunal held ‘person who is hors de combat does not prima facie fall within this definition’, citing Blaškić – Appeal, above n 37. In relation to the second question, see: (icty) Mrkšić – Appeal, above n 30, [28]–[29]; Milošević, D – Appeal, above n 23, [58]; (scsl) Prosecutor v Charles Ghankay Taylor (Trial Chamber Judgment), Case No SCSL-2003-01-T (26 April 2012) (‘Taylor – Trial’), [507] (citing Mrkšić – Appeal). See also (iht) Hamadi Al-Saedi, “Summary of the Verdict of the 1991 Case, Case No. 1/T2/2007 (12 February 2007)”, Case Western Reserve University School of Law (Spring 2010), accessible online at (‘1991 Incidents Case – Summary’), 118.

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Ultimately, therefore, even after Kunarac, the extent to which there may still be some implied policy element requirement under the icty Statute has not been fully resolved. 2.2.4 Any ‘civilian’ Population The other major controversy in the jurisprudence of the icty has been what is meant by the term ‘civilian’ and whether the actual victim of a crime against humanity must be a ‘civilian’. Earlier decisions took a broad view of the meaning of ‘civilian’ in the definition, however, the controversy surrounding the definition of ‘civilian’ was resolved by the icty Appeals Chamber in its decision of Martić of 8 October 2008. The approach of the Martić Appeals Chamber has since been followed by the icty Tribunals.189 First, the Appeals Chamber affirmed that, for the purposes of determining whether there is an attack directed against a civilian population, the term ‘civilian’ is to be interpreted in line with international humanitarian law.190 The Chamber held that the definition of ‘civilian’ in Additional Protocol i accords with the ordinary meaning of the term ‘civilian’ (in English) and ‘civil’ (in French) as persons who are not members of the armed forces.191 Secondly, the Appeals Chamber in Martić confirmed that, while the term ‘any civilian’ should be interpreted in line with ihl for the purposes of assessing whether there is an ‘attack directed against any civilian population’, this ‘does not necessarily imply that the criminal acts within this attack must be committed against civilians only.’192 Victims may be persons hors de combat even if they are not ‘civilians’ for the purposes of the chapeau elements of crimes against humanity The correctness of these conclusions as a matter of customary law is considered further in Chapter 9. 2.3 Conclusion While the Tadić decisions formed the foundation for the modern definition of crimes against humanity, the Appeals Chamber decision in Kunarac entrenched its basic elements. In the end, according to the ad hoc Tribunals, the threshold requirements of crimes against humanity as a matter of customary law are the five sub-elements nominated by the Appeals Chamber in Kunarac (with the notable exclusion of the policy element). It is from this point that the later decisions of the icty and ictr elaborated on and shape the meaning of the terms set out in the five Kunarac elements – such as ‘attack’, ‘directed 190 (icty) Martić – Appeal, above n 19, [293]–[296]. 191 (icty) Martić – Appeal, above n 19, [297]. 192 (icty) Martić – Appeal, above n 19, [305], [307].

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against’, and ‘civilian population’. Given the similarity between these elements and Article 7 of the icc Statute, as well as the extensive jurisprudence on these sub-elements, the Tribunals’ treatment of these sub-elements is likely to be influential as a matter of both customary law and in interpreting Article 7 of the icc Statute. Whilst states, courts and scholars frequently cite the judgments of the Tribunals for the meaning of crimes against humanity under customary law,193 aspects of its jurisprudence remain controversial. As discussed in Chapter 4, this is particularly so where the jurisprudence diverges from Article 7 of the icc Statute. The extent and validity of the reasoning must determine the precedential value of the court’s pronouncements, rather than the convenience of its application. Its judgments on the lack of any need for a policy element – like the abolition of a war or armed conflict nexus under customary law by 1991 as discussed in Chapter 4 – are not always persuasively reasoned. Even outside the ‘policy’ element, however, not all aspects of the Tribunals’ elaborations on the elements of crimes against humanity should be treated as settled. The definition of ‘civilian’ is another example. Despite the issue having been largely resolved at the ad hoc Tribunals, this may not be the last word on the matter. At the negotiations of the Rome Statute, several delegations argued that the term ‘civilian population’ in the context of crimes against humanity should not be interpreted as strictly limited to civilians.194 In the result, the drafters of the Rome Statute intentionally left ‘any civilian population’ undefined in order that the term may be left to the case-law.195 Nevertheless, the undoubted achievement of the ad hoc Tribunals has been the development of recognisable legal principles which have fleshed out the 193 See Chapters 5 and 6; Theodor Meron, ‘The Continuing Role of Custom in the Formation of Humanitarian Law’ in Theodor Meron, War Crimes Law Comes of Age (Oxford University Press: Oxford, 1998) 262; Sean Murphy, ‘Progress and Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia’ (1999) 93 American Journal of International Law 57, 63; and Robert Cryer et al., An Introduction to International Criminal Law and Procedure (Cambridge University Press: New York, 2010), 169–171. 194 (icty) Martić – Appeal, above n 19, [278], citing Herman von Hebel and Darryl Robinson, ‘Crimes Within the Jurisdiction of the Court’ in Roy Lee (ed), The International Criminal Court: The Making of the Rome Statute – Issues, Negotiations, Results (Kluwer Law International: The Hague, 1999) 79, 97 fn 54. 195 (icc) Prosecutor v Katanga and Chui (Decision on the Confirmation of Charges), Pre-Trial Chamber i, Case No ICC-01/04-01/07-717 (13 October 2008) (‘Katanga – Confirmation’), [399] fn 511, citing Roy Lee (ed), The International Criminal Court: Elements of Crimes and Rules of Evidence (New York: Transnational Publishers, 2001) 78: ‘Most delegations quickly agreed that this was too complex a subject and evolving area in the law, better left to resolution in case law.’).

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skeleton of crimes against humanity. Many of the stated principles are undoubtedly here to stay. In the 1950’s, Schwarzenberger was able persuasively to argue, notwithstanding the Nuremberg Precedent, that an ‘international criminal law’ does not exist.196 The work of the icty and the ictr demonstrates beyond argument that an international criminal law does exist and it includes at the forefront the offence of crimes against humanity. 3

The Internationalised Tribunals

3.1 The Special Panels of East Timor 3.1.1 Background After the adoption of the icc Statute by 121 states on 17 July 1998, there was a degree of optimism as to the international community’s resolve to deal with future ‘crimes against humanity’ and to see the old habits of impunity for perpetrators of state sponsored crimes replaced with a new age of enforcement. It was not long before that resolve was put to the test in East Timor. In the lead-up to the August 1999 referendum on independence, there were increasing reports of violence being perpetrated against local supporters of independence by various militias who were widely reported as having the support of the Indonesian authorities and military. The militias were warning of the consequences that would follow should the people vote for independence. On 4 September 1999, it was announced that 78.5% of the vote was in favour of independence. This sparked further violence with the most widely quoted figure being 1,400 deaths in 1999.197 In addition, there was widespread destruction of property under a scorched earth policy of revenge and spite that left between 60% and 80% of the country’s buildings destroyed and the forced ­displacement of over 400,000 people into Indonesian controlled West Timor.198 The Indonesian authorities appeared to be either unable or unwilling to respond. 196 Georg Schwarzenberger, ‘The Problem of an International Criminal Law’ in Gerhard Mueller and Edward M. Wise (eds), International Criminal Law (Sweet & Maxwell: New York, 1965) 3. 197 See Report of the International Commission of Inquiry on East Timor to the Secretary­General, un scor, un Doc. A/54/726, S/2000/59 (31 January 2000); Report of the S­ pecial Rapporteurs, Situation of Human Rights in East Timor, un gaor, un Doc. A/54/660 (10 December 1999); Suzannah Linton, ‘Rising from the Ashes: The Creation of a Viable Criminal Justice System in East Timor’ (2001) 25 Melbourne University Law Review 122; Romano et al., above n 2, Chapters 5 and 6. 198 Ibid.

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Following intense lobbying from the United States, Indonesia reluctantly consented to Security Council intervention. The Security Council gave an indication that it was contemplating an international criminal tribunal when it referred to ‘systematic, widespread and flagrant violations of international humanitarian and human rights law’ and stressed that ‘persons committing such violations bear individual responsibility’.199 The Security Council declared that the situation constituted ‘a threat to international peace and security’.200 Acting under Chapter vii it authorised an Australian-led operation, known as ­INTERFET, which entered East Timor on 20 September 1999. Whilst it was widely assumed that the Indonesian military was assisting the activities of the various militias, the Security Council in its resolutions, based its international response upon Indonesia’s inability to maintain peace and security and protect the East Timorese population, rather than state complicity in the violence itself.201 Despite this intervention, the mood was very much in favour of some international tribunal to prosecute those responsible. For example, the Security Council condemned all acts of violence in East Timor and demanded ‘that those responsible for such [acts] be brought to justice’.202 On 27 September 1999, the un Human Rights Commission voted for an international inquiry into alleged atrocities in East Timor.203 There then followed visits by the un International Commission of Inquiry on East Timor (iciet) and three un Special Rapporteurs to East Timor in 1999. Both iciet and the three un Special Rapporteurs recommended the establishment of an international tribunal. Postponement of such a step occurred when the Indonesian Foreign Minister promised prosecutions in Indonesia.204 Instead, the United Nations Administration in East Timor (untaet) with legislative authority over the country,205 created ‘Special Panels’, which were courts situated within the East Timorese judiciary but with international judges and with ‘universal jurisdiction’ over crimes against humanity. This became 199 un sc Resolution 1264 (1999), un Doc. S/RES/1264, 4045th mtg (15 September 1999). 200 N SC Resolution 1264 (1999), above n 199. 201 See un sc Resolution 1262 (1999), un Doc S/RES/1262, 4039th mtg (27 August 1999), [3]; un sc Resolution 1264 (1999), above n 199, [3] and [5]. 202 un sc Resolution 1264 (1999), above n 199. The Security Council also said ‘that persons committing such violations bear individual responsibility’: un sc Resolution 1272 (1999), un Doc. S/RES/1272, 4057th mtg (25 October 1999). 203 Office of the Commissioner for Human Rights, Resolution 1991/S-4/1 (adopted 4th spec sess). 204 See Identical Letters Dated 31 January 2001 from the Secretary-General to the President of the General Assembly, the President of the Security Council and the Chairperson of the Commission on Human Rights, Annex, Agenda Item 96, un Doc. E/2000/65 (9 June 2000). 205 un sc Resolution 1272 (1999), above n 202.

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the first ‘internationalised’ or ‘hybrid’ tribunal with jurisdiction over crimes against humanity. Judgment in the last trial of the Special Panels was handed down on 12 May 2005.206 3.1.2 The Statute untaet Regulation 2000/11 (Section 10) created Special Panels for Serious Crimes within the District Court of Dili (the spet). Section 5.1 provided that, in exercising their jurisdiction, the Special Panels ‘shall apply the law of East Timor as promulgated by Section 3 of untaet Regulation No. 1999/1’. In turn, Section 3.1 of the 1999 resolution provided that the laws of East Timor shall apply ‘insofar as they do not conflict with the standards referred to in Section 2, the fulfilment [sic] of the mandate given to untaet under United Nations Security Council Resolution 1272 (1999), or the present or any other regulation and directive issued by the Transitional Administrator.’ Section 2 of the 1999 resolution provided that ‘[i]n exercising their functions, all persons undertaking public duties or holding public office in East Timor shall observe internationally recognized human rights standards, as reflected, in particular, in’ the udhr, iccpr, icescr, Racial Discrimination Convention, Women Discrimination Convention, the Torture Convention, and the icorc. Despite applying East Timorese Law, Section 10.1 of untaet Regulation 2000/15 vested the Panels with universal jurisdiction over genocide, war crimes, crimes against humanity, and territorial jurisdiction over murder, sexual offences and torture when committed between 1 January 1999 and 25 October 1999.207 The definition of crimes against humanity follows Article 7 of the icc Statute exactly but leaves out the controversial definition of ‘attack’ in Article 7(2).208 This generally is assumed to have been deliberate, based on the view that the definition of ‘attack’ in Article 7 is narrower than required by customary international law.209

206 (spet) Prosecutor v Sisto Barros and Cesar Mendonca (Judgment), Special Panel Case No 1/2004 (12 May 2005) (‘Barros – Judgment’). 207 untaet Regulation 2000/15, s 2 (entered into force on 6 June 2000): the crimes are at ss 4–9. 208 untaet Regulation 2000/15, s 5.1, see Appendix i. 209 See Kai Ambos and Steffen Wirth, ‘The Current Law of Crimes of Humanity: An Analysis of untaet Regulation 15/2000’ (2002) 13 Criminal Law Forum 1, 3 and 30–34 (who nevertheless argue that there must be some link, at least by mere inaction or tolerance, between the attack and a state or de fact authority); Linton, above n 2, 207–208; Bert Swart ‘Internationalised Courts and Substantive Criminal Law’ in Romano et al., above n 2, 291, 299–300.

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Generally, at least one international judge has been appointed to each of the Panels. 3.1.3 The Jurisprudence Insofar as the underlying crimes of crimes against humanity are concerned, the Special Panels are an under-utilised resource. Given that the definition of crimes against humanity in the statute of the Special Panels mimics that of Article 7 of the icc Statute insofar as the underlying crimes are concerned, the jurisprudence of the panels becomes extremely useful in interpreting the underlying crimes in the icc. The decisions effectively form the first instance where the jurisprudence of the ad hoc Tribunals is applied to the text of the icc Statute. These aspects are considered in Chapter 10. The Special Panels are often seen as contributing little to the development of crimes against humanity insofar as the contextual elements are concerned. This may be – perhaps justifiably – because of the lack of reasoning on the contextual elements that has attended the majority of its decisions. Nonetheless, the Special Panels have contributed to the jurisprudence in the three key respects discussed below. (a) The Five Chapeau Elements and the Policy Element The first relevant decision arose in relation to the conviction of the ten members of the ‘Team Alpha’ militia group, in December 2001 (the Los Palos case210). In Los Palos, the Panel started by noting that ‘Sect. 5 of UR-2000/15 embodies the words which are contained in Art. 7 of the Finalized Draft Text of the Elements of Crimes’.211 Nonetheless, the Panel then looked directly to the jurisprudence of the ad hoc Tribunals in defining exactly what those elements were.212 The Panel followed pre-Martić jurisprudence to find that the relevant ­hostilities ‘may entail as victims both the members of a resistance movement and/or former combatants, regardless of whether they were in uniform or not, as well as those who were no longer involved in the fighting at the time the crimes were perpetrated.’213 Despite there being no explicit policy requirement in the definition, the Panel followed the existing pre-Kunarac jurisprudence of the ad hoc Tribunals 210 (spet) Prosecutor v Marques (Judgment), Special Panel Case No 09/2000 (11 December 2001) (‘Los Palos – Judgment’). 211 (spet) Los Palos – Judgment, above n 210, [634]. 212 (spet) Los Palos – Judgment, above n 210, [635]. 213 (spet) Los Palos – Judgment, above n 210, [638], citing (icty) Blaškić – Trial, above n 37, [214].

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to hold that the attack must result from a policy of a state or de facto power which exercises the highest authority in a territory with control over individuals and all other holders of power.214 Interestingly, despite the reference to the icc Elements of Crimes, no reference was made to the icc requirement of a ‘State or organizational policy’. Applied to the case before them, the Panel concluded that there was both widespread and systematic violence against a ‘civilian population’ – namely those civilians linked with political movements for the self-determination of East Timor – which was carried out by militias and members of the Indonesian armed forces with the acquiescence or active participation of civilian and military authorities.215 It may be contended that, after the Appeals Chamber decision in Kunarac, the policy element was dropped by the Special Panels. For instance, unlike the Panel in Los Palos, the majority of Panels did not explicitly refer to any ‘policy’ test as such, which may suggest an implicit abandonment of the requirement.216 Further, while a number of Panels referred to the deliberate planning or orchestration of violence in finding an ‘attack’, they referred only to the actions of the relevant militias rather than any involvement of the Indonesian authorities.217 The better view appears to be that the whilst later Panels did not adopt the Los Palos interpretation of the law, they did not challenge it. For instance, the same Panels that did not cite a policy element usually did not attempt any recitation of the chapeau elements of crimes against humanity. When they did, however, it was the Los Palos decision that was cited rather than Kunarac. 214 (spet) Los Palos – Judgment, above n 210, [639], citing (icty) Blaškić – Trial, above n 37; Kupreškić – Trial, above n 36; Tadić – Trial, above n 4; Bagilishema – Trial, above n 65; Kayishema – Trial, above n 62. For a discussion of these cases, see Chapter 4. 215 (spet) Los Palos – Judgment, above n 210, [686]–[691]. 216 For example, see: (spet) Prosecutor v Agostinho Cloe et al (Judgment), Special Panel Case No 4/2003 (16 November 2004) (‘Cloe – Judgment’); Prosecutor v Damiao da Costa Nunes (Judgment), Special Panel Case No 1/2003 (10 December 2003) (‘Nunes – Judgment’); Prosecutor v Mauno (Judgment), Special Panel Case No 3/2003 (9 June 2003) (‘Mauno – Judgment’); Prosecutor v Lao (Judgment), Special Panel Case No 10/2003 (3 December 2003) (‘Lao – Judgment’); Prosecutor v Maubere (Sentence), Special Panel Case No 23/2003 (5 July 2004) (‘Maubere – Sentence’); Prosecutor v Mesquita (Judgment), Special Panel Case No 28/2003 (6 December 2004) (‘Mesquita – Judgment’); Prosecutor v Ena and Ena (Judgment), Special Panel Case No 5/2002 (23 March 2004) (‘Ena and Ena – ­Judgment’); Prosecutor v Soares (Judgment), Special Panel Case No 7/2002 (9 December 2003) (‘Soares – Judgment’); Prosecutor v Franca (Judgment), Special Panel Case No 04a/2001 (5 December 2002) (‘Franca – Judgment’); Prosecutor v Lino de Carvalho (Judgment), Special Panel Case No 10/2001 (18 March 2004) (‘de Carvalho – Judgment’). 217 (spet) Mauno – Judgment, above n 216, [4].

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In Cardoso, for instance, decided 5 April 2003, the Panel said simply that the elements of crimes against humanity had been discussed at length elsewhere and then cited from Los Palos.218 This view is further supported by the point that, even in the icc Elements of Crimes – cited by the Panel in Los Palos – the ‘policy’ element is not referred to in the main body of Article 7 but in a footnote to the general provision. Further, the majority of Panels made the same finding as in the Los Palos case that the attacks on the population were effected to target those involved in independence movements as well as their perceived supporters with the acquiescence or active participation of civilian and military authorities.219 This suggests that the Panels found that a policy element was present as a matter of fact. (b) The Nexus Element Notwithstanding that later Panels did not engage in discussion of the case law on the contextual elements, they did develop or expand some aspects of the law. One area where their contribution has been particularly useful is in relation to the nexus elements. In respect of the requirement that an accused’s crimes be ‘part of’ the relevant attack, for instance, the Panel in Martins and Gonzales, held that a revenge killing by one militia member of another militia member was not a crime against humanity because it could not be related to the attack against the civilian population.220 The Panel in Oliveira made the same finding, although also it appeared to be influenced by the fact that the act of retribution was not planned or orchestrated but came ‘out of the blue’.221

218 (spet) Prosecutor v Cardoso (Judgment), Special Panel Case No 1/2003 (5 April 2003) (‘Cardoso – Judgment’). See also the same approach adopted in the pre-Kunarac decision, de Carvalho – Judgment, above n 216, 11. 219 (spet) Cloe – Judgment, above n 216, [11]; Nunes – Judgment, above n 216, [37]–[45]; Lao – Judgment, above n 216, [4]; Mesquita – Judgment, above n 216, [30]–[35]; Ena and Ena – Judgment, above n 216, [81] (accepting that the militia was operating ‘in close cooperation with the tni [Indonesian Armed Forces]’; Soares – Judgment, above n 216, [67]–[69]; Franca – Judgment, above n 216, [94]–[103]; de Carvalho – Judgment, above n 216, [43]–[44]. 220 (spet) Prosecutor v Martins and Gonzales (Judgment), Special Panel Case No 11/2000 (13 November 2003) (‘Martins– Judgment’), [15]–[16]. 221 (spet) Deputy Public Prosecutor v Oliveira et al. (Judgment), Special Panel Case No 12/2002 (23 February 2004) (‘Oliveira – Judgment’), [12].

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Similarly, the Panel in dos Santos considered the subjective nexus (or mens rea) element. The defendant was a member of the Besih Merah Putih militia.222 In company with other members of the militia and the Indonesian army, and on their orders (including on the orders of a District administrator), the defendant was involved in killing civilians, including the pro-independence activist Carrascalão and persons who had taken refuge in the church at Liquiçá.223 The Special Panel convicted the defendant of murder but not crimes against humanity because it was not satisfied he was aware that widespread or systematic attacks against civilian populations were also ‘being carried out throughout East Timor’.224 The Court of Appeal ruled, in the authors’ view correctly, that the defendant’s awareness did not have to cover the entire territory of East Timor.225 The Court said that – in the authors' view incorrectly and contrary to much jurisprudence, including that of the icty226 – the widespread nature of the attack refers to the defendant’s conduct and the geographic area of his operations.227 It said the mens rea requirement was made out because the defendant was aware of the widespread or systematic nature of his conduct in the area in which he was operating.228 (c) The Nullum Crimen Principle The Special Panels clarified that the principle of nullum crimen sine lege requires that careful attention must be payed to whether a particular crime against humanity was in fact a crime at the time of the offence. This concept is developed further in the eccc Appeal Decision in Duch, discussed below.229 In Franca, the Special Panel held that, since the Nuremberg Judgment, the nullum crimen principle requires the crime to be an existing one at the time of the conduct.230 It noted this might bar the retroactive application of some of the enumerated crimes against humanity (such as enforced prostitution or forced pregnancy which first appeared in Article 7 of the icc Statute) if these crimes are considered to travel beyond customary law.231 However, citing both Bassiouni and jurisprudence from the European Court of Human Rights, 222 (spet) Public Prosecutor v dos Santos (Appeals Court Judgment), Case No 16/2001 (15 July 2003) (‘dos Santos – Judgment’), [8]–[12]. 223 (spet) dos Santos – Judgment, above n 222, [8]–[12]. 224 (spet) dos Santos – Judgment, above n 222, [13]. 225 (spet) dos Santos – Judgment, above n 222, [17]. The defendant need not have knowledge of all aspects of the attack or its details and an attack need not cover an entire population or a large geographic area: see (icty) Kunarac – Appeal, above n 13, [90], [103]; Tadić – A ­ ppeal, above n 78, [248]; Kordić – Appeal, above n 33, [99]; and Chapter 4, Section 4.

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the Panel held there was nonetheless room for international criminal law to clarify and apply the law by analogy to different facts as international crimes need not ‘be proscribed in exact and precise terms’.232 Applying these principles, it held imprisonment and torture were existing crimes, but perhaps not ‘other severe forms of deprivation of liberty’.233 In applying this principle, the Special Panels initially diverged on whether or not crimes against humanity could only be applied from the date of the untaet Regulation (the instrument establishing the Special Panels) or whether or not it was sufficient that a crime was prohibited under customary international law at the date of the offence. The Court of Appeal in dos Santos took the former approach, holding that Section 31 of the Constitution (prohibiting retroactive criminal prosecutions) did not allow the defendants to be tried for crimes against humanity committed before June 2000 (when untaet Regulation 2000/15 came into force).234 The Court held that Portuguese law applied at the time of the offence (1999) and substituted the acquittal for crimes against humanity with a conviction for genocide under Portuguese criminal law.235 The Special Panel in Mendonca236 declined to follow dos Santos. Relying on Article 15 of the iccpr and Section 9.1 of the Constitution (which adopts the general or customary principles of international law into the legal system of East Timor), the Panel held that the Constitution permitted a person to be convicted for an act if at the time it ‘was criminal according to general principles of law recognised by the community of nations’.237 The Panel said: 226 It is only the attack, not the acts of the accused, that must be widespread or systematic and a single act with a single victim could, if part of the overall attack, be a crime against humanity: Kordić – Appeal, above n 33, [94] and Kunarac – Appeal, above n 13, [101]: See Chapter 4, Section 4.4. 227 (spet) dos Santos – Judgment, above n 222, [17]. 228 (spet) dos Santos – Judgment, above n 222, [18]–[19]. 229 See Section 3.3. 230 (spet) Franca – Judgment, above n 216, [59]–[66]. 231 (spet) Franca – Judgment, above n 216, [71]. 232 (spet) Franca – Judgment, above n 216, [72]–[80]. 233 (spet) Franca – Judgment, above n 216, [84]–[93]; followed in Prosecutor v Sabino Gouveia Leite (Judgment), Special Panel Case No 4a/2001 (7 December 2002) (‘Leite – Judgment’), [78] and [109], which also accepted ‘inhumane acts’ as existing crimes. 234 (spet) dos Santos – Judgment, above n 222, [14]–[15]. 235 (spet) dos Santos – Judgment, above n 222, [19]–[20]. But now see Disposition Law No 10/2003, which makes Indonesian Law applicable at the time. 236 (spet) Public Prosecutor v Sarmento and Mendonca (Decision on Defence Motion to Amend Indictment), Special Panel Case No 18a/2001 (24 July 2003) (‘Mendonca – Indictment’). 237 (spet) Mendonca – Indictment, above n 236, [18].

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… under customary international law crimes against humanity are criminal under general principles of law recognised by the community of nations, and thus constitute an exception to the principle of retroactivity. In the Čelebići case (par 313) the icty held that acts such as murder, torture, rape and inhumane treatment are criminal according to general principles of law recognised by every legal system and those who commit those acts cannot escape prosecution before an international tribunal by hiding behind the principle of retroactivity.238 It is interesting that the Panel relied upon the conduct being ‘criminal according to general principles of law recognised by the community of nations’ and the Čelebići case (which was dealing with war crimes) rather than the Tadić Jurisdiction Decision for the customary law status of crimes against ­humanity.239 This is consistent with the view expressed in Chapter 2 that the nullum crimen sine lege principle, to the extent that it has application as a principle of international criminal law, has always come with the a so-called ‘Nuremberg exception’ for conduct which is ‘criminal according to general principles of law recognised by the community of nations’ which encompasses acts such as murder, extermination, enslavement and inhuman acts, including rape and torture. The decision in Mendonca rather than dos Santos has generally been followed by the Special Panels.240 3.2 The Special Court for Sierra Leone (scsl) 3.2.1 Background Sierra Leone was in a state of civil war from at least 1991. Sierra Leone’s decadelong civil war actually began in neighbouring Liberia. In 1989, the National Patriotic Front of Liberia led by Charles Taylor was involved in an uprising against the government of Samuel Doe. On 23 March 1991, mercenaries said to be associated with or loyal to Charles Taylor, invaded Sierra Leone. A group emerged, 238 (spet) Mendonca – Indictment, above n 236, [20] and [30]. 239 It did note that the icty (without citing any case) held ‘it is beyond dispute that crimes against humanity are international crimes, and prosecutable and punishable as such’: Mendonca – Indictment, above n 236, [31]. The resort to ‘general principles of law’ in this way is supported by the author: see Chapter 2, Section 6.4. 240 See, for example: (spet) Cloe – Judgment, above n 216, [14], which also cites (icty) Prosecutor v Delalić et al (Trial Court Judgment), Case No IT-96-21-T (16 November 1998) (‘Čelebići – Trial’). See also (spet) Lao – Judgment, above n 216, [3]; Mesquita – Judgment, above n 216, [14]–[16], where the Panel said crimes against humanity has been recognised for more than fifty years and ‘can take different forms’, but that the Regulation must govern its definition before the Panel; and Martins – Judgment, above n 220, [7]–[11].

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led by Foday Sankoh, which called itself the Revolutionary United Front (ruf), and claimed to be behind the invasion. The ruf was then engaged in armed conflict with the Sierra Leone Government. That civil war led to the Abidjan Peace Accord signed between the Government and the ruf in 1996. This contained amnesties for those involved in the fighting. Within two months of the Peace Accord being signed, fighting resumed. Following unrest in the military, there was a coup on 25 May 1997 by relatively junior officers. President Kabbah and other members of the government fled to Guinea. The new military leaders were known as the Armed Forces Revolutionary Committee (afrc). The afrc struck up an alliance with the rebel force ruf. On 24 July 1997 Mr Taylor was declared President of Liberia. Meanwhile, President Kabbah formed an opposition group known as the Civilian Defence Force (cdf), which was based upon civil militias that had in the past supported the government, including a group of tribal hunters known as the Kamajors that operated particularly in the South when Kabbah was in government. Kabbah had the support of neighbouring states through ­e cowas  – which provided military support through a peacekeeping force known as ecomog. ecomog entered Freetown in February 1998 and the ruf/afrc retreated. During the conflict, the ruf/afrc had control of diamond mines in which civilians were forced to work. It was widely reported that they had the support of President Taylor of neighbouring Liberia who was profiting from the trade in diamonds. In the fighting between ruf rebels and cdf forces and militia many atrocities towards civilians took place. Often civilians were targeted because of perceived political loyalties or just to spread terror. The retreat by the rebels in particular was marked by widespread atrocities against civilians. As reported by one Trial Chamber: Such attacks “exhibited a characteristic modus operandi: amputation of limbs, mutilation, actual or attempted decapitation, rape, burning alive men, women and children, destruction of homes, abduction and looting.” […] Civilians suffered amputations of arms, hands, feet, breasts, lips and ears. The abducted civilians, numbered in the thousands, were forced to serve the afrc/ruf as “porters, potential recruits or sex slaves”. Women were actively targeted through sexual violence. The phenomenon of the ‘bush wives’ witnessed thousands of women forcibly married to rebels.241

241 (scsl) Prosecutor v Brima, Kamara and Kanu (Trial Chamber ii Judgment), Case No SCSL-04-16-T (20 June 2007) (‘afrc – Trial’), [233].

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This pattern of violence culminated in the attack on Freetown in January 1999, which, according to the Trial Chamber: has been described as “the most intensive and concentrated period of human rights abuses and international humanitarian violations in Sierra Leone’s civil war”. Reliable documentary evidence from several sources estimated that up to five thousand civilians were killed, one hundred had limbs amputated, thousands were raped, thousands were abducted, civilians were used as human shields and entire neighbourhoods were burnt to the ground, often with civilians in the houses. […] A military expert testified that the damage to Freetown during the subsequent retreat appeared to have been a policy driven by spite as there was little military justification for the crimes committed.242 According to some reports, when the afrc and the ruf attacked Freetown in January 1999, 4,000 children were abducted, 60 per cent of whom were girls.243 The response of the international community was to again hold peace talks which led to the Lomé Peace Agreement, signed on 7 July 1999. The treaty was with the ruf, but not the afrc. Foday Sankoh, the ruf leader, returned to be Vice-President. The treaty granted a wide-ranging pardon to potential defendants before any court for acts committed prior to signing the Agreement.244 This time, however, the mood of the international community towards amnesties for those accused of committing crimes against humanity had changed.245 The Secretary-General’s representative (who signed the Agreement) appended a disclaimer that the amnesty shall not apply to international crimes. Nevertheless, the Lomé Agreement was incorporated into municipal law.246 Hostilities again resumed soon afterwards. This was the last straw for the international community. In 2000, the Security Council, acting under Chapter vii, sent over 13,000 military personnel to support its mission in Sierra 242 (scsl) afrc – Trial, above n 241, [236]. 243 Simon Chesterman, Just War or Just Peace?: Humanitarian Intervention and International Law (Oxford University Press: Oxford, 2001) 155, citing Report of the United Nations High Commissioner for Human Rights on the Human Rights Situation in Sierra Leone, un gaor, 56th sess, Agenda Item 119C, un Doc A/56/281 (9 August 2001) (‘Report of High Commissioner’), [14]. 244 Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone, un scor, 54th sess, un Doc. S/1999/777 (7 July 1999), Art ix. 245 See Chapter 9 for a discussion of the legal efficacy amnesties for crimes against humanity. 246 See Report of the Secretary-General, above n 172, [23].

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Leone.247 The un High Commissioner for Human Rights stated in 2000 that atrocities committed against the people of Sierra Leone constitute crimes against humanity.248 The President of Sierra Leone, by letter dated 12 June 2000, asked the United Nations for assistance in bringing those responsible for ‘crimes against the people of Sierra Leone’ to justice.249 The Security Council on 14 August 2000 expressed deep concern at the very serious crimes committed within the territory of Sierra Leone against the people of Sierra Leone, the United Nations’ personnel and at the prevailing situation of impunity.250 Disinclined to establish another Chapter vii ad hoc Tribunal, including b­ ecause of concerns about the huge costs being incurred by the ad hoc ­Tribunals, the Security Council by Resolution 1315 requested the SecretaryGeneral to ­negotiate an agreement with the Government of Sierra Leone to create an i­ ndependent special court to prosecute persons who bear the greatest responsibility for the commission of serious violations of international ­humanitarian law and crimes committed under Sierra Leonean law. The ­Security Council stated that, under Article 39 of the un Charter, a threat to international peace had arisen and reaffirmed that the international community will exert every effort to bring those responsible to justice.251 Hostilities finally came to an end in 2001. 3.2.2 The Statute On 16 January 2002, an agreement was signed between the United Nations and the Government of Sierra Leone which annexed a Statute for the Special Court for Sierra Leone (scsl).252 The Agreement was incorporated into Sierra Leonean domestic law by the Special Court Agreement (2002) Ratification 247 un sc Resolution 1299 (2000), un Doc. S/RES/1299, 4145th mtg (19 May 2000). 248 Report of the United Nation High Commissioner for Human Rights, un gaor, 55th sess, Agenda Item 114E, Supp 36, un Doc. A/55/36 (8 August 2000), [45]. 249 Letter Dated 9 August 2000 from the Permanent Representative of Sierra Leone to the United Nations addressed to the President of the Security Council, un scor, 55th sess, Annex, un Doc S/2000/786 (10 August 2000); see also Daphna Shraga, ‘The Second Generation un-Based Tribunals: A Diversity of Mixed Jurisdictions’ in Romano et al., above n  2,  15, 19; Micaela Frulli, ‘The Special Court of Sierra Leone: Some Preliminary Comments’ (2000) 11 European Journal of International Law 857. 250 un sc Resolution 1315 (2000), un Doc. S/RES/1315, 4186th mtg (14 August 2000). See also Shraga, above n 2, 19. 251 un sc Resolution 1315 (2000), above n 250. 252 Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, un scor, 57th sess, Annex, un Doc. S/2002/246 (22 March 2002) (‘Special Court Statute’).

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Act 2002.253 Unlike the icty and ictr, the Security Council did not itself by a resolution acting under its Chapter vii powers create the scsl. Further, unlike the resolutions in respect of the icty and the ictr requiring all members of the un to cooperate with the tribunals, the Special Court is an organ of a treaty which prima facie binds only the un and Sierra Leone. Third parties to the treaty, such as Liberia, for instance, are not bound by it. The Agreement established the Special Court ‘to prosecute persons who bear the greatest responsibility for serious violations of international humanitarian law and Sierra Leonean law committed in the territory of Sierra Leone since 30 November 1996’.254 Restricting the Court to persons who bear the greatest responsibility is an interesting innovation. It suggests that the Security Council wanted to limit the work of the new international Court to the senior political leaders. By this test it may be doubted whether Tadić or most of the defendants before the Special Panels in East Timor would have been prosecuted. Nonetheless, the Appeals Chamber rejected a submission that the ‘greatest responsibility’ test was jurisdictional.255 It held that the only workable interpretation of Article 1(1) is that it guides the Prosecutor in the exercise of his prosecutorial discretion and that discretion is not to be exercised by the Court after a trial.256 As for the temporal jurisdiction of the Court, it may be assumed that it was thought politically expedient not to reach back before the Abidjan Peace Accord and to overturn the amnesties offered in it. On the other hand, respect for the amnesty in the Lomé Peace Agreement, which would have excluded jurisdiction over the attack on Freetown in 1999, would also have been politically inexpedient. The Court has jurisdiction over both international and some domestic crimes under the law of Sierra Leone.257 Article 2 on crimes against humanity provided: The Special Court shall have the power to prosecute persons who committed the following crimes as part of a widespread or systematic attack against any civilian population: (a) murder; (b) extermination; 253 It was incorporated by a local Act: The Special Court Agreement (2002) Ratification Act 2002, Supplement to the Sierra Leone Gazette vol cxxx, No ii (7 March 2002) (‘Ratification Act’). 254 Special Court Statute, Art 1. 255 (scsl) Prosecutor v Brima, Kamara and Kanu (Appeals Court Judgment), Case No. SCSL2004-16-A (22 February 2008) (‘afrc – Appeal’), [272]–[285]. 256 (scsl) afrc – Appeal, above n 255, [282]. 257 Special Court Statute, Arts 2–5.

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(c) enslavement; (d) deportation; (e) imprisonment; (f) torture; (g) rape, sexual slavery, enforced prostitution, forced pregnancy and any other form of sexual violence; (h) persecution on political, racial, ethnic, or religious grounds; (i) other inhumane acts. Whilst the influence of the icc Statute can be discerned in the expanded list of sexual offences, the Article does not include all of the enumerated crimes in Article 7, or their definitions.258 Further, the chapeau differs from the icc Statute because it does not include the definition of ‘attack’ in Article 7(2), which may be taken as a rejection of the view that such definition reflects customary law. It also does not include the special mens rea requirement of acting with ‘knowledge of the attack’. There is no direct evidence for why this was omitted from the Statute after it was included in the icc Statute and regarded as an element of the offence by the ad hoc Tribunals. The Secretary-General reported that the international crimes have the character of customary international law at the time of their alleged commission.259 The scsl sits in Freetown, Sierra Leone, and the Secretary-General appoints the majority of the judges, with Sierra Leone appointing the balance.260 3.2.3 The Jurisprudence There have been four trials at the scsl, with three trials breaking up along factional lines (the afrc Case,261 ruf Case262 and cdf Case263), and the fourth concerning former President Charles Taylor. In terms of the contextual elements of crimes against humanity, most were established in the first consideration of the topic in the afrc Case. This case is of particular importance as 258 See Frulli, above n 249, 863–864; Linton, above n 2, 234. 259 Report of the Secretary-General on the establishment of a Special Court of Sierra Leone, un scor, 55th sess, un Doc. S/2000/915 (4 October 2000) (‘Report of the Secretary-General on Sierra Leone’), [12]. 260 Special Court Statute, Art 12. 261 Alex Tamba Brima, Brima Bazzy Kamara and Santigie Borbor Kanu. afrc leader Johnny Paul Koroma was indicted on 7 March 2003 but he remains at large and his whereabouts are unknown. 262 The trial originally included Foday Sankoh, Sam Bockarie Issa Hassan Sesay, Morris Kallon and Augustine Gbao, but Sankoh and Bockarie died before their trials began. 263 The trial originally included Norman, Fofana and Kondewa, but Norman died during his trial.

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b­ eing the only case since the Kosovo cases in the icty to convict non-state actors of crimes against humanity. Further, however, the jurisdiction of the scsl was considered in both the cdf Case and the Taylor case, and the consideration of the terms ‘directed against’ and ‘civilian population’ in the cdf Case is also of some significance. (a) The afrc Case (Brima, Kamara and Kanu) In the first Judgment to be given by the scsl, the Trial Chamber in the afrc case (20 June 2007)264 noted how the definition of crimes against humanity in the scsl Statute was different to the icty (as no nexus to an armed conflict was required), the ictr (as no requirement existed for the attack to be on national, political, ethnic, racial or religious grounds) and the icc Statute (as there was no need for the perpetrator to act with knowledge of the attack) definitions.265 The Trial Chamber had earlier expressed the view that the jurisprudence of the two Tribunals regarding crimes against humanity ‘are as varied as their Statutes’.266 Nevertheless, without further analysis, the Trial Chamber accepted the ‘five elements’ of a crime against humanity as explained by the Appeals Chamber in Kunarac.267 It accepted that there must an ‘attack’ and that the attack was separate to an armed conflict and could precede or outlast such a conflict.268 The Chamber accepted that an attack must be widespread or systematic and that such a formulation was ‘sufficient to exclude isolated or random acts’.269 The Chamber held that the term ‘widespread’ referred to the ‘massive, frequent, large-scale action, carried out collectively with considerable seriousness and directed at multiple victims’, while the term ‘systematic’ and ‘organised action following a regular pattern and carried out pursuant to a pre-conceived plan or policy, whether formalised or not’.270

264 (scsl) afrc – Trial, above n 241. 265 (scsl) afrc – Trial, above n 241, [212]. 266 (scsl) Prosecutor v Brima, Kamara and Kanu (Decision on Defence Motion for Judgment of Acquittal Pursuant to Rule 98), Case No SCSL-2004-04-16-T469 (31 March 2006) (‘afrc – Rule 98 Decision’), [41] 267 (icty) Kunarac – Appeal, above n 13, [212]–[213]. 268 (scsl) afrc – Trial, above n 241, [214], citing (icty) Limaj – Trial, above n 48; Kunarac – Appeal, above n 13; and Tadić – Appeal, above n 78. 269 (scsl) afrc – Trial, above n 241, [215], citing (icty) Kunarac – Appeal, above n 13; and Tadić – Trial, above n 4. 270 (scsl) afrc – Trial, above n 241, [215], citing (ictr) Akayesu – Trial, above n 63; (spet) Kayishema – Trial, above n 62; (icty) Kunarac – Appeal, above n 13; and Tadić – Trial, above n 4.

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This position has been consistently followed in the scsl.271 In elaborating on the Kunarac elements, however, the Trial Chamber explored two particular aspects of note: first, the meaning of the term ‘civilian’; and secondly, the ‘policy’ requirement. Related to the second aspect also, is the chamber’s consideration of the term ‘population’ in a context outside of the ethnic violence that had characterised the conflicts in the icty and ictr. As to the Trial Chambers’ treatment of the meaning of ‘civilian’ in the term ‘civilian population’: At first, in an interlocutory decision in answer to a motion for acquittal, the Trial Chamber followed the approach of the Trial Chamber in Blaškić, rather than the approach of the Appeals Chamber, where the Trial Chamber had held that victims of crimes against humanity can include: [T]hose who were members of a resistance movement or former combatants – regardless of whether they wore uniform or not – but who were not longer taking active part in the hostilities because they had left the army or were no longer bearing arms or, ultimately had been placed hors de combat, in particular because of their wounds or their being detained. The specific situation of the victim at the moment the crimes were committed, rather than his status, must be taken into account in determining his standing as a civilian’.272 This interlocutory decision was, however, later rejected by the Trial Chamber in its trial judgment, where the Trial Chamber held: The term “civilian population” has been widely defined to cover not only civilians in the ordinary and strict sense, but all persons who have taken no active part in the hostilities, or are no longer doing so, including members of the armed forces who laid down their arms and persons placed hors de combat by sickness, wounds, detention or any other reason.273 However, the Court then rejected the Prosecution’s definition of ‘civilian’ as any person who took no active part in the hostilities or who had ceased to take 271 (scsl) Prosecutor v Fofana and Kondewa (Trial Chamber Judgment), Case No SCSL04-14-T (2 August 2007) (‘cdf – Trial’), [110]; ruf – Trial, above n 189, [76]–[77]. 272 (scsl) afrc – Rule 98 Decision, above n 266, [42(c)]; and see Chapter 4, Section 4.3. See also Prosecutor v Norman, Fofana and Kondewa (Decision on Motions for Judgment of Acquittal Pursuant to Rule 98) Case No SCSL-2004-04-14-T473 (21 October 2005) (­ ‘Norman – Rule 98 Decision’), [58] quoting (icty) Blaškić – Trial, above n 37, [214]. 273 (scsl) afrc – Trial, above n 241, [216]; citing (ictr) Akayesu – Appeal, above n 63, [582]; and (icty) Tadić – Appeal, above n 78, [637]–[638].

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any active part in the hostilities, stating this to be ‘overly broad and inconsistent with customary international law’.274 Following the Appeal Chambers’ approach in Blaškić and Galić, the Court held ‘the term civilian must be narrowly defined in order to ensure a distinction in an armed conflict between civilians and combatants no longer participating in hostilities’.275 This suggests the distinction may not be relevant if there is no situation of armed conflict. The same questions were also raised in the cdf and ruf cases (discussed below). As to the ‘policy requirement’, the afrc case is the most significant case since Limaj in providing an understanding of whether or not some policy requirement of sorts is required for the chapeau elements of a crime against humanity. As noted above, the Trial Chamber made a number of legal pronouncements that brought the scsl in line with the position of the icty and ictr since Kunarac, including that there need only be a widespread or systematic attack. Most importantly, however, the Trial Chamber followed Kunarac in holding that the fact that the crimes were supported by a policy or plan to carry them out may be relevant to make out a systematic or widespread attack or that it was directed against a civilian population, but it is not a separate requirement.276 This position has also been adopted consistently by the scsl.277 This conclusion must be analysed closely. First and foremost, the Chamber undertook no analysis in reaching this conclusion. It did not mention the definition of attack under Article 7(2) of the icc Statute or consider the extent to which that definition, which predated the Special Court Statute, might be taken to have crystallised, reflected or created customary law. Nor did it analyse the extent to which this finding sat alongside its definition of an ‘attack’, namely, a ‘campaign, operation or course of conduct’ which ‘encompasses any mistreatment of the civilian population’.278 This definition, which has been followed in other cases at the scsl,279 appears to suggest that the concept of an ‘attack’ imports some minimal level of co-ordination, organisation or planning. But the finding must be considered in light of the nature of the crimes considered by the Chamber as well as the Chamber’s important findings that there 274 (scsl) afrc – Trial, above n 241, [218]. 275 (scsl) afrc – Trial, above n 241, [219]. 276 (scsl) afrc – Trial, above n 241, [219]. 277 (scsl) cdf – Trial, above n 271, [113]; afrc – Trial, above n 241, [216]; ruf – Trial, above n 189, [78]–[79]; Taylor – Trial, above n 189, [511]. 278 (scsl) afrc – Trial, above n 241, [214], citing (icty) Kunarac – Appeal, above n 13; Limaj – Trial, above n 48; Naletilić – Trial, above n 34; and (ictr) Akayesu – Trial, above n 63. 279 (scsl) ruf – Trial, above n 189, [76]–[77].

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was both a widespread and systematic attack by the afrc/ruf against the civilian population in Sierra Leone.280 It analysed the attack by reference to two distinct phases. The first phase analysed was the military government phase from May 1997 to February 1998. During this phase, the attack was government-sponsored and directed against punishing civilians suspected of supporting the cdf/­ Kamajors.281 The acts included extrajudicial killings, mutilations, amputations, rapes and beatings of unarmed civilians, property being looted and homes burned.282 The Trial Chamber accepted that the attack was aimed broadly at quelling opposition to the regime and punishing suspected collaborators of that regime,283 but unlike the conclusion of the Trial Chamber in Limaj, it held there was, nevertheless, an attack against a ‘civilian population’. This was largely because ‘[s]uch attacks were not limited to selected individuals, [but] rather, entire villages were burned on the basis that they harboured Kamajors.’284 This was done to eliminate potential civilian support for the cdf/Kamajors, as a means of consolidating control and to eliminate opposition to the regime.285 Hence, the ‘population’ on the Court’s reasoning was a mix of a geographic and assumed political identity. In the areas of the diamond mines, civilians were terrorized and made to work in the mines on certain days.286 The attack was ‘systematic’ because the crimes were committed at the behest of the state and afrc/ruf officials287 and the attacks on the civilians in the diamond mine areas were done pursuant to a plan or policy of the afrc.288 During the second phase, after February 1998, the afrc/ruf government withdrew from Freetown and the two factions acted as non-state actors. Apart from the Limaj case involving the Kosovo Liberation Army, the afrc case is one of the few instances where the author of a crime against humanity has been a non-state actor acting without some state or local authority support or acquiescence. Whilst organisations such as the Croats or Serbians in Bosnia (or elsewhere in the former Yugoslavia) were often strictly non-state actors, they had the support of a state, as such – viz, Serbia and Croatia. In addition, they also were, or had the support of, the local political/military authorities on the 280 (scsl) afrc – Trial, above n 241, [224]. 281 (scsl) afrc – Trial, above n 241, [224]–[225]. 282 (scsl) afrc – Trial, above n 241, [225]. 283 (scsl) afrc – Trial, above n 241, [225]. 284 (scsl) afrc – Trial, above n 241, [227]. 285 (scsl) afrc – Trial, above n 241, [231]. 286 (scsl) afrc – Trial, above n 241, [229]. 287 (scsl) afrc – Trial, above n 241, [230]. 288 (scsl) afrc – Trial, above n 241, [231]–[232].

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ground. The same can be said about the Hutu militia in Rwanda or the many militias in East Timor. The Trial Chamber found that out of government the ‘focal points of the violence shifted as afrc/ruf troops moved through the various provinces faced with the challenges of more limited resources and poorer organizational capacity’.289 Citing Limaj, it stated that: The point has been made in the jurisprudence of the icty that such practical difficulties may typically result in attacks by non-state actors being less obviously classified as ‘widespread’ or ‘systematic’. However, the Trial Chamber finds that this was not the case in Sierra Leone. Instead, the continued attack against the civilian population was in most instances more frequent and brutal.290 Whilst the Trial Chamber in Limaj referred to the need for the non-state organisation to have a level of de facto control over territory in order to have sufficient competence to formulate a policy,291 no such requirement was expressed by the scsl when considering the ability of the afrc (a non-state actor) to commit a widespread or systematic attack against a civilian population. The reasoning behind the Trial Chamber’s conclusion appears to have simply focused on the scale of the attack and its organised nature rather than the status of the afrc as a de facto political organisation or state-like entity with control over people and/or territory. This view appears to have been adopted in the early jurisprudence of the icc (see Chapter 6). However, it is not entirely clear that the Trial Chamber intended to reject this as a relevant threshold for non-state actors. The evidence suggested that the afrc/ruf, whilst out of power, was still a de facto power on the ground within the meaning of Limaj. This was by reason of their numbers, the weapons at their disposal and the inability of the state and its organs to combat them or prevent the attacks. It is worth noting that it was ‘the prevailing situation of impunity’ with respect to the attacks of the afrc/ruf which prompted the Security Council’s intervention and its call for those responsible to be brought to justice.292 The attacks were inferred to be against the civilian population because they served no military purpose and were seen as a legitimate way of advancing the 289 (scsl) afrc – Trial, above n 241, [226]. 290 (scsl) afrc – Trial, above n 241, citing Limaj – Trial, above n 48, [191]. 291 (icty) Limaj – Trial, above n 48, [213], citing Kupreškić – Trial, above n 36, [552]. 292 un sc Resolution 1315 (2000), above n 250.

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afrc/ruf cause.293 After describing the attacks,294 the Trial Chamber stated that they were certainly ‘widespread’ but were also ‘systematic’ because the leaders of the rebels sanctioned looting, to permit the rebels to be self-reliant, and the leaders also instructed the troops to attack the civilians with which they came into contact.295 The decision in this regard is of significance because, unlike most of the prior icty and ictr jurisprudence, the target was not an ethnic ‘population’, meaning some group marked out by their common features or assumed political allegiance, but it was simply the civilians in a geographic area. Also, the ­attacks, whilst to some extent ‘politically’ motivated, in a loose sense, were largely explicable as simple banditry, to spread terror or to obtain control of the diamond mines. The accused were convicted of crimes against humanity as it was held that they had assumed responsibility for some parts of the ­attack or crimes in question and they knew their conduct formed part of a widespread and systematic attack.296 (b) cdf Case (Norman, Fofana and Kondewa) The cdf Case is important for two particular matters. First, its decision on the preliminary motion on jurisdiction (decided 13 March 2004), considered the nullum crimen principle in the context of crimes against humanity at the scsl. And secondly, the Trial Judgment (decided 2 August 2007) contributes materially to the five chapeau elements set out in Kunarac. As to the first, the accused in the cdf Case challenged the jurisdiction of the court based on the nullum crimen principle. The Appeals Chamber accepted it was bound by the nullum crimen principle and that the offences have to be existing offences under international customary law at the date of the conduct charged.297 Accordingly, the accused submitted that the scsl was, unlike the icty or the ictr, a domestic court created by the Special Court Agreement 293 (scsl) afrc – Trial, above n 241, [234]. 294 See the remarks quoted at nn 241 and 242 above. 295 (scsl) afrc – Trial, above n 241, [238]. 296 (scsl) afrc – Trial, above n 241, [239]. 297 (scsl) Prosecutor v Norman (Decision on Preliminary Motion on Lack of J­urisdiction – Child Recruitment), Case No SCSL-2004-14-AR72(E) (31 May 2004) (‘Norman – P ­ reliminary Motion’). After a thorough analysis, it concluded (by majority) that recruiting children into armed conflict was at the time an existing international crime. There was a lengthy dissent by Justice Robertson. 298 (scsl) Prosecutor v Norman, Kallon and Kamara (Decision on Constitutionality and Lack of Jurisdiction), Case Nos SCSL-2004-14-AR72(E), SCSL-2004-15-AR72(E) & SCSL-2004-16AR72(E) (13 March 2004) (‘Norman – Constitutionality’), [15].

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(2002) Ratification Act298 and it could not apply the new crimes (Articles 2, 3 and 4) retrospectively because the Constitution of Sierra Leone prohibits the retroactive application of new criminal offences.299 The Appeals Chamber rejected this submission, holding that the scsl was an international court only bound by international law because it was established by an international treaty.300 It accepted, without analysis, that Articles 2–4 were existing international crimes.301 This was followed in the afrc Case, where the Trial Chamber said Article 2 was an existing crime, relying on the Tadić Jurisdiction Decision and, curiously, Sierra Leone’s signature of the icc Statute.302 The icc Statute only grants the icc jurisdiction over nationals of Sierra ­Leone from 1 July 2002, after the events in question. As explained above, the Trial Chambers have not considered the extent to which the definition in ­Article 7 of the icc Statute can be regarded as reflecting or creating customary international law. The Trial Chamber also did not consider the fact that the definition of crimes against humanity considered in the Tadić Jurisdiction Decision came with a nexus to armed conflict so the Appeals Chamber holding was only that a link with international conflict was not necessary and may not require a nexus with armed conflict at all. The Trial Chamber over the cdf accused also held that it must be satisfied that the charges of crimes against humanity as defined were existing offences under customary law.303 The Court agreed with the statements in the Tadić Trial Judgment that since the London Charter the customary status of crimes against humanity and with individual responsibility has not been seriously challenged.304 This of course came with a nexus to war. It also referred to the Tadić Jurisdiction Decision and concluded that each offence charged as crimes against humanity was an offence under customary international law.305

299 (scsl) Norman – Constitutionality, above n 298, [15]. 300 (scsl) Norman – Constitutionality, above n 298, [48]–[53]. Orentlicher agrees it is an international court: Orentlicher, above n 2, 215. This is confirmed by Section 11(2) of the Ratification Act which says the Special Court does ‘not form part of the Judiciary of Sierra Leone’. 301 (scsl) Norman – Constitutionality, above n 298, [80]–[82]. 302 (scsl) afrc – Rule 98 Decision, above n 266; see also (icty) Prosecutor v Tadić (Defence Motion for Interlocutory Appeal on Jurisdiction), Case No IT–94–1–AR72 (2 October 1995) (‘Tadić – Jurisdiction’). 303 (scsl) cdf – Trial, above n 271, [88], [94]. 304 (scsl) cdf – Trial, above n 271, [102], citing Tadić – Trial, above n 4, [622]–[623]. 305 (scsl) cdf – Trial, above n 271, [102]–[103].

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As to the second, namely, the consideration of the merits of crimes against humanity, as was noted above, the Trial Chamber followed the same approach as the afrc Case in accepting the Kunarac elements with little further ­discussion.306 The case is notable in two ways: the elaboration on the term ‘civilian’; and elaboration on the term ‘directed against’. In respect of the definition of ‘civilian population’, the same approach was taken by the Trial Chamber as had been taken in the afrc Case. While the Trial Chamber initially appeared to follow the Blaškić Trial Chamber,307 the Chamber ultimately accepted the position of the Blaškić Appeal Chamber.308 That is, that the term ‘civilian’ is to be defined in accordance with international humanitarian law. Further, the Trial Chamber also followed Limaj to hold that the targeting of a select group of civilians – for example, the targeted killing of a number of political opponents – cannot satisfy the ‘population’ requirement as such and the requirement will not be made out if the crimes are directed against a limited and randomly selected number of individuals.309 The same reliance on Limaj was also made in the ruf case.310 Applying these principles to the facts, the Trial Chamber found that violent attacks had taken place by the Kamajors (operating in conjunction with the cdf) on many civilians in five towns between November 1997 and February 1998.311 Further, the Chamber found that, given the geographical breadth of the attack the Trial Chamber concluded it met the test of being ‘widespread’.312 And, it stated that, given the attack was ‘widespread’, it did not need to consider whether the attack was also ‘systematic’.313 At the time, the cdf forces, in conjunction with the troops of ecomog, were seeking to drive out the military junta and restore the former government of Kabbah. However, the Chamber found that the attack was not ‘directed against’ a ‘civilian population’.314 Rather, the attack was directed against the rebels or juntas who controlled villages and communities throughout Sierra Leone and that they fought for the restoration of democracy. 306 (scsl) cdf – Trial, above n 271, [110]. 307 (scsl) Norman – Rule 98 Decision, above n 272, [58] quoting (icty) Blaškić – Trial, above n 37, [214]; see also (scsl) afrc – Rule 98 Decision, above n 266, [42(c)]; and Chapter 4, Section 4.3. 308 (scsl) cdf – Trial, above n 271, [116]. 309 (scsl) cdf – Trial, above n 271, [119]. 310 (scsl) ruf – Trial, above n 189, [85]. 311 (scsl) cdf – Trial, above n 271, [691]. 312 (scsl) cdf – Trial, above n 271, [692]. 313 (scsl) cdf – Trial, above n 271, [692]. 314 (scsl) cdf – Trial, above n 271, [693].

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On Appeal, the Appeals Chamber rejected the Trial Chamber’s finding that the attack was not ‘directed against’ a ‘civilian population’ and convicted the accused of crimes against humanity. On the one hand, the Appeals Chamber endorsed the Trial Chamber’s characterisation of the term ‘civilian’.315 The Appeals Chamber followed the Galić Appeal Judgment in clarifying what constitutes a ‘civilian’ population. The Chamber held that the presence of some combatants, resistance fighters or former combatants who have laid down their arms will not deprive the population of its civilian character.316 Similarly, the presence of rebels or members of the junta will not deprive the population of its civilian character.317 Also, it held that ‘collaborators’ and members of the police, whilst under civilian control, were civilians under international humanitarian law.318 The Appeal Chamber (rejecting the Trial Chamber’s finding), held that it was manifestly incorrect to conclude that a widespread or systematic attack against a civilian population cannot be characterised as crimes against humanity simply because the ultimate objective of the fighting force was legitimate or aimed at responding to aggressors or aimed at restoring democracy.319 This position appears sensible. There was, however an absence of detailed reasoning as to how the Trial Chamber arrived at its conclusion, and, the conclusion that the fact that the object was to defeat the junta and their supporters or that the ‘attack’ occurred during military operations against a legitimate military target does not exclude the possibility of there also being an attack directed against a civilian population. After a detailed examination of the facts, the Appeals Chamber emphasised that what is required is that the target be the civilian population, not that the civilian population is the object or purpose of the attack.320 It referred to the fact that there were mass killings of civilians after the junta and rebels had departed.321 In light of the fact that the killings were remote from military ­operations and were part of a common pattern of targeting civilians, the ­Appeals Chamber overturned the Trial Chamber and held that the attacks were directed against a civilian population.322 315 (scsl) Fofana and Kondewa v Prosecutor (Appeals Chamber Judgment), Case No SCSL04-A-829 (28 May 2008) (‘cdf – Appeal’), [258]–[259]. 316 (scsl) cdf – Appeal, above n 315, [259]. 317 (scsl) cdf – Appeal, above n 315, [259]. 318 (scsl) cdf – Appeal, above n 315, [260]. 319 (scsl) cdf – Appeal, above n 315, [247]. 320 (scsl) cdf – Appeal, above n 315, [299]. 321 (scsl) cdf – Appeal, above n 315, [303]–[304]. 322 (scsl) cdf – Appeal, above n 315, [306]–[308].

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As for the mens rea requirement, the Chamber also held the ‘[a]ccused must have known or had reason to know that there is an attack on the civilian ­population.’323 The ‘reason to know’ test is troubling as it suggests constructive notice will suffice. Later it said the accused must understand the overall context in which his acts took place.324 Unfortunately, the Appeals Chamber did not give any consideration either to the Trial Chamber’s failure to consider whether the attack was ‘systematic’ as well as its citation of Limaj. The facts support the finding that as the killings and mistreatments were at the direction of the group’s leaders and were so arbitrary and widespread – such as orders directed against ‘perceived’ collaborators and their properties simply by reason of their residence in the area, their tribe, filial relations, membership of the police force or just whim325 – that the attack was directed in truth against the civilian population in the areas rather than against select individuals because of their individual characteristics. (c) Charles Taylor Trial On 7 March 2003, the scsl issued a sealed indictment for the sitting President of Liberia, Charles Taylor. The charges involved facilitating, ordering, planning, and aiding and abetting a number of crimes, including crimes against humanity, terrorizing the civilian population, unlawful killings, and sexual violence.326 Taylor allegedly instigated and backed the ruf rebels by providing financial and military assistance and acting in concert with them to gain control over Sierra Leone so as to access the country’s diamonds and other resources. On 4 June 2003, while Taylor was in Ghana for peace talks with Liberian rebel groups, the scsl issued an arrest warrant which the Prosecutor claimed was served on the authorities of Ghana, and transmitted to Interpol.327 At the opening of the peace conference in Accra, Taylor announced that he would step down by the end of his mandate in January 2004. Just after being applauded, he left the conference abruptly and boarded a Ghanaian plane to fly back to Liberia.328 Ghanaian authorities did not apprehend him. In fact they claimed not to have received it. 323 (scsl) cdf – Appeal, above n 315, [121]. 324 (scsl) cdf – Appeal, above n 315, [121]. 325 See the summary at (scsl) cdf – Appeal, above n 315, [266]–[296]. 326 (scsl) Amended Indictment and Case Summary Accompanying the Amended Indictment, Case No. SCSL-2003-01-I (received March 17, 2006). 327 See Cesare Romano and André Nollkaemper, ‘The Arrest Warrant Against the Liberian President, Charles Taylor’, asil Insight (June 2003), accessed online at on 29 November 2007. 328 Romano and Nollkaemper, above n 327.

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Later in June 2003, Liberia’s Defence Minister and the rebels signed a peace agreement in Accra which called for the deployment of peace-keepers, and a transitional government to replace Taylor’s. As news of the agreement was released, Taylor warned that there would be no peace in Liberia unless the indictment against him was dropped.329 By 2003, Liberia had endured fourteen years of civil strife during which approximately 250,000 individuals were killed. Accordingly, un Secretary General Kofi Annan put pressure on the us to send troops to enforce the peace accord. President Bush sent 2,300 marines in three Navy ships, but a condition of us troop involvement was that Taylor step aside.330 In the end, with the support of the United States,331 Mr Taylor was offered asylum in Nigeria. He arrived on 11 August 2003 to a grand airport reception attended by some African leaders, like the South African President Thabo Mbeki. The terms of that asylum were never made clear nor was it made clear the extent to which the Secretary-General or the international community agreed with the offer of asylum. Any written agreement on the matter would have been embarrassing given the fact that Mr Taylor was an indictee of an international court. As noted at the time the indictment was issued against Taylor, contrary to the icty and ictr, the Security Council never invoked its Chapter vii powers to call upon all member states to cooperate with the Special Court.332 Hence, Liberia, not being bound by the treaty between the United Nations and Sierra Leone was arguably entitled to have Ghana abide by its customary international law obligation to respect Taylor’s immunity as a foreign head of state in the same way as Belgium in the icj Arrest Warrant case (discussed further in Chapter 11).333 An alternative view is that the scsl constituted an ‘international criminal court’ of the type excepted by the icj in the Arrest Warrant Case. Perhaps, in light of this question, while in Nigeria, Taylor ‘under protest and without waiving immunity’ sought to challenge his indictment on the ground 329 Romano and Nollkaemper, above n 327. 330 See, for example, Steven Weisman and Thom Shanker, ‘Pressure Up, Washington Is Split on Liberia’, New York Times (9 August 2003). 331 Mr Colin Powell has admitted that the United States supported the grant of asylum by Nigeria, see below text accompanying nn 343 and 344. 332 Ibid, quoting un sc Resolutions: 1478 (2003); 1470 (2003); 1436 (2003); 1408 (2002); and 1400 (2002). 333 (icj) Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) (Judgment) [2002] icj Rep 3 (‘Arrest Warrant Case’).

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of head of state immunity.334 Even though he was no longer in office, he contended that the indictment was issued while he was still President. This was despite Article 6(2) of the scsl Statute, which purported to override any such claim. On 31 May 2004, the Court dismissed this argument on the ground that the scsl was ‘an international tribunal’.335 The Court examined the legal basis of the scsl.336 It noted that ‘[m]uch issue had been made of the absence of Chapter vii powers in the Special Court’.337 It held, however, that the legal basis of the Court was anchored in Security Council Resolution 1315 authorising the Secretary General to reach an agreement with Sierra Leone to create a Court.338 In that resolution, the Security Council had stated that the situation was a threat to international peace. It concluded that: The Agreement between the United Nations and Sierra Leone [establishing the scsl] is thus an agreement between all members of the United Nations and Sierra Leone. The Special Court established in such circumstances is truly international.339 After referring to the precedents in the London Charter, the Nuremberg Principles, the icty, ictr and icc Statutes, and the Arrest Warrant Case of the icj, it concluded that the sovereign equality of states does not prevent a Head of State being prosecuted by an international criminal court which included the scsl.340 Hence, it did not have to consider the extent to which Taylor had immunity before a national court, including since he was no longer President (discussed further in Chapter 11). Despite this decision, between 2004 and 2006, Nigeria resisted international calls to surrender Taylor, stating that there was an unwritten agreement that Taylor would not be tried until democracy stabilised in Liberia.341 In 2005, the Federal Attorney General, Chief Charles Akinlolu Olujimi, said that Nigeria 334 (scsl) Prosecutor v Taylor (Decision on Immunity from Jurisdiction), Case No SCSL2003-01-I (31 May 2004) (‘Taylor – Immunity Decision’). He stepped down in August 2003 under threat of un and United States intervention. 335 (scsl) Taylor – Immunity Decision, above n 334, [37]–[42] and [58]–[59]. 336 (scsl) Taylor – Immunity Decision, above n 334, [38]. 337 (scsl) Taylor – Immunity Decision, above n 334, [38]. 338 (scsl) Taylor – Immunity Decision, above n 334, [38]. 339 (scsl) Taylor – Immunity Decision, above n 334, [38]. 340 (scsl) Taylor – Immunity Decision, above n 334, [45]–[50]. The Court said it was a separate issue whether the Security Council requires other States to co-operate.

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would keep Taylor for as long as the present Liberian Government does not request his transfer to the country: Taylor is in Nigeria as a measure to save lives and properties in Liberia. When Taylor was still in power, the killing of people and destruction of properties continued unabated. Now, the only thing that could stop the wanton destruction of lives was the withdrawal of Taylor from L­ iberia […] Africa and the rest of the world supported Nigeria’s action. Nigeria made a condition precedent before Taylor was granted political asylum. The condition was that Nigeria will not be harassed to release him, and no country of the world rejected that condition before Nigeria granted Taylor political asylum.342 At least as a temporary solution, the Nigerian approach did command support. In May 2005, then us Secretary of State, Colin Powell, said President Olusegun Obasanjo should not be asked ‘to be unfaithful to the commitment he made to provide asylum to former Liberian President Charles Taylor in 2003 in a successful effort to end the civil war […] The United States was a full partner in that agreement’.343 ‘Ultimately, Charles Taylor will face justice,’ but for the moment the agreement that was made must be respected, Powell said at the time.344 Similarly, the Security Council in Resolution 1638 (2005) expressed its appreciation to Nigeria in providing for the ‘temporary’ stay of Charles Taylor, which it admitted was ‘with broad international support’.345 Although, at the same time, it included in the mandate of the un Mission to Liberia the arrest and transfer of Taylor to the scsl should he return to Liberia.346 In 2006, national elections in Liberia resulted in a change in Liberia’s government. Shortly afterwards, new President Ellen Johnson Sirleaf requested 341 See Emmanuel Onwubiko, ‘Pressure on Nigeria to End Taylor’s Asylum’, Guardian News (10 May 2005). 342 Onwubiko, above n 341. 343 Reed Kramer, ‘Africa: Powell defends Obasanjo on Taylor and calls for greater support for Africa’, All Africa (10 May 2005), accessed online at on 1 December 2007. 344 Kramer, above n 343. 345 un sc Resolution 1638 (2005), un Doc S/RES/1638, 5304th mtg (11 November 2005), preamble: see Micaela Frulli, ‘A Turning Point in International Efforts to Apprehend War Criminals’ (2006) 4(2) Journal of International Justice 351. 346 un sc Resolution 1638 (2005), above n 345, [1].

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Nigeria to arrest Taylor pursuant to the scsl indictment, and Taylor was arrested while attempting to flee Nigeria.347 He was transferred to the Special Court on 29 March 2006 and made his first appearance on 3 April 2006. However, following concerns that prosecuting Taylor in Sierra Leone might destabilize the region, he was transferred to the facilities of the icc at The Hague. On 31 March 2006, the Security Council welcomed Taylor’s transfer to the custody of the Special Court.348 The trial of Charles Taylor commenced on 4 June 2007 and on 26 April 2012 the Trial Chamber convicted the accused of all 11 charges on the Indictment, including 5 counts of crimes against humanity, on the basis of aiding and abetting and planning liability. Charles Taylor was sentenced to 50 years’ imprisonment on 30 May 2012. On 23 September 2013, the Appeals Chamber upheld Taylor’s convictions and sentence. The substantive aspects of the trial and appeal judgments are referred to throughout Chapter 9. 3.3 The Extraordinary Chambers in the Courts of Cambodia (eccc) 3.3.1 Background Between 1975 and 1979, the Communist Party of Kampuchea (cpk) – more commonly known as the Khmer Rouge – committed atrocities against the local population in Cambodia on a vast scale. It is estimated that some 2 million people perished – constituting between a quarter and a third of the population.349 In the 1990s, the new regime in Cambodia was confronted with the question of whether to put some of the Khmer Rouge leaders on trial. In 1996, however, Ieng Sary, a former Deputy Prime Minister and member of the cpk Standing Committee, was granted a pardon for a 1979 in-absentia conviction for genocide, and then an amnesty under a Decree for offences under local law.350 In 1997, Cambodia sought the un Secretary-General’s assistance in bringing to justice those responsible.351 There then followed a drawn-out process of negotiations as Cambodia rejected the un’s insistence that international judges 347 See Mark Drumble, ‘Charles Taylor and the Special Court for Sierra Leone’, asil Insight (April 2006), accessed online at on 29 November 2007. 348 un sc Resolution 1667, un Doc S/RES/1667, 5406th mtg (31 March 2006). 349 See Craig Etcheson, ‘The Politics of Genocide Justice in Cambodia’ in Romano et al., above n 2, 181, 181; and (eccc) Prosecutor v Nuon Chea & Ors (Closing Order), Case 002/01, D427 (15 September 2010) (‘Case 002/01 – Closing Order’), [1360]. 350 Shraga, above n 2, 30. 351 Orentlicher, above n 2, 216.

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be in the majority. Ultimately, following un General Assembly approval,352 an agreement over the Extraordinary Chambers was signed between Cambodia and the un on 6 June 2003. The agreement accepted that international judges were to be in the minority, but put in place a super-majority voting mechanism which ensures that no decision by any chamber could be reached without at least the support of one of its international judges.353 The domestic Cambodian legislation establishing the eccc – the Law on Extraordinary ­Chambers354 – was then amended to ensure consistency with the Agreement on 27 October 2004. In the result, the Extraordinary Chambers in the Courts of Cambodia (eccc) has a Pre-Trial Chamber and a Trial Chamber with five judges each (three Cambodian and two international), and a Supreme Court Chamber with seven judges (four Cambodian and three international). Affirmative decisions require the vote of at least four and six judges respectively.355 The eccc was officially established on 9 February 2006 but it took further time for the judges to be appointed. The Plenary of the eccc Judges adopted the Court’s Internal Rules (effectively, the rules of procedure and evidence) on 12 June 2007. Under the Law and the Rules, the eccc uses the civil law inquisitorial procedure, which is conducted jointly by an international and national Co-Investigating Judge.356 Like the Office of the Co-Investigating Judges, the Office of the Co-Prosecutors is headed by a national and international Co-Prosecutor.357 352 un ga Resolution 57/228 (2002), 3rd Comm, 57th sess, 85th plen mtg, Annex, Agenda Item 109(b), un Doc. A/RES/57/228 (18 December 2002). 353 Agreement Between the United Nations and the Royal Government of Cambodia Concerning the Prosecution Under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, done at Phnom Penh, Cambodia, on 6 June 2003, Art 3 (entry into force 29 April 2005) (‘Phnom Penh Agreement’). 354 Law on the Establishment of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea, adopted in the 5th Session of the 2nd Legislature (2 January 2001), approved in the 4th Session of the 1st Legislature (15 January 2001). After agreement was reached with the un (see above n 353), the Law was amended on 27 October 2004 (with these amendments, ‘Law on Extraordinary Chambers’): see Appendix i. 355 Law on Extraordinary Chambers, Art 14: see Sylvia de Bertodano ‘Problems Arising from the Mixed Composition and Structure of the Cambodian Extraordinary Chambers’ (2006) 4(2) Journal of International Criminal Justice 285 and Suzannah Linton ‘Safeguarding the Independence and Impartiality if the Cambodian Extraordinary Chambers’ (2006) 4(2) Journal of International Criminal Justice 327. 356 Law on Extraordinary Chambers, Art 23. 357 Law on Extraordinary Chambers, Arts 16 and 20; see also eccc Internal Rules, Rule 53(1).

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3.3.2 The Statute The eccc has subject matter jurisdiction over genocide, crimes against humanity, war crimes and the local crimes of homicide, torture and religious persecution when committed between 17 April 1975 and 6 January 1979.358 There is a discrepancy between the definition of crimes against humanity under the Law on Extraordinary Chambers and the Agreement. Curiously, the definition of crimes against humanity under the Law on Extraordinary Chambers follows the definition in the ictr Statute which requires all crimes to be committed on discriminatory grounds.359 On the other hand, the Agreement refers to crimes against humanity as defined in the icc Statute.360 While it has been suggested that an amendment to the Law may be required to bring it into conformity with the Agreement, in practice the Court has applied the definition in the Law.361 In any event, the provisions of the icc Statute would only apply to the extent that they reflect customary international law as at 1975–1979. Like the ictr, the eccc has interpreted the ‘discriminatory requirement’ in the chapeau elements of crimes against humanity as a jurisdictional limitation on the eccc, and not a requirement under customary international law.362 3.3.3 The Jurisprudence (a) Overview – Cases 01, 02, 03 and 04 On 31 July 2007, the first Suspect, Kaing Guek Eav alias Duch, was taken into custody. Following a decision by the Co-Investigating Judges to sever the proceedings against Duch,363 the first Introductory Submission was split into two investigations, eventually leading to two indictments against five individuals: Case 001: • Kaing Guek Eav (‘Duch’) (head of the notorious S-21 security centre). 358 359 360 361

Law on Extraordinary Chambers, Arts 2–7. Law on Extraordinary Chambers, Art 5. Phnom Penh Agreement, Art 9. See Ernestine E. Meijer ‘The Extraordinary Chamber in the Courts of Cambodia for Prosecuting Crimes Committed by the Khmer Rouge: Jurisdiction, Organization, and Procedure of an Internationalized National Tribunal’ in Romano et al., above n 2, 207, 211–213. 362 (eccc) Kaing Guek Eav alias Duch (Trial Chamber Judgment), Case File No. 001/18-072007/ECCC/TC (26 July 2010) (‘Duch – Trial’), [314].

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Case 002: • Nuon Chea (known as ‘Brother Number Two,’ the former Deputy Secretary of the cpk); • Ieng Sary (former Deputy Prime Minister for Foreign Affairs and a member of the cpk Standing Committee); • Ieng Thirith (wife of Ieng Sary, sister-in-law of Pol Pot and a senior ­member of the cpk); and • Khieu Samphan (the President of Cambodia, a member of the cpk ­Central Committee and a powerful senior official in the Khmer Rouge). The cases against Thirith and Samphan were later dropped due to unfitness to stand trial and the death of the accused, respectively. In September 2011, the Trial Chamber decided to separate the charges in Case 002 into two separate trials, Cases 002/01 and Case 002/02, the latter which included additional charges.364 In both Case 001 and Case 002/01, the defendants were convicted of crimes against humanity. Appeal judgments have also been delivered in Cases 001 and 002/01. While one of the defendants in Case 002 – Ieng Sary – challenged the eccc’s jurisdiction on the basis of an amnesty and pardon awarded to him, this challenge was rejected by both the Trial and Appeal Chambers (discussed further in Chapter 11). The court struck controversy, however, in its attempts to pursue Case 003 (concerning Khmer Rouge navy commander, Meas Muth) and Case 004 (concerning district commander Im Chaem). The allegations in the cases span several areas of Cambodia, including the S-21 prison, Kampong Cham, Takeo, Pursat, Kampong Thom, Battambang and Banteay Meanchey.365 While successive International Co-Prosecutors have pushed for judicial investigations to be conducted into these cases, the government and the Cambodian Co-Prosecutor, Chea Leang, have opposed the cases.366 The Open Society 363 (eccc) (Separation Order), Case File No. 001/18-07-2007 (19 September 2007), D18. 364 See eccc website, accessed online at on 4 July 2014. 365 See information on the Case 003 and Case 004 online at and respectively. 366 Open Society Justice Initiative, Recent Developments at the Extraordinary Chambers in the Courts of Cambodia – June 2011 Update, accessed online at on 3 January 2012 (‘Open Society June 2011 Update’) 3, 9.

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Justice Initiative, which has been monitoring the developments in the eccc, has noted continual and significant interference by the Cambodian government and by the Cambodian officials at the eccc in the proceedings in Cases 003 and 004. The original disagreement between Ms Leang and (then) International CoProsecutor Robert Petit as to whether the cases should be initiated was submitted to the eccc Pre-Trial Chamber for determination on 20 November 2008. On 18 August 2009, the Pre-Trial Chamber issued its ‘considerations’ on the disagreement, informing the parties that the judges could not reach super-­ majority. The disagreement was therefore resolved by default in favour of the opening of judicial investigations, as provided in the eccc Law and Internal Rules.367 On 29 April 2011, Co-Investigating Judges You Bunleng (Cambodian) and Siegfried Blunk (International-Germany) issued a notice of closure of Case 003 although few witnesses had been interviewed and limited crime site examinations conducted.368 When the then-International Co-Prosecutor, Andrew Cayley, publically announced that the crimes had ‘not been fully investigated’ and filed a bundle of applications before the Co-Investigating judges to take further investigative action, the Co-Investigating Judges issued a ‘retraction order’ in respect of his press release369 and rejected his applications.370 International Co-Investigating Judge Blunk resigned only months later, citing ‘repeated statements [by the Cambodian Government], which will be perceived as attempted interference by Government officials with Cases 003 and 004.’”371 367 (eccc) Considerations of the Pre-Trial Chamber Regarding the Disagreement between the Co-Prosecutors Pursuant to Internal Rule 71, Disagreement Proceedings 001/18-112008-ECCC/PTC (18 August 2009), [17], [45]. See also Law on Extraordinary Chambers, Art 20. 368 (eccc) (Notice of Conclusion of Judicial Investigation), Case File No. 003/07-09-2009 (29 April 2011), D13; see also Open Society June 2011 Update, above n 366, 10. 369 (eccc) (Order on International Co-Prosecutor’s Public Statement Regarding Case File 003), Case File No. 003/07-09-2009 (18 May 2011). 370 (eccc) (Decision on Time Extension Request and Investigative Requests by the International Co-Prosecutor Regarding Case 003), Case File No. 003/07-09-2009 (7 June 2011), accessed online at on 3 January 2013. See also, Press Release: Statement by the International Co-Prosecutor Regarding Case File 003 (9 May 2011), accessed online at on 3 January 2013. 371 See Statement by the International Co-Investigating Judge (10 October 2011), accessed online at on 20 April 2014.

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Judge Blunk’s replacement, Laurent Kasper-Ansermet (Switzerland), issued an order to resume the investigation in Case 003 on 2 December 2011, stating that ‘the judicial investigation conducted so far appears to be defective and prejudicial to all parties.’372 However, he too resigned effective 4 May 2012, stating that ‘Judge You Bunleng’s active opposition to investigations into cases 003 and 004 has led to a dysfunctional situation within the eccc.’373 On 3 March 2015, the International Co-Investigating Judge Mark Harmon unilaterally charged both the defendants in Case 003 and 004 in absentia without the approval of Co-Investigating Judge Bunleng.374 Only a week earlier, Prime Minister Hun Sen, suggested that war could result if the court continued to pursue the cases.375 Despite warrants for arrest being issued, police have so far failed to execute them.376 On 7 July 2015, Judge Harmon’s name was added to the list of resignations, citing ‘strictly personal reasons’ for his departure.377 At the time of writing, the charges remain to be confirmed by the Court. On 25 August 2015, Michael Bohlander (Germany) was appointed as the next  International Co-Investigating Judge.378 On 14 December 2015, he recharged Meas Muth, who appeared at court voluntarily, although a number of counts from the March 2015 indictment were rescinded.379 The judicial 372 (eccc) (Order on Resuming the Judicial Investigation), Case File No. 003/07-09-2009 (2 December 2011), D28, [8]. 373 Press Release from the International Reserve Co-Investigating Judge (19 March 2012), accessed online at on 20 April 2014. See also (eccc) (Note of the International Reserve Co-Investigating Judge to the Parties on the Egregious Dysfunctions Within the eccc Impeding the Proper Conduct of Investigations in Cases 003 and 004), Case File No. 003/07-09-2009 (21 March 2012), D38. 374 ‘Cambodia’s Khmer Rouge Tribunal Charges 2 New Suspects’, New York Times (3 March 2015), accessed online at on 11 July 2015; and ‘Khmer Rouge duo charged’, Phnom Penh Post (3 March 2015), accessed online at on 11 July 2015. 375 Ibid. 376 Wright and Narim, ‘Police Ignored Another Arrest Warrant for Meas Muth’, The Cambodia Daily (7 July 2015), accessed online at on 11 July 2015. 377 ‘Another krt investigating judge resigns’, Phnom Penh Post (7 July 2015), accessed online at on 11 July 2015. 378 Press Release: Mr Meas Muth charged in Case 003 (14 December 2015), accessed online at on 30 July 2017. 379 Press Release (14 December 2015), above n 378.

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i­ nvestigation in Case 003 was concluded on 10 January 2017380 and at the time of publication the parties are awaiting confirmation of the charges and the conclusion of the pre-trial phase of Case 003. In respect of Case 004, Judge Bohlander added a third defendant, Yim Tith, on 9 December 2015.381 He was charged with genocide, crimes of humanity, war crimes and domestic crimes. On 18 December 2015, the Co-Investigating Judges concluded their investigations into the crimes allegedly committed by Im Chaem.382 In order to avoid delay of Chaem’s case, her matter was severed from the matters of Ao An and Yim Tith on 15 February 2016 (Case 004-01).383 On 14 March 2016, Judge Bohland laid additional charges against Ao An384 and, on 16 December 2016, he and Judge Bunleng concluded their investigations into Ao An’s matter. Ao An’s matter was also severed from Case 004 in order to prevent delays (Case 004-02).385 The case against Im Chaem came to an abrupt end on 22 February 2017, when the Co-Investigating Judges dismissed the charges on the basis that Im Chaem was neither ‘a senior leader of the Democratic Kampuchea’ or one of those ‘most responsible’ for the crimes, and accordingly, the case did not fall within the personal jurisdiction of the eccc.386 This was the conclusion reached by the National Prosecutor and was contrary to the contentions of the 380 Press Release: Judicial investigation against Meas Muth concluded (10 January 2017), accessed online at on 30 July 2017. 381 Press Release: Mr Yim Tith charged in Case 004 (9 December 2015), accessed online at on 30 July 2017. 382 Press Release: Conclusion of judicial investigation against Im Chaem (18 December 2015), accessed online at on 30 July 2017. 383 Press Release: Co-Investigating Judges order the severance of Im Chaem from Case 004 (15 February 2016), accessed online at on 30 July 2017. 384 Press Release: Additional charges announced against Ao An (14 March 2016), accessed online at on 30 July 2017. 385 Press Release: Press Release by the Office of the Co-Investigating Judges Judicial investigation against Ao An concluded and severance from Case 004 ordered (14 March 2016), accessed online at on 30 July 2017. 386 Press Release: Co-Investigating Judges Dismiss Case Against Im Chaem (22 February 2017), accessed online at on 30 July 2017.

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I­ nternational Co-Prosecutor who had argued that Im Chaem’s role at the s­ ector and district levels in the South West and North West Zones, her close connections with Pol Pot and her authority over sites where atrocities were ­committed ­resulted in her being one of those most responsible for the crimes.387 The Co-Investigating Judges published a redacted version of their ­reasons for dismissing the charges against Im Chaem on 10 July 2017.388 The Co-­ Investigating Judges were criticised for lack of transparency, leading to ­questions of political interference in the case.389 On 23 July 2017, it was ­reported that the International Co-Prosecutor would appeal the decision to dismiss the case against Im Chaem.390 The Chambers themselves have criticised the political interference with the eccc – at least in respect of Case 002391 and an application was made in respect of Nuon Chea that the level of interference has made the continuation of Case 002 untenable.392 That application was rejected but it would seem likely that similar applications will be brought in future. To make matters worse, however, the eccc has been hamstrung by repeated financial crises due to a significant lack of funding for the national side of the Court.393 On 5 May 2017, both Co-Investigation Judges made a confidential request to the eccc for a permanent stay in Cases 003, 004 and 004-01 on the 387 Statement by the Office of the Co-Prosecutors on Case 004/01 (6 December 2016), accessed online at on 30 July 2017. 388 (eccc) (Closing Order), Case File No. 004/07-09-2009 (10 July 2017). 389 ‘Tribunal’s Edited Decision on Im Chaem Draws Ire’, Phnom Penh Post (12 July 2017), accessed online at on 30 July 2017. 390 ‘Chaem Ruling to be Appealed’, Phnom Penh Post (24 July 2017) accessed online at on 30 July 2017. 391 (eccc) Second Decision On Nuon Chea’s And Ieng Sary’s Appeal Against ocij Order on Requests to Summons Witnesses (Opinion of Judges Catherine Marchi-Uhel and Rowan Downing), Case 002/02 (9 September 2010), D314/1/2, [7]. 392 See (eccc) Decision on Application for Immediate Action Pursuant to Rule 35 (22 November 2012); and commentary in Heindel, ‘Expert Commentary on Legal Filings: Trial Chamber Rejects Request for Investigation of Government Interference in Case 002’, Cambodia Tribunal Monitor (26 November 2012), accessed online at on 3 January 2013. 393 ‘Cash-Strapped Khmer Rouge Court Can’t Pay Wages’, afp (December 21, 2012), accessed online at on 3 January 2013.

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basis of lack of funding.394 The confidential request was leaked to the press and caused outrage amongst the international justice community, the Open Society Justice Initiative calling the request ‘drastic, insufficiently supported and unwarranted option that would profoundly damage the credibility and legacy of the eccc’.395 (b) Jurisdiction The eccc has been called on to consider its jurisdiction on two significant occasions: first in relation to an appeal of the decision to order the provisional ­detention of Duch; and secondly, in relation to the application of the amnesty of Ieng Sary. The question of the amnesty of Ieng Sary is considered in Chapter 11. In relation to Duch, the defendant argued that the eight years that the Cambodian Military Court had required him to serve in detention was a violation of the right to a fair trial in the eccc such that he should not be detained.396 In rejecting the application, the Pre-Trial Chamber essentially found that the eccc was separate from the domestic courts system in Cambodia. It noted that the Chambers were staffed by, inter alia, international judges with no knowledge of Cambodian law, was entirely self-contained from investigation to appeals, and decisions of the eccc could not be reviewed by courts outside the eccc.397 The Chamber also cited with approval the decision of the scsl in relation to the immunity of Charles Taylor, stating that:398 indicia of an international court included the facts that the court is established by treaty, that it was “an expression of the will of the international community”, that it is considered “part of the machinery of international justice” and that its jurisdiction involves trying the most serious international crimes.

394 ‘Recent Developments at the Extraordinary Chambers in the Courts of Cambodia: Threat to Permanently Stay Cases 003, 004 and 004/2A’, Open Society Justice Briefing Paper (June 2017), accessed online at on 30 July 2017. 395 Ibid. 396 See (eccc) Prosecutor v Kang Guek Eav (Decision on Appeal Against Provisional Detention Order of Kang Guek Eav alias ‘Duch’), Case No. 001/18-07-2007-ECCC-OCIJ (PTC01) (3 December 2007) (‘Duch – Appeal Against Provisional Detention’). 397 (eccc) Duch – Appeal Against Provisional Detention, above n 396, [18]. 398 (eccc) Duch – Appeal Against Provisional Detention, above n 396, [19], citing (scsl) ­Taylor – Immunity Decision, above n 334, [38]–[39].

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(c) Nullum Crimen and the War Nexus in 1975–1979 The eccc has been correct to realise that the principle of nullum crimen was to be a real issue to be dealt with in relation to the atrocities in Cambodia in 1975–1979 – a time well before the emergence of the modern definition of crimes against humanity discussed in Chapter 4. Most importantly, at the time of the atrocities, was it still necessary to show that they were committed in connection with an international armed conflict? It may be accepted that, at some time between 1945 and 1998, the requirement for a nexus between crimes against humanity and aggression or war disappeared – but when? This issue was considered in both Case 001 (Duch) and 002/01. In Duch, the Trial Chamber held that it must determine whether the offences and modes of participation charged were recognized under Cambodian or international law between 17 April 1975 and 6 January 1979.399 This required the Chamber to consider some controversial issues. For example, ‘crimes against humanity’ first entered normative law by Article 6(c) of the Nuremberg Charter of 1945. Crimes against humanity came with a requirement that the offences be linked with war crimes or crimes against peace.400 After 1946, there was debate about whether such a nexus was necessary. As discussed above, the icty Appeals Chamber in Prosecutor v Tadić stated ‘there is no logical or legal basis for this requirement [the war nexus] and it has been abandoned in subsequent state practice’.401 The remarks of the Appeals Chamber in Tadić have been widely relied upon since to support the proposition that, by 1991 (from when the icty’s temporal jurisdiction commenced), the war nexus was no longer a part of the definition under customary international law. William Schabas had suggested that in 1975, however, the war nexus might not yet have ‘withered away’,402 but this has been promptly criticised by others.403 The un appointed Group of Experts for Cambodia considered the issue, and concluded that prosecuting the 399 (eccc) Duch – Trial, above n 362, [28]. 400 See Principle VI(c) of the Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal [1950] 2 Yearbook of the International Law Commission, [97]. 401 (icty) Tadić – Jurisdiction, above n 302, [140]. 402 William Schabas, ‘Should Khmer Rouge Leaders be Prosecuted for Genocide or Crimes Against Humanity?’ (2001) 22 Searching for the Truth [Magazine of Documentation Centre of Cambodia (Khmer version)], accessed online at on 23 September 2010. 403 Gregory Stanton, ‘The Khmer Rouge did Commit Genocide’ (2001) 23 Searching for the Truth, relying on the Optional Protocol ii to the Geneva Convention; Suzannah Linton, ‘Thoughts on Schabas – Stanton – Johansen’ (2002) 24 Searching for the Truth.

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Khmer for crimes against humanity would not violate a reasonable reading of the nullum crimen principle as the war nexus had been severed by 1975.404 To substantiate this view, the un Experts pointed to the views of States during the drafting of the 1968 Convention on the Non-Applicability of Statutory Limitations and the 1954 Draft Code of Offenses Against the Peace and Security of Mankind. The eccc Trial Chamber held both that crimes against humanity were part of customary international law in 1975–1979,405 and that the effect of the Appeals Chamber Decision in Tadić was that the war nexus was not required even in 1945.406 The Chamber noted that, while a war nexus was required in Article 6(c) of the Nuremberg Charter, such a nexus was not required in the 1945 ­Control Council Law No 10, the Genocide Convention, the 1954 ilc Draft Code of Offences against the Peace and Security of Mankind, the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, and the 1973 Apartheid Convention.407 The Chamber further cited both the un experts (to the effect that the war nexus was severed by 1975408) as well as the Grand Chamber of European Court of Human Rights in Korbely v Hungary (to the effect that the link may no longer have been relevant by 1956409).410 The Trial Chamber’s findings were not challenged on Appeal. While the Appeals Chamber agreed with the Trial Chamber that crimes against humanity were established as an international crime in 1975–1979,411 it did not explicitly address the Chamber’s finding on the question of the war nexus, other than to note the way in which the eccc defined the chapeau requirements (which did not include a war nexus) before moving on to an assessment of the existence of particular underlying crimes.412 404 Report of the Group of Experts for Cambodia Established Pursuant to General Assembly Resolution 52/135, Annex, un Doc. A/53/850-S/1999/231 (16 March 1999) (‘Cambodia Experts Report’), [71]. 405 (eccc) Duch – Trial, above n 362, [285]–[289]. 406 (eccc) Duch – Trial, above n 362, [292]. 407 (eccc) Duch – Trial, above n 362, [291] (footnotes only selectively included). 408 Cambodia Experts Report, above n 404, [71]. 409 (ECtHR) Korbely v Hungary (Judgment), European Court of Human Rights (Grand Chamber), App No. 9174/02 (19 September 2008), [82]. 410 (eccc) Duch – Trial, above n 362, [291]. 411 (eccc) Kaing Guek Eav alias Duch (Appeal Judgment), Case No. 001 (3 February 2012) (‘Duch – Appeal’), [104]. 412 See (eccc) Duch – Appeal, above n 411, [106]–[107].

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This conclusion in Duch was followed by the Trial Chamber in Case 002/01 without any further analysis413 and approved by the Appeals Chamber in a more considered analysis.414 While the Pre-Trial Chamber found that it was unclear whether or not a war nexus was required and therefore that the defendant should be afforded the benefit of any doubt,415 the Trial Chamber subsequently rejected the decision of the Pre-Trial Chamber and followed its own earlier decision in Duch.416 In the Trial Chamber’s view, while the Nuremberg Charter required a nexus with an armed conflict, the jurisprudence was unclear as to whether the requirement was a jurisdictional limitation unique to the Tribunal or of a more general application.417 Since then, the Trial Chamber has relied on the sources cited in the Duch decision to come to the view that the war nexus was one particular to the Nuremberg Tribunal and not of general application. The Appeals Chamber in Case 002/01 also held that by 1975 there was no nexus requirement for crimes against humanity.418 The Appeals Chamber considered that even in the immediate aftermath of World War ii, it was unclear whether the nexus requirement was a material element of crimes against humanity, or a jurisdictional element of the Nuremberg Tribunals.419 In particular, the Appeals Chamber considered Control Council Order No 10 and the “inconsistent” jurisprudence from the Nuremberg Tribunals.420 The Appeals Chamber held that the finding in the Einsatzgruppen case that the Nuremberg Tribunals had jurisdiction to try all crimes against humanity, regardless of a war nexus, was not obiter dictum merely because the crimes against humanity had in fact been perpetrated during the war.421 Further, the Appeals Chamber 413 (eccc) Prosecutor v Chea and Samphan (Trial Chamber Judgment), Case No 002/19-092007/ECCC/TC (7 August 2014) (‘Case 002/01 – Trial’), [176]–[177]. 414 (eccc) Prosecutor v Chea and Samphan (Trial Chamber Judgment), Case No 002/19-092007-ECCC/SC (23 November 2016) (‘Case 002/01 – Appeal’), [711]–[721]. 415 (eccc) Decision on Appeals by NUON Chea and ieng Thirith Against the Closing Order, Pre-Trial Chamber, Document No. D427/3/15 (15 February 2011), [137]; Decision on ieng Sary’s Appeal Against the Closing Order, Document No. D427/l/30 (11 April 2011), [311]. 416 (eccc) Decision on Co-Prosecutors’ Request to Exclude Armed Conflict Nexus Requirement From the Definition of Crimes Against Humanity, Case No 002/19-09-2007/ECCC/ TC (26 October 2011) (‘Sary – War Nexus Decision’), [33]. 417 (eccc) Sary – War Nexus Decision, above n 416, [13]–[20]. 418 (eccc) Case 002/01 – Appeal, above n 414, [721]. 419 (eccc) Case 002/01 – Appeal, above n 414, [714]. 420 (eccc) Case 002/01 – Appeal, above n 414, [714]–[715]. 421 (eccc) Case 002/01 – Appeal, above n 414, [715].

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highlighted the Sch. case that concerned crimes against humanity committed during the pogroms of 1938, before the outbreak of war.422 Like the Trial Chamber in Duch, the Appeals Chamber relied on post 1945 international instruments, particularly the Draft Code of Offences Against the Peace and Security of Mankind, as evidence of the “the evolving view that the prohibition of crimes against humanity aims to protect humanity from the commission of atrocities, thus warranting a definition that does not ­require a nexus to a war crime or a crime against peace.”423 The Appeals Chamber also relied upon the European Court of Human Rights Decisions of Korbely v Hungry, referred to above in relation to the Duch case, and Kolk and Kislyiy v E­ stonia,424 and upon national legislation and jurisprudence by 1975.425 Finally, the Appeals Chamber referred to international instruments since 1986 and the statutes and jurisprudence of international and hybrid tribunals since 1993 that eliminated the war nexus from crimes against humanity.426 In the authors’ view, this conclusion in Duch and Case 002/01 is open to question. All of the sources prior to 1975 cited by the Tribunal are discussed in Chapters 2 and 3. They do not clearly support the proposition that the war nexus was not a part of the customary law definition of crimes against humanity at the time of each source discussed. The better view is that the Tadić decision in reality ‘moved the law forward dramatically’427 so that the ‘rules laid down by judges have generated custom, rather than custom [which has] generated the rules’.428 As set out in Chapter 4, it was only with the emergence of the ‘modern definition’ of crimes against humanity through the drafting of the icty and ictr Statute as well as the icc Statute that the war nexus finally withered away. The issue is addressed further in Chapter 8 which highlights the more fundamental point that crimes against humanity (and other international crimes) were largely developed to support the exercise of jurisdiction by an international tribunal or a national court in respect of extraterritorial crimes. Finally, in addition to the status of the chapeau elements of crimes against humanity, both the Trial and Appeal Chambers made some important findings about the status of various underlying crimes during 1975–1979, i­ ncluding 422 (eccc) Case 002/01 – Appeal, above n 414, [715]. 423 (eccc) Case 002/01 – Appeal, above n 414, [716]. 424 (eccc) Case 002/01 – Appeal, above n 414, [718]. 425 (eccc) Case 002/01 – Appeal, above n 414, [719]. 426 (eccc) Case 002/01 – Appeal, above n 414, [720]. 427 William Schabas, The un International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone (Cambridge University Press, Cambridge, 2006) 23. 428 John Gray, The Nature and Sources of the Law (Macmillan: New York, 1931) 297.

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e­nslavement, persecution and rape. These are also addressed in detail in ­Chapter 10. (d) The Five Chapeau Elements and the Policy Requirement The Trial Chamber in Duch delivered its judgment on 26 July 2010, at which time, the principles adopted in the Kunarac Appeal decision had been l­argely adopted by the ictr as well as the scsl, although that decision had not been handed down. Accordingly, the Chamber may have viewed the contextual ­elements of crimes against humanity as having been ‘settled’ by the ad hoc ­Tribunals, as it followed the latest jurisprudence of the ad hoc Tribunals in identifying the chapeau elements of crimes against humanity – although ­often with very little analysis.429 The Trial and Appeal Chambers in Case 002/01 ­largely followed the reasoning in Duch in most respects.430 The Trial Chamber in Duch accepted that an ‘attack’ was a ‘course of conduct involving the multiple commission of acts of violence’431 Similarly, the Chamber followed the icty and ictr to hold that an attack need only be widespread or systematic,432 and that ‘widespread’ referred to the ‘large-scale nature of the attack and the number of victims’ while the term ‘systematic’ referred to ‘the organised nature of the acts of violence and the improbability of their random occurrence’.433 The Chamber held that the term ‘population’ implies ‘crimes of a collective nature and excludes single or isolated acts’434 and means not that an entire geographical entity is targeted but that ‘enough individuals were targeted’ such that a ‘population’ was targeted ‘as opposed to a limited and randomly-selected number of individuals’.435 The Trial Chamber in Duch also accepted the position that the population must be ‘predominantly civilian’ and ‘the primary object of the attack.’436 429 (eccc) Duch – Trial, above n 362, [297]–[319]. 430 (eccc) Case 002/01 – Trial, above n 413, [178]–[192]. 431 (eccc) Duch – Trial, above n 362, [298], (citing (ictr) Nahimana – Appeal, above n 67, [918]). 432 (eccc) Duch – Trial, above n 362, [300], citing (icty) Tadić – Trial, above n 4, [646]– [648]; (ictr) Akayesu – Trial, above n 63, [579] fn 144. 433 (eccc) Duch – Trial, above n 362, [300], citing (icty) Kunarac – Appeal, above n 13, [94]; (ictr) Nahimana – Appeal, above n 67, [920]; and (scsl) ruf – Trial, above n 189, [78]. 434 (eccc) Duch – Trial, above n 362, [302], citing (icty) Tadić – Trial, above n 4, [644] and [648]. 435 (eccc) Duch – Trial, above n 362, [302], citing (icty) Kunarac – Appeal, above n 13, [90]; and (scsl) Prosecutor v Sesay, Kllon and Gbao (Appeals Chamber Judgment), Case No SCSL-04-15-A (26 October 2009) (‘ruf – Appeal’), [719]. 436 (eccc) Duch – Trial, above n 362, [305], citing (icty) Kunarac – Appeal, above n 13, [91].

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To this end, the Chamber followed the icty Appeals Chamber in Blaškić and Mrkšić437 to hold that a civilian is determined according to the laws of war so that a soldier even when hors de combat is not a civilian, but that ‘there is no requirement nor is it an element of crimes against humanity that the victims of the underlying crimes be civilians.’438 Thus, a soldier who is hors de combat may be the victim of an act amounting to a crime against humanity, provided that all other necessary conditions are met. The Trial Chamber in Case 002/01 reached the same conclusion, albeit on the basis of the ordinary meaning of the word ‘civilian’.439 This was due to its finding that there was no generally accepted definition of ‘civilian’ under international law in 1975. The Trial Chamber’s decision was upheld on appeal, and the Appeal Chamber again affirmed the icty Appeal Chambers in Blaškić and Mrkšić.440 Importantly, the Chamber also followed the Kunarac Appeals Chamber in respect of the policy requirement, namely, the existence of a policy or plan may be evidentially relevant in establishing the widespread or systematic nature of the attack, but does not constitute an independent legal element.441 Like the scsl, it did so without any further discussion – in particular of the effect of Article 7 of the icc Statute, the decisions of the spet, or indeed any other sources of customary international law. That said, the Chamber also recognised that the requirements of ‘widespread’ and ‘systematic’, while being alternatives, ‘may often be difficult to separate since a widespread attack targeting a large number of victims generally relies on some form of planning or organisation’.442 In Case 002/01, the Trial Chamber was more circumspect, although it ultimately followed the Trial Chamber in Duch. The Chamber accepted that there were ‘contrasting views’ on the issue, with ‘certain sources’ supporting the policy element, and there being ‘also support’ for the position in Duch. Ultimately, the Chamber found that custom at the time ‘did not clearly support a State or organisational plan or policy requirement’ and therefore ‘no error has been demonstrated’ with the conclusion in Duch.443 The Chamber also confirmed 437 Discussed above at 2.3.1(c). 438 (eccc) Duch – Trial, above n 362, [304]. 439 (eccc) Case 002/01 – Trial, above n 413, [185]–[186]. 440 (eccc) Case 002/01 – Appeal, above n 414, [738], [740]. 441 (eccc) Duch – Trial, above n 362, citing (icty) Kunarac – Appeal, above n 13, [98] fn 114; (ictr) Prosecutor v Gacumbitsi (Appeals Chamber Judgment), Case No ICTR-2001-64-A (7 July 2006) (‘Gacumbitsi – Appeal’), [84]; and (scsl) ruf – Trial, above n 189, [79]. 442 (eccc) Duch – Trial, above n 362, [300]. 443 (eccc) Case 002/01 – Trial, above n 413, [180]–[181].

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that, like the ictr, the requirement in the eccc Statute that the attack be committed on ‘national, political, ethnical, racial or religious grounds’ was a ‘jurisdictional requirement’ that is narrower than custom.444 The Trial Chamber’s finding in Case 002/01 was upheld on appeal.445 The Appeals Chamber held that neither the imt Charter nor the Nuremberg Principles implicitly included a state plan or policy requirement for crimes against humanity.446 The Chamber then turned to consider whether the state policy had crystallised into an element of the offence since Nuremberg. Ultimately, the Appeals Chamber held that ‘[w]hile there were some sources in support of such a requirement, customary international law had not evolved subsequent to the Nuremberg Principles to such an extent that it could be said that [the policy element] had crystallised as part of the definition of crimes against humanity during the eccc’s temporal jurisdiction.’447 There are difficulties with this conclusion; in particular, because its argument arising from it starts from an incorrect premise. For reasons explained in Chapter 2, the better view, more consistent with the history of Nuremberg, is that a state policy element was required at Nuremberg arising both from the fact that perpetrators were required to be ‘acting in the interests of the European Axis countries’ and that crimes were required to be connected with an international war of aggression.448 Such a state policy was therefore bundled up in what was the war nexus. Once this is recognised, the question is not whether a state policy has since developed but what was the result when the war nexus was abandoned. As contended in Chapter 4, this was not until 1995 or 1998 with the emergence of the modern definition of crimes against humanity. Ultimately, despite its finding that the attack need only be widespread or systematic, the Trial Chamber in Duch appeared to be satisfied that the attack was both widespread and systematic.449 The Chamber found that the mistreatment of the population of S-21 – with its detainees comprising a cross-section of ‘enemies’ of the regime throughout Cambodian society – formed part of a broader attack was directed at the entire Cambodian population and encompassed both civilian and military elements without distinction.450 The Chamber could find no common linking factor among those detained, other than their perceived opposition to the cpk. They were all classified as “enemies” by 444 (eccc) Case 002/01 – Trial, above n 413, [188]. 445 (eccc) Case 002/01 – Appeal, above n 414, [732]. 446 (eccc) Case 002/01 – Appeal, above n 414, [725]. 447 (eccc) Case 002/01 – Appeal, above n 414, [732]. 448 See Chapter 2, Section 8. 449 (eccc) Duch – Trial, above n 362, [321]. 450 (eccc) Duch – Trial, above n 362, [321], [324]–[325].

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the cpk, even if in fact, they were not opposed to the regime.451 The justification for the attack was ideologically driven. In Case 002/01, the finding that a widespread and systematic attack was present was more straight-forward. The Chamber found that forced transfer, murder, extermination, enforce disappearance and persecution throughout the country victimised millions of civilians and forced a large number of refugees to flee.452 The attack was pursuant to party policy to build socialism in the country by eliminating the feudalist and capitalist classes.453 Finally, the Trial Chamber in Case 002/01 also confirmed that, like the ictr, the requirement in the eccc Statute that the attack be committed on ‘national, political, ethnical, racial or religious grounds’ was a ‘jurisdictional requirement’ that is narrower than custom.454 3.4 un-Administered Courts in Kosovo On 24 March 1999, following Yugoslavia’s massive and systematic ‘ethnic cleansing’ of Albanians in the province of Kosovo, the North Atlantic Treaty Organisation commenced air strikes which lasted 11 weeks.455 During 1998 over 1,500 Kosovar Albanians were allegedly killed and approximately 400,000 were expelled.456 The war eventually ceased and the un Security Council created the United Nations Mission in Kosovo (unmik) to administer the territory.457 International judges sitting on local courts, applying the existing Yugoslav Penal Code, have conducted trials for war crimes and genocide, but not crimes against humanity. This was because crimes against humanity were not proscribed by that Penal Code.458 A new Provisional Criminal Code entered into force in April 2004, which prescribes crimes against humanity (Article 117) as defined by Article 7 of the icc Statute, including the definitions in ­Article 7(2).459 Universal jurisdiction applies to the offences irrespective of presence in the territory.460 451 (eccc) Duch – Trial, above n 362, [327]. 452 (eccc) Case 002/01 – Trial, above n 413, [193]. 453 (eccc) Case 002/01 – Trial, above n 413, [193], [195]. 454 (eccc) Case 002/01 – Trial, above n 413, [188]. 455 Strohmeyer, above n 2, 46. 456 Strohmeyer, above n 2, 46. 457 un sc Resolution 1244 (1999), un Doc. S/RES/1244, 4011th mtg (10 June 1999). 458 See Jean-Christian Cady and Nicholas Booth, ‘Internationalized Courts in Kosovo: An UNMIK Perspective’ in Romano et al., above n 2, 59, 69–70. 459 See United Nations Interim Administration Mission in Kosovo Regulation 2003/25 (6 July 2003) in Cady and Booth, above n 2, 70. The section is reproduced at Appendix i. 460 Provisional Criminal Code, Art 100.

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At present, no trials for crimes against humanity under the new law have taken place. As at December 2008, while just over 40 war crimes cases had been completed,461 the Kosovar tribunals have been plagued with multiple problems that have led to significant delays and a number of acquittals.462 21 of the cases above were initiated prior to 2000 and the majority of the cases have resulted in acquittals.463 Problems have included insufficient professional training, the temporary nature of international staff, the inability to collect evidence, difficulties communicating with local staff and inaccurate translations. Accordingly, the unmik was restructured by the un Security Council in 2008, transferring its powers of police, justice and customs to the European Union Rule of Law Mission in Kosovo (eulex). eulex was referred 1,187 cases from the unmik tribunal.464 Since 2008, eulex has reported issuing 14 judgments in war crimes cases between 2009 and 2010, and a further 5 cases appear to have been completed in 2011.465 None appear to concern crimes against humanity. In January 2011, the Council of Europe published a report outlining grave concerns about the lack of investigation and prosecution of crimes committed by the Kosovo Liberation Army in the immediate aftermath of the war. In particular, the report alleged that Serbians and Albanians were subjected to inhumane and degrading treatment and illegal trafficking of human organs.466 eulex subsequently established the Special Investigative Task Force, which in 2014 stated that it had sufficient evidence to file an indictment. Given eulex’s lack of capacity and the need for independent prosecution (i.e. as eulex prosecutors and judges are embedded into Kosovo institutions), on 3 August 2015 the Kosovo Assembly adopted the Law on Specialist Chambers and Specialist Prosecutor’s Office, establishing a new type of hybrid tribunal.

461 Amnesty International, ‘Kosovo: Time for EULEX to Prioritize War Crimes’ (2012), 16 (‘Amnesty – EULEX (2012)’). 462 TRIAL, ‘The UNMIK Program’ (modified 6 June 2014), accessed online at on 20 June 2014. 463 Amnesty – EULEX (2012), above n 461, 16. 464 Amnesty – EULEX (2012), above n 461, 16. 465 Amnesty – EULEX (2012), above n 461, 24–25. 466 ‘Inhuman Treatment of People and Illicit Trafficking in Human Organs in Kosovo’, report by D Marty, Rapporteur for the Committee on Legal Affairs and Human Rights, Parliamentary Assembly of the Council of Europe (7 January 2011), accessed online at on 18 June 2017.

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The Specialist Chambers were established entirely under domestic law and are an independent body attached to each level of the Kosovo court system.467 The Specialist Chambers are made up of only international judges and are seated in The Hague and Kosovo. They are also entirely funded by the eu and third countries. The jurisdiction of the Specialist Chambers is grave crimes commenced or committed in Kosovo between 1 January 1998 to 31 December 2000,468 thereby extending beyond the icty’s temporal jurisdiction. Unlike the unmik and eulex cases, the Specialist Chambers are to hear charges of crimes against humanity, as well as war crimes and other crimes under Kosovo law. The statute constituting and regulating the Specialist Chambers provides that the applicable law will be customary international law and the substantive criminal law of Kosovo ‘insofar as it is in compliance with customary international law’.469 The crime is defined in Article 13 as: ‘[f]or the purposes of this Law, under customary law during the temporal jurisdiction of the Specialist Chambers, crimes 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’. There is no explicit reference to any requirement of a state or organisational policy, and the question will presumably be one to be determined by customary international law. Accordingly, whether the chapeau elements include a state or organisational policy requirement will need to be determined by the Specialist Chambers according to the customary international law at the time. The Specialist Chambers shall be operational once the Rules of Procedure and Evidence come into force, likely to be in 2017. The establishment of this new tribunal has been heralded as an advancement towards victor’s justice, however, the tribunal is likely to face difficulties in prosecuting former members of the kla, such as Hashim Thaçi, who is the current President of Kosovo, and guaranteeing witness protection.470 467 Law On Specialist Chambers And Specialist Prosecutor’s Office, Art 3(1), accessed online at on 18 June 2017. 468 Law On Specialist Chambers And Specialist Prosecutor’s Office, Arts 7 and 8. 469 Law On Specialist Chambers And Specialist Prosecutor’s Office, Art 12. 470 Mark Kersten, ‘The New Kosovo Tribunal – Turning Victors’ Justice on its Head?’ (18 January 2016) accessed online at on 18 June 2017; Benjamin Duerr, ‘The Kosovo Specialist Chambers Works to get off the Ground’ (16 September 2016), accessed online at on 18 June 2017.

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3.5 The Iraqi High Tribunal 3.5.1 Background Prior to the us invasion of Iraq in March 2003, Saddam Hussein was accused of committing atrocities against his own people on a large scale. Much was made of this by the countries which supported the invasion. Following the fall of Saddam Hussein, the us established the Coalition Provisional Authority to rule Iraq and the un Security Council unanimously passed Resolution 1483, affirming ‘the need for accountability for crimes and atrocities committed by the [regime]’, and calling upon Member States to ‘deny safe haven to those members of the previous Iraqi regime who are alleged to be responsible for crimes and atrocities and to support actions to bring them to justice’.471 The Coalition Provisional Authority specially delegated to the Iraqi Governing Council power to issue the Statute of the Iraqi Special Tribunal, which it did on 10 December 2003.472 At this point the Iraqi Special Tribunal could perhaps have been viewed as another ‘hybrid’ tribunal. The Statute, elements of crimes, and rules were modelled upon those of the un ad hoc tribunals and the icc. The Statute specifically called upon the Tribunal to be guided by the precedent of the international tribunals and it permitted the appointment of international judges. One cannot escape drawing a parallel with the Nuremberg and Tokyo Tribunals which followed the Allied occupation of Germany and Japan after the Second World War. The Iraqi Special Tribunal was an occupational court for Iraq created by the United States. The United States also provided assistance through the u.s. Regime Crimes Liaison Office and the Tribunal’s judges and prosecutors (whilst Iraqi nationals) were assisted by foreign experts from the International Bar Association. Any input by the United Nations was precluded because of the insistence by the United States that the death penalty be available. 3.5.2 The Statute The Iraqi Special Tribunal has jurisdiction over any Iraqi national or resident of Iraq accused of the listed crimes committed between 17 July 1968 and 1 May 2003, in the territory of the Republic of Iraq or elsewhere. The crimes listed are genocide, crimes against humanity, war crimes and violations of certain Iraqi 471 un sc Resolution 1483 (2003), un Doc. S/RES/1483, 4761st mtg (22 May 2003), [1] and [3]. 472 Order No 48, accessed online at on 13 January 2006. The law continued in force under the Law of Administration for the State of Iraq for the Transitional Period which came into effect on 28 June 2004, following the transfer of power to the Iraqi interim government.

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laws listed in Article 14. ‘Crimes against humanity’, in Article 12 (not previously known in Iraqi law), largely follows Article 7 of the icc Statute, but without the crimes of apartheid, enforced sterilization or the definition of forced pregnancy.473 The United States’ original use of the definition in Article 7, despite its opposition to the icc Statute, confirms that the us does not oppose this definition, only the jurisdiction of the icc. The Court’s jurisdiction, whilst having extraterritorial reach, is limited to Iraqi nationals and residents. It thus reflects the us’s position that the icc’s jurisdiction should be limited to nationals of State Parties.474 Such limited jurisdiction of course protects us nationals from prosecution for acts committed in Iraq, which has not escaped criticism. It leaves the Tribunal open to the charge, as occurred at Nuremberg, of being an example of victors’ justice. Any truly ‘international’ aspect of the Tribunal can, however, be regarded as coming to an end with the establishment of the new parliament after nation-­ wide elections in 2005. The newly elected Transitional National Assembly made the point of repealing the prior law and replacing it with a new similar law gazetted on 19 October 2005 whereby the Iraqi Special Tribunal became the Iraqi High Tribunal (iht).475 This was probably done to distance the Tribunal’s lawful authority from the original occupation which many regarded as being contrary to international law. Some important changes were made along the way. It limited the role for non-Iraqi judges476 and increased the role of the government in the appointment and removal of judges from cases. In the result, the Tribunal is the product of a domestic legislative act, its seat is in Baghdad, its default procedural rules derive from the Iraqi Code of Criminal Procedure, its prosecutor is Iraqi, and its bench is composed exclusively of Iraqi judges. Hence, the work of the iht ought to be regarded like any other example of a domestic trial over persons accused of committing the offence of ‘crimes against humanity’ as incorporated into domestic law. There have been many criticisms levelled at the Statute/Law and the iht for failing to afford the defendants the protection of either an independent 473 Order No 48, above n 472. 474 Order No 48, above n 472, Art 9. 475 Law No 10 of 2005, accessed online at on 13 January 2006: see also Guénaël Mettraux, ‘The 2005 Revision of the Statute of the Iraqi Special Tribunal.’ (2007) 5(2) Journal of International Criminal Justice 287. 476 The Iraqi governments, under Law No 10 of 2005, Arts 4.3 and 7.2, can appoint non-Iraqi judges if a State is a party in a complaint and the President may appoint non-Iraqi experts to provide assistance to the Court. Two international advisers have assisted the court: one who was appointed to the Trial Chamber for the Dujail Trial; and one who from a relatively late stage in that trial worked with the Defence Office.

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international court or international judges.477 Kenneth Roth, Executive Director of Human Rights Watch, writing in December 2003, expressed the view of many human rights observers that ‘[a]n internationally led tribunal would be a far better option, whether a fully international tribunal or, more likely, an internationally run tribunal with significant domestic participation, such as the special court set up for Sierra Leone.’478 Such a sentiment is understandable from the viewpoint of concern for the defendants’ right to a fair trial (as enshrined in the iccpr), but it is important to appreciate that an international criminal jurisdiction generally only arises where the perpetrators enjoy impunity or, under more recent precedents, where the local authority in a post conflict society requests international assistance. In the case of Iraq, at least by 2005, the recognised government wanted to prosecute its former leaders in its own courts for the crimes they committed against fellow Iraqis in Iraq – a view which, according to some surveys, was supported by the people of Iraq.479 477 See, for example: Michael P. Scharf, ‘Is It International Enough?: A Critique of the Iraqi Special Tribunal in Light of the Goals of International Justice’ (2004) 2(2) Journal of International Criminal Justice 330; Leila Sadat, Neither Fish nor Fowl, Saddam Hussein and the Iraqi Special Tribunal, Indigenous Solution or (u.s.) Occupation Court? (2005) Case School of Law, accessed online at on 13 January 2006; Human Rights Watch, Briefing Paper: The former Iraqi Government on Trial (16 October 2005); and International Centre for Transitional Justice, Briefing Paper: Creation and First Trials of the Supreme Iraqi Criminal Tribunal (4 October 2005) (‘ictj Briefing Paper’). See also Mettraux, above n 475. 478 Kenneth Roth, ‘Try Saddam in an International Court’, The International Herald Tribune (15 December 2003), accessed online at on 15 February 2007); cf. Sylvia de Bertodano, ‘Were There More Acceptable Alternatives to the Iraqi High Tribunal?’ (2007) 5(2) Journal of International Criminal Justice 294. 479 See ictj Briefing Paper, above n 477, 7; and ‘Iraqi Voices: Attitudes Toward Transitional Justice and Social Reconstruction’ (May 2004), report by the International Centre for Transitional Justice and the Human Rights Center, University of California, accessed online at on 15 February 2007. It was also the desire of the United States. On January 8, 2004, the Pentagon announced that it had determined Saddam Hussein to be a prisoner of war. According to an Associated Press account published in the wake of this announcement, a spokesman for the International Committee of the Red Cross ‘said handing Saddam over to the Iraqis for trial wouldn’t necessarily conflict with the 1949 Geneva Conventions on the conduct of warfare, as long as he is granted due process. It is up to the United States, as Iraq’s occupier, to determine how Saddam is to be tried.’ ‘War Crimes Trial for Saddam Is Possible’, Associated Press (10 January 2004).

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In such cases, the normal practice of the international community has been to rely firstly upon national courts to deal with crimes within its territory before invoking any extraordinary international criminal jurisdiction. This is enshrined in the icc Statute where, under the principle of complementarity, it is only if the relevant state is unable or unwilling to prosecute that the icc will have jurisdiction. The Trial Chamber of the Tribunal made specific mention of this in the al-Dujail case when answering criticism about the Tribunal’s right to try the accused.480 3.5.3 The Jurisprudence (a) Al-Dujail Case The Iraqi High Tribunal commenced its work by investigating various wellknown atrocities of the prior regime, including the attacks on Kurds in 1988, where chemical weapons were used, and the suppression of the Shi’a uprising of 1991. However, the first trial involved the relatively more modest events at ­al-Dujail. From October 2005 to July 2006, Saddam Hussein and seven others faced charges of murder, forcible transfers, imprisonment and torture as crimes against humanity in the first of several planned trials before the Iraqi High Tribunal.481 The trial, which was televised throughout, was marred by the assassinations of defence counsel, the resignation of judges, hunger strikes, boycotts, defiant outbursts by Saddam Hussein, other defendants and their lawyers, who at times were sent out of the courtroom. With the world looking on, the Iraqi High Tribunal on 5 November 2006 finally handed down its decision which included the death penalty for Saddam Hussein, Awad al-Bandar, the former President of the Revolutionary Court, and Barzan Ibrahim, the former head of the Iraqi Intelligence Service, a life sentence for Taha Yassin Ramadan, the former Vice President of Iraq, 15-year sentences for Mizhar Abdullah Ruwayyid, Ali Dayih Ali, and Abdallah Kazim Ruwayyid, who were local Ba’ath party members, and Mohammed Azawi Ali, was acquitted outright.482 The English version of the decision runs to almost 300 pages. 480 The judgment and sentence in the Al Dujail Case, No 1/9 First 2005, was issued by the Iraqi High Tribunal Trial Chamber on 5 November 2006, unofficial English translation accessed online at on 22 April 2007. 481 Indictment of 15 May 2006, with English translation accessed online at on 28 June 2006. 482 See above n 480.

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According to the findings of the Court, on 8 July 1982 gunfire broke out on the other side of a wall at al-Dujail from where Hussein was travelling. Hussein assumed that it was a failed assassination attempt. Hussein ordered reprisals by the military against the village and its inhabitants, including by helicopter gunship. This immediately led to the killing of nine by aircraft shelling and the detention of 399 families. Thereafter, many were tortured or ill-treated, leading to the deaths of at least 46 persons including 5 children. The Revolutionary Court in one session on 14 June 1984 sentenced 148 to death by hanging, though the Tribunal found that at least 46 of those had already died in custody between 1982 and 1984. The sentence was ratified by Hussein’s presidential decree of 16 June 1984. ­Finally, by Hussein’s further order of 12 October 1984 the orchards and farms surrounding the town were confiscated and destroyed.483 About 400 were forcibly ­removed to a desert location for a period of up to four years.484 The Tribunal considered in some detail the legality of the retrospective application of the charges of crimes against humanity.485 It accepted the legality of the Court and its Statute under the 2005 law which was endorsed by the newly elected government, thereby side stepping any issue as to the legality of the acts of the United States and its occupation authority which initially created the forerunner to the iht. The Court rejected Hussein’s claim of Head of State immunity based on the 1970 temporary Constitution on several grounds, including that it was impossible to have immunity for crimes against humanity and that any immunity that may have existed had been stripped by the new regime and its new laws. It also held that the charges of crimes against humanity were not subject to laws of prescription and that under international law Iraq was under a duty to prosecute those accused of committing crimes against humanity. These issues are addressed further in Chapter 11. The Court considered whether the conduct in question could amount to an ‘attack’ as defined in Article 12. It referred to and relied upon international precedents from the icty for guidance. It noted that the inhabitants of the small town, by reason of its mainly Shiite denomination, were accused of being ‘ravaging traitors’ without any procedural investigation. The arrest of whole families demonstrated that the conduct was ‘systematic’ and part of a 483 The order was to cut all trees and orchards to a distance of between one and three kilometers in all directions. 484 At other times the Trial Chamber uses more modest figures such as around 9 killed in the initial military operations, around 399 detained of whom at least 46 died in detention, around 96 were executed and the balance were deported. 485 See the discussion in Chapter 2, Section 7.2.

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­government pre-organized plan or policy as well as being widespread. In concluding that the attack was ‘widespread’, it relied on the fact that the whole town of some ten thousand was the subject of a large-scale military operation which lasted for weeks. The Tribunal agreed with the icty that, under customary international law, there was no need for the defendant’s acts to be pursuant to a plan or policy, but, it also stated that (in accordance with the Law’s definition) the ‘attack’ had to be pursuant to a policy of a state or organization or further such a policy. It held that the definition of civilian is wide and includes individuals who may have at some time committed acts of resistance and individuals who had already withdrawn from the conflict at the time of the crime. All of the defendants were acquitted of the charge of committing ‘enforced disappearance’ because the Trial Chamber found that the perpetrators were not party to a plan to hide the fate of the victims. The Chamber did find that the confiscation of farms and the destruction of orchards, some of which were tens of years old and the source of the owners’ livelihood, were ‘inhumane acts of a similar character intentionally causing great suffering’ to the victims both psychologically and physically – taking ‘from them the things that meant for them the most, their lives and their children’s lives and their orchards in addition to taking from them their honour and freedom and dignity’. The main defence by Hussein was that as a leader, he was entitled to take action against a town that had tried to assassinate him at a time when Iraq and Iran were at war. The Tribunal held that the response was neither ‘necessary nor appropriate’ to the actual threat and the victims had no connection with the gunfire. In other words, even in response to an alleged threat of violence or ‘terrorism’, there was a requirement for due process. Similarly, the Tribunal rejected the claim of Awad Al-Bandar, the President of Saddam’s Revolutionary Court, that he was just conducting a trial under emergency conditions. It found the trial was ‘illusionary’ and ‘in fact an order of murder and nothing more’. Not since the Nuremberg-era and the Justice Case has a court found that ‘the dagger of the assassin was concealed beneath the robe of the jurist’.486 The Court’s findings in respect of both defendants continue and reinforce the Nuremberg legacy for state and judicial leaders who would endorse the summary execution of persons allegedly to promote the ‘higher’ interests of a state.

486 (Nuremberg) United States v Altstötter et al., reprinted in 3 Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No 10, 954 (1951) (‘The Justice Case’), 981.

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It is interesting to note that whilst much of the judgment dealt with the special requirements of the charge of crimes against humanity, this was entirely symbolic. The Tribunal had the power to convict for local offences in the alternative. According to the Trial Chamber, ‘crimes against humanity’ were international offences because punishing the perpetrators was aimed at ending the injustice practiced by an oppressive regime and to protect the people’s humanity. The Trial Chamber’s judgment was largely upheld by the Appellate Chamber on 26 December 2006, though one sentence was increased.487 It generally followed the reasoning of the Trial Chamber though it stated that to be a crime against humanity ‘it is necessary that that results from the policy of a state that commits its acts through executors in authority, or might result from perpetrators who are not in authority’. (b) Anfal Trial In June 2007, the Iraqi High Tribunal convicted and sentenced to death Ali Hassan Majeed, or ‘Chemical Ali’, former defence minister Sultan Hashem Ahmed and Hussein Rasheed Mohammed, former deputy director of operations for the Iraqi armed forces of crimes against humanity for their roles in a massacre of Kurds.488 Majeed, Hussein’s cousin and former defence minister, gained the nickname Chemical Ali after poison gas attacks on Kurdish towns in the 1980s. The three were convicted for their role in what was known as Operation Anfal (or Spoils of War, taken from Surat al-Anfal in the Qur’an). This was an anti-Kurdish military campaign between 1988 and 1989 against the Kurdish Peshmerga rebels as well as the mostly Kurdish civilian population of southern Kurdistan. The Kurds were regarded as collaborators with Iran during the 1980–88 Iran-Iraq war. The tribunal held that tens of thousands were killed in which chemical weapons were used, while the Kurds claim about 182,000 people were killed.489 Majeed ordered the use of mustard gas and nerve agents against the Kurds. 487 Former Vice-President Taha Yassin Ramadan had his life sentence increased to the death penalty by a reconstituted Trial Chamber after an appeals court decided the life sentence was too lenient. He was executed in March 2007. Unofficial English translation of trial judgment accessed online at on 22 September 2007. 488 Iraqi High Tribunal, Al Anfal, Special Verdict Pertaining to Case No 1/C Second/2006 (Anfal – Trial). The trial judgment is available in English online at . 489 See Michael J. Kelly, ‘The Anfal Trial Against Saddam Hussein’ (June 2007) 9(2) Journal of Genocide Research 235.

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Some of the documents tendered at trial included orders of Majeed that supplies of food, livestock and fuel be stopped from reaching villages and that every person arrested aged between 15 and 70 was to be killed after interrogation. Farhan Mutlaq Saleh, former head of military intelligence’s eastern regional office, and Sabir al-Douri, former director of military intelligence received life sentences. On 4 September 2007, the Appeals Chamber upheld the sentences in a majority decision of 5–4.490 (c) Merchants Case The judgment in the Merchants case was delivered on 11 March 2008.491 The trial concerned two incidents where merchants were executed or mistreated by direct order from Saddam Hussein and his Revolutionary Council on the ostensible basis that they were causing the currency crisis in Iraq.492 First, that on 25 and 26 July 1992, officers and employees from the general security department arrested, tortured and executed a group of merchants (either 10,493 30494 of 40495) and confiscated their property. The merchants were tied to electrical polls with signs placed on them reading, ‘this is the destiny of greedy merchant’.496 Secondly, on 21 August 1994, the general security department arrested another group of 9497 merchants and proceeded to perpetrate torture and inhumane acts on them, including amputating their right hands and marking their foreheads with an ‘X’. They were then prevented from travelling abroad, and their property was confiscated. 490 (iht) Iraqi High Tribunal (Appellate Chamber), 4 September 2007 (‘Anfal – Appeal’). The judgment is available in English online at . 491 Iraqi High Tribunal, Summary of the Merchants Execution Case Verdict, Case No 2, 11 March 2008, accessed on the icc Legal Tools database, accessed online at on 21 June 2014 (‘Merchants Case Summary’). 492 See TRIAL, ‘Fact Sheet: Abed Hameed Hmoud’ (last modified 13 June 2013), accessed ­online at on 21 June 2014. 493 For this figure, see Merchants Case Summary, above n 491, 34–35. 494 For this figure, see Merchants Case Summary, above n 491, 19–20. 495 For this figure, see Merchants Case Summary, above n 491, 18. See also Amnesty International, ‘Document – Iraq – Unjust and Unfair: The Death Penalty in Iraq’ and Anil Dawar, ‘Saddam’s deputy tried for murder of 42 merchants’, The Guardian (29 April 2008). 496 Merchants Case Summary, above n 491, 6, 17. 497 For this figure, see Merchants Case Summary, above n 491, 47.

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In the dock were 8 defendants: the Interior Secretary, Wetban Abraheem Alhasan, Head of General Security, Sabayi Abrahem Alhassan, 3 members of the disbanded Revolution Council (Ali Hassan Almajeed Iraqi, Tariq Aziz Isa, and Mizban Kkider Hadi), President Secretary, Abed Hameed Mahmood, Finance Secretary, Ahmed Hussein Khudair, and the Central Bank Governor, Isam Rasheed Hiweish. All were convicted with the exception of Isam Rasheed Hiwesh. The decision, however, should be treated with some caution. The Tribunal undertook no analysis whatsoever of what the ‘widespread or systematic attack’ that the accused’s actions are said to have formed a part. The Tribunal appeared to be satisfied simply that the actions were taken pursuant to a policy of the state. However, the killing and maiming of 50 people is unlikely to suffice either as ‘widespread or systematic’ or be directed against a ‘population’. At best, it may be said that it was at least arguable that the actions formed part of the broader suppression of the Shia population from 1991 onwards (see, for instance, the 1991 incidents case discussed immediately below). (d) 1991 Incidents Case The final completed trial is the 1991 incidents case, concerning the suppression of the Shiite insurrection in southern Iraq in 1991.498 After the hardship suffered by the Iraqi population as a result of un Sanctions imposed as a result of the Saddam Hussein government’s actions, a large number of Iraqis took to the streets of Basra and Imara in March of 1991. This incident was known as the Al-Intifadha Shabania or Shabania uprising as the protests took place during the month of Shaban.499 The Ba’athist regime violently suppressed the uprising with military force, killing thousands of unarmed civilians and torturing many others.500 This trial joined fifteen former leaders in Saddam Hussein’s regime accused of taking part in the suppression of the uprising, including three who were already sentenced to death during the Anfal trial.501 The Tribunal convicted all 498 (iht) 1991 Incidents Case – Summary, above n 189. 499 (iht) 1991 Incidents Case – Summary, above n 189, 3. 500 (iht) 1991 Incidents Case – Summary, above n 189, 3; see also John Burns, ‘Uncovering Iraq’s Horrors in Desert Graves’, The New York Times (5 June 2006), accessed online at on 21 June 2014; and Human Rights Watch, ‘Human Rights Watch World Report 1992 – Iraq and Occupied Kuwait’ (1 January 1992), accessed online at on 21 June 2014. 501 The 15 Accused were as follows: Commander of the Armed Forces Headquarters, Ali Hassan Majeed; Army Chief of Staff, Hussein Mohammed Rasheed; Assistant of the Army

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except 3 defendants (Latif Mahl Hmood Al-Sabawi, Sofian Mahir Ahmed and Sabir Abd Al Aziz Al Dori). In the course of its decision, while the Tribunal did not specifically cite the ad hoc Tribunals, it appeared to use similar language to the ad hoc Tribunals in describing the elements of the chapeau. The Tribunal held that the requisite ‘widespread or systematic attack’ may be established through acts of violence, a well-known policy that targets a specific society, the involvement of higher military and political commands, the discriminatory nature of the attack, and the extent to which the laws of war are complied with.502 3.6 Court of Bosnia & Herzegovina (Court of BiH) 3.6.1 Background The atrocities in Bosnia & Herzegovina came to an official resolution when all the states comprising the former Yugoslavia signed the General Framework Agreement for Peace in Bosnia and Herzegovina, known as the Dayton Accords, on 14 December 1995. Given the devastation that occurred not only to the people of Bosnia but also its civil institutions such as the government and judiciary, Annexure 10 of the Dayton Accords created a High Representative to ensure the effective implementation of the capacity building obligations set out in the accords. One such task involved reporting back to the un Security Council on the progress of the implementation of the Dayton Accords. In July 2002, in response to reports from both the High Representative and the icty, the un Security Council began to adopt a broad strategy for the transfer of cases involving intermediary and lower-level accused to competent national jurisdictions.503 The first step in this respect involved the Parliament of Bosnia & Herzegovina passing legislation proscribing genocide, war crimes

Staff General for Operations, Sultan Hashim Ahmed; Director of Military Intelligence, Sabir Abd Al Aziz Al Dori; Commander of Brigade 12 Infantry Division (Republican Guards), Waleed Hameed Tawfiq; Second Brigade Commander, Ibrahim Abd Al Sattar; Commander of Advanced Headquarter, Saadi Tuma Abbas; Commander of Hamo Rabi forces (Republican Guards), Qais Adb Al Razaq Al Adhami; Secretary to the President and Armed Forces Major, Adb Hameed Mahmoud; Army Staffs Major, Lateef Mahal Himood; Colonel and Commander of Second Armed Brigade of the Medina Forces, Sufian Mahir Mohammed; Director of the South Party Organization, Abd Al Ghani Abd Al Ghafoor; Director of Intelligence, Ayad Taha ShihabHead of the Intelligence Agency, Sabawi Ibrahim Al-Hasan; and Commander of Republican Guard in Al Basra, Ayad Fteh Al-Rawi. 502 (iht) 1991 Incidents Case – Summary, above n 189, 98 (see also at 88, 93 and 101). 503 un Security Council, Press Release SC/7888, ‘Security Council Briefed on Establishment of War Crimes Chamber Within State of Bosnia and Herzegovina’ (8 October 2003), accessed online at on 14 December 2014.

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and crimes against humanity in the Bosnian Criminal Code. However, in light of the difficulties faced by the fledgling state of Bosnia & Herzegovina, the un Security Council called on members of the international community to support the creation of a specialised war crimes chamber in Bosnia & Herzegovina as international donors.504 Accordingly, a series of multilateral agreements were entered into leading to approximately 20 million euros in funding being provided by around 30 countries.505 In the result, the Parliament of Bosnia & Herzegovina passed legislation creating a specialised war crimes chamber within Bosnia & Herzegovina (Court of BiH) with jurisdiction over cases involving war crimes, organized crime, economic crime and corruption. The Court of BiH officially began operating in March 2005. 3.6.2 The Statute Like the stl, the Court of BiH is tasked with applying the domestic law of the state, in this case, the law of Bosnia & Herzegovina. The definition of crimes against humanity in Article 172 in the Bosnian Criminal Code largely follows the definition in the icc Statute, including its requirement that the attack be committed pursuant to a ‘State or organizational policy’. While the Court of BiH could be seen as a domestic court, the Court’s statute was arguably internationalised by an amendment in 2003, which provided for the appointment of international judges.506 After reaching a high point of 15 in December 2007, these international judges were phased out by December 2012.507 The Court is also internationalised by virtue of the fact that it was partially created due to pressure from the icty to establish a trustworthy institution in the region for the transfer of cases from the icty as part of its own Completion Strategy.508 504 un sc Resolution 1503 (2003), un Doc S/RES/1503, 4935th mtg (28 August 2003), [5]. See also un sc Resolution 1534 (2004), un Doc. S/RES/1534, 4935th mtg (26 March 2004), [10]. 505 See International Judicial Monitor, ‘International Tribunal Spotlight: War Crimes Chamber, Court of Bosnia and Herzegovina’, published by the American Society of International Law, and the International Judicial Academy (July/August 2007, Vol 2, Issue 2), accessed online at on 2 July 2014; TRIAL, ‘War Crimes Chamber in Bosnia-Herzegovina’ (modified 6 June 2014), accessed online at on 2 July 2014. 506 The Court of Bosnia & Herzegovina (4th ed.), 39, accessed online at on 22 April 2014. 507 The Court of Bosnia & Herzegovina, above n 506, 39. 508 See icty Completion Strategy, accessed online at on 7 February 2013; and un sc Resolution 1534 (2004), above n 504.

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3.6.3 The Jurisprudence As at the end of September 2010, the Court of BiH had tried a total of 166 individuals for war crimes, crimes against humanity or both.509 Bassiouni states that 74 have been prosecuted for crimes against humanity, of which 38 have been convicted.510 Despite the fact that the definition of crimes against humanity, contained in Article 172, largely follows the icc, the jurisprudence has largely been in line with the icty, albeit with the additional element of a ‘State or organizational policy’. Insofar as the chapeau elements of crimes against humanity are concerned, the Court of BiH has confirmed a number of key points. First, in respect of the ‘widespread or systematic attack’ component, the Court of BiH has held that an attack is ‘generally understood as conduct during which violence occurs’ even where it is constituted by ‘mistreatment’ rather than violence by armed forces.511 The ‘widespread’ element may be satisfied by the ‘single effect of one act on a large scale’, and the ‘systematic’ element requires the ‘regular repetition of the offence which is not accidentally similar in character, or mutual organization of a series of acts and [a] small probability that the perpetration of those acts was random’.512 While the Court of BiH often adopted findings of the icty in respect of these elements, some cases identify a single municipality as being the area in which a ‘widespread’ attack occurred.513 Some have done so noting that the terms ‘widespread’ and ‘systematic’ are relative to the civilian population.514 Further, the Courts have held that the existence of an armed conflict does not per se indicate that the necessary ‘attack’ is present.515 509 osce, Delivering Justice in Bosnia and Herzegovina: An Overview of War Crimes Processing from 2005 to 2010 (May 2011), accessed online at on 19 October 2017, 45. 510 M. Cherif Bassiouni, Crimes Against Humanity – Historical Evolution and Contemporary Application (Cambridge University Press: New York, 2011), 233. 511 (BiH) Dušan Fuštar (First Instance Judgment), Case No X-KR-06/200-1 (21 April 2008) (‘Fuštar – First Instance’), [9]–[10]; Gordan Đurić (First Instance Judgment), Case No X-KR-08/549-2 (7 September 2009), citing (icty) Kunarac – Appeal, above n 13, [86] and [89]. 512 (BiH) Fuštar – First Instance, above n 511, [9]–[10]. 513 See (BiH) Gojko Janković (First Instance Judgment), Case No X-KRŽ-05/161 (23 October 2007) (‘Janković – First Instance’), [35] (an act was considered ‘widespread on the basis of only one municipality, Foča); Lelek Željko (First Instance Judgment), Case No X-KRŽ-06/202 (23 May 2008) (‘Željko – First Instance’), [16]–[17]. 514 (BiH) Željko Jukić (Second Instance Judgment), Case No X-KRŽ-06/330 (3 March 2015) (‘Jukić – Appeal’), [30]. 515 (BiH) Ranko Vuković and Rajko Vuković (Second Instance Judgment), Case No X-KRŽ -07/405 (2 September 2008) (‘Vuković – Appeal’), [3]–[4].

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Secondly, the Courts have interpreted the ‘policy’ element, noting that a ‘policy’ is to be distinguished from a ‘plan’ in that policies ‘may broadly define goals that are then to be implemented through individual decision-making on lower levels’ and requires only that ‘the State or organization actively promote or encourage such an attack’.516 Further, the Court of BiH has adopted a broad definition of ‘organizational’, finding that ‘this requirement should be interpreted liberally to cover a wide variety of organizations, and the relevant consideration should focus on the organization’s capacity as a group to conceive and adopt the policy to attack a civilian population in a widespread or systematic manner, rather than on the organization’s formal characteristics and taxonomy.’517 Thirdly, the Courts interpreted ‘directed against’ and ‘civilian’, following the ad hoc Tribunals in requiring that the ‘directed against’ element will be satisfied if the attack was ‘not against a limited and random number of individuals or consist[ing] of limited and isolated acts’, and requiring that ‘civilian’ be interpreted in line with international humanitarian law.518 One Second Instance decision looked to whether or not the population was treated humanely and without discrimination in reaching a conclusion on this issue.519 Fourthly, in respect of the mens rea component, the Courts have held that an accused need only have ‘actual or constructive’ knowledge of the broader context of the attack in question,520 which includes that the accused ran a risk that their acts were part of the attack.521 A useful list of examples of evidence has also been identified by the Court.522 This knowledge may be inferred from 516 (BiH) Mitar Rašević and Savo Todović (First Instance Judgment), Case No X-KRŽ-06/275 (28 February 2008) (‘Rašević and Todović – First Instance’), [40]. 517 (BiH) Rašević and Todović – First Instance, above n 516, [40]. 518 (BiH) Rašević and Todović – First Instance, above n 516, [41]; Marko Samardžija (Second Instance Judgment), Case No X-KRŽ-05/07 (3 November 2006) (‘Samardžija – Appeal)’, [14]–[15]. 519 (BiH) Samardžija – Appeal, above n 518, 14–15. 520 (BiH) Krešo Lučić (Second Instance Judgment), Case No X-KRŽ-06/298 (16 December 2008) (‘Lučić – Appeal’), [85], citing (ictr) Kayishema – Trial, above n 62, [133]–[134], (icty) Kupreškić – Trial, above n 36, [557], Blaškić – Trial, above n 37, [249]. 521 (BiH) Lelek Željko (Second Instance Judgment), Case No X-KRŽ-06/202 (12 January 2009) (‘Željko – Appeal’), [5], citing (icty) Kupreškić – Trial, above n 36, [556]. 522 (BiH) Rašević and Todović – First Instance, above n 516, [42] (‘It is not necessary that the Prosecution prove by direct evidence that the accused had knowledge of the relevant context and nexus, as such proof may be established constructively through circumstantial evidence, including: the accused’s position within a civilian or military hierarchy; his membership in a group or organization involved in the commission of crimes; the scale of the acts of violence; his presence at the scenes of crimes; and the extent to which the crimes were reported in the media.’).

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factors such as the accused’s position in the military,523 and notorious facts widely known at the time, but it will not be sufficient to simply to point to the accused’s membership of the armed forces perpetrating the attack.524 Importantly, the Court of BiH found that an accused need not be aware of the existence of a state or organizational policy, but only of the objective manifestations of the attack.525 The jurisprudence from the Court of BiH is also of significant use in resolving a number of evidentiary difficulties involved in establishing the underlying crimes of crimes against humanity. These particular elements will be addressed in the discussion of the elements of the underlying crimes under customary international law in Chapter 10. 3.7 The Extraordinary African Chambers in Senegal (eac) 3.7.1 Background Another recent internationalised tribunal to have been created is the Extraordinary African Chambers in Senegal (eac). The eac is a first in two major ­respects. It is the first ad hoc Tribunal convened in Africa or with the participation of the African Union (au). And, it is the first ad hoc Tribunal convened outside the territorial state where the crimes were committed without the imprimatur of the Security Council (albeit with the consent of the territorial state, Chad). The eac arose as a result of failed attempts to try Hissène Habré, the former president of Chad from 1982 to 1990 for widespread political killings, torture, enforced disappearances, and arbitrary arrests during his tenure as president. A 1992 Truth Commission in Chad found that Habré’s government was responsible for 40,000 political murders and systematic torture, most of which committed by Habré’s police force, the Documentation and Security Directorate (dds). As discussed in more detail in Chapter 7, in the decades since Habré was deposed, Belgium, Chad and Senegal have all attempted – and failed – to try Habré in their domestic courts. These attempts came to a head on 18 November 2010 when the ecowas Court ruled that Senegal could only prosecute Habré if it established an internationalised court to do so.526 523 (BiH) Samardžija – Appeal, above n 518, [17]. 524 (BiH) Mirko Todorović and Miloš Radić (Second Instance Judgment), Case No X-KRŽ-07/382 (17 February 2009) (‘Todorović – Appeal’), [37]. 525 (BiH) Boban Šimšić (First Instance Judgment), Case No X-KRŽ-05/04 (11 July 2006) (‘Šimšić – First Instance’), [17]. 526 (ecowas) Hissène Habré v Senegal, Court of Justice of the Economic Community of West African States, Decision No. ECW/CCJ/JUD/06/10 (November 18 2010) (‘Habré v Senegal – ecowas’), [61].

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After the ecowas decision was handed down, the government of Senegal entered into negotiations with the au for the establishment of an ad hoc Tribunal to try Habré.527 Finally, after early reluctance from Senegal,528 and after both a prodding from the icj in its Extradite or Prosecute Decision and a change in government in Senegal, the Extraordinary African Chambers were established in Senegal on 8 February 2013 by an agreement between Senegal and the au,529 with the financial backing of the au and some European countries.530 On 2 July 2013, the eac charged Habré with crimes against humanity, torture and war crimes and he was taken into custody.531 Importantly, while the initial purpose of the eac was to prosecute one ­person – Habré – as discussed further below, the eac Statute leaves open the potential for further prosecutions. Human Rights Watch has reported that the  eac Prosecutor has requested the indictment of five additional officials from Habré’s administration:532 • Saleh Younous and Guihini Korei, two former directors of the dds, Habré’s political police; • Abakar Torbo, former director of the dds prison service; • Mahamat Djibrine, also known as “El Djonto,” one of the “most feared torturers in Chad,” according to the National Truth Commission; and • Zakaria Berdei, former special security advisor to the presidency and one of those suspected of responsibility in the repression in the South in 1984. While none are currently in Senegal, Younous and Djibrine are in detention in Chad, Berdei is believed to be residing in Chad, and Korei and Torbo are the 527 See Chronology of the Hissène Habré Case (last updated 19 July 2013), International Federation for Human Rights, accessed online at on 23 July 2013 (‘Habré Chronology’). 528 See Human Rights Watch, ‘Senegal: Habré Trial an “Illusion”’ (9 June 2011), accessed online at on 22 June 2014. 529 Project d’accord entre l’union africaine et gouvernement de la République du Sénégal sur la création de chambres Africaines Extraordinaires au sein des juridictions Sénégalaises (Agreement between the Government of the Republic of Senegal and the African Union on the Establishment of Extraordinary African Chambers in the Senegalese Courts). 530 Marlise Simons, ‘Senegal: Trial for Chad’s Ex-Ruler’, New York Times (8 February 2013), accessed online at on 23 July 2013. 531 Human Rights Watch, ‘Q&A: The Case of Hissène Habré before the Extraordinary African Chambers in Senegal’ (21 May 2014), accessed online at on 22 July 2014 (Human Rights Watch – Q&A on the eac). 532 Human Rights Watch – Q&A on the eac, above n 531.

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subjects of international arrest warrants issued by Chad in May 2013.533 Despite the eac having requested the transfer of Younous, Djibrine and Berdei, the Chadian government has so far failed to cooperate. 3.7.2 The Statute In addition to the agreement referred to above, Senegal and the au agreed on a Statute to the eac (eac Statute).534 The material, geographical and temporal jurisdiction of the eac is contained in Articles 3 and 4. Article 3 provides the eac with the jurisdiction to ‘try the person or persons most responsible for crimes and serious violations of international law, customary international law and international conventions ratified by Chad, committed in the territory of Chad during the period from 7 June 1982 to 1 December 1990’. Article 4 provides that the eac has jurisdiction over the crimes of genocide, war crimes, crimes against humanity and torture. The eac was established in the same way that the eccc and the stl were established by agreement between Cambodia and Lebanon, respectively, with the un. Also like the eccc and the stl, the eac is a hybrid tribunal set up in the existing court structure in Senegal but with a mixture of Senegalese and foreign judges.535 In respect of the Trial Chamber, Article 11(3) of the Court Statute provides that there are to be 2 Senegalese judges (with one alternate Senegalese judge) to be nominated by Senegal and appointed by the au, and a president to be from a non-Senegal au state. Article 11(4) of the Court Statute provides a similar setup in respect of the appeals chamber but with 2 alternate Senegalese judges rather than one. Unlike the eccc and stl, however, the tribunal appears to apply primarily international law,536 which is only supplemented by Senegalese law where there is a lacuna.537 533 Human Rights Watch – Q&A on the eac, above n 531. 534 Statute of the Extraordinary African Chambers within the courts of Senegal created to prosecute international crimes committed in Chad between 7 June 1982 and 1 December 1990, unofficial English translation accessed online at on 22 June 2014. 535 Statute of the eac, Arts 11 and 12. 536 Statute of the eac, Art 3 provides that the eac is: ‘authorized to prosecute and try the Principal responsible for the crimes and serious violations of international law, international custom, and international conventions ratified by Chad in Chad committed during the period from June 7, 1982 December 1, 1990.’ 537 Statute of the eac, Art 16 (‘Applicable Law]) provides: ‘1. Extraordinary African Chambers apply this Statute. 2. In cases not provided for in this Statute, they apply the Senegalese law.’

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The definition of Crimes against Humanity is contained in Article 6 of the Court Statute. Article 6 defines the chapeau element of crimes against ­humanity in a way that largely reflects the ad hoc tribunals: ‘one of the [­enumerated] acts committed in a widespread or systematic attack against any ­civilian population’. While Article 6 includes at least one aspect of the icc ­Statute (for ­instance, the expanded list of sexual crimes538), it does not incorporate the policy element or a requirement that the perpetrator know that their actions were ‘part of’ the relevant attack. Insofar as the remaining elements of the crime, the underlying crimes, are concerned, the list is more limited than under the other tribunals, including only the sexual offences, murder, extermination, deportation, apartheid, enslavement, enforced disappearances,539 torture, inhumane acts and possibly persecution.540 Article 6 does not appear to include imprisonment, forcible transfer, enforced pregnancy, persecution, and other inhumane acts. Importantly, the Statute of the eac provides that statutes of limitations do not apply,541 that official position of the accused is irrelevant to their criminal responsibility,542 and that any amnesty granted will not bar a prosecution by the eac.543 Unfortunately, however, progress has been slow. It was not until 2007 that Senegal amended its laws to permit the trial to go forward and not until 2 July 2013 that Habré was indicted by the eac.544 3.7.3 Trial of Habré The trial of Habré commenced on 20 July 2015 and lasted 8 months – a significantly shorter time than the trials at the icc. Following the well-trodden path adopted by former heads of state such as Charles i and Slobodan Milošević, Habré challenged the authority of the eac to try him all the way throughout 538 ‘Rape, sexual slavery, enforced prostitution, enforced sterilization or any other form of sexual violence of comparable gravity’. 539 Although note that the phrasing appears to conflate the two: ‘the enslavement and the widespread and systematic practice of summary executions, kidnapping of people monitoring their disappearance’. 540 The phrasing appears to conflate torture, other inhumane acts and persecution: ‘torture or inhumane acts intentionally causing great suffering or serious injury to body or to physical and mental health inspired by motives of political, racial, national, ethnic, cultural, religious or gender.’ 541 Statute of the eac, Art 9. 542 Statute of the eac, Art 10(1). 543 Statute of the eac, Art 20. 544 Habré Chronology, above n 527.

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the trial. The court ultimately was required to force him into the courtroom and to appoint lawyers to represent him.545 On 30 May 2016, the eac found Habré guilty of crimes against humanity, war crimes and torture, and sentenced him to life imprisonment.546 On 29 July 2016, Habré was also ordered to pay substantial reparations to victims. In relation to crimes against humanity, Habré was convicted of the underlying crimes of murder, summary executions, enforced disappearances, torture and inhumane acts on the basis of his participation in a joint criminal enterprise to repress opposition to his rule.547 He was also convicted of the underlying crimes of rape and sexual slavery, on the basis of extended joint criminal enterprise liability.548 These charges of rape and sexual slavery had been added to the indictment, following the evidence of sexual violence that emerged during the course of the trial.549 Finally, Habré was convicted of ordering executions, and rape and torture against a particular victim as a direct perpetrator.550 Following the ecowas decision, the Chamber considered that it had jurisdiction over Habré notwithstanding any alleged immunity that may exist as the eac was a court of ‘international character’ to apply ‘international law’.551 The applicable sources of law were held to be international conventions ratified by Chad, customary international law and general principles of law applicable at the time of the commission of the crimes.552 In terms of the substantive aspects of crimes against humanity, the Chamber largely followed the jurisprudence of the ad hoc tribunals. While these matters are summarised more comprehensively in Chapter 9, this included 545 El Hadji Aliourne Seck, ‘New Developments in the Habré Case: Defence Appeal and Reparations under Examination’, International Justice Monitor (26 July 2016), accessed online at on 25 June 2017. 546 (eac) Ministère Public v Habré Judgment (30 May 2016), accessed online at (only available in French) (Habré – Trial’). 547 Alexis Hedger, ‘The Case of Hissène Habré before the Extraordinary African Chambers’, ila Reporter (20 July 2016), accessed online at < http://ilareporter.org.au/2016/07/the-case -of-hissene-habre-before-the-extraordinary-african-chambers-alexis-brassil-hedger/> on 25 June 2017. 548 Hedger, above n 547. 549 Kim Thuy Seelinger, ‘The Landmark Trial Against Dictator Hissène Habré, Foreign Affairs (16 June 2016), accessed online at on 25 June 2017. 550 Hedger, above n 547. 551 (eac) Habré – Trial, above n 546, [33], [38]. 552 (eac) Habré – Trial, above n 546, [44].

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as to the definition of ‘attack’, ‘civilian population’, ‘directed against’ and the terms ‘widespread’ and ‘systematic’. Significantly, the Chamber also followed the icty Appeals Chamber in Kunarac in finding that a plan or policy is not required as an element of the offence but that the existence of such a plan or policy can be of evidentiary significance.553 Also of some significance, the Chamber also followed the ad hoc Tribunals insofar as the underlying crimes of sexual slavery and enforced disappearances (discussed in Chapter 10). The judgment considered the allegations of crimes against humanity between 7 June 1982 and 1 December 1990.554 The primary allegations concerned the repression of political opponents, the populations of the south of Chad and of the Hadjeraï and Zaghawa ethnic groups. This included repeated, deliberate and regular violence, including arrests, secret detention in appalling conditions, abuse of all kinds, disappearances and executions on a grand scale including millions of victims.555 These actions were organised and designed to suppress political opponents and were committed by the state military and security forces, including the Chadian Direction de la Documentation et de la Sécurité (dds), and by their special armed segment, the Brigade Spéciale d’Intervention Rapide (bsir).556 Such actions constituted a widespread and systematic attack against the civilian population of Chad.557 In respect of the crimes against women, the Chamber found that part of the system of repression by Habré’s regime involved the detention of women (including some young girls) in prisons and detention centres where they were subjected to sexual slavery and torture.558 One further aspect of interest is that Habré was convicted of the murder of two soldiers suspected of having committed the massacre at Ngalo.559 Ultimately, while not requiring any policy element, it was apparent in the Chamber’s findings on criminal responsibility that such a policy was present.560 553 (eac) Habré – Trial, above n 546, [1358]. 554 For a useful summary of the judgment, see : (eac) Prononce et Resume Du Jugement Dans L’Affaire Le Parquet General Contre Hissein Habre (30 Mai 2016) (‘Habré – Trial (Summary)’). 555 (eac) Habré – Trial, above n 546, [388], [1392]–[1394]. See also: Habré – Trial (Summary), above n 554, [15], [21]–[23]. 556 (eac) Habré – Trial, above n 546, [1388], [1393]. 557 (eac) Habré – Trial, above n 546, [1394]. 558 (eac) Habré – Trial, above n 546, [1356], [1358], [1519], [1527], [1538], [1576]. See also: Habré – Trial (Summary), above n 554, [30]–[33]. 559 (eac) Habré – Trial, above n 546, [1860]–[1863]. See also: Habré – Trial (Summary), above n 554, [48]–[49]. 560 (eac) Habré – Trial, above n 546, [56]. See also: Habré – Trial (Summary), above n 554, [56].

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Habré controlled most of the security organs implicated in the repression and the realisation of the common objective of the jce (primarily the dds, bsir and the Presidential Guard), and he was implicated in the day-to-day function of those organs. The Chamber found there to be a machine repressive, being a machine of repression, composed of the different security, military and political organs of the state, against enemies of the regime.561 The common objective was to quash all rebellion and opposition to the regime and, in the eyes of the regime, create unity and sovereignty in Chad, even where this was by creating a regime of terror.562 Habré appealed against his conviction and sentence. On 27 April 2017, the Appeals Chamber upheld his convictions and sentence,563 although it overturned his conviction for rape as a direct perpetrator, as it was not included in the original indictment (although the other convictions for sexual slavery were upheld).564 3.8 African Court of Justice and Human Rights Whilst unlikely to be operational in the near future, the African Court of Justice and Human Rights (acjhr) should be mentioned for completeness. The acjhr is the merger of the African Court of Justice and the African Court of Human and People’s Human Rights, and is to be established following the ratification of the relevant protocol by 15 member states of the African Union. Significantly, on 27 June 2014, the Assembly of the African Union adopted an amending protocol, which extends the acjhr’s jurisdiction to crimes under international law (the amending protocol also comes into force after ratification by 15 member states). Under the amending protocol, the acjhr will have jurisdiction over crimes against humanity, as well as war crimes and other transnational crimes. Like

561 (eac) Habré – Trial, above n 546, [1926]. See also: Habré – Trial (Summary), above n 554, [51]. 562 (eac) Habré – Trial, above n 546, [1928]. See also: Habré – Trial (Summary), above n 554, [52]. 563 (ecowas) Le Procureur Général v Habré (Arrêt) (27 April 2017), accessed online at (only available in French). 564 Ruth Maclean, ‘Ex-Chad Dictator’s Conviction for Crimes Against Humanity Upheld by Dakar Court’, The Guardian (28 April 2017), accessed online at on 25 June 2017.

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the icc Statute, under the amending protocol, the definition of ‘an attack against any civilian population’ includes the state policy requirement.565 Despite the potential for the acjhr to be the first permanent regional court with international criminal jurisdiction, questions arise over: whether the Court will have sufficient resources and judges (only 16 judges are to be ­appointed across three divisions, including the international criminal law division); and the immunity to be granted to ‘any serving au Head of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office’.566 Further, whilst the African Union’s deteriorating relationship with the icc coincides with the development of the acjhr, the amending protocol does not address the Court’s future relationship with the icc.567 3.9 Conclusion on the Internationalised Tribunals 3.9.1 The Jurisprudence In seeking to draw conclusions from the practice of the international ­tribunals and the internationalised tribunals, it is necessary to look both at the ­jurisdiction being exercised by the court or tribunal, its constituting ­statute and the ­jurisprudence of that court or tribunal. This section addresses the ­statute and jurisprudence and the section below considers the nature of the jurisdiction. Insofar as the statutes are concerned, it is significant that each definition of ‘crimes against humanity’ in the hybrid tribunals and the iht is different. While the icty and ictr statutes were enacted prior to the Rome Statute, what has happened in other cases remains highly significant. When it comes to the ‘policy element’, of the statutes of the seven tribunals considered, 2 follow Article 7 of the icc Statute, including the definition of attack in Article 7(2) that includes the policy element (the iht and the Court of BiH), one follows the ictr statute with the additional requirement to follow Article 7 of the icc Statute (the eccc) and 4 do not appear to follow the icc Statute (the spet, scsl, the eac and the Specialist Chambers in Kosovo). As to the jurisprudence of the Tribunals, the practice has been somewhat more consistent at least on its face. The most striking feature is their consistent 565 Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, Art 28C. 566 Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, Art 46Abis. 567 See report by Amnesty International, ‘Malabo Protocol: Legal and Institutional Implications of the Merged and Expanded African Court’ (22 January 2016), accessed online at on 18 June 2017.

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adoption of the five Kunarac elements discussed above in relation to the ad hoc Tribunals. This certainly increases the precedential value of these decisions and strengthens the argument that they have attained the status of customary international law. This question is most significant in the context of the controversial policy requirement. The eccc and scsl have both endorsed the view of the icty Appeals Chamber in Kunarac that there is no requirement for a policy element as a separate legal requirement. Such a policy element may have a role to play, however, in deciding whether there has been a ‘widespread or systematic attack directed against a civilian population’. Similarly in the iht, the Court has held that, while the statute of the tribunal required proof of a policy, this was a jurisdictional element that was narrower than the position under customary international law. There have, however, been exceptions. The spet, at least arguably, has maintained the finding in Los Palos that a ‘policy element’ is relevant to establish the relevant attack even after the icty Appeals Chamber’s decision in Kunarac. Further, the icc policy requirement has been included in the statute of the most recent international court to be established, the Statute of the A ­ frican Court of Justice and Human Rights. The precedential value of the decisions is, however, frequently undermined by a lack of persuasive reasoning. In cases where the decision in Kunarac has been adopted, the Tribunals’ reasoning has generally been limited simply to a citation of Kunarac and/or other cases citing Kunarac. With only few exceptions, the Tribunals have not attempted to critically assess the decision or even explain its reasoning in any detail at all. The one exception is the decisions of the eccc, where the Chambers have been required to grapple with the definition of crimes against humanity in the 1970s – including the policy element. However, as concluded by the authors, the Chambers of the eccc have failed to appreciate that a state policy was implied in the definition of crimes against humanity at Nuremberg and was bundled up with the war nexus requirement.568 There remain a number of difficulties with the Kunarac decision. These include the controversial conclusion that a state policy is not required under customary international law, further issues concerning how the definition applies to non-state entities, and whether there is a certain required minimum level of scale and seriousness that is required. For instance, the Kunarac decision makes no attempt to reconcile the competing tensions that arise from the 568 See above, Section 3.3.3 and Chapter 2, Section 8.

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Limaj decision, which was one of the few decisions concerning crimes committed by a non-state entity. Similarly, the precedential value of the finding that a state policy was not required is also undermined by the factual findings in the particular cases. It is of significance, for instance, that all of the internationalised tribunals have found that the attacks in question were carried out with the support or acquiescence of the civilian and military authorities or a de facto power engaged in armed conflict. Even in a case such as the afrc Case, for instance – where the attack was found to be ‘widespread’ and the scsl did not go on to consider whether the attack was ‘systematic’ – there was a policy element in any event at least in fact.569 Similarly, when the Court of Bosnia & Herzegovina came to interpret the policy element in its statute, it eschewed any explicit requirement that the organisation be a state-like entity. It instead focused on the organization’s ‘capacity as a group to conceive and adopt the policy to attack a civilian population in a widespread or systematic manner, rather than on the organization’s formal characteristics and taxonomy’.570 Notwithstanding that this appears relatively broad, it must be remembered that the non-state entity in consideration – the Republika Srpska – was, on the facts, a state-like entity. That said, at least in respect of the less controversial aspects of the 5 Kunarac elements, the jurisprudence of the internationalised tribunals generally makes up a useful body of law that shapes and defines many of the particular nuances of crimes against humanity. While these contributions are detailed exhaustively in Chapter 9, some of the key features may be noted here. The spet, for instance, have provided some of the first examples of circumstances where an individual crime is held not to form ‘part of’ the relevant attack, and all of the internationalised tribunals accepted the mens rea element of crimes against humanity. In respect of scsl, the Court has suggested that the mens rea element could be satisfied by constructive knowledge as well as actual knowledge. The scsl has significantly developed the requirement that the acts be ‘directed against’ a ‘civilian population’. The reasons for this has been that, unlike conflicts such as those in the former Yugoslavia, Rwanda and even East Timor, the population in question was not clearly one delineated and targeted on the 569 It should be noted that the scsl also found in the cdf Case that the attack was ‘widespread’ and stated that it did not need to go on to consider whether the attack was also ‘systematic’. However, the authors of attack – the cdf – were pro-government forces operating in conjunction with the government. Therefore, the same reasoning applies. 570 (BiH) Rašević and Todović – First Instance, above n 516, [40].

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basis of race or ethnicity. Rather, individuals were generally targeted due to their perceived support for one of the rival political grounds – the afrc, ruf or cdf. Accordingly, in the cdf Case, the Court appeared to go some way in clarifying the apparent finding in Limaj that the targeting of a select group of civilians for political reasons cannot satisfy the chapeau elements of a crime against humanity.571 For, while accepting the statement in Limaj, the Court nonetheless held that the widespread targeting of perceived ‘collaborators’ constituted an attack directed against a civilian population’. This appears to suggest that the finding in Limaj, on the one hand, arose because of the very limited number of victims – that is, the targeting of a very ‘select’ or ‘limited’ group of opponents. On the other hand, a sufficiently broad and arbitrary attack on perceived ‘political opponents’, can amount to an attack on a civilian population. A final point to be noted in respect of the contextual elements, is the finding in the eccc that the war nexus had disappeared from crimes against humanity by 1975. For reasons discussed above and in Chapter 3, this conclusion, while convenient for the prosecutions in question, may be doubted. It appears likely that the eac has reached the same conclusion in the case of Hissène Habré. Outside of the contextual elements, and as discussed further in Chapter 10, the internationalised Tribunals have also made significant contributions to the definitions of the underlying crimes. For instance, the spet has contributed to causation in the context of murder, the scsl has significantly clarified many of the gender crimes, the eccc has developed the crime of enslavement, the iht has furthered the jurisprudence on property crimes, and the Court of BiH has developed the law on enforced disappearances. Further, analyses have been undertaken as to when certain underlying crimes attained the status of customary international law by the eccc (enslavement, persecution and rape) and the spet (murder, rape and imprisonment).572 3.9.2 The Tribunals It is appropriate to summarise the nature of the jurisdiction exercised by the above tribunals and their effectiveness. First, the international tribunals of the icty and ictr constitute the clearest examples of the international community exercising jurisdiction over the perpetrators of crimes against humanity. Both tribunals were established 571 (icty) Limaj – Trial, above n 48, [187]. For a discussion of the decision in Limaj, see above, Section 2.2.3(b). For a discussion of the importance of Limaj in the chapeau elements of crimes against humanity, see Chapter 8, Sections 3.2 and 4.2. 572 (spet) Cardoso – Judgment, above n 218, [273], [274] and [354]–[366].

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­unilaterally over the states in question by the un Security Council acting pursuant to Chapter vii of the un Charter. The only other tribunal that has come into existence without the consent or participation of the territorial state has been the eac, which was a Court established by the African Union and Senegal to try perpetrators of offences committed in Chad. The acjhr should technically be added to the list but it offers little precedential value as it has yet to prosecute any perpetrators. The balance of the internationalised tribunals has come into existence with the participation and consent of the territorial state. As has been discussed throughout this chapter, each of the internationalised tribunals and the iht have been created in different ways, with differing levels of international support and are in relation to different conflicts. In terms of rules of jurisdiction, 3 have universal jurisdiction over crimes against humanity (Kosovo, East Timor and Senegal), 3 have only territorial jurisdiction (Sierra Leone, Cambodia and Bosnia & Herzegovina) and 1 is based upon nationality or residency (Iraq). With the exception of the eac, the hybrid tribunals each involve new administrations dealing with the atrocities of former rulers or atrocities committed by their own nationals or on their own territory. For instance, the eccc, iht, Specialist Chambers in Kosovo and the spet in East Timor all resemble the tribunals appointed by the Allies under Control Council Law 10 after the Second World War.573 Whilst purporting to punish international crimes, the law and the tribunals are essentially local measures for a territory in transition. Like Control Council Law 10, the law is best viewed as the law of an interim occupational authority rather than any international legislation as such. This has allowed the spet (and will allow the Specialist Chambers in Kosovo) at times to convict an accused of domestic crimes such as murder or destruction of property when it has not been satisfied about the special requirements for crimes against humanity.574 This is not an option in proceedings before the icc for instance. Hence, the hybrid tribunals essentially involve ‘transitional’ or ‘post-­conflict’ justice rather than an exercise in ‘international justice’ as such. It may not be immediately clear that ‘crimes against humanity’, as opposed to domestic crimes, ought to apply in such circumstances. The rationale for these hybrid tribunals invoking the international crime of crimes against humanity appears to be twofold. First, to emphasise that there exists an international interest in 573 See Chapter 3, Section 2. 574 See (spet) dos Santos – Judgment, above n 222; Oliveira – Judgment, above n 221; and Prosecutor v Fernandes (Judgment), Special Panel Case 25/2003 (8 December 2004) ­(‘Fernandes – Judgment’).

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ending, if not an international duty to end, impunity for previous atrocities. Secondly, to add legitimacy, and legal efficacy, to the prosecutions of the new administration, particularly where such prosecutions attempt to override international immunities, local amnesties or laws of prescription. This raises two questions for consideration: what is the legal status of each of the internationalised tribunals, and how effective have they been? The ­hybrid tribunals each sit on a sliding scale somewhere between the p ­ urely ­international ad hoc Tribunals and a domestic court acting without the ­involvement of the international community. Insofar as their perceived benefits are concerned, hybrid tribunals are palatable both to the international ­community – who are reluctant to spend the money to establish an ad hoc Tribunal – as well as to the territorial state keen to maintain control over the process. They are also a useful way to combine prosecutions for international crimes with capacity building in post-conflict societies. However, these hybrid tribunals have been criticised – at times with good reason – for failing to live up to adequate standards of due process and independence.575 Some conclusions may be drawn about the experiment of prosecuting international crimes before ‘hybrid’ tribunals. In terms of ‘cost effective’ justice, the overall result in some cases has been quite remarkable. In the case of East Timor, significant trials have been conducted in a relatively short space of time and with very modest means. In total between 2000 and 2005, the Special Panels have tried 87 defendants in 55 trials, with 84 convicted of crimes against humanity and three acquitted of all charges.576 In terms of achieving ‘overall justice’ the process in East Timor, has been incomplete. Those convicted have generally been minor players. This is reflected in the light sentences often handed down, such as seven and eight years for murder as a crime against humanity.577 Those indicted who bear the most responsibility for the atrocities in East Timor, such as General Wiranto, have avoided both effective prosecution at home and extradition to East Timor to 575 See generally: Parinaz Mendez, ‘The New Wave of Hybrid Tribunals: A Sophisticated Approach to Enforcing International Humanitarian Law or an Idealistic Solution With Empty Promises?’ (2009) 20 Criminal Law Forum 53; Padraig McAuliffe, ‘Hybrid Tribunals at Ten: How International Criminal Justice’s Golden Child Became and Orphan’ (2011) 7(1) Journal of International Law and International Relations 1. 576 See Status Updates, Special Panels for Serious Crimes in East Timor, War Crimes Office, Washington College of Law, accessed online at on 5 January 2006. 577 See (spet) Nunes – Judgment, above n 216, where there was a dissent on sentence by Judge Blunk.

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face the charges laid against them.578 There was talk of pardoning those convicted as part of the process of reconciliation and in recognition of the fact that the major perpetrators have escaped conviction all together.579 The un Truth Commission for East Timor had authority to grant amnesties but not for crimes against humanity.580 On 20 May 2005, the President granted a reduction in sentence for some who had been convicted of crimes against humanity.581 Of the 440 persons originally indicted by the Special Panels, 339 could not be proceeded with because they were beyond the jurisdiction.582 This has led one commentator to say it would have been better if the Special Panels had only indicted the senior perpetrators in Indonesia for crimes against humanity (which could not proceed without un support) and applied local law to the minor accomplices left in the territory.583 Applying the label ‘crimes against humanity’ for such minor local offenders appears misplaced. Keeping the label as only appropriate for the senior commanders in Indonesia would have highlighted the need for a truly international court with authority to seek the handover of senior officials in Indonesia. The Special Panels never had such authority. By 2005, when the Indonesian trials had led to no convictions for those widely regarded as responsible for the crimes of 1999,584 the Secretary-General established the Commission of Experts to report back. It emphatically called for an ad hoc international tribunal in the absence of effective prosecutions in Indonesia.585 The un has so far resisted such calls for an international tribunal to prosecute the Indonesian officials most responsible who remain at large. The Special Court for Sierra Leone, by contrast, had much more in common with the ad hoc Tribunals than the Special Panels. When Charles Taylor 578 See Report to the Secretary-General of the Commission of Experts to Review the Prosecution of Serious Violations of Human Rights in Timor-Leste (then East Timor) in 1999, un  scor, 60th sess, Annex, un Doc S/2005/458 (15 July 2005) (‘Report of Experts on Timor-Leste’); Sylvia de Bertodano, ‘East Timor: Trials and Tribulations’ in Romano et al., above n 2, 79, 92; and see also section on Indonesia in Chapter 7. 579 Bertodano, above n 2, 92. 580 See Carsten Stahn, ‘Accommodating Individual Criminal Responsibility and National Reconciliation: The un Truth Commission for East Timor’ (2001) 95(4) American Journal of International Law 952, 962–966. 581 Judicial System Monitoring Program, accessed online at on 15 January 2006. 582 Judicial System Monitoring Program, above n 581. 583 Bertodano, above n 2, 83. 584 See section on Indonesia in Chapter 7. 585 Report of Experts on Timor-Leste, above n 578.

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was enjoying asylum in Nigeria, commentators focused on the Court’s lack of explicit Chapter vii powers as being a major weakness for the Court.586 As Schabas argues, however, this is an over simplification of the reality of the political situation.587 Nigeria’s asylum for Taylor appears to have been granted with the tacit support of the international community at the time. Any earlier Chapter vii resolution calling on members to co-operate with the Court would not have altered the situation. Nevertheless, it does seem a bit of a stretch politically, if not legally, to regard the Special Court as ‘truly an international court’. The Court’s jurisdiction over crimes against humanity is limited to the territory of Sierra Leone and the Court’s viability, in substance, is based upon the consent and cooperation of Sierra Leone. The un’s main role in the case of Sierra Leone is as financial donor to Sierra Leone. The scsl is a form of important development aid to assist a developing country to prosecute the offenders of the past when it had limited resources of its own to do so. In addition, an international court lends legal credibility to Sierra Leone’s desire to use the courts rather than amnesties to deal with those responsible for the atrocities of the past. Now that Taylor has been convicted, the effectiveness of the scsl in obtaining custody of indictees appears at least equal to that of the icty. Indeed, overall the position today is one of success for the Court. It has conducted trials of some of those most responsible for the atrocities of the past, including former President Taylor. The eac can probably be seen as similar to the scsl, albeit with the African Union rather than the un. While the impetus for its creation rests on the erroneous understanding of the nullum crimen principle by the ecowas Court, the Tribunal can also be seen as a way for the African Union to assist Senegal undertake the necessary prosecution. In fact, it was specifically created to provide an international solution to the prosecution. The main difference is that it is a prosecution undertaken by a third state, albeit with the consent of the territorial state. It is yet to be seen how successful the eac will be. The eccc probably sits just beyond the scsl and more towards the purely territorial end of the sliding scale. It is staffed by a majority of Cambodian judges and it is technically a creation of a Cambodian statute – but pursuant to and implementing a treaty with the un. On the other hand, however, the work of the eccc has often been with the reluctance of Cambodia. It is less of a tribunal assisting Cambodia, and more one urging Cambodia, to address 586 Nsongurua J. Udombana, ‘Globalization of Justice and the Special Court for Sierra Leone’s War Crimes’ (2003) 17(1) Emory International Law Review 55, 122–124. 587 Schabas, above n 427.

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its atrocities. For this reason, the eccc has been one of the more disappointing of the hybrid tribunals. The Tribunal has been notoriously slow and may only complete 2 trials. Further, allegations of government interference with the Tribunal are common, and the funding of the Tribunal has been continually under threat. It is too early to tell how the Specialist Chambers of Kosovo will fare but if Kosovan authorities are reluctant, it may face analogous concerns to that of the eccc. While the ist began as a hybrid tribunal, ultimately it became a purely domestic court. Hence, it may be seen as embodying some of the downsides of a hybrid tribunal without the involvement of international judges and monitors. The immediate reaction to the Dujail Trial Judgment was often adverse.588 On 20 November, 2006, before the issuance of either the Arabic or English version of the judgment, Human Rights Watch published a 97-page report, concluding that the ‘proceedings in the Dujail trial were fundamentally unfair’ and that ‘the soundness of the verdict is questionable’.589 Its subsequent report criticised the Trial Chamber’s judgment, particularly for its failure to justify its findings that the defendants knew of the attack and the brevity of its conclusions on this. The spectre of government influence was present and the resignation of judges on the ground of political pressure was particularly troubling. The death penalty would have been opposed by human rights activists no matter how fair the trial and the circumstance of Hussein’s execution was universally condemned.590 Nevertheless, war crimes trials are historically difficult, politically charged and messy affairs. At least from a jurisprudential perspective, the judgments of the ist thus far contain few obvious faults.591 Further, the Tribunal has 588 See, for instance, Kevin Heller, ‘A Poisoned Chalice: The Substantive and Procedural Defects of the Iraqi High Tribunal’ (2007) 39(1) Case Western Reserve Journal of International Law 261. 589 Human Rights Watch Report on the Dujail Trial, accessed online at on 17 September 2007. See also Miranda Sissons and Ari Bassin, ‘Was the Dujail Trial Fair?’ (2007) 5(2) Journal of International Criminal Justice 272. 590 Hussein was executed on 30 December 2006. When a tape of the execution was released it showed Hussein’s captives taunting him and shouting support for a Shiite militia leader. Al-Tikriti and al-Bandar were executed on 15 January 2007 which was marked by the apparently inadvertent decapitation of al-Tikriti. Ramadan was executed on March 19 2007. 591 Although the authors would question the finding in the Dujail Judgment that under customary law the war nexus was no longer a requirement of the international offence of crime against humanity, stricto sensu. The view of the iht, however, has the support of many scholars: see Chapter 3.

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­considered a great deal of evidence in relation to the trials conducted592 and at least some procedural fairness can be seen from the fact that the Tribunal has produced not only findings of guilt but also a number of acquittals. Judged in the context of war crime trials generally, the trial of Saddam Hussein lies somewhere between the best and the worst of such cases. Over time it may be that commentators will acknowledge some of the positive aspects of the trial.593 592 See, for example, Michael P. Scharf and Gregory McNeal, ‘Show Trial or Real Trial? – A Digest of Evidence Submitted during the Prosecution’s Case-in-Chief’ in Michael P. Scharf and Gregory McNeal, Saddam on Trial – Understanding and Debating the Iraqi High Tribunal (Carolina Academic Press: Durham, 2006). 593 For a more positive appraisal of the trial, see: Michael P. Scharf, ‘The Iraqi High Tribunal: A Viable Experiment in International Justice?’ (2007) 5(2) Journal of International Criminal Justice 258.

Chapter 6

The Law of the International Criminal Court Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes,

...

[…]

...

Emphasizing in this connection that nothing in this Statute shall be taken as authorizing any State Party to intervene in an armed conflict or in the internal affairs of any State,1

∵ 1 Introduction As argued in Chapter 4, the Rome Conference and the resulting icc Statute had played a significant role in understanding crimes against humanity. Not only has the icc Statute established the first permanent international body with jurisdiction over crimes against humanity, but it has also had a significant impact on the understanding of crimes against humanity under customary international law. This Chapter looks at the practice of the icc itself with a view to drawing conclusions on both the law of crimes against humanity under the icc Statute as well as the effect of the icc practice on customary international law. The icc Statute entered into force on 1 July 2002. The Court has had a slow start to its trial work, only having convicted two defendants – only one for crimes against humanity. Nonetheless, there have been a number of decisions by the icc which have dealt with the meaning of the offence of crimes against 1 Rome Statute of the International Criminal Court (‘icc Statute’), Preamble.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004347687_007

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­ umanity. This chapter aims to focus on these decisions. At the time of writing, h the icc had opened investigations into 10 ‘situations’:2 • the Democratic Republic of Congo (drc) (referred 19 April 2004); • Uganda (referred 29 January 2004); • the Central African Republic (car) (the first situation referred 7 January 2005 and the second situation referred 30 May 2014); • Darfur, Sudan (referred 31 March 2005); • Kenya (authorised to open an investigation 31 March 2010); • Libya (referred 26 February 2011); • Côte d’Ivoire (authorised to open an investigation 3 October 2011); • Mali (referred 17 July 2012); and • Georgia (authorised to open an investigation 27 January 2016). These situations may usefully be grouped into three categories according to the way in which they fall within the jurisdiction of the icc. Under Article 13 of the Rome Statute, the icc will have jurisdiction over a situation in three circumstances: first, where the situation is referred to the Prosecutor by a State Party; secondly, where the situation is referred to the prosecutor by the Security Council acting under Chapter vii; and thirdly, where the Prosecutor has initiated an investigation proprio motu. The situations above fall within one of each of the three categories. 2

State Referrals (The drc, Uganda, the car and Mali)

The situations in the territories of the drc, Uganda, the car and Mali, followed State Party referrals in respect of atrocities alleged to have occurred in the states’ own territories. The basis of the self-referral can be a claim by the State Party that it is ‘unable’ to conduct the prosecutions. This can arise, bona fide, where a state has limited resources and limited control over its territory. Hence, the icc is called in to assist. The difficulty arises where it may be suggested that the State is able to prosecute domestically, but chooses not to. This has generated some controversy as to whether such a use of the icc is consistent with the original intention of the

2 Although preliminary examinations are being undertaken in Afghanistan, car, Colombia, Nigeria, Georgia, Guinea, Honduras, Iraq, Ukraine and Palestine. See icc website for latest details: available online at .

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drafters at Rome.3 The question has arisen in a number of decisions of the icc on the admissibility of situations under Article 17 of the icc Statute.4 The issue was discussed most directly in response to an admissibility challenge raised by Katanga on the basis that inter alia the drc’s decision not to prosecute the accused in the drc was not due to their inability or unwillingness to prosecute but by their desire to rely on the icc. At first instance, the Trial Chamber rejected this submission on the basis that a State that refers a situation to the icc is properly viewed as being ‘unwilling’ to prosecute.5 The Chamber found that the complementarity principle is ‘designed to protect the sovereign right

3 The possibility of voluntary relinquishment of jurisdiction by States to the icc was rejected in 1995: see Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, un gaor, 50th sess., supp No. 22, un Doc. A/50/22 (6 September 1995), [47]. As to whether such State Party referrals are consistent with the principle of complementarity: see Arsanjani H. Mahnoush and W. Michael Reisman, ‘The Law-in-Action of the International Criminal Court’ (2005) 99 American Journal of International Law 385; and Payam Akhavan, ‘The Lord’s Resistance Army Case: Uganda’s Submission of the First State Referral to the International Criminal Court’ (2005) 99 American Journal of International Law 403. 4 (icc) Prosecutor v Lubanga (Decision on the Prosecutor’s Application for a Warrant of Arrest, Article 58), Pre-Trial Chamber i, ICC-01/04-01/06 (10 February 2006) (‘Lubanga – Warrant’), [39]–[40]; Prosecutor v Katanga (Judgment on the Appeal against the Oral Decision of Trial Chamber ii of 12 June 2009 on the Admissibility of the Case), ICC-01/04-01/07-1497 (25 September 2009) (‘Katanga – Admissibility (Appeal)’), [78]; Prosecutor v Muthaura (Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case pursuant to Article 19(2)(b) of the Statute), ICC-01/09-02/11-96 (30 May 2011) (‘Muthaura – Admissibility’), [44]; Prosecutor v Ruto (Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case pursuant to Article 19(2)(b) of the Statute), ICC-01/09-01/11-101 (30 May 2011) (‘Ruto – Admissibility’), [48]. See also Prosecutor v Joseph Kony (Decision on the admissibility of the case under Article 19(1) of the Statute), ICC-02/0401/05 (10 March 2009) (‘Kony – Arrest Warrant’), [2]; and Prosecutor v Joseph Kony (Decision on the admissibility of the case under Article 19(1) of the Statute), ICC-02/04-01/05 (10 March 2009) (‘Kony – Admissibility’), [37], [52] (implicitly taking the same approach). For discussion, see William Burke-White and Scott Kaplan, ‘Shaping the Contours of Domestic Justice – The International Criminal Court and an Admissibility Challenge in the Uganda Situation’ (2009) 7 Journal of International Criminal Justice 257; Fergus Hansen, ‘Case Note – A Critical Review of the icc’s Recent Practice Concerning Admissibility Challenges and Complementarity’ (2012) 13 Melbourne Journal of International Law 217; and Linda Keller, ‘The Practice of the International Criminal Court: Comments on the Complementarity Conundrum’ (2010) 8 Santa Clara Journal of International Law 199. 5 (icc) Prosecutor v Katanga (Reasons for the Oral Decision on the Motion Challenging the Admissibility of the Case (Article 19 of the Statute)), ICC-01/0401/07 (16 June 2009) ­(‘Katanga – Admissibility (Trial)’), [77]–[79].

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of States to exercise their jurisdiction in good faith when they wish to do so’.6 In other words, the limitation on jurisdiction in Article 17 can, in substance, be waived. On Appeal, the icc Appeals Chamber also rejected the defence submission, but did so on different grounds to the Trial Chamber. The Chamber held that Article 17 does not limit the icc’s jurisdiction to where a state is ‘unable or unwilling’ to prosecute.7 Instead, the question – and the issue of when the icc has no jurisdiction due to the complementarity principle – only arises where the state in question has undertaken or is undertaking investigations or prosecutions of the relevant cases. It does not arise where a state is inactive – ­deliberately or otherwise. This view has been followed since.8 In the result, a state can use the icc as a discretionary adjunct to a State Party’s domestic criminal system even though the icc Statute notes the ‘duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’. As Kress notes, the drafters of the icc Statute considered that self-referrals would be as rare as state complaints under international human rights instruments.9 This has turned out not to be the case. The result is that the icc will have a larger workload than originally envisaged. This will impose greater financial burdens on State Parties. On the other hand, as Kress writes, the ultimate aim of the icc Statute is to end impunity for perpetrators of international crimes. It would be counter to these aims to impose on States the choice of either prosecuting crimes domestically or not having such crimes prosecuted at all.10 Having the icc available in any case where a State Party wants this to occur will generally encourage more prosecutions by either the State Party or the icc, which is desirable. Such use of the icc is in keeping with other cases discussed in Chapter 5, such as in Sierra Leone and Cambodia, where the main role of the un is to act as donor to encourage the work of states who wish to prosecute those responsible for the atrocities of the past. 2.1 Background 2.1.1 The drc The situation in the drc relates not so much to the wide range of offences authored by government actors over the years (whether they be Congolese, 6 (icc) Katanga – Admissibility (Trial), above n 5, [77]–[79]. 7 (icc) Katanga – Admissibility (Appeal), above n 4, [78]. 8 (icc) Muthaura – Admissibility, above n 4, [44]; and Ruto – Admissibility, above n 4, [48]. 9 Claus Kress, ‘“Self-Referrals” and “Waivers of Complementarity” – Some Considerations in Law and Policy’ (2004) 2(4) Journal of International Criminal Justice 944. 10 Kress, above n 9, 945–946.

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Rwandan, Ugandan and so on11) but has largely focused on crimes perpetrated by armed rebel groups. The situation referred to the icc relates particularly to the conflict in Ituri in Northern drc from around 2002. While initially an economic conflict, the conflict in Ituri largely took place along ethnic lines between two ethnic groups: the agriculturist Lendu and the pastoralist Hema. The conflict is only one small part of a much larger and extremely turbulent armed conflict both in and around the drc.12 Gaining its independence from Belgium in 1960, the drc faced immediate political turmoil. In 1965, the drc was seized by a military dictatorship under Mobutu Sese Seko, the Chief of Staff of the Army, and the country was renamed Zaire. Since then, the drc has seen two civil wars. The first (from around 1994–1996) occurred after ethnic conflict of the 1994 Rwandan genocides spilled over into Zaire at the same time as Mobutu began to lose his grip on power, ending with the invasion of Rwandan and Ugandan forces (on the pretence of protecting Hutus) and the instalment of a new President of the now-drc. The second civil war (from around 1999–2001) arose as rebel groups supported at various stages by the governments of the drc, Rwanda and Uganda fought for control of the resource-rich state. In 1999, the Lusaka Ceasefire Agreement was signed by the drc, Angola, Namibia, Zimbabwe, Rwanda and Uganda and the un Security Council established a 5,500-strong peacekeeping force to monitor the ceasefire, the Mission de l’Organisation des Nations Unies en République démocratique du Congo (monuc).13 After the assassination of President Kabila in 2001 and the replacement with his son, Joseph Kabila, a number of further peace agreements were entered into during 2002 that formalised the withdrawal of Rwandan and Ugandan troops from the drc. The conflict in Ituri travelled alongside this backdrop, but had its roots more firmly in Mobutu’s dictatorship. Mobutu instituted a controversial system of issuing land title certificates to many Hema families, which came into direct conflict with the traditional system of land which recognised many Lendu properties. Conflict and violence ensued, climaxing in the Blukwa massacre on 9 January 2000, in which more than 400 Hemas were massacred by Lendu militias. According to historian, Gérard Prunier, who provided evidence in the first

11

12 13

See “Justice in the Democratic Republic of Congo: A background” (17 December 2009), accessed online at on 29 ­December 2009. Information largely taken from “Justice in the Democratic Republic of Congo: A background”, above n 11. un sc Resolution 1279 (1999), un Doc. S/RES/1279, 4076th mtg (30 November 1999); and un sc Resolution 1291 (2000), un Doc. S/RES/1291, 4104th mtg (24 February 2000).

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case at the icc – against Thomas Lubanga Dyilo – so marked the beginnings of ‘armed ethnicisation’ in Ituri from around 2002 onwards.14 While the conflict initially had some links with certain states – with Rwanda originally backing its proxy rebel group, the Rassemblement Congolais pour la Démocratie (rcd), and Uganda’s proxy force, the Movement for the Liberation of the Congo (mlc) – constant in-fighting has led to a frequent changing of alliances with the drc, Rwanda and Uganda each supporting different groups at different stages of the conflict. The violence worsened with the withdrawal of Ugandan troops from Ituri in 2002, leading to the un Security Council deployment of a further 1,900 strong force on 12 June 2003.15 Foremost among the authors of violence in the region was the (Hema) Union des Patriotes Congolais (upc), including its military wing, the Forces Patriotiques pour la Libération du Congo (fplc). The icc has indicted two of its leaders: • Thomas Lubanga Dyilo – leader of the fplc and the first person to be tried and convicted by the icc (convicted); and • Bosco Ntaganda – the Deputy Chief of the General Staff of the upc (trial commenced 2 September 2015). On the other side, the groups included particularly the Ngiti Force de Résistance Patriotique en Ituri (frpi) and the Lendu Front des Nationalistes et Intégrationnistes (fni). The icc has indicted: • Germain Katanga (alleged leader of the frpi) who was found guilty of aiding and abetting war crimes and one crime against humanity (murder) on 7 March 2014 (convicted); and • Mathieu Ngudjolo Chui – the alleged leader of the fni (acquitted). Further violence has been alleged in the context of the Forces Démocratiques pour la Libération du Rwanda (fdlr) and an arrest warrant has been issued for: • Sylvestre Mudacumura (alleged Supreme Commander of the fdlr) (at large).

14 (icc) Prosecutor v Thomas Lubanga Dyilo (Transcript of Trial Proceedings), ICC-01/0401/06 (26 March 2009), 42–43. 15 un sc Resolution 1484 (2003), un Doc. S/RES/1484, 4764th mtg (30 May 2003).

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The icc rejected an arrest warrant in the case of Callixte Mbarushimana (the alleged Executive Secretary of the fdlr). While the prosecutions of Lubanga and Mudacumura concern only war crimes, the trials of Ntaganda and Katanga and Ngudjolo also alleged crimes against humanity. For a long time, Lubanga was the only person to be convicted by the icc. The only other final judgment the icc had reached was that against Ngudjolo, who was acquitted on the basis that the Prosecution did not prove he was in fact the leader of the fni at the relevant time so as to support the allegation of command responsibility.16 The Trial Chamber held that this was an essential part of all of the charges and it could not go beyond this factual allegation to consider other modes of participation, such as being a coperpetrator. As the facts were to be considered further in relation to Katanga, the Trial Chamber refrained from making any legal findings on whether the contextual elements of crimes against humanity had been made out.17 However, on 7 March 2014, Katanga was found guilty of aiding and abetting war crimes and one crime against humanity (murder). Judge Van den Wyngaert dissented. This decision is discussed in more detail below. 2.1.2 Uganda and the car Similar conflicts can be found in Uganda, the car and Mali, namely, an internationally supported government struggling to contain various armed groups. The referral in the situation of Uganda relates predominantly to crimes committed by the rebel group, the Lord’s Resistance Army (lra) led by Joseph Kony. While the situation could theoretically cover crimes committed by Ugandan forces, so far, the icc has only indicted members of the lra, namely: • • • • •

Joseph Kony (at large); Raska Lukwiya (deceased); Okot Odhiambo (deceased); Dominic Ongwen (trial commenced 6 December 2016); and Vincent Otti (at large).

Similarly, the first referral in the situation of the car relates to atrocities committed by the rebel forces (led by former Chief of Staff of the car army, General François Bozizé), the militia forces enlisted by then-President, AngeFélix ­Patassé, and the mlc (led by former vice-President of neighbouring 16

Prosecutor v Mathieu Ngudjolo Chui (Trial Chamber ii Judgment), ICC-01/01-02/12-3-tENG (26 December 2012) (‘Ngudjolo – Article 74 Decision’), [110]–[111]. 17 (icc) Ngudjolo – Article 74 Decision, above n 16, [109], [112]–[113].

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­Democratic Republic of Congo, Jean-Pierre Bemba Gombo). Bozizé successfully ousted Patassé as leader in 2003. In respect of the first situation, only one suspect has been indicted: • Jean-Pierre Bemba Gombo (convicted). The second situation referred to the icc is in respect of more recent violence since August 2012, when the armed rebel movement Séléka (meaning “alliance” in Sango) emerged ‘as a coalition of militant political and armed groups representing Muslims in the north-east and other groups dissatisfied with President Bozizé’.18 Subsequent offensives from December 2012 led to Séléka seizing control of the capital of Bangui and forcing President Bozizé into exile. As Séléka forces expanded their control, a wide range of crimes are alleged to have been committed, particularly as “antibalaka” groups started to generate armed resistance to Séléka’s rule.19 No suspects have yet been indicted. 2.1.3 Mali Since 16 January 2012, current Malian President Amadou Toumani Touré has been struggling to contain several insurgent groups fighting for independence or greater autonomy for northern Mali, an area known as Azawad. Among these groups are the National Movement for the Liberation of Azawad (mnla), initially backed by Islamist group Ansar Dine, and the Movement for Oneness and Jihad in West Africa (mojwa), a splinter group of Al-Qaeda in the Islamic Maghreb. On 22 March 2012, the President was ousted by a group called the National Committee for the Restoration of Democracy and State (cnrdr) and key towns across Mali were overrun by rebel groups, including the mnla. On 11 January 2013, the French military stepped in to provide assistance to the ­Malian government. So far, the icc has indicted only one person with war crimes in Mali: Ahmad Al Faqi Al Madi. On 27 September 2016, he was convicted of the war crime of attacking historic and religious buildings in Timbuktu and sentenced to nine years’ imprisonment. 2.1.4 Conclusion Apart from the drc, the progress made in respect of the abovementioned situations has been minimal. In respect of the Uganda situation, as indicated 18 19

Office of the Prosecutor, ‘Situation in the Central African Republic ii – Article 53(1) Report’ (24 September 2014) (‘Office of the Prosecutor Article 53(1) Report’), 7. Office of the Prosecutor Article 53(1) Report, above n 18, 8.

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above, aside from the arrest of Dominic Ongwen, all living suspects remain at large and one suspect has died. The leaders of the lra are refusing to sign any peace agreement unless and until the icc drops its charges against lra members. In respect of the car, the only public arrest warrant issued was for Bemba Gombo (issued sealed on 23 May 2008 and arrested the following day in Belgium). Bemba Gombo was convicted on 21 March 2016 for two counts of crimes against humanity and three counts of war crimes, and sentenced to 18 years’ imprisonment on 21 June 2016. In respect of Mali, the prosecution has only recently decided to open an investigation and there have been no indictments for crimes against humanity. 2.2 The Jurisprudence The early contours of the icc’s jurisprudence began to emerge in 2008 and 2009 with the Confirmation of Charges Decisions in the case of Katanga (a decision of Pre-Trial Chamber i in respect of the situation in the drc) and in the case of Bemba Gombo (a decision of Pre-Trial Chamber ii in respect of the situation in the car). These Pre-Trial decisions have been built on by the early Trial Chamber decisions in Katanga and Bemba Gombo. The cases are important in three key respects, each of which will be addressed in turn. First, it is important to see the extent to which the decisions of the international and internationalised tribunals are relied upon (and, ­therefore, to assist in assessing the reliability of that jurisprudence) in interpreting the central aspects of the contextual elements of crimes against humanity. Secondly, the decisions constitute the Court’s first consideration of the controversial ‘State or organizational policy’ under Article 7 of the icc Statute. Thirdly, the Katanga Trial Judgment and the Bemba Gombo Trial Judgment are important for the way in which the first judgments of the icc have applied the contextual elements to the facts in the case before them. 2.2.1 Widespread or Systematic Attack against Any Civilian Population The early Pre-Trial Chamber decisions in the Katanga Confirmation Decision and the Bemba Gombo Confirmation Decision have been the first to substantively start to outline the applicable principles of crimes against humanity under Article 7. These early decisions have demonstrated a significant reliance on the jurisprudence of the international and internationalised tribunals (particularly the icty, ictr and, albeit to a lesser extent, the scsl), adapted where necessary to make reference to the Rome Statute and the Elements of Crimes. Accordingly, much of the discussion in both the Katanga and Bemba Gombo Confirmation Decisions involved applying basic principles enunciated by the icty and ictr. These decisions, therefore further increase the precedential

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value of these basic elements. They have generally been followed by the early Trial Chamber decisions. Pre-Trial Chamber i in the Katanga Confirmation Decision, for instance, adopted the position of the international tribunals in defining ‘widespread’ and ‘systematic’, particularly citing the icty Appeals Chambers in Kordić and Čerkez and Blagojević and Jokić.20 The term ‘widespread’ includes either an attack ‘carried out over a large geographical area or an attack in a small geographical area, but directed against a large number of civilians.’21 Further, the attack should be ‘massive, frequent, carried out collectively with considerable seriousness and directed against a multiplicity of victims’.22 Similarly, the term ‘systematic’ was accepted to be either an ‘organised plan in furtherance of a common policy, which follows a regular pattern and results in the continuous commission of acts’23 or as ‘patterns of crimes’ such that the crimes constitute ‘non-accidental repetition of similar criminal conduct on a regular basis’.24 20 (icc) Prosecutor v Katanga and Chui (Decision on the Confirmation of Charges), ICC-01/04-01/07-717 (13 October 2008) (‘Katanga – Confirmation’), [394], citing ICC-02/0501/07-l-Corr, [62], quoted in ICC-01/04-01/07-4, [33], which in turn cited: (icty) Prosecutor v Kordić and Čerkez (Appeals Chamber Judgment), Case No IT-95-14/2-A (17 December 2004) (‘Kordić – Appeal’), [94]; and Prosecutor v Blagojević and Jokić (Appeals Chamber Judgment), Case No IT-02-60-A (9 May 2007) (‘Blagojević – Appeal’), [545]–[546]. 21 (icc) Katanga – Confirmation, above n 20, [395], citing: (icty) Prosecutor v Blaškić (Trial Chamber Judgment), Case No IT-95-14-T (3 March 2000) (‘Blaškić – Trial’), [206]; and Kordić – Appeal, above n 20, [94]. See also (icc) Bemba Gombo (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo), ICC-01/05-01/08 (15 June 2009) (‘Bemba Gombo – Confirmation’), [83]; and Gerhard Werle, Principles of International Criminal Law (tmc Asser Press: The Hague, 2005) 225, [656]. 22 (icc) Bemba Gombo – Confirmation, above n 21, [83], citing: Katanga – Confirmation, above n 20, [395] and [398]; and Prosecutor v Akayesu (Trial Chamber Judgment), Case No ICTR-96-4-T (2 September 1998) (‘Akayesu – Trial’), [580]. 23 (icc) Katanga – Confirmation, above n 20, [397], citing: (ictr) Akayesu – Trial, above n 22, [580]; Prosecutor v Kayishema and Ruzindana (Trial Chamber Judgment), Case No ICTR-95-1-T (21 May 1999) (‘Kayishema – Trial’), [123]; and (icty) Kordić and Čerkez (Trial Chamber Judgment), Case No IT-95-14/2-T (26 February 2001) (‘Kordić – Trial’), [179]. 24 (icc) Katanga – Confirmation, above n 20, [397], citing: (icty) Kordić – Appeal, above n 20, [94]; Prosecutor v Blaškić (Appeals Chamber Judgment), Case No IT-95-14-A (29 July 2004) (‘Blaškić – Appeal’), [101]; Prosecutor v Kunarac, Kovac and Vukovic (Trial Chamber Judgment), Case No IT-96-23-T & IT-96-23/1-T (22 February 2001) (‘Kunarac – Trial’), [580]; Prosecutor v Kunarac, Kovac and Vukovic (Appeals Chamber Judgment), Case No IT-96-23-A & IT-96-23/1-A (12 June 2002) (‘Kunarac – Appeal’), [94]; and (ictr) Akayesu – Trial, above n 22, [580].

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While various subtle differences have emerged between the various Chambers (discussed further in Chapter 925), this position has generally been followed. Other aspects of the chapeau component have similarly been found generally in line with the ad hoc Tribunals: • The icc Pre-Trial Chambers have adopted the ad hoc tribunal interpretation that the phrase ‘directed against’ means that the civilian population must be the ‘primary object’ of the attack or the ‘primary rather than an incidental object’ of the attack and that such an intention may be inferred from a number of relevant factors.26 • In line with the ad hoc Tribunals, the underlying offence must be objectively linked with the attack in that the acts must be committed ‘in furtherance of’ the relevant attack considering the ‘nature, aims and consequences of such act.’27 • Finally, the mens rea element appears to have been interpreted, generally speaking, in line with the ad hoc tribunals. This has been articulated either as being that the person ‘knew that the conduct was part of or intended the conduct to be part of’ the attack28 or that the perpetrator was aware of the attack and that the acts form part of the attack.29 Nonetheless, controversial areas remain and they will need to be monitored as more decisions are handed down. First, the meaning of the term ‘attack’ is not entirely clear. While it is clear that an ‘attack’ is not restricted to a ‘military attack’,30 the limits of the term 25 See Chapter 10, Section 6.2.1 (on ‘widespread’) and 6.2.2 (on ‘systematic’). 26 (icc) Bemba Gombo – Confirmation, above n 21, [76]; and Katanga – Confirmation, above n 20, [399]. It should be noted that, while it is not entirely clear, this was the interpretation adopted of these citations in the later decision in Authorisation of an Investigation into the Situation in the Republic of Kenya (Pre-Trial Chamber ii Decision), ICC-01/09-19Corr (31 March 2010) (‘Kenya – Authorisation’), [81]. Bemba Gombo and Katanga appear to be discussing the ‘any’ aspect of the chapeau (namely, that the term means any civilian population regardless of their nationality, ethnicity or other distinguishing feature). 27 (icc) Katanga – Confirmation, above n 20, [400]; Bemba Gombo – Confirmation, above n 21, [84], [86]. 28 (icc) Katanga – Confirmation, above n 20, [401]–[402]. 29 (icc) Bemba Gombo – Confirmation, above n 21, [88]. 30 (icc) Bemba Gombo – Confirmation, above n 21, [75]; Prosecutor v Jean-Pierre Bemba Gombo (Trial Chamber iii Judgment), ICC-01/05-01/08-3343 (21 March 2016) (‘Bemba Gombo – Trial’), [149].

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‘­attack’ are not clear. The icc Pre-Trial Chamber in the Bemba Gombo Confirmation Decision has held that ‘[t]he commission of the acts referred to in [A]rticle 7(1) of the Statute constitute the “attack” itself and, beside the commission of the acts, no additional requirement for the existence of an “attack” should be proven’. Similarly, as the icc Statute has defined an ‘attack’ as requiring ‘a course of conduct involving the multiple commission of acts […]’,31 it has been held that this means that ‘more than a few isolated incidents or acts as referred to in article 7(1) of the Statute have occurred’.32 In the Katanga Trial Judgment, the majority of the Trial Chamber, in discussing the requirements of an ‘attack’, appeared to take an even broader approach to that in the Bemba Gombo Confirmation Decision in holding that an ‘attack’ within Article 7 denoted a ‘campaign, an operation or a series of actions directed against a civilian population, viz. a course of conduct and not a single isolated act’,33 with the italicised words not being included in the definition in the Bemba Gombo Confirmation Decision. The majority continued that, where it is established that a ‘course of conduct’ involved the multiple commission of acts referred to in Article 7(1), ‘a single event may well constitute an attack within the meaning of article 7(2)(a), provided that the other elements of that article are met’.34 On one view, this appears broader than the statement in the Bemba Gombo Confirmation Decision that ‘more than a few isolated incidents or acts as referred to in article 7(1) of the Statute have occurred’.35 The majority appear to suggest that the term ‘attack’ imports no requirement of scale apart from that there be at least 2 acts of a kind referred to in Article 7 and that any such requirement comes with the requirement that the attack be ‘widespread or systematic’. The wording also leaves open whether a single strike – such as the bombing of a large number of peoples – could meet this requirement. This is discussed further in Chapter 9 where it is concluded that the better view is that the term ‘attack’ does import some normative content of being some aggressive or violent act.36 Secondly, it is not yet clear what meaning is to be given to the word ‘population’. While not entirely clear, the Pre-Trial Chamber in the Katanga 31 icc Statute, Art 7(2)(a). 32 (icc) Bemba Gombo – Confirmation, above n 21, [80]–[81]. 33 (icc) Prosecutor v Germain Katanga (Trial Chamber Judgment), ICC-01/04-01/07-3436 (7 March 2014) (‘Katanga – Trial’), [1101]. 34 (icc) Katanga – Trial, above n 33, [1101]. 35 (icc) Bemba Gombo – Confirmation, above n 21, [80]–[81]. 36 See Chapter 9, Section 2.2.

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C ­ onfirmation Decision appeared to adopt the same approach as was taken by the ad hoc tribunals that what must be targeted is a population as such in the sense of a collective as opposed to individuals.37 This will usually be individuals identifiable by a particular geographical location, nationality, ethnicity or other distinguishing features. This appeared to be followed in the Bemba Gombo Confirmation Decision and the Kenya Authorisation Decision.38 In the Katanga and Bemba Gombo Trial Judgments, however, the position appeared less clear.39 While certain statements appeared consistent with these decisions, at least on one view, the Chambers appeared to be suggesting either that the term ‘population’ is not to be read separately from the term ‘any civilian population’ or that the term requires only that the persons targeted be civilian as opposed to military. This is discussed further in Chapter 9.40 Thirdly, there arguably remains some uncertainty with the definition of ‘civilian’. As noted in Chapter 5, this position was settled at the ad hoc Tribunals by the icty Appeals Chamber in Martić in that ‘civilian’ must be determined in accordance with international humanitarian law, but that persons that are not civilians may nonetheless be victims of a crime against humanity. On the one hand, icc Pre-Trial Chamber ii in the Bemba Gombo Confirmation Decision has followed the Kunarac Appeal decision in defining ‘civilian’ in accordance with ihl.41 The majority in the Katanga Trial Judgment took the same view.42 On the other hand, the position was left more open by Pre-Trial Chamber i In the Katanga Confirmation Decision. There, the Pre-Trial Chamber cited the broad position held by the icty Trial Chamber in Tadić, noting that ‘as opposed to war crimes which are provided for in Article 8 of the Statute, the term “civilian population” within the meaning of article 7 of the Statute affords protections to “any civilian population” regardless of their nationality, ethnicity or other distinguishing feature’.43 As is discussed further in Chapter 9, there is good reason to think that further consideration should be given by the icc

37 (icc) Katanga – Confirmation, above n 20, [399]. 38 (icc) Bemba Gombo – Confirmation, above n 21, [76]; Kenya – Authorisation, above n 26, [81]. 39 (icc) Bemba Gombo – Trial, above n 30, [155]; Katanga – Trial, above n 33, [1105]. 40 Chapter 9, Section 5.2. 41 (icc) Bemba Gombo – Confirmation, above n 21, [78] (following (icty) Kunarac – Appeal, above n 24); and Kenya – Authorisation, above n 26, [82] (following Bemba Gombo – Confirmation and Kunarac – Appeal). This view was followed by the Trial Chamber ii in Katanga – Trial, above n 33, discussed below. 42 (icc) Katanga – Trial, above n 33, [1102]. 43 (icc) Katanga – Confirmation, above n 20, [399].

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to whether the position of the ad hoc Tribunals ought to be followed on this point. Fourthly, it may still need to be determined what the mens rea element of crimes against humanity is and who must possess the mens rea – the perpetrator of the underlying crime or the accused. The early pre-Trial Chambers in Katanga and Bemba Gombo Confirmation Decisions have so far been not entirely clear on the point and have focused primarily – and ambiguously – on the ‘perpetrator’.44 For instance, in the Bemba Gombo Confirmation Decision, the Chamber held specifically that the accused’s mental state was relevant to individual criminal responsibility, while the mens rea element ‘pertains to the knowledge of the attack by the alleged direct perpetrators, namely the Mouvement pour la Liberation du Congo … troops in the field’.45 By contrast, the Pre-Trial Chamber in the Katanga Confirmation Decision took the opposite approach, looking to the accused to resolve the mens rea element.46 The Trial Chamber in Bemba Gombo looked to the physical perpetrators of the underlying offences but did not address the issue in any detail.47 2.2.2 State or Organizational Policy The cases in the drc and the car were the first to elaborate on the requirements of a ‘State or organizational policy’. In both cases, it was found that the armed rebel groups in the respective situations possessed the requisite ‘organizational policy’. Both Pre-Trial Chamber i (in the context of the drc in the Katanga Confirmation Decision) and Pre-Trial Chamber ii (in the context of the car in the Bemba Gombo Confirmation Decision) have made findings on crimes against humanity that have so far been largely followed in other cases. Of most importance, these Chambers have made three key findings about the elements of the policy requirement. First, the ‘State or organizational policy’ element meant that the attack must ‘be thoroughly organised and follow a regular pattern’ (ptc i)48 or ‘follow a regular pattern’ (ptc ii).49 While Pre-Trial Chamber I’s finding that an attack must be thoroughly organised appears to follow the ictr Trial Chamber in Akayesu – rather than more recent authorities that require only that an attack 44 (icc) Katanga – Confirmation, above n 20, [401] (citing Paragraph 2 of the Introduction to Article 7, Elements of Crimes); Bemba Gombo – Confirmation, above n 21, [87]–[89], [126]. 45 (icc) Bemba Gombo – Confirmation, above n 21, [89]. 46 (icc) Katanga – Confirmation, above n 20, [417]. 47 (icc) Katanga – Confirmation, above n 20, [417]. 48 (icc) Katanga – Confirmation, above n 20, [396]. 49 (icc) Bemba Gombo – Confirmation, above n 21, [81].

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be organised50 – it is not clear whether this deviation was intended to make a material difference. Secondly, the policy ‘may be made by groups of persons who govern a specific territory or by any organization with the capability to commit a widespread or systematic attack against a civilian population’51 (ptc i/ii). Thirdly, the policy need not be ‘explicitly defined’ (ptc i)52 or ‘formalised’ (ptc ii).53 Both Chambers have accepted that ‘an attack which is planned, directed or organised’ – as opposed to spontaneous or isolated attacks of violence – will satisfy this criterion (ptc i/ii).54 Both precedents have since been followed in the icc.55 As pointed out by Judge Kaul in his dissenting opinion in the Kenya Authorisation Decision, the findings made in Katanga (by ptc i) and Bemba Gombo (by ptc ii) were made in consideration of the acts of ‘military-like organized armed groups in the context of a [non-international] armed conflict…’.56 This appears to suggest that ‘organized armed groups’ within the meaning of Article 1(1) of Additional Protocol ii may qualify as ‘organizations’ within the meaning of crimes against humanity.57 The term was first considered by a Trial Chamber in the Katanga Trial Judgment, where the majority elaborated much more on the requirement that there be a ‘State or organizational policy’. The majority held that the term ‘policy’ refers ‘essentially to the fact that a State or organisation intends to carry out an attack against civilian population, whether through action or deliberate failure to take action’.58 They stated, however, that the entity need not ‘adopt and disseminate a pre-established design or plan’ but a policy may be inferred by ‘inter alia, repeated actions occurring according to a same sequence, or the existence of preparations or collective mobilisation orchestrated and coordinated by 50 See discussion in Chapter 9. 51 (icc) Katanga – Confirmation, above n 20, [396]; Bemba Gombo – Confirmation, above n 21, [81]. 52 (icc) Katanga – Confirmation, above n 20, [396]. 53 (icc) Bemba Gombo – Confirmation, above n 21, [81], citing (icty) Prosecutor v Tadić (Trial Chamber Judgment), Case No IT-94-1-T (7 May 1997) (‘Tadić – Trial’), [653]. 54 (icc) Katanga – Confirmation, above n 20, [396]; Bemba Gombo – Confirmation, above n 21, [81]. 55 (icc) Kenya – Authorisation, above n 26, [86]. 56 (icc) Kenya – Authorisation, above n 26, (Dissenting Opinion of Judge Kaul), [46]–[48]. To substantiate this view, see Katanga – Confirmation, above n 20, [381]–[384]; and Bemba Gombo – Trial, above n 30, [212]. 57 (icc) Bemba Gombo – Confirmation, above n 21, [109]–[110]. 58 (icc) Katanga – Trial, above n 33, [1108].

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that State or organisation’.59 Interestingly, the majority stated that the policy may be an ‘ongoing process whose every aspect is not always predetermined’ such that the policy may only ‘become clear to the perpetrators, as regards its modalities, only in the course of its implementation, such that definition of the overall policy is only possible in retrospect’.60 The Chamber distanced itself from its earlier findings that a ‘policy’ may be equated with the term ‘regular pattern’.61 The Chamber considered that ‘policy’ should be distinguished from ‘systematic’: the requirement of a ‘policy’ is the intention of committing or meaning to commit the attack; the requirement that an attack is ‘systematic’ refers to the existence of a ‘pattern of repeated conduct or the recurring or continuous perpetration of interlinked, ­non-random acts’.62 The ‘systematic’ requirement ‘goes beyond the existence of any policy’ and also entails:63 …inquiry as to whether a series of repeated actions seeking to produce always the same effects on a civilian population was undertaken with consideration – identical acts or similarities in criminal practices, continual repetition of a same modus operandi, similar treatment meted out to victims or consistency in such treatment across a wide geographic area. Citing the 1994 ilc Report, the Chamber considered that is was the ‘widespread or systematic’ nature of an attack – and not the policy requirement – that constituted the ‘hallmark’ of crimes against humanity.64 In respect of the term ‘organization’, the Chamber took a similar approach to the majority in the Kenya Authorisation Decision (discussed below) that a state need not be a ‘quasi-State’ but simply that they have the means to commit the attack:65 It therefore suffices that the organisation have a set of structures or mechanisms, whatever those may be, that are sufficiently efficient to 59 (icc) Katanga – Trial, above n 33, [1109]. 60 (icc) Katanga – Trial, above n 33, [1110]. 61 Namely, (icc) Katanga – Confirmation, above n 20, [396]; Bemba Gombo – Confirmation, above n 21, [81]; Kenya – Authorisation, above n 26, [84]; and Prosecutor v Laurent Gbagbo (Decision on the Prosecutor’s Application Pursuant to Article 58 for a warrant of arrest), ICC-02/11-01/11/11-9-Red (30 November 2011) (‘Gbagbo – Arrest Warrant Decision’), [37]. 62 (icc) Katanga – Trial, above n 33, [1111]–[1113]. 63 (icc) Katanga – Trial, above n 33, [1113]. 64 (icc) Katanga – Trial, above n 33, [1111]. 65 (icc) Katanga – Trial, above n 33, [1119].

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e­ nsure the coordination necessary to carry out an attack directed against a civilian population … the organisation concerned must have sufficient means to promote or encourage the attack, with no further requirement necessary. To support this interpretation, the majority appeared to rely on three grounds. First, it relied upon the ordinary meaning of the word ‘organisation’ and the contextual implication that the organisation must be the author of the ­attack.66 Secondly, it pointed out that the ad hoc Tribunals ‘advert[ ] to crimes against humanity committed by States and organisations that are not specifically defined as requiring quasi-State characteristics’ and as stating that non-State ­actors may qualify – citing ‘in particular’ the Tadić Trial Judgment.67 Thirdly, it considered that any other conception of an ‘organisation’ would not further the Statute’s goal of prosecuting the most serious crimes’.68 In the Bemba Gombo Trial Judgment, the majority followed the approach taken in the Katanga Trial Judgment (i.e. that the organisation need only have a ‘set of structures and mechanisms’ sufficient to carry out the attack) and stated that, in light of its factual findings, it did not consider it necessary to further elaborate on the definition.69 The analysis was only brief and contained little elaboration. In a Separate Opinion, Judge Ozaki provided further analysis. Judge Ozaki stated that while she had no objection to the relevant analysis in the relevant paragraph of the majority’s judgment, she stated that the existence of a policy was to be distinguished from how it may be proven and that the Chamber should provide clearer guidance on what was required.70 The Judge stated as follows: With one notable exception [the dissenting opinions of Judge Kaul in the Kenya cases], the jurisprudential focus at the Court to date has been predominantly on the question of “policy”, rather than on the required features of an “organization” within the meaning of Article 7(2)(a). To the extent that the term “organization” has been considered in the dominant jurisprudence, the reasoning applied has tended to be circular and lacking in certainty. For example, the commonly stated test of whether an 66 (icc) Katanga – Trial, above n 33, [1119]. 67 (icc) Katanga – Trial, above n 33, [1121]. 68 (icc) Katanga – Trial, above n 33, [1122]. 69 (icc) Bemba Gombo – Trial, above n 30, [158]. 70 (icc) Bemba Gombo – Trial, above n 30, (Separate Opinion of Judge Ozaki), [25].

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organization has sufficient capabilities to carry out an attack against a civilian population does nothing to guard against the risk of simply reasoning backwards, using the fact that such an attack occurred to infer the existence of an organization. I therefore cannot agree that such a test provides appropriate or adequate guidance. Reasoning by analogy with the definition of ‘[o]rganized criminal group’ in the United Nations Convention against Transnational Crime, Judge Ozaki discerned there to be a number of minimum features that the organisation was required to have:71 In light of the above, an organization could therefore be understood to require, at a minimum: (i) a collectivity of three or more persons; (ii) existing for a certain period of time, which, at least, transcends the period during which the policy was formed and implemented; (iii) with a ­particular aim or purpose, whether it is criminal or not, and (iv) with a  certain structure. Additional potentially relevant factors which may be considered on a case-by-case basis could include: whether the group has an established internal hierarchy; whether the group exercises control over part of the territory of a state; the group’s infrastructure and resources; and whether the group is part of a larger group, which fulfils some or all of the abovementioned criteria. Judge Ozaki then held that the term ‘policy’ ‘conveys the idea of the existence of certain guiding principles, or a proposed or adopted course of action towards a certain objective’.72 There must be active promotion and not simply a pattern of violence. 2.2.3 Katanga – The icc’s First Conviction for cah On 7 March 2014, the icc delivered its first trial judgment on crimes against humanity, finding by majority (Judge Van den Wyngaert dissenting) Germain Katanga guilty of being an accessory to murder as a crime against humanity. The charges against Katanga, the former leader of the drc militia force, the Force de resistance patriotique en Ituri (frpi), related to one incident on 24 February 2003 – the attack by Ngiti and Lendu fighters on the Hema-populated village of Bogoro in the conflict-ridden Ituri region of Northern drc. The judgment has been controversial, with Judge Van den Wyngaert issuing a powerful 71 (icc) Bemba Gombo – Trial, above n 30, (Separate Opinion of Judge Ozaki), [28]–[29]. 72 (icc) Bemba Gombo – Trial, above n 30, (Separate Opinion of Judge Ozaki), [30].

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dissent to the effect that crimes against humanity could not be found on the evidence before the Chamber. (a) Factual Findings The prosecution case was put on the basis that the relevant ‘attack’ occurred when combatants attacked the village of Bogoro on 24 February 2003 and the author of the attack was an ‘organisation’ which was referred to as the ‘Ngiti combatants of Walendu-Bindi collectivité’, namely, combatants of Ngiti ethnicity from the geographical region in Ituri known as the Walendu-Bindi collectivité. At the time of the allegations, the Ituri region was under the control of a range of large rival political/military groups – most relevantly in this case, the (unofficially) drc-backed Rassemblement Congolais pour la DémocratieMouvement de Libération (rcd-ml), including its armed wing, the Armée Populaire Congolaise (apc) and the (unofficially) Ugandan or Rwandan-backed Union des Patriots Congolais (upc).73 Within these broad areas of control, the inhabitants of a number of the drc’s administrative units (known as collectivités, groupements and localités) also became militarised, dividing largely along ethnic lines. The Lendu and Ngiti groups (sympathetic to the rcd-ml) were opposed to the Hema ethnic group (sympathetic to the upc). In early 2002, a number of ‘self-defence groups’ began to form in the Walendu-Bindi collectivité, under the authority of various different commanders, to protect themselves from the ongoing violence in the region.74 By September 2002, the Ngiti members of the collectivité had fallen under the general leadership of Colonel Kadro (a role that would later be filled by Katanga by February 2003), although the level of organisation was unclear and there was no effective centralisation of command.75 On 5 September 2002, for instance, by way of reprisal for an earlier attack by the upc on a town called Songolo, the various Ngiti groups under their various commanders along with the rcd-ml/apc took part in an attack on the town of Nyakunde – inhabited by the Bira ethnic group allied to the upc – killing a number of civilians and pillaging property.76 By October 2002, the rcd-ml began to involve local combatants in an attempt to take back territory in Ituri from the upc.77 From November 2002, prominent figures in the (Ngiti) Walendu-Bindi collectivité and the (Lendu) 73 (icc) Katanga – Trial, above n 33, [716]–[718]. 74 (icc) Katanga – Trial, above n 33, [533]; see also [525]–[526], [529]. 75 (icc) Katanga – Trial, above n 33, [541]; see also at [548]. 76 (icc) Katanga – Trial, above n 33, [566]; see also at [555]–[556], [562], [706]. 77 (icc) Katanga – Trial, above n 33, [582].

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Bedu-Ezekere groupement aligned with the rcd-ml.78 The majority judgment found that, while the rcd-ml wanted to retake Ituri from the upc, the Ngiti and Lendu combatants’ aim was ‘first and foremost to fight the upc/Hema force seeking to exterminate them’.79 The Ngiti combatants appropriated the name of the recently-formed political-military group, the Force des Resistance Patriotique d’Ituri (frpi), although not all combatants actually formed part of the group.80 By early 2003, there was ‘a very large number of combatants – in the thousands’ in the Walendu-Bindi collectivité81 which were organised into a network of camps spread throughout the collectivité.82 Some military training occurred at the camps,83 the commanders in the camps communicated in writing and via radio devices,84 and a ‘considerable’ quantity of weapons and ammunition were provided by the rcd-ml/apc ‘for the purpose of launching an imminent attack on Bogoro’.85 The majority found that civil and administrative control was exercised by the commanders of the various camps.86 The majority found that the commanders and combatants constituted an ‘organised armed militia’ that could communicate amongst themselves, were united in a common struggle, and were ‘able to come together and organise itself to achieve its objectives’.87 This was despite being stationed at different camps under different commanders, receiving logical assistance from the rcd-ml/apc and forming a ‘somewhat rag-tag collection’.88 This is also despite the fact that there was no ‘centralised command’ within the Ngiti militia of the Walendu-Bindi collectivité.89 Katanga – who by February 2003 bore the title of ‘President’ of the Ngiti militia – did not wield ‘powers of command and control in all aspects of military life and over all the commanders and combatants’ and, while ‘he could issue orders to the commanders and combatants … the Chamber was unable to ascertain the exact nature of whether they were

78 (icc) Katanga – Trial, above n 33, [600], [618]. 79 (icc) Katanga – Trial, above n 33, [600], [618]. 80 (icc) Katanga – Trial, above n 33, [600], [618]; see also [601]–[602]. 81 (icc) Katanga – Trial, above n 33, [635]. 82 (icc) Katanga – Trial, above n 33, [628]. 83 (icc) Katanga – Trial, above n 33, [640]. 84 (icc) Katanga – Trial, above n 33, [663]. 85 (icc) Katanga – Trial, above n 33, [651]. 86 (icc) Katanga – Trial, above n 33, [668]. 87 (icc) Katanga – Trial, above n 33, [680]. 88 (icc) Katanga – Trial, above n 33, [681]. 89 (icc) Katanga – Trial, above n 33, [682]–[684] and [1365].

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obeyed’.90 At best, he was the ‘focal point for the various commanders of the Ngiti militia’ and represented the militia in dealings with the rcd-ml/apc.91 On 24 February 2003, combatants from the Walendu-Bindi collectivité and the (Lendu) Bedu-Ezekere groupement92 – as well as rcd-ml/apc soldiers ‘in very limited numbers’93 – attacked the village of Bogoro. Bogoro was a village of predominantly Hema civilians that, while previously containing a Lendu population, was now under upc control.94 The upc had a military camp in the town which was defended by ‘at least one hundred well-armed soldiers’.95 The majority found that at least 800 civilians were living in the village at the time of the attack.96 The court found that combatants ‘pursued and killed’ the inhabitants of the village as well as ‘many’ who were fleeing or taking refuge in the camp.97 The majority found that ‘a minimum’ of 60 people were killed ‘including a significant number of women, children and elderly persons’98 by ‘amongst others, Ngiti combatants of Walendu-Bindi collectivité.’99 The majority later specified that ‘at least 33’ of this number were civilians.100 The Chamber was not able to determine the exact number of upc soldiers killed but witnesses put it at between 70 and 120.101 (b) Application to Katanga – The Majority Judgment On the facts before it, the majority considered the contextual elements of crimes against humanity to have been satisfied. Two findings were of most importance. First, the majority found that the Ngiti combatants of WalenduBindi collectivité were an ‘organization’ as they were organised within a single militia or ‘organised armed group’ with a military-type structure and headed by a president, and capable of ‘conceiving and executing large-scale attacks’.102 While Bogoro was under the control of the rival military group, the upc and 90 (icc) Katanga – Trial, above n 33, [1361]–[1364]. 91 (icc) Katanga – Trial, above n 33, [1360]. 92 (icc) Katanga – Trial, above n 33, [747]–[748], [755]. 93 (icc) Katanga – Trial, above n 33, [743]. 94 (icc) Katanga – Trial, above n 33, [724]–[726]. 95 (icc) Katanga – Trial, above n 33, [724]–[726]. 96 (icc) Katanga – Trial, above n 33, [730]. 97 (icc) Katanga – Trial, above n 33, [817], [824], [828], [833]. 98 (icc) Katanga – Trial, above n 33, [841]. 99 (icc) Katanga – Trial, above n 33, [849]. 100 (icc) Katanga – Trial, above n 33, [869]. 101 (icc) Katanga – Trial, above n 33, [840]. 102 (icc) Katanga – Trial, above n 33, [1139]–[1141]. Examples given were the attack on Bogoro as well as the earlier attack on Nyakunde on 5 September 2002.

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had a military base at the centre of the town, the majority found that the camp was not the attacker’s ‘sole and prime target’.103 The majority found that the attackers made no distinction between combatants and civilians and, once the military camp had been captured, continued to attack unarmed villagers.104 The majority held that they did so with the intention of ‘not only wiping out the upc troops there but also, and first and foremost, the Hema civilians who were present’.105 Secondly, the majority Chamber also concluded that the attack on Bogoro was ‘systematic’ and that the Chamber was therefore not required to consider whether it was ‘widespread’.106 Given the way the troops were deployed, how they attacked the village and committed crimes (including the targeting and pursuing of Hema civilians after the battle and the destruction and pillaging of property) the majority concluded that the attack was ‘carried out in a coordinated and organised fashion’.107 The Chamber noted that the combatants all mustered in nearby areas prior to the attack, the attack was launched very early in the morning and in a way that made escape extremely difficult.108 During the attack, they drew no distinction between combatants and civilians and deliberately pursued others.109 (c) The Dissenting Judgment Judge Van den Wyngaert, in dissent, disagreed with ‘almost every aspect’ of the majority’s judgment, including the finding that there was sufficient evidence to establish crimes against humanity. First, the judge criticised the implications of the majority’s finding of only 30 instances of killing having occurred during the attack. Leaving aside the criticisms of the propriety of the majority’s finding that, while only 30 instances of killing were established beyond a reasonable doubt, the number is likely to be much greater,110 the Judge criticised the fact that the figure of 30 killed

103 (icc) Katanga – Trial, above n 33, [1136]. 104 (icc) Katanga – Trial, above n 33, [1136]. 105 (icc) Katanga – Trial, above n 33, [1155]–[1156]; see also [1138] (the civilian population was the ‘principal target and not solely the upc troops or a group of randomly selected individuals’). 106 (icc) Katanga – Trial, above n 33, [1162]. 107 (icc) Katanga – Trial, above n 33, [1158]. 108 (icc) Katanga – Trial, above n 33, [1159]. 109 (icc) Katanga – Trial, above n 33, [1160]–[1161]. 110 (icc) Katanga – Trial, above n 33, (Dissenting Opinion of Judge Van den Wyngaert), [179].

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includes those killed by both Lendu and Ngiti combatants.111 Presumably, it is difficult to say that the attack was pursuant to a ‘State or organizational policy’ if the acts were committed by a different State or organization. Further, the judge questioned how the majority could be satisfied that the attack was ‘directed against’ the civilian population.112 The 30 killed constituted less than 5% of the 800 civilians found to be present, while the number of combatants killed constituted over 50% of the combatants present. Finally, the judge noted that 33 victims (including 3 cases of rape) did not rise to the ‘minimum threshold’ required for a crime against humanity.113 Secondly, the Judge considered that the Ngiti combatants of Walendu-Bindi collectivité were not an ‘organization’ for the purposes of Article 7 ‘regardless of which definition of “organization” one adheres to.’114 The Judge considered that they were not a single militia but no more than a ‘loose coalition of largely autonomous units.’115 The majority were, ‘unable to explain with any level of precision how the so-called militia of the Ngiti fighters of Walendu-Bindi was structured or how it supposedly operated’ and there was no evidence of a ‘centralised chain of command’ or that anyone ‘possessed any real ­authority over all the Ngiti fighters of Walendu-Bindi’.116 There was similarly no evidence that it could have adopted the policy to attack the Hema civilian population.117 Rather, the best thesis appeared to be that the rcd-ml/apc enlisted and armed local fighters for its own political aim without sufficiently training and disciplining them.118 Thirdly, and in any event, the judge did not accept that the purpose of the Ngiti fighters could have existed ‘totally independently from’ the rcd-ml/apc plan but rather states that it was ‘perfectly integrated in it’.119 Further, there is no evidence of any ‘meetings’ where the purpose was discussed but is reliant on exclusively circumstantial evidence that is inadequate in light of the 111 (icc) Katanga – Trial, above n 33, (Dissenting Opinion of Judge Van den Wyngaert), [180]; see also [187]. 112 (icc) Katanga – Trial, above n 33, (Dissenting Opinion of Judge Van den Wyngaert), [181], [267]. 113 (icc) Katanga – Trial, above n 33, (Dissenting Opinion of Judge Van den Wyngaert), [264]. 114 (icc) Katanga – Trial, above n 33, (Dissenting Opinion of Judge Van den Wyngaert), [206], [267] and [198]. 115 (icc) Katanga – Trial, above n 33, (Dissenting Opinion of Judge Van den Wyngaert), [206]; see also [199]–[200] and [202]. 116 (icc) Katanga – Trial, above n 33, (Dissenting Opinion of Judge Van den Wyngaert), [205]. 117 (icc) Katanga – Trial, above n 33, (Dissenting Opinion of Judge Van den Wyngaert), [208]. 118 (icc) Katanga – Trial, above n 33, (Dissenting Opinion of Judge Van den Wyngaert), [219]. 119 (icc) Katanga – Trial, above n 33, (Dissenting Opinion of Judge Van den Wyngaert), [220].

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alternative more plausible explanation.120 The failure to discriminate between civilian and military targets ‘does not detract from the fact that the upc was a legitimate target’.121 Fourthly, the judge considered that there was no evidence that the attack was ‘systematic’. Given the victim count, there was no evidence that the attackers made it difficult for victims to flee.122 Further, the lack of distinction between combatants and civilians was similarly insufficient as was the fact that the military attack on the village was planned and organised.123 And again, the point was made that ‘so little is known about how, when and by whom most of the crimes against civilians were actually carried out that it is totally impossible to form any opinion about the systematic nature of it’.124 2.2.4 Bemba Gombo On 21 March 2016, the icc delivered its second trial judgment on crimes against humanity, finding Jean-Pierre Bemba Gombo guilty of murder and rape as a crime against humanity. As discussed above,125 the charges against Bemba Gombo arose out of the situation in car. Bemba Gombo was the President of the political party, the mlc. He was also the Commander-in-Chief of the mlc’s military branch, the Armée de Libération du Congo (alc). The events in question were alleged to have taken place between 26 October 2002 and 15 March 2003. While the result was unanimous, Judge Ozaki wrote a separate opinion on the ‘State or organizational policy’ element. In short, the prosecution alleged – and the Chamber ultimately found – that, between 26 October 2002 and 15 March 2003, mlc troops advanced on some 14 villages in the car during which they committed numerous acts of murder, rape and pillage. (a) Factual Findings In October 2001, General François Bozizé́, the former Chief of Staff of the Central African Republic armed forces (the Forces Armeés Centrafricaines or faca) was dismissed from military service and retreated behind the Chadian border 120 (icc) Katanga – Trial, above n 33, (Dissenting Opinion of Judge Van den Wyngaert), [222]–[223]. 121 (icc) Katanga – Trial, above n 33, (Dissenting Opinion of Judge Van den Wyngaert), [225]. 122 (icc) Katanga – Trial, above n 33, (Dissenting Opinion of Judge Van den Wyngaert), [271]. 123 (icc) Katanga – Trial, above n 33, (Dissenting Opinion of Judge Van den Wyngaert), [272]–[275]. 124 (icc) Katanga – Trial, above n 33, (Dissenting Opinion of Judge Van den Wyngaert), [205]. 125 See Section 2.1.2.

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with a number of faca deserters.126 Bozizé’s forces (numbering around 500 to 600 troops127) then regrouped and advanced through car and captured a number of towns.128 On 25 October 2002, car President Alex-Félix Patassé, requested assistance from Bemba Gombo and the mlc in defending the government against Bozizé’s forces.129 The mlc was described as a group that ‘gradually transformed from a rebel movement into a political party.’130 The group was constituted by a statute, took part in various negotiations concerning the disarmament and reorganisations of the drc government and military and was divided into four ‘organs’ (the President, the Political and Military Council, the General Secretariat and the alc being the military branch).131 The group had a hierarchical structure ultimately headed by Bemba Gombo as President and Commander-in-Chief that maintained a strict separation between the political and military branches.132 The alc was comprised of approximately 20,000 soldiers and was structured similarly to the drc army.133 The alc had a long-range centralised communication system operated out of Gdabolite in the drc that allowed constant oral and written communication between Gdabolite and the commanders in the field as well as satellite telephones.134 Bemba Gombo, as President and Commander-in-Chief, commanded military operations and issued orders to commanders.135 The mlc oversaw a system of discipline in relation to the alc that included a system of court-martials run by judges appointed by the mlc and the existing court system in the drc where the mlc representative appointed the magistrates.136 After the request from Patassé, mlc forces intervened. Over the course of around four and a half months commencing 26 October 2002,137 mlc troops (numbering around 1,500138) at times allied with car forces139 advanced on 126 (icc) Bemba Gombo – Trial, above n 30, [379]. 127 (icc) Bemba Gombo – Trial, above n 30, [450]. 128 (icc) Bemba Gombo – Trial, above n 30, [379]. 129 (icc) Bemba Gombo – Trial, above n 30, [453]. 130 (icc) Bemba Gombo – Trial, above n 30, [382]. 131 (icc) Bemba Gombo – Trial, above n 30, [382]–[383]. 132 (icc) Bemba Gombo – Trial, above n 30, [384]–[389]. 133 (icc) Bemba Gombo – Trial, above n 30, [390]. 134 (icc) Bemba Gombo – Trial, above n 30, [394], [396] and [419]. 135 (icc) Bemba Gombo – Trial, above n 30, [399]–[400]. 136 (icc) Bemba Gombo – Trial, above n 30, [402]. 137 (icc) Bemba Gombo – Trial, above n 30, [458]. 138 (icc) Bemba Gombo – Trial, above n 30, [410]. 139 (icc) Bemba Gombo – Trial, above n 30, [524].

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some 14 villages in the car before withdrawing to the drc in around 15 March 2003.140 Some 1,500 alc soldiers took part in the 2002–2003 car Operation.141 car officials received the troops and provided them with various support throughout the operation, including by providing weapons, ammunition, ­vehicles and uniforms.142 mlc commanders – and ultimately Bemba Gombo – remained in control of the operation but coordinated with the car ­authorities.143 Bemba Gombo had primary disciplinary authority over the troop.144 In the course of the campaign, both the mlc and Bozizé’s forces suffered ‘many casualties, including hundreds killed and wounded in action’.145 At the same time, the Chamber found that ‘mlc soldiers committed many acts of murder and rape, and many acts of pillaging against civilians over a large geographical area’.146 The mlc soldiers ‘allegedly [sic] targeted civilians, without regard to age, gender, profession or social status, in and around schools, homes, fields and roads’.147 The mlc troops adopted the modus operandi of engaging in such activity after Bozizé’s forces had retreated from a particular area.148 The Chamber found 3 instances of murder,149 30 instances of rape,150 and at least 27 instances of pillage.151 The Chamber found that the mlc forces committed such acts in order to punish the civilians for mlc losses, for being suspected enemies or enemy sympathisers and (in respect of acts of rape) as unofficial payment for their services.152 The Chamber also found that the mlc soldiers were instructed to be ‘vigilant’ with civilians who were suspected to be enemies or enemy sympathisers and to kill or shoot civilians.153 At times, however, the Chamber does not clearly identify or analyse the ­evidence upon which its conclusions are based. In particular, the Chamber 140 (icc) Bemba Gombo – Trial, above n 30, [380]. 141 (icc) Bemba Gombo – Trial, above n 30, [410]. 142 (icc) Bemba Gombo – Trial, above n 30, [412]. 143 (icc) Bemba Gombo – Trial, above n 30, [427], [446] and [529]. 144 (icc) Bemba Gombo – Trial, above n 30, [449]. 145 (icc) Bemba Gombo – Trial, above n 30, [563]. 146 (icc) Bemba Gombo – Trial, above n 30, [563]. 147 (icc) Bemba Gombo – Trial, above n 30, [563]. 148 (icc) Bemba Gombo – Trial, above n 30, [564]. 149 (icc) Bemba Gombo – Trial, above n 30, [624]. 150 (icc) Bemba Gombo – Trial, above n 30, [633]. 151 (icc) Bemba Gombo – Trial, above n 30, [640]. 152 (icc) Bemba Gombo – Trial, above n 30, [565]–[567]. 153 (icc) Bemba Gombo – Trial, above n 30, [568]–[573].

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­ rovided no analysis of the evidence relied upon to support the conclusions p that: (a) mlc forces targeted the civilians in the manner they did; or (b) that civilians were ‘targeted … without regard to age, gender, profession or social status’. Similarly, no clear analysis is provided as to how the Chamber discerned that the crimes reflected a modus operandi of the mlc troops. At most, references are made to certain evidence in footnotes only sometimes with ­commentary as to what that evidence revealed. (b) Application to Bemba Gombo First, the Chamber held that there was an ‘attack’ in the sense that there was a course of conduct of acts referred to in Article 7(1).154 The Chamber was satisfied that there were ‘many acts of rape and murder against civilians during the 2002–2003 car Operation’ and that such acts were ‘consistent with evidence of a modus operandi’.155 This demonstrated ‘a course of conduct, and not merely isolated or random acts’.156 Secondly, the Chamber found that this attack was ‘directed against any civilian population’.157 The Chamber held that the relevant acts of murder, rape and pillage occurred ‘when [the mlc] were the only armed force present in a given area, and after confirming that General Bozizé’s rebels had departed.’158 The Chamber held that ‘mlc soldiers targeted civilians, without regard for age, gender or social status in civilian neighbourhoods and residences, on temporary mlc bases established in the car, or in isolated locations, such as the bush’.159 Indeed ‘[e]ntire families were victimised’ and ‘acts of murder and rape were regularly committed’.160 Thirdly, the Chamber found that the attack was pursuant to a State or organizational policy. It was said that the mlc was an ‘organization’ on account of its internal hierarchy, command structure and resources, the fact it governed an important part of territory in the drc and that it was organised with the clear goal of assisting President Patassé in defeating Bozizé’s forces.161 Strangely, the Chamber did not appear to rely on the fact that the mlc forces had control over the territory where the relevant acts were committed (i.e. in the car) both by way of their own military conquest as well as the permission to 154 (icc) Bemba Gombo – Trial, above n 30, [671]–[672]. 155 (icc) Bemba Gombo – Trial, above n 30, [671]. 156 (icc) Bemba Gombo – Trial, above n 30, [671]. 157 (icc) Bemba Gombo – Trial, above n 30, [673]–[674]. 158 (icc) Bemba Gombo – Trial, above n 30, [673]. 159 (icc) Bemba Gombo – Trial, above n 30, [673]. 160 (icc) Bemba Gombo – Trial, above n 30, [673]. 161 (icc) Bemba Gombo – Trial, above n 30, [675].

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operate in the territory provided by Patassé. In light of the analysis in Chapter 8 and for reasons set out further in Chapter 9,162 it is this factor that should be of most significance in finding that the mlc was an ‘organisation’ for the purposes of Article 7. The Chamber then found that the attack was pursuant to a policy based on eight factors: 1.

2. 3. 4. 5. 6. 7. 8.

The acts of rape and murder were ‘consistent with a modus operandi employed’ being that ‘after General Bozizé’s rebels had departed an area, mlc soldiers searched “house-to-house” for remaining rebels, raping civilians, pillaging their belongings, and occasionally killing those who resisted’.163 The acts were committed ‘repeatedly during a four-and-a-half-month period over a broad geographic area, encompassing each of the locations that fell under their control’.164 There was evidence of perpetrators motives ‘which the Chamber considers indicative of the attack being, at least, condoned by the mlc hierarchy’.165 The scale, degree and organisation of the pillaging carried out with the knowledge and involvement of the mlc hierarchy.166 In the final weeks, mlc soldiers ‘waged a punitive attack on Mongoumba’ ‘in retaliation for the seizure by the faca forces of allegedly pillaged goods’.167 mlc forces were ordered to exercise ‘vigilance’ against civilians including the use of force.168 There were ‘apparent inadequacies’ in the mlc’s code of conduct and inconsistent training of troops.169 Senior commanders such as Bemba Gombo were aware of the crimes being committed and failed to take all necessary and reasonable measures to prevent or punish the perpetrators.170

162 See Chapter 9, Section 7. 163 (icc) Bemba Gombo – Trial, above n 30, [676]. 164 (icc) Bemba Gombo – Trial, above n 30, [677]. 165 (icc) Bemba Gombo – Trial, above n 30, [678]. 166 (icc) Bemba Gombo – Trial, above n 30, [679]. 167 (icc) Bemba Gombo – Trial, above n 30, [681]. 168 (icc) Bemba Gombo – Trial, above n 30, [682]. 169 (icc) Bemba Gombo – Trial, above n 30, [683]. 170 (icc) Bemba Gombo – Trial, above n 30, [684].

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Fourthly, the Chamber found that the attack was ‘widespread’.171 The prosecution alleged only that the attack was ‘widespread’ and did not allege that it was also ‘systematic’.172 The Chamber’s conclusion appears to be reached on the basis that there were ‘many acts of rape, murder and pillaging against civilians over a large geographical area’, being in and around 14 different villages.173 Fifthly, the Chamber found that the acts were ‘part of’ the relevant attack as they were ‘consistent with evidence of general motives and modus operandi’.174 Sixthly, the Chamber found that the perpetrators had knowledge of the relevant attack.175 This was on the basis that, again, the acts were ‘consistent with evidence of general motives and a modus operandi’, ‘were linked to the organizational policy’ and that the attack ‘drew the attention of both local and international media’. (c) Consideration The analysis of the Chamber is extremely brief. For most aspects of the chapeau, the Chamber’s reasoning encompasses only 2 paragraphs made up of one paragraph of analysis and a second paragraph setting out the conclusion reached. This brevity has resulted in the Chamber often not clearly identifying the evidence upon which it has relied to form its conclusions, what inferences are being drawn from the evidence and not clearly analysing how that evidence relates to the issues being decided. The difficulties with the judgment start with a failure to properly identify the ‘attack’ sought to be relied upon. The ‘attack’ in this case is not the 2002–2003 car Operation; the attack appears to be a course of conduct of murdering, raping and pillaging civilians during the course of that operation. The question then becomes whether that attack was directed against a civilian population. More is required than simply that the attack was directed against victims who were civilians. What is required is an analysis of whether there was an attack that was directed against a civilian population. No such analysis was attempted. In particular, key aspects of the analysis appear to be missing. First, it is not clear from the judgment how many civilians were victimised, how large the relevant civilian population was and how many mlc soldiers were present at the relevant times. The Chamber found only 3 instances of murder and 30 instances of rape in a context of an operation by as many as 171 (icc) Bemba Gombo – Trial, above n 30, [684]. 172 (icc) Bemba Gombo – Trial, above n 30, [65] and [162]. 173 (icc) Bemba Gombo – Trial, above n 30, [684]. 174 (icc) Bemba Gombo – Trial, above n 30, [688]. 175 (ICC) Bemba Gombo – Trial, above n 30, [691].

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1,500 soldiers over the course of a number of months. While the Chamber’s findings, that murder and rape were ‘regularly committed’ or that there were ‘many’ instances of murder and rape, may suggest the Chamber considered the number of victims to be far greater than those incidents identified, the position is not made clear and the Chamber provided no support for any such analysis. Secondly, in determining whether the attack was directed against a population, the Chamber makes no reference to any of its earlier factual findings as to the fact that civilians were ‘targeted’ indiscriminately, or were targeted in order to punish perceived enemies or supporters of Bozizé or the alleged modus operandi. Even where such reference is made, as noted above, the Chamber does not make clear what evidence it relied upon in supporting such findings. The Chamber refers only to a large number of civilians being murdered and raped and that the events occurred after Bozizé’s forces had departed. Yet, without further analysis, such facts do not support a conclusion that a population was the target of any attack. Such facts are also consistent with a conclusion that certain members of the mlc opportunistically exploited the situation by targeting particular civilians. It is possible that the lack of a thorough analysis on this point flows from the Chamber’s apparent position on the meaning of the terms ‘attack’ and ‘population’ discussed above.176 As discussed above and in Chapter 9, the approach appears to be that the terms ‘attack’ and ‘population’ contain little normative content and appears to misconceive the meaning of these terms.177 Whatever the reason, the failure to fully identify the attack alleged and the evidence relied upon undermines that Chamber’s findings on the policy element, whether the attack was ‘widespread’ and whether the perpetrators had knowledge of the relevant attack. In each instance, the ‘attack’ is a part of the relevant element (i.e. it must be policy to undertake the attack, what must be widespread is the attack and the perpetrators must be aware of the attack). In establishing each element, the Chamber relies on similar matters to make out the elements, such as the commonality of the crimes and the alleged modus operandi by which the acts were committed. The evidentiary weakness, therefore, carry through to these elements. The issue of ‘widespread’ is obvious. How can an attack be determined to be ‘widespread’ without a precise identification of the basis on which that conclusion is reached? Other issues arise in respect of the mens rea element. There, the Chamber relied upon: (a) the widespread nature of the attack; (b) the general motives and modus operandi of the offenders; and (c) the 176 See above, Section 2.2.1. 177 See Chapter 9, Sections 2.1 (regarding ‘attack’) and 5.1.3 (regarding ‘population’).

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a­ ttention drawn to the attack in international and local media. But, again, if an inference is sought to be drawn that the acts were so widespread that the perpetrators must have known, that analysis requires an understanding of matters such as the precise events relied upon. So far as the Chamber’s analysis of the policy element is concerned, the analysis is slightly longer but problematic nonetheless. Most obviously, there is no clear analysis of what in fact the policy was. The Elements of Crimes require that the State or organization ‘actively promote or encourage such an attack’ or fail to take action in a manner that ‘is consciously aimed at encouraging such an attack’. What the Chamber was required to determine was whether (and if so how) the mlc promoted or encouraged the attack. If the ‘attack’ relied upon is the course of conduct of murder, rape and pillage directed against a civilian population, what must be identified is if and how that course of conduct was promoted or encouraged by the mlc. In this case, what appears to be lacking is an analysis of how the mlc’s conduct of the military operation (e.g. its direction to the forces to exercise vigilance and any apparent encouragement for troops to rape women or loot by way of payment) was considered to amount to a promotion or encouragement of the relevant acts. Further, the conclusion is undermined again by a lack of a clear analysis of the underlying evidence making up the 8 points relied upon by the Chamber and a precise identification of what inferences are sought to be drawn. For instance, the same questions arise, as discussed above, in relation to how ‘repeated’ the conduct was, how significant those matters were in the context of the operation more generally and what the evidence was of the various motivations of the perpetrators. Similarly, an analysis is required as to how the crimes that occurred after Bozizé’s rebels left the area demonstrate a policy to commit such acts and as opposed to individual opportunistic offending (i.e. which would only have been possible after Bozizé’s rebels left the area). 3

Security Council Referrals (Darfur and Libya)

The situations in Darfur and Libya have followed the more traditional lines of a ‘crime against humanity’ warranting an international response on the ground that the state concerned appeared to be affording protection or de facto impunity to those responsible for committing atrocities. 3.1 Background 3.1.1 Darfur, Sudan In the case of Sudan, the Security Council had for some time been concerned about reports of state tolerated atrocities committed by the Janjaweed militia

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in the Darfur region, and the Secretary-General had threatened un intervention.178 Violence (broadly speaking, between North and South Sudan) escalated in February 2003 when two local groups, the Sudan Liberation Movement (slm) and the Justice and Equality Movement (jem) attacked a strategic town in central Darfur. The slm and jem, composed largely of non-Arab Muslim Fur, Zaghawa, and Masalit ethnic groups, rose up against the majority-Arab Sudanese government, claiming that years of oppression led them to now seek a greater political voice and development for the region of Darfur.179 The Sudanese government, fearing that it did not have the military might to counter the slm and jem alone, allegedly enlisted the assistance of a loose collection of fighters of Arab background known as the ‘Janjaweed’, which, in the words of the acting un High Commissioner of Human Rights, Bertrand Ramcharan, resulted in ‘an ethnically based rebellion [being] met with an ethnically based response, building in large part on long-standing, but hitherto contained, tribal rivalries.’180 In 2004, various ceasefires were entered into but did not halt the conflict which has lead to the death of between 50,000 and 200,000 people, the displacement of 1.65 million internally, and 2 million into neighbouring Chad.181 The Report of the International Commission of Inquiry on Darfur to the un Secretary-General concluded that the fighting was ‘characterised by indiscriminate attacks on civilians (including air attacks on villages), rape, looting, destruction of property, torture (including partial skinnings), forced displacement by government or Janjaweed forces, and, to a far lesser extent, looting, attacks on civilians, and the use of child soldiers by rebel forces.’182 The huge

178 See, for example, un sc Resolution 1556 (2004), un Doc. S/RES/1556, 5015th mtg (30 July 2004); and Report of The Secretary-General pursuant to Paragraphs 6 and 13 to 16 of Security Council Resolution 1556, un scor, un Doc. S/2004/703, 59th sess (30 August 2004). 179 For a list of the large number of reports on the topic issued by the Secretary-General, see Robert Cryer, ‘Sudan, Resolution 1593, and International Criminal Justice’ (2006) 19 Leiden Journal of International Law 195, 197, fn 11. 180 See Report of the United Nations High Commissioner for Human Rights and Follow-Up to the World Conference on Human Rights: Situation of Human Rights in the Darfur Region of the Sudan, un Doc. E/CN.4/2005/3 (7 May 2004) (‘Report on Human Rights Situation in Darfur’), [6]. 181 Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General Pursuant to Security Council Resolution 1564 of 18 September 2004, un Doc. S/RES/1564 (25 January 2005) (‘Report on Darfur Inquiry’), [46]. 182 Cryer, above n 179, 198, citing Report on Darfur Inquiry, above n 181, [73]–[488].

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number of displaced persons has led a number of human rights organisations to declare that ‘ethnic cleansing’ has taken place.183 While the Sudanese government has accepted that violations of human rights and humanitarian law have occurred, it has maintained ‘that such violations represented individual excesses rather than state policy, and that they were the natural, or inevitable, consequences of an armed conflict which would end with the end of conflict’.184 On 30 July 2004, after condemning the violence on a number of occasions,185 the Security Council resolved under Chapter vii that the situation in Sudan was a threat to international peace and security and ‘welcom[ed] the commitment by the government of Sudan to investigate the atrocities and prosecute those responsible’, making particular reference to the Janjaweed and those crimes of an ‘ethnic dimension’.186 In September 2004, the Security Council established an independent commission to investigate the alleged violations.187 The Commission reported back on 25 January 2005, finding that war crimes, crimes against humanity, and potentially genocide had been committed and that the situation should be referred to the icc.188 This was on the basis that, ­inter alia, high-ranking state officials were suspected of committing offences and it would therefore be difficult or impossible to investigate them in Sudan.189 On 31 March 2005, when it was unsatisfied with the response of Sudan, the Security Council referred the situation in Darfur to the Prosecutor of the icc.190 This was the first time the Security Council had done so. The prosecutor opened an investigation in respect of Darfur on 6 June 2005. The United States resisted the referral initially but it ultimately abstained from voting in light of a few drafting aspects of the resolution:191 first, the preamble of the resolution 183 Human Rights Watch, Darfur Destroyed: Ethnic Cleansing by Government and Militia Forces in Western Sudan (2004), 39–42; and Human Rights Watch, ‘If We Return, We Will be Killed’: Consolidation of Ethnic Cleansing in Darfur, Sudan (2004). 184 Report on Human Rights Situation in Darfur, above n 180, [46]. 185 Most recently un sc Resolution 1547 (2004), un Doc. S/RES/1547, 4988th mtg (11 June 2004). 186 un sc Resolution 1556 (2004), un Doc. S/RES/1556, 5015th mtg (30 July 2004). 187 un sc Resolution 1564 (2004), un Doc. S/RES/1564, 5040th mtg (18 September 2004). 188 Cryer, above n 179, 201, citing Report on Darfur Inquiry, above n 181, [489]–[522] and [572]. 189 Cryer, above n 179, 201, citing Report on Darfur Inquiry, above n 181, [489]–[522] and [572]. 190 The referral extends back to 1 July 2002: see un sc Resolution 1593 (2005), un Doc. S/RES/1593, 5158th mtg (31 March 2005), pursuant to Article 13(6) of the icc Statute; see also Luigi Condorelli and Annalisa Ciampi, ‘Comments on the Security Council Referral of the situation in Darfur to the icc’ (2005) 3 Journal of International Criminal Justice 590. 191 See Cryer, above n 179, 204–205.

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makes reference to the United States’ controversial Article 98 Agreements with states;192 and secondly, the insertion of paragraph 6 of the Resolution. Paragraph 6 provides that the Security Council: Decides that nationals, current or former officials or personnel from a contributing State outside Sudan which is not a party to the Rome Statute of the International Criminal Court shall be subject to the exclusive jurisdiction of that contributing State for all alleged acts or omissions arising out of or related to operations in Sudan established or authorized by the Council or the African Union, unless such exclusive jurisdiction has been expressly waived by that contributing State. This purports to decide that persons from a contributing state outside Sudan which is not a party to the icc Statute shall be subject to the exclusive jurisdiction of that contributing state for all alleged acts or omissions arising out of operations in Sudan.193 That said, however, questions have been raised as to the validity of this provision.194 So far, five arrest warrants have been issued and no suspects have been arrested. The main arrest warrants, including for crimes against humanity, have been as follows:

192 But note that two other members of the Council attempted to limit the impact of this statement. Ellen Margrethe Løj, Denmark’s permanent representative, noted that ‘As regards the formulation regarding the existence of the agreements referred to in Article 98 [2] of the Rome Statute, Denmark would like to stress that the reference is purely factual; it is merely referring to the existence of such agreements. Thus, the reference in no way impinges on the integrity of the Rome Statute.’ Brazil went further, with its permanent representative, Ronaldo Mota Sardenberg, explaining his state’s abstention on Resolution 1593 on the basis that the preamble referred to such agreements, and ‘My delegation has difficulty in supporting a reference that not only does not favour the fight against impunity but also stresses a provision whose application is a controversial issue.’ 193 The likely intended effect is to pre-empt any un member State referring the Darfur situation generally (including for acts of nationals of non-State parties such as the United States) to the icc because Security Council decisions under Chapter vii are binding on all un member states even if in conflict with treaty obligations: see Charter of the United Nations, Art 103; and Frederic L. Kirgis, “un Commission’s Report on Violations of ­International Humanitarian Law in Darfur: Security Council Referral to the I­ nternational Criminal Court”, American Society of International Law Insight Addendum (5 April 2005) accessed online at on 22 January 2006. 194 See Cryer, above n 179.

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Ahmad Muhammad Harun (the Sudanese minister for humanitarian affairs) Ali Kushayb (the Janjaweed militia leader); Omar Hassan Ahmad al-Bashir (the Sudanese President); and Abdel Raheem Muhammad Hussein, (the Sudanese defence minister and former special representative for Darfur).

The icc also further issued summonses to appear (rather than arrest warrants) for Bahr Idriss Abu Garda (a rebel leader) and Abdallah Banda Abakaer Nourain (Banda) and Saleg Mohammed Jerbo Jamus (Jerbo) for war crimes only, allegedly committed during attacks against African Union peacekeepers at the Haskanita military base in Darfur in September 2007. After voluntarily appearing at the icc, the charges were declined in respect of Abu Garda but confirmed in respect of Banda and Jerbo. The situation in Darfur has been marked by intransigence on the part of the state parties and Security Council to arrest the indictees, particularly Al-Bashir, who remains the Sudanese President (discussed further below). As discussed below, the Pre-Trial Chamber ii has issued numerous decisions against various state parties on the basis of the failure to fulfil their obligations under the Rome Statute to arrest Al-Bashir and surrender him to the icc at times when he travelled outside Sudan. Yet despite the Pre-Trial Chamber ii’s referrals of such failures to the Security Council, the Security Council has not taken any action. 3.1.2 Libya The situation in Libya arose out of the Libyan revolution and the overthrow of Muammar Gaddafi during the so-called ‘Arab Spring’ of 2011–2012. Spurred on by revolutions in Tunisia and Egypt, the Libyan revolution began with protests in the Libyan capital, Benghazi on around 15 February 2011, where around 500–600 demonstrators clashed with Libyan security forces as they called for an end to the Gaddafi regime.195 As protests gained momentum in many parts of Libya, clashes became increasingly violent and the Libyan authorities attempted to quell the demonstrations ‘by any means, including by the use of lethal force’.196 195 Patrick Cockburn, “Amnesty questions claim that Gaddafi ordered rape as weapon of war”. The Independent (London) (24 June 2011), accessed online at on 29 December 2012. 196 (icc) Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah AlSenussi (Pre-Trial Chamber i Decision on the Prosecutor’s Application Pursuant to Article 58), ICC-01/11-12 (27 June 2011) (‘Gaddafi et al. – Article 58’), [31].

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While casualty figures have not been able to be properly verified, credible estimates appear to vary between 2,000 (who197) and 10,000 (Cherif Bassiouni of the un Human Rights Council198). As found by the icc Pre-Trial Chamber, the modus operandi for the Libyan security forces involved searching the homes of and detaining alleged dissidents, shooting at civilians with heavy lethal weapons who gathered in public places (including with aerial and sniper fire support) and ensuring that these events were subsequently covered up.199 On 26 February 2011, the Security Council resolved to refer the situation in Libya since 15 February 2011 to the icc. Compared to the referral in the situation of Darfur, no reference is made to the United States’ Article 98 agreement, however operative paragraph 6 is identical. Further, the resolution goes further than the Sudan referral in two additional respects. The preamble to the resolution refers specifically to the possibility of crimes against humanity being committed: Considering that the widespread and systematic attacks currently taking place in the Libyan Arab Jamahiriya against the civilian population may amount to crimes against humanity[.] The resolution also appears to specifically refer to the ‘responsibility to protect’ doctrine, noting that it was referring the situation in Libya to the icc after the failure of the Gaddafi regime ‘to protect its population’.200 Four arrest warrants have been issued, against: • • • •

Muammar Mohammed Abu Minyar Gaddafi (de facto leader of Libya). Saif Al-Islam Gaddafi (de facto Prime Minister of Libya); Abdullah Al-Senussi (Director of Military Intelligence); and Al-Tuhamy Mohamed Khaled (Lieutenant General of Libyan Army and leader of Libyan Internal Security Agency).

Despite the issue of warrants, none of these cases have proceeded. As discussed further below, Muammar Gaddafi was killed in Libya and the Libyan authorities have refused to transfer the other 3 indictees to the Court. 197 “rt News Line, March 2”, rt (2 March 2011), accessed online at on 29 December 2012. 198 “Up to 15,000 Killed in Libya War: u.n. Rights Expert”, Reuters (9 July 2011), accessed online at on 29 December 2012. 199 (icc) Gaddafi et al. – Article 58, above n 196, [31]. 200 See un sc Resolution 1970 (2011), un Doc. S/RES/1970, 6491th mtg (26 February 2011), Preamble.

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3.2 The Jurisprudence While there have been no arrests or trials of the two Security Council-referred situations of Darfur and Libya, the situations have raised two main issues: Head of State Immunity (further discussed in Chapter 11); and complementarity at the icc (discussed immediately below). The issue of complementarity is relevant for the reasons set out below. In respect of Muammar Gaddafi, the case was terminated on 22 November 2011, following his death in Libya. The other two warrants have been a test of the icc’s complementarity principle. Al-Senussi was arrested in Mauritania in March 2012 and extradited to Libya on 5 September 2012. On 19 November 2011, Saif al-Islam Gaddafi was captured alive in Libya in Zintan.201 By letter dated 23 November 2011, the National Transitional Council (the de facto government in place in Libya after the fall of Gaddafi) communicated to the icc that the Libyan State was willing and able to try Saif al-Islam Gaddafi.202 Rather than insisting on the immediate transfer of the defendant (and Al-Senussi) the Prosecutor’s office opened the door for negotiations with the National Transitional Council,203 proposing a number of options including priority of domestic proceedings,204 sequencing of proceedings under Article 94 of the Statute (where proceedings ‘relate to crimes that are different from those crimes pending before the Court’),205 and the possibility of holding icc proceedings in Libya.206 The Prosecutor’s office noted that ‘it was not within [its] mandate to serve as adviser or to monitor a domestic trial’.207 The Office of Public Counsel for the Defence (opcd) still objected to the Prosecutor’s position.208 While negotiations subsequently took place about the trial of Gaddafi, Libya has yet to surrender either Gaddafi or Al-Senussi to the icc. On 1 May 2012 and 2 April 2013, the National Transitional Council filed applications under 201 ‘Saif al-Islam Gaddafi arrested in Libya’, Al Jazeera (19 November 2011), accessed online at on 30 December 2012. 202 See ntc Letter dated 23 November 2011. 203 See (icc) Prosecutor’s Submissions on the Prosecutor’s recent trip to Libya, Gaddafi and Al-Senussi, ICC-01/11-01/11-31 (25 November 2011) (‘otp Submission on Libya Trip’). 204 (icc) otp Submission on Libya Trip, above n 203, [7]. 205 (icc) otp Submission on Libya Trip, above n 203, [8]. 206 (icc) otp Submission on Libya Trip, above n 203, [9]. 207 (icc) otp Submission on Libya Trip, above n 203, [7]. 208 (icc) Office of Public Counsel for the Defence (opcd) Request for Authorisation to Present Observations in Proceedings Concerning Mr. Saif Gaddafi, Gaddafi and Al-Senussi, ICC-01/11-01/11-33 (28 November 2011), [24]–[32].

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Article 19 of the icc Statute challenging the admissibility of the cases against Gaddafi and Al-Senussi, respectively.209 On 7 June 2012 – after the hearing of the Gaddafi application but prior to the Pre-Trial Chamber delivering its decision – one of the Court-appointed counsel and three other icc employees were detained by the National Transitional Council while allegedly attempting to discuss the legal representation of Gaddafi on the basis that the Libyan authorities alleged them to be smuggling in spying devices and a coded letter.210 Ultimately, the icc Pre-Trial Chamber rejected Libya’s application in respect of Gaddafi (on 31 May 2013) but granted the application in respect of Al-Senussi (on 11 October 2013). In respect of Gaddafi, the Pre-Trial Chamber rejected the application on both limbs of the 2-stage test set out in Katanga. First, the Chamber held that, while Libya was taking steps to investigate the matter, the charges contemplated did not cover the same conduct as was alleged in the indictment.211 Secondly, the Chamber held that the Libyan government was ‘unable’ to try the Accused because it could not secure the transfer of the Accused from Zintan and was unable to secure witness testimony and defence lawyers for the Accused.212 This decision was confirmed by the Appeals Chamber on 21 May 2014.213 Nonetheless, at the time of writing, Libya was yet to transfer Gaddafi to the icc and icc Pre-Trial Chamber i issued a finding of non-compliance and referral to the Security Council on 10 December 2014.214 In respect of Al-Senussi, the Pre-Trial Chamber accepted Libya’s application and found the case to be inadmissible. The Chamber held that Libya was 209 See (icc) Prosecutor v Gaddafi and Al-Senussi (Decision on the admissibility of the case against Saif Al-Islam Gaddafi), ICC-01/11-01/11 (31 May 2013) (‘Gaddafi – Admissibility’), [3]; and Prosecutor v Gaddafi and Al-Senussi (Decision on the admissibility of the case against Abdullah Al-Senussi), ICC-01/11-01/11-466-Red (11 October 2013) (‘Al-Senussi – ­Admissibility’), [3]. 210 Harding et al., ‘Libya accuses Australian icc official of passing secret letter to Gaddafi’s son’, The Guardian (25 June 2012), accessed online at on 30 December 2012. 211 (icc) Gaddafi – Admissibility, above n 209, [134]–[135]. 212 (icc) Gaddafi – Admissibility, above n 209, [215]. 213 (icc) Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi, (Judgment on the Appeal of Libya against the decision of Pre-Trial Chamber i of 31 May 2013 entitled “Decision on the admissibility of the case against Saif Al-Islam Gaddafi”), ICC-01/11-01/11 oa 4 (21 May 2014). 214 (icc) Prosecutor v Saif Al-Islam Gaddafi, (‘Decision on the non-compliance by Libya with requests for cooperation by the Court and referring the matter to the United Nations Security Council’), ICC-01/11-01/11 (10 December 2014).

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conducting an investigation into the Accused that had proceeded to the Accusation phase and that it covered the same conduct raised in the icc indictment.215 Further, while the Chamber noted its concerns about the security of witnesses and the fact that Al-Senussi was not yet provided with a defence lawyer, the Chamber accepted Libyan evidence that these issues would ultimately be solved by the case when it proceeded to trial.216 This decision was confirmed by the Appeals Chamber on 24 July 2014.217 While the Chamber considered a range of issues, perhaps of most relevance was its consideration of whether certain breaches of rights to a fair trial amounted to an ‘unwillingness’ to prosecute within the meaning of Article 17(2) the icc Statute. In rejecting the argument, the Chamber held that:218 [t]he concept of being “unwilling” genuinely to investigate or prosecute is … primarily concerned with a situation in which proceedings are conducted in a manner which would lead to a suspect evading justice as a result of a State not being willing genuinely to investigate or prosecute. […] The primary reason for their inclusion is therefore likewise not for the purpose of guaranteeing the fair trial rights of the suspect generally. […] Indeed, the Court was not established to be an international court of human rights, sitting in judgment over domestic legal systems to ensure that they are compliant with international standards of human rights. The Chamber held that while breaches to human rights did not per se amount to a state being ‘unwilling to prosecute’, such aspects will nonetheless be relevant where they are inconsistent with an intent to bring someone to justice.219 However, there may be instances, the Chamber concluded, where violations of the rights of the suspect are ‘so egregious that the proceedings can no l­onger be regarded as being capable of providing any genuine form of justice to the suspect’ such that they should be ‘deemed, in those circumstances, to be ­“inconsistent with an intent to bring that person to justice”’.220

215 (icc) Al-Senussi – Admissibility, above n 209, [167]–[168]. 216 (icc) Al-Senussi – Admissibility, above n 209, [301]–[310]. 217 Prosecutor v Gaddafi and Al-Senussi (Appeals Chamber Judgment on the appeal of Mr Abdullah Al-Senussi against the decision of Pre-Trial Chamber i of 11 October 2013), ICC-01/11-01/11-565 (24 July 2014) (‘Al-Senussi – Appeal’). 218 (icc) Al-Senussi – Appeal, above n 217, [218]–[219]. 219 (icc) Al-Senussi – Appeal, above n 217, [220], [230]. 220 (icc) Al-Senussi – Appeal, above n 217, [230].

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Proprio Motu Investigations (Kenya, Cǒte d’Ivoire and Georgia)

The proprio motu investigations constitute something of a middle ground between the State Party referrals and the Security Council referrals. Article 15(1) of the Rome Statute affords the Prosecutor the power to initiate an investigation proprio motu (that is, on his/her own initiative) on the basis of crimes within the jurisdiction of the Court. 4.1 Background 4.1.1 Kenya The situation in Kenya concerns the Kenyan post-election violence that took place from late 2007 to early 2008.221 The presidential election was held on 27 December 2007, after which President Mwai Kibaki, leader of the Party of National Unity (pnu) was declared the winner over opposing leader of the Orange Democratic Movement (odm), Raila Odinga. Voting had taken place largely along ethnic lines, with the majority Kikuyu people voting for Kibaki and other minority groups, primarily the Luos and Kalenjin people, voting for the odm. In the immediate aftermath of the winner being announced, allegations that electoral manipulation had taken place fuelled historical ethnic tensions between the majority and minority groups. Violence followed as groups associated with the odm targeted the perceived pnu supporters and those targeted then retaliated with violence. Further, police officers shot at a number of the demonstrators, leading to more violence being directed at the police.222 On 22 January 2008, former un Secretary General Kofi Annan arrived in Kenya to facilitate discussion between Kibaki and Odinga. Negotiations resulted in Kibaki and Odinga signing a power-sharing agreement called the National Accord and Reconciliation Act on 28 February 2008. The agreement established the office of Prime Minister (filled by Odinga) and creates a coalition government with Kibaki as President of the Republic. From 27 December 2007 to the time of the power-sharing agreement, between 1,133 and 1,220 people were killed, 3,561 people were injured, and up to 350,000 persons were displaced as found by the icc Pre-Trial Chamber in the Authorisation Decision.223 One of the outcomes of the National Accord was the establishment of the Commission of Inquiry into Post-Election Violence (known as the 221 For a useful background, see Hague Justice Portal, ‘Situation in Kenya’, accessed online at on 30 December 2012. 222 (icc) Kenya – Authorisation, above n 26, [134]. 223 (icc) Kenya – Authorisation, above n 26, [131].

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Waki ­Commission) to investigate the violence.224 The Waki Commission published a report recommending that the government establish a tribunal of national and international judges to investigate and prosecute perpetrators. The report stated that, if an independent tribunal was not established by a prescribed time, the sealed list of perpetrators and accompanying documentation collected by the Waki Commission would be transferred to the icc. ­Accordingly, after the Kenyan parliament voted against a bill to establish the tribunal in February 2009, the documentation was sent to the Prosecutor of the icc in July 2009. Thus, while strictly speaking a proprio motu investigation, the situation arrived at the icc in a manner much more similar to a state referral. On 8 March 2010, the icc Pre-Trial Chamber ii indicted six accused, colloquially known as the ‘Ocampo Six’. The Prosecutor filed two separate cases, divided into odm supporters and government (pnu) supporters. The first category consisted of three officials of the then-government, being: • Uhuru Kenyatta (the Deputy Prime Minister); • Hussein Ali (the former police commissioner), and • Francis Muthaura (the Cabinet Secretary). The second category consisted of the leaders of the odm, being: • William Ruto (Education Minister); • Henry Kosgey (Industrialisation Minister); and • Joshua Arap Sang (radio announcer). On 23 January 2012, the Pre-Trial Chamber confirmed charges against all accused except Kosgey and Hussein Ali. Despite this, and at least at the time of publication, both sets of cases have collapsed, in part amidst complaints of witness interference and intimidation. On 5 December 2014, Prosecutor Fatou Bensouda confirmed that charges against Kenyatta were to be withdrawn (with charges against Muthaura having been dropped on 11 March 2013).225 Bensouda stated this was due to a lack of 224 See generally: International Centre for Transitional Justice, ‘The Kenyan Commission of Inquiry into Post-Election Violence’, accessed online at on 30 December 2012; and The International Criminal Court Kenya Monitor, ‘Background’, accessed online at on 30 December 2012. 225 ‘Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda, on the withdrawal of charges against Mr. Uhuru Muigai Kenyatta’, icc Press Release (5 December 2014).

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evidence based on the fact that several important witnesses had either died, were ‘too terrified to testify for the Prosecution’, or had withdrawn or changed their evidence, and the Kenyan Government had failed to comply with icc requests. The withdrawal was said to be without prejudice to the Prosecution bringing charges again should the evidence become available. Similarly, on 5 April 2016, a majority of the Trial Chamber v (Judges Fremr and Eboe-Osuji each writing separate judgments and Judge Herrera Carbuccia dissenting) terminated the case against Ruto and Sang, although without prejudicing the Prosecution from bringing new charges in the future.226 This decision is discussed briefly below. 4.1.2 Côte d’Ivoire As in Kenya, the situation in Côte d’Ivoire arose out of violence following a disputed election, which, in Côte d’Ivoire, occurred in 2010–2011. Initially planned to be held in 2005, the election was intended to end political tensions in Côte d’Ivoire that had existed since the civil war that began in September 2002 and extended to late 2004. After the end of the 30-year presidency of Félix Houphouët-Boigny, Côte d’Ivoire, a former French colony, was split in their support for a president. The rebel-held north supported the opposition leader, Alassane Ouattara, for president. The government forces in the south supported the incumbent president, Laurent Gbagbo for president. A French-brokered power-sharing agreement was signed on 26 January 2003 (the Linas-Marcoussis Accord) with Gbagbo in power but with opponents invited into a government, and ecowas and French troops being placed between the two sides. On 27 February 2004, the un Security Council authorised the formation of the un Operation in Côte d’Ivoire (unoci) to facilitate the implementation of the peace agreement,227 a mandate subsequently expanded on numerous occasions, including various deployments of troops in September and December 2010 to bolster security for the upcoming presidential elections.228 226 (icc) Prosecutor v Ruto and Sang (Decision on Defence Applications for Judgments of Acquittal), ICC-01/09-01/11 (5 April 2016) (‘Ruto and Sang – Defence Application for Acquittal’). 227 un sc Resolution 1526 (2004), un Doc. S/RES/1526, 4908th mtg (30 January 2004). 228 un sc Resolution 1752 (2007), un Doc. S/RES/1752, 5661th mtg (13 April 2007); un sc Resolution 1962 (2010); and un Doc. S/RES/1962, 6458th mtg (20 December 2010). For earlier resolutions expanding the mandate, see: un sc Resolution 1782 (2007), un Doc. S/RES/1782, 5814th mtg (29 October 2007); un sc Resolution 1880 (2009), un Doc. S/RES/1880, 6174th mtg (30 July 2009); and un sc Resolution 1924 (2010), un Doc. S/RES/1924, 6323th mtg (27 May 2010).

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The presidential elections were held in two rounds: the first on 31 October 2010; and the second on 28 November 2010. On Thursday 2 December 2010, the head of the Ivorian Commission Électorale Indépendante (cei) announced results showing that Ouattara had won the presidential run-off over Gbagbo.229 The same day, the President of the Constitutional Council (a body with the mandate of deciding disputes concerning the presidential election, but also a body viewed as favouring Gbagbo) said the announcement was invalid as the cei had missed its Wednesday deadline to issue results.230 The next day, the Council declared Gbagbo the winner.231 Despite international endorsement that Ouattara had won the election,232 and an independent un verification of the election results,233 Gbagbo refused to step down. For around six months after the election results were announced, pro-Gbagbo forces attacked opposition neighbourhoods in Abidjan, the country’s main city, killing and beating members of ethnic groups believed to be hostile to Gbagbo.234 These forces were made up of the state security forces 229 ‘Ivory Coast election: Alassane Ouattara “beats Gbagbo”’, bbc News (2 December 2010), accessed online at on 31 December 2012. 230 David Lewis and Tim Cocks, ‘Ivory Coast seals borders after opposition win’, Reuters (2 D ­ ecember 2010), accessed online at on 31 December 2012. 231 ‘Ivory Coast poll overturned: Gbagbo declared winner’, bbc news (3 December 2010), accessed online at on 2 January 2013. 232 unsg, ‘Secretary-General’s Remarks at unhq Year-End Press Conference’ (17 December 2010) (‘the results of the election are known. There was a clear winner. There is no other option. The efforts of Laurent Gbagbo and his supporters to retain power and flout the public will cannot be allowed to stand. I call on him to step down and allow his elected successor to assume office without further hindrance. The international community must send this message – loud and clear. Any other outcome would make a mockery of democracy and the rule of law.’), cited in Nicolas Cook, ‘Côte d’Ivoire Post-Gbagbo: Crisis Recovery’, Congressional Research Service 7-5700 (20 April 2011), 13. 233 The Special Representative of the un Secretary-General for Côte d’Ivoire, Choi Young-Jin – based on an independent tally process carried out entirely separately but in parallel to that undertaken by the cei – “certified the outcome of the second round of the presidential election, as announced by the [cei], confirming Mr. Ouattara as the winner”: see unoci, “Presidential Elections,” accessed online at on 31 December 2012. 234 Adam Nossiter, ‘Arrest Warrant Issued for Wife of Ivory Coast’s Ex-President’, New York Times (22 November 2012), accessed online at on 2 January 2013.

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loyal to Gbagbo (the Forces de Défense et de Sécurité́, or fds) as well as various militia and mercenary groups, most notably the youth militia group operating under Charles Blé Goudé (the ‘contingent Blé Goudé’).235 Those voting for Ouattara were mainly drawn from the predominantly Muslim northern electorate, but were also drawn from portions of the ethnic Akan-centred base of Henri Konan Bédié (the candidate placing third).236 Those voting for Gbagbo were mostly drawn from the south (primarily Christians and the Krou ethnic group areas in the south-centre and west), some central-east Akan areas, and south-eastern Lagoon ethnic group areas.237 The conflict largely came to an end on 11 April 2011, when Gbagbo was captured and arrested in Abidjan by pro-Ouattara forces, backed by French forces.238 The day earlier, French and unoci helicopters had launched missiles at key positions held by Gbagbo forces.239 During the six-month period following the election, at least 3,000 people were killed and more than 150 women and girls raped.240 While Côte d’Ivoire is not a State Party to the Rome Statute, in April 2003, it lodged a declaration under Article 12(3) of the Statute accepting the jurisdiction of the Court for crimes committed ‘since the [attempted coup d’état] of 19 September 2002’ and that the ‘declaration shall be valid for an unspecified period of time’.241 Further, in December 2010, the newly-elected Ouattara confirmed the continuing validity of the December 2003 declaration.242 In May 2011, Ouattara addressed a further letter to the icc noting that there is reason 235 (icc) Prosecutor v Laurent Gbagbo (Pre-Trial Chamber Confirmation Decision), ICC02/11-01/11-656-Red (12 June 2014) (‘Laurent Gbagbo – Confirmation’), [136]. 236 Cook, above n 232, 12–13. 237 Cook, above n 232, 13. 238 Adam Nossiter, Scott Sayare and Dan Bilefsky, ‘Leader’s Arrest in Ivory Coast Ends Standoff’, New York Times (11 April 2011), accessed online at on 31 December 2012. 239 Adam Nossiter, ‘France and u.n. Hit Ivory Coast Strongman’s Home and Palace’, New York Times (10 April 2010), accessed online at on 2 January 2013. 240 Human Rights Watch, ‘Country Summary – Côte d’Ivoire’ (January 2012); ‘Ivory Coast’, New York Times (30 November 2011), accessed online at on 2 January 2013. 241 (icc) Republic of Côte d’Ivoire, Declaration Accepting the Jurisdiction of the International Criminal Court (18 April 2003), cited in Prosecutor v Gbagbo (Decision Pursuant to A ­ rticle 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d’Ivoire), Pre-Trial Chamber iii, ICC-02/11 (3 October 2011) (‘Côte d’Ivoire – Authorisation’), [10]. 242 (icc) Côte d’Ivoire – Authorisation, above n 241, [11].

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to believe that crimes falling within the jurisdiction of the icc had been committed during the 2010–2011 post-election violence and, given the gravity of the crimes, requested that the icc provide assistance in ensuring the perpetrators did not go unpunished.243 Again, like with Kenya, while the situation is technically a proprio motu investigation, the situation came to the icc in a manner far similar to a state referral. The icc has so far issued arrest warrants for three people: • Laurent Gbagbo (the former President of Côte d’Ivoire); • Simone Gbagbo (wife of Gbagbo and a member of his inner circle244); and • Charles Blé Goudé (the Minister for Sports and Youth and leader of the socalled ‘contingent Blé Goudé’245). Laurent Gbagbo and Blé Goudé were transferred to the Hague on 30 November 2011 and 22 March 2014, respectively. Simone Gbagbo is under house arrest in Odienne.246 No public arrest warrants have been issued for any pro-Ouattara forces. Initially, in the Pre-Trial Chamber’s 3 October 2011 decision authorising the opening of the investigation into Côte d’Ivoire, the Pre-Trial Chamber only authorised an investigation into potential crimes committed during the postelection violence following 28 December 2010.247 In a further decision on 22 February 2012, however, after the provision of further evidence from the prosecutor, the Pre-Trial Chamber held that the events between 19 September 2002 and 28 November 2010 were to be ‘treated as a single situation’ and accordingly, that the authorisation for investigation was to include crimes committed within that time period.248

243 (icc) Côte d’Ivoire – Authorisation, above n 241, [12]. 244 Nossiter et al., above n 238. 245 (icc) Laurent Gbagbo – Confirmation, above n 235, [136]. 246 (icc) Laurent Gbagbo – Confirmation, above n 235, [136]. 247 See (icc) Côte d’Ivoire – Authorisation, above n 241. However, see particularly at [41]–[42], where the Chamber noted that ‘[u]pon review of supporting material, the Chamber may conclude that Côte d’Ivoire repeatedly experienced violence prior to the 2010 elections and may therefore broaden the temporal scope of the investigations to events that occurred between 19 September 2002 … and 23 June 2011.’ However, at [184]–[185] the Chamber held that there was insufficient supporting information to so concluded and that the Prosecutor was to revert to the Chamber with additional information. 248 (icc) Prosecutor v Gbagbo (Decision on the Prosecution’s provision of further information regarding potentially relevant crimes committed between 2002 and 2010), Pre-Trial

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Charges against Laurent Gbagbo were confirmed on 12 June 2014249 and charges against Blé Goudé were confirmed on 11 December 2014.250 The trials against both accused were joined on 11 March 2015251 and commenced on 28 January 2016. 4.1.3 Georgia The situation in Georgia is the first investigation conducted by the icc outside of Africa and on the European continent. The investigation is into the actions of the Georgian, South Ossetian and Russian forces between 1 July 2008 and 10 October 2008 in and around South Ossetia. Following Georgia’s independence from the Soviet Union in 1991, South Ossetia sought to secede from Georgia. It proclaimed independence in 1992 and there was violence between South Ossetian and Georgian forces during the early 1990s. A ceasefire agreement led to the deployment of Georgian, South Ossetian and Russian peacekeeping forces in the region, although the situation remained unstable throughout the 1990s and early 2000s. Tensions were inflamed in April 2008, when a Russian aircraft shot down an unmanned drone in Georgian airspace. Throughout May 2008 there were clashes between Georgian and South Ossetian forces and Russia mobilised its troops around Georgia. Between 7 and 8 August 2008, South Ossetian separatists attacked Georgian peacekeeping forces. Georgia responded by sending its military forces into South Ossetia from the south and Russia sent its military forces from the north. Diplomatic calls by the United States, Great Britain and France, amongst others, led to the signing of a ceasefire agreement by Georgia and Russia on 15 and 16 August 2008, respectively. The violence prior to the ceasefire resulted in between 51 and 113 deaths and the displacement of between 13,400 and 18,500 people, mostly ethnic Georgians. The Prosecutor sought to commence an investigation into Georgia following notification by Georgia of a cessation of its proceedings in relation to the conflict. In dealing with the issue of complementarity in its authorisation decision, the Pre-Trial Chamber i agreed with the Prosecutor that Georgia’s ­notification Chamber iii, ICC-02/11 (22 February 2012) (‘Côte d’Ivoire – Further Authorisation’), [36]–[37]. 249 (icc) Laurent Gbagbo – Confirmation, above n 235. 250 (icc) Prosecutor v Charles Blé Goudé (Decision on the confirmation of charges against Charles Blé Goudé), Pre-Trial Chamber i, ICC-02/11-02/11 (11 December 2014) (‘Blé Goudé – Confirmation’). 251 (icc) Prosecutor v Laurent Gbagbo and Charles Blé Goudé (Decision on Prosecution requests to join the cases of Gbagbo and Blé Goudé and related matters), Trial Chamber i, ICC-02/11-01/15-1 (11 March 2015).

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was ‘dispositive’ of the matter252 and that any proceedings undertaken by the de facto authorities in South Ossetia did not meet the requirements of Article 17 of the Rome Statute, as South Ossetia was not a recognised state.253 In relation to Russia, the Pre-Trial Chamber i held that whilst the proceedings in Russia were not inadequate under Article 17, such proceedings ‘only covered a portion of the potential cases arising out of the situation’ and that issues of admissibility could be considered at a later stage.254 Accordingly, the Prosecutor is currently investigating the war crimes of wilful killing, destruction of property, pillaging by the South Ossetian forces against ethnic Georgians, as well as the war crime of directing attacks against peacekeepers by both South Ossetian forces (against Georgian peacekeepers) and Georgian forces (against Russian peacekeepers). The icc is also investigating the crimes against humanity of murder, deportation and forcible transfer and persecution, again by South Ossetian forces against ethnic Georgians. At the time of publication, the Prosecutor has not indicted any defendants. 4.2 The Jurisprudence The jurisprudence derived from the situation in Kenya has been most important for its development of the law on what is required by a ‘state or organizational policy’. In particular, various Chambers have been split on its interpretation and its application to the situation in Kenya. This disagreement first appeared in the Pre-Trial Chamber’s 31 March 2010 decision to authorize an investigation and has been repeated throughout the various decisions confirming the charges of the indictees listed above. The majority of the Chamber (Presiding Judge Trendafilova and Judge Tarfusser) has held that the situation in Kenya satisfies the ‘state or organizational policy’ requirement of crimes against humanity, while Judge Kaul has dissented on the point. 4.2.1 Widespread or Systematic Attack against Any Civilian Population In respect of both the situations in Kenya and the Côte d’Ivoire, the general discussions on the ‘widespread or systematic attack against any civilian ­population’ formulation have generally followed the earlier recitation of the principle in the Katanga Confirmation Decision and the Bemba Gombo Confirmation Decision, discussed above, with certain additions or clarifications along 252 (icc) Situation in Georgia (Decision on the Prosecutor’s request for authorisation of an investigation), Pre-Trial Chamber i, ICC-01/15 (27 January 2016) (‘Georgia – Authorisation’), [41]. 253 (icc) Georgia – Authorisation, above n 252, [40]. 254 (icc) Georgia – Authorisation, above n 252, [46].

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the way. In considering the ‘systematic’ limb, for instance, the icc Pre-Trial Chamber in the Kenya Authorisation Decision drew on the factors cited by the ad hoc Tribunals in Akayesu and in Blaškić – enunciated prior to the rejection of the policy element – as being relevant to the application of the ‘systematic’ element under the icc Statute.255 The same controversies have emerged, however, in respect of the terms ‘attack’ and ‘population’. In the Muthaura Confirmation Decision, Pre-Trial ­Chamber ii cited with approval the proposition that civilian population means ‘groups distinguishable by nationality, ethnicity or other distinguishing features’256 but added that this includes ‘a group defined by its (perceived) political affiliation’.257 Similarly, Pre-Trial Chamber i in the Laurent Gbagbo Confirmation Decision found that the term ‘course of conduct’ in the definition of ‘attack’ ‘embodies a systemic aspect as it describes a series or overall flow of events as opposed to a mere aggregate of random acts’ and that it ‘implies the existence of a certain pattern’.258 The Chamber continued that while multiple acts are necessary, the occurrence of those acts is not the only evidence that may be relevant to prove the existence of an attack; rather that ‘evidence relevant to proving the degree of planning, direction or organisation by a group or organisation is also relevant to assessing the links and commonality of features between individual acts’ for the purpose of determining whether the requisite ‘pattern’ of behaviour is present.259 This view appears to be at odds with the Pre-Trial Chamber and Trial Chamber in Bemba Gombo and the majority in the Katanga Trial Judgment. Those decisions appear to suggest that the ‘attack’ will be satisfied essentially by there being multiple underlying offences in Article 7(1) having been committed. This difference is discussed further below.260 Further, the cases in respect of Kenya and the Côte d’Ivoire provide illustrative applications of the ‘widespread or systematic’ test in the context of 255 (icc) Kenya – Authorisation, above n 26, [96]. 256 (icc) Prosecutor v Muthaura et al. (Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute), Pre-Trial Chamber ii, ICC-01/09-02/11-382Red (29 January 2012) (‘Muthaura – Confirmation’), [110], citing Kenya – Authorisation, above n 26, [81] (citing Bemba Gombo – Confirmation, above n 21; and Katanga – Confirmation, above n 20). 257 (icc) Muthaura – Confirmation, above n 256, [110] (followed in Laurent Gbagbo – Confirmation, above n 235, [209]). 258 (icc) Laurent Gbagbo – Confirmation, above n 235, [209]. 259 (icc) Laurent Gbagbo – Confirmation, above n 235, [210]. 260 See Section 5.2.

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relatively smaller conflicts, when compared to those seen in the other situations in the icc that have proceeded to substantively consider crimes against humanity.261 Each case has involved an attack that was both widespread and systematic. The Majority in the Pre-Trial Chamber in the Kenya Authorisation Decision found the Kenyan post-election violence to be ‘widespread’.262 The Chamber noted that, in the period between 27 December 2007 and 28 February 2008, between 1,133 and 1,220 people were killed, 3,561 people were injured, up to 350,000 persons were displaced, and there were an ‘increased number’ of rapes occurring during the period.263 However, the Pre-Trial Chamber appeared to consider that this violence was made up of three smaller ‘general categories of attacks’:264 • initial attacks by groups associated with the Orange Democratic Movement (the odm) and directed against the perceived Party of National Unity (pnu) supporters (325 killed, ‘many more’ displaced265); • retaliatory attacks conducted by members of the groups supportive of the pnu (who were targeted by the odm attacks) directed at those perceived to be responsible for the odm attacks (599 killed, ‘many more’ displaced266); and • violence perpetrated by the police (405 of the recorded deaths267). Each category appeared to be one ‘attack’ for the purposes of crimes against humanity. While the Pre-Trial Chamber in its Authorisation Decision is not entirely clear on the point, later Confirmation Decisions appear to bear this out. In the Ruto Confirmation Decision, the Pre-Trial Chamber appeared to accept that the ‘attack’ against pnu supporters was ‘widespread’ given the geographical scope of the attack (coving four different locations in two districts of the Rift Valley Province, Uasin Gishu and Nandi) and the fact that at least 237 people were killed, 505 injured, a number of houses and business burnt and over

261 Libya is another example of such a conflict but no decision has applied the ‘widespread or systematic’ test to it. 262 (icc) Kenya – Authorisation, above n 26, [130]. 263 (icc) Kenya – Authorisation, above n 26, [131]. 264 (icc) Kenya – Authorisation, above n 26, [103]–[106]. 265 (icc) Kenya – Authorisation, above n 26, [132]. 266 (icc) Kenya – Authorisation, above n 26, [133]. 267 (icc) Kenya – Authorisation, above n 26, [134].

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thousands forced to flee.268 Similarly, in the Muthaura Confirmation Decision, while the Chamber did not approach the matter on an element-by-element basis,269 the Chamber nonetheless found that the ‘attack’ on odm supporters was ‘widespread’.270 In the Laurent Gbagbo Confirmation Decision, the Chamber found there to be an attack constituting a series of acts of violence between 27 November 2010 and on or around 12 April 2011 by pro-Gbagbo forces and directed against civilians perceived to be Ouattara’s supporters.271 The Prosecution appeared to particularise the attack as constituting four ‘particular incidents’:272 • the attacks on 16–19 December 2010 directed at unarmed civilians demonstrating the Gbagbo regime at the rti building, where at least 45 were killed, 16 were raped and 54 were wounded;273 • the attacks on unarmed women demonstrating in Abobo on 3 March 2011, killing 7 and wounding at least 3;274 • the shelling of densely-populated Abobo market and the surrounding area on 17 March 2011, killing at least 40 and injuring at least 60;275 and • the attack on people in the street and in their homes in the Yopougon neighbourhood on or around 12 April 2011, where at least 75 were killed, at least 22 women were raped, and at least 1 was injured.276 The Chamber further considered a range of violence additional to these four incidents, including further rapes,277 a ‘pattern of suppression of civilian demonstrators organised by Ouattara supporters’,278 and attacks directed more 268 (icc) Prosecutor v Ruto et al. (Pre-Trial Chamber ii Confirmation Decision), ICC-01/0901/11-373 (5 February 2012) (‘Ruto – Confirmation’), [176]–[178]. 269 (icc) Muthaura – Confirmation, above n 256, [116]. 270 (icc) Muthaura – Confirmation, above n 256, [115] (concluding that the attack was ‘widespread’), [117] (characterising the relevant attack), and [145] (accepting that there was a ‘a large number of killings, displacement of thousands of people, rape, severe physical injuries, mental suffering and destruction of property’). 271 (icc) Laurent Gbagbo – Confirmation, above n 235, [211]. 272 (icc) Laurent Gbagbo – Confirmation, above n 235, [17]. 273 (icc) Laurent Gbagbo – Confirmation, above n 235, [24], [37]. 274 (icc) Laurent Gbagbo – Confirmation, above n 235, [42], [51]. 275 (icc) Laurent Gbagbo – Confirmation, above n 235, [52], [55]. 276 (icc) Laurent Gbagbo – Confirmation, above n 235, [64], [72]. 277 (icc) Laurent Gbagbo – Confirmation, above n 235, [74], referring to at least 9 additional victims. 278 (icc) Laurent Gbagbo – Confirmation, above n 235, [75]–[76], referring to 9 incidents where, cumulatively, at least 35 were killed, 48 wounded and 63 arrested.

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­generally against ‘the parts of the population perceived to be Ouattara supporters, such as Muslims, or people from the north of Côte d’Ivoire or the neighbouring West African countries’.279 It is important also to note that the Chamber frequently used the term ‘at least’ when describing the number of victims. The Chamber did not find that each incident constituted a ‘widespread’ attack, but rather found that there was a ‘widespread’ attack ‘[c]onsidering the cumulative effect of this series of violent acts’.280 It is also worth knowing that the Chamber appeared to make a number of findings that distinguished the incident from a case of what may crudely be termed ‘mere’ violent suppression of protesters. For instance, in respect of the rti demonstrations, the Chamber noted that the violence ‘did not stop with the dispersal of the demonstrations as the fds continued to actively search neighbourhoods close to the rti, arresting and attacking demonstrators’ and that, in the days following, continued to raid civilian homes, search hospitals and attack mosques.281 Similarly, the further violence detailed by the Chamber included a range of atrocities – such as burning people alive – that appeared to more seriously strike at the general population. While, strictly speaking, the Majority in the Kenya Authorisation Decision did not appear to find the attack to be ‘systematic’, so much was implicit in its finding that the attack was committed pursuant to a policy. In a paragraph that neatly summarises its findings, the Chamber found as follows:282 Upon examination of the available information, the Chamber observes that some of the violent events which occurred during the period under examination spontaneously arose after the announcement of the election results. Additionally, there were accounts of opportunistic crime which accompanied the general situation of lawlessness. However, the Chamber is of the view that the violence was not a mere accumulation of spontaneous or isolated acts. Rather, a number of the attacks were planned, directed or organized by various groups including local leaders, businessmen and politicians associated with the two leading political parties, as well as by members of the police force.

279 (icc) Laurent Gbagbo – Confirmation, above n 235, [77], referring to 22 incidents where, cumulatively, at least 103 were killed, a number of whom were burnt alive. 280 (icc) Laurent Gbagbo – Confirmation, above n 235, [224]. 281 (icc) Laurent Gbagbo – Confirmation, above n 235, [34]–[35]. 282 (icc) Kenya – Authorisation, above n 26, [117].

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The subsequent Confirmation Decisions in Ruto and Muthaura both engaged in more detailed analysis as to how the ‘systematic’ limb was satisfied.283 In Ruto, the Chamber summarised the relevant aspects as being: (a) coordinators were tasked with identifying houses belonging to pnu supporters to be attacked; (b) perpetrators approached target locations simultaneously, in large numbers, and from different directions, by vehicles or on foot, or both; (c) perpetrators erected roadblocks around such locations with a view toward intercepting pnu supporters attempting to flee, with the aim of eventually killing them; and (d) in the actual implementation of the attack, perpetrators used petrol and other inflammable material to systematically burn down the properties belonging to pnu supporters. 4.2.2 The Policy Requirement (a) Kenya Authorisation Decision – Majority The Majority decision in the Kenya Authorisation Decision discussed the requirement for a ‘State or organizational policy’ in two parts: first, the ‘policy’ element; and secondly, the ‘State or organizational’ element. While the substantive disagreement between Judge Kaul and the majority hinged more on the second element, it is useful to start at the first element as it provides some useful context for the controversy. In interpreting the ‘policy’ aspect, the majority of Pre-Trial Chamber ii in the Kenya Authorisation Decision purported to apply the earlier decisions in Katanga and Bemba Gombo referred to above.284 The majority developed the position further by ‘taking note’ of two key sources: the work of the International Law Commission (the ilc); and, more significantly, the jurisprudence of the ad hoc Tribunals.285 As to the first, the Chamber relied on the work of the ilc to suggest that the policy requirement should not be construed overly stringently. The Pre-Trial Chamber referred (in a footnote) to the Draft Code of Crimes Against the Peace and Security of Mankind (adopted by the ilc in 1996)286 (the icl Draft Code)

283 (icc) Ruto – Confirmation, above n 268, [179]; and Muthaura – Confirmation, above n 256, [146]–[185] (see also [117]–[141]). 284 See above, Section 2.2.2. 285 (icc) Kenya – Authorisation, above n 26, [86]. 286 (icc) Kenya – Authorisation, above n 26, [86], fn 78, citing Article 18 of the ilc Draft Code: ‘[a] crime against humanity means any of the following acts, when committed in a systematic manner or on a large scale and instigated or directed by a Government or by an organization or group […]’.

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and the Commentary to the icl Draft Code.287 The Chamber stated that ‘it is worth noting … that the ilc Draft Code does not require that there must be a policy per se, but only that crimes be instigated by the Government or organization’. The Pre-Trial Chamber also noted that this approach had some academic support.288 This reference is interesting. As noted in Chapter 4, the ilc Draft Code was not touched upon by the Secretary-General’s report into the drafting of the icty Statute. As to the second, the Chamber held that, while the ad hoc Tribunals have now abandoned the policy requirement, it is ‘useful’ and ‘appropriate’ to consider their definition of the concept of a ‘policy’ in early cases.289 Accordingly, the Pre-Trial Chamber applied the Blaškić Trial Chamber’s statement that a plan ‘need not necessarily be declared expressly or even stated clearly and precisely’, but ‘may be surmised from the occurrence of a series of events’, including the factors listed below. The Pre-Trial Chamber held that it ‘may refer to these factors, inter alia, when determining whether there was a policy to commit an attack’ in the case before them.290 As to the second element of the phrase (‘state or organizational’), the majority held that, while the term ‘State’ is ‘self-explanatory’, it was worth making a few comments. The Chamber cited the Blaškić Trial Chamber to find that a policy does not necessarily need to have been conceived ‘at the highest level of the State machinery’ and that ‘regional or even local organs of the State could satisfy the requirements’.291

287 (icc) Kenya – Authorisation, above n 26, [88], fn 78, citing the Commentary to the ilc Draft Code, Yearbook of the International Law Commission [1996] vol 2, Part 2, un Doc. A/CN.4/SER.A/1996/Add.1, [47], which indicated that the wording of Article 18 was ‘intended to exclude the situation in which an individual commits an inhumane act while acting on his own initiative pursuant to his own criminal plan in the absence of any encouragement or direction from either a Government or a group or organization’ (which, according to the ilc, would not constitute a crime against humanity). 288 (icc) Kenya – Authorisation, above n 26, [88], fn 78, citing Rodney Dixon and Christopher Hall, in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court – Observer’s Notes, Article by Article (2nd ed, CH Beck etc.: Munich, 2008) 236. 289 (icc) Kenya – Authorisation, above n 26, [86]. See also list of authorities considering the ‘policy’ element at fn 79 (namely, authorities prior to the Kunarac – Appeal, above n 24, [98]). 290 (icty) Blaškić – Trial, above n 21, [204], cited in (icc) Kenya – Authorisation, above n 26, [87] (footnotes omitted). 291 (icc) Kenya – Authorisation, above n 26, [89], citing (icty) Blaškić – Trial, above n 21, [205].

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The most controversial aspect of the majority’s decision, however (and the key point on which the majority differed from Judge Kaul), was in respect of the term ‘organizational’. The majority found that, while there is some academic support for the proposition that only a ‘State-like’ organisation will qualify,292 early icc Pre-Trial decisions have so far held that the formal nature of the group and the level of its organisation should not be the defining characteristic. Instead the relevant question must be ‘whether the group has the capability to perform acts which infringe on basic human values’.293 The Chamber further found that the organisation in question need not be linked to a state.294 Accordingly, a relevant organisation may be either individuals with de facto power or a ‘purely’ private criminal organization where it has the capacity to infringe basic rights.295 In reaching this conclusion, the majority first appeared to accept that the icc Statute was ‘unclear’ as to what group may qualify.296 It then appeared to resolve this ambiguity on three 292 See William Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press: Oxford, 2010) 152; and M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law (2nd rev. ed., Kluwer Law International: The Hague, 1999). 293 (icc) Kenya – Authorisation, above n 26, [90], rejecting suggestions to the contrary by: Schabas, above n 292, 152; and Bassiouni, above n 292, 244–245; see also Muthaura – Confirmation, above n 256, [112]. 294 (icc) Kenya – Authorisation, above n 26, [92]; and Ruto – Confirmation, above n 268, [184]. 295 (icc) Kenya – Authorisation, above n 26, [90], citing: Marcello Di Filippo, ‘Terrorist crimes and international co-operation: critical remarks on the definition and inclusion of terrorism in the category of international crimes’ (2008) 19(3) European Journal of International Law 533, 567; Darryl Robinson, ‘Defining “Crimes Against Humanity” at the Rome Conference’ (1999) 93(1) American Journal of International Law 43, 50; Kriangsak Kittichaisaree, International Criminal Law (Oxford University Press: Oxford, 2001), 98; Steven Ratner, ­Jason Abrams and James Bischoff, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (3rd ed, Oxford University Press: Oxford, 2009) 70; Benedetto Conforti, Diritto internazionale (Editoriale Scientifica: Naples, 2006) 191; and Peter Burns, “Aspects of Crimes Against Humanity and the International Criminal Court”, Paper prepared for the Symposium on the International Criminal Court, Beijing, China (3–4 February 2007), accessed online at . See also (icc) Kenya – Authorisation, above n 26, [91]–[92], citing the ilc Commentary to the Draft Code; (icty) Blaškić – Trial, above n 21, [205]; and Rodney Dixon and Christopher Hall, ‘Article 7’, in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court – Observer’s Notes, Article by Article (2nd ed, CH Beck: Munich, 2008), 236–237. 296 (icc) Kenya – Authorisation, above n 26, [92]; and Ruto – Confirmation, above n 268, [90].

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grounds. First, that while there was academic support for the view that an organisation must be state-like, others have ‘convincingly argued’ a distinction ought be drawn on the basis of whether the group may perform acts which infringe on basic human values.297 Secondly, it referred to the fact that the 1991 ilc Draft Code stated that the draft was not confined to ‘public officials or representatives’ but was intended ‘not to rule out the possibility that private individuals with de facto power or organized in criminal gangs or groups might also commit the kind of systematic or mass violations of human rights covered by the article’.298 Thirdly, it considered that the drafters would not have included the term ‘organization’ had they wished to exclude non-state actors.299 Accordingly, the Chamber concluded that whether or not the ‘organization’ element was present was a question of fact depending on a case-by-case analysis, taking into account a number of factors.300 These factors do not constitute a rigid legal definition and do not need to be exhaustively fulfilled.301 The factors are (footnotes included) whether the group: 1. 2.

is under a responsible command, or has an established hierarchy;302 possesses, in fact, the means to carry out a widespread or systematic attack against a civilian population;303 3. exercises control over part of the territory of a State;304 4. has criminal activities against the civilian population as a primary purpose;305 5. is part of a larger group which fulfils some or all of the abovementioned criteria.

297 (icc) Kenya – Authorisation, above n 26, [92]; and Ruto – Confirmation, above n 268, [90]. 298 (icc) Kenya – Authorisation, above n 26, [91], citing the ilc Commentary to the Draft Code, 103; and (icty) Blaškić – Trial, above n 21, [205] (individuals ‘with de facto power or organized in criminal gangs’ are just as capable as State leaders of implementing a largescale policy of terror and committing mass acts of violence’). 299 (icc) Kenya – Authorisation, above n 26, [92]; and Ruto – Confirmation, above n 268, [92]. 300 (icc) Kenya – Authorisation, above n 26, [93]; and Ruto – Confirmation, above n 268, [185]. 301 (icc) Kenya – Authorisation, above n 26, [93]; and Ruto – Confirmation, above n 268, [185]. 302 Cf. Additional Protocol ii, Art 1(1). 303 See, for example, Di Filippo, above n 295, 567–568. 304 See, for example, Additional Protocol ii, Art 1(1); and Di Filippo, above n 295, 566–567. 305 See, for example, Jennifer M. Smith, ‘An International Hit Job: Prosecuting Organized Crime Acts as Crimes Against Humanity’ (2009) 97 Georgetown Law Journal 1111, 1133–1134; and Burns, above n 295.

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Notable in this list is the fact that the group’s exercise of control over part of the territory of a State is only a factor and not a requirement, in contrast to the icty Trial Chamber decision in Limaj.306 Considering the facts in the case, the Chamber ultimately held that, while there were instances of spontaneous violence and opportunistic crime, ‘the violence was not a mere accumulation of spontaneous or isolated acts’. Rather, ‘a number of the attacks were planned, directed or organized by various groups including local leaders, businessmen and politicians associated with the two leading political parties, as well as by members of the police.’307 This analysis was further tested in the Confirmation Decision (by the same Pre-Trial Chamber) in the Ruto et al. Confirmation Decision (where, again, Judge Kaul was in dissent). There, the prosecution claimed that the relevant ‘organisation’ was a ‘network’ of individuals belonging to the Kalenjin community, including odp leaders, senior businessman and youths supporting the odp (the Network). The Chamber accepted that the Network was an ‘organisation’ within the meaning of Article 7. This was on the basis that the Network:308 • was under responsible command and had an established hierarchy, was in charge of securing the establishment and efficient functioning of the Network as well as the pursuit of its criminal purposes (comprising three generals and four divisional commanders, all reporting to Mr Ruto);309 • had the means to carry out a widespread or systematic attack (possessing a ‘considerable amount of capital, guns, crude weapons and manpower’);310 and • identified the criminal activities against the civilian population as its primary purpose.311 This analysis can now be seen in light of the decision dismissing the case against Ruto and Sang (discussed below at (d)).

306 (icty) Prosecutor v Limaj (Trial Chamber Judgment), Case No IT-03-66-T (30 November 2005) (‘Limaj – Trial’), [212]–[213]. See discussion in Chapter 5, Section 2.2.3. 307 (icc) Kenya – Authorisation, above n 26, [117]. 308 (icc) Ruto – Confirmation, above n 268, [186]; cf. Muthaura – Confirmation, above n 256, [186] (where an ‘organization’ was also found). 309 (icc) Ruto – Confirmation, above n 268, [197]–[199]. 310 (icc) Ruto – Confirmation, above n 268, [200]–[206]. 311 (icc) Ruto – Confirmation, above n 268, [207]–[208].

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(b)

Kenya Authorisation Decision – Dissenting Opinion of Judge HansPeter Kaul Although Judge Kaul approached the requirement of a ‘State or organizational policy’ differently from the majority, the Judge’s opinion largely differed from the majority on the second aspect above (the ‘State or organizational’ aspect). Insofar as the first aspect was concerned, Judge Kaul agreed with the majority that the ‘policy’, ‘if not formally adopted, may be deduced from a variety of factors which, taken altogether, militate in favour of a policy.’312 Judge Kaul, however, noted that ‘caution is warranted in accepting criteria which have been identified in other cases before [the icc] and the ad hoc tribunals where the underlying facts of the cases were dissimilar to those in the present request sub judice.’313 In the opinion of Judge Kaul, what was more important was who were the authors of the policy (namely, whether there was a ‘State or organizational policy’). As to the element of ‘State’, while Judge Kaul agreed that the question of ‘State’ is self-explanatory, the difficult question remains ‘at which level a policy may be adopted in order to be attributable to a State’.314 While the Judge agreed with the majority that acts or organs of government may be imputable or attributable to the State, questions of attribution do not solve the problem. Judge Kaul held that the requirement of policy implies a policy-making ‘at the high level’.315 Accordingly, the Judge held as follows: Certainly, a policy may be established, for example, by the government or high-ranking military commanders. However, considering the specific circumstances of the case, a policy may also be adopted by an organ which, albeit at the regional level, such as the highest official or regional government in a province, has the means to establish a policy within its sphere of action. As to the element of ‘organization’, Judge Kaul held that the text of the Rome Statute only conveyed that there must be a non-state (and possibly private) organisation.316 Importantly, Judge Kaul distinguished the earlier precedents in Katanga and Bemba Gombo on the basis that not only were those decisions

312 (icc) Kenya – Authorisation, above n 26, (Dissenting Opinion of Judge Kaul), [41]. 313 (icc) Kenya – Authorisation, above n 26, (Dissenting Opinion of Judge Kaul), [41]. 314 (icc) Kenya – Authorisation, above n 26, (Dissenting Opinion of Judge Kaul), [43]. 315 (icc) Kenya – Authorisation, above n 26, (Dissenting Opinion of Judge Kaul), [43]. 316 (icc) Kenya – Authorisation, above n 26, (Dissenting Opinion of Judge Kaul), [45].

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in the context of the particular standard of proof being applied, but also that the acts in those cases were ‘the acts of military-like organized armed groups in the context of an armed conflict not of an international character who over a prolonged period of time allegedly committed crimes according to a policy.’317 Other national and international precedents were held to provide only ‘limited guidance’ and ‘have not further clarified the characteristics and contours’ of non-state organizations but dealt with them only as hypotheticals: the world war two precedents involved cases relating to involvement with the state apparatus of Nazi Germany of Axis countries, and the icty and ictr decisions related actions of a state (Rwanda) or State-like entity (Republika Srpska). Finally, the Judge held that the academic literature showed a great level of disagreement.318 It is unfortunate that the icc did not address the Limaj Trial Decision, where the non-state organisation of the kla was considered in a concrete way. Judge Kaul’s key conclusion was that the juxtaposition of ‘State’ and ‘organization’ indicates that even though the constitutive elements of statehood need not be established, those organizations should ‘partake of some characteristics of a State’ – namely, be State-like.319 Private organizations that rise to the requisite quasi-State level could involve the following characteristics:320 • • • •

a collectivity of persons; which was established and acts for a common purpose; over a prolonged period of time; which is under responsible command or adopted a certain degree of hierarchical structure, including, as a minimum some kind of policy level; • with the capacity to impose the policy on its members and to sanction them; and • has the capacity and means available to attack any civilian population on a large scale. Judge Kaul made two notes that relied on the earlier icc decision in the Katanga Confirmation Decision. First, Judge Kaul relied upon the finding in Bemba Gombo that ‘organized armed groups’ within the meaning of Article 1(1) of Additional Protocol ii are qualified as ‘organizations’. In the context of crimes against humanity, even though an organization ‘may not show a m ­ ilitary 317 (icc) Kenya – Authorisation, above n 26, (Dissenting Opinion of Judge Kaul), [48]. 318 (icc) Kenya – Authorisation, above n 26, (Dissenting Opinion of Judge Kaul), [50]. 319 (icc) Kenya – Authorisation, above n 26, (Dissenting Opinion of Judge Kaul), [51]. 320 (icc) Kenya – Authorisation, above n 26, (Dissenting Opinion of Judge Kaul), [51].

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s­ tructure, it should nevertheless have a structure and capacity similar to that of an “organized armed group”’.321 Secondly, Judge Kaul noted that the Pre-Trial Chamber in Bemba Gombo rejected the contention that an ‘organized armed group’ needed to have ‘control over the territory’ and that, accordingly, control over the territory is not a necessary aspect of an ‘organization’, although it may serve as an additional factor to be considered.322 By contrast, Judge Kaul found that non-state actors which do not reach this level include:323 groups of organized crime, a mob, groups of (armed) civilians or criminal gangs [as well as] violence-prone groups of persons formed on an ad hoc basis, randomly, spontaneously, for a passing occasion, with fluctuating membership and without a structure and level to set up a policy … even if they engage in numerous serious and organized crimes. Judge Kaul held it is insufficient that an organization ‘has the capability to perform acts which infringe on basic human values’ without any further specification as it may impermissibly expand ‘the concept of crimes against humanity into any infringement on human rights’.324 Applied to the facts, Judge Kaul found that no such policy existed. Breaking the violence down into a province by province analysis (looking at 6 of the 8 provinces), Judge Kaul concluded that the groups did not constitute organizations on similar grounds (and in most cases, similar wording). The following, in the instance of Nairobi, is typical of the analysis:325 […] I fail to see an ‘organization’ in Nairobi which satisfies the criteria I have set out in paragraph 51 above. Local politicians, civic candidates or aspirants, councilors and business people meeting and allegedly financing the violence do not form an ‘organization’ with a certain degree of hierarchical structure acting over a prolonged period of time. Meetings 321 (icc) Kenya – Authorisation, above n 26, (Dissenting Opinion of Judge Kaul), [51], fn 55, citing: Bemba Gombo – Confirmation, above n 21; Kony – Arrest Warrant, above n 5; and Katanga – Confirmation, above n 20. 322 (icc) Kenya – Authorisation, above n 26, (Dissenting Opinion of Judge Kaul), [51], fn 56, citing: Prosecutor v Thomas Lubanga Dyilo (Decision on the confirmation of charges), ICC-01/04-01/06-803-tEN (7 February 2007) (‘Lubanga – Confirmation’), [233] et seq; and Bemba Gombo – Confirmation, above n 21, [236]. 323 (icc) Kenya – Authorisation, above n 26, (Dissenting Opinion of Judge Kaul), [52]. 324 (icc) Kenya – Authorisation, above n 26, (Dissenting Opinion of Judge Kaul), [53]. 325 (icc) Kenya – Authorisation, above n 26, (Dissenting Opinion of Judge Kaul), [82]–[83].

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during the time concerned point to ad hoc preparations and planning of violent incidents during the period of post-election violence. Local politicians using criminal gangs for their own purposes is an indicator of a partnership of convenience for a passing occasion rather than an ‘organization’ established for a common purpose over a prolonged period of time. Further, opportunistic violence and acts of individuals to resolve rental issues equally does not allude to an ‘organization’ characterized by structure and membership. Likewise, I fail to see a State policy according to which the civilian population was attacked. Information that some local politicians, civic candidates and aspirants were engaged in the organization of violent acts does not necessarily entail that a policy was established or at least endorsed at the high level of the State. Equally, based on the multifaceted information regarding police behaviour I feel unable to deduce that overall the police was implementing a State policy to attack the civilian population. (c) Laurent Gbagbo Confirmation Decision The disagreement in the Kenya Authorisation Decision has not been resolved by the decisions in respect of the Côte d’Ivoire situation. In the Laurent Gbagbo Confirmation Decision, Pre-Trial Chamber i recited the differing views but stated that it was ‘unnecessary for the Chamber to dwell any further on this point’ as the ‘organization’ under consideration would satisfy the threshold under either formulation:326 With respect to the [term ‘organizational’], Chambers of the Court have consistently held that the policy may be linked to groups that govern a specific territory or to an organisation that has the capability to commit a widespread or systematic attack against the civilian population. A view has also been expressed that the organisation within the meaning of article 7(2)(a) of the Statute must partake of some characteristics of a State, which “eventually turn the private ‘organization’ into an entity which may act like a State or has quasi-State abilities”. In the present case, the Chamber is of the view that the organisation alleged by the Prosecutor and satisfactorily established by the available evidence would meet the threshold under either interpretation and that, accordingly, it is unnecessary for the Chamber to dwell any further on this point. 326 (icc) Laurent Gbagbo – Confirmation, above n 235, [217].

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This was on the curious basis that the relevant attack by ‘pro-Gbagbo forces, which included elements of the fds, youth militia and mercenaries, and were led by Laurent Gbagbo and his inner circle’ ultimately constituted both an ‘organization’ within the icc Statute as well as part of the ‘State’ apparatus.327 The Chamber appeared to justify this two-part conclusion on the basis that, in its view, ‘it is appropriate to focus on the entire entity to which the policy to attack a civilian population is attributed, and not only on the individual(s) who adopt the policy at the highest level on behalf of the State or organisation’.328 How a policy may be both a state and a non-state entity is not clear. If the Gbagbo forces were – at that point in time – the official forces of the state, then once it is found that the attack occurred pursuant to that entity, there would appear to be no reason to consider the status of any non-state entities. The status of those entities would only become relevant if, for instance, the body politic of the Côte d’Ivoire was so fractured that Gbagbo could no longer be said to embody the State apparatus. As has been pointed out earlier in this text,329 the London Charter required only that offences be carried out in the interests of the Axis Powers – a connection in a loose sense to the interests or actions of the state. Accordingly, in the Flick Case, it was held that it did not matter that the defendants were not state agents or officials; it was enough if they were acting in furtherance of state policy.330 Similarly in respect of the Janjaweed militia in the context of the Sudan – the status of the militia is no longer necessary where it is linked to a policy of the State. This conception of the policy element is discussed further in Chapter 8. It may be that the Chamber’s characterisation was influenced by a ­potentially overly narrow construction of the term ‘policy’. In the Chamber’s earlier decision to adjourn the confirmation of charges in the case,331 the Chamber adjourned on the basis that the Prosecutor was required to furnish further evidence for the Chamber to properly assess whether or not to confirm charges. Importantly, however, the Chamber requested the Prosecutor to

327 (icc) Laurent Gbagbo – Confirmation, above n 235, [219]–[220]. 328 (icc) Laurent Gbagbo – Confirmation, above n 235, [219]. 329 See, for instance, Chapter 4, Section 4.3. 330 (Nuremberg) United States v Flick and others 6 ccl 10 Trials 3 (‘The Flick Case’), 1201–1202, followed in United States v Krauch 8 ccl 10 Trials 1081 (‘The Farben Case’), 1167–1192. 331 (icc) Prosecutor v Laurent Gbagbo (Decision adjourning the hearing on the confirmation of charges pursuant to Article 61(7)(c)(i) of the Rome Statute), Pre-Trial Chamber i, ICC02/11-01/11 (3 June 2013) (‘Gbagbo – Adjournment of Confirmation’).

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consider providing (‘to the extent possible’) further evidence with respect to a number of issues, including:332 2. The organizational structure of the “pro-Gbagbo forces”, including how different sub-groups interacted within the overall structure and especially how the “inner circle” coordinated, funded and supplied the means for the activities of the different sub-groups; any changes or evolution in the aforementioned structure and/or operating methods, taking place between November 2010 and May 2011. 3. How, when and by whom the alleged policy/plan to attack the “proOuattara civilian population” was adopted, including specific information about meetings at which this policy/plan was allegedly adopted as well as how the existence and content of this policy/plan was communicated or made known to members of the “pro-Gbagbo forces” once it was adopted. 4. For each of the incidents allegedly constituting the attack against the “pro-Ouattara civilian population”: a. whether the alleged physical perpetrators were acting pursuant to or in furtherance of the alleged policy. […] After further information was apparently furnished, the Chamber in its Confirmation Decision considered a number of these factors in its conclusion that the violence ‘was a planned and coordinated effort of … Gbagbo and his inner circle, carried out through the forces under their control’.333 The Chamber refers to a number of factual findings, including that: (a) Gbagbo was ‘regularly informed of, and actively participated in, the developments on the ground through his contacts, including in meetings, with the high commanders of the fds and other members of the inner circle’;334 (b) regular briefings took place during the election crisis at the General Staff involving all high commanders of the armed forces;335 and (c) Gbagbo ‘was informed of the developments on the ground through his regular contact with the Chief of Staff or other persons in his proximity with access to pertinent information’.336 Ultimately, it is not clear whether or not the Chamber considered that such facts were necessary (as opposed to desirable) in establishing a ‘State or organizational policy’. As has been noted by Darryl Robinson, if seen to be necessary, 332 (icc) Gbagbo – Adjournment of Confirmation, above n 331, [44]. 333 (icc) Laurent Gbagbo – Confirmation, above n 235, [219]. 334 (icc) Laurent Gbagbo – Confirmation, above n 235, [150]–[159]. 335 (icc) Laurent Gbagbo – Confirmation, above n 235, [160]–[162]. 336 (icc) Laurent Gbagbo – Confirmation, above n 235, [163]–[164].

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such findings may point to an overly-restrictive interpretation of the policy element.337 As will be discussed further in Chapter 8, the better view is that the ‘policy’ element should be interpreted broadly to include acquiescence or tolerance of the atrocities of non-state actors such as militias and mercenaries. On this view, militias such as the ‘contingent Blé Goudé’ may commit attacks pursuant to a policy of Gbagbo and the Côte d’Ivoire even where they are not overseen and directed as such. (d) Ruto and Sang On 5 April 2016, a majority of the Trial Chamber v (Judges Fremr and EboeOsuji each writing separate judgments and Judge Herrera Carbuccia dissenting) terminated the case against Ruto and Sang, although without prejudicing the Prosecution from bringing new charges in the future.338 One key issue in the case was whether the prosecution had adduced sufficient evidence to establish the policy element. Judge Fremr upheld the defence application that there was no case to ­answer, on the basis that there was insufficient evidence that there was a ‘Network’ (as particularised by the prosecution) whose policy it was ‘to evict members of the Kikuyu, Kisii, Kamba communities in particular because they were perceived to be pnu supporters’.339 The judgment represents a detailed and careful analysis of the evidence adduced by the prosecution as well as the inferences sought to be drawn from that evidence. It represents a level of analysis that should be welcomed and in this respect preferred to the more limited analysis in the Bemba Gombo Trial Judgment. Judge Fremr noted that the prosecution’s allegation as to the existence of an organisation referred to as the Network and the alleged policy was a circumstantial case based on five components: (1) a series of preparatory meetings held at Mr Ruto’s house; (2) training of Kalenjin youth; (3) obtaining firearms for the purpose of post-election violence; (4) the similar nature and patterns of attacks; and (5) a cleansing ceremony conducted following the attacks.340 The Judge then went through each of the five matters and identified the evidence 337 Darryl Robinson, ‘ajil Symposium: A Plea to Judges – Don’t Make the Policy Element Impossible’, Opinio Juris (22 June 2013), accessed online at on 26 September 2013. 338 (icc) Ruto and Sang – Defence Application for Acquittal, above n 226. 339 (icc) Ruto and Sang – Defence Application for Acquittal, above n 226, (Opinion of Judge Fremr), [131]. 340 (icc) Ruto and Sang – Defence Application for Acquittal, above n 226, (Opinion of Judge Fremr), [33].

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sought to be relied upon, the inferences available from that evidence and what ultimate inferences or conclusions could be drawn as to the existence of the Network and any policy. Of particular significance in the Judge’s analysis is what could be made of the alleged similarity or pattern of attacks. As Judge Fremr acknowledged, this component was significant in the prosecution case. The prosecution case was said to be based ‘to a considerable extent’ on the contention that it was ‘improbable that the many incidents and events that took place during the postelection violence could have occurred randomly and spontaneously’ without a policy as pleaded.341 Such a pattern was said to arise from the fact that: (1) Kalenjin attackers were launched into action often after war cries occurred; (2) that armed attackers were transported from outside regions and attacked properties in an organised or surgical manner; (3) road blocks were erected; and (4) Network members assisted or directed members on the ground.342 The prosecution’s allegations were ultimately found not to be made out on the evidence. Even if they had been made out, Judge Fremr appeared to consider that they were nonetheless insufficient to establish the prosecution case as a matter of law:343 The foregoing analysis has shown that the Prosecution has not substantiated most of the elements that should show the existence of a pattern. Nevertheless, even if all these elements were accepted, they would not be able to prove a pattern. The reason for this conclusion is twofold. First, in order to prove a pattern, it has to be established that the same things happened in the same manner on different occasions with sufficient frequency. Second, considering the geographical and temporal scope of the post-election violence in Uasin Gishu and Nandi districts, the number of samples of different elements provided by the Prosecution is too small to justify a conclusion that the Kalenjin attacks as a whole followed a pattern. Although there is, of course, no expectation of the Prosecution to show that each and every Kalenjin attack followed a similar pattern, the Prosecution must be able to demonstrate either that the examples it provides are a significant sample of the attacks as a whole or, if that is not 341 (icc) Ruto and Sang – Defence Application for Acquittal, above n 226, (Opinion of Judge Fremr), [124]. 342 (icc) Ruto and Sang – Defence Application for Acquittal, above n 226, (Opinion of Judge Fremr), [63]. 343 (icc) Ruto and Sang – Defence Application for Acquittal, above n 226, (Opinion of Judge Fremr), [112].

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feasible, that they constitute the majority of these attacks. However, the Prosecution has not shown such a recurrence of the same events or elements in the same manner on different occasions or in different places for the majority, or at least a significant number, of the attacks. Judge Eboe-Osuji agreed with Judge Fremr’s conclusions on the insufficiency of the evidence.344 The only differing position is that Judge Eboe-Osuji considered that the improper influence of witnesses in the case led to the conclusion that what occurred was a mistrial such that verdicts of acquittal should not be entered.345 The result of the majority is therefore that the charges against the accused were vacated but verdicts of acquittal not entered. Whilst Judge Fremr was concerned with the assessment of the evidence, Judge Eboe-Osuji considered the law on the state/organisational policy requirement in detail, which is considered in Part 7 of Chapter 9. While noting it was not strictly necessary to do so, Judge Eboe-Osuji also took the opportunity to conduct his own analysis of the policy element. Judge Eboe-Osuji appeared to be concerned by the fact that, in the case at hand, the Network relied upon by the prosecution was an organization named and characterised by the prosecution; none of its participants referred to themselves as being part of the Network.346 The Judge stated that the concern with the current approach of the icc to the definition of what ‘organisations’ will satisfy Article 7 is that it may constrain a prosecution ‘to construct – possibly out of figmentary evidence – theories of an aggregate entity that is said to have been implicated in a crime against humanity’.347 This would then exclude from coverage a situation where individuals have engaged in a widespread or systematic attack against the victims. The conclusion reached is that there need not be an involvement of ‘an aggregate entity’ in a crime against humanity but only a ‘coordinated course of action, regardless of the number of accomplices involved’.348 This would include ‘conduct of an individual who executed multiple large scale attacks 344 (icc) Ruto and Sang – Defence Application for Acquittal, above n 226, (Opinion of Judge Fremr), [1]. 345 (icc) Ruto and Sang – Defence Application for Acquittal, above n 226, (Opinion of Judge Eboe-Osuji), [182]–[192]. 346 (icc) Ruto and Sang – Defence Application for Acquittal, above n 226, (Opinion of Judge Fremr), [27]. 347 (icc) Ruto and Sang – Defence Application for Acquittal, above n 226, (Opinion of Judge Eboe-Osuji), [300]. 348 (icc) Ruto and Sang – Defence Application for Acquittal, above n 226, (Opinion of Judge Eboe-Osuji), [302], [462].

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against civilians in a systematic way, and the conduct of an individual who planned one large scale attack that inflicted widespread harm to a civilian population’.349 In his view, ‘lone wolf’ attacks may amount to crimes against humanity if they constitute a widespread and/or systematic attack.350 In developing this new approach to ‘organisational policy’, Judge ­Eboe-Osuji favoured a purposive, rather than literal, approach to Article 7(2)(a) of the Rome Statute.351 In his view, ‘considerations of humanity’ are central to the purpose of Article 7(2)(a) and it would be an absurd outcome if the icc did not have jurisdiction to hear a case involving widespread and/or systematic attack on a civilian population simply because it was not perpetrated by ‘an aggregate entity’.352 5 Conclusion After just over a decade of operation, the icc is starting to deliver a n ­ umber of decisions on the topic of crimes against humanity. The icc Trial Chamber has finally delivered 2 judgments on crimes against humanity ­(Katanga and Bemba Gombo), and the icc has delivered a number of pre-trial decisions that have started to sketch out the elements of crimes against humanity (including a substantive decision dismissing crimes against humanity, Ruto and Sang). Four points may be most notable: 1. 2. 3. 4.

the role of the ad hoc Tribunals on the law of the icc; the interpretation of ‘widespread or systematic’ and the minimum requirement of scale; the interpretation of the ‘State or organizational policy’ requirement; and the relationship between the icc and customary international law.

349 (icc) Ruto and Sang – Defence Application for Acquittal, above n 226, (Opinion of Judge Eboe-Osuji), [302]. 350 (icc) Ruto and Sang – Defence Application for Acquittal, above n 226, (Opinion of Judge Eboe-Osuji), [412]. 351 (icc) Ruto and Sang – Defence Application for Acquittal, above n 226, (Opinion of Judge Eboe-Osuji), [358]–[402]. 352 (icc) Ruto and Sang – Defence Application for Acquittal, above n 226, (Opinion of Judge Eboe-Osuji), [311].

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5.1 The icc and the ad hoc Tribunals The early decisions have started to grapple with the precedential value of the decisions of the ad hoc Tribunals. On the one hand, the early Pre-Trial ­Chamber decision in Katanga and Bemba Gombo, for instance, were extremely willing to apply and interpret the icc statute with great assistance from the jurisprudence of the ad hoc Tribunals. The same can be said of the Trial Chamber judgment in Katanga. On the other hand, there has at times been a tendency to interpret only the words of the icc Statute without considering at all the jurisprudence of the ad hoc Tribunals. The approach of the Trial Chamber in Bemba Gombo to the interpretation of the words ‘attack’ and ‘population’ is one such example. The interaction between the icc Statute and customary international law is a difficult issue. Each individual question of interpretation must be analysed separately. The starting point is that the icc is applying a treaty; it is not applying customary international law. At the same time, however, it should be recognised that the icc Statute did not come into existence in a vacuum. In the context of crimes against humanity, Article 7 came into existence in circumstances where the drafters were attempting to define a crime that already had a meaning at customary international law and had already been the subject of a number of important decisions, particularly of an international tribunal established by the un Security Council (in particular, the decision of the icty in Tadić). This means two things. First, the matters arising at the Rome Conference may be considered in the manner set out by the Vienna Convention on the Law of Treaties. The terms of the icc Statute are required to be given their ordinary meaning in their context and in light of its object and purpose.353 If the application of this rule leaves the meaning ambiguous or obscure, recourse may be had to the preparatory work of the icc Statute and the context of its conclusion (namely, the Rome Conference).354 Secondly, recourse may be had to customary international law where appropriate. The icc Statute itself specifically provides that the Court is to apply 353 (pcij) Vienna Convention on the Law of Treaties, Art 31. See also Competence of the ilo to Regulate Agricultural Labour (Advisory Opinion), Permanent Court of International Justice, p.c.i.j (ser. B), Nos 2 and 3 (12 August 1922), 23; and (icc) Situation in the Democratic Republic of the Congo, (Judgment on the Prosecutor’s Application for Extraordinary Review of Pre-Trial Chamber i’s 31 March 2006 Decision Denying Leave to Appeal), ICC01/04-168 (24 July 2006), [31]. 354 Vienna Convention on the Law of Treaties, Art 32.

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the Statute and the Elements of Crimes ‘[i]n the first place’ and that ‘[i]n the second place, where appropriate, applicable treaties and the principles and rules of international law’.355 As the icc Statute arose at a time when the terms crimes against humanity had already been elaborated on under customary international law, careful consideration should be given in each instance as to whether the drafters of the icc Statute intended to deviate or conform with customary international law. The weight given to the matters raised at the Rome Conference and the meaning of crimes against humanity under customary international law will have a significant bearing on the proper interpretation to be given to Article 7 of the icc Statute. To the extent that it is looked at, it is important to recognise that customary international law is not necessarily reflected in the decisions of the ad hoc tribunals. Judge Kaul picked these points up in the Kenya Authorisation Decision.356 The Judge held that while the courts and tribunals may be relevant to the icc in terms of identifying ‘principles and rules of international law’ within Article 21(1)(b) of the Statute, ‘such an approach does not release the Court from ascertaining for itself in a given instance whether e.g., the constitutive elements of custom, namely State practice and opinio juris sive necessitatis are met.’357 5.2 Widespread or Systematic Attack against Any Civilian Population 5.2.1 Interpretation of Article 7 The early decisions of the icc have started to map out when an attack will satisfy the contextual requirements of a crime against humanity. As noted above, there has been much agreement on many of the relevant principles that are applicable and these principles have largely been derived from the jurisprudence of the ad hoc tribunals.358 This includes the meaning of the terms ‘widespread’ and ‘systematic’, the requirement that an attack be ‘directed against’ a civilian population and that the relevant underlying crimes be ‘part of’ the attack. These decisions can be added to the jurisprudence of the international and internationalised tribunals considered in Chapter 5 and are more fully summarised in Chapters 9 and 10.359

355 Vienna Convention on the Law of Treaties, Art 32. 356 (icc) Kenya – Authorisation, above n 26, (Dissenting Opinion of Judge Kaul), [28]–[29]. 357 (icc) Kenya – Authorisation, above n 26, (Dissenting Opinion of Judge Kaul), [30]. 358 See above, Sections 2.2.2 and 4.2.1. 359 See Chapter 9 in relation to the contextual elements and Chapters 10 and 11 in relation to the underlying crimes.

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At this early stage in the Court’s history, however, some aspects of the jurisprudence are not entirely settled and will require further elaboration. These include the question of whether or not the definition of ‘civilian’ is to be entirely equated with international humanitarian law. This was the conclusion reached in the Bemba Gombo Confirmation Decision360 and the majority in the Katanga Trial Judgment361 but arguably left open in the Katanga Confirmation Decision.362 Another such area may be the mens rea element of crimes against humanity and who must possess the mens rea – the perpetrator of the underlying crime or the accused, with the early pre-Trial Chambers in Katanga and Bemba Gombo referring only ambiguously to the term perpetrator.363 Another aspect is the proper interpretation to be given to the terms ‘attack’ and ‘population’. In respect of the word ‘attack’, there have been differing views. On the one hand, the icc Pre-Trial Chamber in Bemba Gombo held that ‘[t]he commission of the acts referred to in [A]rticle 7(1) of the Statute constitute the “attack” itself and, beside the commission of the acts, no additional requirement for the existence of an “attack” should be proven.’364 The majority in the Katanga Trial Judgment made similar findings.365 On the other hand, the icc Pre-Trial Chamber i in the Laurent Gbagbo Confirmation Decision considered that the expression ‘course of conduct’ in the definition of ‘attack’ embodied a ‘systemic aspect as it describes a series or overall flow of events as opposed to a mere aggregate of random acts’ and that it ‘implies the existence of a certain pattern’.366 The decisions in Bemba Gombo and Katanga appear to view an attack as being a requirement that imposes minimal content. This view appears to suggest that if there is a ‘systematic’ or ‘widespread’ commission of violence then it will constitute an ‘attack’ provided that more than one underlying crime has 360 (icc) Bemba Gombo – Confirmation, above n 21, [78] (following Kunarac – Appeal, above n 24); and Kenya – Authorisation, above n 26, [82] (following Bemba Gombo – Confirmation and Kunarac – Appeal). This view was followed by Trial Chamber ii in Katanga – Trial, above n 33. 361 (icc) Katanga – Trial, above n 33, [1102]. 362 (icc) Katanga – Confirmation, above n 20, [399]. See also discussion above at Section 2.2.1. 363 (icc) Katanga – Confirmation, above n 20, [401] (citing [2] of the Introduction to Article 7, Elements of Crimes); and Bemba Gombo – Confirmation, above n 21, [87]–[89], [126]. See also discussion above at Section 2.2.1. 364 (icc) Bemba Gombo – Confirmation, above n 21, [75], citing (ictr) Akayesu – Trial, above n 22, [581]. 365 (icc) Katanga – Trial, above n 33, [1101]. 366 (icc) Laurent Gbagbo – Confirmation, above n 235, [209].

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been committed. The Pre-Trial Chamber in Gbagbo, however, recognised that the word ‘attack’ contains its own separate requirement that must be satisfied. As will be discussed further in Chapter 9, it is suggested that the position in Gbagbo is both more consistent with the ordinary meaning of the word ‘attack’ as well as the position of the drafters at the Rome Conference and the position under customary international law.367 A similar question has emerged in relation to the term ‘population’. On the one hand, the Pre-Trial Chamber in the Katanga Confirmation Decision appeared to adopt the same approach as was taken by the ad hoc tribunals that what must be targeted is a population as such in the sense of a collective as opposed to individuals.368 This will usually be individuals identifiable by a particular geographical location, nationality, ethnicity or other distinguishing features. This appeared to be followed in the Bemba Gombo Confirmation Decision and the Kenya Authorisation Decision.369 On the other hand, Katanga and Bemba Gombo Trial Judgments both appear to suggest that all that is required is that those targeted are civilian as opposed to military targets.370 Again, this is discussed in Chapter 9.371 5.2.2 Minimum Level of Scale or Seriousness Further, the early decisions of the icc have begun to chart out when an attack will be ‘widespread’ or ‘systematic’ and when an attack will be an attack against a population rather than individuals. This is relevant not only for a discussion of the relevant interpretation of those terms in the icc Statute, but also to an understanding of those terms under customary international law. As will be discussed in Chapter 8, the authors contend that an attack must reach a minimum requirement of scale or seriousness before it will be sufficient to found a crime against humanity. What attacks are considered to be widespread or systematic in the icc will be relevant to that analysis. The majority of the Pre-Trial Chamber in the Kenya Authorisation Decision, for instance, found the Kenyan post-election violence to be ‘widespread’. The Chamber noted that, in the period between 27 December 2007 and 28 February 2008, between 1,133 and 1,220 people were killed, 3,561 people were injured, up to 350,000 persons were displaced, and there were an ‘increased number’ 367 See Chapter 9, Section 2. 368 (icc) Katanga – Confirmation, above n 20, [399]. 369 (icc) Bemba Gombo – Confirmation, above n 21, [76]; and Kenya – Authorisation, above n 26, [81]. 370 (icc) Bemba Gombo – Trial, above n 30, [155]; and Katanga – Trial, above n 33, [1105]. 371 See Chapter 9, Section 5.2.

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of rapes occurring during the period.372 However, the Pre-Trial Chamber appeared to consider that this violence was made up of three smaller ‘general categories of attacks’:373 • initial attacks by groups associated with the odm against perceived pnu supporters (325 killed, ‘many more’ displaced374); • retaliatory attacks conducted by members or supporters of the pnu against perceived odm supporters (599 killed, ‘many more’ displaced375); and • violence perpetrated by the police (405 of the recorded deaths376). The Chamber appeared to consider that each category was one ‘attack’ for the purposes of crimes against humanity. While the Pre-Trial Chamber in its Authorisation Decision is not entirely clear on the point, later Confirmation Decisions appear to bear that out. In the Ruto Confirmation Decision, the PreTrial Chamber appeared to accept that the ‘attack’ against pnu supporters was ‘widespread’ given the geographical scope of the attack (coving four different locations in two districts) and the fact that at least 237 people were killed, 505 injured, a number of houses and business burnt and over thousands forced to flee.377 Similarly, in the Muthaura Confirmation Decision, while the Chamber did not approach the matter on an element-by-element basis,378 the Chamber nonetheless found that the ‘attack’ on odm supporters was ‘widespread’.379 Similar findings may be seen in the Bemba Gombo confirmation decision.380 372 (icc) Kenya – Authorisation, above n 26, [131]. 373 (icc) Kenya – Authorisation, above n 26, [103]–[106]. 374 (icc) Kenya – Authorisation, above n 26, [132]. 375 (icc) Kenya – Authorisation, above n 26, [133]. 376 (icc) Kenya – Authorisation, above n 26, [134]. 377 (icc) Ruto – Confirmation, above n 268, [176]–[178]. 378 (icc) Muthaura – Confirmation, above n 256, [116]. 379 See (icc) Muthaura – Confirmation, above n 256, [115] (concluding that the attack was ‘widespread’), [117] (characterising the relevant attack), and [145] (accepting that there was a ‘a large number of killings, displacement of thousands of people, rape, severe physical injuries, mental suffering and destruction of property’). 380 (icc) Bemba Gombo – Confirmation, above n 21, [117] (although it was unclear the extent to which this finding was based on the defence not raising any challenge to it: see [118]). The violence the Chamber appeared to base its finding that the relevant attack was ‘widespread’ on the basis that the attack occurred in a large geographical area (Bangui (districts of Boy-Rabe and Fouh), PK-12 and Mongoumba) and between 300 and 2000 rapes occurred in total.

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The counterpoint to these decisions is the icc Pre-Trial Chamber decision in the Laurent Gbagbo Confirmation Decision. In the context of the ­post-election violence in Cote D’Ivoire, the Chamber found the attack by the supporters of incumbent Gbagbo against perceived supporters of opposition leader Ouattara to be ‘widespread’ where, across several incidents, at least 305 were killed, at least 332 were injured and a number raped. While the Chamber considered the ‘cumulative’ effect of the violence to be widespread, the Chamber made a number of findings that appeared to distinguish the incident from a case of what may crudely be termed ‘mere’ violent suppression of protesters. For instance, in respect of the rti demonstrations, the Chamber noted that the violence ‘did not stop with the dispersal of the demonstrations as the fds continued to actively search neighbourhoods close to the rti, arresting and attacking demonstrators’ and that, in the days following, the fds continued to raid civilian homes, search hospitals and attack mosques.381 Similarly, the further violence detailed by the Chamber included a range of atrocities – such as burning people alive – that appeared to more seriously strike at the general population. The ability to precisely identify the minimum level of scale or seriousness that will be required of a crime against humanity has become more unclear after the Trial Chamber decisions in Katanga and Bemba Gombo. In Katanga, the Trial Chamber was split on what constitutes a ‘systematic’ attack and when the minimum threshold of scale for a crime against humanity is met. The majority found there to be a ‘systematic’ attack where the Ngiti combatants attacked the Bogoro village in the Ituri region of the drc, killing ‘a minimum’ of 60 people ‘including a significant number of women, children and elderly persons’382 with ‘at least 33’ of this number being civilians.383 Having found that the attack was systematic, the majority did not go on to consider whether the attack was ‘widespread’. In dissent, Judge Van den Wyngaert found that the evidence did not support a finding that the attack was ‘systematic’384 and that it did not meet the ‘minimum threshold’ required for a crime against humanity.385 The decision of the majority in Katanga is significant. On one view, it appears to mark the smallest attack ever found to satisfy the chapeau elements of 381 (icc) Laurent Gbagbo – Confirmation, above n 235, [34]–[35]. 382 (icc) Katanga – Trial, above n 33, [841]. 383 (icc) Katanga – Trial, above n 33, [869]. 384 (icc) Katanga – Trial, above n 33, (Dissenting Opinion of Judge Van den Wyngaert), [205], [271]–[275]. 385 (icc) Katanga – Trial, above n 33, (Dissenting Opinion of Judge Van den Wyngaert), [264].

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crimes against humanity and the first time an attack has ever found to be ‘systematic’ but not also ‘widespread’. There are, however, significant flaws in the analysis of the majority judgment that tend to undercut its precedential value. First, as was pointed out by Judge Van den Wyngaert, the majority appears to view the actual scale of the attack as greater than the 30 civilian killings that it was able to find on the established evidence.386 Accordingly, the decision must be assessed on the basis that the majority accepted that the number of victims were ‘considerably more’ and that the majority proceeded on the basis that the number could not definitively be determined.387 The majority’s emphasis appears to be more on the death toll being at least 60 people.388 It may be worth noting that a un investigation into the attack on Bogoro concluded that there were around 260 killed and a further 70 missing.389 This appears more in line with the language used by the majority throughout its judgment.390 Secondly, the majority opinion undertakes very little analysis of when an attack will be ‘systematic’. The majority refers to the oft-cited statement that ‘systematic’ refers to the ‘organised nature of the acts of violence and the improbability of their random occurrence’ and the requirement of ‘patterns of crimes’.391 And, the majority draws the important distinction between the requirement of a ‘policy’ and the requirement that the attack be ‘­systematic’,

386 (icc) Katanga – Trial, above n 33, [869], [1137]; see also [179] (Dissenting Opinion of Judge Van den Wyngaert). 387 (icc) Katanga – Trial, above n 33, [839]. 388 (icc) Katanga – Trial, above n 33, [841]. 389 Letter dated 16 July 2004 from the Secretary-General addressed to the President of the Security Council, un Doc. S/2004/573 (16 July 2004) (‘Secretary-General’s July 2004 Letter to the sc President’), [65]. 390 See, for example (icc) Katanga – Trial, above n 33, [817] (‘from the outset of the attack on Bogoro, the combatants pursued and killed the inhabitants of the village – men, women and children – with machetes and firearms, even though they had no part in the fighting and were fleeing towards the Institute, into the bush or towards Waka mountain’), [824] (‘attackers pursued those who were fleeing the camp, villagers and combatants alike, killing many of them, including, again, women, children and elderly persons, and shooting or striking them with machets’), [836] (‘the battle of Bogoro claimed many victims. The village was littered with corpses, including those of women, children and elderly persons’), and [1137] (‘attackers relentlessly pursued, wounded or killed by machete and firearm the villagers who were in their homes, had taken flight, or were seeking refuge’). 391 (icc) Katanga – Trial, above n 33, [1123], citing Katanga – Confirmation, above n 20, [397]; (icty) Kordić – Appeal, above n 20; Blaškić – Appeal, above n 24; Kunarac – Appeal, above n 24; (ictr) Akayesu – Trial, above n 22; and Prosecutor v Nahimana (Appeals Chamber Judgment), Case No ICTR-99-52-A (28 November 2007) (‘Nahimana – Appeal’).

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­distancing itself from the earlier statements of the Pre-Trial Chamber.392 But the analysis stops there. The Chamber goes no further in discussing the significant wealth of jurisprudence on ‘systematic’ that has come out of the international tribunals – for example, the relevant factors listed by the ictr Trial Chamber in Akayesu and the icty Trial Chamber in Blaškić that were discussed by the majority in the Kenya Authorisation Decision. Similarly, the majority made no attempt to engage in whether or not crimes against humanity incorporates a requirement of scale. The majority did not consider the jurisprudence on ‘systematic’ in Akayesu and Blaškić that there be ‘substantial public or private resources’ used or that they be perpetrated on a ‘very large scale’ or involve the ‘repeated and continuous commission of inhumane acts’.393 Nor did the majority discuss the factual circumstances of any previous decision on crimes against humanity to ascertain whether the scale in this case was of sufficient scale. It may be that, given that the majority’s view that the numbers of deaths were likely to be much higher than those that it was able to account for, it did not consider scale to be an issue. However, it may alternatively be that the issue of scale was simply not considered at all. Perhaps for the same reason, the majority did not address: (a) any jurisprudence on the meaning of the terms ‘attack’ and ‘population’ under customary international law; or (b) the drafting history of the Rome Conference. Had it done so, it would have been apparent that both suggest that a minimum level of scale is required.394 Thirdly, when it came to determining whether the facts of the attack warranted the characterisation as a ‘systematic’ attack, as pointed out by Judge Van den Wyngaert, the majority’s reasoning contained numerous errors.395 The small victim count and the fact that very little detail was known about the nature of the deaths meant that a safe conclusion could not be reached that the targeting of civilians was ‘systematic’. Further, the fact that attackers made no distinction between combatants and the civilians cannot per se demonstrate its systematicity. The key question is whether the acts were of sufficient number and similarity to demonstrate the requisite pattern of conduct. Given the small number of victims relative to the civilian population (at least 800396) and

392 (icc) Katanga – Trial, above n 33, [1111]–[1113]. 393 For a summary of the relevant jurisprudence on this point, see Chapter 9, Section 6.2.2. 394 See Chapter 9, Sections 2 and 5. 395 (icc) Katanga – Trial, above n 33, (Dissenting Opinion of Judge Van den Wyngaert), [270]–[275]. 396 (icc) Katanga – Trial, above n 33, [730].

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the number of military combatants killed (potentially between 70 and 120397), it is difficult to see how this can be established. Of the minimum of 60 victims, the majority was able to find that only 30 were deliberately killed and made no finding that all were killed by the same militia. Even assuming that all 60 victims were civilians deliberately killed by the one militia, it is still difficult (although perhaps not unarguable) that a ‘systematic’ attack could be said to have been launched given less than 10% of the civilian population would have been killed, the number military deaths would have exceeded and possibly doubled the number of civilian deaths, and the organisation was made up of thousands of combatants. It is difficult to see how the majority could be satisfied that the attack was ‘directed against’ the civilian population, let alone that such an attack was ‘systematic’. This conclusion essentially means that the factual situation found by the majority was that thousands of combatants attacked a village with the intent of wiping out its 800 civilians, but managed only to kill less than 10%. Judge Van den Wyngaert makes the further point that the majority appears to conflate the organisation of the military attack with the attack on the civilian population.398 This criticism has force. The fact that the military attack on Bogoro was coordinated does not therefore lead to the conclusion that the civilian deaths within that attack were also coordinated. And, this appears to be the logic impermissibly adopted by the majority. However, this finding should be considered in light of the majority’s factual finding – albeit a difficult one to reach on the evidence before the Court – that the military camp in the town was not the attackers’ ‘sole and prime target’399 but that the intention of the fighters was ‘first and foremost’ on wiping out the Hema civilians present.400 If – independently of evidence of the organisation of a military attack – it is concluded that the military operation is directed primarily at civilians, then the organisation of the attack may subsequently become relevant. It is worthy to note that a un investigation into Ituri suggests the findings of the majority were out of step with the way the conflict may have in fact actually occurred. The findings suggest that it is artificial to view the relevant ‘attack’ as being limited to the military campaign on Bogoro; rather the attack on Bogoro formed only a small part of a much larger attack by Ngiti and Lendu militants on the Hema population in Ituri.401 The un investigation estimated 397 (icc) Katanga – Trial, above n 33, [840]. 398 (icc) Katanga – Trial, above n 33, (Dissenting Opinion of Judge Van den Wyngaert), [275]. 399 (icc) Katanga – Trial, above n 33, [1136]. 400 (icc) Katanga – Trial, above n 33, [1155]–[1156]. 401 Secretary-General’s July 2004 Letter to the sc President, above n 389, [41]–[94].

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that 8,000 civilians were killed and more than 600,000 forced to flee Ituri between January 2002 and December 2003 alone.402 The judgment refers to one such attack – that on Nyankunde – but leaves out the majority of others. The unfortunate result is to render the focus on the attack on Bogoro artificial and unpersuasive. When such an incident is seen as only part of a larger series of attacks – as historically has been the case with crimes against humanity – it can be seen how the conclusion can more readily be reached that there has been an attack on a civilian population. The Bemba Gombo Trial Judgment does not make matters any clearer. The prosecution case was that the attack in question was ‘widespread’; no case was pressed that the attack was also ‘systematic’.403 The Trial Chamber found that the attack in question was ‘widespread’.404 As discussed above, however, the fundamental difficulty is that it is unclear from the judgment how large the attack actually was. The attack relied upon appears to have been an alleged course of conduct of murder, rape and pillage by mlc forces in the car over the course of some 4 ½ months between 26 October 2003 and 15 March 2003.405 The acts were said to have occurred during the course of a military operation being led by the mlc in and around 14 different villages.406 The number of atrocities committed against civilians is unclear from the judgment. The Chamber found 3 instances of murder,407 30 instances of rape408 and at least 27 instances of pillage.409 Yet, similarly to the majority in Katanga, the Chamber appeared to proceed on the basis that the attack was much larger than the instances identified. The Chamber found, for instance, that during the course of the attack, ‘acts of murder and rape were regularly committed’.410 It was said that in each village that came under the control of the mlc, the mlc troops adopted the modus operandi of engaging in such activities of murder and rape after the opposing military force (the forces of General Bozizé) had retreated from a particular area.411 402 Secretary-General’s July 2004 Letter to the sc President, above n 389, [1], [40]. 403 (icc) Bemba Gombo – Trial, above n 30, [65], [162]. 404 (icc) Bemba Gombo – Trial, above n 30, [684]. 405 (icc) Bemba Gombo – Trial, above n 30, [380]. 406 (icc) Bemba Gombo – Trial, above n 30, [688]. 407 (icc) Bemba Gombo – Trial, above n 30, [624]. 408 (icc) Bemba Gombo – Trial, above n 30, [633]. 409 (icc) Bemba Gombo – Trial, above n 30, [640]. 410 (icc) Bemba Gombo – Trial, above n 30, [673]. 411 (icc) Bemba Gombo – Trial, above n 30, [564].

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As is discussed above, there again appear to be considerable difficulties with the factual analysis conducted by the Chamber, stemming in a large part from the failure to clearly identify the scope of the relevant attack. The mlc troops present in the car during the relevant period numbered around 1,500.412 Further, like in Katanga, the mlc were in the relevant territory for legitimate military reasons. In the course of the campaign, both the mlc and Bozizé’s forces suffered ‘many casualties, including hundreds killed and wounded in action’.413 Also like in Katanga, the number of civilian victims appear to be much smaller than the general civilian population. As such, it is unclear – at least on the basis of the identified underlying crimes – that the attack could have been ‘widespread’ or directed against a ‘population’. 5.2.3 Conclusion Ultimately, while the early decisions of the icc have in many instances considered and followed the work of the international and internationalised tribunals as to the interpretation of crimes against humanity, early questions have arisen in relation to how the icc is to address the words ‘attack’ and ‘population’. In Chapters 8 and 9, the authors consider the Jurisprudence on the backdrop of the broader range of legal sources and put forward a thesis that under customary international law there must be a minimum requirement of scale or seriousness required for a crime against humanity under customary international law.414 The Trial Chamber judgments in Katanga and Bemba Gombo, in particular, both raise some concern that the icc has not yet grappled with the implications of the words ‘attack’ and ‘population’ in the definition of crimes against humanity, and how and to what extent those words in the icc Statute should be guided by the meaning under customary international law.415 Both issues are discussed in more detail in Chapter 9.416 Aside from the proper characterisation of these words, a more practical issue appears to have arisen. The early decisions of the icc suggest that the Court will be satisfied to find an ‘attack’ that meets the definition of crimes against humanity without fully detailing the underlying conduct said to form part of that attack. In both the Katanga and Bemba Gombo Trial Judgments, certain underlying incidents were identified but the Chamber suggested that there were in fact many more incidents forming part of the attack. This ­approach 412 (icc) Bemba Gombo – Trial, above n 30, [410]. 413 (icc) Bemba Gombo – Trial, above n 30, [563]. 414 See Chapter 8, Section 3. 415 See Chapter 8, Section 3. 416 See Chapter 9, Section 2 (regarding ‘attack’) and Section 5 (regarding ‘population’).

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is not necessarily wrong in principle. The nature of the crime means that it would be highly artificial to need to identify each and every act sought to be relied upon to found the attack. At the same time, a failure to provide a precise identification of the attack relied upon and the evidence sought to establish it, risks undermining the analysis by mischaracterising a particular incident and failing to properly assess whether it amounts to a crime against humanity. The analysis in Katanga and Bemba Gombo may usefully be compared to the analysis of Judge Fremr (with whom Judge Eboe-Osuji agreed) in the Ruto and Sang Decision on the Defence Application for Acquittal. While the latter concerned whether the requisite policy element was satisfied rather than whether there was an attack against a population, the case is a welcome example of the manner in which the evidence adduced by a prosecution and the inferences sought to be drawn must be carefully analysed. This is particularly so when inferences are said to be drawn from certain ‘patterns’ of conduct.417 5.3 The Requirement of a ‘State or organizational Policy’ at the icc Also fundamental among the developments so far has been the way in which the icc has started to grapple with the policy requirement. The three categories of cases referred to in this section each generally have different authors of violence. In the situations of state referrals, violence was authored by armed military groups with de facto control over territory. In the Security Council referrals, violence was authored by the State itself. In the proprio motu investigations (at least insofar as Kenya is concerned), the authors of the crimes have been something in between these two groups. Accordingly, the issue of a ‘state or organisational policy’ has to date been most relevant in the proprio motu situations – and in the situation of Kenya particularly. As discussed already, the application of the policy element has divided opinion in the icc. In the Kenya Authorisation Decision, and in subsequent confirmation decisions in respect of Kenya, the icc has been split most significantly on what non-State entities can constitute an ‘organisation’ for the purpose of Article 7 of the icc Statute. Judges Trendafilova and Tarfusser in the majority have found the element to be satisfied. The majority found that the formal nature of the group and the level of its organisation should not be the defining characteristic and instead, the question must be ‘whether the group has the capability to perform acts which

417 (icc) Ruto and Sang – Defence Application for Acquittal, above n 226, (Opinion of Judge Eboe-Osuji), [302].

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i­ nfringe on basic human values’.418 This could include ‘purely’ private individuals who were neither state-like nor with de facto power and the question is to be determined on a case-by-case analysis, taking into account a number of specified factors.419 Judge Kaul, in dissent, has persistently disagreed, finding that an organisation must be State-like.420 Private organisations may rise to this level if they meet the characteristics specified in his judgment.421 In the later Katanga Trial Judgment, the Chamber was again split. Judges Cotte and Dembélé Diarra in the majority followed a largely similar line of reasoning as the majority in the Kenya Authorisation Decision – albeit without explicitly engaging in any discussion of the decision. The majority considered that an organisation need not be state-like but need only to have a set of structures or mechanisms sufficient to enable the group to carry out the relevant attack.422 Judge Van den Wyngaert dissented, albeit in a way that largely left the point open. The judge considered that there was no ‘organization’ for the purposes of Article 7 ‘regardless of which definition of “organization” one adheres to.’423 Other decisions have not resolved the controversy. In the Gbagbo Confirmation Decision, the Chamber noted the controversy but explicitly stated that it was ‘unnecessary for the Chamber to dwell any further on this point’ as the ‘organization’ under consideration would satisfy the threshold under either formulation.424 In the Bemba Gombo Trial Judgment, the Chamber applied the reasoning in Katanga and considered that in light of that statement and its factual findings it did not consider it necessary to elaborate on the definition.425 In the Ruto and Sang Decision on the Defence Application for Acquittal, Judge Eboe-Osuji adopted an even broader interpretation. Judge Eboe-Osuji considered that no aggregate entity of any kind is needed, only that the action be understood to be a ‘coordinated course of action’ which could be committed even by a single individual.

418 (icc) Kenya – Authorisation, above n 26, [90], rejecting suggestions to the contrary by Schabas, above n 292, 152; and Bassiouni, above n 292, 244–245; see also Muthaura – Confirmation Decision, above n 256, [112]. 419 (icc) Kenya – Authorisation, above n 26, [93]; and Ruto – Confirmation, above n 268, [185]. 420 (icc) Kenya – Authorisation, above n 26, (Dissenting Opinion of Judge Kaul), [51]. 421 (icc) Kenya – Authorisation, above n 26, (Dissenting Opinion of Judge Kaul), [51]. 422 (icc) Katanga – Trial, above n 33, [1119]. 423 (icc) Katanga – Trial, above n 33, (Dissenting Opinion of Judge Van den Wyngaert), [206], [267] (see also [198]). 424 (icc) Laurent Gbagbo – Confirmation, above n 235, [217]. 425 (icc) Bemba Gombo – Trial, above n 30, [158].

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The issue has further divided academic opinion, with some supporting the majority426 and others endorsing the view of the dissenter.427 This discussion is picked up more fully in Chapter 9.428 The dispute in the Kenya Authorisation Decision in many ways embodies the broader tensions within crimes against humanity discussed in Chapter 4 and picked up again in Chapter 8. Whether or not his ultimate conclusion was correct, Judge Hans-Peter Kaul did outline the difference between a ‘serious’ domestic crime and an international crime such as crimes against humanity. The Judge pointed out that there are two key categories of crimes – first, ­international crimes of concern to the international community as a whole and secondly, crimes prosecuted by national criminal justice systems.429 In the context of crimes against humanity, this boundary is patrolled by the limitations of the chapeau elements to crimes against humanity (Section 7(2)(a) of the Rome Statute), which are properly seen less as elements of a particular crime and more as a ‘jurisdiction-endowing provision elevating ordinary crimes to the level of international crimes’.430 But what is the key element that distinguishes crimes against humanity as being crimes of international concern as opposed to merely domestic concern? It is here that the Kenya Authorisation Decision highlights a key divergence in opinion. On the one hand, the proponents of the broad view such as the majority in the Kenya Authorisation Decision appear to consider that the central nuisance to which crimes against humanity is addressed are crimes that are ‘widespread 426 Gerhard Werle and Boris Burghardt, ‘Do Crimes Against Humanity Require the Participation of a State or a “State-like” Organization?’ (2012) 10(5) Journal of International Criminal Justice 1151; Robinson, above n 337; and Leila Nadya Sadat, ‘Crimes Against Humanity in the Modern Age’ (February 2012) Legal Studies Research Paper Series Paper No. 11-11-04, accessed online via ssrn at . 427 Claus Kress, ‘On the Outer Limits of Crimes Against Humanity: The Concept of Organization within the Policy Requirement: Some Reflections on the March 2010 icc Kenya Decision’ (2010) 23(4) Leiden Journal of International Law 855; William Schabas, ‘Prosecuting Dr Strangelove, Goldfinger, and the Joker at the International Criminal Court: Closing the Loopholes’ (2010) 23(4) Leiden Journal of International Law 847; see also Charles Jalloh, ‘What Makes a Crime Against Humanity a Crime Against Humanity?’ (2013) 28(2) American University International Law Review 381 (appearing to endorse the view as a matter of law, but not policy). 428 See Chapter 9, Section 7. 429 (icc) Kenya – Authorisation, above n 26, (Dissenting Opinion of Judge Kaul), [8]. 430 (icc) Kenya – Authorisation, above n 26, (Dissenting Opinion of Judge Kaul), [26].

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or systematic’ regardless of the author of those crimes. The same approach can be seen in the majority in the Katanga Trial Judgment (who noted without discussion that the ‘hallmark’ of crimes against humanity was its ‘widespread or systematic’ nature of an attack and not the policy requirement431) and the reasoning of Judge Eboe-Osuji. On the other hand, as proponent of the narrow view, Judge Kaul argues that the particular nuisance to which crimes against humanity is addressed is where states or ‘state-like’ de facto powers perpetrate such crimes against their own people.432 Judge Kaul noted that, in the 20th Century, the most horrific crimes against civilian populations have taken place at the behest of sovereign states – ­Germany, Cambodia, Iraq, Rwanda and Yugoslavia (with perhaps Sudan being added to that list). It was these types of crimes that threatened the peace, security and well-being of the international order. Judge Kaul states that it is not just the fact that these crimes had been committed on a large scale, but also the fact that they were committed in furtherance of an inhumane policy – ‘the threat emanating from such a State policy is so fundamentally different in nature and scale that it concerned the entire community’:433 If leaders of a State who normally have the duty to uphold the rule of law and to respect human rights engage in a policy of violent attacks against a civilian population, it is the community of States which must intervene and prevent, control and repress this threat to the peace, security and well-being of the world.434 Others have argued, however, that the majority view better understands the ‘modern’ position where non-state actors can perpetrate widespread and systematic violence in the same way.435 On this view, if a group of people are able to commit a widespread or systematic attack against a civilian population, the effect on the victims is the same regardless of whether it is connected with a state.436 Judge Kaul held that there are important policy reasons why ‘the existing demarcation line between those crimes must not be marginalized or 431 (icc) Katanga – Trial, above n 33, [1111]. 432 (icc) Kenya – Authorisation, above n 26, (Dissenting Opinion of Judge Kaul), [50]ff. 433 (icc) Kenya – Authorisation, above n 26, (Dissenting Opinion of Judge Kaul), [61]. 434 (icc) Kenya – Authorisation, above n 26, (Dissenting Opinion of Judge Kaul), [63]. 435 See, for example, Sadat, above n 426. 436 See Werle and Burghardt, above n 426, 1160.

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­downgraded, even in an incremental way’ (emphasis added).437 In the context of crimes against humanity:438 such an approach might infringe on State sovereignty and the action of national courts for crimes which should not be within the ambit of the [icc] Statute. It would broaden the scope of possible icc intervention almost indefinitely and […] might turn the icc, which is fully dependent on State cooperation, in a hopelessly overstretched, inefficient international court, with related risks for its standing and credibility. On the last point, Judge Kaul may be fairly criticized for allowing practical policy considerations to overly influence what should be a normative assessment. However, phrased slightly differently, the valid point may be made that international law is fundamentally about consensus of the international community. Affording a foreign tribunal the jurisdiction to adjudge crimes ­committed by another state is a fundamental invasion of state sovereignty and a controversial topic. Therefore, any view formed on the interpretation of the requirement of a ‘State or organizational policy’ must be guided by either the clear i­ntention of the drafters at the Rome Conference, or the interpretation of crimes against humanity under customary international law. Viewed through this lens, the basis for the proponents of the broad view for concluding that an ‘organization’ need not be ‘State-like’ must be viewed with caution. In the case of the Kenya Authorisation Decision and the Katanga Trial Judgment, the respective majorities appeared to rely on no primary sources and contained very limited analysis for the conclusion. This analysis is simply repeated without discussion in the Bemba Gombo Trial Judgment. In the Kenya Authorisation Decision, the court cited three reasons for its ­conclusion, after appearing to accept that the icc Statute was ‘unclear’ as to what group may qualify as an ‘organization’.439 First, while acknowledging a divergence in academic opinion, it simply stated that its preferred line of ­opinion was ‘convincingly argued’.440 However, the respective opinions were not discussed nor was any elaboration provided as to why it was more convincing. Secondly, it drew support from the 1991 ilc Draft Code – again ­without any

437 (icc) Kenya – Authorisation, above n 26, (Dissenting Opinion of Judge Kaul), [9]. 438 (icc) Kenya – Authorisation, above n 26, (Dissenting Opinion of Judge Kaul), [10]. 439 (icc) Kenya – Authorisation, above n 26, [92]; and Ruto – Confirmation, above n 268, [90]. 440 (icc) Kenya – Authorisation, above n 26, [92]; and Ruto – Confirmation, above n 268, [90].

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discussion or context.441 As was discussed in Chapter 3, the 1991 Code was a radical progressive step suggested in an absence of any state practice on which to base it, the ilc cannot convincingly be said to have seen its role as ‘codifying’ crimes against humanity and, in any event, its conclusions were controversial.442 Thirdly, it made the unpersuasive statement that the drafters would not have included the term ‘organization’ had they wished to exclude non-state actors.443 But of course, even if true, this does not clarify which non-state actors will qualify. In the Katanga Trial Judgment, the majority also relied on only three grounds for its conclusion to a similar effect. First, it relied upon the ordinary meaning of the word ‘organisation’ and the contextual implication that the organisation must be the author of the attack.444 Not only is there much to be said for the view that the word ‘organisation’ in the context of Article 7 is very much ambiguous given the significant breadth such a reading would apparently accord it, but it is in any event difficult to see how this conclusion can be reached without analysis of the travaux préparatoires or customary international law. As was discussed in Chapter 4, the drafters were far from clear on the meaning that was to be accorded to the term and the customary position at the time would not have supported such a broad reading.445 Secondly, the majority referred to the fact that the ad hoc Tribunals did not specifically require ‘quasi-State characteristics’ and that non-State actors could be perpetrators – citing only the Tadić Trial Judgment for this proposition.446 However, as discussed in Chapter 4, the Tadić decision stands only for the proposition that non-state actors may be perpetrators when acting pursuant to a State or non-state entity with de facto control over territory such as the Republika Srpska in the former Yugoslavia.447 Further, despite the balance of the international and internationalised Tribunals appearing to abandon the policy element following the icty Appeals Chamber decision in Kunarac,

441 (icc) Kenya – Authorisation, above n 26, [91], citing the ilc Commentary to the Draft Code, 103; and (icty) Blaškić – Trial, above n 21, [205] (individuals ‘with de facto power or organized in criminal gangs’ are just as capable as State leaders of implementing a largescale policy of terror and committing mass acts of violence’). 442 See Chapter 3, Section 3.3.2(iii) and 3.3.3. 443 (icc) Kenya – Authorisation, above n 26, [92]; and Ruto – Confirmation, above n 268, [92]. 444 (icc) Katanga – Trial, above n 33, [1119]. 445 See Chapter 4, Sections 5.2.4 and 6. 446 (icc) Katanga – Trial, above n 33, [1121]. 447 See Chapter 4, Sections 4.3 and 4.4.

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a ­comprehensive analysis of the jurisprudence of the tribunals reveals a much more complicated picture.448 Thirdly, the majority considered that any other conception of an ‘organisation’ would not further the Statute’s goal of prosecuting the most serious crimes’.449 It is difficult to imagine a better example of circular reasoning – the definition of a crime can hardly be expanded by stating that it is important to prosecute the crime. And if the majority here is really reiterating its point that the ‘hallmark’ of crimes against humanity is the ‘widespread or systematic’ aspect, it provides no analysis of why that is so. Chapters 8 and 9 will put forward the view that a proper analysis demonstrates the error of this view. While the reasoning of Judge Eboe-Osuji in the Ruto and Sang Decision on the Defence Application for Acquittal is much more detailed than other judgments, it similarly does not analyse the key primary sources leading up to creation of the icc Statute. The reasoning relies almost entirely on the contention that a purposive reasoning is to be given to the term with its primary concern being ensuring that the icc has plenary jurisdiction to prosecute atrocities whoever their authors may be. Yet, in the case of ambiguity or absurdity, it is those supplementary sources and customary international law that should be looked to in determining the proper interpretation of words in a treaty. Across all three judgments, when the icc has come to analyse whether the entity in question was an ‘organisation’, one gets the sense that the true question is somehow being lost. In the Katanga Trial Judgment, the question was whether the Ngiti combatants of Walendu-Bindi collectivité were an ‘organization’. Once the requirement that an ‘organisation’ be ‘state-like’ is rejected, the judgment appears to be lost in the arbitrary discussion of whether the group is sufficiently organised and structured to reach a nebulous notion of ‘organisation’ with the assistance of no objectively identifiable standards. Neither the majority nor Judge Van den Wyngaert engage in any discussion of the jurisprudence on the policy requirement or attempt to discern what the overarching purpose or raison d’être behind the policy element really is. The same can be seen in the Bemba Gombo Trial Judgment. There is a discussion of various factors that point to the mlc being an ‘organisation’ while the most important factor was not even discussed. That is, the case concerned a group who had been invited into the car by the car authorities and had control over the relevant territory in the car at the time the crimes were said to be committed.

448 See Chapter 5, Section 3.8. 449 (icc) Katanga – Trial, above n 33, [1122].

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This appears to be the concern picked up by Judge Eboe-Osuji in the Ruto and Sang Decision on the Defence Application for Acquittal. In that case, the discussion of the alleged ‘Network’ – a term used by the prosecution rather than any of the alleged members of that group – appeared artificial and removed from what was occurring on the ground. What was occurring on the ground appeared to be a dramatic flashpoint of violence that was alleged to be encouraged by various ethnic and political leaders at the politically unstable time of presidential elections. Ultimately, Chapter 8 will put forward the thesis as to how the question of the policy element is resolved under customary international law after taking a comprehensive account of all relevant considerations.450 Chapter 9 then summarises how this discussion applies to interpreting the policy element in Article 7 of the icc Statute.451 In short, it is contended that the true touchstone must not be an abstract consideration of the word ‘organisation’ but a clear understanding of what role the term serves, namely, to ensure a proper balance between the protection of human rights and undue intrusion onto a state’s sovereignty. 5.4 The icc and Customary International Law The practice of the icc is fundamental to a proper understanding of crimes against humanity under customary international law. This will only become more so as the jurisprudence on the icc develops. Accordingly, it becomes increasingly important to ask how this impacts on crimes against ­humanity under customary international law. Most obviously, the decisions should certainly be seen to contribute to customary international law. For instance, the fact that the Pre-Trial Chambers have been very willing at times, and in certain respects, to draw principles from the ad hoc Tribunals should serve to strengthen the precedential value that they have. This is particularly clear from the Pre-Trial Chamber decisions in Katanga and Bemba Gombo, which have subsequently been followed within the icc in a number of respects. Nonetheless, as discussed already in this text, these decisions must be read in light of the jurisdiction they exercise. As already noted above,452 the icc chambers are interpreting the icc Statute and not customary international law. In interpreting what weight to be given to icc decisions in discerning customary international law, this means that any decision must be read ­carefully. 450 See Chapter 8, Section 4.9. 451 See Chapter 9, Section 7. 452 See section 5.1 above.

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As discussed above, what weight they should be given will in part depend upon the role that the icc ascribes to the various other sources of customary international law. To the extent that those sources are eschewed in favour of a strict reliance on the actual text of the icc Statute or elements of crimes, the precedential value of those decisions may be more limited. Illustrative of this consideration is the policy element. As will be discussed in Chapter 8, the view of this text is that customary international law requires a policy element of some sort to establish a crime against humanity. As will become clear, this view is particularly influenced by the fact that the icc Statute includes the requirement of a ‘State or organizational policy’. Accordingly, the interpretation of that element will be of key importance in understanding the policy element under customary international law. That said, this does not mean that the policy element under customary international law will be the same as that under the icc Statute. Given the protections to states built into the icc Statute, the concerns as to state sovereignty may have a lesser role to play.

Chapter 7

State Practice after the Rome Conference of 1998 … it is really our certainty that genocide or torture is illegal that allows us to understand state behaviour and to accept or reject its legal message, not state behaviour itself that allows us to understand that these practices are prohibited by law.1

∵ 1

Introduction

Chapter 5 considered the decisions of the ad hoc international and i­ nternationalized tribunals. It noted that while the decisions of these tribunals purport to state the elements for crimes against humanity under customary ­international law, their reasoning should be carefully analysed on controversial points – and particularly where they deviate from Article 7 of the icc Statute. Chapter 6 ­examined the decisions of the icc, and observed that it would be too ­simplistic and premature to regard Article 7 as codifying the crime’s content as a matter of customary international law outside the context of the icc Statute. This chapter examines developments at the state level since the Rome ­Conference of 1998. The aim is to assess the way in which states have reconciled differences between the position of the international and internationalized tribunals and the icc Statute. Particular attention is paid to whether such state developments can be regarded as acceptance by states of Article 7 as the most authoritative international definition of crimes against humanity. Further, and consistent with the view in this text that one ought to consider both the elements of this international crime and the jurisdiction being exercised, this chapter highlights the particular rules of jurisdiction in the selected countries. In particular, it explores the extent to which state courts have been granted extra-territorial jurisdiction and retrospective jurisdiction over such crimes. 1 Martti Koskenniemi, ‘The Pull of the Mainstream’ (1990) 88 Michigan Law Review 1946, 1952.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004347687_008

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This chapter does not purport to undertake an exhaustive analysis of the position of each state on crimes against humanity.2 Rather, it seeks to take a cross-section of countries by looking at those countries that have had some particular involvement with the concept of crimes against humanity (usually through conducting trials for crimes against humanity). Further, additional countries are considered, so that the sample of countries is representative of both the civil law and common law traditions, as well as all the major geographical regions.3 Finally, it should be noted that some care should be taken in reaching definitive conclusions in respect of many of the states considered, as the information available is often extremely limited or translated from a language other than English. In respect of each country examined, consideration is broken down into an analysis of the legislation relevant to crimes against humanity and the jurisprudence (if any) in applying that legislation in the context of crimes against humanity. 2

Western (Common Law) States

2.1 Australia 2.1.1 Legislation As noted in Chapter 3, the War Crimes Amendment Act 1989 (Cth) made ­punishable ‘war crimes’ committed in Europe between 1 September 1939 and 2 According to Bassiouni, 55 states have legislation criminalising crimes against h ­ umanity: M.  Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary A ­ pplication (Cambridge University Press: Cambridge, 2011) 660–661 (Albania (2001), ­Argentina (2007), Australia (2002), Bangladesh (1973), Belarus (2001), Belgium (2003), Bosnia and Herzegovina (2003), Burkina Faso (2009), Burundi (2003), Canada (2000), Chile (2009), Congo Brazzaville (1998), Costa Rica (2002), Croatia (2003), Cyprus (not known by author), Democratic Republic of the Congo (2005), El Salvador (not known by author), Estonia (2002), Ethiopia (1957), Fiji (2009), France (1994), Georgia (2003), Germany (2002), Indonesia (2000), Iraq (2005), ­Ireland (2006), Israel (1950), Kenya (2008), Lithuania (2000), The Former Yugoslav ­Republic of Macedonia (2003), Mali (2001), Malta (2002), Montenegro (2003), the ­Netherlands (2003), New Zealand (2000), Niger (2003), Norway (2008), Panama (2007), Philippines (2009), Portugal (2004), Republic of Korea (2007), Romania (2014), Rwanda (2003), Samoa (2007); Senegal (2007), Serbia (2005), Sierra Leone (2002), South Africa (2002), Spain (2004), Sudan (2009), Timor Leste (2009), Trinidad and Tobago (2006), Uganda (2008), ­United Kingdom (2001), and Uruguay (2006)). 3 See Bassiouni, above n 2, Chapter 9, particularly Sections 3.1–3.3. A more extensive list of prosecutions is available online at .

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8 May 1945.4 This included only the persecution-type crimes of Article 6(c) of the London Charter and only when committed during the war. Since then, the International Criminal Court Act 2002 (Cth) and International Criminal Court (Consequential Amendment) Act 2002 (Cth) introduced the offences of crimes against humanity into domestic law broadly in terms of Article 7 of the icc Statute.5 As for the geographical ambit of these crimes, Section 15.4 (read with Section 268.117) of the Criminal Code (Cth) provides that the offence applies regardless of whether or not the physical elements of the offence occurred in Australia. Accordingly, Australian courts have universal jurisdiction over crimes against humanity. Unlike the case for most ordinary crimes, however, which are instituted by independent public prosecutors or may be instituted by private prosecutions, proceedings can only be commenced with the AttorneyGeneral’s written consent.6 2.1.2 Jurisprudence As discussed in Chapter 3, the War Crimes Amendment Act 1989 (Cth) was considered by the Australian High Court in Polyukhovich v The Commonwealth.7 Since the enactment of the new icc legislation, no trials have yet taken place. This legislation was, however, tested on 24 October 2011, when an Australian citizen, Arunachalam Jegatheeswaran filed an indictment against the President of Sri Lanka, Mahinda Rajapaksa, for war crimes and crimes against humanity committed during the Sri Lankan civil war in 2007–2008.8 Jegatheeswaran alleged that Sri Lankan forces had deliberately targeted civilians and civilian infrastructure in its efforts to destroy the Tamil Tiger resistance. Charges were laid in the Melbourne Magistrates’ Court in anticipation of Rajapaksa’s arrival in Perth, Australia for the Commonwealth Heads of Government Meeting (chogm). 4 See Chapter 3, Section 4.2. 5 (Australia) See Criminal Code Act 1995 (Cth), ss 268.8–268.23. 6 (Australia) See Criminal Code Act 1995 (Cth), Division 267.127. 7 (Australia) (1991) 172 clr 501 (‘Polyukhovich’), discussed in Chapter 3, Section 4.2. 8 Michael Gordon, ‘Sri Lankan President Accused in Australian Court’, The Age (25 October 2011), accessed online at on 10 February 2013; and Jerry Votava, ‘Australian Citizen Files War Crimes Charges against Sri Lanka President’, Jurist (24 October 2011), accessed online at on 10 February 2013. See also generally, Anna Hood and Monique Cormier, ‘Prosecuting International Crimes in Australia: The Case of the Sri Lankan President’ (2012) 13(1) Melbourne Journal of International Law 1.

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Within a day of filing the indictment, however, the then-Attorney-General, Robert McClelland stepped in and quashed the indictment.9 A spokesperson for the Attorney-General stated that consent for the prosecution was not ­granted as the ‘continuation of the proceedings would be in breach of domestic law and Australia’s obligations under international law’.10 The later statement presumably is based upon the assumption that a serving head of state has immunity before another country’s courts. The concept of crimes against humanity has been considered in a migration context in appeals against refusals of asylum on the grounds that there was reason to think the person had engaged in crimes against humanity.11 In that context, the Australian Full Federal Court in sryyy v Minister for Immigration & Multicultural & Indigenous Affairs12 considered whether Article 7 of the icc Statute was the appropriate definition of crimes against humanity to apply in an asylum seeker context even prior to the icc Statute coming into force in 2002. The Court held that it was (at least after the Rome Conference):13 In our view the Rome Statute was drawn up to provide for the crimes it defined and purported to define those crimes as crimes that had crystallised into crimes in international law as at the date of the Statute, notwithstanding that the Statute was to come into force, and the icc was to be established, at a later date. No challenge was made to the finding that the Liberation Tigers of Tamil Eelam (ltte or Tamil Tigers) had committed crimes against humanity.

9

Aja Styles and Michael Gordon, ‘Sri Lankan pm Will Not Answer War Crimes Claims’, S­ ydney Morning Herald (26 October 2011), accessed online at on 10 February 2012. 10 (Australia) No written reasons were provided, consistent with the Criminal Code Act 1995 (Cth), s 268.121(1). 11 Article 1F of the Convention Relating to the Status of Refugees 1951 provides: ‘The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) he has committed a crime against peace, a war crime, or a crime against humanity , as defined in the international instruments drawn up to make provision in respect of such crimes; (b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) he has been guilty of acts contrary to the purposes and principles of the United Nations.’ 12 (Australia) [2005] fcafc 42 (‘sryy – Full Federal Court’). 13 (Australia) sryy – Full Federal Court, above n 12, [75].

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In another decision, the Full Federal Court specifically did not decide whether the same conclusion followed prior to 1998.14 In a decision concerning actions of the Afghani security forces in the 1980s, the Full Federal Court proceeded on the apparent basis that the relevant test to be applied was that there was ‘a systemic pattern of persecution aimed at members of an identifiable group within the civilian population’.15 This appeared to be distinct from ‘isolated or random acts against individuals’.16 While there was no discussion on this point by the Court about whether the war nexus applied, one of the administrative tribunals referred to held that the war nexus at Nuremberg was ‘designed to limit the jurisdiction of the International Tribunal, not to restrict the definition of crimes against humanity’ and that Tadić held it to be settled that no nexus was required.17 Other decisions have appeared to accept findings of crimes against h ­ umanity in respect of actions by the Sri Lankan security forces against Tamil civilians,18 Afghani security forces against civilians19 and actions by Maoist g­ uerrillas in Nepal,20 but where the correctness of the decisions were not disputed and no detailed discussion engaged in.

14 (Australia) vwyj v Minister for Immigration & Multicultural & Indigenous Affairs [2006] fcafc 1 (Full Federal Court), [26]. 15 (Australia) Applicant S214 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] fcafc 66 (Full Federal Court), [49] and [131]. See also first instance decision at Applicant S214 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] fca 1039 (Federal Court) (‘Applicant S214 – First Instance’), [40]–[42] and [48]. This appears to follow or adopt discussion in a number of administrative tribunals on the issue: see Re N96/1441 v Minister for Immigration and Multicultural Affairs (1998) 51 ald 459; [1998] aata 619 (‘Re N96/1441 – Administrative Tribunal’), [65] (following statements in Polyukhovich, above n 7; and (Canada) R v Finta [1994] 1 scr 701); see also “srnn” and Department of Immigration and Multicultural Affairs [2000] aata 983 (Administrative Appeals Tribunal), [72]–[75] (indicating that the Tribunal should ‘have regard to’ recent developments such as Article 7 of the icc Statute). 16 (Australia) See Tribunal decisions cited above at n 15. 17 (Australia) Re N96/1441 – Administrative Tribunal, above n 15, [70]–[74]. 18 (Australia) szitr v Minister for Immigration and Multicultural Affairs [2006] fca 1759 (Federal Court), [15]–[16]. 19 (Australia) shcb v Minister for Immigration & Multicultural & Indigenous Affairs [2003] fca 229 (Federal Court), [9]; sbar v Minister for Immigration & Multicultural & Indigenous Affairs [2002] fca 1502 (Federal Court), [22]. 20 (Australia) szcwp v Minister for Immigration & Multicultural & Indigenous Affairs [2006] fcafc 9 (although the Full Federal Court specifically declined to discuss the correctness of the conclusion: see [43]).

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In Tchoylak v Minister for Immigration and Multicultural Affairs,21 a first instance administrative tribunal (not a court) considered whether a member of the Front Islamique du Salut (fis) in Algeria had committed crimes against humanity. The fis was an organisation that conducted surveillance on and assassinated various members of the Albanian police force between 1992 and 1997. Matthews J considered with some hesitation that the Albanian police force was a ‘civilian population’, and found that the war nexus was a solely jurisdictional requirement at Nuremberg and that there was a ‘systematic’ attack. The Tribunal did not discuss the policy element or engage in any real discussion as to how the attack was said to be ‘systematic’. These findings were challenged on appeal but ultimately not determined as the Applicant was removed from Australia in the intervening period.22 2.2 Canada 2.2.1 Legislation Prior to the Rome Conference, Canada had made amendments to the Canadian Criminal Code to introduce the offence of crimes against humanity. This resulted in a number of (failed) prosecutions – most notably, R v Finta.23 Thereafter, Canada was the first country to introduce comprehensive legislation to incorporate the icc Statute.24 Canada enacted a new regime, the Crimes Against Humanity and War Crimes Act 2000 (cahwc Act). Sections 4(3) and 6(3) of the cahwc Act25 define crimes against humanity as acts or omissions which – at the time and in the place of their commission – are crimes against humanity according to customary international law, conventional international law or by virtue of their being criminal according to the general principles of law recognised by the community of nations.26 The legislation does not attempt to define customary international law or general principles of law, but rather states that the crimes defined in Article 7 21 (Australia) W98/45 and Minister for Immigration and Multicultural Affairs [1998] aata 948 (Administrative Appeals Tribunal) (‘Tchoylak – Administrative Tribunal’); Tchoylak v Minister for Immigration & Multicultural Affairs [2001] fca 872 (Federal Court) (‘Tchoylak – Appeal’), [14]–[16]. 22 Tchoylak – Administrative Tribunal, above n 21, [48]–[50]; Tchoylak – Appeal, above n 21, [14] –[16]. 23 (Canada) [1994] 1 scr 701. See discussion of this case in Chapter 3, Section 4.3. 24 Robert Currie and Ion Stancu, ‘R v Munyaneza: Pondering Canada’s First Core Crimes Conviction’ (2010) 10 International Criminal Law Review 829, 834. 25 Dealing respectively with crimes committed within and outside Canada. 26 See William Schabas, ‘Canadian Implementing Legislation for the Rome Statute’ (2000) 3 Yearbook of International Humanitarian Law 337.

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of the icc Statute are, as of 17 July 1998, crimes according to customary international law but that this does not limit or prejudice in any way the application of existing or developing rules of international law.27 Section 6(5) of the cahwc Act provides that crimes against humanity are crimes under either customary international law or the general principles of the law of nations before the signing of the London Charter on 8 August 1945. Extraterritorial jurisdiction over crimes against humanity is provided in s 8 of the cahwc Act by reference to broadly the same criteria as those listed in the Criminal Code pre-Finta,28 while addressing two of the jurisdictional difficulties under the previous Act. Under the previous Act, the universal jurisdiction provision only operated where Canada could have exercised universal jurisdiction ‘on the basis of the person’s presence in Canada’ under international law at the relevant time. As Currie and Stancu note, however, this raised the issue of whether Second World War crimes against humanity could be prosecuted at all given it was unclear that they existed prior to Nuremberg.29 Further, the crimes were only able to be prosecuted if they were offences against Canadian laws at the time (which meant that war crimes and crimes against humanity committed prior to 1987 had to amount to ordinary crimes such as murder and assault). The cahwc Act now allows prosecution in a case where crimes were perpetrated outside Canada where: first, the accused was at the time, or subsequently became, a Canadian citizen (or was employed by Canada in a civilian or military capacity) or was a citizen of or employed by a state engaged in an armed conflict against Canada or was present in Canada; secondly, the victim of the crime in question was a citizen of Canada or any state allied to Canada in an armed conflict; or thirdly, where the accused is ‘present in Canada’. Hence, under the third limb, only a very minimal link to Canada is required. Similar to the situation in Australia, no proceedings for an offence under any of ss 4–7, 27 and 28 may be commenced without the personal consent in writing of the Attorney General or Deputy Attorney General of Canada. Further, those proceedings may be conducted only by the Attorney General of Canada or counsel acting on his or her behalf.30 27 (Canada) cahwc Act, ss 4(4) and 6(4). 28 See Chapter 3, Section 4.3. 29 Currie and Stancu, above n 24, 835, citing Sharon A. Williams, ‘Laudable Principles Lacking Application: The Prosecution of War Criminals in Canada’, in Timothy McCormack and Gerry Simpson (eds), The Law of War Crimes: National and International Approaches (Kluwer Law International: Boston, 1997) 151, 162. 30 This is for the same reasons as discussed in relation to Australia above (at 2.1.1).

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2.2.2 Jurisprudence (a) Sivakumar and Mugesera The scope of crimes against humanity has arisen in a number of Canadian migration decisions. In Sivakumar v Minister of Employment and Immigration31 (Sivakumar), the Ottawa Court of Appeal considered an appeal from a former member of the Tamil Tigers who had been refused asylum on the grounds that he had committed crimes against humanity. In rejecting the appeal, the Court reached two important conclusions. First, after conducting a very brief review of various authorities, the Court concluded that:32 [a]lthough crimes against humanity usually involve state action or policy, it can no longer be said that individuals without any connection to the state, especially those involved in paramilitary or armed revolutionary movements, can be immune from the reach of international criminal law. Secondly, the Court held that the Tamil Tigers’ interrogation and killing of persons deemed to be traitors and the Sinhalese population were part of a systematic attack on that particular group of civilians.33 The Court did not make entirely clear, however, the factual basis upon which this conclusion was reached. The precedential value of Sivakumar is limited, however, by the fact that it was handed down prior to the Rome Conference in 1998. More substantive consideration was given to the offence by the Supreme Court in the decision of Mugesera.34 The case involved a review of a decision to deport Mugesera on the basis that there were reasonable grounds to believe he had committed a crime against humanity. The conduct in question involved a speech on 2 November 1992 by Mugesera in Rwanda. Mugesera was an active member of a hard-line Hutu political party opposed to a negotiation process under way to end the tribal war then taking place. He spoke to about 1,000 people at a meeting of the party in Rwanda. The content of the speech eventually led the Rwandan authorities to issue the equivalent of an arrest warrant against Mugesera, who fled the country shortly thereafter. In 1993, he successfully applied for permanent residence in Canada. In 1995, the Minister of Citizenship and Immigration commenced

31 (Canada) [1994] 1 fcr 433 (‘Sivakumar – Appeal’). 32 (Canada) Sivakumar – Appeal, above n 31, 8. 33 (Canada) Sivakumar – Appeal, above n 31, 11. 34 (Canada) Mugesera v Canada (Minister of Citizenship and Immigration) [2005] 2 scr 100 (‘Mugesera – Supreme Court’).

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­ roceedings to deport Mugesera on the basis that by delivering his speech, p he had, inter alia, committed a crime against humanity. An adjudicator concluded that the allegations were valid and issued a deportation order against Mugesera. The Federal Court of Appeal reversed several findings of fact made below and found the Minister’s allegations as to committing a crime against humanity to be unfounded. The Minister then appealed to the Supreme Court. The Supreme Court considered whether the speech could amount to ‘persecution’ as a crime against humanity. It accepted that the acts of persecution need not be limited, as they are in Article 7 of the icc Statute, to the listed acts but ‘[c]rimes against humanity should not be trivialized by applying the concept to fact situations which do not warrant the full opprobrium of international criminal sanction.’35 It followed the icty Trial Chamber in Kupreškić to hold that the alleged persecution, in order to satisfy the criminal act requirement, must reach the same level of gravity as the other enumerated underlying acts and must constitute a ‘gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law, reaching the same level of gravity as the other acts prohibited.’36 The Court also followed the jurisprudence of the icty to hold that a discriminatory intent is only required for the crimes of persecution, thereby overturning its previous decision in Finta to the extent it found to the contrary.37 It held that ‘hate speech’ may rise to the required level depending upon its content, finding that ‘[t]his is particularly likely if the speech openly advocates extreme violence (such as murder or extermination) against the target group, but it may not be limited to such instances.’38 It held the speech in question met this test. The Court then turned to the ‘contextual requirement’ and followed the approach of the ad hoc Tribunals as to the requirement for and meaning of ‘a widespread or systematic attack directed against a civilian population’.39 As to the need for some policy element, it concluded that while there was not currently a policy requirement, such a requirement may develop through instruments such as the icc:

35 (Canada) Mugesera – Supreme Court, above n 34, [141]. 36 (Canada) Mugesera – Supreme Court, above n 34, citing (icty) Prosecutor v Kupreškić et al. (Trial Chamber Judgment), Case No IT-95-16-T (14 January 2000) (‘Kupreškić – Trial’), [621]. 37 (Canada) Mugesera – Supreme Court, above n 34, [144]. 38 (Canada) Mugesera – Supreme Court, above n 34, [147]. 39 (Canada) Mugesera – Supreme Court, above n 34, [151]–[156].

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A contentious issue raised by the “widespread or systematic attack” requirement is whether the attack must be carried out pursuant to a government policy or plan. Some scholars suggest that limiting crimes against humanity to attacks which implement a government policy is necessary due to the nature and scale of such crimes: see, e.g., ­Bassiouni, at pp. 243–246. Others point out that the existence of a government policy has never been required and suggest that crimes against humanity take on their international character simply by virtue of the existence of a widespread and systematic attack: see, e.g., Mettraux, at pp. 270–282. The Appeals Chamber of the icty held in Prosecutor v. Kunarac, K ­ ovac and Vukovic that there was no additional requirement for a state or other policy behind the attack: Case Nos. IT-96-23-A & IT-96-23/1-A, 12 June 2002, at para. 98. The Appeals Chamber acknowledged that the existence of such a policy might be useful in establishing that the attack was directed against a civilian population or that it was widespread or systematic (particularly the latter). However, the existence of a policy or plan would ultimately be useful only for evidentiary purposes and it does not constitute a separate element of the offence (para. 98). It seems that there is currently no requirement in customary international law that a policy underlie the attack, though we do not discount the possibility that customary international law may evolve over time so as to incorporate a policy requirement (see, e.g., art. 7(2)(a) of the Rome Statute of the International Criminal Court, A/CONF. 183/9, 17 July 1998).40 The Court then concluded that, at the time of the speech (between 1 October 1990 and 22 November 1992), almost 2,000 Tutsi were massacred in Rwanda and in October 1990 approximately 8,000 people, 90 percent of them Tutsi, were falsely arrested on suspicion which ‘suggests a large-scale action directed against a multiplicity of victims.’41 Ultimately, however, the Court found that it did not need to find that the attack was ‘widespread’ as it was clearly systematic. The Court held that the attack was part of an unmistakable policy of the government and military.42 As for the term ‘population’, the Court appeared to state the test as being satisfied if the attack was directed against a ‘civilian population or other

40 (Canada) Mugesera – Supreme Court, above n 34, [157]–[158]. 41 (Canada) Mugesera – Supreme Court, above n 34, [159]. 42 (Canada) Mugesera – Supreme Court, above n 34, [160].

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i­ dentifiable group’.43 However, the Court did not appear to deviate from the jurisprudence from the ad hoc tribunals on this point, holding: The term “population” suggests that the attack is directed against a relatively large group of people who share distinctive features which identify them as targets of the attack. A prototypical example of a civilian population would be a particular national, ethnic or religious group. Thus, for instance, the target populations in the former Yugoslavia were identifiable on ethnic and religious grounds…. The Tutsi and moderate Hutu, two groups that were ethnically and politically identifiable, were a civilian population as this term is understood in customary international law.44 As for the mens rea requirement, the Court held ‘the accused must have knowledge of the attack and must know that his or her acts comprise part of it or take the risk that his or her acts will comprise part of it’.45 In the result, the Court upheld the deportation order. (b) The Munyaneza Case On 22 May 2009, Denis J of the Superior Court of Quebec delivered a conviction in Canada’s first prosecution under the new cahwc Act finding the accused, Desire Munyaneza, guilty of, inter alia, two counts of crimes against humanity via murder and sexual violence.46 Like Mugesera, Munyaneza concerned the Rwandan genocides. Munyaneza, the son of an important businessman in Butare, the second largest city in Rwanda, was found to have distributed weapons, pillaged stores, beaten and mistreated civilians, forcefully loaded people into vehicles for transportation and participation in roadblocks, and been involved in killing and sexually assaulting Tutsi civilians. The trial was by judge alone, with the accused opting to be tried without a jury. The trial saw the evidence of 66 witnesses, many of whom gave evidence in camera for fear of their safety, and 31 of whom gave evidence outside Canada (through 43 (Canada) Mugesera – Supreme Court, above n 34, [128], [151]. 44 (Canada) Mugesera – Supreme Court, above n 34, [161]–[163]. 45 (Canada) Mugesera – Supreme Court, above n 34, [173]. 46 (Canada) R v Munyaneza [2009] qccs 2201 (‘Munyaneza – Trial’). See also discussion in: Fannie Lafontaine, ‘Canada’s Crimes Against Humanity and War Crimes Act on Trial: An Analysis of the Munyaneza Case’ (2010) 8(1) Journal of International Criminal Justice 269; and Currie and Stancu, above n 24. Further, it should be noted that, on 6 November 2009, a second Rwandan, Jacques Mungwarere, was arrested and charged under the cahwc Act: see accessed online on 17 February 2013.

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the Canadian procedure known as ‘Rogatory Commission’)47 and cost around CAN$4 million.48 While the Quebecois Court could have exercised jurisdiction over Munyaneza on the basis of universal jurisdiction (namely, purely by virtue of the accused’s presence on the territory), Denis J instead relied on the fact that ­Munyaneza was resident in Canada – and in fact made no mention of the legislation’s extension to his mere presence.49 Insofar as the substantive elements of the offence are concerned, Denis J largely followed the caselaw of the ictr and the Canadian Supreme Court decision in Mugesera. A number of findings are worth noting. First, the Court found that the definition of ‘intentional killing’ under the cahwc Act was intended to be a reference to ‘murder’ as an underlying crime under international criminal law and understood these to be the three elements cited in the Brđanin Trial Chamber (discussed in Chapter 8), but noted that the ‘difference [to murder under the Canadian Criminal Code] is rather slim’.50 Insofar as mens rea was concerned, Denis J adopted the standard of the ad hoc tribunals as being in line with the Canadian notion of recklessness (namely, where death is ‘likely’ to result from the conduct51) rather than the potentially higher standard required by the icc (namely requiring foresight of risk that is certain or substantially certain52).53 Secondly, Denis J held that rape and sexual violence are similar under international law and Canadian law54 and followed Akayesu in finding that sexual violence was required to be committed ‘under circumstances which 47 48

Currie and Stancu, above n 24, 832. Les Perreaux, ‘Court finds Rwandan guilty of war crimes’, Globe and Mail (23 May 2009), accessed online at on 17 February 2013. 49 (Canada) Munyaneza – Trial, above n 46, [65]. 50 (Canada) Munyaneza – Trial, above n 46, [82]–[83], citing Mugesera – Supreme Court, above n 34, [130]; (icty) Prosecutor v Radoslav Brđanin (Trial Chamber Judgment), Case No IT-99-36-T (1 September 2004) (‘Brđanin – Trial’), [704]. 51 (Canada) Munyaneza – Trial, above n 46, [81]–[83]. However, as Lafontaine notes, the Supreme Court has nonetheless noted that this is only a ‘slight relaxation’ from ‘intention to kill’ in R v Cooper [1993] 1 scr 146, 154–155: see Lafontaine, above n 46, 277. 52 (icc) Prosecutor v Bemba Gombo (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo), PreTrial Chamber ii, ICC-01/05-01/08 (15 June 2009) (‘Bemba Gombo – Confirmation’), [357]– [369]. This standard is discussed in more detail in Chapter 10, Section 1.2.3. 53 (Canada) Munyaneza – Trial, above n 46, [118], [140]. 54 (Canada) Munyaneza – Trial, above n 46, [84], [87].

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are ­coercive’.55 This included: forcing a person to undress in public;56 sexual penetration; rape; and sexual molestation.57 As has been noted in Chapter 10, while the ad hoc Tribunals have moved on from this requirement – finding instead that the important element is a lack of consent rather than a presence of coercive circumstances58 – the icc Elements of Crimes require acts to be committed ‘by force, or by threat of force or coercion’.59 Thirdly, Denis J followed the Supreme Court in Mugesera in identifying the chapeau elements of crimes against humanity in line with the ad hoc ­Tribunals, including finding that an attack need only be widespread or systematic.60 ­Further, Denis J relied upon the icty Appeals Chamber in Kunarac to support the conclusion that an attack need not be the result of a state policy,61 but this, again, must be viewed in line with the Supreme Court decision that noted that a policy element had been incorporated into the Rome Statute and the definition of crimes against humanity may evolve to include such a requirement.62 This decision was upheld on appeal.63 Like at first instance, the Court ­largely followed the Supreme Court in Mugesera and the ad hoc Tribunals in defining the elements of crimes against humanity.64 Interestingly, however,

55 (Canada) Munyaneza – Trial, above n 46, [95], citing (ictr) Prosecutor v Akayesu (Trial Chamber Judgment), Case No ICTR-96-4-T (2 September 1998) (‘Akayesu – Trial’), [688]. 56 (Canada) Munyaneza – Trial, above n 46, [95], citing (ictr) Akayesu – Trial, above n 55, [598]; and Prosecutor v Semanza (Trial Chamber Judgment), Case No ICTR-97-20-T (15 May 2003) (‘Semanza – Trial’), [345]. 57 (Canada) Munyaneza – Trial, above n 46, [96]. 58 (icty) Prosecutor v Kunarac, Kovac and Vukovic (Appeals Chamber Judgment), Case No IT-96-23 & IT-96-23 (12 June 2002) (‘Kunarac – Appeal’), [127]–[133]. See also Robert Cryer et al., An Introduction to International Criminal Law and Procedure (Cambridge University Press: Cambridge, 2007) 210 (as discussed in Lafontaine, above n 46, 279). 59 See Max du Plessis, ‘icc Crimes’ in Ben Brandon and Max du Plessis (eds), The Prosecution of International Crimes: A Practical Guide to Prosecuting icc Crimes in Commonwealth States (Commonwealth Secretariat: London, 2005) 35, 50, cited in Lafontaine, above n 46, 279. 60 (Canada) Munyaneza – Trial, above n 46, [122]–[123], citing Mugesera – Supreme Court, above n 34, [156]. 61 (Canada) Munyaneza – Trial, above n 46, [114], citing (icty) Prosecutor v Kunarac, Kovac and Vukovic (Trial Chamber Judgment), Case No IT-96-23 & IT-96-23 (22 February 2001) (‘Kunarac – Trial’), [98]. 62 (Canada) Mugesera – Supreme Court, above n 34, [158]. 63 (Canada) Munyaneza v The Queen [2014] qcca 906 (‘Munyaneza – Appeal’). 64 (Canada) Munyaneza – Appeal, above n 63, [130]–[150].

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the Court made no mention of the policy element in setting out the elements of crimes against humanity – despite specifically mentioning that it was not a ­requirement in the context of genocide.65 This is especially confusing given that, on the one hand, it did not appear to deviate from the decision in Mugesera66 but, on the other hand, made numerous references that appeared to accept the icc Statute as ‘codifying’ the position under customary international law.67 (c) Post-Mugesera Decisions Crimes against humanity have been considered in a number of migration cases since Mugesera. In Ezokola v Minister for Citizenship and Immigration,68 the Canadian Supreme Court considered the modes of liability under international criminal law rather than crimes against humanity specifically. While not directly concerning Article 7 of the icc Statute, therefore, the Court held that ‘[d]espite its importance, the Rome Statute cannot be considered a complete codification of international criminal law’.69 The Court considered that ‘while our focus will remain on the most recent codification of international criminal law in the Rome Statute, we will also consider other sources, more particularly the jurisprudence of the ad hoc tribunals’.70 The Court did not deviate from the statements of principle in Mugesera as to the substantive aspects of crimes against humanity. In Shalabi v The Minister of Public Safety and Emergency Preparedness,71 the Federal Court of Canada considered an appeal from a Palestinian man who was refused a visa on the basis of reasonable grounds to suspect he had committed crimes against humanity. The Applicant served as a member of the Palestinian National Security Force (in particular the General Security Service of gss) from June 1994 to September 2000 and was alleged to have been involved in the arrest, detention and torture of prominent members of Hamas and ­Islamic Jihad.72 The Applicant contended that no crimes against humanity had been ­committed as the common purpose of the gss was not criminal but rather to 65 (Canada) Munyaneza – Appeal, above n 63, [179]. 66 (Canada) Munyaneza – Appeal, above n 63, [161]. 67 (Canada) Munyaneza – Appeal, above n 63, [24], [129], [152]. 68 (Canada) [2013] 2 scr 678 (‘Ezokola – Supreme Court’). 69 (Canada) Ezokola – Supreme Court, above n 68, [51]. 70 (Canada) Ezokola – Supreme Court, above n 68, [51]. 71 (Canada) 2016 fc 961 (‘Shalabi – Federal Court’). 72 (Canada) Shalabi – Federal Court, above n 71, [2]–[5].

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protect the Palestinian population from security threats by interrogating suspected terrorists.73 The Court rejected that argument:74 As to the argument that members of Hamas are terrorists and not part of a civilian population, it has been held that it is not necessary that the entire population of a region be the target. It is sufficient if the attack is directed against an identified segment of the population “rather than against a limited and randomly selected number of individuals”: Prosecutor v Kunarac et al., case no. IT-96-23/1A, Judgment, June 12, 2002 at para 90. The evidence from the Applicant before the id was that suspected Hamas members were specifically targeted at checkpoint stops where they were detained, interrogated and subjected to forms of physical and psychological torture. That Hamas, as terrorists, might try to kill the Applicant and harm the civilian population the Applicant was protecting only permits him and the gss to detain and question suspected members. The international community has determined that torture, as defined in the Act, is not an acceptable counter-terrorism tactic. […] Even if suspected Hamas members did not constitute a civilian ­population, the Applicant also admitted to detaining suspected drug dealers for interrogation. Drug dealers are another group identified in ngo ­reports as gss torture targets, and they are undoubtedly civilians. The Court further held that ‘[t]he Applicant’s broader argument that he was only involved in legitimate law enforcement also ignores the fact that a crime against humanity can be committed in pursuit of a legitimate security goal’.75 The gss had the system of checkpoints ‘to find and detail suspected ­terrorists – in part so that torture could be used to obtain intelligence in aid of that goal’. 2.3 New Zealand 2.3.1 Legislation The International Crimes and International Criminal Court Act 2000 creates the new offences of crimes against humanity (Section 10) by direct reference to ­Article 7 of the icc Statute. The Act has retrospective operation back to 1 ­January 1991, when the jurisdiction of the icty commenced.76 The Act grants 73 (Canada) Shalabi – Federal Court, above n 71, [19] and [36]. 74 (Canada) Shalabi – Federal Court, above n 71, [44]–[46]. 75 (Canada) Shalabi – Federal Court, above n 71, [48]. 76 (New Zealand) International Crimes and International Criminal Court Act 2000, s 8(4)(b).

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universal jurisdiction to the courts of New Zealand over these crimes and irrespective of presence in the jurisdiction.77 By s 13(1) of the Act, proceedings for crimes against humanity may not be instituted without the consent of the Attorney General. It is not clear whether the Act applies notwithstanding a person’s official c­ apacity. While the Act does not explicitly state that the offence may be committed regardless of a perpetrator’s official capacity, it is likely to do so by ­implication by virtue of its purpose being to implement the icc Statute.78 This view is supported by Section 31(1) of the Act, which provides that ‘[t]he existence of any immunity or special procedural rule attaching to the official capacity of any person is not a ground for … refusing or postponing the execution of a request for surrender or other assistance by the icc’. 2.3.2 Jurisprudence While there have been no criminal prosecutions for crimes against humanity, the crime has been considered in a migration context. In Attorney General v Tamil X,79 the Supreme Court of New Zealand considered an appeal from a refusal of asylum to a former member of the Tamil Tigers. In relation to the applicable law on crimes against humanity, the Court held:80 As earlier mentioned, the Rome Statute of the International Criminal Court, which came into force on 1 July 2002, is a recent international instrument which directly addresses the principles that govern liability for international crimes including those of particular relevance to this case. It is appropriate to refer to it for authoritative assistance on what is a “crime against humanity”. While the matter was not in dispute and no substantive discussion of the issues undertaken, the Court accepted that the actions of the Tamil Tigers could amount to crimes against humanity. After citing some 20 instances of attacks on civilians between 1985 and 1996, the Court held: It is also plain that the instances concerned demonstrate a course of conduct involving multiple proscribed acts of violence by the perpetrators in furtherance of the Tamil Tigers’ policy of committing such attacks. The 77 (New Zealand) International Crimes and International Criminal Court Act 2000, s 8(1)(c). 78 This is for the same reasons as discussed in relation to Australia above (at Section 2.1.1). 79 (New Zealand) [2010] nzsc 107; [2011] 1 nzlr 721 (‘Tamil X – Supreme Court’). 80 (New Zealand) Tamil X – Supreme Court, above n 79, [47].

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acts were part of an attack that was widespread because of the scale, frequency and seriousness of the incidents involving a multiplicity of victims. It was systematic because the incidents were part of an organised and regular pattern of violence. Further analysis is not required of the underlying acts by the Tamil Tigers. There has been no dispute in this proceeding that they constituted crimes against humanity. 2.4 The United Kingdom 2.4.1 Legislation The International Criminal Court Act 2001 (uk icc Act),81 by Section 51, makes crimes against humanity an offence. The offence is defined by reference to ­Article 7 of the icc Statute82 and in interpreting these crimes the courts in England and Wales are to take account of the Elements of Crimes adopted under Article 9 of the icc Statute and decisions of the icc but subject to any relevant uk reservations and declarations.83 The Act grants English and Welsh courts jurisdiction if the offence is committed in the uk or if committed ‘outside the uk by a uk national, a uk resident or a person subject to uk service jurisdiction’.84 According to Cryer and Bekou, as ‘a concession to those who criticized an early draft of the Act for not having any provision relating to universal jurisdiction’,85 Section 68(1)–(2) provides that proceedings may be brought against ‘a person who commits … [icc crimes] … outside the United Kingdom at a time when he is not a uk national, a uk resident or a person subject to uk service jurisdiction and who subsequently becomes a resident of the United Kingdom’ so long as the person is a resident of the United Kingdom when the proceedings are brought and the acts would have been an offence had they occurred in the United Kingdom. The meaning of ‘resident’ has been left undefined. Otherwise, there is no grant of universal jurisdiction.

This applies in England and Wales: see Robert Cryer and Olympia Bekou, ‘International Crimes and icc Cooperation in England and Wales’ (2007) 5(2) Journal of International Criminal Justice 441. The International Criminal Court (Scotland) Act 2001 is much shorter than its Westminster equivalent but the implementation of the core crimes follows a generally identical pattern. 82 (United Kingdom) See International Criminal Court Act 2001, s 50(1); and International Criminal Court (Scotland) Act 2001, Schedule 8. 83 (United Kingdom) International Criminal Court Act 2001, s 50. 84 (United Kingdom) International Criminal Court Act 2001, s 51(2)(b). 85 Cryer and Bekou, above n 81, 443. 81

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This was explained by the Minister of State in the House of Commons as follows: We have a long-established practice of taking universal jurisdiction only as part of international law. The problem is that the [icc] statute does not require universal jurisdiction, so we do not think that we should go it alone and universally say that we will do it all if the court will not do it … the principle is that we would not stand in the way of extradition to another State … or of transfer to the icc, but we cannot set ourselves up as a substitute court and go further than is proposed in the statute.86 As Baroness Scotland elaborated in the House of Lords: However, we remain of the view that where the person has no ties with this country, surrender to the icc or extradition to another State is the proper and most practical course. That approach is based on a realistic appraisal of what our criminal justice system, with its strong dependency on the principle of territoriality, is organised to deliver. It is also in line with the long-standing policy of this country not to take universal jurisdiction except as required by an international agreement. We do not believe that the uk should unilaterally take on the role of global prosecutor. Where a crime is committed with no clear nexus to the uk, it must be for the countries concerned to prosecute and for the icc to step in if they fail to do so. That is precisely the reason that we are establishing the International Criminal Court.87 According to Baroness Scotland, the Act was intended ‘to provide a robust regime which will prevent the United Kingdom [from] being, or being seen as, a safe haven for war criminals’.88 This has been called the ‘minimalist position’ compared with the way in which other countries, when incorporating the icc Statute into domestic law, have taken the opportunity to legislate for extraterritorial jurisdiction beyond the acts of their nationals or residents.89 86 (United Kingdom) England, Parliamentary Debate, House of Commons, 3 April 2001, vol 366, col 278, Minister of State. 87 (United Kingdom) England, Parliamentary Debate, House of Lords, 8 March 2001, vol 623, cols 418–419, Baroness Scotland. 88 (United Kingdom) England, Parliamentary Debate, House of Lords, 8 March 2001, vol 623, cols 418–419, Baroness Scotland. 89 See David Turns, ‘Aspects of National Implementation of the Rome Statute: The U ­ nited Kingdom and Selected Other States’ in Dominic McGoldrick, Peter Rowe and Eric

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Section 53(3) of the uk icc Act requires that proceedings for offences under the Act, such as crimes against humanity, shall not be instituted without the consent of the Attorney General. The House of Lords has held that whilst aggression may exist as a crime under customary international law, new criminal offences can only be created by Parliament, not the common law.90 Hence, the crime cannot have direct application in the uk without a local act of incorporation. The same reasoning probably applies to ‘crimes against humanity’ as it likely came into existence under customary international law at the same time as the crime of aggression – called ‘crimes against peace’ at Nuremberg.91 As a result, any prosecution for crimes against humanity in the uk must have the Attorney General’s consent. Finally, it should be noted that s 23(1) of the Act specifically provides that state or diplomatic immunity will not prevent extradition, but only insofar as State parties to the icc Statute are concerned. 2.4.2 Jurisprudence The definition of crimes against humanity was considered by the uk Supreme Court in R (js (Sri Lanka)) v Secretary of State for the Home Department.92 The Court considered an appeal from a refusal of an asylum application from a member of the Tamil Tigers. The Applicant became a member of the Tamil Tigers in 1992 and continued until around December 2006. Considering the definition of crimes against humanity, the Court held that:93 [i]t is convenient to go at once to the icc Statute, ratified as it now is by more than 100 states and standing as now surely it does as the most comprehensive and authoritative statement of international thinking on the principles that govern liability for the most serious international crimes…. While the Court did not undertake any analysis about whether or not the ­Tamil Tigers were an organization capable of committing an attack against a civilian population, the Court clearly concluded that it was:94 ­Donnelly (eds), The Permanent International Criminal Court: Legal and Policy Issues (Hart Publishing: Oxford, 2004) 337, 341–352. 90 (United Kingdom) R v Jones [2006] ukhl 16 (House of Lords). 91 See Chapter 2. 92 (United Kingdom) [2010] uksc 15 (‘R ( js (Sri Lanka)) – Supreme Court’). 93 (United Kingdom) R (js (Sri Lanka)) – Supreme Court, above n 92, [9]. 94 (United Kingdom) R (js (Sri Lanka)) – Supreme Court, above n 92, [10].

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The requirement that the listed criminal acts are widespread (the chapeau requirement as it has been called) needs no further consideration here nor, indeed, is it necessary to consider the detailed criminal acts listed. On the evidence before her the Secretary of State was amply entitled to conclude that the ltte in general, and the Intelligence Division in particular, were guilty of widespread such criminal acts and atrocities, the most obvious perhaps being suicide bombings, attacks upon civilians, assassinations, kidnappings and the forcible recruitment of children. I can therefore pass at once to Arts 25 and 30 of the icc Statute, those most central to the issue now before the court. A number of uk Tribunals appear to have also taken Article 7 as representing the applicable definition.95 2.5 The United States of America96 2.5.1 Legislation No criminal proscription for crimes against humanity exists in the United States. While a bill to criminalise crimes against humanity (the Crimes Against Humanity Act 2009) was proposed on 24 June 2009, it was ultimately defeated in 2010. The proposed Act largely followed the definition elaborated by the ad hoc Tribunals, although, interestingly, required that the underlying act be ‘part of a widespread and systematic attack…’ (emphasis added).97 In respect of jurisdiction, the Bill proposed to extend criminal jurisdiction only where the offence was committed ‘in whole or in part’ within the us, where the offender is a national or resident of the us, or where the person is a stateless person residing in the us.98 Further, a prosecution could not take place unless the Attorney-General certified that ‘there is no foreign jurisdiction that is prepared to undertake a prosecution for the conduct’ and

95 (United Kingdom) PA027222015 [2017] ukaitur (5 June 2017), Unreported Decision of the Upper Tribunal (Immigration and Asylum Chamber), [6]; mst & Ors v The Secretary of State for the Home Department [2016] ukut 443 (iac). 96 The authors would like to acknowledge the assistance of Allison Frankel with this section. 97 David Scheffer, ‘Closing the Impunity Gap in us Law’ (2009) 8(1) Northwestern Journal of International Human Rights 30, 40. 98 (United States) Crimes Against Humanity Act 2009, s 519(c).

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that a p ­ rosecution ‘by the United States is in the public interest and ­necessary to secure substantial justice’ and that the Secretary of State, the Secretary of Defence and the Director of National Intelligence do not object to the ­prosecution.99 The Act does, however, provide that statutes of limitations will not apply.100 More recently, crimes against humanity arose in the legislative context once again with the introduction of the Syrian War Crimes Accountability Bill to the Senate on 12 June 2017, following the failure of a former bill of the same name in Congress in 2015. The 2017 bill addresses United States assistance and support for accountability, transitional justice and reporting mechanisms arising from the commission of war crimes, crimes against humanity and genocide in Syria. It is noteworthy that while the bill provides definitions for ‘genocide’ and ‘war crimes’ in reference to the United States Code, no definition is provided in the Bill for ‘crimes against humanity’. At the time of writing, the Bill awaits debate by the Senate. While there is no criminal proscription of crimes against humanity, many a foreign official has been pursued in the civil courts for extraterritorial human rights abuses, including crimes against humanity, pursuant to the Alien Tort Claims Act 1789 (28 usc §1350) (ats). This permits a ‘civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States’.101 The jurisprudence that has developed is discussed below. 2.5.2 Jurisprudence In the course of cases under the ats, a number of courts have had reason to discuss and apply crimes against humanity. us courts have considered the ­substantive aspects of crimes against humanity in the context of the us,102 ­ 99 (United States) Crimes Against Humanity Act 2009, s 519(e). 100 (United States) Crimes Against Humanity Act 2009, s 519(d). 101 See Jayakumar Menon, ‘The Alien Tort Statute – Blackstone and Criminal/Tort Law Hybridities’ (2006) 4(2) Journal of International Criminal Justice 372; and William Aceves and Paul Hoffman, ‘Pursuing Crimes against Humanity in the United States: The Need for a Comprehensive Liability Regime’ in Mark Lattimer and Philippe Sands (eds), Justice For Crimes Against Humanity (Hart Publishing: Oxford, 2003) 239, 256–268. 102 (United States) Miguel Angel Morales v Governor Edmund Brown (Judgment), District Court for the Northern District of California, Case No 1:14-cv-01717-LJO-SAB (19 October 2015) (‘Morales v Brown – District Court’).

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China,103 the former Yugoslavia,104 Haiti,105 El ­Salvador,106 Chile,107 Guate­ mala,108 Columbia,109 Bolivia,110 Algeria,111 the Ivory Coast,112 Sudan,113 ­Uganda,114 Nigeria,115 Papua New Guinea,116 Vietnam,117 Sri Lanka118 and ­Palestine.119 103 (United States) Doe v Liu Qi et al., 349 F. Supp. 2d 1258 (N.D. Cal., 2004) (‘Doe v Liu Qi – District Court’). 104 (United States) Kadić v Karadžić, 70 F. 3d 232, 236–244 (2nd Cir., 1995). 105 (United States) Jean et al. v Carl Dorélien (Final Judgment), District Court for the Southern District of Florida, Miami Division, Case No 03-20161-CIV-KING/GARBER (16 August 2007). 106 (United States) Doe v Alvaro Rafael Saravia et al. (Findings of Fact and Conclusions of Law), District Court for the Eastern District of California, Case No CIV-F-03-6249 oww ljo (24 November 2004) (‘Saravia – Findings’). 107 (United States) Cabello v Fernandez-Larios, 402 F.3d 1148, 1154 (11th Cir., 2005) (‘Cabello v Fernandez-Larios – Appeal’). 108 (United States) Aldana v Del Monte Fresh Produce, N.A., Inc., 416 F.3d 1242 (11th Cir., 2005) (‘Aldana v Del Monte – Appeal’); Aldana v Del Monte Fresh Produce, 305 F. Supp. 2d 1285 (S.D. Fla, 2003) (‘Aldana v Del Monte – District Court’). 109 (United States) Doe v Drummond Co, 2010 us Dist. LEXIS 145386 (N.D. Ala., Apr. 30, 2010) (‘Doe v Drummond – District Court’); In Re Chiquita Brands International, 792 F. Supp. 2d 1301 (S.D. Fla, 2011) (‘In Re Chiquita Brands – District Court’). 110 (United States) Mamani v Berzaín, 654 F.3d 1148 (11th Cir., 2011) (‘Mamani v Berzaín – Appeal’). 111 (United States) Doe v Islamic Salvation Front (fis), 993 F. Supp. 3 (D.D.C, 1998) (District Court for the District of Columbia) (‘Doe v fis’). 112 (United States) 545 F.3d 733 (9th Cir., 2008) (‘Abagninin v amvac – Appeal’). 113 (United States) Presbyterian Church of Sudan v Talisman Energy Inc., 582 F. 3d 244 (2nd Cir., 2009) (‘Presbyterian Church v Talisman – Appeal’), on appeal from 374 F. Supp. 2d 331 (s.d.n.y., 2005) (‘Presbyterian Church v Talisman – District Court’). 114 (United States) Sexual Minorities Uganda v Lively, 960 F. Supp. 2d 304 (D. Mass., 2013) (‘Sexual Minorities Uganda – District Court’). 115 (United States) Bowoto v Chevron Corporation (Order Granting Defendants’ Motion for Summary Judgment on Plaintiffs’ Crimes Against Humanity Claim), District Court for the Northern District of California, Case No C 99-02506 si (14 August 2009) (‘Bowoto v Chevron’); Wiwa v Royal Dutch Petroleum Co., 1998 us Dist. LEXIS 23064 (s.d.n.y., Sept. 25, 1998) (‘Wiwa v Royal Dutch Petroleum – District Court’). 116 (United States) Sarei v Rio Tinto plc, 671 F.3d 736 (9th Cir., 2011) (‘Sarei v Rio Tinto – ­Appeal’); Sarei v Rio Tinto plc, 221 F. Supp. 2d 1116 (C.D. Cal., 2002) (‘Sarei v Rio Tinto – District Court’). 117 (United States) Loi v Dow Chemical Co (In re ‘Agent Orange’ Product Liability Litigation), 373 F. Supp. 2d 7 (e.d.n.y., 2005) (‘In re Agent Orange – District Court’). 118 (United States) Krishanthi v Rajaratnam, 2010 us Dist. LEXIS 88788 (d.n.j., Aug. 26, 2010) (‘Krishanthi v Rajaratnam – District Court’). 119 (United States) Sarei v Rio Tinto – Appeal, above n 116. See also Almog v Arab Bank plc, 471 F. Supp. 2d 257 (e.d.n.y, 2007) (‘Almog v Arab Bank – District Court’).

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This consideration may be broken up into the courts’ substantive consideration of crimes against humanity and the decisions on the jurisdiction of the courts. The majority of decisions occur in the context of preliminary applications for summary disposal rather than final decisions on the merits. (a) Crimes against Humanity The jurisprudence in the United States on the substantive definition of crimes against humanity is particularly important in three respects: first, on the extent to which Article 7 is seen as the authoritative definition of crimes against humanity; secondly, on the question of the minimum level of scale and seriousness required for a crime against humanity; and thirdly, on the policy element. While the cases have not been consistent in their application of the definition of crimes against humanity and, in particular, on whether Article 7 of the icc Statute is reflective of custom, the balance of authority favours an adoption of Article 7 as setting out the relevant definition. Appellate courts have often assumed the definition of crimes against humanity, without deciding. In Abagninin v amvac Chemical Corporation (Abagninin),120 the us Court of Appeals for the Ninth Circuit explicitly assumed that Article 7 set out the elements of crimes against humanity based on that assumption being made by the parties. In Sarei v Rio Tinto,121 the same court appeared to proceed without discussion on the basis that Article 7 did set out the applicable definition of crimes against humanity, although it did not decide the issue. In Presbyterian Church of Sudan v Talisman Energy,122 the us Court of Appeals for the Second Circuit noted that the Court of Appeals had never defined the term but that the first instance court had adopted a ‘generally serviceable’ definition being the modern definition referred to by the ad hoc Tribunals without any ­reference to the policy element or Article 7.123 Other Appeals Courts have also not decided the issue.124 120 (United States) Abagninin v amvac – Appeal, above n 112. 121 (United States) Sarei v Rio Tinto – Appeal, above n 116. While the case was vacated on jurisdictional grounds in light of Kiobel, this point was undisturbed: see Rio Tinto plc v Sarei, 133 u.s. Ct. 1995 (Apr. 22, 2013); Sarei v. Rio Tinto plc, 722 F.3d 1109 (June 28, 2013). 122 (United States) Presbyterian Church v Talisman – Appeal, above n 113. 123 (United States) It is worth noting that the first instance decision in fact found that there must be a widespread and systematic attack due to the fact that the attack must be ‘directed against any civilian population’: see Presbyterian Church v Talisman – District Court, above n 113, 481. The Appeal Court assumed without deciding that the Court in fact intended to define the crime as requiring a widespread or systematic attack: see Presbyterian Church v Talisman – Appeal, above n 113, 257 fn 6. 124 (United States) Cabello v Fernandez-Larios – Appeal, above n 107; and Aldana v Del Monte – Appeal, above n 108. In both cases, the Court referred to the modern definition

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First instance courts have been mixed but have generally favoured an interpretation consistent with Article 7. A number of decisions have held that ­Article 7 is the most authoritative definition. The District Court for the District of Eastern California in Doe v Saravia125 held that the ‘recent codification in the Rome Statute makes Article 7 an authoritative interpretation of crimes against humanity in international law’.126 Similar findings have been made in other decisions.127 Nonetheless, at least one Court has held that ‘the Rome Statute’s definition of crimes against humanity may be narrower in scope than the customary law definition’128 and many others have relied on a general definition without referring to the policy element and/or Article 7 (albeit at times being unclear whether doing so was an intentional departure from the other line of authority).129 The most common type of case has been allegations of crimes against humanity by states against its own citizens. For instance, the decision of the ­District Court for the District of Eastern California in Doe v Saravia130 provides a useful example of a ‘conventional’ crime against humanity.131 The Court ­entered default judgment against Alvaro Rafael Saravia, the ‘chief of security’ for the Major D’Aubuisson of the El Salvador Armed forces and participant in the paramilitary ‘death squads’ organised by D’Aubuisson. The defendant was found to have committed extrajudicial killing, and murder as a crime against humanity through his assassination of Archbishop Romero in El Salvador in 1980 – a vocal opponent of the repressive actions of the regime.

(without any reference to Article 7 or the policy element) without citing any authority and without any discussion. 125 (United States) Saravia – Findings, above n 106. 126 (United States) Saravia – Findings, above n 106, 1154–1155. 127 (United States) Morales v Brown, above n 102, 19–20; Doe v Liu Qi – District Court, above n 103, 1308; Wiwa v Royal Dutch Petroleum – District Court, above n 115, 27–30; Krishanthi v Rajaratnam, above n 118, 29–32 (following Abagninin v amvac – Appeal, above n 120); In re Agent Orange – District Court, above n 117, (while not clear, the Court appeared to accept a policy requirement); and Almog v Arab Bank – District Court, above n 119, 57–59. In Presbyterian Church of Sudan v Talisman – District Court, above n 113, the Court appeared to find that it was necessary that the attack was widespread and systematic (see discussion above at fn 123). 128 (United States) Mehinović v Vucković, 198 F. supp. 2d 1322, 1353 (n.d. Ga., 2002) (District Court for the Northern District of Georgia). 129 (United States) Sarei v Rio Tinto – Appeal, above n 116. 130 (United States) Saravia – Findings, above n 106. 131 (United States) For similar cases, see Chavez v Carranza, 2006 u.s. Dist. LEXIS 63257, *2 (w.d. Tenn. 2006) (‘Chavez v Carranza – District Court’), which also concerned crimes in El Salvador; and Cabello v Fernandez-Larios, above n 107 (concerning Chile).

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The Court noted that the recent conflict in El Salvador had its origin in the early concentration of all the land in El Salvador in the hands of a small number of wealthy businessman (known as the ‘14 families’). The Court noted that ‘[p]easants and workers were continually attacked in order to prevent them from organizing’.132 As new attempts to organise emerged in the 1960s – and a number of reformists began to emerge within the military – the security forces created paramilitary groups to ‘sow […] terror among the civilian population’, targeting ‘workers, peasants and priests … teachers, union leaders, doctors, and other professionals’.133 Following the installation of a reformist military leader after a coup in 1979, Major Aubuisson intensified his orchestration of death squads to carry out ‘widespread and brutal abductions throughout the late 70s and early 80s’.134 The Court considered that crimes against humanity’s ‘recent codification in the Rome Statute makes Article 7 an authoritative interpretation of crimes against humanity in international law’.135 But, the Court also adopted the principle applied in the ad hoc Tribunals that a single act may constitute a crime against humanity provided it is committed in the context of a widespread or systematic attack. Applying the definition to the case at hand, the Court found that the assassination took place ‘in an environment of state-sanctioned violence that was both widespread throughout El Salvador and constituted systematic, inhumane attacks on the civilian population by the ruling military’.136 In particular, ‘[t]he death squad which perpetrated the murder of Archbishop Romero acted as part of a calculated strategy by the military to terrorize the civilian population into submission’ and ‘[on] or about the same time other priests were being murdered by the military and death squads to deter their practice of liberation theology’.137 Other cases have had more difficulty identifying a crime against humanity where the relevant attacks have been of a smaller scale. In Mamani v Berzaín,138 the us Court of Appeals for the Eleventh Circuit addressed a claim brought by citizens of Bolivia against the former president and former defence minister of Bolivia for a number of violations concerning the suppression of protesters in La Paz between September and October 2003 by military and police personnel 132 (United States) Saravia – Findings, above n 106, [18]–[19]. 133 (United States) Saravia – Findings, above n 106, [24]. 134 (United States) Saravia – Findings, above n 106, [29]. 135 (United States) Saravia – Findings, above n 106, [84]. 136 (United States) Saravia – Findings, above n 106, [263]. 137 (United States) Saravia – Findings, above n 106, [263]. 138 (United States) Mamani v Berzaín – Appeal, above n 110.

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that resulted in various deaths and injuries. The plaintiffs alleged both extrajudicial killings and that such killings constituted a crime against humanity. The Court dismissed the claim. Relevantly for present purposes, the Court held that the plaintiffs had not clearly established that the deaths were extrajudicial killings. The Court considered that the incidents could have included accidental or negligent shooting, shooting for individual or personal reasons not linked to the state or other types of killing falling short of extrajudicial killing under international law. The Court similarly held that the plaintiffs had not clearly established a crime against humanity had been committed: The scope of what is, for example, widespread enough to be a crime against humanity is hard to know given the current state of the law. The Complaint’s factual allegations show that defendants ordered military and police forces to restore order, to rescue trapped travelers, to unblock roads (including major highways), and to ensure the capital city’s access to gas and presumably to other necessities during a time of violent unrest and resistance. According to plaintiffs, the toll – one arising from a significant civil disturbance – was fewer than 70 killed and about 400 injured to some degree, over about two months. The alleged toll is sufficient to cause concern and distress. Nevertheless, especially given the mass demonstrations, as well as the threat to the capital city and to public safety, we cannot conclude that the scale of this loss of life and of these injuries is sufficiently widespread – or that wrongs were sufficiently systematic, as opposed to isolated events (even if a series of them) – to amount definitely to a crime against humanity under already established international law. A claim of crimes against humanity was similarly dismissed by the District Court for the Southern District of Florida in Aldana v Fresh Del Monte Produce139 (affirmed on appeal140). On the evening of 13 October 1999 and into the following morning, an armed group of Guatemalans – with the acquiescence of the local mayor – kidnapped, detained and threatened 7 leaders of the Sindicato de Trabajadores del Banano de Izable, the labor union representing the workers at a certain banana plantation in Izabla, Guatemala. While the Court acknowledged that there was a backdrop of violence from Guatemalan ­authorities directed at large swathes of people, including scholars, s­ tudents,

139 (United States) Aldana v Del Monte – District Court, above n 108. 140 (United States) Aldana v Del Monte – Appeal, above n 108.

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human rights workers and judges, the link between the events of 13 and 14 ­October 1999 was too tenuous to form part of that backdrop.141 More difficult and controversial questions have arisen in the context of alleged violent suppression of protesters in Nigeria. In both Kiobel v Royal Dutch Petroleum142 and Wiwa v Royal Dutch Petroleum,143 the District Court for the Southern District of New York had little apparent difficulty concluding that a crime against humanity was established, albeit without any detailed discussion of the elements. In Wiwa, the Court undertook little analysis as to the how the chapeau was said to have been satisfied or of the factual basis for the relevant attack, except to say that the Nigerian authorites attacked Ogoni villages and stifled opposition to Shell’s oil-excavation activities by beating, raping and shooting Ogoni residents during various raids.144 In Kiobel, the Court appeared satisfied for the purposes of the dismissal application that the plaintiffs had alleged that the relevant actions occurred as part of a systematic attack against a civilian population.145 By contrast, after conducting a more detailed analysis, the District Court of the Northern District of California had considerable more difficulty identifying a crime against humanity in Bowoto v Chevron Corporation.146 The suit related to three instances between 1998 and 1999 where the Nigerian Government ­Security Forces (gsf) – allegedly with the assistance of Chevron – ­violently suppressed groups of protesters. The plaintiffs alleged that these actions formed part of the much wider pattern of violently suppressing individuals and communities who were alleged or perceived to be opposing petroleum development in the Niger Delta. While the judgment should be considered with some reserve given that it was a default judgment (i.e. not defended), the discussion in the decision is useful. The Court analysed two key precedents from the icty: the Limaj case and the Galić case. After citing extensively from Limaj (a case discussed in

141 (United States) Aldana v Del Monte – District Court, above n 108, 1299–1300; Aldana v Del Monte – Appeal, above n 108, 1247. 142 (United States) Kiobel v Royal Dutch Petroleum Co., 456 F. Supp. 2d 457 (s.d.n.y., 2006) (‘Kiobel v Royal Dutch Petroleum – District Court’). While the decision was later dismissed on jurisdictional grounds, the findings on crimes against humanity were not disturbed. 143 (United States) Wiwa v Royal Dutch Petroleum – District Court, above n 115. 144 (United States) Wiwa v Royal Dutch Petroleum – District Court, above n 115, [5] and [32]. 145 (United States) Kiobel v Royal Dutch Petroleum – District Court, above n 142, 466–467. 146 (United States) Bowoto v Chevron Corporation, above n 115. The decision was affirmed on appeal although without discussion of the substantive aspects of crimes against humanity: Bowoto v Chevron Corp., 621 F.3d 1116 (9th Cir., 2010).

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­ hapter 5), the Court concluded that there were two key factors in r­ ejecting C the applicability of crimes against humanity: first, ‘the raw numbers of victims in proportion to the overall population of the region’; and secondly, the level of precision with which the attackers selected their targets.147 The Court also cited from Galić, where the prosecution alleged that the Bosnian Serb forces undertook a two-year campaign of shelling and sniping in order to kill, maim and terrorise the civilian inhabitants of Sarajevo. In order to do so, the Prosecution presented 24 particular sniping incidents and 5 particular shelling incidents as a ‘small representative’ sample to prove the charge. The Court pointed out that, while the Trial Chamber considered it to be ‘implausible’ that these acts could in themselves amount to a ‘widespread or systematic attack’, the crime was nonetheless made out in the overall context where the ‘population’ targeted was the entire population of the large city of Sarajevo and the ‘widespread or systematic’ element was shown because the civilians were directly targeted and that the attacks resulted in ‘death to hundreds, and injury to thousands, over a two-year period’.148 Applying these principles, the Court found that the attack alleged was neither ‘widespread nor systematic’ nor directed against a ‘civilian population’.149 In relation to ‘the number of victims, in relation to the overall population’ – a matter the Court considered relevant for both the ‘widespread’ and the ‘civilian population’ requirements – the attacks by the gsf resulted in ‘hundreds of deaths and thousands of injuries, over a roughly ten-year period, in a region containing roughly 14 million inhabitants’. This compared with Galić where there were the same number of dead and injured but ‘over a two-year period in a single city’.150 Similarly, the court considered ‘the basis upon which the victims were targeted’ in accordance with Limaj.151 The Court considered that, ‘[i]f they [the 147 Citing (icty) Prosecutor v Limaj (Trial Chamber Judgment), Case No IT-03-66-T (30 November 2005) (‘Limaj – Trial’), [226]–[227]: the abductions ‘were relatively limited in number and involved relatively few abductees in comparison to the civilian population of Kosovo’ and that the detainees ‘were singled out as individuals because of their suspected or known connection with, or acts of collaboration with, Serbian authorities – and not because they were members of a general population against which an attack was directed’. 148 (United States) Bowoto v Chevron Corporation, above n 115, [10]–[11], citing (icty) Prosecutor v Stanislav Galić (Trial Chamber Judgment), Case No IT-98-29-T (5 December 2003) (‘Galić – Trial’), [206]–[208] and [583]–[598]. 149 (United States) Bowoto v Chevron, above n 115, [13]. 150 (United States) Bowoto v Chevron, above n 115, [13]. 151 (United States) Bowoto v Chevron, above n 115, [13]–[14]. (nb: The Court at this stage appears to mistakenly cite Limaj as Lujic.)

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victims] were targeted based on individualized suspicion of engaging in ­certain behaviour, then the attack was not “directed at a civilian population,” and was less likely to be “widespread”.’ The Court compared Limaj – where victims were targeted ‘because they were suspected of having collaborated with the Serbian authorities’ – with Galić – where the victims were targeted ‘merely because they were civilians, and lived in Sarajevo’. It was said that, in the present case (like Limaj), the victims of the gsf were targeted ‘because they were oil protestors, or because they were associated with oil protestors’. Even though the gsf were ‘not particularly selective in choosing their targets, the victims of the gsf were not targeted, as they were in Galić, simply because they were civilians’. The Court further stated that the atrocities pleaded ‘did not rise to the level in Galić’ or any of the other international cases relied upon, which arose out of the Holocaust, the Rwandan genocide and ethnic cleansing in the former ­Yugoslavia.152 Nor did it rise to the level of other cases considered by us courts involving atrocities in Latin America, such as Doe v Saravia.153 The Court ­noted that it was not shown ‘any analogous case, in which sporadic episodes of violence against communities perceived to be engaging in protest, over a very long ­period and among an extremely large population, met the [crimes against ­humanity] chapeau elements’. While the Court’s analysis is both useful and commendable, a number of issues with the analysis are discussed in Chapter 9.154 A number of cases have also considered whether an ‘attack’ has been perpetrated in the context of non-violent acts. On the one hand, in Morales v Brown,155 the District Court for the Northern District of California held that the housing of prisoners in an area susceptible to a particular disease did not amount to an attack directed against those inmates. On the other hand, in Sarei v Rio Tinto, the us Court of Appeals assumed, without deciding, that a blockade of food and medical supplies could amount to an attack against a civilian population.156 In that case, it was alleged that a blockade imposed by Papua New Guinean authorities on the people of Bougainville caused the death of

152 (United States) Bowoto v Chevron, above n 115, [14]. 153 The Court also referred to: Chavez v Carranza – District Court, above n 131, which also concerned crimes in El Salvador; and Cabello v Fernandez-Larios – Appeal, above n 107, concerning similar crimes committed in Chile. The crimes in Chile are discussed further below at Section 4.2. 154 See Chapter 9, Section 5.1.3. 155 (United States) Morales v Brown – District Court, above n 102, [26]. 156 (United States) Sarei v Rio Tinto – Appeal, above n 116; see also Sarei v Rio Tinto – District Court, above n 116, 1150.

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more than 2,000 children in its first two years and some 10,000 Bougainvilleans had died by 1997.157 In Presbyterian Church of Sudan v Talisman, the District Court for the Southern District of New York appeared to consider that the deportation of civilians to create a ‘buffer zone’ around certain oil fields in Sudan may amount to a crime against humanity, although it noted that the plaintiffs may face ‘significant evidentiary challenges’ in making the claim out.158 Nonetheless, it is difficult to characterise the attack as being non-violent. The Plaintiffs alleged that the government forced people to leave villages by ‘attacking the villages with any means necessary, including small arms fire, artillery, helicopter, gunships and bombers’.159 In a similar vein, the District Court for the Southern District of New York in Doe v Liu Qi160 considered a claim for inter alia the persecution of members and practitioners of Falun Gong by Chinese officials. It was noted that Chinese officials had outlawed the practice in 1999 and since then over 100,000 practitioners had been subjected to some form of punishment, including arrest, detention in prison facilities, labour camps and mental hospitals and torture such as beatings, starvation, electric shock and nerve-damaging drugs.161 The Court did not consider it appropriate to determine the claim in the default judgment application before it. The Peoples Republic of China submitted a letter to the Court indicating that the Falun Gong was banned as its followers had perpetrated crimes that have brought extremely grave damage to Chinese society and a threat to public security.162 In such circumstances, extending the claim to crimes against humanity ‘would require a determination into the bona fides, legitimacy and substantiation of the government’s purpose in suppressing the Falun Gong’.163 A more unusual case arose for consideration by District Court for the District of Massachusetts in Sexual Minorities Uganda v Lively,164 The plaintiff 157 (United States) Sarei v Rio Tinto – District Court, above n 116, 1126. 158 (United States) Presbyterian Church of Sudan v Talisman – District Court, above n 113, [319]–[320]. 159 (United States) Presbyterian Church of Sudan v Talisman – District Court, above n 113, [319]–[320]. 160 (United States) Doe v Liu Qi – District Court, above n 103. 161 (United States) Doe v Liu Qi – District Court, above n 103, 1266. 162 (United States) Doe v Liu Qi – District Court, above n 103, 1271. (nb: the us State Department also submitted a Statement to the Court urging against ‘sit[ting] in judgment on the acts of foreign officials taken within their own countries pursuant to their government’s policy’: at 1270–1271.) 163 (United States) Doe v Liu Qi – District Court, above n 103, 1309. 164 (United States) Sexual Minorities Uganda – District Court, above n 114.

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was a public interest group in Uganda that agitated issues relating to lesbian, gay, bisexual, transsexual and intersexual (lgbti) persons in Uganda. It alleged that a us-based pastor had aided and abetted a campaign of harassment and intimidation of the lgbti community in Uganda sufficient to amount to persecution as a crime against humanity. It was alleged that various derogatory material was disseminated and vocalised, at least two lgbti gatherings have been raided and the Plaintiff has not been permitted to register as a non-­ governmental organization.165 The Court ultimately refused to strike out the claim, although explicitly noting that it remained a matter for trial whether the allegations were proven or not.166 The Court held that the crime of ‘persecution’ as a crime against humanity could be committed against not only racial, religious or ethnic grounds but also against the lgbti community.167 The Court relied primarily on the fact that the ‘savings’ clause in Article 7(1)(h) of the icc Statute should be interpreted broadly. The Court also held that such persecution may in itself constitute an attack against a civilian population provided it was widespread or systematic.168 The Court relied in particular on the statement of the ictr Trial Chamber in Akayesu that an attack may be non-violent in nature. Both statements are controversial and, as discussed in Chapters 9 and 10, the conclusions are questionable. Various courts have also given consideration to matters relevant to the proper interpretation of the policy element, particularly when considering allegations that the ‘attack’ in question was perpetrated by a non-state actor. In Abagninin, the us Court of Appeals for the Ninth Circuit considered the policy element under Article 7 of the icc Statute. The plaintiffs were Ivory Coast workers who claimed that the chemical company, amvac, had perpetrated a crime against humanity by manufacturing, distributing and using a certain pesticide that caused male sterility and low sperm counts (dbcp) after knowing of its adverse health effects since the 1950s or at least 1970s. The first instance court dismissed the claim on the basis that the plaintiffs had not pleaded facts sufficient to amount to a crime against humanity. The Court of Appeals upheld that decision on the basis that amvac, a corporation, was not a state or state-like organization for the purposes of the policy element. While the Court assumed that the icc Statute accurately set out the definition of a crime against humanity, the Court appeared to go on to consider

165 (United States) Sexual Minorities Uganda – District Court, above n 114, [313]–[314]. 166 (United States) Sexual Minorities Uganda – District Court, above n 114, [319]–[320]. 167 (United States) Sexual Minorities Uganda – District Court, above n 114, [316]–[318]. 168 (United States) Sexual Minorities Uganda – District Court, above n 114, [318]–[319].

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the position under customary international law and what the policy element entailed. The Court held:169 The traditional conception regarding crimes against humanity was that a policy must be present and must be that of a State, as was the case in Nazi Germany. Prosecutor v. Tadić, IT-94-1-T, Judgment, P. 654 (May 7, 1997). This conception was expanded to include non-State entities which, although not a part of the legitimate government, have de facto control over a defined territory. Id. The weakening of the “State action” requirement occurred because unofficial militias loosely affiliated with the State and unaffiliated civilians perpetrated the crimes in Bosnia and Rwanda, respectively[:] David Luban, A Theory of Crimes Against Humanity, 29 Yale J. Int’l L. 85, 95–97 (2004). A common thread throughout these developments is that crimes against humanity are crimes committed through ­political organization. Id. at 97. De facto control thus requires control similar to that of a State or government, such as erecting checkpoints on main roads, increasing examples of command and control, developing civilian structures, and ­holding a substantial percentage of territory. Prosecutor v. Limaj, IT-0366-T, ­Judgment, PP. 213–214 (Nov. 30, 2005). Decisions from the International Criminal Tribunal for Rwanda require that actions by a non-State organization be “instigated or directed by a Government or by any organization or group,” as a way to exclude “the situation in which an individual commits an inhumane act … in the absence of any encouragement or direction from either a Government or a group or an organisation.” E.g., ­Prosecutor v. Kayishema &Ruzindana, ICTR-95-1-T, Judgment, PP. 124–126 (May 21, 1999). amvac was not a state and did not have control over territory such as to warrant the classification as an ‘organization’ capable of perpetrating an attack. The Court also held that the policy of the government of the Ivory Coast in purchasing and providing dbcp did not amount to a sufficient policy. For, it was not alleged that those acts amount to a policy to commit one of the enumerated acts, namely, to sterilize the plantation workers.170 The matter has also arisen in a number of first instance decisions. Following Abagninin, the District Court for the District of New Jersey in Krishanthi 169 (United States) Abagninin v amvac – Appeal, above n 120, 741. 170 (United States) Abagninin v amvac – Appeal, above n 120, 742.

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v Rajaratnam considered an allegation that the Tamil Tigers had committed an attack for the purposes of crimes against humanity.171 The Court appeared to consider that they could have committed a crime against humanity, noting that they had de facto control over territory.172 In Doe v fis, the District Court for the District of Columbia did not decide whether the Islamic Salvation Front (or fis) was a de facto power in circumstances where it had won the Algerian election but the election had been declared invalid and the fis banned.173 In Almog v Arab Bank plc, the District Court for the Eastern District of New York considered whether or not Hamas, the Palestinian Islamic Jihad, the Al Aqsa Martyrs’ Brigade and Popular Front for the Liberation of Palestine (pflp) committed crimes against humanity. It was alleged that such organisations engaged in suicide bombings and other murderous attacks on civilians in Israel, the West Bank and the Gaza Strip – killing and injuring thousands of civilians since around 2000.174 Without any detailed analysis of the policy element – or indeed the question of scale and seriousness – the Court found that crimes against humanity had been committed (at least on the pleadings).175 The case is on appeal at the time of writing.176 In In Re Chiquita Brands International,177 the plaintiffs were residents of Columbia who were family members of trade unionists, banana-plantation workers, political organisers and other social activists allegedly killed between 1990 and 2004 in Columbia by a paramilitary group known as the auc. Several thousand deaths are alleged to have occurred. While the Court did not discuss the policy element, the Court considered a crime against humanity was established on the pleadings. Significantly, however, a state policy was clearly found to be present. The Court found that the Columbian government played a role in creating, financing, promoting and collaborating with the auc in the common objective of fighting the leftist guerrillas (including joint membership, intelligence sharing and training and arming members of the auc).178 171 (United States) Krishanthi v Rajaratnam – District Court, above n 118. 172 (United States) Krishanthi v Rajaratnam – District Court, above n 118, [10]–[11]. 173 (United States) Doe v fis, above n 111, 3–4 and 15–17. 174 (United States) Almog v Arab Bank – District Court, above n 119, 260–261. 175 (United States) Almog v Arab Bank – District Court, above n 119, 275–277. 176 (United States) Litle v Arab Bank, plc, Case No. 16-2134 (2d Cir.). 177 (United States) In Re Chiquita Brands – District Court, above n 109. The case was overturned on appeal but on grounds of jurisdiction that did not affect the substantive discussion on crimes against humanity: Cardona v Chiquita Brands Intern, 760 F.3d 1185 (11th Cir., 2010). 178 (United States) In Re Chiquita Brands – District Court, above n 109, 1329–1330.

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The case is similar to other cases where violence perpetrated by militias was state-sponsored.179 Finally, mention should be made of In Re Agent Orange,180 where the District Court for the Eastern District of New York dismissed a claim of crimes against humanity against the us and Vietnamese authorities for use of Agent Orange during and after the Vietnam War in 1965 to 1975. While the question of the war nexus or the definition of crimes against humanity generally as at the time of the Vietnam War was not discussed in any detail, the Court considered that the use of Agent Orange could not amount to a crime against humanity at the time.181 This appeared to be on the basis that the use of the chemical was not contrary to international law and was deployed as a legitimate military tactic. (b) Jurisdiction While the atcs had an incredibly broad potential range of application, the us Supreme Court significantly narrowed the jurisdiction under the ats in its 2013 decision in Kiobel v. Royal Dutch Petroleum Co.182 Similarly to Bowoto v Chevron Corporation, Kiobel concerned allegations of former Nigerian residents of the Niger Delta area against Royal Dutch Petroleum for aiding and abetting a wide range of atrocities committed by the Nigerian gsf, including crimes against humanity. The Court dismissed the claim, albeit with two differing lines of reasoning. Chief Justice Roberts (writing the opinion of the majority of the court183), started with the principle that statutes are not to be construed as having extraterritorial application without a clear intention.184 The reason for this was ‘to protect against unintended clashes between our laws and those of other nations which could result in international discord’.185 This danger was 179 (United States) Doe v Constant, 04 Civ. 10108 (shs) (24 October 2006) (s.d.n.y., 2006) (‘Doe v Constant – District Court’), 4–5. 180 (United States) In re Agent Orange – District Court, above n 117. 181 (United States) In re Agent Orange – District Court, above n 117, 136. 182 (United States) Kiobel v Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013). 183 (United States) Kiobel v Royal Dutch Petroleum Co, above n 182, Opinion of Chief Justice Roberts (Justices Scalia, Kennedy, Thomas and Alito joining) (‘Kiobel – Majority Opinion’). 184 (United States) Kiobel – Majority Opinion, above n 183, 4. 185 (United States) Kiobel – Majority Opinion, above n 183, 4–5, citing an earlier Supreme Court Decision in eeoc v Arabian American Oil Co., 499 u.s. 244, 248 (1991) (‘Aramco – Decision’). The Court continued to cite the following passage from Aramco: ‘For us to run interference … in a delicate field of international relations there must be present the ­ affirmative intention of the Congress [i.e. the legislature] clearly expressed. It alone has

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‘­magnified’ in the context of the ats given its broad ambit186 especially where the Act ‘reaches conduct within the territory of another sovereign’.187 Roberts cj then concluded that this presumption was rebutted neither by the words nor the history of the Statute. The Court noted that, of the three norms in consideration at the time the Act was drafted, only one (‘piracy’) ­applied extraterritorially.188 But ‘pirates’, the Court concluded ‘may well be a category unto themselves’ given that the crime ‘typically occurs on the high seas’ and therefore does not ‘impose the sovereign will of the United States onto conduct occurring within the territorial jurisdiction of another sovereign’.189 Further, the Court noted that recent experience demonstrated that objections to the extraterritorial application of the ats had been received by Canada, Germany, Indonesia, Papua New Guinea, South Africa, Switzerland and the United Kingdom.190 In the result, Roberts cj concluded that in the case at hand the acta could not apply as ‘all the relevant conduct took place outside the United States’ and that ‘even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.’191 Justice Breyer, delivering a concurring opinion,192 also dismissed the case but for different reasons. The minority held that the presumption against extraterritoriality did not apply to the acta, which was clearly enacted with foreign matters in mind.193 Given its earlier decision in Sosa, the Court considered the primary question not to be the extraterritorial application of the statute,194

the facilities necessary to make fairly such an important policy decision where the possibilities of international discord are so evident and retaliative action so certain … The presumption … helps ensure that the Judiciary does not erroneously adopt an interpretation of us law that carries foreign policy consequences not clearly intended by the political branches.’. 186 (United States) Kiobel – Majority Opinion, above n 183, [5]. 187 (United States) Kiobel – Majority Opinion, above n 183, [6]. 188 (United States) Kiobel – Majority Opinion, above n 183, [9]–[10]. 189 (United States) Kiobel – Majority Opinion, above n 183, [10]–[11]. Cf. Opinion of Justice Breyer (Justices Ginsburg, Sotomayor and Kagan concurring) (‘Kiobel – Minority Opinion’), [4]–[5]. 190 (United States) Kiobel – Majority Opinion, above n 183, [13]. 191 (United States) Kiobel – Majority Opinion, above n 183, [14]. 192 (United States) Kiobel – Minority Opinion, above n 189. 193 (United States) Kiobel – Minority Opinion, above n 189, [3]–[4]. 194 (United States) Although the Court did note that certain limitations might apply such as the requirement of the exhaustion of local remedies, ‘serious weight’ be given to the view of the Executive’s view of the case’s impact on foreign policy, as well as interpreting

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but the question ‘who are today’s pirates?’195 The Court concluded that ‘today’s pirates include torturers and perpetrators of genocide’ on the basis that they are ‘common enemies of all mankind and all nations have an equal interest in their apprehension and punishment’.196 Accordingly, the Court considered that a cause of action could lie under the Act provided there were ‘sufficient ties to the United States’197 or ‘only where distinct American interests are at issue’.198 This included: first, where the conduct occurred in the us; secondly, where the defendant is a us national; or thirdly, where ‘the defendant’s conduct substantially and adversely affects an important American national interest, and that includes a distinct interest in preventing the United States from becoming a safe harbour (free of civil as well as criminal liability) for a torturer or other common enemy of mankind’.199 Accordingly, Breyer J would permit an action where the defendant had become a resident in the United States even where the conduct was abroad. The extent to which this extends to crimes against humanity is unclear. While the Court at another point suggested a broader list of international norms,200 the Court only went as far as to clearly identify torture and genocide as being among the list (albeit a non-exhaustive list). Naturally, the decision in Kiobel has given rise to a range of decisions concerning its scope, including the nature of the ‘touch and concern’ test201 and the application of the decision more generally.202

claims consistently with ‘those notions of comity that lead each nation to respect the sovereign rights of other nations by limiting the reach of its own laws and their enforcement’ (Kiobel – Minority Opinion, above n 189, [2]–[3]; see also at [13]–[14]). 195 (United States) Kiobel – Minority Opinion, above n 189, [3] and [5]. 196 (United States) Kiobel – Minority Opinion, above n 189, [5]. 197 (United States) Kiobel – Minority Opinion, above n 189, [2]. 198 (United States) Kiobel – Minority Opinion, above n 189, [7]. 199 (United States) Kiobel – Minority Opinion, above n 189, [1]–[2]. 200 (United States) The Court also cites §404 of the Restatement (Third) of Foreign Relations Law, which states that a ‘state has jurisdiction to define and prescribe punishment for certain offences recognized by the community of nations as of universal concern, such as piracy, slave trade’ and – these words added by the Court – ‘analogous behaviour’. However, the extent to which the Court intended to approve rather than simply to cite this provision is unclear. At [11], the Court again refers to §404. 201 See: (United States) rjr Nabisco, Inc. v European Community, 136 S. Ct. 2090 (2016); Salim v Mitchell, No. CV-15-0286-JLQ, 2017 wl 3389011 (e.d. Wa. Aug. 7, 2017) (‘Salim v ­Mitchell – District Court’); Doe i v. Nestle usa, Inc., 766 F.3d 1013 (9th Cir. 2014) (‘Doe i v Nestle – ­Appeal’); Doe v Drummond Co., Inc., 782 F.3d 576 (11th Cir. 2015). 202 (United States) For cases rejecting claims, see: Adhikari v Kellogg Brown & Root, Inc., 845 F.3d 184 (5th Cir. 2017); Baloco v Drummond Co., Inc., 767 F.3d 1229 (11th Cir. 2014);

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The question has arisen to a more limited extent in a criminal context. In a decision in an extradition context decided in 1985 – some 20 years prior to Kiobel – the us Court of Appeals held in Demjanjuk v Petrovsky203 that Israel could prosecute alleged Nazis and Nazi collaborators on the basis of universal jurisdiction ‘based on the assumption that some crimes are so universally condemned that the perpetrators are the enemies of all people’. It is not clear whether that logic remains good law in light of Kiobel and in light of subsequent state practice where crimes against humanity has sought to be applied outside the context of a war nexus and outside the context of Nazi Germany. The Second Circuit Court of Appeals in us v Yousef204 appeared to consider in obiter that Demjanjuk remained good law but did not undertake any detailed analysis on the point. The defendants were convicted of conspiracy to commit terrorist offences and challenged inter alia the jurisdiction of the court to try them based on universal jurisdiction. As such, the issue of crimes against humanity did not strictly arise. Nonetheless, after citing Demjanjuk for the proposition that universal jurisdiction is permissible over crimes against humanity, the Court held as follows:205 The historical restriction of universal jurisdiction to piracy, war crimes, and crimes against humanity demonstrates that universal jurisdiction arises under customary international law only where crimes (1) are universally condemned by the community of nations, and (2) by their nature occur either outside of a State or where there is no State capable of punishing, or competent to punish, the crime (as in a time of war). Unlike those offenses supporting universal jurisdiction under customary international law – that is, piracy, war crimes, and crimes against ­humanity – that now have fairly precise definitions and that have achieved universal condemnation, “terrorism” is a term as loosely ­deployed as it is powerfully charged. Accordingly, this leaves somewhat unclear the extent to which Demjanjuk remains good law. Further, it appears to leave open that the exercise of any such ­ Balintulo v Daimler ag, 727 F.3d 174 (2d Cir. 2013). For cases allowing claims, see: Salim v Mitchell – District Court, above n 201; Al Shimari v caci Premier Technology, 758 F.3d 516 (4th Cir. 2014); Doe i v Nestle – Appeal, above n 201. 203 (United States) Demjanjuk v Petrovsky 776 F.2d 571 (6th Cir. 1985); see Chapter 3, Section 4.7. 204 (United States) us v Yousef, 327 F.3d 56 (2nd Cir., 2003). See also Waldman v Palestine Liberation Organisation, 835 F.3d 317 (2nd Cir., 2003). 205 (United States) us v Yousef, above n 204, 82–85.

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jurisdiction may be conditioned by the principles of complementarity and non-intervention (see below in respect of South Africa). 3

Western (Civil Law) States

3.1 Belgium206 3.1.1 Legislation In 1993, Belgian courts were granted universal jurisdiction over a number of international offences.207 Article 7(1) provided: ‘Belgian courts are competent to take cognisance of offences stipulated in the present law irrespective of the place where they have been committed’. Under an amendment of 1999, crimes against humanity was added to the list of offences to which Article 7(1) applied. Hence, in 1999 Belgium represented one of the few instances at the time of a state taking unlimited universal jurisdiction over all perpetrators of crimes against humanity. In addition, Article 5(3) provided that ‘the Act shall apply equally to all persons without any distinction based on official capacity’. While the definition originally differed from that in Article 7 of the icc ­Statute, amendments introduced in August 2003 (described further below) reproduced the exact text from the French version of Article 7(1) of the icc Statute. The new provision omits, no doubt deliberately, the details of Article 7(2)–(3) and the controversial definition of ‘attack’.208 A striking feature of this law, as originally passed, was that Article 9(3) recognised the right of any person who claimed to be the victim (toute personne qui se prétendra lésée) of any of the enumerated offences to initiate a criminal investigation.209 This contrasts with the situation in most other countries where only the prosecutorial authorities or the Government are competent

206 The authors would like to acknowledge the assistance of Lies Delie with this section. 207 Loi relative à la répression des violations graves du droit international humanitaire, reprinted in (1999) 38 ilm 921. For discussion, see Pierre d’Argent, ‘La Loi du 10 février 1999 relative à la répression des violations graves du droit International humanitaire’ (1999) 118 Journal des Tribunaux 549. The original law of 16 July 1993 covered only grave breaches of the Geneva Conventions and the Additional Protocols; the supplementary legislation of 10 February 1999 included crimes against humanity and genocide within the scope of the earlier law. 208 Loi du 5 aout 2003 relative aux violations graves du droit international humanitaire. 209 This is provided for in Article 63 of the Code of Criminal Procedure.

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to initiate a prosecution.210 This led to the victims of human rights violations from all over the world lodging complaints with the Belgian authorities. As Luc Reydams put it: ‘[h]ardly a month went by without some international outcast being indicted’.211 According to testimony of the federal prosecutor some 40 files (dossiers) had been opened as of March 2003.212 Those indicted included Prime Minister Sharon of Israel, and officials from the United States, including former us President George H.W. Bush, Vice President Dick Cheney, Secretary of State Colin Powell and retired General Norman Schwartzkopf, all for their role concerning the bombing of Baghdad’s al-Amiriya shelter in the 1991 Gulf War.213 As political pressure grew, particularly from the United States,214 the law was revised twice in 2003. Under the April 2003 law, Article 5(3) was amended to read: ‘the immunity associated with a person’s official capacity does not prevent the application of the present Act, as long as the limits established by international law are respected’. Article 7 was amended by a series of complex set of provisions which governed the initiation of extraterritorial prosecutions by private individuals and the federal prosecutor.215 Article 7(1), as amended, confirmed that Belgian courts had jurisdiction ‘even if the presumed author is not present in Belgium’. Victims or local prosecutors could initiate criminal complaints if: (a) the offence took place in ­Belgium; (b) the offender or victim was a Belgian national; (c) the offender was present in Belgium; or (d) the victim was a Belgium resident for a minimum of three years. Otherwise, only the federal prosecutor could initiate a complaint. Importantly, as is now present in the relevant legislation in Germany and Spain, the prosecutor had the discretion not to proceed with a case on the ground of forum non conveniens, such as the case coming within the jurisdiction of another state or an international tribunal. In addition, where there was little link to Belgium, Article 7(2), (3) and (4) permitted the Minister of Justice 210 Namely: Australia, Canada, Germany and New Zealand. 211 Luc Reydams, Universal Jurisdiction: International and Municipal Legal Perspectives (­Oxford University Press: Oxford, 2003) 116. 212 Luc Reydams, ‘Belgium Reneges on Universality: The 5 August 2003 Act on Grave B ­ reaches of Humanitarian Law’ (2003) 1(3) Journal of International Criminal Justice 679. 213 David Luban, ‘A Theory of Crimes against Humanity’ (2004) 29 Yale Journal of International Law 85, 147–148. 214 See George P. Fletcher, ‘Against Universal Jurisdiction’ (2003) 1(3) Journal of International Criminal Justice 580, 584. 215 Loi du 23 avril 2003 modifiant la loi du 16 juin 1993 relative à la répression des violations graves du droit international humanitaire, l’article 144ter du Code judiciaire, Moniteur Belge, n° 167, 24846, 24851–24852.

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to invoke a referral process in favour of the icc, or the territorial state or the state of nationality of the offender which could lead to the case being withdrawn from the Belgian Court. These amendments did not stop complaints being lodged against us and British military and political leaders for their role in the Iraq war of 2003, which in turn were promptly referred by the Minister to the states of nationality. The quick referral, however, did not appease the us Government. At a June nato meeting, us Defence Secretary Donald Rumsfeld threatened to move nato’s headquarters out of Brussels unless the Belgian law was rescinded.216 The entire 1993 law was then repealed by the August 2003 law.217 According to the government, this was because ‘the Act is systematically abused by persons and organizations with their own political agendas’.218 Under the August 2003 law, the offence of crimes against humanity was reintroduced into the criminal code. There were also amendments to the Preliminary Title of the Code of Criminal Procedure. General Article 1 bis in Chapter 1 expressly provides for the immunity of government officials in accordance with international law. This includes persons officially invited to Belgium by the state or an international organisation operating in Belgium (such as nato). New Article 6, 1° bis granted extraterritorial jurisdiction over grave breaches of international humanitarian law if the offender: (a) is Belgian; or (b) has Belgium as their principal place of residence (whether lawful or not). According to the explanatory memorandum, this includes a person who became a citizen or resident after commission of the offence.219 New Article 10, 1° bis grants extraterritorial jurisdiction over grave b­ reaches of international humanitarian law if committed by a foreigner ‘against a p ­ erson who, at the time of the offence, is a Belgian national or against a person who, for at least three years, resides effectually, habitually and legally in B ­ elgium’. The difference between Article 6, 1° bis and Article 10, 1° bis suggests the Belgian parliament had less confidence in invoking passive personality j­urisdiction over international offences committed outside Belgium as opposed to active personality jurisdiction.

216 Luban, above n 213, 148. 217 See Doc. Chambre 51 0203/005 (2003); Doc Sénat 3-136/5 (2003); see also Reydams, above n 212. 218 As appears at paragraph 8 of the agreement 10 July 2003 to form a new coalition government, quoted in Reydams, above n 212, 679 fn 2. 219 (Belgium) Chambre des représentants de Belgique, Exposé des motifs, Doc. 51 0103/001 at 5–6, quoted in Reydams, above n 212, 686.

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Importantly, a prosecution under this Article, including the opening of a criminal investigation, can only take place at the request of the federal prosecutor whose decision is final and, like the previous amendments, the prosecution has a discretion not to proceed on forum non conveniens grounds such as the fact that an international or state court has jurisdiction and should be brought in that jurisdiction.220 Cases covered by Article 6, 1° bis or 10, 1° bis are excluded from the requirement that the suspect be found in Belgium.221 The pending cases under the old law had to meet the transitional provisions. If the case was in the preliminary stage, it had to meet the test under the new law. If an investigating magistrate is seized of the case, it could continue provided either the plaintiff is Belgian at the time of initiating the proceedings or the suspect has his principal place of residence in Belgium when the law came into force on 7 August 2003 and an official investigative act has been performed at that time. This disposed of most pending cases. One famous case that survived was the prosecution of Hissène Habré, the former president of Chad. 3.1.2 Jurisprudence (a) The Case of Habré: Africa’s Pinochet The most significant case in Belgium has been that involving Hissène Habré (known as ‘Africa’s Pinochet’).222 Habré ruled the former French colony of Chad from 1982 until he was deposed in 1990. According to Human Rights Watch, which has assisted the victims, his regime was marked by widespread atrocities, targeting various ethnic groups such as the Sara (1984), Hadjerai 220 The provision states that a prosecutor may refuse to initiate proceedings if ‘the circumstances of the case show that, in the interest of the proper administration of justice and in order to honour Belgium’s international obligations, said case should be brought either before the international courts, or before the court of the place in which the acts were committed, or before the court of the State of which the perpetrator is a national, or the court of the place in which he can be found, and to the extent that said court is independent, impartial and fair, as may be determined from the international commitments binding on Belgium and that State’. 221 (Belgium) Code of Criminal Procedure, Art 12. 222 See Human Rights Watch, ‘The Case Against Hissène Habré, an “African Pinochet”’ (30 September 2005), accessed online at on 5 September 2007 (‘hrw Habré Case Summary’); see also Reed Brody and Helen Duffy, ‘Prosecuting Torture Universally: Hissène Habré, Africa’s Pinochet?’ in Horst Fischer, Claus Kress and Sascha Lüder (eds), International and National Prosecutions of Crimes under International Law: Current Developments (Berlin Verlag Arno Spitz: Berlin, 2001) 817.

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(1987), Chadian Arabs and the Zaghawa (1989–90), killing and arresting group members en masse.223 A 1992 Truth Commission accused Habré’s regime of some 40,000 political murders and systematic torture. Most were carried out by the security police, the Documentation and Security Directorate (dds). After Habré was deposed, he took up refuge in Senegal. Whilst the Truth Commission called for the “immediate prosecution” of those responsible, the new government did not indict Habré or pursue his extradition from S­ enegal. That country’s regional court indicted him on 3 February 2000 for crimes against humanity and torture, but the appeal courts held that they had no jurisdiction in the case (see the discussion under Senegal). Even before the decision of the Senegalese court of final appeal, a group of victims filed a complaint in Belgium against Habré. The complaint came from 21 victims, three of whom had obtained Belgian nationality after several years of residence there. By August 2003, the complaint was under investigation by Judge Daniel Fransen, who as investigating judge of Brussel’s district court had visited Chad. Hence, the case was able to proceed under the transitional provisions. In April 2001, (soon after the Senegalese courts had dismissed the case) Senegal’s President Abdoulaye Wade declared that he had given Habré one month to leave Senegal. The victims feared that Habré would take refuge in a country where efforts to prosecute him may be more difficult. They lodged a complaint with the United Nations Committee against Torture which, as an interim measure, called on Senegal to ‘take all necessary measures to prevent him from leaving the territory other than under an extradition procedure.’224 Following a direct appeal by Kofi Annan, President Wade of Senegal stated in September 2001 that he had agreed to hold Habré in Senegal until such time as a country like Belgium, capable of organising a fair trial, requested his extradition. From 26 February to 7 March 2002, Judge Fransen visited Chad. He was accompanied by the Deputy Public Prosecutor and four police officers. With the cooperation of the Chadian government, the Judge and his team questioned victims of Hissène Habré and many witnesses. The Judge also visited the sites close to N’Djamena where massacres had taken place and all the detention centres operated by the dds connected to the Habré regime in the Chadian capital, including the infamous ‘Piscine’ or underground prison. He was accompanied by ex-prisoners who described the treatment inflicted upon them and identified the location of mass graves. Finally, the Judge had access to archives and documents. The visit was front page news in Chad and many of the 223 hrw Habré Case Summary, above n 222. 224 See Guengueng et al. v Senegal (Merits), un ga Committee Against Torture, Comm No. 181/2001, un Doc. CAT/C/36/D/181/2001 (19 May 2006), [1.3].

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victims began to feel that justice was finally beginning to be done. Dozens of victims and other witnesses also came from Chad and elsewhere to give evidence directly before the Belgian judge in Brussels. On 7 October 2002, the Chadian Minister of Justice made a statement in writing to Judge Fransen that ‘Mr Hissène Habré cannot claim to enjoy any form of immunity from the Chadian authorities.’225 While the legal effect of this statement is open to debate,226 finally, on 19 September 2005, Judge Fransen issued an arrest warrant against Hissène Habré charging him with crimes against humanity and other crimes. An extradition request was then forwarded by Belgium to the Senegalese authorities. Instead of extraditing him, Senegal referred the matter to the African Union and Senegal then introduced its own laws proscribing crimes against humanity to deal with Habré. Habré’s trial ultimately took place in Senegal before the Extraordinary African Chambers (eac) from 20 July 2015. Following eight months of proceedings, the eac found Habré guilty of crimes against humanity, war crimes and torture. He was sentenced to life imprisonment, with his convictions and sentence upheld on appeal in April 2017.227 Habré’s case is discussed further in the section on Senegal. (b) Other Case-law Before the amendments in 2003, there were a significant number of prosecutions launched in Belgium.228 Some prosecutions were as follows. First, an examining magistrate considered a charge of crimes against humanity against former Chilean President Pinochet even before the passing of the 1999 law.229 225 See Human Rights Watch, ‘Chronology of the Habré Case’ (29 October 2004), accessed online at on 5 September 2007. The letter in French is available online at . 226 See, for example: Paola Gaeta, ‘Ratione Materiae Immunities of Former Heads of State and International Crimes: The Hissène Habré Case (2003) 1 Journal of International Criminal Justice 186 (where the author argues that the waiver was grounded in the relevant domestic statute lifting Habré’s immunities from national jurisdiction, a separate question from immunity before a foreign state under international law). 227 See Chapter 5, Section 3.7.3. 228 For an overview, see Damien Vandermeersch, ‘Prosecuting International Crimes in Belgium’ (2005) 3 Journal of International Criminal Justice 400. 229 (Belgium) Aguilar Diaz et al. v Pinochet, Tribunal of First Instance of Brussels (Belgium), order of 6 November 1998 (‘Belgian Pinochet Case’), reprinted in (1999) 118 Journal des T ­ ribunaux 308; see also summaries in English by Luc Reydams in (1999) 93 American ­Journal of International Law 700; and Reydams, above n 211, 112–116.

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The magistrate found crimes against humanity were pre-existing crimes under customary international law that cannot become prescribed,230 and that Pinochet had no immunity because the alleged crimes ‘could not possibly be official acts performed in the normal exercise of the functions of a head of state’.231 As to jurisdiction, the magistrate said ‘all States and all humankind have a legal interest in the punishment of such crimes … For these reasons we find that, as a matter of customary international law, or even more strongly as a matter of jus cogens, universal jurisdiction over crimes against humanity exists, authorising national judicial authorities to prosecute and punish the perpetrators in all circumstances’.232 The validity of such a view has been questioned233 and is discussed further in Chapter 11. Secondly, the then-Prime Minister of Israel, Ariel Sharon, was indicted for crimes against humanity by survivors of the massacre of Palestinian refugees committed by Lebanese militia in the camps of Sabra and Chatila (Lebanon) during Israel’s invasion of Lebanon.234 It was alleged that Mr Sharon, as the minister for defence at the time, bore command responsibility with his generals for the decision to permit the militia to enter the camps when it could have been reasonably expected that civilians may have been targeted by the militia. On 12 February 2003, in Sharon and others235 the Belgian Court of Cassation considered the meaning of the original Article 7(1). It overturned a lower court’s ruling in the Sharon case236 which had held that universal jurisdiction in absentia for crimes against humanity was contrary to the European Convention for the Protection of Human Rights and fundamental Freedoms and the principle of sovereign equality of states. According to the Court of Cassation the presence of the accused on Belgian territory was not necessary for a prosecution to be initiated and Article 7(1) did not require any link between Belgium and the offence, the victim or the offender. 230 231 232 233 234

Reydams, above n 229, 702. Reydams, above n 229, 700. Reydams, above n 229, 702–703. See Reydams, above n 211, 112–116. For a discussion of the case, see Antonio Cassese, ‘The Belgium Court of Cassation v The International Court of Justice: The Sharon and others Case’ (2003) 1 Journal of International Criminal Justice 437. 235 (Belgium) Abbas Hijazi et al. v Sharon et al. (Decision), Cour de Cassation belge, Arrêt n° JC032CI1 (12 February 2003), available online at and translated in (2003) 42 ilm 596. 236 (Belgium) See the decision of 26 June 2002 of the Chambre de mises en accusation, accessed online at on 17 October 2017, 22.

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There remained, however, Sharon’s personal immunity as head of state. Before the Belgian Court of Cassation, it was argued that Article 5(3), in its original form, overturned Mr Sharon’s immunity as the serving Israeli head of state and that this was in conformity with Article 27 of the icc Statute. The Court rejected this argument. Following the icj decision in the Arrest Warrant Case,237 it held that Article 27 of the icc Statute does not affect or prevent the application of the customary rules of absolute immunity before state courts.238 According to the Court, because the customary international law rule of absolute personal immunity for a head of state was applicable (and binding), Article 5(3) of the Belgian law must be read as referring to another customary international law rule that may permit persons accused of international crimes to invoke their official capacity as a defence to being held criminally responsible.239 This interpretation was confirmed in the 2003 amendments. Since the substantial amendments in 2003, a number of further prosecutions have been brought. One successful prosecution was that against Bernard Ntuyahaga, a major of the Rwandan Armed forces who surrendered himself to Belgian authorities after the ictr withdrew charges against him.240 On 5 July 2007, the Belgian cour d’assises convicted Ntuyahaga and sentenced him to 20 years imprisonment.241 A less successful prosecution has been that of Michel Desaedeleer, a businessman and dual Belgian and American citizen who was arrested in Spain in August 2015 on charges of war crimes and crimes against humanity arising from his participation in the ‘blood diamond’ trade, and his involvement with 237 (icj) Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) ( Judgment) [2002] i.c.j. Rep 2. This case is considered further in Chapter 11. The icj held it was the defendant’s personal immunity as a serving foreign minister which precluded Belgium from issuing its international arrest warrant. Hence, it did not have to decide if universal jurisdiction over crimes against humanity (particularly in the absence of the defendant in the territory) offended the principle of sovereign equality of states, though many judges did express a view on the matter. See also discussion in Jan Wouters, ‘The Judgment of the International Court of Justice in the Arrest Warrant Case: Some Critical Remarks’ (2003) 16(2) Leiden Journal of International Law 253. 238 See Cassese, above n 234, 439; and Antonio Cassese ‘When May Senior State Officials Be Tried for International Crimes?’ (2002) 13(4) European Journal of International Law 853, 870 et seq. 239 Cassese, above n 234, 443. 240 M. Cherif Bassiouni (ed), The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and Post-Conflict Justice (Intersentia: Antwerp, 2010) 703–704. 241 (Belgium) Prosecutor v Ntuyahaga, Cour d’Assises [Court of original jurisdiction for very serious crimes] (5 July 2007), available online at .

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Charles Taylor and the rebel group Revolutionary United Front (ruf) in Sierra Leone.242 Prior to the commencement of any trial, Desaedeleer died in Belgian custody on 28 September 2016.243 In September 2014, Martina Johnson, a Liberian woman suspected of having participated in ‘Operation Octopus’ in Monrovia in 1992 was reported to have been arrested and charged with war crimes and crimes against humanity.244 At the time of publication, that trial had not taken place.245 For completeness, it should be noted that the claim challenging the constitutionality of the legislation affording the prosecutors with a discretion to prosecute was considered by the Constitutional Court and found to be constitutional.246 3.2 France247 3.2.1 Legislation In 1964, France passed a law which stated that crimes against humanity, as defined in the London Charter, are imprescriptible by their nature.248 As discussed in Chapter 3, this Act was considered in three cases: Touvier (regarding a member of the Vichy government during World War 2), Barbie (regarding a member of the Gestapo in Lyon) and Boudarel (regarding alleged atrocities by a French serviceman in Vietnam in 1952–4).249 The conclusion reached by these decisions was that crimes against humanity as defined under Article 6(c) 242 Taegin Reisman, ‘Death of a Middleman Thwarts Blood Diamond Case’, International Justice Monitor (5 October 2016), accessed online at on 3 July 2017. 243 Reisman, above n 242. 244 Human Rights Watch, ‘Belgium/Liberia: War Crimes Arrest Major Step for Justice – First ­Indictment for Atrocities During Liberia’s 1989–96 War’ (19 September 2014), accessed online at on 4 September 2017. 245 See TRIAL International update of Martina Johnson: available online at . 246 (Belgium) Cour d’Arbitrage, Judgment No. 62 (23 March 2005), accessed online at on 4 September 2017. 247 The authors would like to acknowledge the assistance of Marion Joullié Carles with this section. 248 (France) Law No. 6401326, Journal officiel de la République Francaise (29 December 1964): see Leila Sadat-Wexler, ‘The Interpretation of the Nuremberg Principles by the French Court of Correction: From Touvier to Barbie and Back Again’ (1994) 32 Columbia Journal of Transnational Law 289, 320. 249 See the discussion at Chapter 3, Section 4.4.

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of the London Charter only covered crimes committed in the interests of the Axis powers. In a reaction to these decisions, effective from 1 March 1994, the offence of crimes against humanity (article 212-1) was added to the Code pénal as follows: … deportation, enslavement, or the massive and systematic practice of summary executions, enforced disappearances, torture or inhumane acts inspired by political, philosophical, racial or religious grounds and organised pursuant to a concerted plan against a group of the civilian population. This definition was amended on 5 August 2013 in order to bring it more into line with Article 7 of the icc Statute.250 The crime has now been expanded to include the underlying crimes of murder, extermination, imprisonment, severe deprivation of physical liberty, rape, sexual crimes, persecution and apartheid. Further, these crimes must now be committed as part of ‘a concerted plan against a group of civilians as part of a widespread or systematic attack’. Originally, there was no provision for extraterritorial jurisdiction. At most, Common Article 2 of the laws governing the cooperation with the icty (­adopted on 3 January 1995)251 and the ictr (adopted on 22 May 1996)252 provided for retrospective jurisdiction over all offences falling within the competence ratione materiae (including crimes against humanity), loci, and temporis of the ad hoc Tribunals, if the perpetrators are found in France. France’s icc collaboration law of 2002 merely ratifies the icc Statute and does not provide for universal jurisdiction over the offences or amend the earlier definition of crimes against humanity.253 However, on 9 August 2010, France enacted Article 689-11 into the Criminal Procedure Code.254 Article 689-11 endows French courts with extraterritorial jurisdiction over inter alia crimes against humanity provided four conditions are met: first, the accused is ordinarily resident in France; secondly, the crime is punishable both in France as well as the territory where the crime 250 (France) Amended by Law No. 2013-711 (5 August 2013). 251 (France) Law No. 95-1 (2 January 1995), Journal officiel de la République Française (23 May 1996). 252 (France) Law No. 96-432 (22 May 1996), Journal officiel de la République Française (23 May 1996). 253 (France) Law No. 2002-268 (26 February 2002). 254 (France) Law No. 2010-930 (9 August 2010).

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was ­committed; thirdly, the prosecution is initiated by the office of public prosecutions; and, fourthly, the icc expressly states that the French Court has jurisdiction.255 3.2.2 Jurisprudence The key French cases concerning Nazis accused of crimes against humanity (Barbie and Touvier) have already been discussed in Chapter 3. To these may be added the Papon case. In 1988, Maurice Papon, who was a senior official in the Vichy Government, became the second French national after Touvier to be convicted of crimes against humanity.256 Papon was charged with complicity in the deportation of almost 1,600 Jews from the Bordeaux Region as well as aiding and abetting arbitrary arrests, arbitrary deprivations of liberty and murder. As Bassiouni explains, the trial mostly concerned individual criminal responsibility.257 The Court of Cassation rejected Papon’s defence that he was a mere civil servant, noting that while there was no requirement that an accomplice adhere to the policy of ideological hegemony of the principle perpetrators, the accused participated in the arrests and deprivations of liberty knowing it formed part of a concerted plan aimed of systematic persecution. The Court of Cassation sentenced Papon to 10 years’ imprisonment. As was explained in Chapter 3, the French Nazi cases clarified that the victims of crimes against humanity could include German officers, French citizens collaborating with the Nazi regime as well as opponents of the Nazis such as the French Resistance.258 Outside the context of Nazi crimes, there have been a number of French cases that have relevantly considered crimes against humanity in addition to the Boudarel case discussed in Chapter 3. First was the case of Javor, where, on

255 (France) See discussion in Coalition Française pour la Cour pénale internationale, ‘Those accused of international crimes must be tried in France at last’ (undated), accessed online at on 21 March 2014. 256 See Timothy McCormack, ‘Their Atrocities and Our Misdemeanours’ in Mark Lattimer and Philippe Sands (eds), Justice For Crimes Against Humanity (Hart Publishing: Oxford, 2003) 107, 119. 257 Bassiouni, above n 2, 676. 258 Bassiouni, above n 2, 678, citing Nadia Bernaz and Rémy Prouvèze, ‘International and Domestic Prosecutions’, in M. Cherif Bassiouni (ed), The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and Post-Conflict Justice (Intersentia: Antwerp, 2010) 363.

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20 July 1994, a number of Bosnian citizens (including Javor) filed a complaint to bring a civil action against various undisclosed individuals on the basis of universal jurisdiction for crimes committed by Serb forces.259 Lodged before the icty co-operation law was adopted, the complainants tried to invoke a charge of crimes against humanity relying upon the London Charter and General Assembly Resolution 3074 (xxiv).260 The investigating magistrate (Judge Getti) found he had no jurisdiction over crimes against humanity because, following Barbie, Touvier and Boudarel, crimes against humanity under the London Charter only applied to crimes of the Axis powers committed in the context of World War ii and General Assembly Resolution 3074 (xxiv) had no binding force.261 Contrary to the approach in Belgium, Judge Getti (in his Order of 6 May 1994) held there were no customary law rules or other international basis for universal jurisdiction where the accused is not present on French soil.262 The Paris Court of Appeal and the Cour de cassation confirmed the decision with regard to crimes against humanity.263 Secondly, the case of Munyeshyaka involved complaints lodged in July 1995 (before adoption of the ictr co-operation law but after the adoption of ­Article 212-1) against Wenceslas Munyeshyaka, a Hutu priest who had allegedly been active in the genocide in Rwanda and who was residing in the south of France.264 The public prosecutor sought to invoke Article 212-1 (crimes against humanity).265 The magistrate ruled that he was not competent to deal with the charge because Article 212-1 was not in force at the time of the alleged 259 (France) Javor (Order of Examining Magistrate), Tribunal de Grande Instance de Paris (6 May 1994); Cour d’Appel de Paris (24 October 1994); Cour de cassation (chambre criminelle) (26 March 1994), reprinted in 1996 Bull. crim., no. 132, 379. For commentary, see: Rafaëlle Maison, ‘Les premiers cas d’applications des dispositions pénales des Conventions de Genève par les jurisdictions internes’ (1995) 6 European Journal of International Law 260; Bridgette Stern, ‘In re Javor; In re Munyeshyaka’ (1999) 93(2) American Journal of International Law 525; and Reydams, above n 211, 135. 260 un ga Resolution 3074 (xxiv), un gaor, 28th sess, Supp. 30, 78, un Doc. A/9030/Add.1 (3 December 1973). The Resolution dealt with the principles of international co-operation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity. See also Stern, above n 259, 526. 261 Stern, above n 259, 526. 262 Stern, above n 259, 526. 263 Stern, above n 259, 527. The icty co-operation law was not available after its adoption because the perpetrators were ‘not found in France’: Reydams, above n 211, 136–137. 264 Stern, above n 259, 527. 265 Reydams, above n 211, 138.

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­offences.266 The Cour de Cassation upheld the magistrate’s ruling but held that the ictr co-operation law, which had meanwhile been adopted, could now apply to the case.267 Thirdly, on 26 October 1998, complaints were filed against Pinochet for, amongst other charges, crimes against humanity.268 Judge Le Loir refused to indict for crimes against humanity because the alleged crimes were committed before the adoption of Article 212-1 and no relevant self-executing treaty or international customary rule could be relied upon to grant French courts extraterritorial jurisdiction.269 Since then, the slow pace of the investigation that has taken place led to a decision of the European Court of Human Rights in 2004 that France violated the plaintiffs’ right to an effective remedy.270 Ultimately, after being convicted in absentia by a Rwandan Military Court in Kigali and a defective ictr warrant being set aside, in November 2007, the ictr referred the case to the French authorities for prosecution along with that of Laurent Bucyibaruta, the former prefect of Gikongoro, for genocide and crimes against humanity.271 On February 2008, the French Court accepted this referral.272 In April 2015, the investigation of the case was completed and on 2 O ­ ctober 2015, the investigating judge ordered the dismissal of the case in accordance with the prosecutor’s request. The judge gave reasons that although 266 (France) Depaquier et al. v Munyeshyaka (Order), Tribunal de Grande Instance de Paris (Examining magistrate) (9 January 1996); see also Stern, above n 259, 528. 267 (France) In Re Munyeshyaka, Cour de cassation (chambre criminelle), Bull. Crim., No. 2 (6 January 1998), 3; see also Stern, above n 259, 528; Reydams, above n 211, 138; and Code de procédure pénale, Art 689. To date, no trial has taken place. 268 Bridgette Stern, ‘International Decisions’, (1999) 93(3) American Journal of International Law 696, 697. 269 (France) Pinochet (Order of Judge Le Loir), Tribunal de grande instance (Paris) (2 December 1998) quoted in Stern, above n 268, 697. See also Brigitte Stern, ‘Pinochet faces justice’, accessed online at on 16 October 2017. 270 (ECtHR) Mutimura v France (Decision), European Court of Human Rights, App. No 46621/99 (8 June 2004). 271 Bassiouni, above n 2, 678; (ictr) Munyeshyaka (Decision on the Prosecutor’s Rule 11 Request for the Referral of Wenceslas Munyeshyaka’s Indictment to France), Case No. ICTR2005-87-I (20 November 2007); and Bucyibaruta (Decision on the Prosecutor’s Rule 11bis Request for the Referral of Laurent Bucyibaruta’s Indictment to France), Case No. ICTR2005-85-I (20 November 2007). 272 ‘Africa: Weekly Summary – French Court Approves Rwandan Extraditions, Chad and Senegal Want Habre Trial Televised’, AllAfrica (15 November 2013), accessed online at on 19 November 2013.

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­ unyeshyaka had manifested racial opinions and had maintained friendly M relations with the military and militias, this was not sufficient to establish his participation in the crimes committed by those militias.273 Three of the civil parties lodged an appeal against the 2 October 2015 order. The case was then referred to the Investigating Chamber and, at 23 May 2017, was awaiting a submission from the Prosecutor’s Office.274 Since the creation of a specialised war crimes unit in 2012, however, France appears to be stepping up its prosecutions and there is likely to be significant movement that should be monitored. On 15 March 2014, Pascal Simbikangwa, a former intelligence chief and captain of the Rwandan presidential guard, was convicted of complicity in genocide and crimes against humanity on 15 March 2014.275 In so finding, the Court noted the following facts that were said to demonstrate both a ‘widespread or systematic’ attack and a pre-determined plan or ‘plan concerté’:276 (a) the rapidity of executions and simultaneity of the massacres; (b) the widespread nature of the massacres across the territory; (c) the State’s mobilisation of civil and military means; (c) the development of media propaganda calling for inter-ethnic hatred and the murder of political opponents; (d) the distribution of arms to, and military training of, ‘Interahamwes’; (e) systematic control over immediate executions of those suspected of being Tutsis or being accomplices of the enemy; and (f) the large number of victims (estimated at millions of people in the space of three months). On 3 December 2016, the charges and sentence of 25 years’ imprisonment was confirmed on appeal.277 Following Simbikangwa, on 6 July 2016, two former Rwandan mayors, Octavien Ngenzi and Tito Barahira, were found guilty of genocide and crimes 273 ‘Wenceslas Munyeshyaka’, TRIAL International (7 May 2016), accessed online at on 3 July 2017. 274 Tatjana Dawson, ‘Wenceslas Munyeshyaka, Case No. MICT-13-45 – Sixteenth ­Monitoring Report’, Mechanism for International Criminal Tribunals (23 May 2017), accessed online at on 3 July 2017. 275 (France) Pascal Senyamhara Safari alias Simbikangwa (Grounds for Verdict), Cour d’Assises Paris (14 March 2014) (‘Simbikangwa – First Instance’). Kim Willsher, ‘Rwanda former spy chief Pascal Simbikangwa jailed over genocide’, The Guardian (15 March 2014), accessed online at on 28 October 2014. 276 (France) Simbikangwa – First Instance, above n 275, 1. 277 (France) Pascal Senyamhara Safari alias Simbikangwa (Grounds for Verdict), Cour d’Assises de la Seine-Saint-Denis statuant en appel (3 December 2016).

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against humanity by the Cour d’Assises in Paris and were sentenced to life imprisonment, with both since announcing an intention to appeal.278 According to one report, some 27 cases linked to the Rwandan genocide are alleged to be on the way,279 including the reopening of an investigation in October 2016 into the downing of the airplane Habyarimana, an event that is alleged to have triggered the Rwandan genocide.280 In response to the diplomatic row that has ensued between France and Rwanda since the Rwandan genocide, the Rwandan prosecutor’s office has opened an investigation into the role of 20 French officials during the genocide.281 3.3 Germany282 3.3.1 Legislation Germany enacted a wholly new and separate international criminal code, ­Völkerstrafgesetzbuch (‘VStGB’)283 which includes the offence of crimes against humanity. The definition of crimes against humanity in the VStGB departs in several respects from Article 7 of the icc Statute. In the chapeau the VStGB does not require the attack to be ‘pursuant to or in furtherance of a state or organisational policy to commit such attack’.284 Further, due to a perceived 278 Nicolas Boring, ‘France/Rwanda Genocide Convictions’, Global Legal Monitor (29 July 2016), accessed online at on 3 July 2017. 279 Boring, above n 278. See also ‘Rwanda: France Arrests Rwandan Genocide Suspect Again’, AllAfrica (11 April 2014), accessed online at on 29 October 2014. 280 ‘Rwandan genocide: Kagame warns of ‘showdown’ with France’, bbc News (10 October 2016), accessed online at on 3 July 2017. 281 bbc News (10 October 2016), above n 280. See also AllAfrica (11 April 2014), above n 279. 282 The authors would like to acknowledge the assistance of Prof. Dr. Matthias Herdegen with this section. 283 (Germany) The Code of Crimes against International Law is part of the Act of 26 June 2002 to introduce the Code of Crimes against International Law (Gesetez zur Einführung des Vöokerstrafgesetzbuches), Bundesgesetzblatt Teil i, 2002 Nr 42, 2254 (‘VStGB’). See Andréas Zimmerman, ‘Main Features of the new German Code of Crimes against International Law (Völkerstrafgesetzbuch)’, in Mattias Neuner (ed), National Legislation Incorporating International Crimes – Domestic Approaches to International Criminal law (2003) 137; Helmet Satzger, ‘German Criminal Law and the Rome Statute – A Critical Analysis of the New German Code of Crimes against International Law’ (2002) 2 International Criminal Law Review 261. 284 (Germany) The German Government, in its explanations accompanying the submission of the draft VStGB to the Bundestag, noted that ‘The individual offences [in Art 1§7] … only

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lack of certainty in the icc wording, the German law provides for different definitions of ‘sexual slavery’, ‘any other form of sexual violence of comparable ­gravity’,285 ‘enforced disappearance’,286 ‘apartheid’287 and ‘other inhumane acts of a similar character’.288 Conversely, in relation to persecution, the VStGB in Article 1§7(1)10 follows the jurisprudence from the icty289 by dispensing with the icc Statute’s requirement that acts of persecution be ‘in connection with … any crime within the jurisdiction of the Court’, and instead merely refers to persecution on any of the grounds mentioned in Article 7(1)(h) of the Statute. The Code explicitly states that it applies ‘even when the offence was committed abroad and bears no relation to Germany’.290 The explanatory memorandum of the Act says: ‘Because the federal Supreme Court has so far given a different interpretation to StGB §6, the unambiguous wording of VStGB §1 now makes it very clear that offences under the VStGB, in any event, do not require a special domestic link’.291 Even the presence (or anticipated presence) of the offender on German territory is not an essential prerequisite for a prosecution. Shortly after the Code was introduced, the Code was amended to replace the usual system of mandatory prosecution with a discretion in certain circumstances.292 Accordingly, as in the case of Belgium and now Spain, the prosecutor has a discretion to dispense with the complaint on forum non c­ onveniens grounds. The jurisdiction of German courts over extraterritorial



become crimes against humanity, and thus crimes against international law, if they are committed as part of a “widespread or systematic attack against a civilian population”, and thus are in a functional connection [sic] with such an attack’: Government Draft Code of Crimes against International Law (Federal Ministry of Justice, 2001) (‘Entwurf’), 42, available online at . 285 (Germany) The term ‘sexuelle Nötigung’ (sexual coercion, VStGB, above n 283, §7(1)) is used instead because such an offence already exists: StGB, §177. 286 (Germany) The offence has become deprivation of freedom coupled with a refusal to supply information about the person concerned: VStGB, above n 283, §7(1) 7(a), (b). 287 (Germany) VStGB, above n 283, §7(5); see also Entwurf, above n 284, 49–50. 288 (Germany) It is defined as ‘severe physical or mental harm, in particular of the type referred to in §226 of the StGB’: VStGB, above n 283, §7(1)8; see also Entwurf, above n 284, 47–48. 289 See Chapter 10, Section 9. 290 (Germany) VStGB, above n 283, §1. 291 Quoted in Reydams, above n 211, 145. 292 See Katherine Gallagher, ‘Universal Jurisdiction in Practice – Efforts to hold Donald Rumsfeld and Other High-level United States Officials Accountable for Torture’ (2009) 7(5) Journal of International Criminal Justice 1087, 1102–1103.

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­offences ­under the VStGB is spelt out in a new §153f in the code of penal procedure (Strafprozeßordnung, or StPO). StPO §153f reads, in part, as follows: (1) In the cases referred to under §153c Subsection (1), numbers 1 and 2, the public prosecution may dispense (kann absehen) with prosecuting an offence punishable pursuant to VStGB §§6 to 14, if the accused is not residing in Germany and such residence is not to be anticipated (wenn sich der Beschuldigte nicht im Inland aufhält und ein solcher Aufenthalt auch nich zu erwartern ist). […] (2) In the cases referred to under §153c Subsection (1), numbers 1 and 2, the public prosecution shall dispense (soll absehen) with prosecuting an offence punishable pursuant to VStGB §§6 to 14, if: 1. there is no suspicion of a German having committed such an offence, 2. such offence was not committed against a German, 3. no suspect in respect of such offence is residing in Germany and such residence is not to be anticipated (kein Tatverdächtiger sich im Inland aufhält und ein solcher Aufenthalt auch nicht zu erwarten ist), and 4. the offence is being prosecuted before an international court or by a state on whose territory the offence was committed, whose national is suspected of its commission or whose national was harmed by the offence.293 In conclusion, crimes against humanity apply irrespective of the locus delicti or the nationality of the offender (VStGB §1), but the prosecutor has a discretion whether to proceed or not (StPO §153f). Where there is no link to Germany and prosecution is taking place before an international tribunal or a national court with a link to the offence, German courts are not competent, and a general discretion exists not to proceed if the accused is not present in Germany. 3.3.2 Jurisprudence While not a case of crimes against humanity, the complaints of torture filed in the German courts against Donald Rumsfeld and other high-level us officials are demonstrative of the discretion to prosecute.294 The first complaint was brought on behalf of four Iraqi civilians alleged to be victims of torture in Iraq.

293 Gallagher, above n 292, (for English translation). 294 Gallagher, above n 292, 1104–1109.

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The second was brought on behalf of 12 civilians who alleged to have been victims of torture at the notorious Abu Ghraib prison. The Prosecutor has decided not to open investigations into any of the claims brought and the decisions have since been affirmed by German Courts. In respect of the first complaint, just a day prior to Donald Rumsfeld threatening not to attend the Munich Conference on Security Policy, the Chief Federal Prosecutor, Kay Nehm, decided not to open an investigation.295 The Prosecutor found that, as none of the victims were German, it was for the us to pursue legal action in the first instance in keeping with ‘the framework of noninterference in the affairs of foreign countries’.296 While there was evidence presented that the us was unwilling to prosecute, the mere possibility that a prosecution could occur was sufficient to refuse jurisdiction. Further, while there were some accused present in Germany at the time, the Prosecutor did not consider that mere presence of German soil was sufficient to overcome these considerations. In respect of the second complaint, the prosecutor, did not cite the complementarity principle and instead focused on the fact that there were no links between Germany and the crimes alleged.297 It was not sufficient that us troops were stationed and trained on German soil at various times and no defendants were currently present – nor could be expected – in Germany. The Prosecutor further accepted that the prosecution was likely to be ‘purely symbolic’ with no way of successfully being pursued given the majority of the evidence being in the us. The Decision was affirmed by the Stuttgart Regional Appeals Court.298 The Court stated that, ‘despite the applicability of the universality principle’, the prosecutor was within his power to refuse to investigate on the ­basis that the alleged crimes were essentially ‘foreign acts’ without any ‘domestic linkage’. In a difference context, the Federal Constitutional Court has held that the prosecutor’s discretion as to the investigation of crimes covered by the principle of universality serves the principle of ‘differentiated jurisdictional 295 Gallagher, above n 292, 1105. 296 Prosecutor’s 2005 Decision, 3, cited in Gallagher, above n 292, 1105. 297 (Germany) See Re Criminal Complaint against Donald Rumsfeld et al., Federal Supreme Court Karlsruhe, Case No. 3 arp 156/06-2 (5 April 2007), accessed online at on 19 November 2013. 298 (Germany) Decision of 21 April 2009, accessed online at on 19 November 2013.

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priorities’.299 According to this principle, jurisdiction primarily lies with the State where the crime was committed and the home State of offenders and victims, then with the International Criminal Court or other international criminal tribunals and only in the last resort with other countries which exercise jurisdiction under the principle of universality. Two trials have now been completed under the VStGB.300 The Higher Regional Court (Oberlandesgericht) of Frankfurt tried and convicted Onesphore Rwabukombe for genocide in respect of crimes committed in Rwanda. More significantly for present purposes, the Higher Regional Court of Stuttgart tried and convicted Ignace Murwanashyaka and Straton Musoni for war crimes and crimes against humanity in respect of their involvement with the armed group, Forces Démocratiques de Libération du Rwanda (fdlr) in the drc.301 In the fdlr Case, the Court considered whether crimes against humanity had been committed in the context of attacks by the fdlr militia on five villages in the drc. The court considered that a civilian population is any multiplicity of persons connected by common characteristics which make them the target.302 Further, the presence of soldiers in a civilian population does not detract from that categorisation provided the group is properly characterised as of a civilian character. The Court also considered Article 7 of the icc Statute to require that the attack be carried out pursuant to a state or organizational policy. Applying these principles to the facts, the Court found that no crimes against humanity had been committed. First, it had not been established that the civilian population was the primary object of the attack. At each of the villages, there were military units stationed at the relevant villages and some of the apparent civilians were in fact serving in opposing militia groups at the time.303 Secondly, the Court held that any attack was in any event not ‘widespread’. 299 (Germany) Federal Constitutional Court, Case No 2 BvR 1/11, Beschluss der 2. Kammer des Zweiten Senats, (1 March 2011), accessed online at (‘Rwandan Jurisdiction Case – Federal Constitutional Court’), [7]–[10]. 300 See ecchr, ‘Universal Jurisdiction in Germany? The Congo War Crimes Trial: The First Case under the Code of Crimes against International Law’ (8 June 2016); Nicolai Bülte, ­Johanna Grzywotz, Tobias Römer and Leonard Wolckenhaar, ‘Monitoring the Trial of Onesphore R. Before the Oberlandesgericht Frankfurt’ (2015) 16(2) German Law Journal 285. 301 (Germany) Oberlandesgericht Stuttgart (Judgment), Case No 3StE 6/10 (28 September 2015) (‘fdlr Case – Higher Regional Court’). 302 (Germany) fdlr Case – Higher Regional Court, above n 301, Part 4(1)(c). 303 (Germany) fdlr Case – Higher Regional Court, above n 301, Part 4(1)(c).

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A total of 174 civilians were killed in the five attacks and did not amount to any mass killing as is characteristic of mass killing or genocide. While the court appeared to accept that the attack could have been ‘systematic’ in the sense of not being the result of spontaneous, isolated acts of individuals, it would nonetheless need to be pursuant to a state or organisational policy. The Court did not need to decide the question, however, as it found that the accused was not aware of any policy to systematically or deliberately kill civilians. Also of relevance are a number of migration decision of the Federal Administrative Court (or Bundesverwaltungsgericht). In one decision on 24 N ­ ovember 2009,304 the Court considered an appeal from a decision in respect of a Russian citizen from Chechnya who, as a member of the Chechen security service, had participated in the first Chechen war between 1994 and 1996 and worked in the ‘Ministry of Sharia’ between 1996 and 1999.305 The functions of the department were to report persons who had not complied with Sharia law and hand them over to the Sharia Courts. While not a great deal of analysis was conducted, the Court looked to Article 7 of the icc Statute for the definition of crimes against humanity (including the reference to the policy element) and held that the facts did not demonstrate a widespread or systematic attack against a civilian population.306 At least one other decision of the Court appears also to have looked to ­Article 7 in defining crimes against humanity.307 3.4 The Netherlands308 3.4.1 Legislation On 19 June 2003, the Netherlands passed the International Crimes Act. It largely incorporates Article 7 of the icc Statute into domestic law309 and provides for extraterritorial jurisdiction if the victim or perpetrator is Dutch or if the perpetrator is found in the Netherlands.310 Prosecution is excluded for 304 (Germany) Federal Administrative Court, Case No BVerWG 10 C 24.08 (24 November 2009) (‘Chechen Rebels Case – Federal Administrative Court’). See also Giegerich and Daum, ‘Chechen Rebels as “bona fide” refugees? The Judgment of the Federal Administrative Court of 24 November 2009’ (2010) 53 German Yearbook of International Law 885. 305 (Germany) Chechen Rebels Case – Federal Administrative Court, above n 304, [2]. 306 (Germany) Chechen Rebels Case – Federal Administrative Court, above n 304, [39]. 307 (Germany) Federal Administrative Court, Judgment, 31 March 2011, BVerwG 10 C 2.10, [28] (in the context of offences alleged in Rwanda). 308 The authors would like to acknowledge the assistance of Hannah Lisa Kappel with this section. 309 (Netherlands) International Crimes Act 2003, s 4. 310 (Netherlands) International Crimes Act 2003, s 2.

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incumbent foreign heads of state, heads of government, ministers of foreign affairs and other persons if their immunity is recognised under customary law or an applicable treaty.311 3.4.2 Jurisprudence In addition to the consideration given in decisions under the previous Act,312 the first case of relevance was that of the Amsterdam Court of Appeal (Gerechtshof) in Wijngaarde et al. v Bouterse, a challenge to the decision of the Public Prosecution Service not to prosecute Desiré Bouterse – the leader of Surinam (formerly a colony of the Netherlands) – for torture, crimes against humanity and war crimes.313 The case arose out of the events of 8 and 9 December 1982 when 15 prominent opponents of the Bouterse regime were arrested, tortured and summarily executed.314 In considering whether or not to order the Public Prosecutor to commence a prosecution, the Amsterdam Court of Appeal asked for expert advice on international law from Professor John Dugard.315 The Court noted that a crime against humanity need not be committed on a ‘mass scale’ provided that ‘the offence has been committed and/or prepared in a systematic manner in relation to a population group’.316 The Court accepted the conclusion of the expert that the acts could be considered crimes against humanity under customary international law.317 The Court found that these were not acts of ‘sporadic violence on an individual basis’ but rather the ‘deliberate liquidation of a select group of people’.318 They were found to be committed in a systematic manner as part of an organised plan by the military authorities, of which Bouterse was commander, against a group of civilians being the intellectual elite, with the intent to ‘intimidate the 311 (Netherlands) International Crimes Act 2003, s 16. 312 The prosecutions under the previous Act have been discussed in Chapter 3. 313 (Netherlands) Wijngaarde et al. v Bouterse (Judgment), Amsterdam Court of Appeal (20 November 2000) (‘Bouterse – Appeal’) translated in (2000) 3 Yearbook of International Humanitarian Law 677. 314 See, for example, the report of Mr S. Amos Wako, un Special Rapporteur, on summary or arbitrary executions: Question of the Violation of Human Rights and Fundamental Freedoms in any Part of the World, with Particular Reference to Colonial and Other Dependent Countries and Territories: Summary or Arbitrary Executions: Report, 41st sess, Agenda Item 12, un Doc E/CN.4/1985/17 (12 February 1985). 315 For a summary, see Reydams, above n 211, 173–178. 316 (Netherlands) Bouterse – Appeal, above n 313, [5.3.4]. 317 (Netherlands) Bouterse – Appeal, above n 313, [5.1]. 318 (Netherlands) Bouterse – Appeal, above n 313, [5.3.6].

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population of Surinam and smother any further opposition to the administration’.319 This would suggest that a very low threshold is involved in the notion of ‘a widespread or systematic attack directed against any civilian population’. The Court also agreed with the expert that ‘back in 1982, crimes against humanity (probably) could be committed not only during war or armed conflict, but also in time of peace’.320 Further, it found that crimes against humanity are imprescriptible, the subject of universal jurisdiction (even without the presence of the defendant)321 and cannot be attributed to the official functions of a head of state so as to attract immunity.322 The Court concluded, however, that as crimes against humanity had not been incorporated into local law it had no jurisdiction. Since Bouterse, crimes against humanity has been considered on a number of occasions. In one case, the Dutch Court of Appeal in the Hague undertook a detailed consideration as to whether crimes against humanity had occurred in the context of the Tamil Tigers in Sri Lanka.323 More unusually, the question for consideration was whether the Tamil Tigers had committed an attack against the Tamil population by way of imprisonment or serious deprivation of liberty. The Court set out the principles for crimes against humanity largely in line with the ad hoc Tribunals, although it appeared to state that pursuant to Article 7 of the icc Statute the attack must be committed pursuant to a State or organizational policy.324 The Court stated that a level of actual control over territory was necessary to demonstrate that a non-state entity or armed opposition group had a policy to attack the civilian population. Applied to the facts, the Court found a crime against humanity was satisfied.325 The Court considered that an attack could be committed not only by 319 (Netherlands) Bouterse – Appeal, above n 313, [5.3.6]. 320 (Netherlands) Bouterse – Appeal, above n 313, [5.2]. Professor Dugard had reservations in this respect. His opinion states that ‘whether this was the position in 1982 is not entirely free from doubt, particularly in respect of armed conflict’: see Reydams, above n 211, 175. 321 This was overturned in respect of the charges of torture: 18 September 2001 (Supreme Court decision), see Reydams, above n 211, 173–178. 322 (Netherlands) Bouterse – Appeal, above n 313, [4.2] and [5.1]. 323 (Netherlands) Gerechtshof Den Haag [Court of Appeal of The Hague], Case No 22005123-11 (ECLI:NL:GHDHA:2015:1082) (30 April 2015) (‘ltte Case – Appeal’). For the discussion on crimes against humanity in particular, see: §§11.3.2.3.1.1–11.3.2.3.1.2. The decision was affirmed by the Supreme Court albeit without substantive discussion: see Hoge Raad der Nederlanden (Supreme Court of the Netherlands), Case No 15/04693 (ECLI:NL:HR:2017:578) (4 April 2017). 324 (Netherlands) ltte Case – Appeal, above n 323, §11.3.2.3.1.1 Ad (iii). 325 (Netherlands) ltte Case – Appeal, above n 323, §11.3.2.3.1.2.

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violence but also by repeatedly committed acts of imprisonment and deprivation of liberty. The Tamil Tigers restricted the movement of Tamils (including trapping many in the hazardous conflict zone during the 2008/2009 civil war), forced civilians to engage in labour such as digging trenches for fighters, recruited and deployed child solders, abducted various civilians and engaged in ‘countless’ murders of Tamil politicians who the Tamil Tigers thought may be willing to compromise with the Sri Lanka Government. Over the course of 25 years, the Tamil Tigers were said to have been responsible for hundreds of civilian attacks involving thousands of people. The Court found that the Tamil Tigers had de facto control over territory and their actions constituted a widespread and systematic attack against the civilian population to pursue their ultimate goal of establishing a separate state. Other first instance decisions are also of note. Two more ‘typical’ cases involved violations committed by the Eritrean state against its people326 and violence committed by the Lord’s Liberation Army in Uganda.327 In a less typical case, the Rechtbank’s-Gravenhage Court in one case accepted that the Russian massacre at Samashki, Chechnya, during the First Chechen War in April 1995 constituted a crime against humanity (although neither party disputed that fact).328 According to a report from Amnesty International which appeared to be relied upon by the court, 250 innocent and defenceless civilians were deliberately and arbitrary killed by shooting, flamethrowers and the burning down of houses.329 3.5 Spain330 3.5.1 Legislation Crimes against humanity are proscribed in Spain through the Spanish Criminal Code. Chapter IIbis of Section xxiv of Book ii incorporates Article 7 of the icc Statute, but with some textual differences.331 Article 607bis of the Spanish 326 (Netherlands) Rechtbank’s Gravenhage, Case No awb 10/28846 (ECLI:NL:RBSGR: 2011:BR1287) (23 June 2011). 327 (Netherlands) Rechtbank’s Gravenhage, Case No awb 05/7166 (ECLI:NL:RBSGR: 2006:AW2417) (12 January 2006). 328 (Netherlands) Rechtbank’s Gravenhage, Case No awb 02/44076 (ECLI:NL:RBSGR: 2003:AN8981) (29 August 2003). 329 See ‘Amnesty International Report 1996 – Russia’ (1 January 1998), accessed online at on 13 September 2017. 330 The authors would like to acknowledge the assistance of Alba Martí with this section. 331 See generally: Carnero Rojo, ‘National Legislation Providing for the Prosecution and Punishment of International Crimes in Spain’ (2011) 9(3) Journal of International Criminal Justice 699.

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Penal Code proscribes crimes against humanity (introduced with effect from 1 October 2004) but without any grant of extraterritorial jurisdiction.332 It requires the nominated offences to be carried out in the context of a ‘widespread or systematic attack against a civilian population or part thereof’: 1.

2.

By reason of the identity of the victim to a group or collectivity persecuted on racial, national, ethnic, cultural, religious or political grounds or other grounds universally recognised as impermissible under the rules of international law. In the context of an institutionalised 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.

There are a number of points of note in this definition. First, the relevant attack must be against ‘the civilian population or a part thereof’ rather than ‘any civilian population’.333 Secondly, it seems to limit crimes against humanity to situations of persecution or apartheid. Spanish law (like Germany and Italy, but unlike Australia, the us and Canada) adopts a system of mandatory prosecution meaning that the authorities have no discretion as to whether to initiate criminal proceedings when they learn of the commission of a crime.334 However, unlike other continental law jurisdictions (e.g. France), a trial cannot take place in the absence of the defendant.335 Finally, under the Spanish legal system, the icc Statute is automatically incorporated into Spanish law.336 Spain is also notable for its relationship with universal jurisdiction. When first enacted in 1985, the Spanish Law on the Judiciary ( Judiciary Law) enabled Spanish judges and magistrates with the jurisdiction over international crimes committed by ‘Spaniards or foreigners outside the national territory’.337 While some early jurisprudence of the Audiencia Nacional suggested that this provision was limited by the ‘subsidiarity’ and ‘connection point’ principles, the Constitutional Court confirmed in 2005 and 2007 that 332 (Spain) See Ley Orgánica 15/2003 (25 November 2003). Article 23(4) of the Judicial Branch Act 1985 (or ‘Judiciary Law’) establishes that Spanish courts have jurisdiction over certain crimes committed abroad by Spanish or foreign citizens. 333 Cf. Article 607(1), Rome Statute, Art 7(1). 334 (Spain) Code of Criminal Procedure, Arts 105, 269 and 777. 335 (Spain) Code of Criminal Procedure, Arts 786 and 841. 336 Rojo, above n 331, 705. 337 (Spain) Judiciary Law, Art 23(4).

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Article 23(4) of the Judiciary Law established an ‘absolute principle of universal jurisdiction’.338 In 2009, however, in light of this finding and the economic and diplomatic pressures placed on the Spanish government,339 the legislation was amended to require that jurisdiction over international crimes committed outside Spain require that ‘those responsible for the crimes are in Spain or that there are victims of Spanish nationality, or that a link of relevant connection with Spain is ascertained’.340 Further, in a similar way to Belgium and Germany, proceedings are to be suspended if there are other ‘effective’ proceedings outside Spain concerning the same allegations.341 In 2014, the legislation was again amended to further restrict the scope and operation of the Judiciary Law.342 The Bill was reportedly fast-tracked by the Spanish Parliament after a strong rebuke from China in respect of the request by one Court to interpol to issue an arrest warrant for Chinese President, Jiang Zemin.343 The 2014 amendments now limit the scope of the legislation in respect of acts committed outside Spain to where the proceedings are against a Spanish national or resident (active personality) or a person residing in Spain whose extradition has been refused. This was said by the Ministry of Foreign Affairs and Cooperation to retain the requirement of a link to Spain as well as the principle of subsidiarity. Further, amendments also extend the jurisdiction of Spanish courts to circumstances where they are bound to prosecute by a treaty or any other ‘normative instruments of an international organisation’ of which Spain is a member.344 338 (Spain) Guatemala Genocide Case, Constitutional Tribunal of Spain, Judgment No stc 237/2005 (26 September 2005) (‘Guatemala Genocide Case – Constitutional Court’), legal finding 3; and Jiang Zemin et al., Constitutional Tribunal of Spain, Judgment No stc 227/2007 (22 October 2007), legal finding 5(a). 339 See Rojo, above n 331, 715. 340 (Spain) Organic Law 1/2009 (3 November 2009), Complementary to the Law Reforming the Procedural Legislation for the Implementation of the New Judicial Office, Article 1(1) (whereby Organic Law 6/1985 on the Judiciary is amended), cited in Rojo, above n 331, 713. 341 Rojo, above n 331, 713–714. 342 (Spain) Ministry of Foreign Affairs and Cooperation, ‘Contribution of Spain on the topic “The scope and application of the principle of universal jurisdiction”’ (22 February 2016), accessed online at on 3 July 2017. 343 Ashifa Kassam, ‘Spain moves to curb legal convention allowing trials of foreign rights abuses’, The Guardian (12 February 2014), accessed online at on 15 September 2017. 344 Kassam, above n 343.

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A transitional provision in the amendments has had the effect of staying universal jurisdiction prosecutions that were initiated prior to the amendments and in progress at the time of the amendments’ entry into force, until it can be verified that they meet the requirements established by the amendments. This amendment appears to have had the intended effect of restricting the number of prosecutions brought under universal jurisdiction in Spain, with an almost absolute decline in numbers since the passage of the amendments. A number of cases relating to genocide and torture offences have been stayed, but not definitively closed, including the Tibetan case and the Falun Gong case, both of which involved allegations against a number of Chinese leaders.345 The former case is discussed below. 3.5.2 Jurisprudence (a) Scilingo and Universal Jurisdiction Spanish courts have exercised jurisdiction over a wide range of cases, including over officials in the us, the uk, Israel, Morocco and Myanmar.346 After the introduction of a requirement of a connection to Spain, the legislation left some scope for debate as to what would amount to the necessary connection to Spain.347 In the Supreme Court decision in the Ríos Montt et al. (Genocide Case),348 concerning crimes committed in Guatemala, the majority required a link to Spain either by way of the nationality of the victims, the offenders being in Spain or some other direct link with national interests, while the dissenting opinion considered that cultural, historical, social, linguistic and legal links sufficed for the relevant connection.349 This decision was overturned by the Constitutional Court, which took a literal approach to the provision, stating that the provision established absolute universal jurisdiction.350 The court held that 345 Kassam, above n 343. 346 See cases cited in Rojo, above n 331, 716, fns 67–74. 347 Carnero Rojo cites examples of a connection to Spain include: Spanish language, presence in Spain of an important number of victims, use in Spanish proceedings of information obtained through international crimes, membership in an international organization to which Spain belongs, Spanish administrative relation with a non-autonomous territory: Rojo, above n 331, 714. 348 See discussion in Naomi Roht-Arriaza, ‘Guatemala Genocide Case’ (2006) 100 American Journal of International Law 207. 349 (Spain) Summario (Investigation), Supreme Tribunal Criminal Chamber of Madrid, Appeal No 803/2001 (25 February 2003), Separate Dissenting Opinion, legal finding 12. 350 (Spain) Guatemala Genocide, Judgment No stc 237/2005, Constitutional Court (26 September 2005), Legal Reasoning, 3.

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this did not prevent the establishment of overlaying limiting criteria provided that it was not disproportionate to providing effective judicial protection.351 By contrast, more recent cases were dismissed against us and uk politicians in respect of the war in Iraq352 as well as against Moroccan police for crimes alleged to have been committed in Western Sahara, a former Spanish colony because of a lack of connection with Spain.353 The question arose for consideration by the Spanish Supreme Court in respect of crimes committed in Argentina (discussed immediately below). However, only one case concerning crimes against humanity has been fully adjudicated in Spain – the case of Adolfo Scilingo. On 25 April 2005, Scilingo was found guilty of crimes against humanity under Article 607bis by Spain’s Audiencia National for 30 premeditated murders, illegal detention and torture.354 The decision was approved by the Criminal Chamber of the Spanish Supreme Court in November 2007.355 Scilingo was a former navy captain in Argentina who voluntarily appeared before Judge Garzόn, leading to his arrest and trial. He was found to have been involved in the ‘death flights’ during Argentina’s military rule from 1976 to 1983, in which those considered to be subversive to the government were thrown out of airplanes. As the Supreme Court noted, after the 1976 coup in Argentina, the Argentine military took steps to ‘design, develop and carry out a systematic criminal plan of kidnapping, torture, disappearance and, finally, physical elimination of all of that part of the citizenry who were reputedly suspected of being “subversive” … fundamentally for political or ideological motives, although ethnic and religious views would carry some influence.’356 351 Ibid. 352 (Spain) Diligencias previas (Decision on Preliminary Investigation), Central Investigative Judge No 1 of the National Court, Madrid (23 November 2009), legal finding 1. 353 (Spain) Diligencias previas (Decision on Preliminary Investigation), Central Investigative Judge No 3 of the National Court, Madrid (4 December 2009). 354 (Spain) Sentencia por crímenes contra la humanidad en el caso Adolfo Scilingo, Audiencia National Española, Case No 16/2005 (19 April 2005) (‘Scilingo – Audiencia National’), accessed online at on 14 January 2006. 355 (Spain) Spanish version accessed online at on 13 March 2013 (‘Scilingo – Supreme Court’). See also Richard Wilson, ‘Spanish Supreme Court Affirms Conviction of Argentine Former Naval Officer for Crimes Against Humanity’ (2008) Washington College of Law Research Paper No 2008-30. 356 (Spain) Scilingo – Supreme Court, above n 355, Primero, translated in Wilson, above n 355, 4.

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The first instance court said the autonomy of crimes against humanity from situations of war had become progressively established. It relied upon some jurisprudence of the icty and held that ‘attack against the civilian population’ ‘at the moment’ means in accordance with policies of a state or non-state organisation that exerts ‘de facto’ political power. The Court held that this internationalised the offences because it made internal prosecution extremely difficult or impossible. It found Scilingo’s acts were part of a plan devised and executed by the Argentine Armed Forces for the establishment of a certain political and ideological system which included the elimination of that part of the national population which for political, ideological or religious reasons could represent an obstacle to such objectives. Hence, it found the chapeau element in Article 607bis was satisfied. The first instance court held crimes against humanity was an existing crime of jus cogens, with erga omnes obligations on all states, permitting the exercise of universal jurisdiction on behalf of all humanity. This allowed the Court to say Article 607bis applied both retrospectively and to acts committed abroad, despite the absence of any express grant of jurisdiction to this effect. This conclusion has attracted criticism both as a matter of international law and as an application of Spanish domestic law.357 The Court also relied upon Article 17 of the icc Statute to hold that jurisdiction could be assumed by Spain, given that Argentina was unable to prosecute owing to the amnesties in Argentinean law, making the local jurisdiction ineffective or non-existent. The Supreme Court largely confirmed these findings, although its reasoning appeared to differ. After considering the development of international criminal law (including Nuremberg, the ad hoc Tribunals and the icc as well as national prosecutions such as Barbie in France, Menton in the Netherlands, and Finta in Canada), the Court concluded that the customary international law status of such norms could not per se incorporate customary international law into Spanish domestic law.358 However, the Court found that, while c­ ustomary international law cannot create a ‘complete new offence’ applicable in Spanish courts, given the requirement in Article 10.2 of the Constitution to interpret laws in line with international human rights law, the Courts could not ignore 357 See Christian Tomuschat, ‘Issues of Jurisdiction in the Scilingo Case’ (2005) 3(5) Journal of International Criminal Justice 1074, where the author faults the Court’s view that universal jurisdiction over crimes against humanity exists as a matter of customary law; and Alicia Gil Gil, ‘The Flaws in the Scilingo Judgment’ (2005) 3(5) Journal of International Criminal Justice 1082, where the author argues that it offends the nullum crimen principle under Spanish law to apply the specific domestic offence retrospectively. 358 (Spain) Scilingo – Supreme Court, above n 355, Fundamentos, Sexto, [3]–[4].

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international criminal law norms, especially where those norms have acquired the status of jus cogens.359 Accordingly, the court considered the conviction did not violate the principle of legality given the crime was clearly foreseeable at the time of the offence as the underlying crimes of murder and unlawful detention already constituted crimes under domestic law, such a conviction did not violate the principle of non-retroactivity (in contrast to the underlying crime of torture, for which charges were dismissed by the Court), and crimes against humanity were proscribed under customary international law at the time of the offending.360 This included a definition of crimes against humanity without a war nexus.361 Insofar as universal jurisdiction under Article 23(4) was concerned, while the Court found that the Court had jurisdiction over Scilingo, the Court disagreed with the approach taken by the Constitutional Court in the Guatemalan Genocide case (although not specifically discussing to it362). The Court held that, in the absence of ‘an international agreement or a decision of the un bodies’, it is ‘advisable to have a connection to national interests’ in order to sufficiently justify the intervention of the organs of the judiciary of one State into events that have taken place in the territory under the sovereignty of another state.363 It held that the presence of this link was ‘indisputable’ in the case of Scilingo given that there were Spanish victims and the defendant was present in Spain.364 The Supreme Court again considered the issue since Scilingo in an appeal against the dismissal of the case concerning offences alleged to have been committed in Tibet on 5 June 2016.365 This decision arose after the introduction of the 2014 laws restricted the exercise of universal jurisdiction to either active personality or presence in the jurisdiction where an extradition request had been made but refused. The Court dismissed the complaint. The Court held that the existence of universal jurisdiction does not require states to extend their jurisdiction to persons who are not on their territory or in their area of sovereignty for crimes committed anywhere in the world.366 359 (Spain) Scilingo – Supreme Court, above n 355, Fundamentos, Sexto, [4]–[5]. 360 (Spain) Scilingo – Supreme Court, above n 355, Fundamentos, Sexto, [6]–[9]. 361 (Spain) Scilingo – Supreme Court, above n 355, Fundamentos, Sexto, [7]. 362 Although reference was made to the decision: (Spain) Scilingo – Supreme Court, above n 355, 7.1 (citing ‘stc 237/2005’). 363 (Spain) Scilingo – Supreme Court, above n 355, Fundamentos, Septimo, [1]. 364 (Spain) Scilingo – Supreme Court, above n 355, Fundamentos, Septimo, [1]. 365 (Spain) Supreme Court (Criminal Chamber), Case No 1682/2014 (ES:TS:2015:2046) (6 May 2015) (‘Tibet Case – Supreme Court’). 366 (Spain) Tibet Case – Supreme Court, above n 365, [7].

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The exercise of universal jurisdiction is to ensure that the most serious international crimes do not go unpunished and to eliminate the possibility of the state being used as a safe haven for offenders.367 The Court held that the requirement of a connecting link between the criminal acts and the State exercising jurisdiction is a reasonable restriction to prevent the proliferation of foreign actions and overuse of national courts in circumstances where there is no connection to Spain.368 The Court held that the difficulties with previous forms of legislation – ­including the indeterminacy of the requirement of a judicially-determined connecting link – led the legislature to determine in 2014 to retain the subsidiarity principle and to determine the connecting links to Spain that are ­necessary for the Court to hear foreign claims.369 The Court cited the ­Explanatory ­Memorandum to the Act which held the concern that extension of ­Spanish jurisdiction beyond its territory should be justified and legitimised by an international treaty such as the Statute of the International Criminal Court.370 The Court also reviewed the practice of a number of states and concluded that customary international law did not support any obligation upon a state to exercise universal jurisdiction. (b) Franco-era Crimes A more recent area of controversy in Spain has been the decision by investigating Judge Baltasar Garzόn in 2008 to open an investigation into the crimes of the Spanish civil war.371 During the Spanish Civil war (1936–1939), an estimated 250,000–500,000 Republican sympathisers were forced into exile and as many as 115,000 unmarked graves are alleged to exist.372 The claim is that General 367 (Spain) Tibet Case – Supreme Court, above n 365, [7]–[8]. 368 (Spain) Tibet Case – Supreme Court, above n 365, [10]. 369 (Spain) Tibet Case – Supreme Court, above n 365, [15]. 370 (Spain) Tibet Case – Supreme Court, above n 365, [15]. 371 (Spain) Diligencias previas (Decision on Preliminary Investigative Proceedings), Central Investigative Judge No 5, Case No 399/2006 (16 October 2008) (after the prosecutor (Fiscal) refused to support him opening the proceedings, Judge Garzόn considerably expanded his reasons in Summario, procedimiento ordinario (summary proceed) 53/2008 E. decision of 18 November 2008 of Central Investigative Judge No 5). See the discussion in Peter Burbidge, ‘Waking the Dead of the Spanish Civil War: Judge Baltasar Garzόn and the Spanish Law of Historical Memory’ (2011) 9 Journal of International Criminal Justice 753. 372 M. Leo Brincat (Rapporteur to the Political Affairs Committee), Doc 10737, adopted by the Standing Committee of the Council of Europe on 17 March 2006; see also Burbidge, above n 371, 756.

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Franco’s forces perpetrated a systematic plan for the elimination of political opponents through murder, torture, exile and forced disappearances committed between 1936 and 1951.373 As the Franco regime sought to gain respectability, it began to destroy the record of its past crimes with as much as 40% of the archives of the police, local authorities, civil governors and the Falangist party being allegedly destroyed.374 In 1977, however, an amnesty (the Ley de Amnistia) was granted for crimes committed on both sides of the conflict in order to pave the way for a new constitution in 1978.375 Article 1 accords an amnesty to ‘all politically motivated acts, whatever might be their result, consisting of crimes committed before ­December 1976’. However, the ambit of the Amnesty was left to judges, which are bound by Article 10(2) of the Constitution to interpret rules of ­international legal conventions and judgments of international courts such as the E ­ CtHR as binding. While the amnesty covered both sides, in effect, the ­amnesty benefited largely those who carried out crimes on behalf of Franco or the Falagista (fascist) movement. The reaction in Spain to Judge Garzón’s opening of an investigation into these crimes despite the amnesty was a great deal of controversy – including the prosecution of Judge Garzόn himself for the crime of prevaricacion (misuse of power) in knowingly making a biased and unfair decision, although the case was brought by the current Falangistas rather than the public prosecutor. Judge Garzón found that the facts alleged in the indictment could amount to crimes against humanity. Judge Garzón noted that the notion of crimes against humanity in Article 607 of the Spanish Penal Code is incorporated in terms almost identical to those of Article 7 of the Rome Statute.376 Applied to the case at hand, Judge Garzón found that the ‘systematic’ crimes being investigated were the continuing crime of unlawful detention without knowledge of the whereabouts of the victim, committed within the framework of crimes against humanity (i.e. enforced disappearances).377 Judge Garzón made a number of findings that are of importance.378 First, Judge Garzón held that there was no violation of the non-retroactivity of criminal law (namely, that it was only in 2004 that crimes against humanity became a crime under the Spanish Penal Code) because, as found in Scilingo, the Act 373 374 375 376 377 378

Burbidge, above n 371, 762. Burbidge, above n 371, 757. Burbidge, above n 371, 754. Burbidge, above n 371, 762. Burbidge, above n 371, 762. The obstacles are discussed in detail in Burbidge, above n 371, 764ff.

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applied retrospectively to what was criminal under customary international law at the time. Secondly, Judge Garzón appeared to find that, at the outbreak of the Spanish Civil War (namely, 1936), customary international law recognised certain ­serious war crimes and therefore it recognised crimes that were at least ‘equivalent’ to crimes against humanity.379 The Judge relied on the post-war ‘Nuremberg’ judgments, which in turn relied on previous conventions such as the Geneva Convention of 1864, the Hague Conventions of 1899 and 1907 and the Martens clause.380 The difficulty with reliance on these conventions – used to justify charges of crimes of crimes against humanity during the Second World War – is that they apply to wars between states, not internal armed conflict within a state. Nevertheless, Judge Garzón reasoned that even if enforced disappearances were not criminalised as a crime against humanity, ‘illegal detention’ was an existing crime under Articles 474–476 of the Spanish Penal Code at the time and therefore could be ‘elevated’ into a crime against humanity in the context of a systematic attack on the republican state and its followers. As Burbidge points out, Judge Garzón appeared to rely on the notion of non-retroactivity in Article 15 of the iccpr, whereby the principle of non-­ retroactivity should not prejudice the trial and punishment ‘for any act or omission which at the time when it was committed was criminal according to the general principles of law recognised by the community of nations’.381 Accordingly, a court will not be acting retroactively in interpreting a crime through its subsequent case law provided that the result is coherent with the substance of the offence and is reasonably foreseeable.382 This was one of the other arguments supporting the charge of crimes against humanity at Nuremberg.383 Thirdly, Judge Garzón relied on the continuing nature of the crimes committed, namely, that many persons had disappeared without their whereabouts being known or able to be traced and that therefore prescription ran at least until December 1978, before which criminal proceedings would have 379 380 381 382

Burbidge, above n 371, 767. Burbidge, above n 371, 766. Burbidge, above n 371, 767. Burbidge, above n 371, 767, citing (ECtHR) Ould Dah v France (Decision on Admissibility), European Court of Human Rights, App No 13113/03 (17 March 2009) (‘Ould Dah v France – Admissibility’); and Korbely v Hungary (Judgment), European Court of Human Rights, App No 9174/02 (19 September 2008) (‘Korbely v Hungary’) (where it was accepted that a policeman shooting an insurgent during the 1956 Hungarian uprising would have been aware of the existence of crimes against humanity because of the publication of the Geneva Conventions at the time (at [73]–[75])). 383 See the discussion in Chapter 2, Sections 7.1 and 7.5.

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been impossible.384 A difficulty with this argument is its artificiality. Once a victim’s disappearance and presumed death is well known it is hard to regard the commission of the crime as ongoing. Another view is that the crime of illegal detention ends once the death of the victim has become ‘notorious’.385 As Burbidge points out, however, this finding is strengthened by the position of the ECtHR decision in Streletz that, until an authoritarian regime was replaced by the rule of law which removed the impunity of its leaders, prescription could not run.386 Further, Spain has ratified the un Convention on Protection against Forced Disappearances, which recognises that forced disappearances are crimes against humanity for as long as those responsible continue to conceal their fate and the facts have not been cleared up. Fourthly, Judge Garzón held that the 1977 Ley Amnestia did not prevent him from initiating an investigation. In doing so, the judge referred to political discussions at the time of the amnesty which included the need to eliminate discriminatory measures in the 1940s but nevertheless left deliberately open the meaning of a political crime under the law. Burbidge notes that support for this proposition can be found from the fact that the discussion at the time did not refer to violent crimes such as enforced disappearances,387 that ECtHR has ruled on the inapplicability of amnesties in the case of Ely Ould Dah388 and that many international courts have also done so.389 The Supreme Court of Spain decided the misuse of power case brought by the Sindicato de Funcionarios Manos Limpias and the Asociación Civil Libertad e Identidad against Judge Garzón on 27 February 2012.390 The Court found that Judge Garzón did act in excess of power but that such excess did not amount to 384 Burbidge, above n 371, 768. 385 Chief Prosecutor Javier-Alberto Zaragoza Aguado, Report in support of appeal against Garzón’s competency to open proceedings (23 October 2008), cited in Burbidge, above n 371, 765, fn 46. 386 (ECtHR) Streletz, Kessler and Krenz v Germany (Judgment), European Court of ­Human Rights, App Nos 34044/96, 35532/97 and 44801/98 (22 March 2001) (‘Streletz et al. – Appeal’). 387 Burbidge, above n 371, 773. 388 (ECtHR) Ould Dah v France – Admissibility, above n 382 (finding that the French courts could try Ould Dah, a Mauritanian national, for torturing prisoners in Mauritania even though he was protected by an amnesty in Mauritania on the basis of Article 689.1 of the French Code of Penal Procedure). 389 See Chapter 11. 390 (Spain) Criminal Law Chamber of the Supreme Court (on behalf of Civil Servants Trade Union Clean Hands and Civil Association Liberty and Identity v Baltasar Garzón Real) (Appeal Judgment), Spanish Supreme Court, Judgment No. 101/2012 (27 February 2012).

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­ nfairness required for prevaricación. The Court held that Judge Garzón had in u 2008 made an erroneous assessment of the applicable law, and that customary international law could not be used to overcome the deficiencies of Spanish law. Having regard to the principles of retroactivity and legality, it was held that although crimes against humanity were proscribed by several treaties to which Spain was a party in 2008, this proscription could not be applied retroactively to crimes committed before the incorporation of those crimes into Spanish law. In respect of the amnesty issue, the Court held that any voiding of the Amnesty Act was impermissible on similar grounds of retroactivity. The Court further noted that even if a jus cogens norm prohibiting amnesties was accepted, a step annulling the Amnesty Act was one for the legislature rather than a PreTrial Judge. Ultimately, the Supreme Court considered the criminal procedures initiated by Judge Garzón to be ‘truth trials’ that were incompatible with the purposes of existing criminal procedures in Spain, and beyond the role of a Pre-Trial Judge to decide. (c) Other Jurisprudence The concept of crimes against humanity has also arisen in a number of other contexts. On 15 March 2017, the Audiencia Nacional acquitted an ex-Minister of Guatemala, Carlos Vielmann, for crimes against humanity in circumstances where he was alleged to have extrajudicially killed 10 people.391 While the majority assumed (and the dissenting opinion found) that the acts were carried out by a parallel police structure organised by senior police officials, it was held that the actions were not widespread or systematic or representing facts embedded in broader social cleansing or the implementation of some state or parastatal policy.392 The dissenting opinion found, however, that the actions did, however, warrant the categorization of terrorism.393 More controversial have been the cases against various leaders of the Basque separatist group, Euskadi Ta Askatasuna (eta). In one decision on 27 October 2015, the Audiencia Nacional committed for trial five eta leaders on charges including crimes against humanity.394 The Court heard allegations that the eta had undertaken a series of violent acts since 1978 with the intention of 391 (Spain) Audiencia Nacional (Criminal Chamber), Judgment No. 5/2017, (6 March 2016) (‘Vielmann – Audiencia Nacional’). 392 (Spain) Vielmann – Audiencia Nacional, above n 391, 20 [2] (majority opinion). 393 (Spain) Vielmann – Audiencia Nacional, above n 391, [39]. 394 (Spain) Audiencia Nacional (Criminal Chamber), Judgment No. 3/2015 (27 October 2015) (‘First eta Case – Audiencia Nacional’), available online at .

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terrorising the population and creating a separate Basque state in Spain. This included the murder and kidnapping of selected targets aimed at impeding or hindering the Spanish state and those not seen as loyal to the eta. During the period from 1 October 2004395 to around May 2010, the eta was said to have killed 11 people.396 After noting the necessarily preliminary nature of the proceedings and the decision that the Court was required to make, the Court stated with minimal analysis that the facts described in the background would constitute a crime against humanity.397 The Court considered that the victims were eliminated in order to create a climate of fear and insecurity and were killed indiscriminately because they belonged to particular groups.398 The actions amounted to a widespread or systematic attack against a civilian population designed to neutralise those in the way of achieving the eta’s political objectives.399 There are difficulties with this decision. It is not clear whether, despite dismissing the criminal charges prior to 1 October 2004, the Court considered the chapeau satisfied only on the basis of conduct since 1 October 2004 or whether the background prior to that period was also taken into consideration. ­Further, the Court did not discuss any case law, treaties or other state p ­ ractice  – ­including the decision of its own Audiencia Nacional in Scilingo where a de facto power was held to be required. Any persuasive discussion would need to confront the icty decision in Limaj, Article 7 of the icc Statute and the various states practice on whether small attacks such as this or from non-state entities such as the eta would be sufficient to amount to a crime against humanity. These issues are discussed below and in Chapter 8. In another decision involving a greater level of discussion, on 8 April 2016, a different Chamber of the Audiencia Nacional dismissed the allegations before it concerning the eta having committed crimes against humanity.400 It was alleged that a crime against humanity was satisfied in part on the basis that the 395 (Spain) Those charges had been limited to a time period from 1 October 2004 onwards when crimes against humanity were implemented in Spain: Audiencia Nacional (Criminal Chamber), N° Recurso: 406/2015, Penal – Apelacion Procedimiento Abreviado (24  September 2015); Audiencia Nacional (Criminal Chamber), N° Recurso: 407/2015, Penal  – Apelacion Procedimiento Abreviado (24 September 2015); Audiencia Nacional (Criminal Chamber), N° Recurso: 408/2015, Penal – Apelacion Procedimiento Abreviado (24 September 2015), all available online at . 396 (Spain) First eta Case – Audiencia Nacional, above n 394, [13]. 397 (Spain) First eta Case – Audiencia Nacional, above n 394, [16]. 398 (Spain) First eta Case – Audiencia Nacional, above n 394, [17]. 399 (Spain) First eta Case – Audiencia Nacional, above n 394, [18]. 400 (Spain) Audiencia Nacional (Criminal Chamber), Judgment No 155/2016 (8 April 2016) (‘Second eta Case – Audiencia Nacional’).

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eta had perpetrated some 379 murders of individuals including top leaders. While the time period is not specified by the Court, presumably it extended from its inception in the 1970s to the time of hearing. The Court found the eta did not have the coherence to implement a large-scale policy or materially ­affect the de jure institutions to be the author of a crime against h ­ umanity. The Court applied the law largely consistently with Scilingo insofar as the policy element was concerned but distinguished the facts from the case before it.401 The Court considered that crimes against humanity are significant both because they rise to the level of international concern and because they are committed by the state or a non-state entity whose ability to affect the international community is comparable to that of a state.402 The Court held while terrorism can affect a high number of victims and be transnational, that does not suffice to make it a crime against humanity; what is necessary is that it be perpetrated by a particular author that has a greater capability to cause harm and challenge political institutions. Relying upon Article 7 of the icc Statute, the Court held that it is necessary that the attack be perpetrated pursuant to the policy (including by way of tolerance or acquiescence) of a state (e.g. certain paramilitary groups) or de facto power such as armed opposition groups, rebel groups or certain guerrillas in certain circumstances.403 A terrorist organisation, by contrast lacks the material means to implement a large-scale policy as required by a crime against humanity. Unless the organisation has the tolerance of some apparatus of state power or de facto control of territory, it does not satisfy the policy element and its actions are random and isolated in nature. 3.6 Norway 3.6.1 Legislation In 2005, Norway completed an extensive revision of its Penal Code (dating back to 1902) and included criminal offences for a number of international crimes, including crimes against humanity (contained at § 102 of the Criminal Code). The provisions came into effect on 7 March 2008.404 The provisions are largely in line with the icc Statue – including, for instance, the expanded definition of the sexual offences, expanded grounds of persecution and the inclusion of the crime of apartheid. The one notable deviation, however, is that 401 (Spain) Second eta Case – Audiencia Nacional, above n 400, [14]–[17]. 402 (Spain) Second eta Case – Audiencia Nacional, above n 400, [10]–[13]. 403 (Spain) Second eta Case – Audiencia Nacional, above n 400, [10]–[13] and [19]–[20]. 404 (Norway) Law No. 28/2005, accessed online at on 22 March 2014.

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crimes against humanity are not required to be committed pursuant to a state or organisational policy.405 By virtue of § 5, Norwegian courts have extraterritorial jurisdiction over crimes against humanity where the acts were committed by a Norwegian citizen or a Norwegian resident – including where the person later becomes a Norwegian citizen or Norwegian resident. 3.6.2 Jurisprudence The first test for the Norwegian legislation involved the case of Mirsad Repak, a Bosnian lieutenant of the Croatian Defence Force militia group operating the Dretelj detention camp during the Yugoslav war.406 At the camp, civilians were abused, tortured, raped and at least two were murdered. The Oslo District Court dismissed the case insofar as it related to crimes against humanity on the basis that crimes against humanity was not proscribed in Norway in 1992 – and therefore that any punishment would be retroactive.407 While the case in respect of war crimes was allowed to stand, and Repak was convicted and sentenced to 5 years’ imprisonment, the defendant was acquitted and the conviction overturned by the Norwegian Supreme Court on the same basis as the charge in respect of crimes against humanity. 4

Latin American States

4.1 Argentina408 4.1.1 Legislation Argentina ratified the icc Statute in November 2000409 and adopted an implementation law in 13 December 2006,410 the Law on the implementation of the 405 See online at accessed on 19 ­November 2013. 406 (Norway) Public Prosecutor v Mirsad Repak (Judgment), District Court of Oslo, Case No. 080-108985MED-OTIR/08 (2 December 2008) (‘Repak – Trial’). For discussion of the case, see Simon O’Connor, ‘War Crimes before the Norwegian Supreme Court: The Obligation to Prosecute and the Principle of Legality – An Incumbrance or Opportunity?’ (2013) Working Paper: Oxford Institute for Ethics, Law and Armed Conflict, accessed online at on 22 March 2014. 407 (Norway) Repak – Trial, above n 406, [7] and [9]. 408 The authors would like to acknowledge the assistance of Hernán Guaita with this section. 409 Law No. 25390 of 2000 410 Law No. 26200 of 2006.

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Rome Statute of the International Criminal Court.411 The Law simply refers to those articles in the icc Statute which relate to the crime of genocide, crimes against humanity and war crimes, thereby incorporating them verbatim into Argentine law. Jurisdiction over such crimes extends to crimes committed in Argentina, and crimes committed overseas by state agents in the exercise of their functions or by persons domiciled in Argentina.412 According to domestic law, statutes of limitations are applicable in Argentina for domestic crimes. While Argentina had consistently rejected the 1968 Convention On The Non-Applicability Of The Statutes Of Limitations To War Crimes And Crimes Against Humanity, it finally ratified the Convention in 2003.413 Article 11 of the Law of 2006 clearly established the inapplicability of statutes of limitations for the international crimes within icc jurisdiction. While some doubt has been expressed as to whether the inapplicability of statutes of limitations is retroactive or whether it is only applicable to crimes committed after the Law has entered into force,414 a number of cases have applied the law retroactively (like the French cases of Touvier and Papon415).416 Previously, Argentina’s criminal law applied exclusively to acts committed within its territory. The jurisdiction of domestic courts is almost exclusively regulated by the principle of territoriality. This principle is stated clearly in Article 1 of the Criminal Code. The Law of 2006 modifies the courts’ extraterritorial criminal jurisdiction over the crimes falling within the purview of the icc. According to Article 3(c), the courts’ jurisdiction extends to crimes committed outside of the country by Argentine nationals or persons residing in the Republic of Argentina, as long as the defendant has not been acquitted or convicted abroad, or in the latter case, has not served his/her sentence. The Law does not allow domestic courts to exercise jurisdiction on the basis of the nationality of the victim (i.e. the passive personality principle). Article 2 provides that the Act applies to offences over which the icc has jurisdiction. Strictly speaking, this would appear to imply that the Act is 411 Ley de Implementacio´n del Estatuto de Roma del 17 de julio de 1998, adopted on 13 ­December 2006 (entered into force on 5 January 2007). 412 International Committee of the Red Cross, ‘National implementation of international humanitarian law’, icrc (July-December 2006), accessed online at on 27 June 2013. 413 Law No. 25778 of 2003. 414 Alejandro E. Alvarez, ‘The Implementation of the icc Statute in Argentina’ (2007) 5(2) Journal of International Criminal Justice 480. 415 See Chapter 3, Section 4.4. 416 See e.g. the request for extradition in respect of Erich Priebke: Priebke (Judgment 318: 248), Causa N° 16.063 / 94 (2 Noember 1995), considerandos 64–77 and 83–93.

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r­etrospective in operation only as far back as the coming into effect of the icc’s temporal jurisdiction on 1 July 2002. However, the Courts have found crimes against humanity to have existed prior to 2002 and so Article 2 appears to provide only that the Act applies to offences covered by the icc and does not also pick up the jurisdictional limitations on the icc such as its temporal limitations. The principle discussed below that crimes against humanity are not susceptible to statutes of limitation appears to have taken precedence, in particular relying on other human rights treaties. Some care may need to be taken, however, in ensuring that the definition applied does not breach the nullum crimen principle. Article 3(d) provides that the Law must be applied in those cases envisaged in international agreements to which Argentina is a party. Again, as a matter of principle, this would have no application in the case of crimes against humanity. Nonethless, taking a broad interpretation of this Article, it may be contended that the icc Statute and human rights treaties could justify an assertion of jurisdiction on this basis. Article 4 provides that when a person suspected of having committed a crime defined in the Law is found on Argentine soil or in territories subject to its jurisdiction and the person is not extradited or handed over to the icc, Argentina will take the necessary steps to exercise its jurisdiction over the suspect. The Law thereby incorporates the principle of aut dedere aut judicare. Argentina is empowered to try any person who cannot be extradited to the requesting state or handed over to the icc. On 1 July 2015, Argentina’s Senate passed legislation, based on precedents from the Argentine Supreme Court and the Inter-American Court of Human Rights, forbidding pardons, amnesties and commutations of sentences for crimes against humanity.417 The law established that any attempt to decree an amnesty in cases of the commission of crimes against humanity would be a nullity.418

417 Law No. 27156 of 2015 (Sancionaron Ley que Prohíbe Indultos, Amnistías y Conmutación de Penas para Delitos de Lesa Humanidad (1 July 2015), accessed online at on 3 July 2017). 418 Graciela Rodriguez-Ferrand, ‘Argentina: Law Forbidding Pardons of Crimes Against Humanity’, Global Legal Monitor (7 August 2015), accessed online at on 3 July 2017.

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4.1.2 Jurisprudence Even though, prior to 2006, Argentina had no offence known as ‘crimes against humanity’ on its statute books, this has not stopped the courts invoking this international offence in domestic cases.419 It has done so by reliance upon ­Articles 75 (Sub-section 22) and 118 of the Constitution, which refer, respectively, to the supremacy of human rights treaties over domestic law, and to the applicability of international law (derecho de gentes) internally. The cases have largely involved the so-called ‘dirty war’ (guerra sucia), where, during military rule from 1976–1983, armed forces, police and civilian paramilitary forces such as the Alianza Anticomunista Argentia publically and violently targeted dissidents, including civilians such as trade union leaders, professions and friends and family.420 It is estimated that some 30,000 perceived opponents of the government ‘disappeared’ or were murdered, and many more were tortured and intimidated.421 Upon the restoration of democracy in 1983, the democratically elected Raúl Alfonsín government ordered the trial of nine senior members of the ‘junta’ along with others, which led to the conviction of five defendants. In 1996 and 1997, however, following a series of revolts that threatened the civilian government, it passed a law prohibiting the prosecution of crimes committed during the dictatorship (‘punto final’422) and establishing superior orders as a legitimate defence (‘obediencia debida’423). As to those most responsible (and amid widespread criticism), President Alfonsín’s successor, President Menem, issued a number of pardons, including to those already convicted.424 The amnesties and pardons put an end to prosecutions until 1999. In 1999, the Federal Court of Appeals judgment in Massera s/exceptions425 considered 419 See Ekmekdjian, Miguel Angel c/ Sofovich, Gerardo y otros (Sentence), csjn Fallo 315:1492 (7 July 1992), considerando 18. 420 Ernesto Sabato, ‘Prologue’, Nuca Mas: The Report of the Argentine National Commission on the Disappeared (Farrar Straus Giroux: New York, 1986), 122. 421 See Steven Ratner and Jason Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (2nd ed, Oxford University Press: Oxford, 2001) 169–171; and McCormack, above n 256, 116–117. 422 Law No. 23492 of 1986. 423 Law No. 23521 of 1987. 424 Decree 2741/90 of 1990. See also Pablo Parenti, ‘The Prosecution of International Crimes in Argentina’ (2010) 10 International Criminal Law Review 491, 494. 425 Judgment of 9 September 1999. Other judgments followed the reasoning adopted in Massera S/exceptions, cf. Videla, Jorge R. s/excepciones (9 September 1999), the Cámara Nacional de Apelaciones en lo Federal n° 1, Acosta, J. s/prescripción (9 September 1999); and Astiz, Alfredo s/nulidad (4 May 2000).

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the case of children who, during the dictatorship, were born to pregnant kidnapped women held clandestinely in custody and subsequently handed over to other families under false identity. It held that the hiding of minors was the result of the forced disappearance of their parents, which, based upon certain international instruments,426 is a crime against humanity under international law.427 Hence, it held that no statute of limitation could apply. The Inter-American Court of Human Rights has reached the same conclusion, albeit in reliance on Article 7 of the icc Statute.428 The proposition that ‘forced disappearances’, per se, was at that time a ‘crime against humanity’ or an international offence stricto sensu, can be very much doubted.429 The question of the need for a war nexus was also not addressed. It may be argued, however, that ‘forced disappearances’ merely involve a particular form of murder or summary execution or other inhuman act which, since the General Assembly’s affirmation of the Nuremberg Precedent, is ‘criminal conduct according to the general principles of law as recognized by the community of nations’ as opposed to a crime against humanity in its strict sense.430 Hence, as argued in Chapter 2, under international law, those responsible for such acts may never be beyond the reach of punishment by a new government should it choose to pursue them and overturn any prior laws of amnesty or limitation. Another decision which confirmed the non-applicability of statutes of ­limitation to conduct which can be characterized as a crime against h ­ umanity was Augusto Pinochet Ugarte s/prescripción.431 Argentina requested the ­ex-Chilean President’s extradition for the murder of Carlos Prats – the Chief 426 See, for example, un Declaration on the Protection of all Persons from Enforced Disappearances, un gaor, 47th sess, Supp. 49, un Doc A/47/49 (23 December 1992). 427 ‘This House [Federal Court of Appeals] has repeatedly said that crimes come from state agents in the context of the clandestine system of repression implemented by the military dictatorship that usurped power in the period 1976–1983, in the light of the law of nations (derecho de gentes), as crimes against humanity.’ 428 (IACtHR) Goiburú et al. v Paraguay (Judgment on Merits, Reparations and Costs), Inter-­ American Court of Human Rights, (ser. C) No 158 (22 September 2006) (‘Goiburú v ­Paraguay’), [82], followed in González Medina v Dominican Republic (Application), Inter-American Court of Human Rights (2 May 2010). 429 The first binding treaty in America, the Inter-American Convention on the Forced Disappearances of Persons, only entered force on 9 June 1994. See the discussion in Chapter 10, Section 10. Further, if the icc Statute is relied upon, that did not come into effect until at least 1998. 430 un ga Resolution 95(I), un gaor, 1st sess, 2nd part, un Doc. A/RES/95(I) (11 December 1946) and see the discussion at Chapter 2, Section 7. 431 (Argentina) Pinochet Ugarte c Argentina (Judgment on appeal concerning the statute of limitations), National Chamber of Criminal Appeals in Cassation, Case No 17439 (15 May

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of the ­Chilean Army during Salvador Allende’s government – assassinated in 1974 in Buenos Aires on orders of the Chilean high-level authorities. The Federal Court of ­Appeals confirmed its jurisdiction because the murder was not just an isolated event but it formed part of a larger and more deliberate plan of extermination of political dissidents. The Court, invoking the precedent of A ­ rticle 6(c) of the London Charter, found such acts amounted to a crime against humanity which could not be the subject of a local statute of limitation. The issue of the need for a nexus with war or aggression which is part of Article 6(c) was not considered. Finally, in Simón, the Argentinian Supreme Court considered the amnesty laws themselves. In a landmark decision by Federal Judge Gabriel Cavallo, on 6 March 2001, the Court declared unconstitutional the laws that did not allow prosecution of crimes committed during the dictatorship. Relying principally upon the Inter-American Convention on Human Rights, the judge decided that Argentina could not provide amnesty for those crimes because its obligation in these cases was to try or extradite, but never to leave the crimes unpunished.432 This decision was confirmed by the Supreme Court in 2005.433 In particular, the Court relied upon the Inter-American Court of Human Rights decision in the Barrios Altos case, which had already ruled that amnesty laws and statutes of limitations for serious human rights violations are contrary to the Inter-American Convention on Human Rights.434 Accordingly, on 4 August 2006, Simón was convicted for unlawful imprisonment and torture as a crime against humanity and sentenced to 25 years imprisonment.435 This was the first sentence imposed for crimes committed during the dirty war further. Arising from this, the Argentinian Supreme Court voided President Menem’s pardons.436

2001). Cf. Alejandro E. Alvarez, ‘L’internationalisation du droit pénal aux Amériques’, in Hélène Ruiz Fabri (ed.), Mireille Delmas-Marty et les années umr (Société de Législation Comparé: Paris, 2005), 147. 432 (Argentina) See Juzgado Nacional en lo Criminal y Correccional n° 4, juez Gabriel R. Cavallo, case Simón, Julio y Del Cerro, Juan A. s/sustracción de menores de 10 años, (6 March 2001), Part vi. 433 (Argentina) See Corte Suprema de Justicia de la Nación, Causa N° 17.768, Simón, Julio H. y otros s/recurso de hecho, voice of judge Raúl Zaffaroni, considerando 37, (14 June 2005). 434 See, for example, (IACtHR) Chumbipuma Aguirre et al. v Peru (Judgment on the Merits of the Barrios Altos Case), Inter-American Court of Human Rights, (ser. C) No 75 (4 March 2001) (‘Barrios Altos Case – Judgment’), [41]. 435 Bassiouni, above n 2, 689. 436 Daniel Schweimler, ‘Argentine court overturns pardon’, bbc News (13 July 2007), accessed online at on 3 December 2014. For other decisions, see Juzg. Fed. 4 September 2006, Martínez de Hoz, José Alfredo y otro s/

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As a result of the Simón decision, a large number of cases were opened and the National High Court created a specialised unit to manage them. ­Ultimately, according to the Centro de Estudios Legales y Sociales, 243 criminal prosecutions have been commenced and 33 persons have been convicted.437 This ­includes: Miguel Osvaldo Etchecolatz, then the Commissioner-General of the Buenos Aires Provincial Police convicted of murder, unlawful imprisonment and torture as a crime against humanity and sentenced to life imprisonment;438 Christian Federico Von Wernich, a Catholic police chaplain convicted of 7 murders, 42 abductions and 31 instances of torture as a crime against humanity and sentenced to life imprisonment;439 Reynaldo Bignone, military general and dictator of Argentina between 1982 and 1983;440 Jorge ­Videla, military general and de facto President of Argentina between 1976 and 1981;441 and Jaime Smart, the former interior minister of Argentina.442 On 25 August 2016, a federal court in Cordoba concluded the landmark ‘La Perla’ trial, which brought together 21 separate cases of crimes against ­humanity at the hands of Argentine military, police and paramilitary forces in the years leading up to and following the 1976 military coup. 43 defendants stood trial

secuestro extorsivo; Cámara Nacional Criminal y Correccional Federal sala 1a [national criminal and correction chamber 1a] (15 April 2008), Causa 23.434 / Martínez de Hoz, José A. y otro; Parenti, above n 424, 496; and Bassiouni, above n 2, 690. 437 See website for the Centro de Estudios Legales y Sociales at . A more recent report suggests this number may be even higher: ‘563 convictions since 2006 for Argentine junta crimes’, Agence-France Presse (22 March 2015), accessed online at on 7 July 2015. 438 (Argentina) Tribunal Oral Federal de La Plata (Juzg. Fed.) [Federal Court of La Plata] (19 September 2006); Estado v Etchecolatz, Migul/juzgado penal, affirmed by Camara ­Nacional de Casacion Penal (cncp) (18 May 2007); Etchecolatz, Miguel Osvaldo/recursos de casacion e inconstitucionalidad, csjn (17 February 2009); Etchecolatz, Miguesl Osvaldo/ recurso extraordinario. 439 (Argentina) Von Wernich, Christian F v Argentina, Juzg. Fed. de la Plata (1 November 2007) 440 Reynaldo Bignone: Argentina ex-ruler gets fresh sentence, bbc World News (8 October 2014), accessed online at on 27 October 2014. 441 ‘Former Argentine president found guilty of crimes against humanity’, Amnesty International News (23 December 2010), accessed online at on 27 October 2014. 442 Julia Zebley, ‘Argentina convicts former interior minister for ‘Dirty War’ crimes’, Jurist (20 December 2012), accessed online at on 27 October 2014.

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for crimes including crimes against humanity, forcible disappearance, murder, kidnapping and torture.443 The Court convicted 38 accused and sentenced General Luciano Benjamin Menendez and 11 other accused to life sentences and the remainder given sentences ranging from 6 months to 21 years.444 5 were acquitted. Further, on 26 July 2017, four former federal judges – Rolando Carrizo, Guillermo Petra Recabarreo, Luis Miret and Otilio ­Romano  – were sentenced to life in prison by a court in Mendoza for crimes against h ­ umanity committed during the dictatorship-era.445 Jurisprudentially, the cases are notable insofar as their findings as to the policy requirement of crimes against humanity. First, In the Etchecolatz case, a case heard before the implementation of the Rome Statute, the tribunal confirmed that ‘there was clearly a systematic plan, an act of state terrorism’ pursuant to which the crimes in question were committed.446 Secondly, since the enactment of its icc legislation, the Supreme Court of Argentina in the René Jesús Derecho case specifically considered the requirement of a ‘state or organizational policy’ element.447 The Court found that the requirement that crimes against humanity must be linked with some sort of policy had been in existence for fifty years dating back to Nuremberg, although not being made explicit at the time.448 The Court held that an ‘organizational policy’, however, only includes ‘either large magnitude organizations that, in a scenario of struggle for power, are capable of controlling a territory or insurgent groups involved in a fight for power’.449 Outside of the ‘dirty war’ cases, Argentina appears to have invoked the doctrine of ‘universal jurisdiction’ in ordering the extradition of Spanish 443 ‘Argentine General and 28 Others Sentenced to Life for Crimes Against Humanity’, teleSUR (25 August 2016), accessed online at on 3 July 2017. 444 Ibid. 445 ‘Argentina sentences 4 ex-judges for dictatorship-era crimes’, International Center for Transitional Justice (27 July 2017), accessed at on 3 July 2017. 446 As cited in Bassiouni, above n 2, 690. 447 (Argentina) René Jesús Derecho (Decision about incidental proceedings on the extinguishment of a criminal complaint), Supreme Court of Argentina, Case No 24079 (11 July 2007) (‘Derecho – Supreme Court’). 448 William Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press: Oxford, 2010) 151. 449 (Argentina) Derecho – Supreme Court, above n 447, [10]–[12], as paraphrased by Schabas, above n 448, 151 fn 95.

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­ erpetrators of Franco-era atrocities.450 The filings on behalf of relatives of p Spanish and Argentinian victims of atrocities during the Spanish Civil War (1936–1939) allege the commission of torture, genocide and crimes against humanity.451 Despite Argentinian state prosecutor, Federico Delgado, requesting the court to dismiss the lawsuits on the basis that they were being dealt with in Spain, an appeals court opened a criminal investigation into the Civil War in September 2010.452 Arrest warrants were subsequently issued for 4 former Spanish officials (Jesus Munecas Aguilar, Celso Galvan Abascal, Jose Ignacio Giralte Gonzalez, and Antonio Gonzalez Pacheco) in September 2013.453 The Spanish High Court, however, refused to order extradition.454 On 2 November 2014, after a diplomatic request to Spain to determine what action the State was taking to investigate the crimes, Judge Servini de Cubria ordered the arrest and extradition of 20 former Spanish ministers.455 The ­request for extradition was ultimately rejected by the Spanish Justice Department, who claimed that the offences were statute-barred and that the territorial state had preference.456 450 Alison Sacriponte, ‘Argentina judge asks Spain to extradite 20 Franco-era officials’, Jurist (3 November 2014), accessed online at on 7 July 2015. 451 Vincent Druliolle, ‘Spain: Seeking Justice in Argentina’ (3 March 2015), accessed online at on 7 July 2015. 452 Erin Bock, ‘Argentina appeals court re-opens investigation into Spain crimes under ­Franco’, Jurist (5 September 2010), accessed online at on 7 July 2015. 453 Kimberly Bennett, ‘Argentina judge seeking extradition of former Spanish officials’, Jurist (20 September 2013), accessed online at on 7 July 2015. 454 Associated Press, ‘Human rights abusers in Franco-era Spain could be tried in Argentina’, The Guardian (2 November 2014), accessed online at on 7 July 2015. 455 ‘Argentina asks Spain to arrest 20 Franco-era officials’, bbc News (1 November 2014), accessed online at on 7 July 2015; and International Justice Resource Centre, ‘Argentina and South Africa Pursue Human Rights Abusers in Spain and Zimbabwe’ (5 November 2014), accessed online at on 7 July 2015. 456 ‘Spain rejects Argentina extradition request for Franco-era officials’, Reuters (13 March 2015), accessed online at on 7 July 2015.

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4.2 Chile457 4.2.1 Legislation Chile proscribed crimes against humanity through Law No 20.357 of 18 June 2008 based on the definition of Article 7 of the icc Statute.458 Article 5 sets out the underlying crimes. Article 1(1) requires that underlying crimes be committed ‘as part of a widespread or systematic attack against a civilian population’. Article 1(2) then clarifies that the attack referred to Article 1(1) must ‘[respond to] a policy of the State or its agents, of organized armed groups which, under the direction of a responsible command, exercise control over some territory as to enable them to conduct military operations, or organized groups who hold such power in fact leading to impunity for their actions.’ Article 2 goes further to define ‘widespread attack’ and ‘systematic attack’ in such a way that both require that the acts ‘affect or are directed to a considerable number of people’: • widespread attack: ‘the same act or several simultaneous or immediately thereafter, that affect or are directed to a considerable number of people’; and • systematic attack: ‘a series of successive acts which extend for a period of time and which affect or are directed to a considerable number of people’. The Chilean statute, however, appears not to be applicable to crimes prior to its enactment on the basis of non-retroactivity of the criminal law.459 Accordingly crimes to date have been exclusively based on Chilean laws such as kidnapping and aggravated homicide.460 Under Article 6(8) of the Código Orgánico de Tribunales (Code on Organization of the Courts), Chilean courts can exercise jurisdiction over offenders in relation to crimes committed abroad where the crime is covered in a treaty signed by Chile. As Chile has signed (and ratified) the Rome Statute, this may cover crimes against humanity, though the Statute does not explicitly require or provide for extraterritorial jurisdiction before domestic courts. This 457 The authors would like to acknowledge the assistance of Cynthia Provost with this section. 458 Legislation accessed online at on 25 February 2013. See also Garcia Falconi, ‘The Codification of Crimes Against Humanity in the Domestic Legislation of Latin American States’ (2010) 10(4) International Criminal Law Review 453, 455–456. 459 Bassiouni, above n 2, 699. 460 (Chile) Human Rights Observatory, Universidad Diego Portales, Human Rights in Chile, Bull. No. 6 (May 2010), 11, cited in Bassiouni, above n 240, 700.

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issue arose in the Israeli Judges Case, discussed below. Also of note is that, in the 1970s, Chile enacted an amnesty law similar to many of the other South ­American states. As discussed further below, the Government of President Salvador Allende was overthrown in September 1973 and replaced by a military dictatorship. On 18 April 1978, the de facto government issued Decree Law No. 2.191 (the Chilean Amnesty) granting a blanket amnesty to ‘all individuals who performed illegal acts … during the state of siege in force from September 11, 1973 to March 10, 1978’. Immediately after the end of military rule in 1990, the government of President Patricio Aylwin-Azocar established a truth and reconciliation commission about the gross violations committed during military rule. After this and a number of further commissions and inquiries, a number of reparation measures were adopted, although the Chilean Amnesty was not overturned. 4.2.2 Jurisprudence While the Chilean Courts had upheld the Chilean Amnesty in a number of cases, the amnesty was nonetheless challenged in the Inter-American Court of Human Rights in Almonacid-Arellano et al. v Chile, on the basis that it prevented the state of Chile from complying with its obligations to provide victims of crimes such as extrajudicial killing with an effective remedy.461 The Court found that, at the time of the alleged crime (i.e. September 1973), crimes against humanity were prohibited under customary international law, and indeed was a jus cogens norm.462 While it is not entirely clear, the Court appeared to find that the law to be applied was the modern test adopted by the international tribunals. The Court held that, at the time of the murder, the elements of crimes against humanity ‘remained basically unaltered’ since Nuremburg.463 While this would presumably include the war nexus,464 the Court appeared to see the Nuremberg Tribunal as well as the subsequent statements by the General Assembly as the basis for finding that crimes against humanity were committed at the time without any such war nexus.465 The Court held 461 (IACtHR) Case of Almonacid-Arellano et al. v Chile (Judgment on Preliminary Objections, Merits, Reparations and Costs), Inter-American Court of Human Rights, (ser. C) No 154 (26 September 2006) (‘Almonacid-Arellano’). The case was brought on behalf of the family of Luis Alfredo Almonacid-Arellano, an elementary teacher and activist in the Chilean Communist party and a leader of the Educational Labor Union who was killed in September 1973 by agents of the de facto government. 462 (IACtHR) Almonacid-Arellano, above n 461, [99]. 463 (IACtHR) Almonacid-Arellano, above n 461, [96]. 464 (IACtHR) Almonacid-Arellano, above n 461, [96]. 465 (IACtHR) Almonacid-Arellano, above n 461, [97]–[99].

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that ‘crimes against humanity include the commission of inhuman acts, such as murder, committed in a context of generalized or systemic attacks against civilians’ (i.e. applying the ‘modern’ definition of crimes against humanity without the war nexus).466 Reciting the evidence as found, the Court outlined the way in which the military regime systematically and on a widespread basis targeted members opposed to their political position:467 Widespread repression against alleged opponents to the regime … was a standard State policy from that date until the end of the military rule on March 10, 1990, “though subject to changing intensity and various selectivity levels for choosing victims.” Said repression was characterized by systematic and massive arbitrary and summary executions, torture (including rape, mainly of women), and arbitrary detention at facilities not subject to legal control, forced disappearances and other human right violations committed by State officials, sometimes with the aid of civilians. Repression was applied in almost all regions of the country. […] The victims of all these violations were renowned officials of the overthrown government and important left-wing figures; ordinary and ­common militants; political, trade union, community, student (university and high school education) and indigenous leaders and heads; ­representatives of community-based organizations participating in ­social claim movements. However, [that] such political relationships ­existed was often deduced from the fact that the victims had been involved in ‘conflictive’ behavior, such as strikes, stoppages, occupation of lands or buildings, street demonstrations, and the like. These killings are part of the climate prevailing immediately after September 11, 1973, namely the attempt to carry out a ‘cleanup’ operation aimed at those who were ­regarded as dangerous by reason of their ideas and activities and to ­instill fear into their colleagues who eventually might be a ‘threat’. Notwith­ standing the foregoing, during the initial repression stage, the selection of victims was largely carried out arbitrarily. Important among this finding is that a population was found to be targeted notwithstanding that individuals were targeted for political reasons and b­ ecause

466 (IACtHR) Almonacid-Arellano, above n 461, [96]. 467 (IACtHR) Almonacid-Arellano, above n 461, [82(4)]–[82(6)].

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they had certain individual features, it was held that ‘the selection of victims was largely carried out arbitrarily’. On the basis of this evidence, the Court found that the murder of ­Almonacid-Arellano was committed as ‘part of’ this attack, and therefore as a crime against humanity:468 As is evident from [these facts] … between September 11, 1973 and March 10, 1990 Chile was ruled by a military dictatorship which, by developing a state policy intended to create fear, attacked massively and systematically the sectors of the civilian population that were considered as opponents to the regime. This was achieved by a series of gross violations of human rights and of international law, among which there are at least 3,197 victims of summary executions and forced disappearances, and 33, 221 detainees, most of whom were tortured … Likewise, the Court considered proven that the most violent time of that repressive period was that of the first months of the de facto government. Approximately 57 percent of all deaths and disappearances [i.e. 1, 823] occurred during the first months of the dictatorship. The execution of Mr. Almonacid-­Arellano took place precisely during that time. In respect of the Chilean Amnesty, the Court followed its earlier decision in the Barrios Altos case (discussed further in Chapter 11) to hold that the InterAmerican Convention on Human Rights imposes a duty on states to prevent, investigate and punish all persons responsible for crimes against humanity and that such a duty could not be evaded through ‘amnesty laws or any other similar domestic provisions’ as ‘crimes against humanity are crimes which cannot be susceptible of amnesty’.469 The Inter-American Court has further found on two further occasions that Chile is in breach of its obligations under the Convention by failing to provide adequate remedy to those affected by human rights violations occurring during the military regime and has done so despite the existence of the amnesty law.470 In 2013, the Supreme Court of Chile confirmed the extradition of former Argentine Judge, Judge Otilio Romano, to Argentina to face charges of crimes

468 (IACtHR) Almonacid-Arellano, above n 461, [103]–[104]. 469 (IACtHR) Almonacid-Arellano, above n 461, [103]–[104]. 470 (IACtHR) Case of García Lucero et al. v. Chile (Judgment on Preliminary Objections, Merits and Reparations), Inter-American Court of Human Rights (28 August 2013); Case of Omar Humberto Maldonado Vargas et al. v Chile (Judgment on Merits, Reparations and Costs), (ser. C) No 300 (2 September 2015).

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against humanity.471 Romano was convicted in conjunction with three other former Argentine judges of crimes against humanity on 26 July 2017 and sentenced to life imprisonment by an Argentine court.472 Controversially, in November 2016 two complaints were filed in Chile against three current and former Supreme Court judges of Israel – former Chief Justice Asher Grunis and Justices Neal Hendel and Uzi Vogelman – for endorsing the construction of the West Bank security barrier and the seizure of goods from Palestinians, of whom there is a sizeable population in Chile (the Israeli Judges Case).473 The complaints, filed in part by Chilean nationals who were residing in the country, alleged that the Supreme Court judges gave the appearance of legality to the wall, and that this constituted an illegality and a crime against humanity. Despite the plaintiffs’ arguments that Chile’s international agreements allowed cases alleging crimes against humanity committed in other c­ ountries to be brought in Chile, the claims were rejected by a Chilean court in ­December 2016, with the Court ruling that it lacked authority to intervene in the decisions of another country’s court.474 The Court noted that the right to ­self-determination implies the need to respect the norms of coexistence ­between sovereign nations and the internal decisions made by each state.475 This prevents the application of a broad concept of international or concurrent jurisdiction. The Court held that it was inadmissible for a national judge of one jurisdiction to rule on the decisions of a foreign court acting in accordance with its domestic law.476 The Court held that Article 7 of the Code of the Código Orgánico de Tribunales provided that courts could only exercise their jurisdiction within their own territory.477 This principle of territoriality was reflected in Article 5 of the 471 Endia Vereen, ‘Chile high court approves extradition of former Argentine judge’, Jurist (22 August 2013), accessed online at on 19 November 2013. 472 See above section on Argentina, above Section 4.1.2. 473 ‘Israeli justices sued in Chile over West Bank security barrier’, Times of Israel (1 December 2016), accessed online at on 3 July 2017. 474 Sentence First December 2016, 5° Juzgado de Garantía de Santiago, Chile, rit 4471-2016, accessed online at on 17 October 2017 (‘Israeli Judges Case – Supreme Court’). See also Amira Hass, ‘War Crimes Suit Against Israeli Justices Rejected by Chilean Court’, Haaretz (3 December 2016), accessed online at on 3 July 2017. 475 (Chile) Israeli Judges Case – Supreme Court, above n 474, [1]. 476 (Chile) Israeli Judges Case – Supreme Court, above n 474, [2]. 477 (Chile) Israeli Judges Case – Supreme Court, above n 474, [31].

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Penal Code.478 Interestingly, the Court did not go on to mention Article 6(8) Código Orgánico de Tribunales. The Court stated only that the icc Statute had not been ratified by Israel and was therefore not binding on it. This may suggest that the Court did not consider it sufficient to ground extraterritorial jurisdiction simply that the allegations concerned crimes against humanity within the icc Statute, at least where the other party is not a signatory. Without explanation, the Court also noted that the complaint in question referred to ‘private property’ rather than criminal matters.479 It is not clear whether the Court in doing so considered that the acts alleged could not amount to a crime against humanity as they concerned property only. The Court did not discuss, for instance, the serious property crimes that have been found to constitute the crime of persecution both in respect of Nazi Germany as well as in the Former Yugoslavia.480 In the notorious Justice Case, German jurists including judges were tried and convicted for distorting the law to assist the perpetration of Nazi atrocities.481 Nor did the Court discuss any issues concerning the scale or seriousness of the attack. The Supreme Court decision was affirmed on appeal by the Santiago Court of Appeal.482 Significantly, one of the apparent grounds was that the complaint could not be classified as crimes against humanity. The Court did, however, provide any reasoning for this view. It may be that the position of both the Supreme Court and the Court of Appeal was that the alleged actions did not constitute an attack against a population.483 4.3 Guatemala 4.3.1 Legislation Since 1973, the Guatemalan Penal Code has proscribed ‘genocide’ and ‘offences against duties to humanity’ (ss 376 and 378).484 However, despite the labels given to these crimes, only a version of crimes against humanity is in fact 478 (Chile) Israeli Judges Case – Supreme Court, above n 474, [1]. 479 (Chile) Israeli Judges Case – Supreme Court, above n 474, [5]. 480 See discussion in Chapter 10, Sections 9.3.2 and 9.3.3. 481 (Nuremberg) United States v Altstötter et al. (1947) 3 Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No 10, 954 (us Government Printing Office, Washington dc, 1950). 482 Sentence 24 January 2017, Corte de Apelaciones de Santiago, rol 4229-2016, accessed online at on 18 October 2017. 483 See further discussion in Chapter 9, Sections 2.2 (on ‘attack’) and 5 (on ‘population’) and Chapter 8, Section 3.2 (on the minimum level of scale and seriousness). 484 (Guatemala) Decree No. 17-73 (27 July 1973), accessed online at on 22 March 2014.

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­ roscribed in Guatemala. What is named ‘offences against duties to humanity’ p more closely approximate war crimes.485 And, while the crime of ‘genocide’ appears largely modelled off the Genocide Convention, the definition contains two notable deviations that suggest it is in fact a hybrid of crimes against humanity (like Estonia, Ethiopia and to a lesser extent, Peru): first, there is no requirement that the perpetrator intend to destroy a group ‘as such’; and secondly, the crime may be committed by the underlying crime of deportation or forcible transfer as against adults (as opposed to only children). As discussed below in the context of Estonia, and in Chapter 3 of this text, this is not surprising given the confusion as to the proper definition of crimes against humanity that existed at the time the statute was enacted. On 26 January 2012, Guatemala ratified the Rome Statute.486 Despite this ratification, Guatemala does not appear to have yet enacted domestic legislation that clearly implements crimes against humanity. Article 5 of the Guatemalan Penal Code affords Courts extraterritorial jurisdiction inter alia where the offender is a Guatemalan national and where, if an alien the offender, by treaty or convention, must be punished in Guatemala even where committed abroad. Accordingly, Guatemala would only have jurisdiction over a foreign national committing crimes abroad where they have a duty to do so under international law. 4.3.2 Jurisprudence The jurisprudence has largely concerned the trials of Efraín Rios Montt and Jose José Mauricio Rodríguez Sánchez. Given the definition of ‘crimes against humanity’, it is not clear whether the Accused are being tried with crimes against humanity in its strict sense or not. In any event, the facts of the case would (if proven) appear to support an indictment for crimes against humanity. Montt was a general who ran Guatemala for 17 months during the country’s civil war years. Sánchez was another general. Montt and Sánchez were accused of killing 1,771 people in the Mayan-Ixil region as part of a scorchedearth ­campaign to hunt down left-wing guerrillas. While the current president of Guatemala, Otta Pérez Molina – a former general himself – does not believe the killings during the war amounted to genocide, a un truth commission 485 (Guatemala) Penal Code, Art 378: ‘Whoever violates or infringes humanitarian duties, laws or agreements with regarding prisoners or hostages of war, wounded during combat operations, or commit inhumane acts against any civilian population or against hospitals or places I intended to hurt, shall be punished with imprisonment of twenty to thirty years.’ 486 ‘News – Ratification of Rome Statute by Guatemalan Congress’, Impunity Watch (26 January 2012), accessed online at on 25 February 2013.

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d­ etermined that, in a war that killed 200,000 people, the military had carried out “acts of genocide”, including in the Mayan-Ixil villages. On 10 May 2013, a trial court in Guatemala found Efraín Rios Montt and Jose José Mauricio Rodríguez Sánchez guilty of ‘genocide’ and ‘offences against duties to humanity’487 in connection with the massacres of villagers in the M ­ ayan-Ixil region in 1982–1983.488 Ten days later, on 20 May 2013, the ­Guatemalan Constitution Court annulled the verdict based on a failure to accord Montt due process and adjourned the case until January 2015.489 It was subsequently reported that the Constitutional Court held two public hearings in June 2013 on whether or not the 1986 general amnesty (Decree 8-86) would prevent Rios Montt’s prosecution.490 In August 2015, a trial court declared Rios Montt mentally unfit for retrial, after he was found to be suffering from dementia.491 The court ruled that a 487 While Montt was charged with ‘crimes against obligations to humanity’ under Article 378 of the Guatemalan penal code, the provision in fact relates to the 1949 Geneva Conventions. See Naomi Roht-Arriaza, ‘Genocide and War Crimes in National Courts: the Conviction of Rios Montt in Guatemala and its Aftermath’, asil Insights (23 May 2013), accessed online at on 11 September 2014. 488 Jo-Marie Burt, ‘Rios Montt Convicted of Genocide and Crimes Against Humanity: The Sentence and Its Aftermath’, International Justice Monitor (13 May 2013), accessed online at on 11 September 2014; and Elisabeth Malkin, ‘Ex-dictator is ordered to trial in Guatemalan War Crimes Case’, New York Times (28 January 2013), accessed online at on 6 February 2013. 489 ‘Guatemala: Ríos Montt trial delay is a letdown to genocide victims’, Amnesty International (6 November 2013), accessed online at on 22 March 2014; and ‘Guatemala Rios Montt genocide trial to resume in 2015’, bbc News (6 November 2013), accessed online at on 22 March 2014. 490 Emi MacLean, ‘One Month After Guatemala’s Constitutional Court Intervenes to Challenge Rios Montt Genocide Conviction: Amnesty Back on the Table, New Trial Court Booked Till Mid-2014, and Rios Montt Back Home’, International Justice Monitor (18 June 2013), accessed online at on 11 September 2014. 491 Human Rights Watch, ‘Guatemala: Events of 2016’, accessed online at on 3 July 2017 (‘hwr 2017 Report on Guatemala’).

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s­pecial retrial could continue, but under conditions that it be held behind closed doors.492 In October 2015, an appellate court rejected Montt’s earlier 2013 petition to apply the 1986 amnesty decree, ruling that the decree, which was applicable to ‘all political and related common crimes’ committed between March 1982 and January 1986, did not apply to genocide and crimes against humanity.493 As a result, in March 2016, a retrial of Montt began behind closed doors. In May 2016, a provisional ruling was issued by the First Court of Appeals that Montt’s case should be separated from his co-defendant, José Mauricio Rodriguez Sánchez, upon application by the plaintiffs that Sánchez’s case should be heard in open court.494 As of 2017, the retrial process appears to be ongoing. Aside from the Montt trial, there have been a number of convictions and prosecutions on foot in relation to crimes against humanity in Guatemala in recent years. In July 2014, former resistance commander, Fermin Felipe S­ olano Barillas, was sentenced to 90 years in prison after being found guilty of homi­ cide and crimes against humanity for the 1988 massacre of 22 civilians in El Aguacate, Chimaltenango.495 In January 2015, former Police Chief, Pedro Garcia Arredondo, was likewise sentenced to 90 years in prison on convictions of crimes against humanity and murder, for his involvement in a raid on the Spanish embassy in 1980 in which 37 people burned to death.496 Particularly and notably, in February 2016, the High Risk “A” Tribunal found Colonel Esteelmer Reyes Girón, former commander of the Sepur Zarco military base, and Heriberto Valdez Asig, former military commissioner, guilty of murder, enforced disappearance, rape and sexual slavery as a crime against humanity between 1982 and 1983.497 The case was the first instance of a Guatemalan court hearing a case of sexual violence related to the former internal

492 hwr 2017 Report on Guatemala, above n 491. 493 hwr 2017 Report on Guatemala, above n 491. 494 Human Rights Watch, ‘Country Summary: Guatemala’, accessed online at on 3 July 2017 (‘hrw Guatemala Summary’). 495 Freedom House, The Annual Survey of Political Rights and Civil Liberties 2015 (Rowman & Littlefield: London, 2016) 276. 496 ‘Guatemala ex-police chief sentenced over embassy attack’, bbc News (20 January 2015), accessed online at on 3 July 2017; and hrw Guatemala Summary, above n 494. 497 Jo-Marie Burt, ‘Military Officers Convicted in Landmark Sepur Zarco Sexual Violence Case’, International Justice Monitor (4 March 2016), accessed online at on 3 July 2017.

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armed conflict.498 It was alleged that rape, sexual slavery and sexual violence occurred in relation to 15 Maya Q’eqchi women. The Court held that the crimes occurred during an internal armed conflict and on the background of landed elites (finqueros) seeking to stifle community efforts to reclaim their historic territories and denouncing such leaders to the military as guerillas. There was a clear modus operandi of causing the disappearance of men who participated in the land committee, systematically raping their widows by soldiers and destroying their homes and belongings. The tribunal accepted evidence that the rapes were not as much a sexual act as a weapon designed to destroy the broader body politic and control the population.499 Guatemala at the time was a deeply patriarchal society and the actions occurred in isolated rural communities. As discussed further in Chapter 10, however, a real question arises as to whether rape was actually proscribed as a crime against humanity at the time of the offences.500 Most recently, in June 2016, eight military officers501 were committed for trial on charges of crimes against humanity in relation to the enforced disappearance, torture and killing of some 550 Mayan indigenous people near the Creompaz former military base in Guatemala.502 The court was satisfied that enforced disappearance is a crime against humanity because it was applied in a systematic and generalised way.503 4.4 Peru504 4.4.1 Legislation Despite ratifying the Rome Statute on 10 November 2001, Peru has yet to adopt legislation specifically criminalising crimes against humanity. While the P ­ enal 498 Burt, above n 497. 499 See also ‘Available Meat:’ Rape Used as Weapon of War in Guatemala, teleSUR (18 February 2016), accessed online at . 500 See Chapter 10, Section 8.1. 501 Benedicto Lucas Garcia, Byron Humberto Barrientos Diaz, Cesar Augusto Cabrera Mejia, Juan Ovalle Salazar, Carlos Augusto Garavito Moran, Raúl Dehesa Oliva, José Antonio Vásquez Garcia and César Augusto Ruiz Morales. 502 ‘Guatemala Crimes against Humanity Trial Takes a Historic Step’, teleSUR (8 June 2016), accessed online at on 3 July 2017. 503 Sonia Perez, ‘Guatemala ex-police on trial in 1980 embassy fire’, Associated Press (1 ­October 2014), accessed online at on 2 December 2014. 504 The authors would like to acknowledge the assistance of Armando Sánchez Málaga with this section.

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Code includes a chapter entitled ‘crimes against humanity’, the offences c­ over only genocide, enforced disappearances and torture.505 The definition of ‘genocide’ is generally modelled off the Genocide Convention but, like Guatemala, Estonia and Ethiopia, is slightly looser than the strict definition of Genocide. In the case of Peru, the definition of genocide includes certain crimes done with an intention to destroy ‘social’ groups as well as ‘national’, ‘ethnic’ or ‘religious’ groups. 4.4.2 Jurisprudence Despite the lack of specific implementing legislation, the Peruvian courts have made a number of findings in respect of crimes against humanity. (a) Fujimori – Barrios Altos and La Cantuta The first is the case of Alberto Fujimori, elected president of Peru in the midst of a political and economic crisis in 1990.506 A large aspect of Fujimori’s politics concentrated on the fighting of the insurgent groups, Sendero Luminoso (sl) and Movimiento Revolucionario Tupac Amaru (mrta).507 Between 1980 and 2000, approximately 69,280 people died during the armed conflict that ensued.508 In 1992, Fujimori and close ally, Vladimiro Montesinos, created a wellequipped clandestine unit (known as the Colina group) that was responsible for a number of secret operations, including assassinations, forced disappearances and massacres.509 Two such operations were to form the subject of the relevant indictment against Fujimori. The first, in November 1991, concerned the extrajudicial killing of 15 people in the Barrios Altos district of Lima (­erroneously) suspected as being members of the sl.510 The second, occurring 505 Article 319 (Genocide), Article 320 (Enforced Disappearances) and Article 321 (Torture). See Source: . The latter two offences were modified by Law 1351, published on 7 January, 2017. 506 Truth and Reconciliation Commission of Peru, General Conclusions at [98] (‘Peru trc Report’) accessed online at on 25 February 2013. 507 Kai Ambos, ‘The Fujimori Judgment: A President’s Responsibility for Crimes Against Humanity as Indirect Perpetrator by Virtue of an Organized Power Apparatus’ (2011) 9 Journal of International Criminal Justice 137, 137–138, citing Bruce Kay, ‘“Fujipopulism” and the Liberal State in Peru, 1990–1995’ (1996) 38(4) Journal of Interamerican Studies and World Affairs 55; and Susan Stokes, ‘Democratic Accountability and Policy Change: Economic Policy in Fujimori’s Peru’ (1997) 29(2) Comparative Politics 209. 508 (Peru) Peru trc Report, above n 506, [1]–[2]. 509 (Peru) Peru trc Report, above n 506, [100]; see also Ambos, above n 507, 138. 510 Ambos, above n 507, 138.

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in July 1992 concerned the kidnapping, execution and forced disappearance of 9 students and one professor of the La Cantuta National University as part of Fujimori’s crackdown on suspected terrorists.511 In 1995, in response to a judicial investigation into the Barrios Altos and La Cantuta cases, the Peruvian parliament – controlled by Fujimori’s party – ­enacted two amnesty laws.512 The first, Law No 26479 (15 June 1995) afforded a blanket immunity to all members of the security forces for crimes committed from 1980–1995. The second, Law 26492 (2 July 1995) sought to insulate the ­legality of the amnesty from judicial review by providing that the amnesty was ‘mandatory’ for judicial authorities. The landmark decision of the IACtHR in the Barrios Altos case (discussed further in Chapter 11513) – handed down only four months after the demise of the Fujimori government – saw the reopening of a number of investigations into Fujimori and his forces, including the establishment of a Truth and Reconciliation Commission (trc) on 2 June 2001. On 28 August 2003, the trc delivered its final report, finding 73 representative cases of human rights violations and recommending that criminal prosecutions be opened in 43 cases.514 After Fujimori fled to Japan – where his dual citizenship protected him from extradition from 2000 to 2005 – he travelled to Chile in September 2005, where he was arrested and extradited to Peru to stand trial on a wide range of charges, including human rights cases including the Barrios Altos and La Cantuta cases. On 7 April 2009, after a trial lasting over 18 months, the Special Criminal Chamber of the Supreme Court of Justice (the Supreme Court) ­convicted ­Fujimori to the maximum prison sentence of 25 years for aggravated ­homicide, serious bodily injury and aggravated kidnapping.515 On 30 ­December 2009, the First Transitory Criminal Chamber of the Supreme

511 Ambos, above n 507, 138, citing Ronald Gamarra, ‘A Leader Takes Flight: The Indictment of Albert Fujimori’, in Ellen Lutz and Caitlin Reiger (eds), Prosecuting Heads of State (­Oxford University Press: Oxford, 2009) 95, 100–101. 512 See Ambos, above n 507, 139–141. 513 See Chapter 11, Section 4.6.2(b). 514 Peru trc Report, above n 506, vol viii, Chapter 2. 515 Ambos, above n 507, 143, citing csj, Sala Penal Especial, Exp. No. av 19-2001 (7 April 2009), accessed online at on 17 October 2017. For an English translation of the relevant parts of the judgment, see Aimee Sullivan, ‘The Judgment Against Fujimori for Human Rights Violations’ (2010) 25(4) American University International Law Review 657.

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Court (the Appeal Court) confirmed the conviction, essentially following the Special Chamber.516 The Supreme Court explicitly found that the Barrios Altos and La Cantuta crimes constituted ‘crimes against humanity’,517 following the characterisation of the crimes adopted by the Inter-American Court of Human Rights.518 The Court held:519 [I]t is clear that the acts of murder and serious injuries, which are subject to prosecution, extended beyond a strictly individual approach and are adjusted to the crimes against humanity’s requirements. The murders and serious injuries of Barrios Altos and La Cantuta are also crimes against humanity. Fundamentally, because they were committed as part of a State policy of selective but systematic elimination of suspected members of subversive groups. This policy, on the one hand, was designed, planned and controlled from the highest levels of power of the State, and executed by public agents – military intelligence – who used the military apparatus to perform their acts; and, on the other hand, in accordance with its objectives, affected a significant number of defenceless population. The Appeal Court held that the Supreme Court did not err in doing so despite the fact that Peru had not incorporated crimes against humanity as an offence under Peruvian law.520 The Appeal Court held that this application did not violate the principles of legality or non-retroactivity because, under Peruvian law, the underlying crimes (namely, aggravated homicide, serious bodily injury and aggravated kidnapping) were crimes under Peruvian law. Further, the Supreme Court did not seek to introduce the Rome Statute into Peruvian law, but only characterized the international nature and dimension of the crimes committed.521 516 Alberto Fujimori (Special Criminal Chamber Decision), Supreme Court of Peru, Case No AV-19-2001 (7 April 2009) (‘Fujimori – Trial’), accessed online at on 17 October 2017. See also Ambos, above n 507, 143. 517 (Peru) Fujimori – Trial, above n 516, [653], [675], [717]. 518 (IACtHR) Barrios Altos Case – Judgment, above n 434, [152]. 519 (Peru) Fujimori – Trial, above n 516, [717] 520 (Peru) Alberto Fujimori c Supreme Prosecutor (Judgment), Criminal Appeal Chamber of the Supreme Court of Peru, Case No 19-01-2009-A.V (30 December 2009) (‘Fujimori – ­Appeal’), [111]–[113], [124], cited in Ambos, above n 507, 143–144. 521 (Peru) Fujimori – Appeal, above n 520, [124].

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In terms of the substantive aspects of the offence, the Supreme Court referred to the following definition of the chapeau aspect of crimes against humanity with apparent approval: any attack on fundamental individual legally protected interests (life, physical safety and health, freedom…) committed in times of peace as well as during wartime, as part of a widespread or systematic attack carried out with the participation or tolerance of the de jure or de facto political authority.522 The Court also referred to the requirement that the accused have the mens rea, finding that, in respect of murder, the accused must ‘know that the death is part of a widespread or systematic attack directed against a civilian population.’523 The Court relied on the academic writings of Gil Gil (summarising the position under the Rome Statute),524 the decision of the ictr Trial Chamber in Akayesu525 and the icty Appeal Chamber in Erdemović.526 Three points may be noted about this definition. First, the court followed a number of important aspects of the ad hoc Tribunals’ jurisprudence. The Court appeared to accept that an attack need only be widespread or systematic (and indeed defines these terms broadly in accordance with the jurisprudence of the ad hoc Tribunals527), and that crimes against humanity do not need a nexus to an armed conflict. Interestingly, the Court also noted that the 522 (Peru) Fujimori – Trial, above n 516, [712]. 523 (Peru) Fujimori – Trial, above n 516, [713]. 524 Alicia Gil Gil, ‘Los crimenes contra la humanidad y el genocido en el Estatuto de la Corte Penal Internacional a la luz de “Los elementos de los Crimenes”’, in Kai Ambos, La nueva justicia penal supranational (Tirant le Blanche: Valencia, 2002) 94. 525 (ictr) Akayesu – Trial, above n 55, [565]–[568], noting that it ‘points in the same direction from a general perspective. The Court noted that the essential elements of crimes against humanity are those acts that are inhumane in nature and character that cause great suffering or serious harm to physical or mental health, in addition to being committed as part of a widespread and systematic attack against a civilian population’: see also (Peru) Fujimori – Trial, above n 516, [713] fn 106. 526 (icty) Prosecutor v Erdemović (Appeals Chamber Judgment), Case No IT-96-22-A (7 October 1997) (‘Erdemović – Appeal’), [28]: (‘…serious acts of violence which harm human beings by striking to what is most essential to them: their lives, liberty, physical welfare, health and/or dignity. They are inhumane acts that by their extent and gravity go beyond the limits tolerable to the international community’). 527 (Peru) Fujimori – Trial, above n 516, [714] (finding that widespread ‘quantitatively, refers to the number of victims’, while systematic ‘encompasses the idea of a methodical plan’).

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­definition of crimes against humanity requires a particular type of victim, being ‘civilian population, state of defenselessness’, citing Tadić.528 Secondly, the formulation requires an equivalent of a ‘State or organizational policy’, namely, that the attack be ‘carried out with the participation or tolerance of the de jure or de facto political authority’. The Court elaborated further, stating that ‘the political factor only requires the exclusion of casual acts of individuals acting on their own, in an isolated manner without anyone coordinating them … Such criminal acts, even if committed on a widespread scale are not crimes against humanity if they are not tolerated, at least by some State or organization.’529 Underlying acts must therefore be the ‘consequence or expression of a systematic assault, coming from the State or its institutions of power, which is promoted or supported by official or quasi-official policies and directives, and brought to bear on the civilian population in a situation of social or military conflict.’530 Insofar as the ‘State or organizational’ element, the Court elaborated on this requirement by stating that the attack be perpetrated by ‘a government entity or criminal organization that assumes de facto control of territory’, following the icty Trial Chambers in Kupreškić and Tadić.531 Insofar as what a ‘policy’ ­requires, the Court found earlier in the judgment that the existence of that “policy” could be – but was not required to be – proven based on ‘legal provisions, administrative decisions or official directives’.532 Alternatively, the court cited the ECtHR for the proposition that a ‘policy’ may also be found through:533 • ‘an accumulation of identical or analogous violations, sufficiently numerous and interconnected so as to be not mere isolated incidents or exceptions, but rather a pattern or system’; and 528 (Peru) Fujimori – Trial, above n 516, [714], citing (icty) Prosecutor v Tadić (Appeals Chamber Judgment), Case No IT-94-1-A (15 July 1999) (‘Tadić – Appeal’), [141]. 529 (Peru) Fujimori – Trial, above n 516, [715], citing Kai Ambos, Estudios de Derecho Penal Internacional (Idesma: Lima, 2007) 133–135. 530 (Peru) Fujimori – Trial, above n 516, [714]. 531 (Peru) Fujimori – Trial, above n 516, [714], citing (icty) Kupreškić – Trial, above n 36, [654]–[655]; aProsecutor v Tadić (Trial Chamber Judgment), Case No IT-94-1-T (7 May 1997) (‘Tadić – Trial’), [659]. 532 (Peru) Fujimori – Trial, above n 516, [56]. 533 (Peru) Fujimori – Trial, above n 516, [56], citing (ECtHR) Ireland v United Kingdom (­Decision on Merits), European Court of Human Rights, App No 5210/71 (18 January 1978); Akdivar and Others v Turkey (Decision on Merits), European Court of Human Rights, App No 21893/93 (30 August 1996).

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• ‘the official tolerance of State authorities’ (meaning that ‘the superiors, in spite of having knowledge of the violations, refus[e] to take measures to punish those responsible or to prevent the repetition of the violations, or express their indifference by refusing to conduct an adequate investigation into the truth or falsehood of the alleged abusers’). Thirdly, as the Court expressed in the paragraph immediately following, that definition is framed on the basis that ‘a crime against humanity is of a special nature, with a higher degree of immorality in its commission as compared to common crimes’.534 As noted in Chapter 4, and by the icty Appeals Chamber in Erdemović which the court cited, crimes against humanity are better understood as attracting the attention and jurisdiction of the international community by reason of the peculiar aspect of the chapeau elements rather than by the commission of the underlying crime itself. Without undertaking a detailed application of law to the facts, the Supreme Court concluded that the Barrios Altos and La Cantuta crimes were crimes against humanity on the basis that they were ‘committed within the framework of a state policy of selective but systematic elimination of alleged members of subversive groups’ which was ‘designed, planned and controlled at the highest levels of State power, and carried out by state agents – members of military intelligence – who used the military apparatus to do so’ and ‘in accordance with their objectives, it affected a significant number of defenseless members of the civilian population.’535 The verdict was confirmed in December 2009 by an Appeal Court from the Supreme Court.536 While certain politicians have advocated for Fujimori to receive a ‘humanitarian pardon’ in light of rumours that he had developed cancer, that does not appear to have occurred at the time of writing.537 534 (Peru) Fujimori – Trial, above n 516, [714]. 535 (Peru) Fujimori – Trial, above n 516, [717]. 536 csj Primera Sala Penal Transitoria, Exp. No. av 19-2001, Judgment of 30 December 2009, accessed online at on 17 October 2017. 537 It was reported in July 2017 that President Pedro Pablo Kuczynskas was considering granting Fujimori a humanitarian pardon based on his medical condition. The suggestion was met with mass protests in Lima. At the time of writing, reports state that the President is undertaking consultations regarding Fujimori’s medical condition and has not yet made a decision as to the pardon: Viviana Krsticevic, ‘Remembrance and Resistance in Peru: A Pardon for Fujimori?’, Huffington Post, 20 July 2017, accessed online at on 28 July 2017. See also Human Rights Watch, ‘World

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(b) Pre-Fujimori Atrocities Another series of cases have been brought in relation to crimes alleged to have been committed by political and military authorities under President Alan García, who was president of Peru from 1985 to 1990 and again from 2006 to 2011. This has included a case against García himself. García’s first presidency was marred by serious economic turbulence of hyperinflation (of up to 7,649% in 1990), leading to replacement of the Peruvian currency in the middle of 1985 and again in 1990. The social instability that followed led to the rise and strengthening of the violent rebel group known as the Sendero Luminoso (or Shining Path). The Peruvian government’s attempts to put down the Shining path with military force led, in particular, to a number of controversial incidents (although the personal involvement of García in such incidents is not clear). For instance, in August 1985, around 50 peasants were killed by the Peruvian Military in Accomarca (the ‘Accomarca massacre’); and in May 1988, 30 people were killed and dozens disappeared (‘the Caraya massacre’). Most seriously, however, were the events that occurred in El Frontón prison on 18–19 June 1986. On 18 June, a series of prison riots erupted at a number of prisons in Lima and Callao, with Shining Path prisoners from two prisons in particular – El Frontón and the women’s prison in Santa Monica – taking prison guards and journalists hostage and demanding the release of 500 people imprisoned for terrorism. After negotiations failed, the prisons were taken by force. According to Human Rights Watch, 244 prisoners were killed.538 According to a us State Department Cable, 100 were summarily executed.539 In August 2010, President García enacted a statute of limitations to be applied to crimes against humanity alleged to have been committed prior to 2003 (when Peru signed the un Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity (Decree 1097)).540 The measure also required that judges close judicial proceedings against military and police personnel if charges were not brought within the applicable

Report 2012: Peru’, accessed online at on 13 September 2013. 538 See , accessed online on 16 September 2017. 539 ‘Garcia and the Military: Plea for International Support’, National Security Archive (28 June 1986), accessed online at on 13 September 2013. 540 Human Rights Watch, ‘World Report 2011: Peru’, accessed online at on 7 September 2013 (‘hrw Report 2011 – Peru’).

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36 month period.541 Decree 1097 would have prevented proceedings already initiated against a general and several members of the Colina Group responsible for many killings and disappearances under the Fujimori government, but would also have prevented proceedings being brought in respect of crimes allegedly committed by Alan García himself in 1986, such as the El Frontón Massacre.542 Due to international and domestic criticism, a month later the decree was repealed543 and proceedings were initiated against President García for the El Frontón Massacre. On 14 June 2013, however Peru’s Constitutional Tribunal dismissed the complaint on the basis that there was no evidence that crimes against humanity had been committed.544 In the view of the court, while it was accepted that the riots put down by the state with disproportionate force, the incident could not ‘be understood as a widespread or systematic attack against the civilian population, much less organized or occasioned by the State’.545 The Constitutional Court was tasked with reviewing the decision to commence a prosecution for crimes against humanity committed at El Frontón prison. At first instance, the operation at El Frontón was considered to constitute a crime against humanity on the basis that the operation was: characterised by a disproportionate use of force; was the result of a deliberate state policy to target alleged members of the Shining Path terrorist group; and formed part of a broader pattern of excesses committed by the State against such members.546 The first instance decision considered the attack to be ‘systematic’ attack.547 In reciting the relevant principles applicable to crimes against humanity, the Constitutional Court generally appeared to follow the principles set out by the international tribunals, including by the early decisions of the icc.548 541 542 543 544

hrw Report 2011 – Peru, above n 540. hrw Report 2011 – Peru, above n 540. hrw Report 2011 – Peru, above n 540. ‘Peru rules ‘no crimes against humanity’ in jail deaths’, Agence France-Presse (5 September 2013), accessed online at on 2 December 2014. 545 The matter was also considered in (IACtHR) Case of Durand and Ugarte v Peru (Judgment on Merits), Inter-American Court of Human Rights, (ser. C) No 68 (16 August 2000), accessed online at on 19 November 2013. 546 (Peru) El Frontón Case (Resolution), Constitutional Court of Peru, Case No 03173-2008PHC/TC (11 December 2008) (‘El Frontón – Constitutional Court’), [55]–[58]. 547 (Peru) El Frontón – Constitutional Court, above n 546, [59]. 548 (Peru) El Frontón – Constitutional Court, above n 546, [45], [48]–[51].

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Importantly, however, the Court appeared to adopt the requirement in the icc Statute that the attack be pursuant to a ‘State or organizational policy’.549 While the Court considered that state courts have been divided over the existence of the policy element (with Barbie, Touvier and Menten cases considering it to be required and Papon not requiring one550), the Court ultimately appeared to consider the icc Statute to have clarified the point.551 The Court appeared to understand this element to require a policy on behalf of the de jure or de facto authority.552 The Court ultimately found the facts did not constitute a crime against humanity.553 The Court considered that an attack will not be ‘systematic’ simply because the relevant attack was perpetrated by the state.554 In this case, it held that the operation at the prison was not the result of a preconceived plan to kill the inmates but rather the legitimate aim of quelling the prison riots; the deaths that resulted from the disproportionate use of force were not preconceived or planned.555 The Court also appeared to consider that the prison population was not a ‘population’ for the purposes of crimes against humanity.556 Finally, it should be noted that the Court did not appear to challenge the finding at first instance that no issue of retroactive application of crimes against humanity arose as the underlying crime charged – murder – was criminalised at the time of the offence.557 The status of this decision has, however, been left open after the later Constitutional Court in its decision of 5 April 2016.558 The Constitutional Court found that only 3 of the 4 majority judges subscribed to the conclusion that the facts did not constitute crimes against humanity and as such the decision was invalid. The case has now become politicised with the judges of the later Constitutional Court coming under investigation by the current pro-Garcia Pariament and Parliament seeking to expel such judges. In another case, known as the Los Cabitos case, the complaint alleged that eight military commanders – including Julio Coronel Carbajal D’Angelo, a 549 (Peru) El Frontón – Constitutional Court, above n 546, [45]. 550 (Peru) El Frontón – Constitutional Court, above n 546, [52]. See discussion of these cases in Chapter 3. 551 (Peru) El Frontón – Constitutional Court, above n 546, [53]. 552 (Peru) El Frontón – Constitutional Court, above n 546, [45]. 553 (Peru) El Frontón – Constitutional Court, above n 546, [62]. 554 (Peru) El Frontón – Constitutional Court, above n 546, [60]. 555 (Peru) El Frontón – Constitutional Court, above n 546, [62] and [63]. 556 (Peru) El Frontón – Constitutional Court, above n 546, [64]. 557 (Peru) El Frontón – Constitutional Court, above n 546, [55]. 558 (Peru) Constitutional Court of Peru, Case No 01969-2011-PHC/TC (5 April 2016).

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l­ ieutenant-Colonel of the Peruvian army among others559 – committed a range of atrocities at the Los Cabitos Barracks in 1983. According to the Truth and Reconciliation Commission, created in July 2001 to investigate the domestic armed violence in Peru between 1980 and 2000, the barracks was a centre for imprisonment, torture, disappearances and extra-judicial execution between 1983 and 1985. On 17 August, 2017, the Criminal Chamber delivered its first decision, resulting in both convictions as acquittals.560 On 10 July 2016, it was reported that 14 former military officers are to be tried for crimes against humanity for sexual violence committed between 1984 and 1995 in the indigenous region of Huancavelica.561 The case is ongoing at the time of writing.562 4.5 Uruguay 4.5.1 Legislation Uruguay adopted legislation specifically proscribing a number of international crimes, including crimes against humanity, on 4 October 2006 in Law 18026, known as the Cooperation with the International Criminal Court in the Fight Against Genocide, War Crimes and Crimes Against Humanity.563 Like its counterpart in Argentina, Article 18 does not specifically enunciate the elements of crimes against humanity but rather refers to crimes against humanity as defined by the Rome Statute, incorporating the definition verbatim. ­Article 4 ­provides extraterritorial jurisdiction where ‘effects’ of the crime occur in ­Uruguay – and where the perpetrator is a national of Uruguay.

559 Carlos Arnaldo Briceño Zeballos, Wilfredo Mori Orzo, Carlos Millones D’Estefano, Roberto Saldaña Vazquez, Edgar Paz Avedaño, Humerto Orbegozo Talavera y Arturo Moreno Alcantara. 560 ‘Los Cabitos: Estas fueron las sentencias que recibieron los acusados’, La República (17 August 2017), accessed online at on 17 October 2017. 561 ‘Peru Soldiers Face Human Rights Trial for Raping Women in 1980s’, teleSUR (10 July 2016), accessed online at on 16 September 2017. 562 ‘See profile on TRIAL website, accessed online at on 21 October 2014. 563 Legislation accessed online at on 25 February 2013: see discussion in Falconi, above n 458, 458–459.

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The operation of these laws in Uruguay have been hindered by amnesties granted similar to those in Argentina. Essentially, in the 1970s and 1980s, Uruguay’s military dictatorship (like Argentina, Brazil, Bolivia and Paraguay) took part in Operation Condor in order to fight the threat of communism, leading to the disappearance of around 213 people and the imprisonment of 6,000. ­After the return to democracy, then-President Sanguinetti passed Law No 15.848 (known as ‘the expiry law’), which granted an amnesty to those responsible for human rights violations during the 1970s. 4.5.2 Jurisprudence So far, however, the Supreme Court of Uruguay has held that the 2006 laws do not apply retrospectively.564 The result is that prosecutions in Uruguay have tended to rely on domestic offences rather than crimes against humanity.565 For instance, on 17 December 2007, Uruguayan authorities brought charges against former president, Gregorio Alvarez Armellino, and former Naval officer, Juan-Carlos Larcebeau Aguirregaray, for disappearances carried out as part of Operation Condor.566 While the defendants were initially charged with enforced disappearances, the charges were ultimately withdrawn and replaced with domestic charges of aggravated murder.567 In the course of convicting the defendants, however, the first instance court made a number of comments about crimes against humanity. The Court appeared to consider that the killings took place within the context of a widespread and systematic attack against a civilian population and warranted the classification as a crime against humanity.568 Discussing the history of the

564 See discussion in Galain Palermo, ‘The Prosecution of International Crimes in Uruguay’ (2010) 10(4) International Criminal Law Review 601; see also Amnesty International, ‘Uruguay – Key human rights concerns’, Amnesty International: Submission to the un Universal Periodic Review, January–February 2014, accessed online at on 22 March 2014 (‘Amnesty International – Uruguay Key Human Rights Issues’). 565 ‘Human Rights Trials in Chile and the region’, Human Rights Observatory, Universidad Diego Portales, Santiago, Chile Bulletin N° 10 (September-November 2010), accessed online at on 23 October 2014. 566 (Uruguay) Ministerio Publico c Alvarez Armellino y Larcebeau Aguirregaray (Judgment), Juez Penal de Turno Montevideo, Decision No 0157 (29 October 2009) (‘Alvarez ­Armellino – Judgment’). 567 (Uruguay) Alvarez Armellino – Judgment, above n 566. 568 (Uruguay) Alvarez Armellino – Judgment, above n 566, [148] and [152].

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crime, the Court stated that the definition had been most recently ‘codified’ by the icc Statute569 and concluded that:570 … since the Second World War – at least – murder, kidnapping, torture and cruel and inhuman treatment perpetrated against a civilian population on a large-scale and according to a systematic plan – conducted by a state or with the acquiescence State officials – constitute crimes against humanity. Crimes against humanity, the Court found, were jus cogens norms and were imprescriptible.571 Notwithstanding this decision, in May 2011, the Supreme Court of Uruguay dismissed charges brought against two police officers for enforced disappearances because the crime was not implemented in Uruguay until 2006.572 Around the same time, on 24 February 2011, the IACtHR handed down its decision in Gelman v Uruguay.573 The matter concerned the enforced disappearance of María Claudia García Iruretagoyena de Gelman since 1976 – in what was said to be acts committed by the Uruguayan and Argentine states in the context of Operation Condor.574 It was alleged – and the Court ultimately found – that Uruguay has breached various human rights by failing to prevent, investigate and punish the perpetrators. The Court accepted that the Argentine and Uruguayan authorities had engaged in a systematic practice of arbitrary detention, torture and enforced disappearances.575 This was facilitated by way of parallel military structures that operated in secret and was coordinated by the governments of Chile, ­Argentina, Uruguay, Paraguay, Bolivia and Brazil.576 The operation combined political surveillance and counterinsurgent activity with targeted extermination and ­assassinations and was very sophisticated and organised.577 ­Interestingly, while the Court at one stage appeared to accept the operations 569 (Uruguay) Alvarez Armellino – Judgment, above n 566, [151]. 570 (Uruguay) Alvarez Armellino – Judgment, above n 566, [152]. 571 (Uruguay) Alvarez Armellino – Judgment, above n 566, [166] and [204]–[205]. 572 (Uruguay) Gavazzo Pereira, José Nino y Arab Fernández, José Ricardo (Judgment), Supreme Court of Uruguay, Case No 98/247/2006 (6 May 2011). 573 (IACtHR) Case of Gelman v Uruguay (Judgment on Merits and Reparations), Inter-­ American Court of Human Rights, (ser. C) No 221 (24 February 2011) (‘Gelman v Uruguay’). 574 (IACtHR) Gelman v Uruguay, above n 573, [2]. 575 (IACtHR) Gelman v Uruguay, above n 573, [44], citing Goiburú v Paraguay, above n 428. 576 (IACtHR) Gelman v Uruguay, above n 573, [49]. 577 (IACtHR) Gelman v Uruguay, above n 573, [51]–[52].

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of ­Operation Condor were ‘massive’,578 it referred only to the term ‘systematic’ rather than ‘widespread’ in describing the actions of the Uruguayan government,579 suggesting it considered the actions of the Uruguayan state to be systematic without necessarily being widespread. Possibly in response to Gelman v Uruguay, the Uruguay Parliament passed Ley 18.831 in October 2011. The law sought to clarify that the crimes committed under ‘state terrorism’ covered by the amnesty in Law No 15.848 were ‘crimes against humanity’ not susceptible to any procedural or time limitation. In ­February 2013, however, the Supreme Court of Uruguay stuck down this law on the basis that crimes against humanity were only proscribed in Uruguay in 2006.580 4.6 Brazil581 4.6.1 Legislation On 18 January 2002, Brazil adopted legislation implementing the icc Statute, including crimes against humanity verbatim.582 Article 7(II) of the Brazilian Penal Code provides for extraterritorial jurisdiction where either the perpetrator is a Brazilian national (7(II)(b)) or where Brazil, through convention or treaty, Brazil has an obligation to prosecute the crime (7(II)(a)). The perpetrator must, however, be present in the jurisdiction and the crime must also be proscribed in the state where the crime was committed (7(II)§2). 4.6.2 Jurisprudence The law implementing the icc Statute, however, has been interpreted not to have retrospective operation. In 2008, prosecutors in Brazil sought to bring a complaint in respect of the torture and murder of a journalist killed and

578 (IACtHR) Gelman v Uruguay, above n 573, [44] (where it cites Goiburú v Paraguay, above n 428, as describing the ‘massive and systematic repression’ being the effect of Operation Condor). 579 (IACtHR) Gelman v Uruguay, above n 573, [43(b)], [44], [54], [74], [99], [231], [234]. 580 Amnesty International – Uruguay Key Human Rights Issues, above n 564, 5; see also PierreLouis Le Goff and Francesca Lessa, ‘Uruguay’s Supreme Court of Injustice’, The ­Argentina Independent (21 March 2013), accessed online at on 28 June 2013. 581 The authors would like to acknowledge the assistance of Prof Sven Peterke with this section. 582 (Brazil) Resolução da Assembleia da República no 3/2002, Aprova, para ratificação, o Estatuto de Roma do Tribunal Penal Internacional, accessed online at on 22 March 2014.

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t­ ortured by the Brazilian intelligence agency, the Destacamento de Operações de Informações – Centro de Operações de Defesa Intena between 1964 and 1985. Despite the implementation of the Rome Statute, the Court held that cah could not be prosecuted because, at the time of their commission, Brazilian domestic law did not recognise crimes against humanity.583 While the Brazilian Military has more recently agreed to open an investigation into the use of torture, any prospect of prosecution would appear to be limited by the operation of the amnesty.584 5

Former Socialist States

5.1 Bosnia and Herzegovina 5.1.1 Legislation Up until 2003, the 1976 Criminal Code of the Socialist Federal Republic of ­Yugoslavia (fry) that applied in Bosnia and Herzegovina proscribed war crimes and genocide but not crimes against humanity. On 1 March 2003, the new Criminal Code entered into force, which introduced crimes against ­humanity into domestic law. Article 172 defines the offence in the same terms as Article 7 of the icc Statute (including the requirement that an attack be pursuant to a state or organizational policy). One small deviation can be found, however, in the Code’s formulation of the sexual offences as requiring that there be an element of ‘coercion’.585 By Article 19 such offences are not subject to any statute of limitation. Under Article 9 of the Bosnian Criminal Code, extraterritorial crimes may be prosecuted where committed by a Bosnian national and over a ­non-national where the crime that is alleged is either an offence which – under the foreign 583 (Brazil) Ministério Público Federal [Office of the Prosecutor], Herzog, Vladimir, Promogao de arquivamento, Case No 1.34.001.001574/2008-17 (12 September 2008). 584 Vincent Bevins, ‘Brazil’s military to cooperate in dirty war investigation’, la Times (2 April 2014), accessed online at on 27 October 2014. 585 (Yugoslavia) Article 172(1)(g) (‘Coercing another by force or by threat of immediate attack upon his life or limb, or the life or limb of a person close to him, to sexual intercourse or an equivalent sexual act (rape), sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation or any other form of sexual violence of comparable gravity’); ­Article  172(2)(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’) (underlining added).

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law586 – is punishable by a term of five years or more imprisonment (and the offender is present in the jurisdiction), or if the offence is one in respect of which Bosnia and Herzegovina is bound to punish according to the provisions of international law and international treaties or intergovernmental agreements’. 5.1.2 Jurisprudence Most of the trials for international crimes have been undertaken by the specialised Court of Bosnia and Herzegovina, discussed in Chapter 5. Nonetheless, a number of trials have been commenced in the ordinary courts of BiH in recent years (although trials in ordinary courts are often undertaken under the previous legislation which does not proscribe crimes against humanity).587 A 2016 report of the Organization for Security and Co-operation in Europe (osce) noted that some inconsistencies have arisen in the prosecution of serious international crimes in ordinary courts, with some crimes that were prosecuted as crimes against humanity by the icty being brought as war crimes in domestic prosecutions; the report suggested a lack of clarity as to the elements of crimes against humanity amongst domestic prosecutors at present to be the main cause.588 In the early prosecutions for crimes against humanity, the issue of the nullum crimen principle arose given that it was the fry Code rather than the 2013 Code that applied during the time of the Bosnian war. In March 2009, an indictment for crimes against humanity under the BiH Criminal Code was confirmed by an ordinary court for the first time in the case of Trifković et al.589 While the issue was raised about prosecuting crimes against humanity being 586 (Bosnia) On the wording of the provision, it appears to refer to Bosnian law. However, a communication from the Permanent Mission of Bosnia and Herzegovina suggests that it refers to the foreign law: see Information on un ga Resolution 65/33 relative to the principle of universal jurisdiction, un Doc. 07/1-21-05-4-1005/11 (2 February 2011), 3, accessed online at on 5 July 2014. 587 Organization for Security and Co-operation in Europe – Mission to Bosnia and ­Herzegovina, ‘Delivering Justice in Bosnia and Herzegovina: An Overview of War Crimes ­Processing from 2005 to 2010’ (May 2011) (‘2011 osce Report’), 70. 588 Organisation for Security and Co-operation in Europe – Mission to Bosnia and ­Herzegovina, ‘Processing of War Crimes at the State Level in Bosnia and Herzegovina’ (2016), accessed online at on 28 July 2017. 589 (Bosnia and Herzegovina) Trifković et al. (Tuzla Cantonal Court), cited in 2011 osce Report, above n 587, 70.

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a potential violation of the principle of legality, during a roundtable convened by the osce Mission in October 2008, judges from the Appellate Division of the Court of BiH, Supreme Court of FBiH and rs, and the Appellate Court of the Brčko District agreed that the application of the 2003 Criminal Code would not violate the principle of legality.590 As at September 2010, two further cases (in the Mostar Cantonal Court and Banja Luka District Court) had since followed this precedent, while one other case (in the Doboj District Court) had rejected the approach on the basis that only the Court of BiH has jurisdiction to apply the BiH Criminal Code.591 That the application of the 2003 Criminal Code would not violate the principle of legality was confirmed by the Grand Chamber of the European Court of Human Rights in its July 2013 judgment in Maktouf-Damnjanović v Bosnia and Herzegovina.592 While the case largely concerned the application of the principle to war crimes, the Court confirmed that the prosecution of crimes against humanity under the 2003 Code would not violate the principle of legality as at the time of the offences in 1992–1995 because the crimes ‘clearly constituted criminal offences under international law at the time’.593 The Chamber confirmed its earlier decision in Šimšić v Bosnia and Herzegovina.594 This was based on the modern definition of crimes against humanity being satisfied; in neither case was any discussion undertaken as to the point at which the war nexus was no longer required under customary international law. 5.2 Estonia 5.2.1 Legislation The ussr invaded Estonia in June 1940, incorporating it into the Soviet Union. Except for the interruption by the German occupation in 1941–1944, Estonia remained occupied by the Soviet Union until the restoration of independence 590 2011 osce Report, above n 587, 70–71. 591 2011 osce Report, above n 587, 71. 592 (ECtHR) Maktouf and Damjanović v Bosnia and Herzegovina (Judgment), European Court of Human Rights (Grand Chamber), App Nos. 2312/08 and 34179/08 (18 July 2013) (‘Maktouf and Damjanović – Grand Chamber’). See also Francesco de Sanctis, ‘The Impact of the ECtHR’s Judgment in Maktouf-Damjanovic on Accountability and Punishment for War Crimes in Bosnia-Herzegovina’, ejil Talk! (12 November 2013), accessed online at on 28 July 2017. 593 (ECtHR) Maktouf and Damjanović – Grand Chamber, above n 592, [55]. 594 (ECtHR) Šimšić v Bosnia and Herzegovina (Judgment), European Court of Human Rights (Fourth Section), App No 51552/10 (10 April 2012).

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in 1991. During the period of Soviet occupation, numerous atrocities were committed against the Estonians, including the deportation of some 20,000 Estonians to Siberia in March 1949 following a roundup commencing in 1941.595 This amounted to 2.5 per cent of the population and included 90 per cent women, children and pensioners. This is discussed further below in relation to Latvia. Soviet actions let to the emergence of an anti-Soviet guerrilla movement in Estonia known as the ‘Forest brothers’ (Metsavennad). Made up largely of veteran fighters and never attaining any coherent level of organisation, they engaged in guerrilla action from locations in the thick forest and swaps in ­Estonia.596 Their numbers never exceeded 5,000 and they never had a coherent organization, units ranging from one individual to numbers in the hundreds. This history provided a special incentive to Estonia to turn to the international offence of crimes against humanity, particularly to justify prosecutions of offences at the time of Soviet occupation so long after the events. After independence in 1991, the new government in Estonia established the Estonian International Commission to investigate crimes against humanity committed under Soviet and German occupation. It published its first report covering the period 1940 to 1945 in 2006.597 The Criminal Code (Kriminaalkoodeks) in 1994 introduced the offence of ‘crimes against humanity, including genocide’ in Article 61-1 § 1 punishable by 8–15 years imprisonment. The crime is said to be: defined in international law, that is, the intentional commission of acts directed to the full or partial extermination of a national, ethnic, racial or religious group, a group resisting an occupation regime, or other social group, the murder of, or the causing of extremely serious or serious bodily or mental harm to, a member of such group or the torture of him or her, the forcible taking of children, an armed attack, the deportation or expulsion of the native population in the case of occupation or annexation and the deprivation or restriction of economic, political or social human rights, 595 Tolvo Miljan, Historical Dictionary of Estonia (2nd ed, Rowman & Littlefield: London, 2015) 110. 596 Miljan, above n 595, 70–71. 597 See Estonian Foundation for the Investigation of Crimes Against Humanity, Estonia 1940–1945: Reports of the Estonian International Commission for the Investigation of Crimes Against Humanity (2006), accessed online at on 27 June 2006.

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This definition is reflective of the views of the time. Like the definition in the Statute for the ictr598 and in the French Penal Code599 (both of which came also came into force in 1994), the emphasis is on an attack on a national, ethnic, racial, religious or other social group. The reference to ‘a group resisting an occupation regime’ or ‘the deportation or expulsion of the native population in the case of occupation or annexation’ captures the particular historical circumstances of Estonia without departing from the essence of the concept of crimes against humanity at the time of and since Nuremberg. The offences were declared to ‘be punishable regardless of the time of commission of the crime’.600 The Penal Code (Karistusseadustik), which entered into force on 1 September 2002, applies to acts outside the territory but only if punishable under an international agreement binding on Estonia.601 This would appear to extend to crimes against humanity given that it is a signatory to the icc Statute. Article 89 of the new Penal Code states: Systematic or large-scale deprivation or restriction of human rights and freedoms, instigated or directed by a state, organisation or group, or the killing, torture, rape, causing of health damage, forced displacement, ­expulsion, subjection to prostitution, unfounded deprivation of liberty, or other abuse of civilians, is punishable by 8 to 20 years’ imprisonment or life imprisonment. To bring the definition into conformity with more recent statements of the crime’s definition, the previous reference to a national, ethnic, racial, religious or other social group has been deleted. It is noteworthy that there is no reference to an attack directed against ‘any civilian population’ pursuant to a State or organizational policy to commit such an attack, simply to the systematic or large-scale ‘abuse of civilians’. 5.2.2 Jurisprudence There have been 12 prosecutions in Estonia for persons involved in atrocities during the Soviet occupation – in particular the deportations.602 One of the first Estonians to be charged for crimes against humanity for acts ­committed 598 599 600 601 602

See Chapter 4. See Section 9 below. Article 6 § 4. Article 8. See Kaitsepolitseiamet Website, accessed online at on 16 September 2017.

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­under Soviet occupation was Karl-Leonhard Paulov, a former agent of the nkvd (the Ministry of State Security’s secret service). It was alleged against Paulov that he had killed three ‘Forest Brothers’ in 1945 and 1946. On 26 ­October 1999, the Põlva County Court found the crimes constituted murder (­contrary to 101-1 Criminal Code) but not crimes against humanity as the individuals were not ‘civilians’ but were carrying weapons and were members of the resistance.603 The Court further considered that the accused’s goal was not to further any discrimination or the destruction of Estonians but for material self-interest (apparently he was paid to kill the victims).604 On 13 December 1999, the Tartu Court of Appeal confirmed the first instance decision but rejected the reasoning that the individuals were not civilians.605 The Court considered the dismissal of the charge to be justified on the basis that international law did not proscribe the targeting of members of a resistance movement to an occupation regime. The Court did note however that the individuals were ‘civilian’ as they did not fall within the definition of an ‘organized resistance movement’ under Article 4(2) of the Third Geneva Convention. The matter was then appealed to the Criminal Chamber of the Supreme Court (Riigikohus). In its judgment of 21 March 2000, the Court overturned the decision on crimes against humanity and remitted the matter back to the Põlva County Court for a new trial. The Court held that while targeting a resistance movement may not be sufficient for the crime of genocide, it was sufficient for a crime against humanity. It held:606 4. … In case of a crime[s] against humanity, the offender places himself or herself, for various reasons – first and foremost for religious, national or ideological reasons – outside of the system of values. He or she acts in order to achieve other goals (for example ethnic cleansing) and the attacked values – life, health, physical integrity – are, in a given context, worthless to him or her. Here the attack is not directed against a specific victim; any person can become a victim. […] 7. The appeal proceeds from … the concept of a crime against humanity and it is submitted that the victims hid in the woods as civilians in 603 (Estonia) Prosecutor v Karl-Leonhard Paulov, Supreme Court Criminal Chamber, Case No. 3-1-1-31-00 (21 March 2000) (‘Paulov – Supreme Court’), Facts and Proceedings, [1]. 604 (Estonia) Paulov – Supreme Court, above n 603, Facts and Proceedings, [1]. 605 (Estonia) Paulov – Supreme Court, above n 603, Facts and Proceedings, [4]. 606 (Estonia) Paulov – Supreme Court, above n 603, Findings, [4]–[8].

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order to avoid repression. The occupation authorities, however, decided to deprive them of their right to a fair trial and to murder them. It was found that, therefore, there had been a crime against humanity. The Supreme Court subscribes to the latter position and notes that deprivation of a person of his or her right to life and fair trial may be treated as other inhumane acts referred to in Article 6 (c) of the Charter of the Nuremberg International Military Tribunal. … In terms of the deportation cases, a notable example was the prosecution of August Kolk and Pjotr Kislõi (or Kislyiy). In March 1949, the two accused were alleged to have participated in the operation ‘Priboi’ to deport 10 families to remote areas of the Soviet Union. On 10 October 2003, the Saare County Court (Saare Maakohus) convicted Kolk and Kislyiy of crimes against humanity under Article 61-1 § 1 of the Criminal Code for their actions. On 27 January 2004, the Tallinn Court of Appeal (Tallinna Ringkonnakohus)607 upheld the judgment, finding that by filling out documents concerning deportation, removing people from their homes and handing them over to a ship assigned for deportation, the applicants had participated in a widespread attack against the civilian population. The Court also addressed the principle of non-retroactivity, finding that Article 7 § 2 of the European Convention on Human Rights did not prevent punishment of a person for an act which, at the time of its commission, had been criminal according to the general principles of law recognised by civilised nations. Relying on Article 6 (c) of the London Charter and Resolution 95(I) of the General Assembly of the United Nations on 11 December 1946, it held that such acts of deportation, even outside the context of war, were recognised as crimes against humanity by civilised nations in 1949 and entailed norms of international customary law.608 This finding on non-retroactivity was affirmed by the European Court of Human Rights on 17 January 2006.609 The Court noted that ‘deportation’ was recognised as a crime against humanity in the London Charter.610 While the Nuremberg Tribunal was established to try persons in Axis countries during World War 2, the ‘universal validity’ of the provisions was subsequently affirmed by un General Assembly Resolution 95 in 1946 and ‘later by the [ilc]’.611 607 (Estonia) On 21 April 2004 the Supreme Court refused Kislyiy’s leave to appeal. 608 This was affirmed in (ECtHR) Kolk and Kislyiy v Estonia (Judgment), European Court of Human Rights, App Nos 23052/04 and 24018/04 (17 January 2006) (‘Kolk and Kislyiy – ­Appeal’). For discussion of the correctness of this conclusion see Chapter 2, Section 7 and Chapter 3, Section 5.2. 609 (ECtHR) Kolk and Kislyiy – Appeal, above n 608. 610 (ECtHR) Kolk and Kislyiy – Appeal, above n 608, [8]. 611 (ECtHR) Kolk and Kislyiy – Appeal, above n 608, [8]–[9].

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Further, the Court stated that the 1968 Convention on the Non-­Applicability of Statutory Limitations to War Crimes and Crimes against Humanity referred to crimes against humanity as able to be committed ‘in time of war or peace’. Upon Estonia entering into the Convention in 1991, Estonia was ‘bound to implement the said principles’.612 Accordingly, the Court noted that the exception to retroactivity provided in Article 7 § 2 of the Convention in respect of ‘general principles of law recognised by civilised nations’ included crimes against humanity, ‘in respect of which the rule that they cannot be time-barred was laid down by the Charter of the Nuremberg International Tribunal’.613 5.3 Latvia 5.3.1 Legislation The independence enjoyed from 1917 changed with the stationing of ussr troops in Latvian territory in 1939, followed by a full-scale invasion in 1940.614 The Soviet authorities sought to systematically repress the Latvian elites who were seen to be anti-communist. They did so through show-trials, execution or imprisonment in prison camps or deportation. In the most notorious incident, on 13–14 June 1941 40,000 Baltic citizens were deported to various places in the interior ussr.615 Between 1941 and 1944, German authorities occupied the Baltic states and carried out a similar campaign of aggression, albeit focusing on Jews, Roma and communist sympathisers.616 In 1944, the territory again came under the control of the ussr, which sought to incorporate it into the Soviet Union. Many Latvians fought the occupiers and between 120,000 and 300,000 fled to places in the west like Germany and Sweden.617 Further, between 25 and 28 March 1949, Soviet authorities deported 42,000 rural residents (kulaks) and Latvian nationalists to Siberia in ‘Operation Priboi’ (Operation Breaker).618 ­Ultimately,

612 (ECtHR) Kolk and Kislyiy – Appeal, above n 608, [9]. 613 (ECtHR) Kolk and Kislyiy – Appeal, above n 608, [9]. 614 Rain Liivoja, ‘Competing Histories: Soviet War Crimes in the Baltic States’ in Kevin Heller and Gerry Simpson (eds), The Hidden Histories of War Crimes Trials (Oxford University Press: Oxford, 2013) 248. 615 Liivoja, above n 614, 250. 616 Liivoja, above n 614, 250. 617 Valdis Lumans, Latvia in World War ii (Fordham University Press: New York, 2006), 349. 618 ‘March 25 in Latvia: Commemoration of the Brutal 1949 Deportations’, Latvia.eu (25 March 2014), accessed online at on 22 October 2014. See also Heinrihs Strods and Matthew

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between 1945 and 1952, around 200,000 people from Latvia, Lithuania and Estonia were deported to Soviet concentration camps (the Gulag).619 The Latvian parliament enacted legislation in substantially similar terms to that in Estonia. By an Act of 6 April 1993, the 1961 Criminal Code was amended such that Article 68-1 defined ‘crimes against humanity, including genocide’ as follows: whether committed in time of war or peace, and as defined by the respective legislative acts as conventional about them and the leader of the offense, that is to say, a deliberate action intended to destroy, as such and in whole or in part, a national, ethnical, race, social class, or a defined collective belief or faith, causing the death of member of the group, causing serious injury to body or by causing them mental illness, intentionally imposed conditions of life calculated to bring about their physical destruction in whole or in part, as well as depriving indigenous peoples of their economic, political and / or social rights or restricting the exercise of these rights. While conflating the crimes against humanity with genocide, as noted above in respect of Estonia and Guatemala, this was understandable at the time it was drafted. More recently, Latvia ratified the icc Statute on 20 June 2002 (and in force since 28 June 2002). On 21 May 2009, Estonia updated this definition as follows: an activity which is performed as a part of vast or systematic offensive to civilians and which has been expressed as homicide, extermination, enslavement, deportation or forced movement, unlawful deprivation or limitation of liberty, torture, rape, involvement of a person into sexual slavery, compelling the engaging in prostitution, forced fertilisation or sterilisation, or sexual violence of similar degree of severity, apartheid, persecution of any group of people or union on the basis of political, racial, national, ethnical, cultural, religious or gender affiliation or other reasons which have been recognised as inadmissible in the international law, in relation to any activity indicated in this Section or genocide, or

Kott, ‘The file on operation “Priboi”: A re-assessment of the mass deportations of 1949’ (2002) 33(1) Journal of Baltic Studies 1, noting that 90,000 Latvians, Estonians and Lithuanians were deported. 619 Timothy Snyder, Bloodlands – Europe Between Hitler and Stalin (Basic Books: New York, 2011) 329.

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war crime or other activity provided for in the international law binding upon the Republic of Latvia, which causes serious physical or mental suffering, While this does not appear to include a requirement that there be a state or organizational policy, the ratification of the icc Statute means that the icc Statute will apply to the extent of any inconsistency between the two.620 However, it is unclear whether the icc definition in this regard would prevail. Section 4 of the Criminal Code extends Estonian courts’ extraterritorial jurisdiction where: the perpetrator is a citizen or permanent resident (regardless of whether or not it is a crime in the foreign state) (1); the perpetrator is a Latvian soldier (2); the perpetrator has ‘committed serious or especially serious crimes in the territory of another state which have been directed against the Republic of Latvia or against the interests of its inhabitants’ (3); or the perpetrator has ‘committed a criminal offence … in the cases provided for in international agreements binding upon the Republic of Latvia’ (4). Sub-section (4) would appear to extend to offences provided for in the icc statute, such as crimes against humanity. Finally, the Act provides that crimes against humanity are not subject to statutes of limitation (s 57) and that, while the ‘criminality and punishability of an offence (act or failure to act) are determined by the law […] in force at the time the offence was committed’ (s 5(1)), the Act specifically provides for an exception for a perpetrator of a crime against humanity (s 5(4)). 5.3.2 Jurisprudence While no prosecutions have taken place under the most recent iteration of crimes against humanity, a number of prosecutions did take place under the provision in the 1961 Criminal Code. One such prosecution was that of ­Nikolay Tess, an ex-Soviet soldier working as a special investigator for the Latvian Department of State Security.621 On 21 May 2001, Tess was indicted for ‘crimes against humanity, including genocide’.622 Tess was alleged to have actively participated in Operation Priboi in 1949 by authorising the ­deportation 620 Leva Kalnina and Martin Paparinskis, ‘Implementation of the Rome Statute in Latvia’, Project on National Implementation Legislation (1 June 2007), accessed online at on 23 October 2014. 621 (ECtHR) Larionovs and Tess v Latvia (Decision), European Court of Human Rights (Fourth Section), App Nos 45520/04 and 19363/05 (25 November 2014) (‘Tess v Latvia – Decision’), [1]. 622 (ECtHR) Tess v Latvia – Decision, above n 621, [2].

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of 42 families of kulaks, totalling 152 people, including 57 women and 48 children. After the dismissal of a range of appeals and constitutional challenges, Tess stood trial in the Kurzeme Regional Court on 16 December 2003. Tess pleaded not guilty on the basis that his participation was purely formal in signing the orders on behalf of his superiors and did not intend to further any deliberate campaign of deportation.623 While the judgment focused on the Accused’s responsibility for ‘genocide’, the findings appeared more directed at the ‘crimes against humanity’ given the focus of the deportations was not aimed at a racial or ethnic groups but of purging Soviet Latvia of undesirables such as nationalists and land-holding farmers.624 The Court, for instance, recognised that the application of genocide to the facts required an ‘extension’ of the concept to ‘persecution for political reasons’ and relied on a number of definitions from other states – many of which appear to be defining crimes against humanity – to support its conclusion. Despite the offence not being proscribed in Latvia at the time of the conduct, the Court considered the prosecution not to breach the nullum crimen principle on the basis of the exception where the crime is criminal according to the general principles of law recognized by civilized nations.625 There appeared to be no discussion of any requirement of a war nexus for crimes against humanity. On 11 November 2004, the Criminal Affairs Division of the Supreme Court rejected an appeal, again in words that tended to suggest a crime against humanity over genocide:626 The above law is intended to protect the rights and freedoms of Latvian residents victims of repression; its historical origin is related to the fact of the occupation of the Latvian state in 1940 and that of the restoration of independence in 1990. […] In the circumstances outlined above […], the behavior of N. Tess had amounted to an act of violence against the population of an occupied state[…]

623 (ECtHR) Tess v Latvia – Decision, above n 621, [3(a)]. 624 (ECtHR) Tess v Latvia – Decision, above n 621, [3(a)], citing from the first instance decision. 625 (ECtHR) Tess v Latvia – Decision, above n 621, [3(a)], citing from the first instance decision. 626 (ECtHR) Tess v Latvia – Decision, above n 621, [3(b)], citing from the appeal decision.

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On 4 January 2008, the European Court of Human Rights rejected a challenge to the conviction, although for reasons that do not contribute to the debate on crimes against humanity. In particular, the question on retroactivity was not decided. 5.4 Hungary 5.4.1 Legislation Hungary’s initial Criminal Code (Act iv of 1978) contained a definition of what it called ‘crimes against humanity’ that appeared to only include only offences such as genocide and war crimes.627 After announcing on 12 April 2002 that Hungary had ratified the icc Statute,628 on 25 June 2012, the Hungarian Parliament passed a new criminal code coming into force 1 July 2013 (Act C of 2012) that introduced a definition of crimes against humanity in line with the icc Statute.629 In 2011, a law was also passed abolishing the statute of limitations for crimes against humanity and war crimes.630 Chapter xiii, Section 143(1) defines crimes against humanity as being when any person ‘being part of a widespread or systematic practice’, commits any of the enumerated acts.631 Sub-section (3) implements the ‘State or organizational policy’ requirement from the icc Statute: 627 (Hungary) Act iv of 1978 on the Criminal Code, accessed online at on 21 October 2014, ss 153–165. See also Paul Hoffman, ‘Trying Communism through International Criminal Law? The Experiences of the Hungarian Historical Justice Trials’, Kevin Heller and Gerry Simpson (eds), The Hidden Histories of War Crimes Trials (Oxford University Press: Oxford, 2013) 229, 244. 628 Statement by the Ministry of Foreign Affairs of Hungary on the entry into force of the Statute of the International Criminal Court (12 April 2002), accessed online at on 19 October 2014. 629 (Hungary) Act C of 2012 on the Criminal Code, available at ‘Hungarian Parliament Has Passed The New Penal Code’, XpatLoop (29 June 2012), accessed online at on 21 ­October 2014. The Hungarian Government had earlier stated in the Council of Europe that its intention was to draft offences ‘in line with the icc Statute’: see ‘Report of the Republic of Hungary on the ratification of the Statute of the International Criminal Court’, Consult/icc (2001) 15 (3 August 2001), accessed online at on 21 October 2014. 630 Trial International, ‘Bela Biszku’, accessed online at on 4 August 2017. 631 Namely, murder, ‘forc[ing] the civilian population, in part or in whole, to live under conditions threatening the demise of that population or certain members thereof’, forced

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In the application of this Section widespread or systematic assault on the civilian population shall include all conduct which covers the acts defined under Subsection (1) committed systematically against the civilian population aiming to implement or facilitate the policies of a State or organization Chapter ii, Sub-section 3(2) provides Hungarian courts extraterritorial jurisdiction over acts committed by non-Hungarians abroad where the offence constitutes a criminal act under Chapter xiii (i.e. including crimes against humanity). Sub-section (3) provides that such proceedings are to be opened by order of the Prosecutor General. Further, Sub-sections 1(2) and 2(3) provide that the criminal code may have retrospective effect where the acts ‘are punishable under universally acknowledged rules of international law’. 5.4.2 Jurisprudence No prosecutions for crimes against humanity under the new criminal code have yet taken place. Nonetheless, Hungary has had some experience with crimes against humanity under its earlier legislation. One notable case is that of János Korbely. At the outbreak of the Hungarian Revolution in Budapest on 23 October 1956, Korbely was a captain at the Tata military school for junior officers.632 In the course of quelling a popular uprising on 26 October 1956, Korbely fired – and ordered his men to fire on – a number of insurgents alleged to be unarmed civilians.633 In 1993, the Hungarian Parliament passed an Act which provided that, having regard to the 1968 un Convention on the Non-Applicability of Statutory Limitations, certain acts committed during the 1956 uprising were not subject to limitation periods.634 While the Act purported to cover acts committed prior to the domestic proscription of those offences in Hungarian law, the Constitutional Court on 13 October 1993 declared the Act was valid. The Court held that the act did not violate the principle of nullum crimen because war crimes

displacement, ‘engages in the trafficking in human beings or in exploitation in the form of forced labor’, ‘depriv[ing] another person of his personal freedom, or unlawfully maintains his abduction’, ‘forc[ing] another person to commit or tolerate sexual violence, forces others into prostitution or to bear a child, or into illegal abortion’, ‘caus[ing] serious bodily or mental injury to others’ or ‘deprives other persons of their basic rights for reasons of their affiliation with a group on the grounds of political opinion, nationality, ethnic origin, culture, religion, sex or any other reason’. 632 (ECtHR) Korbely v Hungary, above n 382, [9]. 633 (ECtHR) Korbely v Hungary, above n 382, [15] and [21]. 634 (ECtHR) Korbely v Hungary, above n 382, [16].

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and crimes against humanity were defined by the international community as being crimes under international law and ‘the significance of these offences is too great to allow their punishment to be made dependent upon their acceptance by, or the general criminal-law policy of, individual states’.635 While the law was in fact one proscribing war crimes, the Court appeared to consider the matter in the context of a ‘crime against humanity’. The Court considered that the acts defined in Common Article 3 of the Geneva Conventions ‘constitute crimes against humanity’636 and that, following the icj Decision in its Case Concerning Military and Paramilitary Activities in and against Nicaragua and the un Secretary-General’s 1993 Report in relation to the icty, a crime against humanity can occur in an armed conflict whether international or internal in character.637 As noted in Chapter 4, the fact that the icty Statute subsequently adopted an ‘armed conflict’ nexus appeared to leave open whether or not a crime against humanity could be committed outside at least a non-international armed conflict. The same conflation of crimes against humanity and war crimes arose again in proceedings against Korbely. Shortly after the Constitutional Court decision, on 27 December 1994, Korbely was indicted for a ‘crime against humanity in violation of Article 3 § 1 of the [Geneva Conventions]’ relation to his actions on 26 October 1956.638 On 29 May 1995, the Military Bench of the Budapest Regional Court dismissed proceedings, effectively, on the grounds that the there was no ‘armed conflict’ necessary to establish either a war crime or a crime against humanity. Those opposing the Hungarian state were ‘spontaneously organized armed groups’ that were ‘opposing the central power’, they ‘did not operate under any central command’ and, ‘although the armed groups maintained a loose network of information between themselves, they did not perform their military operations in various parts of the country in a concerted manner’.639 On appeal, the Supreme Court quashed the decision on the basis of an insufficient analysis of the evidence and remitted it back to the first instance 635 (Hungary) Constitutional Court of the Republic of Hungary, Decision No 53/1993 (13 ­October 1993) (‘Constitutional Court Decision 53/1993’), Section iv, [1] and [4], cited in (ECtHR) Korbely v Hungary, above n 382, [18]. 636 (ECtHR) Korbely v Hungary, above n 382, [21]. 637 (Hungary) Constitutional Court Decision 53/1993, above n 635, Section v, [4(b)], cited in (ECtHR) Korbely v Hungary, above n 382, [18]. This report was discussed in Chapter 4 at Section 2.1. 638 (ECtHR) Korbely v Hungary, above n 382, [21]. 639 (ECtHR) Korbely v Hungary, above n 382, [23].

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court for further analysis.640 On 7 May 1998, the Military Bench again dismissed proceedings for substantially the same reasons.641 Following the guidance of the Supreme Court, and citing the Constitutional Court’s characterization of crimes against humanity, the Military Bench considered that it could not say that the armed forces opposing the government ‘were under responsible command and exercised such control over a part of the country’s territory as to enable them to carry out sustained and concerted operations’.642 Accordingly, there was no ‘armed conflict’ at the time. This finding was confirmed on appeal on 5 November 1998.643 On 22 January 1999, the Supreme Court quashed the decision and caused it to be remitted it to a first-instance court for a retrial.644 While still considering the key question as being whether an ‘armed conflict’ was present, the Court’s analysis appeared to be much more closely aligned with crimes against humanity. Finding that an armed conflict did exist, the Court held:645 Independently of the findings of fact, it is common knowledge that, from 23 October 1956 onwards, the central power of the dictatorship made use of its armed forces against the unarmed population engaged in peaceful demonstrations and against armed revolutionary groups whose organisation was in progress. During this time, the armed forces employed ­significant military equipment, such as tanks and aircrafts, and their activities against the population opposed to the regime spread over the whole country. In practical terms, they waged war against the overwhelming majority of the population. On 18 January 2001, the Military Bench of the Budapest Regional Court found Korbely guilty of murder as a crime against humanity.646 Apparently in line with the Supreme Court decision, the Bench appeared to focus on the fact that the murder occurred in the context of the political and military leadership’s 640 (ECtHR) Korbely v Hungary, above n 382, [27]. 641 (ECtHR) Korbely v Hungary, above n 382, [29]–[31]. 642 (ECtHR) Korbely v Hungary, above n 382, [31]. It is noteworthy that the Court contextualised this finding as being: ‘[i]n view of the above and of Chapter V(4) of Constitutional Court decision no 53/1993’ (i.e. concerning its analysis of ‘crimes against humanity’). 643 (ECtHR) Korbely v Hungary, above n 382, [32]. 644 (ECtHR) Korbely v Hungary, above n 382, [33]. 645 (ECtHR) Korbely v Hungary, above n 382, [34]. 646 (ECtHR) Korbely v Hungary, above n 382, [36] and [38].

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­attempts to put down a revolutionary force.647 The Supreme Court affirmed the decision on 8 November 2001.648 Korbely applied to the European Court of Human Rights alleging a violation of the nullum crimen principle (contained in Article 7 of the European Convention on Human Rights).649 In the course of its analysis, the Majority considered it necessary to examine the meaning of ‘crimes against humanity’ as it stood in 1956 – albeit ‘aware that it [was] not its role to seek to establish authoritatively the meaning of the concept of “crime against humanity”’ but instead whether ‘there was a sufficiently clear basis … for [Korbely’s] conviction on the basis of this offence’.650 The Court immediately recognised that the court had erred in conflating ‘crimes against humanity’ with Common Article 3 of the Geneva conventions without further explanation.651 The majority ultimately found that it was open to question whether a ‘crime against humanity’ was established.652 After (brief) consideration of the sources of crimes against humanity, the Court found that a nexus with an armed conflict ‘may no longer have been relevant by 1956’ but that the crime should at least ‘form part of a “State action or policy” or of a widespread and systematic attack on the civilian population’.653 While the Court accepted that the Supreme Court bench appeared to have identified a relevant state policy, it had not considered whether Korbely ‘was to be regarded as forming part of this State policy’.654 The minority disagreed, finding sufficient support in the Court’s findings to found a link between the Accused’s actions and a state policy.655 From a jurisprudential perspective, it is noteworthy that Judge Loucaides considered a war nexus was a ‘mere jurisdictional’ requirement at Nuremberg and that Article 7 of the Rome Statute can be taken as ‘declaratory of the definition in international law’ of crimes against humanity.656 647 (ECtHR) Korbely v Hungary, above n 382, [42]. 648 (ECtHR) Korbely v Hungary, above n 382, [43], [45]. 649 (ECtHR) Korbely v Hungary, above n 382, [54]. 650 (ECtHR) Korbely v Hungary, above n 382, [78]. 651 (ECtHR) Korbely v Hungary, above n 382, [80]. 652 (ECtHR) Korbely v Hungary, above n 382, [85]. 653 (ECtHR) Korbely v Hungary, above n 382, [82]–[83]. 654 (ECtHR) Korbely v Hungary, above n 382, [84]. 655 See (ECtHR) Korbely v Hungary, above n 382, [49]–[50] (Joint Dissenting Opinion of Judges Lorenzen, Tulkens, Zagrebelsky, Fura-Sandstrom and Popovic); and [55]–[56] (Dissenting Opinion of Judge Loucaides). 656 (ECtHR) Korbely v Hungary, above n 382, Dissenting Opinion of Judge Loucaides, [52]–[53].

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5.5 Romania 5.5.1 Legislation Romania ratified the Rome Statute on 28 March 2002 (Law No. 111/2002) and implemented crimes against humanity into its domestic criminal code on 1 February 2014 (Law No. 286/2009).657 Article 175 of the criminal code defines ‘other crimes against humankind’ as being the commission of the enumerated acts ‘during a widespread or systematic attack launched against the civil population’.658 There appears to be no requirement that the attack be committed pursuant to a ‘State or organizational policy’. The Criminal Code applies to offences committed outside Romania where: the person is a Romanian citizen or resident and the act is also an offence in the country of perpetration (Article 11); the person is not a Romanian citizen or resident but the act is ‘against national security or the security of the Romanian State, against a Romanian citizen or against a Romanian legal entity, if the Romanian law provides the penalty of life detention or severe detention’ and if the General Prosecutor authorizes the prosecution (Article 12); or the person is not a Romanian citizen or resident but the act is also an offence in the country of perpetration and the person is present in Romania (Article 13). It is not clear whether the Code operates retroactively in respect of crimes against humanity. On the one hand, Article 138 specifies that crimes against humanity are not subject to statutes of limitations. On the other hand, Article 2(2) provides that ‘[n]o one can be sanctioned for an act not provided in the law as an offence at the perpetration date’ and Article 5(1) provides that ‘[c]riminal law does not apply to acts that were not provided as offences by the law at the moment of their perpetration’. This appears to require that an offence be proscribed in ‘the law’, being the Criminal Code. Accordingly, it would appear to be a matter for the judiciary whether it is sufficient that an act be proscribed under international law at the time of the offending. 5.5.2 Jurisprudence What appears to be Romania’s first prosecution for crimes against humanity commenced on 24 September 2014 in respect of Alexandru Vişinescu, the head 657 See letter from Romanian Embassy to the Kingdom of the Netherlands (19 October 2010), accessed online at on 21 October 2014; and Cameron McKenna and Nabarro Olswang, ‘Romania has a new Criminal Code’, Lexology (6 February 2014), accessed online at on 21 October 2014. 658 Namely, homicide; severe infringement upon physical integrity or physical or mental health; extermination; subjection to slavery; deportation or forced transfer of p ­ opulation;

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of the Râmnicu-Sărat prison between 1956 and 1963.659 In July 2015, Vişinescu was convicted of inhuman treatment as a crime against humanity. The Court held that the accused:660 committed systematic acts and omissions, which resulted in the persecution of the collectivity represented by political prisoners detained in that prison (most of them being personalities of the political life, leaders of historical parties), by depriving them of fundamental human rights or by considerably restricting the exercise of those rights, for political reasons, as well as subjecting prisoners to conditions and treatment of such a nature that led to their physical destruction and through actions that are outside the law (lack of medication and medical care, refusal to provide adequate medical care, not treating the ill, refusal to transfer them to penitentiary hospitals, degrading the state of health through lack of food and heating, punishments administered abusively and in an arbitrary manner, conditions of inhuman detention, bad treatment, beatings and other violence, and ignoring complaints from prisoners). […] All these methods defined the detention regime instituted and maintained by the accused and represented the introduction and institution of a regime of extermination of political prisoners. On 10 February 2016, the High Court of Cassation and Justice of Romania upheld the conviction and 20-year sentence. In setting out the elements of crimes

deprivation of freedom, without prior judgment by a court founded legally and that judged the case in observance of the fundamental judicial safeguards provided in the law; torture; rape, forced prostitution, forced pregnancy, forced sterilisation or any other form of sexual violence; discrimination of any group or any community for political, racial, national, ethnic, cultural, religious or sexual reasons; or forced disappearances of persons. 659 “Romanian Nuremberg’ trial for Communist labour camp commander’, The Guardian (22 September 2014), accessed online at on 21 October 2014; and ‘Communist-era prison chief Visinescu on trial in Romania’, bbc News (24 September 2014), accessed online at on 21 October 2014. 660 Agence France-Presse, ‘“Romanian Nuremberg” trial for Communist labour camp commander’, The Guardian (22 September 2014), accessed online at on 21 October 2014; and ‘Communist-era prison chief Vişinescu on trial in Romania’, bbc News (24 September 2014), accessed online at on 21 October 2014.

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against humanity, the Court held that crimes against humanity at the time of Nuremberg could be committed either in wartime or peacetime.661 The Court relied upon the Nuremberg Statute and General Assembly Resolution 95(I). The Court then held that crimes against humanity under Romanian law corresponded with the elements set out in Article 7 of the icc statue – including the policy element.662 The Court held that the actions were an attack on the community of counter-revolutionaries or political prisoners as a group rather than on the prisoners as individuals.663 A second prosecution of a communist-era camp chief, Ioan Ficior, commenced on 28 April 2015.664 In March 2016, the Bucharest Court of Appeal convicted Ficior of crimes against humanity as a commander of the Periprava labour colony, following which Ficior appealed the sentence.665 In March 2017, the High Court of Cassation and Justice rejected the appeal and upheld Ficior’s 20-year sentence.666 A third major prosecution was opened in October 2015, when Ion Iliescu, former President of Romania, was indicted on charges of crimes against humanity, along with several other former state officials, including former Prime Minister Petre Roman, former Defence Minister Victor Anastasie Stanculescu and former Intelligence Service director Virgil Magureanu.667 Proceedings began against the defendants in June 2017, with the case reportedly to be tried by the High Court of Cassation and Justice.668

661 (Romania) Prosecutor v Vişinescu (Judgment), Romanian High Court of Cassation and Justice, Case No 3986/2/2014 (16 February 2016) (‘Vişinescu – High Court’), 3, 139–140. 662 (Romania) Vişinescu – High Court, above n 661, 141–142. 663 (Romania) Vişinescu – High Court, above n 661, 142–143. 664 ‘Romania communist-era labour camp chief goes on trial’, FOCUS News Agency (28 April 2015), accessed online at on 8 July 2015. 665 Akira Tomlinson, ‘Romania rejects appeal of former prison commander’, Jurist (29 March 2017), accessed online at on 28 July 2017. 666 Tomlinson, above n 665. 667 ‘Former Romanian President Ion Iliescu will be prosecuted for crimes against humanity’, Romania Insider (21 October 2015), accessed online at on 28 July 2017. 668 ‘Romania’s former President Ion Iliescu sent to court for crimes against humanity’, Romania Insider (14 June 2017), accessed online at on 28 July 2017.

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6.1 Ethiopia669 6.1.1 Legislation Like in the case of Estonia, Latvia and Guatemala, the penal code of Ethiopia has treated genocide and crimes against humanity together as the one offence (since Ethiopia first enacted the offence in 1957). Article 269 of the 2004 Criminal Code of the Federal Democratic Republic of Ethiopia (formerly Art. 281 of the 1957 Ethiopian Penal Code) provides that the crime is punishable by 5  years’ to life imprisonment, or ‘in cases of exceptional gravity’, death. The definition of the crime, ‘Genocide; Crimes against Humanity’, is as follows: Whosoever, with the intent to destroy, in whole or in part a national, ethnic, racial, religious or political group, organizes, orders or engages in, be it in times of war or in times of peace: a. killings, bodily harm or serious injury to the physical or mental health of members of the group, in any way whatsoever; or b. measures to prevent the propagation or continued survival of its members or their progeny; or c. the compulsory movement or dispersion of peoples or children, or their placing under living conditions calculated to result in their death or disappearance, As can be seen, the provision is closer to the international definition of genocide than crimes against humanity, except it includes an additional category of victims, ‘political groups’, and an additional offence of ‘compulsory movement or dispersion of peoples’ which is absent from the international definition of genocide. Such a group and offence is included within the definition of a crime against humanity. Article 17 of the Criminal Code accords Ethiopian courts extra-territorial jurisdiction (subject to Article 19) over any person who has committed ‘a crime against international law or an international crime specified in Ethiopian legislation, or an international treaty or convention to which Ethiopia has adhered’. Article 19(1) requires, inter alia, that the accused is in the territory of Ethiopia and has not been extradited, and that ‘the crime was not legally pardoned in the country of commission and that prosecution is not barred either under the law of the country’. Further Article 19(3) requires that any such prosecution can be initiated only after consultation with the Minister of Justice. 669 The authors would like to acknowledge the assistance of Dr Firew Tiba with this section.

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Importantly, this is a much broader extension of jurisdiction than those states where jurisdiction extends only where there is a duty to prosecute under the applicable international law. Article 17 requires only that the relevant offence be criminalised. Article 19 also raises the issue of amnesties and pardons, a matter that will be addressed in Chapter 11. According to Article 28 of the Ethiopian Constitution, ‘There shall be no period of limitation on persons charged with crimes against humanity as provided by international conventions ratified by Ethiopia and other laws of Ethiopia. The legislature or any other organ of state shall have no power to pardon or give amnesty with regard to such offences.’ 6.1.2 Jurisprudence The case law in Ethiopia can be seen in the Mengistu case.670 Mengistu Hailemariam was the leader of the Provisional Military Administration Council of Ethiopia, also known as the Derg,671 made up of junior officers of the Ethiopian Army who took power in 1974 espousing socialism as their guiding ideology. The Derg began targeting individuals and groups who posed a threat to their military rule, including, at first, the former Emperor Haile Sellassie, two prime ministers and senior military and governmental officers.672 The period became known as the Red Terror, and peaked between 1977 and 1978 with estimates of as many as 30,000 to 50,000 people summarily executed.673 The Derg soon found itself in violent confrontation with opposition groups. The Derg claimed that the Ethiopian People’s Revolutionary Party with the backing of most of the students and the elite, started the ‘White Terror’. In the result, between 1977 and the late 1980s, some 1.5 million Ethiopians are estimated to have died, disappeared or been injured due to human rights abuses, the effects of famine, starvation, forced relocations, and collectivization programmes, in what has been ranked by some as the seventh worst genocide in the 20th century.674 670 See Firew Kebede Tiba, ‘The Mengistu Genocide Trial in Ethiopia’ (2007) 5(2) Journal of International Criminal Justice 513. 671 Derg means Council in the Geez language. 672 In a single incident, 60 such prominent individuals were summarily executed on 23 ­November 1974: Tiba, above n 670, 515. 673 See McCormack, above n 256, 118. 674 Tiba, above n 670, 516 fn 8. See also the references cited: Babile Tola, To Kill a Generation: The Red Terror in Ethiopia (Free Ethiopia Press: Washington, 1989); see also Dawit W. Giorgis, Red Tears: War, Famine, and Revolution in Ethiopia (Red Sea Press: New ­Jersey, 1989). Although it should be noted that the charges filed by the Special Prosecutor in all the Red Terror cases identify 12,315 individuals killed, 9,546 of which were victims of

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In 1991, shortly before his regime was toppled by a coalition of rebels, Mengistu fled to Zimbabwe. The new government had arrested some 2000 people and established the Special Prosecutor’s Office (spo) in August 1992 to bring Mengistu and his accomplices to trial for crimes committed during his reign. In October 1994, it filed its first charges with the High Court. The trials attracted a great deal of international attention and some assistance.675 On 13 February 1997, the special prosecutor announced that his office had charged a total of 5,198 people, of whom 2,246 were already in detention, while 2,952 were being charged in absentia.676 The overall figure of how many suspects have been arrested remains unavailable.677 The vast majority of the defendants were charged with having committed genocide/crimes against humanity and war crimes, and alternatively faced charges of having committed aggravated homicide and wilful injury. All charges were based on the Ethiopian Penal Code of 1957. Notwithstanding the international attention, the progress of the trials has been slow, which has attracted criticism from human rights groups for the time people have been detained pending trial.678 As at 2007, Ethiopian courts had convicted 1018 people for participating in the Red Terror, 6426 still awaited trial and more than 3000 of them, like Mengistu, lived in exile.679

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crimes, and a further 1,500 having suffered bodily injury and 1,687 victims of torture: Firew Tiba, ‘Mass Trials and Modes of Criminal Responsibility for International Crimes: The Case of Ethiopia’ in Kevin Jon Heller and Gerry Simpson (eds), The Hidden Histories of War Crimes Trials (Oxford University Press: Oxford, 2013), 308. As Tiba notes however, these numbers do not necessarily reflect the actual number of victims which ‘could run into the millions’ and that the ‘resettlement’ of 600,000 people killed up to 100,000 people alone (Ibid, 309). The special prosecutor has sought technical advice form the un Centre for Human Rights and has received both technical and financial support from several western countries: see Diane Orentlicher, ‘The Future of Universal Jurisdiction’ in Stephen Macedo, U ­ niversal ­Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Law (University of Philadelphia Press: Philadelphia, 2004) 214, 223; and McCormack, above n 256, 118–119. See Human Rights Watch Report, accessed online at on 5 September 2007. Tiba, above n 674, 312. See, for example, Human Rights Watch, ‘Mengistu Haile Marriam: A Human Rights Watch Background Paper,’ (24 November 1999). According to McCormack, ‘the evident political will to undertake trials of some of those responsible for atrocities perpetrators against fellow Ethiopians has not translated into the means to make the trials a reality’: above n 256, 119. Tiba, above n 670, 514.

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The marathon 12-year Mengistu trial itself charged 73 Derg members and 106 non-Derg members.680 The crimes were alleged to have been committed against four groups of victims:681 the monarch, members of the royal family, and the aristocracy; members of the Derg who died following purges designed to rid the regime of traitors and sympathizers of anti-revolutionary elements; individuals perceived to be members or sympathizers of the various political parties that stood in opposition to the military regime; and those targeted for elimination for various reasons, such as businessmen who were accused of sabotaging the economy by hoarding and victims of personal vendettas by low-level officials and revolutionary guards. On 12 December 2006, the Ethiopian Federal High Court convicted Mengistu and 54 co-accused for genocide/crimes against humanity pursuant to Article 281 of the 1957 Ethiopian Penal Code and wilful bodily injury.682 The Court held that the accused took part in the implementation of a common plan conceived by the Derg to eliminate individuals and groups opposed to the revolution.683 25 of the 55 accused found guilty, including Mengistu, were tried in absentia. They were sentenced on 11 January 2007 for terms ranging from life to 23 years’ rigorous imprisonment. According to Tiba ‘[t]his was the first African trial where an entire regime was brought to justice before a national court for atrocities committed while in power.’684 In addition to Mengistu, the accused included: • Lt. Col. Fisseha Desta (former Vice President); • Major Fikresealssie Wogderes (former Prime Minister); • Major Legesse Asfaw (who had allegedly ordered the bombing of civilians in a market place in the town of Hawzen in Tigray Province); • Major Melaku Teferra (the notorious former administrator of the Gondar Province, who was one of the most feared and brutal of all the leaders of the Red Terror);685 680 Tiba, above n 674, 312. 681 Tiba, above n 674, 315. 682 (Ethiopia) Special Prosecutor v Col. Mengistu Hailamariam et al. (Judgment), Ethiopian Federal High Court, File No. 1/87 (12 December 2006) (‘Mengistu Hailamariam – High Court’). The first charge was filed on 13 December 1994, and most of the accused were put in custody in May 1990 when the military regime collapsed. The total number of accused convicted under this file is 55. Judgments are not published and reliance is placed upon the account of Tiba, above n 670. 683 Tiba, above n 674, 317. 684 Tiba, above n 670, 513. 685 Tiba, above n 670, 517.

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• the former Foreign Minister; and • several other ministers, commissioners, military commanders, Politburo and Central Bureau members of the defunct Workers Party of Ethiopia. One defendant was acquitted. Mengistu and his co-accused were charged with 211 counts of genocide/crimes against humanity or, alternatively, aggravated homicide in violation of Article 522 of the Penal Code. The Federal High Court First Criminal Division heard over 720 witness testimonies in total and relied upon abundant government records of its actions to uphold the charges. The defendants relied upon Proclamations 110/1976 and 129/1976 to claim they acted within the law as it existed at the time. These proclamations provided that government authorities at all levels had authority to destroy and take any necessary measures against anti-revolutionary and anti-unity political groups. Article 10 of Proclamation 1/1974 that established the Provisional Military Administration Council stated that all prior laws, which would include ­Article 281 of the 1957 Penal Code, remain in force so long as they are consistent with the laws, regulations and orders that were or are to be promulgated by the Provisional Military Administration Council. The defendants argued that this meant, invoking the maxim lex posterior derogat priori, that parts of Article 281 which protected ‘political groups’ were inconsistent with these proclamations and the later laws had to prevail over prior laws in case of conflict. The defendants also complained that Article 281, because it went beyond the definition in the Genocide Convention, could not encompass ‘political groups’. The Court in a preliminary ruling rejected these arguments holding that the Proclamations, being in such general terms, did not repeal Article 281 and the Genocide Convention only set out a minimum standard which could be expanded upon by Ethiopia.686 In the trial judgment, the majority did not reconsider the issue, but Judge Nuru Seid (in dissent) did. Judge Seid upheld the argument that the Proclamations repealed Article 281 to the extent that the Article protected ‘political groups’. He accepted, however, that the government could not have repealed laws that prohibit genocide or other prohibited acts as recognized in international law, being acts: which were acknowledged and condemned by the civilized world after the end of the Second World War and were listed in the Charter for the prosecution of the German war criminals. These included murder and 686 (Ethiopia) Special Prosecutor v Col. Mengistu Hailamariam et al. (Ruling on Preliminary Objections), Ethiopian Federal High Court, File No. 1/87 (10 October 1996), cited in Tiba, above n 670, 518.

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other inhumane acts, (physical) loss of freedom, torture, physical injury etc.... These acts were, more or less, prohibited world-wide; these prohibitions have international recognition and no legislator in any country could repeal them.687 Judge Seid would have upheld the alternative charge of homicide under ­Article  522. Tiba criticises the dissenting opinion for not justifying why the laws that purportedly repealed parts of Article 281 could not have also repealed Article 522 on homicide so long as homicide was committed in order to eliminate political groups as allegedly authorized by Proclamations 110/1976 and 129/1976.688 Some sense can be made of the judge’s approach on the ­assumption that the Proclamations did authorise the killings of certain political ­opponents, ­although this proposition can very much be doubted given the general language used to support such an extraordinary result. Killing political opponents is not encompassed by the international offence of genocide and an argument can be made that crimes against humanity outside the definition in the London Charter of 1946 with its war nexus had not yet become an international customary offence, stricto sensu. The judge, nevertheless, appears to have adopted a position similar to that of the Estonian Courts (upheld by the European Court of Human Rights)689 that, after Resolution 95(I) of the General Assembly of the United Nations on 11 December 1946, murder and other inhuman acts (such as large-scale deportation of a civilian population), without more, constitute criminal conduct according to the general principles of law recognised by civilised nations. Hence, international law, as instanced by the prosecution of Nazi war criminals who also asserted lawful authority to commit murder, does not permit the repeal of laws which proscribe such conduct. A question would remain as to whether this alleged international principle had become a part of the nation’s domestic law. An alternative – and in the authors’ view more compelling – thesis was discussed in Chapter 2 (see discussion below at Section 8.3.1). On 26 May 2008, the Federal Supreme Court confirmed the conviction and sentence.690 The issues raised by those convicted largely concerned criminal responsibility. On 2 June 2011, Ethiopian President Girma Woldegiorgis 687 (Ethiopia) Mengistu Hailamariam – High Court, above n 682, Dissenting Opinion, cited in Tiba, above n 670, 520. 688 Tiba, above n 670, 520. 689 See the section on Estonia above; and Chapter 2, Section 7. 690 (Ethiopia) Special Prosecutor v Colonel Mengitsu Hailemariam & Others (Judgment), Criminal File No. 30181, (26 May 2008) (‘Mengistu Hailamariam – Supreme Court’).

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­announced that the sentences for 23 senior Derg officials would be commuted from death sentences to life imprisonment.691 Notably, the pardon does not include Mengistu himself who remains in exile in Zimbabwe. Now that it has finally concluded, the Mengistu trial represents a notable achievement in holding African leaders accountable. Nevertheless, the story of the Mengistu trial highlights the difficulties for a developing country attempting to prosecute widely those who have taken part in the atrocities of a prior regime. Bringing swiftly to justice the thousands of individuals held in detention has proven beyond the means of the country’s criminal justice system. The process has been called ‘a classic case of justice denied’ ‘with little enthusiasm among the citizens for the trial and its outcome’.692 The greatest failure of the trial (like the process in East Timor693 and in Cambodia) lies in the fact that the most important of the accused remain at large. Despite the charges of crimes against humanity laid against Mengistu, ­Zimbabwe has turned down several Ethiopian requests for extradition. Three officials (one who died before the trial finished) took refuge in the Italian Embassy at Addis Ababa. For 15 years Italy has refused to surrender them on the grounds that they could not be surrendered to face the death penalty. Other defendants tried in absentia reside in different countries such as in the United States and in neighbouring Kenya. In its sentence of 11 January 2007,694 no death penalties were handed down – possibly to assist attempts at extradition. The irony has not escaped some that persons with lesser responsibility have been sentenced to death whilst Mengistu in Zimbabwe still evades his life sentence.695 6.2 Senegal 6.2.1 Legislation Prior to 2007, Senegal had no offence known as crimes against humanity. ­Further, its criminal jurisdiction was limited generally to crimes committed within the territory.696 On 31 January 2007, as part of its reaction to the Habré 691 Tesfa-Alam Tekle, ‘Ethiopia lifts death penalty for over 20 former Derg officials’, Sudan Tribune (3 June 2011), accessed online at on 24 October 2017. 692 Tiba, above n 670, 527–528. 693 See Section 2.3 above. 694 (Ethiopia) Special Prosecutor v Col. Mengistu Hailamariam et al. (Sentencing Judgment), Ethiopian Federal High Court, File No. 1/87 (11 January 2007). 695 Tiba, above n 670, 526–528. 696 Reydams, above n 211, 180–182.

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case (discussed below) and to implement the icc Statute,697 Senegal’s National Assembly passed a law which introduced a new Article 431-2, crimes against humanity, into its penal code.698 The Article tends to follow the definition in Article 7 of the icc Statute but there are notable differences. First, the chapeau does not include the requirement that the acts be ‘with knowledge of the attack’ and, secondly, none of the definitions in Article 7(2) (including the controversial definition of ‘attack’) have been reproduced. Some of the specific offences – ‘forcible transfer of population’ and imprisonment – are not included and the terms of some of the offences (such as other inhuman acts and persecution) vary from Article 7. The law also allows Senegal to prosecute such cases with retrospective application and irrespective of any other law where the conduct is criminal ­according to the general principles of law recognised by the community of nations.699 The Code of Criminal Procedure was also amended in two important ways. First, it declares that the new international crimes introduced into the Penal Code (genocide, crimes against humanity and war crimes) are by their nature ‘imprescriptibles’ or not subject to any statute of limitation.700 Secondly, by amended Article 669 of the Code of Criminal Procedure, foreigners who have committed genocide, crimes against humanity or war crimes outside the territory of Senegal may be prosecuted in Senegal if they are found within the jurisdiction of Senegal or if the victim resides in the territory of Senegal of if the government obtains their extradition. 6.2.2 Jurisprudence (a) Habré – The Initial Proceedings in Senegal At the centre of international criminal law developments in Senegal has been the Habré case. Habré ruled the former French colony of Chad from 1982 until he was deposed in 1990. He then fled to Senegal. His regime was marked by widespread atrocities.701 In a criminal complaint (Plainte avec ­constitution de 697 Spiga suggests that the implementation of the icc statute was the ‘main objective’ of the amendments: see Valentina Spiga, ‘Non-retroactivity of Criminal Law: A New Chapter in the Hissène Habré Sage’ (2011) 9(1) Journal of International Criminal Justice 5, 7. 698 (Senegal) Law No. 02/2007 (12 February 2007) modifying the Penal Code. Other Articles provided for the offences of genocide and war crimes. 699 (Senegal) Article 431-6 of the Penal Code. 700 (Senegal) Law No. 05/2007 (12 February 2007) modifying the Code of Penal Procedure relating to implementation of the Rome Treaty creating the International Criminal Court, Article 1, which amended Article 7 of the Code of Penal Procedure. 701 See the discussion of Habré in the context of the Extraordinary African Chambers in Chapter 5, Section 3.7 and in the context of Belgium, above at Section 3.1.

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partie civile) filed in Dakar Regional Court and dated 25 January 2000, the plaintiffs – several of whom came to Senegal – accused Habré of crimes against humanity, torture and ‘barbarous acts’, and forced disappearances.702 The groups presented investigating Judge Demba Kandji with details of ninety-seven political killings, 142 cases of torture, 100 “disappearances,” and 736 arbitrary arrests, most carried out by the dds, as well as a 1992 report by a French medical team that treated 581 torture victims, and the Chadian Truth Commission report.703 The complaint argued that under ‘general international law’ Senegal had an obligation to repress crimes against humanity or extradite the perpetrators and international criminal law was directly applicable in Senegal without local laws of incorporation.704 According to Human Rights Watch, who were assisting the complainants, within four days seven victims gave testimony before Judge Kandji.705 Two former prisoners described being ordered by the dds to dig mass graves to bury Habré’s opponents. Two others told of being subjected to a common method of torture, the ‘Arbatachar’, in which a prisoner’s four limbs were tied together behind his back, leading to loss of circulation and paralysis. Judge Kandji indicted Habré on 3 February 2000 as an accomplice to torture and crimes against humanity and placed him under house arrest. The accused and the prosecutor-general then moved to dismiss the case before the Chambre d’Accusation of the Dakar Court of Appeal. The Court held on 4 July 2000 that in the absence of any enabling legislation for either crimes against humanity or torture committed outside the territory, Senegal had no ­jurisdiction.706 On

702 (Senegal) The complaint is available in French: accessed online at on 7 September 2007. 703 See hrw Habré Case Summary, above n 222. 704 See above n 702: ‘le droit international général oblige le Sénégal à réprimer ces faits, ou à extrader leur auteur vers l’Etat qui le réclamerait aux fins de poursuites ; même si le droit interne du Sénégal n’incrimine pas expressément les crimes contre l’humanité, l’incrimination coutumière de droit international fait normalement partie du droit pénal que le Sénégal peut appliquer’. 705 See hrw Habré Case Summary, above n 222. 706 (Senegal) Guengueng et al. v Habré (Decision), Dakar Court of Appeal (Chamber d’accusation), Case no 135 (4 July 2000): ‘Considérant que le droit positif sénégalais ne r­enferme à l’heure actuelle aucune incrimination de crimes contre l’humanité, qu’en ­vertu du principe de la légalité des délits et des peines affirmé à l’article 4 du Code Pénal, les ­juridictions sénégalaise ne peuvent matériellement connaître de ces faits’, accessed online at on 7 September 2007.

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20 March 2001 the Cour de Cassation agreed and the prosecution came to an end.707 The case then moved to Belgium, which, after a four-year investigation, on 19 September 2005 requested Habré’s extradition to face charges of complicity in crimes against humanity.708 Following the extradition request, Habré was again arrested on 15 November 2005. On 25 November 2005, the Indicting Chamber of the Court of Appeals of Dakar, referring to the Arrest Warrant case in the icj, ruled that it had no jurisdiction to rule on an extradition request against a former head of state.709 The Court did not refer to the fact that Chad had waived any immunity in the matter.710 Under Senegalese law, the decision to extradite then rested with President Wade. Habré was released from custody, only to be re-arrested the next day. ­Senegal announced that Habré could remain in Senegal and that it would request the January 2006 summit of the African Union (au) to ‘indicate the competent jurisdiction’. On 24 January 2006, the au set up a Committee of Eminent A ­ frican Jurists to consider the options available for Habré’s trial. On 19 May 2006, on the merits of the victims’ communication, the un Committee Against Torture concluded that Senegal had violated the un Convention against Torture by failing to prosecute or extradite Habré.711 The Committee Of Eminent African Jurists reported to the au July 2006 Summit.712 The Committee stated that Habré ‘cannot shield behind the immunity of a former ‘Head of State’ nor ‘benefit from any period of limitation’.713 When it came to jurisdiction, however, the Committee only referred to the obligations of Senegal and Chad under the Convention Against Torture. No mention was made of any alleged right to exercise universal jurisdiction over crimes against humanity. Instead, it recommended that an African Court be granted jurisdiction to undertake criminal trials for crimes against ­humanity, 707 (Senegal) Guengueng et al. v Habré (Decision), Court of Cassation of Senegal, Case No 14 (20 March 2001), accessed online at on 7 September 2007. 708 See above, Section 3.1.2. 709 Extracts in French are available online at . 710 See above n 225. 711 Guengueng et al. v Senegal (Merits), un ga Committee Against Torture, Comm No. 181/2001, un Doc. CAT/C/36/D/181/2001 (19 May 2006). 712 Report Of The Committee Of Eminent African Jurists On The Case Of Hissène Habré, accessed online at on 7 September 2007 (‘ceaj Report’). 713 ceaj Report, above n 712, [13] and [14].

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war crimes and torture.714 It also recommended that Habré be tried by an ­African country (rather than Belgium), with Senegal being ‘best suited’.715 Accordingly, the au mandated that Senegal try Habré ‘on behalf of A ­ frica’.716 By 2007, Senegal had enacted new legislation (discussed above) to correct the problem raised in 2000. (b) ecowas Decision and the Extraordinary African Chambers After Senegal amended its laws in 2007, Habré filed a complaint with the Court of Justice of the Economic Community of West African States (ecowas Court) alleging that the laws were intended to target Habré and that they violated the principle of non-retroactivity of criminal law.717 The ecowas Court rejected Habré’s complaint.718 The Court found that, even where conduct is not criminalized under the relevant state’s domestic law, subsequent criminalisation will not violate the principle of nullum crimen where such conduct is criminalized by ‘general principles of law recognized by the community of nations’ as provided by Article 15(2) of the iccpr. Nonetheless, the Court found that, under customary international law, Senegal would violate the principle of non-retroactivity were it to try Habré in its own domestic courts; the only means available for it to try Habré was the establishment of an ad hoc international court. This conclusion confuses the nullum crimen principle with that of universal or extraterritorial jurisdiction over crimes against humanity and other serious crimes. As suggested earlier in this book and as supported by a number of sources,719 this conclusion may be very much doubted.720 The principle of 714 ceaj Report, above n 712, [35]. 715 ceaj Report, above n 712, [28]–[30]. 716 (African Union) Decision On The Hissène Habré Case And The African Union, au Doc. Assembly/AU/3 (Vii). 717 See Spiga, above n 697, 9. 718 (ecowas) Habré v. Senegal (Judgment), Court of Justice of the Economic Community of States of West Africa (sitting in Abuja, Nigeria), Case No. ECW/CCJ/JUD/06/10 (18 November 2010), [58]. 719 See Chapter 2. See also, for example: (ECtHR) Kolk and Kislyiy – Appeal, above n 608, [7]–[10]; and echr, Art 7(2); (icty) Prosecutor v Delalić et al. (Appeals Chamber Judgment), Case No IT-96-21-A (20 February 2001) (‘Čelebići – Appeal’), [175]–[181]; (France) Prosecutor v Klaus Barbie, Cour de cassation (chambre criminelle), Bull. crim no 407 (20 December 1985), translated in Federation Nationale des Désportés et Internés Résistants et Patriotes and Others v Barbie (1988) 78 ilr 124 (‘Barbie’), 132; (Spain) Scilingo – Supreme Court, above n 355; (IACtHR) Almonacid-Arellano, above n 461, [96]; and iccpr, Art 15(2). 720 For further discussion of the deficiencies of the decision, see Spiga, above n 697.

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non-retroactivity requires only that crimes be prohibited under domestic law or international law, including the ‘general principles of law recognized by the community of nations’. This is discussed further below.721 On the other hand, the right of one country to prosecute in its domestic courts the ‘crimes against humanity’ of a former foreign head of state does remain controversial, particularly in Africa, which tends to see such jurisdiction as an example of judicial imperialism. Chad’s statement, however, that ‘Mr  Hissène Habré cannot claim to enjoy any form of immunity from the Chadian authorities’722 should have been considered and arguably should have been decisive in the issue of jurisdiction. As was held by the icj in D ­ jibouti v France, a state seeking immunity for one of its officials is required to notify the authorities concerned of its claim.723 As discussed further in Chapter 5,724 the Extraordinary African Chambers in Senegal (eac) was created by agreement between Chad, Senegal and the African Union and, on 2 July 2013, the eac charged Habré with crimes against humanity, torture and war crimes and took him into custody (in Senegal).725 Habré’s trial took place before the eac from 20 July 2015. Following eight months of proceedings, the eac found Habré guilty of crimes against humanity, war crimes and torture. He was sentenced to life imprisonment, with his convictions and sentence upheld on appeal in April 2017.726 6.3 Kenya 6.3.1 Legislation Kenya introduced crimes against humanity into its domestic law after the ­election violence in 2007. As was discussed in Chapter 6, the situation in ­Kenya was referred to the icc after a domestic commission of inquiry, the Waki Commission, recommended either that a special tribunal be set up to try the 721 See Section 8.3.1. 722 See Human Rights Watch, ‘Chronology of the Habré Case’, accessed online at on 5 September 2007 (‘hrw Habré Chronology’). The letter in French is available at . 723 (icj) Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France) [2008] icj Rep 177 (‘Mutual Assistance Decision’), [196]. 724 See Section 3.7.1. 725 Human Rights Watch, ‘Q&A: The Case of Hissène Habré before the Extraordinary ­African Chambers in Senegal’ (21 May 2014), accessed online at on 22 July 2014 (‘Human Rights Watch – Q&A on the eac’). 726 See Chapter 5, Section 3.7.3.

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­alleged offenders or, alternatively, the matter be referred to the icc. As Kenya had no laws that would have enabled it to prosecute international crimes such as crimes against humanity, on 16 December 2008, the grand coalition of government signed an agreement to establish the Special Tribunal for Kenya.727 Both a statute and a constitutional amendment were required to bring the Tribunal into effect, which did not ultimately occur. While not ultimately passed, the draft statute to enact the tribunal, the Special Tribunal for Kenya Bill (Kenya Tribunal Bill), sets out the definition of crimes against humanity in Section 2.728 The definition is largely in conformity with the position of the ad hoc Tribunals but with a few notable deviations. First, superficially similar to the Statute of the ictr, the Kenya Tribunal Bill required that the relevant attack be committed ‘on national, regional, political, ethnic, racial, cultural or religious grounds’. With the expansion of the formulation used at the ictr to also include ‘national, regional, political grounds’, however, the formulation is closer to a more general policy element. Secondly, the underlying acts that may constitute a crime against humanity are more expansive than the definition in the ad hoc Tribunals, including ‘harassment’ and ‘destruction of property’ the Tribunals. Section 43(3) also provides that, in the event of a conflict between international law and Kenyan law, Kenyan law shall apply – a departure from the usual position under Kenyan law.729 While the Kenya Tribunal Bill was ultimately not passed, Kenya’s International Crimes Act 2009 came into effect on 1 January 2009 (Kenya ica).730 Unlike the Kenya Tribunal Bill, the Kenya ica does not seek to define crimes against humanity, but refers instead to the definition in Article 7 of the Rome Statute.731 Also unlike the Kenya Tribunal Bill, international law is to have precedence over the Kenyan Penal Code.732 As has been noted elsewhere, the Act operates on the backdrop of the Kenyan Constitution, which provides immunity for the President while in office (excluding Article 27 of the Rome Statute from operation).733 Further, as with a number of other countries, the Attorney-General has the power to terminate criminal proceedings at any 727 Antonina Okuta, ‘National Legislation for Prosecution of International Crimes in Kenya’ (2009) 7 Journal of International Criminal Justice 1065, 1066. 728 Legislation accessed online at on 3 March 2013. 729 Okuta, above n 727, 1068. 730 (Kenya) International Crimes Act 2009. 731 (Kenya) International Crimes Act 2009, s 6(4). 732 (Kenya) International Crimes Act 2009, s 7(5)(b). 733 Okuta, above n 727, 1073.

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stage (in the case of Kenya, it is a power accorder by Section 26 of Kenya’s Constitution).734 The Kenya ica departs from traditional principles of Kenyan criminal jurisdiction by affording courts universal jurisdiction over international crimes on the basis only of the accused’s presence in Kenya.735 This jurisdiction has yet to be exercised. 6.4 The drc 6.4.1 Legislation The drc criminalised crimes against humanity through an amendment to its penal code introduced on 1 September 2005.736 The definition enacted is largely in line with the icc Statute, although with the notable omission of the policy element. However, it is unclear whether this omission is deliberate. The explanatory statement to the Act states that the purpose of the Act is to implement the icc Statute and that, in doing so, the Act must ‘respect a number of principles’, including ‘[t]he definition of […] crimes against humanity…’ and ‘[t]he Statute of the Court in national legislation’. In terms of jurisdiction, the Act purports to be broad. Article 4 provides that a prosecution may occur even though a crime is alleged to have occurred outside the drc provided that at least ‘the defendant or one of the defendants is found in the country at the time of initiation of the investigation’. The Explanatory Statement further recognises that this reflects the principle of universal jurisdiction.737 Further, Article 21-3 provides that any immunity that may apply to an accused does not prevent a national court from exercising jurisdiction over the offence.738 Article 34bis further provides that the crimes are not susceptible to an amnesty or pardon.

734 Okuta, above n 727, 1074. 735 (Kenya) International Crimes Act 2009, s 8. See also Okuta, above n 727, 1075. 736 Available on the icc Legal Tools database, accessed online at on 11 December 2013. 737 Explanatory Statement, (recognising the principle that ‘[t] he introduction into the ­national legislation of the principle of universal jurisdiction over … crimes against ­humanity … as it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’). 738 Explanatory Statement, (‘The removal of privileges and immunities enjoyed by certain categories of persons because of official capacity they were covered for crimes within the jurisdiction of the International Criminal Court’).

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6.4.2 Jurisprudence A number of prosecutions have occurred for crimes against humanity concerning mainly local militia groups in the drc, but also the conduct of lowranking government soldiers.739 In each case, the courts have tended to adopt the definition of crimes against humanity along the lines of the icc Statute, although without the policy element.740 The first conviction under the new laws was delivered in June 2006 in the so-called Songo Mboyo case. The Military Court of Equateur convicted six soldiers of the Forces Armées de la République Démocratique du Congo (fardc) of crimes against humanity for the gang rape of around 119 women.741 In the course of its decision, the Court rejected the defendant’s contention that crimes against humanity did not occur as the acts were not perpetrated ‘to enforce or further the policy of the Democratic Republic of Congo or the N ­ ational Liberation Movement or any other organisation. It was rather the result of military unrest…’.742 Instead, the Court viewed the ‘policy’ element as only relevant to the ‘systematic’ limb. A similar argument about the ‘policy’ element occurred in the Mutins de Mbandaka case,743 where the defendant argued that crimes against humanity could not occur in ‘the absence of an organisation having such an attack as its purpose.’744 The case concerned the trial of 62 Movement pour la Liberation de la Congo (mlc) members for a mutiny that caused the death of 6 people, the 739 See, for instance, the trial of Yves Mandro Kahwa Panga, a former member of Thomas Lubanga’s Union of Congolese Patriots (upc): accessed online at on 21 October 2014. 740 For a summary of these cases, see Advocats sans Frontieres, ‘Case Study – The Applicability of the Rome Statute of the International Criminal Court by the Courts of the Democratic Republic of the Congo’, accessed online at on 11 December 2013 (‘asf Case Study – Congo’), 26–29. See also Joseph Rikhof, ‘Fewer Places to Hide? The Impact of Domestic War Crimes Prosecutions on International Impunity’ (2009) 20(1) Criminal Law Forum 1. 741 ‘6 Congolese soldiers convicted of mass rape get life sentences, un reports’, un News (9 June 2006), accessed online at on 11 December 2013; and International Federation for Human Rights, ‘Democratic Republic of the Congo: Breaking the Cycle of Impunity’, accessed online at on 11 December 2013. 742 asf Case Study – Congo, above n 740, 26. 743 (Senegal) Military Tribunal of Mbandaka, rp No. 086/05, rmp No. 279/GMZ/WAB/2005 (12 January 2006). 744 asf Case Study – Congo, above n 740, 28.

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rape of 46 and the mass pillage of the area in the Province of Equateur.745 In this instance, however, the Court at least appeared not to decide on whether a policy element was required and instead found that it was satisfied in the case. Applying the icc Statute directly over the inconsistencies manifested in the drc Penal Code,746 the Court found that, in the case at hand, an ‘organisation emerges from the actions taken to achieve the aim, notably the breaking in of the depot of weapons of camp Bokala to launch a widespread attack against the population. This is an ad hoc organisation linked to the death of Sergeant Alia Charles.’ However, in the case of Kahwa, the Military Tribunal of the Garrison discussed the chapeau requirements of crimes against humanity but did not appear to require there to be any policy requirement.747 On 5 March 2009, the Haut-Katanga military court convicted Gédéon Kyunga Mutanga of crimes against humanity and other charges.748 Mutanga was the commander of the Mai Mai militia, a militia force initially supported by the Congolese government during the war with Rwanda and Uganda, but one that increasingly took control of large areas of territory in Katanga. Human Rights Watch has reported that the Court applied the definition of crimes against humanity as contained in the icc Statute.749 This would seem to support the view that the omission of the ‘policy’ element in the definition is not intentional. On 20 November 2013, North Kivu’s Military Operational Court commenced a trial for 39 soldiers on charges of crimes against humanity and war crimes, notably rape, murder and pillage, committed in the town of Minova and its surrounding areas, between 20–30 November 2012.750 On 5 May 2014, a judgment was delivered, with no convictions for crimes against humanity secured, but with some successful convictions of low-ranking officials for rape, pillage and murder and several acquittals. 745 Antonietta Trapani, ‘Complementarity in the Congo: The Direct Application of the Rome Statute in the Military Courts of the drc’ (12 November 2011), 38, accessed online at on 11 December 2013. 746 asf Case Study – Congo, above n 740, 9. 747 asf Case Study – Congo, above n 740, 28. 748 Human Rights Watch, ‘dr Congo: Militia Leader Guilty in Landmark Trial Crimes Against Humanity Conviction an Important Step for Justice’ (10 March 2009), accessed online at

on 11 December 2013 (‘hrw 2009 Congo Report’). 749 hrw 2009 Congo Report, above n 748. 750 Human Rights Watch, ‘Democratic Republic of the Congo: Ending Impunity for Sexual Violence’, (10 June 2014), accessed online at on 28 July 2017.

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6.5 South Africa 6.5.1 Legislation On 18 July 2002, assent was given to Act No 27 of 2002: Implementation of the Rome Statute of the International Criminal Court Act, 2002.751 It incorporates crimes against humanity as provided for in Article 7 of the icc Statute, including a requirement of a ‘State or organizational policy’ as a schedule to the Act.752 It expressly states that no prosecution may be instituted if the crime is alleged to have been committed before the commencement of the Act.753 Such crimes will be deemed to have been committed in South Africa if the perpetrator or victim is a South African citizen or is ordinarily resident in South Africa or if the perpetrator is present in South Africa after the commission of the crime.754 No prosecution may be instigated without the consent of the National ­Director of Public Prosecutions.755 The Act states that ‘when reaching a decision on whether to institute a prosecution contemplated in this section’ the National Director ‘must give recognition to the obligation that the Republic, in the first instance and in line with the principle of complementarity as contemplated in Article 1 of the [icc] Statute, has jurisdiction and responsibility to prosecute persons accused of having committed a crime’.756 If the National Director refuses to institute a prosecution, he or she is then obliged to forward the decision, together with reasons, to the Registrar of the icc in The Hague as well as the Director-General for Justice and Constitutional Development.757 Section 4(2)(a) of the Act states that notwithstanding ‘any other law to the contrary, including customary and conventional international law, the fact that a person … is or was a head of State or government, a member of a government or parliament, an elected representative or a government official … is 751 See Max du Plessis, ‘South Africa’s Implementation of the icc Statute: An African Example’ (2007) 5(2) Journal of International Criminal Justice 460. 752 (South Africa) Implementation of the Rome Statute of the International Criminal Court Act 2002, s 1(i) and Schedule 1, Part 2. 753 (South Africa) Implementation of the Rome Statute of the International Criminal Court Act 2002, s 5(2). 754 (South Africa) Implementation of the Rome Statute of the International Criminal Court Act 2002, s 4(3). 755 (South Africa) Implementation of the Rome Statute of the International Criminal Court Act 2002, s 5(1). 756 (South Africa) Implementation of the Rome Statute of the International Criminal Court Act 2002, s 5(3). 757 (South Africa) Implementation of the Rome Statute of the International Criminal Court Act 2002, s 5(5).

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neither – (i) a defence to a crime; nor (ii) a ground for any possible reduction of sentence once a person has been convicted of a crime’. This may not preclude a claim of state or head of state immunity because that is generally regarded as a purely procedural immunity affecting the jurisdictional right of the state court, rather than a ‘defence’ to the crime as such. This was the approach of the Belgian Court of Cassation under the similarly worded Article 5(3) of its law.758 Some writers have suggested otherwise. According to John Dugard and Garth Abraham, Section 4(2)(a) of the South African icc Act represents a conscious choice by the legislature to ‘wisely’ diverge from the ‘unfortunate’ Arrest Warrant decision ‘of which it must have been aware’.759 Max du Plessis argues that the courts may interpret Section 4(2)(a) so that the personal immunity of heads of state and other high officials is preserved but not the functional immunity, ratione materiae, that attaches to any state official for acts performed on behalf of the state.760 The Constitution tends in opposite directions. Section 232 of the Constitution provides that ‘[c]ustomary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament’. Whilst Section 233 provides that ‘[w]hen interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law’. 6.5.2 Jurisprudence The legislation has been considered in South African Litigation Centre v National Director of Public Prosecutions (Zanu-PF Case).761 The case concerned events alleged to take place in Harare, Zimbabwe on 27 March 2007. The applicants alleged that, under orders from the ruling party of Zimbabwe, the Zanu-PF (led by President Robert Mugabe), the Zimbabwean police raided the headquarters of the opposition party, the Movement for Democratic Change (mdc). Over 100 people were alleged to have been arrested and taken into custody, being persons affiliated with the mdc as well as people working in nearby shops and offices. It was alleged that those individuals affiliated with the mdc were detained for several days and continuously and severely tortured. 758 See above, Section 3.1.2(b). 759 See John Dugard and Garth Abraham, ‘Public International Law’ (2002) Annual Survey of South African Law 140, 166. 760 Plessis, above n 751, 474–477. 761 (South Africa) South African Litigation Centre v National Director of Public Prosecutions (Judgment), North Gauteng High Court, Case No. 77150/09 (8 May 2012) (‘Zanu-PF Case’).

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The first applicant (the South African Litigation Centre (salc)) collated evidence of these events and submitted them to the National Prosecuting Authority (npa), requesting that an investigation be instituted with a view to prosecuting those responsible for torture as a crime against humanity under the icc Act. The npa referred the matter to the fourth respondent (the South African Police Service (saps)). Both the npa and the saps declined to initiate an investigation. The decision not to investigate was challenged by the salc. The matter came before the North Gauteng High Court, which upheld the challenge and set aside the decision refusing to commence an investigation into the allegations.762 This decision was affirmed on appeal to the Supreme Court of Appeal in November 2013.763 Indeed, the Court of Appeal went further than the High Court by in directing that the saps commence an investigation into the allegations (i.e. rather than simply requiring the saps to reconsider its decision). On 30 October 2014, a further appeal to the South African Constitutional Court was dismissed.764 Importantly, however, the Court adopted a more qualified position on the exercise of universal jurisdiction. The Court noted that domestic criminal jurisdiction involved three facets: (a) a prescriptive or legislative jurisdiction to prohibit certain conduct; (b) adjudicative or j­udicial jurisdiction to enforce such conduct by investigation and prosecution; and (c) enforcement or executive jurisdiction by which a state can determine the outcome of matters through its adjudicative jurisdiction (e.g. by enforcing decisions).765 While not citing any significant authority for the proposition, in ­considering the available bases for jurisdiction under international law, the Court held that ‘the exercise of universal jurisdiction has found support in international law, subject to the observance of certain principles’ (emphasis added).766 The Court held: International law scholars suggest that in order for universal jurisdiction to comply with the dictates of international law, three general principles should be observed: (a) “there should be a substantial and bona fide 762 (South Africa) Zanu-PF Case, above n 761, [39]. 763 (South Africa) National Commissioner of the South African Police Service v Southern ­African Human Rights Litigation Centre [2013] zasca 168 (27 November 2013) (‘Zanu-PF Case – Appeal’). 764 (South Africa) National Commissioner of the South African Police Service v Southern A ­ frican Human Rights Litigation Centre [2014] zacc 30 (30 October 2014) (‘Zanu-PF Case – Constitutional Court’). 765 (South Africa) Zanu-PF Case – Constitutional Court, above n 764, [25]. 766 (South Africa) Zanu-PF Case, above n 761, [49].

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c­ onnection between the subject-matter and the source of the jurisdiction”; (b) “the principle of non-intervention in the domestic or territorial jurisdiction of other states should be observed”; and (c) “elements of accommodation, mutuality, and proportionality should be applied”. The Court further noted that the icc explicitly adopted the principle of complementarity.767 While the preamble to the icc Statute noted that it is ‘the duty of every state to exercise its criminal jurisdiction over those responsible for international crimes’, the Court understood this to mean an international obligation to investigate either, primarily, where international crimes are committed by a state’s citizens and in its territory; or failing that, the exercise of universal jurisdiction by a third state.768 The Court held that, in contrast to the commencement of a prosecution, there was no requirement for anticipated presence of the accused in South Africa for an investigation to be commenced and initiating an investigation without presence would not breach the fair trial rights of the suspect or accused.769 Nonetheless, the exercise of universal jurisdiction was ‘not absolute’ and was subject, first, to the principle of subsidiarity and non-intervention.770 This meant that where crimes were committed in another country and against foreign nationals, South Africa could only investigate if that state was unwilling or unable to do so itself.771 The Court also accepted that its exercise of jurisdiction was subject to a second principle, being practicality.772 A country assuming universal jurisdiction must consider whether exercising such jurisdiction is reasonable and practicable in the circumstances of the particular case. Relevant factors included the likelihood of prosecution, the geographical proximity to the place of the crime and likelihood of suspects being arrested, the prospects of gathering sufficient evidence, and the nature and extent of the resources required for an effective investigation.773 Applied to the case before it, the Court considered that South Africa had a substantial connection to the crime given ‘the heinous nature of the crime’ and an investigation within South Africa would not offend the principle of non-intervention given there was no evidence that Zimbabwe had launched 767 (South Africa) Zanu-PF Case – Constitutional Court, above n 764, [30]. 768 (South Africa) Zanu-PF Case, above n 761, [55]–[56] and [60]. 769 (South Africa) Zanu-PF Case – Constitutional Court, above n 764, [47]–[49]. 770 (South Africa) Zanu-PF Case – Constitutional Court, above n 764, [61]. 771 (South Africa) Zanu-PF Case – Constitutional Court, above n 764, [62]. 772 (South Africa) Zanu-PF Case – Constitutional Court, above n 764, [63]. 773 (South Africa) Zanu-PF Case – Constitutional Court, above n 764, [64].

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any investigation or indicated any willingness to do so.774 Further, the Court considered that the ‘threshold for the saps to decline to investigate, bearing in mind the particular facts and circumstances’ (i.e. the practical considerations) had not been met. As such, the appeal was dismissed and saps was ordered to initiate an investigation into the complaint.775 While the decisions in the case are significant in terms of the jurisdiction to investigate (and prosecute) crimes against humanity, they are of less weight in defining what is a crime against humanity. It is of significance that there was no specific finding that the acts in question would constitute a crime against humanity if established. At first instance and on appeal to the Constitutional Court, it was conceded by the npa and saps that the brief of evidence created a reasonable suspicion that crimes against humanity had been committed.776 Accordingly, the Courts did not need to deal with any submission that that the abduction and torture of 100 people was insufficiently small to constitute a ‘widespread or systematic attack against any civilian population’. Further and in any event, it should be remembered that the decision was a preliminary decision on whether the npa should conduct an investigation into potential offences; it was not a finding made in the context of a final (or even preliminary) determination of criminal responsibility. 7

Middle East and Asian States

7.1 Bangladesh 7.1.1 Legislation The International War Crimes (Tribunal) Act 1973777 (Bangladesh iwcta) came into force on 20 July 1973, established to prosecute perpetrators of atrocities committed during Bangladesh’s bloody war of independence. Although the Act was intended to be of general application, it essentially allowed for the government to set up ad hoc Tribunals in respect of a particular conflict, rather than enact a general proscription of international crimes to be tried in ordinary courts. Accordingly, the experience of Bangladesh is in many ways similar

774 (South Africa) Zanu-PF Case – Constitutional Court, above n 764, [78]. 775 (South Africa) Zanu-PF Case – Constitutional Court, above n 764, [84]. 776 (South Africa) Zanu-PF Case, above n 761, [82]. 777 (Bangladesh) Accessed online at on 8 March 2013.

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to the internationalised tribunals discussed in Chapter 5 – albeit without any ‘international’ element in the Tribunal itself. Pakistan had consisted of East Pakistan and West Pakistan since its own independence from India in 1947, but this was to change in 1971778 when the Bangladeshi separatist movement led by a group known as the Awami League (al) began to gain traction after the Pakistani government declared ‘Urdu’ as the national language – when the majority language in East Pakistan was Bengali. In March 1971, in what was known as ‘Operation Searchlight’, Pakistani soldiers and militia groups, together with Bangladeshi collaborators, ruthlessly suppressed the popular uprisings.779 By the end of the 9-month war on 16 December 1971, an estimated 3 million people had been killed, and around 200,000 women had reported sexual violence by the Pakistani Army and their Bengali accomplices, and millions were displaced.780 After the conflict ended in December 1971 following India’s intervention to defeat Pakistan, Bangladesh immediately took steps to punish perpetrators of the atrocities committed during the war. On 24 January 1972, Bangladesh passed a presidential decree, the Bangladesh Collaborators (Special Tribunals) Order (Collaborators Order), to prosecute the Bangladeshi ‘collaborators’ ­before ‘special tribunals’.781 Between 1972 and 1974, an estimated 37,400 people were arrested or under investigation for crimes under the Bangladesh Penal Code (which included genocide but not crimes against humanity).782 ­ 778 For background on the conflict, see generally: Caitlin Reiger, ‘Fighting Past Impunity in Bangladesh: A National Tribunal for the Crimes of 1971’, International Centre for Transitional Justice Briefing (July 2010), accessed online at on 12 July 2014; and Abdul Jalil, ‘War Crimes Trial in Bangladesh: A Real Political Vendetta’ (2010) 3(2) Journal of International Politics and Law 110. 779 Mark Dummett, ‘Bangladesh War: The Article That Changed History’, bbc (15 December 2011), accessed online at on 8 March 2013, cited in Kimberly Brown, ‘Four Decades Later, Justice in Bangladesh’ (April 2012), accessed online via ssrn at on 8 March 2013. See also (Bangladesh) Prosecutor v Moulana Abul Kalam Azad alias Bachchu Razakar (Judgment), International Crimes Tribunal (Bangladesh), Case No ICT-2-5/2012 (21 January 2013) (‘Bachchu Razakar – Judgment’). 780 David Manes, ‘Bangladesh Establishes Tribunal for 1971 War Crimes’, Jurist (26 March 2010), accessed online at on 8 March 2013, cited in Brown, above n 779, 1; see also Zakia Afrin, ‘The International War Crimes (Tribunal) Act, 1973 of Bangladesh’ (2009) Indian Yearbook of International Law and Policy 341; and (Bangladesh) Bachchu Razakar – Judgment, above n 779, [3]. 781 Reiger, above n 778, 3. 782 Reiger, above n 778, 3.

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However, the overwhelming majority of those arrested were released pursuant to general amnesties. In February 1973, Prime Minister Sheikh Mujib granted immunity for acts in connection with the ‘liberation struggle’783 and, in May 1973, Sheikh Mujib also granted immunity to minor offenders under the Collaborators Order. Bangladesh’s internal pursuit of justice took place, however, against the backdrop of a more complicated international dispute. Overarching the d­ ispute was the fundamental demand from Bangladesh that its ­independence – which was supported by India – be recognised by Pakistan. Further complicating matters, India was holding 93,000 Pakistani prisoners of war – whom ­Pakistan wanted to be returned and of whom Bangladesh had identified 195 war ­criminals that it wished to try. Further, Pakistan was holding around 250,000 East Pakistanis in internment camps, which Bangladesh wanted r­eturned to it.784 On 11 May 1973, Pakistan instituted proceedings against India in the icj on the basis that, inter alia,785 it intended to hand over the 195 individuals to Bangladesh to be tried for genocide and crimes against humanity.786 Pakistan alleged that it had the right to try its own citizens under the Genocide Convention.787 In the context of the negotiations between India, Pakistan and Bangladesh, the Bangladesh iwcta was passed on 20 July 1973. This Act afforded the Government of Bangladesh the power to constitute one or more Tribunals ‘to provide for the detention, prosecution and punishment of persons for genocide, crimes against humanity, war crimes and other crimes under international law’.788 The Tribunal was accorded jurisdiction to try ‘any person irrespective of his nationality, who, being a member of any armed, ­defence or auxiliary forces commits or has committed, in the territory of Bangladesh, whether ­before or after the commencement of this Act’, any of the enumerated crimes.789 It stated that the ‘official position, at any time, of an accused shall not be considered freeing him from responsibility or mitigating punishment’.790 783 Bangladesh National Liberation Struggle (Indemnity) Order, cited in Reiger, above n 778, 3. 784 Reiger, above n 778, 3. 785 For instance, Pakistan also alleged that India’s failure to hand over the remaining prisoners of war amounted to a breach of the Geneva Conventions. 786 (icj) Trial of Pakistani Prisoners of War (Pakistan v India), Oral Arguments, ‘Oral Argument of Mr Bakhtiar, Chief Counsel for the Government of Pakistan’, 26, 38. 787 Reiger, above n 778, 3. 788 (Bangladesh) International War Crimes (Tribunal) Act 1973, Preamble. 789 (Bangladesh) International War Crimes (Tribunal) Act 1973, s 3. 790 (Bangladesh) International War Crimes (Tribunal) Act 1973, s 5(1).

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In August 1993, India and Pakistan signed a treaty intended to resolve the deadlock between them and to pave the way for the independence of ­Bangladesh.791 In respect of the 195 prisoners in the custody of India, Paragraph 3(iv) of the agreement stated that Bangladesh – while not a party to the ­agreement – had agreed not to conduct any trials pending the repatriations elsewhere provided for in the agreement and that the 195 prisoners would remain in India until the settlement of the dispute. Further, Paragraph 3(vii) provided that the dispute would be settled after discussions between Bangladesh, India and Pakistan. While Sheik Mujib passed a further amnesty on 30 November 1973 – in ­respect of all collaborators except those accused of murder, rape, arson or genocide792 – Pakistan was not assuaged. Despite President Bhutto of ­Pakistan receiving authorisation from the Pakistani Supreme Court to recognise Bangladesh as early as July 1973, Pakistan withheld that recognition as long as the issue of the 195 pows remained undecided.793 Finally, on 20 February 1973 – two days prior the Islamic Summit of Foreign Ministers of Islamic countries in Lahore – Sheik Mujib agreed not to prosecute the 195 pows. Pakistan then recognised the independence of Bangladesh on the day of the summit. Ultimately, a tripartite agreement was signed between India, Pakistan and Bangladesh on 9 April 1974, with Bangladesh agreeing to abandon its demand of the trials of the 195 pows.794 While the Bangladeshi representative stated that the crimes committed constituted ‘war crimes, crimes against humanity and genocide’ (Article 13), ‘the Foreign Minister of Bangladesh stated that the Government of Bangladesh had decided not to proceed with the trials as an act of clemency. It was agreed that the 195 prisoners of war might be repatriated to Pakistan along with the other prisoners of war now in the process of repatriation under the Delhi Agreement’.795 The final nail in the coffin of attempts to hold perpetrators to justice occurred when Prime Minister Sheikh Mujib was assassinated and his replacement repealed the Collaborators Act and disbanded all tribunals established 791 Indo-Pakistani Agreement of 28 August 1973, summarised in (1974) 68 American Journal of International Law 95. 792 Reiger, above n 778, 4. 793 Ghulam Mustafa and Qasim Gill, ‘The Issue of Prisoners of War (pows), 1971 and Recognition of Bangladesh’ (2014) 4(3) International Journal of Business and Social Research 114, 117. 794 Mustafa and Gill, above n 793, 117. 795 Full text of agreement accessed online at on 12 July 2014.

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under it.796 In the result, no trials initially took place, nor were any tribunals initially formed under the Bangladesh iwcta.797 While the passing of the Act itself is not strictly indicative of state practice after the Rome Conference, what is important is that the Act has been recently revived. After the 1974 agreement, the Act largely disappeared from the public eye. In 2009, however, elections brought into power the Awami League – the same group that lead the separation movement in 1971. In March 2010 – the same week as Bangladesh ratified the Rome Statute798 – a tribunal was constituted under the Act.799 Importantly, while the Act was amended, the substantive definitions of the crimes were not revised or updated to take account of the numerous developments in international criminal law since the Act was drafted.800 Under the Act, crimes against humanity are defined in line with the Nuremberg Tribunals, except the war nexus, namely, that the crimes be committed ‘before or during the war’ and ‘in execution of or in connection with’ war crimes or crimes against peace has been deleted. Linton points out, however, even if – as some argued – the ‘war nexus’ no longer existed as a matter of customary international law,801 the atrocities in Bangladesh occurred during an internal armed conflict.802 The view that a nexus with an internal armed conflict will suffice under customary international law led to the particular definition of crimes against humanity in the icty Statute. Whether such a conclusion is correct remains controversial. Article 3 of the Bangladesh iwcta sets out the crimes over which the ­Tribunal will have jurisdiction. Sub-article 1 provides that a Tribunal established under the Act will have power to try persons of any nationality who, 796 Reiger, above n 778, 4. 797 Suzannah Linton, ‘Completing the Circle: Accountability for the Crimes of the 1971 ­Bangladesh War of Liberation’ (2010) 21(2) Criminal Law Forum 191, 208. 798 Brown, above n 779, 1. 799 Afrin, above n 780, 343; and Manes, above n 780. 800 Linton, above n 797. 801 Linton, above n 797, 237, citing Antonio Cassese, ‘Balancing the Prosecution of Crimes against Humanity and Non-Retroactivity of Criminal Law: The Kolk and Kislyiy v. Estonia Case before the echr’ (2006) 4(2) Journal of International Criminal Justice 410 (for the proposition that the principle of custom that the war nexus was no longer required began to crystallise after: Article ii of Control Council Law No. 10 removed that requirement of a nexus; and the nexus was not required in the Israeli Nazi and Nazi Collaborators Act, the ilc’s 1954 Draft Code of Offences Against the Peace and Security of Mankind and the 1968 Convention on the Non-Applicability of the Statutory Limitation to War Crimes and Crimes Against Humanity). 802 Linton, above n 797, 238.

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‘being a member of any armed, defence or auxiliary forces’ commits one of the listed crimes ‘in the territory of Bangladesh’. A Tribunal shall have the power to try and punish any person. Article 3(2)(a) of the Act includes crimes against humanity, defined as: ‘murder, extermination, enslavement, deportation, imprisonment, abduction, confinement, torture, rape or other inhumane acts committed against any civilian population or persecutions on political, racial, ethnic or religious grounds, whether or not in violation of domestic law of the country where perpetrated’.803 A final catch-all crime under sub-section Article 2(f) covers ‘any other crimes under international law’.804 This definition has been subject to the criticism that it fails to encompass a number of key elements of the definition of crimes against humanity: that there be a ‘widespread or systematic attack against any civilian population’; that the accused’s acts form ‘part of’ that attack; and that the accused have knowledge of the attack.805 Further, it is ambiguous as to whether the discriminatory intent is required as an element of the chapeau or only the crime of persecution.806 The further criticism may be added, that it fails to incorporate the requirement that the crimes have a nexus with an international armed conflict. Many of these criticisms have been discussed by the ict itself in its jurisprudence (discussed below). Despite a level of general support that usually attends steps to pursue accountability for serious crimes, there has been criticism of the political motives of the tribunal as well as the extent to which it adequately conforms to the fair trial rights of the accused.807 This is particularly so given the fact that those indicted are all members of the main opposition parties. Many of these

803 (Bangladesh) International War Crimes (Tribunal) Act 1973, s 2(a). 804 (Bangladesh) International War Crimes (Tribunal) Act 1973, s 2(f). 805 See Linton, above n 797, 43ff; iba War Crimes Committee, ‘Consistency of Bangladesh’s International Crimes (Tribunal) Act 1973 with International Standards’ (29 December 2009) (‘iba Report on the Bangladesh iwcta’), accessed online at on 12 March 2013. 806 Linton, above n 797, 235ff. 807 See ‘Bangladesh: United Nations Experts Warn that Justice for the Past Requires Fair Trials’, unog (7 February 2013), accessed online at on 19 November 2013; Steven Kay qc, ‘Bangladesh War Crimes Tribunal – A Wolf in Sheep’s Clothing?’, International Law Bureau (13 October 2010), accessed online at on 12 July 2014; see also Jalil, above n 778.

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issues have been catalogued by a report released by Geoffrey Robertson qc in 2015.808 Such doubts appear to be somewhat justified by the thin analysis provided by the decisions so far – both on the law and on the facts. For instance, with some exceptions,809 large sections of later judgments appear to have been simply copied verbatim from the first two judgments of the tribunal. 7.1.2 Jurisprudence To date, the two tribunals (ICT-1 and ICT-2) have heard at least 28 cases.810 While the Tribunal has jurisdiction over a wide range of offenders ‘irrespective 808 Geoffrey Robertson qc, ‘Report on the International Crimes Tribunal of Bangladesh’, accessed online at on 27 July 2015. 809 (Bangladesh) For an example of one of the better judgments of the ict, see Bachchu Razakar – Judgment, above n 779. 810 (Bangladesh) For the latest information, see the website of the ict at and the blog ‘The Bangladesh Trial Observer’ at . ICT-1 appears to have delivered 9 judgments: Chief Prosecutor v ­Delowar Hossain Sayeedi (Judgment) (ICT-1), ict-bd Case No. 01 of 2011 (28 February 2013) (‘­Sayeedi – Judgment’); Chief Prosecutor v Professor Ghulam Azam (Judgment) (ICT-1), ict-bd Case No. 06 of 2011 (15 July 2013) (‘Prof. Azam – Judgment’); Chief Prosecutor v Salauddin Quader Chowdhury (Judgment) (ICT-1), ict-bd Case No. 02 of 2011 (1 ­October 2013) (‘Chowdhury – Judgment’); Chief Prosecutor v Syed Hachhan (Judgment) (ICT-1), ict-bd Case No 02 of 2014 (9 June 2015) (‘Hachhan – Judgment’); Chief Prosecutor v ­Abdul Jabbar Engineer (Judgment) (ICT-1), ict-bd Case No 01 of 2014 (24 February 2015) (‘­Jabbar ­Engineer – Judgment’); Chief Prosecutor v A.T.M Azharul Islam (Judgment) (ICT-1), ­ict-bd Case No 05 of 2013 (30 December 2014) (‘Azharul Islam – Judgment’); Chief Prosecutor v Moborak Hossain (Judgment) (ICT-1), ict-bd Case No 01 of 2013 (24 November 2014) (‘Mobarak Hossain – Judgment’); Chief Prosecutor v Hossain Khokon (Judgment) (ICT-1), ict-bd Case No 04 of 2013 (13 November 2014) (‘Hossain Khokon – Judgment’); Chief Prosecutor v Rahman Nizami (Judgment) (ICT-1), ict-bd Case No 03 of 2011 (29 October 2014) (‘Rahman Nizami – Judgment’). ICT-2 appears to have delivered 11 judgments: Chief Prosecutor v Forkan Mallik (Judgment) (ICT-2), ict-bd Case No. 03 of 2014 (16 July 2015) (‘Forkan Mallik – Judgment’); Chief Prosecutor v Mahidur Rahman et al. (Judgment) (ICT-2), ict-bd Case No. 02 of 2014 (20 May 2015) (‘Mahidur Rahman – Judgment’); Chief Prosecutor v Moulana Abdus Sobhan (Judgment) (ICT-2), ict-bd Case No. 01 of 2014 (18 February 2015) (‘Abdus Sobhan – Judgment’); Chief Prosecutor v Syed Qaiser (Judgment) (ICT-2), ict-bd Case No. 04 of 2013 (23 December 2014) (‘Qaiser – Judgment’); Chief Prosecutor v Mir Quasem Ali (Judgment) (ICT-2), ict-bd Case No. 03 of 2013 (2 ­November 2014) (‘Quasem Ali – Judgment’); Chief Prosecutor v Ashrafuzzaman Khan et al. (Judgment) (ICT-2), ict-bd Case No. 01 of 2013 (3 November 2013) (‘Khan – Judgment’); Chief Prosecutor v Abdul Alim (Judgment) (ICT-2), ict-bd Case No. 01 of 2012 (9 October

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of nationality’, the tribunals have only been used to try Bangladeshi nationals and not Pakistani nationals.811 And, as noted above, the jurisdiction is limited to crimes committed in Bangladesh.812 (a) ICT-2 In the first judgment of the ict, ICT-2 convicted and sentenced to death Abul Kalam Azad (alias Bachchu Razakar) on 21 January 2013.813 The accused was unable to be captured and the trial proceeded in absentia. Kalam Azad was a member of the Islamist political party, Jamaat-e-Islami, who aided the Pakistani army as a member of the Razakar Force and headed the paramilitary wing, Al-Badr. Before engaging in the merits of the case, the Court confirmed that the retroactivity of the statutes was no bar under customary international law where crimes against humanity, genocide, and other customary international laws are concerned.814 The Chamber noted, in this respect, that the icty and scsl were constituted under ‘retrospective Statutes’. The Chamber also noted that Bangladesh was a signatory to the iccpr and therefore had appropriate mechanisms in place to protect persons accused of crimes against humanity.815 It is not clear whether this constituted an implicit acceptance that the crimes in the ict statute – defined without a war nexus – were part of customary international law at the time. As noted below, the Tribunal found in any event that the attack occurred within the context of an internal armed conflict.

2013) (‘Alim – Judgment’); Chief Prosecutor v Ali Ahsan Muhammad Mujahid (Judgment) (­ICT-2), ict-bd Case No. 04 of 2012 (17 July 2013) (‘Majahid – Judgment’); Chief Prosecutor v Muhammad Kamaruzzaman (Judgment) (ICT-2), ict-bd Case No. 03 of 2012 (9 May 2013) (‘Kamaruzzaman – Judgment’); Chief Prosecutor v Abdul Quader Molla (Judgment), ict-bd (ICT-2) Case No 02 of 2012 (5 February 2013) (‘Molla – Judgment’); Bachchu ­Razakar – Judgment, above n 779. 811 See for instance, Linton, above n 797, 228 (noting that, on 30 July 2009, at the Second International Conference on Genocide, Truth and Justice in Dhaka, the Hon. Minister for Law, Justice and Parliamentary Affairs categorically stated that there would be no Pakistanis tried under this law and it would only be applied to Bangladeshi nationals.) 812 Dwyer Arce, ‘Bangladesh war crimes tribunal issues arrest warrants for Islamist leaders’, Jurist (26 July 2010), accessed online at on 8 March 2013. 813 (Bangladesh) Bachchu Razakar – Judgment, above n 779. 814 (Bangladesh) Bachchu Razakar – Judgment, above n 779, [14]. 815 (Bangladesh) Bachchu Razakar – Judgment, above n 779, [15].

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Further, the Court noted that crimes against humanity could not be subject to statutes of limitations.816 The Court cited the Convention on the Non-­ Applicability of Statutes of Limitations as well as state practice in the trials conducted against offenders from Germany during World War 2, and Chile and Cambodia during the 1970s. The Court found that the tripartite agreement of 1974 did not bind the tribunal (a decision that will be discussed further in Chapter 11). This analysis was repeated – mostly verbatim – by later decisions of ICT-1.817 In relation to ICT-2, the later decision in Molla818 undertook a more detailed elaboration of the position, but was largely in line with this first decision. While the Court noted that the Act did not explicitly include the ‘widespread or systematic’ component, this component had been identified in the ad hoc Tribunals.819 The Court considered that the crimes were committed in the context of the 1971 war, a fact which itself was sufficient to establish a ‘systematic attack’ on the Bangladeshi population.820 The Court also appeared to define the term ‘attack’ as well as the notions of an attack ‘directed against’ a civilian population and a crime being ‘part of’ an attack in line with the ad hoc Tribunals.821 That is, they required the civilian population be the ‘primary object’ of the attack822 and defined an ‘attack’ as requiring ‘a series of acts of violence, or of the kind of mistreatment referred to in Sub-section (a) [of the Act]’.823 Notwithstanding the Court’s finding that it was not bound by the definition of crimes against humanity adopted by the Rome Statute, the Court noted that the crimes committed were in furtherance of ‘policy and plan of [the] Pakistani army’.824 This was notwithstanding the fact that parallel forces and paramilitary groups provided a substantial contribution to the crimes committed as these forces were acting in association with – and even under the command

816 (Bangladesh) Bachchu Razakar – Judgment, above n 779, [43]. 817 (Bangladesh) See Sayeedi – Judgment, above n 810; Prof. Azam – Judgment, above n 810; [49]–[65]; and Chowdhury – Judgment, above n 810; [58]–[70]. 818 (Bangladesh) Molla – Judgment, above n 810, [80]–[121], followed in Kamaruzzaman – Judgment, above n 810, [100]–[126]. 819 (Bangladesh) Bachchu Razakar – Judgment, above n 779, [76]. 820 (Bangladesh) Bachchu Razakar – Judgment, above n 779, [78]. 821 (Bangladesh) Bachchu Razakar – Judgment, above n 779, [79], [272]. 822 (Bangladesh) Bachchu Razakar – Judgment, above n 779, [76]. 823 (Bangladesh) Bachchu Razakar – Judgment, above n 779, [79]. 824 (Bangladesh) Bachchu Razakar – Judgment, above n 779, [34], [108]. See also the more detailed discussion of this finding in Molla – Judgment, above n 810, [377].

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of – the Pakistani army.825 The ‘organized and planned attack’ targeted the ‘pro-liberation Bangalee civilian population, Hindu community, pro-liberation political group, freedom fighters and finally the “intellectuals”.’826 (b) ICT-1 The first judgment delivered by ICT-1 was in the case of Delowar Hossain Sayeedi (alias Delu) on 28 February 2013.827 Sayeedi was a shopkeeper who went on to become a member of the militia force, Rajakar Bahini, and participate in the atrocities committed by the Pakistani Army. While not convicted of all offences charged, Sayeedi was convicted and sentenced to death. The analysis in the case was largely repeated – mostly verbatim – in other decisions of ICT-1828 and was elaborated in more detail although along substantially the same lines by ICT-2 in Molla.829 Before engaging in the substantive aspects of crimes against humanity, the Tribunal noted that ‘[m]any have expressed their concern about the degree to which the [ict] definition of ‘Crimes against Humanity’ … differs from ­international standards’.830 Perhaps cognisant of this criticism, the Court undertook an analysis of crimes against humanity beyond that which was undertaken by ICT-2 in the case of Bachchu Razakar. After noting that there is no ‘consistency’ among the definitions in the various statutes proscribing crimes against humanity, the Tribunal proceeded to compare the ict definition with that contained in Article 7 of the icc Statute, the statutes of the ad hoc Tribunals, and the definition enunciated by the ad hoc Tribunals.831 After undertaking an analysis of the case law – although in fact it appeared to be largely an analysis of the icty Trial Chamber decision in Tadić832 – the Tribunal set out the jurisprudential framework of the ict.833 It concluded that this framework was ‘broadly and fairly compatible with current international standards’.834 First, the Tribunal found that, while there is no requirement that 825 (Bangladesh) Bachchu Razakar – Judgment, above n 779, [34], [109]. See also [233], [235]. 826 (Bangladesh) Bachchu Razakar – Judgment, above n 779, [34]. 827 (Bangladesh) Sayeedi – Judgment, above n 810. 828 (Bangladesh) See Prof. Azam – Judgment, above n 810, [17]–[32]; and Chowdhury – Judgment, above n 810, [18]–[38]. 829 (Bangladesh) Molla – Judgment, above n 810, [122]–[136], followed in Kamaruzzaman – Judgment, above n 810, [127]–[135]. 830 (Bangladesh) Sayeedi – Judgment, above n 810, [18]. 831 (Bangladesh) Sayeedi – Judgment, above n 810, [19]. 832 (Bangladesh) Sayeedi – Judgment, above n 810, [25]–[29]. 833 (Bangladesh) Sayeedi – Judgment, above n 810, [30]. 834 (Bangladesh) Sayeedi – Judgment, above n 810, [32].

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an attack be committed in the context of an armed conflict, such a link was present in the cases being addressed by the Tribunal.835 Unfortunately the Trial Chamber did not differentiate between an international and an internal armed conflict – only the first of which was necessary to constitute a crime against humanity at Nuremberg. As Robertson qc has pointed out, at the time Operation Searchlight commenced, Bangladesh was not a state and the conflict was a purely internal armed conflict.836 Secondly, the Tribunal confirmed that, while ‘law in this area is mixed’, the ict did not require any ‘discriminatory element’ outside of the crime of persecution.837 Thirdly, while the Bangladesh iwcta does not require that an attack be ‘widespread or systematic’, this requirement was to be implied from the word ‘population’ as had been stated by the icty Trial Chamber in Tadić.838 Fourthly, the Tribunal appeared to largely adopt the 5 elements enunciated in the Kunarac Appeals Decision (although without citing the decision).839 The Tribunal held that the term ‘widespread’ was a ‘quantitative element’ referring to the ‘number of victims or its extension over a broad geographic area’, while the term ‘systematic’ was ‘qualitative in nature’ and referred to ‘the ­organized nature of the committed acts of violence and thus serves to exclude isolated acts from the notion of crimes against humanity’.840 While A ­ ccepting that ­Article 7 of the icc Statute contained a ‘policy requirement’, the Tribunal made the following statement in respect of the position in the ad hoc Tribunals: Earlier case law of the ad hoc Tribunals required that the individual act [sic] follow a predetermined plan or policy. The Appeals Chamber of the Yugoslavia Tribunal has now distanced itself from such a requirement. Although attacks on a civilian population will typically follow some form of predetermined plan, this does not make the existence of a plan or policy an element of the crime. Finally, in line with the ad hoc Tribunals, the Tribunal held that the ‘population’ element ‘impl[ies] crimes of a collective nature and thus exclude single or isolated acts’ and that ‘the individual [is] being victimized not because of 835 (Bangladesh) Sayeedi – Judgment, above n 810, [30(1)], [32(1)]. 836 Robertson, above n 808, 95. 837 (Bangladesh) Sayeedi – Judgment, above n 810, [30(2)]. 838 (Bangladesh) Sayeedi – Judgment, above n 810, [30(3)], [32(2)]. 839 (Bangladesh) Sayeedi – Judgment, above n 810, [30(4)]. 840 (Bangladesh) Sayeedi – Judgment, above n 810, [30(4)], [32(3)].

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his individual attributes but rather because of his membership of a targeted civilian population’.841 Similarly, the term ‘civilian population’ requires that the population is ‘predominantly civilian in nature’ and may qualify ‘even if non-civilians are among it’, including ‘members of armed resistance groups, or former combatants, who have laid down their arms’.842 Of course, while strengthening the precedential value of the principles in the ad hoc Tribunals, the immediate concern with this analysis is that the crimes occurred two decades before the decisions in Tadić and Kunarac. Accordingly, the Tribunal made no attempt to assess the relevant customary position of crimes against humanity as at 1971. The finding that – at that time – crimes against humanity existed without either a war nexus or a policy element is doubtful. As noted by ICT-2, however, the crimes in question came with both a connection to an (internal) armed conflict as well as to a state policy.843 The one striking departure from the jurisprudence of the ad hoc Tribunals in many of the cases has been the absence of any requirement that the accused had knowledge of the attack. In some cases, the Tribunal specifically confronted this question, but stated that such a requirement was not required in statutes of the icty, ictr or scsl – and the icc was not sufficient to impose such a requirement.844 However, this position appears to have been clarified in the later decision of ICT-2 in Kamaruzzaman, where the Tribunal held that the Accused must be aware of the ‘context’ of the attack in order to be guilty of a crime against humanity.845 Finally, while the Tribunal did make a number of comments about statutes of limitation, retroactivity of the legislation and the effect of the 1974 amnesty, these largely – and almost verbatim at times – copied the earlier decision of ICT-2 discussed above. 7.2 Indonesia 7.2.1 Legislation After the post-election violence in East Timor in 1999 (discussed in Chapter 5), pressure from the world community – which was moving to establish an international criminal tribunal846 – caused Indonesia to pass Law No 26/2000 841 (Bangladesh) Sayeedi – Judgment, above n 810, [32(4)]. 842 (Bangladesh) Sayeedi – Judgment, above n 810, [32(5)]. 843 (Bangladesh) See, in particular, Molla – Judgment, above n 810, [377]–[385]. 844 (Bangladesh) Sayeedi – Judgment, above n 810, [60]–[61]. See also the slightly more detailed discussion in Molla – Judgment, above n 810, [133]. 845 (Bangladesh) Kamaruzzaman – Judgment, above n 810 [133]. 846 For example, the Security Council condemned all acts of violence in East Timor and demanded ‘that those responsible for such [acts] be brought to justice’: un sc Resolution

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in November 2000. The Law establishes Human Rights Courts with jurisdiction over crimes against humanity (not previously known to the local law). Article 9 defines crimes against humanity to ‘include any action perpetrated as a part of a broad or systematic direct attack on civilians, in the form of [the underlying crimes listed in Article 7 of the icc Statute]’. And, while some have said that this definition was introduced in order to implement Article 7 of the icc Statute,847 the definition uses the word ‘broad’ rather than ‘systematic’ and makes no reference to the policy requirement. Accordingly, the extent to which the parliament intended to deviate from Article 7 is not clear. The term ‘broad’, however, may be a mistranslation as the word ‘widespread’ is widely used in the jurisprudence of the court (discussed below). Under the Law, all arrests, investigations and prosecutions are undertaken by the Attorney-General (Articles 11(1), 21(1) and 23(1)). An ad hoc Court was also established with jurisdiction limited to the crimes in Law No 26/2000 perpetrated by an Indonesian citizen in three of East Timor’s 13 territories in April and September 1999.848 Such a limited jurisdiction over the events in East Timor has not escaped criticism, not least because the crimes committed during this period were mainly those of militia trained and armed by Indonesia, rather than the Indonesian military and police.849 7.2.2 Jurisprudence An Indonesian report into the violence in East Timor in 1999 publicly named 32 Indonesian suspects (with a longer list of 100 in the full report); but in the end, only 18 defendants, excluding the more senior military officers previously

1264 (1999), un scor, 54th sess, 4045th mtg, un Doc. S/RES/1264 (15 September 1999). The Security Council also said ‘that persons committing such violations bear individual responsibility’: un sc Resolution 1272 (1999), un scor, 54th sess, 4057th mtg, un Doc. S/ RES/1272 (25 October 1999). There then followed visits by the un International Commission of Inquiry on East Timor (iciet) and three un Special Rapporteurs to East Timor in 1999. Both iciet and the un Special Rapporteurs recommended the establishment of an international tribunal. Postponement of such a step occurred when the Indonesian Foreign Minister promised prosecutions in Indonesia: see Identical Letters Dated 31 January 2001 from the Secretary-General to the President of the General Assembly, the President of the Security Council and the Chairperson of the Commission on Human Rights, un scor, 55th sess, Annex, Agenda Item 96, un Doc S/2000/65 (9 June 2000). 847 For an analysis of Law No 26/2000 see: Amnesty International, Law on Human Rights Courts (Law No 26/2000), ai Index asa 21/005/2001 (9 February 2001). 848 See Amnesty International and Justice System Monitoring Programme, Indonesia, Justice for Timor – Leste: The Way Forward, ai Index: asa 21/006/2004 (14 April 2004), 30–31. 849 Amnesty International and Justice System Monitoring Programme, above n 848, 30–31.

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named, were tried.850 Of the 18 tried, only six were convicted of crimes against humanity and five of these convictions were overturned on appeal.851 Militia leader, Eurico Guterres, alone, had his sentence of ten years for crimes against humanity upheld on appeal by the Supreme Court on 13 March 2006.852 Many have attributed the low conviction rate to a lack of commitment and competence by the prosecutors, labelling the process a failure.853 The ­Secretary-General’s Commission of Experts concluded the prosecutions were ‘manifestly inadequate, primarily due to a lack of commitment on the part of the prosecution as well as lack of expertise, experience, and training in the subject matter, deficient investigations and inadequate presentation of inculpatory material at trial’,854 and ‘[m]any aspects of the ad hoc judicial process reveal scant respect for or conformity to international standards.’855 The Secretary-General’s Commission of Experts, found that the ‘inconsistent verdicts and factual findings of the Ad Hoc Court resulted directly from the application of diverging legal techniques, differing legal interpretations of identical factual subject-matter and the lack of willingness or otherwise to utilize international jurisprudence and practices and proficiency in analytical

850 For example, General Wiranto and Major-General Makarim (both indicted by East Timor): above n 848, 25, 37. 851 Amnesty International and Justice System Monitoring Programme, above n 848, 47–48. Of those convicted, three received only three years, two received five years and one received ten years. This is despite the fact that Law 26/2000 set higher minimum terms. The most senior officer convicted was Major General Adam Damiri who was convicted despite the prosecutor agreeing to an acquittal. 852 ‘Press Release’, Judicial System Monitoring Program (17 March 2006), accessed online at on 24 March 2006. 853 This is the conclusion of Amnesty International and the Justice System Monitoring Programme: Indonesia, Justice for Timor – Leste, above n 848, 49–50. See also Open Society Institute and the Coalition for International Justice, Unfulfilled Promises: Achieving Justice for Crimes against Humanity in East Timor (November 2004), 21; and Human Rights Watch, ‘Justice Denied for East Timor – Indonesia’s Sham Prosecutions, the Need to Strengthen the Trial Process in East Timor, and the Imperative of un Action’, accessed online at on 13 July 2014. Concerns about the Indonesian trials have been raised by Niemann (appointed by the un High Commissioner for Human Rights), the Secretary-General and the un High Commissioner for Human Rights: Indonesia, Justice for Timor – Leste, above n 848, 1 and 51. 854 Report of the International Commission of Inquiry on East Timor to the Secretary-General, un scor, 55th sess, un Doc S/2000/59 (31 January 2000), [17]. 855 Report of Experts on Timor-Leste, above n 854, [19].

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evaluation of the facts and the law’.856 Human Rights watch has labelled them as ‘sham prosecutions’.857 Nonetheless, a number of judgments do appear to now be available.858 One of the first decisions of the ad hoc court, in relation to the defendant Abilio Soares, is instructive in understanding the Indonesian decisions. These decisions usually found the chapeau requirements of crimes against humanity to be present and then focused the majority of their attention on individual criminal responsibility (which was usually found not to have been established). Abilio Soares859 was the governor of East Timor at the time violence broke out in 1999.860 The Court found the Accused guilty of murder and persecution as a crime against humanity and sentenced to 3 years imprisonment – notwithstanding that the minimum term of imprisonment was 10 years. The crimes that the Accused was liable for (on the basis of command responsibility) included: an attack on 6 April 1999 on Liquisa church (where at least 22 civilians were killed); an attack on 17 April 1999 on the house of local opposition leader, Manuel Carrascalao (where 12 civilians were killed); and the Suai church massacre on 6 September 1999 (where at least 27 civilians were killed, including three priests). The Accused served 111 days in prison before his conviction was overturned on appeal on the basis that the military was in control of East Timor, not the civilian authorities.861 856 Report of Experts on Timor-Leste, above n 854, [18]. 857 Human Rights Watch, ‘Justice Denied for East Timor – Indonesia’s Sham Prosecutions, the Need to Strengthen the Trial Process in East Timor, and the Imperative of u.n. Action’, above n 853. 858 (Indonesia) Available decisions appear to be: Ad Hoc Prosecutor v. Asep Kuswani (Judgment), Case No. 06/PID.B/HAM.AD.HOC/2002/PN.JKT.PST (28 November 2002) (‘­Kuswani – Judgment’); Prosecutor v Sedyono, Koeshadianto, Subyakto, Syamsudin and Sugito (Judgment), Case No. 01/HAM/TIM-TIM/02/2002 (15 August 2002) (‘Sedyono – Judgment’); Prosecutor v Silaen (Judgment), Case No. 02/PID.HAM/AD.Hoc/2002/PN.JKT.PST (15 August 2002) (‘Silaen – Judgment’); Prosecutor v Abilio Soares (Judgment), Case No. 01/PID.HAM/AD.Hoc/2002/ph.JKT.PST (14 August 2002) (‘Abilio Soares – Judgment’); Ad Hoc Prosecutor v Lt. Col. Inf. Soedjarwo (Judgment), Case No. 08/Pid.HAM/Ad.Hoc/2002/ PN.JKT.PST (17 December 2002) (‘Soedjarwo – Judgment’); Ad Hoc Public Prosecutor v Tono Suratman (Judgment), Case No. 10/Pid.HAM/Ad.Hoc/ 2002/PN.Jkt.Pst (13 May 2003) (‘Suratman – Judgment’); and Ad Hoc Prosecutor v Eurico Guterres (Judgment), Case No. 04/PID.HAM/AD.HOC/2002/PH.JKT.PST (26 June 2002) (‘Guterres – Judgment’). 859 The full name is used in order to distinguish him from Marcelino Soares, tried by the Special Panels. 860 The conflict in East Timor is discussed in more detail in Chapter 5 (Section 3.1.1). 861 ‘Ex-East Timor governor acquitted’, bbc News (5 November 2004), accessed online at on 27 October 2014.

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In terms of the jurisprudence of the Courts, they have largely followed the jurisprudence of the ad hoc Tribunals (although frequently without citation). In Abilio Soares, the Court found that the attack under consideration was ‘widespread’, ‘systematic’ and ‘directed against a civilian population’.862 The Court noted that an attack ‘is not necessarily a military assault, as denoted in International Humanitarian law’ or that it need be ‘accompanied by military forces or by the use of weapons’ provided that ‘killing occurs as a result of the mobilization of force or an operation launched against the civilian population’.863 Further, an attack need not be ‘on the entire population, but suffices if applied to a group within the civilian population with certain political beliefs’.864 The Court also applied the ‘widespread or systematic’ component in line with the ad hoc Tribunals – notwithstanding the statute referring to a ‘broad or systematic’ attack – although appeared to conceive of the ‘systematic’ limb as being synonymous with a policy or plan.865 The Court appeared to follow Akayesu in finding that the term ‘widespread’ required ‘massive, frequent, large-scale killings perpetrated collectively with very serious consequences in the form of large number of casualties’. And, the Court found that ‘systematic’ refers to ‘the formation of an idea or principle based on planned research or observation using a general procedure’ and may be ‘based on a consistent and similar pattern’. The Court also applied the four indicia of ‘systematic’ set out by the icty Trial Chamber in Blaškić.866 Accordingly, while the Court did not comment on whether there must be a ‘State or organizational policy’ in line with the icc Statute, the Court found that there was in the case at hand. The Court found that the violence, killings and assaults perpetrated by the pro-integration supporters was ‘part of a planned strategy to cause the Pro Integration group to win the referendum, this being the policy of Regional Government, in which the Governor as the highest authority held to the same political ideology’.867 While this approach has been followed in some decisions,868 a different ­approach has been taken in others. For instance, the later decision in Sedyono 862 (Indonesia) Abilio Soares – Judgment, above n 858, 78. 863 (Indonesia) Abilio Soares – Judgment, above n 858, 78. 864 (Indonesia) Abilio Soares – Judgment, above n 858, 78. 865 (Indonesia) The general approach of the courts has been to use the term ‘widespread’, although cf Kuswani – Judgment, above n 858, 39–40 (where the terms ‘wide’ and ‘broad’ are used). 866 (Indonesia) Abilio Soares – Judgment, above n 858, 79; and Guterres – Judgment, above n 858, 89–91. 867 (Indonesia) Abilio Soares – Judgment, above n 858, 79. 868 (Indonesia) Silaen – Judgment, above n 858, 40–41; Soedjarwo – Judgment, above n 858, 17–20 (although the Court noted that the law it was applying ‘was adopted from the

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appeared to adopt the policy element in the icc statute. The case of Sedyono concerned an attack on 6 September 1999 on the Ave Maria church in Suai (where 27 people were killed by militias). The case concerned Herman Sedyono (Indonesian Army Officer and head of the regional authorities), 3 Indonesian military officials (Lilik Kushardianto, Ahmad Syamsuddin, Sugito) and one police officer (Gatot Subyakto) who were all present at the church at the time of the incident. Ultimately, the Accused were found not guilty as it was found that the officials had no control over the militia who committed the offences. Initially, the Court appeared to adopt the same approach as Abilio Soares, ­although was less clear on the difference between ‘widespread’ and ‘­systematic’. While the Court initially described the chapeau as requiring that the attack be ‘­widespread and systematic’, the Court later appeared to clarify that the two terms are disjunctive.869 The Court defined ‘widespread’ in a way that ­appeared to conflate the two elements:870 the action has national or international impacts, the action caused material, immaterial, horrifying loss, brutal action to enforce a person’s political goals, which could have created a feeling of fear on a person or people, and could have involved many parties, and led to other similar events. Also, like in Abilio Soares, the Court defined ‘systematic’ in line with a policy or plan, namely, ‘a plan that has been well arranged as a policy or the continuation of policy could be carried out directly or indirectly’.871 However, the Court then stated that the requirement that the attack be ‘directed against any civilian population’ incorporates the requirement in the icc Statute that the attack be pursuant to a ‘state or organizational policy’.872 This includes what the Court called an ‘indirect’ policy, which included ‘giving permissions or approvals’ and ‘tolerating, alleviating or facilitating the actor to do what he/she wants’ or ‘after the actor has done what he/she wants to do,

Rom[e] Statute 1998’ and ‘the Panel should refer to the International Criminal Court practices’); and Ad Hoc Prosecutor v Endar Priyanto (Judgment), Case No 05/PID.HAM/ AD.HOC/2002/PN.JKT.PST (25 November 2002) (‘Priyanto – Judgment’), 29. In Silaen, the Accused (the police chief of East Timor) was acquitted of substantially similar crimes as Abilio Soares. In Soedjarwo, the Accused (an Indonesian Military Lieutenant) was convicted. 869 (Indonesia) Sedyono – Judgment, above n 858, 58–59. 870 (Indonesia) Sedyono – Judgment, above n 858, 59; see also Kuswani – Judgment, above n 858, 39–40. 871 (Indonesia) Sedyono – Judgment, above n 858, 59. 872 (Indonesia) Sedyono – Judgment, above n 858, 61.

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he/she makes no immediate actions to hamper the results of the actions’.873 Applied to the case at hand, the Court found that the attack in question was pursuant to a policy of an ‘organization’ rather than a ‘State’ – namely, prointegration groups Laksaur (or Black Hawk militia) and Mahidi (or, Dead or Alive for Integration militia) operating outside government control.874 This finding must be treated with caution as a matter of both fact and law. As to the first, some doubt may be cast on this finding given the finding of the Special Panels in East Timor that such militias were in fact operating in conjunction with Indonesian forces.875 This would suggest a state policy, at least in the form of state toleration of the local militias. At the very least, the Court appeared to hear evidence that these forces were operating in conjunction with local police forces.876 The inference is at least open that such findings may be have been limited by political realities existing in Indonesia concerning the Courts’ freedom to link conduct back to Indonesian authorities. As to the second, it is not clear that these militia groups would satisfy the ‘organization’ element for the purposes of crime against humanity. For instance, the Court did not suggest that they were more powerful than the local authorities or able to commit crimes with impunity from local authorities in the area. Even if a more liberal interpretation of ‘organisation’ is adopted, the Court did not specify the extent to which the militias committed an attack ­outside of the church incident, or how they were large or sophisticated enough to be capable of committing a widespread or systematic attack. The Court stated only that their numbers were ‘in the thousands’877 and that they were ‘an independent, self-reliant community organization, established by volunteers to support the success of the popular consultation/ ballot, and to win the pro-integration group’.878

873 (Indonesia) Sedyono – Judgment, above n 858, 61; see also Kuswani – Judgment, above n 858, 39–40 (‘action to tolerate or approve or condone the incident from happen or facilitat[ing] the planner to do his plan. This thing can be done through cooperation or conspiracy from a policy that has been approved or let an incident happened, so the actor cans [sic] easily conducting his action. Or after the planner performed his action, there were no immediate action taken to prevent it’); and Prosecutor v Yayat Sudrajat (­Judgment), Case No 11/PID.B/HAM.AD HOC/2002/PN.JKT.PST (27 December 2002) (‘­Sudrajat – Judgment’), 35. 874 (Indonesia) Sedyono – Judgment, above n 858, 61. 875 See discussion of the jurisprudence of the Special Panels in Chapter 5, Section 3.1.3. 876 (Indonesia) Sedyono – Judgment, above n 858, 20. 877 (Indonesia) Sedyono – Judgment, above n 858, 42, 64, 69, 80. 878 (Indonesia) Sedyono – Judgment, above n 858, 69.

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This approach has been adopted in the majority of later decisions in Indonesia.879 Like Sedyono, the Courts found that there was a requirement that the attack be carried our pursuant to a ‘State or organisational policy’, but that the relevant policy was an ‘organisational’ policy of local militias rather than a ‘state policy’ of the Indonesian authorities. One anomalous decision that appears generally in line with this finding found only that the relevant attack was ‘systematic’.880 Finally, it should be noted that Law No 26/2000 is being applied in the case of allegations of military involvement in human rights abuses in Tanjung Priok in September 1984 and in Abepura in Papua in December 2000.881 This has raised the wisdom of using international crimes in local prosecutions. Abdul Nusantara, head of Indonesia’s National Human Rights Commission, for instance, expressed concern that the ‘widespread or systematic’ test will result in many serious offences going unpunished and ‘such an extraordinary standard should be reviewed, as it is too demanding a requirement to meet’.882 7.3 Republic of Korea 7.3.1 Legislation The Republic of Korea (South Korea) incorporated crimes against humanity into its domestic criminal code in Section 9 of the Act on the Punishment of Crimes within the International Criminal Court (2007).883 The section is broadly in line with the icc statute (including its policy requirement).884 Further, ­Korea is a monist country, meaning that the icc Statute will apply directly in Korean domestic law.885 879 (Indonesia) Kuswani – Judgment, above n 858, 39–40; Sudrajat – Judgment, above n 873, 35–36; Suratman – Judgment, above n 858, 30–32; and Guterres – Judgment, above n 858, 89–91. Kuswani, Sudrajat and Suratman were all acquitted. Guterres (a local East Timorese militia leader) was convicted. 880 (Indonesia) Ad Hoc Public Prosecutor v Adam Damiri (Judgment), Case No. 09/PID.HAM/ AD.HOC/2002/PH.JKT/PST (8 July 2002), 99–100. 881 Amnesty and the Judicial System Monitoring Program, above n 848, 49–50. 882 Matthew Moore, ‘Police Chief Faces Court over Papua Jail Beatings’, Sydney Morning Herald (8–9 May 2004), 18. 883 See icc database, accessed online at on 11 March 2013. For discussion of the Act generally, see Tae Hyun Choi and Sangkul Kim, ‘Nationalized International Criminal Law: Genocidal Intent, Command Responsibility, and an Overview of the South Korean Implementing Legislation of the icc Statute’ (2011) 19(3) Michigan State Journal of International Law 589. 884 Choi and Kim, above n 883, 608–609. 885 Choi and Kim, above n 883, 626.

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According to Article 3 of the Act, a Korean court will have jurisdiction to try an individual for crimes against humanity where the crime is committed: within the territory of Korea; by a Korean national; by an foreigner ‘against the Republic of Korea or its people outside the territory of the Republic of Korea’; and by any foreigner ‘who commits crimes such as genocide outside the territory of the Republic of Korea and stays in the territory of the Republic of Korea’.886 Accordingly, Korea provides for universal jurisdiction over crimes against humanity (being a crime ‘such as genocide’) where a person is present in the territory of Korea (provided the phrase ‘stays in the territory’ of Korea is not read overly restrictively).887 Further, the jurisdiction is supplementary to the jurisdiction of the accused’s or the victim’s state of nationality.888 The Act also makes provision for the surrender of individuals to the icc. Article 19(1) of the Act provides that the Korean Extradition Act will apply mutatis mutandis to the surrender of persons to the icc. Interestingly, however, the Act appears to allow the executive a discretion not to surrender a person on the basis either that the relevant offence is a ‘political offence’ or based on the ‘practice of non-extradition of nationals’.889 8

Conclusion

8.1 State Practice and Customary International Law This Chapter has sought to summarise the most important state practice, namely, actual prosecutions of offenders for crimes against humanity in state courts since the Rome Conference in 1998. States that have actually confronted the issues of prosecuting persons for crimes against humanity provide the most relevant and persuasive state practice on the proper interpretation of crimes against humanity in the wake of the Rome Conference and may arguably be said to have been ‘specially affected’ by the laws of crimes against humanity by their particular experiences.890

886 Article 3. 887 See also Choi and Kim, above n 883, 630–631. 888 Choi and Kim, above n 883, 632. 889 Choi and Kim, above n 883, 634. 890 (icj) Germany v Denmark and the Netherlands (Merits) [1969] icj Rep 3 (‘North Sea Continental Shelf Cases’), [73].

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This chapter has also examined a number of further states where there have been no criminal prosecutions in order to try and ensure that the states ­sampled are representative of all major legal systems and that certain key ­jurisprudence in other contexts was discussed. It is notable, however, that the Middle East and Asian states are seriously under-represented in this regard, as are the some of the most populous countries in the world, China, India and Pakistan. This serves to undermine the proposition that the practice surveyed is sufficiently widespread and representative to itself establish a norm of customary international law. In the context of crimes against humanity, it becomes important to look to two particular aspects of this practice: first, the extent to which state legislation and judgments add to the development of crimes against humanity (and, in particular, whether states have treated the definition of crimes against humanity in Article 7 of the icc Statute as authoritative); and secondly, the particular jurisdiction that they have accorded to their courts over crimes against humanity. 8.2 The Five Chapeau Elements and the Policy Element 8.2.1 Legislation At the state level, the form of incorporation of Article 7 of the icc Statute into domestic law has not been consistent. On the one hand, almost all states have adopted a definition at least consistent with the five Kunarac elements of crimes against humanity, notwithstanding that the adoption of the policy element contained in Article 7 is less clear. Of the 31 countries reviewed,891 15 have either strictly adopted the icc Statute definition (New Zealand, the United Kingdom, Argentina, Uruguay, Brazil, Kenya, South Africa and Hungary), or at least broadly adopted the definition in Article 7 (including its requirement for a policy) (Australia, France, the Netherlands, Chile, Bosnia and Herzegovina, Indonesia and South Korea). Indonesia has been included in this list because, while the courts have appeared to be split on the policy requirement, Indonesia intended to implement the icc Statute and the weight of authority is in favour of the policy requirement. A further 6 states (Chile, Peru, Estonia, Spain, Ethiopia and Guatemala) have adopted a policy-type element, albeit one different from the icc Statute. 891 Australia, Canada, New Zealand, the uk, the us, Belgium, France, Germany, Spain, Norway, Argentina, Chile, Guatemala, Peru, Uruguay, Brazil, Bosnia & Herzegovina, Estonia, Latvia, Hungary, Romania, Ethiopia, Senegal, Kenya, the drc, South Africa, Bangladesh, Indonesia, and South Korea.

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Of this number, 3 countries (Chile,892 Peru893 and Estonia894) have adopted definitions that, while differing materially from the icc Statute, nonetheless include an analogous – if moderated – policy element. While the remaining 3 do not adopt a policy element per se, they have adopted more stringent requirements that may be seen as an equivalent jurisdictional limitation to a policy element. Spain still requires an attack on discriminatory grounds, and Ethiopia and Guatemala appear to have adopted a definition closer to that of genocide, requiring that there be an intent to destroy, in whole or in part a national, ethnic, racial, religious or political group. In Chile, what is further notable is that the legislation itself provides that the relevant policy must be that of the state or its agents or ‘of organized armed groups which, under the direction of a responsible command, exercise control over some territory as to enable them to conduct military operations, or organized groups who hold such power in fact leading to impunity for their actions’.895 The position in a further 3 states (the us, Latvia and the drc) is unclear. 2 of these states (Latvia and the drc) tend to lean in favour of a policy element. While the drc has omitted the policy element in the chapeau definition, the legislative intent has been to implement the icc statute and the balance of judicial authority appears to favour the policy requirement. In the case of Latvia, the icc Statute would appear to prevail over domestic legislation to the extent of any inconsistency. The position in the us, however, is more unclear. The jurisprudence on the status of Article 7 of the icc Statute is mixed and, although the proposed us Crimes Against Humanity Act 2009 defined crimes 892 (Chile) Law No 20.357 (18 June 2008), Art 1(2) provides that the attack must ‘[respond to] a policy of the State or its agents, of organized armed groups which, under the direction of a responsible command, exercise control over some territory as to enable them to conduct military operations, or organized groups who hold such power in fact leading to impunity for their actions.’ 893 (Peru) The Peruvian Supreme Court in Fujimori found that crimes against humanity requires that the attack be ‘carried out with the participation or tolerance of the de jure or de facto political authority’: [715], citing Ambos, above n 529, 133–135. This meant that the attack be perpetrated by ‘a government entity or criminal organization that assumes de facto control of territory’: Fujimori – Trial, above n 516, [714], citing (icty) Kupreškić – Trial, above n 531, [654]–[655] and Tadić – Trial, above n 531, [659]. This was followed by the Constitutional Court in El Frontón case. 894 (Estonia) Penal Code, Art 89 (‘instigated or directed by a state, organisation or group’). As discussed in Chapter 4, this definition appears to come from the Tadić decision and was explicitly rejected in the icc Statute. 895 (Chile) Law No 20.357 (18 June 2008), Art 1(2). See above at 4.2.1.

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against humanity as requiring that an attack be ‘widespread and systematic’, this legislation was not adopted. Only a minority of countries have significantly departed from the icc Statute. 7 countries (Canada, Germany, Belgium, Norway, Romania, Senegal and Bangladesh) have defined crimes against humanity in a way that does not appear to require that there be a state or organizational policy. They have enacted laws consistent with the approach of the ad hoc Tribunals as to the crime’s customary law definition, particularly insofar as the policy element is concerned.896 However, as in the case of Germany and Romania (discussed below) it may be that their Courts take a different view. Accordingly, on balance, the fact that the majority of states reviewed appear to have adopted the icc policy element or something similar tends to enhance the status of Article 7 as a guide to the crime’s most current customary law definition. This includes not only the five Kunarac elements but also the policy requirement. This is also supported by the large number of State Parties to the icc Statute, currently numbered at 122 ratifications and 139 signatories.897 However, the irresistible conclusion is that the status of Article 7, as a matter of state practice, remains somewhat confused and unclear. It is fair to say that this practice (and in particular the opinion juris accompanying such practice) is further complicated by the fact that, even where a state adopts the definition in the icc Statute, it is not clear whether they are doing so simply to implement the definition in the icc Statute rather than because they understand it to reflect the definition under custom. However, this argument is somewhat undercut by the fact that the icc Statute does not require states to legislate for crimes against humanity as provided in the icc Statute, but rather the matter is left to states to define. And indeed, many states have departed from the icc definition in various ways. 8.2.2 Jurisprudence The jurisprudence analysed allows a number of conclusions to be drawn in relation to the definition of crimes against humanity. Three matters are of most relevance: first, the adoption of the jurisprudence of the ad hoc tribunals; secondly, the treatment of the policy element; and thirdly, the minimum level of scale and seriousness required for an attack amount to a crime against humanity. 896 See Chapter 4. 897 See latest figures on un Treaties website, accessed online at on 6 July 2014.

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(a) The Jurisprudence of the Ad Hoc Tribunals Where discussion has occurred of the elements of crimes against humanity in state courts, courts have typically picked up the elaboration on those elements by the ad hoc tribunals. This includes the precise meaning of the terms ‘widespread’ or ‘systematic’, the fact that the civilian population must be the ‘primary’ target of the attack and that the term ‘population’ excludes random or isolated attacks. This lends support to the view that not only the modern definition but also many further aspects of the jurisprudence of the ad hoc tribunals (discussed further in Chapters 9 and 10) have attained the level of customary international law. (b) Article 7 and the Policy Element While the adoption of the five Kunarac elements and many of the uncontroversial aspects of its elaboration by the ad hoc tribunals is virtually unanimous, where states’ courts have elaborated on the policy requirement, practice has been mixed as to whether or not it is required. On the one hand, the Canadian Supreme Court in Mugesera has held that the ‘policy element’ in Article 7 does not reflect current customary international law but it may do so sometime in the future.898 Also in this camp could be the Bangladeshi ict, which found that it was not required to follow the icc Statute.899 The difficulty is that both decisions related to conflicts where a state policy was clearly present (Rwanda and Bangladesh). Indeed, both the Canadian Supreme Court900 and the Bangladesh iht made such a finding explicitly.901 On the other hand, a number of other states have required a state policy element. In Germany, the Higher Regional Court of Stuttgart in the fdlr Case – and the Federal Administrative Court in a migration case – both held that Article 7 (along with its policy requirement) was the appropriate definition of crimes against humanity. The Romanian High Court of Cassation ­required the same in the case Vişinescu. Similarly, in the context of migration decisions, Courts in Australia,902 New Zealand903 and the uk904 have c­ onsidered that 898 (Canada) Mugesera – Supreme Court, above n 34, [157]–[158], followed in Munyaneza – Trial, above n 46, [114]. Note, however, the interesting lack of reference to the policy element in the later decision in Munyaneza – Appeal, above n 63, discussed above at 2.2.2(b). 899 (Bangladesh) Bachchu Razakar – Judgment, above n 779, [34], [108]. 900 (Canada) Mugesera – Supreme Court, above n 34, [160], 901 (Bangladesh)Bachchu Razakar – Judgment, above n 779, [34], [108]. 902 (Australia) sryy – Full Federal Court, above n 12, [75]. 903 (New Zealand) Tamil X – Supreme Court, above n 79, [47]. 904 (United Kingdom) R (js (Sri Lanka)) – Supreme Court, above n 92, [9].

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Article 7 provides the most authoritative guidance on the proper definition of crimes against humanity (presumably including its requirement of the policy element). The us could probably be added to this list, although the position is not entirely settled. Where domestic decisions have accepted a policy requirement, such Courts have typically accepted that the policy may be that of a de facto a­ uthority as well as that it may be constituted by ‘toleration’ of atrocities. The P ­ eruvian ­Supreme Court, for instance, found that there must be the ‘participation or tolerance of the de jure or de facto political authority’.905 Similarly, the ­Argentinean ­Supreme Court held that an ‘organizational policy’ includes ‘large ­magnitude organizations that, in a scenario of struggle for power, are capable of controlling a territory or insurgent groups involved in a fight for power’.906 The Spanish Audiencia Nacional held in the Scilingo case that customary international law requires a policy of a state or de facto power. The Dutch Court of Appeal in The Hague appeared to require the same. In Uruguay, the courts have held that (at least prior to the introduction of the icc Statute) there must be a state policy which may be satisfied by acquiescence.907 The courts did not need to decide the ambit of a state policy since 1998. Similarly, in Indonesia, while some courts have proceeded without ­commenting as to whether a policy element is required,908 others have considered that the policy element is required, but that it would be satisfied by the ‘giving [of] permissions or approvals’ and ‘tolerating, alleviating or facilitating the actor to do what he/she wants’ or ‘after the actor has done what he/she wants to do, he/she makes no immediate actions to hamper the results of the actions’.909 While it has found that such a policy could be held by small militia groups, this aspect of its jurisprudence may be questioned (discussed further below). The us Court of Appeals in Abagninin910 held that the term ‘State or organizational policy’ required the actions of a state – including ‘unofficial militias loosely affiliated with the State’ – or organisations with de facto control similar to that of a State or government such as the ability to erect checkpoints, ­exhibit 905 (Peru) Fujimori – Trial, above n 516, [712]. This was confirmed by the Peruvian Constitutional Court in El Frontón – Constitutional Court, above n 546, [45], [52], [54]. 906 (Argentina) Derecho – Supreme Court, above n 447, [10]–[12], as paraphrased in Schabas, above n 448, 151 fn 95. 907 (Uruguay) Alvarez Armellino – Judgment, above n 566, [151]–[152]. 908 (Indonesia) Abilio Soares – Judgment, above n 858, 79. 909 (Indonesia) Sedyono – Judgment, above n 858, 61; see also Kuswani – Judgment, above n 858, 39–40; and Sudrajat – Judgment, above n 873, 39–40. 910 (United States) Abagninin v amvac – Appeal, above n 120, 741.

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command and control, develop civilian structures and hold a substantial percentage of territory.911 In that case, a corporation tasked with manufacturing chemicals for use in the Ivory Coast did not suffice. These findings accord with the overwhelming majority of cases, which have involved some connection between the attack in question and a policy of a state or de facto power. This has usually involved the suppression of political opponents by the ruling political and military authorities (Spain in relation to the Franco-era atrocities; the Latin American states; ex-Socialist states of Estonia, Hungary and Romania; Bangladesh and Indonesia; and African states in Ethiopia and Senegal) and all Western prosecutions have related to such conflicts (e.g. Netherlands in relation to Suriname; Belgium in relation to Senegal; and the us in relation to Haiti, El Salvador, etc.). The remaining prosecutions have arisen out of state policies in the context of the ethnic cleansing in Yugoslavia (Norway, Bosnia) or the genocide in Rwanda (France, Canada, Belgium, Germany). These decisions not only provide some support for a policy requirement, but also provide some useful contours for when such a policy is present. The authors have been able to find only a small number of criminal prosecutions where the relevant ‘attack’ was perpetrated by non-state actors alone (as opposed to, for instance, non-state actors perpetrating crimes with the tolerance of state authorities). Those cases largely concern substantial armed forces with de facto control over territory. In respect of certain decisions in the drc, this has included the Armed Forces of the drc (fardc),912 the Movement pour la Liberation de la Congo (mlc),913 and the Mai Mai militia.914 As to the nature of these ‘organizations’, the first two are substantial armed forces that have been discussed in the context of the icc proceedings in relation to the same. As noted above, the final militia group was initially supported by the Congolese government and then eventually grew to take control of large areas of territory. The decision of the German Higher Regional Court of Stuttgart in the fdlr Case may be considered in the same way. While some courts in Indonesia have also appeared to hold that local militias may constitute ‘organisations’ for the purposes of the policy requirement even where they are not the de facto authorities on the ground,915 as discussed 911 (United States) Abagninin v amvac – Appeal, above n 120, 741. 912 un News (9 June 2006), above n 741; and International Federation for Human Rights, above n 741. 913 Trapani, above n 745, 38. 914 hrw 2009 Congo Report, above n 748. 915 (Indonesia) Sedyono – Judgment, above n 858, 61; Kuswani – Judgment, above n 858, ­39–40; Sudrajat – Judgment, above n 873, 35–36 and 39–40; Suratman – Judgment, above n 858, 30–32; and Guterres – Judgment, above n 858, 89–91.

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above, this conclusion is doubtful both as a matter of fact and law. The militia in East Timor was held by the Special Panels to have been operating in conjunction with and at least with the toleration of Indonesian authorities and, as a matter of fact, the extent to which the militia groups did in fact perpetrate the ‘widespread or systematic’ attack in question is not clear. The better view is that the cases in East Timor were examples of a state policy. The primary area in which non-state actors have been considered to have committed crimes against humanity has been in the context of migration decisions and civil actions in the us. Such cases generally accord with the practice above that the non-state entity must either be tolerated or tacitly supported by the state authority or a de facto authority. For instance, Courts in Australia, Canada, New Zealand, the uk and the Netherlands have all found that the Tamil Tigers were able to be the authors of a crime against humanity. While such decisions have usually involved a very limited level of analysis, the conclusion is likely to be correct – at least where the crimes occurred after 1995 or 1998.916 The Tamil Tigers were a significantly powerful armed group and in fact had at one point established something very much like its own state in Northern Sri Lanka.917 As is discussed further in Chapter 8,918 there are strong arguments to suggest that powerful organisations with sufficient de facto control over people, resources or territory so as to threaten the state’s criminal justice system can be authors of the relevant ‘attack’ – for instance, Boko Haram in Nigeria, Maoist guerrillas in Nepal, Al Shabab in Somalia, and Islamic State or Daesh in Iraq and Syria. Nonetheless, migration decisions as well as decisions in a civil context must be considered with some caution given their different jurisdiction and context. For instance, the question in a migration context has usually been whether under Article 1F of the Refugee Convention there are ‘serious reasons for considering’ that a person has committed crimes against humanity. Similarly, a number of the us decisions concern preliminary applications for dismissal or default judgment proceedings. Both are not readily amenable to fine and difficult decisions as to the proper ambit of crimes against humanity in respect of a given set of facts. They also do not have the same weight as final decisions. One exception to the above trend of authority may be the consideration of the Basque separatist group, the eta, in the Spanish Courts. The Courts have been split, with at least one preliminary decision accepting that the eta could 916 When the authors argue the modern definition of crimes against humanity came to replace the war nexus: see Chapter 4. 917 See Gordon Weiss, The Cage (The Bodley Head: London, 2011). 918 See Chapter 8, Section 4.

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be the author of a crime against humanity; the other that they could not. The difficulty with the preliminary decision finding that the actions could constitute crimes against humanity, however, is that it contained little reasoning and did not grapple with many of the issue confronting the finding. The decision dismissing crimes against humanity appears to be more fully reasoned and draws the important distinction between crimes against humanity and terrorism. Ultimately, this practice appears to lead to two conclusions: first, that while it is often stated that non-state actors not operating with state support or tolerations may be perpetrators of a ‘attack’ for the purposes of a crime against humanity, such cases still tend to be in the clear minority of state practice; and secondly, where such a finding appears to have been made, it has usually been made in respect of armed military groups in the context of a state in the midst of a civil war or powerful non-state entities such as the Tamil Tigers. Other cases have concerned non-state entities directed, tolerated or supported by the state itself and, like the case of Indonesia, are properly seen as instances of the presence of a state policy. This question is discussed in further detail in Chapter 8. (c) What Attacks Have Amounted to a Crime against Humanity Outside of the question of the policy element, the domestic considerations of crimes against humanity have furthered some of the general questions arising from the Kunarac elements, in particular the terms ‘widespread or systematic’ and directed against any ‘civilian population’. The cases – in particular the Latin American cases and cases in the former socialist states – provide a range of instances where the targeting of individuals on a political basis – such as protesters, labour union leaders, and ­intellectuals – can amount to a crime against humanity at least where a minimum level of scale is reached. This goes some way to clarifying the statement made by the icty Trial Chamber in Limaj and picked up by the scsl that the killing of a ‘select group of political opponents’ would not satisfy the definition of a crime against humanity.919 This point is discussed further in Chapter 9. Further, a number of key cases shed light on what level of scale and seriousness is required for there to be an attack against a civilian population. The us civil cases are of particular importance in this respect. A us Court of Appeals in Mamani v Berzaín920 dismissed a claim where the Bolivian authorities killed 70 people and injured 400 in the context of suppressing civil unrest during a 919 Discussed in Chapter 9, Section 5.1.3. 920 (United States) Mamani v Berzaín – Appeal, above n 110.

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two-month period in 2003. A us District Court in Bowoto v Chevron Corporation, also dismissed a claim for crimes against humanity, concluding that the Nigerian security forces’ targeting of political protesters over the course of a decade (killing hundreds and injuring thousands) could not amount to an attack that was either ‘widespread or systematic’ or directed against ‘a civilian population’. The Court undertook a detailed analysis of the icty decisions in Limaj and Galić that is of particular significance. Other us cases are have considered whether an attack could be made up entirely of acts that were nonviolent such as persecution. Also of significance was the Peruvian Constitutional Court decision in the El Frontón Case. There, the Court considered that the atrocities committed by Peruvian authorities at El Frontón prison in June of 1986 – where 90 to 100 individuals were killed during the suppression of prison riots – did not amount to a crime against humanity.921 This was in part because the attack was neither ‘widespread or systematic’ as well as that it was not directed at a ‘population’. These matters are discussed further in Chapter 9.922 Further, apart from considering what domestic courts and tribunals have said about the contextual elements of a crime against humanity as a matter of legal principle, a number of conclusions may be drawn from a consideration of the factual circumstances of the ‘attacks’ in question. Similarly to the experience of the international and internationalised tribunals, the clear majority of cases addressed by domestic courts as constituting crimes against humanity appear to have in fact been attacks that were either both widespread and systematic or that they have been of a particular minimum scale and have been implemented pursuant to a state or organizational policy. Cases found only to be ‘systematic’ or where the attacks in question are very small remain rare. The decision of the Inter-American Court of Human Rights in Gelman v Uruguay may be one such example. In other cases where the attacks have been particularly small, courts have often had difficulty in characterising the attack as being directed against a population (e.g. the us and Peruvian cases). The two tentative exceptions to this may be the Bouterse case in the Netherlands and the Zanu-PF Case in South Africa. The former concerned the ­Surinam authorities’ alleged killing of 15 political opponents and the latter concerned the Zimbabwean authorities’ alleged arrest, detention and torture of around 100 people affiliated with a rival political faction.923 These examples 921 See above, Section 4.4.2(b). 922 See in particular Sections 2.2, 5.1.2 and 5.1.3. 923 (South Africa) Zanu-PF Case, above n 761.

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should be treated with caution. Neither Court was tasked to determine whether a crime against humanity had in fact been committed but instead considered whether or not the national authorities should prosecute (in the case of the Netherlands) or investigate (in the case of South Africa). The former case did not proceed to a prosecution and it remains to be seen whether a trial will follow the latter. Indeed, in the Zanu-PF Case, it was conceded that the attack could amount to a crime against humanity and the Court did not need to in fact consider the question for itself. Ultimately, these decisions support the conclusion that crimes against humanity must reach a certain level of scale and seriousness before they can amount to a widespread or systematic attack against a civilian population. They also add to the growing jurisprudence as to when that scale will be reached, what amounts to an ‘attack’, when an attack will be ‘widespread or systematic’ and when an attack will be directed against a ‘population’. These issues are discussed further in Chapters 8 and 9. Jurisdictional Issues – Retrospectivity, Amnesties and Extraterritorial Jurisdiction The jurisdictional issues of non-retroactivity, statutes of limitations, amnesties and extraterritorial jurisdiction are discussed in detail in Chapter 11. For now, a few preliminary conclusions can be drawn in respect of state practice.

8.3

8.3.1 The War Nexus and Retroactivity Generally, when states have incorporated Article 7 into domestic law, it has not been made retrospective. Exceptions include Estonia, Romania and Hungary. The Canadian and New Zealand statutes were also technically retrospective, although only from the date of the Rome Conference (17 July 1998) and the commencement of the icty Statute (1 January 1991), respectively. These observations provide some support for the view that states regard Article 7 as codifying existing law, but only from the 1990s. No state was prepared to grant their courts extraterritorial jurisdiction over crimes against humanity as defined in Article 7 for conduct prior to 1991. Where state courts have found ‘crimes against humanity’ to have been in existence or committed prior to 1991, the practice is mixed. On the one hand, a number of courts have dismissed prosecutions for crimes against humanity where the specific offence of crimes against humanity was not proscribed by domestic law at the time of the relevant actions (Spain, France, Norway, Uruguay, Brazil). The ecowas decision in the Habré case also significantly found that an international court was required for such a prosecution to avoid breaching the principle against non-retroactivity. On the other hand, courts

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in other states (Spain, Peru, Estonia, Hungary, Romania and Bangladesh) were content to apply crimes against humanity retrospectively. Peru and Estonia did so on the basis of the so-called Nuremberg exception; Spain, Hungary, Romania and Bangladesh did so on the basis that crimes against humanity existed under ­customary international law.924 The difficulty with the issue is that courts in most states, however – whether proceeding in a criminal or in a migration context – have either readily accepted the international customary law status of crimes against humanity without a war nexus (Australia, Spain, Peru, Chile, Uruguay, Romania, Bangladesh, Ethiopia) or have proceeded implicitly on that basis by applying the modern definition (or a variant of the modern definition) to conduct prior to 1998 ­without discussion of the war nexus (Canada, New Zealand, uk, us, Argentina, Guatemala, Estonia, Hungary). Further, the European Court of Human Rights in Kolk and Kislyiy v Estonia and Korbely v Hungary has held that no war nexus existed as early as 1946 and 1956, respectively. There are some exceptions to this general approach, but they remain limited. A Netherlands Court of Appeal in Bouterse expressed uncertainty on the position, finding only that the war nexus was ‘probably’ no longer necessary by 1982.925 Other courts at times appeared to justify retrospective prosecutions on the basis that the acts were criminal according to the general principles of civilised nations (Peru, Latvia, Spain926). While this supports the decision of the eccc in Duch to the same effect,927 it is difficult to give a great deal of weight to decisions where the issue was e­ ither not considered or where the applicable reasoning limited. The ­European Court of Human Rights in Kolk and Kislyiy relied largely on un General Assembly Resolution 95, which only affirmed crimes against humanity with a war n ­ exus. Outside of this, and strangely considering it was considering convictions for conduct occurring in 1949, the Court relied upon the work of the ilc and the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. A similar approach has been taken by the Courts in both Romania and Ethiopia. It is uncontroversial as a matter of international law, that to apply a domestic incorporation of an international crime will not breach the nullum ­crimen 924 (Brazil) Ministério Público Federal [Office of the Prosecutor], Herzog, Vladimir, Promogao de arquivamento Case No 1.34.001.001574/2008-17 (12 September 2008). 925 (Netherlands) Bouterse – Appeal, above n 313, [5.2]. 926 See the decision of Judge Garzon discussed at Section 3.5.2(b), albeit concerning conduct occurring in 1936 to 1938. 927 See Chapter 5, Section 3.3.3(c).

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principle provided the crime existed under international customary law at the time of the offence. The problem is that this requires the customary international law status of the offence to be applied as at that time. As already discussed in this text, when the position at Nuremberg and the work of the ilc and the Convention are considered in detail, they do not provide support for the abolition of the war nexus at that time.928 The better view is that it was not until 1991 that a new norm began to emerge – crystallising with either the Tadić decision in 1995 or the Rome Conference in 1998 – that the war nexus was to be replaced with the modern definition that could occur in times of peace.929 Chapter 2 put forward a slightly different version of this proposition based upon the so-called Nuremberg exception to the nullum crimen principle.930 By this exception a sovereign government can, by new law (if necessary), overturn any legal immunity enjoyed by a prior regime or enact any new criminal offences in its domestic criminal law, provided its ‘retroactive punishment’ is limited to such heinous conduct which is criminal according to the general principles of law recognised by civilised nations. This covers murder, extermination, enslavement, deportation and other inhumane acts, including torture or rape. This focuses attention on the underlying crime rather than the chapeau to crimes against humanity, such that the only underlying crimes outside this exception would be those that have not been sufficiently established by states.931 Such an exception was established at Nuremberg and has since been enshrined in Article 15(2) of the International Covenant on Civil and Political Rights.932 Support for this proposition may be found in the decision of the icty Appeals Chamber in the Čelebići case933 and in some judgments of the Australian High Court in the Polyukhovich Case.934 Such an approach has the practical effect of providing a sound and principled basis for the prosecution of historical offences without needing the strained analysis as to whether or not the war nexus had evaporated by the time of the offences under consideration. 928 See Chapter 2, Sections 5.3, 5.4 and 8 (regarding the position at Nuremberg) and Chapter 3, Sections 3.1 and 3.3 (regarding the position of the Convention on the Non-­Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity and the ilc, respectively). 929 See Chapter 4, Sections 4.4 and 6 and Chapter 8, Section 2. 930 SECTION 7. 931 This is discussed further in respect of each underlying offence in Chapter 10. 932 See also European Convention of Human Rights, Article 7(2). 933 (icty) Čelebići – Appeal, above n 719, [175]–[181]. 934 (Australia) Polyukhovich, above n 7; see discussion in Chapter 3, Section 4.2.

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8.3.2 Extraterritorial Jurisdiction While the icc Statute does not require that States Parties provide for extraterritorial jurisdiction over crimes against humanity, particularly over non-­ nationals, many states have now done just that. Of the 27 surveyed states that have proscribed crimes against humanity,935 19 states’ legislation either do not r­equire any connection between the offence and the prosecuting state (­Australia, New Zealand, Germany, Chile, Latvia Hungary and Senegal) or require only a minimal connection to the jurisdiction such as victims of the crimes ­being citizens/residents, or the defendant being present in the jurisdiction (Canada, the Netherlands, Bosnia & Herzegovina, Romania,936 ­Argentina,937 Brazil, South Korea, Ethiopia, Senegal, Kenya, the drc and South Africa). By contrast, 7 countries (the United Kingdom, Belgium, France, Norway, Spain, Guatemala, and Uruguay) have limited their courts’ extraterritorial reach to where the accused persons are nationals and/or residents,938 and in 3 countries (Estonia, and non-State Parties, such as Indonesia and Bangladesh), crimes against humanity have been prescribed without any extraterritorial reach. Interestingly, some states have also extended jurisdiction to circumstances where they are bound to prosecute by a treaty or international custom (Spain, Argentina, Guatemala, Brazil, Bosnia & Herzegovina, and Estonia). However, as discussed in Chapter 11, an obligation to prosecute offenders on the basis of universal jurisdiction currently neither exists under customary international law nor under the Rome Statute. It may be, however, that this approach may become more relevant if such a norm does indeed develop or where there are extradition treaties in place between the relevant countries. It is also ­interesting to note that these states have provided jurisdiction, not where they can exercise jurisdiction, but where they must – an indicator of the concern these states have for exercising universal jurisdiction outside of an obligation to do so. While many states have provided for extraterritorial jurisdiction over crimes against humanity, many of such states have ensured that any p ­ rosecution on 935 As noted above, neither Peru nor the us have proscribed crimes against humanity. Further, in Peru’s case, the case of Fujimori was an exercise of territorial jurisdiction. 936 Although Romania also requires that the act be criminalised in the state where the crime was committed. 937 (Argentina) Where the person cannot be extradited to the icc. 938 (United States) The proposed Crimes Against Humanity Act 2009 had also proposed to limit its universal jurisdiction in this way.

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the basis of extraterritorial jurisdiction can only occur with the consent of an officer of the executive (Australia, Canada, New Zealand, the uk, Indonesia and the proposed definition in the us) or at least at the discretion of a federal prosecutor (Belgium, France, Germany, Spain). Ethiopia requires that the Minister be ‘consulted’. Hungary requires the consent of the ‘Chief Prosecutor’, who is an elected official. This again demonstrates a reluctance of states to adopt an unrestricted form of universal jurisdiction or one that mandates prosecution. Exceptionally, the courts of Belgium and Spain initially assumed extraterritorial jurisdiction directly under customary international law without the backing of any local law and any local connection.939 However, over time, these powers have been slowly whittled down with most now requiring a l­ ocal connection before a prosecution occurs. The same phenomenon can be seen in Germany, where although no local connection is strictly needed, such a ­requirement has been imposed in practice by the prosecutor. While the us has no criminal jurisdiction, a similar trend may be noticed in respect of its civil statute, the Alien Tort Claims Act. While, like in Belgium and Spain, an extremely wide number of cases were brought under the Act with no connection to the United States, the Supreme Court has essentially now reduced its scope such that it will apply extraterritorially in only very limited circumstances. Importantly, one of its reasons for doing so was that such a jurisdiction has resulted in objections being lodged by foreign sovereign states and therefore has interfered in the conduct of foreign relations by the executive arm of government. Actual trials for crimes against humanity grounded upon universal jurisdiction remain rare affairs. Where trials for the international offence do take place, such as in Ethiopia and Estonia, they have usually occurred as part of those countries’ transitions from a totalitarian regime or period of occupation. In the case of prosecutions in the drc, they have concerned crimes committed by armed groups within the territory of the drc itself. This mirrors the experience of the hybrid tribunals discussed in Chapter 5 (e.g. Sierra Leone, Cambodia, East Timor and Iraq). Nonetheless, most judges have readily accepted the right to invoke universal jurisdiction (Javor in France being an exception). Outside the context of the Second World War, where crimes against humanity was associated with armed conflict, the Scilingo case in Spain remained for a long time one of the few examples of an actual trial for crimes against humanity based upon universal jurisdiction. Prior to that, Eichmann stood out 939 (Belgium) Belgian Pinochet Case, above n 229; and (Spain) Scilingo – Supreme Court, above n 355.

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alone as possibly the only other major precedent. Yet the Scilingo case does not serve as a strong precedent as the trial occurred following the defendant’s voluntary presence in Spain to face the charges brought. Further, since the Scilingo case, Spain has tempered its jurisdiction to try such crimes. Outside of Scilingo, an increasing number of Western states have brought prosecutions in respect of atrocities in Rwanda (Canada and France) and the drc (Germany). Yet even in these instances the courts have at times ­appeared reluctant to rely on universal jurisdiction even when it does arise. In the ­Canadian prosecution of the Rwandan genocidaire, Munyaneza, the Court could have exercised jurisdiction on the basis of universal jurisdiction (namely, purely by virtue of the accused’s presence in the territory). However, the Court instead relied on the fact that Munyaneza was resident in Canada and made no mention of the principle of universal jurisdiction. Similarly, it is significant that Rwanda and the drc do not appear to have formally objected to the exercise of jurisdiction by the respective states. A recent precedent has been the prosecution of Habré in Senegal. However, the legal basis for proceedings against Habré has relied heavily on the Torture Convention rather than any claimed right to assert universal jurisdiction over crimes against humanity under customary international law. Even then, the decision of the ecowas Tribunal was to the effect that Senegal was not able to exercise universal jurisdiction over Habré in its domestic courts. Instead, ­Senegal – in conjunction with the African Union – convened an internationalised tribunal to do so (the Extraordinary Chambers in Africa, discussed in Chapter 5). While this appears to be on the misconceived basis that to do so would violate the nullum crimen principle, it nonetheless reiterates the reluctance of states to exercise universal jurisdiction over crimes against humanity in their domestic courts. The right of state courts to invoke universal jurisdiction over crimes against humanity is considered in Chapter 11. The approach of the au, the ecowas Court and Senegal in the Habré case also shows not only a cautious attitude to the notion of universal jurisdiction over crimes against humanity, but also a sensitivity towards outsiders, such as Belgium, trying Africans accused of committing the offence. The French President, Mr Sarkozy, in a visit to Senegal said ‘[t]hat the court in charge of the trial will be made up of Africans and will take place in Africa is another piece of good news.’940 According to Reed Brody of Human Rights Watch ‘Senegal’s

940 ‘France to help try Chad ex-leader’, bbc News (27 July 2007), accessed online at on 7 September 2007.

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decision to prosecute Habré marks the first time that a developing country has agreed to investigate and prosecute massive crimes committed by a foreign leader.’941 At the time, the Belgium law of 1999 was at the vanguard. It had the support of many human rights groups. In the end, its original scope was eviscerated by the amendments of 2003 and no trial for crimes against humanity based upon universal jurisdiction under the 1999 law has in fact ever taken place in Belgium.942 Some lessons can be learned from this experience. According to Reydams: ‘[t]he important lesson to be drawn from the Belgian experience is that a system of universal jurisdiction that is not principled is doomed to fail.’943 But what is a ‘principled’ approach? The reality is that powerful states such as the United States, China and Russia will oppose a state asserting extraterritorial jurisdiction over a current or former official accused of committing crimes against humanity. This can make it difficult in practice for a single state to attempt to do so. Exceptions tend to occur in cases such as Habré from Chad, being a former official from a small state that had expressly waived state immunity, where Belgium felt confident in asserting an effective extraterritorial jurisdiction over crimes against humanity. Even then Senegal declined to extradite and it subsequently convened an internationalised tribunal to exercise the relevant jurisdiction. When it comes to the unilateral assertion of universal jurisdiction over crimes against humanity by single states, pragmatism triumphs over any assumed right to do so. This suggests that states at best will invoke universal jurisdiction in the case of foreign officials charged with committing crimes against humanity only in limited circumstances, which are still developing, as a true ‘default’ or ‘last resort’ jurisdiction where the territorial state does not object and because other alternatives, such as extradition to another state or an international tribunal, is not possible. The existence of such a right is considered further in Chapter 11. 941 Human Rights Watch, ‘Senegal: eu Parliament Calls for Support of Hissène Habré Trial’ (26 April 2007), accessed online at on 7 September 2007. 942 See Reydams, above n 212. 943 Reydams, above n 212, 689.

Chapter 8

Crimes against Humanity and Threats to International Peace and Security Certainly it is undoubted that ever since civil societies were formed, the rulers of each claimed some especial right over his own subjects… [But i]f a tyrant … practises atrocities towards his subjects, which just no man can approve, the right of human social connexion is not cut off in such a case.1 The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.2

∵ 1 Introduction After tracing the concept of crimes against humanity from its historical and philosophical origins in Chapter 1, its emergence as a legal crime at Nuremberg in Chapter 2, and the practice of states in between Nuremberg and The Hague in Chapter 3, it was argued in Chapter 4 that the modern definition of crimes against humanity arose in the 1990’s out of three main sources: the statutes of the icty and ictr, the decisions of the icty in the case of Tadić and the icc Statute. Chapters 5, 6 and 7 then looked at how this modern definition and these sources have been interpreted and shaped by the international and internationalized tribunals, the icc, and the domestic practice of states. At Nuremberg, a crime against humanity required a connection with an international armed conflict (the ‘war nexus’). The modern test for crimes against humanity requires, instead of the war nexus, that there be a ‘widespread or 1 William Whewell (ed), Hugonis Grotii De Jure Belli Et Pacis Libri Tres (Cambridge University Press: Cambridge, 1920) 439–440 (translating the words of Hugo Grotius). 2 Charter of the United Nations (‘un Charter’), Art 39.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004347687_009

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systematic attack directed against any civilian population’. This test has been consistently applied, and, most significantly, it has been reiterated that an attack need only be widespread or systematic – that it need not be both. This has raised three distinct issues that have not entirely been settled by the jurisprudence. First, can a systematic or widespread attack be directed against a ‘population’ without reaching a minimum level of scale or seriousness? Secondly, can a widespread or systematic attack constitute a crime against humanity in the absence of a state or organizational policy? Thirdly, what type of non-state ‘organisation’ or group can be the author of either such a policy or such an attack? Before analyzing the details of the chapeau elements of crimes against humanity under customary international law – an exercise that is undertaken in Chapter 9 – it is important to take a step back and reflect on the modern definition and on the tensions that have emerged. It is further necessary to consider what is the fundamental raison d’être of crimes against humanity. In doing so, it is important to recall that, as Professor Luban has written, any theory of crimes against humanity must encompass both the crime’s offence against the victims as well as against the international community.3 This Chapter seeks to address these questions in two ways. First, it looks to place the modern definition in its proper historical context rather than merely looking at the literal meaning of the words that make up the definition. In particular, it looks to test the way in which the modern definition came to replace the ‘war nexus’ requirement that existed when the crime first emerged at Nuremberg. The modern definition of crimes against humanity occurred during the same period as that in which the un Security Council authorised humanitarian interventions under Chapter vii in response to attacks on civilians of sufficient scale and seriousness, irrespective of any link to an international (or even an internal) armed conflict. This led the Security Council to intervene in the case of internal atrocities, including by force, rather than to treat the fundamental principles of state sovereignty and non-intervention, entrenched in the un Charter, as being inviolate. This was achieved, from the early 1990’s, by the re-interpretation of the concept of a ‘threat to the peace’ in Chapter vii. It was this practice of the Security Council, often underestimated in the literature, which finally brought about the abandonment of the war nexus as a matter of state practice and reshaped the modern contours of the international offence known as crimes against humanity.

3 David Luban, ‘A Theory of Crimes Against Humanity’ (2004) 29 Yale Journal of International Law 85, 90.

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Secondly, the negotiation of the elements of crimes against humanity by states in the key period of 1991 to 1998 involved the same fundamental balancing exercise as that undertaken by the international community and the Security Council in deciding whether or not to intervene in purely internal atrocities – namely, achieving a balance between the protection of human rights and the principles of state sovereignty. To look at crimes against humanity simply through the lens of the harm caused to victims is to leave out the fundamental reason why crimes against humanity is an international crime to which a form of international jurisdiction attaches rather than a domestic crime properly seen as within the domain of the territorial state. The concepts of a ‘State or organizational policy’ and ‘a widespread or systematic attack’ are intended to delineate when international criminal law can override a state’s domestic sphere. 2

An Historical Analysis of the Modern Definition of Crimes against Humanity

2.1 A Critique of the Modern Definition If one examines the central test of crimes against humanity under the modern definition – a ‘widespread or systematic attack directed against a civilian population’ – a number of criticisms of the test can be made. As Bassiouni points out, the requirement is subjective and vague.4 It is largely indeterminate. It contains an unarticulated premise of both scale and seriousness. But against what objective criteria is it to be measured? Related questions arise in respect of the controversial ‘policy element’. The icty has held that the crimes charged must rest ‘on firm foundations of customary law’ and be defined with sufficient clarity for them to have been reasonably foreseeable and accessible at the date of the offence.5 4 M. Cherif Bassiouni, Introduction to International Criminal Law (Transnational Publishers: New York, 2003) 218, 244. 5 See (icty) Prosecutor v Hadžihasanović et al. (Jurisdiction in Relation to Command Responsibility), Case No IT-01-47-AR72 (16 July 2003) (‘Hadžihasanović – Jurisdiction’), [55]; Prosecutor v Blaškić (Appeals Chamber Judgment), Case No IT-95-14-A (29 July 2004) (‘Blaškić – Appeal’), [110], [139] and [141]; Prosecutor v Vasiljević (Trial Chamber Judgment), Case No IT-98-32-T (29 November 2002) (‘Vasiljević – Trial’), [193], [199], [202]; Prosecutor v Milutinović et al. (Decision on Motion Challenging Jurisdiction), Case No IT-99-37-AR72 (21 May 2003) (‘Milutinović – Jurisdiction’), [9]-[10]. The ictr has at times purported to go beyond customary law and has relied on treaty law binding on Rwanda and

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This is supported by most scholars6 and by various international human rights conventions.7 The same principle is enshrined in Article 22 of the icc Statute. The nullum crimen sine lege principle requires that a crime be sufficiently certain so as to be reasonably accessible and foreseeable for an accused.8 The ‘widespread or systematic attack’ requirement does not easily meet this test. For example, what is the required number of victims before an attack can be regarded as ‘widespread’ – is it 10, 100 or 1000? Similarly, the notion of a purely ‘systematic’ attack is also pregnant with a number of uncertainties. Can a thoroughly planned ‘attack’ with only two victims be a



has also referred to Rwandan domestic law: Prosecutor v Akayesu (Trial Chamber Judgment), Case No ICTR-96-4-T (2 September 1998) (‘Akayesu – Trial’), [604]-[609]; Prosecutor v Kayishema and Ruzindana (Trial Chamber Judgment), Case No ICTR-95-1-T (21 May 1999) (‘Kayishema – Trial’), [156]-[158], [597]-[598]; Prosecutor v Musema (Trial Chamber Judgment), Case No ICTR-96-13-T (27 January 2000) (‘Musema – Trial’), [242]; and Prosecutor v Semanza (Trial Chamber Judgment), Case No ICTR-97-20-T (15 May 2003) (‘Semanza – Trial’), [353]. The Appeals Chamber, however, has accepted that the conduct must be clearly defined under international criminal law: Prosecutor v Bagilishema (Appeals Chamber Judgment), Case No ICTR-95-1A-A (3 July 2002) (‘Bagilishema – Appeal’), [34]. In Prosecutor v Kordić and Čerkez (Appeals Chamber Judgment), Case No IT-95-14/2-A (17 December 2004) (‘Kordić – Appeal’), [44]-[46] the Tribunal appeared to suggest that it was enough if a treaty was binding on all the parties concerned which made the conduct criminal, though it may be regarded as difficult to see how a treaty can provide for individual criminal responsibility outside of customary law: see Guénaël Mettraux, International Crimes and the Ad Hoc Tribunals (Oxford University Press: Oxford, 2005), Chapters 2 and 3; Theodor Meron, ‘Revival of Customary Humanitarian Law’ (2005) 99(4) American Journal of International Law 817. 6 See, for example: Antonio Cassese, International Criminal Law (Oxford University Press: Oxford, 2003) 145; Bassiouni, above n 4, 218; Bruce Broomhall, International Justice and the International Criminal Court (Oxford University Press: Oxford, 2003) 26–39. 7 iccpr, Art 15; European Convention on Human Rights, Art 7; Inter-American Convention on Human Rights, Art 9; African Charter of Human and Peoples’ Rights, Art 7; Third Geneva Convention, Art 99; Fourth Geneva Convention, Art 67. 8 For example, see: (icty) Hadžihasanović – Jurisdiction, above n 5, [12], [34]; Milutinović – Jurisdiction, above n 5; Vasiljević – Trial, above n 5, [201]; (spet) Public Prosecutor v Franca (Judgment), Special Panel Case No 04a/2001 (5 December 2002) (‘Franca – Judgment’), [73]– [80]; (ECtHR) s.w. v The United Kingdom (Decision on Merits), European Court of Human Rights, App No 20166/92 (22 November 1995), [34]–[36]; c.r. v The United Kingdom (Decision on Merits), European Court of Human Rights, App No 20190/92 (22 November 1995), [32] and [34]; and Streletz, Kessler and Krenz v Germany (Grand Chamber Judgment), European Court of Human Rights, App Nos 34044/96, 35532/97 and 44801/98 (22 March 2001) (‘Streletz et al – Appeal’). See also Chapter 7, Section 2.1 where the nullum crimen principle is further considered.

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‘systematic attack against any civilian population’? Mettraux has made a similar point.9 If read literally, the notion of a ‘widespread or systematic attack directed against any civilian population’ requirement has radical consequences. A spontaneous wave of ‘widespread’ – but disorganised – violence such as race riots will be a ‘crime against humanity’ if it targets some civilian population. Similarly, a merely ‘systematic’ attack, if not grounded in some notion of scale, may possibly cover two killings by the mafia in Italy or by terrorists or even a sole perpetrator. What is missing from the debate is an understanding of the crime’s rationale or defining feature after the elimination of the war nexus as a part of the crime’s definition. As discussed in Chapter 4, there was no clear statement at the Rome Conference as to the juridical or philosophical basis of crimes against humanity in international law without a war nexus. Since the abandonment of the war nexus, an ambiguity exists in the concept of crimes against humanity. Is its primary purpose still grounded in preventing threats to international peace faced by states (the traditional field of international law)? Or is its primary purpose now to proscribe the conduct of individuals irrespective of the role and attitude of states to that conduct (the traditional field of criminal law)? As suggested by Professor Luban, the answer appears to be that the crime should equally strive to achieve both purposes in equal measure.10 In order to isolate the crime’s rationale and set up a clear framework for the understanding of the ‘widespread or systematic’ test, it is suggested that the definition ought to be seen in its historical context. This is because the crime’s loose concepts such as a ‘widespread or systematic attack against any civilian population’ and ‘a State or organizational policy to commit such attack’ did not emerge from a vacuum; rather, they emerged historically in the 1990’s in the context of two important counterpoints. First, the ‘widespread or systematic’ test came to replace the war nexus as the jurisdictional threshold or the so-called ‘international element’ that distinguished crimes against humanity from domestic crimes and meaning that international institutions could intervene. Secondly, this was a new consensus at a time when the traditional gateway to intervention by the un Security Council – ‘threats to international peace’ – was being broadened to encompass purely internal atrocities. 9

10

Guénaël Mettraux, ‘Crimes Against Humanity and the Question of a “Policy” Element’, in Leila Nadya Sadat, Forging a Convention for Crimes Against Humanity (Cambridge University Press: New York, 2011). Luban, above n 3, 90.

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2.2 Crimes against Humanity at Nuremberg The starting point for this analysis is to first identify the original rationale for crimes against humanity, namely, the war nexus enshrined after Nuremberg. It was argued in Chapter 2 that the definition in Article 6(c) of the London Charter combined with the Nuremberg Judgment had reduced ‘the meaning of crimes against humanity to a point where they became practically synonymous with war crimes’.11 Frequently, however, further elements were put forward as being required under Article 6(c) in order to distinguish crimes against humanity from either war crimes or municipal crimes. There was the frequent suggestion that the crimes under Article 6(c) must be part of a large-scale atrocity12 or ‘which either by their magnitude and savagery or by their large number or by the fact that a similar pattern was applied at different times and places, endangered the international community or shocked the conscience of mankind, warranted intervention by States other than that on whose territory the crimes had been committed, or whose subjects had become their victims.’13 Evidently, this reasoning tries to link Article 6(c) with previous humanitarian interventions. Yet, this was a proposition expressly rejected by the drafters of Article 6(c). In the end, it was the war nexus alone which was chosen as the so-called ‘international element’ – the feature distinguishing crimes against humanity from domestic crimes. The rationale for the Nuremberg Principles (and the concept of crimes against humanity) was to prevent aggression and threats to international peace.14 Crimes against humanity was therefore conceived as a state value and linked to international peace. It arose not merely in response to internal atrocities but because the internal atrocities committed by the Nazis were seen as being in connection with threats to international peace. By linking crimes against humanity to international security (affirmed by unanimous General Assembly Resolution 95(i)), crimes against humanity became a part of the constitutional order of the international community – a law of the United Nations to be read with its Charter.15 This conceptualisation retarded the application of the crimes against humanity to purely internal atrocities and necessarily aligned the concept instead 11 12

Section 5. Egon Schwelb, ‘Crimes Against Humanity’ (1946) 23 British Year Book of International Law 178, 191. See also Memorandum of the Secretary-General on the Charter and Judgment of the Nürnberg Tribunal, un Doc. A/CN.4/5 (1949), 67. 13 Schwelb, above n 12, 179. 14 See Chapter 2 (and conclusion at Section 9). 15 See Bruce Broomhall, International Justice and the International Criminal Court (Oxford University Press: Oxford, 2003), 21–23 and 44–51.

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with the un Charter’s regulation of international intervention. Intervention by the Security Council in the domestic jurisdiction of states is only permitted under Chapter vii of the un Charter in response to ‘any threat to the peace, breach of the peace, or act of aggression’. Prior to 1991, Chapter vii was rarely invoked and the Security Council had only ambiguously invoked its powers in response to purely internal atrocities.16 Whilst many at the time of Nuremberg held high hopes that the concept of crimes against humanity would be freed of its early war nexus so that it could be used to penetrate state sovereignty and to protect persons from abuses committed by states, this did not become the practice. This left the concept of crimes against humanity in international law very much a stalled project. On the one hand, by the Nuremberg Principles, the concept of ‘crimes against humanity’ under international law had exceptional potency. From foot soldier to head of state, and irrespective of state immunity, local law or superior orders, a tribunal claiming to act in the name of the international community can threaten criminal punishment against the individual. On the other hand, such a precedent was only applicable after success in an international war. In the result, the great leap forward in making world leaders individually responsible for international crimes committed by them was only to be applied in exceptional circumstances. Such a result is hardly surprising. There is a moral and legal tension inherent in the concept of crimes against humanity. This arises because the considerations of justice may pull in the opposite direction to that of global stability and peaceful relations between states. When Hobbes said only God can judge a sovereign,17 he was not denying that a state may engage in wicked, criminal acts, but only that one state has no right to judge another lest the world descend into chaos. This is the justice and peace paradox – the battle between Kantian ethics and the Westphalian model of state sovereignty. The dilemma was foremost in the minds of the drafters at the London Conference in 1945 due to the fact that Hitler had himself invoked considerations of humanity when making demands on Czechoslovakia. The drafters feared that if purely internal atrocities could be labeled a ‘crime against humanity’ entitling an international response, this might encourage the concept to be abused in the future. The potential for abuse becomes greater if the tribunal 16 17

Simon Chesterman, Just War or Just Peace?: Humanitarian Intervention and International Law (Oxford University Press: Oxford, 2002), Chapter 4. Thomas Hobbes, Leviathan (first published 1651, J.M. Dent & Sons ed, 1914) ii, xxx: ‘… there being no Court of Naturall Justice, but in the Conscience onely where not Man, but God raigneth’.

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to be invested with power to try defendants of such crimes is made up of the victors in war, as was the case at Nuremberg. As de Vabres, the French judge at Nuremberg wrote: ‘[t]he theory of “crimes against humanity” is dangerous … dangerous for the States because it offers a pretext to intervention by a State in the internal affairs of weaker States’.18 The potential for disturbing peaceful relations between states presented by such prosecutions is obvious. How should international law resolve this justice and peace paradox for the offence of crimes against humanity? In the context of war crimes, Meron states that ‘[t]he question of what actions constitute crimes’ should be ‘distinguished from the question of jurisdiction to try those crimes.’19 As argued previously, however, the notion of a crime against humanity can only be properly understood in the context of considering the jurisdiction of the tribunal to prosecute. There are two components to this analysis. First, there is the practical reality that ‘crimes against humanity’ had its history grounded in actual prosecutions (compared to having its origins in a normative statement as was the case when it came to genocide). States could easily recognise the potential potency and applicability of the crime. Secondly, states have treated the chapeau element as being fundamentally jurisdictional in nature. Chapters 2 and 3 argued that the war nexus, whilst in the nature of an ad hoc rule of jurisdiction for the Nuremberg Tribunal, was also an essential element of the offence itself. It was the element that converted the ordinary underlying crimes into international offences. It fundamentally existed as a permissive rule of jurisdiction enabling either a truly international court created by the un (which could not be agreed upon at the time) or, at least, a court of belligerents to try enemy foreign nationals not only for war crimes but also for conduct described as ‘crimes against humanity’ if linked to war or aggression. The crime together with its jurisdiction meant that its future applicability in practice was very limited. The crime could not be applied outside the context of war. A similar issue was present with the concept of humanitarian intervention more broadly. In particular, humanitarian intervention by force was outlawed by the un Charter and the powers of the Security Council to intervene by force was limited to threats to international peace, not merely any mistreatment by a state of its own nationals.

18 19

Renaud Donnedieu de Vabres, ‘Le Jugement de Nuremberg et le principe de légalité des délits et des peines’ (1946–47) 27 Revue de droit pénal et de criminologie 811, 833. Theodor Meron, ‘International Criminalization of Internal Atrocities’ (1995) 89(3) American Journal of International Law 554, 561.

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Reinterpreting the Notion of ‘Threats to International Peace’ – The International Criminalisation of Internal Atrocities20 This constitutional order of things came under increasing strain as world opinion demanded that something be done about the atrocities that were taking place at the hands of states and state-like forces within state borders. In the period 1991–1998, two new and related norms emerged in international law. The first, as foreshadowed above, was that a crime against humanity could occur in times of peace without a link to aggression. The second was a new norm which reinvigorated and reinvented the old and discredited doctrine of humanitarian intervention. It held that the un Security Council could intervene by force under Chapter vii in the case of purely internal atrocities because some ‘attacks’ or ‘atrocities’ within borders can be said to ‘threaten the peace, security and well being of the world’. That is, the promulgation of the icty and ictr Statutes and the adoption of Article 7 of the icc Statute need to be seen in their historical context – namely, in the midst of the evolving approach of the international community to threats to international peace in the context of purely internal atrocities. These statutes and tribunals arose as the Security Council was taking an increasingly expansive role as to its powers under Chapter vii of the un Charter. Prior to 1991, the un Security Council refrained from intervening in purely internal atrocities in states (e.g. Bangladesh, Uganda and Cambodia – all in the 1970s). However, this radically changed between 1991 and 1998, when the un exercised its Chapter vii powers in respect of internal atrocities in Iraq, Liberia, the former Yugoslavia, Somalia, Libya, Angola, Haiti and Rwanda.21 The commonly-regarded first step in the process of encompassing internal atrocities within the concept of ‘threats to the peace’ occurred following the cease-fire in the Gulf War, when Resolution 688 (1991) was passed.22 Iraqi troops attacked the Shiites and Marsh Arabs in the south and Kurdish villages in the north, forcing almost one million Kurds to seek safety in Turkey.23 2.3

20 21 22

23

See Meron, above n 19. Peter Malanczuk (ed), Akehurst’s Modern Introduction to International Law (7th rev. ed., Routledge: London, 1999), 396. Malanczuk, above n 21, 130, and the references cited at fn 144; Helmut Freudenschuss, ‘Article 39 of the un Charter Revisited: Threats to the Peace and the Recent Practice of the un Security Council’ (1993) 46 Austrian Journal of Public and International Law 1, 7. un sc Provisional Records, un Doc. S/PV.2982, 46th sess, 2982nd mtg (5 Apri1 1991), 6. This was the submission of the delegation from Turkey. Hereinafter, states’ submissions to the Security Council, as recorded in the Verbatim Records of meetings, will be identified parenthetically.

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On 5 April 1991, the Council demanded Iraq end the oppression, saying ‘the repression of the Iraqi civilian population … which led to a massive flow of refugees … threatens international peace and security’.24 The Security Council discussion of Resolution 688 (1991) is instructive. Nine states (Romania, Ecuador, Zaïre, Côte d’Ivoire, Austria, the United States, the ussr, the United Kingdom and Belgium) referred to the effect of the flow of refugees on neighbouring states.25 Three states (Yemen, Cuba and Zimbabwe)­ voted against the resolution saying it was an impermissible interference in the domestic jurisdiction of Iraq.26 And only one (France) said ‘[v]iolations of human rights such as those now being observed become a matter of international interest when they take on such proportions that they assume the dimensions of a crime against humanity’.27 Thereafter, without further explicit Security Council approval, the Allies established military exclusion zones and 20,000 Allied troops, at their peak, landed in the north in Iraq.28 After this, a significant meeting of the Security Council took place. Members of the Council met at the level of head of government/state to chart a new course for the Security Council after the end of the cold war. The President of the Council thereafter issued a statement on 31 January 1992 in which it was noted that: The absence of war and military conflicts amongst States does not of itself ensure international peace and security. The non-military sources of instability in the economic, social, humanitarian and ecological fields have become threats to peace and security.29 This so-called ‘new world order’ was put to the test when Somalia’s President of 21 years was ousted in January 1991, leading to a viscous clan-based civil war.30 On 3 December 1992, the Security Council authorised the United

24 25

26 27 28 29

30

un sc Resolution 688 (1991), un Doc. S/RES/688, 2982nd mtg (5 April 1991), preamble. un sc Provisional Records, un Doc. S/PV.2982, 46th sess, 2982nd mtg (5 Apri1 1991), 22–23 (Romania), 36 (Ecuador), 38 (Zaïre), 41 (Côte d’Ivoire), 56 (Austria), 58 (us), 61 (u.s.s.r.), 64–65 (uk) and 67 (Belgium). Ibid, 27–31 (Yemen), 31–32 (Zimbabwe) and 43 (Cuba). Ibid, 53 (France). Chesterman, above n 16, 131 and 197–199. Note by the President of the Security Council, un Doc. S/23500, 3046th mtg (31 January 1992), 3; see Stefan Talmon, ‘The Security Council as World Legislature’ (2005) 99(1) American Journal of International Law 175, 180–181; Chesterman, above n 16, 127–128. Chesterman, above n 16, 140.

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States to intervene by force to establish a humanitarian relief operation.31 This time the Council’s resolution stated that it was ‘the magnitude of the human suffering … [which] constitutes a threat to international peace and security’.32 The Secretary-General said the action was ‘a precedent in the history of the United Nations: it decided for the first time to intervene militarily for strictly humanitarian purposes’.33 The mandate later included power to arrest, detain and assist in the prosecution of persons responsible for serious violations of international humanitarian law.34 In 1992 and 1993, the Security Council followed a similar pattern in also determining that the civil wars in Liberia35 and Angola36 were threats to international peace justifying its intervention. In the case of Liberia, there was no reference to transboundary refugee flow in the text of the resolution and only passing reference to it in the discussion of the Council.37 In the case of Angola there was no reference to any transboundary effects in either the resolution or the debate.38 And again, in 1993–1994, the Council authorised the United States to intervene by force to remove the military dictatorship in Haiti, though there were some references to the refugee crisis created by the situation.39 Accordingly, it can be seen that between the resolutions on Iraq in 1991 and the resolutions on Rwanda in 1994, a new norm emerged in the international community. This norm held that purely internal humanitarian crises, including gross human rights abuses, could constitute a threat to international peace 31

un sc Resolution 794 (1992), un Doc S/RES/794, 3145th mtg (3 December 1992); Walter Clarke, ‘Failed Visions and Uncertain Mandates in Somalia’, in Walter Clarke and Jeffrey Herbst (eds), Learning from Somalia: The Lessons of Armed Humanitarian Intervention (Westview Press: Colorado, 1997) 3, 8–9; Chesterman, above n 16, 141–142. 32 un sc Resolution 746 (1992), un Doc. S/RES/746, 3060th mtg (17 March 1992), preamble. 33 See Yearbook of the United Nations 47 (United Nations: New York, 1993), 51. 34 un sc Resolution 814 (2013), un Doc. S/RES/814, 3188th mtg (26 March 2013), [4(d)] and [13]; un sc Resolution 837 (1993), un Doc S/RES/837, 3229th mtg (6 June 1993), [5]. 35 un sc Resolution 788 (1992), un Doc. S/RES/788, 3138th mtg (19 November 1992). 36 un sc Resolution 864 (1993), un Doc. S/RES/864, 3277th mtg (15 September 1993). 37 un sc Provisional Records, un Doc. S/PV.3138 47th sess, 3138th mtg (19 November 1992), 61 (Zimbabwe) and 87 (India). 38 According to Simon Chesterman the concern of the Council appears singularly to have been directed to the humanitarian crisis rather than any transboundary effects of the civil war: Chesterman, above n 16, 137–138. 39 un sc Resolution 940 (1994), un Doc. S/RES/940, 3413th mtg (31 July 1994); see also un sc Resolution 841 (1993), un Doc. S/RES/841, 3238th mtg (16 June 1993); un sc Resolution 873 (1993), un Doc. S/RES/873, 3291st mtg (13 October 1993); and un sc Resolution 875 (1993), un Doc. S/RES/873, 3293rd mtg (16 October 1993).

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without more. By the time of the genocide in Rwanda in 1994, there existed the expectation that the Security Council ought to intervene even if there were no transborder implications or armed conflict. The Council’s initial refusal to intervene was condemned by the Organisation of African Unity and aid agencies that accused the Council of applying different standards to Africa compared with Europe.40 At the same time, the Security Council, by its adoption of the ictr Statute, also promoted the related notion that crimes against humanity can be committed outside of armed conflict and a tribunal created by the Council can prosecute the perpetrators. Can internal atrocities threaten international peace? Many scholars41 and the icrc42 support the view, but others, such as Damrosch,43 say massive and pervasive human rights violations do not necessarily entail threats to peace and security. The matter was taken up by some defendants before the ad hoc Tribunals. The icty Appeals Chamber in Tadić upheld the Security Council’s action by saying it is now ‘settled practice’ that a ‘threat to the peace’ includes internal armed conflict.44 It did not need to consider the validity of Security Council action absent any situation of armed conflict. The ictr in Kanyabashi held the Security Council’s ‘wide margin of discretion’ was not justiciable but, in any event, it noted the large refugee flows to neighbouring countries of Rwanda and the potential for the conflict to spread to other countries with similar demographic compositions.45 Hence, neither Tribunal endorsed the proposition that human rights abuses within a state alone can amount to a threat to international peace. There can be no doubt that the notion of a ‘threat to the peace’ is inherently nebulous. The drafting process suggests it was deliberately left vague to allow the Council a broad – some have argued unlimited – discretion.46 At the 40 41

42 43 44

45 46

Chesterman, above n 16, 145. See Chesterman, above n 16, Chapter 4; J.L. Holzgrefe, ‘The Humanitarian Intervention Debate’ in J.L. Holzgrefe and Robert Keohane, Humanitarian Intervention (Cambridge University Press: Cambridge, 2003) 15, 43. International Committee of the Red Cross (eds), ‘Report on the Protection of War Victims’ (1993) 296 International Review of the Red Cross 391, 427. Lori Damrosch and David Scheffer, Law and Force in the New International Order (Westview Press: Colorado, 1991) 219. Prosecutor v Tadić (Defence Motion for Interlocutory Appeal on Jurisdiction), icty Appeals Chamber, Case No IT-94-1-AR72 (2 October 1995) (‘Tadić – Jurisdiction’), [30], relying on the cases of the Congo in the 1960’s and more recently Somalia and Liberia. Prosecutor v Kanyabashi, (Decision on the Defence Motion on Jurisdiction), ictr Trial Chamber, Case No ICTR-96-15-T (18 June 1997) (‘Kanyabashi – Jurisdiction’), [19]–[22]. Holzgrefe, above n 41, 40–41 and the sources there cited.

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un World Summit Outcomes of September 2005, it was resolved and confirmed by General Assembly Resolution that the international community has a ‘responsibility to protect’ populations from internal atrocities, including crimes against humanity, stating: … we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter vii … should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.47 This position confirmed prior practice of the Security Council acting under Chapter vii. The Security Council has invoked Chapter vii in respect of the following internal atrocities48 since 1995: • Sierra Leone;49 • the Central African Republic (car);50 • Angola;51 47

un General Assembly World Summit Outcome (2005), un Doc. A/RES/60/1, 60th sess, 8th plen mtg (16 September 2005) (‘2005 World Summit Outcome’), Agenda Items 46 and 120, [139]. 48 Many of the cases listed as ‘internal atrocities’ are often at least partly internationalised by implicating regional instability. See for example the involvement of Rwanda and Uganda­ in the conflict in the drc (un sc Resolution 1304 (2000), un Doc. S/RES/1304, 4159th mtg (16 June 2000)), the unstable region between Chad, the Central African Republic and Sudan (un sc Resolution 1778 (2007), un Doc. S/RES/1778, 5748th mtg (25 September 2007) and un sc Resolution 1834 (2008), un Doc. S/RES/1834, 5981st mtg (24 September 2008)), and the insecurity between Liberia and Sierra Leone (see un sc Resolution 1688 (2006), un Doc. S/RES/1688, 5467th mtg (16 June 2006). This is particularly so in the threat to peace and security in the Great Lakes Region in Africa (encompassing the drc, Rwanda, Angola, Burundi and bordering on Uganda). In so declaring, the Council noted ‘the magnitude of the present humanitarian crisis’ in un sc Resolution 1078 (1996), un Doc. S/RES/1078, 3710th mtg (9 November 1996). The Council noted that it was ‘[p]articularly concerned at the humanitarian situation and the large-scale movements of refugees and internally displaced persons’. See also un sc Resolution 1080 (1996), un Doc. S/RES/1080, 3713th mtg (15 November 1996); un sc Resolution 1804 (2008), un Doc. S/RES/1804, 5852nd mtg (13 March 2008). 49 See un sc Resolution 1132 (1997), un Doc. S/RES/1132, 3822nd mtg (8 October 1997). 50 See un sc Resolution 1136 (1997), un Doc. S/RES/1136, 3829th mtg (6 November 2007). 51 See un sc Resolution 1127 (1997), un Doc. S/RES/1127, 3814th mtg (28 August 1997).

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• Kosovo;52 • the drc;53 • East Timor;54 • Burundi;55 • Somalia;56 • Côte d’Ivoire;57 • Liberia;58 • Sudan;59 • Haiti;60 • South Sudan;61 • Libya;62 • Mali;63 • Syria;64 and • Yemen.65 The period between 1991 and 2005 saw a revision of the way in which the international community viewed so-called humanitarian interventions when it adopted the concept of a ‘responsibility to protect’ or ‘R2P’.66 As originally conceived, humanitarian intervention involved the right of a state or group of states to intervene by force in the affairs of another state. The final text adopted at the World Summit Outcome reached a compromise on a number of fronts to avoid the controversies faced by the previous doctrine of humanitarian intervention. First, the doctrine expressly tied intervention to the authority of the Security Council, confirming that the Security Council may intervene where a

52 See un sc Resolution 1199 (1998), un Doc. S/RES/1199, 3930th mtg (23 September 1998). 53 See un sc Resolution 2360 (2017), un Doc. S/RES/2360, 7981st mtg (21 June 2017). 54 See un sc Resolution 1272 (1999), un Doc. S/RES/1272, 4057th mtg (25 October 1999). 55 See un sc Resolution 1545 (2004), un Doc. S/RES/1545, 4975th mtg (21 May 2004). 56 See un sc Resolution 1474 (2003), un Doc. S/RES/1474, 4747th mtg (8 April 2003). 57 See un sc Resolution 1464 (2003), un Doc. S/RES/1464, 4700th mtg (4 February 2003). 58 See un sc Resolution 1478 (2003), un Doc. S/RES/1478, 4751st mtg (6 May 2003). 59 See un sc Resolution 1556 (2004), un Doc. S/RES/1556, 5015th mtg (30 July 2004). 60 See un sc Resolution 1529 (2004), un Doc. S/RES1529, 4919th mtg (29 February 2004). 61 See un sc Resolution 1996 (2011), un Doc. S/RES/1966, 6576th mtg (8 July 2011). 62 See un sc Resolution 1973 (2011), un Doc. S/RES/1973, 6498th mtg (17 March 2011). 63 See un sc Resolution 2085 (2012), un Doc. S/RES/2085, 6898th mtg (19 December 2012). 64 See un sc Resolution 2118 (2013), un Doc. S/RES/2118, 7038th mtg (27 September 2013). 65 See un sc Resolution 2342 (2017), un Doc. S/RES/2342, 7889th mtg (23 February 2017). 66 2005 World Summit Outcome, above n 47, [138]–[139].

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state fails in its duty.67 Secondly, the doctrine was expressly limited to the most serious crimes – genocide, war crimes, ethnic cleansing and crimes against humanity. Thirdly, the right to exercise its powers under Chapter vii could only arise where states had ‘manifestly failed’ to protect their populations.68 The international community’s acceptance of the R2P doctrine has indicated its desire to provide a clearer normative framework around international interventions in internal atrocities. This framework demonstrates a resounding reluctance for humanitarian intervention except with the Security Council’s authorisation, and only in the case of the most serious crimes where there has been a manifest failure by the territorial state to protect its population. The Security Council subsequently made express reference to the ‘responsibility to protect’ in resolutions on Darfur (2006).69 The doctrine was also invoked in the case of Libya in 201170 and, in a related measure, the Security Council referred the situation to the icc as it regarded the attacks on the civilian population as a crime against humanity.71 Since the Libyan intervention in 2011, the Security Council has specifically referenced the state’s obligation to protect its population, citizens or civilians in Côte d’Ivoire,72 South Sudan,73 Yemen,74 67 68 69 70 71 72

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Alex Bellamy, ‘Whither the Responsibility to Protect? Humanitarian Intervention and the 2005 World Summit’ (2006) 20(2) Ethics & International Affairs 143, 155. Luke Glanville, ‘The Responsibility to Protect Beyond Borders’ (2012) 12(1) Human Rights Law Review 1, 12–13. un sc Resolution 1706 (2006), un Doc. S/RES/1706, 5519th mtg (31 August 2006). See also un sc Resolution 1894 (2009), un Doc. S/RES/1894, 6216th mtg (11 November 2009). un sc Resolution 1973 (2011), un Doc. S/RES/1973, 6498th mtg (17 March 2011). un sc Resolution 1970 (2011), un Doc. S/RES/1970, 6491st mtg (26 February 2011). In 2011, 2012, 2013, 2014, 2015 and 2016: see un sc Resolution 2062 (2012), un Doc. S/ RES/2062, 6817th mtg (26 July 2012); un sc Resolution 1975 (2011), un Doc. S/RES/1975, 6508th mtg (30 March 2011); un sc Resolution 2000 (2011), un Doc. S/RES/2000, 6591st mtg (27 July 2011); un sc Resolution 2112 (2013), un Doc. S/RES/2112, 7012th mtg (30 July 2013); un sc Resolution 2116 (2013), un Doc. S/RES/2116, 7033rd mtg (18 September 2013); un sc Resolution 2162 (2014), un Doc. S/RES/2162, 7207th mtg (25 June 2014); un sc Resolution 2226 (2015), un Doc. S/RES/2226, 7471st mtg (25 June 2015); un sc Resolution 2239 (2015), un Doc. S/RES/2239, 7525th mtg (17 September 2015); and un sc Resolution 2284 (2016), un Doc. S/RES/2284, 7681st mtg (28 April 2016). In 2011, 2013, 2014, 2015, 2016 and 2017: see un sc Resolution 1996 (2011), un Doc. S/RES/1996, 6575th mtg (8 July 2011); un sc Resolution 2109 (2013), un Doc. S/RES/2109, 6998th mtg (11 July 2013); un sc Resolution 2155 (2014), un Doc. S/RES/2155, 7182nd mtg (27 May 2014); un sc Resolution 2241 (2015), un Doc. S/RES/2241, 7532nd mtg (9 October 2015); un sc Resolution 2327 (2016), un Doc. S/RES/2327, 7840th mtg (16 December 2016); and un sc Resolution 2363 (2017), un Doc. S/RES/2363, 7989th mtg (29 June 2017). In 2011: see un sc Resolution 2014 (2011), un Doc. S/RES/2014, 6634th mtg (21 October 2011).

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Burundi,75 Liberia,76 Libya,77 Mali,78 Somalia,79 the Central African Republic,80 Syria,81 and the drc.82 In the result, a solid legal foundation exists for holding that the Security Council may intervene under Chapter vii, including by force, in the face of 75

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In 2013, 2014 and 2016: see un sc Resolution 2090 (2013), un Doc. S/RES/2090, 6918th mtg (13 February 2013); un sc Resolution 2137 (2014), un Doc. S/RES/2137, 7110th mtg (13 February 2014); and un sc Resolution 2303 (2016), un Doc. S/RES/2302, 7752nd mtg (29 July 2016). In 2013, 2014, 2015 and 2016: see un sc Resolution 2116 (2013), un Doc. S/RES/2116, 7033rd mtg (18 September 2013); un sc Resolution 2190 (2014), un Doc. S/RES/2190, 7340th mtg (15 December 2014); un sc Resolution 2239 (2015), un Doc. S/RES/2239, 7525th mtg (17 September 2015); and un sc Resolution 2333 (2016), un Doc. S/RES/2333, 7851st mtg (23 December 2016). In 2011, 2012, 2013 and 2014: see un sc Resolution 2016 (2011), un Doc. S/RES/2016, 6640th mtg (27 October 2011); un sc Resolution 2040 (2012), un Doc. S/RES/2040, 6733rd mtg (12 March 2012); un sc Resolution 2095 (2013), un Doc. S/RES/2095, 6934th mtg (12 March 2013); and un sc Resolution 2144 (2014), un Doc. S/RES/2144, 7136th mtg (14 March 2014). In 2012, 2013, 2014, 2015, 2016 and 2017: see un sc Resolution 2085 (2012), un Doc. S/ RES/2085, 6898th mtg (19 December 2012); un sc Resolution 2100 (2013), un Doc. S/ RES/2100, 6952nd mtg (25 April 2013); un sc Resolution 2164 (2014), un Doc. S/RES/2164, 7210th mtg (25 June 2014); un sc Resolution 2227 (2015), un Doc. S/RES/2227, 7474th mtg (29 June 2015); un sc Resolution 2295 (2016), un Doc. S/RES/2295, 7727th mtg (29 June 2016); and un sc Resolution 2364 (2017), un Doc. S/RES/2364, 7991st mtg (29 June 2017). In 2013, 2015, 2016 and 2017: see un sc Resolution 2093 (2013), un Doc. S/RES/2093, 6929th mtg (6 March 2013); un sc Resolution 2244 (2015), un Doc. S/RES/2244, 7541st mtg (23 October­ 2015); un sc Resolution 2317 (2016), un Doc. S/RES/2317, 7807th mtg (10 November 2016); and un sc Resolution 2372 (2017), un Doc. S/RES/2372, 8035th mtg (30 August 2017). In 2011, 2013, 2014, 2015, 2016 and 2017: see un sc Resolution 2031 (2011), un Doc. S/RES/2031, 6696th mtg (21 December 2011); un sc Resolution 2121 (2013), un Doc. S/RES/2121, 7042nd mtg (10 October 2013); un sc Resolution 2127 (2013), un Doc. S/RES/2127, 7072nd mtg (5 December 2013); un sc Resolution 2134, un Doc. S/RES 2134, 7103rd mtg (28 January 2014); un sc Resolution 2196 (2015), un Doc. S/RES/2196, 7366th mtg (22 January 2015); un sc Resolution 2301 (2016), un Doc. S/RES/2301, 7747th mtg (26 July 2016); and un sc Resolution 2339 (2017), un Doc. S/RES/2339, 7872nd mtg (27 January 2017). In 2014, 2015 and 2016: see un sc Resolution 2165 (2014), un Doc. S/RES/2165, 7216th mtg (14 July 2014); un sc Resolution 2258 (2015), un Doc. S/RES/2258, 7595th mtg (22 December 2015); and un sc Resolution 2332 (2016), un Doc. S/RES/2332, 7849th mtg (21 December 2016). In 2012, 2013, 2014, 2015, 2016 and 2017: see un sc Resolution 2078 (2012), un Doc. S/RES/2078, 6873rd mtg (28 November 2012); un sc Resolution 2098 (2013), un Doc. S/RES/2098, 6943rd mtg (28 March 2013); un sc Resolution 2147 (2014), un Doc. S/RES/2147, 7150th mtg (28 March 2014); un sc Resolution 2211 (2015), un Doc. S/RES/2211, 7415th mtg (26 March 2015); un sc Resolution 2293 (2016), un Doc. S/RES/2293, 7724th mtg (23 June 2016); and un sc Resolution 2360 (2017), un Doc. S/RES/2360, 7981st mtg (21 June 2017).

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a purely internal atrocity. Such steps may include establishing a Tribunal to prosecute individual perpetrators of crimes against humanity, irrespective of the views of the state concerned, local law, superior orders or the status of the defendant. It may also, for acts since 1 July 2002, refer the ‘situation’ to the icc for prosecution. This is a radical new order of things for the un. It represents a fundamental shift in the field of international human rights from purely standard-setting to a new hoped-for age of enforcement. It stems from the notion that a purely internal atrocity, even outside of armed conflict, can constitute a threat to international peace and security. This in turn supplied a new rule of jurisdiction which holds that individuals, including heads of state, are accountable before an international tribunal for mistreating their own people even in times of peace. This was a very radical idea that was specifically rejected by the drafters of the London Charter for the Nuremberg Tribunal. This means that if the Security Council finds that an atrocity, such as a widespread or systematic attack upon a civilian population, constitutes a threat to international peace, it can establish an international tribunal, irrespective of state opposition, to prosecute those responsible, including for the newly defined offences of crimes against humanity. Accordingly, the key historical significance of the modern contextual element of crimes against humanity is that it emerged in the 1990’s to replace the prior contextual element of crimes against humanity – the war nexus. In 1998, states were reaffirming the new norm of the Security Council that an internal atrocity of the type seen in the former Yugoslavia and Rwanda was punishable on the international stage because it was both a crime against humanity and a threat to international peace. The new threshold requirement of a crime against humanity in Article 7 of the icc Statute is best viewed as the codification of the modern consensus for when criminal conduct, even if committed wholly within a state’s borders and in times of peace, will ‘threaten the peace, security and well-being of the world’ and, hence, be an international crime. The ‘chapeau’ requirement for crimes against humanity supplies the necessary ‘contextual’ element of the offence for converting a simple murder into a threat to international peace of sufficient seriousness as to justify intervention at the international level, including by the Security Council under Chapter vii of the un Charter. This point is often passed over by the tribunals and commentators by reason of a desire to find that the modern definition was the true definition from the crime’s inception. This view, however, is a revision of the history of the crime as a matter of international customary law. The Trial Chamber in Tadić stated: ‘[a]s the first international tribunal to consider charges of crimes against humanity

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alleged to have occurred after the Second World War, the International Tribunal is not bound by past doctrine but must apply customary international law as it stood at the time of the offences.’83 This led the Tribunal to conclude that the modern threshold test for a crime against humanity by 1 January 1991 (the commencement date of the icty’s jurisdiction over crimes against humanity) was that of a ‘widespread or systematic attack’ against a ‘targeted population’ pursuant to a state, organisational or group policy rather than the war nexus. In discerning the customary law elements of crimes against humanity without a war nexus, the Trial Chamber in Tadić resorted to opinio juris and subsidiary sources in a way which is not entirely persuasive.84 The Trial Chamber relied heavily upon the report of the unwcc and the work of the ilc (which at best is a subsidiary source),85 rather than the words in either Article 6(c) of the London Charter or Article 5 of the icty Statute to arrive at the test of a ‘widespread or systematic attack’. As the Trial Chamber in Semanza noted, the case-law of the Tribunals did not ‘fully articulate’ the basis of state custom in support of the ‘widespread or systematic’ test and the Trial Chamber in Tadić had reviewed only the ‘limited practice’ on this issue.86 Despite the slender basis for the conclusion that the modern test for a crime against humanity without a war nexus was in existence as a matter of custom in 1991, courts and tribunals have applied such a definition as a matter of customary law to prosecutions for crimes against humanity, stricto sensu, in Estonia,87 83 (icty) Prosecutor v Tadić (Trial Chamber Judgment), Case No IT-94-1-T (7 May 1997) (‘Tadić – Trial’), [654]. 84 See a full critique of the Trial decision in Chapter 4, Section 3.2. 85 Members are appointed to the ilc in their private capacity and, when codifying existing principles, their work is often afforded great weight as the views of eminent experts in the field. For the reasons discussed in Chapter 3, Section 3.3 there are difficulties in relying upon the ilc Draft Codes as evidence of the codification of the customary law definition of crimes against humanity at the time of the Draft Codes. See also (icty) Hadžihasanović – Jurisdiction, above n 5, Separate and Partially Dissenting Opinion of Judge Hunt, [26] where Judge Hunt was reluctant to place too much weight on the work of the ilc as evidencing customary norms and his remarks to similar effect in Vasiljević – Trial, above n 5, [200]. 86 (ictr) Semanza – Trial, above n 5, [328]. 87 Cassese argues that these crimes of the Soviet authorities in Estonia were crimes against humanity under Article 6(c) of the London Charter because they were carried out in connection with the Soviet Union’s aggression and illegal occupation which would amount to a crime against the peace. The conviction of von Schirach at Nuremberg (see Chapter 2, Sections 4 and 5.1) would support this view: see Antonio Cassese, ‘Balancing the Prosecution of Crimes against Humanity and Non-Retroactivity of Criminal Law: The Kolk and Kislyiy v Estonia Case before the echr’ (2006) 4 Journal of International Criminal Justice 410. This of course means that Stalin should also have been prosecuted at Nuremberg.

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Latvia88 and Romania89 for events in 1940s and 1950s, in Argentina,90 Chile,91 Cambodia92 and Spain93 for events in the 1970’s, and in Senegal,94 Iraq95 and Peru96 for events in the 1980’s and 1990’s. It is not surprising that courts are today applying the international offence of ‘crimes against humanity’ without the war nexus to events back to 1946. After the Nuremberg Trials, the definition of crimes against humanity was taken as the codification of existing law rather than the creation of new offences by the courts which prosecuted Nazi war criminals thereafter.97 The same is happening now with the definition in Article 7 of the icc Statute. Despite the fact that the offence only came into operation on 1 July 2002, and cannot be applied retrospectively, it is being seen by many as the codification of an existing offence that is being applied to events stretching further and further back in time. As discussed in Chapter 4, the modern definition (a widespread or systematic attack directed against any civilian population) in fact did not appear in any international source until the Secretary-General’s Report on the icty Statute,98 though the definition in the 1991 ilc Draft Code does contain similar elements.99 But even after the 1991 Draft Code, there was significant disagreement expressed by states as to what the contextual requirements for crimes against humanity were. As discussed in Chapter 3, prior to the ictr Statute, the requirement that there be a ‘widespread or systematic attack against any civilian population’ – as opposed to a connection with an armed conflict – was not well grounded in state practice. The historical reality is therefore at odds with the Tadić decision. As Schabas states, the Tadić ruling that crimes against humanity can take place during 88 89 90 91 92

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See Chapter 7, Section 5.3. See Chapter 7, Section 5.5. See Chapter 7, Section 4.1. See Chapter 7, Section 4.2. See Chapter 5, Section 3.3 (particularly, Section 3.3.3(b) and Decision on Co-Prosecutors’ Request to Exclude Armed Conflict Nexus Requirement From the Definition of Crimes Against Humanity, Case File No. 002/19-09-2007/ECCC/TC (26 October 2011), [33]). See Chapter 7, Section 3.5. See Chapter 5, Section 3.7. See Chapter 5, Section 3.5. See Chapter 7, Section 4.4. See Chapter 3. See Chapter 4, Section 4.1 and Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, un Doc. S/25704/Add 1 (25 May 1993), [48]. See also discussion in Chapter 3, Section 3.3 about the 1991 ilc Draft Code of Offences (referring to crimes ‘in a systematic manner or on a mass scale’. See Chapter 3, Section 3.3.2(iii).

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peacetime without a nexus to war or aggression ‘moved the law forward dramatically’.100 The historical reality was accurately put by Lord Slynn in Pinochet when his Lordship remarked that: until Prosecutor v Tadić after years of discussion and perhaps even later there was a feeling that crimes against humanity were committed only in connection with armed conflict even if that did not have to be international armed conflict.101 Despite the Tadić ruling being widely followed, the most persuasive conclusion is that at some time between 1994 (with the adoption of the ictr Statute) or 1997 (when the Tadić Trial decision was handed down) and 1998 (when Article 7 of the icc Statute was adopted), the war nexus as the contextual requirement or ‘international element’ under customary law was replaced with the requirement that there be a ‘widespread or systematic attack against any civilian population’. McCormack writes that the abandonment of the war nexus in Article 7 represents ‘the affirmation of a new customary international norm’.102 2.4 Conclusion – A New Definition for a New World Order This conclusion has implications for how the new test for crimes against humanity is to be understood. It places the new definition in its correct historical context, which is as part of the new world order for when the Security Council can intervene in the case of internal atrocities. The modern definition of crimes against humanity focuses on the concept of ‘a widespread or systematic attack directed against any civilian population’. One can and should approach the concept as an attempt by the international community to encapsulate the type of attack that can amount to a threat to international peace and, hence, justify an international response, either by the Security Council or the icc or by both. Such an understanding is at once both true to the crime’s historical origins as well as its modern utility as an international crime – namely, a crime justifying,

100 William Schabas, The Law of the Ad Hoc Tribunals (Cambridge University Press: Cambridge, 2006), 23. 101 (United Kingdom) R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte [2000] 1 ac 61 (‘Pinochet No 1’), 81. 102 Timothy McCormack, ‘Crimes against Humanity’ in Dominic McGoldrick, Peter Rowe and Eric Donnelly (eds), The Permanent International Criminal Court: Legal and Policy Issues (Hart Publishing: Oxford, 2004) 179, 185 (see Chapter 5).

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if not requiring, an international response. This is not to say that a crime against humanity and a ‘threat to peace and security’ are identical – rather, international practice suggests that the modern concept of a crime against humanity arises because the attack can be regarded as a threat to international peace which can justify Security Council intervention. This in turn suggests that the type of atrocities or attacks which have led to the Security Council invoking its Chapter vii powers can, in the case of doubt in the current jurisprudence, act as a guide to the kinds of factors that render an ‘attack’, a crime against humanity. At a purely rational or theoretical level, one can criticise such a link. Why should a link be made between the attacks which have warranted humanitarian interventions by the Security Council under Chapter vii and the threshold requirement of a ‘crime against humanity’? Clearly enough they involve different concepts. As David Luban remarks, the question of whether to intervene militarily is both conceptually and practically different from the question of whether to charge someone with crimes against humanity and try him.103 There are number of reasons why it is not as simple as this. First, the right of intervention by the Security Council based upon a threat to international peace does not necessarily mean military intervention. The intervention may be simply the referral of the case to the icc or the establishment of a new international tribunal. The key point is that such steps constitute interventions in what would otherwise be “matters which are essentially within the domestic jurisdiction of any state” (see Article 2(7) of the un Charter). Secondly, the history of the emergence of the new international definition of crimes against humanity suggests that the assumption being made by states was (and still is) that if the atrocity amounts to a ‘crime against humanity’ then the threshold of the right to intervene by the Security Council had necessarily been crossed. Hence, something should be done at the international level to prevent such crimes and prosecute those responsible. In other words, the descriptor, a ‘crime against humanity’, in the minds of many,104 was, par 103 Luban, above n 3, 108. 104 As France said at the Security Council on 5 April 1991 in relation to the proposed resolution to determine that the situation in Kuwait constituted a threat to international peace and security, ‘[v]iolations of human rights such as those now being observed become a matter of international interest when they take on such proportions that they assume the dimensions of a crime against humanity’ (un sc Provisional Records, 46th sess, 2982nd mtg, 22–23, un Doc S/PV.2982 (5 April 1991), 53).

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example,­an atrocity that was serious enough as to amount to a threat to international peace under the new world order. As the Preamble to the icc Statute put it: “Recognizing that such grave crimes threaten the peace, security and well-being of the world”. Thirdly, this logic correctly invokes the Nuremberg Precedent, which held that Nazi leaders could be held accountable in an international tribunal without Germany’s consent for crimes committed against its own citizens, if the crimes were ‘against humanity’ and threatened international peace. At that time, this meant by reason of the ‘war nexus’. This was broadened in in the 1990’s. It would have seemed a strange idea in those formative times of the 1990’s that one could have a crime against humanity, but of such inconsequence that there was no threat to international peace enabling any Security Council response. The two were seen as related. Fourthly, as explored in Chapter 1, the doctrine of humanitarian intervention and the concept of crimes against humanity share a common intellectual heritage. The essence of the concept of crimes against humanity is not just to reflect what the international community regards as criminal conduct (e.g., murder), but it is to state that conduct which is so serious and of such concern requires (or permits) an international jurisdiction to try the perpetrators, irrespective of local law or opposition from the territorial state concerned. It was this tradition which was invoked at Nuremberg when the imt convicted German nationals, such as Striecher and Schirach, for committing crimes against humanity, including against German nationals. The concept of crimes against humanity is grounded in the notion of intrusive international trials which threaten state sovereignty in the most direct way, such as the trial of a head of state, even a serving head of state. This is why states are rightly suspicious of crimes against humanity being given too broad a meaning, including in particular, under Article 7 of the icc Statute. The threshold requirement under Chapter vii of the un Charter exists out of deference to state sovereignty. The threshold requirement under Article 7 also exists as a rule of political prudence to afford suspects some measure of protection from an excessive international jurisdiction being invoked by the icc, including by reference from the Security Council in the case of non-State Parties. States and their nationals are entitled to have some scepticism about the potential for abusive intrusion by such bodies. Fifthly, the link to international peace and security can be linked even back to the rationale enunciated in Tadić. When the Trial Chamber in Tadić attempted to define the crimes against humanity without a nexus to armed conflict, it went back to the statement of the United Nations War Crimes Commission:

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Isolated offences did not fall within the notion of crimes against humanity. As a rule systematic mass action, particularly if it was authoritative, was necessary to transform a common crime, punishable only under municipal law, into a crime against humanity, which thus became also the concern of international law. Only crimes which either by their magnitude and savagery or by their large number or by the fact that a similar pattern was applied at different times and places, endangered the international community or shocked the conscience of mankind, warranted intervention by States other than that on whose territory the crimes had been committed, or whose subjects had become their victims.105 While (as noted in Chapter 2) this statement did not represent the concept of crimes against humanity as understood in the London Charter, it did quickly represent what many commentators believed ought to have been the meaning of crimes against humanity. Widely quoted since Nuremberg, it has come to represent the defining statement of what a crime against humanity is as a matter of customary international law since 1991. Having been adopted by the Trial Chamber in Tadić, which in turn was widely used as a source for the crime’s customary law definition at the Rome Conference, it should inform the interpretation of Article 7 of the icc Statute and as a matter of customary law.106 This statement not only adds a further basis to support the link between crimes against humanity and threats to international peace and security but also provides guidance on some of the key issues involved in defining the crime. While the statement raises the complex issues of scale, seriousness, organisation and the involvement of a state or de facto power without precisely resolving what mix of these factors is sufficient, some further remarks may be made as to how this statement may inform debate on the meaning of a crime against humanity. First, it links a crime against humanity with threats to international peace and security and, in particular, with those atrocities which have historically warranted intervention by foreign states. At the time, the authors likely had in mind intervention by European Powers, particularly on behalf of Christians, 105 unwcc, History of The United Nations War Commission (1948) 179, quoted in (icty) Tadić – Trial, above n 83, [644]. 106 Rodney Dixon, ‘Article 7 Crimes Against Humanity: Para 1 “Chapeau”’ in Otto Triffterer (ed) Commentary on the Rome Statute of the International Criminal Court (Nomos Verlagsgesellschaft: Baden-Baden, 1999) 117, 123 (this statement is ‘without dispute, the essential feature of crimes against humanity’ and ‘should guide the interpretation of the element of these crimes’).

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in the Ottoman Empire (discussed in Chapter 1). The thesis which links crime against humanity to attacks which warrant international intervention now, has a renewed application in light of the many Security Council interventions under Chapter vii in response to atrocities since 1991, such as in the former Yugoslavia and Rwanda. In other words, the modern test (a widespread or systematic attack directed against any civilian population) should not be interpreted so as to apply to attacks which could not have, as a matter of state practice, justified some Security Council intervention under Chapter vii, such as by referring the ‘attack’ to the icc. Secondly, the statement appears to suggest that, whilst the general rule is that systematic mass action which is authoritative is necessary to constitute a crime against humanity, this is not always the case. Conditions of scale, savagery, organisation and the extent to which the action is authoritative are neither true alternatives nor do all these conditions need to be satisfied. They are all factors which are relevant in assessing whether the attack has reached the requisite level so as to shock the conscience of humanity, threaten international peace and security and warrant intervention by the international community. The statement appears to suggest that the greater the scale and savagery then the conditions of organisation and links to authority may be less important and similarly, the more organised and authoritative the attack, then the requirement of magnitude may be less demanding. These principles appear to underlie the compromise definition in Article 7. It is hardly surprising that the precise limits of this crime remain elusive because the threshold requirement exists out of deference to the concept of non-interference in the internal affairs of states. From the moment Grotius in the seventeenth century asserted a right of foreign states to prosecute for crimes against the law of nations, objection has been made against the concept of crimes against humanity on the ground that it may lead to pre-textual and unjustified interference in the affairs of other states. If the threshold is met, then it is accepted under international law that any plea based upon the principle of non-interference in the internal affairs of a state can be swept aside by the Security Council acting under Chapter vii. This includes by force, if necessary, as well as by the establishment of an ad hoc Tribunal to try the alleged perpetrators of atrocities. In the result, for the purpose of understanding the proper scope of the modern definition of crimes against humanity, the above analysis leads to the conclusion that an attack, to amount to a crime against humanity, must so shock the conscience of humanity that, as judged by contemporary international custom and practice, it constitutes a threat to international peace and security which can justify Security Council intervention. This analysis is probably more

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empirical than theoretical as it takes guidance from the practice of states in respect of actual historical events. With this rationale in mind, one can return to the three questions mentioned in the introduction. First, can a systematic or widespread attack be directed­against a ‘population’ without reaching a minimum level of scale or seriousness? Secondly, can a widespread or systematic attack constitute a crime against humanity in the absence of a state or organizational policy? Thirdly, what type of non-state ‘organisation’ or group can be the author of either such a policy or such an attack? It is suggested that these questions can be answered by bearing in mind two key principles: the humanity principle and the impunity principle. Each is addressed in turn. 3

The Humanity Principle

3.1 Is There a Requirement of a Minimum Scale or Seriousness? The humanity principle addresses two principal uncertainties emerging from the ‘widespread or systematic attack’ formula. First, to what extent must the attack pass some minimum threshold of scale and/or seriousness, given that an attack need only be widespread ‘or’ systematic? Secondly, what is required before an attack is against a ‘population’, as opposed to the crimes being merely limited, isolated or random acts of violence more associated with ordinary domestic offences?107 The approach of the ad hoc Tribunals, as explained by the Appeals Chamber decision in Kunarac, has been to emphasise that there need only be either a ‘widespread’ or a ‘systematic’ attack against any civilian population, suggesting that there is no requirement of scale as such under the second limb.108 This approach has been generally followed by both the international and internationalised tribunals,109 as well as domestic courts.110 This approach is supported by Professor Luban, who has argued that provided an attack is an instance 107 As noted above, the finding in (icty) Prosecutor v Kunarac, Kovac and Vukovic (Appeals Chamber Judgment), Case No IT-96-23 & IT-96-23 (12 June 2002) (‘Kunarac – Appeal’), [90] appears to rely on the passage in Tadić – Trial as well as Prosecutor v Kunarac, Kovac and Vukovic (Trial Chamber Judgment), Case No IT-96-23 & IT-96-23 (22 February 2001) (‘Kunarac – Trial’) (which relied upon Tadić – Trial). 108 See Chapter 5, Sections 2.3 and 2.4. 109 See Chapter 5, Section 3.8. 110 See Chapter 7, Section 8.2.

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of politics gone cancerous – namely, that a state or state-like entity is directing violence against a civilian population – even ‘small-scale’ atrocities may fall within the concept of crimes against humanity.111 For Luban, the scale of the atrocities goes more to a political and separate question of humanitarian intervention, where ‘political prudence [would] make outsiders reluctant to intervene against any but large-scale atrocities’.112 At one extreme, therefore, some commentators have speculated that the assassination of a single political figure, if it is intended to threaten a ‘civilian population’, may be a ‘crime against humanity’. Ratner and Abrams speculate that the killing of Hungarian leader Imre Nagy in 1956 by the Soviet authorities may suffice as a crime against humanity if it was intended to threaten the entire ‘civilian population’.113 Similarly, the assassination of Magistrates Falcone and Borsellino by the Sicilian mafia in 1992 could also suffice on this basis (leaving aside the question of a state policy discussed below). This suggests the requirement of scale is subjective. While the suggestion that no objective minimum scale is required may encapsulate a morally desirabile position where states must never attack their own civilians, such a view is difficult to accept either as a matter of customary law or principle. The better view is that customary international law requires that an attack must reach a minimum level of scale or seriousness before it can constitute a crime against humanity. This is for six main reasons. First, this conclusion is consistent with the requirement that an attack be directed against a ‘population’, which suggests some minimum requirement of scale. This is particularly so when one considers the test of ‘an attack against any civilian population’ in its proper historical context, as discussed above. This is similar to the implicit scale requirement in respect of the offence of genocide.114 In Chapter 2, it was argued that crimes against humanity at Nuremberg did not necessarily come with a requirement of scale; only a nexus to war.115 111 Luban, above, n 3, 107–108. 112 Luban, above, n 3, 107–108. 113 Steven Ratner and Jason Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (2nd ed, Oxford University Press: Oxford, 2001) 61. 114 (icc) Prosecutor v Omar Hassan Ahmad Al Bashir (Decision on the Prosecution’s Application for Warrant of Arrest against Omar Hassan Ahmad Al Bashir), Pre-Trial Chamber i, ICC-02/05/01/09 (4 March 2009) (‘Al Bashir – Arrest Warrant Decision’), [125] (the conduct must “present [ ] a concrete threat to the existence of the targeted group, or targeted thereof […] as opposed to just being [a threat that is] latent or hypothetical”, or reach a sufficient scale). See also (icj) Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia), Judgment of 3 February 2015, [2015] icj Rep 3, 58. 115 See Chapter 2, Section 5.1 and 5.2.

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The question then becomes whether that has remained the case in the absence of the war nexus. At the time of Nuremberg, the unwcc suggested that the word ‘population’ in the London Charter implied certain additional requirements such as systematic governmental action and scale in order to distinguish the crime from war crimes or domestic crimes beyond the war nexus.116 This was picked up by the icty Trial Chamber in Tadić, when it adopted the unwcc report as reflecting customary law from 1991. It held that the ‘population’ element is ‘intended to imply crimes of a collective nature and thus excludes single or isolated acts which, although possibly constituting war crimes or crimes against national penal legislation, do not rise to the level of crimes against humanity’.117 This view also conforms with the practice leading up to and including the Rome Conference discussed in Chapter 4. Leading up to the icc Statute, all states involved in the General Assembly’s Preparatory Committee to the icc indicated their ‘general support’ for the requirement that crimes against humanity be widespread or systematic ‘to indicate the scale and magnitude of the offences’.118 Similarly, the discussion at the Rome Conference surrounding the inclusion of the requirement that there be ‘multiple commission of acts’ appeared to address this very point.119 Accordingly, prior to the most recent jurisprudence of the ad hoc Tribunals, following Kunarac, many writers120 and court decisions121 asserted that a crime 116 Chapter 2, Section 5; unwcc, History of The United Nations War Commission (hmso: London, 1948) 193: ‘[T]he word population appears to indicate that a larger body of victims is visualized and that single and isolated acts against individuals may be considered to fall outside the concept’. 117 (icty) Tadić – Trial, above n 83, [644]. 118 William Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press: Oxford, 2010), 141. See also discussion in Chapter 4, Section 4.1. 119 See Chapter 4, Section 4.2 and 4.3.2. 120 See, for example: Schwelb, above n 12, 191; unwcc, above n 116, 193. 121 See, for example: (Nuremberg) United States v Altstötter et al., reprinted in 3 Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No 10, 954 (1951) (‘The Justice Case’), 984–985 and 1114; (Australia) Polyukhovich v The Commonwealth (1991) 172 clr 501, 669; (Israel) Attorney-General of the State of Israel v Yehezkel Ben Alish Enigster, Tel Aviv District Court (4 January 1952), 18 ilr 540 (1951), 541; Attorney-General v Adolph Eichmann, Criminal Appeal 336/61, Supreme Court of Israel (29 May 1962) (‘Eichmann’), 291–304; In re Albrecht (No 2) (1955) 16 ilr 396, 398; (ictr) Prosecutor v Bagilishema (Trial Chamber Judgment), Case No ICTR-95-1A-T (7 June 2001) (‘Bagilishema – Trial’), [78]; (spet) Public Prosecutor v Marques (Judgment), Special Panel Case No 09/2000 (11 December 2001) (‘Los Palos – Judgment’), [638]. It is important to not also that the Chamber in Bagilishema itself doubted the existence of a policy requirement as such.

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against humanity without a nexus to war does require an attack of a certain scale and seriousness and that this can be seen by the need for the crimes to be against a ‘population’.122 This view was repeated by the icty Appeals Chamber in Erdemović123 and the Trial Chamber in Kupreškić.124 Even after the decision in Kunarac, the Supreme Court of Canada held in 2005:125 The term “population” suggests that the attack is directed against a relatively large group of people who share distinctive features which identify them as targets of the attack. A prototypical example of a civilian population would be a particular national, ethnic or religious group. Thus, for instance, the target populations in the former Yugoslavia were identifiable on ethnic and religious grounds… The Tutsi and moderate Hutu, two groups that were ethnically and politically identifiable, were a civilian population as this term is understood in customary international law.126 Similarly, in Limaj, the icty Trial Chamber stated that ‘the requirement that a “civilian population” be the target of an attack may be seen as another way of emphasising the requirement that the attack be of large scale or exhibit systematic features’.127 Accordingly, the cases appear to accept that the notion of an ‘attack’ against a ‘population’ does require or at least suggest some minimal level of scale and seriousness.128 Secondly, this conclusion is supported by the actual situations which have involved the Security Council or states using the concept of crimes against humanity. A number of cases and commentators have recognised that the concepts of ‘widespread’ and ‘systematic’ are difficult to separate in 122 See Chapter 2, Section 5.2; Chapter 3, and, in particular, Section 5.3. 123 (icty) Prosecutor v Erdemović (Separate Opinion of Judges Kirk McDonald and Vohrah), Case No IT-96-22-A (7 October 1997), [21]: ‘It is therefore the concept of humanity as victim which essentially characterises crimes against humanity… Because of their heinousness and magnitude they constitute an egregious attack on human dignity, on the very notion of humaneness.’ 124 (icty) Prosecutor v Kupreškić (Trial Chamber Judgment), Case No IT-95-16-T (14 January 2000) (‘Kupreškić – Trial’), [543]; see Chapter 4, Section 3.3. 125 (Canada) Mugesera v Canada (Minister of Citizenship and Immigration) [2005] 2 s.c.r. 100 (‘Mugesera – Supreme Court’), [161]; and see Chapter 7, Section 6.2. 126 (Canada) Mugesera – Supreme Court, above n 125, [161]–[163]. 127 (icty) Prosecutor v Limaj, Bala and Musliu (Trial Chamber Judgment), Case No IT-03-66-T (30 November 2005) (‘Limaj – Trial’), [218], see also [187]. 128 See Chapter 4, Section 4.1, 4.3 and 4.4 and Chapter 9, Section 5.2.1.

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practice.129 And in any event, an analysis of the factual findings in the cases addressed by these courts and tribunals demonstrate that there is usually an overlap between the two concepts and the cases have generally found there to be both a widespread and systematic attack.130 According to Mettraux (writing in 2005), all but one of the Trial Chambers (Kunarac) have found that the attack relevant to the charges was both widespread and systematic.131 Even in the decision of Kunarac itself, it is clear that there was a finding of a course of conduct that could be regarded as a ‘widespread’ attack. As discussed in Chapter 5,132 the attack involved what was effectively a military take-over of an entire municipality and a number of surrounding municipalities involving shelling, detention and abuse of civilians en masse and the burning of homes and looting of stores. The effect of the attack was said to be that only 10 Muslim residents remained from the pre-war population of 40,513. At the primary detention facility, some 350 to 750 men were detained at any one given time. The attack further formed part of the larger scale of similar attacks happening all throughout Muslim-populated Bosnia around the same time. Thirdly, this view is supported by the history of the evolution of the modern definition of crimes against humanity. For instance, in 1946, the Legal Committee of the United Nations War Crime Commission appeared to describe the ‘systematic’ limb as being a concept far more similar to widespread rather than simply something akin to being organised. The Commission stated that ‘[i]solated offences did not fall within the notion of crimes against humanity’ and that ‘[o]nly crimes which either by their magnitude and savagery or by their large number or by the fact that a similar pattern was applied at different times and places, endangered the international community or shocked the 129 (icty) Blaškić – Trial, above n 5, [207]; Prosecutor v Jelisić (Trial Chamber Judgment), Case No IT-95-10-T (14 December 1999) (‘Jelisić – Trial’), [53]; (eccc) Kaing Guek Eav alias Duch (Trial Chamber Judgment), Case File No. 001/18-07-2007/ECCC/TC (26 July 2010) (‘Duch – Trial’), [300]. See also: Schabas (2010), above n 118, 149; and Mettraux, above n 5, 171. 130 See Chapter 4, Section 4.4; Chapters 6 and 7. 131 See Mettraux, above n 129, 171, citing (icty) Tadić – Trial, above n 83, [660]; Kayishema – Trial, above n 5, [576]; Prosecutor v Georges Anderson Nderubumwe Rutaganda (Trial Chamber Judgment), Case No ICTR-96-3-T (6 December 1999) (‘Rutaganda – Trial’), [417]; Jelisić – Trial, above n 129, [56]-[57]; Kunarac – Trial, above n 107, [578] (saying that only an express finding of systematic was made); Kordić and Čerkez (Trial Chamber Judgment), Case No IT-95-14/2-T (26 February 2001) (‘Kordić – Trial’), [800] and [806]; Prosecutor v Radislav Krstić (Trial Chamber Judgment), Case No IT-98-33-T (2 August 2001) (‘Krstić – Trial’), [482]; and (ictr) Akayesu – Trial, above n 5, [652]. 132 Chapter 5, Section 2.3(a).

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conscience of mankind’133 (emphasis added). A similar view was taken by the 1991 ilc Draft Code.134 Similarly, leading up to the establishment of the icty, the Yugoslavia Commission of Experts, under the heading, ‘Widespread and systematic nature of acts’, said: ‘It is the overall context of large-scale victimization carried out as part of a common plan or design which goes to the element of systematicity’ and ‘the number of crimes and perpetrators are characteristically high’135 (emphasis added). This, again, suggests that the acts must reach a certain scale. Fourthly, this position is supported by the fact that most writers take the view that some minimum level of seriousness and scale is required. For example, Mettraux has stated that an ‘attack’ against a tiny hamlet would not qualify.136 Similarly, Werle writes that a crime against humanity arises out of ‘victims’ need for protection [which] does not depend on the classification of a serious attack as a violation of human rights, but on the magnitude of the attack’. 137 Cassese argues that crimes against humanity are of a ‘large-scale or massive nature’ and must therefore ‘be of extreme gravity and not be a sporadic event but part of a pattern of misconduct’.138 Accordingly, in the 1949 decision in Albrecht, the Dutch Special Court of Cassation acquitted a German commander of crimes against humanity in circumstances where he was accused of killing one person and mistreating five others. However, Cassese points out that this scale element can be satisfied where the crimes are linked to a ‘practice’ or a systematic policy of a government or de facto authority.139 Accordingly, in the case of J. and R., the German Supreme Court in the British zone of occupation allowed a conviction of a German who had denounced two Germans to the 133 unwcc, History of the United Nations War Crimes Commission and the Development of the Laws of War (hmso: London, 1948) 179, cited in (icty) Kunarac – Appeal, above n 107, [100] fn 119. 134 un General Assembly Report of the International Law Commission on the Work of its FortyThird Session, 46th sess, Supp 10, un Doc A/46/10 (29 April 1991), 103[3] (the concept of ‘systematic’ was said to require ‘a constant practice or to a methodical plan to carry out such violations’). 135 Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780, un scor, Annex, un Doc. S/1994/674 (27 May 1994), [84]–[85]. 136 Mettraux, above n 129, 166. 137 Gerhard Werle, Principles of International Criminal Law (tmc Asser Press: The Hague, 2005). 138 Antonio Cassese, Cassese’s International Criminal Law (3rd ed, Oxford University Press: Oxford, 2013) 92, fn 26. 139 Cassese, above n 138, 92–93.

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police for listening to foreign radio (amounting to treason under German law) on the basis that the actions furthered ‘the system of violence and tyranny’ that was the Nazi system.140 At the Rome Conference, states did not accept a definition of crimes against humanity without some element of scale and seriousness being required.141 A compromise definition was reached in Article 7, where ‘attack against any population’ was defined, in part, to mean ‘a course of conduct involving the multiple commission of acts’. As Ambos has argued, the combined effect of Articles 7(1) and 7(2) in the Rome Statute has been to render the widespread and systematic elements to a certain extent cumulative.142 This requirement has been entrenched in the icc, as a matter of practice, as the icc Statute requires that a situation be of ‘sufficient gravity’ before becoming admissible before the court.143 Read literally, this phrase, ‘a course of conduct involving the multiple commission of acts’, probably casts more fog than light on the issue. Some have argued that this definition should be interpreted literally so that a ‘systematic’ attack can consist of just two acts.144 This misreads the intention of the drafters, which was to ensure that a very small scale but ‘systematic’ ‘attack’ could not be regarded as coming within the definition. A ‘course of conduct involving the multiple commission of acts’ was meant to ensure some minimal level of scale as well as organisation was required.145 Such a view is also supported by the quotation from the unwcc referred to above (i.e. ‘[a]s a rule[,] systematic mass action, particularly if it was authoritative’: ‘Only crimes which either by their magnitude and savagery or by their large number or by the fact that a similar pattern was applied at different times and places’146). Fifthly, this conclusion is consistent with the practice of the Security Council interventions into internal atrocities. If the circumstances are looked at, it can be seen that each has involved atrocities being committed against civilians on a fairly large scale. This is discussed in more detail immediately below. Contrary to Luban’s contention that military intervention should be 140 Cassese, above n 138, 92, fn 26. 141 See Chapter 5, Section 2. 142 See Kai Ambos, ‘“Verbrechenselemente” sowie Verfahrens- und Beweisregeln des Internationalen Strafger-ichtshofs’ (2001) 6 Neue Juristische Wochenschrift 405, 406–407, cited in Schabas, above n 118, 149. 143 icc Statute, Art 17(1)(c). 144 Luban, above n 3, 107–108. 145 See Chapter 5, Section 2. 146 See above n 105.

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separated from judicial interference, the ambit of the definition of crimes against humanity established at Nuremberg was fundamentally linked with the ambit of the right of humanitarian intervention, but added to this was the need for a war nexus as well.147 As has been explained in this Chapter, the modern definition should be seen as dropping the war nexus but reaffirming the link between the contextual element of a crime against humanity and the threshold for when there exists a threat to international peace enabling intervention by the Security Council under Chapter vii. Finally, as a matter of principle, the position that atrocities on a ‘small scale’ would be sufficient to constitute a crime against humanity creates too much tension with state sovereignty and ignores the concerns expressesd by states that there needs to be some significant additional element over ordinary crimes before an international jurisideiction can be assumed. Luban argues that the ‘humanity’ that must be attacked is humanity as a collective of individuals as opposed to humanity as being individuals as represented by states in the international legal order.148 This theoretical distinction comes across as too flimsy and too removed from the sentiment expressed by states that a crime aginst humanity requires an exceptional matter before a state’s ordinary criminal jurisdictiona can be overridden. Hence, on balance, the better view is that a crime against humanity, as a matter of customary law, does require some minimal level of scale and seriousness and this position should be the interpretation given to Article 7 of the icc Statute. 3.2 When is the Minimum Scale or Seriousness Reached? If there is a minimum scale or seriousness that must be reached, the next question that arises is at what point is this scale reached. One difficulty in reaching a clear conclusion on this is that the courts and tribunals have not always been clear on particularising the precise ‘attack’ relied upon or precise ‘population’ targeted to make out the contextual element of the crime. Similarly, the courts and tribunals have not always been clear on the number of persons affected in such an attack or who the authors were. Sometimes the focus is on one particular ‘attack’ in one village at one point in time. At the other extreme, in Bagosora and Nsengiyumva, for instance, the ictr Appeal Chamber found there was no error in the Trial Chamber’s finding that the whole of Rwanda was ‘one crime 147 See, Chapter 2 generally, but in particular see the discussions at the London Conference (Section 2.2), the view of Justice Jackson (Section 2.3) and the closing address of Sir Hartley Shawcross, the Chief Prosecutor for the United Kingdom (Section 4.2). 148 Luban, above n 3, 136–137.

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scene’ (i.e. one attack).149 Sometimes the perpetrators are clearly those linked with an authoritarian state. Other examples are less clear. Ultimately, the question that must be asked is whether the attack is of such a level of scale or seriousness as to shock the conscience of the international community and rise to the level of international concern. It is here that that it is suggested that the international community’s concern with attacks that are ‘widespread’ and attacks that are ‘systematic’ may be instructive. The terms can be read as against one another as representing the two situations in which such scale or seriousness will be met. As will be discussed in more detail in Chapter 9, the term ‘widespread’ has been held to refer to large scale action with a significant number of victims.150 The term ‘systematic’ refers to the organised or repeated nature of the violence or mistreatment.151 The term ‘systematic’ encompasses an attack that may not necessarily be as large as an attack that is ‘widespread’ but follows a pattern of control, direction or intensity that is nonetheless of international concern, for instance because it is directed by the de jure authorities of a particular state (e.g. a deliberate massacre carried out directly by a head of state). The term ‘widespread’ then refers to an attack that is not necessarily as controlled or directed but encompasses so many victims (and possibly such a wide geographical area) that the attack is of international concern (e.g. ethnic or sectarian violence that risks destabilising a region and displacing many thousands of people). Across the jurisprudence of the international and internationalised tribunals, the smaller instances of an ‘attack’ found to be a crime against humanity have found deaths at around a hundred or so with other victims on top. Some cases have found where the attack falls below such numbers, the threshold has not been met. For example, the icty Trial Chamber in Galić considered a case concerning the siege of Sarajevo, where Bosnian Serb forces conducted a campaign of shelling and sniping the residents of Sarajevo. General Galić was the relevant commander for almost 2 years of the campaign and was charged (relevantly) with murder and other inhumane acts. The prosecution sought to establish its case by way of a number of ‘representative’ incidents. In discussing crimes against humanity in the context of these representative incidents, the Chamber found that 24 sniping attacks and 5 shelling attacks (i.e. the representative incidents themselves) could not constitute a ‘widespread’ or

149 (ictr) Bagosora and Nsengiyumva v Prosecutor (Appeals Chamber Judgment), Case No ICTR-98-41-A (14 December 2011) (‘Bagosora – Appeal’), [390]. 150 See Chapter 9, Section 6.2.1. 151 See Chapter 9, Section 6.2.2.

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‘systematic’ attack.152 The Chamber found, however, that killing of ‘hundreds’ and injuring of ‘thousands’ over a 2 year period of shelling and sniping aimed to terrorise the people of Sarajevo did reach the necessary threshold.153 Despite this, there is some suggestion that it may take special or exceptional circumstances for an attack this small to constitute an ‘attack’ against a ‘population’. In respect of Galić, for instance, the Tribunal made it clear that the shelling and sniping of Sarajevo was part of a sustained and deliberate ‘campaign’ to terrorise the civilians of Sarajevo. Other cases have found that the killing of less than 100 or so will not be sufficient to sustain an inference that an attack was directed against a ‘population’. In Limaj, the Trial Chamber considered atrocities committed by certain members of the Kosovo Liberation Army (kla) between May and July 1998 against Kosovo Albanian residents perceived to be Serbian collaborators. The residents were abducted, detained in inhumane conditions and tortured. Some 10 people were also alleged to have been executed. Ultimately, the Court considered that the abduction of 100 to 200 by the kla did not reach the relevant threshold,154 nor would the killing of a ‘select group’ of political opponents.155 It should be noted that such crimes were found to be capable of being a ‘widespread or systematic attack’ but because of the limited nature of the victims it could not be said that a civilian population was being targeted.156 Similar findings were made in the other kla case of Haradinaj.157 This follows the treatment of the Kosovo crisis in the Security Council, which preferred to refer to the kla violence as being ‘terrorism’.158 As discussed elsewhere in this text, however, it is significant that the Chamber also noted the case was different to most other cases of crimes against humanity as it concerned a less powerful non-state actor up against the de jure state.159 In such a 152 (icty) Prosecutor v Stanislav Galić (Trial Chamber Judgment), Case No IT-98-29-T (5 December 2003) (‘Galić – Trial’), [208]. 153 (icty) Galić – Trial, above n 152, [583], [591]–[592]. Robinson also refers to a case at the icty where 300 was sufficient to constitute an ‘attack’. 154 (icty) Limaj – Trial, above n 127, [210], discussed in Chapter 5 (at 2.3.1(b)(iii)). 155 Discussed in Chapter 9 (at 5.3.1). See also consideration of this point in (United States) Bowoto v Chevron Corporation (Order Granting Defendants’ Motion for Summary Judgment on Plaintiffs’ Crimes Against Humanity Claim), Case No C 99-02506 si (14 August 2009) (‘Bowoto v Chevron – District Court’), 13–14, discussed in Chapter 7, Section 2.5.2(b). 156 (icty) Limaj – Trial, above n 127, [209], [211] and [228]. 157 Discussed in Chapter 9 (at 5.3.1). 158 un sc Resolution 1160 (1998), un Doc. S/RES/1160, 3868th mtg (31 March 1998); un Resolution 1199 (1988), un Doc. S/RES/1199, 3930th mtg (23 September 1998). 159 See Chapter 5, Section 2.2.3(c) and Chapter 9, Section 5.1.3.

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circumstance, it was more difficult to draw the inference that what was being attacked was a ‘population’. The early decisions of the icc appear to support an ‘attack’ occurring where there are deaths in the hundreds.160 The Pre-Trial Chamber in the Laurent Gbagbo Confirmation Decision considered that the post-election violence in Côte d’Ivoire committed by the supporters of incumbent president, Laurent Gbagbo, against perceived supporters of opposition leader, Ouattara, to be ‘widespread’ where, across several incidents, at least 305 were killed, at least 332 were injured and a number raped.161 However, the Chamber made a number of findings that appeared to distinguish the incident from a case of what may crudely be termed ‘mere’ violent suppression of protesters. For instance, the Court noted that the violence by the Forces de Défense et de Sécurité (fds) ‘did not stop with the dispersal of the demonstrations [but] … continued to actively search neighbourhoods […] arresting and attacking demonstrators’ and that, in the days following, the fds continued to raid civilian homes, search hospitals and attack mosques.162 Most controversially, a majority of the Trial Chamber in Katanga considered that a ‘systematic’ ‘attack’ was satisfied where a number of armed combatants attacked a village in the Ituri region of the drc called Bogoro, killing ‘a minimum’ of 60 people ‘including a significant number of women, children and elderly persons’163 with ‘at least 33’ of this number being civilians.164 The attack was found to be ‘systematic’ with the majority then not going on to consider whether it was also ‘widespread’. The decision was, however, controversial, with the dissenting judge, Judge Van den Wyngaert finding that this did not meet the ‘minimum threshold’ required for a crime against humanity.165 As discussed in Chapter 6, there are serious flaws in the majority’s decision that undermine its precedential value.166 Not least among them is that the majority appeared to proceed on the basis that a significantly greater number

160 See discussion in Chapter 6, Section 5.2. 161 See discussion in Chapter 6, Section 4.2.1 and (icc) Prosecutor v Laurent Gbagbo (PreTrial Chamber Confirmation Decision), ICC-02/11-01/11-656-Red (12 June 2014) (‘Laurent Gbagbo – Confirmation’), [17], [24], [37], [42], [51], [52], [55], [64], [72] and [211]. 162 (icc) Laurent Gbagbo – Confirmation, above n 161, [34]–[35]. 163 (icc) Prosecutor v Germain Katanga (Trial Chamber Judgment), ICC-01/04-01/07-3436tENG (7 March 2014) (‘Katanga – Trial’), [841]. 164 (icc) Katanga – Trial, above n 163, [869]. 165 (icc) Katanga – Trial, above n 163, (Dissenting Opinion of Judge Van den Wyngaert), [264]. 166 See Chapter 6, Section 5.2.

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of people were killed than they were able to identify on the evidence (albeit not specifying how many more). Further, the majority of the Trial Chamber in Katanga failed to consider the significant jurisprudence as to the question of scale and seriousness and the types of ‘attacks’ that have founded crimes against humanity in the past. This was the essential point made by Judge Van den Wyngaert in dissent. As was noted in Chapter 6, a un investigation found that the attack on Bogoro was in fact only one small part of a much larger series of attacks in the region that were motivated by ethnic tension. The un Organized Mission in the drc estimated that 8,000 civilians were killed and more than 600,000 were forced to flee Ituri between January 2002 and December 2003 alone.167 To say that the relevant ‘attack’ was one that killed 30 civilians, misses the likely fact that it formed part of a much larger attack in a much larger conflict. The icc Trial Chamber judgment in Bemba Gombo was similarly unclear. There, the Chamber appeared to find an attack committed by fighters of the Ugandan armed group, the mlc, in the territory of the Central African Republic sufficient to constitute a crime against humanity where there were 3 instances of murder, 30 instances of rape and at least 27 instances of pillage.168 Indeed, the Chamber considered such an attack to be ‘widespread’.169 Like in Katanga, however, the precedential value of this decision is unclear given that the Chamber (again) appeared to proceed on the basis that the attack was in fact much larger than this, with the Chamber finding that the acts of murder, rape and pillage were committed ‘repeatedly during a four and a half month period over a broad geographic area’.170 The best way to understand Bemba Gombo is that the attack in question occurred in the context of serious political instability. The attack was perpetrated in the territory of the Central African Republic by the mlc – an armed group from neighbouring Uganda – after having been invited into the territory by the President of the Central African Republic, President Alex-Félix Patassé, to assist the car defend itself against the forces of a rebellious ex-General that had himself entered the territory after from neighbouring Chad.171 In such circumstances where the de jure authority and the rule of law are weak, armed groups 167 Letter from the Secretary-General addressed to the President of the Security Council, un Doc. S/2004/573 (16 July 2004), [1], [40]. 168 (icc) Prosecutor v Jean-Pierre Bemba Gombo (Trial Chamber iii Judgment), ICC-01/0501/08-3343 (21 March 2016) (‘Bemba Gombo – Trial’), [624], [633], [640]. 169 (icc) Bemba Gombo – Trial, above n 168, [684]. 170 (icc) Bemba Gombo – Trial, above n 168, [677]. 171 (icc) Bemba Gombo – Trial, above n 168, [379], [453].

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with de facto control over territory may more readily be seen to constitute a threat to international peace and security. The situation may be contrasted with the situation in Limaj where the kla posed no equivalent risk. Outside the international tribunals, there have been some significant cases that have dealt with the issue. The Al Dujail Case in the Iraqi High Tribunal involved what was a single attack upon a small village or tiny hamlet.172 The ‘attack’ involved deaths of around 150 and the detention and forcible transfer of around 400, including the destruction of their homes and farms. This precedent is, however, weakened by the fact that the issue of scale was not addressed. Nonetheless, in respect of Al Dujail, the Court may have been influenced by the fact that the attack was carried out on the express orders of the head of state such that the state’s military, including by use of helicopter gunships, was brought to bear on this defenceless village. Such gross misuse of state power strikes at the core of the crime’s rationale. This is captured by the remark of the unwcc (followed in Tadić) that an attack is a crime against humanity ‘particularly if it was authoritative’.173 A similar position was taken by the Peruvian Supreme Court in the Fujimori case in respect of the Barrios Altos and La Cantuta massacres.174 A similar explanation may be given to the First Instance Dutch Court that found that the massacre of 250 or so innocent civilians by Russian Forces at Samashki, Chechnya was a crime against humanity (despite the matter not being in dispute between the parties).175 This situation may be compared with cases concerning the suppression of protests or similar threats. In Mamani v Berzaín,176 the us Court of Appeals for the Eleventh Circuit considered a civil claim brought by citizens of Bolivia against the former president and former defence minister of Bolivia for a number of incidents concerning the suppression of protesters in La Paz between September and October 2003 by military and police personnel that resulted in various deaths and injuries. The Court there held that the killing of 70 and the injuring of 400 over the course of two months was neither widespread nor systematic and it could not be satisfied that all the deaths were extrajudicial killings. 172 See Chapter 6, Section 6.2. 173 See above n 105. 174 Alberto Fujimori (Special Criminal Chamber Decision), Supreme Court of Peru, Case No AV-19-2001 (7 April 2009), [717]. See Chapter 7, Section 4.4.2(a). 175 (Netherlands) Rechtbank’s-Gravenhage, ecli: nl: rbsgr: 2003: AN8981, Case No awb 02/44076, Judgment, 29 August 2003. 176 Mamani v Berzaín, 654 F.3d 1148, Court of Appeals for the Eleventh Circuit, Opinion (29 August 2011).

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In the us District Court decision in Bowoto v Chevron, the Court – again considering a civil claim – the Court found that the killing of hundreds and injuring of thousands by Nigerian security forces in suppressing anti-oil protestors over the course of a 10-year period was not sufficient to rise to the necessary scale.177 The Court considered the Galić case directly and distinguished it on the basis that the acts occurred over a roughly ten-year period in a region containing roughly 14 million inhabitants – compared to Galić where there same number were killed and injured but ‘over a two year period in a single city’.178 The Court further stated that the atrocities pleaded ‘did not rise to the level in Galić’ or any of the other international cases relied upon which arose out of the Holocaust, the Rwandan genocide and ethnic cleansing in the former Yugoslavia, but rather were ‘sporadic episodes of violence’ over a ‘very long period’.179 Similarly, at least one decision of the Peruvian Constitutional Court has held that the killing of 90 to 100 individuals by Peruvian authorities at El Fronton prison in June of 1986 did not amount to a crime against humanity.180 While such a decision may readily be viewed as controversial to the extent victims were killed extrajudicially, the context is instructive. The deaths followed from riots at two prisons in Lima, Peru, where large numbers of prisoners took control of the prison and held its guards hostage while demanding the release of certain members of the Shining Path terrorist held on terrorism charges. While summary executions are difficult to justify, the deaths occurred following a military action re-taking the prison. In such a context, the event may be seen to be less like the massacre of Al-Dujail and more like the targeting of ‘individuals’ like in Limaj. In other words, it may be less readily seen to be an attack against a ‘population’. Even when there are extrajudicial killings carried out by state officials, however, a minimum scale may still need to be reached. The Spanish Audiencia

177 (United States) Bowoto v Chevron – District Court, above n 155, 13. See discussion in Chapter 7, Section 2.5.2(b). 178 (United States) Bowoto v Chevron – District Court, above n 155, 13. 179 (United States) Bowoto v Chevron – District Court, above n 155, 14. Compare with the ongoing nature of the violence of the Tamil Tigers discussed in the decision of the Court of Appeal of the Hague: Gerechtshof Den Haag, ecli: nl: ghdha: 2015: 1082, Case No 22005123-11, Judgment, 7 May 2015 (discussed in Chapter 7). 180 Although the decision should be treated with some caution as it was later overturned on the basis that it was not decided by the necessary majority of judges in (Peru) Constitutional Court of Peru, Case No 01969-2011-PHC/TC (5 April 2016). See discussion in Chapter 7, Section 4.4.2(b).

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Nacional dismissed a case where only 10 people were killed, albeit with the approval of senior police officials.181 There are, however, cases pointing the other way. A Dutch Court of Appeal in Wijngaarde et al v Bouterse182 – in a decision concerning whether the Public Prosecutor should be ordered to commence a prosecution – considered that the torture and summary execution of 15 prominent political opponents in Surinam by the former leader of Suriname could constitute a crime against humanity.183 In another decision, the Spanish Audiencia Nacional committed a number of leaders of the Basque separatist group, Euskadi Ta Askatasuna (eta) for trial for an attack that appeared to have killed 11 people between October 2004 and May 2010.184 Similarly, some implicit support for such a proposition may be found in South African Litigation Centre v National Director of Public Prosecutions.185 In that case, a South African Court186 considered whether the National Prosecuting Authority should commence an investigation into crimes alleged to have been committed by Zimbabwe’s Zanu-pf government. While not explicitly deciding the issue, the Court appeared to proceed on the basis that the Zanu-pf government’s abduction and torture of some 100 people perceived to support the opposition (mdc) party could amount to a crime against humanity.187 For reasons discussed in Chapter 7, however, these authorities should be treated with some caution, including due to their own being preliminary decisions.188 Further, in respect of the Spanish decision, a later decision did not consider the eta perpetrated crimes against humanity.189 181 (Spain) Audiencia Nacional (Criminal Chamber), Vielmann – Audencia Nacional, ES:AN:2017:498, Sentencia n° 5 /2017, 6 March 2016. See Chapter 7, Section 3.4.2. 182 (Netherlands) Wijngaarde et al. v Bouterse (Judgment), Amsterdam Court of Appeal (20 November 2000) (‘Bouterse – Appeal’) translated in (2000) 3 Yearbook of International Humanitarian Law 677. 183 See Chapter 7, Section 3.4.2. 184 (Spain) Audencia Nacional (Criminal Chamber, N° Recurso: 3/2015, Penal – Procedimiento Abreviado/Sumario, 27 October 2015, accessed online at on 20 November 2015. 185 (South Africa) Case No 77150/09 (8 May 2012). 186 The decision was affirmed by the Supreme Court of South Africa: (South Africa) National Commissioner of the South African Police Service v Southern African Human Rights Litigation Centre [2013] zasca 168. 187 See Chapter 7, Section 6.5.2. 188 See Chapter 7, Section 8.2(b). 189 (Spain) Audencia Nacional (Criminal Chamber), Auto N° 155/2016, 8 April 2016 (Second eta Case – Audiencia Nacional).

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In any event, the term ‘widespread’ would certainly impose a significantly higher threshold than the term ‘systematic’. The icc Pre-Trial Chamber in Bashir considered an attack was widespread in circumstances where it ‘affected hundreds of thousands of individuals and took place across large swathes of the territory in the Darfur region’.190 By contrast, in Mugesera, the Supreme Court of Canada declined to rule that an attack which left 2000 Tutsis dead was widespread, preferring to base its ruling upon the systematic limb of the definition.191 Similarly, the Inter-American Court of Human Rights in Gelman v Uruguay appeared to prefer to use the term ‘systematic’ to describe at least Uruguay’s role in Operation Condor in the 1970s and 1980s.192 According to some sources, the victims numbered in the hundreds.193 In the fdlr Case, the German Higher Regional Court of Stuttgart found that the killing of 174 civilians by the Forces Démocratiques de Libération du Rwanda militia in the drc was not widespread (although it appeared to consider it may have been systematic).194 The Court preferred to liken the term ‘widespread’ to mass killings and genocide-scale activities. This would appear to suggest situations such as the atrocities at least closer towards the scale seen in the former Yugoslavia, Rwanda, Cambodia, Ethiopia and the Sudan. One further point should be noted from the case law. The icty Trial Chamber in Kunarac found that the determination of whether an attack is ‘widespread or systematic’ will be relative to the population in question: The widespread or systematic nature of the attack is essentially a relative notion. The Trial Chamber must first identify the population which is the 190 (icc) Prosecutor v Omar Hassan Ahmad Al Bashir (Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir), Pre-Trial Chamber i, Case No ICC-02/05-01/09-3 (4 March 2009) (‘Al Bashir – Arrest Warrant Decision’), [84]. 191 (Canada) Mugesera – Supreme Court, above n 125, [159]-[160]. 192 (IACtHR) Case of Gelman v Uruguay (Judgment on Merits and Reparations), InterAmerican Court of Human Rights, (ser. C) No 221 (24 February 2011) (‘Gelman – Judgment’), (discussed in Chapter 7, Section 4.5.2). 193 ‘Operation Condor: Former Argentine junta leader jailed’, bbc News (28 May 2016), accessed online at on 24 September 2017. Other reports, however, suggest that the victims of Operations Condor throughout Argentina, Bolivia, Brazil, Chile, Paragruay and Uruguay numbered were some 60,000: Rohter, ‘Exposing the Legacy of Operation Condor’, New York Times (24 January 2014), accessed online at on 24 September 2017. 194 (Germany) Oberlandesgericht Stuttgart, Judgment, 28 September 2015, 3StE 6/10, Part 4(1)(c).

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object of the attack and, in light of the means, methods, resources and result of the attack upon the population, ascertain whether the attack was indeed widespread or systematic.195 The Appeals Chamber endorsed this statement,196 finding further that: [T]he consequences of the attack upon the targeted population, the number of victims, the nature of the acts, the possible participation of officials or authorities or any identifiable patterns of crimes, could be taken into account to determine whether the attack satisfies either or both requirements of a “widespread” or “systematic” attack vis-à-vis this civilian population. This approach has also been picked up by the scsl197 as well as by one District Court in the us.198 A similar approach may be being alluded to by the early icc Pre-Trial Chambers, which have found that a ‘widespread’ attack encompasses ‘an attack carried out over a large geographical area or an attack in a small geographical area, but directed against a large number of civilians’.199 This view should be approached with caution and the focus should remain on whether the attack against a population has reached a minimum level of scale and seriousness. The difficulty with this ‘relative’ approach is that it is both vague and suspect on moral grounds. It suggests that if 100 men in a village of 300 are killed a crime against humanity has occurred, but not if it occurs in a city of a million people. Outside case law, one can consider the actions and statements of states and that of the Security Council. All Security Council interventions into internal atrocities (listed above) involved deaths and human rights violations into the hundreds and usually the thousands. The ‘smallest’ conflict warranting 195 (icty) Kunarac – Trial, above n 107, [430]. 196 (icty) Kunarac – Appeal, above n 107, [95], followed in Galić – Trial, above n 152, [146] and Prosecutor v Dragomir Milošević (Trial Chamber Judgment), Case No IT-98-29/1-T (12 December 2007), [926]. 197 (scsl) Prosecutor v Brima, Kamara and Kanu (Trial Chamber ii Judgment), Case No SCSL-04-16-T (20 June 2007) (‘afrc – Trial’), [215]; Prosecutor v Fofana and Kondewa (Trial Chamber Judgment), Case No SCSL-04-14-A (2 August 2007), [112]. 198 (United States) Bowoto v Chevron – District Court, above n 155. See discussion in Chapter 7, Section 2.5.2(a). 199 (icc) Prosecutor v Katanga and Chui (Decision on the Confirmation of Charges), Pre-Trial Chamber i, ICC-01/04-01/07-717 (13 October 2008) (‘Katanga – Confirmation’), [395] and authorities discussed in Chapter 6, Section 2.2.1.

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intervention appears to have been that of Libya. At the time of intervention in Libya in March 2011, reports were that between 1,000 and 2,000 were killed200 and 180,000 had been forced to flee Libya.201 But it is important to remember that the conflict had not stopped but was, in the words of the Security Council, ‘deteriorating’.202 And while it is very dangerous to read too much into cases where the Security Council did not intervene, Libya may be cautiously compared with the Security Council’s treatment of the situation in Yemen in 2011 – where the R2P doctrine was invoked but Chapter vii was not, in circumstances where ‘hundreds’ of civilians were killed by the Yemeni government.203 The matter was tested in the establishment of the Special Tribunal for Lebanon. Following the assassination of former Lebanese Prime Minister, Rafiq Hariri, and 22 others widely suspected of being at the instigation of Syrian agents on 14 February 2005, the Lebanese Government requested the Security Council to establish an international tribunal to try those responsible.204 The un Secretary-General’s report noted that the attack on Rafiq Hariri was preceded by 14 other attacks since 1 October 2004 of a similar type suggesting the involvement of the same perpetrators (leaving 11 people killed and 84 injured).205 The report specifically considered whether the acts could amount to crimes against humanity.206 The Secretary-General considered that, while being ‘[m]indful of the differences in scope and number of victims between the series of terrorist attacks committed in Lebanon and the killings and executions perpetrated on a large and massive scale in other parts of the world subject to the jurisdiction of any of the existing international criminal tribunals’, the 14 attacks ‘could meet the prima facie definition of the crime’.207 This was on the basis that they could be a systematic (albeit not widespread attack), in that they ‘could reveal a 200 James Downie, ‘When Numbers Lie’, The New Republic (1 April 2011), accessed online at on 15 September 2014. 201 Sayare and Cowell, ‘Libyan Refugee Crisis Called a “Logistical Nightmare”’, New York Times (3 March 2011), accessed online at on 15 September 2014. 202 un sc Resolution 1973 (2011), un Doc. S/RES/1973, 6498th mtg (17 March 2011). 203 un sc Resolution 2014 (2011), un Doc. S/RES/2014, 6634th mtg (21 October 2011). 204 un sc Resolution 1664 (2006), un Doc. S/RES/1664, 5401st mtg (29 March 2006). 205 Report of the Secretary-General on the establishment of a special tribunal for Lebanon (2006), un Doc. S/2006/893 (15 November 2006) (‘Secretary-General Report on the stl’), [11] and Annex ii. 206 Secretary-General Report on the stl, above n 205, [23]. 207 Secretary-General Report on the stl, above n 205, [24].

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“pattern” or “methodical plan” of attacks against a civilian population’ and ‘could be “collective” in nature, or “a multiple commission of acts”’.208 Despite this view, the Secretary-General noted that, ‘considering the views expressed by interested members of the Security Council, there was insufficient support for the inclusion of crimes against humanity within the subject matter jurisdiction of the tribunal’.209 Even this level of intervention was controversial, with 5 members of the Security Council abstaining (one of which was South Africa). According to the South African representative: ‘It is not appropriate for the Security Council to impose such a tribunal on Lebanon, especially under Chapter vii’.210 Also speaking before the vote, he said his delegation had often called on the Council to be judicious in its invocation of Chapter vii. He said that by resorting to such a measure, the Council was contravening its own mandate under the Charter.211 The representative of the uk – among the text’s co-sponsors – stated that the purpose of the decision was to break a long-standing impasse within Lebanon and that ‘[t]he adoption of the text under Chapter vii carries no connotation other than making it binding’.212 This suggests that, like in the case of the kla, the Security Council was more content to use the label ‘terrorist attack’213 rather than ‘crimes against humanity’, presumably because of the small-scale nature of the attacks in Lebanon. Finally, it should be kept in mind that the minimum scale required under the icc Statute may be regarded as being lower than that required under customary international law. As has been argued throughout this text, the contextual element of crimes against humanity should be seen as jurisdictional in nature arising out of states’ desires to balance the protection of human rights with state sovereignty. As such, a tribunal or court’s definition of crimes against humanity should be carefully considered in light of the jurisdiction that it is exercising and the definition in its statute.

208 Secretary-General Report on the stl, above n 205, [24]. 209 Secretary-General Report on the stl, above n 205, [24]. 210 Security Council Authorizes Establishment of Special Tribunal to Try Suspects in Assassination of Rafiq Hariri, un Press Release SC/9029 (30 May 2007) (‘Hariri Assassination Press Release’), accessed online at on 20 April 2017. 211 Hariri Assassination Press Release, above n 210. 212 Hariri Assassination Press Release, above n 210. 213 The preamble to the resolution includes the following: ‘Reaffirming its strongest condemnation of the 14 February 2005 terrorist bombings as well as other attacks in Lebanon since October 2004’.

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The icc is a permanent treaty court that already has a number of safeguards built into it that protects states from an over-extensive application of the icc’s jurisdiction. For example, not only must states sign up to accept jurisdiction or be referred by the Security Council under Chapter vii, but the icc will not be able to accept jurisdiction unless a state is unable or unwilling to prosecute and the crime is of ‘sufficient gravity’.214 The icc’s jurisdiction is, therefore, very different to the ad hoc tribunals or state courts exercising universal jurisdiction. As such, a strict construction of the requirement that an attack be ‘widespread or systematic’ is not as important in order to safeguard state sovereignty. Ultimately, the current state of international customary law suggests a flash point of extreme violence is required usually involving of the order of at least 100 deaths and even then it may depend on the circumstances, such as the level of organisation or state involvement and the way on which the victims have been targeted. Small attacks may meet the threshold where there is a clear policy of an authoritative entity to target the population. A more spontaneous eruption of violence by non-state actors is likely to require higher numbers in order to ground the same conclusion that the attack was directed against the ‘population’ or was ‘systematic’ or pursuant to a policy. Even an authoritative policy to target only a handful of political opponents may not rise to the requisite level where it cannot be said to target the population proper. Accordingly, it appears that the assassination of a single political figure – even if perpetrated by the authoritative entity (such as the Soviet government in the case of Imre Nagy in Hungary or Bouterse’s summary execution of 15 political opponents in Surinam215 does not pass the test of scale. Nor would the Australian policy of detaining thousands of asylum seekers pass the test of ‘extreme violence’ or seriousness.216 Similarly, a wider-scale (but still small-scale) 214 (icc) Although this limitation may have little impact on prosecutions for crimes against humanity on the basis of the approach taken in Decision on the request of the Union of the Comoros to review the Prosecutor’s decision not to initiate an investigation, ICC-01/13 (16 July 2015). 215 See above, fn 182 and discussion in Chapter 7, Section 3.4. 216 Julian Burnside qc in a speech in 2003 argued this, saying ‘a representative of the International Criminal Court has expressed privately the view that asylum seekers as a group can readily be regarded as a civilian population’: see Kingston, ‘Australian Crime against Humanity’, Sydney Morning Herald (Sydney) 8 July 2003. Burnside and others have since written to the icc seeking that the Court investigate Australia for the commission of crimes against humanity: see Communique to the Prosecutor at the International Criminal Court, accessed online at on 4 June 2017. A similar submission has been made by a number of academics, including Robert Cryer: The Situation in Nauru and Manus

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series of assassinations committed by a non-state entity such as the kla or the mafia is unlikely to suffice. This is compared with the violence of the afrc in Sierra Leone who, while also by non-state entities, caused victims that numbered well into the thousands, or the post-election violence in Kenya and the Côte d’Ivoire where the relevant targets were not only individual protesters but populations more generally perceived to be supporting rival political factions or other ethnic groups. Hence, on the one hand, it may be accepted that the targeting of a select, but limited, group of civilians – for example, the targeted killing of a few political opponents – will not, without more, be an attack on a ‘population’.217 However, on the other hand, provided the elements of scale and seriousness are satisfied then a state’s attacks on, for example, demonstrators, political dissidents, members of a political party, members of a trade union or even the inmates of a prison camp can be an attack against a ‘population’.218 In other words, if Australia’s policy towards applicants for refugee status included sufficient acts of violence, not just their non-violent detention, those applicants could also form part of ‘an attack against any civilian population’.219 This potentially, however, could still take the definition too far unless some further principles come into play. For example, an individual acting out his own ‘systematic’ or ‘widespread’, but isolated, criminal plan cannot commit a crime against humanity even if a civilian population is the clear target. Also, a spontaneous but disorganised race riot, even if ‘widespread’ cannot be a ‘crime against humanity’. Something more is needed. Below, it is suggested that there is a further need for some policy element by a state or ‘organization’. 4

The Impunity Principle

4.1 Introduction The impunity principle addresses perhaps the most contested question in relation to the law on crimes against humanity – does the crime come with a

Island: Liability for crimes against humanity in the detention of refugees and asylum seekers, accessed online at on 4 June 2017. 217 (icty) Limaj – Trial, above n 127, [187]; Chapter 4, Section 4.3.3. 218 This conclusion is consistent both with the early pre-icc Statute State authorities which referred to attacks committed on ‘political’ grounds (see Chapter 3, Section 4) as well as the post-icc Statute State authorities which were discussed in Chapter 7 (see the conclusion of that analysis at Chapter 8, Section 8.2(a)). 219 See above n 210. This issue is discussed further in Chapter 9, Section 2.2.

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requirement that the attack be committed pursuant to, or in furtherance of, a state (or organisational) policy. The impunity principle encapsulates the view that what distinguishes a crime against humanity from an ordinary crime is that the perpetrators enjoy de facto impunity because the crimes are linked with some ‘policy’ (including by way of acquiescence or toleration or ideology) of a state or de facto power. As argued in Chapter 3, this was the received orthodoxy prior to the establishment of the ad hoc tribunals. In 2002, the icty Appeals Chamber in Kunarac held that this was not an element of the crime and that essentially those that argued it was ever an element of the crime were wrong. This conclusion has been frequently followed by courts and tribunals. In Chapter 5, however, it was argued that this conclusion must be treated with caution both due to its limited reasoning and the tension that it leaves with other decisions of the ad hoc tribunals and with other sources of law such as the icc Statute.220 In contrast to the position in Kunarac, it is argued here that customary international law currently still requires that crimes against humanity be perpetrated­pursuant to a ‘policy’ (in the broad sense, covering acquiescence, toleration or sponsorship) of either a state, or an organisation with sufficient de facto power in the territory in question. This view fits best both with all of the relevant sources of customary international law and the rationale for crimes against humanity. Currently, there only exists a clear consensus that a ‘widespread or systematic attack against any civilian population’ will amount to a crime against humanity only when there is a link between the ‘attack’ and the ‘policy’ of a state or a de facto power. This work has sought to put together the main pieces of state practice and opinio juris relevant to forming a view on the position of the policy element under customary international law. Prior chapters have dealt with the way in which this so-called ‘policy element’ has been dealt with at Nuremberg,221 from Nuremberg until 1993,222 by the ad hoc Tribunals,223 under Article 7 of the icc Statute,224 by the hybrid Tribunals225 and by state courts since 1998.226 As discussed in Chapter 2, the better view is that a policy element, along with a nexus to war, was required from the legal inception of the crime at 220 221 222 223 224 225 226

See Chapter 5, Section 2.4. See Chapter 2, Section 5.2 and 5.3. See Chapter 3 and, in particular, Section 5.4. See Chapter 4 and, in particular, Sections 3, 4 and 5. See Chapter 5 and, in particular, Sections 2 and 3.3. See Chapter 6 and, in particular, Section 7. See Chapter 7 and, in particular, Section 20.

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Nuremberg. As demonstrated above and in Chapters 2 to 4, the legal definition of crimes against humanity first emerged at Nuremberg through Article 6(c) of the London Charter and the need for a link to the interests of the Axis powers. In this form – and as confirmed by the clear majority of scholars at the time – crimes against humanity necessarily came with a policy element.227 This element was largely reinforced through the Control Council Law 10 prosecutions and the state prosecutions of Nazis in the years following Nuremberg. As some states and commentators up to the 1990’s looked to apply crimes against humanity during peacetime without a nexus to war, there was no clear definition of what should replace Article 6(c). Nevertheless, the need for some policy element, particularly of a state, was an assumed requirement. A consensus on a modern definition without a war nexus emerged in the 1990s. This coincided with a related consensus that threats to international peace and security under Chapter vii of the un Charter can apply in respect of purely internal atrocities. It was argued in this Chapter that the modern definition with its ‘widespread and systematic attack’ test can be seen as fulfilling the same function as the war nexus in ‘internationalising’ what would otherwise be ordinary crimes. This section looks to summarise, in broad terms, the current discussion insofar as it relates to the policy element, or the impunity principle. A more detailed summary of the case law on the meaning of ‘policy’ and ‘organization’, including under Article 7 of the icc Statute is dealt with in Chapter 9. 4.2 The Position of the Ad Hoc and Internationalised Tribunals In Chapter 5, a close analysis was undertaken of the decisions of the ad hoc and internationalised tribunals on the policy element. While the explicit rejection of the policy requirement has generally been clear, these positions have largely been adopted without any substantive reasoning. As Jalloh pithily puts it, ‘this reliance seems to be attributable more to the clarity of its conclusion than the strength of the case law cited in support of it’.228 The cases of the ad hoc tribunals have all involved situations where there was in fact a policy of a state (which may include a policy of acquiescence or toleration of the crimes of various non-state groups) or of a de facto power operating in the territory.229 The same point can be made for the internationalised tribunals that followed the law of the icty and ictr. Even in the more difficult cases of the afrc in 227 See Chapter 3, Section 5.4. 228 Charles Jalloh, ‘What Makes a Crime Against Humanity a Crime Against Humanity’ (2013) 28(2) Amory University International Law Review 381, 397. 229 See Chapter 5, Sections 2.4 and 3.8.

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Sierra Leone and the kla in Kosovo, both non-state actors were sufficiently de facto powers with de facto control over territory or were organised armed groups capable of engaging in an internal armed conflict. Further, it is still unclear whether the exclusion of the requirement of an explicit policy or plan per se, excludes some policy element being an implied requirement of a ‘widespread or systematic attack against a civilian population’. The ictr Trial Chamber in Bagilishema held: … either of the requirements of widespread or systematic will be enough to exclude acts not committed as part of a broader policy or plan. Also the requirement that the attack must be committed against a “civilian population” presupposes a kind of plan. Thus the policy element can be seen to be an inherent feature of the attack, whether the attack be characterised as widespread or systematic.230 Similar, the icty Trial Chamber in Tadić held:231 Notably, if the acts occur on a widespread or systematic basis that demonstrates a policy to commit those acts, whether formalized or not. It does not appear that these findings fall away even after the finding in Kunarac that there was no policy requirement per se.232 Further, even after the icty Appeals Chamber in Kunarac rejected the policy requirement, there has been discussion in the ad hoc tribunals as to whether the implicit ‘policy element’ must be linked to either a state (including by way of toleration or loose sponsorship of the crimes of others) or a de facto power in a territory. For example, the Limaj Trial Chamber stated:233 … Although not a legal element of Article 5, evidence of a policy or plan is an important indication that the acts in question are not merely the 230 (ictr) Bagilishema – Trial, above n 121, [78]. 231 (icty) Tadić – Trial, above n 83, [653]. 232 See also this effect (icty) Kupreškić – Trial, above n 124, [551], noting the relevance of the policy requirement while doubting its status as a legal requirement. The same point is made by Robinson: see Darryl Robinson, ‘Defining “Crimes Against Humanity” at the Rome Conference’ (1999) 93(1) American Journal of International Law 43, 48. 233 (icty) Limaj – Trial, above n 127, [212]–[213]. For its final two sentences, the Chamber referred to Kupreškić – Trial, above n 124, [552] and Tadić – Trial, above n 83, [654], respectively.

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workings of individuals acting pursuant to haphazard or individual design, but instead have a level of organisational coherence and support of a magnitude sufficient to elevate them into the realm of crimes against humanity. It stands to reason that an attack against a civilian population will most often evince the presence of policy when the acts in question are performed against the backdrop of significant State action and where formal channels of command can be discerned.  Special issues arise, however, in considering whether a sub-state unit or armed opposition group, whether insurrectionist or trans-boundary in nature, evinces a policy to direct an attack. One requirement such an organisational unit must demonstrate in order to have sufficient competence to formulate a policy is a level of de facto control over territory. As was said by the Trial Chamber in Prosecutor v Tadić: the law in relation to crimes against humanity has developed to take into account forces which, although not those of the legitimate government, have de facto control over, or are able to move freely within, defined territory. Further, the ad hoc Tribunals have continued to accept, including after Kunarac, that a crime against humanity does not cover random or isolated criminal acts.234 This begs the question as to when an ‘attack’ is not an ‘isolated’ 234 (icty) Kunarac – Appeal, above n 107, [90], followed in e.g.: Prosecutor v Martić (Appeals Chamber Judgment), Case No IT-95-11-A (8 October 2008) (‘Martić – Appeal’), [305]; Prosecutor v Milomir Stakić (Trial Chamber Judgment), Case No IT-97-24-T (31 July 2003) (‘Stakić – Trial’), [624]; Prosecutor v Radoslav Brđanin (Trial Chamber Judgment), Case No IT-99-36-T (1 September 2004) (‘Brđanin – Trial’), [134]; (scsl) Prosecutor v Sesay, Kllon and Gbao (Trial Chamber Judgment), Case No SCSL-04-15-T (2 March 2009) (‘ruf – Trial’), [85]; Prosecutor v Fofana and Kondewa (Trial Chamber Judgment), Case No SCSL04-14-T (2 August 2007) (‘cdf – Trial’), [119] (cited with approval in Fofana and Kondewa v Prosecutor (Appeals Chamber Judgment), Case No SCSL-04-A-829 (28 May 2008) (‘cdf – Appeal’), [258]); Prosecutor v Charles Ghankay Taylor (Trial Chamber Judgment), Case No SCSL-2003-01-T (26 April 2012) (‘Taylor – Trial’), [507]; Prosecutor v Brima, Kamara and Kanu (Trial Chamber ii Judgment), Case No SCSL-04-16-T, (20 June 2007) (‘afrc – Trial’), [217]; (eccc) Duch – Trial, above n 129, [303] (following Blaškić – Appeal); Prosecutor v Chea and Samphan (Trial Chamber Judgment), Case File No. 002/19-09-2007/ECCC/TC (7 August 2014) (‘Case 002/01 – Trial’), [182]; (icc) Prosecutor v Bemba Gombo (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo), ICC-01/05-01/08 (15 June 2009) (‘Bemba Gombo – Confirmation Decision’), [77]; Authorisation of an Investigation into the Situation in the Republic of Kenya (Pre-Trial Chamber ii Decision), ICC-01/09-19-Corr (31 March 2010) (‘Kenya – Authorisation Decision’), [81].

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or ‘random’ criminal act. For example, if one, two or three persons in the name of some cause (e.g. radical Islamic goals) sets off a bomb, which kills hundreds or even thousands of civilians, is that still a random or isolated criminal act? If not, why not? The implied premise appears to be that there must be some ‘policy’, at least in a loose sense, which links the attack to either a state or an organisation with sufficient de facto power. This was the position adopted by the Trial Chamber in Tadić which was influential at the Rome Conference in 1998.235 It remains unclear why this implied premise is still not required under the case law of the ad hoc Tribunals in order to exclude so called random or isolated criminal acts. Finally, the practice has not been entirely unanimous. The Special Panels in East Timor, at least arguably, have maintained the position that a ‘policy element’ is relevant to establish the relevant attack even after the icty Appeals Chamber’s decision in Kunarac.236 Further, and perhaps most significantly, the icc policy requirement has been included in the statute of the most recent international court to be established, the Statute of the African Court of Justice and Human Rights.237 Accordingly, it is difficult to accept that the authorities are ‘overwhelming’ in favour of the rejection of the policy element as found by the Kunarac Appeals Chamber.238 Rather, the picture appears much more complicated and, at the very least, suggests that the presence of a policy will at least have some role to play in assessing whether an attack passes the necessary threshold. Ultimately, however, any evaluation of the policy element as a matter of customary law cannot stop with the Tribunals. One must also look closely at other sources such as the icc Statute (including its evolving practice) and the practice of states since the icc Statute. This analysis is undertaken below. 4.3 The icc Statute and the Requirement of a ‘State or organizational policy’ Article 7(2)(a) of the icc Statute requires that the relevant attack be committed ‘pursuant to or in furtherance of a State or organizational policy to commit such attack’. As discussed in Chapter 6,239 the icc has started to sketch out

235 See Chapter 4, Section 4.3 (on the Tadić Trial Chamber Judgment) and Sections 5.1 and 5.2.4 (on the role of the decision in the discussions at the Rome Conference). 236 See Chapter 5, Section 3.1.3. 237 See Chapter 5, Section 3.8. 238 Ibid (emphasis added). 239 See Sections 4.2.1 and 5.2.

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the contours of the ‘State or organizational requirement’. As will be addressed further in Chapter 9,240 this policy requirement imposes two separate elements that must be considered: first, that there be a ‘policy’; and secondly, that it be the policy of a ‘State or organization’. These aspects under the jurisprudence of the icc will be discussed in more detail in Chapter 9. As discussed in Chapter 4, while complex and not capable of any easy answer, the adoption of this definition does arguably carry significant weight as potentially evidencing customary law. This is because, absent any other treaty on the matter, it represents the only treaty definition actually adopted by a large number of states since Nuremberg. In this context, the role of the Trial Chamber decision in Tadić at the Rome Conference should also be emphasised. The icty Trial Chamber in Tadić dramatically moved the law forward in declaring that the war nexus no longer existed under customary international law as at 1 January 1991. Moreover, in identifying the modern definition which could apply in peacetime, the Trial Chamber in Tadić considered that it came with a requirement of a policy of a state, organization or group. The decision was discussed at the Rome Conference and it was argued by participants that this reflected the correct position as a matter of customary law.241 This led to the requirement of a ‘State or organizational policy’ in Article 7. Additionally, today the icc Statute has a large number of State Parties – ­currently at 122 ratifications and 139 signatories.242 This opinio juris of so many states should carry weight as a matter of customary law given the history of the Rome Conference. Nonetheless, the opposing view is that Article 7 is only the agreed definition for the icc and does not reflect the position under general international law. As noted in Chapter 4, while it is tempting to regard Article 7 as settling the position under customary international law, this position remains unclear due to the lack of clarity as to whether states at the Rome Conference were expressing an opinion on Article 7 as reflective of custom.243 Accordingly, one must turn then to whether, from 1998 onwards, state practice and opinio juris supports the view that Article 7 is authoritative, or whether it supports the line of authority in the ad hoc Tribunals.

240 See Section 7.1. 241 See Chapter 4, Sections 5.1 and 5.2.4. 242 See latest figures on un website, accessed online at on 6 July 2014. 243 See Section 5.

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4.4 State Practice since 1998 In Chapter 7, an analysis was undertaken of the most important state practice since the introduction of the Rome Statute in 1998. This practice included­ most importantly those states that have had particular experiences with crimes against humanity by way of prosecutions for crimes against humanity. The practice also included other states where there had been other significant decisions on crimes against humanity (e.g. in a migration context) as well as a number of further states in an attempt to obtain a representative sample of states. In that chapter, a number of key conclusions were drawn on state practice in respect of the policy element.244 First, in terms of the legislation adopted by states, while a majority of states have tended to adopt a policy element in accordance with Article 7 or a policylike element, practice on the point remains presently unsettled.245 Of the 31 countries reviewed, 15 have either strictly or broadly adopted the icc Statute definition or at least broadly adopted the definition in Article 7 (including its requirement for a policy). A further 6 states have adopted a policy-type element, albeit one different from the icc Statute (e.g. requiring an intention to destroy a racial, ethnic or particular political group). Of the remaining states, the position of 2 is unclear and 7 states appear to have taken the position that Article 7 is narrower than customary law and removed the policy requirement. Secondly, where states’ courts have elaborated on the policy requirement, practice has also been mixed. However, courts have typically interpreted the policy element in line with two key principles: (a) that the policy may be held by a state or a de facto power; and (b) that the policy may be a policy in the loose sense of tolerance or acquiescence. While there are exceptions to this, they remain in the minority. Thirdly, the clear majority of factual circumstances that were found to constitute a crime against humanity were those consistent with the above two principles. That is, the attacks in question were perpetrated pursuant to a state policy (either by active participation and direction or at least tolerance or acquiescence) or the policy of a de facto power such as the Tamil Tigers in Sri Lanka or powerful, armed groups in the Democratic Republic of the Congo. 4.5 Academic Opinion Insofar as customary international law is concerned, scholars appear to be divided on their views, although a number of leading scholars appear to support

244 See Section 8.2.1 and 8.2.2(b). 245 See Chapter 7, Section 8.2.

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a policy element of some sort. Bassiouni,246 Schabas,247 Cassese,248 Kreß,249 and Robinson250 consider a state policy to be necessary and (possibly excluding Robinson251) understand this to extend to bodies within the state itself as well as state-like entities. Bassiouni, for instance, writes that to be an author of a crime against humanity ‘these non-state actors must have some of the characteristics of state actors, which include the exercise of dominion or control over territory or people, or both, and the ability to carry out a “policy” similar in nature to that of “state action or policy”’.252 Similarly, Schabas argues that ‘[b]odies like the Republika Srpska, the farc, the Palestinian Authority, and perhaps the government of Taiwan would be addressed in this manner, but not organizations like the Hell’s Angels or the mafia.’253 Rikhof254 and Ratner and Abrams255 argue at least that organisations with de facto control over territories ought to be equated with a state. Cassese makes the important qualification, however, that while a positive policy is not necessarily required, there must at least be the acquiescence or 246 Bassiouni, above n 4, 69–71, 273–275; M. Cherif Bassiouni, Crimes Against Humanity – Historical Evolution and Contemporary Application (Cambridge University Press: New York, 2011), 41. 247 William Schabas, ‘State Policy as an Element of International Crimes’ (2008) 98 Journal of Criminal Law & Criminology 953, 972. 248 Cassese (2003), above n 6, 64. nb: In a more recent version of Cassese’s text, the authors accept that the attack may form part of a policy by a ‘de facto political authority or an organized political group’: Cassese, above n 138, 91 and 93. 249 Claus Kreß, ‘On the Outer Limits of Crimes against Humanity – The Concept of Organization within the Policy Requirement: Some Reflections on the March 2010 icc Kenya Decision’ (2010) 23 Leiden Journal of International Law 855, 869, 873. 250 Darryl Robinson, ‘ajil Symposium: A Plea to Judges – Don’t Make the Policy Element Impossible’, Opinio Juris (22 July 2013), accessed online at on 5 October 2014. 251 Darryl Robinson, ‘Essence of Crimes against Humanity Raised by Challenges at icc’, ejil Talk! (27 September 2011), accessed online at on 5 October 2014. Robinson argues that, at least in the context of the icc, the term ‘organization’ should not be limited to statelike organizations. 252 Bassiouni, above n 4, 71. See also Bassiouni, above n 246, 42. 253 Schabas, above n 247, 972. 254 Joseph Rikhof, ‘Crimes against Humanity, Customary International Law and the International Tribunals for Bosnia and Rwanda’ (1996) 6 National Journal of Constitutional Law 232, 254–261. 255 Ratner and Abrams, above n 113, 68–69.

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tolerance of a state or state-like entity.256 Robinson appears to take a similar approach.257 While Cryer does not appear to decide the question, he also notes that the policy is ‘a modest threshold that excludes random action’.258 This includes explicit or implicit approval or endorsement that the conduct is clearly encouraged or clearly fits within a general policy, or that there is inaction designed to encourage crimes. Cassese also appears to accept that attacks perpetrated by non-state groups or paramilitary units may qualify ‘in circumstances where such authorities lack the effective power to put an end to such attacks.’259 Writing before the Kunarac Appeal Decision, Dinstein260 and Chesterman261 appeared to support there being a policy requirement but tended to focus on this merely as being a mechanism to exclude random or isolated acts rather than requiring a link with a state or state-like entity. Contrary to these views, Mettraux,262 Werle and Burghardt263 and probably Boas264 argue that there is no ‘policy element’ under customary international law. Others contend it is controversial.265 Mettraux, for his part, defines this element as ‘[a]n agreement, plan, or practice pursued by or on behalf of a government, authorities, or bodies, official or non-official, for the purpose or with a view to commit, aid, or support criminal activities’.266 It appears that these

256 Cassese, above n 138, 91. 257 Robinson, above n 250. 258 Robert Cryer et al., An Introduction to International Criminal Law and Procedure (Cambridge University Press: New York, 2010), 240. 259 Cassese, above n 138. 260 Yoram Dinstein, ‘Case Analysis: Crimes Against Humanity After Tadić’ (2000) 13(2) Leiden Journal of International Law 373, 388–389. 261 Simon Chesterman, ‘An Altogether Different Order: Defining the Elements of Crimes Against Humanity’ (2000) 10 Duke Journal of Comparative and International Law 307, 316–317. 262 Mettraux, above n 9, 143, 157. 263 Werle and Burghardt, ‘Do Crimes Against Humanity Require the Participation of a State or “State-like” Organization?’ (2012) 10 Journal of International Criminal Justice 1151, 1165. 264 Gideon Boas et al., International Criminal Law Practitioner Library – Volume ii – Elements of Crimes Under International Law (Cambridge University Press: New York, 2008), 53. It is not entirely clear that Boas is indicating the position at custom, as opposed to the position as set out by the ad hoc Tribunals. 265 Hall and Ambos, ‘Article 7’ in The Rome Statute of the International Criminal Court: A Commentary (3rd ed, 2016, Hart Publishing: Oxford; Nomos Publishing: Baden-Baden), 244. 266 Mettraux, above n 9, 143, 157.

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authors, however, would at least require that the acts must at least not be random or unconnected acts.267 In the context of the icc, the majority of scholars appear to consider that an ‘organisation’ should not be limited to state-like entities. As noted above, Bassiouni argues that the term ‘organisation’ was intended to refer to state entities such as the Gestapo and the ss but not non-state entities.268 Robinson argues the term was to be viewed more flexibly and in-line with the Tadić Trial decision, namely entities with de facto power (although the Trial Chamber left the door open to other organisations being covered).269 Nadya Sadat270 and Werle and Burghardt271 argue that the policy should not be limited to states or state-like entities, while Kreß272 argues to the contrary. Others have argued that the policy requirement in Article 7 should be amended273 or removed.274 Professor Werle, for instance, explains his opinion as follows: The formulation of this ‘policy element’ was inspired in particular by the 1996 Draft Code, in which incitement or support of the crime by a government, organisation or group was a requirement for criminality… The term is instead interpreted in a broad sense as a planned, directed or organised crime, as opposed to spontaneous, isolated acts of violence… Nor is it necessary that it be decided upon at the highest levels. The presence of the policy element can be gathered from the totality of the circumstances. Significant evidence includes actual events, political platforms or writings, public statements or propaganda programs and the creation of political or administrative structures… Ultimately, any group of people can be categorised as an organisation if it has at its disposal, in material and personnel, the potential to commit a widespread or systematic 267 Robert Cryer et al., above n 258, 240, citing (icty) Kunarac – Trial, above n 107, [429]; and Prosecutor v Krnojelac (Trial Chamber Judgment), Case No IT-97-25-T (15 March 2002) (‘Krnojelac – Trial’), [57]. 268 M. Cherif Bassiouni, The Legislative History of the International Criminal Court: Introduction, Analysis and Integrated Text (Volume 1) (Transnational Publishers: New York, 2005), 151–152. 269 Robinson, above n 232, 50, fn 44. 270 Leila Nadya Sadat, ‘Crimes Against Humanity in the Modern Age’ (2013) 107(2) American Journal of International Law 334, 375. 271 Werle and Burghardt, above n 263. 272 Kress, above n 249, 867–69, 873. 273 Jalloh, above n 228. 274 Matt Halling, ‘Push the Envelope – Watch it Bend: Removing the Policy Requirement and Extending Crimes Against Humanity’ (2010) 23 Leiden Journal of International Law 827.

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attack on a civilian population. In addition to paramilitary units, this particularly includes terrorist organisations. [citations omitted]275 A number of commentators have also expressed opinions about when terrorist acts may constitute crimes against humanity. This is considered further below. Practice of the Security Council and State Governments, and Their Response to Terrorism As suggested in this Chapter, regard should also be had for the types of internal atrocities which have been labelled a ‘crime against humanity’ by states and the Security Council and which have warranted international intervention. As discussed above, states and the Security Council have generally only used the label ‘crime against humanity’ where the attack is linked to a state or a de facto power. In the aftermath of the September 11 2001 attacks, many commentators were quick to use the label a ‘crime against humanity’. This included Geoffrey Robertson qc, former judge of the Special Court of Sierra Leone,276 the un High Commissioner for Human Rights, Mary Robinson,277 and French legal academic Alain Pellet.278 Fry and Martinez both conclude that some acts of terrorism will be crimes against humanity, but their focus was on how to prosecute terrorists effectively before the icc or by states invoking universal jurisdiction.279 Other scholars have disagreed. Bassiouni writes that groups such as Palestinian suicide bombers and the mafia cannot be the authors of a crime against humanity.280 This view was also the view of Cassese.281 This is because there 4.6

275 Gerhard Werle, Principles of International Criminal Law (tmc Asser Press: The Hague, 2005). 276 Geoffrey Robertson qc, ‘America Could Settle This Score Without Spilling Blood Across Afghanistan’, Times (uk) (18 September 2001), 18. 277 Press Release, 25 September 2002, quoted in William Schabas, ‘Punishment of Non-State Actors in Non-International Armed Conflict’ (2003) 26 Fordham International Law Journal 907, 932. 278 Alain Pellet, ‘Non ce n’est pas la guerre!’ Le Monde (21 September 2001), 12 quoted in Schabas, above n 247, 923. 279 Lucy Martinez, ‘Prosecuting Terrorists at the International Criminal Court: Possibilities and Problems’ (2002) 34 Rutgers Law Journal 1, 36; and James Fry, ‘Terrorism as a Crime against Humanity and Genocide: The Backdoor to Universal Jurisdiction’ (2002) 7 ucla Journal of International Law and Foreign Affairs 169. 280 Bassiouni, above n 4, 71. 281 Antonio Cassese, ‘Terrorism is also Disrupting Some Crucial Legal Categories of International Law’ (2001) 12 European Journal of International Law 993; and Cassese, above n 138, 64.

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is an absence of a connection with, or toleration by, a state or a state like power. Similarly, Schabas disputes the proposition that the label ‘crimes against humanity’ can apply to the acts of Al-Qaeda, the Red Brigade, the BaaderMeinhof gang, the ira, the Ulster Volunteer Force ‘and for that matter – why not? – the Hell’s Angels’.282 This view is further supported by the practice of the Security Council and the international community generally to terrorism. There is now no shortage of Security Council resolutions that have determined that terrorism, on its own, is a threat to international peace.283 They have imposed many obligations on states to suppress terrorism and to cooperate in the ‘war on terror’.284 For example, the Declaration attached to Security Council Resolution 1456 (2003) stated that: States must bring to justice those who finance, plan, support or commit terrorist acts or provide safe heavens, in accordance with international law, in particular on the basis of the principle to extradite or to prosecute.285 At the same time, however, states generally have not used the label a ‘crime against humanity’ to describe acts of terrorism. At the Rome Conference, for instance, State representatives rejected the proposal to have terrorism (and drug trafficking) included as crimes within the jurisdiction of the icc.286 Similarly, the Security Council in the case of Lebanon affirmed the jurisdiction of the Special Tribunal for Lebanon (stl) extending to terrorism but not crimes against humanity. As discussed above, the Security Council’s report considered that, ‘considering the views expressed by interested members of the Security Council, there was insufficient support for the inclusion of crimes against

282 Schabas, above n 247, 929. 283 For example, un sc Resolution 1566 (2004), un Doc. S/RES/1566, 5053rd mtg (8 October 2004) has condemned all acts of terrorism, regardless of motivation, as threats to peace and security. un sc Resolution 1373 (2001), un Doc. S/RES/1373, 4385th mtg (28 September 2001), adopted under Chapter vii requires all member states to bring terrorists to justice and to afford one another the greatest measure of assistance in criminal investigations or criminal proceedings related to terrorism. 284 See, for example, Andrea Bianchi, ‘Security Council’s Anti-terror Resolutions and their Implementation by Member States: An Overview’ (2006) 4(5) Journal of International Criminal Justice 1044. 285 See para 3. 286 Chapter 5, Section 3.4.

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humanity’.287 This was despite the fact that the acts could prima facie satisfy the ‘systematic’ limb of crimes against humanity, as developed in the jurisprudence of the international criminal tribunals’.288 The same can be said of the Security Council’s practice in respect of Afghanistan and Iraq. The result suggests the Security Council and the international community have drawn a distinction between terrorism and crimes against humanity. A terrorist attack, such as was committed on September 11, may reach the required scale and level of organisation to satisfy the humanity principle – that of ‘shocking the conscience of humanity’. However, such an attack only takes on the character of a crime against humanity when there is a link between the attack and a state or de facto power – this being the modern formulation of the ‘policy element’. For international terrorism, this is generally not the case. Frequently, the terrorist organisation faces fierce resistance by the local state which is doing all that it can to arrest and prosecute the terrorists. Generally, the desire of the countries affected is to see the perpetrators brought to justice in their own territory, not the icc. By Articles 17 and 18 of the icc Statute, the icc will only have jurisdiction if the Court is satisfied that the relevant state is unable or unwilling to prosecute the alleged perpetrators. By this test there is unlikely to be icc jurisdiction over events such as the attacks of September 11, the Madrid bombing of 2004 or the London bombing of 2005. This, however, will not universally be the case. For example, there may be an allegation that a state is shielding a terrorist by denying requests for extradition and declining to prosecute the suspects before the state’s own courts – such as in the case of Libya which was accused by the United Kingdom of shielding those accused of bombing the Pan Am flight over Lockerbie. In such a situation, if the terrorists’ acts reach the requisite level of scale and seriousness and the acts occurred in the territory of a State Party or the suspect is a citizen of a State Party, then the icc may have jurisdiction. Alternatively, as noted above, if the group develops a sufficient structure, power and support such that it is able to threaten the sovereignty of the territorial state, such as in the case of Islamic State (is) in Syria or Iraq, the afrc in Sierra Leone, or arguably the kla in Kosovo, the policy element may be satisfied.289 Of course, the organisation’s ability to threaten the state’s power is likely to vary relative to the state in question. The un Security Council practice,

287 Secretary-General Report on the stl, above n 205, [25]. 288 Secretary-General Report on the stl, above n 205, [24]. 289 See Section 3.2.2(c).

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for instance, would suggest that a weak state such as Syria, Iraq, Somalia or Haiti may be more easily overborne by a non-state actor than a developed state like Italy or the United Kingdom. This may be why, for instance, the Security Council has invoked its Chapter vii powers in the context of the armed (terrorist) groups of Al-Shabaab in Somalia290 but restricted itself to decrying terrorism in the context of developed countries such as France. Contemporary examples demonstrate this point. Unlike Al Qaeda in Afghanistan, for instance, the is has managed to occupy significant areas of land and declared itself an independent state, managing to undermine the sovereignty of both Iraq and Syria.291 Similar observations may be made to a lesser extent concerning Boko Haram in Nigeria, in respect of which an official statement by the Security Council has suggested crimes ‘may’ amount to crimes against humanity.292 Even if such an act is ‘merely’ an act of terrorism not rising to the level of a crime against humanity, this does not necessary leave victim states without any recourse. A state which tolerates or supports terrorists who reside in the territory or which is allowing its territory to be used as a base for terrorist activities committed abroad will breach the many binding Security Council resolutions on the matter or even give rise to an alleged right of self-defence, as occurred in the United States’ war in Afghanistan. Generally, international terrorism, particularly where the crimes are small in scale or there is no allegation of state or de facto power toleration or support, are not seen by states or the Security Council as engaging the principles relevant to crimes against humanity. Like piracy in the Middle Ages, international terrorism is best seen as being sui generis, rather than a type of ‘crime against humanity’. This state practice supports the case for the need for some policy 290 un sc Resolution 2093 (2013), un Doc. S/RES/2093, 6929th mtg (6 March 2013), discussed above at Section 1.2.2. 291 See un sc Resolution 2170 (2014), un Doc. S/RES/2170, 7242nd mtg (15 August 2014). 292 ‘Security Council Presidential Statement Demands Cessation of Hostilities by Boko Haram in Nigeria’, ‘Release of Hostages, Including 276 Girls Abducted in April’, un Press Release SC/11742, 7362nd mtg (19 January 2015), accessed online at on 8 July 2015. See also, for instance: ‘Boko Haram Kills 2,053 Civilians in 6 Months – Apparent Crimes Against Humanity’, Human Rights Watch (15 July 2014), accessed online at on 8 July 2015; and ‘Kerry accuses Boko Haram of “crime against humanity” as atrocity images emerge’, The Japan Times (16 January 2015), accessed online at on 8 July 2015.

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element as a matter of current international custom. This point has been specifically made by the Spanish Audiencia Nacional in considering whether the Basque separatist group, the eta, may be the author of a crime against humanity.293 4.7 What is Required of the Policy Element or Impunity Principle? Ultimately, in light of all the above sources, the better view is that the attack must be committed pursuant to a policy – being a policy in a loose sense so that it includes tolerance or acquiescence – of a state or such other non-state entity that has such a level of de facto control of people, resources or territory as to amount to a ‘state-like’ entity. Whether there has been a policy – including a policy of acquiescence or tolerance – will depend on the particular facts of the case and may range from active coordination, financing and physical assistance to a failure to prevent or punish the perpetrators.294 The policy in question must be in respect of the attack rather than simply a policy to pursue some other legitimate aim that in fact results in violence or mistreatment.295 Whether a non-state entity is sufficient will depend on whether it has power sufficient to threaten or infringe on the sovereignty of the territorial state. Where the territorial state is powerful, this would include powerful non-state entities such as the Republika Srpska in Yugoslavia, the Tamil Tigers in Sri Lanka296 or (to the extent it is not considered a state) Palestine297 but not corporations or ‘mere’ terrorist organisations falling short of state-like power.298 Where a state is weak such as in the context of a situation of armed conflict or a failed state, powerful armed groups that have at least transitional military control of territory, people and resources from time to time will suffice, but not

293 (Spain) Second eta Case – Audiencia Nacional, above n 189. 294 See cases concerning the militias in Yugoslavia (Chapter 7, Section 2.5.2(a) and 3.6.2), Rwanda (Chapter 4, Section 2.2), Indonesia (Chapter 5, Section 3.1 and Chapter 7, Section 7.2.2), Guatemala and Columbia (Chapter 7, Section 2.5.2(a)), Bangladesh (Chapter 7, Section 7.1.2). See also the case of Sudan pending before the icc (Chapter 6, Section 3.1). 295 This is discussed further considering whether an attack is against a ‘population’ in Chapter 9, Section 5.1. 296 See discussion of the Tamil Tigers in the decisions of the courts of Australia, Canada, New Zealand, the uk, the us and the Netherlands in (Chapter 7, Sections 2.1.2, 2.2.2, 2.3.2, 2.4.2. 3.4.2). 297 See the discussion in Canada of an attack by the Palestinian National Security Force (Chapter 7, Section 2.2.2(c)). 298 See discussion of the eta in Spain (Chapter 7, Section 3.5.2(c)) and corporations and terrorist organisations in Palestine considered in the us (Chapter 7, Section 2.5.2(a)).

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smaller, less organised groups or criminal gangs.299 The same situation may apply where a state is temporarily and sporadically – albeit very seriously – weakened (e.g. during a coup d’état or post-election violence).300 5

Conclusion – The Raison D’être of Crimes against Humanity

As discussed above,301 any rationale for crimes against humanity must explain why it is an international crime that attracts the concern of the international community as opposed to a very serious ordinary crime that is dealt with by the territorial sovereign. Throughout the history of the concept of crimes against humanity, there have been attempts to justify the international aspect of the offence by reference to the impunity enjoyed by the perpetrators. This is most clearly, though not exclusively, demonstrated when an attack is carried out in furtherance of some state policy to commit such attack or where the perpetrators gain support from a state’s toleration, sponsorship or acquiescence. It also arises when the perpetrators have sufficient de facto power or sufficient links to such a power as to mean there is at least substantial doubt about the territorial state’s ability to ensure the perpetrators do not enjoy de facto immunity that goes with their de facto power. As Luban put it, the central core of crimes against humanity is not simply widespread or systematic atrocities, but widespread or systematic atrocities by states or state-like entities – ‘political crimes, crimes of politics gone cancerous’.302 This rationale explains why the crimes are a matter of international concern. Absent an international criminal jurisdiction, the perpetrators will potentially go unpunished. The world cannot remain silent when large scale atrocities occur by perpetrators who enjoy impunity by reason of their link to a state or a de 299 For instance, various armed groups in the drc considered by the icc (Chapter 6, Sections 2.2.4 and 2.2.3), Germany (Chapter 7, Section 3.3.2) and the drc (Chapter 7, Section 6.4.2) as well as the armed groups in Sierra Leone (discussed in Chapter 5, Section 3.2), Maoist guerillas in Nepal considered in Australia (Chapter 7, Section 2.1.2) and the Lord’s Liberation Army in Uganda considered in the Netherlands (Chapter 7, Section 3.4.2). Compare this with ‘the Network’ in the icc Kenya cases discussed in Chapter 6, Section 4.2.2 which would appear not to meet this same threshold. 300 The radical escalation of violence in Rwanda after the killing of the Rwandan President on 6 April 1994 may be a useful example of this. Other possible examples may be the post-election violence in Kenya and the Côte d’Ivoire discussed in (Chapter 6, Section 4) provided there has been a sufficiently serious debilitation of the state. 301 See the introduction and Section 3.1.2. 302 Luban, above, n 3, 108, 117.

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facto power. It is at this point that any argument in favour of state sovereignty cannot be upheld. The state has forfeited its right to resist an international criminal jurisidiction because in such a case the state is either complicit in the attack or is unable to respond effectively to such an attack. As has been argued throughout this text, there has always been a link made between what amounts to a crime against humanity and the type of attacks which warrant international ‘humanitarian intervention’. Today, this may no longer justify use of force by a state’s military (at least without Security Council approval), but international intervention now can be effected by the icc prosecutor under the icc Statute, by the Security Council in referring the matter to the icc or by states invoking an extraterritorial jurisdiction. Crimes against humanity, unlike, for example, slavery, exists not just as a statement of crimes which universally shock our concience, but also as a statement of the circumstances which justify the intervention of the international community, including by the use of force by the Security Council and/or by enforcing international prosecutions irrespective of the view of the state of the defendant. It is this element of international enforcement which gievs the label, a ‘crime against humanity’, its potency. Hence, the broader the definition of the crime, the greater the intrusion into the sovereignty of states. This is relevant not only as a matter of law but also in understanding the theoretical basis for crimes against humanity. As Luban argues, the character of crimes against humanity ‘reflects the idea that sovereignty – the talisman states invoke to shield their own political processes from interference from others – should no longer be permitted to protect politics that have become so dreadful’.303 Those who reject the policy requirement often suggest that an alternative raison d’être of crimes against humanity now exists, which arises out of concern for gross human rights abuses captured by the ‘widespread or systematic attack against a civilian population’ threshold. Hence, that threshold can be interpreted literally and can be carried out by any person, band or group without any support from a state or de facto power, provided the perpetrators have the capacity to carry out and have carried out such an attack. Mettraux, for instance,304 states that the focus is on the atrocities rather than its authors. Werle and Burghardt make a similar point in arguing that the focus is on the individuals harmed rather than the entities doing the

303 Luban, above, n 3, 109. 304 Mettraux, above n 9, 162, citing (Netherlands) In re Albrecht (No 2) 16 ilr 396 (Special Crim. Ct., Arnhem, 1948; Special Court of Cassation, ii 1949).

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harming.305 Similarly, Nadya Sadat argues that to read the ‘State or organizational’ policy requirement in the icc Statute as being limited to states or state-like entities would be to exclude ‘new variants of atrocity crimes [that] have ravaged populations on different continents at different times’ since Nuremberg.306 There are two difficulties with focusing on the victims, as opposed to the authors, in defining a crime against humanity. First, even assuming the need for a large scale atrocity, this can be undertaken by one person acting out his or her own private criminal plan, for example, by detonating a bomb in a densely populated area. Intuitively, such an act should not give rise to an international prosecution or be viewed as an international crime. It certainly does not sit with the current history of prosecutions for a ‘crime against humanity’ and the use of that label. Secondly, the major difficulty with this view is that it appears to either ignore or devalue the role of state sovereignty and the legitimate concerns by states that an expansive definition of ‘crimes against humanity’ may give rise to an unwanted international prosecution or other intervention by either the Security Council or individual states. Ultimately, prosecutions for ‘crimes against humanity’ have involved a balancing between peace and security, and between human rights and state sovereignty. The reason for this is fundamentally due to the underlying raison d’être of crimes against humanity as being one linked to humanitarian, or at least, international intervention – namely, the crime must be of a particular character as to allow the intervention of the international community in what would otherwise be the domestic affairs of another state. The balancing of, on the one hand, international peace and security based on the Westphalian sovereignty of nations, and the doctrine of humanitarian intervention in the face of grave human rights abuses, has always been difficult. International interventions to prevent human rights abuses can lead to international instability, rather than peaceful relations between states. In the nineteenth century, the old doctrine of humanitarian intervention suggested that crimes which ‘shock the conscience of humanity’ can give rise to a right in other states to intervene. This was invoked by Hitler in intervening in Czechoslovakia. With this recent history in mind, Article 6(c) of the London Charter limited the concept of crimes against humanity to situations of international war or aggression, thereby preferring international stability ahead of the need to punish perpetrators of internal atrocities. 305 Werle and Burghardt, above n 263, 1152–1153. 306 Sadat, above n 270, 375.

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Similarly, the old doctrine of humanitarian intervention did not survive the introduction of the un Charter. The un Charter prohibited the use of force by nations against each other outside the context of self-defence and or authorisation from a representative council (the Security Council) which could only act in response to threats to international peace and security under Chapter vii. From 1991, the doctrine of humanitarian intervention was reestablished by the practice of the Security Council in the form of the ‘responsibility to protect’ doctrine. As confirmed by the World Summit Outcomes of September 2005,307 states have an international duty to protect their populations from extreme violence and, in the case of a manifest failure to do so, the Security Council has the power to intervene by force. The modern notion of crimes against humanity arises, in the broad, where there is some link between a significant ‘attack’ and state complicity, inaction, indifference or impotence. Three broad conclusions may be reached as to the essential features of a crime against humanity as a matter of current international customary law. First, for an attack to constitute a ‘widespread or systematic attack directed against any civilian population’ there is a need for some minimal level of scale and seriousness to be met. Past determinations provide a guide as to such matters. Further, such threshold should not be radically removed from the type of attacks, which, as a matter of custom and practice, have been regarded as amounting to a threat to international peace, including those which have warranted intervention by the Security Council under Chapter vii. Secondly, as discussed above, the crimes need to be ‘collective’ in nature as opposed to being merely limited, isolated or random acts of violence more associated with ordinary domestic offences. Thirdly, the conclusion may be reached that the impunity principle, namely, the ‘policy element’, is a component of crimes against humanity under current customary international law. Today, this is best thought of as the requirement that there be some link between the ‘attack’ and the ‘policy’, in the broad sense, of a state or a de facto power. It is only when the relevant states are complicit, or impotent in the face of, a ‘widespread or systematic attack’ that an international jurisdiction and, hence, a crime against humanity arises. The ‘policy’ need not be explicit and can be made out by mere sponsorship, toleration, acquiescence or even manifest indifference by a state. In the case of civil war or state instability, organisations with de facto power over people or territory can also be the authors of a relevant ‘policy’. This will suffice in the face of acts of extreme violence. 307 2005 World Summit Outcome, above n 47.

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As dealt with in Chapters 6 and 9, there currently exists a controversy at the icc as to whether an ‘organization’ may be an entity that is not necessarily a ‘state-like’ entity. The analysis presented here suggests that the organization, if not ‘state-like’ should at least posses sufficient de facto power to mean the organization represents a threat to the state’s ability to deal with the perpetrators as ordinary criminals under its criminal justice system. This may require a consideration of the stability and power of the territorial state in question.

Chapter 9

Crimes against Humanity under Customary International Law and the icc: The Chapeau Elements We wish the law were otherwise but we must administer it as we find it1

⸪ 1 Introduction Both under customary international law and under the icc Statute, a crime against humanity requires that an ‘underlying crime’ be committed in the context of what is known as the ‘chapeau element’. The chapeau element of a crime against humanity is that there must be a ‘widespread or systematic attack directed against any civilian population’ and the accused’s (or perpetrator’s) acts must make up ‘part of’ that attack (the nexus requirement) as well as possessing a knowledge that their acts constitute part of the attack (the mens rea requirement). The icc Statute further requires that the attack be pursuant to a ‘State or Organizational policy’. As argued in Chapter 8, the authors contend that the better view is that, under customary international law, there must also be a policy element and a minimum level of scale. This chapter seeks to draw upon all the sources discussed in the text and analyse in detail the chapeau elements of crimes against humanity both under customary international law and under the icc Statute. Chapter 10 will then undertake the same analysis in relation to the underlying crimes. This chapter addresses this topic by addressing each aspect of the chapeau element by element: 1. 2. 3.

‘attack’ (Section 2); ‘directed against’ (Section 3); ‘any civilian’ (Section 4);

1 United States v von Loeb (1948) xi Law Reports of Trials of War Criminals 563.

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‘population’ (Section 5); ‘widespread or systematic’ (Section 6); the policy element (Section 7); and the nexus and ‘mens rea’ (Section 8).

Before undertaking this analysis, it is necessary to make a few observations about crimes against humanity under customary international law. In particular, it is important to: (a) distinguish the crime under custom from human rights law; and (b) understand whether it is peremptory norm of customary international law. 1.1 Crimes against Humanity and Human Rights Law While it is often said that crimes against humanity are closely linked to the protection of human rights,2 the norms of crimes against humanity under customary law and the principles of individual criminal responsibility are a radical deviation from the traditional state-based focus of international law. The Nuremberg Tribunal famously held that: Crimes against international law are committed by men, not abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.3 The statement was controversial at the time as some authors stated that only states could be the subject of international law.4 After Nuremberg, however, individual criminal responsibility for crimes against humanity was one of the Nuremberg Principles and may be taken, like the definition of crimes against humanity itself, to have been ‘affirmed’ by the General Assembly in Resolution 95(I) (1946). Since then, individual criminal responsibility for crimes against humanity has been well established.5 The same cannot be said about all international ‘offences’ in the loose sense of conduct condemned at the international level. A distinction exists between 2 Antonio Cassese and Paola Gaeta (eds), Cassese’s International Criminal Law (3rd ed, Oxford University Press: Oxford, 2013). 3 International Military Tribunal (Nuremberg), Judgment and Sentences (1 October 1946) (1947) 41 American Journal of International Law 172, 221. 4 Hersch Lauterpacht, International Law and Human Rights (Praeger: New York, 1950) 3, 42–45. 5 See, for example, (icty) Prosecutor v Tadić (Trial Chamber Judgment), Case No IT-94-1-T (7  May 1997) (‘Tadić – Trial’), [622]–[623] followed by the Special Court of Sierra Leone (scsl) in Prosecutor v Fofana and Kondewa (Trial Chamber Judgment), Case No SCSL-04-14-A (2 August 2007) (‘cdf – Trial’), [101].

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international crimes, stricto sensu, which impose criminal responsibility directly upon individuals (such as crimes against humanity, genocide and war crimes) and mere ‘treaty crimes’ where the only international obligation is upon the State Parties to take action as stipulated in the treaty, not individual responsibility (of which torture may be an example).6 Hence, in discerning the elements of crimes against humanity under customary international law, care must be taken when relying upon international human rights law7 and treaties such as the iccpr (or even the icc Statute). The parties to treaties are states and the duties directly created by them fall upon State Parties, not individuals. 1.2 Crimes against Humanity as a Peremptory Norm Many aspects of crimes against humanity suggest that it is a significant norm in the field of international law. Article 6(c) of the London Charter states that crimes against humanity can be committed ‘whether or not in violation of the domestic law’. Further, Article 8 states that obedience to superior orders is no defence. This is an accepted part of the concept of crimes against humanity.8 That international law can apply directly to individuals in the absence of state consent in the form of a binding treaty and irrespective of conflicting local law (or even treaty law) is very much an exception. But is the prohibition on crimes against humanity a jus cogens norm? The threshold for the establishment of such peremptory or jus cogens rules is likely higher than that for other customary rules.9 Chapter 5 argued that there are sound reasons for confining crimes against humanity, as a peremptory norm of customary international law, to ‘manifestly unlawful’ conduct as recognised by the principal legal systems of the world.10 This suggests a high hurdle has to

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For example, see Bruce Broomhall, International Justice and the International Criminal Court (Oxford University Press: Oxford, 2003), Chapter 1. See Guénaël Mettraux, ‘Using Human Rights Law for the Purposes of Defining International Criminal Offences: The Practice of the International Criminal Tribunal for the Former Yugoslavia’ in Robert Roth and Marc Henzelin (eds), Le Droit Pénal à l’épreuve de l’internationalisation (lgdj: Paris, 2002) 183. It was Principle 2 of the Nuremberg Principles and may be taken, like the definition of crimes against humanity itself, to have been ‘affirmed’ by the General Assembly in its Declaration of 1946 (Resolution 95(I)): see Affirmation of the Principles of International Law Recognized by the Charter of The Nürnberg Tribunal. For the position on superior orders under the icc Statute, see Article 33. See Michael Byers, Custom, Power and the Power of Rules: International Relations and Customary International Law (Cambridge University Press: Cambridge, 1999) 183–203. See Chapter 5, Section 4.1.

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be overcome before a new underlying offence is accorded the status of a crime against humanity. Bassiouni11 and Tams12 suggest that the prohibition against crimes against humanity constitutes a norm of jus cogens. The same has been held by the Inter-American Court of Human Rights13 and domestic courts in Belgium,14 Spain,15 Argentina,16 Italy, Uruguay17 and the uk.18 The icj has held that the Genocide Convention imposes obligations that are erga omnes19 and both the European Court of Human Rights20 and the icty21 has held that torture has obtained a jus cogens status. The result appears to be that, while the matter has not always been subjected to rigorous analysis, states generally view as uncontroversial the proposition that the prohibition on states and individuals committing crimes against humanity is a norm of customary international law that cannot be derogated from under any circumstances. This is clear from the formulation of the definition of crimes against humanity in various international instruments, as being 11

M. Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application (Cambridge University Press: Cambridge, 2011) 263, 269, 452. 12 Christian Tams, Enforcing Obligations Erga Omnes in International Law (Cambridge: Cambridge University Press, 2005) 144–145. 13 (IACtHR) Almonacid-Arellano et al. v Chile (Decision on Admissibility of Petition), InterAmerican Court of Human Rights, Report No 44/02, Doc 5 (9 October 2002), [99]. 14 (Belgium) Aguilar Diaz et al. v Pinochet, Tribunal of First Instance of Brussels (Belgium), order of 6 November 1998 (‘Belgian Pinochet Case’), reprinted in (1999) 118 Journal des Tribunaux 308 with critical note by Joe Verhoeven. See English summary by Luc Reydams in (1999) 93(3) American Journal of International Law 700, 702–703. 15 (Spain) Sentencia por crímenes contra la humanidad en el caso Adolfo Scilingo, Audiencia National Española, No 16/2005 (19 April 2005) (‘Scilingo – Audiencia National’) accessed online at , Fundamentos, Sexto, [4]–[5]. 16 (Argentina) Case of Julio Hector Simon (Decision declaring Argentina’s Amnesty Laws Unconstitutional), Supreme Court of Justice of Argentina, Case No 17.768 (14 June 2005). 17 (Uruguay) Ministerio Publico c Alvarez Armellino y Larcebeau Aguirregaray (Judgment), Juez Penal de Turno Montevideo, Decision No 0157 (29 October 2009), 166, 204–205. 18 (uk) R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte [2000] 1 ac 61 (‘Pinochet No 1’), 108–109. 19 (icj) Case Concerning Armed Activities on the Territory of the Congo (drc v Rwanda) (Decision on Jurisdiction of the Court and Admissibility of the Application), Case No 126/2006 (3 February 2006), [64]. 20 (ECtHR) Al-Adsani v United Kingdom (2002) 34 ehrr 273 (‘Al-Adsani – echr’), [60]. 21 (icty) Prosecutor v Furundžija (Trial Chamber Judgment), Case No IT-95-17/I-T (10 December 1998) (‘Furundžija – Trial’), [144]–[154].

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without any defence, as trumping domestic law, and as applying notwithstanding a person’s official status. This broad application supports the need for care not to allow crimes against humanity to become over inclusive and cover all forms of human rights violations the derogation from which may in fact be permissible. That said, the question of whether the prohibition on crimes against humanity is a norm of jus cogens character is different from the question of whether a particular state has jurisdiction to try a person for crimes against humanity. The jurisdiction to try and the role of jus cogens in that discussion will be addressed in Chapter 11. 2

The ‘Attack’

2.1 Course of Conduct The tribunals have generally defined an ‘attack’ as requiring a ‘course of conduct’ involving the commission of acts of violence or other acts of mistreatment of the civilian population.22 Similarly, the icc Statute defines an ­‘attack’ as requiring ‘a course of conduct involving the multiple commission

22 (icty) Prosecutor v Tadić (Decision on the Form of the Indictment), Case No IT-94-1-A, (14 November 1995) (‘Tadić – Indictment’), [11]; Prosecutor v Kunarac, Kovac and Vukovic (Trial Chamber Judgment), Case No IT-96-23 & IT-96-23 (22 February 2001) (‘Kunarac – Trial’), [415] and [422]; affirmed generally in Prosecutor v Kunarac, Kovac and Vukovic (Appeals Chamber Judgment), Case No IT-96-23 & IT-96-23 (12 June 2002) (‘Kunarac – Appeal’), [89]; Prosecutor v Naletilić (Trial Chamber Judgment), Case No IT-98-34-T (31 March 2003) (‘Naletilić – Trial’), [233]; Prosecutor v Limaj, Bala and Musliu (Trial Chamber Judgment), Case No IT-03-66-T (30 November 2005) (‘Limaj – Trial’), [182]; Prosecutor v Krnojelac (Trial Chamber Judgment), Case No IT-97-25-T (15 March 2002) (‘Krnojelac – Trial’), [54]; Prosecutor v Vasiljević (Trial Chamber Judgment), Case No IT-98-32-T (29  November 2002) (‘Vasiljević – Trial’), [29]; Prosecutor v Radoslav Brđanin (Trial Chamber Judgment), Case No IT-99-36-T (1 September 2004) (‘Brđanin – Trial’), [131]; Prosecutor v Perišić (Trial Chamber Judgment), Case No IT-04-81-T (6 September 2011) (‘Perišić – Trial’), [82]; (ictr) Prosecutor v Nahimana (Appeals Chamber Judgment), Case No ICTR-99-52-A (28 November 2007) (‘Nahimana – Appeal’), [918]; Prosecutor v Bagosora et al. (Trial Chamber Judgment), Case No ICTR-98-41-T (18 December 2008) (‘Bagosora – Trial’), [2165]; Prosecutor v Yussuf Munyakazi (Trial Chamber Judgment), Case No ICTR-97-36A (5 July 2010) (­‘Munyakazi – Trial’), [503]; Prosecutor v Ephrem Setako (Trial Chamber Judgment), Case No ICTR-04-81-T (25 February 2010) (‘Setako – Trial’), [476]; (spet) Public Prosecutor v Marques (Judgment), Special Panel Case No 09/2000 (11 December 2001) (‘Los Palos – Judgment’), [636], citing (icty) Prosecutor v Blaškić (Trial Chamber Judgment),

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of acts[…]’.23 However, an ‘attack’ for the purposes of the definition of crimes against humanity is distinct from the notion of armed conflict.24 An attack need not be directed at an enemy and may take place entirely in peacetime; it may precede or outlast any period of armed conflict, or it may overlap with and form part of the armed conflict in a territory.25 In a military operation where combatants use armed force, civilian casualties or violations of the laws of war will not of themselves amount to an attack for the purpose of the threshold for crimes against humanity. The icty Trial Chamber in Limaj held that while there need not be a ‘military assault or forceful takeover’ to demonstrate an ‘attack’, ‘the existence of an attack is most clearly evident when a course of conduct is launched on the basis of massive state action’26 and where ‘the attacking force possessed Case No IT-95-14-T (3 March 2000) (‘Blaškić – Trial’), [202]. See also (scsl) cdf – Trial, above n 5, [111] (defined an attack as ‘a campaign, operation or course of conduct’), citing Prosecutor v Brima, Kanu and Kamara (Decision on Motion for Judgment of Acquittal), Case No SCSL-04-16-T (31 March 2006) (‘Brima – Acquittal’); (eac) Ministère Public v Habré (Judgment) (30 May 2016), accessed online at (only available in French) (‘Habré – Trial’), [1356]–[1357]. 23 icc Statute, Art 7(2)(a). 24 (icty) Prosecutor v Tadić (Appeals Chamber Judgment), Case No IT-94-1-A (15 July 1999) (‘Tadić – Appeal’), [251]; Kunarac – Appeal, above n 22, [86]; Vasiljević – Trial, above n 22, [30]; Limaj – Trial, above n 22, [182]; (ictr) Prosecutor v Akayesu (Trial Chamber Judgment), Case No ICTR-96-4-T (2 September 1998) (‘Akayesu – Trial’), [565]; Prosecutor v Semanza (Trial Chamber Judgment), Case No ICTR-97-20-T (15 May 2003) (‘Semanza – Trial’), [443] (scsl) Prosecutor v Charles Ghankay Taylor (Trial Chamber Judgment), Case No SCSL-2003-01-T (26 April 2012) (‘Taylor – Trial’), [506]; (eccc) Kaing Guek Eav alias Duch (Trial Chamber Judgment), eccc, Case No 001/18-07-2007/ECCC/TC (26 July 2010) (‘Duch – Trial’), [299]; Prosecutor v Chea and Samphan (Trial Chamber Judgment), Case No 002/19-09-2007/ECCC/TC (7 August 2014) (‘Case 002/01 – Trial’), [178]; (eac) Habré – Trial, above n 22, [1357]. See also (icc) Elements of Crimes, Introduction to Article 7 of the Statute, [3]; Authorisation of an Investigation into the Situation in the Republic of Kenya (Pre-Trial Chamber ii Decision), ICC-01/09-19 (31 March 2010) (‘Kenya – Authorisation Decision’), [80]; Prosecutor v Bemba Gombo (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo), ICC-01/05-01/08 (15 June 2009) (‘Bemba Gombo – Confirmation’), [75] (distinguishing an attack from a ‘military attack’). 25 (icty) Kunarac – Appeal, above n 22, [86] (relying on the principle in Tadić – Appeal, above n 24, [251]); Vasiljević – Trial, above n 22, [30]; Limaj – Trial, above n 22, [182]; (scsl) Prosecutor v Brima, Kamara and Kanu (Trial Chamber ii Judgment), Case No SCSL-04-16-T (20 June 2007) (‘afrc – Trial’), [214]; (eccc) Duch – Trial, above n 24, [299]; Case 002/01 – Trial, above n 24, [178]; (eac) Habré – Trial, above n 22, [1357]. 26 (icty) Limaj – Trial, above n 22, [194].

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­overwhelming superiority’.27 An attack was more difficult to establish in the situation there at hand involving the Kosovo Liberation Army (kla) who were ‘a guerrilla force engaged in limited combat with superior, conventional military forces’.28 Nonetheless, the Tribunal was satisfied that the cumulative effect of the kla’s insurgent tactics of bombing local businesses and killing of their proprietors as well as abduction tactics used to influence the military and strategic contest constituted an ‘attack’.29 It is unclear whether or not an ‘attack’ requires multiple acts or whether an attack can consist of one act with multiple victims. For example, can one act of violence, such as a chemical attack or bomb explosion which leaves many people dead and injured, constitute a ‘crime against humanity’? While the Trial Chamber in Akayesu held that a single act could amount to an attack,30 the icty Trial Chamber in Tadić held the opposite:31 The very nature of the criminal acts in respect of which competence is conferred upon the International Tribunal by Article 5, that they be “directed against any civilian population”, ensures that what is to be alleged will not be one particular act but, instead, a course of conduct. Later decisions have been less clear. The icty Trial Chamber in Kunarac was more equivocal, citing the above passage in defining an attack as a ‘course of conduct’ but stating only that an attack ‘generally’ ‘will not consist of one particular act but of a course of conduct’.32 Despite this nuance, a number of icty Trial Chambers have cited Kunarac only for the proposition that an ‘attack’ 27 (icty) Limaj – Trial, above n 22, [195]. 28 (icty) Limaj – Trial, above n 22, [195]. 29 (icty) Limaj – Trial, above n 22, [196]–[204]. 30 (ictr) Akayesu – Trial, above n 24, [581] (which refers to ‘a [sic] unlawful act…’). Note, that it has been said – incorrectly – that the icty Trial Chamber in Prosecutor v Mrkšić (Decision on Review of Indictment Pursuant to Rule 61), Case No IT-95-13-R61 (3 April 1996) (‘Mrkšić – Indictment’) supports this proposition. However, the relevant section of the Trial Chamber’s decision is referring to the individual crimes that form part of the attack – not the attack itself (‘However, as long as there is a link with the widespread or systematic attack against a civilian population, a single act could qualify as a crime against humanity’). 31 (icty) Tadić – Indictment, above n 22, [11]. See also similar comments made in Blaškić – Trial, above n 22, [202]. 32 (icty) Kunarac – Trial, above n 22, [415] and [422]; affirmed generally in Kunarac – Appeal, above n 22, [89]. cdf – Trial, above n 5, [111] (defined an attack as ‘a campaign, operation or course of conduct’), citing Brima – Acquittal, above n 22.

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may be defined as a ‘course of conduct’, without mentioning the further aspect of the Tribunal’s finding.33 Similarly, the ictr (including both Trial and Appeal Chambers) have cited Kunarac for the conclusion that an attack must constitute ‘a series of acts’.34 The same finding has been made by the spet.35 In contrast with these authorities, a number of icty Trial Chambers have adopted the view of the ilc36 that an attack may be ‘widespread’ either because­of the ‘cumulative effect of a series of inhuman acts or the singular effect of an inhumane act of extraordinary magnitude.’37 This line of authority was followed by the the Extraordinary African Chambers in Habré,38 and was followed in the eccc notwithstanding the fact that the Tribunal defined an attack as referring to ‘the multiple commission of acts of violence’.39 The scsl has appeared to leave the question open, defining attack as meaning a ‘campaign, operation or course of conduct’ (emphasis added).40 This question becomes important in the context of terrorism. Can one ­significant act of terrorism constitute a crime against humanity? After the ­September 11 attacks, a number of writers claimed that they were crimes against humanity.41 By contrast, a number of writers have claimed that they 33

See (icty) Naletilić – Trial, above n 22, [233]; Limaj – Trial, above n 22, [182]; Krnojelac – Trial, above n 22, [54] (‘can be defined as’); Vasiljević – Trial, above n 22, [29]; Brđanin – Trial, above n 22, [131]; Perišić – Trial, above n 22, [82]. 34 (ictr) Nahimana – Appeal, above n 22, [918]; Bagosora – Trial, above n 22, [2165]; Munyakazi – Trial, above n 22, [503]; Setako – Trial, above n 22, [476]. 35 (spet) Los Palos – Judgment, above n 22, [636], citing (icty) Blaškić – Trial, above n 22, [202]. 36 Report of the International Law Commission on the work of its forty-eighth session, 6 May – 26 July 1996, un gaor, 51st sess, Supp. 10, un Doc. A/51/10 (12 November 1996) 94–95 (‘1996 ilc Report’). 37 (icty) Prosecutor v Blagojević and Jokić (Trial Chamber Judgment), Case No IT-02-60-A (17 January 2005) (‘Blagojević – Trial’), [545]; Blaškić – Trial, above n 22, [206]. 38 (eac) Habré – Trial, above n 22, [1359]. 39 (eccc) Duch – Trial, above n 24, [298], citing (ictr) Nahimana – Appeal, above n 22, [918] and at [300], citing Blaškić – Trial, above n 22, [206]. The same approach was taken in Case 002/01 – Trial, above n 24, [178]–[179]. 40 (scsl) Prosecutor v Sesay, Kllon and Gbao (Trial Chamber Judgment), Case No SCSL04-15-T (2 March 2009) (‘ruf – Trial’), [77]; cdf – Trial, above n 5, [111]; Taylor – Trial, above n 24, [506]. 41 Antonio Cassese, ‘Terrorism is also Disputing Some Crucial Legal Categories of International Law’ (2001) 12 European Journal of International Law 993, fn 5 (Cassese also lists Robert Badinter and the un Secretary-General Kofi Annan as holding this view); Geoffrey Robertson qc, ‘It’s a Crime, Not a War: The Terrorist Attack on New York City’, The ­Guardian (12 September 2001); Alain Pellet, ‘Non, ce n’est pas la guerre!’, Le Monde

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were not.42 It should be noted, however, that the attacks of September 11 2001 consisted of more than one criminal act and the legal issues revolving around these attacks primarily concerned the question of the extent to which nonstate actors, such as terrorists, can satisfy any ‘state or organizational policy’ requirement which is discussed below. At least under customary international law, there does not appear to be any well-grounded legal basis for excluding the possibility that an inhumane act of extraordinary magnitude may amount to an ‘attack’ and a crime against humanity if the other elements of the offence are made out. Whilst this is without legal precedent in fact, it was accepted as possible by the ilc in its 1994 Report.43 Such a situation must of course be distinguished from a situation where an isolated inhumane act is directed at a single victim or on behalf of a single, isolated individual – both of which the ilc considered would not constitute a crime against humanity.44 This leaves for consideration whether such an interpretation is open to the icc given the language of Article 7(2)(a) of the icc Statute (which defines ‘attack’ to mean ‘a course of conduct involving the multiple commission of acts referred to in paragraph 1’ (emphasis added)). The negotiations at Rome reveal that the wording arose out of concerns by some States’ delegations that a definition which permitted either a purely ‘systematic’ attack or a purely ‘widespread’ attack may not properly capture the necessary threshold requirement



(21 ­September 2001); Interview with Benjamin Ferencz, former imt prosecutor (19 September 2001) accessed online at ; Christopher Greenwood qc, ‘International law and the “war against terrorism”’ (2002) 78 International Affairs 301; Jordan Paust, ‘There is No Need to Revise the Laws of War in Light of September 11th’, The American Society of International Law Task Force on Terrorism (November 2002), available online at ; Frederic Kirgis, ‘Terrorist Attacks on the World Trade Centre and the Pentagon’, asil Insights (Sep 2002), available online at ; David Scheffer, ‘Staying the Course with the International Criminal Court’ (November 2001/February 2002) 35 Cornell International Law Journal 47; Human Rights Watch, ‘September 11: One Year On’, available online at ; Chibli Mallat, ‘The Original Sin: “Terrorism” or “Crimes against Humanity” ‘(Fall 2002) 34(2) Case Western Reserve Journal of International Law 245; Mark Drumbl, ‘Terrorist Crime, Taliban Guild, Western Victims, and International Law’ (Fall 2002); ‘International Law and the Challenge of Terrorism’ (Fall/Winter 2004) 9 Journal of Islamic Law & Culture 1. 42 William Schabas, ‘Is Terrorism a Crime against Humanity’ (2004) 8 International Peacekeeping: The Yearbook of International Peace Operations 255. 43 1996 ilc Report, above n 36. 44 1996 ilc Report, above n 36, 95, [4]–[5].

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of a crime against humanity.45 The history of its drafting suggests it was inserted in the definition to ensure some minimal level of scale for a purely ‘systematic’ attack, thereby bringing about a compromise between those delegations which regarded the qualifiers ‘widespread’ and ‘systematic’ as cumulative requirements and those who saw them as true alternatives.46 This background suggests that the rationale behind the wording ‘a course of conduct involving the multiple commission of acts […]’ was to exclude a purely isolated or random acts of violence rather than to require the commission of at least two acts. This is supported by the statements of the Trial Chamber in Tadić and the ilc prior to the Rome Conference.47 Hence, the correct distinction to be drawn is between a single, but ‘isolated’ inhumane act of extraordinary magnitude – such as the act of a lone criminal who may detonate a bomb in a crowded office building (which would not be a crime against humanity) – and the case where the act is the result of a well organised, planned and executed ‘State or organisational policy’ to target a civilian population by a single act but with widespread consequences – such as where a State uses its military to drop a bomb or chemical weapon on a civilian town or village (which could be a crime against humanity). The necessary planning by the State reveals a ‘course of conduct’, a ‘policy’ and, in such a case, the words ‘multiple commission of acts’ should be interpreted sufficiently broadly to cover a case where there are multiple defendants and multiple victims on a large scale. The jurisprudence in the icc on this point is not yet clear. On the one hand, icc Pre-Trial Chamber ii in the Kenya Authorisation Decision appeared to open the way for the acceptance of this position, citing with apparent approval the statement of the ilc on this point.48 On the other hand, however, the Trial Chamber in Bemba Gombo appeared to go the other way, noting that the term ‘course of conduct’ imposed a ‘quantitative threshold’ that required ‘more than a few’, ‘several’ or ‘many’ acts. 2.2 Acts of Violence or Other Mistreatment While early trial chambers held that an attack required ‘the commission of acts of violence’,49 the icty Appeals Chamber in Kunarac and more recent 45

William Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press: Oxford, 2010) 141; see also Chapter 4, Sections 4.1, 4.2 and 4.3.2. 46 Chapter 4, Section 5.2.2. 47 Chapter 4, Section 5.2.2; Chapter 3, Section 3.3.2(iv). 48 (icc) Kenya Authorisation Decision, above n 24, [95]. 49 (icty) Kunarac – Trial, above n 22, [415] and [422]; followed in Vasiljević – Trial, above n 22, [29]; Naletilić – Trial, above n 22, [233] and Brđanin – Trial, above n 22.

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tribunals accept that an attack ‘encompasses any mistreatment of the civilian population’.50 The Trial Chamber in Krajišnik held that an attack may also encompass not only the ‘conduct causing physical or mental injury, [but also] acts preparatory to such conflict’.51 By way of example, in the Blagojević and Jokić case, the relevant ‘attack’ comprised both the shelling and sniping of civilians, and subjecting them to abuse, degrading conditions and aggressively separating men from women and children.52 This position is similar to that at the icc, where an attack for the purposes of article 7(1) of the Rome Statute is not restricted to a ‘military attack’; instead, the term refers only to ‘a campaign or operation carried out against a civilian population’.53 There remains uncertainty as to whether mere ‘mistreatment’ in the nature of a non-violent act or course of conduct can be an ‘attack’. For example, can the systematic or widespread imprisonment of civilians – such as the imprisonment of Americans of Japanese descent during World War 2 – be an ‘attack’ and therefore a ‘crime against humanity’? The ictr Trial Chamber in Akayesu explicitly said the ‘attack’ might be non-violent in character, such as imposing a policy of apartheid which is not listed in Article 3, a finding that has been followed in other decisions.54 A similar finding was made by the Supreme Court of Canada in Mugesera: 50 (icty) Kunarac – Appeal, above n 22, [86]; Prosecutor v Kordić and Čerkez (Appeals Chamber Judgment), Case No IT-95-14/2-A (17 December 2004) (‘Kordić – Appeal’), [666]; Limaj – Trial, above n 22, [182]; (ictr) Nahimana – Appeal, above n 22, [918]; (scsl) Prosecutor v Brima, Kamara and Kanu (Decision on Defence Motion for Judgment of Acquittal Pursuant to Rule 98), Case No SCSL-2004-04-16-TR98 (31 March 2006) (‘afrc – Rule 98 Decision’), [42]; afrc – Trial, above n 25, [214]; ruf – Trial, above n 40, [77]; cdf – Trial, above n 5, [111]; Taylor – Trial, above n 24, [506]; (eccc) Duch – Trial, above n 24, [298] (citing Nahimana – Appeal, above n 22, [918]) and Case 002/01 – Trial, above n 24, [178] (accepting the terminology of ‘acts of violence’ although accepting that it encompasses any mistreatment of the civilian population); (iht) Prosecutor v Anfal (Special Verdict), Iraqi High Tribunal, Case No 1/CSecond/2006 (24 July 2007) (‘Anfal – Trial’), 519. 51 (icty) Prosecutor v Krajišnik (Trial Chamber Judgment), Case No IT-00-39-T (27 September 2006) (‘Krajišnik – Trial’), [706] (emphasis added). 52 (icty) Blagojević – Trial, above n 37, [551] and Section ii, C. 53 (icc) Elements of Crimes, Introduction to Article 7 of the Statute, [3]; Kenya Authorisation Decision, above n 24, [80] and Bemba Gombo – Confirmation, above n 24, [75]. 54 (ictr) Akayesu – Trial, above n 24, [581]; Prosecutor v Musema (Trial Chamber Judgment), Case No ICTR-96-13-T (27 January 2000) (‘Musema – Trial’), [205]; Prosecutor v Georges Anderson Nderubumwe Rutaganda (Trial Chamber Judgment), Case No ICTR-96-3-T (6 December 1999) (‘Rutaganda – Trial’), [69]; Semanza – Trial, above n 24, [205]; (scsl) afrc – Rule 98 Decision, above n 50, [42].

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An “attack” may be “a course of conduct involving the commission of acts of violence”. It may also be a course of conduct that is not characterized by the commission of acts of violence if it involves the imposition of a system such as apartheid, or the exertion on the population of pressure to act in a particular manner that is orchestrated on a massive scale or in a systematic manner. It is fair to say, however, that in most instances, an attack will involve the commission of acts of violence.55 (citations omitted) In the case law of the ictr, ‘attack’ is generally defined as an unlawful act, event, or series of events of the kind listed in Article 3(a)-(i) of the Statute.56 This suggests that the acts making up the ‘attack’ need not be the crimes provided for in the Statute nor must they be violent, but they should be of equal gravity. Some writers have doubted that mere ‘mistreatment’, being the commission of purely non-violent acts can constitute an ‘attack’ and hence, be a crime against humanity. Bassiouni has, for instance, argued that examples such as the detention of Americans of Japanese descent during World War 2 will not reach the certain threshold level of inhumane conduct needs to be reached before a crime against humanity is involved.57 Mettraux disputes that a system of apartheid could be regarded as ‘non-violent’ or that any ‘attack’ within the meaning of crimes against humanity could be non-violent in the broad sense of the word.58 David Luban also agrees with this view stating: The requirement of an attack means that something more is going on than the erection of a stable system of group subordination or 55 (Canada) Mugesera v Canada (Minister of Citizenship and Immigration), [2005] 2 s.c.r. 100, 2005 scc 40, [153]. 56 (ictr) Akayesu – Trial, above n 24, [581]; Prosecutor v Muhimana (Trial Chamber Judgment), Case No ICTR-95-1B-T (28 April 2005) (‘Muhimana – Trial’), [526]; Prosecutor v Gacumbitsi (Trial Chamber Judgment), Case No ICTR-2001-64-T (17 June 2004) ­(‘Gacumbitsi – Trial’), [298]; Semanza – Trial, above n 24, [327]; Musema – Trial, above n 54, [205]; Rutaganda – Trial, above n 54, [69]; and also followed in Prosecutor v Kajelijeli (Trial Chamber Judgment), Case No ICTR-98-44A-T (1 December 2003) (‘Kajelijeli – ­Trial’), [867]. See also Prosecutor v Kayishema and Ruzindana (Trial Chamber Judgment), Case No ICTR-95-1-T (21 May 1999) (‘Kayishema – Trial’), [122] (requiring ‘a combination of the enumerated crimes’). 57 M. Cherif Bassiouni, Crimes Against Humanity (1st ed, 1992), 252. 58 Guénaël Mettraux, International Crimes and the Ad Hoc Tribunals (Oxford University Press: Oxford, 2005), 156.

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o­ ppression, such as the subordination of women throughout most of recorded ­history. The word suggests something dynamic, something ­moving and ongoing – a persecution in the process of getting worse, persecution ­conducted through a military campaign of some kind, persecution working to destroy or drive away the persecuted group rather than subordinating and exploiting it, and typically conjoined with crimes of the murder type. […] No good purpose is served by labeling all the world’s oppressions crimes against humanity. […] [An attack] requires specific flash points of criminality over and above the general evil of erecting a social system of oppression and domination.59 Professor Ratner has likewise argued that crimes against humanity refers to ‘a set of acts against human life, liberty, physical welfare, health or dignity, undertaken as part of a widespread or systematic attack against a civilian population’.60 The question has arisen in a number of us civil cases.61 One us Court of Appeals assumed without deciding that a blockade of food and medical supplies could amount to an attack against a civilian population.62 In that case, it was alleged that a blockade imposed by Papua New Guinean authorities on the people of Bougainville caused the death of more than 2,000 children in its first two years and some 10,000 Bougainvilleans had died by 1997.63 While one District Court held that housing prison inmates in an area susceptible to a particular diseases was not sufficient,64 another District Court held that mere persecution of the lgbti community in Uganda without any particular acts of violence could potentially amount to an ‘attack’.65 While not discussed in great 59

David Luban, ‘A Theory of Crimes against Humanity’ (2004) 29 Yale Journal of International Law 85, 101–102. 60 Evidence provided to the us District Court for the Central District of California: see (­United States) Sarei v Rio Tinto , plc 22 F. Supp. 2d 1116, District Court for the Central District of California (‘Sarei v Rio Tinto – District Court’), 1149. 61 The cases are all discussed further in Chapter 7, Section 2.5.2(a). 62 (United States) Sarei v Rio Tinto, plc, 671 F.3d 736, Court of Appeals for the Ninth Circuit, Judgment, 25 October 2011. See also Sarei v Rio Tinto – District Court, above n 60, 1150. 63 (United States) Sarei v Rio Tinto – District Court, above n 60, 1126. 64 (United States) Miguel Angel Morales v Governor Edmund Brown, 2015 u.s. Dist. LEXIS 142676, District Court for the Northern District of California, Judgment, 19 October 2015, 26. 65 (United States) Sexual Minorities Uganda v Lively, 960 F. Supp. 2d 304, District Court for the District of Massachusetts, Opinion, 14 August 2013, 319–320.

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detail, it may be that a concern about the non-violent nature of the allegations drove the Chilean decision in the Israeli Judges Case concerning allegations of certain Israeli judges supporting the construction of the West Bank security barrier and seizing goods from Palestinians.66 Some cases have appeared to hold that non-violent acts may be sufficient, albeit in circumstances that appear to clearly encompass violence. The Court of Appeal of The Hague in the Netherlands found that the actions of the Tamil Tigers in imprisoning and detaining its own population amounted to an ­‘attack’.67 Yet, this occurred either during a period where such detention left the civilians trapped in a war zone or otherwise in a broader context of violence towards the population. A further us District Court held that the deportation of civilians around a particular set of oil fields in the Sudan may amount to an attack against a civilian population.68 Yet, the individuals were deported forcefully and often by military action. In Romania, it has been held by the High Court of Cassation that the mistreatment of prisoners in custody was sufficient to amount to a crime against humanity in circumstances where the prisoners were largely political prisoners and the Court found the mistreatment to be directed at instituting a r­ egime of exterminating political prisoners.69 Similarly, cases in Estonia, Latvia and Hungary have found that deportation on its own was sufficient in circumstances where such actions were large-scale and often directed at political opponents and undesirables.70 Ultimately, the better view appears to be that an ‘attack’ will necessarily require either aggression or violence of some conventional kind or mistreatment on such a scale or of such seriousness, most usually perpetrated by a state, such that the only conclusion is that it can only be understood as an

66 (Chile) Sentence First December 2016, 5° Juzgado de Garantía de Santiago, Chile, rit 4471-2016, accessed online at on 17 October 2017. See discussion in Chapter 7, Section 4.2.2. 67 (Netherlands) Gerechtshof Den Haag, ecli: nl: ghdha: 2015: 1082, Case No 22-005123-11, Judgment, 7 May 2015. 68 (United States) Presbyterian Church of Sudan v Talisman Energy Inc, 453 F. Supp. 2d 633, District Court for the Southern District of New York, Opinion, 12 September 2006, 670–671. 69 (Romania) High Court of Cassation and Justice (Criminal Section), Case No 3986/2/2014, Judgment (10 February 2016) (Vişinescu – Court of Cassation), 3. See discussion in Chapter 7, Section 5.5.2. 70 Discussed in Chapter 7, Sections 5.2.2, 5.3.2 and 5.4.2.

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act of ­aggression or violence towards that population rather than the pursuit of some other legitimate aim. Such an interpretation of the word ‘attack’ is in accordance with the ordinary meaning of the word.71 It is also consistent with the view put forward in Chapter 8 by the authors that a proper analysis of state practice and opinio juris reveals that a crime against humanity must reach a minimum level of scale and seriousness in order to warrant the intervention of the international community.72 This position is consistent with the jurisprudence of the ad hoc tribunals, where mistreatment of the relevant population usually formed part of a broader pattern of detaining, mistreating and killing members of a particular population by a state or armed group. It is also consistent with the few authorities that do not concern attacks by way of a state or armed group (i.e. attacks in the conventional sense of armed violence). In Limaj for instance, the icty Trial Chamber clearly considered the issue of whether what had occurred was an ‘attack’ where a non-state guerrilla force, the kla, was ‘engaged in limited combat with superior, conventional military forces’.73 The Tribunal there went to some lengths to satisfy itself that the type of operation that the kla were conducting could properly be characterised as an ‘attack’. The same issue confronts the interpretation of the Rome Statute. Under the definition in Article 7 of the icc Statute, an ‘attack’ is defined in Article 7(2) to mean ‘a course of conduct involving the multiple commission of acts referred to in paragraph 1…’. …The question arises as to whether the definition of the term ‘attack’ in this manner leads to a different conclusion than that under customary international law. Put differently, the question is whether the word ‘attack’ in Article 7(1) incorporates any normative content above and beyond a literal reading of the words ‘course of conduct involving the multiple commission of acts referred to in paragraph 1…’. On this question, no settled position has yet been reached at the icc. On the one hand, icc Pre-Trial Chamber ii in Bemba Gombo has taken a literal view of the definition in Article 7(2), holding that the term means that ‘more than a few isolated incidents or acts as referred to in article 7(1) of the 71

Oxford English Dictionary: ‘[t]o take aggressive military action against (a place, or enemy forces, equipment etc.) with weapons or armed forces; to begin a military assault on’, ‘[t]o begin or engage in aggressive and violent physical action against (a person or animal); to attempt to injure or kill; to assault’; ‘[t]o launch or engage in a military or violent physical attack’. 72 Chapter 8, Section 3. 73 (icty) Limaj – Trial, above n 22, [195]ff.

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Statute have occurred’.74 The Pre-Trial Chamber held that ‘[t]he commission of the acts referred to in [A]rticle 7(1) of the Statute constitute the “attack” itself and, beside the commission of the acts, no additional requirement for the existence of an “attack” should be proven.’75 The Trial Chamber in Bemba Gombo appeared to take the same approach.76 The majority in the Katanga Trial Judgment went even further, noting that the term ‘attack’ required ‘campaign, an operation or a series of actions directed against a civilian population, viz. a course of conduct and not a single isolated act’77 but that ‘a single event may well constitute an attack within the meaning of article 7(2)(a), provided that the other elements of that article are met’.78 This appears to be in line with Professor Luban’s suggestion that ‘multiple’ could be read to include ‘as few as two’ acts.79 This also appears to imply that the term ‘attack’ itself incorporates very little normative content. On this view, an attack may indeed be non-violent or non-aggressive. Some of the crimes in Article 7(1), such as persecution, imprisonment, inhumane acts, may be broad enough to encompass non-violent acts. For example, persecution may encompass attacks on economic or civil rights, such as the right to employment or to enjoy property.80 By contrast, in the Laurent Gbagbo Confirmation Decision, icc Pre-Trial Chamber i held that the expression ‘course of conduct’ ‘embodies a systemic aspect as it describes a series or overall flow of events as opposed to a mere aggregate of random acts’ and that it ‘implies the existence of a certain pattern’.81 The Court continued that while multiple acts are necessary, the occurrence of 74 (icc) Bemba Gombo – Confirmation, above n 24, [80]–[81] (relying on Rodney Dixon, ‘Article 7 Crimes Against Humanity: Para 1 “Chapeau”’ in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court – Observer’s Notes, Article by Article (2nd ed, ch Beck etc.: Munich, 2008) 234–235), followed in Prosecutor v Laurent Gbagbo (Pre-Trial Chamber Confirmation Decision), ICC-02/11-01/11-656-Red (12 June 2014) ­(‘Laurent Gbagbo – Confirmation’), [209]. 75 (icc) Bemba Gombo – Confirmation, above n 24, [75], citing: Akayesu – Trial, above n 24, [581]. 76 (icc) Prosecutor v Jean-Pierre Bemba Gombo (Trial Chamber iii Judgment), ICC-01/0501/08-3343 (21 March 2016) (‘Bemba Gombo – Trial’), [149]–[151]. 77 (icc) Prosecutor v Germain Katanga (Trial Chamber Judgment), ICC-01/04-01/07-3436tENG (7 March 2014) (‘Katanga – Trial’), [1101]. 78 (icc) Katanga – Trial, above n 77, [1101]. 79 Luban, above n 59, 107. 80 On property crimes as crimes against humanity, see Chapter 10. 81 (icc) Laurent Gbagbo – Confirmation, above n 74, [209].

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those acts is not the only evidence that may be relevant to prove its existence; rather that ‘evidence relevant to proving the degree of planning, direction or organisation by a group or organisation is also relevant to assessing the links and commonality of features between individual acts’ for the purpose of determining whether the requisite ‘pattern’ of behaviour is present.82 On balance, the better view is that the term ‘attack’ under Article 7(1) does carry a normative content and should be read in the same or at least a similar manner as that term under customary international law. First, Article 21 of the icc Statute explicitly provides that recourse may be had ‘where appropriate’ to principles and rules of international law. Particularly when read in light of Article 21, the use of the word ‘attack’ and ‘course of conduct’ in Article 7(1) and (2) is ambiguous or obscure within the meaning of Article 32 of the Vienna Convention of the Law on Treaties. As such, recourse may be had to the preparatory work of the treaty and the circumstances of its conclusion.83 Secondly, this conclusion is consistent with the historical background to the inclusion of the definition for ‘attack’. As discussed above84 and in Chapter 8,85 the definition was to ensure a minimum level of content was attributed to the term ‘attack’; it was not intended to set out the only requirements of the term ‘attack’. The term ‘attack’ itself was uncontroversial and had been used in both the icty Statute and the ictr Statute (both dealing with attacks involving state-sponsored armed violence) and referred to by the ilc. Indeed, the icty itself had defined the word ‘attack’ to mean a ‘course of conduct’.86 In such circumstances, there has been no apparent intention to depart from the meaning of the term ‘attack’ under customary international law. In light of these considerations, the term should not be understood to have been defined exhaustively, but in a manner that includes the ordinary meaning of the term ‘attack’ in addition to the words ‘course of conduct’. As noted above, this conclusion is more consistent with the ordinary meaning of the word ‘attack’.

82 (icc) Laurent Gbagbo – Confirmation, above n 74, [210]. 83 On when definitional clauses may be misleading, see (icc) Prosecutor v Ruto and Sang (Decision on Defence Applications for Judgments of Acquittal), ICC-01/09-01/11 (5 April 2016) (‘Ruto – Defence Application for Acquittal’), [308] and authorities cited therein (see also [319]–[320]). 84 See above, Section 2.1. 85 See Section 3.1. 86 See above, Section 2.1.

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2.3 Particularising the Attack A prosecutor will be required to particularise the relevant ‘attack’ that it is relying upon. That said, the ad hoc Tribunals have allowed prosecutors a wide discretion to determine which attack they choose to rely on. On the one hand, the attack may be a smaller part of a broader conflict. For instance, in Blagojević, the ‘Krivja 95’ operation on Srebrenica was the relevant ‘attack’ relied upon rather than Serb attacks on Bosnians generally.87 On the other hand, the attack may be defined in a much broader way. In Bagosora and Nsengiyumva, the Appeal Chamber confirmed that the Trial Chamber did not err in categorising Rwanda as ‘one crime scene’.88 The Chamber rejected the contention that the attacks would need to be widespread or systematic in a specific location independently of attacks taking place elsewhere.89 icc practice currently suggests further that a Prosecutor will need to identify specifically where the relevant attack occurred. In the Muthaura Confirmation Decision, the Pre-Trial Chamber interpreted the Prosecutor’s phrase ‘in or around locations including Nakuru and Naivasha’ as meaning ‘in or around Nakuru’ and ‘in or around Naivasha’ and accordingly only assessed evidence in respect of allegations in those locations.90 Similarly, in Katanga, the relevant attack was one military campaign on the town of Bogoro, Ituri. Ultimately, provided that it is clear to an accused person what is the particular attack relied upon, it would not appear to matter whether it was an entire attack or only a smaller part of a much broader attack that is relied upon. From a prosecution perspective, however, there are difficult choices that need to be made depending on the facts of the particular case. The smaller the attack, the easier it may be to prove, but the less likely it may be to reach the necessary threshold of a crime against humanity. 3

‘Directed Against’

3.1 Primary Object The phrase ‘directed against’ has been interpreted to mean that the civilian population must be the ‘primary object’ of the attack91 or the ‘primary rather 87 (icty) Blagojević – Trial, above n 37, [100]–[101]. 88 (ictr) Bagosora and Nsengiyumva v Prosecutor (Appeals Chamber Judgment), Case No ICTR-98-41-A (14 December 2011) (‘Bagosora – Appeal’), [390]. 89 (icc) Muthaura – Confirmation, see below n 284. 90 (icc) Kenya – Authorisation Decision, above n 24, [1060]. 91 (icty) Kunarac – Appeal, above n 22, [91] (approving Kunarac – Trial, [421]) (‘primary object of the attack’), followed in Prosecutor v Martić (Appeals Chamber Judgment), Case

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than an incidental object’ of the attack.92 This interpretation has been applied in the icc.93 Accordingly, this requirement will not be satisfied merely because civilian casualties are an outcome of military operations.94 In assessing whether or not a civilian population was the primary object of the attack, relevant factors will include:95 • • • • • •

the means and methods used; the status and number of the victims; the discriminatory nature of the attack; the nature of crimes committed in its course; the level of resistance; and the extent of the attempts to comply with the laws of war.

The icty Appeals Chamber in Kunarac indicated that where a crime against humanity occurs during an armed conflict, the laws of war, with their prohibition on targeting civilians, will provide a benchmark for determining No IT-95-11-A (8 October 2008) (‘Martić – Appeal’), [305], Kordić – Appeal, above n 50, [96]; Prosecutor v Blaškić (Appeals Chamber Judgment), Case No IT-95-14-A (29 July 2004) (‘Blaškić – Appeal’), [106]; (scsl) afrc – Trial, above n 25, [216]; Taylor – Trial, above n 24, [507]; (eccc) Duch – Trial, above n 24, [305], [308]; (eac) Habré – Trial, above n 22, [1363]; (Bangladesh) Chief Prosecutor v Abdul Quader Molla (Judgment) (ICT-2), ict-bd Case No. 02 of 2012 (5 February 2013) (‘Molla – Judgment’), [374]. 92 (scsl) cdf – Trial, above n 5, [114] (relying on Kunarac – Appeal, [91]), cited with apparent approval in Fofana and Kondewa v Prosecutor (Appeals Chamber Judgment), Case No SCSL-04-A-829 (28 May 2008) (‘cdf – Appeal’), [256], followed in ruf – Trial, above n 40, [80]; (eccc) Case 002/01 – Trial, above n 24, [182]. These standards appear to be the same given that the decisions explaining it rely on the Appeal Chamber decision in Kunarac. 93 (icc) Bemba Gombo – Confirmation, above n 24, [76] (‘primary object of the attack and not just an incidental victim of the attack’), relying on (icty) Kunarac – Appeal, above n 22, [91] and two decision following it (Prosecutor v Milomir Stakić (Trial Chamber Judgment), Case No IT-97-24-T (31 July 2003) (‘Stakić – Trial’), [624] and Vasiljević – Trial, above n 22, [33]); Kenya Authorisation Decision, above n 24, [82] (‘primary object of the attack in question and cannot merely be an incidental victim’), relying on Bemba Gombo – C ­ onfirmation and the cases cited therein. 94 (icty) Kunarac – Appeal, above n 22, [91]. 95 (icty) Kunarac – Appeal, above n 22, [91], followed in Kordić – Appeal, above n 50, [96] and Blaškić – Appeal, above n 91, [106], Prosecutor v Galić (Appeals Chamber Judgment), Case No IT-98-29-A (30 November 2006) (‘Galić – Appeal’), [132], Martić – Appeal, above n 91, [305]. See also (eccc) Case 002-02 – Trial, above n 24, [184] (listing these factors as being relevant to whether an attack was directed against a ‘civilian population’); (eac) Habré – Trial, above n 22, [1365].

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whether an attack will amount to a crime against humanity.96 Accordingly, the icc Trial Chamber in Bemba Gombo noted that acts such as looting assets from civilians may be taken into account in considering whether an attack was directed against a civilian population.97 In that case, it was held that the attack was directed against the civilian population inter alia on the basis that the civilians were indiscriminately targeted and that such targeting had often occurred after the opposing forces had left the relevant territory.98 Presence of Some Military Objective or Legitimate ‘ultimate objective’ An attack may still be ‘directed against’ a civilian population even if the ‘attack’ had some legitimate military objective if, for example, civilians and their buildings are also targeted.99 For example, the scsl Appeals Chamber in Fofana and Kondewa (the cdf case) found that an attack could still be directed against a civilian population where the ‘ultimate objective’ of the fighting force was legitimate and/or aimed at aggressors.100 The Appeals Chamber overturned the finding of the Trial Chamber that the attack was not ‘directed against’ a civilian population because: first, because the attack was primarily concerned with the rebels and juntas that controlled the towns, villages and communities throughout Sierra Leone; and secondly, that the forces ‘fought for the restoration of democracy’.101 In the course of its reasoning, the Appeals Chamber noted a submission by the prosecution that crimes against humanity prohibit attacks directed against civilians regardless of their purpose.102 While the Chamber made no comment on this submission, that statement must be correct. The scsl has said that defences relevant to the laws of war relating to the legitimacy and proportionality of an armed attack against a civilian population do not apply as such to crimes against humanity, which can take place in times

3.2

96 (icty) Kunarac – Appeal, above n 22, [91]. 97 (icc) Bemba Gombo – Trial, above n 76, [153]. 98 See discussion in Chapter 6, Section 2.2.4. 99 While not specifically stated, see, for example, the conclusions reached in: (icty) Prosecutor v Blagojević and Jokić (Appeals Chamber Judgment), Case No IT-02-60-A (9 May 2007) (‘Blagojević – Appeal’), [36]–[42]; Blaškić – Trial, above n 22, [425]–[428], [573]– [579], [623]–[634] and [676]–[678]; Prosecutor v Kupreškić et al. (Trial Chamber Judgment), Case No IT-95-16-T (14 January 2000) (‘Kupreškić – Trial’), [524] and [526]; and Kunarac – Trial, above n 22, [416]. 100 (scsl) cdf – Appeal, above n 92, [247]. 101 (scsl) cdf – Trial, above n 5, [693]. 102 (scsl) cdf – Appeal, above n 92, [246].

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of peace or armed conflict.103 That said, such matters will likely be of factual relevance to whether an attack was ‘directed against’ a civilian population. As will be, for instance, other aspects of the chapeau such as the consistency or inconsistency of the actions with a particular policy or plan104 or the proportion the victims that are ‘civilian’ according to international humanitarian law. One controversial recent example is found in the decision of the icc Trial Chamber’s decision in Katanga.105 The majority judgment (Judge Van den Wyngaert dissenting) found an attack to be directed against a civilian population by combatants of a conglomerate of military forces in the drc. The majority found that an attack was directed against the civilian population despite there being combatants from opposing groups in the village attacked and only some 33 identified civilian killings in a village of 800 civilians, with combatants killings far exceeding the number of civilians killed. The decision may be contrasted with the decision of the Stuttgart Higher Regional Court decision in the fdlr Case.106 There, the Court dismissed a charge of crimes against humanity said to be perpetrated by the Forces Démocratiques de Libération du Rwanda (fdlr) in the drc in part on the basis that it could not be said that the primary object of the attack was the civilian population as opposed to the combatants in the various villages.107 4

‘Any Civilian’

4.1 ‘Any’ Civilian – The Distinction with War Crimes The term ‘any civilian population’ can be traced to the Nuremberg Precedent and the fact that crimes against humanity, unlike war crimes in international armed conflict, can be committed against persons regardless of their nationality. The fact that an attack may be directed at ‘any’ civilian population means the victim and the accused need not be linked to opposite sides of the ­conflict.108

103 (scsl) afrc – Rule 98 Decision, above n 50, [66]. 104 (scsl) cdf – Appeal, above n 92, [246]. 105 Discussed in detail in Chapter 6, Section 2.2.3. 106 (Germany) Oberlandesgericht Stuttgart, Judgment, 28 September 2015, 3StE 6/10. 107 See discussion in Chapter 7, Section 3.3.2. 108 (icty) Tadić – Trial, above n 5, [625], followed in Kunarac – Trial, above n 22, [423] (citing Tadić – Trial), [635]; unwcc, History of the United Nations War Crimes Commission (1948) 193 and Attorney General of the State of Israel v Yehezkel Ben Alish Enigster, District Court of Tel-Aviv, 4 Jan 1952 (‘Enigster – Trial’); (scsl) cdf – Trial, above n 5, [118] (citing Kunarac – Trial and Tadić – Trial); (eccc) Duch – Trial, above n 24, [312]; Case 002/01 – Trial, above n 24, [187].

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Insofar as the icc is concerned, the drafters of the icc Statute i­ntentionally left ‘any civilian population’ undefined in order that the term may be left to the case-law.109 4.2 ‘Predominantly’ Civilian The phrase ‘any civilian’ has been interpreted to mean that the targeted population must be ‘predominantly civilian’.110 The presence of some soldiers in the population will not necessarily alter the character of the population; it will depend on the number of soldiers and the purpose of their presence.111 The Appeal Chamber in Blaškić relied on the icrc commentary for this proposition, citing the following section: in wartime conditions it is inevitable that individuals belonging to the category of combatants become intermingled with the civilian population, for example soldiers on leave visiting their families. However, 109 (icc) Prosecutor v Katanga and Chui (Decision on the Confirmation of Charges), ICC01/04-01/07-717 (13 October 2008) (‘Katanga – Confirmation’), [399], fn 511, citing Roy Lee (Ed), The International Criminal Court: Elements of Crimes and Rules of Evidence (Transnational Publishers: New York, 2001) 78 (‘Most delegations quickly agreed that this was too complex a subject and evolving area in the law, better left to resolution in case law.’). 110 (icty) Tadić – Trial, above n 5, [638] (citing Article 50(3), Additional Protocol i, (France) Barbie case; Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), un Doc. S/1994/674, [77]–[78]); Prosecutor v Dragomir Milošević (Trial Chamber Judgment), Case No IT-98-29/1-T (12 December 2007) (‘Milošević, D – Trial’), [922] (citing Article 50(1), Additional Protocol 1, Kordić – Appeal, above n 50, [50] and Galić – Appeal, above n 95, [144]), approved in Prosecutor v Dragomir Milošević (Appeals Chamber Judgment), Case No IT-98-29/1-A (12 November 2009) (‘Milošević, D – Appeal’), [50]–[51]; Limaj – Trial, above n 22, [186]; Prosecutor v Jelisić (Trial Chamber Judgment), Case No IT-95-10-T (14 December 1999) (‘Jelisić – Trial’), [54]; (ictr) Kayishema – Trial, above n 56, [128] (citing Tadić – Trial); (scsl) Prosecutor v Norman, Fofana and Kondewa (Decision on Motions for Judgment of Acquittal Pursuant to Rule 98) Case No SCSL-2004-04-14-T473 (21 October 2005) (‘cdf – Rule 98 Decision’), [59] (citing Tadić – Trial and Kayishema – Trial), followed in cdf – Trial, above n 5, [117]; ruf – Trial, above n 40, [83]; (eccc) Duch – Trial, above n 24, [305]; Case 002/01 – Trial, above n 24, [183]; (eac) Habré – Trial, above n 22, [1365]; (Bangladesh) Molla – Judgment, above n 91, [292]. See also (iht) Anfal – Trial, above n 50, 519 (requiring that there be a ‘majority’ of civilians). 111 (icty) Blaškić – Appeal, above n 91, [115]; Kordić – Appeal, above n 50, [50], [97], followed in Galić – Appeal, above n 95, [136]–[137], [144]; Martić – Appeal, above n 91, [307] (following Blaškić – Appeal, Kordić – Appeal and Galić – Appeal); (eccc) Duch – Trial, above n 24, [305]–[306]; Case 002/01 – Trial, above n 24, [183] (also noting that the factors listed above under ‘directed against’ will be relevant); (eac) Habré – Trial, above n 22, [1365].

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­ rovided that these are not regular units with fairly large numbers, this p does not in any way change the civilian character of the population.112 The presence of soldiers in ‘fairly large numbers’, however, may deprive the population of its civilian character.113 The precise number or proportion at which this will occur will depend on the circumstances of a given case. In the case of Srebrenica, it was held that 1,000–4,000 soldiers in a population of 40,000 (that is, making up as much as 10% of the population) did not deprive the group of being characterised as predominantly civilian.114 Where applicable, the un declaration of safe zones is likely to have a role to play in this question. In Perišić, the Trial Chamber, for instance, appeared to find that the population of Srebrenica was predominantly civilian solely on the basis that it was an enclave established by the un specifically to protect civilians.115 Although it is unlikely that the un declaration of a safe zone will per se result in the population being ‘predominantly civilian’, such a declaration would at least be of evidentiary relevance. More controversially, the majority of the icc Trial Chamber in Katanga appeared satisfied that an attack on a village constituted an attack notwithstanding that ‘a minimum’ of 60 civilians were killed out of 800 present and despite as many as twice that number of soldiers being killed (see discussion in Chapter 6116). This decision included a very critical dissenting judgment. Ultimately, the decision is not likely to be a useful precedent on this point, as a proper understanding of the decision appears to be that – whether rightly or wrongly – the majority proceeded on the basis that the number of civilians killed was in fact much more than 60. 4.3 Any ‘civilian’ What is meant by the term ‘civilian’ and whether the actual victim of a crime against humanity must be a ‘civilian’ has led to some confusion in the ad hoc Tribunals. The confusion arises from the difference between the concept of a civilian for the purposes of a crime against humanity and the concept of a 112 (icty) Blaškić – Appeal, above n 91, [115], citing icrc Commentary (Additional Protocols), [1922], followed in Galić – Appeal, above n 95, [137], (eccc) Duch – Trial, above n 24, [306]. 113 (icty) Brđanin – Trial, above n 22, [134], citing Blaškić – Appeal, above n 91, [115]. 114 (icty) Blagojević – Trial, above n 37, [552], affirmed on appeal: see Blagojević – Appeal, above n 99, [36]–[42]. 115 (icty) Perišić – Trial, above n 22, [735]. 116 Chapter 6, Section 2.2.3.

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civilian under the laws of war. In times of armed conflict, the laws of war have developed a concept of civilian status. They essentially define ‘civilian’ negatively, such that all who are not combatants are considered to be civilians, but a combatant cannot be a ‘civilian’.117 The difficulty with applying the concept of civilian, as understood by the laws of war, to crimes against humanity is that such crimes may take place in times of peace where the notion of ‘combatants’ versus ‘civilians’ has no legal meaning. Even in times of armed conflict, crimes against humanity are intended to afford protection to victims who are being persecuted by perpetrators who may, so far as the laws of war are concerned, be on the same side of the conflict. The laws of war are simply inapposite in such a case. This was recognised by the Trial Chamber in Tadić which determined that: [The] definition of civilians contained in Common Article 3 is not immediately applicable to crimes against humanity because it is a part of the laws or customs or war and can only be applied by analogy. The same applies to the definition contained in Protocol i and the Commentary, Geneva Convention iv, on the treatment of civilians, both of which advocate­a broad interpretation of the term ‘civilian’.118 Similarly, the Appeals Chamber in Erdemović held that this factor goes to the very raison d’être of crimes against humanity: [R]ules proscribing crimes against humanity address the perpetrator’s conduct not only towards the immediate victim but also towards the whole of humankind […] It is therefore the concept of humanity as victim which essentially characterises crimes against humanity […] Because 117 As understood by the Regulations annexed to the Convention respecting the Laws and Customs of War on Land, done at The Hague, The Netherlands, opened for signature 8 October 1907, 187 Consolidated Treaty Series 227 (entered into force on 26 January 1910), subsequently supplemented by the Geneva Convention relative to the Treatment of Prisoners of War, done in Geneva, Switzerland, opened for signature 12 August 1949, 75 unts 135, art 4 (entered into force 21 October 1950) and the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol i), done in Geneva, Switzerland, opened for signature 8 June 1977, 1125 unts 3, Arts 43–44 (entered into force 7 December 1978). 118 (icty) Tadić – Trial, above n 5, [639], followed in Limaj – Trial, above n 22, [223] (stating that ‘The Chamber acknowledges, however, that the definition of “civilian” employed in the laws of war cannot be imported wholesale into discussion of crimes against humanity’ and citing Tadić – Trial).

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of their heinousness and magnitude, they constitute an egregious attack on human dignity, on the very notion of humaneness. They consequently affect, or should affect, each and every member of mankind, whatever his or her nationality, ethnic group and location […] This aspect of crimes against humanity as injuring a broader interest than that of the immediate victim […] is shown by the intrinsic elements of the offence…119 Two interconnected questions arise: 1. 2.

Is the term ‘civilian’ in ‘any civilian population’ to be defined in accordance with ihl? Nevertheless, can non-‘civilians’, such as combatants placed hors de combat or members of armed resistance groups, be the victims of a crime against humanity?

These questions have been answered differently throughout the history of crimes against humanity. 4.3.1 Early History Article 6(c) of the London Charter provided for two types of crimes against humanity. The first type required acts such as murder, extermination, enslavement, deportation, and other inhumane acts ‘committed against any civilian population’. The second concerned ‘persecutions’ which did not have to be committed against any civilian population. The main role of the term ‘any civilian population’, as understood at Nuremberg, was to include all persons who were being mistreated and who were not linked to an opposing belligerent. The focus was to capture the atrocities of the Nazis irrespective of the status or nationality of the victim. This was its ‘raison d’être’ at the time.120 This was made clear in Article 6(c) of the London Charter where a person could be a victim of persecution as a crime against humanity without having to be a member of a ‘civilian population’. In respect of acts alleged to be war crimes, the Indictment at Nuremberg also charged most of the defendants with crimes against humanity.121 The Indictment grounded the charges for crimes against humanity in ‘the methods 119 (icty) Prosecutor v Erdemović (Appeals Chamber Judgment), Case No IT-96-22-A (7 October 1997), Separate Opinion of Judge Kirk McDonald and Vohrah, [21]. 120 See Chapter 2. 121 Chapter 2, Section 4.1.

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and crimes [which] constituted violations of international conventions, of internal penal laws, of the general principles of criminal law as derived from the criminal law of all civilised nations’.122 As a result, the consideration of the charges for crimes against humanity was allowed to overlap with the charges for war crimes, irrespective of the status of the victims. The Nuremberg Tribunal convicted all but two of the defendants of both war crimes and crimes against humanity as charged and without distinction between the two sets of charges. Whilst it did not state so expressly, the Tribunal in its judgment appeared to treat conduct towards a non-German national, including members of the armed forces, as both a war crime and a crime against humanity. This was not limited to the ‘persecution’ type offences (i.e. which did not need to be committed against any civilian population); rather, the Tribunal appeared to consider that the ‘murder’ type offences could also be committed against members of the military. This suggests a broad interpretation was given to the notion of ‘committed against any civilian population’ under Article 6(c). This position is consistent with other early authorities. It is also supported by the Tokyo Charter (which deleted the words ‘civilian population’), the Tokyo Tribunal,123 other post World War Two cases under Council Control Law 10, such as the High Command Case before the us Military Tribunal,124 and cases of the Supreme Court in the British Occupied zone125 which held that members of the military could be victims of a crime against humanity. S­ imilarly, 122 Being grounded not just in international conventions but also in broad notions of natural law or general principles of criminal law or, as stated by the French Prosecutor de Menthon at Nuremberg, ‘the penal laws of all civilised States’: see Chapter 2, Section 4.2. 123 The Tribunal preceded upon the basis of a wide overlap between war crimes and crimes against humanity: see Chapter 2, Section 3. 124 (Nuremberg) United States v Wilhelm von Leeb et al., Judgment of 27 October 1948, Military Tribunal v, Law Reports of the Trials of War Criminals, vol xi (‘The High Command Case’), 520, 596–599, 675, 679, 683. See also United States v Ernst Von Weizsaecker et al., Judgment of 11–13 April 1949, Military Tribunal iv, Law Reports of the Trials of War Criminals, vol xiv (‘The Ministries Case’) 541–546. 125 (Nuremberg) Supreme Court in the British Occupied Zone, OGHSt 1, 217–229; Supreme Court in the British Occupied Zone, OGHSt 2, 231–246; Supreme Court in the British Occupied Zone, OGHSt 1, 45–49. Neddermeier case, 10 March 1949, British Court of Appeal established under Control Council Law 10 (text in German) – British Zone of Control, Control Commission Courts, Court of Appeals Report, Criminal Cases, 1949, no 1, 58–60. See also discussion in See discussion in Killean et al., ‘Soldiers as victims at the eccc: exploring the concept of “civilian” in crimes against humanity’ (2017) Leiden Journal of International Law 685.

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in France, the Cour de Cassation in Barbie – followed in Touvier126 – held that members of the French Resistance, who were ‘combatants’ and ‘dangerous adversaries’ opposing the Nazis, may be victims of crimes against humanity whatever the form of their opposition.127 Finally, in Estonia, the Supreme Court in Paulov held that the ‘forest brothers’ resistance fighters to the Soviet regime have been held to be victims of crimes against humanity despite their resistance and the fact that they were armed.128 4.3.2

Key Controversy – Is the Term ‘civilian’ in ‘any civilian population’ to be Defined in Accordance with ihl? Unlike Article 6(c) of the London Charter, the relevant texts of the icty, ictr and the icc Statutes require all crimes against humanity (i.e. including persecution) to be directed against any civilian population. Hence, the Tribunals have had to consider the ‘civilian’ requirement for all crimes against humanity. At least initially, the ad hoc Tribunals were split on the question of whether the rules of ihl had any relevance to the issue of a person being a ‘civilian’ in the case of a prosecution for crimes against humanity. Early in the history of the ad hoc Tribunals, a number of Chambers adopted a broad approach to the definition of ‘civilian’. The icty Trial Chamber in Blaškić held that ‘[t]he specific situation of the victim at the moment the crimes were committed, rather than his status, must be taken into account in determining 126 (France) Crim. 27 novembre 1992, Bull. No.394, Cour de cassation (chambre criminelle), M. Touvier (‘La Cour ne s’attachera pas, dans les développements qui suivent a la question de résistants, puisque, dans l’affaire de Rillieux, comme il a été mentionne supra toutes les victimes (six, en tout cas, sur les sept) étaient juives, qu’elles ont été fusillées a ce titre, et que si certaines d’entre elles appartenaient a la Résistance, les auteurs du massacre l’ignoraient selon toute apparence’), translated and reprinted in 100 ilr 338, 352. 127 (France) Prosecutor v Klaus Barbie, Cour de cassation (chambre criminelle), 20 decembre 1985, Bull. No. 407 (‘Barbie’) (‘mais attendu qu’en prononçant comme elle l’a fait, en excluant la qualification de crimes contre l’humanité pour l’ensemble des actes imputes a l’inculpé qui auraient été commis contre des personnes appartenant ou pouvant appartenir a la Résistance, alors que l’arrêt constate que les crimes “atroces” dont ces personnes ont été systématiquement ou collectivement les victimes étaient présentes, par ceux au nom de que ni les mobiles animant ces victimes, ni leur éventuelle qualité de combattants, ne sauraient exclure l’existence, a la charge de l’inculpe, de l’élément intentionnel constitutive des infractions poursuivies, la Chambre d’accusation a méconnu le sens et la portée des textes vises aux moyens’), translated in Federation Nationale des Désportés et Internés Résistants et Patriotes and Others v Barbie (1988) 78 ilr 124, 137, 139–140. 128 (Estonia) See Prosecutor v Karl-Leonhard Paulov (Judgment), Supreme Court Criminal Chamber, Case No. 3-1-1-31-00 (21 March 2000). This case is discussed in Chapter 7, Section 5.2.2.

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his standing as a civilian’.129 This approach was followed in the spet130 and in Bangladesh.131 Similarly, the ictr Trial Chamber in Akayesu held that ‘[m] embers of the civilian population are people who are not taking any active part in the hostilities, including members of the armed forces who laid down their arms and those persons placed hors de combat by sickness, wounds, detention or any other cause.’132 Some cases have also followed Barbie, saying resistance fighters and others bearing arms, who are not strictly members of the armed forces, can be part of the ‘civilian population’, either generally,133 or because they have laid down their arms.134 This view has support amongst many scholars. Cassese has written that under customary international law a victim of a crime against humanity does not have to be a ‘civilian’, as understood by the laws of war.135 Provided the victim’s ‘humanity’ is being attacked at the time of the crimes he or she is a ‘civilian’. Similarly, Werle has stated: ‘Most important in demonstrating membership in a civilian population is the victims’ need for protection, which follows from their defencelessness vis-à-vis state, military or other organised force’.136 This view was also supported by the lack of any direct evidence of an intention by the Security Council to narrow the crime’s reach in 1993 or 1994 compared with the position at Nuremberg. The Commission of Experts’ Report 129 (icty) Blaškić – Trial, above n 22, [214]. See also Prosecutor v Stanislav Galić (Trial Chamber Judgment), Case No IT-98-29-T (5 December 2003) (‘Galić – Trial’), [143] (‘[t]he definition of a “civilian” is expansive and includes individuals who at one time performed acts of resistance, as well as persons hors de combat when the crime was perpetrated’). 130 (spet) Los Palos – Judgment, above n 22, [638], citing Blaškić – Trial, above n 22, [214]. 131 (Bangladesh) Molla – Judgment, above n 91, [290]. 132 (ictr) Akayesu – Trial, above n 24, [582], followed in Kajelijeli – Trial, above n 56, [873]– [874], Rutaganda – Trial, above n 54, [71] (‘defined as people who were not taking any active part in the hostilities’, citing Akayesu – Trial), Musema – Trial, above n 54, (‘defined as people who were not taking any active part in the hostilities’, citing Akayesu – Trial), and Prosecutor v Bisengimana (Trial Chamber Judgment), Case No ICTR-00-60-T (13 April 2006) (‘Bisengimana – Trial’), [48] (citing Akayesu – Trial in full). 133 (icty) Kupreškić – Trial, above n 99, [548]–[549] and Tadić – Trial, above n 5, [636]–[643] (where it was said that those actively involved in a resistance movement can qualify as victims of crimes against humanity). Mettraux criticises this statement, saying a person killed while undertaking some act of ‘resistance’ is not a civilian: Mettraux, above n 58, 169. 134 (icty) Blaškić – Trial, above n 22, [214]; and Kordić and Čerkez (Trial Chamber Judgment), Case No IT-95-14/2-T (26 February 2001) (‘Kordić – Trial’), [180]. 135 Cassese, above n 2, 91, 102. 136 Gerhard Werle, Principles of International Criminal Law (tmc Asser Press: The Hague, 2005) 222.

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(Yugoslavia) stated that no quick conclusion could be reached about whether persons who once bore arms cannot be part of the ‘civilian population’.137 It also stated that those who use arms to defend themselves or their community, such as a ‘sole policeman or local defence guard’, may still be victims of a crime against humanity.138 Despite this, the broad approach was rejected by the icty Appeals Chamber in Blaškić on 29 July 2004, which found that it was the status of the victims as defined by ihl that was significant.139 The Chamber cited the Report of the Secretary General to the effect that the Geneva Conventions ‘constitute rules of international humanitarian law and provide the core of the customary law applicable in international armed conflicts’ and found that, since the definitions of ‘civilian’ contained therein also reflect customary international law, they ‘are relevant’ in the context of crimes against humanity.140 Accordingly, the Chamber concluded that members of the armed forces (as well as members of organised resistance groups) cannot claim civilian status.141 The matter was further confused by the Appeals Chamber in Kordić in December of the same year. On the one hand, the Chamber held, consistently with the Blaškić Appeals Chamber, that the term ‘civilian’ in the context of Article 5 must be defined in accordance with Article 50(1) of Additional Protocol i142 and that ‘the two victims are to be considered as “combatants” and cannot claim the status of civilians’.143 It only applied the crime of imprisonment to those who proved to be civilians under the laws of war.144 On the other hand, the Chamber departed from the Blaškić Appeals Chamber in stating that ‘ABiH soldiers [who] were killed after their arrest, after being placed “hors de combat” were without doubt […] “civilians” in the sense of Article 5 of the Statute’.145 137 Experts’ Report (Yugoslavia), [78]. 138 Experts’ Report (Yugoslavia), [78]. 139 (icty) Blaškić – Appeal, above n 91, [116]. 140 (icty) Blaškić – Appeal, above n 91, [110], citing Report of the Secretary General, un Doc. S/25704 (3 May 1993), [37]. 141 (icty) Blaškić – Appeal, above n 91, [113]. 142 (icty) Kordić – Appeal, above n 50, [97]. 143 (icty) Kordić – Appeal, above n 50, [458]. The Appeals Chamber also found that ‘members of the armed forces residing in their homes in the area of the conflict, as well as members of the to residing in their homes, remain combatants whether or not they are in combat, or for the time being armed’: [51]. 144 (icty) Kordić – Appeal, above n 50, [591]–[640]. 145 (icty) Kordić – Appeal, above n 50, [421]–[422].

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The position in Blaškić was followed by some tribunals (including by the icty Appeals Chamber in Galić)146 but was not followed by others.147 4.3.3

Current Resolution of the Ad Hoc Tribunals – Distinction between the Attack and Its Victims Ultimately, much of the controversy surrounding the definition of ‘civilian’ was resolved by the icty Appeals Chamber in Martić in its decision of 8 October 2008. As discussed below, two key propositions emerged. A distinction was drawn between the question of whether the term ‘civilian’ in ‘any civilian population’ should be defined in accordance with ihl and the separate question of whether a combatant under ihl can nevertheless be a victim of a crime against humanity. (a) The Term ‘civilian’ for the Purposes of the Relevant Attack First, the Appeals Chamber affirmed the Blaškić Appeals Chamber decision that, for the purposes of determining whether there is an attack directed against a civilian population, the term ‘civilian’ was to be interpreted in line with international humanitarian law.148 The Chamber held that provisions of the Statute are to be interpreted according to the ‘natural and ordinary meaning in the context in which they occur’149 and that the definition of ‘civilian’ in Additional Protocol i accords with the ordinary meaning of the term ‘civilian’

146 See, for instance: (icty) Galić – Appeal, above n 95, [144]; (scsl) ruf – Trial, above n 40, [219]. 147 (scsl) afrc – Rule 98 Decision, above n 50, [42(c)] (citing: Prosecutor v Akayesu (Appeals Chamber Judgment), Case No ICTR-96-4-A (1 June 2001) (‘Akayesu – Appeal’), [582]; Tadić – Appeal, above n 24, [637]–[638]); cdf – Rule 98 Decision, above n 110, [58] (specifically adopting ‘the broader interpretation as further described in the icty Trial Chamber in the Blaškić case’ at [214]). See also (icty) Limaj – Trial, above n 22, [186] (while reciting the principles in the Blaškić Appeals Decision, the Chamber concluded: ‘As a result, the definition of a “civilian” is expansive and includes individuals who at one time performed acts of resistance, as well as persons who were hors de combat when the crime was committed’); (ictr) Bisengimana – Trial, above n 132, [48] (following Akayesu – Trial rather than Blaškić – Appeal). 148 (icty) Martić – Appeal, above n 91, [293]–[296]. 149 (icty) Martić – Appeal, above n 91, [297] (citing Tadić – Appeal, above n 24, [282]–[283], [285] and Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion of 3 March 1949, icj Reports 1950, 8, for the proposition that words should be given their natural and ordinary meaning the context).

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(in English) and ‘civil’ (in French), as persons who are not members of the armed forces.150 The Chamber stated that the Prosecution’s contention that the definition did not apply to non-international armed conflicts was also unpersuasive as Article 13 of Additional Protocol ii refers to the protection of civilians and the civilian population.151 The Chamber reasoned that, according to the icrc Commentary, the provision corresponds with Article 50 of Additional Protocol i and therefore civilians must be defined as those persons who do not belong to the armed forces, militias or volunteer corps forming part of such armed forces, organised resistance groups or a levee on masse.152 The Chamber also considered that this conclusion was supported by the post-World-War ii jurisprudence that has held that victims of crimes against humanity could include members of the armed forces153 and resistance fighters,154 and that negotiations for the icc Statute demonstrate several delegations argued that the term ‘civilian population’ in the context of crimes against humanity should not be interpreted as strictly limited to civilians.155 The Appeals Chamber held that the ‘jurisprudence does not redefine the meaning of the term “civilian”, but merely refers to the rule laid down in Article 51(3) of Additional Protocol i, according to which civilians enjoy “general protection against dangers arising from military operations” unless and for such time as they take a direct part in hostilities.’156 The Chamber also held that the definitional consistency between crimes against humanity and war crimes ‘accords with the historical development of crimes against humanity, intended as they

150 (icty) Martić – Appeal, above n 91, [297]. 151 (icty) Martić – Appeal, above n 91, [300]. 152 (icty) Martić – Appeal, above n 91, [300] (citing icrc Commentary on Additional Protocols, [4761]–[4789]). 153 (icty) Martić – Appeal, above n 91, [278], [301] (citing (Nuremberg) Supreme Court in the British Occupied Zone, OGHSt 1, 217 (228); Supreme Court in the British Occupied Zone, OGHSt 1, 45 (47); Supreme Court in the British Occupied Zone, OGHSt 2, 231, 241–242). 154 (icty) Martić – Appeal, above n 91, [278], [301] (citing (France) Barbie, above n 127, 140; and Touvier, above n 126, 352). 155 (icty) Martić – Appeal, above n 91, [278], [301] (citing Herman von Hebel and Daryl Robinson, ‘Crimes within the Jurisdiction of the Court’, in International Criminal Court: The Making of the Rome Statute – Issues, Negotiations, Results (Kluwer Law International: The Hague, 1999) 79, 97, fn 54). 156 (icty) Martić – Appeal, above n 91, [298] (citing as an example (icty) Galić – Trial, above n 129, [48]).

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were to fill the gap left by the provisions pertaining to crimes against peace and war crimes in the [Nuremberg Charter].’157 This approach of the Martić Appeals Chamber – i.e. that the term ‘civilian’ is to be interpreted in accordance with international humanitarian law – has since been followed by the icty Tribunals158 and the eccc,159 although the position at the scsl has not been entirely clear.160 (b) No Requirement that Victims Need be ‘civilians’ Secondly, the Appeals Chamber in Martić confirmed that, while the term ‘any civilian’ should be interpreted in line with ihl for the purposes of assessing whether there is an ‘attack directed against any civilian population’, this ‘does not necessarily require that the criminal acts within this attack must be committed against civilians only.’161 Victims may be persons hors de combat even if they are not ‘civilians’ for the purposes of the chapeau elements of crimes against humanity.162 Cassese argues victims may also include enemy combatants (although not under the icty, ictr and the icc).163 In supporting of its position, the Appeals Chamber cited a number of sources demonstrating that the drafters of the icty Statute did not intend to exclude combatants who are placed hors de combat from the purview of Article 5164 as 157 (icty) Martić – Appeal, above n 91, [299] (footnotes omitted). 158 (icty) Milošević, D – Appeal, above n 110, [50]; Prosecutor v Mrkšić (Appeals C ­ hamber Judgment), Case No IT-95-13/1-A (5 May 2009) (‘Mrkšić – Appeal’), [35]; Prosecutor v Stanišić & Simatović (Trial Chamber Judgment), Case No IT-03-69 (30 May 2013) (‘Simatović – ­Trial’), [965]. 159 (eccc) Duch – Trial, above n 24, [305], following (icty) Mrkšić – Appeal, above n 158, and Blaškić – Appeal, above n 91. 160 (scsl) ruf – Trial, above n 40, [82] (as discussed further below, the Tribunal held ‘person who is hors de combat does not prima facie fall within this definition’, citing Blaškić – A ­ ppeal, above n 91). 161 (icty) Martić – Appeal, above n 91, [305], [307]. 162 (icty) Martić – Appeal, above n 91, [307], [311], [313]–[314]. 163 Cassese, above n 2, 91, 102. 164 (icty) Martić – Appeal, above n 91, [306] (citing: Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), un Doc. S/25704 (3 May 1993), fn 9; un sc Res 827 (1993), un Doc. S/RES/827, 3297th mtg (25 May 1993) (approving the Report of the Secretary-General); Final Report of the Commission of Experts Established Pursuant to the Security Council Resolution 780, un scor, 49th Session, Annex un Doc. S/1994/674, [77]–[80], noting that Article 4 of Additional Protocol ii addressed ‘fundamental guarantees’ and included in the protected group ‘all persons who do not take a direct part or who have ceased to take part in hostilities’).

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well as statements implicitly supporting this position.165 The Chamber found that statements to the contrary were not persuasive as they were made in the context of assessing whether a population was predominantly civilian for the purposes of the chapeau rather than whether non-civilians could be victims.166 Finally, the Appeals Chamber held that this approach reflected customary international law,167 citing the High Command Case before the us Military Tribunal,168 cases of the Supreme Court in the British Occupied zone,169 the French cases of Barbie and Touvier,170 as well as discussion at the drafting of the Genocide Convention.171 Particularly, the Chamber drew attention to the post-ww2 cases that distinguished between crimes against humanity and ordinary domestic crimes, not on the basis of the status of the victims, but on

165 (icty) Martić – Appeal, above n 91, [308], citing: Prosecutor v Radislav Krstić (Trial Chamber Judgment), Case No IT-98-33-T (2 August 2001) (‘Krstić – Trial’), [34], [37], [41]–[47], [53]–[67], [80]–[84], [499], [503]–[505], [547] and [549] (requiring a distinction between the categories of victims between those hors de combat and those who were civilian for the purposes of the crime of extermination. In Prosecutor v Krstić (Appeals Chamber Judgment), Case No IT-98-33-A (19 April 2004) (‘Krstić – Appeal’), [269], the Appeals Chamber may arguably have endorsed this point by entering a conviction for extermination – albeit without discussion of this point.). Similar analyses can be found: Blagojević – Trial, above n 37, [114]–[115], [213], [218]–[221], [567]–[569], [577], [619], [732]–[733], [736], [738]; Blagojević – Appeal, above n 99, [59], [101]; Brđanin – Trial, above n 22, [436], [439], [449], [465], [476] (Extermination was found in the context of camps and detention facilities, no distinction was drawn between the types of victims except to say they were ‘non-combatants’. From the context, this arguably includes persons hors de combat.) 166 (icty) Martić – Appeal, above n 91, [307] (citing: Blaškić – Appeal, above n 91, [114]–[115]; Kordić – Appeal, above n 50, [50], [97]; Galić – Appeal, above n 95, [136]–[137], [144]). 167 (icty) Martić – Appeal, above n 91, [309]. 168 (Nuremberg) The High Command Case, above n 124, 520, 596-599, 675, 679, 683; The Ministries Case, above n 124, 541–546. 169 (Nuremberg) Supreme Court in the British Occupied Zone, OGHSt 1, 217–229; Supreme Court in the British Occupied Zone, OGHSt 2, 231–246; Supreme Court in the British Occupied Zone, OGHSt 1, 45–49. 170 (France) Barbie above n 127, 140; Touvier, above n 126, 352. 171 In the negotiations of the Genocide Convention, proposals to refer to the Nuremberg Judgment in the preamble to the Convention were rejected in part because crimes against humanity had been interpreted restrictively by the International Military Tribunal: see generally un gaor 6th Committee, 3rd Session, 109th mtg, un Doc. A/C.6/SR.109 (17 ­November 1948), in particular 497–498; un Doc. A/C.6/SR.110 in particular 502 et seq. See also ilc Yearbook [1996] vol 2, Part ii, 47–50 and Article 21 of the 1991 version of the Draft Code of Crimes against Peace and the Security of Mankind and its Commentary, ilc Yearbook [1991] vol 2, Part ii, 96–97, 103–104.

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the element of scale or organisation involved in crimes against humanity.172 Presumably, the Estonian case of Paulov may be added to this list.173 This approach has since been followed.174 While it may be arguable that the ictr Trial Chamber in Bagosora suggested that un peacekeepers rendered hors de combat may be considered ‘civilian’ for the purposes of the chapeau, the better view is that the Chamber intended only that they could be victims in the sense held by the icty Appeals Chamber in Martić.175 The one notable deviation from this approach has been the scsl Trial Chamber in the ruf Case. While the Trial Chamber seems to have intended to follow the Martić Appeal decision, the chamber appeared to find that a person hors de combat would only prima facie not constitute a ‘civilian’:176 A person who is hors de combat does not prima facie fall within this definition. However, the Chamber concurs with the icty Appeals Chamber 172 (icty) Martić – Appeal, above n 91, [310] (citing: (Nuremberg) United States v Altstötter et al., reprinted in 3 Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No 10 (1951) (‘The Justice Case’), 973: ‘It is not the isolated crime by a private German individual which is condemned, nor is it the isolated crime perpetrated by the German Reich through its officers against a private individual. It is significant that the enactment employs the words “against any civilian population” instead of “against any civilian individual”. The provision is directed against offenses (sic) and inhumane acts and persecutions on political, racial, or religious grounds systematically organized and conducted by or with the approval of government.’ (emphasis added); Trial of Major War Criminals before the International Military Tribunal, Nuremberg, Judgment, 14 November 1945 to 1 October 1946 (Buffalo, New York: William S. Hein & Co, Inc, 1995), vol 1, 982; United States v Friedrich Flick et al., Judgment of 22 December 1947, Military Tribunal iv, Law Reports of War Criminals, vol ix, 2). 173 See discussion in Chapter 7, Section 5.2.2. 174 (icty) Mrkšić – Appeal, above n 158, [28]–[29]; Milošević, D – Appeal, above n 110, [58]; (scsl) Taylor – Trial, above n 24, [507] (citing Mrkšić – Appeal); (eccc) Duch – Trial, above n 24, [305]; Case 002/01 – Trial, above n 24, [187]. See also (iht) Summary of the verdict of 1991 case, Case No 1/T2/2007, 12 February 2007, Hamadi Al-saedi, Case Western Reserve University School of Law (Spring 2010), accessible online at (‘1991 Incidents Case – Summary’), 118 (see discussion in Chapter 5, Section 3.5.3(d)). 175 (ictr) Bagosora – Trial, above n 22, [2175] (‘Considering their status as United Nations peacekeepers and that they were disarmed, the Chamber is satisfied that the victims could not be considered as combatants’, citing the Martić – Appeal, above n 91, [302], [313]). 176 (scsl) ruf – Trial, above n 40, [82].

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in the Martić case that where a person hors de combat is the victim of an act which objectively forms part of a broader attack directed against a civilian population, this act may amount to a crime against humanity. Thus, persons hors de combat may form part of the civilian population for the purpose of crimes against humanity, provided that the remaining general requirements of Article 2 are satisfied in respect of the particular incident. Accordingly, it is not clear that the Chamber intended to deviate from the position in Martić. For instance, the Chamber only applied the principle to one incident: a killing of 63 suspected Kamajors and 1 afrc member who was hors de combat.177 In any event, the ruf Case has not been followed elsewhere in this regard, including in the more recent decision in the Taylor Case. (c) Distinguishing ‘civilians’ from ‘combatants’ The principles discussed above raise questions as to when civilians who take up arms will be considered to be combatants. A distinction may need to be drawn between wartime and peacetime in this respect. In times of war, these questions generally appear to be resolved in accordance with the general principles of international humanitarian law. For instance, the icty Appeals Chamber in Kordić held that ‘members of the armed forces, and members of militias or volunteer corps forming part of such armed forces, cannot claim civilian status.’178 The Chamber held that ‘members of organised resistance groups’ (not being members of the armed forces) could not claim civilian status where they: first, are commanded by a person responsible for his subordinates; second, have a fixed distinctive sign recognizable at a distance; third, that they carry arms openly; and fourth, that they conduct their operations in accordance with the laws and customs of war.179 Civilians do not lose their civilian status merely because they are perceived to be ‘collaborators’ with the armed forces.180 Naturally, such a status would likely cease if they are in fact taking part in hostilities. The scsl Trial Chamber in the ruf Case held that persons accused of ‘collaborating’ with the armed forces will cease to be civilians where they are ‘taking direct part in the 177 (scsl) ruf – Trial, above n 40, [1447], [1455], [2156], affirmed in Prosecutor v Sesay, Kllon and Gbao (Appeals Chamber Judgment), Case No SCSL-04-15-A (26 October 2009) (‘ruf – Appeal’), [1069]. 178 (icty) Blaškić – Appeal, above n 91, [113]. 179 (icty) Blaškić – Appeal, above n 91, [113]. 180 (icty) Limaj – Trial, above n 40, [224]; (scsl) cdf – Appeal, above n 92, [260].

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­hostilities’ but it will not be sufficient that such persons are ‘indirect[ly] supporting or failing to resist an attacking force’.181 Further, where such persons are taking direct part in hostilities, they would only qualify as legitimate military targets during the period of their direct participation.182 The fact that ‘civilian combatants’ took direct part in ‘clashes … described as street fighting’ led the icty Trial Chamber in Šešelj to find that there was no attack against the civilian population.183 The Trial Chamber held that the Prosecution must prove that ‘civilians were targeted en masse’, whilst not taking part in the fighting and not presenting any danger to military forces.184 One difficult issue in this area may be un Peacekeepers. As noted above, the ictr Trial Chamber in Bagosora held as follows: ‘Considering their status as United Nations peacekeepers and that they were disarmed, the Chamber is satisfied that the victims could not be considered as combatants’.185 It is not clear that this same conclusion would follow if the troops were in fact engaged in hostilities. In times of peace, however, the laws of war do not apply and different questions may arise. One such issue is whether or not police forces or gendarmerie are considered ‘civilian’. The ictr Trial Chamber in Kayishema held that the term ‘civilian’ excluded those ‘who have the duty to maintain public order and have the legitimate means to exercise force’ such as the rebel forces, the police and the Gendarmerie Nationale.186 This may be taking the position too far. Whilst international humanitarian law is not directly applicable in times of peace, even during armed conflict the rules of war do not necessarily make such persons combatants. Perhaps more reasonably, the scsl Tribunals have held that the status of police officers must be determined on a case-by-case basis.187 The Appeals 181 (scsl) ruf – Trial, above n 40, [86]. 182 (scsl) ruf – Trial, above n 40, [86] (citing Juan Carlos Abella v Argentina, Inter-American Court of Human Rights, Case 11.137, Report No 55/97, OEA/Ser.L/V/II.95 Doc. 7 rev. at 271 (18 November 1997) (‘Tablada Case’), [176]–[178], [189] and [328]). 183 (icty) Prosecutor v Šešelj (Trial Chamber Judgment) Case No IT-03-67-T (21 March 2016) (‘Šešelj – Trial’), [192]. 184 (icty) Šešelj – Trial, above n 183, [193]. 185 (ictr) Bagosora – Trial, above n 22, [2175]. 186 (ictr) Kayishema – Trial, above n 56, [127]. Mettraux agrees with this conclusion: Mettraux, above n 58, 168. Others have criticized it: see Kai Ambos and Steffen Wirth, ‘The Current Law of Crimes Against Humanity: An Analysis of untaet Regulation 15/2000’ (2002) 13 Criminal Law Forum 1; Werle, above n 136, 223. 187 (scsl) cdf – Trial, above n 5, [137], approved in cdf – Appeal, above n 92, [261]; ruf – Trial, above n 40, [88] (citing cdf – Trial and cdf – Appeal).

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Chamber in the cdf Case appeared to endorse the Trial Chamber’s finding that it was a ‘general presumption’ that police officers are considered civilians (‘for the purpose of international humanitarian law’) where they are ‘in the execution of their typical law enforcement duties’ and where they do not ‘operate under the control of the military’.188 The Trial Chamber in the ruf Case as well as the eccc reached the same conclusion.189 The Trial Chamber in the ruf Case explained that one way in which a civilian police force would be operating under the control of the military is where they are incorporated into the armed forces either de lege or de facto.190 While not enunciating the principles as such, various icty and ictr Tribunals have discussed whether or not the military has exercised de jure or de facto control over police or gendarmerie on various occasions.191 Whether or not a police force is incorporated into the armed forces does not appear to be the only relevant question. For instance, the status of the particular individuals in question may need be considered. When these principles were applied in the cdf Case, the Appeal Chamber held that those policemen who took part in the fighting were not civilian but those without ammunition were civilian.192 Similarly, these questions were considered in the context of an armed conflict. The same principles may not necessarily apply in the context of peacetime. In the icty case of Đorđević, the defence raised the contention that the persons killed were not ‘victims’, but persons killed in the course of a genuine police operation to arrest and deal with terrorist forces. The Trial Chamber rejected this on the basis that: first, they were unarmed; and secondly, ‘[n]o attempt was made to identify or arrest [any persons] for the purpose of investigation or trial as terrorists or suspected terrorists.’193 Had such a claim been established on the evidence, the proper analysis would not be that such 188 (scsl) cdf – Appeal, above n 92, [260] (citing cdf – Trial, [136]). 189 (scsl) ruf – Trial, above n 40, [87] (citing Yves Sandoz, Christophe Swinarski and Bruno Zimmerman (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (icrc/Martinus Nijhoff Publishers: Geneva, 1987), Additional Protocol 1, Article 43(3), [1682]–[1683] and Article 59(3), [2277]–[2281]); (eccc) Case 002/01 – Trial, above n 24, [186]. 190 (scsl) ruf – Trial, above n 40, [88]. 191 (icty) Prosecutor v Orić (Trial Chamber Judgment), Case No IT-06-68-T (30 June 2006) (‘Orić – Trial’), [187]–[188] and [215]–[221]; Blaškić – Trial, above n 22, [453]–[456]; (ictr) Akayesu – Trial, above n 24, [68]–[69], Prosecutor v Bagilishema (Trial Chamber Judgment), Case No ICTR-95-1A-T (7 June 2001) (‘Bagilishema – Trial’), [177], [181]–[183]. 192 (scsl) cdf – Appeal, above n 92, [261]. 193 (icty) Prosecutor v Đorđević (Trial Chamber Judgment), Case No IT-05-87/1-T (23 February 2011) (‘Đorđević – Trial’), [1707].

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persons were not civilians and the relevant attack was not directed against any civilian ‘population’.194 Ultimately, these authorities suggest that, in the case of resistance fighters, a precise investigation of the facts is required to ascertain their status. Some earlier cases had followed Barbie, finding that resistance fighters and others bearing arms, who are not strictly members of the armed forces, can be part of the ‘civilian population’.195 Nonetheless, the weight of current authority suggests that if, under international humanitarian law, they constitute an organized resistance group complying with the laws of war, they cannot claim to be civilians for the purpose of identifying the ‘civilian population’ irrespective of whether they are in combat or armed. On the other hand, if they do not constitute such an organized resistance group, they can qualify as being ‘civilians’ except where they are taking direct part in the hostilities. 4.3.4 Conclusion – The icc and Beyond It may be that the position adopted by the ad hoc Tribunals will not be the last word on the matter. First, while a common position has been reached in the ad hoc Tribunals, it cannot be said that the conclusion is entirely satisfactory. There remains the possibility under such an approach that what may be regarded in lay terms as an ‘atrocity’ committed by a state or organisation will not amount to either a crime against humanity or a war crime. For example, a dictator on coming to power may conduct a widespread purge of the armed forces, killing those of a particular ethnic or tribal background. There are historical precedents for this. On coming to power in Uganda in 1971, and subsequently, Idi Amin brutally purged the Army of those from the Lango and related Acholi tribes and figures of over 500 murdered have been recorded.196 In Ethiopia, military ruler Mengistu Hailemariam did the same to members of the armed forces in 194 See below, Section 5.2. 195 In (icty) Prosecutor v Mrkšić, et al. (Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence), Trial Chamber i, Case No. IT-95-13-R61 (3 April 1996) (‘Mrkšić – Vukovar Hospital Decision’), Kupreškić – Trial, above n 99, [548]–[549] and Tadić – Trial, above n 5, [636]–[643] it was said that those actively involved in a resistance movement can qualify as victims of crimes against humanity. Similar views were held in (icty) Blaškić – Trial, above n 22, [214] and Kordić – Trial, above n 134, [180], albeit to the effect that such persons may be ‘civilians’. Mettraux criticises this statement, saying a person killed while undertaking some act of ‘resistance’ is not a civilian: Mettraux, above n 58, 169. 196 Willem Adriaan Veenhoven, Winifred Crum Ewing, Stichting Plurale Samenlevingen, Case Studies on Human Rights and Fundamental Freedoms: A World Survey, Volume 1 (Brill Nijhoff: The Hague, 1976) 417–422.

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Ethiopia (the Derg) after assuming power, and Mengistu and many others were convicted of crimes against humanity in relation to such acts in the Ethiopian courts.197 Where it may be contended that such an action is in effect an attack on the population more generally, the logic is somewhat strained. The simpler view would be that they are being attacked as a civilian population because at the time of the attack they are defenceless and are not engaging in hostilities. This question has recently arisen at the eccc in the context of certain purges undertaken by the Khmer Rouge. The International Co-Investigating Judge in Cases 003 and 004 called for amicus curiae briefs on the question of whether an attack against members of the armed forces satisfied the chapeau elements of crimes against humanity.198 After accepting such briefs, the International Co-Investigating Judge found that, under international customary law between 1975 and 1979, an attack against members of the armed forces in peacetime could amount to a crime against humanity.199 Such an attack during an armed conflict also could amount to a crime against humanity, unless the armed forces were in fact allied with an opposing side in a conflict.200 In reviewing the post-Second World War jurisprudence on crimes against humanity, the International Co-Investigating Judge stated that the courts ‘primarily looked at the systematic or large scale nature of the attack, rather than on the formal status of the victim’,201 which ‘evidences a broad interpretation of the term civilian population.’202 He also questioned the ad hoc tribunals’

197 See Chapter 7, Section 6.1.2. Such crimes were, however, only part a much broader attack that could in any event be classified as an attack against a civilian population even on the definition of the ad hoc Tribunals. 198 See discussion in Killean et al. (2017), above n 125. 199 (eccc) Notification on the interpretation of ‘attack against the civilian population’ in the context of crimes against humanity with regard to a state’s or regieme’s own armed forces (Office of the Co-Investigating Judges), Case File No: 004/07-09-2000 (7 February 2017) (‘Notification on the interpretation of “attack against the civiliain population”’), [56]. 200 (eccc) Notification on the interpretation of ‘attack against the civiliain population’, above n 200, [57]. 201 (eccc) Notification on the interpretation of ‘attack against the civiliain population’, above n 200, [38]. 202 (eccc) Notification on the interpretation of ‘attack against the civiliain population’, above n 200, [43]. The International Co-Investigating Judge also drew attention to the conventions on genocide and apartheid as ‘demonstrat[ing] the international community’s r­ esolution

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reliance on international humanitarian law for the meaning of civilian population, given that crimes against humanity occurred during both war and peace, and that international humanitarian law has not been used to determine the meaning of attack.203 The International Co-Investigating Judge concluded that a broad meaning of civilian population that included members of armed forces should be adopted at the eccc, particularly given the purpose of crimes against humanity to protect ‘against human rights violations perpetrated on a large scale against individuals, including a state’s own nationals, who were not otherwise protected by the existing laws and customs of war’.204 He went further to state that excluding members of armed forces from the protection of crimes against humanity could lead to absurd results if, for example, a government during peacetime took actions against members of its armed forces of a particular religion.205 Commentators have made similar arguments to the International Co-Investigating Judge, arguing that the narrow interpretation of civilian population by some of the ad hoc tribunals and the icc risks creating a ‘protection gap’ in international criminal law.206 Secondly, the position at the icc is not yet clear. At the negotiations of the Rome Statute, several delegations argued that the term ‘civilian population’ in the context of crimes against humanity should not be interpreted as strictly limited to civilians.207 Despite this, the drafters of the Rome Statute



to protect all individuals against human rights violations committed in peace or war when not justified by military’, [44]–[45]. 203 (eccc) Notification on the interpretation of ‘attack against the civiliain population’, above n 200, [52]–[54]. Although the International Co-Investigating Judge stated that the icty’s reliance on international humanitarian law was ‘understandable’ given that tribunal’s jurisdictional requirement for crimes against humanity be have been committed during an armed conflict, [54]. 204 (eccc) Notification on the interpretation of ‘attack against the civiliain population’, above n 200, [55]. 205 (eccc) Notification on the interpretation of ‘attack against the civiliain population’, above n 200, [63]–[65]. 206 Rachel Killean, Eithne Dowds and Amanda Kramer, ‘Soliders as Victims at the eccc: Exploring the Concept of “Civilian” in Crimes against Humanity’ (2017) Leiden Journal of International Law, 18. 207 (icty) Martić – Appeal, above n 91, [278] (citing von Hebel et al., above n 155, 97, fn 54.)

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i­ntentionally left ‘any civilian population’ undefined in order that the term may be left to the case-law.208 The icc has not yet given proper consideration to this issue and there may be scope for argument that a deviation from the position in the ad hoc Tribunals is appropriate. On the one hand, a number of early decisions of the icc Pre-Trial Chamber and Trial Chamber have followed the Kunarac Appeal decision in defining ‘civilian’ in accordance with ihl.209 On the other hand,210 PreTrial Chamber i in the Katanga Confirmation Decision has been less clear. The Pre-Trial Chamber cited the broad position held by the icty Trial Chamber in Tadić, noting that ‘as opposed to war crimes which are provided for in Article 8 of the Statute, the term “civilian population” within the meaning of article 7 of the Statute affords protections to “any civilian population” regardless of their nationality, ethnicity or other distinguishing feature’.211 Thirdly, despite the apparent resolution, there are a number of matters that are not entirely settled. A number of authorities since Martić, for instance, have started to use less constrictive language when describing the role of Additional Protocol 1 in interpreting ‘civilian’. The scsl Appeal Chamber, for instance, held that Additional Protocol 1 is a ‘useful tool’ in determining the ‘civilian population’ element.212 Further, the icty Appeals Chamber in Mrkšić, stated the following after citing the principle in Martić that ‘victims’ need not be civilian: This is not to say that under Article 5 of the Statute the status of the victims as civilians is irrelevant. In fact, the status of the victims is one of the factors that can be assessed in determining whether the jurisdictional requirement that the civilian population be the primary target of 208 (icc) Katanga – Confirmation, above n 109, [399], fn 511 (citing Roy Lee (Ed), The International Criminal Court: Elements of Crimes and Rules of Evidence (Transnational Publishers: New York, 2001) 78: ‘Most delegations quickly agreed that this was too complex a subject and evolving area in the law, better left to resolution in case law.’) 209 (icc) Bemba Gombo – Confirmation, above n 24, [78] (following (icty) Kunarac – A ­ ppeal); Kenya – Authorisation Decision, above n 24, [82] (following Bemba Gombo – Confirmation and Kunarac – Appeal); Katanga – Trial, above n 77, [1102]; Bemba Gombo – Trial, above n 76, [154], [156]. 210 (icc) Bemba Gombo – Confirmation, above n 24, [78] (following (icty) Kunarac – A ­ ppeal); Kenya – Authorisation Decision, above n 24, [82] (following Bemba Gombo – Confirmation and Kunarac – Appeal); Katanga – Trial, above n 77, [1102]. 211 (icc) Katanga – Confirmation, above n 109, [399], citing (icty) Tadić – Trial, above n 5, [635], Jelisić – Trial, above n 110, [54]. 212 (scsl) cdf – Appeal, above n 92, [259].

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an ­attack has been fulfilled, along with, inter alia, the means and method used in the course of the attack, the number of victims, the ­discriminatory nature of the attack, the nature of the crimes committed in its course, the resistance to the assailants at the time and the extent to which the ­attacking force may be said to have complied or a­ ttempted to comply with the precautionary requirements of the laws of war. (­emphasis added)213 Further, the Martić Trial Chamber’s reasoning suggests that its position was based at least in part on the fact that the icty Statute specifically linked civilians to an armed conflict, stating that: Article 5 of the Statute defines crimes against humanity more narrowly than required under customary international law by including a requirement of a nexus between the crime and the armed conflict. This requirement in Article 5 necessarily links crimes against humanity to an armed conflict in which distinction must be made between combatants and non-combatants. Therefore, to allow for the term “civilians” to include all persons who were not actively participating in combat, including those who were hors de combat, at the time of the crime would impermissibly blur this necessary distinction.214 This suggests the distinction between combatants and non-combatants may not be ‘necessary’ under customary law, the ictr Statute or the icc Statute, where no link with armed conflict is present in the definition. These remarks and the conclusion were adopted in the subsequent Trial Chamber judgment in Mrkšić.215 The Trial Chamber further accepted that this conclusion would lead to a ‘protection gap’ (i.e. where atrocities were committed against combatants or persons hors de combat outside war time), although noted that ‘it is not for this Tribunal to fill this gap through its case law’.216

213 (icty) Mrkšić – Appeal, above n 158, [30], followed in Đorđević – Trial, above n 193, [1593]. 214 (icty) Prosecutor v Martić (Trial Chamber Judgment), Case No IT-95-11-T (12 June 2007) (‘Martić – Trial’), [56]. 215 (icty) Prosecutor v Mrkšić (Trial Chamber Judgment), Case No IT-95-13/-T (27 September 2007) (‘Mrkšić – Trial’), [454]. 216 (icty) Mrkšić – Trial, above n 216, [460]. An example of such a ‘gap’ would include Idi Amin’s purge of around one third of the army after taking control of the country in 1971. Such action would be neither a war crime nor a crime against humanity.

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Fourthly, this position is not entirely consistent with the position at Nuremberg. Like in Martić, the icty Trial Chamber in Mrkšić appeared to base its position at least in part on the fact that its conclusion was consistent with the practice at Nuremberg: this [conclusion] is in line with the historical origin of crimes against humanity which, from the outset, focused on civilian victims as was clear from the notion “against any civilian population” in Article 6(c) of the Nuremberg Charter. This further supports the proposition that crimes against humanity are committed against civilians, not combatants or fighters … the underlying principle, i.e. that crimes against humanity, as opposed to war crimes, are directed against civilian victims.217 A related reason why the Trial Chamber took this narrow view was that it pointed out that some of the underlying offences, such as deportation and possibly imprisonment and forced labour even as an act of persecution, could only take place if the victims were civilians, because under the Geneva Conventions prisoners of war may be deported, imprisoned or subjected to forced labour.218 Yet, these statements are not entirely accurate. In fact, the ‘persecution’ type offences at Nuremberg did not need to be against a ‘civilian population’. And, in any event, crimes against humanity at the time of Nuremberg had a large factual overlap between war crimes owing to presence of the war nexus. Any such link is not necessarily required in times of peace. As Cassese has argued, ‘because of the gradual disappearance in customary international law of the nexus between crimes against humanity and war, the emphasis on the civilian population as the exclusive target of such crimes dwindled, if not disappeared’.219 Provided the victim’s ‘humanity’ is being attacked at the time of the crimes, it makes sense that he or she is a ‘civilian’ for the purposes of crimes against humanity. As Werle explains it: Most important in demonstrating membership in a civilian population is the victims’ need for protection, which follows from their defencelessness vis-à-vis state, military or other organised force.220 217 (icty) Mrkšić – Trial, above n 216, [458]. 218 (icty) Mrkšić – Trial, above n 216, [458], citing Articles 46 and 49 of Geneva Convention iii. 219 Cassese, above n 2, 104. 220 Werle, above n 136, 222.

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Applying this logic, civilians would cover members of the military forces not only where, during times of armed conflict, they have laid down their arms or are on longer participating in hostilities, but also military personnel in the absence of any armed conflict (where the protection of international ­ humanitarian law falls away), commensurate with the protection afforded such persons under Common Article 3 of the Geneva Conventions. It would only be if the victim was engaging in active hostilities at the time and was targeted in ­accordance with the laws of war (in times of armed conflict) or not inconsistent with the victim’s fundamental human rights (in times of peace) that he or she would no longer be a ‘civilian’. 4.4 Presumptions and Burden of Proof The use by some tribunals of international humanitarian law has also extended to presumptions and burden of proof. A number of tribunals have held, for instance, that in case of doubt a person shall be presumed to be a civilian and cannot be attacked merely because the question appears dubious.221 When it comes to establishing the ‘civilian’ component for the purposes of a prosecution for crimes against humanity, however, the Prosecution must still discharge the burden of showing that the person was a civilian.222 The exception to this does appear to be in the finding in Mrkšić that this proposition does not extend to mens rea of crimes against humanity.223 That is, it is not required for the prosecution to establish that the individual knew that the victim was civilian. 5 ‘Population’ 5.1

Civilian Population as Such

5.1.1 Overview – Collective Rather than Individual The meaning of the word ‘population’ has received much attention, particularly by the icty, in order to bring the definition in Article 5 in line with the Tribunal’s view of customary law and the Nuremberg Precedent. 221 (icty) Milošević, D – Appeal, above n 110, [60], Kunarac – Trial, above n 22, [426] and (scsl) ruf – Trial, above n 40, [86] (each applying the principle contained in Article 50(1) of Additional Protocol 1). 222 (icty) Blaškić – Appeal, above n 91, [111]; Milošević – Appeal, above n 110, [60]; (scsl) ruf – Trial, above n 40, [86] (following Blaškić – Appeal). 223 (icty) Mrkšić – Trial, above n 216, [454], [464].

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In Chapter 2, the authors suggest that in its historical context, and as interpreted by the Nuremberg Tribunal, the word ‘population’ did not receive any particular attention beyond making it clear that the words ‘any civilian population’ meant that the victim could have any status or be of any nationality. At Nuremberg, the approach appeared to be that, for example, murder, if connected with war crimes or aggression (called crimes against peace) could be a crime against humanity and overlap with war crimes. Further, the offence of persecution as a crime against humanity could occur without the requirement that it be committed against any civilian population. Others at the time of Nuremberg, particularly the un War Crimes Commission, suggested that a crime against humanity in the London Charter, through the word ‘population’, implied certain additional requirements: ‘the word population appears to indicate that a large body of victims is visualized and that single and isolated acts against individuals may be considered to fall outside the concept’.224 Citing the un War Crimes Commission as authority, the icty Trial Chamber in Tadić adopted the latter approach. The Chamber held as follows:225 The requirement in Article 5 of the Statute that the prohibited acts must be directed against a civilian “population” does not mean that the entire population of a given State or territory must be victimised by these acts in order for the acts to constitute a crime against humanity. Instead the “population” element is intended to imply crimes of a collective nature and thus exclude single or isolated acts which, although possibly constituting war crimes or crimes against national penal legislation, do not rise to the level of crimes against humanity. […] Thus the emphasis is not on the individual victim but rather on the collective, the individual being victimised not because of his individual attributes but rather because of his membership of a targeted civilian population. This position was affirmed by the icty Appeals Chamber in Kunarac.226 In Limaj, the icty Trial Chamber stated ‘the requirement that a “civilian 224 Chapter 2, Section 5. See also unwcc, History of The United Nations War Commission (hmso: London, 1948) 193: ‘[T]he word population appears to indicate that a larger body of victims is visualized and that single and isolated acts against individuals may be considered to fall outside the concept’. 225 (icty) Tadić – Trial, above n 5, [644]. 226 (icty) Kunarac – Appeal, above n 22, [90], affirming Kunarac – Trial, above n 22, [424] (citing Tadić – Trial, above n 5).

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­population” be the target of an attack may be seen as another way of emphasising the requirement that the attack be of large scale or exhibit systematic features’.227 In the result, the word ‘population’ conveys a subtle and technical notion which has a broader meaning than all of the inhabitants of a geographical area.228 In its modern context, the main purpose served by the word ‘population’ is to emphasise the requirement of scale and to exclude single or isolated acts. Whether what is targeted is a ‘population’ is ultimately a question of fact and degree. The civilian ‘population’ does not need to be the entire population of a given state or territory or the entire geographical area relevant to a given indictment.229 The crimes must however, be ‘of a collective nature’ and not constitute ‘single or isolated acts’.230 In resolving this question in any given case, two guiding principles are useful: 1. 2.

the question must be examined having regard to the number targeted and the nature of the targeting; and the attack must not consist of single or isolated acts.

Before those principles are further addressed, the following two matters should be noted. First, the principles do require that individual victims must in fact be a part of the group targeted. The Tribunals have held, consistently with previous case law,231 that persons opposing a policy of ideological supremacy can

227 (icty) Limaj – Trial, above n 22, [218], see also [187]. 228 See Oxford English Dictionary: (‘A populated or inhabited place’; ‘The extent to which a place is populated or inhabited; the collective inhabitants of a country, town, or other area; a body of inhabitants’). 229 (icty) Tadić – Trial, above n 5, [644], followed in Kunarac – Trial, above n 22, [424]; Kunarac – Appeal, above n 22, [90] (citing Kunarac – Trial and Tadić – Trial), followed in Blaškić – Appeal, above n 91, [105] and Prosecutor v Stakić (Appeals Chamber Judgment), Case No IT-97-24-A (22 March 2006) (‘Stakić – Appeal’), [247]; (ictr) Bagilishema – Trial, above n 191, [80] (citing Tadić – Trial); Semanza – Trial, above n 24, [330] (citing Bagilishema – Trial and Kunarac – Appeal); (scsl) ruf – Trial, above n 40, [85] (citing Kunarac – Appeal and Blaškić – Appeal); (eac) Habré – Trial, above n 22, [1364]; (icc) Bemba Gombo Confirmation Decision, above n 24, [77] (citing Bagilishema – Trial, Semanza – Trial, Kunarac – Appeal); Kenya Authorisation Decision, above n 24, [82] (following Bemba G ­ ombo – Confirmation and authorities cited therein); (eccc) Duch – Trial, above n 24, [303]; Case 002/01 – Trial, above n 24, [182]. 230 (icty) Tadić – Trial, above n 5, [644]. 231 (France) Barbie, above n 127; see also some of the cases under ccl 10 discussed in Chapter 3, Section 2.3.

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be victims, even if not part of the community targeted on religious or racial grounds, provided that the victim was targeted to support or further the goals of the attack232 (or, on one authority, provided it in fact furthers the attack233). For example, if certain Hutus are targeted because of their sympathy for the plight of the Tutsis, or because they oppose the regime responsible for the attack, they can be victims of the crimes against humanity as part of the attack being committed against the Tutsis. Secondly, the victims of the enumerated act need not necessarily share geographic or other defining features with the civilian population that forms the primary target of the underlying attack, but if the victims do share such characteristics, this may be used to demonstrate that the specified act forms part of the attack.234 5.1.2 Number Targeted and Nature of the Targeting The first key principle in determining whether an attack has been directed against a ‘population’ is that it will be necessary to show that ‘enough individuals were targeted’ in the course of the attack, or that they were ‘targeted in such a way’ as to satisfy the Chamber that the attack was in fact directed against a civilian ‘population’, rather than against a ‘limited and randomly selected number of individuals’.235 This suggests an inquiry should be made into: first, the number targeted; and the nature of the targeting. As to the first, as noted above, ‘enough individuals’ may be targeted even though that number does not make up the entire population or geographical area in question. The necessary implication of this is that the targeting of a state, a municipality, a village or another circumscribed area or a group within 232 (ictr) Akayesu – Trial, above n 24, [584]; Semanza – Trial, above n 24, [331], Musema – Trial, above n 54, [209]; Rutaganda – Trial, above n 54, [73]; Muhimana – Trial, above n 56, [529]; Gacumbitsi – Trial, above n 56, [301]; Kajelijeli – Trial, above n 56, [878]; (icty) Naletilić – Trial, above n 22, [636]; Prosecutor v Kvočka et al. (Trial Chamber Judgment), Case No IT-98-30/1-T (2 November 2001) (‘Kvočka – Trial’), [195] (relying on findings in Tadić – Trial). 233 (ictr) Semanza – Trial, above n 24, [331]. 234 (ictr) Semanza – Trial, above n 24, [330]. 235 (icty) Kunarac – Appeal, above n 22, [90], followed in e.g.: Martić – Appeal, above n 91, [305]; Stakić – Trial, above n 93, [624]; Brđanin – Trial, above n 22, [134]; (scsl) ruf – Trial, above n 40, [85]; cdf – Trial, above n 5, [119] (cited with approval in cdf – Appeal, above n 92, [258]); Taylor – Trial, above n 24, [507]; afrc – Trial, above n 25, [217]; (eccc) Duch – Trial, above n 24, [303] (following Blaškić – Appeal, above n 91); Case 002/01 – Trial, above n 24, [182]; (eac) Habré – Trial, above n 22, [1364]; (icc) Bemba Gombo – Confirmation, above n 24 [77]; Kenya – Authorisation Decision, above n 24, [81].

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such a geographical area may suffice. Hence, while the Tribunals have often not been clear on the precise bounds of the ‘population’ in question, ­Tribunals appear to have accepted that: in Tadić, the ‘population’ was the Muslim inhabitants in a 20km diameter area; in Kunarac, it consisted of three small municipalities; in Rutaganda, it was the Tutsi inhabitants of two prefectures; in Musema, it was the Tutsi inhabitants of two communes within the Kibuye Prefecture;236 and in Kupreškić, the attack was on the 600 Muslim inhabitants of the village of Ahmici.237 While the approach of looking for a minimum level of scale has been criticised by some academics,238 a number of Tribunals and Courts have interpreted the concept of an attack against a ‘population’ as requiring exactly that exercise. This view was expressed for instance, in pre-Kunarac decisions of the ictr and spet.239 This causes a number of difficult questions in application. For example, how many people must be targeted before the group can constitute a ‘population’? Often in the case of the icty and the ictr, the Prosecution has framed the indictment to refer to a municipality or a village as the relevant ‘population’ rather than, for instance, the entire population of the relevant area. One can understand the Prosecution wanting to limit its task, but to allege that each separate ‘attack’ on a village or municipality in Bosnia or Rwanda was the relevant ‘attack’ on a ‘civilian population’ for the purposes of the Statute seems somewhat removed from the reality of the circumstances of the widespread atrocities across the former Yugoslavia and Rwanda which prompted the intervention of the Security Council. This question has some overlap with the question of when an attack will reach a minimum level of scale or seriousness to amount to crimes against humanity, discussed in more detail in Chapter 8.240 On the one hand, Ratner and Abrams speculate that the assassination of a single political figure, such as the killing of Hungarian leader Imre Nagy in 1956 by the Soviet authorities, may suffice as a crime against humanity if it is intended to threaten the 236 See Mettraux, above n 58, 161, based upon the author’s review of the indictments. 237 (icty) Kupreškić – Trial, above n 99, [149]. 238 Luban, above n 59, 108; Simon Chesterman, ‘An Altogether Different Order: Defining the Elements of Crimes Against Humanity’ (2000) 10 Duke Journal of Comparative & International Law 307, 315. 239 (ictr) Bagilishema – Trial, above n 191, [78]; (spet) Los Palos – Judgment, above n 22, [638]. It is important to not also that the Chamber in Bagilishema itself doubted the existence of a policy requirement as such. 240 See Chapter 8, Section 3.2.

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entire ‘civilian population’.241 On the other hand, the authors in Chapter 8 have contended that this would be insufficient to amount to a crime against humanity. It is important to distinguish between the number of victims and the concept of the ‘population’ which forms the object and purpose of the directed attack. For instance, an ‘attack’ may be ‘directed against’ all Muslims in a municipality but only in fact be executed against a smaller number. The word ‘population’ focuses on the object of the attack rather than the number of actual victims. The position is similar to that of genocide, where it has been held that to establish the requisite genocidal intent, the conduct must ‘present […] a concrete threat to the existence of the targeted group, or targeted thereof […] as opposed to just being [a threat that is] latent or hypothetical’, or reach a sufficient scale.242 As to the second, the nature of the targeting, the individuals must be targeted in a manner that is arbitrary, indiscriminate or to instil fear into a larger population; it may be accepted that if the targeting is legitimate or reasonable, no crime will be committed. This principle is derived from the finding of the icty Trial Chamber in Tadić that the victim must have been chosen because of their membership of the targeted group, not their individual attributes.243 Similar findings have been made that the targeted group must ‘share distinctive features which identify them as targets of the attack’ such as ethnic or religious commonalities.244 This issue is discussed further below. It is suggested that the drawing of a distinction between targeting based on individual attributes and targeting based on group attributes, is in fact an articulation of the proposition that the targeting must be arbitrary or illegitimate, as opposed to legitimate or reasonable. Targeting based on race, ethnicity, religion or political affiliation is a classic illustration of such targeting.

241 Steven Ratner and Jason Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (2nd ed, Oxford University Press: Oxford, 2001) 61. 242 (icc) Prosecutor v Al Bashir (Decision on the Prosecution’s Application for Warrant of Arrest against Omar Hassan Ahmad Al Bashir), ICC-02/05/01/09 (4 March 2009), [125]; see also (icj) Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Croatia v Serbia) [2015] icj Rep 3, 58. 243 (icty) Tadić – Trial, above n 5, [644]; and Kunarac – Appeal, above n 22, [90], affirming Kunarac – Trial, above n 22, [424]. See also (eac) Habré – Trial, above n 22, [1364]. 244 (Canada) Mugesera – Supreme Court, above n 55, [161]–[163]. A similar conclusion was reached by the us District Court in (United States) Sarei v Rio Tinto – District Court, above n 60, 1150. See discussion in Chapter 7.

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For example, in In Re Agent Orange,245 a us District Court considered that the use by us and Vietnamese authorities of the chemical ‘Agent Orange’ in the Vietnam War did not amount to a crime against humanity on the basis that the actions were carried out as a legitimate military operation that was not contrary to international humanitarian law. Similarly, in the icty case of Đorđević, the defence raised the contention that the persons killed were not ‘victims’, but persons killed in the course of a genuine police operation to arrest and deal with terrorist forces. The Trial Chamber rejected this on the evidence.246 Although more controversial, a similar concept has arisen in the context of the suppression of protesters. In Mamani v Berzaín,247 a us Court of Appeals dismissed a civil claim of crimes against humanity against Bolivian authorities when 70 were killed and 400 injured in the context of the state’s suppression of civil unrest. The Court held that it had not been established that the killing rose to the level of extrajudicial killings as opposed to, for instance, negligent shooting or shooting for individual reasons unlinked to the state.248 Similar logic may have been responsible for the finding of the Peruvian Constitutional Court that the execution of 90 to 100 individuals by Peruvian authorities at El Fronton prison in June of 1986 did not amount to a crime against humanity.249 The deaths in question took place in the context of the Peruvian authorities putting down (albeit violently) a prison riot purportedly on behalf of the Shining Path terrorist group. Of course, an attack may still amount to a crime against humanity even where the overall objective of the attack is legitimate. This was the finding of the scsl where crimes were found in the context of a legitimate military attack.250 Operation Condor in South America in the 1970s and 1980s had as its ostensible objective to eradicate the threat of communism, but the mechanism of doing so was still an attack against a civilian population. As held

245 (United States) Loi v Dow Chemical Co (In re ‘Agent Orange’ Product Liability Litigation), 373 F. Supp. 2d 7 (e.d.n.y., 2005) (‘In re Agent Orange – District Court’). The case is discussed further in Chapter 7. 246 (icty) Đorđević – Trial, above n 193, [1707]. 247 (United States) Mamani v Berzaín, 654 F.3d 1148 (11th Cir., 2011) (‘Mamani v Berzaín – Appeal’). 248 (United States) Mamani v Berzaín – Appeal, above n 248, 1154–1156. 249 Although, the decision should be treated with some caution as it was later overturned on the basis that it was not decided by the necessary majority of judges in (Peru) Constitutional Court of Peru, Case No 01969-2011-PHC/TC (5 April 2016). See discussion in Chapter 7, Section 4.4.2(b). 250 (scsl) cdf – Appeal, above n 92, [247].

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by one Canadian Federal Court, a legitimate objective such as the investigation and i­nterrogation of suspected terrorists may be pursued by illegitimate means such as illegal detention and torture.251 Assuming the illegal detention and torture is on a sufficient scale, such conduct may amount to a crime against humanity. Accordingly, it is not difficult to see how the extrajudicial killing of large enough number of people could amount to a crime against humanity, A similar concern arose in one us District Court case concerning the ­Chinese crackdown on practitioners of Falun Gong, which included both the official policy of outlawing the Falun Gong as well as the arbitrary arrest, detention and torture of Falun Gong practitioners.252 In an application for d­ efault judgment, the Court decided not to address the issue of whether or not the actions amounted to a crime against humanity out of an apparent concern that it would require it to sit in judgment on official government policy. However, the outlawing of an organisation and arrest pursuant to such a law – to the extent such actions are legitimate and do not involve a gross abuse of the victim’s human rights – may be able to be distinguished from actions of arbitrary arrest and torture. Accordingly, assuming the minimum threshold for scale and seriousness is met, can, for example, a group of trade union leaders, the members of a small opposition party, the detainees at Guantanamo Bay or asylum seekers detained by the Australian government be a ‘population’? What about a police force which opens fire on a street demonstration or a riot. Is that an attack on a civilian population? A Court in Israel held that the detainees of two Nazi concentration camps consisted of a civilian population in the sense used in the definition,253 but Mettraux doubts the correctness of this.254 Ultimately, assuming the minimum threshold for scale and seriousness is met, provided the nature of the targeting is such that it can be fairly said that the victims within the group have been attacked arbitrarily or indiscriminately or to instil fear in the wider population, such a group may fairly be regarded as a ‘civilian population’. What is further required, as discussed in Chapter 8 and below, is that such grouping must be targeted pursuant to some policy of a State or organisation in the nature of a de facto power. 251 See (Canada) Shalabi v The Minister of Public Safety and Emergency Preparedness 2016 fc 961, discussed in Chapter 7, Section 2.2.2(c). 252 (United States) Doe v Liu Qi et al., 349 F. Supp. 2d 1258 (N.D. Cal., 2004) (‘Doe v Liu Qi – ­District Court’), 1309–1311. 253 (Israel) Enigster – Trial, above n 108, [13(B)(5)]. 254 Mettraux, above n 133, 166.

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5.1.3 Exclusion of Single or Isolated Acts The second key principle in determining whether an attack has been directed against a ‘population’ is the exclusion of single or isolated act(s). The main role this exclusion plays is to require both, that the attack on the population is pursuant to some course of conduct which may satisfy the ‘policy element’, and that the underlying crime perpetrated on the victim is related to the attack in question. In the case of ethnic violence such as occurred in the former Yugoslavia and Rwanda, the matter may be relatively clear. On the other end of the spectrum, the targeting of individuals arising out of some personal animosity between the perpetrator and the particular victim will not suffice. Difficulties arise when considering remarks by the Tribunals such as the icty Trial Chamber in Tadić which said the victim must have been chosen because of their membership of the targeted group, not their individual attributes.255 Similarly, the icty Trial Chamber in Limaj held that ‘the targeting of a select group of civilians – for example, the targeted killing of a number of political opponents – cannot satisfy the requirements of Article 5’.256 Mettraux writes something similar, contending that ‘…the killing of only a select group of civilians – a number of political opponents to the regime – could not be regarded, in principle, as a crime against humanity; in such a case, no population can be said to have been attacked.’257 Mettraux also writes that ‘[a] group of individuals randomly or fortuitously assembled – such as a crowd at a football game – could not be regarded as a “population” under this definition’.258 The same finding as to the targeting of ‘random’ individuals was made by the eac in Habré.259 The implication is similar from the finding by the Supreme Court of Canada in Mugesera that the attack must be directed against a ‘civilian population or other identifiable group’.260 The Court held that the term ‘population’ ‘suggests that the attack is directed against a relatively large group of people who share distinctive features which identify them as targets of the attack’ such as ethnic

255 (icty) Tadić – Trial, above n 5, [644]. 256 (icty) Limaj – Trial, above n 22, [187]. 257 Guénaël Mettraux, ‘Crimes against Humanity in the Jurisprudence of the International Criminal Tribunals For The Former Yugoslavia and For Rwanda’ (2002) 43 Harvard International Law Journal 237, 255. 258 Mettraux, above n 58, 166. 259 (eac) Habré – Trial, above n 22, [1364]. 260 (Canada) Mugesera – Supreme Court, above n 55, [128], [151]. See discussion in Chapter 7, Section 2.2.2(a).

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or religious commonalities (emphasis added).261 Does the target of the attack need to be a group sharing common elements such as ethnicity or religion or will targeting on political grounds suffice? As discussed in detail in Chapter 5,262 the Trial Chamber in Limaj found that the perceived collaborators were targeted ‘as individuals rather than as members of a larger population’.263 This was despite a kla policy of targeting both Kosovo Albanian and Serbian civilians believed to be, or suspected of being, associated or collaborating with the Serbian authorities.264 The Tribunal accepted that ‘at least as a general rule’, perceived collaborators abducted by the kla were entitled to civilian status’.265 Nevertheless, the small number of abductions involved and the limited level of organisation displayed by the kla in respect of the alleged ‘attack’,266 along with the fact that most persons ‘were singled out as individuals’ not because of their membership of a ‘population’,267 led the Tribunal to conclude that there was no ‘attack directed against any civilian population’. Similar findings were made by the icty Trial Chamber in Haradinaj – also a case concerning the kla.268 The issue was subsequently addressed by the scsl in the ruf Case and the cdf Case. At first instance, the Trial Chambers in both cases endorsed the finding in Limaj that ‘the targeting of a select group of civilians – for example, the targeted killing of political opponents’ could not constitute a ‘civilian population’.269 Like in Limaj, these Chambers did so at the same time as reciting the principle in Kunarac that provided that ‘enough individuals were targeted’ or were ‘targeted in such a way’, the group could amount to a ‘population’. On appeal in the cdf Case, one of the accused specifically contended that the decision in Limaj supported the view that where victims were perceived 261 (Canada) Mugesera – Supreme Court, above n 54, [161]–[163]. (United States) A similar conclusion was reached by the us District Court in (United States) Sarei v Rio Tinto – D ­ istrict Court, above n 60, 1150. 262 See Chapter 5, Section 2.2.2(b). 263 (icty) Limaj – Trial, above n 22, [217]. 264 (icty) Limaj – Trial, above n 22, [211]–[225] and, in particular, [211], [215]. 265 (icty) Limaj – Trial, above n 22, [224]. 266 (icty) Limaj – Trial, above n 22, [226] (‘…it is not possible to discern from them [the abductions] that the civilian population itself was the subject of an attack, or that Kosovo Albanian collaborators and perceived or suspected collaborators and other abductees were of a class or category so numerous and widespread that they themselves constituted a “population” in the relevant sense’). 266 (icty) Limaj – Trial, above n 22, [216], [226]–[227]. 268 See Chapter 5, Section 2.2.2(b). 269 (scsl) cdf – Trial, above n 5, [119] and ruf – Trial, above n 40, [85].

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and suspected collaborators targeted as individuals, they are therefore not targeted as part of the larger civilian population.270 The Prosecution responded that ‘unlike in Limaj, in this case there was a plan and specific orders from [the accused] to target civilians and civilians were attacked indiscriminately in large numbers’.271 Without explicitly rejecting the Trial Chamber’s citation of the finding in Limaj, the Chamber noted that persons accused of ‘collaborating’ with the government or armed forces are accorded civilian status under international law and therefore should be considered part of the ‘civilian population’.272 Accordingly, the decision appears to make clear that a group’s ‘real or perceived connection’ with one side of a conflict will not prevent the group being a civilian population273 at least when they are targeted unlawfully and in large numbers. The finding in Limaj was relied upon heavily in the decision of the us ­District Court of the Northern District of California in the civil decision of ­Bowoto v Chevron Corporation.274 The case concerned the Nigerian government security forces – allegedly with the assistance of Chevron – violently suppressing individuals protesting petroleum development in the Niger Delta. Following Limaj,275 The Court considered that, ‘[i]f they [the victims] were ­targeted based on individualized suspicion of engaging in certain behaviour, then the attack was not “directed at a civilian population,” and was less likely to be “widespread”.’ The Court concluded that, like Limaj, the victims were targeted ‘because they were oil protestors, or because they were associated with oil protestors’. They were not targeted, as they were in Galić, simply because they were civilians’. Such reasoning should not be regarded as the correct application of the ­remarks in Limaj. Ultimately, the proposition in Limaj that the targeting of a select group of civilians – such as the targeted killing of a number of political ­opponents – cannot amount to a crime against humanity, needs to be understood by interpreting the word ‘select’ as primarily encompassing a small ­number of victims selected because of specific individual attributes. If enough 270 (scsl) cdf – Appeal, above n 92, [254]. 271 (scsl) cdf – Appeal, above n 92, [254]. 272 (scsl) cdf – Appeal, above n 92, [260], followed in ruf – Trial, above n 40, [86]. 273 (scsl) cdf – Appeal, above n 92, [260], followed in ruf – Trial, above n 40, [86]. 274 (United States) Bowoto v Chevron Corporation (Order Granting Defendants’ Motion for Summary Judgment on Plaintiffs’ Crimes Against Humanity Claim), District Court for the Northern District of California, Case No C 99-02506 si (14 August 2009) (‘Bowoto v Chevron’). See discussion in Chapter 7, Section 2.5.2(b). 275 (United States) Bowoto v Chevron, above n 275, 24–31. nb: The Court at this stage appears to mistakenly cite Limaj as Lujic.

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persons are attacked with sufficient seriousness – for example, 200 killed without due process or cause – even if this is because of their opposition to a regime and/or they are being attacked in part to intimidate a wider group of civilians, the attack may properly be described as being directed against a population. Hence, an attack on a football crowd, demonstrators or even a prison population may be a crime against humanity. While the international community has at times sought to distinguish acts of ‘terrorism’ from ‘crimes against humanity’,276 that is not to say that there cannot be some overlap between the two crimes. Ultimately, the position under customary international law has now developed to the point where it can be sufficient in some circumstances for a group of individuals to be targeted for political reasons and that this can amount to a crime against humanity provided that the requisite scale and level of seriousness is reached. First, this position is consistent with the fact that persons who are ‘collaborators’ (of whatever ethnic or national origin) have frequently been held to be victims of crimes against humanity. At Nuremberg, the charges of crimes against humanity covered acts towards individual non-Jewish opponents of the Nazi regime. This was followed in the French jurisprudence to cover Nazi acts of retribution against the French Resistance, irrespective of whether such persons were Jewish and even if the attack was directed primarily against the Resistance itself.277 The key factor in the French jurisprudence was that the state was practising a general policy of ideological supremacy (meaning, in effect, a policy of terror, violence and human rights abuses). The same approach was adopted by the Supreme Court in Canada in Mugesera, where the Court considered an incitement to violence in Rwanda in 1990 where the scale of the violence was far less than in 1994. It concluded that, at the time, there was an attack directed against the Tutsi and moderate Hutu. The latter group was identified as being ethnically Hutu but who either in fact opposed, or perceived to be opposed, to the violence directed against the Tutsi and those who would perpetrate such violence. The two groups ‘were ethnically and politically identifiable’ and ‘were a civilian population as this term is understood in customary international law’.278 The inclusion of ‘moderate Hutu’ as a politically identifiable ‘civilian population’ shows a flexible approach to the term ‘civilian population’. Secondly, there is significant support for the view that a population may be targeted on the ‘political’ grounds. Despite Limaj and Haradinaj, the ­majority of 276 See Chapter 8, Sections 3.2 and 4.8. 277 See, for example, (France) Barbie, above n 127; see also and Chapters 2 and 3. 278 (Canada) Mugesera – Supreme Court, above n 55, [163].

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authorities appear to accept that an attack on dissidents can suffice in c­ ertain circumstances. As discussed in Chapter 7, it has been held that ­attacks on ‘dissidents’, political opponents and undesirables in East Timor and Bangladesh, ­political dissidents in Latin America, Former Soviet states of Latvia, Hungary, Romania, and African states Ethiopia and Senegal can be a crime against humanity, even though, no doubt, the individual attributes of the victims played a role in the individuals being targeted. In respect of Chile in particular, the Inter-American Court of Human Rights held in the case of Almonacid-Arellano that the attack in question was an ‘attempt to carry out a “cleanup” operation aimed at those who were regarded as dangerous by reason of their ideas and activities and to instil fear into their colleagues who eventually might be a “threat”’ and, indeed, that ‘the selection of victims was largely carried out arbitrarily’.279 The assassination of Archbishop Romero in El Salvador is another example.280 A number of icty Trial Chambers have also held that the underlying crime of persecution may be committed ‘where a person is targeted on the basis of religious, political or racial considerations’ (emphasis added) and that the ‘targeted group must be interpreted broadly, and may, in particular, include such persons who are defined by the perpetrator as belonging to the victim group due to their close affiliations or sympathies for the victim group’ (emphasis in original).281 This position is also consistent with the additional requirement in the ictr and eccc statutes that a crime against humanity be committed on ‘national, political, ethnic, racial or religious grounds’282 (emphasis added). Further, the early decisions of the icc held that the population targeted encompasses opposition or dissident groups or a group ‘defined by its (perceived) political affiliation’.283 Pre-Trial Chamber ii in the Ruto Confirmation Decision held that there was a relevant ‘attack against a civilian population’ despite the fact that ‘the criterion used by the perpetrators to identify and a­ ttack 279 (IACtHR) Almonacid-Arellano, above n 13 [82(6)]. 280 (United States) Doe v Alvaro Rafael Saravia et al. (Findings of Fact and Conclusions of Law), District Court for the Eastern District of California, Case No CIV-F-03-6249 oww ljo (24 November 2004) (‘Doe v Saravia – District Court’), 281 (icty) Naletilić – Trial, above n 22, [636]; Kvočka – Trial, above n 233, [195]. 282 eccc Statute, Art 5; and ictr Statute, Art 3. 283 (icc) Katanga – Confirmation, above n 109, [399]; Bemba Gombo – Confirmation, above n 24 [76]; Kenya – Authorisation Decision, above n 24, [81]; Prosecutor v Ruto et al. (PreTrial Chamber ii Confirmation Decision), ICC-01/09-01/11-373 (5 February 2012) (‘Ruto – Confirmation’), [164]; and Prosecutor v Muthaura et al. (Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute), Pre-Trial Chamber ii, Case No ICC-01/09-02/11-382-Red (29 January 2012) (‘Muthaura – Confirmation’), [110].

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their victims was essentially their perceived political affiliation with the pnu [i.e. the rival political party].’284 Both points were confirmed by the scsl Appeals Chamber in the cdf Case.285 The Chamber rejected the view that a group must be distinguished based on ‘nationality, race or ethnicity’, noting that a number of cases had found that a ‘civilian population’ was targeted ‘based on less defined grounds’ which included ‘alleged or perceived opponents to a regime, faction or political party’.286 The Appeals Chamber endorsed the finding of the scsl Trial Chamber in the afrc Case that there was an attack against a civilian population despite the attack being ‘aimed broadly at quelling opposition to the regime and punishing civilians suspected of supporting the cdf/Kamajors’.287 The authors suggest that both Limaj and Haradinaj should be viewed as supporting the following two propositions. First, the attacks simply did not reach the requisite level of scale to be said to have been targeting a ‘population’ as opposed to the combination of a number of single, isolated events. Precisely when that scale is met is discussed in Chapter 8.288 On the one hand, in the cases before the scsl as well as cases in East Timor, Bangladesh, South America, Ex-Soviet States and Africa, the number of victims were typically in the hundreds and thousands and were sufficiently large that the attack could clearly be said to have been against a ‘population’. On the other hand, the killing of around 60 people surrounding the assassination of Prime Minister ­Hariri was rejected by the international community as being sufficient to constitute crimes against humanity for the purposes of the jurisdiction of the stl. Bowoto v Chevron Corporation is better understood either in the same way as Limaj (namely, that the minimum scale and seriousness was not reached) or that the killings in question occurred over such a large period of time against such a wide range of targets as to constitute a number of single, isolated acts rather than attacks directed against a population.289 284 (icc) Ruto – Confirmation, above n 284, [172]–[174]. A similar finding was made in ­Muthaura – Confirmation, above n 284, [142]–[145]. 285 (scsl) cdf – Appeal, above n 92, [260]–[264]. 286 (scsl) cdf – Appeal, above n 92, [263] citing Semanza – Trial, above n 24, [330] (to the effect that ‘The victim(s) of the enumerated act need not necessarily share geographic or other defining features with the criminal population that forms the primary target of the underlying attack, but such characteristics may be used to demonstrate that the enumerated act forms part of the attacks’), afrc – Trial, above n 25, [225] and AlmonacidArellano, above n 13. 287 (scsl) afrc – Trial, above n 25, [225], cited in cdf – Appeal, above n 92, [263]. 288 See Chapter 8, Section 3.2. 289 This finding was in fact specifically made by the Court: see Bowoto v Chevron, above n 275, 30–31.

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Secondly, the kla (unlike all of the other cases discussed) was a weak nonstate resistance movement with limited resources operating against a superior state force itself practising a policy of terror. In such circumstances, it is difficult to find that the kla committed an attack against a ‘population’. A broad interpretation to the word ‘population’ highlights the issues of whether a policy element is required and the requisite nature of the organisation which can be the author of a crime against humanity. As discussed in Chapter 8, killing 200 innocent civilians may be a crime against humanity when carried out by a State or de facto power pursuant to a policy to kill such civilians, even without those civilians sharing some ‘distinguishing feature’ beyond whatever happens to be the rationale of such an attack – such as to quell opposition or a protest or simply to instil fear in the general population. On the other hand, if a single person or a fairly weak or poorly organised terrorist group kills 200 innocent civilians, even if marked out because of a ‘distinguishing feature’, such as ethnicity or religion, this may not amount to a crime against humanity. 5.2 Position at the icc It is unclear whether the position at the icc differs from that articulated above. In the Katanga Confirmation Decision, the Pre-Trial Chamber considered that the drafters of the icc Statute had left the term ‘any civilian population’ undefined and that ‘as opposed to war crimes … the term “civilian population” within the meaning of article 7 of the Statute affords rights and protections to “any civilian population” regardless of their nationality, ethnicity or other distinguishing feature’.290 The Chamber then cited from the icty Trial Chamber in Tadić to the following effect:291 The requirement … that the enumerated acts be “directed against any civilian population” contains several elements. The inclusion of the word “any” makes it clear that crimes against humanity can be committed against civilians of the same nationality as the perpetrator or those who are stateless, as well as those of a different nationality. However, the remaining aspects, namely, the definition of a “civilian” population and the implications of the term “population”, require further examination. In the Bemba Gombo Confirmation Decision, the Chamber found that the term was ‘not defined’ but was ‘not novel’; the Chamber then endorsed the finding of the Pre-Trial Chamber in the Katanga Confirmation Decision that ‘the 290 (icc) Katanga – Confirmation, above n 109, [399]. 291 (icc) Katanga – Confirmation, above n 109, [399], citing Tadić – Trial, above n 5, [635].

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­potential civilian victims under article 7 of the Statute could be of any nationality, ethnicity or other distinguishing features’.292 The same finding was made in the Kenya Authorisation Decision.293 While again not clear, this impliedly suggests an acceptance that while the ‘population’ attacked may be ‘any’ such population, it nonetheless must be a ‘population’ defined by ‘nationality, ethnicity or other distinguishing features’. icc Pre-Trial Chamber i in the Muthaura Confirmation Decision took a similar approach although extended it to groups defined on political grounds. The Pre-Trial Chamber held that the term ‘any civilian population’ ‘has been previously interpreted to mean “groups distinguishable by nationality, ethnicity or other distinguishing features”’ and that this includes ‘a group defined by its (perceived) political affiliation’.294 This was followed in the Laurent Gbagbo Confirmation Decision.295 In the Ongwen Confirmation Decision, PreTrial Chamber ii did not review the contextual elements of crimes against humanity, but appeared to consider the group attacked to be those who resided in internally displaced camps and were therefore perceived as government supporters.296 The Katanga Trial Judgment and the Bemba Gombo Trial Judgment do not make clear what meaning they attribute to the word ‘population’ as opposed to ‘any’, ‘civilian’ and ‘directed against’. In the Bemba Gombo Trial Judgment, for instance, the Trial Chamber held that the term ‘directed against’ the civilian population did not require the prosecution prove ‘the entire population of a geographical area’ was targeted but only that civilians were targeted ‘in numbers or a manner sufficient to satisfy the Chamber that the “attack” was directed against the civilian population, as opposed to just a limited number of individuals.’297 The Trial Chamber went on to hold that the term ‘any’ meant that the provision was ‘not limited to populations defined by common nationality, ethnicity or other similar distinguishing features’ (emphasis added), citing the Katanga and Bemba Gombo Confirmation Decisions.298 Ultimately, the better view is that the terms should be interpreted in the same manner as under customary international law. As the icc has recognised, 292 (icc) Bemba Gombo – Confirmation, above n 24, [76]. 293 (icc) Kenya – Authorisation Decision, above n 24, [81] 294 (icc) Muthaura – Confirmation, above n 284, [110]. 295 (icc) Laurent Gbagbo – Confirmation Decision, above n 74, [209]. 296 (icc) Prosecutor v Ongwen (Decision on the confirmation of charges against Dominic ­Ongwen), Pre-Trial Chamber ii, ICC-02/04-01/15-422-Red (23 March 2016) (‘Ongwen – Confirmation’), [62]–[63]. 297 (icc) Bemba Gombo – Trial, above n 76, [154]. 298 (icc) Bemba Gombo – Trial, above n 76, [155].

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the term had a defined meaning at the time of the Rome Conference and there appears to be no apparent intention either at the Rome Conference or the text of the icc Statute for departing from that position. 6

‘Widespread or Systematic’

6.1 Widespread or Systematic Attack The position of the ad hoc Tribunals and the icc is that the attack must be ‘widespread’ or ‘systematic’; it need not be both.299 Despite this position, it was contended in Chapter 8 that some ambiguity remains in the application of this principle. As some trial chambers and commentators have stated, the term ‘systematic’ overlaps with ‘widespread’ and the two will be difficult to separate in practice.300 The resolution of the term must also be considered alongside the requirement that an attack be directed against a ‘population’ (discussed above) and the debated ‘policy’ requirement (discussed above). Ultimately, two main conclusions were reached in Chapter 8 in respect of the position under customary international law. First, it was concluded that, whether an attack be ‘widespread’ or ‘systematic’, the attack must reach a certain minimum level of scale and seriousness.301 This will usually be satisfied by a ‘widespread’ attack constituted by atrocities and deaths in the thousands, but may be satisfied by a ‘systematic’ attack constituted by atrocities and deaths in the hundreds (and possibly smaller) in exceptional circumstances.302 Secondly, insofar as the icc is concerned, the position reached was largely the same as that under customary international law, although it may be less 299 (icty) Tadić – Appeal, above n 24, [248]; Kunarac – Appeal, above n 22, [93], [97], followed in Stakić – Appeal, [246]; Blaškić – Appeal, above n 91, [98] (following Tadić – ­Appeal and Kunarac – Appeal); Kordić – Appeal, above n 50, [93] (following Blaškić – Appeal); (ictr) Akayesu – Trial, above n 24, [579], followed in Kayishema – Trial, above n 56, [123] and Rutaganda – Trial, above n 54, [67]; Prosecutor v Ntakirutimana (Appeals Chamber Judgment), Case No ICTR-96-10-A & ICTR-96-17-A (13 December 2004) (‘Ntakirutimana –­ Appeal’), [515]; (scsl) afrc – Trial, above n 25, [215]; cdf – Trial, above n 5, [112]; ruf – Trial, above n 40, [78]; Taylor – Trial, above n 24, [511]; (eccc) Duch – Trial, above n 24, [300]; Case 002/01 – Trial, above n 24, [179]; (icc) Katanga – Confirmation, above n 109, [412]; Kenya Authorisation Decision, above n 24, [94]; and Bemba Gombo – Confirmation, above n 24, [82]. 300 (icty) Blaškić – Trial, above n 22, [207]; Jelisić – Trial, above n 110, [53]; (eccc) Duch – Trial, above n 24, [300]. See also: Schabas, above n 45, 149; Mettraux, above n 58, 171. 301 See Chapter 8, Section 3.1. 302 See Chapter 8, Section 3.2.

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onerous given the particular jurisdiction being exercised by the icc.303 That is, reiterating the theme developed throughout this text, the contextual element of crimes against humanity should be seen as jurisdictional in nature, arising out of states’ desires to balance the protection of human rights with state sovereignty. The icc Statute contains a number of safeguards that protect state sovereignty, that the ad hoc tribunals and states exercising universal jurisdiction do not – namely, that a case will not be admissible unless it is of sufficient gravity and that the state with jurisdiction over the offence is unwilling or unable to prosecute. Accordingly, it was argued that both, the requirement that an attack reach a minimum scale and seriousness, and the policy requirement, may be interpreted as being less onerous, than is required by the position under customary international law. In any case, only the attack, not the acts of the accused, must be widespread or systematic.304 If all other conditions are met, a single or limited number of acts with a single victim could be a crime against humanity.305 As the icty Trial chamber in Kupreškić noted, the act of denouncing a Jewish neighbour to the Nazi authorities – if committed against a background of widespread persecution – has been regarded as amounting to a crime against humanity.306 Similarly, a us District Court in Doe v Saravia found that the assassination of Archbishop Romero – a vocal opponent of the El Salvadoran government – constituted a crime against humanity as it formed a part of a broader attack that was directed against a civilian population.307

303 See, in particular Chapter 8, Sections 3.2, 4.7.3 and 4.9. 304 (icty) Tadić – Trial, above n 5, [649], followed in Kupreškić – Trial, above n 99, [550] and Kunarac – Trial, above n 22, [431]; Kunarac – Appeal, above n 22, [96] (affirming Kunarac – Trial, [431]), followed in Blaškić – Appeal, above n 91, [101], Kordić – Appeal, above n 50, [94], (ictr) Prosecutor v Gacumbitsi (Appeals Chamber Judgment), Case No ICTR-2001-64-A (7 July 2006) (‘Gacumbitsi – Appeal’), [102]; Nahimana – Appeal, above n 22, [924] (scsl) afrc – Trial, above n 25, [215]; (eccc) Duch – Trial, above n 24, [301], Case 002/01 – Trial, above n 24, [179]; (icc) Kenya Authorisation Decision, above n 24, [94]; (United States) Doe v Saravia – District Court, above n 281, [263]; and (Bangladesh) Chief Prosecutor v Professor Ghulam Azam (Trial Chamber Judgment), ict-bd Case No 06 of 2011 (15 July 2013) (‘Prof. Azam – Judgment’), [306]. 305 Ibid. 306 (icty) Kupreškić – Trial, above n 99, [550], citing the judgments of the Supreme Court for the British Zone in: Entscheidungen des Obersten Gerichtshofes für die Britische Zone in Strafsachen, vol. i, pp. 6 et seq.; 19 et seq.; 39 et seq.; 45 et seq.; 49 et seq.; 56 et seq. 307 (United States) Doe v Saravia – District Court, above n 281, [263].

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The icty Appeal Chamber in Kunarac held that the following factors may be taken into account in assessing whether or not the ‘widespread’ or ‘systematic’ elements are satisfied:308 • • • • •

the consequences of the attack on the targeted population; the number of victims; the nature of the acts; the possible participation of officials or authorities; and any identifiable patterns of crimes.

Mettraux has noted that the following factors may also be relevant in considering whether or not the attack was ‘widespread’ or ‘systematic’:309 • the logistics and financial resources involved; • the existence of public statements or political views underpinning the events; • the existence of a plan or policy targeting a specific group of individuals; • the foreseeability of the criminal occurrences; • temporally and geographically repeated and coordinated military operations which all led to the same result or consequences; • alteration of the ethnic, religious, or racial composition of the population; • the establishment and implementation of autonomous political or military structures at any level of authority in a given territory; and • the adoption of various discriminatory measures. A similar list of key factors was provided by the French Cour d’Assises in Simbikangwa albeit specific to the Rwandan case before the Court.310 While such statements may be a useful starting point, the terms ‘widespread’ and ‘systematic’ must be looked at individually in more detail. 6.2 ‘Widespread’ With one exception (discussed below), the ad hoc Tribunals have tended to follow the commentary of the ilc as to the meaning of the term ‘widespread’, namely, that it refers to ‘large scale action with a significant number of the

308 (icty) Kunarac – Appeal, above n 22, [95], followed in Brđanin – Trial, above n 22, [136]. 309 Mettraux, above n 58, 171. 310 (France) Pascal Senyamhara Safari alias Simbikangwa (Grounds for Verdict), Cour d’Assises Paris (14 March 2014). See Chapter 7, Section 3.2.2.

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victims’.311 While on one view this may suggest that an attack may either cover a wide geographical area or a large number of victims, the better view appears to be that the focus is the number of victims. The ilc text relied upon by Tadić and, in turn, Kunarac, stated that the requirement was that ‘inhumane acts be committed on a large scale meaning that the acts are directed against a multiplicity of victims’312 (underlining added). The text further states that ‘[t]his requirement excludes an isolated inhumane act committed by a perpetrator acting on his own initiative and directed against a single victim.’313 The scsl and the eccc314 have adopted the same definition. While the focus may be on the number of victims, the reality is that the issues of geographical scale and number of victims will likely overlap. It is difficult to see how an attack could be said to cover a wide geographical area unless it also led to a large number of victims throughout that area. Were a large-scale military assault to move through a large geographical area (e.g. 10 villages), it would be difficult to prove an ‘attack’ was ‘widespread’ were there only to be a small number of civilian victims in each of the 10 villages (e.g. 4 or 5). Similarly, outside the exceptional case of a single act of extraordinary magnitude discussed above,315 an attack that affects a large number of victims will usually occur across a large geographical area. While not entirely free from doubt, the position at the icc appears to be the same. Some early Pre-Trial Chambers required only that there be a large number of victims or cover a large geographical area, this appeared to be on the basis that an attack may cover either ‘a large geographic area or an attack in a small geographical area, but directed at a large number of civilians’.316 Said differently, this says only that a widespread attack need not cover a large geographical area if it affects a multiplicity of victims (e.g. if there is a single act of extraordinary magnitude). Later decisions appear to have adopted the more 311 (icty) Kunarac – Appeal, above n 22, [94] (citing Tadić – Trial, above n 5, [648]), followed in Kordić – Appeal, above n 50, [94], Blaškić – Appeal, above n 91, [101], (ictr) Nahimana –  Appeal, above n 22, [920], Bagosora – Appeal, above n 88, [389]; Bagilishema – Trial, above n 191, [77]; Kayishema – Trial, above n 56, [123]; (scsl) ruf – Trial, above n 40, [78]; cdf – Trial, above n 5, [112]; Taylor – Trial, above n 24, [511]; (eccc) Duch – Trial, above n 24, [300], Case 002/01 – Trial, above n 24, [179]; (eac) Habré – Trial, above n 22, [1359]. See also (spet) Los Palos – Judgment, above n 22, [636]. 312 (icty) Tadić – Trial, above n 5, [648]. 313 (icty) Tadić – Trial, above n 5, [648]. 314 (scsl) afrc – Trial, above n 25, [215]; (eccc) Case 002/01 – Trial, above n 24, [179]. 315 See above, Section 2.1. 316 (icc) Katanga – Confirmation, above n 109, [395]; Bemba Gombo – Confirmation, above n 24, [83]. See also Werle, above n 136, 225.

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qualified position that the widespread element refers to both the large-scale nature of the attack and the number of victims and that ‘[t]he assessment is neither exclusively quantitative nor geographical, but must be carried out on the basis of the individual facts’.317 Ultimately, the better view is that while the primary focus must be on the number of victims, other factors will be relevant to determining whether a widespread attack has occurred in the circumstances. The one exception to the ilc formulation is that a number of Chambers have instead relied on the formulation of the ictr Trial Chamber in Akayesu on the meaning of ‘widespread’. There, the Trial Chamber stated that the ‘concept of widespread may be defined as massive, frequent, large scale action carried out collectively with incredible seriousness and directed against a multiplicity of victims’.318 A question arises as to whether this imposes a different and possibly higher standard than that imposed by the ilc test. While the position is not entirely free from doubt, this appears to be a different way of stating the same test as set out by the ilc. First, a number of Chambers apply the two tests without considering there to be any difference. While some ictr Chambers followed the Akayesu definition,319 others have used language more closely resembling the ilc definition but purporting to follow Akayesu.320 Referring to these differing statements of the applicable test, the ictr Trial Chamber in Kajelijeli held that all ‘refer to the scale of the attack, and sometimes the multiplicity of victims’ and that, ultimately, the test was whether the attack was ‘large scale, involving many victims’.321 More recent ictr Appeal Chamber decisions have appeared to follow the ilc definition.322

317 (icc) Kenya – Authorisation Decision, above n 24, [95]; Laurent Gbagbo – Confirmation, above n 74, [222]. 318 (ictr) Akayesu – Trial, above n 24, [580]. 319 (ictr) Musema – Trial, above n 54, [204], Rutaganda – Trial, above n 54, [68]. 320 (ictr) Semanza – Trial, above n 24, [329] (‘large-scale’); Prosecutor v Ntakirutimana (Trial Chamber Judgment), Case No ICTR-96-10-T & ICTR-96-17-T (21 February 2003) (‘­Ntakirutimana – Trial’), [804] (‘massive or large-scale, involving many victims’); Prosecutor v Niyitegeka (Trial Chamber Judgment), Case No ICTR-96-14-T (16 May 2003) (‘­Niyitegeka – Trial’), [439] (‘massive or large-scale, involving many victims’); Kayishema – Trial, above n 56, [123] (‘directed against a multiplicity of victims’, citing the ilc rather than Akayesu – Trial). 321 (ictr) Kajelijeli – Trial, above n 56, [871] (citing Niyitegeka – Trial, above n 321, and ­Ntakirutimana – Trial, above n 321), followed in Bisengimana – Trial, above n 132, [44]. 322 (ictr) Nahimana – Appeal, above n 22, [920], Bagosora – Appeal, above n 88, [389].

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Similarly, as in the ictr Chambers, some icc Chambers have adopted the definition of the ilc,323 while others have cited the definition in Akayesu, ­although without appearing to view the two as being relevantly different.324 Secondly, the kind of scale required for an attack to be widespread implied by the test enunciated in Akayesu is consistent with general practice.325 In Chapter 8, a detailed analysis was conducted of the case law and it was concluded that an attack must reach a minimum level of scale before it may constitute a crime against humanity, whether the attack was ‘widespread’ or ‘systematic’.326 Only once that minimum scale and seriousness is met does the crime rise to a level of international concern. As discussed in Chapter 8,327 from that starting point, the term ‘widespread’ must be read in contradistinction to ‘systematic’. The term ‘systematic’ encompasses an attack that may not necessarily be ‘widespread’ but follows a pattern of control, direction and intensity that it is of international concern (for instance, a deliberate massacre carried out directly by a head of state328). The term ‘widespread’ refers to an attack that encompasses so many victims (and possibly such a wide geographical area) that the attack is of international concern regardless of the fact that it may not be said to be ‘systematic’ in the sense of being controlled or directed.329 6.3 ‘Systematic’ Like the term ‘widespread’, the ad hoc Tribunals have tended to follow the commentary of the ilc as to the meaning of the term ‘systematic’, referring to 323 (icc) Prosecutor v Germain Katanga (Decision on the evidence and information provided by the Prosecution for the issuance of a warrant of arrest for Germain Katanga), ICC01/04-01/07-262 (7 July 2007) (‘Katanga – Arrest Warrant’), [33], followed in Katanga – Confirmation, above n 109, [395]; Prosecutor v Omar Hassan Ahmad Al Bashir (Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir), Pre-Trial Chamber i, ICC-02/05-01/09-3 (4 March 2009) (‘Al Bashir – Arrest Warrant Decision’), [81]. 325 (icc) Bemba Gombo – Trial, above n 76, [163]; Bemba Gombo – Confirmation, above n 24, [83]; Kenya – Authorisation Decision, above n 24, [95]; Laurent Gbagbo – Confirmation, above n 74, [222]. The Chambers rely on Katanga – Confirmation, above n 109, in addition to Akayesu – Trial. 326 (icc) Bemba Gombo – Trial, above n 76, [163]. 327 See Chapter 8, Section 3.2. 328 See Chapter 8, Section 3.2. 329 E.g. the shelling and sniping of the residents of Sarajevo seen in the Galić Case in the icty, the massacre by Iraqi authorities in the Al Dujail Case in the Iraqi High Tribunal or the massacres committed by the Gaddaffi regime against Libyans in 2011 (all of which are discussed in more detail in Chapter 8, Section 3.2). 330 E.g. the atrocities in Rwanda.

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the ‘organised nature of the violence or mistreatment and the improbability of their random occurrence’.330 As the Trial Chamber in Tadić noted, the ilc considered that the requirement of systematicity would be satisfied by a ‘pattern or methodical plan’ or a ‘preconceived plan or policy [which] could result in the repeated or continuous commission of inhumane acts’.331 Some ictr Chambers have defined it in similar ways.332 The Appeal Chamber in Kunarac further held that ‘patterns of crimes – that is the non-accidental repetition of similar criminal conduct on a regular basis – are a common expression of such systematic occurrence’.333 These principles have been followed in the icc and eccc.334 A question arises in interpreting the term ‘systematic’ as to how the term should be seen to differ from the policy element. While the majority of tribunals cite only a high-level definition if ‘systematic’ as above, a few early Trial Chambers elaborated on the term in a manner that suggested a very large overlap between the two concepts. The ictr Trial Chamber in Akayesu held that ‘[t]he concept of “systematic” may be defined as thoroughly organised and following a regular pattern on the basis of a common policy involving substantial public or private resources’ and stated that, while there was ‘no requirement that this policy must be adopted formally as the policy of a state[; t]here must however be some kind of preconceived plan or policy’.335 Similarly, the spet in

330 (icty) Kunarac – Appeal, above n 22, [94] (citing Tadić – Trial, above n 5, [648]), followed in Kordić – Appeal, above n 50, [94]; Blaškić – Appeal, above n 91, [101], (ictr) Nahimana – Appeal, above n 22, [920], Bagosora – Appeal, above n 88, [389]; Report of the International Law Commission on the Work of its Forty-Third Session, un gaor, 46th sess, Supp 10, un Doc. A/46/10 (22 October 1991) 266 (‘1991 ilc Report’); and 1996 ilc Report, above n 36, 94–95. (scsl) cdf – Trial, above n 5, [112]; ruf – Trial, above n 40, [78]; Taylor – Trial, above n 24, [511]; (eccc) Duch – Trial, above n 24, [300]; and Case 002/01 – Trial, above n 24, [179]; (eac) Habré – Trial, above n 22, [1360]. 331 (icty) Tadić – Trial, above n 5, [648]–[649]. 332 (ictr) Gacumbitsi – Appeal, above n 305, [101] (‘a deliberate pattern of conduct, but does not necessarily include the idea of a plan’); Semanza – Trial, above n 24, (‘organized nature of the attack’); Ntakirutimana – Trial, above n 321, [804] (‘organized pattern of conduct, not a mere random occurrence’). 333 (icty) Kunarac – Appeal, above n 22, [94] (affirming Kunarac – Trial, above n 22, [429]), followed in Blaškić – Appeal, above n 91, [101], Kordić – Appeal, above n 50, [94], (scsl) cdf – Trial, above n 5, [112], ruf – Trial, above n 40, [78], afrc – Trial, above n 25, [215]. 334 (icc) Kenya – Authorisation Decision, above n 24, [96]; Laurent Gbagbo – Confirmation, above n 74, [223]; (eccc) Case 002/01 – Trial, above n 24, [179]. 335 (ictr) Akayesu – Trial, above n 24, [580], followed in Rutaganda – Trial, above n 54, [68] and (scsl) afrc – Trial, above n 25, [215].

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Los Palos held that it required an act be ‘carried out pursuant to a preconceived policy or plan’.336 The icty Trial Chamber in Blaškić held that the systematic character embodied four elements:337 • the existence of a political objective, a plan pursuant to which the attack is perpetrated or an ideology, in the broad sense of the word, that is, to destroy, persecute or weaken a community;338 • the perpetration of a criminal act on a very large scale against a group of civilians or the repeated and continuous commission of inhumane acts linked to one another;339 • the preparation and use of significant public or private resources, whether military or other;340 • the implication of high-level political and/or military authorities in the definition and establishment of the methodical plan. The ultimate rejection of the requirement of a policy by the icty Appeals Chamber in Kunarac has not rendered these principles redundant. As the icty Trial Chamber in Kordić held – after doubting that the policy element was a ‘requirement as such’ – ‘the existence of a plan or policy should better be regarded as indicative of the systematic character of offences charged as crimes against humanity’.341 This was followed by the icty Trial Chamber in Limaj – decided 336 (spet) Los Palos – Judgment, above n 22, [637]. 337 (icty) Blaškić – Trial, above n 22, [203], followed in (Indonesia) Prosecutor v Abilio Soares (Judgment), Case No 01/PID.HAM/AD.Hoc/2002/ph.JKT.PST (14 August 2002) (‘Abilio Soares – Judgment’), 79; (Bangladesh) Molla – Judgment, above n 91, [376]. 338 Citing: (icty) Tadić – Trial, above n 5, [648]; (ictr) Akayesu – Trial, above n 24, [580]; Kayishema – Trial, above n 56, [123]; and (Netherlands) Public Prosecutor v Menten (Judgment), Supreme Court of the Netherlands (13 January 1981), reprinted in (1987) 75 ilr 331 (‘Menten – Judgment’) 362–363 (‘The concept of crimes against humanity also requires – although this is not expressed in so many words in the […] definition – that the crimes in question form part of a system based on terror or constitute a link in a consciously pursued policy directed against particular groups of people’ (emphasis added)’). 339 Citing the 1996 ilc Report, above n 36, 94 (stating that the term systematic means ‘pursuant to a preconceived plan or policy. The implementation of this plan or policy could result in the repeated or continuous commission of inhumane acts’); and 1991 ilc Report, above n 331, 266 (which created the offence of ‘Systematic or mass violations of human rights’ under Article 21 and which stated that the systematic characteristic related to a ‘constant practice or to a methodical plan to carry out […] violations of human rights’). 340 Citing (ictr) Akayesu – Trial, above n 24, [580]. 341 (icty) Kordić – Trial, above n 134, [182].

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after the decision of the Appeals Chamber decision in Kunarac. The Chamber in Limaj stated that ‘[t]he existence of a plan or policy can be indicative of the systematic character of offences charged as crimes against humanity’.342 The Trial Chamber continued that:343 Although not a legal element of Article 5, evidence of a policy or plan is an important indication that the acts in question are not merely the workings of individuals acting pursuant to haphazard or individual design, but instead have a level of organisational coherence and support of a magnitude sufficient to elevate them into the realm of crimes against humanity. Accordingly, the principles relevant to the so-called ‘policy element’ – discussed in detail in Chapter 8344 – will be relevant indicia as to whether an attack is ‘systematic’. For instance, it was held in Limaj that while this aspect will ‘most often’ be present where there is ‘significant State action and where formal channels of command can be discerned’345 and that ‘[s]pecial issues arise … in considering whether a sub-state unit or armed opposition group, whether insurrectionist or trans-boundary in nature, evinces a policy to direct an attack’.346 In the view of the Trial Chamber, following the Tadić Trial Chamber, ‘such an organisational unit must demonstrate in order to have sufficient competence to formulate a policy is a level of de facto control over territory’.347 In Chapter 8, it was contended that the author of the attack must be either a State or organisation in the nature of a de facto power under customary international law. Various icc Pre-Trial Chambers have taken slightly differing approaches. On the one hand, the icc Pre-Trial Chamber in the Kenya Authorisation Decision cited both the factors listed in Akayesu and in Blaškić as being relevant to the application of the ‘systematic’ element.348 On the other hand, other Pre-Trial 342 (icty) Limaj – Trial, above n 22, [212]–[213]. 343 (icty) Limaj – Trial, above n 22, [212]–[213]. For its final two sentences, the Chamber referred to Kupreškić – Trial, above n 99, [552] and Tadić – Trial, above n 5, [654], respectively. 344 See Chapter 8, Sections 4.2 and 4.7. 345 (icty) Limaj – Trial, above n 22, [212]. 346 (icty) Limaj – Trial, above n 22, [213]. 347 (icty) Limaj – Trial, above n 22, [213], citing Tadić – Trial, above n 5, [654]; and Kupreškić – Trial, above n 99, [552]. 348 (icc) Kenya – Authorisation Decision, above n 24, [96].

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Chambers have been satisfied simply where there is either ‘an organised plan in furtherance of a common policy, which follows a regular pattern and results in a continuous commission of acts’ (citing Akayesu) ‘or as “patterns of crimes” such that the crimes constitute a “non-accidental repetition of similar criminal conduct on a regular basis”’ (citing Kunarac), without citing the Blaškić Trial Chamber.349 The majority of the Trial Chamber in Katanga distanced itself from the earlier decisions of the Pre-Trial Chambers.350 The majority distinguished the requirement of a ‘policy’ – which the majority considered best understood as being the intention of committing or meaning to commit the attack – from the requirement that an attack is ‘systematic’, referring to the existence of a ‘pattern of repeated conduct or the recurring or continuous perpetration of interlinked, non-random acts’.351 The majority considered that the ‘systematic’ requirement ‘goes beyond the existence of any policy’ and also entails:352 …inquiry as to whether a series of repeated actions seeking to produce ­always the same effects on a civilian population was undertaken with consideration – identical acts or similarities in criminal practices, continual repetition of a same modus operandi, similar treatment meted out to victims or consistency in such treatment across a wide geographic area. In the Confirmation of Charges decision in Ruto et al., the defence teams ­attacked the Prosecution’s contention that there was an ‘attack against the ­civilian population’ on the basis that the attack was not an ‘organised, policydriven form of violence’.353 In rejecting this contention, the Pre-Trial Chamber focused on two facts in particular: first, groups of the civilian population and target locations were identified in advance;354 and secondly, that some of the perpetrators who were in charge of such identification during the preparatory

349 (icc) Katanga – Confirmation, above n 109, [397]; and (icc) Laurent Gbagbo – Confirmation, above n 74, [216]. 350 Namely, (icc) Katanga – Confirmation, above n 109, [396], Bemba Gombo – Confirmation, above n 24, [81], Kenya – Authorisation Decision, above n 24, [84] and Prosecutor v Laurent Gbagbo (Decision on the Prosecutor’s Application Pursuant to Article 58 for a warrant of arrest), Pre-Trial Chamber iii, ICC-02/11-01/11/11-9-Red (30 November 2011) (‘Gbagbo – Arrest Warrant Decision’), [37]. 351 (icc) Katanga – Trial, above n 77, [1111]–[1113]. 352 (icc) Katanga – Trial, above n 77, [1113]. 353 (icc) Ruto – Confirmation, above n 284, [166]. 354 (icc) Ruto – Confirmation, above n 284, [169].

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phase were subsequently deployed on the ground to materially execute the ­attack and/or assist and direct others to do so.355 While these authorities make clear that there is an overlap between the ‘systematic’ aspect and the ‘policy’ element and that the existence of a policy will be indicative of a systematic attack, the precise boundary between the two terms is still not entirely clear. In the authors’ view, the real distinction to be kept in mind is that the two terms perform very different functions. On the one hand, the term ‘systematic’ should be read – alongside the term ‘widespread’ – as articulating the circumstances in which an attack will reach a sufficient level of scale and seriousness to attract the attention of the international community. This was discussed in Chapter 8 as the humanity principle.356 As discussed immediately above,357 the term ‘systematic’ encompasses an attack that may not necessarily be ‘widespread’ but follows a pattern of control, direction and intensity that it is of international concern.358 For instance, a deliberate massacre carried out directly by a head of state359 or a sophisticated campaign of suppressing political opponents as was witnessed in many Latin American states forming part of Operation Condor in the 1970s and 1980s.360 On the other hand, the ‘policy’ element is directed at ensuring that, in circumstances in which perpetrators perpetrate such attacks with impunity due to the participation, toleration or acquiescence of the de jure or de facto ­authority, the perpetrators are nonetheless able to be brought to justice by the international community. This was discussed in Chapter 8 as the impunity principle.361

355 (icc) Ruto – Confirmation, above n 284, [170]. 356 See Chapter 8, Section 4. 357 See Section 6.2.1. 358 For a very clear example of this approach, see the legislation in Chile discussed in ­Chapter 7, Section 4.2.1. 359 E.g. the massacre by Iraqi authorities in the Al Dujail Case in the Iraqi High Tribunal or the massacres committed by the Gaddaffi regime against Libyans in 2011 (all of which are discussed in more detail in Chapter 8, Section 3.2). 360 See, for example, (IACtHR) Case of Gelman v Uruguay (Judgment on Merits and Reparations), Inter-American Court of Human Rights, (ser. C) No 221 (24 February 2011) (‘­Gelman – Judgment’), where the Court preferred to use the term ‘systematic’ rather than ‘widespread’ to describe the attack (discussed in Chapter 7, Section 4.5.2). (icty) Another example is the shelling and sniping of the residents of Sarajevo by Bosnian Serb forces as seen in the Galić Case (among others). 361 See Chapter 8, Section 4.

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The circumstances in which a ‘systematic’ attack will reach a sufficient level of scale and seriousness is discussed in detail in Chapter 8.362 Finally, to the extent that the ictr Trial Chamber in Akayesu sought to ­establish a different and higher standard required of a systematic attack than was imposed under the ilc – namely, by requiring that it be ‘thoroughly’ ­organised – that proposition should be treated with some caution. In the context of interpreting what is a ‘systematic’ attack, such a proposition is doubtful and has not been adopted to the same extent as the ilc formulation. Secondly, in the context of what the ‘policy’ element requires, it appears inconsistent with state practice which has a less demanding test. 7

The Policy Requirement

7.1 Customary International Law In the early jurisprudence of the ad hoc tribunals, crimes against humanity was said to require that a plan or policy be present.363 Further, the icc Statute requires that there be a ‘state or organisational policy’ present (discussed below at 7.2). Since the Kunarac Appeal Decision, however, the tribunals have held that there is no legal requirement that there be some plan or policy, but that this consideration will be evidentially relevant to determining if the attack was systematic and directed against a population.364 As noted above, this issue was discussed extensively in Chapter 8, where the authors conclude that a crime against humanity under customary international law requires a policy element.365 While the position is not entirely clear, the content of the ‘policy element’ is that the attack must have either been committed pursuant to either the policy, tolerance or acquiescence of a state, or of a non-state entity with control over sufficient people, people or territory that it is a de facto power (i.e. a state-like entity).366 In this context, the distinction between crimes against humanity and terrorism ought to be kept in mind.367 362 See Chapter 8, Section 3.2. 363 (icty) Tadić – Trial, above n 5, [653]; (ictr) Akayesu – Trial, above n 24, [580]; Rutaganda – Trial, above n 54, [69]; Kayishema – Trial, above n 56, [123]–[125], [581]. 364 (icty) Kunarac – Appeal, above n 22, [98], [101], followed in Blaškić – Appeal, above n 91, [100], [120], Kordić – Appeal, above n 50, [98], (ictr) Semanza – Trial, above n 24, [329]– [332], Gacumbitsi – Appeal, above n 305, [84], Nahimana – Appeal, above n 22, [922], (scsl) afrc – Trial, above n 25, [215]; ruf – Trial, above n 40, [79]; cdf – Trial, above n 5, [113]; Taylor – Trial, above n 24, [511]. 365 See Chapter 8, Section 4.7.1. 366 See Chapter 8, Sections 4.7.2 and 4.7.3. 367 See Chapter 8, Section 4.7.4.

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7.2 The icc Under the icc Statute, the widespread or systematic attack must be pursuant to a ‘State or organizational policy’. Three questions arise as to this policy: 1. 2. 3.

what is a ‘state’; what is an ‘organization’; and what is a ‘policy’.

While each of the key decisions were addressed in detail in Chapter 6, the ­following is a summary of the position in respect of each of the three questions. Finally, the authors set out a conclusion on the suggested interpretation that should be adopted. 7.2.1 ‘State’ The term ‘state’ will in most cases be ‘self-explanatory’.368 Two controversies in particular may arise, however. First, when is an entity a ‘state’, and, secondly, who in the state must possess the relevant policy. The first issue was foreshadowed when the Government of Palestine lodged a declaration of acceptance of the exercise of jurisdiction of the icc on 22 January 2009.369 The Prosecutor refused to accept the declaration on the basis that such a declaration could only be made by a ‘State’ under Article 125.370 In such a circumstance, the Prosecutor decided that, ‘[i]n instances where it is controversial or unclear whether an applicant constitutes a “State”, it is the practice of the Secretary-General to follow or seek the General Assembly’s directives on the matter’.371 Following the General Assembly’s recognition of the statehood of Palestine372 and Palestine’s application to join the icc in January 2015,373 the Prosecutor’s criteria now appears to be satisfied. 368 (icc) Kenya – Authorisation Decision, above n 24, [89]. 369 (icc) See icc Prosecutor, Decision on the Situation in Palestine (3 April 2012), available online at (‘Situation in Palestine Decision’). 370 (icc) Situation in Palestine Decision, above n 370, [5]. 371 (icc) Situation in Palestine Decision, above n 370, [5]. 372 General Assembly Votes Overwhelmingly to Accord Palestine ‘Non-Member Observer State’ Status in United Nations, un General Assembly Meetings Coverage, General Assembly Press Release ga/11317 (29 November 2012), accessed online at on 2 February 2015. 373 Sabin, Palestine applies for membership of icc to try Israel for Gaza destruction as a­ lleged war crimes, The Independent (3 January 2015), accessed online at on 3 February 2015.

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Notwithstanding this position, the Prosecutor has also suggested in the case of Palestine that the Court may have to decide itself whether or not an entity is a ‘State’.374 This position is likely to be correct. While the question may arguably be resolved on the basis of the General Assembly resolution alone, the better view is that the issue must be resolved in accordance with definition under customary international law. As to the second issue, the icc has thus far followed the position of the ad hoc Tribunals to the effect that a ‘state’ policy ‘does not necessarily need to have been conceived “at the highest level of the State machinery”.’375 The icc Pre-Trial Chamber in the Kenya Authorisation Decision interpreted this to mean that a policy adopted by regional or even local organs of the State could satisfy the requirement of a State policy.376 This statement is properly understood, however, as relating to the ‘organisational’ limb of the policy element. It is to this end that the Trial Chamber directed its statement in Blaškić. As Bassiouni has stated, it appears that other units of the state such as the military, intelligence services, the police or similar organizational units will fall within the ‘organizational’ limb of the policy requirement.377 The point was also addressed by Judge Kaul in his dissenting opinion in the Kenya Authorisation Decision, namely, ‘at which level a policy may be adopted in order to be attributable to a State’.378 The Judge agreed with the majority that while acts or organs of government may be imputable or attributable to the State, questions of attribution do not solve the problem. Rather, the policy must be made ‘at the high level’.379 This would include ‘the government or high-ranking military commanders’ and may also, in specific circumstances, ‘be adopted by an organ which, albeit at the regional level, such as the h ­ ighest official or regional government in a province, has the means to establish a policy within its sphere of action’.

374 (icc) Situation in Palestine Decision, above n 370, [8] (accepting that the issue may have to be considered – notwithstanding the issue of statehood was not resolved by the un organs or Assembly of States Parties – in the case of a Security Council referral). 375 (icc) Kenya Authorisation Decision, above n 24, [89] (citing (icty) Blaškić – Trial, above n 22, [205]). See also (icty) Tadić – Trial, above n 5, [653]–[655]; see also 1991 ilc Report, above n 331, 266; and 1996 ilc Report, above n 36. 376 (icc) Kenya Authorisation Decision, above n 24, [89]. 377 Bassiouni (2010), above n 11, 24, 28; Schabas (2008), above n 45, 973 (‘As I understand [Bassiouni’s] view, the term organization is meant to encompass bodies within a State such as the Gestapo and the ss’). 378 (icc) Kenya – Authorisation Decision, above n 24, (Judge Kaul Dissenting Opinion), [43]. 379 (icc) Kenya – Authorisation Decision, above n 24, (Judge Kaul Dissenting Opinion), [43].

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The point was also obliquely addressed in the Laurent Gbagbo Confirmation Decision, where Pre-Trial Chamber i held that the pro-Gbagbo forces, which included elements of the fds, youth militia and mercenaries, and were led by Laurent Gbagbo and his inner circle were an ‘organisation’ and that this organisation ‘comprised part of the State apparatus’.380 However, the logic of this conclusion may be criticised as, if a policy is in fact formulated at the highest level of the State machinery, then no further analysis need be undertaken as to whether it is sufficient for the purposes of the policy element.381 7.2.2 ‘Organisational’ The term ‘organisation’ has been subject to a great deal of commentary and its interpretation currently remains unsettled. Essentially, there appear to be three views: • the broad view, namely, that the term ‘organization’ should be read broadly to include any association of persons with an established structure.382 On this view, provided that the organisation is capable of committing a ‘widespread or systematic attack’, this element would be satisfied; • the narrow view, namely, only a ‘State-like’ organisation or de facto power will qualify;383 and • a third view (the broader view), namely, that the attack need only be committed by a group of individuals without the need for any particular collectivity. At the very least, it appears that commentators agree that common crime waves will not suffice to constitute an organisation.384 (a) The Broad View The majority of icc Pre-Trial ii in the Kenya Authorisation Decision held that the formal nature of the group and the level of its organisation should not be 380 (icc) Laurent Gbagbo – Confirmation, above n 74, [219]–[220]. 381 See further discussion in Chapter 6, Section 4.2.2. 382 (icc) Kenya Authorisation Decision, above n 24. 383 (icc) Kenya – Authorisation Decision, above n 24, (Judge Kaul Dissenting Opinion); Schabas, above n 45, 152; M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law (2nd rev. ed., Kluwer Law International: The Hague, 1999); and M. Cherif Bassiouni, The Legislative History of the International Criminal Court: Introduction, Analysis and Integrated Text Volume 1 (Transnational Publishers: New York, 2005), 151–152. 384 See Daryl Robinson, ‘Essence of Crimes against Humanity Raised by Challenges at icc’, ejil: Talk! (27 September 2011), accessed online at on 28 August 2013.

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the defining characteristic.385 Accordingly, on this view, an organisation need not be state-like.386 This appears to be in line with some writers who suggest that the term should be read broadly to include any association of persons with an established structure.387 The organisation in question need not be linked to a state;388 an organisation may be either individuals with de facto power or a ‘purely’ private criminal organization where it has the capacity to infringe basic rights.389 The same position was adopted by the majority in the Kenya Confirmation Decisions.390 The majority held that the proper distinction between those organisations that fall within Article 7 and those that do not is based on whether or not the group ‘has the capability to perform acts which infringe on basic human values’.391 The majority found that whether or not a particular group satisfies this 385 (icc) Kenya Authorisation Decision, above n 24, [90]. See also Muthaura – Confirmation, above n 284, [112]. 386 (icc) Kenya – Authorisation Decision, above n 24, [90]. 387 Gerhard Werle and Boris Burghardt, ‘Do Crimes Against Humanity Require the Participation of a State or a “State-like” Organization?’ (2012) 10(5) Journal of International Criminal Justice 1151. See also Robinson, above n 385. 388 (icc) Kenya – Authorisation Decision, above n 24, [92]; Ruto – Confirmation, above n 284, [184]. 389 (icc) Kenya – Authorisation Decision, above n 24, [90]. See also at [91]–[92], citing the ilc Commentary to the Draft Code, Yearbook of the International Law Commission 1991, vol ii, Part 2, A/CN.4/SER.A/1991/Add.1 (Part 2) (19 July 1991) (‘ilc Commentary to the Draft Code’), 103; Blaškić – Trial, above n 22, [205]; Rodney Dixon and Christopher Hall, ‘Article 7’, in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court – Observer’s Notes, Article by Article (2nd ed, ch Beck etc.: Munich, 2008), 236–237. 390 (icc) Ruto – Confirmation, above n 284, [184]–[185]; Muthaura – Confirmation, above n 284, [114]. 391 (icc) Kenya Authorisation Decision, above n 24, [90] (citing Marcello Di Filippo, ‘Terrorist crimes and international co-operation: critical remarks on the definition and inclusion of terrorism in the category of international crimes’ (2008) 19(3) European Journal of International Law 533, 567; Darryl Robinson, ‘Defining “Crimes Against Humanity” at the Rome Conference’ (1999) 93(1) American Journal of International Law 43, 50; Kriangsak Kittichaisaree, International Criminal Law – Beyond the Nuremberg Legacy (3rd ed, Oxford University Press: Oxford, 2009) 70; Benedetto Conforti, Diritto internazionale (Editoriale Scientifica: Naples, 2006) 191; and Peter Burns, ‘Aspect of Crimes Against Humanity and the International Criminal Court’, paper presented at Symposium on the icc, Beijing, China (3–4 February 2007) accessed online at on 1 March 2010). See also Ruto – Confirmation, above n 284, [184]; Muthaura – Confirmation, above n 284, [112].

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requirement must be made on a case-by-case basis, taking into account the following factors (footnotes included):392 1.

whether the group is under a responsible command, or has an established hierarchy;393 2. whether the group possesses, in fact, the means to carry out a widespread or systematic attack against a civilian population;394 3. whether the group exercises control over part of the territory of a State;395 4. whether the group has criminal activities against the civilian population as a primary purpose;396 5. whether the group is part of a larger group which fulfils some or all of the abovementioned criteria. The majority found that these factors do not constitute a rigid legal definition and do not need to be exhaustively fulfilled.397 This understanding was then applied by Pre-Trial Chamber ii in the Ruto et al. Confirmation Decision, the majority of which holding that the network of perpetrators belonging to the Kalenjin community (the Network) was an ‘organisation’ for the purposes of Article 7.398 This was on the basis that: the Network was under responsible command and had an established hierarchy, in charge of securing the establishment and efficient functioning of the Network as well as the pursuit of its criminal purposes (comprising three generals and four divisional commanders, all reporting to Mr Ruto);399 the Network had the means to carry out a widespread or systematic attack (possessing a ‘considerable amount of capital, guns, crude weapons an manpower’);400 and the 392 (icc) Kenya Authorisation Decision, above n 24, [93]; Ruto – Confirmation, above n 284, [185]. 393 Cf Article 1(1), Additional Protocol ii. 394 See, for example, Di Filippo, above n 392, 567–568. 395 See, for example, Article 1(1), Additional Protocol ii; and Di Filippo, above n 392, 566–567. 396 See, for example, Jennifer Smith, ‘An International Hit Job: Prosecuting Organized Crime Acts as Crimes Against Humanity’ (2009) 97 Georgetown Law Journal 1111, 1133–1134; and Burns, above n 392. 397 (icc) Kenya – Authorisation Decision, above n 24, [93]; Ruto – Confirmation, above n 284, [185]. 398 (icc) Ruto – Confirmation, above n 284, [186]; cf. Muthaura – Confirmation, above n 284, [186] (where an ‘organization’ was also found). 399 (icc) Ruto – Confirmation, above n 284, [197]–[199]. 400 (icc) Ruto – Confirmation, above n 284, [200]–[206].

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Network identified the criminal activities against the civilian population as its primary purpose.401 While the prosecution case in Ruto and Sang was later dismissed by majority on the evidence presented by the prosecution on the basis that the alleged Network was not made out,402 this does not affect the findings of the Pre-Trial Chamber. The approach of the majority in the Kenya Authorisation Decision that an organisation need not be State-like has generally been followed by a number of icc Chambers, albeit with the various Chambers adopted differing formulations as to the relevant test. Pre-Trial Chamber i in the Katanga Confirmation Decision held that a group will fall within the term ‘organisation’ either where they ‘govern a particular territory’ or where they have the ‘capability to commit a widespread or systematic attack against a civilian population’403 (emphasis added). This appeared to be followed by Pre-Trial Chamber ii in the Bemba Gombo Confirmation Decision.404 While the use of the word ‘govern’ is unclear (i.e. in that it may include States only or may include State-like entities or armed groups with control of territory), the second formulation is extremely broad and appears to follow the view of some writers that, once all other elements are established, any association of individuals will, without more, constitute an organization.405 That is, once a ‘widespread or systematic attack’ is established, the group clearly has the relevant capability. A similar approach has been taken by the Trial Chambers in Katanga and Bemba Gombo. In Katanga, the Trial Chamber held that the relevant organisation need not be a ‘quasi-State’ but rather ‘have a set of structures and mechanisms … that are sufficiently efficient to ensure the coordination necessary to carry out an attack … [and] sufficient means to promote or encourage the attack, with no further requirement necessary’.406 The same definition was adopted by the Trial Chamber in Bemba Gombo.407 401 (icc) Ruto – Confirmation, above n 284, [207]–[208]. 402 (icc) Ruto and Sang – Defence Application for Acquittal, above n 83. See also discussion in Chapter 6, Section 4.2.2(d). 403 (icc) Katanga – Confirmation, above n 109, [396] (citing 1991 Draft Code, commentary on Art. 21, [5]: “Private individuals with de facto power or organized in criminal gangs or groups”; Akayesu – Trial, above n 24, [580]; Kordić – Trial, above n 134, [179]; Kordić – A ­ ppeal, above n 50, [94]; Kayishema – Trial, above n 56, [123]; and 1996 ilc Report, above n 36, 94). 404 (icc) Bemba Gombo – Confirmation, above n 24, [81] (citing no authority, but adopting the words used in Katanga – Confirmation, above n 109). 405 Werle and Burghardt, above n 388. 406 (icc) Katanga – Trial, above n 77, [1119]. 407 (icc) Bemba Gombo – Trial, above n 76, [158].

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In Katanga, Judge Ozaki delivered a Separate Opinion providing further analysis of the requirements of what organisations may suffice. Judge Ozaki stated that, while she had no objection to the relevant analysis in the relevant statement of principle in the majority’s judgment, she stated that the existence of a policy was to be distinguished from how it may be proven and that the Chamber should provide clearer guidance on what was required to avoid the definition becoming circular.408 Reasoning by analogy with the definition of ‘[o]rganized criminal group’ in the United Nations Convention against Transnational Crime, Judge Ozaki discerned there to be a number of minimum features that the organisation was required to have: (a) a collectivity of three or more persons; (b) existing for a certain period of time, which, at least, transcends the period during which the policy was formed and implemented; (c) with a particular aim or purpose, whether it is criminal or not, and (d) with a certain structure.409 Jude Ozaki also set out a number of further factors that may be relevant:410 • • • •

whether the group has an established internal hierarchy; whether the group exercises control over part of the territory of a state; the group’s infrastructure and resources; and whether the group is part of a larger group, which fulfils some or all of the abovementioned criteria.

(b) The Narrow View By contrast to the broad view, Judge Kaul – dissenting in the Kenya Authorisation Decision – held that the relevant organisation should demonstrate at least some of the indicia of statehood or ‘partake of some characteristics of a State’, albeit falling short of a ‘state’ under customary international law.411 Judge Kaul held that private organizations that rise to the requisite quasi-State level could involve the following characteristics:412 • • • •

a collectivity of persons; which was established and acts for a common purpose; over a prolonged period of time; which is under responsible command or adopted a certain degree of hierarchical structure, including, as a minimum some kind of policy level;

408 (icc) Bemba Gombo – Trial, above n 76, (Separate Opinion of Judge Ozaki), [25]. 409 (icc) Bemba Gombo – Trial, above n 76, (Separate Opinion of Judge Ozaki), [28]–[29]. 410 (icc) Bemba Gombo – Trial, above n 76, (Separate Opinion of Judge Ozaki), [28]–[29]. 411 (icc) Kenya – Authorisation Decision, above n 24, (Dissenting Opinion of Judge Kaul), [51]. 412 (icc) Kenya – Authorisation Decision, above n 24, (Dissenting Opinion of Judge Kaul), [51].

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• with the capacity to impose the policy on its members and to sanction them; and • has the capacity and means available to attack any civilian population on a large scale. Judge Kaul found that non-state actors which do not reach this level include ‘groups of organized crime, a mob, groups of (armed) civilians or criminal gangs’ as well as ‘violence-prone groups of persons formed on an ad hoc basis, randomly, spontaneously, for a passing occasion, with fluctuating membership and without a structure and level to set up a policy … even if they engage in numerous serious and organized crimes.’413 However, Judge Kaul found that control over the territory is not a necessary aspect of an ‘organization’, although it may serve as an additional factor to be considered.414 This view would appear to capture not only entities with functioning governments such as the Republika Srpska (the Serb-controlled part of Bosnia & Herzegovina) or Palestine, but also armed groups controlling large areas of territory, such as the Lord’s Resistance Army in Uganda, or the armed groups in the drc such as the mlc.415 However, while Judge Kaul states that ‘organized armed groups’ qualified as ‘organizations’, he noted that even though an organization ‘may not show a military structure, it should nevertheless have a structure and capacity similar to that of an organized armed group’.416 While it is correct to say that the dissenting view of Judge Kaul is against the trend of authority of decisions at the icc, the question cannot be considered as closed. Judge van den Wyngaert, in her dissenting opinion in the Katanga 413 (icc) Kenya – Authorisation Decision, above n 24, (Dissenting Opinion of Judge Kaul), [52]. 414 (icc) Kenya – Authorisation Decision, above n 24, (Dissenting Opinion of Judge Kaul), [51], fn 56, citing: Prosecutor v Thomas Lubanga Dyilo (Decision on the confirmation of charges), Case No 01/04-01/06-803-tEN (7 February 2007), [233] et seq.; and Bemba Gombo – Confirmation, above n 24 [236]. 415 See (icc) Kenya – Authorisation Decision, above n 24, (Dissenting Opinion of Judge Kaul), [48] (apparently accepting the following could fall within the term: ‘the acts of militarylike organized armed groups in the context of an armed conflict not of an international character who over a prolonged period of time allegedly committed crimes according to a policy’.) See also Katanga – Confirmation, above n 109, [396] (noting that a policy may be made either by ‘groups of persons who govern a specific territory or by any organisation with the capability to commit a widespread or systematic attack against a civilian population’). 416 (icc) Kenya – Authorisation Decision, above n 24, (Dissenting Opinion of Judge Kaul), [51], fn 55 (citing Bemba Gombo – Confirmation; Kony – Arrest Warrant; and Katanga – Confirmation).

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Trial Judgment left the question open.417 Further, the dissenting view has support from a number of eminent academics418 and, as noted in Chapter 6,419 the majority view proceeds on what the authors suggest to be a controversial premise as to the raison d’être of crimes against humanity (discussed further below). (c) A Third Approach to ‘organisational policy’ A third – and even broader – approach has now emerged in the form of the Separate Opinion of Eboe-Osuji in the Decision on the Defence Application For Acquittal in Ruto and Sang.420 Judge Eboe-Osuji held that there need not be an involvement of ‘an aggregate entity’ in a crime against humanity but only a ‘coordinated course of action, regardless of the number of accomplices involved’.421 This would include ‘conduct of an individual who executed multiple large scale attacks against civilians in a systematic way, and the conduct of an individual who planned one large scale attack that inflicted widespread harm to a civilian population’.422 In his view, ‘lone wolf’ attacks may amount to crimes against humanity, if they constitute a widespread and/or systematic attack.423 7.2.3 ‘Policy to commit such an attack’ (a) Actively Promote or Encourage The Elements of Crimes provides that a ‘policy to commit such an attack’ requires that the State or organization ‘actively promote or encourage such an attack against a civilian population’.424 The icc Pre-Trial Chambers have held that a ‘policy’ is distinct from that of a ‘plan’, although there may be overlap between the two concepts.425 Similarly, while evidence of planning, organisation and direction may be relevant to the policy element as well as whether

417 (icc) Prosecutor v Germain Katanga (Minority Opinion of Judge Christine Van den Wyngaert), ICC-01/04-01/07-3436-AnxI 07-03-2014 1/170 nm T (7 March 2014) (‘Katanga – Trial (Dissenting Opinion of Judge Van den Wyngaert)’), [206], [267]. See also [198]. 418 William Schabas, The Rome Statute of the International Criminal Court: A Commentary, (2nd ed, Oxford University Press: Oxford, 2009), 152; Bassiouni, above n 384, 244–245. 419 See Chapter 6, Section 5.3. 420 (icc) Ruto and Sang – Defence Application for Acquittal, above n 83. 421 (icc) Ruto and Sang – Defence application for Acquittal, above n 83, [302], [462]. 422 (icc) Ruto and Sang – Defence application for Acquittal, above n 83, [302]. 423 (icc) Ruto and Sang – Defence application for Acquittal, above n 83, [412]. 424 (icc) Elements of Crimes, Article 7, Introduction, [3]. 425 (icc) Ruto – Confirmation, above n 284, [209].

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an attack is systematic, the two concepts should not be conflated.426 Further, the policy need not be explicitly defined by the State or organisational427 and need not be formalised.428 The difference between the ‘policy’ element and a ‘systematic’ attack is discussed above.429 Different Chambers have expressed the applicable test differently. On the one hand, Pre-Trial Chamber i in Katanga Confirmation Decision stated that the policy element will be satisfied if the attack is ‘thoroughly organised and follow[s] a regular pattern’ and ‘in furtherance of a common policy involving public or private resources’ (emphasis added).430 This appears to adopt the wording used in Akayesu as to when an attack will be ‘systematic’.431 On the other hand, Pre-Trial Chamber ii in the Bemba Gombo Confirmation Decision has stated that it will be satisfied if it was ‘planned, directed or organised’ as opposed to consisting of ‘spontaneous or isolated acts of violence’. This appears to adopt the language of the ilc as to when an attack will be ‘systematic’. These decisions appear to impose differing levels of organisation or planning, although it is not entirely clear whether any difference was in fact intended. In the Kenya Authorisation Decision, for instance, the Pre-Trial Chamber applied both lines of authority, which would suggest that they were seen to be complimentary.432 That said, it is difficult to resist the conclusion that the standard in fact applied by the majority appeared to be a lower one than that suggested in Katanga. The organisation in question – the so-called ‘Network’ – did not appear to be thoroughly organised. Further, the majority referred in a footnote to the Draft Code of Crimes Against the Peace and Security of Mankind (adopted by the ilc in 1996)433 (the icl Draft Code) and the Commentary to 426 (icc) Laurent Gbagbo – Confirmation, above n 74, [215]. 427 (icc) Katanga – Confirmation, above n 109, [396], applied in Kenya – Authorisation Decision, above n 24, [84] and [86]. 428 (icc) Bemba Gombo – Confirmation, above n 24 [81] (citing Tadić – Trial), followed in ­Kenya – Authorisation Decision, above n 24, [85]–[86]; and Laurent Gbagbo – ­Confirmation, above n 74, [216]. See also Dixon and Hall, above n 390. 429 See above, Section 6.3. 430 (icc) Katanga – Confirmation, above n 109, [396], followed in Kenya – Authorisation Decision, above n 24, [84], [86]. 431 See above, Section 6.3. 432 (icc) Kenya – Authorisation Decision, above n 24, [84]–[86] (purporting to apply both authorities). See also Muthaura – Confirmation, above n 284, [111]. 433 (icc) Kenya – Authorisation Decision, above n 24, [86], fn 78 (citing Article 18 of the ilc Draft Code: ‘[a] crime against humanity means any of the following acts, when committed in a systematic manner or on a large scale and instigated or directed by a Government or by an organization or group […].’).

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the icl Draft Code.434 The Chamber stated that ‘it is worth noting … that the ilc Draft Code does not require that there must be a policy per se, but only that crimes be instigated by the Government or organization’. The Pre-Trial Chamber also noted that this approach had some academic support.435 This appears more consistent with the Bemba Gombo Confirmation Decision. Similarly, Pre-Trial Chamber i in its later Laurent Gbagbo Confirmation Decision again cited both authorities but stated the test as it was stated in Bemba Gombo.436 This point is considered further below. Whether or not a policy is present will depend upon a range of different ­factors. In the Kenya Authorisation Decision, the majority of the Pre-Trial Chamber held that, while the ad hoc Tribunals have now abandoned the policy ­requirement, it is ‘useful’ and ‘appropriate’ to consider their definition of the concept of a ‘­policy’ in early cases.437 Accordingly, the Pre-Trial Chamber applied the Blaškić Trial Chamber’s statement that a plan ‘need not necessarily be declared expressly or even stated clearly and precisely’, but ‘may be surmised from the occurrence of a series of events’ listed by the Trial Chamber.438 The PreTrial Chamber held that it ‘may refer to these factors, inter alia, when determining whether there was a policy to commit an attack’ in the case before them.439 These factors include the following (footnotes omitted): • the general historical circumstances and the overall political background against which the criminal acts are set; • the establishment and implementation of autonomous political structures at any level of authority in a given territory; 434 (icc) Kenya – Authorisation Decision, above n 24, [86], fn 78, citing the ilc Commentary to the Draft Code, Yearbook of International Law Commission 1996, Volume 2, un Doc. A/CN.4/SER.A/1996/Add.1 (Part 2) (1996), 47 (which indicated that the wording of Article 18 was ‘intended to exclude the situation in which an individual commits an inhumane act while acting on his own initiative pursuant to his own criminal plan in the absence of any encouragement or direction from either a Government or a group or organization’, which, according to the ilc, would not constitute a crime against humanity). 435 (icc) Kenya – Authorisation Decision, above n 24, [88], fn 78 (citing Dixon and Hall, above n 390). 436 (icc) Laurent Gbagbo – Confirmation, above n 74, [215]. 437 (icc) Kenya – Authorisation Decision, above n 24, [86]. See list of authorities considering the ‘policy’ element at fn 79 (namely, authorities prior to the Kunarac – Appeal, above n 22, [98]). 438 (icc) Kenya Authorisation Decision, above n 24, [87] (footnotes omitted), citing (icty) Blaškić – Trial, above n 22, [204]. 439 (icc) Kenya – Authorisation Decision, above n 24, [88].

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• the general content of a political programme, as it appears in the writings and speeches of its authors; • media propaganda; • the establishment and implementation of autonomous military structures; • the mobilisation of armed forces; • temporally and geographically repeated and co-ordinated military offensives; • links between the military hierarchy and the political structure and its political programme; • alterations to the ‘ethnic’ composition of the populations; • discriminatory measures, whether administrative or other (banking restrictions, laissez-passer, …); • the scale of the acts of violence perpetrated – in particular, murders and other physical acts of violence, rape, arbitrary imprisonment, deportations and expulsions or the destruction of non-military property, in particular, sacral sites.440 The Trial Chamber in Bemba Gombo adopted the same approach.441 The Chamber held, citing Blaškić, that the relevant factors from which a policy may be inferred include:442 • • • •

that the attack was planned, directed or organised; a recurrent pattern of violence; the use of public or private resources to further the policy; the involvement of the State or organizational forces in the commission of crimes; • statements, instructions or documentation attributable to the State or organization condoning or encouraging the crimes; and/or • an underlying motivation. Finally, a number of icc Chambers have held that while it is not necessary that the policy have ‘a certain rationale or motivations’, ‘[e]stablishing the underlying motive may, however, be useful for the detection of common features and links between acts’.443 440 (icc) Kenya Authorisation Decision, above n 24, [87] (citing (icty) Blaškić – Trial, above n 22, [204]). 441 (icc) Bemba Gombo – Trial, above n 76, [160]. 442 (icc) Bemba Gombo – Trial, above n 76, [160]. 443 (icc) Laurent Gbagbo – Confirmation, above n 74, [214].

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(b) Policy to Commit ‘such an attack’ The Pre-Trial Chamber in the Ruto Confirmation Decision emphasised that the relevant policy must be directed to commit ‘such an attack’.444 That is, the policy must be connected to the attack itself; a ‘policy’ cannot be to simply to achieve certain political goals that do not necessarily include the attack in question. On this basis, the Chamber rejected the prosecution’s contention that the second limb of the Network’s policy was ‘to gain power and create a uniform odm voting block’.445 The Chamber held that this policy ‘is merely political in nature and may not aim at committing an attack against the civilian population’, although such an intention may be the ‘motive or the purpose of a potential policy to commit the attack’.446 The converse point was made by the Trial Chamber in Bemba Gombo.447 That is, that it must be shown that the relevant ‘course of conduct’ or attack was committed pursuant to or in furtherance of the policy. The Trial Chamber said that this is satisfied where the perpetrators act deliberately to further the policy as well as where the perpetrators engage in conduct envisaged by the policy ‘with knowledge thereof’.448 (c) Policy of Toleration A policy does not necessarily need to be a positive policy. The Elements of Crimes further provides that a policy may ‘in exceptional circumstances, be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack’.449 Although, the Elements of Crimes also states that ‘[t]he existence of a such a policy cannot be inferred solely from the ­absence of government or organizational action’.450 In the Laurent Gbagbo Confirmation Decision, the issue did not squarely arise as, while the Chamber considered the Accused’s failure to sanction offenders as part of its assessment,451 there were many other positive actions that founded a relevant policy being present. 444 (icc) Ruto – Confirmation, above n 284, [211]. 445 (icc) Ruto – Confirmation, above n 284, [212]. 446 (icc) Ruto – Confirmation, above n 284, [213]. 447 (icc) Bemba Gombo – Trial, above n 76, [161]. 448 (icc) Bemba Gombo – Trial, above n 76, [161]. 459 (icc) Elements of Crimes, Article 7, Introduction, fn 6, applied in Kenya – Authorisation Decision, above n 24, [83]; and Ruto – Confirmation, above n 284, [210]. 450 (icc) Elements of Crimes, Article 7, Introduction, fn 6, applied in Kenya – Authorisation Decision, above n 24, [83]. 451 (icc) Laurent Gbagbo – Confirmation, above n 74, [182]–[192].

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In the Muthaura Confirmation Decision, the icc Pre-Trial Chamber rejected a claim by the Prosecutor that the police participated in the relevant attack by way of a deliberate failure to act or a creation of a ‘free zone’.452 It was, however, on the basis of evidence, rather than principle. While the Chamber found that there was credible evidence of police officers denying assistance to victims of a particular ethnicity and subsequent police failures to properly investigate the crimes committed, such failures were mainly the result of ‘ethnic bias on the part of individual police officers as well as of ineptitude and failure of senior police officers to sufficiently appreciate the violence’.453 7.2.4 Conclusion The present trend of authority in the icc is that the broad definition of ‘organization’ is to be adopted, namely, that the attack may be authored by an organisation capable of committing a widespread or systematic attack without that organisation needing to be a state-like entity or de facto power. That position was set out by the majority in the Kenya Authorisation Decision and has since been generally followed by the Trial Chambers in Katanga and Bemba Gombo. That said, given in particular the dissenting voices at the icc, it cannot be said that the position in the icc has entirely been settled.454 Indeed, as set out in Chapter 6,455 there are good reasons to contend that this position should be revisited in light of the full range of sources of international law. The proper interpretation of the scope of the ‘State or organizational policy’ requirement is likely to depend on the weight accorded to the position under customary international law in light of the particular jurisdiction being exercised by the icc. In addition to the ordinary principles of the Vienna Convention on the Law of Treaties, Article 21 of the icc Statute provides that the Court is to apply ‘[i]n the first place’, the Statute, Elements of Crimes and the Rules and ‘[i]n the second place, where appropriate’, treaties and rules of international law.456 The interpretation of the scope of the ‘State or organizational policy’ element is one where it may clearly be contended that it is appropriate to look to the interpretation under customary international law. The words themselves are ambiguous and, as has been discussed earlier in this 452 (icc) Muthaura – Confirmation, above n 284, [224]–[226] (footnotes omitted). 453 (icc) Muthaura – Confirmation, above n 284, [226] (footnotes omitted). 454 See, for example, (icc) Laurent Gbagbo – Confirmation, above n 74, [217] (specifically not deciding the issue). The Chamber went on to find that the pro-Gbagbo forces were both an ‘organization’ and were attributable to the ‘state’ for the purposes of the policy requirement: [219]–[220]. 455 See Chapter 6, Section 5.3. 456 See Chapter 6, Section 5.1.

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text,457 so too is the travaux préparatoires. It would appear highly artificial to simply interpret the words of the icc Statute as if in a void and entirely divorced from their customary law status – especially given the customary international law definition was clearly in the minds of those drafting the icc Statute. As set out above, it was concluded in Chapter 8 that customary international law requires that the attack be committed pursuant to either the policy, toleration or acquiescence of a state or de facto power because of sufficient control over people, resources or territory.458 This was based on both an extensive analysis of state practice as well as the fundamental raison d’être of crimes against humanity. It was contended there and throughout this text that the definition of crimes against humanity seeks to strike a balance between the protection of both human rights and state sovereignty. Article 7 is no different in this respect. If Article 7 of the icc Statute is to be interpreted in light of that position, two potential positions result. First, and primarily, the term ‘State or organizational’ should be read in a more narrow sense to include only entities that are states or de facto powers, more in line with the dissenting opinion of Judge Kaul and the Tadić case that was in the forefront of the minds of the participants at the Rome Conference. Adopting such an interpretation, the term ‘policy’ should be interpreted broadly to include acquiescence or toleration of atrocities.459 This requires reading the term ‘exceptional circumstances’ broadly to include situations where a government (or possibly a de facto power if it controls territory) ‘clearly’ fails to prevent atrocities from occurring or investigate or punish their perpetrators. To do so does not unduly stretch the term ‘exceptional’. For, it clearly is the case that the ordinary or usual position is that sovereign states will do – and indeed have a duty to do – their utmost to prevent atrocities occurring to their own people. Where a State does not do so, it is easy to characterise such inaction as both ‘exceptional’ as well as being an action amounting to the adoption of a policy that must be intended to encourage such an attack. Secondly, and alternatively, if either the interpretation of ‘State or organizational’ is read broadly or if the ‘exceptional circumstances’ requirement is to be read narrowly, an alternative interpretation may also be open. That would require giving a narrower meaning to the term ‘policy’ than is present under customary international law but giving a broader meaning to the term ‘organization’. The result would be that the ‘organisation’ that may commit the crime would include criminal gangs or a terrorist group but that the policy 457 See Chapter 4, Section 5.2.3 and 5.2.4; and Chapter 8, Section 4.3. 458 See Chapter 8, Sections 4.7.2 and 4.7.3. 459 See Chapter 8, Section 4.9.

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must e­ xtend beyond mere acquiescence. Indeed, for weak non-state entities, this may even require a standard as was been set out in Akayesu, namely, that the acts be ‘thoroughly’ organised and involve ‘substantial’ public or private resources.460 This would be to impose a standard somewhere in between the broad view and the very broad view of Judge Eboe-Osuji discussed above. This alternative position could only be justified on the basis that the balance to be effected between human rights and state sovereignty is ­necessarily different in the icc than what it is under customary international law. As discussed in Chapter 6, the icc Statute already provides various protections to states against undue interference. Situations may only reach the icc in particular ways and further limitations are imposed on the admissibility of situations even if referred.461 As such, it may be credibly contended that the policy element may strike a different balance between human rights and state sovereignty than is struck under customary international law. As noted in Chapter 8, the difficulty with this latter interpretation is that it seems, on balance, less faithful to the drafting history at the Rome Conference and the concern to protect state sovereignty that clearly underpinned the inclusion of the policy element. On either view, the result of this analysis is that the focus is not on an arbitrary and detached notion of what an ‘organization’, considered in the abstract, but is on the balance to be effected between human rights and state sovereignty on the basis of the humanity principle and the impunity principle d­ iscussed in Chapter 8. If the primary interpretation is adopted, an organisation is a statelike entity simply where it has sufficient control over people, resources or territory in the area where the crimes were committed. This would include a group with administrative control over territory (e.g. Republika Srpska in Yugoslavia or the Tamil Tigers in Sri Lanka) or an armed group with military control over territory (e.g. the various armed groups considered in Katanga and Bemba Gombo). In such cases, the question is whether the entity is so powerful that the risk of impunity is present. Indeed, in Bemba Gombo, the fact that the mlc was invited into the car by the de jure car authorities may even be sufficient to say that the attack was encouraged or tolerated in a loose sense sufficient to engage the policy element. Similarly, if the alternative view is adopted, the question does not turn on the examination of the group per se but rather on the extent to which a given collection of individuals with at least some level of organisation or ­coordination – has threatened the sovereignty of the territorial state. In the 460 See above, Section 6.3. 461 icc Statute, Arts 13 and 17.

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example of the situation in Kenya, for instance, the key point should not be precisely how the ‘Network’ was structured and organised but rather how the group managed to coordinate or organise such violence or aggression to undermine territory that would ordinarily be under the sovereign control of the territorial state. Here, the violence occurred at such a point in time immediately following presidential elections and due to factors such as extant sectarian tensions caused such a level of political instability that the Kenyan authorities were effectively incapacitated to prevent such sporadic violence from occurring. In other instances, where there is an outbreak of sectarian violence along ethnic lines in states where the rule of law or the sovereign’s grip on power is weak, it is the notorious ability for such disputes to spread and cause significant harm that would justify the classification of groups directing or organising such violence as an organisation. This is consistent with the analysis in Chapter 8 concerning the circumstances in which the un Security Council has invoked Chapter vii of the un Charter to justify the intervention into purely internal atrocities. 8

The Nexus between the Attack and the Underlying Crime

An accused can only be liable for a crime against humanity where there is a nexus between the attack and the crime. This nexus consists of two elements: 1. 2.

Objective element: the commission of an act which, by its nature or consequences, is objectively part of the attack; and Subjective element: knowledge of the attack and that the crime is part thereof.

The term ‘nexus’ is often used only to refer to the objective component (with the second element classified as mens rea). Nonetheless, the approach of referring to both components as a ‘nexus’ component was taken by the icty Appeal Chamber in Mrkšić.462 While not much turns on the label, the use of the term ‘mens rea’ is potentially liable to conflate the definition of the offence with the mode of liability of a particular accused. As such, categorising them both as being ‘nexus’ requirements of an offence is the most conceptually clear way of understanding the two elements. 462 (icty) Mrkšić – Appeal, above n 158, [41]. See also Tadić – Appeal, above n 24, [271]; and Vasiljević – Trial, above n 22, [32].

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Further, while many authorities refer to the nexus requirement as being a nexus between the attack and the accused (including those cited immediately above), this is often inaccurate. As will be explained below, there is a lack of clarity on the part of the tribunals as to whose acts and mental state are relevant. Treating the mental element as a nexus rather than a mens rea makes clearer the position that, depending on the circumstances, the subjective nexus component may be satisfied by either an accused or a non-accused perpetrator That said, in either case, the subjective component of the offence is important. It is important not only as it links a perpetrator with the jurisdictional component of crimes against humanity. It is important as it also increases the seriousness of the offending and the moral culpability of the perpetrator for his or her actions. As Judge Cassese found in his Separate Opinion in the Tadić Sentencing Appeal, the same act committed both a war crime and a crime against humanity is necessarily more serious when committed as a crime against humanity because of the nexus:463 Thus, if murder is defined as a “crime against humanity”, it cannot consist merely of a single or even a multiple violation of international humanitarian law, however serious this may have been. Rather, murder is simply one element of extensive criminal misconduct and the murderer must have acted in the knowledge that his or her conduct formed part of this overall context. Normally a “widespread or systematic practice” of misbehaviour is either planned or instigated, or promoted, or countenanced, or at least tolerated by the governmental authorities wielding control over the area where the crime has been committed … It follows that the murder at issue forms part of a whole pattern of criminality, and may amount to what the great Dutch international lawyer b.v.a. Röling termed “system criminality” (encompassing large-scale crimes perpetrated to advance the war effort, at the request of, or with the encouragement or toleration of government authorities), as opposed to “individual criminality” (embracing crimes committed by combatants on their own initiative and often for reasons known only to themselves). In addition, 463 (icty) Tadić – Appeal, above n 24, (Separate Opinion of Judge Cassese), [14], followed in (Bangladesh) Chief Prosecutor v Muhammad Kamaruzzaman (Judgment) (ICT-2), ictbd Case No. 03 of 2012 (9 May 2013) (‘Kamaruzzaman – Judgment’), [502]. See also Kai Ambos, ‘Concursus, Delictorium and Sentencing’ in Treatise of International Criminal Law – Volume ii: The Crimes and Sentencing (Oxford University Press: Oxford, 2004) 254; Micaela Frulli, ‘Are Crimes Against Humanity More Serious than War Crimes?’ (2001) 12(2) European Journal of International Law 329.

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the requisite intent of the perpetrator is more serious than in murder as a “war crime”: the perpetrator must not only intend to cause the death of one or more persons, but must have done so while being aware that this conduct was a common practice. This among other things may also signify that he or she was hoping to enjoy impunity by engaging in conduct that, being widespread, might ultimately have gone unpunished. 8.1 Objective Element: ‘part of’ the attack 8.1.1 ‘By their nature or consequences … objectively part of’ the Attack For the acts of the accused to amount to crimes against humanity they must objectively form ‘part of’ the relevant attack.464 A number of ad hoc Tribunals have held that the accused’s acts will form part of an attack if, by their nature, aims, characteristics or consequences, they are objectively part of the attack and are liable to have the effect of furthering that attack.465 An act need not share all the characteristics of the ‘attack’ and can take place before or after, and at places away from, the main attack and still be regarded as part of it, if there is sufficient connection between the two.466 The icc has adopted the same approach, holding that the acts must be committed ‘in furtherance of’ the relevant attack considering the ‘nature, aims and consequences of such act.’467 464 (icty) Tadić – Appeal, above n 24, [248] (citing Vukovar Hospital Rule 61 Decision, [30]), [251], [271], followed in Kunarac – Appeal, above n 22, [99]; Mrkšić – Appeal, above n 158, [41]; (ictr) Akayesu – Trial, above n 24, [580]; Gacumbitsi – Appeal, above n 305, [102]; and (scsl) ruf – Trial, above n 40, [89]; cdf – Trial, above n 5, [120]; afrc – Trial, above n 25, [220]; (eccc) Duch – Trial, above n 24, [318]; Case 002/01 – Trial, above n 24, [190]; (icc) Katanga – Confirmation, above n 109, [391], [400]; Bemba Gombo – Confirmation, above n 24 [84]. 465 (icty) Kunarac – Appeal, above n 22, [99]–[100] (approving Kunarac – Trial, above n 22, [417]–[418]), followed in Vasiljević – Trial, above n 22, [32]; (ictr) Kajelijeli – Trial, above n 56, [866]; Semanza – Trial, above n 24, [326]; (scsl) ruf – Trial, [89]. See also (icty) Tadić – Appeal, above n 24, [271] (requiring the act be ‘related’ to the attack). 466 (icty) Kunarac – Appeal, above n 22, [100]; Krnojelac – Trial, above n 22, [55] (the act ‘need not be committed when that attack is at its height’ and ‘[a] crime committed several months after, several kilometres away from, the main attack against the civilian population could still, if sufficiently connected, be part of that attack’); (ictr) Kajelijeli – Trial, above n 56, [866]; Semanza – Trial, above n 24, [326]; (scsl) ruf – Trial, above n 40, [89]; (eccc) Duch – Trial, above n 24, [318]; Case 002/01 – Trial, above n 24, [190]. See also (­Bangladesh) Kamaruzzaman – Judgment, above n 464, [525]. 467 (icc) Katanga – Confirmation, above n 109, [400]; Bemba Gombo – Confirmation, above n 24 [84], [86]; Kenya – Authorisation, above n 24, [98].

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Whether or not an act or omission is ‘part of’ the relevant attack will be a question of fact that will need to be assessed on a case-by-case basis.468 In the afrc Case, the scsl Trial Chamber found that, while each case will depend on the facts, the following factors indicated a ‘reliable indicia’ of the nexus element:469 1. 2. 3. 4.

the similarities between the perpetrator’s acts and the acts occurring within the attack; the nature of the events and circumstances surrounding the perpetrator’s acts; the temporal and geographic proximity of the perpetrator’s acts with the attack; and the nature and extent of the perpetrator’s knowledge of the attack when he commits the acts.

Accordingly, in Kunarac, the icty Trial Chamber held that the torture, enslavement and sexual assaults carried out by the Bosnian Serb defendants on Muslim women were part of the ‘attack’ because the victims were chosen by reason of their ethnicity and the crimes in question corresponded with other such acts occurring against Muslim civilians in the same region of Foča at the time.470 Importantly, the icty Trial Chamber in Milutinović clarified the application of these principles where the accused is not the physical perpetrator of the underlying crime. In such cases, the Trial Chamber held that the nexus requirement will be met if the underlying offences comprise part of the attack, regardless of whether they are physically committed by the accused or merely by those for whose acts he or she bears responsibility.471 In Ongwen, the Pre-Trial 468 (icc) Kenya – Authorisation Decision, above n 24, [135]. 469 (scsl) afrc Case – Trial, [220], followed in Taylor – Trial, above n 24, [512]. 470 (icty) Kunarac – Trial, above n 22, [592]. 471 (icty) Prosecutor v Milutinović et al. (Trial Chamber Judgment), Case No IT-05-87-T (26 February 2009) (‘Milutinović – Trial’), [155]. The Trial Chamber cited the following ­authorities: Kupreškić – Trial, above n 99, [544] (reiterating that the focus was on the underlying crime); Blaškić – Trial, above n 22, [429] (where the accused did not physically commit the offences charged); Blaškić – Appeal, above n 91, [98], [102] (concluding that ‘the Trial Chamber was correct in stating that acts constituting crimes against humanity must be part of a widespread or systematic attack against civilians’); Kordić – Appeal, above n 50, [117] (recognising, in the context of inhumane acts as crimes against humanity, that the underlying offences may be committed by either the accused or his subordinates).

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Chamber ii criticised the Prosecution for not laying sexual violence charges in relation to acts that fell outside of the indictment period. The Chamber emphasised that there is no requirement that the underlying crimes fall within the attack against the civilian population, provided the nexus requirement is otherwise satisfied.472 8.1.2 ‘Isolated or random’ Acts The ad hoc Tribunals have held that ‘isolated or random’ acts will not fall within the parameters of a crime against humanity.473 A crime will be regarded as an ‘isolated act’ when it is ‘so far removed from that attack that, having ­considered the context and circumstances in which it was committed, it cannot ­reasonably be said to have been part of the attack.’474 Accordingly, there will come a point when the acts of the accused are so far removed from the attack, in terms of time, distance or characteristics, that they are ‘isolated or random’. The icc has adopted a similar approach, holding that ‘[i]solated acts which clearly differ […] from other acts forming part of the attack, would fall outside the scope’.475 One controversial area appears to be where an accused’s acts were opportunistic acts facilitated by a general climate of civil unrest and lawlessness rather than crimes targeting a particular population. A Special Panel in East Timor held that a revenge killing by one militia member against another militia member was not a crime against humanity because it could not be related 472 (icc) Ongwen – Confirmation, above n 297, [107]. 473 (icty) Kunarac – Appeal, above n 22, [100] (affirming Kunarac – Trial, above n 22, [550]); Blaškić – Appeal, above n 91, [101]; Kordić – Appeal, above n 50, [94]; (ictr) Kayishema – Trial, above n 56, [134] (icc) Kenya Authorisation Decision, above n 24, [94]; (scsl) ruf – Trial, above n 40, [89]. See also (icty) Tadić – Trial, above n 5, [648] (noting that the purpose of the chapeau requirement is to exclude ‘isolated or random acts’). Cf (BiH) Mirko Todorović and Miloš Radić (Second Instance Judgment), Case No X-KRŽ-07/382 (17 February 2009) (‘Todorović – Appeal’), [108] (although, the decision appears to misquote Blaškić – Appeal). See also (icty) Tadić – Appeal, above n 24, [271] (requiring the act not be ‘unrelated’ to the attack); and (Bangladesh) Molla – Judgment, above n 91, [245], [374]. 474 (icty) Kunarac – Appeal, above n 22, [100] (affirming Kunarac – Trial, above n 22, [550] and citing Tadić – Trial and Mrkšić Rule 61 Decision), followed in Prosecutor v Simić et al. (Trial Chamber Judgment), Case No IT-95-9-T (17 October 2003) (‘Simić – Trial’), [41], (scsl) ruf – Trial, above n 40, [89]; (eccc) Duch – Trial, above n 24, [318]; Case 002/01 – Trial, above n 24, [190]. See also (Bangladesh) Molla – Judgment, above n 91, [374]. 475 (icc) Kenya – Authorisation Decision, above n 24, [98] (citing (icty), Simić – Trial, above n 475).

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to the attack against the civilian population.476 Arguably, some support for this may be found in the icty Trial Chamber’s decision in Limaj.477 Ultimately, however, and despite some early authority to the contrary,478 the icty Appeals Chamber in Tadić rejected the conclusion that an act will be outside the definition simply because it was committed for ‘purely personal ­motives’.479 The Chamber found that, provided both the objective and subjective nexus elements are satisfied, the accused’s motive is not relevant to the analysis.480 In particular, the Chamber pointed to the ‘denunciation’ cases, where, for instance, certain individuals were convicted of crimes against humanity for denouncing Jewish neighbours for various personal reasons.481 A similar example, raised by Cassese, is where a state official acts in a private capacity.482 This issue was raised in the Weller case in the British Occupied Zone at Nuremberg.483 The case concerned three German soldiers (one of which was Weller) who broke into a house in Monchengladbach (near Dusseldorf), where various Jewish families had been obliged to move in together. The soldiers proceeded to beat 10 or 11 of the 16 inhabitants one at a time. The head of the Gestapo was informed of these actions and stated that the actions constituted ‘an isolated event, which would in no way be approved’. 476 (spet) Prosecutor v Martins and Gonzales (Judgment), Special Panel Case No 11/2001 (13 November 2003) 15–16. See also (icc) for instance, Kenya – Authorisation Decision, above n 24, [155]. 477 (icty) Limaj – Trial, above n 22, [216]. 478 (ictr) Kayishema – Trial, above n 56, [122]–[123]. 479 (icty) Tadić – Appeal, above n 24, [255], [272]. 480 However, motive may be relevant to establishing the mens rea: see Johan Van der Vyver, ‘The International Criminal Court and the Concept of Mens Rea in International Criminal Law’ (2004) 12 University of Miami International & Comparative Law Review 57, 73–74. 481 (icty) Tadić – Appeal, above n 24, [259]–[262]. As discussed in Chapter 3, Section 2.3.1, in Sch, the accused had denounced her landlord solely “out of revenge and for the purpose of rendering him harmless” after tensions in their tenancy had arisen (Decision of Flensburg District Court dated 30 March 1948 in Justiz und NS-Verbrechen, vol. ii, pp. 397–402). In H., H denounced his father-in-law for listening to a foreign broadcasting station because his father-in-law was of aristocratic origin and incessantly mocked H for his low birth and tyrannised the family with his relentlessly scornful behaviour (Decision of the Braunschweig District Court dated 22 June 1950, in Justiz und NS-Verbrechen, vol. vi, pp. 631–644, at p. 639). In V., the natural mother of a child denounced the adoptive mother of the child in the hope of regaining the relationship with the increasingly estranged child (Decision of the Supreme Court for the British Zone dated 22 June 1948, S. StS 5/48, in Entscheidungen des Obersten Gerichtshofes für die Britische Zone, Entscheidungen in Strafsachen, vol. i, pp. 19–25). 482 Cassese, above n 2, 100. 483 Discussed in Chapter 3, Section 2.3.2. See also Cassese, above n 2, 100, fn 41.

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At first instance, the District Court of Monchengladbach acquitted the a­ ccused of crimes against humanity on the basis that a crime against humanity must be ‘either systematically organized by the government or carried out with its approval’. This conviction was overturned by the Supreme Court for the British Occupied Zone, which found relevantly as follows: the link with the national-socialist system of power and tyranny exists not only in the case of those actions which are ordered and approved by the holders of hegemony. That link also exists when those actions can only be explained by the atmosphere and condition created by the authorities in power. The trial court was wrong when it attached decisive value to the fact that after his action the accused was ‘rebuked’ and that even the Gestapo disapproved of the excess as an isolated infringement. This action nevertheless fitted into the persecution of the Jews carried out by the state and the party. This is proved by the fact that the accused … was in any event not held criminally accountable in a manner commensurate to the gravity of his guilt. The same conclusion is reached by Professor Luban,484 and has been confirmed by the ad hoc Tribunals. The Tribunals have found that the accused need not be acting on the orders, or as agent, of the organisation or state which may be responsible for the attack, as long as the acts, viewed objectively, can be seen as furthering that attack.485 A similar issue arises in the situation where, in the context of an attack on a civilian population, the victims in a particular incident (as opposed to the attack) are not predominantly civilian, or indeed, are even predominantly non-civilian. In Mrkšić, the victims of a number of murders committed in the region of Ovčara were found to be ‘predominantly non-civilians’486 (of the 194 persons that were murdered, 181 were known to be active in the Croatian forces in Vukovar487). Despite this, the murders occurred during a widespread and systematic attack on the ‘civilian population’ of Vukovar.488

484 Luban, above n 59, 95–96. 485 (icty) Kunarac – Trial, above n 22, [493], Kupreškić – Trial, above n 99, [555] and the cases cited therein. This is consistent with the jurisprudence of the German Courts under ccl 10 discussed in Chapter 3. 486 (icty) Mrkšić – Appeal, above n 158, [36], citing Mrkšić – Trial, above n 216, [481]. 487 (icty) Mrkšić – Trial, above n 216, [481], cited in Mrkšić – Appeal, above n 158, [36], fn 114. 488 (icty) Mrkšić – Trial, above n 216, [472], [482], cited in Mrkšić – Appeal, above n 158, [37].

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The Chambers in Mrkšić resolved the issue by asking whether the nexus requirement was satisfied;489 namely, whether there was a nexus between the acts of the accused and such an attack. In the case of the killings at Ovčara, the nexus requirement was not satisfied as the Trial Chamber found that the prisoners were selected based on their involvement in the Croatian armed forces and as such were treated differently from the civilian population.490 It was not sufficient that, inter alia, the perpetrators ‘harboured intense feeling of animosity towards persons they perceived as enemy forces’.491 This issue has some relevance to the definition of civilian discussed above.492 For, this decision would seem to lead to the untenable result that, if an aggressor sought to perpetrate a number of crimes on the people of a particular ethnic village, were they to treat the armed soldiers noticeably worse than the civilians, and do so because they were armed soldiers, that fact would take them outside the realm of a crime against humanity. This is particularly relevant in a situation where many men of military age had become involved in the military because of the aggression faced.493 It may be argued of course, that such an obstacle is only illusory, as such crimes would be prosecuted as war crimes. But this is not necessarily true if the ‘armed conflict’ element is not present, or even where only an internal armed conflict may be present. 8.2 Subjective Element: mens rea While the Rome Statute was the first statute to specifically require an element of mens rea, the ad hoc Tribunals have consistently held that it is a requirement of crimes against humanity.494 Generally speaking, both at customary international law and the icc, the subjective requirement or mens rea is that

489 (icty) Mrkšić – Appeal, above n 158, [41]ff. 490 (icty) Mrkšić – Trial, above n 216, [476], [481] (see also [207]), approved in Mrkšić – A ­ ppeal, above n 158, [42]. 491 (icty) Mrkšić – Appeal, above n 158, [42]. 492 See Section 4 (particularly 4.3.3 and 4.3.4). 493 (icty) Mrkšić – Appeal, above n 158, [475] (where it is said that ‘…virtually all non-Serb males of military age had become involved in the Croat forces given the grave situation…’). 494 (icty) Tadić – Appeal, above n 24, [248] (citing Vukovar Hospital Rule 61 Decision, [30]), [251], [271], followed in Kunarac – Appeal, above n 22, [102]–[103]; Kordić – ­Appeal, above n 50, [99]–[100]; (ictr) Akayesu – Trial, above n 24, [584]; Kayishema – Trial, above n 56, [135]; Gacumbitsi – Appeal, above n 305, [86]; (scsl) ruf – ­Trial, above n 40, [90]; cdf – Trial, above n 5, [121]; afrc – Trial, above n 25, [221]; (icc) K ­ atanga – Confirmation, above n 109, [401]–[402]; Bemba Gombo – Confirmation, above n 24 [88].

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the perpetrator/accused must know that there is an attack on the civilian population and that her or his acts comprise part of the attack.495 8.2.1 Who Must Possess the mens rea? At least under customary international law, an issue arises as to who must possess the relevant mens rea. As acknowledged by the icty Trial Chamber in Milutinović, an important distinction must be made in this regard between the knowledge of the person accused of a particular offence (the accused) and the knowledge of a person other than the person accused of a particular offence, who may have in fact physically committed the particular act on the ground (the perpetrator). For instance, a senior general may be charged with murder as a crime against humanity where the physical acts comprising the murder were committed by a lower-ranked soldier. Unfortunately, the jurisprudence of the ad hoc Tribunals has often used the terms ‘accused’ and ‘perpetrator’ interchangeably, without being entirely clear which person is referred to.496 The earliest and most regularly cited authority on point is the icty Appeals Chamber in Tadić, which refers to the acts of the accused having to form part of the attack and that the accused must have known that their acts fit into such a pattern.497 The authority cited is the Vukovar Hospital Rule 61 Decision, which referred to the physical perpetrator of the crime (or at least the accused only insofar as they were also the physical perpetrator of the crime).498 495 (icty) Tadić – Appeal, above n 24, [248] (‘the accused must have known that his acts fit into such a pattern’) and Kunarac – Appeal, above n 22, [99], [102] (‘knowledge on the part of the accused that there is an attack on the civilian population and that his act is part thereof’), followed in Blaškić – Appeal, above n 91, [124], [126], Kordić – Appeal, above n 50, [99]–[100], (ictr) Kayishema – Trial, above n 56, [133]–[134]; Bagilishema – Trial, above n 191, [94]; Musema – Trial, above n 54, [206]; Semanza – Trial, above n 24, [332]; (scsl) ruf – Trial, above n 40, [90]; (iht) 1991 Incidents Case – Summary, above n 174, 111. 496 (icty) Milutinović – Trial, above n 472, [154], referring to the following authorities: Tadić – Appeal, above n 24, [248] (‘the accused’); Kunarac – Appeal, above n 22, [85] and [99] (both ‘the accused’ and ‘the perpetrator’); Blaškić – Appeal, above n 91, [124] (‘the accused’); Blaškić – Trial, above n 22, [257] (both ‘the accused’ and ‘the perpetrator’); Kupreškić – Trial, above n 99, [544] (‘the perpetrator’); Kunarac – Trial, above n 22, [410], [418], [433]–[435] (both ‘the accused’ and ‘the perpetrator’). See also (icty) Kordić –­ Appeal, above n 50, [99] (‘the accused’); (scsl) afrc – Trial, above n 25, [221] (‘the perpetrator’); ruf – Trial, above n 40, [91] (‘the accused’). 497 (icty) Tadić – Appeal, above n 24, [248]. 498 (icty) Mrkšić – Indictment, above n 30, [15] (‘the responsibility of the accused for the acts for which they have been charged could be established not only because of their position

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This issue was recognised by the icty Trial Chamber in Milutinović.499 ­ fter considering the authorities in question, the Chamber held that to simply A ­require that the accused have the requisite knowledge would be both: (a) overinclusive (in that it would include the situation where neither the physical perpetrator nor intermediary perpetrator has the requisite knowledge and the accused’s knowledge of the context is too far removed from the offence, for instance, like aiding and abetting); and (b) under-inclusive (as it excludes the situation where a non-accused superior or intermediary perpetrator has the requisite knowledge).500 Accordingly, in the Chamber’s view, the relationship between the individual and the commission of the offence must be ‘sufficiently direct or proximate’.501 This is best captured by circumstances where an accused is responsible for directly committing an offence (i.e. commission, planning, ordering, instigating) as the knowledge of the context is part of the mental process resulting in the commission of the act. The same cannot be said for an aider and abettor, or a person who fails to prevent or punish an offender. In the result, the Milutinović Trial Chamber concluded that the mens rea element will be satisfied where the requisite mens rea was possessed by either:502 • the physical perpetrator; or • the person who planned, ordered or instigated his conduct. This approach was accepted on appeal.503 Importantly, the Appeals Chamber clarified that the question of whether a crime against humanity has been committed should be distinguished from the question of the individual criminal responsibility of the accused. It is only in respect of the latter that the accused must individually possess the requisite mens rea in order to be found guilty. Nonetheless, the position may not entirely settled. The scsl Appeals Chamber in the cdf Case, for instance, specifically held that it was the accused (referred to as the ‘actual perpetrator’) that must have the particular mens rea.504

of authority but also because of their direct participation in the commission of those acts’ (emphasis added)). 499 (icty) Milutinović – Trial, above n 472, [153]–[162]. 500 (icty) Milutinović – Trial, above n 472, [157]. 501 (icty) Milutinović – Trial, above n 472, [158]. 502 (icty) Milutinović – Trial, above n 472, [160], [162]. 503 (icty) Prosecutor v Šainović et al. (Appeals Chamber Judgment), Case No IT-05-87-A (23 January 2014) (‘Šainović – Appeal’), [280]. 504 (icty) cdf – Appeal, above n 92, [314]–[320].

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The question must be resolved by considering the fundamental role of the mens rea. That is to require that a person accused of committing a crime against humanity is aware of the context in which their actions are c­ ommitted – i.e. to provide a subjective nexus between an accused and the offence, to provide a subjective nexus between the offence and the chapeau, and to ensure that the accused is aware of the context in which their crimes are committed. Seen in this light, a minimum requirement is that the accused possessed the mens rea. The question then is whether it is sufficient. The ultimate upshot from Milutinović is that a crime against humanity ­requires that at least one of the direct perpetrators of a crime against humanity possesses the relevant mens rea, whether that be the high-ranking members who ordered the offences or the low ranking members who carried out any order. It is not sufficient only that it be possessed by a person accused by way of a form of derivative liability such an aiding or abetting or command responsibility. This means that where an accused is charged on such a basis, it will be necessary not only to establish that the accused had the mens rea but also that at least one of the direct perpetrators had the requisite mens rea. While the jurisprudence in the icc is unclear at this stage, the same result would appear to follow. Article 7(1) makes clear that the accused must have knowledge of the attack. Further, the Elements of Crimes makes clear in ­respect of each underlying crime that it must be the perpetrator – in the sense of the direct perpetrator of the underlying crime – who must possess the relevant mens rea. The position has, however, not finally been settled in the early decisions of the icc. On the one hand, some Pre-Trial Chambers appear to have focused on the accused and even suggested that the mens rea element is established per se in the context of determining individual criminal responsibility.505 On the other hand, other Chambers have enunciated the test by focusing on the perpetrator only.506 For instance, in Bemba Gombo, the Pre-Trial C ­ hamber 505 (icc) Kenya – Authorisation Decision, above n 24, [79] (finding that ‘[i]n light of the nature of the current stage of the proceedings, bearing in mind that there is presently no suspect before the Court, the Chamber considers that the last requirement [i.e. knowledge of the attack] cannot be adequately addressed at this stage, as knowledge is an aspect of the mental element under article 30(3) of the Statute’). Interestingly, in subsequent confirmation decisions in respect of the Kenya situation, the Pre-Trial Chambers have appeared to treat the mens rea requirement as being established by the establishment of individual criminal responsibility: Ruto – Confirmation, above n 284, [163] and Muthaura – Confirmation, above n 284, [415], [417] (although see [105] and [293]). 506 (icc) Katanga – Confirmation, above n 109, [401] (citing Paragraph 2 of the Introduction to Article 7, Elements of Crimes); Bemba Gombo – Confirmation, above n 24 [87]–[89],

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held specifically that the accused’s mental state was relevant to individual criminal responsibility, while the mens rea element ‘pertains to the knowledge of the attack by the alleged direct perpetrators, namely the Mouvement pour la Liberation du Congo … troops in the field’.507 The same position was adopted by the Trial Chamber in Bemba Gombo.508 The important qualification in Bemba Gombo, however, is that it concerned an accused charged by way of command responsibility. As such, the approach adopted is entirely consistent with the approach in Milutinović. The better view is that the position should be the same as under customary international law. 8.2.2 mens rea: Knowledge Notwithstanding the controversy in respect of who must possess the requisite mens rea, the ad hoc Tribunals have held that the mens rea element will be satisfied where the relevant person (whether that be perpetrator or accused):509 • knows that there is a widespread or systematic attack against a civilian population; and • knows that the conduct of the physical perpetrator is part of that attack. This approach appears to have been followed in the icc. The icc Elements of Crimes requires that a crime be committed with ‘knowledge of the attack’. This has been articulated either as being that the person ‘knew that the conduct was part of or intended the conduct to be part of’ the attack510 or that

[126]. However, the Pre-Trial Chamber in Katanga took the opposite approach in application: see [417] (looking to the accused to resolve the mens rea element). 507 (icc) Bemba Gombo – Confirmation, above n 24 [89]. 508 (icc) Bemba Gombo – Trial, above n 76, [168]. 509 (icty) Kunarac – Appeal, above n 22, [99], [102] (affirming Kunarac – Trial, above n 22, [434]), followed in Blaškić – Appeal, above n 91, [124]; Kordić – Appeal, above n 50, [99]; (ictr) Akayesu – Appeal, above n 147, [467]; Semanza – Trial, above n 24, [332]; G ­ acumbitsi – Appeal, above n 305, [86]; Bagosora – Appeal, above n 88, [389]; (scsl) cdf – Appeal, above n 92, [314]; afrc – Trial, above n 25, [221]; ruf – Trial, above n 40, [91]; cdf – Trial, above n 5, [121]; (eccc) Case 002/01 – Trial, above n 24, [191]; and (iht) 1991 Incidents Case – Summary, above n 174, 111. See also (icty) Tadić – Appeal, above n 24, [248] (‘the accused must have known that his acts fit into such a pattern [of widespread or systematic crimes directed against a civilian population]’;) (Bangladesh) Kamaruzzaman – Judgment, above n 464, [133] (‘aware of [the] context’). 510 (icc) Katanga – Confirmation, above n 109, [401]–[402]; See also [401] (‘It may be noted that the ad hoc tribunals have understood this phrase to mean that the perpetrator knew there was an attack on a civilian population, and that his or her acts were part of that

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the perpetrator was aware of the attack and that the acts form part of the attack.511 (a) Knowledge of the Attack The first aspect of the mens rea is that the accused must have knowledge of the attack. The ad hoc Tribunals have held that a person must have knowledge of the ‘broader’ or ‘overall’ context in which his acts took place.512 The person need not know the details of the attack,513 share the purpose or goals of the attack,514 or approve of the context in which his or her acts occur.515 Similarly, in the icc, it will only be necessary to establish ‘knowledge of the attack in general terms’ and ‘should not be interpreted as requiring proof that the perpetrator had knowledge of all characteristics of the attack or the precise details of the plan or policy of the State or organization’.516 Evidence of knowledge depends on the facts of a particular case and the manner in which it is proved may vary from case to case.517 The icty Trial Chamber in Dragomir Milošević noted that knowledge of certain events is ­sufficient to warrant the conclusion that the perpetrator had notice of the ­attack’), citing (icty) Kordić – Appeal, above n 50, [99]; Blaškić – Appeal, above n 91, [124]; (ictr) Semanza – Trial, above n 24, [332]; (iht) 1991 Incidents Case – Summary, above n 174, 111. 511 (icc) Bemba Gombo – Confirmation, above n 24 [88]. 512 (icty) Blaškić – Appeal, above n 91, [122]; Limaj – Trial, above n 22, [190]; (ictr) Gacumbitsi – Appeal, above n 305, [86] (approving Gacumbitsi – Trial, above n 56, [332]); Semanza – Trial, above n 24, [332]; Prosecutor v Ntagerura et al. (Judgment), Trial Chamber iii, Case No ictr-99-46 (25 February 2004) (‘Ntagerura – Trial’), [698]; Bagilishema – Trial, above n 191, [84] (scsl) ruf – Trial, above n 40, [90]; (Bangladesh) Kamaruzzaman – Judgment, above n 464, [133]. 513 (icty) Kunarac – Appeal, above n 22, [102] (approving Kunarac – Trial, above n 22, [434]), [104], followed in Blaškić – Appeal, above n 91, [122] (regarding knowledge of the precise details of the plan), Galić – Trial, above n 129, [148], Limaj – Trial, above n 22, [190], Milošević, D – Trial, above n 110, [929], Đorđević – Trial, above n 193, [1594], (scsl) ruf – Trial, above n 40, [90]; (eccc) Case 002/01 – Trial, above n 24, [191]. 514 (icty) Kunarac – Appeal, above n 22, [103] (citing (Israel) Enigster – Trial, above n 108, [13]), followed in Blaškić – Appeal, above n 91, [122], [124], Kordić – Appeal, above n 50, [99]; (ictr) Semanza – Trial, above n 24, [332]; Bagilishema – Trial, above n 191, [94]; (scsl) ruf – Trial, above n 40, [90]; (eccc) Case 002/01 – Trial, above n 24, [191]. See also (icty) Tadić – Appeal, above n 24, [248] and [255]–[270] (finding that the crime may be committed for purely personal motives). 515 (icty) Limaj – Trial, above n 22, [190] (citing Kunarac – Appeal). 516 (icc) Laurent Gbagbo – Confirmation, above n 74, [214]. 517 (icty) Blaškić – Appeal, above n 91, [126], followed in (scsl) ruf – Trial, above n 40, [90].

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wider context and nature of the crimes without necessarily having knowledge of every individual attack.518 The ad hoc Tribunals have also held that the perpetrator’s proximity to the area of criminal activity will often support an inference of knowledge of the crimes519 as will the rank, role or position of the defendant.520 The icc appears to follow this approach, noting:521 However, the last element should not be interpreted as requiring proof that the perpetrator had knowledge of all characteristics of the attack or the precise details of the plan or policy of the State or organization. In the case of an emerging widespread or systematic attack against a civilian population, the intent clause of the last element indicates that this mental element is satisfied if the perpetrator intended to further an attack. As noted by Professor Clark, this addresses ‘the extent to which “passive” acquiescence or collusion will be sufficient to represent participation in (or constitute) an attack’ and the scope will be left to the judges of the icc to address.522 Further, the general consensus appears to be that Article 30 of the icc Statute does not apply to the contextual (chapeau) elements.523 The question of a perpetrator/accused’s motive is a separate question from the accused’s knowledge. The accused may act out of purely personal motives unrelated to furthering the attack, provided the nexus elements are s­ atisfied.524 518 (icty) Milošević, D – Trial, above n 110, [929], citing Blagojević – Appeal, above n 99, [102]. 519 (icty) Prosecutor v Limaj et al. (Appeals Chamber Judgment), Case No IT-03-66-A (27 September 2007) (‘Limaj – Appeal’), [218] (citing Blagojević – Trial, above n 37, [483], [748], Prosecutor v Aleksovski (Trial Chamber Judgment), Case No IT-95-14/1-T (25 June 1999) (‘Aleksovski – Trial’), [80], (ictr) Bagilishema – Trial, above n 191, [925]); see also Blagojević – Appeal, above n 99, [66], [75]–[76]; and Milošević, D – Trial, above n 110, [929]. 520 (iht) 1991 Incidents Case – Summary, above n 174, 111. 521 (icc) Elements of Crimes; Bemba Gombo – Confirmation, above n 24 [88]; Katanga – Confirmation, above n 109, [401]. 522 Kriangsak Kittichaisaree, International Criminal Law (Oxford University Press: Oxford, 2001) 328–329. 523 Donald Piragoff and Darryl Robinson, ‘Article 30 – Mental Element’, in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court – Observer’s Notes, Article by Article (2nd ed, ch Beck etc.: Munich, 2008) 853; and Maria Kelt and Herman von Hebel, ‘What Are the Elements of Crimes?’, in Roy Lee (Ed), The International Criminal Court: Elements of Crimes and Rules of Evidence (Transnational Publishers: New York, 2001) 13–18. 524 (icty) Tadić – Appeal, above n 24, [248], [252], [255]–[270], [272], followed in Kunarac – Appeal, above n 22, [103], Blaškić – Appeal, above n 91, [124], Kordić – Appeal, above

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Further, the accused need not act out of any discriminatory motives525 and need not intend that their acts be directed against the targeted population.526 Nonetheless, evidence that acts were committed for purely personal reasons could be indicative of a ‘rebuttable assumption’ that he was not aware that his acts were part of that attack.527 This may lead to some odd results. For example, if two persons are charged with rape – both acting out of private motives – one will have committed a crime against humanity, if aware of the attack at the time, and the other will be innocent of that crime, if unaware of the attack. (b) Knowledge that the Acts Form ‘part of’ the Attack The second aspect of the mens rea is that the perpetrator/accused knew that their acts formed part of the attack. As Bassiouni points out, if persons, because of the limited role played, are honestly unaware that they have contributed to a crime against humanity, the required mens rea cannot be made out.528 While the first part of the mens rea usually obtains the majority of the attention, this second part arose in the icty trial of Mrkšić, where the accused were acquitted of crimes against humanity on the basis that this element was not present. On 20 and 21 November 1991, in the final days of Serb siege of the Croat city of Vukovar, 194 people were taken from the Vukovar hospital to Ovčara, where they were tortured and executed.529 181 of these people were found to be in the Croatian military.530 Further, the crimes in Ovčara were found to have been directed against a specific group of individuals, the victims of the crimes were selected based on their perceived involvement in the Croatian armed forces, and as such treated “differently from the civilian population”.531

n 50, [99] (ictr) Gacumbitsi – Appeal, above n 305, [103], and (scsl) ruf – Trial, above n 40, [90]. 525 (icty) Tadić – Appeal, above n 24, [282]–[292], followed in (ictr) Akayesu – Appeal, above n 147, [467]. 526 (scsl) ruf – Trial, above n 40, [90]. 527 (icty) Kunarac – Appeal, above n 22, [103], followed in ruf – Trial, above n 40, [90], fn 193. See also (icty) Milutinović – Trial, above n 472, [161], fn 297 (‘this holding seems appropriate only in the context of a perpetrator-accused. In light of this Trial Chamber’s views of the distinction between a physical perpetrator and a non-perpetrator accused, the fact that the offence was actually physically committed for purely personal reasons would be irrelevant to the question of whether that offence constituted a crime against humanity’). 528 M. Cherif Bassiouni, Introduction to International Criminal Law (Transnational Publishers: New York, 2003) 281–289. 529 (icty) Mrkšić – Appeal, above n 158, [3]. 530 (icty) Mrkšić – Trial, above n 216, [479], [581]. 531 (icty) Mrkšić – Appeal, above n 158, [42], citing Mrkšić – Trial, above n 216, [474]–[476].

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Accordingly, the Appeals Chamber found that such a finding ‘precludes that they intended that their acts form part of the attack against the civilian population of Vukovar and renders their acts so removed from the attack that no nexus can be established.’532 It was not sufficient that the crimes occurred two days after the fall of Vukovar, within the geographical scope of the attack, the perpetrators also participated in the attack on Vukovar and that the perpetrators ‘harboured intense feeling[s] of animosity towards persons they perceived as enemy forces’.533 8.2.3 No Requirement of Discriminatory Intent or Motive As noted above, under customary international law and the Rome Statute, there is no requirement that crimes against humanity be committed with any discriminatory intent or motive (with the exception of the crime of persecution).534 The ictr statute required that crimes against humanity be committed ‘on national, political, ethnic, racial or religious grounds’. However, as ­discussed in Chapter 5, this was likely inserted into the statute in substitution for the removal of the war nexus that was included in its counterpart statute for the icty. Furthermore, the requirement received no support during the Rome Conference and was accordingly dropped from the Rome Statute. On top of this, the ad hoc Tribunals have confirmed that, with the exception of the underlying crime of persecution, no discriminatory intent or motive is required for crimes against humanity.535 This view is confirmed by most writers.536 8.2.4 Standard of ‘knowledge’ Required The requisite standard of knowledge is that the accused either ‘knew’ or ‘had reason to know’. The majority of Chambers have simply held that the mens rea component requires ‘knowledge’ (without explaining whether this can only mean actual knowledge).537 However, a number of Chambers, including the

532 (icty) Mrkšić – Appeal, above n 158, [42]. 533 (icty) Mrkšić – Appeal, above n 158, [42]. 534 (icty) Tadić – Appeal, above n 24, [282]–[292], followed in (ictr) Akayesu – Appeal, above n 147, [467]. 535 (icty) Tadić – Appeal, above n 24, [297]; (ictr) Akayesu – Appeal, above n 147, [464]. 536 Schabas, above n 45, 157. 537 (icty) Tadić – Appeal, above n 24, [248]; Kordić – Appeal, above n 50, [99]; and Blaškić – Appeal, above n 91, [124]–[126]; (ictr) Akayesu – Appeal, above n 147, [467]; Semanza – Trial, above n 24, [332]; Gacumbitsi – Appeal, above n 305, [86] (affirming Gacumbitsi – Trial, above n 56, [302]); Bagosora – Appeal, above n 88, [389]; and (scsl) afrc – Trial, above n 25, [221].

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scsl Appeals Chamber in the cdf Case, have held that it is sufficient that the accused possesses ‘actual or constructive knowledge’ or has ‘reason to know’.538 Some controversy has surrounded precisely what the ‘reason to know’ standard entails. The mens rea requirement was controversial in Finta and split the Supreme Court of Canada.539 Ultimately, the majority accepted the expert view of Professor Bassiouni and held that the defendant must know or be aware of ‘the facts or circumstances which would bring the acts within the definition of crimes against humanity’.540 The majority ruling was criticised at the time as placing an unnecessary burden on the prosecution.541 Whilst the Statutes of the icty and the ictr are silent on the matter, Finta was followed by the Trial Chamber in Tadić without analysis, probably because an alibi defence was raised rather than any question of intent.542 Initially, the icty Appeals Chamber in Kunarac found that it would suffice if the perpetrator ‘took the risk’ that their acts formed part of the attack.543 This view was subsequently followed, including by the spet544 and the Supreme Court of Canada in Mugesera.545 Later, the icty Appeals Chamber in Blaškić appeared to reject that standard.546 While the Appeals Chamber decision was

538 (icty) Tadić – Trial, above n 5, [659]; Kupreškić – Trial, above n 99, [556]–[557]; (ictr) Kayishema – Trial, above n 56, [133]; Musema – Trial, above n 54, [206]; Prosecutor v Georges Ruggiu (Judgment and Sentence), Trial Chamber i, Case No ICTR-97-32-I (1 June 2000) (‘Ruggiu – Trial’), [20]; (scsl) cdf – Appeal, above n 92, [314] (implicitly accepting the Trial Chamber’s characterisation – see cdf – Trial, above n 5, [121]); and ruf – Trial, above n 40, [90]. 539 (Canada) Regina v Finta [1994] 1 scr 701 (‘Finta – Supreme Court’), 820 (Lamer cj, Gonthier, Cory, and Major jj, with La Forest, L’Heureux-Dubé and McLachlin jj. dissenting). 540 (Canada) Finta – Supreme Court, above n 540, 820. See also Chapter 3, Section 4.3. 541 See Judith Bello and Irwin Cotler, ‘Regina v Finta’ (1996) 90(3) American Journal of International Law 460. 542 (icty) Tadić – Trial, above n 5, [658]–[659]. 543 (icty) Kunarac – Appeal, above n 22, [102] (affirming Kunarac – Trial, above n 22, [434]); Krnojelac – Trial, above n 22, [59]; and (Canada) Mugesera – Supreme Court, above n 55, [173]. 544 (spet) Los Palos – Judgment, above n 22, [642]. 545 (Canada) Mugesera – Supreme Court, above n 55, [173], citing (icty) Tadić – Appeal, above n 24, [248], Kunarac – Trial, above n 22, [434], Blaškić – Trial, above n 22, [251]; and (ictr) Ruggiu – Trial, above n 539, [20]. 546 (icty) Blaškić – Appeal, above n 91, [126] (‘The Trial Chamber, in stating that it “suffices that he knowingly took the risk of participating in the implementation of the ideology, policy or plan,” did not correctly articulate the mens rea applicable to crimes against humanity.’)

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not entirely clear,547 a number of Chambers and writers since have treated the Blaškić Appeals Chamber as rejecting the ‘took the risk’ test.548 Nonetheless, the later icty Appeals Chamber in Šainović clarified that the Blaškić Appeals Chamber did not intend to depart from the earlier decision in Kunarac and therefore found that it will suffice that the accused ‘took the risk’ that their acts formed part of the attack549 In the result, as has been pointed out elsewhere, this formulation would catch a perpetrator of a crime at a moment when the attack is only imminent or only just beginning – i.e. where positive knowledge of the attack cannot exist by definition.550 In the icc, the Elements of Crimes states that an accused must have either knowledge of the attack or an intention to further the attack, but that the mens rea element ‘should not be interpreted as requiring proof that the perpetrator had knowledge of all characteristics of the attack or the precise details of the plan or policy of the State or organization’. icc Pre-Trial Chamber ii has held that ‘knowledge’ means ‘awareness that a circumstance exists or a consequence will occur in the ordinary course of events’551 (emphasis added). This is not inconsistent with Article 33 because in the case of defendants who do not have such knowledge, any orders being followed cannot be ‘orders to commit crimes against humanity’. 8.2.5 Standard of Proof Evidence of knowledge depends on the facts of a particular case; as a result, the manner in which this legal element may be proved may vary from case to case.552 Difficulties may arise, however, as to proof of the relevant knowledge. The Tribunals have said because ‘explicit manifestations of criminal intent 547 And the decision may also be read as a criticism of the Trial Chamber’s reference to a ‘plan or policy’: The sentence immediately following the one cited above is: ‘Moreover, as stated above, there is no legal requirement of a plan or policy, and the Trial Chamber’s statement is misleading in this regard’. See also ambiguity at [166]. 548 (icty) Limaj – Trial, above n 22, [190]; (scsl) afrc – Trial, above n 25, [222]. See also Schabas, above n 45. 549 (icty) Šainović – Appeal, above n 504, [271]. Similarly, the Appeals Chamber in Blagojević appeared to accept it was sufficient that the accused knew enough to ‘put him on notice’: see Blagojević – Appeal, above n 99, [102]. 550 Kai Ambos, ‘Crimes Against Humanity and the International Criminal Court’, in Leila Nadya Sadat (ed), Forging a Convention for Crimes Against Humanity (Cambridge University Press: Cambridge, 2011) 289–290. 551 (icc) Bemba Gombo – Confirmation, above n 24, [87]. 552 (icty) Blaškić – Appeal, above n 91, [126], followed in Limaj – Trial, above n 22, [190].

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are … often rare’, ‘the requisite intent may normally be inferred from relevant facts and circumstances’.553 The icc has similarly held that the relevant knowledge may be inferred from circumstantial evidence.554 While the list is not exhaustive, some of the factors listed by Tribunals and Courts as being relevant factors in assessing whether the ‘knowledge’ element is present to include: • the perpetrator’s proximity to the area of criminal activity;555 • the scale of the attack and how visible the attacks were;556 and • the seniority of the person.557 Further, icc Pre-Trial Chamber i in the Katanga Confirmation Decision has held that the relevant factors will include the following:558 • the accused’s position in the military hierarchy; • whether the accused assumed an important role in the broader criminal campaign; • the accused’s presence at the scene of crimes; • the accused’s references to the superiority of his group over the enemy group; and • the general historical and political environment in which the acts occurred. For instance, the Iraqi Special Tribunal held in the case of Ali Hassan Al-Majid (‘Chemical Ali’) that the defendant was the Supreme Leader of the Northern Zone of Iraq during the relevant period. In that area at the time, there was an attack targeting Kurdish civilian launched whereby ‘[a]ll the state’s military and civil capabilities were exploited’ in the attack, thousands of civilians were

553 (ictr) Prosecutor v Kayishema (Appeals Chamber Judgment), Case No ICTR-95-1-A (1 June 2001), [159], followed in Prosecutor v Kamuhanda (Appeals Chamber Judgment), Case No ICTR-99-54A-A (19 September 2005), [87]. 554 (icc) Katanga – Confirmation, above n 109, [402] 555 (icty) Limaj – Appeal, above n 520, [218], followed in Milošević, D – Trial, above n 110, [929]. See also Blagojević – Appeal, above n 99, [66], [75]–[76]. 556 (icty) Prosecutor v Gotovina et al. (Trial Chamber Judgment), Case No IT-06-90-T (15 April 2011), [1722], (iht) Anfal – Trial, above n 50, 520–521. 557 (BiH) Marko Samardžija (Second Instance Judgment), Case No X-KRŽ-05/07 (3 November 2006), 17; (iht) Anfal – Trial, above n 50, 520–521. 558 (icc) Katanga – Confirmation, above n 109, [402]; see also (iht) 1991 Incidents Case – S­ ummary, above n 174, 111, where a similar list appears to have been adopted.

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killed, and chemical weapons were used.559 Whether these factors would have established the mens rea itself is unclear as the Tribunal possessed evidence of letters and documents showing Ali ordering such crimes.560 As has been discussed in Chapter 10, lesser states of mind – e.g. an appreciation of certain risks or wilful blindness – may be relevant to drawing the inference that the necessary mental state was present.561 559 (iht) Anfal – Trial, above n 50, 521–522. 560 (iht) Anfal – Trial, above n 50, 523. 561 (iht) See Chapter 10, Section 1.2.3(b).

Chapter 10

Crimes against Humanity under Customary International Law and the icc: The Underlying Crimes Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.1

∵ 1 Introduction 1.1 This Chapter This Chapter sets out in detail the elements of the underlying crimes for the purpose of crimes against humanity both under customary international law and the icc Statute. The chapter addresses murder (Section 2), extermination (Section 3), enslavement (Section 4), deportation and forcible transfer (­Section 5), imprisonment or other serious deprivation of liberty (Section 6), torture (Section 7), sexual offences (Section 8), persecution (Section 9), ­enforced disappearance (Section 10) and other inhumane acts (Section 11). The Chapter draws on the jurisprudence of the international and internationalised tribunals, the icc and state courts.2 This Chapter seeks to address crimes against humanity specifically and does not attempt to include all the relevant principles of international criminal law that may be applicable to crimes against humanity (i.e. as such ­principles would apply to all international crimes, including war crimes and genocide). For instance, many underlying crimes (e.g. murder and torture) may be * The authors would like to acknowledge the assistance of Raphael de Vietri in commenting on this Chapter. 1 (Nuremberg) Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945 – 1 October 1946 (26 July 1946) vol xix (‘Nuremberg Judgment’). 2 See Chapter 5 (considering the international and internationalised tribunals), Chapter 6 (considering the icc) and Chapter 7 (considering state courts).

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004347687_011

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c­ ommitted as both a crime against humanity and as a war crime. Similarly, principles of mens rea and individual criminal responsibility applied in the context of international criminal law will be largely similar as between the international crimes. 1.2 The icc Before addressing each of the underlying crimes, a number of matters should be noted about the icc. The general principles concerning how the icc Statute is to be interpreted in relation to the jurisprudence of the international and internationalised tribunals and customary international law has already been discussed in Chapter 6.3 Those same principles apply to interpreting the underlying crimes. In interpreting the underlying crimes, two further matters should be noted: first, some relevant background to the underlying crimes in Article 7; and secondly, the general principles to be applied in ascertaining the mens rea under Article 7. 1.2.1 The Specific Crimes under Article 7 Article 7 has expanded the list of crimes against humanity over those in the London Charter. Whilst its ‘clarifications’ of the underlying crimes at paragraph (2),4 have brought much needed specificity to some of the enumerated crimes, there is still much room for future interpretation. This is particularly the case where the conduct is carried out under colour of local law or authority. For example, consider the case of an execution after a military trial, a state sponsored transfer of persons for migration reasons or a preventative detention of perceived terrorist suspects, all of which may have occurred under state emergency powers. As crimes against humanity, the icc would have to decide if such conduct amounts to murder, forcible transfer or imprisonment. Some crimes in Article 7 are said to depend upon a breach of international law. For example, the crime of imprisonment can occur if the imprisonment is ‘in violation of fundamental rules of international law’. At the Rome Conference a number of Arab States were suspicious of such a loose definition.5 They proposed that the draft be amended to state that the rules have ‘­universal 3 See Chapter 6, Section 5.1. 4 McCormack prefers this term to definitions because they still leave much room for future interpretation: Timothy McCormack, ‘Crimes against Humanity’ in Dominic McGoldrick, Peter Rowe and Eric Donnelly (eds), The Permanent International Criminal Court: Legal and Policy Issues (Hart Publishing: Oxford, 2004), 183. 5 Kriangsak Kittichaisaree, International Criminal Law – Beyond the Nuremberg Legacy (3rd ed, Oxford University Press: Oxford, 2009) 100.

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recognition’, but this was deleted in the final drafts.6 Further, a breach of ­international human rights law, even if ‘universal’, does not necessarily establish an international crime.7 It is international humanitarian or criminal law which establishes individual criminal responsibility, but its contours, particularly, outside the context of war, are often unclear. It was this uncertainty which the definitions in Article 7 were intended to address. The question was considered again when drafting the Elements of Crimes. Some states said ‘fundamental rights’ in human rights law are too numerous and this will breach the principles of legality.8 In the end, the Introduction to the Elements of Crimes states that Article 7 as a whole must be strictly construed and ‘require conduct which is impermissible under generally applicable international law, as recognized by the principal legal systems of the world’. The meaning to be given to this wording is not clear. The better view may be that the enumerated crimes in Article 7 must occur in circumstances which are manifestly unlawful, meaning conduct so clearly brutal or arbitrary that it can immediately be recognised as being both criminal according to the penal laws of the community of nations and a breach of international law, so as to give rise to individual responsibility. As Bassiouni remarks: ‘“Crimes against humanity” are mal in se acts, which are manifestly contrary to the norms, rules and principles of international criminal law, and to those of the world’s major criminal justice systems, for which most reasonable persons would not [sic] have consciousness of wrongdoing.’9 A number of sources, both domestic and international, may have to be r­ elied upon in order to establish what is manifestly unlawful. In the Justice case, Nazi state officials, who administered the courts in a perverted way to punish enemies of the state, were guilty of crimes against humanity because their use of the legal system was manifestly arbitrary and hence, ‘unlawful’.10 Similarly, 6 7

8 9 10

Kittichaisaree, above n 6. International human rights law is generally directed to State responsibility rather than individual responsibility, see, for example: M. Cherif Bassiouni, ‘International Criminal Law and Human Rights’ (1982) 9 Yale Journal of World Public Order 193. Bassiouni and Wise warn that failing to distinguish between the two is a ‘fertile source of confusion’: M. Cherif Bassiouni and Edward M. Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law (Martinus Nijhoff: Dordrecht, 1995), 6, fn 11. Kittichaisaree, above n 6, 100–101. M. Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application (Cambridge University Press: New York, 2011), 517. See (Nuremberg) United States v Altstötter et al., reprinted in 3 Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No 10, 954 (1951) (‘The Justice Case’).

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Article 33 allows a defence of superior orders if the ‘order was not manifestly unlawful’ but it goes on to say that ‘orders to commit’ ‘crimes against ­humanity … are manifestly unlawful’. This suggests that the assumption was made that all crimes against humanity, unlike war crimes, involve ‘manifestly unlawful’ conduct. Another controversy at the Rome Conference was whether or not the underlying crimes could be committed by acts of omissions. As Professor Clark of the Samoa Delegation has explained, a small minority of participants thought that liability for omission was inappropriate.11 In the result therefore, despite the remaining participants supporting its inclusion, no attempt was made to define ‘acts’ or ‘conduct’. According to some, the understanding was that the circumstances when an omission could suffice would be left to the court.12 However, others suggest that because most crimes refer only to ‘acts’, the starting point would be that they would not be included.13 To date, the early decisions of the icc have intimated that omissions will suffice in at least some circumstances.14 This view appears to have some scholarly support.15 1.2.2 Mens Rea (a) The Statutory Standard – ‘intent and knowledge’ In interpreting the mens rea for the underlying crimes for the purposes of crimes against humanity, the starting point is Article 30 of the icc Statute. 11

Roger S. Clark, ‘The Mental Element in International Criminal Law: The Rome Statute of the International Criminal Court and the Elements of Offences’ (2001) 12 Criminal Law Forum 291, 303–304. 12 Donald Piragoff and Darryl Robinson, ‘Article 30 – Mental Element’, in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court – Observer’s Notes, Article by Article (2nd ed, ch Beck etc: Munich, 2008) 858–859. 13 Albin Eser, ‘Mental Elements’ in Antonio Cassese, Paula Gaeta and John R.W.D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford ­University Press: Oxford, 2002) 912; Erkin Gadirov and Roger Clark, ‘Article 9 – Elements of Crimes’, in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court – Observer’s Notes, Article by Article (2nd ed, ch Beck etc: Munich, 2008) 515. 14 (icc) Prosecutor v Thomas Lubanga Dyilo (Decision on the Confirmation of Charges), PreTrial Chamber i, ICC-01/04-01/06-803-tEN (7 February 2007) (‘Lubanga – Confirmation’), [351]–[355]. 15 Maria Kelt and Herman von Hebel, ‘What Are the Elements of Crimes?’, in Roy Lee (Ed), The International Criminal Court: Elements of Crimes and Rules of Evidence (Transnational Publishers: New York, 2001) 26; and Eser, above n 14, 913.

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As explained by icc Pre-Trial Chamber ii in Bemba Gombo, Article 30 requires that, ‘unless otherwise provided’ (including by the Elements of Crimes16), the prosecution must establish that the material elements of the respective crime are committed with ‘intent and knowledge’.17 This effectively sets up a ‘default’ mental element that will apply unless provided to the contrary. The Elements of Crimes clarifies that these mental states may be ‘inferred from relevant facts and circumstance’.18 Article 30 defines ‘intent’ and ‘knowledge’ in respect of conduct, consequences and circumstances:19 • Article 30(2)(a) provides that a person has intention in relation to conduct where the perpetrator ‘means to engage in that conduct’; • Article 30(2)(b) provides that a person has intention in relation to a consequence where the perpetrator ‘means to cause that consequence’ or is ‘aware that it will occur in the ordinary course of events’; and • Article 30(3) provides that a person has knowledge of something where they are aware that a circumstance exists or a consequence will occur in the ordinary course of events. While these principles appear clear in the abstract, they give rise to ambiguity when applied to particular crimes. One question that arises is whether the person must have intention and knowledge in respect of each particular material element. Another question that arises is whether each material element must 16 (icc) Lubanga – Confirmation, above n 15, [356]; cf. Claus Kress, ‘The Crime of Genocide under International Law’ (2006) 6 International Criminal Law Review 461, 485. 17 As cited in (icc) Bemba Gombo (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo), PreTrial Chamber iii, ICC-01/05-01/08 (15 June 2009) (‘Bemba Gombo – Confirmation’), [136]. See also icc, Elements of Crimes, General Introduction, [2]. 18 (icc) icc Elements of Crimes, General Introduction, [3]. 19 The fact that both intent and knowledge is required for each material element (as opposed to each crime) is clear from paragraph 2 of the General introduction to the Elements of Crimes (‘Where no reference is made in the Elements of Crimes to a mental element for any particular conduct, consequence or circumstance listed, it is understood that the relevant mental element, i.e. intent, knowledge or both, set out in article 30 ­applies’) (­emphasis added). The same conclusion is reached by Gerhard Werle and Florian Jessberger, ‘“Unless Otherwise Provided” – Article 30 of the icc Statute and the Mental Element of Crimes under International Criminal Law’ (2005) 3(1) Journal of International Criminal Justice 35, 38–39.

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be either conduct, consequence or circumstance, or whether a material element may contain a combination of conduct, consequence or circumstance. This question is significant as – at least where not otherwise provided – the default mental element that will apply depends on the nature of the material element it is being applied to. For instance, the offence of murder as a crime against humanity requires that ‘[t]he perpetrator killed one or more persons’. Is this: • A single material element of conduct, being killing one or more persons (which must be intended in the sense of the person meaning to kill one or more persons)? • A single material element of consequence of killing one or more persons (which must be intended in the sense of the person either meaning to kill one or more persons or being aware that the killing would occur in the ordinary course of events)? • An element comprising both: (a) a component of conduct, being the performance of some act or omission (which must be intended in the sense of the person meaning to engage in that act or omission); and (b) a component of consequence, being that the act or omission caused the death of one or more persons (meaning that the person must have meant to cause that consequence or been aware that it would occur in the ordinary course of events)? Similarly, does the perpetrator need to have both intention and knowledge. If so, how does knowledge apply to conduct (if at all)? How does intention apply to a circumstance (if at all)? Presumably, knowledge can only apply to a component or element of consequence or circumstance and intention can only apply to a component or element of conduct or consequence. While not entirely clear, Article 30 does not necessarily suggest that material elements may be only conduct, consequence or circumstance. Had the drafters sought to do so, they could have referred to the element of conduct, the element of consequence and the element of circumstance. No such wording is used. The Elements of Crimes provide two clues to solving these issues. First, paragraph 2 to the General Introduction states: Where no reference is made in the Elements of Crimes to a mental element for any particular conduct, consequence or circumstance listed, it is understood that the relevant mental element, i.e., intent, knowledge or both, set out in article 30 applies.

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Secondly, paragraph 7 to the General Introduction states: The elements of crimes are generally structured in accordance with the following principles: (a) As the elements of crimes focus on the conduct, consequences and circumstances associated with each crime, they are generally listed in that order; (b) When required, a particular mental element is listed after the affected conduct, consequence or circumstance; (c) Contextual circumstances are listed last. The first extract proceeds upon the assumption that that the relevant mental element for each material element may be either intent alone, knowledge alone or both intent and knowledge. This suggests that a material element may be a combination of conduct, consequence and circumstance. For, that is the only way in which a material element could require both intent and knowledge. Even a consequence may be established by either intent or knowledge – it does not require intent and knowledge. The second extract is less clear and suggests only that conduct, consequences and circumstances will generally appear in that order. The language used is that the Elements of Crimes focus on the conduct, consequences and circumstances – not that the elements ­constitute ­either the conduct, consequences or circumstances of the offence. Ultimately, there appear to be two conclusions. First, the requirement in ­Article 30 that, unless otherwise provided, material elements are to be committed with ‘intent and knowledge’ is intended to mean only intent and knowledge to the extent that those elements are required in respect of a given material element. Where an element contains only conduct, only intention is required. Where an element contains only circumstance, only knowledge is required. Looking at an offence in its entirety, however, each offence contains both components of intention and components of knowledge. Secondly, each material element may comprise any one or more of conduct, consequence or circumstance. The icc Statute requires that each such component is to be identified in respect of each material element and the default mental element to be applied accordingly (where the mental element is not otherwise provided). The Court will be required to determine which components are ‘conduct’, which are ‘consequences’ and which are ‘circumstances’.20 Logic dictates that conduct with be some act or omission, consequences will 20

Clark, above n 12, 301–302 and 306–307.

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be the result of any such act or omission, and circumstances will be the circumstances in which the conduct or consequence occurs. In the example of murder, the element that the perpetrator killed one or more persons should be read in line with the third possibility described above, namely, as requiring both an element of conduct (which must be intended) and consequence (which must be intended or known). Two final points should also be noted. First, Paragraph 4 provides that ‘with respect to mental elements associated with elements involving value judgment, such as those using the terms “inhumane” or “severe”, it is not necessary that the perpetrator personally completed a particular value judgment, unless otherwise indicated’. Secondly, in construing the mens rea of the underlying crimes, it must be ­remembered that Article 32 of the icc Statute provides for defences in the form of mistake of fact and law. It has been pointed out, however, that this Article may be superfluous whenever Article 30 applies to require ‘intent and knowledge’ of all the elements.21 icc Pre-Trial Chamber i in Lubanga has clarified that the mistake of law exception is limited to where the accused is unaware of a normative objective element of the crime as a result of not realising its social significance (its everyday meaning).22 (b)

Proving Intent and Knowledge for ‘conduct’, ‘consequences’ and ‘circumstances’ In relation to conduct, the mental element appears relatively clear. Conduct elements will require proof of direct intention, being conduct that was voluntary and willed and therefore excluding conduct such as automatism.23 In relation to consequences and circumstances, the mental element is less clear. So far, the icc Pre-Trial Chambers have been split on the proper interpretation of Article 30 in this context. All Chambers have so far accepted that Article 30 includes at least:24 21

Elewa Badar, “The Mental Element in the Rome Statute of the International Criminal Court: A Commentary from a Comparative Criminal Law Perspective” (2008) 19 Criminal Law Forum 473, 515. 22 (icc) Lubanga – Confirmation, above n 15, 315–316 (footnotes omitted); cf. Thomas Weigend, “Intent, Mistake of Law, and Co-perpetration in the Lubanga Decision on Confirmation of Charges” (2008) 6(3) Journal of International Criminal Justice 471, 476. 23 Werle and Jessberger, above n 20, 41 (and commentary cited therein). 24 (icc) Bemba Gombo – Confirmation, above n 18, [135], [357]–[359]; and Prosecutor v Germain Katanga (Trial Chamber Judgment), ICC-01/04-01/07-3436-tENG (7 March 2014) (‘Katanga – Trial’), [774].

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dolus directus in the first degree, or direct intent (where the perpetrator ‘knows that his or her actions will bring about the material elements of the crime and carries out these acts or omissions with the purposeful will (intent) or desire to bring about those material elements of the crime’25); and dolus directus in the second decree, or oblique intention26 (where the perpetrator is aware that the material elements of the crime will be the ‘almost inevitable outcome’ of his acts or omissions, i.e., the suspect is aware that the consequence ‘will occur in the ordinary course of events’27).

Beyond this, however, the Pre-Trial Chambers have so far been split. On the one hand, Pre-Trial Chamber i in Lubanga considered that Article 30 also incorporated the concept of dolus eventualis.28 In line with the icty Trial Chamber’s­ finding in Stakić (discussed below at 2.3), the Chamber understood this to mean that the perpetrator is ‘aware of the risk that the objective elements of the crime may result from his or her actions or omissions’ and ‘accepts such an outcome by reconciling himself or herself with it or consenting to it’. The Pre-Trial Chamber understood this to include both where a perpetrator­ performs the conduct aware of the ‘substantial likelihood’ that the consequence would result as well as where the risk was lower but the perpetrator clearly accepted the result (e.g. in the context of murder, with ‘manifest indifference to the value of human life’).29 The Chamber clarified, however, that it did not include what the chamber referred to as recklessness. That is, it is not 25 (icc) Lubanga – Confirmation, above n 15, [351] (in the context of war crimes), followed in Prosecutor v Katanga and Chui (Decision on the Confirmation of Charges), Pre-Trial Chamber i, ICC-01/04-01/07-717 (13 October 2008) (‘Katanga – Confirmation’), [529]; and Bemba Gombo – Confirmation, above n 18, [358]. 26 (icc) The Pre-Trial Chamber in Bemba Gombo considered that the English law concept of oblique intention is equivalent to dolus directus in the second degree: see Bemba Gombo – Confirmation, above n 18, [358], citing Anthony Hooper and David Ormerod, Blackstone’s Criminal Practice (Oxford University Press: Oxford, 2009) 19; Itzhak Kugler, ‘The Definition of Oblique Intention’ (2004) 68 The Journal of Criminal Law 79; and Glanville Williams, ‘Oblique Intention’ (1987) 46(3) Cambridge Law Journal 417, 422. 27 (icc) Lubanga – Confirmation, above n 15, [352]; and Katanga – Confirmation, above n 26, [530], followed in Bemba Gombo – Confirmation, above n 18, [359]. 28 (icc) Lubanga – Confirmation, above n 15, [352]. 29 (icc) Lubanga – Confirmation, above n 15, [353]–[354], citing Piragoff and Robinson, above n 13; see also (icty) Prosecutor v Milomir Stakić (Trial Chamber Judgment), Case No IT-97-24-T (31 July 2003) (‘Stakić – Trial’).

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sufficient merely that a person is aware of the likelihood of the outcome – they must also accept that outcome.30 In a later case, Pre-Trial Chamber i in Katanga explicitly did not decide the question of dolus eventualis31 and appeared to consider the second degree ­dolus directus standard as more closely aligned with the standard adopted by the ad hoc Tribunals.32 Further, it should be noted that the Special Panels in East Timor appear to have seen no difference between an awareness that a consequence ‘will occur in the ordinary course of events’ and the ad hoc Tribunal’s standard that the consequence was the likely or probable outcome.33 The view that the standards are not too different also has some academic support.34 On the other hand, Pre-Trial Chamber ii in Bemba Gombo found that the Statute does not extend liability to dolus eventualis, or subjective or ­advertent 30 (icc) Lubanga – Confirmation, above n 15, [355], [438] (‘For instance, where the suspect is aware of the likelihood that the objective elements of the crime would occur as a result of his actions or omissions, and in spite of that, takes the risk in the belief that his or her expertise will suffice in preventing the realisation of the objective elements of the crime. This would be the case of a taxi driver taking the risk of driving at a very high speed on a local road, trusting that nothing would happen on account of his or her driving expertise.’) 31 See, for example (icc) Katanga – Confirmation, above n 26, [531]. 32 (icc) Katanga – Confirmation, above n 26, [530]. After discussing first degree dolus directus, the Pre-Trial Chamber held that the dolus concept ‘also encompasses another form of the concept of dolus which has been explained by the jurisprudence of this Chamber, relied on by the jurisprudence of the ad hoc tribunals and commonly accepted in the legal literature’. (icty) The footnotes for that statement included the icty decisions in Prosecutor v Tadić (Appeals Chamber Judgment), Case No IT–94–1–A (15 July 1999) (‘Tadić – Appeal’) and Stakić – Trial, above n 30, both of which accept the balance of probabilities standard. 33 See (spet) Prosecutor v Joni Marques et al. (Judgment), Special Panel Case No 9/2000 (11 December 2001) (‘Marques – Judgment’), [643]–[644] (apparently accepting both the Rome Conference preparatory discussions and the ad hoc Tribunal authority in Prosecutor v Georges Anderson Nderubumwe Rutaganda (Trial Chamber Judgment), Case No ICTR-96-3-T (6 December 1999) (‘Rutaganda – Trial’), before adopting the ‘ordinary course’ standard); see also Prosecutor v Agostinho Cloe et al (Judgment), Special Panel Case No 4/2003 (16 November 2004) (‘Cloe – Judgment’), [15] (a later judgment adopting the ‘likely’ standard); and (icty) Prosecutor v Kupreškić et al. (Trial Chamber Judgment), Case No IT95-16-T (14 January 2000) (‘Kupreškić – Trial’), [561], where the Trial Chamber found that ‘intent’ includes ‘when it is the actor’s purpose, or the actor is aware that it will occur in the ordinary course of events’. However, it is unclear whether the Chamber was considering only direct intent or indirect intent also. 34 Werle and Jessberger, above n 20, 41. However, the authors there take a more controversial view that ‘unless otherwise provided’ should be read to mean unless otherwise provided by the statute, elements of crimes or customary international law: see 53–55.

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­recklessness.35 What is required is limited to dolus directus in the second d­ egree, namely, the awareness of something ‘close to certainty’, ‘virtual c­ ertainty’ or ‘practical certainty’ – namely, that ‘the consequence will follow, barring an ­unforeseen or unexpected intervention that prevent (sic) its occurrence.’36 The Chamber held that the standard is ‘undoubtedly higher’ than that of requiring the suspect foreseeing the consequences as a ‘mere likelihood or possibility’37 or that the conduct ‘may’ or ‘might’ occur.38 This approach was followed by Trial Chamber ii in Katanga39 and the ‘virtual certainty’ format has been adopted by the Appeals Chamber in Lubanga.40 The Chamber based its view on a ‘literal (textual) interpretation’ of the Statute, namely that the words ‘will occur’ ‘serve as an expression for an event that is “inevitably” expected’41 and that, read with the phrase ‘in the ordinary course of events’, in the view of the Chamber, ‘clearly indicate that the required standard of occurrence is close to certainty.’42 The Chamber held that this interpretation was confirmed by an examination of the travaux préparatoires.43 This was a draft of the Preparatory Committee in 1996 that included the following paragraphs: [4. For the purposes of this Statute and unless otherwise provided, where this Statute provides that a crime may be committed recklessly, a person is reckless with respect to a circumstance or a consequence if: […]]

35 (icc) Bemba Gombo – Confirmation, above n 18, [360]. 36 (icc) Bemba Gombo – Confirmation, above n 18, [362], citing a range of authorities and commentary from the uk on oblique intention. 37 (icc) Bemba Gombo – Confirmation, above n 18, [363], comparing the position of the ad hoc Tribunals. 38 (icc) Bemba Gombo – Confirmation, above n 18, [363], citing Otto Triffterer, ‘The New International Criminal Law – Its General Principles Establishing Individual Criminal Responsibility’, in Kalliopi Koufa (ed), The New International Criminal Law (Sakkoulas: Athens, 2003) 706. 39 (icc) Katanga – Trial, above n 25, [774]–[777]. 40 (icc) Prosecutor v Thomas Lubanga Dyilo (Judgment on the Appeal of Mr Thomas Lubanga Dyilo against his conviction), Appeals Chamber, ICC-01/04-01/06 A 5 (1 December 2016). 41 (icc) Bemba Gombo – Confirmation, above n 18, [362], citing Soanes and Stevenson (eds), Concise Oxford English Dictionary (11th ed, Oxford University Press: Oxford, 2004) 1650– 1651; and Shorter Oxford English Dictionary On Historical Principles (5th ed, Oxford University Press: Oxford, 2002) vol 2, 3641. 42 (icc) Bemba Gombo – Confirmation, above n 18, [362]. 43 (icc) Bemba Gombo – Confirmation, above n 18, [364]–[368].

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[Note. The concepts of recklessness and dolus eventualis should be further considered in view of the seriousness of the crimes considered. Therefore, paragraph 4 would provide a definition of “recklessness”, to be used only where the Statute explicitly provides that a specific crime or element may be committed recklessly. In all situations, the general rule, as stated in paragraph 1, is that crimes must be committed intentionally and knowingly. It was questioned whether further clarification might be required to the above definitions of the various types and levels of mental elements. It was noted that this could occur either in the General Part, in the provisions defining crimes or in an annex […]] The Pre-Trial Chamber understood the ultimate removal of this provision as demonstrating that the drafters abandoned the inclusion of the standard of recklessness.44 As has been pointed out elsewhere, while the idea of dolus eventualis and recklessness has precedence in civil law states and common law states respectively, the exclusion of these concepts runs in parallel to Islamic law where only wilful intention will suffice.45 The question has also split academic opinion, with some agreeing that Article 30 excludes dolus eventualis or recklessness46 and others arguing to the contrary.47 There are a number of points to be made about this discussion. First, there is a range of confusion on precisely what recklessness and ­dolus eventualis mean. Crucially, both Pre-Trial Chambers and Trial C ­ hamber  ii 44 (icc) Bemba Gombo – Confirmation, above n 18, [364]–[368]. 45 See Badar, above n 22, 495. 46 See Antonio Cassese, ‘The Statute of the International Criminal Court: Some Preliminary Reflections’ (1999) 10 European Journal of International Law 144, 153–154; Triffterer, above n 39, 706; Johan Van der Vyver, ‘The International Criminal Court and the Concept of Mens Rea in International Criminal Law’ (2004) 12 University of Miami International & Comparative Law Review 57, 66, 95–97; Werle and Jessberger, above n 20, 53; Leila Nadya Sadat, The International Criminal Court and the Transformation of International Law (Transnational Publishers: Ardsley, 2002) 208 et seq.; William Schabas, Introduction to the International Criminal Court (Cambridge University Press: Cambridge, 2001) 86. 47 Piragoff and Robinson, above n 13, 533–534; Hans-Heinrich Jescheck, ‘The General Principles of International Criminal Law Set Out in Nuremberg, as Mirrored in the icc Statute’ (2004) 2(1) Journal of International Criminal Justice 38, 45; Ferrando Mantovani, ‘The General Principles of International Criminal Law: The Viewpoint of a National Criminal Lawyer’ (2003) 1(1) Journal of International Criminal Justice 26, 32; and Geert-Jan Knoops, Defenses in Contemporary International Criminal Law (Transnational Publishers: Ardsley, 2001) 11.

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(and many commentators on the subject) draw no distinction between a requirement that an accused be aware of the likelihood or probability of a ­consequence occurring and where an accused is aware only of the possibility of the risk ­occurring.48 Even in Lubanga, the Pre-Trial Chamber relied on the earlier icty Trial Chamber decision in Stakić for its two different standards – one of probability and one of possibility. However, as discussed further below at 2.3.1, since the decision of the Appeals Chamber in Blaškić and the Trial Chamber in Strugar, later tribunals have rejected the possibility standard and required that there at least be a knowledge of the likelihood or probability of an outcome occurring. Secondly, the question of whether or not it will suffice that a person has an awareness of the likelihood or probability of something occurring (i.e. as opposed to a mere awareness of the possibility of something occurring) is not resolved by the use of the words ‘will occur’. It is arbitrary to consider the words ‘will occur’ out of their context (namely, requiring that the consequence ‘will occur in the ordinary course of events’). The same words (‘will occur’) could be used in a different sentence and have an entirely different conclusion (for instance, ‘will occur in all likelihood’ or ‘will occur 6 times out of 10’). The real question depends on what is meant by ‘in the ordinary course of events’. As to this point, it does appear correct to say that ‘in the ordinary course of events’ is a higher standard than an awareness that something was ‘likely’ to occur. But the two standards do not appear to be all that far apart. While some have seen the phrase to mean that ‘the required standard of occurrence is close to certainty’,49 the Oxford English Dictionary defines ‘ordinary’ in this context to mean only ‘[b]elonging to the regular or usual order or course of things; having a place in a fixed or regulated sequence; occurring in the course of regular custom or practice; normal; customary; usual’. The logic for this perceived higher standard may have related to the view taken by the Tribunal that the concept is equivalent to the common law notion of oblique intention and the civil law notion of dolus directus of the second degree.50 However, with no reference made in the Statute to either dolus directus or oblique

48 (icc) Bemba Gombo – Confirmation, above n 18, [363]; Lubanga – Confirmation, above n 15, [352]–[355]; and Katanga – Trial, above n 25, [775]. 49 (icc) Bemba Gombo – Confirmation, above n 18, [362]; and Katanga – Trial, above n 25, [776]. 50 (icc) Bemba Gombo – Confirmation, above n 18, [362]. (United States) See also similar wording in § 2.02(2)(b)(ii) of the us Model Penal Code.

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intention, it is unclear how this material can be reliably used in interpreting the Statute. Thirdly, the travaux préparatoires is also not entirely clear. On the one hand, the removal of the extract above on ‘recklessness’ suggests that the drafters did not consider that recklessness or dolus eventualis would not suffice to establish ‘intention and knowledge’ under the icc Statute. As ‘recklessness’ was not p ­ rovided as being the mental element for any offence, ‘a definition of the ­concept was unnecessary’.51 On the other hand, however, the position at the Rome Conference was not entirely clear. Professor Clark indicates that the conclusion was still uncertain:52 Some participants thought that to be an absolute, that such liability [on the basis of negligence or recklessness] was banished, unless based on clear Statute language. Others, while perhaps conceding that the occasions for recklessness or negligence liability would be sparse, were prepared to go down that road if there was some colourable support in the case law for doing so, and even on occasions where that seemed to be a last resort way out of an impasse. Further, there appears to have been confusion at the Rome Conference arising from the uncertainty around the position under customary law at the time of the Rome Conference, as well as around the use of terms particular to domestic jurisdictions such as ‘recklessness’ or ‘dolus eventualis’. That is, not only was the jurisprudence in the ad hoc Tribunals largely unsettled at the time of drafting, but as Professor Clark observed, many members themselves had different understandings both of the way in which certain legal terms from different legal systems were being used53 and even of the particular role the elements in the Elements of Crimes were to play.54 Clark indicates that the records of the discussions were not comprehensive and that it was unclear whether a majority or an ‘adamant minority’ were deciding a particular point and that his comments are necessarily ‘impressionistic’ in this regard.55

51

52 53 54 55

Per Saland, ‘International Criminal Law Principles’, Chapter 7 in Roy Lee (ed), I­ nternational Criminal Court: The Making of the Rome Statute – Issues, Negotiations, R ­ esults (­Kluwer Law International: The Hague, 1999) 205, cited in Clark, above n 12, 314–315. Clark, above n 12, 321. Clark, above n 12, 294–295. Clark, above n 12, 317. Clark, above n 12, 295.

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In the result, the better view is that the words ‘will occur in the ordinary course of events’ should be given their ordinary meaning rather than equated to any particular domestic standard.56 The ordinary meaning of the formulation suggests at least that actual knowledge or awareness is required and that it is not sufficient that the person has constructive knowledge in the sense the person is aware only of the possibility of the consequence occurring or the ­circumstance existing. Similarly, to say that the person must have a knowledge of a fact close to a ‘certainty’ may place too much of a gloss on the language of the statute. This is especially in light of the fact that, as is discussed below, in most circumstances customary international law requires only that the person is satisfied of the probability that something will occur. There does not appear to have been an intention at the Rome Conference to depart or depart radically from customary international law. Practically speaking, however, the ordinary meaning of the words ‘will occur in the ordinary course of events’ does not appear to greatly differ from the standard under customary international law. This means in effect that actual knowledge must be present. Constructive knowledge such as mere knowledge of a risk or a possibility that such a circumstance would result will not suffice. A distinction must be drawn, however, between what the mental state is and how it may be proven. The question was considered in a seminal ­Australian High Court decision in Bahri Kural v The Queen.57 In language remarkably similar to the icc Statute, the Court considered that the particular mens rea for an offence may involve ‘intention, foresight, knowledge or awareness with respect to some act, circumstance or consequence’ (emphasis added).58 In ­respect of an offence of intentionally importing narcotic drugs, the Court held that intention required that the person knew or was aware that the goods were narcotic drugs but that, in the circumstances of a particular case, such belief or awareness may be able to be proven by inference in circumstances where the person knew or was aware of the likelihood (in the sense of a real or significant chance) that the items were narcotic goods but nevertheless persisted in that conduct.59

56

As discussed below at 2.3.1, similar logic was expressed by the icty Trial Chamber in Strugar and has since been followed by the ad hoc Tribunals. Although, for an example of the contrary position, see (Canada) R v Munyaneza [2009] qccs 2201 (‘Munyaneza – Trial’), at [81]–[83], discussed further in Chapter 7, Section 2.2.2(a). 57 (Australia) (1987) 162 clr 502 (‘Kural – High Court’). 58 (Australia) Kural – High Court, above n 58, 504. 59 (Australia) Kural – High Court, above n 58, 504–505.

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The same logic applies to so-called ‘wilful blindness’. In another ­Australian High Court decision, R v Crabbe,60 the Court considered a murder case against a man who had driven a truck into the side a crowded bar, killing five people. The Court held that where a person deliberately refrains from making inquiries because they prefer not to learn the result or do not want to learn the truth, that may be sufficient to infer that the person knew the matter in q­ uestion or intended the result in question.61 To say that is not to say that ­anything less than actual knowledge is required but rather that such knowledge may be inferred from other states of mind. This view appears consistent with the icty Trial Chamber decision in Stakić, where it was considered that killing is intentional where not merely where a person is aware of the probability of a consequence occurring but additionally makes peace with or reconciles him- or herself with that probability (discussed further below).62 Whether certain mental states will suffice to found an inference that the mental element is satisfied in this sense is not a question of law but a question of fact that will depend on the particular circumstances of each individual case. 1.2.3 Causation While an early draft of the icc Statute included a paragraph dealing with causation, this provision was left out prior to Rome.63 The draft paragraph provided that ‘[a] person is only criminally responsible under this Statute if the harm required for the commission of a crime is caused by and accountable to the principal’s [perpetrator’s] act or omission [conduct]’. Professor Clark explains that the words ‘accountable to’ ‘captured the flavour of the fact that this was not just a question about the scientific laws of cause and effect; it was also about when it is “just” or “appropriate” to attribute responsibility to humans’. However, the paragraph was dropped before the Rome Conference.

60 (Australia) (1985) 156 clr 464 (‘Crabbe – High Court’). 61 (Australia) Crabbe – High Court, above n 61, [12]–[14]. For further explanation of this issue, see He Kaw Teh v The Queen (1985) 157 clr 523, 570; and Giorgianni v The Queen (1985) 156 clr 473, 504–507. 62 (icty) Stakić – Trial, above n 30, [587]. 63 Clark, above n 12, 304.

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2 Murder Under customary international law, the underlying crime of ‘murder’ as a crime against humanity requires the prosecution establish that the following elements were committed as part of a widespread or systematic attack against a civilian population:64 1.

64

The death of a victim.65

See also (spet) Marques – Judgment, above n 34, [643]–[648] (defining the crime in line with the definition in the icc); (iht) Summary of the verdict of 1991 case, Case No 1/T2/2007, 12 February 2007, Hamadi Al-saedi, Case Western Reserve University School of Law (Spring 2010), accessible online at (‘1991 Incidents Case – Summary’), 109 (requiring that the ­perpetrator ‘kills’ one or more people); (Indonesia) Prosecutor v Sedyono, Koeshadianto, Subyakto, Syamsudin and Sugito (Judgment), Case No. 01/HAM/TIM-TIM/02/2002 (15 August 2002) (‘Sedyono – Judgment’), 62–63 (action committed by anyone with conscious that the action would have resulted in murder). 65 (icty) Prosecutor v Kordić and Čerkez (Appeals Chamber Judgment), Case No IT-95-14/2-A (17 December 2004) (‘Kordić – Appeal’), [37] (applying Prosecutor v Delalić et al. (Appeals Chamber Judgment), Case No IT-96-21-A (20 February 2001) (‘Čelebići – Appeal’), [422]), followed in Prosecutor v Kvočka et al (Appeals Chamber Judgment), Case No IT-98-30/1-A (28 February 2005) (‘Kvočka – Appeal’), [261]; Prosecutor v Galić (Appeals Chamber Judgment), Case No IT-98-29-A (30 November 2006) (‘Galić – Appeal’), [147] (citing Prosecutor v Stanislav Galić (Trial Chamber Judgment), Case No IT-98-29-T (5 December 2003) (‘Galić – Trial’), [150] without comment); (ictr) Prosecutor v Akayesu (Trial Chamber Judgment), Case No ICTR-96-4-T (2 September 1998) (‘Akayesu – Trial’), [589], followed in Rutaganda – Trial, above n 34, [80], Prosecutor v Musema (Trial Chamber Judgment), Case No ICTR-96-13-T (27 January 2000) (‘Musema – Trial’), [215]; (scsl) Prosecutor v Fofana and Kondewa (Trial Chamber Judgment), Case No SCSL-04-14-T (2 August 2007) (‘cdf – Trial’), [143]; Prosecutor v Sesay, Kllon and Gbao (Trial Chamber Judgment), Case No SCSL-04-15-T (2 March 2009) (‘ruf – Trial’), [138]; (eccc) Kaing Guek Eav alias Duch (Trial Chamber Judgment), eccc, Case File No. 001/18-07-2007/ECCC/TC (26 July 2010) (‘Duch – Trial’), [331]; Prosecutor v Chea and Samphan (Trial Chamber Judgment), Case File No. 002/19-09-2007/ECCC/TC (7 August 2014) (‘Case 002/01 – Trial’), [412]; (Bangladesh) Mitar Rašević and Savo Todović (First Instance Judgment), Case No X-KRŽ-06/275 (28 February 2008) (‘Rašević and Todović – First Instance’), 61; (icc) Katanga – Confirmation, above n 26, [421]; Bemba Gombo – Confirmation, above n 18, [132], Prosecutor v Jean-Pierre Bemba Gombo (Trial Chamber iii Judgment), ICC-01/05-01/08-3343 (21 March 2016) (‘Bemba Gombo – Trial’), [87]; (Bangladesh) Chief Prosecutor v Abdul Quader Molla

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The act or omission of the accused/perpetrator caused the death;66 The accused/perpetrator directly or indirectly intended to kill the victim, meaning the perpetrator: a. intended to kill the victim;67 b. knew that death was a likely or probable consequence of the act or omission;68

(Judgment) (ICT-2), ICT-BD Case No. 02 of 2012 (5 February 2013) (‘Molla – Judgment’), [293]; (Canada) Munyaneza – Trial, above n 57, [82]–[83]. 66 (icty) Kordić – Appeal, above n 66, [37] (applying Čelebići – Appeal, [422], and followed in Kvočka – Appeal, above n 66, [261]); Prosecutor v Blaškić (Trial Chamber Judgment), Case No IT-95-14-T (3 March 2000) (‘Blaškić – Trial’), [217]. See also (ictr) Akayesu – Trial, above n 66, [589], followed in Rutaganda – Trial, above n 34, [80], Musema – Trial, above n 66, [215]; (scsl) cdf – Trial, above n 66, [143]; ruf – Trial, above n 66, [138]; (eccc) Duch – Trial, above n 66, [331]; Case 002/01 – Trial, above n 66, [412] (icc) K ­ atanga  – C ­ onfirmation, above n 26, [421]; Bemba Gombo – Confirmation, above n 18, [132], Bemba Gombo – Trial, above n 66, [87]; (Bangladesh) Molla – Judgment, above n 66, [293]; and (Canada) Munyaneza – Trial, above n 57, [82]–[83]. 67 (icty) Kordić – Appeal, above n 66, [37] (applying Čelebići – Appeal, [422], and followed in Kvočka – Appeal, above n 66, [261]); (ictr) Akayesu – Trial, above n 66, [589], followed in Rutaganda – Trial, above n 34, [80], (icty) Prosecutor v Jelisić (Trial Chamber Judgment), Case No IT-95-10-T (14 December 1999) (‘Jelisić – Trial’), [35]; (ictr) Prosecutor v Kayishema and Ruzindana (Trial Chamber Judgment), Case No ICTR-95-1-T (21 May 1999) (‘Kayishema – Trial’), [140], followed in Prosecutor v Bagilishema (Trial Chamber Judgment), Case No ICTR-95-1A-T (7 June 2001) (‘Bagilishema – Trial’), [84]; (scsl) cdf – Trial, above n 66, [143]; ruf – Trial, above n 66, [138]; (Canada) Munyaneza – Trial, above n 57, [82]–[83]. 68 (icty) Prosecutor v Strugar (Trial Chamber Judgment), Case No IT-01-42-T (31 ­January 2005) (‘Strugar – Trial’), [236], followed in Prosecutor v Limaj, Bala and Musliu (Trial Chamber Judgment), Case No IT-03-66-T (30 November 2005) (‘Limaj – Trial’), [241]; ­Prosecutor v Martić (Trial Chamber Judgment), Case No IT-95-11-T (12 June 2007) (‘Martić – Trial’), [60]; Prosecutor v Delić (Trial Chamber Judgment), Case No IT-04-83-T (15 S­ eptember 2008) (‘Delić – Trial’), [48]; Prosecutor v Boškoski & Tarčulovski (Trial Chamber Judgment), Case No IT-04-82-T (10 July 2008) (‘Boškoski – Trial’), [305]; Prosecutor v Mrkšić (Trial Chamber Judgment), Case No IT-95-13/-T (27 September 2007) (‘Mrkšić – Trial’), [486]; Stakić – Trial, above n 30, [587], followed in Prosecutor v Orić (Trial Chamber Judgment), Case No IT-06-68-T (30 June 2006) (‘Orić – Trial’), [348]; Prosecutor v Radoslav Brđanin (Trial Chamber Judgment), Case No IT-99-36-T (1 September 2004) (‘Brđanin – Trial’), [386]; Prosecutor v Đorđević (Trial Chamber Judgment), Case No IT-05-87/1-T (23 February 2011) (‘Đorđević – Trial’), [1708]; and (Canada) Munyaneza – Trial, above n 57, [82]–[83].

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c.

intended to inflict serious injury or grievous bodily harm (reasonably69) knowing that such bodily harm is likely to lead to death70 (and is reckless as to whether death ensues or not71); d. intended to cause serious bodily injury in reckless disregard for human life;72 4.

The perpetrator did so without lawful excuse.73

69 (icty) Blaškić – Trial, above n 67, [217]; Kordić and Čerkez (Trial Chamber Judgment), Case No IT-95-14/2-T (26 February 2001) (‘Kordić – Trial’), [236]; Prosecutor v Krnojelac (Trial Chamber Judgment), Case No IT-97-25-T (15 March 2002) (‘Krnojelac – Trial’), [324]; Prosecutor v Radislav Krstić (Trial Chamber Judgment), Case No IT-98-33-T (2 A ­ ugust 2001) (‘Krstić – Trial’), [485]; Prosecutor v Kvočka et al. (Trial Chamber Judgment), Case No IT98-30/1-T (2 November 2001) (‘Kvočka – Trial’), [132]; Prosecutor v Vasiljević (Trial Chamber Judgment), Case No IT-98-32-T (29 November 2002) (‘Vasiljević – Trial’), [205]; Prosecutor v Blagojević and Jokić (Trial Chamber Judgment), Case No IT-02-60-A (17 ­January 2005) (‘Blagojević – Trial’), [556]; (eccc) Duch – Trial, above n 66, [333]; and Case 002/01 – Trial, above n 66, [412] (‘in the reasonable knowledge’). 70 (ictr) Akayesu – Trial, above n 66, [589], followed in Rutaganda – Trial, above n 34, [580]; Musema – Trial, above n 66, [215]; Prosecutor v Bagosora et al. (Decision on Motion for Judgment of Acquittal), Case No ICTR-98-41-T (2 February 2005) (‘Bagosora – Acquittal Decision’), [25], followed in Prosecutor v Bagosora et al. (Trial Chamber Judgment), Case No ICTR-98-41-T (18 December 2008) (‘Bagosora – Trial’), [2169]; Prosecutor v François Karera (Trial Chamber Judgment), Case No ICTR-01-74 (7 December 2007) (‘Karera – Trial’), [558], Prosecutor v Tharcisse Renzaho (Trial Chamber Judgment), Case No ICTR97-31 (14 July 2009) (‘Renzaho – Trial’), [786]; (icty) Jelisić – Trial, above n 68, [35] (citing Akayesu – Trial, although referring only to ‘intention’); Blaškić – Trial, above n 67, [217]; Kordić – Trial, above n 70, [236]; Krnojelac – Trial, above n 70, [324]; Krstić – Trial, above n 70, [485]; Kvočka – Trial, above n 70, [132]; Vasiljević – Trial, above n 70, [205]; Blagojević – Trial, above n 70, [556]; (scsl) cdf – Trial, above n 66, [143]; ruf – Trial, above n 66, [138]; and (eccc) Case 002/01 – Trial, above n 66, [412]. There is apparently no difference between ‘serious’ and ‘grievous’ bodily harm: see (icty) Galić – Trial, above n 66, [150] (and authorities cited therein). 71 (ictr) Akayesu – Trial, above n 66, [589], followed in Rutaganda – Trial, above n 34, [580]; Musema – Trial, above n 66, [215]; and (icty) Jelisić – Trial, above n 68, [35] (although refers only to ‘intention’). 72 (icty) Prosecutor v Delalić et al. (Trial Chamber Judgment), Case No IT-96-21-T (16 November 1998) (‘Čelebići – Trial’), [439], followed in Galić – Trial, above n 66, [150] (not disturbed in Galić – Appeal, above n 66, [147], [151]); and Prosecutor v Šainović et al. (Trial Chamber Judgment), Case No IT-05-87-T (26 February 2009) (‘Šainović – Trial’), [138]. 73 (ictr) Bagosora – Acquittal Decision, above n 71, [25], followed in Bagosora – Trial, above n 71, [2169]; Karera – Trial, above n 71, [558]; and (icty) Prosecutor v Gotovina et al (Trial

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Article 7(1)(a) of the icc Statute proscribes ‘murder’ as a crime against humanity. The icc Elements of Crimes requires the prosecution establish the following elements occurred as part of a widespread or systematic attack against any civilian population:74 1.

The perpetrator killed75 one or more persons. [Mental element: The perpetrator:76 a. b.

meant to perform one or more act or omission; and either: (i) meant to kill or cause the death of one or more persons by such act(s) or omission(s); or (ii) was aware that such a consequence would occur in the ordinary course of events as a result of the act(s) or omission(s).]

2.1 Death of the Victim The first element to establish the underlying crime of murder is the death of a victim.77 It is not necessary to establish that the body of the deceased person has been recovered.78 The fact that a death has occurred may be established Chamber Judgment), Case No. IT-06-90-T (15 April 2011) (‘Gotovina – Trial’), [1730] (where self-defence appeared to be recognised as a defence); see also Bassiouni, above n 10, 365. 74 (icc) Katanga – Trial, above n 25, [765]–[766], [781]. 75 Footnote to the Elements of Crimes reads: The term “killed” is interchangeable with the term “caused death”. This footnote applies to all elements which use either of these concepts. 76 No mental element is specified meaning that Article 30 of the icc Statute provides that ‘intent and knowledge’ apply as discussed above at Section 1.2.3. See also: (icc) Bemba Gombo – Trial, above n 66, [89]–[90]. 77 (icty) Kordić – Appeal, above n 66, [37] (applying Čelebići – Appeal, above n 66, [422]), followed in Kvočka – Appeal, above n 66, above n 66, [261]; Galić – Appeal, above n 66, [147] (citing Galić – Trial, above n 66, [150] without comment); (ictr) Akayesu – ­Trial, above n  66, [589], followed in Rutaganda – Trial, above n 34, [79]–[80], Musema – T ­ rial, above n 66, [215]; (BiH) Rašević and Todović – First Instance, above n 66, 61; (spet) Marques  – Judgment, above n 34, [643]–[648]: (icc) Katanga – Confirmation, above n 26, [421]; Bemba Gombo – Confirmation, above n 18, [132]; Katanga – Trial, above n 25, [767], Bemba Gombo – Trial, above n 66, [87]; (Canada) Munyaneza – Trial, above n 57, [82]–[83]. 78 (icty) Prosecutor v Tadić (Trial Chamber Judgment), Case No IT–94–1–T (7 May 1997) (‘Tadić – Trial’), [240] (‘Since these were not times of normalcy, it is inappropriate to apply rules of some national systems that require the production of a body as proof to death. However, there must be evidence to link injuries received to a resulting death’); Krnojelac  – Trial, above n 70, [326], followed in Kvočka – Appeal, above n 66, [260];

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by circumstantial evidence provided it is the ‘only reasonable inference’.79 Relevant factors in grounding this inference will include:80 • • • •

incidents of mistreatment directed against the victim; patterns of mistreatment and disappearances of other victims; coincident or near coincident time of death of other victims; whether victims were last seen in an area where an armed attack was c­ arried out; • when, where and the circumstances in which the victim was last seen; • the general climate of lawlessness in the area where the acts were committed; • behaviour of soldiers in the vicinity, including towards other civilians; and • the length of time which has elapsed since the person disappeared; • lack of contact by the victim with those they would be expected to contact such as family. A similar approach appears to have been taken in the icc. icc Pre-Trial Chamber ii in Bemba Gombo held that while there is no need to find or identify the corpse, the Prosecution must, nonetheless, provide particulars in the charging document when seeking to prove that the perpetrator killed specific Boškoski – Trial, above n 69, [305]; Prosecutor v Lukić Milan and Lukić Sredoje (Trial ­Chamber Judgment), Case No IT-98-32-/1-T (20 July 2009) (‘Lukić – Trial’), [904]; (ICTR) Ngeze – Oral Decision; (scsl) cdf – Trial, above n 66, [144]; ruf – Trial, above n 66, [138]; Prosecutor v Charles Ghankay Taylor (Trial Chamber Judgment), Case No scsl-2003-01-T (26 April 2012) (‘Taylor – Trial’), [413] (applying Tadić – Trial, and Krnojelac – Trial, above n 70); (eccc) Duch – Trial, above n 66, [332] (citing Tadić); Case 002/01 – Trial, above n 66, [413]; (icc) Katanga – Trial, above n 25, [768]; and Bemba Gombo – Trial, above n 66, [88]. 79 (icty) Krnojelac – Trial, above n 70, [327]; Kvočka – Appeal, above n 66, [260], followed in Lukić – Trial, above n 79, [904]; Brđanin – Trial, above n 69, [385]; (scsl) cdf – Trial, above n 66, [144]; ruf – Trial, above n 66, [139]; Taylor – Trial, above n 79, [413]; (eccc) Duch – Trial, above n 66, [332]; Case 002/01 – Trial, above n 66, [413]; (icc) Katanga – Trial, above n 25, [768]; and Bemba Gombo – Trial, above n 66, [88]. 80 (icty) Krnojelac – Trial, above n 70, [327]; Prosecutor v Halilović (Trial Chamber Judgment), Case No IT-01-48-T (16 November 2005) (‘Halilović – Trial’), [37], followed in Martić – Trial, above n 69, [59], fn 112; Lukić – Trial, above n 79, [903]; (scsl) Prosecutor v Brima, Kamara and Kanu (Trial Chamber ii Judgment), Case No SCSL-04-16-T, (20 June 2007) (‘afrc – Trial’), [689]; (eccc) Duch – Trial, above n 66, [332]; and (BiH) Rašević and Todović – First Instance, above n 66, 61.

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­individuals.81 In particular, the Prosecutor is still expected to specify, to the extent possible, inter alia:82 • • • • •

the location of the alleged murder; its approximate date; the means by which the act was committed with enough precision; the circumstances of the incident; and the perpetrator’s link to the crime.

The Pre-Trial Chamber also noted that, at the pre-trial stage, it is not necessary for the prosecution to demonstrate, ‘for each individual killing the identity of the victim and the direct perpetrator’.83 It is not clear to what extent this same principle applies at the trial stage. The Trial Chamber in Bemba Gombo appeared to adopt the same principle, albeit without any discussion of the PreTrial Chamber’s qualification.84 2.2 Causation Element The perpetrator must have caused the death of the victim.85 The causation element may be satisfied either by an act or omission.86 The same approach has been taken in the icc.87 The perpetrator’s conduct need not have been the ‘sole cause’ for the victim’s death; it is sufficient that it was a ‘substantial’ cause of or ‘contributed substantially’ to the death of the person.88 One Panel 81 (icc) Bemba Gombo – Confirmation, above n 18, [133], followed in Katanga – Trial, above n 25, [768]. 82 (icc) Bemba Gombo – Confirmation, above n 18, [133]. 83 (icc) Bemba Gombo – Confirmation, above n 18, [133]. 84 (icc) Bemba Gombo – Trial, above n 66, [88]. 85 (icty) Kordić – Appeal, above n 66, [37] (applying Čelebići – Appeal, above n 66, [422]), followed in Kvočka – Appeal, above n 66, [261]; Blaškić – Trial, above n 67, [217]; (ictr) Akayesu – Trial, above n 66, [589], followed in Rutaganda – Trial, above n 34, [79]–[80], Musema – Trial, above n 66, [215]; (scsl) CDF – Trial, above n 66, [143]; ruf – Trial, above n 66, [138]; (spet) Marques – Judgment, above n 34, [643]–[648]; (icc) Katanga – Confirmation, above n 26, [421]; Bemba Gombo – Confirmation, above n 18, [132]; and ­Bemba Gombo – Trial, above n 66, [87]. 86 (icty) Čelebići – Trial, above n 73, [424]; Galić – Appeal, above n 66, [149]; and (Bangladesh) Molla – Judgment, above n 66, [290]. See also the statements of the elements at ibid (except Kordić – Appeal, above n 66, and Blaškić – Trial, above n 67). 87 (icc) Katanga – Confirmation, above n 26, [287]; Bemba Gombo – Confirmation, above n 18, [132]; Katanga – Trial, above n 25, [767]. 88 (icty) Čelebići – Trial, above n 73, [424], followed in Brđanin – Trial, above n 69, [382], Orić – Trial, above n 69, [347]; (scsl) afrc – Trial, above n 81, [689]; ruf – Trial, above

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in East Timor has understood this requirement to mean that the perpetrator’s act must be one that ‘proximately caused’ the death and must ‘not be too remote’.89 This requirement will not be established where the chain of causation is broken by an independent act.90 The icc has so far not appeared to deviate from the position at the ad hoc Tribunals.91 In the icty case of Krnojelac, the issue of causation arose in respect of an allegation of murder in a context where the victim committed suicide.92 The perpetrators had beaten the man, denied him medical treatment and then confined him to an isolated cell. While the relevant causation was not satisfied on the basis of the evidence,93 the Chamber did not dispute the causation would have been made out if the perpetrators had ‘induced the victim to take action which resulted in his death’ and that the suicide was either ‘intended’ or was ‘an action of a type which a reasonable person could have foreseen as a consequence of the conduct’.94 These elements are the largely the same required for ‘wilful killing’ in the context of war crimes (except for the requirement that the victim be a protected person)95 and ‘killing’ in the context of genocide.96

n 66, [139]; Taylor – Trial, above n 79, [413]; (BiH) Rašević and Todović – First Instance, above n 66, 61; (spet) Marques – Judgment, above n 34, [643]–[648]; Prosecutor v Marcelino Soares (Judgment), Special Panel Case No 11/2003 (11 December 2003) (‘Soares – Judgment’), [12]–[13]; and (Bangladesh) Molla – Judgment, above n 66, [290]. 89 (spet) Prosecutor v Lino de Carvalho (Judgment), Special Panel Case No 10/2001 (18 March 2004) (‘De Carvalho – Judgment’), 12. 90 (spet) Prosecutor v Francisco Perreira (Judgment), Special Panel Case No 34/2003 (27 April 2005) (‘Perreira – Judgment’), 20–21 (where the perpetrator struck the victim with a sword and the intention to kill, but the victim was in fact killed by a contemporaneous gunshot wound). 91 (icc) Bemba Gombo – Confirmation, above n 18, [132] (citing Akayesu – Trial, above n 66, Rutaganda – Trial, above n 34, Blaškić – Trial, above n 67, Čelebići – Trial, above n 73); and Katanga – Trial, above n 25, [768] (citing Kordić – Trial, above n 70). 92 (icty) Krnojelac – Trial, above n 70, [328]–[329]. 93 (icty) Krnojelac – Trial, above n 70, [342]. 94 (icty) Krnojelac – Trial, above n 70, [329]. The standard is also expressed as requiring that the suicide be the ‘likely and foreseeable result’. 95 See (icty) Čelebići – Appeal, above n 66, [423]; Brđanin – Trial, above n 69, [380]; Vasiljević  – Trial, above n 70, [205]; Krnojelac – Trial, above n 70, [323]; Kordić – Trial, above n 70, [236]; (scsl) ruf – Trial, above n 66, [142]; afrc – Trial, above n 81, [668]; and Taylor – Trial, above n 79, [412]. 96 (Canada) Munyaneza – Trial, above n 57, [118], [140].

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2.3 Mens Rea 2.3.1 Intention The ad hoc Tribunals have held that the requisite mens rea may be e­ stablished either via direct or indirect intention, albeit with differing views on the standard of indirect intention. The icty and the icc Pre-Trial ­Chamber have both held that the relevant intent in the context of murder can be ­inferred.97 The accused need not intend to target a specific individual; it is sufficient that the perpetrator intend to indiscriminately to target whoever would be fatally injured as a result of his action.98 The ad hoc tribunals and the icc have held that the mens rea requirement will be satisfied where the perpetrator/accused intends to kill the victim or cause death.99 This will at least cover direct intention. Direct intention is ‘a state of mind in which the perpetrator desired the death of a victim to be the result of his act or omission’100 or ‘it is the actor’s purpose’.101 Insofar as indirect intention is concerned, the precise standard is unclear. The standard has been expressed in a number of different ways. Least controversially, these include that the perpetrator/accused:

97 (icty) Čelebići – Trial, above n 73, [903] (‘the use of a firearm against an unarmed individual demonstrates an intent to kill or to inflict serious injury in reckless disregard of human life’), followed in (icc) Bemba Gombo – Confirmation, above n 18, [138]. See also icc Elements of Crimes. 98 (icty) Martić – Trial, above n 69, [60], followed in Lukić – Trial, above n 79, [903]; and (ictr) Prosecutor v Ntagerura et al. (Trial Chamber iii Judgment), Case No ICTR-99-46 (25 February 2004) (‘Ntagerura – Trial’), [700], followed in (icc) Katanga – Confirmation, above n 26, [422]. 99 (icty) Kordić – Appeal, above n 66, [37] (applying Čelebići – Appeal, above n 66, [422]), followed in Kvočka – Appeal, above n 66, [261], Prosecutor v Perišić (Trial ­Chamber ­Judgment), Case No IT-04-81-T (6 September 2011) (‘Perišić – Trial’), [104]; (ictr) Akayesu – Trial, above n 66, [589], followed in Rutaganda – Trial, above n 34, [80]; (icty) Jelisić – Trial, above n 68, [35]; (ictr) Kayishema – Trial, above n 68, [140], followed in Bagilishema – Trial, above n 68, [84]; (scsl) cdf – Trial, above n 66, [143]; ruf – Trial, above n 66, [138]; (icc) Lubanga – Confirmation, above n 15, [351]; Bemba Gombo – C ­ onfirmation, above n 18, [138]; and Katanga – Trial, above n 25, [774], [781]. 100 (icty) Delić – Trial, above n 69, [48]; Perišić – Trial, above n 100, [104]. 101 (ictr) Kayishema – Trial, above n 68, [139], followed in (icty) Kupreškić – Trial, above n 34, [561]. nb: The Chamber also states that it includes ‘or the actor is aware that it will ­occur in the ordinary course of events’, however this appears to relate to indirect intention.

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knew that death was a likely or probable consequence of the act or omission;102 intended to inflict serious injury or grievous bodily harm (reasonably103) knowing that such bodily harm is likely to lead to death104 (and is reckless as to whether death ensues or not105); or

More controversially, the mens rea has been held to include that the perpetrator/ accused: 3. 4.

intended to cause grievous bodily harm;106 intended to cause serious bodily injury in reckless disregard for human life;107

102 (icty) Strugar – Trial, above n 69, [236], followed in Limaj – Trial, above n 69, [241]; Martić – Trial, above n 69, [60]; Delić – Trial, above n 69, [48]; Boškoski – Trial, above n 69, [305]; Mrkšić – Trial, above n 69, [486]; Stakić – Trial, above n 30, [587], followed in Orić – Trial, above n 69, [348]; Brđanin – Trial, above n 69, [386]; and Đorđević – Trial, above n 69, [1708]. 103 (icty) Blaškić – Trial, above n 67, [217]; Kordić – Trial, above n 70, [236]; Krnojelac – T ­ rial, above n 70, [324]; Krstić – Trial, above n 70, [485]; Kvočka – Trial, above n 70, [132]; Vasiljević – Trial, above n 70, [205]; and Blagojević – Trial, above n 70, [556]. 104 (ictr) Akayesu – Trial, above n 66, [589], followed in Rutaganda – Trial, above n 34, [580]; Musema – Trial, above n 66, [215]; Bagosora – Acquittal Decision, above n 71, [25], followed in Bagosora – Trial, above n 71, [2169]; Karera – Trial, above n 71, [558]; Renzaho – Trial, above n 71, [786]; (icty) Jelisić – Trial, above n 68, [35] (citing Akayesu – Trial, ­although referring only to ‘intention’); Blaškić – Trial, above n 67, [217]; Kordić – Trial, above n 70, [236]; Krnojelac – Trial, above n 70, [324]; Krstić – Trial, above n 70, [485]; Kvočka – ­Trial, [132]; Vasiljević – Trial, above n 70, [205]; Blagojević – Trial, above n 70, [556]; (scsl) cdf – Trial, above n 66, [143]; ruf – Trial, above n 66, [138]; Taylor – Trial, above n 79, [412]; and afrc – Trial, above n 81, [688], [690]. 105 (ictr) Akayesu – Trial, above n 66, [589], followed in Rutaganda – Trial, above n 34, [580]; Musema – Trial, above n 66, [215]; and (icty) Jelisić – Trial, above n 68, [35] (although referring only to ‘intention’). 106 (icty) Krnojelac – Trial, above n 70, [324]; Vasiljević – Trial, above n 70, [205]; and (ictr) Kayishema – Trial, above n 68, [140]. See also (icty) Kupreškić – Trial, above n 34, [560] (but cf. [561]). 107 (icty) Čelebići – Trial, above n 73, [439], followed in Galić – Trial, above n 66, [150] (not disturbed in Galić – Appeal, above n 66, [147], [151]); Šainović – Trial, above n 73, [138]; Kupreškić – Trial, above n 34, [561]; and Antonio Cassese, Cassese’s International Criminal Law (3rd ed, Oxford University Press: Oxford, 2013) 94 (although citations do not support this limb being sufficient absent an intention to cause serious injury or grievous bodily harm). See also Stakić – Trial, above n 30, [587] (however, see discussion above at 1.2.3).

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intended to cause serious bodily harm which the perpetrator should reasonably have known might lead to death;108 or knew that their act or omission might cause death.109

While the majority of Chambers have agreed that the mens rea will be satisfied if the perpetrator/accused possesses an intention to cause serious injury or grievous bodily harm and foresees death, they have differed on whether death must be a probable or only a possible outcome. While the majority of ad hoc Tribunals have not appeared to draw any relevant distinctions between ‘serious injury’ and ‘grievous bodily harm’ (or ‘serious bodily harm’),110 some have suggested that ‘grievous bodily harm’ may be a higher standard than ‘serious injury’.111 On the one hand, the majority of Chambers have required either that the ­accused/perpetrator knew that death was the likely or probable result or that the accused/perpetrator had the intention to cause serious bodily harm knowing that death was the likely or probable result.112 As held by the icty Trial Chamber in Stakić, killing becomes intentional if the perpetrator/accused ‘“­reconciles himself” or “makes peace” with the likelihood of death’, including 108 (icty) Kvočka – Appeal, above n 66, [261] (although none of the authorities cited ­support the use of the word ‘might’), followed in Prosecutor v Dragomir Milošević (Trial ­Chamber Judgment), Case No IT-98-29/1-T (12 December 2007) (‘Milošević, D – Trial’), [931]; ­Prosecutor v Dragomir Milošević (Appeals Chamber Judgment), Case No IT-98-29/1-A (12 November 2009) (‘Milošević, D – Appeal’), [108]; and Lukić – Trial, above n 79, [903] (‘should reasonably have known might’ lead to death); see also Bassiouni, above n 10, 369 (of the authorities cited, only Lukić – Trial supported the use of the word ‘might’). 109 Cassese, above n 108, 94. 110 See (icty) Galić – Trial, above n 66, [150] (and authorities cited therein). 111 See (icty) Krnojelac – Trial, above n 70, [324]; and Vasiljević – Trial, above n 70, [205]. 112 (ictr) Akayesu – Trial, above n 66, [589], followed in Rutaganda – Trial, above n 34, [580]; Musema – Trial, above n 66, [215]; Bagosora – Acquittal Decision, above n 71, [25], followed in Bagosora – Trial, above n 71, [2169]; Karera – Trial, above n 71, [558]; Renzaho – Trial, above n 71, [786]; (icty) Jelisić – Trial, above n 68, [35] (citing Akayesu – Trial, although referring only to ‘intention’); Blaškić – Trial, above n 67, [217]; Kordić – Trial, above n 70, [236]; Krnojelac – Trial, above n 70, [324]; Krstić – Trial, above n 70, [495] (but cf. at [485]); Kvočka – Trial, above n 70, [132]; Vasiljević – Trial, above n 70, [205]; Blagojević – Trial, above n 70, [556]; Strugar – Trial, above n 69, [236], followed in Limaj – Trial, above n 69, [241], Martić – Trial, above n 69, [60], Delić – Trial, above n 69, [48], Boškoski – ­Trial, above n 69, [305], Mrkšić – Trial, above n 69, [486], Perišić – Trial, above n 100, [104]; Stakić – ­Trial, above n 30, [587], followed in Orić – Trial, above n 69, [348], Brđanin – Trial, above n 69, [386]; Đorđević – Trial, above n 69, [1708]; (scsl) cdf – Trial, above n 66, [143]; ruf – Trial, above n 66, [138]; Taylor – Trial, above n 79, [412]; and afrc – Trial, above n 81, [688], [690].

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where the person possesses a ‘manifest indifference to the value of human life.’113 On the other hand, others have adopted a lower standard. For instance, the icty Appeals Chamber in Kvočka accepted that it would be sufficient that the perpetrator/accused wilfully cause serious bodily harm that the perpetrator should reasonably have known might cause death.114 Similarly, some Chambers have held that it is sufficient that the perpetrator intended to cause serious bodily injury in reckless disregard for human life.115 There are a number of difficulties with these latter authorities. First, these authorities are inconsistent with the icty Appeals Chamber ­decision in Blaškić. In Blaškić, the Appeals Chamber considered the ­possibility/ probability issue in the context of individual criminal responsibility for ‘ordering’. The Chamber found that ‘knowledge of any kind of risk, however low, does not suffice for the imposition of criminal responsibility for serious violations of international humanitarian law’ and that, if it did, ‘any military commander who issues an order would be criminally responsible, because there is always a possibility that violations could occur.’116 Following on from this decision, the icty Trial Chamber in Strugar held that the decision represented a general acceptance in the ad hoc Tribunals that the mens rea element of the underlying crime of ‘murder’ requires at least that the perpetrator/accused have the knowledge that death is ‘a probable ­consequence of the act or omission’.117 The Trial Chamber in Strugar did suggest that it may be sufficient that a perpetrator/accused know that ‘death or serious bodily harm’ is a probable consequence of their actions, although noted that this position had ‘not yet received authoritative acceptance’.118

113 (icty) Stakić – Trial, above n 30, [587]. 114 (icty) Kvočka – Appeal, above n 66, [261], followed in Milošević, D – Trial, above n 109, [931], Milošević, D – Appeal, above n 109, [108]; Lukić – Trial, above n 79, [903] (‘should reasonably have known might’ lead to death); Krstić – Trial, above n 70, [485], although cf. [495] (of all the decisions cited, only the decision in Blaškić – Trial, above n 67, supported the use of the word ‘might’ – a decision which was overturned on appeal); see also Bassiouni, above n 10, 369 (of the authorities cited, only Lukić – Trial supported the use of the word ‘might’); and Cassese, above n 108, 94. 115 (icty) Čelebići – Trial, above n 73, [439], followed in Galić – Trial, above n 66, [150] (not disturbed in Galić – Appeal, above n 66, [147], [151]); Šainović – Trial, above n 73, [138]; and Kupreškić – Trial, above n 34, [561]. 116 (icty) Prosecutor v Blaškić (Appeals Chamber Judgment), Case No IT-95-14-A (29 July 2004) (‘Blaškić – Appeal’), [41]. 117 (icty) Strugar – Trial, above n 69, [236]. 118 (icty) Strugar – Trial, above n 69, [236].

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There has been no explicit rejection of the view in Strugar and the majority of Trial Chambers since this decision have either explicitly followed it119 or followed the earlier decision in Stakić but only to the extent it endorsed the ‘likelihood/probability’ standard.120 Secondly, the authorities that suggest a lower standard may apply were either decided prior to Blaškić/Strugar121 or have followed the icty Appeals Chamber decision in Kvočka without any critical analysis.122 This is particularly problematic given that Kvočka does not address Blaškić and Strugar and does not explain how its finding can stand consistently with these decisions. Further, when closely analysed, the overwhelming majority of authorities cited in Kvočka do not support the use of the word ‘might’.123 At best, the Trial Chamber decisions in Kupreškić, Stakić and Galić suggest that it will suffice where a person intends ‘serious injury with reckless disregard for human life’124 and Krnojelac and Vasiljević suggest that it will be sufficient that the accused inflict ‘grievous bodily harm’.125 119 (icty) Limaj – Trial, above n 69, [241]; Martić – Trial, above n 69, [60]; Delić – Trial, above n 69, [48]; Boškoski – Trial, above n 69, [305]; Mrkšić – Trial, above n 69, [486]; and Perišić – Trial, above n 100, [104]. 120 (icty) Orić – Trial, above n 69, [348]; Đorđević – Trial, above n 69, [1708]. 121 (icty) Blaškić – Appeal, above n 117; and Strugar – Trial, above n 69, [236] (31 January 2005). Cf. earlier decisions suggesting a lower standard, see, for example: Čelebići – Trial, above n 73; Kupreškić – Trial, above n 34; Krnojelac – Trial, above n 70; Vasiljević – Trial, above n 70; Stakić – Trial, above n 30; and Galić – Trial, above n 66. Cf. also Kvočka – A ­ ppeal, above n 66. 122 See (icty) Milošević, D – Trial, above n 109, [931]; Milošević, D – Appeal, above n 109, [108]; and Lukić – Trial, above n 79, [903]; see also Bassiouni, above n 10, 369. 123 (icty) Čelebići – Appeal, above n 66, [423] (referring only to ‘intention’), Kordić – Appeal, above n 66, [37] (referring only to ‘intention’); Jelisić́ – Trial, above n 68, [35] (referring only to ‘intention’); Blaškić – Trial, above n 67, [217] (requiring knowledge that the act was ‘likely’ to cause death); Kordić – Trial, above n 70, [236] (requiring knowledge that the act was ‘likely’ to cause death); and Krstić – Trial, above n 70, [485] (while the ‘might’ standard is applied, only 10 paragraphs later at [495], the Chamber applies the ‘likely’ standard to extermination, which it acknowledges is identical to the standard required for murder). 124 (icty) Stakić – Trial, above n 30, [584], [587] (while the Chamber primarily accepts that the requisite standard of knowledge required is that the act was ‘likely’ to cause death, the Chamber ambiguously suggests that causing serious bodily harm ‘in reckless disregard of human life’ may suffice); Galić – Trial, above n 66, [150]; and Kupreškić – Trial, above n 34, [561] (accepting the mens rea is satisfied where there is an intent ‘to inflict serious injury, in reckless disregard of human life’). 125 (icty) Krnojelac – Trial, above n 70, [324]; and Vasiljević́ – Trial, above n 70, [205] (accepting that the mens rea requirement could be established by intent to cause ‘grievous bodily

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But even these decisions have their own difficulties. Most importantly, all were decided prior to Blaškić/Strugar and therefore do not address this key line of authority. But even if they had been decided afterwards, none of these decisions are persuasive. The Trial Chamber in Kupreškić offered no reasoning and followed the earlier decision in Akayesu (which adopts the ‘likelihood’ standard). Only Galić follows an earlier authority for its formulation (that in Čelebići) but provides no reasoning as to why it should be followed. Similarly, neither Krnojelac and Vasiljević126 provide any persuasive authority or reasoning for the statements made. The only decision that provides any reasoning as to its formulation of the standard is Stakić. In particular, the Chamber based its decision on the civil law concept of dolus eventualis. However, the reliance on the civil law concept of dolus eventualis was explicitly challenged in Strugar and has largely been avoided since. Further, as discussed above, the Chamber in Stakić nonetheless appears to accept the ‘causing serious injury with reckless disregard for human life’ standard as only being satisfied to the extent that it is consistent with the likelihood standard.127 This approach is supported by the Chambers that have followed Stakić but only to the extent that it endorsed the likelihood standard.128 harm’ or ‘serious injury in the reasonable knowledge that such act or omission was likely to cause death’). 126 The Trial Chamber in Vasiljević cited no authorities. The Trial Chamber in Krnojelac cited the following: (icty) Kordić – Appeal, above n 66, [236] (does not refer to mens rea and, at [37], the Appeals Chamber refers only to ‘intention’); Čelebići – Trial, above n 73, [439], (requiring ‘reckless disregard of human life’); Jelisić́ – Trial, above n 68, [35] (referring only to ‘intention’); Blaškić – Trial, above n 67, [153], [181] (also at [217], the Chamber required knowledge that the act was ‘likely’ to cause death); (ictr) Akayesu – Trial, above n 66, [589] (requiring knowledge that the act was ‘likely’ to cause death); Rutaganda – Trial, above n 34, [80] (requiring knowledge that the act was ‘likely’ to cause death); and M ­ usema – Trial, above n 66, [215] (requiring knowledge that the act was ‘likely’ to cause death). The exception to this trend is Kayishema – Trial, above n 68, [150]–[151] (where, at [140], the Chamber accepts that intention to cause ‘grievous bodily harm’ will suffice without any further knowledge). 127 The Trial Chamber in Stakić́ cites no authority for the extension of the mens rea beyond the knowledge that the act or omission is likely to cause death. Further, as discussed above at 1.2.3, the Chamber appears to accept this ground only as a subset of the requirement that the accused be aware of the likelihood of death. Similarly, the Trial Chamber in Kupreškić – Trial, above n 34, relies only upon the ictr Trial Chamber in (ictr) Akayesu – Trial, above n 66, which clearly requires the accused to be aware of the ‘likelihood’ of death. 128 (icty) Orić – Trial, above n 69, [348]; Đorđević – Trial, above n 69, [1708].

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Thirdly, the Kvočka standard appears to be out of step with the other underlying crimes. As is discussed in respect of the other underlying crimes, the standard overwhelmingly adopted by the ad hoc Tribunals has been that the accused must be aware of the probability or likelihood of the relevant event occurring. This approach is also more consistent with the ad hoc Tribunals’ rejection of ‘negligence’ or ‘gross negligence’ being sufficient.129 Ultimately, read with the fact that the drafters at the Rome Conference clearly rejected the ‘possibility’ standard, the better view appears to be that an accused must at least be aware of the likelihood or probability that death will follow. At most, it may be argued the mens rea for murder can also be established where the accused at least intended to cause serious injury in reckless disregard for human life, but only to the extent that it is consistent with the likelihood standard – that is, that the injury was so serious that death was the likely or probable result. As discussed above, however, it is important to remember that an awareness of the possibility of a consequence or circumstance may nonetheless be relevant to proving the relevant mens rea.130 2.3.2 Position at the icc At the icc, as noted above already, the element that ‘[t]he perpetrator killed one or more persons’ contains: (a) a component of conduct, being the doing of an act or omission (which the perpetrator must intend in the sense of meaning to do the act or omission); and (b) a component of consequence, being that the act or omission killed or caused the death of one or more persons (which the perpetrator must intend or know, in the sense of meaning to kill or cause death or being aware that the act or omission would kill or cause death in the ordinary course of events). The jurisprudence at the icc is not yet entirely settled on the extent to which this standard departs from that under customary international law. On the one hand, Pre-Trial Chamber i in Lubanga appears to have adopted a more lenient standard by accepting that the mens rea will be satisfied either where the accused ‘reconciles himself’ with death, either through an awareness of the

129 (icty) Strugar – Trial, above n 69, [235]–[236] (relying in part on Blaškić – Appeal, above n 117, [41]–[42]), followed in Martić – Trial, above n 69, [60]; Delić – Trial, above n 69, [48]; Orić – Trial, above n 69, [348]; Stakić – Trial, above n 30, [587], followed in Brdjanin – Trial, above n 69, [386]; Perišić – Trial, above n 100, [104]; and (scsl) ruf – Trial, above n 66, [140]. 130 See above, Section 1.2.3(b).

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l­ikelihood of death or a manifest indifference to human life.131 On the other hand, the icc Pre-Trial Chamber in Bemba Gombo and Trial Chamber ii in Katanga have adopted a more stringent standard by requiring that the perpetrator/­accused possess an awareness of something ‘close to certainty’, ‘virtual certainty’ or ‘practical certainty’.132 As argued above, the better view is that the words ‘ordinary course of events’ should be given their ordinary meaning and this will not be overly different to the position under customary international law.133 2.3.3 Premeditation There has been debate within the jurisprudence of the icty and the ictr as to whether the mens rea for murder as a crime against humanity (and wilful killing as a war crime), requires a mental element of premeditation. Based upon a comparison between the English text of ‘murder’ and the French text of ‘assassinat’ in the respective statutes, a number of Trial Chambers were of the opinion that murder as a crime against humanity requires a higher mental element and therefore only premeditated murder (assassinat) constitutes a crime against humanity.134 The ictr Trial Chamber in Kayishema held that this required that ‘the actor formulated his intent to kill after a cool moment of reflection’.135 This finding was followed in Indonesia.136 However, the trend of authority is that premeditation is not a requirement.137 Further, the majority of decisions do not include ‘premeditation’ within the elements required to establish the underlying crime of murder. 131 See discussion above at 1.2.3. 132 (icc) Bemba Gombo – Confirmation, above n 18, [138]. 133 See above, Section 1.2.3(b). 134 (ictr) Kayishema – Trial, above n 68, [139], followed in Bagilishema – Trial, above n 68, [84]; Prosecutor v Semanza (Trial Chamber Judgment), Case No ICTR-97-20-T (15 May 2003) (‘Semanza – Trial’), [337]–[339]; Ntagerura – Trial, above n 99, [700]; and (icty) Kupreškić – Trial, above n 34, [561] (although cf. [818]). 135 (ictr) Kayishema – Trial, above n 68, [139], followed in Kupreškić – Trial, above n 34, [561]. 136 (Indonesia) Sedyono – Judgment, above n 65, 62 and 64 (requiring that the action ‘was planned before’). 137 (ictr) Akayesu – Trial, above n 66, [588]–[589], followed in (icty) Jelisić – Trial, above n 68, [51]; Krstić – Trial, above n 70, [484]–[485], fn 1119; Blaškić – Trial, above n 67, [216], followed in Kordić – Trial, above n 70, [235]; Brđanin – Trial, above n 69, [386]; (eccc) Case 002/01 – Trial, above n 66, [412] (citing Akayesu and Blaškić); (Canada) Munyaneza – Trial, above n 57, [98]; (spet) Marques – Judgment, above n 34, [649]; and Cloe – J­udgment, above n 34, [15].

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2.4 Defences The crime of murder is only committed where the relevant act or omission is committed ‘without lawful excuse’.138 Accordingly, murder appears to be subject to a number of defences that would apply in the criminal justice systems of civilised nations. While the list of such defences could theoretically include a wide range of defences (e.g. self-defence, coercion, necessity, and reasonable mistake of law or fact), it is not clear whether all will apply. For instance, the icty and ictr have both held that duress or coercion will not absolve a person from liability, but will only go to sentencing.139 The icc Statute, however, provides for duress as a defence but limits it to situations not only where the person acts reasonably in the circumstances, but also where ‘the person does not intend to cause a greater harm than the one sought to be avoided’ and excludes mid- and senior-level decision-makers.140 That is, it would solely capture lower-ranking members in very exceptional circumstances (e.g. threats to the soldier’s self or family would not be sufficient to justify taking part in a large massacre). One uncontroversial defence, however, would appear to be self-defence. The Trial Chamber in Gotovina appeared to implicitly consider that ­self-defence would be a defence to murder either: on the basis that the person killed was a combatant (and therefore not a ‘victim’); or in where there was an ‘immediate illegitimate attack on the perpetrator’ and the response was ‘proportionate’ to that attack.141 3 Extermination Under customary international law, the underlying crime of ‘extermination’ as a crime against humanity requires the prosecution establish that the following 138 (ictr) Bagosora – Acquittal Decision, above n 71, [25], followed in Bagosora – Trial, above n 71, [2169]; Karera – Trial, above n 71, [558]; and (icty) Gotovina – Trial, above n 74, [1730] (where self-defence appeared to be recognised as a defence); see also Bassiouni, above n 10, 365. 139 (icty) Prosecutor v Erdemović (Trial Chamber Judgment), Case No IT-96-22-T (29 November 1996) (‘Erdemović – Trial’), [19] (Separate Opinion of Judges McDonald and Vohra) and [216] (Separate Opinion of Judge Li), (but see also Dissenting Opinion of Judge Cassese and Dissenting Opinion of Judge Stephen); and (ictr) Prosecutor v Vincent Rutaganira (Trial Chamber Judgment), Case No ICTR-95-1C (15 March 2005) (‘Rutaganira – Trial’), [51]. See also discussion in Bassiouni, above n 10, 620–623. 140 icc Statute, Art 31(1)(d); see also Bassiouni, above n 10, 622. 141 (icty) Gotovina – Trial, above n 74, [1730].

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elements were committed as part of a widespread or systematic attack against a civilian population:142 1.

Killing on a mass or large scale,143 including the infliction of conditions of life that would, or was calculated to, lead to the victims’ deaths.144

142 See also (spet) untaet Regulation 2000/15, s 5.1(b), 5.2(a) (drafted in line with the icc Statute). The crime has also been unhelpfully defined by some ictr Chambers as requiring that the perpetrator intentionally participated in the killing of certain named or described persons and the act or omission was ‘unlawful’, the unlawfulness comes from the ‘mass’ or ‘large’ killing: (ictr) Akayesu – Trial, above n 66, [591]–[592]; Prosecutor v Jean Kambanda (Trial Chamber Judgment), Case No ICTR-97-23 (4 September 1998) (‘Kambanda – Trial’), [141]–[147]; Kayishema – Trial, above n 68, [141]–[147]; Rutaganda – Trial, above n 34, [82]–[84], Musema – Trial, above n 66, [217]–[219]; Prosecutor v Emmanuel Rukundo (Appeals Chamber Judgment), Case No ICTR-2001-70-A (20 October 2010) (‘Rukundo – Appeal’), [185]; Prosecutor v Athanase Seromba (Appeals Chamber Judgment), Case No ICTR-01-66 (12 March 2008) (‘Seromba – Appeal’), [189]; Prosecutor v Gacumbitsi (Appeals Chamber Judgment), Case No ICTR-2001-64-A (7 July 2006) (­‘Gacumbitsi – Appeal’), [86]; Ndindabahizi v Prosecutor (Appeals Chamber Judgment), Case No ICTR-01-71-I-A (16 January 2007) (‘Ndindabahizi – Appeal’), [135]; Prosecutor v Ntakirutimana (Appeals Chamber Judgment), Case No ICTR-96-10-A & ICTR-96-17-A (13 December 2004) (‘Ntakirutimana – Appeal’), [516], [522]; and Prosecutor v Nyiramasuhuko et al. (Trial Chamber Judgment), Case No ICTR-98-42 (24 June 2011) (‘Nyiramasuhuko – Trial’), [6048]. 143 (icty) Vasiljević – Trial, above n 70, [221], followed in Brđanin – Trial, above n 69, [389]; Blagojević – Trial, above n 70, [573]; Prosecutor v Stakić (Appeals Chamber Judgment), Case No IT-97-24-A (22 March 2006) (‘Stakić – Appeal’), [260]; Martić – Trial, above n 69, [62]; Lukić – Trial, above n 79, [937]; (ictr) Akayesu – Trial, above n 66, [591] (following the commentary on the ilc Draft Code of Crimes against the Peace and Security of Mankind, Report of the ilc on the work of its 48th session, 6 May – 26 July 1996, un Doc. A/51/10, 51st session, supp. no. 10, Article 18, (‘ilc Draft Code of Crimes against the Peace and Security of Mankind’), 118)), followed in Seromba – Appeal, above n 143, [189]–[190]; Ntakirutimana – Appeal, above n 143, [516]; Bagosora – Trial, above n 71, [2191]; (scsl) ruf – Trial, above n 66, [130]; (eccc) Duch – Trial, above n 66, [338]; Case 002/01 – Trial, above n 66, [417]; and (icc) Prosecutor v Omar Hassan Ahmad Al Bashir (Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir), Pre-Trial Chamber i, ICC-02/05-01/09-3 (4 March 2009) (‘Al Bashir – Arrest Warrant Decision’), [96] (citing also the jurisprudence of the icty and ictr), Elements of Crimes. 144 (icty) Krstić – Trial, above n 70, [503]; Brđanin – Trial, above n 69, [389]; Stakić – A ­ ppeal, above n 144, [259]; Prosecutor v Lukić Milan and Lukić Sredoje (Appeals Chamber ­Judgment), Case No IT-98-32-/1-A (4 December 2012) (‘Lukić – Appeal’), [536]; (ictr) Kayishema – Trial, above n 68, [146]–[147]; Ntakirutimana – Appeal, above n 143, [522]; Prosecutor v Yussuf Munyakazi (Appeals Chamber Judgment), Case No ICTR-97-36A (28 September 2011) (‘Munyakazi – Appeal’), [141]; Seromba – Appeal, above n 143, [189]

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2.

The perpetrator takes part in, or undertakes any act or omission which contributes, directly or indirectly, to the killing.145 3. The perpetrator does so with the intention: a. to kill, or participate in the killing, on a large scale;146 or b. to subject [or participate in the subjection of]147 people to conditions of life that would, or was calculated to, lead to their deaths; or c. [to commit the relevant acts with knowledge that the deaths of a large number of people were the probable consequence of the act or omission.]148 Article 7(1)(b) of the icc Statute prescribes ‘extermination’ as a crime against humanity. Article 7(2)(b) defines extermination as ‘the intentional infliction (scsl) ruf – Trial, above n 66, [130]; (eccc) Duch – Trial, above n 66, [334]; Case 002/01 – Trial, above n 66, [416]; and (iht) Prosecutor v Anfal (Special Verdict), Iraqi High Tribunal, Case No 1/CSecond/2006 (24 July 2007) (‘Anfal – Trial’), 528. See also icc Statute, Art 7(2)(b). 145 (icty) Vasiljević – Trial, above n 70, [221], followed in Brđanin – Trial, above n 69, [389]; Blagojević – Trial, above n 70, [573]; Martić – Trial, above n 69, [62]; Lukić – Trial, above n 79, [937]; Perišić – Trial, above n 100, [106]; (ictr); Prosecutor v Emmanuel Ndindabahizi (Trial Chamber Judgment), Case No ICTR-01-71 (15 July 2004) (‘Ndindabahizi – Trial’) [479]; Rutaganda – Trial, above n 34, [83]; Musema – Trial, above n 66, [218]; Prosecutor v Yussuf Munyakazi (Trial Chamber Judgment), Case No ICTR-97-36A (5 July 2010) (‘Munyakazi – Trial’), [506]; Seromba – Appeal, above n 143, [189]; Bagosora – Trial, above n 71, [2191], Ndindabahizi – Appeal, above n 143, [123]; (scsl) ruf – Trial, above n 66, [130]–[131]; and Bassiouni, above n 10, 369. See also (iht) Anfal – Trial, above n 145, 528. 146 (ictr) Ntakirutimana – Appeal, above n 143, [522]; Gacumbitsi – Appeal, above n 143, [86]; Bagosora – Trial, above n 71, [2191]; (icty) Stakić – Appeal, above n 144, [259]–[260]; Prosecutor v Krajišnik (Trial Chamber Judgment), Case No IT-00-39-T (27 September 2006) (‘Krajišnik – Trial’), [716]; Lukić – Trial, above n 79, [939]; Brđanin – Trial, above n 69, [395], affirmed in Brđanin – Appeal, [476]; (scsl) ruf – Trial, above n 66, [131], [134]; (eccc) Duch – Trial, above n 66, [338]; and Case 002/01 – Trial, above n 66, [417]. 147 While not stated explicitly by the ad hoc tribunals, this addition appears to be implied. 148 (icty) Stakić – Trial, above n 30, [641]–[642]; Krstić – Trial, above n 70, [495]; Martić – Trial, above n 69, [65]; Blagojević – Trial, above n 70, [571]; Lukić – Trial, above n 79, [939]; Perišić – Trial, above n 100, [106]; (scsl) ruf – Trial, above n 66, [130]–[131]; Prosecutor v Brima, Karmara and Kanu (Decision on Defence Motion for Judgment of Acquittal Pursuant to Rule 98), Case No SCSL-2004-04-16-T469 (31 March 2006) (‘afrc – Rule 98 Decision’), [73]; (eccc) Duch – Trial, above n 66, [338]; and Case 002/01 – Trial, above n 66, [417]; see also Bassiouni, above n 10, 369. The standard is the same as that required for murder albeit on a large or massive scale and thus includes intention or recklessness, but not negligence or gross negligence: see (icty) Prosecutor v Radoslav Brđanin (Trial Chamber Judgment), Case No IT-99-36-A (3 April 2007) (‘Brđanin – Appeal’), [476] (approving Brđanin – Trial, above n 69, [395]; and (ictr) Ntakirutimana – Appeal, above n 143, [542]).

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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’. The icc Elements of Crimes requires that the prosecution establish the following elements occurred as part of a widespread or systematic attack against any civilian population: 1.

2.

The perpetrator killed149 one or more persons, including by inflicting conditions of life calculated to bring about the destruction of part of the population.150 [Mental element: The perpetrator:151 a. meant to perform one or more act or omission; and b. either: (i) meant to kill or cause the death of one or more persons by the act(s) or omission(s); or (ii) was aware that such a consequence would occur in the ordinary course of events as a result of the act(s) or omission(s).] The conduct constituted, or took place as part of,152 a mass killing of members of a civilian population. [Mental element: The perpetrator knew or was aware that the conduct constituted, or took place as part of, a mass killing of a civilian population.153]

3.1 ‘Mass killing’ or Killing of a ‘large number’ Under customary international law, the first limb of the actus reus for the underlying crime of extermination is satisfied where there is killing on a mass or large scale.154 The tribunals have also established that this includes direct 149 Footnote to the Elements of Crimes reads: ‘The conduct could be committed by different methods of killing, either directly or indirectly.’ 150 Footnote to the Elements of Crimes reads: ‘The infliction of such conditions could include the deprivation of access to food and medicine.’ 151 No mental element is specified meaning that Article 30 of the icc Statute provides that ‘intent and knowledge’ apply as discussed above at Section 1.2.3. 152 Footnote to the Elements of Crimes reads: ‘The term “as part of” would include the initial conduct in a mass killing”. 153 No mental element is specified meaning that Article 30 of the icc Statute provides that ‘intent and knowledge’ apply as discussed above at Section 1.2.3. 154 (icty) Vasiljević – Trial, above n 70, [221], followed in Brđanin – Trial, above n 69, [389]; Blagojević – Trial, above n 70, [573]; Stakić – Appeal, above n 144, [260]; Martić – Trial, above n 69, [62]; Lukić – Trial, above n 79, [937]; (ictr) Akayesu – Trial, above n 66, [591] (following the commentary on the ilc Draft Code of Crimes against the Peace and Security of Mankind, above n 144, 118)), followed in Seromba – Appeal, above n 143, [189]–[190];

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killing as well as through indirect killing, namely, subjecting a group to conditions that would, or is calculated to, bring about their destruction.155 At the icc, the Elements of Crimes similarly require that the perpetrator ‘killed one or more persons, including by inflicting conditions of life calculated to bring about the destruction of a part of the population’ (Element 1) and that the conduct ‘constituted, or took place as part of, a mass killing of members of a civilian population’ (Element 3). Two main questions arise in respect of the Element 1: 1. 2.

What is ‘mass’ or ‘large’ scale? What is killing and indirect killing?

3.1.1 ‘Mass’ or ‘large’ Scale Most cases,156 the ilc157 and scholars,158 do not elaborate on what precisely is a ‘large number’ or a ‘mass killing’. Further, the ad hoc Tribunals have consistently reiterated that no minimum number of victims must be killed.159 The term Ntakirutimana – Appeal, above n 143, [516]; Bagosora – Trial, above n 71, [2191]; (eccc) Duch – Trial, above n 66, [338]; Case 002/01 – Trial, above n 66, [417]; (scsl) ruf – Trial, above n 66, [130]; and (icc) Bashir – Arrest Warrant Decision, above n 144, [96] (citing also the jurisprudence of the icty and ictr), Elements of Crimes. 155 (icty) Krstić – Trial, above n 70, [503]; Brđanin – Trial, above n 69, [389]; Stakić – Appeal, above n 144, [259]; Lukić – Appeal, above n 145, [536]; (ictr) Kayishema – Trial, above n 68, [146]–[147]; Ntakirutimana – Appeal, above n 143, [522]; Munyakazi – Appeal, above n 145, [141]; Seromba – Appeal, above n 143, [189]; (scsl) ruf – Trial, above n 66, [130]; (eccc) Duch – Trial, above n 66, [334]; Case 002/01 – Trial, above n 66, [416]; and (iht) Anfal – Trial, above n 145, 528. 156 See, for instance (icty) Stakić – Appeal, above n 144, [260]; Brđanin – Appeal, above n 149, [471]; Lukić – Trial, above n 79, [936]; Vasiljević – Trial, above n 70, [229] (but cf. [227]); Ntakirutimana – Appeal, above n 143, [521]–[522]; and Prosecutor v Bisengimana (Trial Chamber Judgment), Case No ICTR-00-60-T (13 April 2006) (‘Bisengimana – Trial’), [70]–[71]. 157 Report of the International Law Commission on the work of its forty-eighth session, 6 May – 26 July 1996, un gaor, 51st sess, Supp. 10, un Doc. A/51/10 (26 July 1996), reprinted in [1996] 2 Year Book of the International Law Commission 79, 96–97. 158 See Cassese, above n 108, 94–95; and Guénaël Mettraux, International Crimes and the Ad Hoc Tribunals (Oxford University Press: Oxford, 2005) 176–178. 159 (icty) Stakić – Appeal, above n 144, [260] (following Ntakirutimana – Appeal), followed in Brđanin – Appeal, above n 149, [471]; (ictr) Kayishema – Trial, above n 68, [142]; B ­ agilishema – Trial, above n 68, [87], followed in Prosecutor v Kajelijeli (Trial Chamber Judgment) Case No ICTR-98-44A-T (1 December 2004) (‘Kajelijeli – Trial’), [891];

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must be determined on a case-by-case basis using a common-sense ­approach and considering all relevant factors.160 Put differently, the ictr in Nahimana described the ‘large scale’ or ‘massiveness requirement’ as more of a conceptual requirement than a numerical requirement – one that reiterates the point that the crime must target a group rather than individuals.161 Accordingly, it may not be even necessary to specify a precise number of persons killed if a sufficiently large group was targeted. The ictr Trial Chamber in Rukando found extermination was committed against an unknown number of people at St Leon Seminary in the Gitarama prefecture in Rwanda. The Court focused on ‘the repetitive nature of the abductions and the fact that at least one bus was used to remove the identified refugees’.162 This supports the principle established by the ictr Appeals Chamber in Ntakirutimana that a prosecution need not precisely identify ‘certain named or described persons’ were killed; it is sufficient that mass killings occurred.163 Nonetheless, the requirement of a mass or large number would seem to necessarily import a requirement of scale. As the eccc has held, a ‘one or a limited number of killings’ would not suffice.164 Early ad hoc Tribunal authorities considering extermination emphasised that the essence of the crime was one directed against a group or population rather than individuals. The ictr Trial Chamber in Akayesu held that extermination is a crime which ‘by its very nature is directed against a group of individuals’ and ‘differs from murder in that it requires an element of mass destruction’.165 Similarly, the icty Trial Chamber in Vasiljević held that ‘the act of extermination must be collective in P­ rosecutor v Nahimana (Trial Chamber Judgment), Case No ICTR-99-52-T (3 December 2003) (‘Nahimana – Trial’), [1061]; Prosecutor v Kamuhanda (Trial Chamber Judgment), Case No ­ICTR-99-54A (22 January 2004) (‘Kamuhanda – Trial’), [692], all followed in ­Ntakirutimana – Appeal, above n 143, [516]; see also (scsl) ruf – Trial, above n 66, [132]; (eccc) Duch – Trial, above n 66, [336]; and Case 002/01 – Trial, above n 66, [416]. 160 (ictr) Kajelijeli – Trial, above n 160, [891]; Kamuhanda – Trial, above n 160, [692] (decisions cited with approval in Ntakirutimana – Appeal, above n 143, [516], fn 882); (icty); Brđanin – Trial, above n 69, [391], fn 926; Blagojević – Trial, above n 70, [573]; Stakić – Trial, above n 30, [640]; Lukić – Trial, above n 79, [938]; Perišić – Trial, above n 100, [107]; and (scsl) ruf – Trial, above n 66, [132]. 161 (ictr) Nahimana – Trial, above n 160, [1061]. 162 (icty) Prosecutor v Emmanuel Rukundo (Trial Chamber Judgment), Case No ICTR-01-70 (27 February 2009) (‘Rukundo – Trial’), [589]. 163 (ictr) Ntakirutimana – Appeal, above n 143, [518], [521], followed in (icty) Stakić – A ­ ppeal, above n 144, [259], fn 552; Martić – Trial, above n 69, [64]; and (scsl) ruf – Trial, above n 66, [132]. 164 (eccc) Duch – Trial, above n 66, [336]; 165 (ictr) Akayesu – Trial, above n 66, [591].

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nature rather than directed towards singled out individuals’.166 Similar statements have been made by other Trial Chambers.167 The icty Trial Chamber in Krstić took this point even further, holding that the crime of extermination requires that ‘a particular population was targeted’ and that its members were ‘killed or otherwise subjected to conditions of life calculated to bring about the destruction of a numerically significant part of the population’.168 The Chamber held that while there is no ‘substantiality threshold as such in term [sic] of the actual killings perpetrated, both [extermination and genocide] require that killings be part of an extensive plan to kill a substantial part of a civilian population’.169 The Chamber pointed to the ilc Draft Code’s statement that the crime of extermination is distinguished from ­genocide only in that the targeted population does not necessarily have any common national, ethnical, racial or religious characteristic and that it covers situations where ‘some members of a group are killed while others are spared’.170 The icty Appeals Chamber in Stakić clarified, however, that the prosecution need not establish a ‘vast scheme of collective murder’ or knowledge of such a scheme.171 The icty Appeals Chamber in Krstić held that while the accused need not have any plan or policy to commit the relevant offence, it did not specifically overturn the suggestion that a ‘significant’ or ‘substantial’ part of a civilian population be targeted.172 Despite this, later Tribunals have not picked up this wording and Mettraux disputes that a significant part of the population must be destroyed.173 At the very least, the size of the population killed will be relevant to determining whether the killing targeted a group rather than individuals. But from what number can such an inference be drawn? It seems relatively clear that 166 (icty) Vasiljević – Trial, above n 70, [227]. 167 (icty) Krstić – Trial, above n 70, [503]; and (ictr) Semanza – Trial, above n 135, [340] (‘termination may be differentiated from murder in that it is directed against a population rather than individual’), followed in Ntagerura – Trial, above n 99, [701]. 168 (icty) Krstić – Trial, above n 70, [503] (emphasis added). 169 (icty) Krstić – Trial, above n 70, [685] (emphasis added). See also (ictr) Semanza – Trial, above n 135, [340] (stating that ‘[t]he scale of the killing required for extermination must be substantial’). 170 (icty) Krstić – Trial, above n 70, [500] (citing 1996 ilc Report, 118). 171 (icty) Stakić – Appeal, above n 144, [258]–[259]. 172 (icty) Prosecutor v Krstić (Appeals Chamber Judgment), Case No IT-98-33-A (19 April 2004) (‘Krstić – Appeal’), [225]. 173 Guénaël Mettraux, ‘Crimes against Humanity in the Jurisprudence of the International Criminal Tribunals For The Former Yugoslavia and For Rwanda’ (2002) 43 Harvard International Law Journal 237, 285.

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killing in the thousands would reach the necessary threshold. The icty Trial Chamber in Vasiljević noted that the decisions in Nuremberg usually involved killing in the thousands.174 Judge Van den Wyngaert in the icty case of Lukić & Lukić noted that the icty and ictr cases have usually involved deaths in the thousands or tens of thousands.175 Similarly, the icty Appeals Chamber in Brđanin was satisfied that the death of 1,669 people would suffice.176 The icty Trial Chamber in Blagojević rejected the suggestion that the crime must involve deaths in the thousands.177 Nonetheless, the Tribunals appear to have had some difficulty when dealing with numbers of killings less than thousands (and particularly, killing below the hundreds). The icty Trial Chamber in Vasiljević was unable to find any case of extermination prior to 1992 where less than 733 people were killed.178 Since then, however, Trial Chambers have differed. On the one hand, three Trial Chambers have found extermination to have been satisfied where less than 100 victims were killed.179 While some have added a number of other decisions to support this proposition, such decisions are usually not clear about whether the Chamber found that each individual incident amounted to extermination or only when taken together (as discussed further below).180 On the other hand, a Special Panel in East Timor 174 (icty) Vasiljević – Trial, above n 70, [227], fn 587. 175 (icty) Lukić – Trial, above n 79, [1122], [1125] and authorities cited. See also (icty) Blagojević – Trial, above n 70, [573], [577] (where over 7000 people were killed in Srebrenica); and (ictr) Prosecutor v Simba (Trial Chamber Judgment), Case No ICTR-01-76-T (13 December 2005) (‘Simba – Trial’), [423] (where the thousands of Tutsis who had gathered in parishes and churches in the Gikongoro prefecture were killed during the course of 5 massacres). 176 (icty) Brđanin – Appeal, above n 149, [471]. This figure was reached by combining the killing of between 68 and 300 people in five different locations. 177 (icty) Blagojević – Trial, above n 70, [573], accepted by Judge Van den Wyngaert in Lukić – Trial, above n 79, [1117]. 178 (icty) Vasiljević – Trial, above n 70, [227], fn 587 (referring to (Nuremberg) United States v Otto Ohlendorf et al. 4 ccl 10 Trials 411 (1950) (‘The Einsatzgruppen Case’), 421. 179 (icty) Lukić – Trial, above n 79, [945], [949] (59 victims and 60 victims); (ictr) Prosecutor v Ephrem Setako (Trial Chamber Judgment), Case No ICTR-04-81-T (25 February 2010) (‘Setako – Trial’), [481] (30 to 40 victims), upheld on appeal although without any discussion (Setako – Appeal, [301]); and (scsl) ruf – Trial, above n 66, [1107] (63 victims), [1271] (30 to 40 victims), [1449] (64 victims), upheld on appeal although without any discussion. See also (Bangladesh) Chief Prosecutor v Muhammad Kamaruzzaman (Judgment) (ICT2), ict-bd Case No. 03 of 2012 (9 May 2013) (‘Kamaruzzaman – Judgment’), [291], [350] (where 120 deaths appeared to suffice). 180 (icty) Krajišnik – Trial, above n 147, [699], [720] (66 persons – although the decision may be justified on the accumulation rationale discussed immediately below); and

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declined to hold that the killing of 47 people amounted to the crime of extermination.181 Similarly, the Trial Chamber in Martić held that the killing of 41 people did not reach the necessary threshold.182 As discussed further below, Judge Van den Wyngaert’s dissenting judgment in Lukić & Lukić supports the view that killings must at least be in the thousands. The element of massiveness may be achieved by combining a number of smaller killings together such that, when viewed as a whole, they constitute a ‘large’ or ‘mass’ number. This approach comes from the icty Trial Chamber decisions in Stakić and Brđanin. In Stakić, the Trial Chamber held that it was not necessary that a large number of killings occur in a single incident in a c­ oncentrated place over a short period.183 In Brđanin, the Trial Chamber held that extermination may be established through ‘an accumulation of separate and unrelated incidents, meaning on an aggregate basis.’184 Accordingly, the Trial Chamber concluded that the crime of extermination was committed through five different incidents where between 68 and 300 were killed in each.185 These decisions have since been followed by a number of other chambers.186 While the point was not challenged on appeal in Brđanin, the Appeals Stakić – Trial, above n 30, [653] (The Chamber found that a number of killings – taken together – constituted extermination. The Chamber noted, however, that ‘many [of the killings …] would independently reach the requisite level of massiveness’. One such killing included the killing of 77 at Briševo. However, it is not clear that this incident was one of the ‘many’ that would in itself suffice. The Appeals Chamber did not address this point – Stakić – Appeal, above n 144, [264]). 181 (spet) Prosecutor v Januario da Costa and Mateus Punef (Judgment), Special Panel Case No 22/2003 (27 April 2005) (‘Da Costa – Judgment’), 19. 182 (icty) Martić – Trial, above n 69, [405], [183]. 183 (icty) Stakić – Trial, above n 30, [640]. Although the Chamber did suggest – but not explicitly find – that the individual incidents would in themselves reach the relevant threshold. 184 (icty) Brđanin – Trial, above n 69, [391]. The decision relied upon the Trial Chamber’s earlier decision in Prosecutor v Radoslav Brđanin (Decision on Motion for Acquittal Pursuant to Rule 98 bis), Case No IT-99-36-T (19 March 2004) (‘Brđanin – Rule 98’), [73], where the chamber found that ‘there is no basis in law or jurisprudence for the Defence submission that the commission of the crime of extermination cannot be established by an accumulation of separate and unrelated incidents’. The chamber also drew support from the decision in Stakić – Trial, above n 30, to the effect that what was ‘large’ must be determined on a common-sense basis. 185 (icty) Brđanin – Trial, above n 69, [399]–[465]. 186 (icty) Martić – Trial, above n 69, [63]; Lukić – Trial, above n 79, [938]; Perišić – Trial, above n 100, [107]; and (scsl) ruf – Trial, above n 66, [132].

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Chamber appeared to accept the Trial Chamber’s view (albeit not entirely clearly).187 The point also appears to have been implicitly accepted by the ictr Appeals Chamber in Bagosora.188 Separate killings may only be accumulated where each individual incident is similar enough that they can fairly be said to constitute the same incident.189 Factors relevant to this assessment will include:190 • the time and place of the killings; • the selection of the victims; and • the manner in which they were targeted’. On the facts found by the Appeals Chamber in Bagosora, it was unreasonable to aggregate the incidences considering that the events were ‘committed in different prefectures, in different circumstances, by different perpetrators, and over a period of two months’.191 Important in this conclusion was that the Appeals Chamber overturned the key factual finding of the Trial Chamber that the separate incidents were all linked by the same set of orders or authorisations from the accused.192 The majority of the icty Trial Chamber in Lukić & Lukić (Judge Van den Wyngaert dissenting) held that a number of other considerations would also be relevant to this analysis. First, the majority held that the density of the population was relevant. In particular, ‘while there may be a higher threshold for a finding of extermination in a densely-populated area, it would not be i­nappropriate to find extermination in a less densely-populated area on the ­basis of a lower

187 (icty) Brđanin – Appeal, above n 149, [471]–[472] (‘[s]ince the parties do not challenge the Trial Chamber’s decision … the Appeals Chamber need not consider this issue. Suffice it to say that, with respect to those specific incidents cited by the Prosecution which involved the killing of between 68 and 300 people in each of the five locations, the Appeals Chamber considers that the scale of the killings, in light of the circumstances, meets the required threshold of massiveness for the purposes of extermination.’). 188 (ictr) Bagosora and Nsengiyumva v Prosecutor (Appeals Chamber Judgment), Case No ICTR-98-41-A (14 December 2011) (‘Bagosora – Appeal’) [396]. 189 (ictr) Bagosora – Appeal, above n 189, [396]; and (icty) Krajišnik – Trial, above n 147, [716]. 190 (icty) Krajišnik – Trial, above n 147, [716], followed in Perišić – Trial, above n 100, [107], fn 216. 191 (ictr) Bagosora – Appeal, above n 189, [396]. 192 (ictr) Bagosora – Appeal, above n 189, [395]–[396].

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threshold, that is, fewer victims.’193 Secondly, the majority found it relevant to consider the type of victims (particularly, their vulnerability194). In Lukić & Lukić, one of the two incidents discussed concerned the Pionirska Street incident (also discussed in Krajišnik).195 The victims were from a village called Koritnik, one of the smaller and less densely populated villages along the Drina River in Bosnia.196 The victims were mainly elderly persons, women and children.197 Serbs from neighbouring villages told them that they would be evacuated to the Serb village of Kladanj. Instead, Milan Lukić herded them into a room where the floor had been covered with an accelerant.198 The room was then set on fire and the victims prevented from escaping. One particularly chilling piece of evidence was an order from Lukić that ‘not an ear should remain of the Kurspahić family’.199 In a thoughtful dissent in Lukić & Lukić, Judge Van den Wyngaert found the killings did not reach the necessary threshold to amount to extermination.200 Van den Wyngaert found that the scale of killings must be ‘the most relevant factor’ in determining whether a mass killing has reached the requisite threshold.201 Van den Wyngaert considered that the majority’s reliance on population density was erroneous. First, was highly subjective (for instance, is the crime committed in the small town of Koritnik or the larger Visegrad ­municipality202). Secondly, it was too far removed from the concept of ‘massiveness’ and could lead to untenable results (for instance, the killing of 20 in a small village being extermination while the killing of 1000 in a city would not be).203 Van den Wyngaert held that the ‘[t]he massiveness of the killing is the distinctive element which distinguishes the crime of extermination from the crime of murder.’204 As such, ‘[t]o lower the threshold by which we measure 193 (icty) Lukić – Trial, above n 79, [938]. 194 (icty) Lukić – Trial, above n 79, [950]. 195 (icty) Lukić – Trial, above n 79, [941]–[946]. The second incident, the Bikavac fire, involved very similar circumstances: see [948]–[951]. 196 (icty) Lukić – Trial, above n 79, [943]. 197 (icty) Lukić – Trial, above n 79, [943]. 198 (icty) Lukić – Trial, above n 79, [944]. 199 (icty) Lukić – Trial, above n 79, [948]–[951]. 200 (icty) Lukić – Trial, above n 79, [1114], [1128]. 201 (icty) Lukić – Trial, above n 79, [1117]. 202 (icty) Lukić – Trial, above n 79, [1118], [1127]. 203 (icty) Lukić – Trial, above n 79, [1119]. 204 (icty) Lukić – Trial, above n 79, [1115].

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­massiveness n ­ ecessarily lowers the threshold by which exterminations are defined, to the detriment of the standards of gravity’.205 This second argument was informed by two key considerations. First, that extermination is best understood as a crime of mass murder carried out on a comparable scale to genocide but without the same discriminatory intent.206 This point has some support in the Iraqi High Tribunal, where the statute describes the underlying crime of extermination as ‘genocide’ or ‘eradication’.207 Secondly, a review of jurisprudence of the ad hoc Tribunals demonstrates that extermination has overwhelmingly been used to describe killings in the hundreds of thousands, or, at minimum and in the cases of amalgamations of a number of different killings, in the thousands.208 Ultimately, the majority view in Lukić & Lukić was affirmed on Appeal.209 This was essentially on two bases. First, the Appeals Chamber held that there have been a range of cases that have found extermination to have occurred where small numbers of victims (in particular, less than 100 victims) had been killed.210 Secondly, the Appeals Chamber considered that the early authorities that directed attention to the targeting of a group or population (such as the icty Trial Chamber in Krstić) supported the majority’s ‘relative’ approach.211 In the authors’ view, both arguments appear flawed. As to the first, when the cases cited are looked at, only 3 Trial Chambers have clearly made such a finding. As discussed above, a number of other Chambers should better be understood as finding only that extermination was satisfied based on an ­accumulation of smaller events. But more profoundly, such authorities in themselves should not suffice to found the Chamber’s finding without a principled analysis and more expansive examination of the crime of extermination, such as that undertaken by the dissenter at first instance. As to the second, the Appeals Chamber appears to proceed on a misunderstanding of early authorities such as Krstić. While the Trial Chamber and other sources certainly directed attention to the ‘population’, this was usually­ 205 (icty) Lukić – Trial, above n 79, [116], [1120]. 206 (icty) Lukić – Trial, above n 79, [1121]. 207 (iht) Anfal – Trial, above n 145, 528. Although, of course, this may just be a translation issue. 208 (icty) Lukić – Trial, above n 79, [1122]–[1127]. 209 (icty) Lukić – Appeal, above n 145, [531]–[546]. 210 (icty) Lukić – Appeal, above n 145, [537]. 211 (icty) Lukić – Appeal, above n 145, [538].

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being used in a similar sense to the population at large (in an analogous way to the ‘any civilian population’ element in the chapeau to crimes against ­humanity). This does not lead by analogy to the finding that a population can be one small village. Furthermore, it was Krstić in particular which emphasised that there be a ‘large number of victims’ that make up a ‘significant proportion’ of the population. The majority appears to overlook this aspect of the judgment. The position is not presently settled as it remains to be seen whether the Appeals Chamber in Lukić & Lukić will be followed. Judge Van de Wyngaert makes the compelling point that the notion of a relative definition – like in the context of ‘population’ – is unclear and subjective. It is for this reason dangerously close to contravening the basic principle that a defendant is to know the law against which he is accused to have breached. Further, in the case of any ambiguity, the question should be resolved in favour of the accused. 3.1.2 ‘Killing’ (Direct or Indirect) Both the ad hoc Tribunals and the icc contemplate that extermination may be committed directly (through killing) or indirectly (through subjecting a group to conditions that would, or is calculated to, bring about their destruction).212 The meaning of direct killing will not likely cause many problems as it requires essentially the same material elements as the underlying crime of murder discussed above, albeit on a large scale.213 The prosecution need not precisely identify ‘certain named or described persons’ as being the victims who were killed; it is sufficient that mass killings occurred.214 Indirect killing is less clear. Unfortunately, the ad hoc tribunals have not always been clear or consistent with the terminology they have used. Some have stated that it simply involves the indirect killing of a large or mass number of

212 (icty) Krstić – Trial, above n 70, [503]; Brđanin – Trial, above n 69, [389]; Stakić – Appeal, above n 144, [259]; Lukić – Appeal, above n 145, [536]; (ictr) Kayishema – Trial, above n 68, [146]–[147]; Ntakirutimana – Appeal, above n 143, [522]; Munyakazi – Appeal, above n 145, [141]; Seromba – Appeal, above n 143, [189]; (scsl) ruf – Trial, above n 66, [130]; (eccc) Duch – Trial, above n 66, [334]; Case 002/01 – Trial, above n 66, [416]; and (iht) Anfal – Trial, above n 145, 528. See also icc Statute, Art 7(2)(b) (a footnote to the word ‘killed’ reads: ‘The conduct could be committed by different methods of killing, either directly or indirectly’). 213 (ictr) Akayesu – Trial, above n 66, [591]. 214 (ictr) Ntakirutimana – Appeal, above n 143, [518], [521], followed in (icty) Stakić – A ­ ppeal, above n 144, [259], fn 552; Martić – Trial, above n 69, [64]; and (scsl) ruf – Trial, above n 66, [132].

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people.215 Others have required the infliction of conditions of life that would, or that is calculated to, bring about the destruction of part of the population.216 Others still have required the subjecting a widespread number of people, or systematically subjecting a number of people, to conditions of life that would lead to their death.217 While the use of concepts such as ‘widespread’, ‘systematic’ and ‘population’, may be useful as indicating what is a ‘large’ number or a ‘mass’ killing, they may confuse the chapeau elements of the crime with the underlying crimes.218 In any event, it is not clear that they intend any substantively different standard to the much simpler formulation that requires the perpetrator/accused to subject a large number of people to conditions of living that would, or are calculated to, lead to their death.’219 In one us case, a blockade of medical and food supplies was considered at least at a preliminary stage to be sufficient to found an attack against a civilian 215 (icty) Brđanin – Trial, above n 69, [389]; (ictr) Seromba – Appeal, above n 143, [189]; and (scsl) ruf – Trial, above n 66, [130]. 216 (icty) Krstić – Trial, above n 70, [503] (‘calculated to’); Brđanin – Trial, above n 69, [389] (using ‘lead to the death’, ‘provoking the victim’s death’ and ‘calculated to cause’); Stakić – Appeal, above n 144, [259] (‘would’); (ictr) Kayishema – Trial, above n 68, [146]–[147]; Ntakirutimana – Appeal, above n 143, [522] (‘would inevitably’); Munyakazi – Appeal, above n 145, [141] (‘would’); Seromba – Appeal, above n 143, [189] (‘indirectly causing death’); (scsl) ruf – Trial, above n 66, [130] (‘calculated to’); (eccc) Duch – Trial, above n 66, [338]; Case 002/01 – Trial, above n 66, [417] (‘inflict serious bodily injury or create conditions of living that lead to death’); and (iht) Anfal – Trial, above n 145, 528 (‘will lead to the eradication of a part of inhabitants belonging to a given community’). See also icc Statute, Art 7(2)(b). 217 (ictr) Ntakirutimana – Appeal, above n 143, [522]; (icty) Stakić – Appeal, above n 144, [259]. See also Lukić – Appeal, above n 145, [536] (where this terminology was referenced in the mens rea); and (ictr) Munyakazi – Appeal, above n 145 (‘or to subject a large number of people to conditions of living that would lead to their death in a widespread or systematic manner’). 218 See, for instance, the criticism of this approach in (eccc) Case 002/01 – Trial, above n 66, [420]. 219 (ictr) Ntakirutimana – Appeal, above n 143, [522] (‘subjecting a widespread number of people or systematically subjecting a number of people to conditions of living that would inevitably lead to death’); Munyakazi – Appeal, above n 145, [141] (‘subject a large number of people to conditions of living that would lead to their death in a widespread or systematic manner’); Kayishema – Trial, above n 68, [144] (‘creation of conditions of life that lead to the mass killing of others’); (icty) Stakić – Appeal, above n 144, [259] (‘subjection of a widespread number of people, or the systematic subjection of a number of people, to conditions of living that would lead to their deaths’); (scsl) afrc – Trial, above n 81, [684]; and ruf – Trial, above n 66, [130] (‘inflicting conditions of life calculated to bring about the destruction of part of a population’).

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population.220 Such a case provides an example of where the issue of indirect killing may arise. A further complication is that some tribunals have required that the measures ‘would’ or ‘would inevitably’ lead to death, while others following the icc have required that measures be ‘calculated to’ cause death.221 It is not clear whether this wording is materially different. The icty Trial Chamber in Brđanin, for instance, appeared to use the two interchangeably.222 It may be that the word ‘calculated’ suggests that the measures must not simply have the effect of killing a large number of people, but must be an intended goal of the measures.223 However, this is likely to be the same under the ‘would’ or ‘would inevitably’ formulation also. The icc expresses this element as requiring ‘the intentional infliction of conditions of life … calculated to bring about the destruction of a part of a population’. Given the similarity in the terminology to the various formulations of the ad hoc and internationalised tribunals, its interpretation is likely to be heavily influenced by the interpretation in the tribunals. Under both customary international law and the icc Statute, the crime is intended to cover more protracted or indirect means of killing persons such as through the deprivation of access to food and medicine.224 The ictr Trial Chamber in Kayishema stated that it may cover the imprisonment of a large number of people while withholding the necessities of life, introducing a deadly virus into a population and preventing medical care, which results in mass death.225 It would seem, however, that, without more, keeping individuals in degrading and inhumane conditions will not reach the necessary threshold.226 220 (United States) Sarei v Rio Tinto plc, 221 F. Supp. 2d 1116 (C.D. Cal., 2002) (‘Sarei v Rio Tinto – District Court’), 1150; see also Sarei v Rio Tinto plc, 671 F.3d 736 (9th Cir., 2011) (‘Sarei v Rio Tinto – Appeal’). 221 (icty) Krstić – Trial, above n 70, [503] (‘calculated to’); Brđanin – Trial, above n 69, [389] (‘provoking’); Stakić – Appeal, above n 144, [259] (‘would’); Lukić – Appeal, above n 145, [536] (‘would’ (ictr) Kayishema – Trial, above n 68, [146]–[147]; Ntakirutimana – Appeal, above n 143, [522] (‘would inevitably’); Munyakazi – Appeal, above n 145, [141] (‘would’); Seromba – Appeal, above n 143, [189] (‘indirectly causing death’); (scsl) afrc – Trial, above n 81, [684]; ruf – Trial, above n 66, [130] (‘calculated to’); and (iht) Anfal – Trial, above n 145, 528 (‘will’). 222 (icty) Brđanin – Trial, above n 69, [389]. 223 See discussion below at 3.3.3 in respect of the mens rea implications of this point. 224 In respect of the ad hoc Tribunals, see (icty) Brđanin – Trial, above n 69, [389]; and (icc) in respect of the icc, see McCormack, above n 5, 191. 225 (ictr) Kayishema – Trial, above n 68, [146]. 226 (icty) Brđanin – Trial, above n 69, [908].

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This crime is analogous to the third punishable act of genocide (‘[d] eliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part’).227 Schabas and Chesterman both point out that this element is useful where a mass killing has occurred but a prosecution is unable to prove the specific intent required for genocide.228 3.2 ‘Taking part in’ or ‘contributing to’ the Killing The second physical element of the underlying crime of extermination is that the perpetrator/accused must take part in, or undertakes any act or omission which contributes, directly or indirectly, to the killing.229 When a person may be said to ‘take part in’ or ‘contribute to’ the killing is a difficult area. The first question is whether a person can ‘take part in’ or ‘contribute to’ the killing if they only kill one or a small number of people. Following the ictr Trial Chamber in Kayishema, some Chambers have held that such a circumstance may constitute extermination if their killing objectively formed part of the ‘mass killing event’.230 The ictr Trial Chamber in Kayishema held that an ‘“event” exists when the (mass) killings have close proximity in time and place’.231 Accordingly, the Chamber held that, if ten far officers fired into a crowd of 200 Tutsis, killing them all, an officer would not escape liability simply because they are a poor shot and kills only a single person instead of another officer who killed many more. Other Chambers, following the icty Trial Chamber in Vasiljević dispute this view, finding that the killing of one or a limited number of people would not 227 William Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press: Oxford, 2010) 159. 228 Schabas, above n 228, 159; Simon Chesterman, ‘An Altogether Different Order: Defining the Elements of Crimes Against Humanity’ (2000) 10 Duke Journal of Comparative and International Law 307. 229 (icty) Vasiljević – Trial, above n 70, [221] and [229], followed in Brđanin – Trial, above n 69, [389]; Blagojević – Trial, above n 70, [573]; Martić – Trial, above n 69, [62]; Lukić – Trial, above n 79, [937]; Perišić – Trial, above n 100, [106]. See also (ictr) Ndindabahizi –  Trial, above n 146, [479]; Rutaganda – Trial, above n 34, [83]; Musema – Trial, above n 66, [218]; Munyakazi – Trial, above n 146, [506]; Seromba – Appeal, above n 143, [189]; Bagosora –  Trial, above n 71, [2191]; Ndindabahizi – Appeal, above n 143, [123], [516]; (scsl) ruf – Trial, above n 66, [130]–[131]; and (iht) Anfal – Trial, above n 145, 528. See also Bassiouni, above n 10, 369. 230 (ictr) Kayishema – Trial, above n 68, [147], followed in (scsl) afrc – Trial, above n 81, [683]. 231 (ictr) Kayishema – Trial, above n 68, [147].

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suffice.232 In its review of state practice, the Trial Chamber found that those who were charged with extermination usually had ‘authority or power over many other individuals or did otherwise have the capacity to be instrumental in the killing of a large number of individuals’.233 By contrast, persons ‘such as executioners, who were not in such position but who had participated in the killing of one or a number of individuals were generally charged with murder or related offences’.234 The matter appears to have been settled in favour of the former view by the ictr Appeals Chamber in Ntakirutimana. The Chamber held that it is not necessary to establish that the Accused had the authority or capacity to be ‘instrumental’ in the killings of a large number of people.235 Similarly, the icc has adopted the position in Kayishema. The Elements of Crimes define extermination as being where the perpetrator ‘killed one or more persons’ and that ‘[t]he conduct constituted, or took place as part of, a mass killing of members of a civilian population’.236 The Elements of Crimes further notes that the term ‘part of’ would include the initial conduct in a mass killing, which Schabas suggests is intended (like its counterpart in respect of the crime of genocide) to ensure that the definition captures the first perpetrators in what had not at that stage become a mass killing, but would ultimately do so.237 Of course, the perpetrator/accused would still need to satisfy the requisite mens rea. Accordingly, the persons would at least need to know that a mass killing event would result. The second question is whether a person may ‘take part in’ or ‘contribute to’ a mass killing without actually killing anyone themselves. At first blush, this would seem inconsistent with the basic actus reus for extermination being ‘the act of killing on a large scale’.238 232 (icty) Vasiljević – Trial, above n 70, [227], followed in (ictr) Prosecutor v Ntakirutimana (Trial Chamber Judgment), Case No ICTR-96-10-T & ICTR-96-17-T (21 February 2003) (‘Ntakirutimana – Trial’), [813] (perhaps receiving implicit support on appeal in ­Ntakirutimana – Appeal, above n 143, [516]). 233 (icty) Vasiljević – Trial, above n 70, [222]. 234 (icty) Vasiljević – Trial, above n 70, [222]. 235 (ictr) Ntakirutimana – Appeal, above n 143, [538]–[539], followed in (scsl) ruf – Trial, above n 66, [133]. 236 (icc) Elements of Crimes, Crimes Against Humanity, Article 7(1)(b). 237 Schabas, above n 228, 159. 238 See, for instance, (icty) Vasiljević – Trial, above n 70, [232], followed in (ictr) ­Ntakirutimana – Trial, above n 233, [813]. See also (ictr) Akayesu – Trial, above n 66, [592] and Ntakirutimana – Appeal, above n 143, [516].

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Nonetheless, in Ndindabahizi, the ictr Trial Chamber found that extermination ‘may be committed less directly than murder, as by participation in measures intended to bring about the deaths of a large number of individuals, but without actually committing a killing of any person’. In doing so, however, the Chamber cited the contradictory authorities of Kayishema and Vasiljević as well as the icty in Krstić, which was concerned with indirectly causing death rather than indirectly participating in others causing death.239 Applying these principles, the Trial Chamber found the actus reus satisfied by the accused ‘distributing weapons, transporting attackers, and speaking words of encouragement that would have reasonably appeared to give official approval for an attack’.240 On appeal, this finding was upheld. However, the Chamber importantly clarified that the Trial Chamber’s phrase ‘actually causing death’ should be read not as saying death need not be caused, but that the perpetrator’s participation in the killing may be indirect.241 In dissent, Judge Guney found that this finding misunderstands the prior authorities on extermination.242 Such a finding could only be made in the case ‘committing’ through a joint criminal enterprise.243 Judge Guney considered that the finding appeared to arise out of the ictr Appeals Chamber decision in Gacumbitsi. In the context of genocide, the Gacumbitsi Chamber (Judge Guney dissenting) found that an accused can ‘commit’ the crime not only ‘with one’s own hands’ but also where an accused’s actions are ‘as much an integral part of the genocide as were the killings which [they] enabled’.244 The decision in Gacumbitsi was first applied directly to crimes against humanity in the ictr Seromba case (Judge Liu dissenting). The accused, Father Athanase Seromba, was a Catholic priest that participated in the bulldozing of the Nyange church in Rwanda, killing around 1,500 displaced ethnic Tutsis. The Trial Chamber found that Seromba was informed of, and accepted, the ­local

239 (icty) Krstić – Trial, above n 70, [498] (‘… we surmise that the crime of extermination may be applied to acts committed with the intention of bringing about the death of a large number of victims either directly, such as by killing the victim with a firearm, or less directly, by creating conditions provoking the victim’s death’); Vasiljević – Trial, above n 70, [227]; and Kayishema – Trial, above n 68, [143], [146]. 240 (ictr) Ndindabahizi – Trial, above n 146, [485]. 241 (ictr) Ndindabahizi – Appeal, above n 143, [123], fn 268. 242 (ictr) Ndindabahizi – Appeal, above n 143, (Guney Dissenting Opinion), [3]. 243 (ictr) Ndindabahizi – Appeal, above n 143, (Guney Dissenting Opinion), [3]. 244 (ictr) Gacumbitsi – Appeal, above n 143, [60].

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authorities’ decision to bulldoze the church.245 The driver of the bulldozer ‘asked Seromba three times whether he should destroy the church’246 and the accused ‘said such words to [the] bulldozer driver … as would encourage him to destroy the church’ and even assisted by pointing to ‘the fragile side of the church.’247 The Trial Chamber initially found that Seromba had only aided and abetted the crime of genocide. However, the Appeals Chamber (by majority, Judge Liu dissenting) revised this decision and found Seromba responsible for committing genocide and extermination as a crime against humanity.248 Relying on the ictr Appeals Chamber’s decision in Gacumbitsi in the context of genocide,249 the Appeals Chamber held that Seromba’s presence, words and acceptance of the decision as well as his giving of directions amounted to an integral part of the bulldozing.250 As in Ndindabahizi, there was a dissenting judgment. Judge Liu disagreed with the majority, finding that the principle relied upon from the Appeals Chamber judgment in Gacumbitsi was not addressed to ‘committing’ international crimes per se, but in the specific context of genocide.251 Further, Judge Liu found that the Trial Chamber correctly cited a number of authorities that contradicted this approach.252 Despite the dissent, the Seromba Appeals Chamber has since been followed by at least one icty Trial Chamber in the context of murder.253 While the Appeals Chamber dismissed an appeal in the matter, it specifically left open whether the Seromba/Gacumbitsi line of authority should be followed.254 Ultimately, at customary international law, the better view is that of the majority in Ndindabahizi that the Seromba/Gacumbitsi line is correct. In one sense, Judge Liu may be correct to say that the view of the majority 245 (ictr) Prosecutor v Athanase Seromba (Trial Chamber Judgment), Case No ICTR-01-66 (13 December 2006) (‘Seromba – Trial’), [268]. 246 (ictr) Seromba – Trial, above n 246, [236]. 247 (ictr) Seromba – Trial, above n 246, [269]. 248 (ictr) Seromba – Trial, above n 246, [190]. 249 (ictr) Seromba – Appeal, above n 143, [161]. 250 (ictr) Seromba – Appeal, above n 143, [171]. 251 (ictr) Seromba – Appeal, above n 143, (Dissenting Opinion of Judge Liu), [2]. 252 Namely, (ictr) Prosecutor v Kayishema (Appeals Chamber Judgment), Case No ICTR95-1-A (1 June 2001) (‘Kayishema – Appeal’), [187]; (icty) Tadić – Appeal, above n 33, [188]; Krstić – Trial, above n 70, [601]; and Prosecutor v Kunarac, Kovac and Vukovic (Trial Chamber Judgment), Case No IT-96-23 & IT-96-23 (22 February 2001) (‘Kunarac – Trial’), [390]. 253 (icty) Lukić – Trial, above n 79, [898]–[899], [908]. 254 (icty) Lukić – Appeal, above n 145, [161]–[162].

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in N ­ dindabahizi appears to jar with the fundamental element of extermination – i.e. being ­murder being committed on a large scale255 – and conflate the ­elements of the crime with the mode of responsibility for that crime. But when the element itself is looked at, it is only required that the perpetrator ‘take part in’ the killing. There is no requirement that the person in fact do the killing. The evidence purpose is that a contribution to an extermination in any way is just as blameworthy contributing by way of pulling a trigger. The same result does not appear likely to follow at the icc. The Elements of Crimes appear only to contemplate the underlying conduct being killing. As noted above, the Elements of Crimes of extermination provide that ‘[t]he perpetrator killed one or more persons’ and that ‘[t]he conduct could be committed by different methods of killing’. It is then this conduct (i.e. this killing) that must have ‘constituted, or took place as part of’ the mass killing. The language appears to be starkly different to the formulation of the test of the ad hoc tribunals. While it remains to be seen whether the Ndindabahizi and Seromba lines of authority will be followed, to do so appears incompatible with the Elements of Crimes. 3.3 Mens Rea 3.3.1 Intention The majority of chambers have stated that the mens rea element is satisfied if the perpetrator intended, by their acts or omissions, either killing on a large scale or the subjection of a widespread number of people, or the systematic subjection of a number of people to conditions of living that would lead to their deaths.256 What this means is not entirely clear. Unfortunately, most chambers have simply stated that the mens rea element requires this intention, without elaborating. What can be said clearly is that the prosecution need not establish knowledge of a ‘vast scheme of collective murder’257 or have any plan or policy to commit the relevant offence.258 255 (ictr) Akayesu – Trial, above n 66, [591]. 256 (ictr) Ntakirutimana – Appeal, above n 143, [522]; Bagosora – Trial, above n 71, [2191]; (icty) Brđanin – Trial, above n 69, [395] (approved in Brđanin – Appeal, above n 149, [477]); Stakić – Appeal, above n 144, [259]–[260]; Lukić – Appeal, above n 145, [536]; and (scsl) ruf – Trial, above n 66, [131] and [134]. See also (ictr) Gacumbitsi – Appeal, above n 143, [86]. 257 (icty) Stakić – Appeal, above n 144, [258]–[259]; Blagojević – Trial, above n 70, [576]; (scsl) ruf – Trial, above n 66, [133]; and (eccc) Case 002/01 – Trial, above n 66, [418]–[419]. 258 (icty) Krstić – Appeal, above n 173, [225].

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The question arises as to the extent to which indirect intention (recklessness or dolus eventualis) will suffice. Despite the ‘intention’ formulation, a number of Trial Chambers have held that the mens rea will be satisfied if an accused has knowledge that the deaths of a large number of people were the probable consequence of the act or omission.259 This appears to be similar to the standards of recklessness and dolus eventualis referred to by the Brđanin Trial Chamber, which held that: The Prosecution is thus required to prove beyond reasonable doubt that the accused had the intention to kill persons on a massive scale or to create conditions of life that led to the death of a large number of people. The mens rea standard required for extermination does not include a threshold of negligence or gross negligence: the accused’s act or omission must be done with intention or recklessness (dolus eventualis).260 The Appeals Chamber in Brđanin noted that the Trial Chamber’s explanation of mens rea was correct.261 Accordingly, while the majority of chambers refer only to intention, this interpretation would appear to be consistent with the statements in the ad hoc Tribunals that the mental element for extermination is the same as that for ‘murder’, albeit on a large scale.262 This would point to the conclusion that both direct intention or recklessness (or dolus directus and dolus eventualis) will suffice, but negligence or gross negligence will not. This position is confused by the fact that the Appeals Chambers of the ad hoc tribunals (Ntakirutimana at the ictr Stakić at the icty) have discussed indirect killing as requiring that the accused subject a number of people to

259 (icty) Stakić – Trial, above n 30, [641]–[642]; Krstić – Trial, above n 70, [495]; Martić – T ­ rial, above n 69, [65]; Blagojević – Trial, above n 70, [571]; Perišić – Trial, above n 100, [106]; Lukić – Trial, above n 79, [939]; (scsl) ruf – Trial, above n 66, [130]–[131]; afrc – Rule 98 Decision, above n 150, [73]; (eccc) Duch – Trial, above n 66, [338]; and Case 002/01 – Trial, above n 66, [417]. See also Bassiouni, above n 10, 369. 260 (icty) Brđanin – Trial, above n 69, [395]. The footnote to the paragraph cites Stakić – Trial, above n 30, [587]: “The technical definition of dolus eventualis is the following: if the actor engages in life-endangering behaviour, his killing becomes intentional if he ‘reconciles himself’ or ‘makes peace’ with the likelihood of death”. 261 (icty) Brđanin – Appeal, above n 149, [476]. 262 (icty) Krstić – Trial, above n 70, [495]; Brđanin – Appeal, above n 149, [476] (approving Brđanin – Trial, above n 69, [395]); Krajišnik – Trial, above n 147, [716]; and (ictr) ­Ntakirutimana – Appeal, above n 143, [542].

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conditions of living that ‘would’ or ‘would inevitably’ lead to their death.263 This arguably imposes a higher standard than the ‘probability’ standard. The eccc Trial Chamber in Case 002-01 considered these cases as suggesting that the ad hoc tribunals had ‘seemingly evolved to exclude dolus eventualis from the definition of the mens rea for extermination’.264 The Chamber saw this as being incorrect and explicitly chose to follow the ‘probability’ line of authority over the ‘would’ line of authority.265 This has support in the scsl, where the Trial Chamber in the ruf Case considered the mens rea satisfied if the perpetrator intended ‘to cause serious bodily harm in the reasonable knowledge that it would likely result in death on a massive scale’.266 It is not clear, however, whether the Appeals Chambers in Ntakirutimana and Stakić intended to do anything other than clarify that the ‘intention’ ­standard applies in the context of indirect killing. Those decisions first ­reiterate – as stated above267 – that extermination by indirect killing requires that the accused participate in subjecting people to conditions that would or would inevitably lead to their death.268 They then say that the accused must have ‘intended’ that outcome. Accordingly, if the term ‘intention’ is understood to encompass recklessness and dolus eventualis – that is, in the terminology of the ad hoc tribunals, that the accused knew that that outcome was likely or probable – then such a standard would also apply to indirect killing notwithstanding the language of ‘would’ or ‘would inevitably’ being used. This is the way in which the eccc and scsl ultimately defined the element.269 263 (ictr) Ntakirutimana – Appeal, above n 143, [522] (‘participated in a widespread or systematic killing or in subjecting a widespread number of people or systematically subjecting a number of people to conditions of living that would inevitably lead to death, and that the accused intended by his acts or omissions this result’); and (icty) Stakić – Appeal, above n 144, [260] (following Ntakirutimana, ‘[t]he mens rea of extermination clearly requires the intention to kill on a large scale or to systematically subject a large number of people to conditions of living that would lead to their deaths’), followed in Lukić – Appeal, above n 145, [536]. 264 (eccc) Case 002/01 – Trial, above n 66, [417]. 265 (eccc) Case 002/01 – Trial, above n 66, [417]. 266 (scsl) ruf – Trial, above n 66, [131]–[132]. 267 See Section 3.1.2. 268 (ictr) Ntakirutimana – Appeal, above n 143, [522]; (icty) Stakić – Appeal, above n 144, [260]; and Lukić – Appeal, above n 145, [536]. 269 (eccc) Duch – Trial, above n 66, [338]; Case 002/01 – Trial, above n 66, [417] (‘intent … to inflict serious bodily injury or create conditions of living that lead to death, in the reasonable knowledge that such act or omission is likely to cause the death of a large number of persons (dolus eventualis)’; and (scsl) ruf – Trial, above n 66, [131]–[132].

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Accordingly, under customary international law, the balance of authority remains that it is sufficient that the perpetrator either: (a) intends to participate in the killing or to subject people to conditions of life that would, or was calculated to, lead to their deaths; or (b) commits the relevant acts with knowledge that the deaths of a large number of people were the probable consequence of the act or omission. There remains an argument, however, based on Ntakirutimana and Stakić, that the accused must at least be aware that the actions ‘would’ or ‘would inevitably’ lead to the deaths. Lesser mental states may nonetheless be relevant to proving the relevant intention or knowledge.270 3.3.2 Position at the icc Similar questions arise in the context of the icc Statute. The question of what is meant by ‘intends’ / ‘means’ and ‘would occur in the ordinary course of events has already been discussed above.271 Additionally, insofar as indirect killing is concerned, the icc Statute requires, similarly to custom, that the measures be ‘calculated to’ bring about the destruction of a part of the population. While it has been suggested that this may require a higher level of intent than that provided by Article 30,272 the better interpretation is that the words ‘calculated’ are directed at the physical elements of the offence and set out a circumstance that must be present – namely, that the measures must be calculated to bring about those ends. In accordance with Article 30 of the icc Statute, the accused must be aware that this fact exists. In terms of the mental elements for each material element, as no particular mens rea is specified, Article 30 of the icc Statute would require that the elements of the actus reus are committed with ‘intent and knowledge’. Element 1 is identical to that of murder, but for the expanded definition of killing one or more persons. In particular, where the expanded definition is relied upon, it appears arguable that the principles discussed below at 3.3 ought to apply. Element 2 sets out a circumstance and so the perpetrator must have had knowledge of the circumstance in the sense that they were aware that their conduct constituted or took place as part of a mass killing of members of a civilian population. 3.3.3 Intention to ‘take part in’ A further question arising is how the intention standard applies to the actus reus of ‘taking part in’ a mass killing – i.e. in a context when a person does 270 See above, Section 1.2.3(b). 271 See above, Section 1.2.3(b). 272 Badar, above n 22, 500.

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not themselves kill a large number of people. Notwithstanding the recitation of the mens rea as being ‘intention to kill on a large scale’, the tribunals have accepted that an individual may commit the offence if they ‘take part in’ the killing. They have accordingly held that the mens rea will be satisfied if the accused person intended to perpetrate or participate in a large-scale killing.273 This would appear to be satisfied if they intended their act or omission with the knowledge that it formed part of a mass or large-scale killing. This appears to be in line with the icc Statute, which separates out the elements of extermination into the ‘killing component’ (i.e. that the ‘perpetrator killed one or more persons …’) and the ‘mass killing’ element (i.e. that the conduct ‘constituted, or took place as part of’ a mass killing). In accordance with Article 30 of the icc Statute, the accused must have intended (or meant to engage in) the killing with the knowledge (or awareness of the fact) that it constituted or formed part of a ‘mass killing’. Difficult questions arise in circumstances where the ‘cumulative’ approach to extermination is adopted. For instance, suppose that, in ten separate incidents, perpetrators killed and intended to kill X number of people (being a number falling short of a ‘large’ number), but all the killings combined amounted to Y (a number sufficient to constitute extermination). In such a case, who must possess the intention to kill a ‘large number’? The question arose in the case of Brđanin, where the relevant extermination was constituted by five separate ‘killing incidents’. The Appeals Chamber emphasised that the burden was on the Prosecution to establish that ‘the principal perpetrators had the necessary mens rea for extermination with regard to each of these five incidents’.274 Two points should be noted. First, this appears to immediately raise a question as to who is a ‘principal’ perpetrator. Secondly, this appears to require that all such perpetrators must have the necessary intention.275 This position appears untenable. It would seem to mean that, if a defendant could establish that any one of the physical perpetrators did not intend all other incidents, the crime of extermination would fail. This would be the case even if the defendant did know. 273 (ictr) Semanza – Trial, above n 135, [341]; Ntakirutimana – Appeal, above n 143, [522]; Gacumbitsi – Appeal, above n 143, [86]; Ntagerura – Trial, above n 99, [701]; and Prosecutor v Jean Baptiste Gatete (Trial Chamber Judgment), Case No ictr-00-61 (31 March 2011) (‘Gatete – Trial’), [636]. 274 (icty) Brđanin – Appeal, above n 149, [480]. 275 Although the Chamber was not clear on this point and appeared to readily infer this on the basis that ‘the principal perpetrators could not have been unaware of the massiveness of the killings in at least two cases …’ (emphasis added): Brđanin – Appeal, above n 149, [482].

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In Brđanin, the Appeals Chamber found a way around this difficulty by accepting that each of the physical perpetrators possessed the necessary intention based on a joint criminal enterprise.276 The Chamber found that the perpetrators committed the killings ‘as a group’ and that they had the ‘shared intent’ to commit large-scale killings.277 But even this is cumbersome and ­unsatisfactory. Not only did the Appeals Chamber note that the prosecution assertion was ‘not a very precise assertion’,278 but this view creates serious evidentiary difficulties. This still suggests that the principal physical perpetrators had knowledge of all the incidents and agreed that all killing incidents would be carried out. Ultimately, the better view would seem to be that it is sufficient if the accused (or a person for whom the accused is criminally responsible for, for instance, by way of command responsibility) possesses the relevant mens rea. That is, it is sufficient that one person took part in a mass killing with either the intention that it was a mass or large scale killing or reckless as to that outcome and that the person was either the accused or a person for whom the accused was responsible. The mental states of the other ‘principal’ perpetrators should be irrelevant. The Brđanin Appeals Chamber appears to unnecessarily conflate the proof of an underlying crime with the individual criminal responsibility for that crime. 3.4 Cumulative Convictions The ad hoc Tribunals have held that cumulative convictions for murder and extermination as crimes against humanity based on the same set of facts are not permissible because murder does not contain a materially distinct element from extermination.279 This is contrasted with extermination as a crime against humanity and genocide, which do contain materially distinct elements (i.e. that for genocide the person must present the further specific genocidal intent). 276 (icty) Brđanin – Appeal, above n 149, [481]–[482]. 277 (icty) Brđanin – Appeal, above n 149, [481]–[482]. 278 (icty) Brđanin – Appeal, above n 149, [482]. 279 (ictr) Ntakirutimana – Appeal, above n 143, [542], followed in Bagosora – Appeal, above n 189, [416], [736]. nb: If a prosecution falls foul of this principle, the ad hoc Tribunals have adopted the practice of applying the crime with the materially distinct element (i.e. the more specific provision): Čelebići – Appeal, above n 66, [412]–[413], followed in (icty) Prosecutor v Krajišnik (Appeals Chamber Judgment), Case No IT-00-39-A (17 March 2009) (‘Krajišnik – Appeal’), [386]; Prosecutor v Strugar (Appeals Chamber Judgment), Case No IT-01-42-A (17 July 2008) (‘Strugar – Appeal’), [321]; and (ictr) Bagosora – Appeal, above n 189, [416], [736].

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4 Enslavement Under customary international law, the underlying crime of ‘enslavement’ as a crime against humanity requires the prosecution establish that the following elements were committed as part of a widespread or systematic attack against a civilian population: 1. 2.

The perpetrator exercised any or all of the powers attaching to the right of ownership over a person.280 The perpetrator intended to exercise the act of enslavement.281

Article 7(1)(d) of the icc Statute proscribes ‘enslavement’ as a crime against humanity. Article 7(2)(c) defines ‘enslavement’ to mean ‘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’. The icc Elements of Crimes requires the prosecution establish the following elements occurred as part of a widespread or systematic attack against any civilian population: 1. The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.282 280 (icty) Kunarac – Trial, above n 253, [540] (affirmed in Prosecutor v Kunarac, Kovac and Vukovic (Appeals Chamber Judgment), Case No IT-96-23 & IT-96-23 (12 June 2002) (­‘Kunarac – Appeal’), [116]), followed in Krnojelac Trial, above n 70, [350]; (scsl) ruf – Trial, above n 66, [197]; afrc – Trial, above n 81, [749]; Taylor – Trial, above n 79, [446]; (eccc) Kaing Guek Eav alias Duch (Appeal Judgment), eccc, Case No 001 (3 February 2012) (‘Duch – Appeal’) [152] (affirming Duch – Trial, above n 66, [342]). 281 (icty) Kunarac – Trial, above n 253, [540] (affirmed in Kunarac – Appeal, above n 281, [116]), followed in Krnojelac Trial, above n 70, [350]; (scsl) ruf – Trial, above n 66, [197]; afrc – Trial, above n 81, [749]; Taylor – Trial, above n 79, [446]; and (eccc) Duch – Appeal, above n 281, [152] (affirming Duch – Trial, above n 66, [345]). It is unsettled whether this encompasses where the acted in the reasonable knowledge that enslavement was likely to occur: compare (scsl) ruf – Trial, above n 66, [201] with Taylor – Trial, above n 79, [450]. 282 Footnote in the Elements of Crimes reads: It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to a servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children.

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[Mental element: The perpetrator meant to exercise any or all of the powers attaching to the right of ownership over one or more persons.283] 4.1 Introduction The crime of enslavement as a crime against humanity has been recognised as attaining the status of customary international law by 1990284 and 1975.285 While ‘enslavement’ was first codified as a crime against humanity at Nuremberg,286 slavery itself was defined much earlier. The 1815 Congress of Vienna Declaration stated that slavery was ‘repugnant’, and, by 1945, a number of countries criminalised slavery and slave-related practices287 and 26 international instruments prohibited slavery and slave-related practices.288 Bassiouni concludes, therefore, that even before 1945, slavery and slave-related practices such as forced labour were prohibited by general international law. Slavery was first defined in an international instrument in the 1926 Convention to Suppress the Slave Trade and Slavery, which came into force in 1927 (the Slavery Convention). The Slavery Convention defined slavery as ‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’.289 This definition has largely persisted since then without major alteration. The same definition was adopted in the 1956 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, which entered into force in 1957,290 as well as the icc Statute.291 While the Nuremberg Tribunals did not expressly state the legal elements of enslavement as a crime against humanity, or interpret the definition 283 No mental element is specified meaning that Article 30 of the icc Statute provides that ‘intent and knowledge’ apply as discussed above at Section 1.2.3. 284 (icty) Kunarac – Appeal, above n 281, [117]; and Krnojelac – Trial, above n 70, [64]. See also Schabas, above n 228, 161. 285 (eccc) Duch – Appeal, above n 281, [152] (affirming Duch – Trial, above n 66, [342]). 286 imt Charter, Art 6(c); imtfe Charter, Art 5(c); Control Council Law No 10, Art ii(1)(c); and 1950 Nuremberg Principles, Principle vi(c). 287 Bassiouni, above n 10, 374. 288 M. Cherif Bassiouni, ‘Enslavement as an International Crime’ (1991) 23 nyu Journal of International Law and Policy 445, 445. 289 Convention to Suppress the Slave Trade and Slavery, opened for signature 25 September 1926, 60 lnts 254 (entered into force 9 March 1927) (‘Slavery Convention’), Art 1(1). 290 Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, opened for signature 7 September 1956, 226 unts 3 (entered into force 30 April 1957) (‘Supplementary Slavery Convention’), Art 7(a). 291 icc Statute, Art 7(2)(c).

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a­ rticulated in the Slavery Convention, they undertook substantive analyses which has formed the basis of the decisions of the ad hoc Tribunals.292 In the Milch case, defendant Erhard Milch (who controlled the German aircraft industry) was convicted of slave labour and deportation as a crime against humanity. In rejecting the argument that the workers had a free choice, the Court held as follows: [The Slavic Jews] were slaves, nothing less – kidnapped, regimented, herded under armed guards, and worked until they died from disease, hunger, and exhaustion. […] As to non-Jewish foreign labor, […] they were deprived of the right to move freely or to choose their place of residence; to live in a household with their families; to rear and educate their children; to marry; to visit public places of their own choosing; to negotiate, either individually or through representatives of their own choice, the conditions of their own employment; to organize in trade unions; to exercise free speech or other free expression of opinion; to gather in peaceful assembly; and they were frequently deprived of the right to worship according to their own conscience. All these are the sign-marks of slavery, not free employment under contract.293 The elements of enslavement were then refined by the icty Trial Chamber in Kunarac294 and by Article 7(2)(c) of the icc Statute.295 ‘Any or all of the powers attaching to the right of ownership over a person’ The actus reus of the crime of slavery is that the perpetrator exercised any or all of the powers attaching to the right of ownership over a person.296 This definition is drawn from the Slavery Convention and its application since.297

4.2

292 (eccc) Duch – Appeal, above n 281, [132] (see also [133]-144] for an analysis of Nuremberg cases). 293 (Nuremberg) United States v Erhard Milch, 2 ccl 10 Trials 773 (‘Milch Case’), 789, cited in (eccc) Duch – Appeal, above n 281, [140]. 294 (icty) Kunarac – Trial, above n 253, [515]–[543]. 295 Cassese, above n 108, 95. 296 (icty) Kunarac – Trial, above n 253, [540] (affirmed in Kunarac – Appeal, above n 281, [116]), followed in Krnojelac Trial, above n 70, [350]; (scsl) ruf – Trial, above n 66, [197]; afrc – Trial, above n 81, [749]; Taylor – Trial, above n 79, [446]; and (eccc) Duch – Appeal, above n 281, [152] (affirming Duch – Trial, above n 66, [342]). See also Elements of Crimes, Art 7(1)(c). 297 (eccc) Duch – Appeal, above n 281, [152]–[153].

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­However, the definition has evolved such that the underlying crime of enslavement as a crime against humanity is not limited to conventional de jure slavery (or ‘chattel slavery’), but rather has expanded to encompass contemporary forms of slavery.298 Unlike international humanitarian law, which allows forced labour in certain circumstances, the prohibition on enslavement as a crime against humanity is an absolute one.299 The icc Elements of Crimes adds further that such conduct includes the ‘selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty’. These examples are non-exhaustive.300 At the Rome Conference, a number of delegates expressed ‘serious concerns because of the commercial nature of each illustration’ and as such insisted on the footnote that ‘[i]t is understood that such a deprivation of liberty may, in some circumstances, include extracting forced labour or otherwise reducing a person to servile status as defined in the [Supplementary Slavery Convention].’301 The Supplementary Convention defines ‘servile status’ to include debt bondage, serfdom, forced marriage and child exploitation.302 The result is that the examples should not be construed to narrow the ambit of enslavement to enslavement of some commercial nature. Further, in response to the particular concern of some delegations, Article 7(2)(c) makes specific reference to trafficking in persons, in particular women and children.303 This reference ensures that a person may be guilty of enslavement not only in circumstances of slave labour, but also where a person’s selfownership is denied.304 As under the icc Statute, the ad hoc Tribunals have held that forced or involuntary labour305 or otherwise reducing a person to servile status may 298 (icty) Kunarac – Trial, above n 253, [541], affirmed in Kunarac – Appeal, above n 281, [117], followed in (eccc) Duch – Appeal, above n 281, [155]; and (BiH) Rašević and Todović – First Instance, above n 66, 77. See also generally Bassiouni, above n 289. 299 Schabas, above n 228, 162. 300 (icc) Katanga – Confirmation, above n 26, [343]. 301 Darryl Robinson, ‘The Elements of Crimes Against Humanity’ in Roy Lee (Ed), The International Criminal Court: Elements of Crimes and Rules of Evidence (Transnational ­Publishers: New York, 2001) 85, cited in Schabas, above n 228; see also (scsl) afrc – Trial, above n 81, [711] fn 1380. 302 Supplementary Slavery Convention, Art 1. 303 McCormack, above n 5, 191. 304 Bassiouni, above n 10, 380. 305 See also (icty) Krnojelac – Trial, above n 70, [359] (citing Kunarac – Trial, above n 253, [542]–[543]); and (scsl) ruf – Trial, above n 66, [359], followed in (eccc) Duch – Trial, above n 66, [344].

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also constitute enslavement.306 This appears to be a broader position than that under international human rights law.307 The scsl has held that there is no requirement that there be any payment or exchange in order to ­establish the exercise of ownership.308 Similarly, the icc has also held that enslavement may be committed without any commercial dimension.309 However, the emphasis on ownership leads Bassiouni to state that an occupying power’s use of the civilian population for forced labour will not be enslavement where its purpose is that the population sustain its own existence and economy – i.e. because it is not exercising ownership over the population.310 In determining whether or not ‘any or all of the powers attaching to the right of ownership over a person’ have been exercise, the icty Trial Chamber in Kunarac held that factors to consider would include:311 • control of a person’s movement; • environment; • psychological control; • measures taken to control escape; • use of force and abuse (including sexual abuse, duration, assertion of exclusivity); • forced labour; and • the exercise of rights of sale or trade in persons.

306 (scsl) afrc – Trial, above n 81, [709] (largely relying on the icc Statute), followed in Taylor – Trial, above n 79, [420]; and (BiH) Rašević and Todović – First Instance, above n 66, 76. 307 See (ECtHR) Siliadin v France (Judgment), European Court of Human Rights, App No 73316/01 (26 July 2005), cited in (BiH) Rašević and Todović – First Instance, above n 66, 77. 308 (scsl) afrc – Trial, above n 81, [709] (in the context of sexual slavery), followed in T ­ aylor – Trial, above n 79, [420]. 309 (icc) Katanga – Confirmation, above n 26, [343], [347]–[354] and [430] (finding that the taking of ‘bush wives’ was sufficient to constitute sexual slavery – which requires enslavement as part of its actus reus). 310 Bassiouni, above n 10, 380. 311 (icty) Kunarac – Trial, above n 253, [543], followed in Kunarac – Appeal, above n 281, [119]; Krnojelac – Trial, above n 70, [359] (although [542] is cited); (scsl) afrc – Trial, above n 81, [745]; Taylor – Trial, above n 79, [447]; and (eccc) Duch – Trial, above n 66, [342]. See also further factors listed at (BiH) Rašević and Todović – First Instance, above n 66, 77–78.

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The Chamber held that there is no minimum duration over which the perpetrator must control the victim, although, as noted above, the length of that period will be relevant.312 The Trial Chamber also held the mere ability to buy, sell, trade or inherit a person or his or her labours or services’ is sufficient.313 However, the Appeals Chamber did not decide the correctness of this point.314 The eccc Appeals Chamber in Duch noted, however, that the exercise of ownership ‘requires a substantial degree of control over the victim’.315 Despite these factors, the eccc Appeals Chamber in Duch clarified that while enslavement centred on ownership and is not coterminous with ‘chattel slavery’, the crime is – and the elements highlighted in Kunarac are – to be understood in light of ‘the meaning of ownership understood as a category of civil law and economy’.316 The Chamber emphasised that one aspect of ownership was that it constitutes an exercise to ‘accrue some gain’ through the exercise over the victim of powers that attach to the right of ownership.317 This gain can be economic, such as profits from sale or organ harvesting, or non-economic, such as domestic chores or sexual use.318 The Appeals Chamber emphasised that this was not a separate element of the offence, but an aspect ‘implicit in the ownership powers as such’.319 Applying these principles to the facts of the notorious S-21 prison on the outskirts of Phnom Penh, the eccc Supreme Court Chamber drew a distinction between detainees who were subjected to forced labour and those who were not. In respect of those who were not subjected to forced labour, it was not sufficient merely to demonstrate that control was exercised over the detainees’ movement, control was exercised over the physical environment, measures were taken to deter escape, threats of force and coercion were present, and that prisoners were subjected to cruel treatment and abuse.320 312 (icty) Kunarac – Appeal, above n 281, [121], followed in (scsl) ruf – Trial, above n 66, [200]; and Taylor – Trial, above n 79, [447]. 313 (icty) Kunarac – Trial, above n 253, [543]. 314 (icty) Kunarac – Appeal, above n 281, [119]. 315 (eccc) Duch – Appeal, above n 281, [156]. 316 (eccc) Duch – Appeal, above n 281, [156], citing (icty) Kunarac – Appeal, above n 281, [117]. 317 (eccc) Duch – Appeal, above n 281, [157]–[158], citing as examples of such gain: (icty) Kunarac – Trial, above n 253, [8]–[9], [742], [749], [756], [781]. 318 (eccc) Duch – Appeal, above n 281, [157]–[158], citing (Nuremberg) imt Judgment, Vol I, 281, and as examples of such gain: (icty) Kunarac – Trial, above n 253, [8]–[9], [742], [749], [756], [781]. 319 (eccc) Duch – Appeal, above n 281, [158]. 320 (eccc) Duch – Appeal, above n 281, [164]–[166].

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In some circumstances, enslavement may be found even without evidence of mistreatment. The Nuremberg Judgment and the ccl 10 cases of Milch and Pohl demonstrate that the crime is made out by forced labour even if the victims are ‘well fed, well clothed and comfortably housed’.321 The ad hoc Tribunals have since cited this principle in Pohl with approval.322 The icty Trial Chamber in Kunarac held the crime was made out where the victims were kept at a house by the defendants because they had to obey all orders, had no realistic option to flee the house, were subject to mistreatments and were treated as the personal property of the defendants.323 In the context of forced labour, a key consideration is whether the victims in fact had ‘no real choice’ as to whether they would work.324 This is a factual question to be assessed in light of the surrounding circumstances; the subjective belief of the labourers that they were forced to work is not sufficient.325 The fact that the victims were remunerated does not in itself establish labour was not ‘forced’ or ‘involuntary’ and will be of evidentiary relevance only.326 Nonetheless, ‘circumstances which render it impossible to express consent may be sufficient to presume the absence of consent.’327 This appears to include situations of extreme coercion328 and shares some analogy with consent in the context of ‘rape’.329 Similarly, in considering the phenomenon of ‘bush wives’, the scsl held that given the violent, hostile and coercive environment

321 (Nuremberg) United States v Oswald Pohl, 5 ccl 10 Trials 958, 970 (where the quotation is taken); and Milch Case, above n 294, 779–790. 322 (icty) Kunarac – Appeal, above n 281, [123]; (scsl) ruf – Trial, above n 66, [203], followed in Prosecutor v Sesay, Kllon and Gbao (Appeals Chamber Judgment), Case No SCSL04-15-A (26 October 2009) (‘ruf – Appeal’), [1082]; and (eccc) Duch – Trial, above n 66, [344]. 323 (icty) Kunarac – Trial, above n 253, [742]. 324 (icty) Krnojelac – Trial, above n 70, [359]; and Prosecutor v Krnojelac (Appeals Chamber Judgment), Case No. IT-97-25-A (17 September 2003) (‘Krnojelac – Appeal’), [194]–[195], followed in (scsl) ruf – Trial, above n 66, [202]; Taylor – Trial, above n 79, [448]; and (eccc) Duch – Trial, above n 66, [344]. 325 (icty) Krnojelac – Appeal, above n 325, [195], followed in (scsl) ruf – Trial, above n 66, [202]; Taylor – Trial, above n 79, [448]; and (eccc) Duch – Trial, above n 66, [344]. 326 (scsl) ruf – Appeal, above n 323, [1082]. 327 (icty) Kunarac – Appeal, above n 281, [120], followed in (scsl) ruf – Trial, above n 66, [200]. 328 (icty) Kunarac – Appeal, above n 281, [132]; and (scsl) ruf – Appeal, above n 323, [736]. 329 See, for instance, (ictr) Gacumbitsi – Appeal, above n 143, [155]; and (icty) Prosecutor v Furundžija (Trial Chamber Judgment), Case No IT-95-17/1-T (10 December 1998) (‘Furundžija – Trial’), [271] (‘any form of captivity vitiates consent’).

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in which the women found themselves, their captivity was itself sufficient to vitiate any consent in the circumstances.330 However, the Appeals Chamber in Kunarac clarified that although the ‘lack of consent’ is of evidentiary relevance, it is not a necessary element of the crime of enslavement.331 As the Chamber held, once all other elements are proven, enslavement flows from claimed rights of ownership to which consent is necessarily impossible.332 This view has been followed by the Australian High Court in Tang.333 The decision in Tang is also useful in understanding the bounds of modern de facto slavery.334 Tang involved the prosecution of an Australian brothel owner for ‘slavery’ for her engagement of Thai women to come to Australia to work for the defendant.335 The brothel owner withheld from the victim their profits from the work, their return airfare and their passport until they repaid their ‘debt’ of $40,000-$45,000 (which included the cost to bring them to Australia as well as the owner’s margin of profit). The women repaid this debt by earning $50 per session. The respondent provided the women with accommodation, food and medical attention and did not keep them locked in their lodgings. Nonetheless, due to circumstances such as their risk of being deported, their unusual hours of work and their lack of connections in Australia, the women were ‘effectively restricted to the premises’ and would only venture out ‘[o]n rare occasions … with consent or under supervision’.336 After accepting the factors in Kunarac,337 Gleeson cj found that it would be relevant to consider the following points in determining whether any of the incidents of ownership were exercised: 330 (scsl) ruf – Appeal, above n 323, [736]. 331 (icty) Kunarac – Appeal, above n 281, [120], followed in (scsl) ruf – Appeal, above n 323, [734]; afrc – Trial, above n 81, [746]; and Taylor – Trial, above n 79, [447]. 332 (icty) Kunarac – Appeal, above n 281, [120]; and (scsl) ruf – Appeal, above n 323, [734], [736]. 333 (Australia) The Queen v Tang (2008) 237 clr 1 (‘Tang – High Court’), [35] per Gleeson cj and [142], [149] per Hayne J (although note that, at [166], Hayne J appeared to suggest that it was a very relevant consideration, noting that that while the victims volunteered to the arrangement, they retained no freedom to choose what was done with them while in the relationship). 334 The judgments of Gleeson cj and Hayne J were accepted by Hayne, Heydon, Crennan and Kiefel jj. Kirby J dissented. 335 There was also evidence that the language used by those transacting with the victims was one of ‘buying’ the women: see (Australia) Tang – High Court, [160]–[165] per Hayne J. 336 (Australia) Tang – High Court, above n 334, [16] per Gleeson CJ. 337 (Australia) Tang – High Court, above n 334, [35] per Gleeson CJ.

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• the commodification of an individual by treating him or her as an object of sale and purchase;338 • control over a person’s movement which extends well beyond powers exercised even in the most exploitative of employment circumstances;339 • the power to use a person’s services without commensurate compensation;340 and • the power to use the complainants and their labour in a substantially unrestricted manner.341 Hayne J took a slightly different approach focusing on the question of whether the victim was ‘deprived of freedom of choice in some relevant respect’:342 … because both the notion of ownership and of possession, when applied to a person, can be understood as an exercise of power over that person that does not depend upon the assent of the person concerned, it will be relevant to ask why that person’s assent was irrelevant. Or, restating the proposition in other words, in asking whether there was the requisite dominion over a person, the subjection of that person, it will be relevant to ask whether the person concerned was deprived of freedom of choice in some relevant respect and, if so, what it was that deprived the person of choice. The judges made clear, however, that the relationship must rise well beyond an exploitative employment relationship.343 Ultimately, the question would 338 (Australia) Tang – High Court, above n 334, [35] per Gleeson CJ. 339 (Australia) Tang – High Court, above n 334, [50] per Gleeson CJ. 340 (Australia) Tang – High Court, above n 334, [50] per Gleeson CJ. 341 (Australia) Tang – High Court, above n 334, [50] per Gleeson CJ. 342 (Australia) Tang – High Court, above n 334, [149] per Hayne J. 343 (Australia) Tang – High Court, above n 334, [50] per Gleeson CJ and [112] per Kirby J. During the proceedings, Kirby J also warned of the need for slavery to be conduct above and beyond exploitative working conditions. See also Karen Kissane, ‘Judge warns many could be snared by slavery laws’, The Age (14 May 2008), accessed online at on 9 February 2014 (saying that, if the court did not define ‘slavery’ with care, ‘a lot of harsh employment contracts are going to slip over into “slavery” and are going to be prosecuted with a potential of 25 years’ imprisonment on conviction’ […] there are an awful lot of people in this country working in back rooms of restaurants and in the rag trade [whose employers] would be susceptible to … prosecutions for slavery and that cannot be what Parliament intended’).

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be one of fact and degree and the conclusion of slavery was open on the evidence.344 4.3 Mens Rea As discussed above, the relevant mens rea is most often expressed as the intention to exercise the act of enslavement.345 In Tang, the Australian High Court held that the person need only know the particular facts that make the person a slave; they do not need to be aware that the legal significance of those qualities (i.e. that they are a slave legally).346 Such decisions do not, however, state whether or not the mens rea encompasses direct and indirect intent. While it may not be controversial in respect of some of the other underlying crimes, indirect intent is controversial in the context of enslavement. On the one hand, the scsl Trial Chamber in the ruf Case specifically accepted that the mens rea included the where an offender ‘acted in the reasonable knowledge that [enslavement] was likely to occur’.347 On the other hand, the scsl Trial Chamber in Taylor considered the view to be inconsistent with authority and an ‘unwarranted expansion’ of the crime given that it is difficult to see how someone can exercise the powers of ownership without knowing it.348 The view in Taylor appears to be the better view. In respect of the icc, as no particular mens rea is specified, Article 30 of the icc Statute would require that the elements of the actus reus are committed with ‘intent and knowledge’. Element 1 requires ‘[t]he perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons …’. While the position is not entirely clear, particularly in light of the above authorities, the exercising powers of ownership appears to be an element of conduct rather than a consequence. Accordingly, the perpetrator must intend or mean to engage in the conduct. The result is that the perpetrator must mean to exercise any or all of the powers attaching to the right of ownership over one or more persons. 344 (Australia) Tang – High Court, above n 334, [50] per Gleeson CJ and [168] per Hayne J. 345 (icty) Kunarac – Trial, above n 253, [540] (affirmed in Kunarac – Appeal, above n 281, [116]), followed in Krnojelac Trial, above n 70, [350]; (scsl) ruf – Trial, above n 66, [197]; afrc – Trial, above n 81, [749]; Taylor – Trial, above n 79, [446]; and (eccc) Duch – ­Appeal, above n 281, [152] (affirming Duch – Trial, above n 66, [345]). 346 (Australia) Tang – High Court, above n 334, [48]. 347 (scsl) ruf – Trial, above n 66, [201]. 348 (scsl) Taylor – Trial, above n 79, [450] (citing afrc – Trial, above n 81, [749]; and (icty) Kunarac – Appeal, above n 281, [122]).

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811

Deportation and Forcible Transfer

Under customary international law, the underlying crimes of ‘deportation’ and ‘forcible transfer’349 as a crime against humanity requires the prosecution to establish that the following elements were committed as part of a widespread or systematic attack against a civilian population:350 1. 2. 3. 4.

5.

Forced displacement of individuals by expulsion or other coercive acts.351 The individuals were lawfully present in the area from which they are displaced.352 The displacement occurred without grounds under international law.353 The individuals were displaced: a. for the crime of deportation, across a de jure state border or, in certain circumstances, a de facto border,354 or b. for the crime of forcible transfer, within national boundaries.355 The deportation or forcible transfer is carried out intentionally.356

349 The ad hoc Tribunals have consistently found that the crime of ‘forcible’ transfer is identical to ‘deportation’ albeit within national boundaries: see (icty) Krnojelac – Trial, above n 70, [474]; and Krstić – Trial, above n 70, [521] (citing ilc Draft Code, 122), followed in Blagojević – Trial, [595]; Brđanin – Trial, above n 69, [540]; Prosecutor v Milutinović et al. (Trial Chamber Judgment), Case No IT-05-87-T (26 February 2009) (‘Milutinović – Trial’), [164]; Prosecutor v Simić et al. (Trial Chamber Judgment), Case No IT-95-9-T (17 October 2003) (‘Simić – Trial’), [123]–[124]; and Stakić – Appeal, above n 144, [317], followed in Krajišnik – Trial, above n 147, [723] (affirmed in Krajišnik – Appeal, above n 280, [308], [333]). See also Krnojelac – Appeal, above n 325, [222]. 350 See also (spet) untaet Regulation 2000/15, s 5.1(d), s 5.2(c) (drafted in line with the icc Statute); and Marques – Judgment, above n 34, [650]–[655]. 351 (icty) Blaškić – Trial, above n 67, [234] (citing the icc Statute), followed in Krnojelac – Trial, above n 70, [474]; Stakić – Appeal, above n 144, [278] (citing Krnojelac – Trial, above n 70; and Blaškić – Trial, above n 67), followed in Krajišnik – Appeal, above n 280, [304]; (eccc) Case 002/01 – Trial, above n 66, [450]; and (ECtHR) Kolk and Kislyiy v Estonia (Judgment), European Court of Human Rights, App Nos 23052/04 and No. 24018/04 (17 January 2006) (‘Kolk and Kislyiy – Appeal’), discussed in Chapter 7, Section 5.2. 352 Ibid. 353 Ibid. 354 Ibid. 355 As above, fn 241. 356 (icty) Stakić – Trial, above n 30, [686], affirmed in Stakić – Appeal, above n 144, [278], followed in Krajišnik – Trial, above n 147, [726] (affirmed in Krajišnik – Appeal, above n 280, [304]); Martić – Trial, above n 69, [111]; and (eccc) Case 002/01 – Trial, above n 66, [450].

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Article 7(1)(d) of the icc Statute proscribes ‘deportation or forcible transfer’ as a crime against humanity. Article 7(2)(d) defines deportation or forcible transfer as ‘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’. The icc Elements of Crimes357 requires the prosecution establish the following elements occurred as part of a widespread or systematic attack against any civilian population: 1. The perpetrator: a. deported;358 or b. forcibly transferred,359 without grounds permitted under international law, one or more persons to another State or location, by expulsion or coercive acts.  [Mental element: The perpetrator:360 a. meant to perform one or more acts or omissions; and b. either: (i) meant, by such act(s) or omission(s), to deport or forcibly transfer, without grounds permitted under international law, one or more persons to another state or location by expulsion or coercive acts; or (ii) was aware that such a consequence would occur in the ordinary course of events as a result of the act(s) or omission(s).] 2. Such person or persons were lawfully present in the area from which they were so deported or transferred. 3. [Mental element:] The perpetrator was aware of the factual circumstances­ that established the lawfulness of such presence.361

357 Cited in (icc) Authorisation of an Investigation into the Situation in the Republic of ­Kenya (Pre-Trial Chamber ii Decision), ICC-01/09-19-Corr (31 March 2010) (‘­Kenya – ­Authorisation’), [156]. 358 Footnote to the Elements of Crimes reads: ‘The term ‘forcibly’ is not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment.’ 359 Footnote to the Elements of Crimes reads: ‘“Deported or forcibly transferred” is interchangeable with “forcibly displaced”’. 360 No mental element is specified meaning that Article 30 of the icc Statute provides that ‘intent and knowledge’ apply as discussed above at Section 1.2.3. 361 The Elements of Crimes specifically ‘otherwise provide’ the mens rea element for this actus reus element and so the ordinary default rules discussed above at Section 1.2.3 do not apply.

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5.1 Introduction 5.1.1 Deportation The crimes of ‘deportation’ and ‘forcible transfer’ have only one differing legal element (namely, whether the victims are transferred across national borders or within national borders).362 The two crimes have a different history. The prohibition of deportation arguably extends to the 1899 and 1907 Hague Conventions, where ‘[f]amily honour and rights, the lives of persons and private property … must be respected’.363 Further, the 1919 Report of the Commission on the Responsibilities of the Authors of the War and on the Enforcement of Penalties included deportation as a prosecutable crime, including as against the ‘laws of humanity’.364 The Report set out a number of examples of deportation by Turkey, including the deportation of over 1 million Armenians, 400,000 Greeks from Thrace, and 1 million Greek-speaking Turks (by Turkey and Germany).365 Similar examples were listed from Germany.366 Despite such examples, no prosecutions for deportation occurred until Nuremberg. No Turks were prosecuted for the crimes listed above as the us disagreed that the crimes were embodied in international law at the time, and the Treaty of Lausanne gave Turkish officials an amnesty for such crimes.367 Accordingly, while the argument can be made that deportation was a crime after World War 1, this proposition may be difficult to establish, given the fact that the Allies themselves condoned mass deportation and population transfers after World War 1.368 After World War 2, however, there were numerous protests against German­ acts of deportation of civilians under its occupation.369 This included declarations­condemning German acts of, inter alia, deportation, issued on December 17, 1942 by Belgium, Czechoslovakia, France, Greece, Luxembourg, the Netherlands, Norway, Poland, the ussr, the uk, the us and Yugoslavia, and a declaration issued by the United States on behalf of the un on 362 See (spet) Prosecutor v Benjamin Sarmento and Romeiro Tilman (Judgment), Special Panel Case No 18/2001 (16 July 2003) (‘Sarmento – Judgment’), [127]. 363 Bassiouni, above n 10, 381. 364 ‘Report Presented to the Preliminary Peace Conference by the Commission on the Responsibilities of the Authors of War and on Enforcement of Penalties’ (1920) 14 American Journal of International Law 95, cited in Bassiouni, above n 10, 382. 365 Bassiouni, above n 10, 382. 366 Bassiouni, above n 10, 384 (Germany deported women and girls from Lille, Roubaix and Tourcoing in France, as well as Belgian and French men to work in camps). 367 Bassiouni, above n 10, 382. 368 Bassiouni, above n 10, 384. 369 Bassiouni, above n 10, 384.

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24 March 1944. ­Accordingly, such objections led the French prosecutor, Edgar Faure to declare in 1946 that German activities of deportation in France, Belgium and Luxembourg were crimes against humanity.370 5.1.2 Forcible Transfer By contrast to deportation, which is limited to the transfer of persons across international borders,371 the crime of forcible transfer has a much more limited history. Forcible transfer within state borders only has precedence in the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity372 and the Apartheid Convention of 1973.373 Its status as an existing crime is controversial.374 On the one hand, the crime was not included in the statutes of the icty, ictr, scsl, eccc or the eac, which referred to ‘deportation’ rather than ‘forcible transfer’. Similarly, while the Draft Statute of the icc included this crime, it was repeatedly opposed by Israel and cited as the reason for that country’s vote against the draft statute at Rome.375 Israel’s concern stems from its occasional resort to the expulsion of Palestinians from the occupied territories. Similarly, the crime was not specifically proscribed in the Statutes of the ad hoc Tribunals, which referred only to ‘deportation’ rather than ‘forcible transfer’. 370 Bassiouni, above n 10, 387. 371 See also Christopher Hall, ‘The Different Sub-Paragraphs – (d) Deportation or Forcible Transfer of Population’ in Otto Triffterer (ed) Commentary on the Rome Statute of the International Criminal Court (Nomos Verlagsgesellschaft: Baden-Baden, 1999) 134; (icty) Krstić – Trial, above n 70, [521]; Stakić – Appeal, above n 144, [278], [300]; and Krajišnik – Appeal, above n 280, [304]. 372 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, done in New York, United States of America, opened for signature 16 December 1968, 754 unts 73 (entered into force on 11 November 1970). The convention and its customary status is discussed in Chapter 3, Section 3.1. 373 International Convention on the Suppression and Punishment of the Crime of Apartheid, done in New York, United States of America, opened for signature 30 November 1973, 1015 unts 243 (entered into force 18 July 1976). It was included in the 1996 ilc Draft Code but only after disagreements: see 1996 ilc Report, above n 78, 93-94; cf. 1989 [I] ilc Y.B,16-17 (statement of Mr Reuter) and 26, 32 (statement of Mr Tomuschat). The convention and its customary status is discussed in Chapter 3, Section 3.2. 374 See Michael P. Roch, ‘Forced Displacement in the Former Yugoslavia: A Crime Under International Law?’ (1995) 14 Dickinson Journal of International Law 1, 26; Bassiouni, above n 10, 312-326; see also Timothy McCormack and Gerry Simpson, ‘The International Law Commission’s Draft Code of Crimes against the Peace and Security of Mankind: An Appraisal of the Substantive Provisions’ (1994) 5 Criminal Law Forum 1, 23–24. 375 McCormack, above n 5, 192.

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On the other hand, the crime was ultimately included in the icc Statute in a manner that appeared to conflate the two crimes.376 Further, even without its codification as a crime per se, the ad hoc Tribunals have prosecuted persons for ‘forcible transfer’ as the subject matter of the crimes of ‘persecution’ and ‘other inhumane acts’.377 The majority of the icty Appeals Chamber confirmed this view in its decision in Krnojelac.378 Judge Schomburg in his Separate Opinion considered that, in light of the icc Statute, ‘forcible transfer’ could be considered as being within the definition of ‘deportation’ itself.379 The same approach has been taken by a number of the internationalised tribunals. In Case 002-01 at the eccc, forcible transfer as a crime against humanity was found concerning the forced evacuations of Phnom Penh and other urban centres in Cambodia by the Khmer Rouge.380 A similar approach has also been adopted in the Iraqi High Tribunal, where the tribunal appeared to conflate the two crimes into a single crime of ‘coercive dislocation’.381 The Tribunal accepted that the accused relocates or forcibly dislocates one or more persons ‘to another country or another place’382 thus envisaging either the extended formulation of deportation, or the customary status of forcible transfer. Therefore the transfer of a number of Kurdish people within Iraq (usually to various detention centres) amounted to a crime against humanity.383 5.1.3 The Elements of the Crimes Ultimately, notwithstanding questions about the status of ‘forcible transfer’, the Tribunals have outlined their elements in similar terms. The underlying crime of ‘deportation’ as a crime against humanity requires the forcible displacement of persons from the area in which they are lawfully present,

376 See below, Section 5.5.4. 377 (icty) Kupreškić – Trial, above n 34, [566], followed in Krstić – Trial, above n 70, [523]; Prosecutor v Slobodan Milošević (Decision on Motion for Judgment of Acquittal), Case No. IT-02-54-T (16 June 2004) (‘Milošević, S – Acquittal Decision’), [52]; Stakić – Trial, above n 30, [671]; and (eccc) Case 002/01 – Trial, above n 66, [455]. 378 (icty) Krnojelac – Appeal, above n 325, [222]–[223]. 379 (icty) Krnojelac – Appeal, above n 325, (Separate Opinion of Judge Schomburg). 380 See Chapter 5, Section 3.3. 381 (iht) Anfal – Trial, above n 145, 538 (although, again the precise words could be a result of translation issues). 382 (iht) Anfal – Trial, above n 145, 538 (even with the translation issues, place is used as an extension of ‘country’). 383 (iht) Anfal – Trial, above n 145, 539ff.

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­ ithout grounds permitted under international law.384 These elements w are the same for the crime of ‘forcible transfer’.385 The only difference between the two crimes is the location where the victims are transported: ‘deportation’ requires that the victims be displaced across a de jure state border, or, in certain circumstances, a de facto border;386 ‘forcible transfer’, on the other hand, involves displacement of persons within national boundaries.387 As the Appeals Chamber in Stakić held, the crime protects ‘the right of the victim to stay in his or her home and community and the right not to be deprived of his or her property by being forcibly displaced to another location.’388 5.2 ‘Forced displacement of individuals’ The first element of the actus reus is that there must be a displacement of individuals by force or coercion.389 This element requires essentially that

384 (icty) Blaškić – Trial, above n 67, [234] (citing the icc Statute), followed in K ­ rnojelac – Trial, above n 70, [474]; Stakić – Appeal, above n 144, [278] (citing Krnojelac – Trial, above n 70; and Blaškić – Trial, above n 67), followed in Krajišnik – Appeal, above n 280, [304]. 385 The ad hoc Tribunals have consistently found that the crime of ‘forcible’ transfer is identical to ‘deportation’ albeit within national boundaries: see (icty) Krnojelac – Trial, above n 70, [474]; and Krstić – Trial, above n 70, [521] (citing ilc Draft Code, 122), followed in Blagojević – Trial, above n 70, [595]; Brđanin – Trial, above n 69, [540]; Milutinović – Trial, above n 350, [164]; Simić – Trial, above n 350, [123]–[124]; and Stakić – Appeal, above n 144, [317], followed in Krajišnik – Trial, above n 147, [723] (affirmed in Krajišnik – Appeal, above n 280, [308], [333]). See also Krnojelac – Appeal, above n 325, [222]. 386 (icty) Blaškić – Trial, above n 67, [234] (citing the icc Statute), followed in Krnojelac – Trial, above n 70, [474]; Stakić – Appeal, above n 144, [278] (citing Krnojelac – Trial and Blaškić – Trial, above n 67), followed in Krajišnik – Appeal, above n 280, [304]; and (­ECtHR) Kolk and Kislyiy – Appeal, above n 352, discussed in Chapter 7, Section 5.2. 387 (icty) Krnojelac – Trial, above n 70, [474]; and Krstić – Trial, above n 70, [521] (citing ilc Draft Code, p. 122), followed in Blagojević – Trial, above n 70, [595]; Brđanin – Trial, above n 69, [540]; Milutinović – Trial, above n 350, [164]; Simić – Trial, above n 350, [123]–[124]; and Stakić – Appeal, above n 144, [317], followed in Krajišnik – Trial, above n 147, [723] (affirmed in Krajišnik – Appeal, above n 280, [308], [333]). See also Krnojelac – Appeal, above n 325, [222]. 388 (icty) Stakić – Appeal, above n 144, [277]. 389 (icty) Blaškić – Trial, above n 67, [234] (citing the icc Statute), followed in Krnojelac – Trial, above n 70, [474]; Stakić – Appeal, above n 144, [278] (citing Krnojelac – Trial and Blaškić – Trial), followed in Krajišnik – Appeal, above n 280, [304]; (eccc) Case 002/01 – Trial, above n 66, [450]; and (ECtHR) Kolk and Kislyiy – Appeal, above n 352, discussed in Chapter 7, Section 5.2.

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­displacement be ‘forced’.390 The position in the icc Statute appears to be largely in line with the Tribunals, requiring that deportation or forcible transfer occur through ‘expulsion or other coercive acts’.391 The terms ‘forced’ and ‘coercive’, however, are not limited to physical force.392 Rather, they include the threat of force or coercion, violence, detention, duress, psychological oppression or abuse of power, or by taking advantage of a coercive environment.393 Whether or not this element is met will depend on whether the displacement is ‘forced, carried out by expulsion or other forms of coercion such that the displacement is involuntary in nature, and the relevant persons had no genuine choice in their displacement’.394 Even where a victim’s consent is given or displacement is requested, that consent must be determined to be ‘real in the sense that it is given voluntarily and the result of an individual’s free will, assessed in the light of surrounding circumstances.’395 One relevant factor is the vulnerability of the victims.396 The displacement of persons carried out pursuant to an agreement among political or military leaders, or under 390 (icty) Krstić – Trial, above n 70, [528], [530], followed in Krnojelac – Trial, above n 70, [475] (apparently accepted on appeal in Krnojelac – Appeal, above n 325, [229], [233], [519]); Brđanin – Trial, above n 69, [543]; and Blagojević – Trial, above n 70, [596]. 391 (icc) icc Statute, Art 7(2)(d); and Prosecutor v Ruto et al. (Pre-Trial Chamber ii Confirmation Decision), ICC-01/09-01/11-373 (5 February 2012) (‘Ruto – Confirmation’), [245]. 392 (icty) Krnojelac – Trial, above n 70, [475] (citing Krstić – Trial, above n 70, [529] and the Report of the Preparatory Commission for the International Criminal Court, Finalised Draft Text of the Elements of the Crimes, un Doc. PCNICC/2000/INF/3/Add.2 (6 July 2000), 11), followed in Prosecutor v Naletilić (Trial Chamber Judgment), Case No IT-98-34-T (31 March 2003) (‘Naletilić – Trial’), [519]; Stakić – Appeal, above n 144, [281]; Krajišnik – Appeal, above n 280, [319]; and (spet) Sarmento – Judgment, above n 363, [135]–[136]. 393 Ibid. 394 (icty) Stakić – Appeal, above n 144, [279] (citing Krnojelac – Trial, above n 70, and Krnojelac – Appeal, above n 325), followed in Đorđević – Trial, above n 69, [1605]; G ­ otovina – Trial, above n 74, [1739]; and (BiH) Rašević and Todović – First Instance, above n 66, 87. See also Krnojelac – Appeal, above n 325, [229], [233] (finding that it is the absence of ‘genuine choice’ that makes displacement unlawful); and Simić – Trial, above n 350, [125]. 395 (icty) Stakić – Appeal, above n 144, [279], citing Krnojelac – Appeal, above n 325, [229] (where the Appeals Chamber noted that it is ‘impossible to infer genuine choice from the fact that consent was expressed, given that the circumstances may deprive the consent of any value,’ and, ‘when analyzing the evidence concerning these general expressions of consent, it is necessary to put it into context and to take into account the situation and atmosphere that prevailed in the KP Dom, the illegal detention, the threats, the use of force and other forms of coercion, the fear of violence and the detainees’ vulnerability’), followed in Martić – Trial, above n 69, [108]; Milošević, S – Acquittal Decision, above n 378, [72]; Blagojević – Trial, above n 70, [596]; and Simić – Trial, above n 350, [125]. 396 (icty) Blagojević – Trial, above n 70, [596].

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the auspices of the icrc or another neutral organization, does not necessarily make it voluntary.397 The Israeli District Court in Eichmann even though the crime was made out even if carried out in a humane manner.398 The Tribunals have held that a lack of genuine consent may be inferred from a coercive or intimidatory environment399 or the creation of ‘severe living conditions’ that made it impossible for individuals to remain in their municipalities.400 Such acts include ‘threatening and intimidating acts that are calculated to deprive the civilian population of exercising its free will, such as the shelling of civilian objects, the burning of civilian property, and the commission of or threat to commit other crimes ‘calculated to terrify the population and make them flee the area with no hope of return’.401 In Case 002-01, cutting of the water supply was one mechanism used (among others).402 However, one spet Panel has found that forced displacement will not be established where it is properly understood as a step towards the execution of another crime such as murder.403 The use of the language of ‘consent’ has led the eccc to note that ‘fraud’ may found the sufficient element of force or coercion.404 The Trial Chamber cited the Israeli District Court in Eichmann where it found there was a false

397 (icty) Naletilić – Trial, above n 393, [523], followed in Simić – Trial, above n 350, [127]; Stakić – Appeal, above n 144, [286], followed in Krajišnik – Trial, above n 147, [724]; and Gotovina – Trial, above n 74, [1739]. 398 (Israel) Attorney-General of Government of Israel v Eichmann, 36 ilr 247–248 (D Ct., Israel, 1961) (‘Eichmann Case’). 399 See (icty) Stakić – Trial, above n 30, [707] (‘the atmosphere in the municipality of Prijedor during the time relevant to the Indictment was of such a coercive nature that the persons leaving the municipality cannot be considered as having voluntarily decided to give up their homes’); and Milutinović – Trial, above n 350, [165] (‘Trial and Appeals Chambers have inferred a lack of genuine choice from threatening and intimidating acts that were calculated to deprive the civilian population of exercising its free will, such as the shelling of civilian objects, the burning of civilian property, and the commission of or threat to commit other crimes calculated to terrify the population and make them flee the area with no hope of return’. 400 (icty) Krajišnik – Appeal, above n 280, [319], citing Krajišnik – Trial, above n 147, [729]. 401 (icty) Simić – Trial, above n 350, [126] (citing Krstić – Trial, above n 70, [147]), followed in Milutinović – Trial, above n 350, [165]; and Đorđević – Trial, above n 69, [1606]. See also (eccc) Case 002/01 – Trial, above n 66, [161], [163]. 402 (eccc) Case 002/01 – Trial, above n 66, [149]. 403 (spet) Da Costa – Judgment, above n 182, 14–15 (where the victims were forcibly transferred to a different location so that they could be executed). 404 (eccc) Case 002/01 – Trial, above n 66, [450], fn 1329.

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assurance to victims that displacement would be only temporary.405 When coupled with the forces of the state to enforce the fraud, it is clear why such an action could amount to force or coercion. There appear to be two important limits on these authorities concerning a coercive or intimidatory environment. First, a ‘coercive environment’ alone does not appear to suffice; there must be at least a taking advantage of that coercive environment, if not a contribution to it. As much is clear from the authorities cited above. Secondly, the accused must have a role in the movement of the victims to a particular destination.406 The icty Trial Chamber in Gotovina interpreted these propositions as requiring that the conduct complained be the ‘primary and direct cause’ of the victims fleeing or the ‘creat[ing of] an environment in which those present had no choice to leave’; it is not sufficient that the actions ‘had some bearing on persons leaving.’407 In the Gotovina case, the conduct complained of was indirect, in that it concerned the Croatian shelling of Serb populated areas in ‘Operation Storm’. The Trial Chamber, accordingly, required proof of aspects such as the extent, duration and intensity of the shelling, and the testimony from witnesses present to ascertain the population’s reasons for leaving.408 The icc appears to have endorsed this jurisprudence. For instance, in the Kenya Authorisation Decision, Pre-Trial Chamber ii held that people were displaced ‘as a result of violence or as a consequence of threats of violence’.409 The Chamber appeared to envisage, for instance, that warnings of violence addressed to targeted communities and disseminated through leaflets, eviction notices and radio programs could suffice.410 Finally, it is worth noting that the icty Trial Chamber in Stakić held that the crime of deportation did not require that a minimum number of individuals must have been displaced as such a requirement would be ‘tantamount to negating the protective effect of the prohibition against deportation’.411 The icty

405 (Israel) Eichmann Case, above n 399, 64–66, 96(a), 237 406 See below, Section 5.5.3. 407 (icty) Gotovina – Trial, above n 74, [1743], [1754]. 408 (icty) Gotovina – Trial, above n 74, [1743]–[1754]. 409 (icc) Kenya – Authorisation, above n 358, [162]. See also Prosecutor v Muthaura et al. (Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute), Pre-Trial Chamber ii, ICC-01/09-02/11-382-Red (29 January 2012) (‘Muthaura – Confirmation Decision’), [243] (where the displacement was considered to have occurred simply as a result of the attack on the civilian population). 410 (icc) Kenya – Authorisation, above n 358, [163]. 411 (icty) Stakić – Trial, above n 30, [685].

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Appeals Chamber in Krajišnik affirmed this point in respect of both deportation and forcible transfer.412 5.3 Requirement of ‘lawful presence’ The second element of the actus reus is that the victims be lawfully present in the area from which they were displaced.413 What the term ‘lawfully present’ means, however, is open to some doubt. What is clear is that the term will extend to those with a right under a state’s domestic law to be present in the territory such as citizens or residents. The icty Trial Chamber in Đorđević414 found that ‘[i]nhabitants or residents of an area’ will suffice and the Iraqi High Tribunal in Anfal was satisfied that the Kurds were living legally in their houses, farms, towns and villages.415 Outside a person having a right under domestic law to reside, the term remains controversial. In order to try to win Israel’s support at the Rome Conference, the clarification in the icc Statute similarly refers to expulsion or other coercive acts ‘from the area in which they are lawfully present, without grounds permitted under international law’. Israel argued that it might ultimately be judged by international law, particularly given the status of the occupied territories in international law.416 According to McCormack, therefore, this requires the expulsion to be unlawful under both domestic and international law.417 Kittichaisaree argues that, once lawful presence occurs, the removal must be permitted by international law regardless of whether or not it is allowed by domestic law.418 More controversially, the icty Trial Chamber in Popović held that the term ‘lawful presence’ should be given its ordinary meaning and not be equated with ‘lawful residence’.419 The Trial Chamber in Popović held that persons are protected if they – for whatever reason – have come to ‘live’ in the ­community

412 (icty) Krajišnik – Appeal, above n 280, [309]. 413 (icty) Blaškić – Trial, above n 67, [234] (citing the icc Statute), followed in Krnojelac – Trial, above n 70, [474]; Stakić – Appeal, above n 144, [278] (citing Krnojelac – Trial, above n 70, and Blaškić – Trial), followed in Krajišnik – Appeal, above n 280, [304]; and (ECtHR) Kolk and Kislyiy – Appeal, above n 352, discussed in Chapter 7, Section 5.2. 414 (icty) Đorđević – Trial, above n 69, [1616]. 415 (iht) Anfal – Trial, above n 145, 538–539, 544. 416 McCormack, above n 5, 192–193. 417 McCormack, above n 5, 192–193. 418 Kittichaisaree, above n 6, 109. 419 (icty) Prosecutor v Popović et al. (Trial Chamber Judgment), Case No IT-05-88 (10 June 2010) (‘Popović – Trial’), [900].

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(e.g. including internally displaced persons).420 The Chamber held that, ‘whether an individual has lived in a location for a sufficient period of time to meet the requirements for residency or whether he or she has been accorded such status under immigration laws is irrelevant’. According to the Trial Chamber, the crime would include protection of, for instance, persons who may be temporarily residing in a particular place for shelter.421 The Chamber considered that the requirement is intended to only exclude situations of illegal occupation of houses or premises.422 The prohibition against forcible transfer and deportation was held to be intended to ‘prevent civilians from being uprooted from their homes and to guard against the wholesale destruction of communities’.423 Ultimately, the view in Popović may be unduly broad. Such a view would seem to give undue weight to a state’s sovereign rights over its own territory and the limited rights provided for non-citizens of one state to reside in the territory of another state (i.e. with rights of individuals under the Convention Relating to the Status of Refugees being one limited exception). For instance, it would be difficult to argue that a state would not have a right to remove from its territory residents or citizens of another state who – without legitimate grounds under international law, such as a right to seek asylum – had come to live in the territorial state simply on the basis that ‘for whatever reason’ they had come to live in the territorial state. Removal of such citizens – at least to a state where they had residency or citizenship – would seem permissible. The better view would appear to be that lawful presence requires that the person or persons have a right to be present in the territory, either under domestic or international law. It is not sufficient that the individuals have – for whatever reason – come to reside in the territory 5.4 ‘Without grounds permitted under international law’ The third element of the actus reus is that the victims be displaced ‘without grounds permitted under international law’.424 While it has been suggested that this element is more appropriately dealt with when considering the 420 (icty) Popović – Trial, above n 420, [900]. 421 (icty) Đorđević – Trial, above n 69, [1616]. 422 (icty) Popović – Trial, above n 420, [900]. 423 (icty) Popović – Trial, above n 420, [900]. 424 (icty) Blaškić – Trial, above n 67, [234] (citing the icc Statute), followed in Krnojelac – Trial, above n 70, [474]; Stakić – Appeal, above n 144, [278] (citing Krnojelac – Trial and Blaškić – Trial), followed in Krajišnik – Appeal, above n 280, [304]; and (ECtHR) Kolk and Kislyiy – Appeal, above n 352, discussed in Chapter 7, Section 5.2.

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c­ hapeau elements of crimes against humanity,425 is frequently cited as a specific element of the underlying crime. It is frequently said, drawing from the Geneva Conventions (i.e. and so at least in the context of an armed conflict), that international law permits the displacement of persons in two limited circumstances:426 1. 2.

for the security of a civilian population; or for imperative military reasons.427

As the icty Trial Chamber in Blagojević held, both examples are best understood as ‘exceptional’ instances of ‘evacuation’.428 Accordingly, ‘persons thus evacuated [must be] transferred back to their homes as soon as hostilities in the area in question have ceased.’429 Similarly, the eccc has held that such measures ‘must conform with the principle of proportionality’.430 In line with Article 49 of the Fourth Geneva Convention, parties are required to ‘ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory 425 (icty) Gotovina – Trial, above n 74, [1740] (citing a similar finding in the context of persecution in Brđanin – Appeal, above n 149, [167]). 426 (icty) Krstić – Trial, above n 70, [524] and [526]; Blagojević – Trial, above n 70, [597], followed in Milutinović – Trial, above n 350, [166]; Stakić – Appeal, above n 144, [284]–[287] (citing Article 49, Geneva Convention iv, Article 17, Additional Protocol ii, and Article 19, of Geneva Convention iii), followed in Krajišnik – Trial, above n 147, [725] (affirmed in Krajišnik – Appeal, above n 280, [308]); (BiH) Rašević and Todović – First Instance, above n 66, 89; and (spet) Sarmento – Judgment, above n 363, [134]. See also Bassiouni, above n 10, 393. 427 For examples from Nuremberg, see authorities cited in (icty) Krstić – Trial, above n 70, [526]. 428 (icty) Blagojević – Trial, above n 70, [597], [600], followed in Popović – Trial, above n 420, [901]. The Chamber based its conclusion upon Article 17 of Additional Protocol ii, which provides in part that ‘[t]he displacement of the civilian population shall not be ordered for reasons related to the conflict’. The Commentary to Article 17 indicates that for other reasons – such as the outbreak or risk of outbreak of epidemics, natural disasters, or the existence of a generally untenable and life-threatening living situation – displacement of the civilian population may be lawfully carried out by the parties to the conflict’ (icrc Commentary to Additional Protocol ii, [4855]). 429 Geneva Convention iv, Art 49, cited in (icty) Krstić – Trial, above n 70, [524]; Blagojević – Trial, above n 70, [599]; Brđanin – Trial, above n 69, [556]; Milutinović – Trial, above n 350, [166]; Krajišnik – Trial, above n 147, [725]; Stakić – Appeal, above n 144, [284]; and (eccc) Case 002/01 – Trial, above n 66, [450]. 430 (eccc) Case 002/01 – Trial, above n 66, [450].

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conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated.’431 There are clear principles in place to prevent the abused of such exceptions. The ad hoc Tribunals have, for instance, followed the commentary to Additional Protocol ii in concluding that international law prohibits the use of evacuation measures as a pretext to remove the population and effectuate control over a desired territory.432 Similarly, displacement for humanitarian reasons is not justifiable where the humanitarian crisis that caused the displacement is the result of the accused’s unlawful activity.433 For instance, the icty Appeal Chamber in Stakić considered that the only reason it may have been safer for Bosnian Muslims to have been displaced from the area of Prijedor was the danger posed to them by the criminal scheme of the Appellant and his co-perpetrators.434 Whether an act was permissible under international law requires an assessment of the factual context on a case-by-case basis.435 The relevant context is when the decision to deport was made and, accordingly, a plan made to evacuate persons a considerable time before any military necessity will tend against such necessity being present.436 While the victims of deportation and forcible transfer may be civilians, determining whether the persons displaced are combatants or civilians may assist in distinguishing lawful displacement from criminal displacement.437 In the icty case of Gotovina, the defence unsuccessfully tried to argue that, under ihl, a belligerent state has the right to expel nationals of an enemy state, citing a decision from the Eritrea-Ethiopia Claims Commission (eecc).438 The eecc concerned a situation where, after the outbreak of armed conflict between Ethiopia and Eritrea, Ethiopia expelled and confiscated the property of a number of Eritrean citizens. The eecc held that ihl provides that

431 (eccc) Case 002/01 – Trial, above n 66, [450]. 432 (icty) Blagojević – Trial, above n 70, [597], [600] (citing Commentary to Additional Protocol ii to the Geneva Conventions of 1949, 1473), cited in, followed in Popović – Trial, above n 420, [901]. 433 (icty) Stakić – Appeal, above n 144, [287]; and (eccc) Case 002/01 – Trial, above n 66, [450]. 434 (icty) Stakić – Appeal, above n 144, [287]. 435 (eccc) Case 002/01 – Trial, above n 66, [451]. 436 (eccc) Case 002/01 – Trial, above n 66, [451]. 437 (icty) Popović – Trial, above n 420, [912]. 438 Eritrea Ethiopia Claims Commission, Partial Award, Civilians Claims, Eritrea’s Claims 15, 16, 23, 27–32, 17 December 2004 (‘eecc Partial Award’).

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b­ elligerents in such a case have broad (although not absolute) powers under ihl to expel nationals of an enemy state.439 While the Trial Chamber did not dispute the principle stated by the eecc, the Chamber distinguished it from the case before it. First, the Chamber distinguished the case on the basis that most of the people expelled by Ethiopia had dual citizenship, whereas the citizenship of the victims under consideration – people of Serb origin who fled the Krajina region, especially of those who had lived the whole of their lives in Croatian territory – was at least unclear.440 S­ econdly, and in the alternative, the Trial Chamber found that even if they were citizens of a foreign state: their forcible displacement was abusive and arbitrary if only as a result of the means used (an unlawful attack on civilians and civilian objects which itself amounted to a crime) and not comparable with the procedure which the eecc established had been followed by the Ethiopian authorities.441 This suggests that the grounds of lawful removal are not only those ­limited instances cited above occurring in times of armed conflict, but included ­removal – whether in wartime or peacetime – pursuant to reasonable and legitimate state grounds as opposed to grounds that are arbitrary such as ­removal for the purposes of attacking a certain population.442 A similar argument is made in this text as to when an attack may be said to be against ‘any civilian population’ for the purposes of a crime against humanity.443 For instance, it may be contended that removal may be lawful in certain circumstances where it is in the legitimate interests of a state’s national security. For instance, a number of Western have laws to provide for the revocation of a 439 eecc Partial Award, above n 439, [81]. 440 (icty) Gotovina – Trial, above n 74, [1748], citing eecc Partial Award, above n 439, [51] and [65]. 441 (icty) Gotovina – Trial, above n 74, [1748], citing: eecc Partial Award, above n 439, [81], quoting Robert Jennings and Arthur Watts (eds), Oppenheim’s International Law (vol I) (Oxford University Press: Oxford, 1996), § 413, 940–941 (‘The right of states to expel aliens is generally recognized. […] On the other hand, while a state has a broad discretion in exercising its right to expel an alien, its discretion is not absolute. Thus, by customary international law, it must not abuse its right by acting arbitrarily in taking its decision to expel an alien, and it must act reasonably in the manner in which it effects an expulsion.’). 442 Further support for this may be drawn from the language of the eccc which has ‘civilian security or military necessity’ (eccc) Case 002/01 – Trial, above n 66, [451]. 443 See Chapter 9, Section 5.1.

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person’s ­citizenship in circumstances where the person’s actions constituted a legitimate threat to national security (e.g. being involved in certain terrorist or subversion offences).444 More difficult questions arise where it is alleged that a state’s citation of national security or other apparently legitimate basis is asserted not to be bona fide. Such cases must depend on the actual rather than merely the asserted purpose of the transfers. In Case 002-01 at the eccc, for instance, the evacuation of the residents of Phnom Penh was at various times justified on apparently legitimate bases, such as to prevent starvation of the population445 or to prevent the possibility of death by way of us bombing.446 The Tribunal found that in fact the movements were effected to neutralise enemies, avoid the threat of rebellion, eliminate and temper the capitalist and feudal classes and to build and expand cooperatives more compatible with socialism.447 The same principle would apply during peacetime.448 For reasons discussed above (at 1.2.2) and below in the context of imprisonment, the requirement that the removal was not permitted under international­ law must be strictly construed in light of state practice and the fact that the term imposes criminal sanction. It is to be distinguished from a ‘mere’ breach of human rights. 5.5 Across a de jure or de facto Border or within National Boundaries 5.5.1 Deportation The fourth element of the actus reus of the crime of ‘deportation’ is that the victims be deported across a de jure state border or, in certain circumstances, a de facto border.449 Difficulties may arise in respect of defining both a ‘de jure state border’ and a ‘de facto border’.

444 See, for example, (United Kingdom) Immigration Act 2014, s 66; and British Nationality Act 1981, s 40(4A); (Canada) Strengthening Canadian Citizenship Act 2014; (France) Maïa de la Baume, ‘Court Upholds France’s Move to Strip Citizenship of Man Jailed on Terror Charge’, New York Times (23 January 2015), accessed online at on 27 September 2017; and (Australia) Australian Citizenship Amendment (Allegiance to Australia) Act 2015 (Cth). 445 (eccc) Case 002/01 – Trial, above n 66, [147], [159]. 446 (eccc) Case 002/01 – Trial, above n 66, [153]. 447 (eccc) Case 002/01 – Trial, above n 66, [169]. 448 See discussion of the example of the Falun Gong in China in Chapter 9, Section 5.1.2. 449 (icty) Blaškić – Trial, above n 67, [234] (citing the icc Statute), followed in Krnojelac – Trial, above n 70, [474]; Stakić – Appeal, above n 144, [278] (citing Krnojelac – Trial and

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In respect of the first difficulty, the question may arise as to what constitutes a ‘state’. For instance, one spet Panel found that the transfer of individuals from East Timor to West Papua in 1999 constituted deportation given that East Timor had declared independence from Indonesia on after 28 November 1975.450 This statement is controversial given that the 1975 declaration was unilateral, and East Timor was annexed by Indonesia in 1976 and did not hold a plebiscite on independence until 2002.451 Similar issues have arisen in the icc in the context of the Palestinian territories, where the icc Prosecutor decided to leave the determination of statehood to the relevant un bodies.452 Despite the caution showed by the icc Prosecutor, this question should presumably be determined based on customary international law. The second difficulty is defining a de facto border for the purposes of deportation.453 At the very least, this would seem to cover displacement across a de facto state border. Outside this, there is some disagreement. Whether or not non-state borders could suffice was raised in the icty Appeals Chamber Decision in Krajišnik, although the Chamber expressly refrained from deciding the question.454 The icty Appeals Chamber in Stakić held that whether a de facto border is sufficient for the purposes of the crime of deportation will be examined on a ‘case by case basis in light of customary international law’.455 On the one hand, the Appeals Chamber were unanimous in finding that displacement from an ‘occupied territory’ is sufficient to amount to deportation.456 This decision Blaškić – Trial), followed in Krajišnik – Appeal, above n 280, [304]; and (ECtHR) Kolk and Kislyiy – Appeal, above n 352, discussed in Chapter 7, Section 5.2. 450 (spet) Sarmento – Judgment, above n 363, [138]: Since East Timor became independent on 28th November 1975 according to the Preamble and Sect. 1.2 Timorese Constitution, that part of the population which was transferred to Indonesia was moved to a different country and therefore suffered Deportation. 451 See Jackson Maogoto, ‘East Timor’s Tortured March to Statehood: A Tale of Legal Exclusion & the Vagaries of Realpolitik’ (2007) 9 University of Notre Dame Law Review 75, 92. 452 See the icc Prosecutor’s decision on the Situation in Palestine (3 April 2012), accessed online at on 13 January 2013. 453 The possibility of which has been confirmed, for instance, in (icty) Stakić – Appeal, above n 144, [300], [317]; and Đorđević – Trial, above n 69, [1683]; see also Prosecutor v. Dragan Nikolić (Review of Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence), Case No. IT-94-2 (20 October 1995) (‘Nikolić – Rule 61 Decision’), [23]. 454 (icty) Krajišnik – Appeal, above n 280, [305]. 455 (icty) Stakić – Appeal, above n 144, [300]. 456 (icty) Stakić – Appeal, above n 144, [300] (citing Geneva Convention iv, Art 49).

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draws support from decisions in the courts in Estonia, Latvia and H ­ ungary concerning displacement within the ussr in the context of the Stalinist purges.457 On the other hand, the majority (Judge Shahabuddeen dissenting) held that displacement of victims across ‘constantly changing frontlines’ – i.e. to an area controlled by another party to an armed conflict458 – does not amount to deportation.459 Judge Shahabuddeen dissented, finding that crossing a frontline  – even a constantly changing one – could suffice.460 In Naletilić and Martinović, Judge Schomburg expressed a similar view to that of Judge Shahabuddeen, holding that deportation could include forced displacement across a demarcation line between an area under the control of one belligerent party and an area under the control of another authority.461 In that instance, the majority felt no need to decide the matter.462 In the icty Trial Chamber decision in Đorđević, the Chamber held that the movement of ethnic Albanians from Kosovo into Montenegro amounted to deportation despite the fact that they effectively remained within the state of the sfry.463 The Chamber considered that the de facto border was sufficient to amount to deportation given two circumstances. First, the Chamber considered the degree of autonomy enjoyed by Kosovo and Montenegro as republics within the sfry.464 Secondly, the Chamber noted that an armed conflict existed at the time between the forces of the fry/Serbia on the one hand and the Kosovo Liberation Army (kla) on the other.465 The Trial Chamber also suggested that it is relevant to look to the effect of the displacement on the victims and the strategic benefit to the party doing the deporting. The Trial Chamber stated that such a deportation (i.e. from Kosovo into Montenegro): ‘would have much the same effect as displacement across a State border because it would still cause a serious hardship to the displaced persons. They would be deprived of their income, property, and means of 457 See Chapter 7, Sections 5.2 (Estonia), 5.3 (Latvia) and 5.4 (Hungary). 458 (icty) Stakić – Trial, above n 30, [679]. 459 (icty) Stakić – Appeal, above n 144, [300]–[303]. 460 (icty) Stakić – Appeal, above n 144, (Dissenting Opinion of Judge Shahabuddeen), [72]– [76], citing (ECtHR) Turkey v Cyprus (1982) 4 European Human Rights Reports 482, 520. 461 (icty) Prosecutor v Naletilić (Appeals Chamber Judgment), Case No IT-98-34-A (3 May 2006) (‘Naletilić – Appeal’) (Separate and Partly Dissenting Opinion of Judge Schomburg), [22]. 462 (icty) Naletilić – Appeal, above n 462, [51]. 463 (icty) Đorđević – Trial, above n 69, [1683]. 464 (icty) Đorđević – Trial, above n 69, [1683]. 465 (icty) Đorđević – Trial, above n 69, [1683].

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s­ ubsistence, of their communities, their ability to speak their language and live their normal life. Significantly, displacement of Kosovo Albanians out of Kosovo would have made it easier for the authorities of fry and Serbia to exercise control over the province, while the presence of small groups of Kosovo Albanians in other parts of the fry or Serbia would not have had a significant impact on the fry and Serbian authorities’ control over these territories.466 5.5.2 Forcible Transfer The fourth element of the actus reus of the crime of ‘forcible transfer’ is that the victims be deported within national boundaries.467 As mentioned above,468 since the statutes of the ad hoc Tribunals did not include the crime of ‘forcible transfer’, the jurisprudence has considered the crime only in the context of the crimes of ‘persecution’ and ‘other inhumane acts’. As such, it must be seen in light of the requirement that such a crime must pass the applicable gravity threshold discussed below in respect of those crimes. In Krajišnik, the icty Appeals Chamber pointed out that the jurisprudence goes only as far as saying that forcible transfer may be sufficiently serious to amount to other inhumane acts.469 Accordingly, a Trial Chamber must analyse each case on its facts to determine whether the crime of forcible transfer is made out.470 In the eccc, for instance, the forcible relocation took place under inhuman conditions, without insufficient or any accommodation and assistance and resulted in death by way of starvation, exhaustion and sickness.471 Considering the issue in Krajišnik, the icty Appeals Chamber found that the acts of forcible transfer were of similar seriousness to the instances of deportation ‘as they involved a forced departure from the residence and the 466 (icty) Đorđević – Trial, above n 69, [1683]. See also comments made to similar effect in Stakić – Appeal, above n 144, (Dissenting Opinion of Judge Shahabuddeen), [72]–[76]. 467 (icty) Krnojelac – Trial, above n 70, [474]; and Krstić – Trial, above n 70, [521] (citing ilc Draft Code, 122), followed in Blagojević – Trial, above n 70, [595]; Brđanin – Trial, above n 69, [540]; Milutinović – Trial, above n 350, [164]; Simić – Trial, above n 350, [123]–[124]; Stakić – Appeal, above n 144, [317], followed in Krajišnik – Trial, above n 147, [723] (affirmed in Krajišnik – Appeal, above n 280, [308], [333]); see also Krnojelac – Appeal, above n 325, [222]. 468 See Section 5.1.2. 469 (icty) Krajišnik – Appeal, above n 280, [330] (citing Stakić – Appeal, above n 144, [317]). 470 (icty) Krajišnik – Appeal, above n 280, [330]–[331]. 471 (eccc) Case 002/01 – Trial, above n 66, [170]–[171].

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community, without any guarantees concerning the possibility to return in the ­future, with the victims … invariably suffering serious mental harm.’472 In Krstić, the Chamber found the crime of forcible transfer to be made out where Serb forces coercively bussed 25,000 Bosnian Muslim civilians outside Srebrenica to Bosnian-Muslim controlled territory within Bosnia & Herzegovina, where the purpose was to expel the population from the enclave.473 5.5.3 Accused’s Role in the Destination Whether deportation or forcible transfer, the icty Trial Chamber in Popović has confirmed that there must be a link between the act of the accused and the movement of the victim, namely that ‘it must be the act of the accused which determined the destination’.474 In the case of deportation, for instance, it is insufficient for the prosecution to prove the force on the part of the accused and that the victim moved across a state border.475 To do otherwise is, according to the Trial Chamber, to leave a constituent element of the crime related not to the acts of the accused but to chance or, in many cases, to a choice made by a victim. In Popović, the Trial Chamber applied this principle to the notorious column of men at Srebrenica that sought to break out of Serb-controlled territory after the withdrawal of the un forces from the enclave. The Chamber found that the armed members of the column were not forcibly displaced as, unlike the civilian component of the column, they had options other than fleeing; they had the choice to stay and fight, to surrender or to retreat.476 By contrast, the majority found that civilian component had no choice.477 5.5.4 The icc In the icc Statute, the drafters appeared to combine the crimes of deportation and forcible transfer into a single crime of ‘deportation or forcible transfer’. The icc Statute requires that there by a ‘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’.478 472 (icty) Krajišnik – Appeal, above n 280, [331], referring to Blagojević – Trial, above n 70, [629]; Krstić – Trial, above n 70, [523]; and Kupreškić – Trial, above n 34, [566]. 473 (icty) Krstić – Trial, above n 70, [531]–[532]. 474 (icty) Popović – Trial, above n 420, [893]. 475 (icty) Popović – Trial, above n 420, [893]. 476 (icty) Popović – Trial, above n 420, [927]. 477 Judge Kwon dissented, but based on the sufficiency of the pleadings. 478 icc Statute, Arts 7(1)(d) and 7(2)(d).

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The Elements of Crimes clarifies that the persons displaced need only be displaced to ‘another State or location’. Nonetheless, the icc may interpret these as still being conceptually different crimes entailing different results on sentencing. A further question would appear to be whether the jurisprudence of the ad hoc Tribunals will be adopted in respect of ‘forcible transfer’. This is not entirely clear given the way in which the Tribunals dealt with the crime under the crimes of ‘persecution’ and ‘other inhumane acts’. The better view would seem to be that the jurisprudence of the ad hoc Tribunals is persuasive in respect of the evaluation of customary international law and should also be persuasive in the context of the icc Statute. 5.6 Mens Rea The mens rea of deportation and forcible transfer has been held by the ad hoc Tribunals to be that the perpetrator must ‘intend to displace the victims’.479 It is not necessary that the prosecution establish an intent that the victims be displaced permanently, only that they be intentionally displaced.480 This definition is ambiguous. The definition leaves it unclear whether the perpetrator needs to know the other elements in the crime: that the persons were lawfully present at the time; that they were removed without grounds permitted under international law; and that, for deportation, the victims were moved across the relevant border. In respect of the mens rea in the icc, Element 1 does not otherwise provide a mental element and so Article 30 of the icc Statute provides that ‘intent and knowledge’ is required. Element 1 contains a component of conduct (that the person performed certain acts or omissions) and a component of consequence (that, as a result of the acts or omissions, one or more persons were deported or forcibly transferred, without grounds permitted under international law, to another state or location by expulsion or coercive acts). The default fault elements will apply accordingly. Element 3 of the Elements of Crimes otherwise provides for a mental element, being that ‘[t]he perpetrator was aware of the factual circumstances that established the lawfulness of the presence’. The Iraq 479 (icty) Stakić – Trial, above n 30, [686], affirmed in Stakić – Appeal, above n 144, [278], followed in Krajišnik – Trial, above n 147, [726] (affirmed in Krajišnik – Appeal, above n 280, [304]); Martić – Trial, above n 69, [111]; and (eccc) Case 002/01 – Trial, above n 66, [450]. 480 (icty) Stakić – Appeal, above n 144, [278], [307], [317], followed in Brđanin – Appeal, above n 149, [206]; and Krajišnik – Appeal, above n 280, [304]. Cf. Naletilić – Appeal, above n 462, (Judge Schomburg’s Dissenting Opinion), [24].

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High Tribunal has since adopted this formulation.481 This appears to require that the perpetrator be aware only of those facts which render lawful the victim’s presence without having to conclude, based on a legal assessment, that they were ‘lawfully present’.482 The difficult question remains whether a person must have intended the consequence that the victims be deported or forcibly transferred without grounds permitted under international law. At first glance, such a result would seem undesirable on the basis that it would open the door to a defence that the perpetrator was ignorant of international law contrary to the doctrine of ignorantia juris non excusat (ignorance of the law is no excuse). The difficulty with the contrary interpretation is that the Elements of Crimes could have clearly provided to the contrary had they intended to do so. Element 3 is such an example. The perpetrator need only be ‘aware of the factual circumstances that established the lawfulness of the presence’. The same step could have been taken in relation to the element of transfer ‘without grounds permitted under international law’. No such step was taken. This conclusion is not surprising given the nature of the crime. The wrong sought to be addressed by the crime is not only that the victims were transferred, but that they were transferred in clear breach of the rights of those individuals. The bureaucrat who arranges for the expulsion of various persons of Muslim ethnicity believing it to be on legitimate national security grounds and pursuant to domestic law (e.g. that the individuals were terrorists and domestic law provided an avenue for their expulsion) commits no wrong simply because in fact such persons were deported arbitrarily on the basis of their religion contrary to international law. While concerns may be raised about the difficulty in proving such an ­element, those difficulties may seem greater in the abstract than they are in practice. Where groups of individuals are targeted in a manner that is clearly arbitrary or outside any legal justification (e.g. based on their ethnicity, religion or political affiliation), it will be difficult to contend the perpetrator did not know such an action would be contrary to international law (however lacking their knowledge of law may be). Where actions are more controversial or grey, key areas of inquiry relevant to drawing inferences as to intention are likely to be: (a) the context in which they occur (e.g. their connection to any ‘attack’); (b) the manner in which the individuals are transferred (e.g. whether violence or misconduct was present or victims harmed, whether the actions were p ­ ursuat 481 (iht) Anfal – Trial, above n 145, 538 (referring to knowledge of the ‘actual conditions which prove the legality of th[e] attack’). 482 See similar reasoning in (icc) Lubanga – Confirmation, above n 15, [360].

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to bona fide domestic laws and the extent of legal protection provided to such individuals); and (c) to what extent the perpetrators made any inquiries as the lawfulness of the conduct and the persuasiveness of any justification received. 6

Imprisonment or Other Severe Deprivation of Liberty

Under customary international law, the underlying crime of ‘imprisonment’ as a crime against humanity requires the prosecution establish that the following elements were committed as part of a widespread or systematic attack against a civilian population:483 1. 2. 3.

The perpetrator [severely]484 deprives one or more individuals of their liberty.485 The deprivation of liberty is carried out arbitrarily, that is, there is no ­legal basis for it.486 The perpetrator:487 a. intended to deprive the individual arbitrarily of his or her liberty; or b. with the reasonable knowledge that his or her act or omission was likely to cause the deprivation of physical liberty arbitrarily.

Article 7(1)(e) of the icc Statute proscribes ‘imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of ­international 483 See also (spet) untaet Regulation 2000/15, s 5.1 (e); Prosecutor v Joao Franca da Silva (Judgment), Special Panel Case No 4a/2001 (5 December 2002) (‘Da Silva – Judgment’), [133]; and Prosecutor v Sabino Gouveia Leite (Judgment), Special Panel Case No 4b/2001 (7 December 2002) (‘Gouveia Leite – Judgment’), [152], followed in Prosecutor v Cardoso (Judgment), Special Panel Case No 1/2003 (5 April 2003) (‘Cardoso – Judgment’), [356] (which follow the icc definition). 484 icc Statute, Art 7(1)(e). While this word is not included in the test stated by the ad hoc Tribunals, the word is properly included in the definition under customary international law for reasons discussed below. 485 (icty) Kordić – Trial, above n 70, [302] (affirmed in Kordić – Appeal, above n 66, [116]); and Krnojelac – Trial, above n 70, [115], followed in Simić – Trial, above n 350, [64]–[65]; Martić – Trial, above n 69, [87]; Krajišnik – Trial, above n 147, [752]; Gotovina – Trial, above n 74, [1815]; and (ictr) Ntagerura – Trial, above n 99, [702]; see also icc Statute, Art 7(1) (e); and Cassese, above n 108, 95 486 Ibid. 487 (icty) Krnojelac – Trial, above n 70, [115], followed in Simić – Trial, above n 350, [64]–[65]. See also Bassiouni, above n 10, 444; and Cassese, above n 108, 95.

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law’ as a crime against humanity. The icc Elements of Crimes requires the prosecution establish that the following elements occurred as part of a widespread or systematic attack against any civilian population: 1.

2. 3.

The perpetrator imprisoned one or more persons or otherwise severely deprived one or more persons of physical liberty. [Mental element: The perpetrator:488 a. meant to perform one or more act or omission; and b. either: (i) meant, by such act(s) or omission(s), to imprison one or more persons or otherwise severely deprive one or more persons of physical liberty; or (ii) was aware that such a consequence would occur in the ordinary course of events as a result of the act(s) or omission(s).] The gravity of the conduct was such that it was in violation of fundamental rules of international law. [Mental element:] The perpetrator was aware of the factual circumstances­ that established the gravity of the conduct.489

6.1 Introduction Imprisonment as a crime against humanity first appeared in the Control Council Law No 10, although it was not listed in the imt Charter.490 It has since been included in the statutes of the ad hoc Tribunals and the icc Statute. Schabas notes that there was unease among some delegations during the drafting of the icc Statute that the provision would include ‘lawful imprisonment in the exercise of State authority’.491 The uncertainty as to the definition of the crime was reflected in the Preparatory Committee using several sets of square brackets for discussion before the final text emerged: ‘[detention or] [imprisonment] [deprivation of liberty] [in flagrant violation of international law] [in violation of fundamental legal norms]’.492 488 No mental element is specified meaning that Article 30 of the icc Statute provides that ‘intent and knowledge’ apply as discussed above at Section 1.2.3. 489 The Elements of Crimes specifically ‘otherwise provide’ the mens rea element for this actus reus element and so the ordinary default rules discussed above at Section 1.2.3 do not apply. 490 Control Council Law No 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity (20 December 1945), Official Gazette of the Control Council for Germany, No 3, Berlin (31 January 1946), 50–55, Article 6(c); and Schabas, above n 228, 165. 491 Schabas, above n 228, 165, citing Preparatory Committee 1996 Report, Volume 1, [96]. 492 un Doc. A/CONF.183/C.1/SR.3 (20 November 1998), [75] (China), [97] (France); and un Doc. A/CONF.183/C.1/SR.4 (28 November 1998), [4] (Guinea), [17] (Japan).

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Ultimately, however, the icc Statute defined the crime as ‘deportation or other severe deprivation of physical liberty in violation of fundamental rules of international law’. Accordingly, as Schabas notes, the whole point of the provision is to address imprisonment pursuant to state laws, such as the Justice Case at Nuremberg.493 And while one spet Panel has doubted the customary status of the second limb – ‘other severe deprivation of physical liberty’494 – as discussed further below, the definition appears to be largely in line with the expansive reading the ad hoc Tribunals have given to the term ‘imprisonment’. 6.2 Imprisonment or Other Severe Deprivation of Liberty Under customary international law, the first element of the crime is that the perpetrator imprisons or [severely]495 deprives one or more individuals of their liberty.496 This may be committed by act or omission.497 While the ad hoc Tribunals formulated this element simply as requiring that the victim be deprived of their liberty,498 the crime is nonetheless described as being the crime of ‘imprisonment’. This definition appears to be drawn from the ilc description of the crime as ‘arbitrary imprisonment’.499 While the ilc understood imprisonment as referring to the ‘deprivation of liberty’, a narrower imprisonment-like detention appeared to be contemplated. The ilc considered that the crime would cover the practice of concentration camps or detention camps or ‘other forms of long-term detention’ (emphasis added).500 Similarly, while the ad hoc Tribunals used broad language to 493 Schabas, above n 228, 165, citing (Nuremberg) The Justice Case, above n 11. 494 (spet) Da Silva – Judgment, above n 484, [90]. 495 icc Statute, Art 7(1)(e); and (spet) untaet Regulation 2000/15, s 5.1 (e). 496 (icty) Kordić – Trial, above n 70, [302] (affirmed in Kordić – Appeal, above n 66, [116]); and Krnojelac – Trial, above n 70, [115], followed in Simić – Trial, above n 350, [64]–[65]; Martić – Trial, above n 69, [87]; Krajišnik – Trial, above n 147, [752]; Gotovina – Trial, above n 74, [1815]; (ictr) Ntagerura – Trial, above n 99, [702]; and (spet) Da Silva – Judgment, above n 484, [133]. See also icc Statute, Art 7(1)(e); and Cassese, above n 108, 95. 497 (icty) Krnojelac – Trial, above n 70, [115], cited in Simić – Trial, above n 350, [64]–[65]; and Martić – Trial, above n 69, [87]. 498 (icty) Kordić – Trial, above n 70, [302] (affirmed in Kordić – Appeal, above n 66, [116]); and Krnojelac – Trial, above n 70, [115], followed in Simić – Trial, above n 350, [64]–[65]; Martić – Trial, above n 69, [87]; Krajišnik – Trial, above n 147, [752]; and Gotovina – Trial, above n 74, [1815]. See also icc Statute, Art 7(1)(e); and Cassese, above n 108, 95. 499 1996 ilc Report, 101 (‘[T]he term imprisonment encompasses deprivation of liberty of the individual and the term “arbitrary” establishes the requirement that the deprivation be without due process of law’). 500 1996 ilc Report, 101.

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d­ escribe the ‘­imprisonment’ aspect,501 the Tribunals have typically found the crime to be made out either in the context of official imprisonment or de facto imprisonment in the context of makeshift detention facilities.502 Accordingly, as held by the ictr Trial Chamber in Ntagerura, minor infringements of liberty will not suffice; the imprisonment must be of similar gravity or seriousness to the other listed crimes.503 Individuals must be held against their will; it will be insufficient that the victims were reluctantly held, that they were guarded or that their movement was curtailed.504 The icty Trial Chamber in Simić found that neither the act of unlawful arrest505 nor the act of interrogation506 will suffice per se to establish the crime (although such elements may be relevant to whether or not any detention was arbitrary507). However, the icty Trial Chamber in Simić appeared to suggest that detention for as little as one day or one week may amount to the crime of imprisonment.508 This would appear to go against the ilc definition and clearly would not be of the same level of gravity as other crimes. The drafters of the icc Statute wanted to ensure that the crime is not limited to prison-like incarceration and therefore broadened the crime to include any ‘other severe deprivation of liberty’.509 Nonetheless, the additional word ‘severe’ – as well as the requirement of a certain ‘gravity’ in Element 2 of the 501 See, for instance, (icty) Krnojelac – Trial, above n 70, [112] fn 338 (suggesting that ‘[i]nternational instruments use various terms to refer to deprivation of liberty, including inter alia “arrest,” “detention” and “imprisonment”’). 502 (icty) Kordić – Trial, above n 70, [773]; Krnojelac – Trial, above n 70, [108]; Simić – Trial, above n 350, [680]–[689]; Martić – Trial, above n 69, [407]–[411], [416], [417]; Krajišnik – Trial, above n 147, [810]–[814]; Gotovina – Trial, above n 74, [1864]; and (ictr) Ntagerura – Trial, above n 99, [751]–[755]. 503 (ictr) Ntagerura – Trial, above n 99, [702]. 504 (ictr) Ntagerura – Trial, above n 99, [727]–[729]. 505 (icty) Simić – Trial, above n 350, [61]. While this finding was that unlawful arrest could not, in itself, amount to persecution, the Chamber appears to implicitly view it as falling short of imprisonment. While the Chamber notes that ‘detention’ will suffice, it appeared to the term interchangeably with ‘imprisonment’: see [66], fn 120. 506 (icty) Simić – Trial, above n 350, [69]. 507 (icty) Simić – Trial, above n 350, [683]. 508 (icty) Simić – Trial, above n 350, [680], [665]. Although cf. Martić – Trial, above n 69, [423], [278] (where the Chamber declined to find imprisonment where detainees were held for only one night on the basis that the crime was more appropriately dealt with as deportation in the context). 509 Herman von Hebel and Darryl Robinson, ‘Crimes Within the Jurisdiction of the Court’ in Roy Lee (ed), The International Criminal Court: The Making of the Rome Statute – Issues, Negotiations, Results (Kluwer Law International: The Hague, 1999) 79, 99; and

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Elements of Crimes – indicates that not all arbitrary deprivations of liberty will suffice.510 They must be of a similar ‘severity’ to imprisonment if not having a similar character.511 This is similar to the finding of the ictr Trial Chamber in Ntagerura. The severity of a deprivation of liberty must be assessed on a case-by-case basis.512 While it is clear that it will be relevant at least to consider the length of time of any detention,513 the spet has considered that the list of relevant considerations will also include the nature of the detention as well as any violations of human rights norms.514 It has held that relevant considerations in this assessment will include:515 • • • •

length of the relevant detention;516 conditions in which the deprivation took place;517 conditions of detention;518 and the number of victims.519

M. ­Cherif Bassiouni, Crimes Against Humanity in International Criminal Law (2nd rev. ed., Kluwer Law International: The Hague, 1999) 362–363. 510 (spet) The same point has been made in the spet: Da Silva – Judgment, above n 484, [92]; and Prosecutor v Mesquita (Judgment), Special Panel Case No 28/2003 (6 December 2004) (‘Mesquita – Judgment’), [87]. 511 The Special Panels in East Timor have followed the icc definition: (spet) Da Silva – J­ udgment, above n 484, [133]; and Gouveia Leite – Judgment, above n 484, [152], followed in Cardoso – Judgment, above n 484, [356] (which follow the icc definition). 512 (spet) Mesquita – Judgment, above n 511, [87]; and Cardoso – Judgment, above n 484, [358]. 513 See also above discussion on the jurisprudence of the ad hoc Tribunals and the ilc Report’s mention of ‘long-term detention’. 514 For the latter, see (spet) Cardoso – Judgment, above n 484, [362]. See also the similar approach of the Court of Bosnia and Herzegovina in (BiH) Rašević and Todović – First Instance, above n 66, [66] (drawing on customary international law and international human rights law). 515 (spet) Gouveia Leite – Judgment, above n 484, [153]; and Mesquita – Judgment, above n 510, [88]. 516 See also (spet) Cardoso – Judgment, above n 484, [358]–[359]. 517 See also (spet) Mesquita – Judgment, above n 511, [88]. 518 See also (spet) Cardoso – Judgment, above n 484, [360]–[361]; and Prosecutor v Sisto ­Barros and Cesar Mendonca (Judgment), Special Panel Case No 1/2004 (12 May 2005) (‘Barros – Judgment’), [152]–[153]. 519 See also (spet) Prosecutor v Florencio Tacaqui (Judgment), Special Panel Case No 20/2001 (9 December 2004) (‘Tacaqui – Judgment’), [22].

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This suggests that there may be some significant overlap between the first and second limbs of the actus reus. Applying these considerations, one spet Panel found that detention for six days in relatively good conditions was not sufficiently severe.520 On the other hand, another spet Panel found the detaining of a vast number of members and sympathisers of a particular political group (albeit for less than one month) reached the necessary threshold,521 as did roadblocks involving extreme violence.522 Finally, another spet Panel found that a severe deprivation of liberty can be achieved not only through physical detention but also through the restriction of liberty through threats of violence.523 A more unusual circumstance was considered by the Dutch Court of Appeal in the Hague.524 There, the Court appeared to hold that the Tamil Tigers’ trapping of civilians in a hazardous conflict zone in Northern Sri Lanka and forced recruitment of child soldiers may be sufficient to amount to an other serious deprivation of liberty.525 ‘Arbitrarily’, ‘no legal basis for it’, or ‘in violation of fundamental rules of international law’ Under customary international law, the second element of the crime is that the deprivation of liberty is carried out arbitrarily or without legal basis.526 The icty Trial Chamber in Kordić was the first international court to offer a definition of imprisonment as a crime against humanity.527 After citing the ilc definition, the iccpr prohibition on ‘arbitrary imprisonment’ and Article 7(1)(e) of the icc Statute, the Chamber defined the crime as ‘arbitrary imprisonment, that is to say, the deprivation of liberty of the individual without due process of law’.528

6.3

520 (spet) Cardoso – Judgment, above n 484, [358]–[359]. 521 (spet) Tacaqui – Judgment, above n 520, [22]. 522 (spet) Mesquita – Judgment, above n 511, [88]. 523 (spet) Tacaqui – Judgment, above n 520, 21–22. 524 (Netherlands) ) Gerechtshof Den Haag [Court of Appeal of The Hague], Case No 22005123-11 (ecli:nl:ghdha:2015:1082) (30 April 2015) (‘ltte Case – Appeal’). 525 See discussion in Chapter 7, Section 3.4.2. 526 (icty) Kordić – Trial, above n 70, [302] (affirmed in Kordić – Appeal, above n 66, [116]); and Krnojelac – Trial, above n 70, [115], followed in Simić – Trial, above n 350, [64]–[65]; Martić – Trial, above n 69, [87]; Krajišnik – Trial, above n 147, [752]; Gotovina – Trial, above n 74, [1815]; (ictr) Ntagerura – Trial, above n 99, [702]; and (spet) Da Silva – Judgment, above n 484, [133]. See also icc Statute, Art 7(1)(e); and Cassese, above n 108, 95. 527 (icty) Kordić – Trial, above n 70, [292]–[302]. 528 (icty) Kordić – Trial, above n 70, [302]–[303], upheld in (icty) Kordić – Appeal, above n 66, [116], although it said ‘individual’ must be taken to mean ‘civilian’.

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But when will imprisonment be ‘arbitrary’ or without ‘due process’ and by what standards will this be measured? In Kordić, the icty Trial Chamber relied upon Geneva Convention iv. The Trial Chamber found that imprisonment will be ‘arbitrary’ and without ‘due process of law’ where the victims are detained ‘without reasonable grounds to believe that the security of the [d] etaining [p]ower makes it absolutely necessary’ as required by Article 42 and where the necessary ‘procedural safeguards’ required by Article 43 are not complied with.529 The Appeals Chamber clarified that not all elements of the Geneva Conventions – for instance, the requirement of an international armed conflict – are necessary to establish this element.530 The icty Trial Chamber in Krnojelac, however, held that the crime was not limited to these circumstances.531 The Chamber instead relied on international law to inform the assessment of whether detention is ‘arbitrary’ or without ‘due process of law’ – particularly human rights law.532 It concluded that arbitrary imprisonment means there is no legal basis which can be invoked to justify the deprivation of liberty.533 If national law is relied upon as a justification, the relevant provisions must not violate international law. The Trial Chamber also suggested that ‘arbitrariness’ may occur after an otherwise lawful imprisonment if administered in disregard of ‘fundamental procedural rights’ or if ‘the initial legal basis ceases to apply’.534 This definition set out by the Chamber in Krnojelac has since been followed by a number of other Trial Chambers.535 529 (icty) Kordić – Trial, above n 70, [307]. 530 (icty) Kordić – Appeal, above n 66, [115]. 531 (icty) Krnojelac – Trial, above n 70, [111]. 532 (icty) Krnojelac – Trial, above n 70, [113]–[115], citing Universal Declaration of Human Rights, Art 9 (‘no one shall be subjected to arbitrary arrest, detention or exile’); iccpr, Art 9(1) (allowing detention only ‘on such grounds and in accordance with such procedure as are established by law’); Convention on the Rights of the Child, Art 37(b) (requiring detention only ‘in conformity with the law’); American Convention on Human Rights, Art 7(2) (allowing detention only ‘for the reasons and under conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto’); and European Convention on Human Rights, Arts 5(1)(a)-(f) (allowing detention only in an exhaustive list of cases in which the deprivation is ‘in accordance with a procedure prescribed by law’ and does not constitute a violation of the Convention). 533 (icty) Krnojelac – Trial, above n 70, [112]–[120]. 534 (icty) Krnojelac – Trial, above n 70, [114]–[115]; see also Kordić – Trial, above n 70, [303] (point 2). 535 (ictr) Ntagerura – Trial, above n 99, [702]; (icty) Naletilić – Trial, above n 393, [642]; Krajišnik – Trial, above n 147, [753]; and Gotovina – Trial, above n 74, [1816].

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Accordingly, the Trial Chamber looked to a number of factors in ultimately concluding that the detention in question was ‘arbitrary’ or without ‘due process of law’ on the basis that they ‘were not criminals under suspicion of having committed a crime or ever accused of having committed a crime under national and/or international law’:536 • the majority of detainees were civilians without weapons; • detention was indiscriminate (and did not consider the age, state of health or civilian status of the victims); • the victims were predominantly non-Serb ethnicity; • none of the individuals was arrested on the basis of a valid arrest warrant or informed orally of their reason for arrest; • detainees were kept for long periods of time without being informed of the reason they were being held or when they would be released; • the victims were incarcerated in rooms or in solitary confinement cells; • interrogations were conducted on an ad hoc and arbitrary basis with many such interrogations including mistreatment; and • none of the detainees were charged or tried for any offence. Although it found that it was not ‘strictly necessary’, the Trial Chamber also found that the deprivation in question was contrary to Articles 42 and 43 of Geneva Convention iv.537 After considering both lines of authority, the icty Trial Chamber in Simić applied the Krnojelac position, appearing to view the two decisions as consistent.538 The Chamber found that the criminal proceedings in question were ‘arbitrary’ and lacking ‘due process of law’. This was on the basis that they ‘were not conducted with full respect for their right to fair trial, and liberty and security of the person’, as enshrined in the echr, the iccpr and encompassed in Common Article 3 of the Geneva Conventions. In particular, these sources prohibited the passing of sentences without previous judgment being pronounced by a regularly constituted court, affording all the judicial guarantees, recognizable as indispensable by civilized peoples, an article which has reached international customary law status.539 The Chamber viewed the relevant rights as including the right:540 536 (icty) Krnojelac – Trial, above n 70, [117]–[122]. 537 (icty) Krnojelac – Trial, above n 70, [123]. 538 (icty) Simić – Trial, above n 350, [63]–[65]. 539 (icty) Simić – Trial, above n 350, [678]. 540 (icty) Simić – Trial, above n 350, [678].

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• to be brought promptly before a judge or other officer authorized by law to exercise judicial power and to trial within a reasonable time or to release; • for a court to decide without delay on the lawfulness of detention; • to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law; • to be presumed innocent until proved guilty according to law; • to be informed promptly of the nature and cause of the accusation against him or her; • to have adequate time and facilities for the preparation of his or her defence; • to have legal assistance; and • to examine or have examined witnesses against him or her and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as witnesses against him or her, amongst others. Reliance on human rights law, which is directed to state responsibility, for the elements of an international crime is problematic.541 Human rights principles are not only directed towards the obligations of states rather than individuals, but in many respects concern transgressions that do not necessarily warrant criminal sanction. For instance, some scholars have debated whether the imprisonment of American nationals of Japanese descent during the Second World War was a crime against humanity. Hwang argues it was,542 whilst Bassiouni takes the contrary position, saying the incarceration was not motivated by or seeking the ‘persecution’ of that group so as to amount to a crime against humanity.543 The crime under the icc Statute faces a similarly difficult question. Article 7(1)(e) requires the crime to be ‘in violation of fundamental rules of international law’. According to McCormack, the intention of the drafters here was to exclude lawful periods of custody under the domestic criminal justice system.544 What is unclear is the meaning to be given to ‘fundamental rules of international law’. Many state sanctioned imprisonments have been found by international bodies to be contrary to international human rights law. 541 See Guénaël Mettraux, ‘Using Human Rights Law for the Purposes of Defining International Criminal Offences: The Practice of the International Criminal Tribunal for the Former Yugoslavia’ in Robert Roth and Marc Henzelin (eds), Le Droit Pénal à l’épreuve de l’internationalisation (lgdj: Paris, 2002) 183. 542 Phyllis Hwang, ‘Defining Crimes against Humanity in the Rome Statute of the International Criminal Court (1998) 22 Fordham International Law 457, 475. 543 Bassiouni, above n 510, 252. 544 McCormack, above n 5, 193.

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­Examples include Australia’s mandatory detention of asylum seekers545 and the detention of persons at Guantánamo Bay by the United States.546 However, the icc Statute clarifies the matter somewhat by requiring that the ‘gravity of the conduct’ be in violation of fundamental norms. Further, as argued above (at Section 1.2.2), the offence of ‘imprisonment’ – like all offences under Article 7 – essentially requires ‘manifestly unlawful’ conduct. In this context, this means imprisonment so clearly brutal or arbitrary that it can immediately be recognised by all the world as being both criminal according to the penal laws of the community of nations and a breach of international law so as to give rise to individual responsibility. This is a higher standard than merely a detention contrary to international human rights law.547 This appears to have been the conclusion reached by the Hague Court of Appeal in the context of the detention by the Tamil Tigers of Tamil citizens in the small confines of a warzone.548 Accordingly, under both customary international law and the icc, the better view appears to be that a violation of the right to a fair trial will not per se be enough to render the detention ‘arbitrary’ or without ‘due process of law’. However, such breaches will be relevant in assessing whether or not the deprivation was ‘arbitrary’, without ‘due process of law’ or ‘in violation of rules of 545 See Commission on Human Rights, Report of Working Group on Arbitrary Detention: Visit to Australia, un Doc E/CN.4/2003/8/Add.2 (14 January 2003); and Committee On the Rights of the Child, Consideration of Reports Submitted by State Parties Under Article 44 of the Convention on the Rights of the Child, Concluding Observations: Australia, un Doc CRC/C/15/Add.268 (20 October 2005), [62]–[64]. 546 See Inter-American Commission On Human Rights, Pertinent Parts of Decision on Request for Precautionary Measures (12 March 2002); United Nations Economic and Social Council (Commission on Human Rights, Report of the Five unhcr Special Rapporteurs), Situation of Detainees at Guantánamo Bay, un Doc. E/CN.4/2006/120 (15 February 2006); Reply of the Government of the United States of America to the Report of the Five unhcr Special Rapporteurs on Detainees in Guantánamo Bay, Cuba (10 March 2006); and Luigi Condorelli and Pasquale De Sena, ‘The Relevance of the Obligations Flowing from the un Covenant on Civil and Political Rights to us Courts dealing with Guantanamo Detainees’ (2004) 2 Journal of International Criminal Justice 107. 547 See, however, James G. Stewart, ‘Rethinking Guantánamo’ (2006) 4 Journal Of International Criminal Justice 12, where the author argues that the detention at Guantánamo constitutes the perpetration of this international offence, basing his argument upon the definition of unlawful confinement discussed in Čelebići – Appeal, above n 66, [378]. 548 (Netherlands) ltte Case – Appeal, above n 525, §§11.3.2.3.1.1 – 11.3.2.3.1.2 (requiring that the arbitrary detention must be ‘serious enough’). The decision was affirmed by the Supreme Court albeit without substantive discussion: see Hoge Raad der Nederlanden (Supreme Court of the Netherlands), Case No 15/04693 (ECLI:NL:HR:2017:578) (4 April 2017).

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fundamental international law’. It will be sufficient, for example, where imprisonment on arbitrary grounds such as being a political opponents,549 being of a certain religion, nationality or ethnicity,550 or for some clearly illegitimate purpose, such as to intimidate a population or to use civilians as human shields.551 Some general indication of what else is needed may be considered in light of the types of ‘attacks’ that have amounted to crimes against humanity.552 6.4 Mens Rea Under customary international law, the mens rea for imprisonment is that the perpetrator committed the act or omission ‘with the intent to deprive a civilian of his or her physical liberty without due process of law or in the reasonable knowledge that his act or omission was likely to cause the deprivation of physical liberty without due process of law’.553 This formulation first appears in the icty Trial Chamber decision in Krnojelac, which undertook no detailed analysis and cited no authority for the point.554 Nonetheless, the point appears sound in principle and reflects the general approach of the ad hoc Tribunals that an accused may commit a crime where they intend or have knowledge of each of the elements of the offence (i.e. including that the deprivation was ‘arbitrary’ or ‘without due process of law’555). In respect of the mens rea in the icc, ‘intent and knowledge’ will be required unless provided otherwise. The only section that appears to provide otherwise is Element 3 of the Elements of Crimes, which states that ‘the perpetrator was aware of the factual circumstances that established the gravity of the conduct in violation of fundamental rules of international law’. According to Professor Clark of the Samoan delegation, this was specifically inserted to avoid a defence of mistake of law.556 Accordingly, the perpetrator need only be aware of those facts which render lawful the victim’s presence without having to 549 See, for example, (Romania) Prosecutor v Vişinescu (Judgment), Romanian High Court of Cassation and Justice, Case No 3986/2/2014 (16 February 2016) (‘Vişinescu – High Court’). 550 See, for instance, the cases concerning the Former Yugoslavia as well as cases during World War 2 such as the Justice Case, above n 11. 551 As in the case of the Tamil Tigers discussed in (Netherlands) ltte Case – Appeal, above n 525. 552 See discussion in Chapter 9, Sections 2.2 and 5.1. 553 (icty) Krnojelac – Trial, above n 70, [115], followed in Simić – Trial, above n 350, [64]–[65]; and Martić – Trial, above n 69, [88]. 554 (icty) Krnojelac – Trial, above n 70, [115], followed in Simić – Trial, above n 350, [64]–[65]; and Martić – Trial, above n 69, [88]. 555 See, for instance, (icty) Krnojelac – Trial, above n 70, [124]. 556 Kittichaisaree, above n 6, 110.

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conclude, on the basis of a legal assessment, that they were of a similar gravity.557 Similarly, as clarified by paragraph 4 of the General Introduction to the Elements of Crimes, it will not be necessary that the perpetrator ‘personally completed a particular value judgment’ as to any other deprivation of liberty being a ‘severe one’. This means that the perpetrator would have to know that the imprisonment was (for example) for some unlawful purpose, such as discrimination, or had attributes that in fact rendered the deprivation severe, but need not appreciate the legal consequence that the imprisonment is therefore arbitrary or severe. 7 Torture Under customary international law, the underlying crime of ‘torture’ as a crime against humanity requires the prosecution establish that the following elements were committed as part of a widespread or systematic attack against a civilian population:558 1. 2. 3.

The perpetrator inflicts, by act or omission, severe pain or suffering – whether physical or mental – on one or more persons.559 The perpetrator intends the act or omission.560 The perpetrator does so for such purposes as obtaining from the victim or a third person information or a confession, punishing the victim for an act he/she or a third person has committed or is suspected of having committed, or intimidating or coercing the victim or a third person, or for any reason based on discrimination of any kind.561

557 See similar reasoning in (icc) Lubanga – Confirmation, above n 15, [360]. 558 See also definition in (spet) untaet Regulation 2000/15, s 5.1 (f), s 5.2 (in line with the icc Statute). 559 (icty) Furundžija – Trial, above n 330, [162] (in the context of war crimes); and Čelebići – Trial, above n 73, [459], [468], followed in Brđanin – Trial, above n 69, [481] (cited with apparent approval in Brđanin – Appeal, above n 149, [242]); Kunarac – Trial, above n 253, [497] (relevantly affirmed in Kunarac – Appeal, above n 281, [142]–[144]); Martić – Trial, above n 69, [74]; (ictr) Semanza – Trial, above n 135, [343]; Akayesu – Trial, above n 66, [593]–[594]; (eccc) Duch – Trial, above n 66, [354]; (iht) Anfal – Trial, above n 145, 553; and (icc) Bemba Gombo – Confirmation, above n 18, [191]–[192]. 560 Ibid. See also (icty) Krnojelac – Trial, above n 70, [184] (‘deliberately’). 561 (icty) Furundžija – Trial, above n 330, [162] (in the context of war crimes); Čelebići – ­Trial, above n 73, [459], [470], followed in Kvočka – Trial, above n 70, [140]; Kunarac – ­Trial, above n 253, [497] (relevantly affirmed in Kunarac – Appeal, above n 281, [142]–[144]);

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Contrary to the Torture Convention, the act need not be committed for a prohibited purpose or be committed in the presence of a State official.562 Article 7(1)(e) of the icc Statute proscribes ‘torture’ as a crime against humanity. Article 7(2)(e) defines torture as meaning ‘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’. The icc Elements of Crimes requires the prosecution establish that the following elements occurred as part of a widespread or systematic attack against any civilian population:563 1.

2. 3.

The perpetrator inflicts severe pain or suffering, whether physical or mental, upon a person (not including pain or suffering arising only from, inherent in or incidental to, lawful sanctions). [Mental element: The perpetrator:564 a. meant to perform one or more act or omission; and b. either: (i) meant, by such act(s) or omission(s), to inflict severe pain or suffering upon a person; or (ii) was aware that such a consequence would occur in the ordinary course of events as a result of the act(s) or omission(s).] The victim was in the custody or under the control of the perpetrator. [Mental element: The perpetrator was aware that the victim was in the custody or under the control of the perpetrator.565] The pain or suffering did not arise only from, and was not inherent in or incidental to, lawful sanctions.

Brđanin – Trial, above n 69, [481], [486]–[487]; Martić – Trial, above n 69, [74]; (ictr) Akayesu – Trial, above n 66, [593]–[594]; Semanza – Trial, above n 135, [343]; (eccc) Duch – Trial, above n 66, [354]; and (iht) Anfal – Trial, above n 145, 553. 562 (icty) Kunarac – Trial, above n 253, [496] (affirmed in Kunarac – Appeal, above n 281, [148]), followed in Krnojelac – Trial, above n 70, [187]; Simić – Trial, above n 350, [82]; Brđanin – Trial, above n 69, [481], [488]; and (iht) Anfal – Trial, above n 145, 553. Cf. (icty) Čelebići – Trial, [459], [473]; (ictr) Akayesu – Trial, above n 66, [593]–[594]; (eccc) Duch – Trial, above n 66, [354]; and (spet) untaet Regulation 2000/15, s 7.1. 563 Footnote to the Elements of Crimes reads: ‘It is understood that no specific purpose need be proved for this crime.’ Further, the Elements of Crimes was relevantly cited in Bemba Gombo – Confirmation, above n 18, [192]. 564 No mental element is specified meaning that Article 30 of the icc Statute provides that ‘intent and knowledge’ apply as discussed above at Section 1.2.3. 565 Ibid.

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[Mental element: The perpetrator was aware that the pain or suffering did not arise only from, and was not inherent in or incidental to, lawful sanctions.566] 7.1 Introduction Torture has long been explicitly proscribed under international humanitarian law.567 Although torture was not prohibited as a crime against humanity under the imt or imtfe Charters, Article ii(1)(c) of the Control Council Law No 10 included torture within the definition of ‘Crimes against Humanity’ and convictions were entered for torture as a crime against humanity in a number of cases. These include the Medical Case, where Third Reich doctors conducted medical experimentation on concentration camp inmates such as ‘High Altitude Experiments’ and ‘Poison Experiments’.568 Since that time, the crime of torture has been proscribed and defined by numerous international instruments,569 including the 1975 un General Assembly Declaration on Torture570 and, most importantly, the 1984 Convention against Torture.571 The crime was further included in the statutes of the ad hoc Tribunals and the icc Statute. The Appeals Chamber of the eccc in Duch has held that torture has been a crime against humanity under customary international law since at least 1975.572 7.2 Infliction of ‘severe pain or suffering’ The primary element of the actus reus of torture as a crime against humanity is that the perpetrator inflicts ‘severe pain or suffering’ – whether physical or 566 Ibid. 567 Geneva Convention I, Arts 3(1)(a), 12 and 50; Geneva Convention ii, Arts 3(1)(a), 12 and 51; Geneva Convention iii, Arts 3(1)(a), 13, 14 and 130; Geneva Convention iv, Arts 3(1)(a), 27 and 147; Additional Protocol I, Art 75(2)(ii); and Additional Protocol ii, Article 4(2)(a). 568 (Nuremberg) United States v Karl Brandt, 2 ccl 10 Trials 171 (‘The Medical Case’), 183, 223–227, 240, 248: see discussion in (eccc) Duch – Appeal, above n 281, [185]–[188]. 569 Universal Declaration of Human Rights, Art 5; Geneva Conventions i–iv, Art 3(1)(a); Geneva Convention iv, Arts 32 and 147; echr, Art 3; and iccpr, Art 7. 570 Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, un ga Resolution 3453 (xxx), 30th sess, 2433rd plen. mtg (9 December 1975) (adopted by consensus) (‘1975 Torture Declaration’). 571 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted 10 December 1984, 1465 unts 85 (entered into force 26 June 1987) (‘1984 Torture Convention’). 572 (eccc) Duch – Appeal, above n 281, [188].

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mental – on one or more persons.573 While the ‘most characteristic’ cases of torture involve positive acts, the ad hoc Tribunals have held that the crime of torture may be committed by omission.574 The ad hoc Tribunals have followed the international jurisprudence on torture in finding that torture requires a more severe level of pain or suffering than other forms of cruel and inhuman treatment owing to the ‘special stigma’ attaching to torture.575 Whether the ‘threshold level’ of pain or suffering is met depends on the individual circumstances of each case.576 Aside from the requirement of ‘severe pain or suffering’, ‘there are no more specific requirements which allow an exhaustive classification and enumeration of acts which may constitute torture’.577 Accordingly, while some acts may be ‘so obvious that the acts amount per se to torture’, acts must generally be assessed on a case-by-case basis.578 The icc has so far adopted the same approach. In Bemba Gombo, the icc Pre-Trial Chamber ii cited the Torture Convention and the jurisprudence of the European Court of Human Rights (ECtHR) in finding that ‘although there is no definition of the severity threshold … an important degree of pain and suffering has to be reached in order for a criminal act to amount to torture’.579 573 (icty) Furundžija – Trial, above n 330, [162] (in the context of war crimes); and Čelebići – Trial, above n 73, [459], [468], followed in Brđanin – Trial, above n 69, [481] (cited with apparent approval in Brđanin – Appeal, above n 149, [242]; Kunarac – Trial, above n 253, [497] (relevantly affirmed in Kunarac – Appeal, above n 281, [142]–[144]); Martić – Trial, above n 69, [74]; (ictr) Semanza – Trial, above n 135, [343]; Akayesu – Trial, above n 66, [593]–[594]; (eccc) Duch – Trial, above n 66, [354]; (iht) Anfal – Trial, above n 145, 553; (icc) Bemba Gombo – Confirmation, above n 18, [191]–[192]; and Elements of Crimes, Art 7(1)(f). 574 (icty) Čelebići – Trial, above n 73, [468]. 575 (icty) Čelebići – Trial, above n 73, [468]–[469] (considering a range of international instruments and the decisions of the ECtHR); and Brđanin – Trial, above n 69, [483] (citing the 1975 Torture Declaration), followed in Martić – Trial, above n 69, [75]; and (BiH) Rašević and Todović – First Instance, above n 66, 49. 576 (icty) Čelebići – Trial, above n 73, [468]–[469]; and Brđanin – Trial, above n 69, [483], followed in Brđanin – Appeal, above n 149, [242]; Naletilić – Appeal, above n 462, [299]; and Martić – Trial, above n 69, [75]. 577 (icty) Kunarac – Appeal, above n 281, [149], followed in Naletilić – Appeal, above n 462, [299]. 578 (icty) Naletilić – Appeal, above n 462, [299]. 579 (icc) Bemba Gombo – Confirmation, above n 18, [193] (citing also: Nigel Rodley, The Treatment of Prisoners Under International Law (2nd ed., Oxford University Press: Oxford, 2000) 86; and Philippe Currat, Les crimes contre l’humanité dans le Statut de la Cour penale internationale (Schulthess: Fenève, 2006) 337–341).

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Relevant in assessing whether or not the ‘threshold level’ is met are both the ‘objective severity of the harm inflicted’ and ‘[s]ubjective criteria, such as the physical or mental condition of the victim, the effect of the treatment and, in some cases, factors such as the victim’s age, sex, state of health and position of inferiority’.580 Relevant considerations will include the:581 • • • • • • •

duration of the suffering;582 nature of the crimes; physical or mental condition of the victim; effect of the acts on the victim; nature and context of the infliction of pain; premeditation and institutionalisation of the ill-treatment; and manner and method used.

Where a victim has been mistreated over a prolonged period of time or has been subjected to repeated or various forms of mistreatment, ‘the severity of the acts should be assessed as a whole to the extent that it can be shown that this lasting period or the repetition of acts are inter-related, follow a pattern or are directed towards the same prohibited goal.’583 However, while relevant to the assessment,584 the ad hoc Tribunals have clarified that ‘serious pain or suffering’ does not require ‘pain of the type causing serious injury’ or ‘permanent injury’.585

580 (icty) Brđanin – Appeal, above n 149, [242] (citing Brđanin – Trial, above n 69, [484]); and Kvočka – Trial, above n 70, [143] (citing (ECtHR) in Ireland v United Kingdom (Decision on Merits), European Court of Human Rights, App No 5210/71 (18 January 1978), [162]). See also Martić – Trial, above n 69, [75]; Naletilić – Appeal, above n 462, [299]; Krnojelac – Trial, above n 70, [182]; and (BiH) Rašević and Todović – First Instance, above n 66, 47. 581 (icty) Martić – Trial, above n 69, [75]; Krnojelac – Trial, above n 70, [182]; Limaj – Trial, above n 69, [237]; Mrkšić – Trial, above n 69, [514]; Brđanin – Trial, above n 69, [484]; and Kvočka – Trial, above n 70, [143]. 582 See also (icty) Naletilić – Appeal, above n 462, [300]. 583 (icty) Krnojelac – Trial, above n 70, [182]; see also Kvočka – Trial, above n 70, [151] (taking into account the ‘the general atmosphere and conditions of detention prevailing in the camps, the absence of any medical care after abuse, and the repetitive, systematic character of the mistreatment of detainees’). 584 See, for example, (icty) Kvočka – Trial, above n 70, [149]. 585 (icty) Brđanin – Appeal, above n 149, [251] (emphasis added); see also Brđanin – Trial, above n 69, [484]; Kvočka – Trial, above n 70, [148]; and Limaj – Trial, above n 69, [236].

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It will also be relevant for tribunals to consider the standard of ‘severe pain or suffering’ required under the Torture Convention and under customary ­international law. The ad hoc Tribunals have found that the ‘severe pain or suffering’ standard in the Torture Convention reflects customary international law and that the threshold for torture as a crime against humanity should be interpreted consistently with custom.586 Accordingly, the ad hoc Tribunals have looked to the work of the Human Rights Committee, the un Special Rapporteur for Torture, and the jurisprudence of the ECtHR to ‘shed light on the degree of harm that Court considers is required for an act to amount to torture’.587 This threshold was discussed by the Appeals Chamber in Brđanin. The defence submitted that the definition of torture has changed in light of the memorandum to the Counsel to the President of the United States (colloquially known as the ‘Torture Memo’588), which provided that: for an act to constitute torture … it must inflict pain that is difficult to endure. Physical pain amounting to torture must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.589 The Appeals Chamber rejected this proposition on the basis that it was not in line with customary international law. Not only was the Bybee memorandum definition rejected by the subsequent Levin memorandum, but the definition did not reflect the standard required by the Torture Convention.590 The Chamber pointed to the fact that, during the negotiations over the Torture

586 (icty) Brđanin – Appeal, above n 149, [246], [252] (citing Kunarac – Appeal, above n 281, [146]; and Prosecutor v Furundžija (Appeals Chamber Judgment), Case No IT-95-17/1-A (21 July 2000) (‘Furundžija – Appeal’), [111]). 587 (icty) Čelebići – Trial, above n 73, [461]–[469]; Brđanin – Appeal, above n 149, [246]– [252]; and Furundžija – Appeal, above n 587, [111]. 588 See Philippe Sands, Torture Team: Rumsfeld’s Memo and the Betrayal of American Values (Palgrave Macmillan: New York, 2008). 589 (icty) Brđanin – Appeal, above n 149, [244] (citing Memorandum from Jay S. Bybee, Assistant Attorney General, us Department of Justice, to Alberto R. Gonzalez, Counsel to the President (1 August 2002), 1, available online at:. 590 (icty) Brđanin – Appeal, above n 149, [249]–[249]; see Memorandum of Opinion for the Deputy Attorney General (30 December 2004), available online at .

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­Convention, the uk suggested that the standard required was that ‘extreme pain or suffering’ was required,591 and that this proposal was rejected.592 Differing views have been expressed as to whether or not the standard of ‘severe pain and suffering’ is the same for a crime against humanity as it is under the Torture Convention and international human rights treaties. This same issue has been discussed above in the context of imprisonment.593 On the one hand, the icty Trial Chamber stated in Krnojelac:594 when relying upon human rights law relating to torture, the Trial Chamber must take into account the structural differences which exist between that body of law and international humanitarian law, in particular the distinct role and function attributed to states and individuals in each regime. On the other hand, the icty Trial Chamber in Furundžija held that the definition of torture in the Torture Convention ‘although deliberately limited to the Convention, must be regarded as authoritative …’.595 The Torture Convention (and the similar definitions in various other instruments) ‘demonstrates that there is now general acceptance of the main elements contained in the definition set out in article 1 of the Torture Convention’.596 At least insofar as the ‘severe pain or suffering’ threshold, the position in Furundžija has been approved (albeit without significant analysis) by a number of icty Appeals Chambers.597 Ultimately, the fact that torture as defined under the Torture Convention constitutes a criminal offence for which individuals may be held personally responsible – as opposed to a ‘mere’ breach of human rights for which the state only may be held responsible – means that any differences between the two standards are not likely to be great. Nonetheless, some caution should still be exercised in relying on human rights decisions given their differing ­contexts, and more significant weight should be giving to findings of torture in the context of criminal prosecutions of individuals. 591 (icty) Brđanin – Appeal, above n 149, [249], citing Hermann Burgers and Hans Danelius, The United Nations Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (Martinus Nijhoff: Dordrecht, 1988) 45. 592 (icty) Brđanin – Appeal, above n 149, [249], citing Burgers and Danelius, above n 592, 117. 593 See Section 6.3. 594 (icty) Krnojelac – Trial, above n 70, [181]. 595 (icty) Furundžija – Trial, above n 330, [160]. 596 (icty) Furundžija – Trial, above n 330, [161]. 597 (icty) Furundžija – Appeal, above n 587, [111]; Kunarac – Appeal, above n 281, [149]; and Brđanin – Appeal, above n 149, [246].

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Perhaps of more controversy is the application of the statement of the ECtHR decision in Selmouni v France – cited by the Appeals Chamber in Brđanin – that ‘what might have been inhumane treatment in the past is now seen as torture in the light of increasingly higher standard of human rights protections.’598 While it may be correct to say that the standard of torture may evolve over time with new and emerging state practice and opinion juris, care needs to be taken when applying alleged ‘evolving standards’. For reasons already discussed in the context of imprisonment, it is important that the dividing lines be carefully maintained between torture as a criminal offence and torture or cruel and inhumane treatment as a human rights violation. At present, courts and tribunals have recognised the following acts as capable of amounting to torture:599 • beatings600 or being repeatedly punched, kicked, and hit with objects;601 • electric shocks602 and hot and cold water treatment;603 • plantones, beatings and lack of food;604 • application of “falaka” (“falanga”) and fracture of the sternum;605 and • being held incommunicado for more than three months whilst being kept blindfolded with hands tied together, resulting in limb paralysis, leg injuries, substantial weight loss and eye infection;606 598 (icty) Brđanin – Appeal, above n 149, [250], citing (ECtHR) Selmouni v France (Judgment), European Court of Human Rights (Grand Chamber), App No 25803/94 (28 July 1999) (‘Selmouni v France’), [101]. 599 See list in (icty) Martić – Trial, above n 69, [76]. See also Brđanin – Trial, above n 69, [491]–[524]. 600 (icty) Čelebići – Trial, above n 73, [860]–[866], [919]–[924], [976]–[977]; Naletilić – ­Trial, above n 393, [350]–[352]; Naletilić – Appeal, above n 462, [300]; and (spet) Soares – J­ udgment, above n 89, [20]. 601 (BiH) Rašević and Todović – First Instance, above n 66, 49; and (ECtHR) Selmouni v France, above n 599. 602 (icty) Kvočka – Trial, above n 70, [147] (referring to post World War ii trials held in Japan, the International Military Tribunal for the Far East). 603 (icty) Furundžija – Trial, above n 330, [160]; (ECtHR) Akkoç v Turkey (Judgment), ­European Court of Human Rights, App Nos 22947/93 and 22948/93 (10 October 2000). 604 (icty) Čelebići – Trial, above n 73, [461], citing (hrc) Setelich v Uruguay (Merits), Human Rights Committee, Comm. No. 63/1979 (28 October 1981), [16.2]. The practice of plantones involves forcing prisoners to remain standing for extremely long periods of time. 605 (BiH) Rašević and Todović – First Instance, above n 66, 49; (ECtHR) Salman v Turkey (Judgment), European Court of Human Rights, App No 21986/93 (27 June 2000) (‘Salman v Turkey’). 606 (icty) Čelebići – Trial, above n 73, [461], citing (hrc) Weinberger v Uruguay (Merits), ­Human Rights Committee Comm. No. 28/1978 (29 October 1980), [4].

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• being stripped naked and suspended by arms tied behind back;607 • being invited to perform oral sex on a male police officer before being urinated upon;608 • forcing victims to watch executions of others; • rape;609 • forcing victims to watch serious sexual attacks;610 • forcing victims to bury the bodies of their neighbours and friends; • causing burn injuries;611 • psychological violence,612 including threats to remove bodily limbs613 and threatened with a blowlamp and then with a syringe;614 • mock executions,615 threatening victims with brutal executions in a way they would believe it616 and specific threats of immediate death.617 Conversely, courts and Tribunals have found that the following acts do not amount to torture: • mere interrogation;618 • minor contempt for the physical integrity of the victim;619 607 (icty) Čelebići – Trial, above n 73, [461]; (BiH) Rašević and Todović – First Instance, above n 66, 49. 608 See also (ECtHR) Selmouni v France, above n 599. 609 See also (icty) Furundžija – Trial, above n 330, [163] and [171]; Čelebići – Trial, above n 73, [475]–[493], followed in Kunarac – Appeal, above n 281, [150]; (ictr) Akayesu – Trial, above n 66, [687]; and (eccc) Duch – Appeal, above n 281, [208]. See also Valerie Oosterveld, ‘Gender-based Crimes Against Humanity’ in Leila Nadya Sadat (ed) Forging a Convention for Crimes Against Humanity (Cambridge University Press: Cambridge, 2011) 100. 610 See also (icty) Kvočka – Trial, above n 70, [149]. 611 See also (icty) Čelebići – Trial, above n 73, [495]–[496], [971], [973], [976]–[977]; Naletilić – Trial, above n 393, [350]–[352]; and Brđanin – Trial, above n 69, [492], [503]–[511], [524]. 612 See also (spet) Marques – Judgment, above n 34, [707]. 613 See also “Torture and other Cruel, Inhuman or Degrading Treatment or Punishment”, Report of the Special Rapporteur (‘Special Rapporteur Torture Report’), un Doc. E/ CN.4/1986/15 (19 February 1986), [35] (citing Official Records of the General Assembly, Thirty-Eighth Session, Supp No. 40, A.38/40, Annex xii, [8.3]). 614 See also (ECtHR) Salman v Turkey, above n 606. 615 See also (icty) Čelebići – Trial, above n 73, [461]; and Kvočka – Trial, above n 70, [146], citing (hrc) Muteba v Zaire (Merits), Human Rights Committee, Comm No. 124/1982 (24 July 1984), [10.2]. 616 See also (icty) Naletilić – Appeal, above n 462, [300]. 617 See also (United States) Aldana v Del Monte Fresh Produce, n.a., Inc., 416 F.3d 1242 (11th Cir., 2005) (‘Aldana v Del Monte – Appeal’). 618 (icty) Brđanin – Trial, above n 69, [181]. 619 (icty) Brđanin – Trial, above n 69, [181].

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• pushing, shoving and having one’s hair pulled;620 • detention for a short (10 day) period of time;621 • solitary confinement in itself (although it may in certain circumstances);622 and • deprivation of food (although it may in certain circumstances).623 7.3 Custody or Control There has been little discussion on what is required by the element of custody or control. A useful summary of the authorities was provided in a decision of the Australian Full Federal Court, where the Court concluded that custody or control refers to a situation where the victim was, for practical purposes, at the perpetrator’s mercy, in some way physically restricted, confined or otherwise unable to move, take cover, escape or defend themselves.624 The focus is on factual control rather than legal power and would include any form of restraint. 7.4 Requirement of a State Official and a Prohibited Purpose As noted above, one controversy has been the extent to which the ­definition of torture as a crime against humanity differs from the general definition under the Torture Convention. In particular, under both the 1975 Torture ­Declaration625 and the 1984 Torture Convention,626 a requirement of torture 620 (United States) Aldana v Del Monte – Appeal, above n 618, 1253. 621 (United States) Eastman Kodak v Kavlin, 978 F. Supp. 1078 (s.d. Fla., 1997) 622 (icty) Brđanin – Trial, above n 69, [183]. 623 (icty) Brđanin – Trial, above n 69, [183]. 624 (Australia) szitr v Minister for Immigration and Multicultural Affairs [2006] fca 1759 (Federal Court), [13] and [31] and authorities cited therein. 625 Defining torture as: ‘any act by which severe pain or suffering, whether physical or mental, [that] is intentionally inflicted by or at the instigation of a public official or a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act that he has committed or is suspected of having committed, intimidating him or other persons […] Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.’) 626 Defining torture as: ‘any act by which severe pain or suffering, whether physical or mental [that] is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent of a public official or other person acting in an official capacity.’

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is that a state official be involved and that the torture was committed for a particular proscribed purpose. Initially, the icty Trial Chamber in Čelebići and the ictr Trial Chamber in Akayesu held that the definition under the Torture Convention reflected the position under customary international law.627 However, the icty Appeals Chamber in Kunarac confirmed that there was a distinction between torture under the Torture Convention and torture under international criminal law in that ‘the presence of a State official or of any other authority-wielding person in the torture process’ was not necessary for torture as a crime against humanity.628 The Chamber held that it is the State official requirement that is the link that engages the responsibility of the particular state parties to the ­convention – a nexus that is not required in the context of international criminal law where jurisdiction over the offences has already been established. This logic is persuasive. Other Tribunals have followed this position629 and the statute of the spet and the icc Statute also reflects this position.630 The proscribed purpose under the Torture Convention is more ­controversial. On the one hand, the icty, ictr, eccc and iht have all held that a particular proscribed purpose is required, ‘such as obtaining information or a confession, or punishing, intimidating, or coercing the victim or a third person, or discriminating, on any ground, against the victim or a third person’.631 In the absence of these purposes or goals, even very severe infliction of pain would not be

627 (icty) Čelebići – Trial, above n 73, [459]; Furundžija – Trial, above n 330, [161]; and (ictr) Akayesu – Trial, above n 66, [594]. 628 (icty) Kunarac – Appeal, above n 281, [146]; see also Kunarac – Trial, above n 253, [496]. 629 (icty) Kvočka – Trial, above n 70, [137]–[141] (not challenged in Kvočka – Appeal, above n 66, [289]); Martić – Trial, above n 69, [74]; see also Brđanin – Appeal, above n 149, [246] (following this position but noting that the definition of ‘severe pain or suffering’ is ­largely consistent). 630 (spet) untaet Regulation 2000/15, s 5.1 (f), s 5.2. 631 (icty) Furundžija – Trial, above n 330, [162] (in the context of war crimes) (affirmed in Furundžija – Appeal, [111]); Čelebići – Trial, above n 73, [459], [470], followed in Kvočka – Trial, above n 70, [140]; Kunarac – Trial, above n 253, [497] (relevantly affirmed in K ­ unarac – Appeal, above n 281, [142]–[144]), Brđanin – Trial, above n 69, [481], [486]– [487]; Martić – Trial, above n 69, [74]; Krnojelac – Trial, above n 70, [179]; Limaj – Trial, above n 69, [235]; Mrkšić – Trial, above n 69, [513]; (ictr) Akayesu – Trial, above n 66, [593]–[594]; Semanza – Trial, above n 135, [343]; (eccc) Duch – Trial, above n 66, [356]; and (iht) Anfal – Trial, above n 145, 553.

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classified as torture.632 Only the spet has found – in line with its applicable statute – that a proscribed purpose is not required.633 In terms of what purposes are proscribed, it includes those purposes set out in the Torture Convention, namely, to obtain information or a confession, to punish, intimidate or coerce the victim or a third person, to discriminate, on any ground, against the victim or a third person.634 Outside of the purposes set out in the Torture Convention, the ambit is controversial. Some Chambers have, for instance, held this list to be non-exhaustive635 or held specifically that it extends to the purpose of humiliating the victim or a third person.636 Others have held that such an extension of the purposes in the Torture Convention to ‘humiliation’ (and presumably other purposes not set out in the Torture Convention) is unfounded under customary international law.637 Other aspects of the purpose element are less controversial. There is no requirement that the severe pain or suffering be inflicted exclusively for one or more of the proscribed purposes mentioned, but only that such a purpose or purposes be ‘part of the motivation for the conduct’.638 Ultimately, both the state nexus and purpose requirements in the Torture Convention were abandoned during the drafting of the icc Statute. At the Rome Conference, it was acknowledged that the definition in the 1984 Torture Convention was too limiting.639 By the clarification at Article 7(2)(e), torture does not require the involvement of a public official or any particular purpose to the torture. McCormack says this was ‘one of the significant advances in international criminal law of Article 7’.640 Nonetheless, for reasons set out 632 (icty) Krnojelac – Trial, above n 70, [180]; and Prosecutor v Haradinaj (Retrial Judgment), Case No IT-04-84 (29 November 2012) (‘Haradinaj – Retrial’), [434], [449]. 633 (spet) Soares – Judgment, above n 89, [216]–[225]. 634 (icty) Kunarac – Trial, above n 253, [485] (approved in Kunarac – Appeal, above n 281, [142]–[144]), followed in Kvočka – Trial, above n 70, [141]; Krnojelac – Trial, above n 70, [184]; Limaj – Trial, above n 69, [239]; Mrkšić – Trial, above n 69, [515]; see also (ictr) Akayesu – Trial, above n 66, [594]. 635 (icty) Čelebići – Trial, above n 73, [470], followed in Kvočka – Trial, above n 70, [140]; and Mrkšić – Trial, above n 69, [515]. 636 (icty) Furundžija – Trial, above n 330, [162] (in the context of war crimes), followed in Kvočka – Trial, above n 70, [140]. 637 (icty) Krnojelac – Trial, above n 70, [186]; Simić – Trial, above n 350, [79] fn 137; see also Naletilić – Trial, above n 393, [338] (not deciding the point). 638 (icty) Čelebići – Trial, above n 73, [470], followed in Kunarac – Trial, above n 253, [486] and [654] (approved in Kunarac – Appeal, above n 281, [155]); and Brđanin – Trial, above n 69, [487]. 639 McCormack, above n 5, 194. 640 McCormack, above n 5, 194.

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in Chapter 4641 and Chapter 7,642 while there appears to be an emerging position that Article 7 provides the most authoritative definition of crimes against humanity, there are difficulties with drawing the conclusion that it applies to every aspect of the crime’s definition. Despite the suggestions to the contrary by some authors discussed in Chapter 4 (most notably, Cassese), this is particularly so in the case of torture given that the Torture Convention has been adopted by more parties than the icc Statute, including states such as China, the United States, Russia and Pakistan. Accordingly, while it appears that there is a sufficient basis to conclude that there is no requirement that the torture be committed in the presence of or with the acquiescence of a state official, it is more unclear whether or not there remains a purpose requirement under customary international law. The better view is that it cannot yet be said with any certainty that the purpose requirement no longer exists under customary international law. The position is obviously different at the icc. 7.5 Mens Rea The ad hoc Tribunals have stated that the mens rea for torture is that the perpetrator ‘intends’ to inflict severe pain or suffering on the victim.643 The perpetrator must primarily intend to cause pain or suffering; the mens rea will not be satisfied where the perpetrator primarily intended to cause death.644 While it is clear that this would encompass direct intent, it is not clear whether it would encompass indirect intent. The icty Appeals Chamber in Kunarac emphasised that ‘intention’ in the context of torture means that the perpetrator must have ‘intended to act in a way which, in the normal course of events, would cause severe pain or suffering, whether physical or mental, to his victims’.645 The Trial Chamber in Limaj understood the Appeals Chamber to 641 See Chapter 4, Section 6. 642 See Chapter 7, Section 8.2.2(b). 643 (icty) Furundžija – Trial, above n 330, [162] (in the context of war crimes); and Čelebići – Trial, above n 73, [459], [468], followed in Brđanin – Trial, above n 69, [481] (cited with apparent approval in Brđanin – Appeal, above n 149, [242]); Kunarac – Trial, above n 253, [497] (relevantly affirmed in Kunarac – Appeal, above n 281, [142]–[144]); Martić – Trial, above n 69, [74]; Krnojelac – Trial, above n 70, [184] (‘deliberately’); (ictr) Semanza – Trial, above n 135, [343]; Akayesu – Trial, above n 66, [593]–[594]; (eccc) Duch – Trial, above n 66, [354]; (iht) Anfal – Trial, above n 145, 553; and (icc) Elements of Crimes. Art 7(1)(f); Bemba Gombo – Confirmation, above n 18, [191]–[192]. 644 (spet) Marques – Judgment, above n 34, [707]; and Prosecutor v Maubere (Sentence), Special Panel Case No 23/2003 (5 July 2004) (‘Maubere – Sentence’), 16–17. 645 (icty) Kunarac – Appeal, above n 281, [153].

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have limited the mens rea to direct intent.646 By contrast, the Trial Chamber in Martić accepted that ‘indirect intent’ will suffice, although cited no authority for this proposition.647 The Trial Chamber appeared to be using ‘indirect intent’ in the sense of a reasonable knowledge of the probability of the particular event (in this case the severe pain or suffering being inflicted) occurring as a result of the person’s actions.648 Ultimately, there appears to be a credible argument that actual intent will be required. Given the position under customary international law requires that the perpetrator inflict pain or suffering on a person for a particular proscribed purpose, it arguable that someone could not inflict pain or suffering on another person for a particular purpose without actually intending the very conduct itself. Nonetheless, the better view in light of the balance of authorities at the ad hoc Tribunals (e.g. those discussed above in the context of murder) appears to be that it is sufficient that the perpetrator intended the acts or omissions knowing the probability that severe pain or suffering would thereby be inflicted as a result. On this view, the intention to act for a particular purpose is separate and distinct from the intention to cause a specific consequence on the victim. icc Pre-Trial Chamber ii in Bemba Gombo held that the mens rea for torture is that the perpetrator ‘intended’ the conduct in question; it is not necessary that the perpetrator knew that the harm inflicted was severe.649 The Pre-Trial Chamber relied upon paragraph 4 of the General Introduction to the Elements of Crimes, which provides that, where a mental element would involve a value judgment such as ‘severe’, ‘it is not necessary that the perpetrator personally completed a particular value judgment unless otherwise indicated’.650 Further, there is no requirement that the perpetrator have any specific purpose (unlike torture under a war crime).651 7.6 Cumulative Charging Some of the conduct referred to above may also be conduct that can be brought as crimes on their own (e.g. rape). Accordingly, it must be recalled 646 (icty) Limaj – Trial, above n 69, [238]. 647 (icty) Martić – Trial, above n 69, [77]. 648 See, for instance, (icty) Martić – Trial, above n 69, [60], [65]. 649 (icc) Bemba Gombo – Confirmation, above n 18, [194]. 650 The Chamber also cited Christopher Hall in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court – Observer’s Notes, Article by Article (2nd ed, ch Beck etc: Munich, 2008) 251–252. 651 Elements of Crimes, Art 7(1)(f), [4], cited in Bemba Gombo – Confirmation, above n 18, [194].

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that a ­prosecution will only be able to charge an accused for more than one crime over the same conduct where there is at least one additional material element in the further crime that is not contained in the first crime.652 The icc appears to have adopted the same position.653 This principle was considered by the icc in the context of rape being charged both as torture and rape. icc Pre-Trial Chamber ii in Bemba Gombo found that, in such circumstances, while rape requires the additional specific material element of penetration, it was inappropriate to bring a charge of both as the charge of torture is fully subsumed within the charge of rape.654 8

The Sexual Offences

8.1 Introduction: Rape and Beyond Rape has long been prohibited as a war crime under international humanitarian law655 and has been prohibited under customary law at least since Allied Control Council Law No 10.656 As noted by the eccc Supreme Court Chamber in Duch, while the imt Charter, the imtfe Charter and the Control Council Law No 10 did not reference rape as a war crime, the imtfe and the us Military Commission convicted Japanese leaders, including General Matsui 652 (icty) Čelebići – Appeal, above n 66, [412]. 653 (icc) Bemba Gombo – Confirmation, above n 18, [202], citing (icty) Čelebići – Appeal, above n 66. 654 (icc) Bemba Gombo – Confirmation, above n 18, [204]–[205]. 655 Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, promulgated as General Order No 100 by President Abraham Lincoln, Washington dc (24 April 1863) (‘Lieber Code’), Arts 44 (‘All wanton violence committed against persons in the invaded country, […] all rape, wounding, maiming or killing of such inhabitants, are prohibited under the penalty of death, or such severe punishment as may seem adequate for the gravity of the offense’ – emphasis added) and 47; The Laws of War on Land, Oxford (9 September 1880) (‘Oxford Manual’), Art 49; Project of an International Declaration concerning the Laws and Customs of War, Brussels (27 August 1874) (‘Brussels Declaration’); Regulations respecting the Laws and Customs of War on Land, Annex to 1899 Hague Convention (iv) (1907), Art 46; Regulations respecting the Laws and Customs of War on Land, Annex to 1899 Hague Convention (ii), Art 46; 1899 Hague Convention (ii), Preamble; 1907 Hague Convention iv, Preamble; Geneva Convention iv, Art 27; Additional Protocol I, Art 76(1); Additional Protocol ii, Art 4(2)(e). 656 Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, Allied Control Council Law No 10 (20 December 1945), Official Gazette of the Control Council for Germany, No 3, 31 January 1946, Art ii.1(c); icty Statute, Art 5(g); ictr Statute, Art 3(g); and icc Statute, Art 7(1)(g).

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and ­Foreign Minister Hirota, for their failure to prevent their military forces from sexually enslaving around 20,000 women at Nanking (i.e. the Rape of Nanking).657 There is some controversy about when, however, rape became an offence as a crime against humanity under customary international law. On the one hand, Control Council Law No 10 listed rape as a crime against humanity after World War ii.658 On the other hand, however, the Supreme Court Chamber of the eccc has pointed out that none of the defendants in the trial before the nmts were ever charged with rape, neither the imt Charter or the imtfe Charter reference rape as a crime against humanity, and rape as a crime against humanity was not included in the 1950 Nuremberg Principles.659 According to the Chamber, recognition of rape as a crime against humanity did not begin to take shape until the 1990s, following the reports of rape being used as a tool in carrying out widespread or systematic attacks on civilian populations in Haiti, Bosnia and Rwanda.660 After a number of important early decisions at the ad hoc Tribunals,661 rape as a crime against humanity is now an offence under customary international law.662 The tribunals have also recognised other forms of sexual violence in the context of the offences of other inhumane acts. More controversially,

657 (eccc) Duch – Appeal, above n 281, [175], citing the following materials on the Rape of Nanking generally: Neil Boister and Robert Cryer, Documents on the Tokyo International Military Tribunal: Charter, Indictment and Judgments, 535–539, 604, 612, Trial of General Yamashita, Case No 21, us Military Commission, Manila, 8 October 1945 – 7 December 1945, reprinted in Law Reports of Trials of War Criminals, vol iv, 1945. 658 Control Council Law No 10, Art ii(1)(c). 659 (eccc) Duch – Appeal, above n 281, [176], citing Kevin Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law (Oxford University Press: Oxford, 2011). 660 (eccc) Duch – Appeal, above n 281, [179] (detailed footnotes omitted). Although it should be noted that a Guatemalan Court has recently found rape as a crime against humanity to have been committed in the 1980s: see Chapter 7, Section 4.3.1. While there is some concern that this may be incorrect, the crimes would likely fall within the Nuremberg exception discussed at Chapter 7, Section 8.3.1. 661 (ictr) Akayesu – Trial, above n 66, [598], [688]; (icty) Čelebići – Trial, above n 66 [491], [496]; and Furundžija – Trial, above n 330, [170], [175], [185]–[186]. 662 (icty) Čelebići – Trial, above n 73, [476]–[477], followed in Kvočka – Appeal, above n 66, [395]; (scsl) ruf – Trial, above n 66, [144] (also citing un sc Resolution 1820 (2008), un Doc. S/RES/1820, 5916th mtg (19 June 2008), [4]: ‘rape and other forms of sexual violence can constitute a crime against humanity, or a constitutive act with respect to genocide …’); and (spet) Cardoso – Judgment, above n 484, [274].

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­ rticle 7(1)(g) of the icc Statute, for the first time in international law, added A the sexual offences of: • • • • •

sexual slavery; enforced prostitution; forced pregnancy; enforced sterilization; and any other form of sexual violence of comparable gravity.

Some groups were pushing for an even greater expansion. At the Rome Conference, the Women’s Caucus – an umbrella group of a number of women’s lobby groups663 – sought an expanded list of sexual offences including ‘forced pregnancy’.664 Inclusion of this crime was supported by the Bosnian delegation in response to the Serb policy of raping Muslim women and detaining them until delivery in order to change the ethnic composition of the population.665 When it was raised at the Rome Conference, The Holy See and other Catholic States had problems with the crime. Ireland was concerned that its policy of detaining pregnant wards of the state to prevent them procuring abortions abroad may come within this crime.666 The result was a clarification at Article 7(2)(f). It attempts to capture the experience in Bosnia and also requires, by its reference to ‘unlawful confinement’, a detention contrary to domestic law. Ultimately, while the customary status of each offence must be considered individually, some support for the expanded list may be found in states that have implemented such crimes in their domestic systems as well as the incorporation of such crimes in the Statute of the Extraordinary African Chambers.667 8.2 Rape Under customary international law, the crime of ‘rape’ as a crime against humanity constitutes the following elements when committed as part of a widespread or systematic attack against a civilian population:

663 McCormack, above n 5, 195; and William Pace and Mark Thieroff, ‘Participation of NonGovernment Organisations’ in Roy Lee (ed), International Criminal Court: The Making of the Rome Statute – Issues, Negotiations, Results (Kluwer Law International: The Hague, 1999) 391. 664 McCormack, above n 5, 195. 665 McCormack, above n 5, 196. 666 McCormack, above n 5, 196. 667 See Chapter 5, Section 3.7.2.

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1.

The perpetrator invaded the body of a person by conduct resulting in penetration, however slight.668 2. The invasion was committed by force, or by threat of force or coercion, or otherwise without lawful consent.669 3. The perpetrator: a. intended to effect the penetration670 or acted in the reasonable knowledge that this was likely to occur;671 and b. knew that the victim did not consent,672 or had reason to know.673 Article 7(1)(g) of the icc Statute proscribes ‘rape’ as a crime against humanity. The icc Elements of Crimes requires the prosecution establish that the 668 (ictr) Akayesu – Trial, above n 66, [598], followed in (icty) Čelebići – Trial, above n 66 [478]–[479]; Furundžija – Trial, above n 330, [185], followed in Kunarac – Trial, above n 253, [460], [437] (affirmed in Kunarac – Appeal, above n 281, [127]–[128]); Kvočka  – A ­ ppeal, above n 66, [395]; (ictr) Semanza – Trial, above n 135, [344]–[345]; B ­ agosora – Trial, above n 71, [2199]–[2200]; Gacumbitsi – Appeal, above n 143, [151]; (eccc) Duch – Trial, above n 66, [362] (affirmed in Duch – Appeal, above n 281, [208]); (scsl) afrc – ­Trial, above n 81, [693]; Taylor – Trial, above n 79, [415]; ruf – Trial, above n 66, [145]; and (­Bangladesh) Chief Prosecutor v Delowar Hossain Sayeedi (Judgment) (ict-1), ict-bd Case No. 01 of 2011 (28 February 2013) (‘Sayeedi – Judgment’), [191]. 669 (ictr) Akayesu – Trial, above n 66, [598]; (icty) Furundžija – Trial, above n 330, [185], followed in Kunarac – Trial, above n 253, [460] (although referring only to a lack of consent, rather than force or coercion: see discussion at [436]–[460]), affirmed in Kunarac  – ­Appeal, above n 281, [127]–[128]; Kvočka – Appeal, above n 66, [395]; (ictr) Semanza – Trial, above n 135, [344]–[345]; Bagosora – Trial, above n 71, [2199]–[2200]; Gacumbitsi – Appeal, above n 143, [151]; (spet) Cardoso – Judgment, above n 484, [452]; (eccc) Duch – Trial, above n 66, [362] (affirmed in Duch – Appeal, above n 281, [208]); (scsl) afrc – Trial, above n 81, [693]; Taylor – Trial, above n 79, [415]; ruf – Trial, above n 66, [145]; and (­Bangladesh) Sayeedi – Judgment, above n 669, [191]. 670 (icty) Kunarac – Trial, above n 253, [460] (affirmed in Kunarac – Appeal, above n 281, [127]–[128]); followed in (ictr) Semanza – Trial, above n 135, [346]; Bagosora – Trial, above n 71, [2199]–[2200]; (eccc) Duch – Trial, above n 66, [365]; (scsl) afrc – Trial, above n 81, [693]; Taylor – Trial, above n 79, [415]; ruf – Trial, above n 66, [145]; (spet) Cardoso – Judgment, above n 484, [452]; and (icc) Katanga – Confirmation, above n 26, [441]. 671 (scsl) ruf – Trial, above n 66, [145]. 672 (icty) Kunarac – Trial, above n 253, [460] (affirmed in Kunarac – Appeal, above n 281, [127]–[128]), followed in (ictr) Semanza – Trial, above n 135, [346]; Bagosora – Trial, above n 71, [2199]–[2200]; (eccc) Duch – Trial, above n 66, [365]; (scsl) afrc – Trial, above n 81, [693]; Taylor – Trial, above n 79, [415]; ruf – Trial, above n 66, [145]; and (icc) Katanga – Confirmation, above n 26, [441]. 673 (scsl) ruf – Trial, above n 66, [145].

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following­elements occurred as part of a widespread or systematic attack against any civilian population:674 1.

2.

The perpetrator invaded675 the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body. [Mental element: The perpetrator:676 a. meant to perform one or more act or omission; and b. either: (i) meant, by such act(s) or omission(s), to invade the body of a person; or (ii) was aware that such a consequence would ­occur in the ordinary course of events as a result of the act(s) or omission(s).] The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent.677 [Mental element: The perpetrator was aware that the invasion was committed by force, or by threat of force or coercion.678]

8.2.1 Penetration The first element of rape is that the perpetrator invaded the body of a person by conduct resulting in penetration, however slight.679 While the ictr Trial 674 (icc) Elements of Crimes, Art 7(1)(g); Bemba Gombo – Confirmation, above n 18, [161]; Katanga – Trial, above n 25, [962]; and Bemba Gombo – Trial, above n 66, [99]–[112]. 675 The footnote in the Elements of Crimes reads: ‘The concept of “invasion” is intended to be broad enough to be gender-neutral.’ 676 No mental element is specified meaning that Article 30 of the icc Statute provides that ‘intent and knowledge’ apply as discussed above at Section 1.2.3. 677 The footnote in the Elements of Crimes reads: ‘It is understood that a person may be incapable of giving genuine consent if affected by natural, induced or age-related incapacity. This footnote also applies to the corresponding elements of Arts 7(1)(g) – 7(3), (5) and (6).’ 678 No mental element is specified meaning that Article 30 of the icc Statute provides that ‘intent and knowledge’ apply as discussed above at Section 1.2.3. 679 (ictr) Akayesu – Trial, above n 66, [598], followed in (icty) Čelebići – Trial, above n 66, [478]–[479]; Furundžija – Trial, above n 330, [185], followed in Kunarac – Trial, above n 253, [460], [437] (affirmed in Kunarac – Appeal, above n 281, [127]–[128]); Kvočka – ­Appeal, above n 66, [395]; (ictr) Semanza – Trial, above n 135, [344]–[345]; Bagosora – Trial, above

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Chamber in Akayesu required only that there be ‘a physical invasion of a sexual nature’,680 later cases have specifically required ‘sexual penetration’.681 The position is the same in the icc.682 Nonetheless, both the ad hoc Tribunals and the icc have clarified that the definition is broad enough that both men and women can both be victims of rape.683 The requirement of ‘penetration’ encompasses two scenarios:684 1. 2.

penetration of ‘any part of the body’ of the victim (i.e. including genital, anal and oral) or of the perpetrator with a sexual organ; and penetration of the genital or anal opening of the victim with ‘any object’ or ‘any other part of the body’.

8.2.2 Force, Threat or Otherwise without Lawful Consent The second element of the underlying crime of rape is that the penetration was committed by force, or by threat of force or coercion, or otherwise without lawful consent.685 Some cases initially required that rape be committed by n 71, [2199]–[2200]; Gacumbitsi – Appeal, above n 143, [151]; (eccc) Duch – Trial, above n 66, [362] (affirmed in Duch – Appeal, above n 281, [208]); (scsl) afrc – Trial, above n 81, [693]; Taylor – Trial, above n 79, [415]; ruf – Trial, above n 66, [145]; and (­Bangladesh) Sayeedi – Judgment, above n 669, [191]. 680 (ictr) Akayesu – Trial, above n 66, [597]–[598]. 681 See discussion in (ictr) Semanza – Trial, above n 135, [344]–[345]. The key cases are: (icty) Furundžija – Trial, above n 330, [185], followed in Kunarac – Trial, above n 253, [438]–[460] (approved in Kunarac – Appeal, above n 281, [127]–[128]). Although, note, however, this jurisprudence may be of relevance in assessing whether the crime of ‘sexual violence’ has been committed (a technique used by the icc in interpreting the ‘policy’ requirement – see below). 682 (icc) Elements of Crimes, Art 7(1)(g)-1(1); Kenya – Authorisation, above n 358, [151]; Katanga – Trial, above n 25, [963]; and Bemba Gombo – Trial, above n 66, [99]. 683 (icc) Elements of Crimes (footnote omitted), Arts 7(1)(g)-1(1); Katanga – Confirmation, above n 26, [439]; Bemba Gombo – Trial, above n 66, [100]; and (scsl) ruf – Trial, above n 66, [147]. 684 (ictr) Furundžija – Trial, above n 330, [185], followed in Kunarac – Trial, above n 253, [460], [437] (affirmed in Kunarac – Appeal, above n 281, [127]–[128]); Kvočka – Appeal, above n 66, [395]; (ictr) Semanza – Trial, above n 135, [344]–[345]; Bagosora – Trial, above n 71, [2199]–[2200]; Gacumbitsi – Appeal, above n 143, [151]; (scsl) afrc – Trial, above n 81, [693],;Taylor – Trial, above n 79, [415]; and ruf – Trial, above n 66, [145]–[146]. 685 (ictr) Akayesu – Trial, above n 66, [598]; Semanza – Trial, above n 135, [344]–[345]; B ­ agosora – Trial, above n 71, [2199]–[2200]; Gacumbitsi – Appeal, above n 143, [151]; (icty) Furundžija – Trial, above n 330, [185], followed in Kunarac – Trial, above n 253, [460]

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force or coercion.686 Whether such force or coercion was present was a question of fact. This does not need to be evidenced by a physical show of force but ‘[t]hreats, intimidation, extortion and other forms of duress which prey on fear or desperation may constitute coercion, and coercion may be inherent in certain circumstances, such as armed conflict or[ ]military presence …’.687 The necessary coercion has been found, for instance, in respect of rape committed by the authorities at a prison camp.688 It includes ‘rendering the victim helpless’ and it may suffice that force or intimidation be directed at a third person.689 The icty Chambers in Kunarac held that coercion, or force, or threat of force was not needed.690 While force or coercion could negate the victim’s consent, the most important requirement was that the penetration is committed ‘without the consent of the victim’. The Tribunals since have since followed this position.691 Consent must be ‘given voluntarily, as a result of the victim’s free will, assessed in the context of the surrounding circumstances’.692 Naturally, force or (although referring only to a lack of consent, rather than force or coercion: see discussion at [436]–[460]); affirmed in Kunarac – Appeal, above n 281, [127]–[128] (and followed in Kvočka – Appeal, above n 66, [395]); (spet) Cardoso – Judgment, above n 484, [452]; (eccc) Duch – Trial, above n 66, [362] (affirmed in Duch – Appeal, above n 281, [208]); (scsl) afrc – Trial, above n 81, [693]; Taylor – Trial, above n 79, [415]; ruf – Trial, above n 66, [145]; and (Bangladesh) Sayeedi – Judgment, above n 669, [191]. 686 (ictr) Akayesu – Trial, above n 66, [597]–[598], followed by (icty) Čelebići – Trial, above n 66, [479]; Furundžija – Trial, above n 330, [185] (although the Chambers in Kunarac appeared to view the case as being consistent with its findings: Kunarac – Trial, above n 253, [459]; Kunarac – Appeal, above n 281, [129]); (Bangladesh) Sayeedi – Judgment, above n 669, [191]; and (Canada) Munyaneza – Trial, above n 57, [688]. 687 (ictr) Akayesu – Trial, [688]; Semanza – Trial, [345]; and (Canada) Munyaneza – Trial, above n 57, [95]. 688 (icty) Čelebići – Trial, above n 66, [940]–[941]. 689 (icty) Furundžija – Trial, above n 330, [180] 690 (icty) Kunarac – Trial, above n 253, [438]–[460], affirmed in Kunarac – Appeal, above n 281, [127]–[133]. 691 (icty) Kvočka – Appeal, above n 66, [395]; (ictr) Semanza – Trial, above n 135, [344]– [345]; Bagosora – Trial, above n 71, [2199]–[2200]; Gacumbitsi – Appeal, above n 143, [155]; (eccc) Duch – Trial, above n 66, [362] (affirmed in Duch – Appeal, above n 281, [208]); (scsl) afrc – Trial, above n 81, [693]; Taylor – Trial, above n 79, [415]; and ruf – Trial, above n 66, [145]. 692 (icty) Kunarac – Trial, above n 253, [460] (affirmed in Kunarac – Appeal, above n 281, [127]–[129]), followed in Kvočka – Appeal, above n 66, [395]; (ictr) Semanza – Trial,

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the threat of force will provide clear evidence of non-consent, as might taking advantage of a person unable to resist, unconsciousness of the victim or certain misrepresentations by the perpetrator.693 But it will not be limited to these circumstances. In particular, non-consent may be established where the ‘coercive circumstances’ are such that meaningful consent is not possible.694 This includes situations of a widespread or systematic attack against a civilian population, where there is a military presence and where a victim is in captivity. That said, ‘continuous resistance’ by the victim is not required to establish coercion’.695 The scsl has gone as far as to say that ‘in situations of armed conflict or detention, coercion is almost universal’.696 In the icc, this element of the crime is worded differently. According to the Elements of Crimes, the act must be committed by force, threat of force or by coercion (including fear of violence, duress, detention, psychological oppression, abuse of power, or taking advantage of a coercive environment) or committing the crime against a person incapable of giving consent (due to natural, induced or age-related incapacity).697 That is, unlike the position in Kunarac, it is not an element of the offence that the victim in fact did not consent; it is required to establish that there was ‘force or coercion’. Similarly, it was the view of the majority of the icc Trial Chamber in Katanga that this wording meant that – except to the extent that a person’s incapacity is taken advantage of in the sense used in the Elements of Crimes – the victim’s lack of consent need not be proven.698 The Trial Chamber in Bemba Gombo noted that this was a deliberate decision by the drafters of the icc Statute as requiring the proof of above n 135, [344]; Bagosora – Trial, above n 71, [2199]; Gacumbitsi – Appeal, above n 143, [151]; Nyiramasuhuko – Trial, above n 143, [6075]; (eccc) Duch – Trial, above n 66, [363] (affirmed in Duch – Appeal, above n 281, [208]); (scsl) afrc – Trial, above n 81, [694]; Taylor – Trial, above n 79, [416]; and ruf – Trial, above n 66, [147]. 693 (icty) Kunarac – Trial, above n 253, [458] (affirmed in Kunarac – Appeal, above n 281, [129]), followed in (ictr) Bagosora – Trial, above n 71, [2199]; (scsl) afrc – Trial, above n 81, [694]; Taylor – Trial, above n 79, [416]; and afrc – Rule 98 Decision, above n 150, [106]–[108]. 694 (icty) Kunarac – Appeal, above n 281, [131]–[133]; Čelebići – Trial, above n 66, [495] and Furundžija – Trial, above n 330, [271], followed in Kvočka – Trial, above n 70, [178]; (ictr) Akayesu – Trial, above n 66, [688], followed in Gacumbitsi – Appeal, above n 143, [155]; and (scsl) afrc – Trial, above n 81, [694]. 695 (icty) Kunarac – Appeal, above n 281, [128]; and Gacumbitsi – Appeal, above n 143, [155]; see also (scsl) Taylor – Trial, above n 79, [416], citing ruf – Appeal, above n 323, [736]. 696 (scsl) afrc – Trial, above n 81, [694], followed in Taylor – Trial, above n 79, [416]. 697 (icc) Katanga – Confirmation, above n 26, [438]; and Bemba Gombo – Trial, above n 66, [102]–[109]. 698 (icc) Katanga – Trial, above n 25, [965].

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a lack of consent ‘would, in many cases, undermine efforts to bring perpetrators to justice’.699 Despite this difference, however, it is unclear how different the two tests will be in practice. The spet – considering an identically worded provision to the icc – considered that the wording was entirely consistent with the position of the Tribunals.700 This view has merit upon a close consideration of the reasoning of the icty Appeals Chamber in Kunarac. The Appeals Chamber clarified that its decision to focus on lawful consent ‘did not disavow the Tribunal’s earlier jurisprudence, but instead sought to explain the relationship between force and consent’.701 Further, the Appeals Chamber was particularly concerned that factors other than ‘force’ may render the act non-consensual or non-voluntary, and that: [a] narrow focus on force or threat of force could permit perpetrators to evade liability for sexual activity to which the other party had not consented by taking advantage of coercive circumstances without relying on physical force.702 This concern, however, is covered by the icc crime through its expanded definition. The crime covers not only physical force but a wider range of ‘coercion’ such as a person taking advantage of a coercive environment. Accordingly, the icc has so far appeared to follow the jurisprudence of the ad hoc Tribunals. In Katanga, icc Pre-Trial Chamber i relied upon the ictr Trial ­Chamber in Akayesu to find that a ‘coercive environment’ does not require physical force, but includes ‘[t]hreats, intimidation, extortion and other forms of duress which prey on fear or desperation may constitute coercion, and coercion may be inherent in certain circumstances, such as armed conflict or military presence.’703 The Trial Chamber in Bemba Gombo did the same.704 Similarly, the jurisprudence of the scsl suggests that the two tests are at least practically consistent. In the ruf Case, the scsl Trial Chamber set out the elements of rape using the ‘coercion’ test formulated in the icc Elements

699 (icc) Bemba Gombo – Trial, above n 66, [105]. 700 (spet) Cardoso – Judgment, above n 484, [441]–[449], [452]. 701 (icty) Kunarac – Appeal, above n 281, [129]. 702 (icty) Kunarac – Appeal, above n 281, [129]. 703 (icc) Katanga – Confirmation, above n 26, [440], citing (ictr) Akayesu – Trial, above n 66, [688]. 704 (icc) Bemba Gombo – Trial, above n 66, [103].

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of Crimes.705 However, in its application of these elements, the Trial Chamber adopted the approach in Kunarac. First, the Chamber cited the Kunarac Chambers for the proposition that the ‘essence’ of the requirement of coercion is that there be ‘circumstances in which the person could not be said to have voluntarily and genuinely consented to the act’.706 Secondly, the Chamber stated that the second element refers to situations where, ‘even in the absence of force or coercion, a person cannot be said to genuinely have consented to the act.’707 Accordingly, while the primary focus must remain on the language of the icc Statute, in the icc – as in the ad hoc Tribunals – the lack of consent of the victim may be at least be a relevant to demonstrating that the requisite level of force or coercion is present. That is, the ultimate question may well be whether there was a level of force or coercion – in the acts or in the environment – that deprived the particular victim of their capacity to give valid and genuine consent in the circumstances. Focus must nonetheless remain on the words of the icc Statute. For instance, in Bemba Gombo, the Trial Chamber ‘emphasise[d]’ that it is necessary that the prosecution prove not only a coercive environment but that the person ‘took advantage of’ that environment.708 That said, one area that could be a point of difference between the position at custom and the position in the icc is where consent is obtained by deception. Unlike the crime of enforced prostitution – which has a footnote in the Elements of Crimes specifically stating that deception vitiates genuine consent – rape does not have the same footnote. Although, arguably, such a circumstance could constitute a situation where the victim was ‘incapable of giving genuine consent’ owing to the deception. 8.2.3 Mens Rea The ad hoc Tribunals have most often identified the mens rea for rape as being that the perpetrator must have ‘intended to effect the penetration and must have done so knowing the perpetrator knew or had reason to know that the victim did not consent.709 While this formulation sets out the content of 705 (scsl) ruf – Trial, above n 66, [145(ii)]; [147]. 706 (scsl) ruf – Trial, above n 66, [147], citing (icty) Kunarac – Appeal, above n 281, [129]; and Kunarac – Trial, above n 253, [457]–[459]. 707 (scsl) ruf – Trial, above n 66, [147]. 708 (icc) Bemba Gombo – Trial, above n 66, [104]. 709 (icty) Kunarac – Trial, above n 253, [460], affirmed in Kunarac – Appeal, above n 281, [127]–[128], followed in (ictr) Semanza – Trial, above n 135, [346]; Bagosora – Trial, above n 71, [2199]–[2200]; (eccc) Duch – Trial, above n 66, [365]; (scsl) afrc – Trial,

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the required intention and knowledge relatively clearly, it does not precisely identify whether ‘indirect intention’ would suffice for the first element, and whether anything short of ‘actual knowledge’ would suffice for the second element. The scsl Trial Chamber in the ruf Case found that it would suffice that the perpetrator ‘acted in the reasonable knowledge that [the act of penetration] was likely to occur’ and that the perpetrator ‘had reason to know’ that the victim did not consent.710 The icc has so far been not entirely clear on its approach. icc Pre-Trial Chamber i in Katanga held that a perpetrator must ‘intend’ to invade the body of another person by force or threat of force or coercion and stated that the term ‘intend’ would encompass ‘first and foremost, cases of dolus directus of the first and second degree’.711 The Trial Chamber held that the person must ‘intentionally invade the body of the victim’ (proven by establishing a deliberate act or omission to effect penetration or aware that such a consequence would arise in the ordinary course of events) and have been ‘aware’ that the invasion was committed by force or coercion.712 A similar statement of principle was adopted by the icc Trial Chamber in Bemba Gombo, where the Chamber stated only that it required that the perpetrator ‘was aware’ of the relevant facts.713 While this leaves open the question of whether any other forms of knowledge will suffice, for reasons set out above,714 the better view is that the person must have knowledge in the sense that they are aware that the invasion was committed by force, or by threat of force or coercion. Element 2 is one circumstance and therefore knowledge will apply. Element 1 is one of conduct, meaning the perpetrator must ‘mean to’ do the conduct.715 As to the material element of force or coercion being present, it is not entirely clear whether it is a consequence or circumstance. The result does not appear significant. If viewed as a circumstance, the perpetrator must be aware that the circumstance exists or will exist in the ordinary course of events. If viewed as a consequence, the perpetrator must ‘mean to cause’ the consequence or be ‘aware that it will occur in the ordinary course of events’. above n 81, [693]; Taylor – Trial, above n 79, [415]; ruf – Trial, above n 66, [145]; and (spet) Cardoso – Judgment, above n 484, [452]. 710 (scsl) ruf – Trial, above n 66, [145]. The Chamber appeared to view this as being consistent with the language used by the other ad hoc Tribunals: see [150]. 711 (icc) Katanga – Confirmation, above n 26, [441]. 712 (icc) Katanga – Trial, above n 25, [970]. 713 (icc) Bemba Gombo – Trial, above n 66, [112]. 714 See above, Section 1.2.3(a). 715 See above, Section 1.2.3.

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The fact that the element includes a situation where the perpetrator is ‘taking advantage of a coercive environment’, suggests that the material element of consequence may be more appropriate. 8.2.4 Corroboration Unlike in some legal systems, corroboration is not required; the crime of rape may be established by a single piece of evidence provided that it is credible.716 The crime may also be established by circumstantial evidence.717 8.3 Sexual Slavery Under customary international law, the crime of ‘sexual slavery’ as a crime against humanity comprises the following elements when committed as part of a widespread or systematic attack against a civilian population: 1.

2. 3.

The perpetrator exercised any or all the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.718 The perpetrator caused such person or persons to engage in one or more acts of a sexual nature.719 The perpetrator intended to exercise the act of sexual slavery or acted in the reasonable knowledge that this was likely to occur.720

716 (ictr) Prosecutor v Muhimana (Appeals Chamber Judgment), Case No ICTR-95-1B-A (21 May 2007) (‘Muhimana – Appeal’), [101]; Čelebići – Appeal, above n 66, [506]; see also (icc) Rule 63(4) of the icc’s Rules of Procedure and Evidence (‘a Chamber shall not impose a legal requirement that corroboration is required in order to prove any criminal court, in particular, crimes of sexual violence’). 717 (ictr) Muhimana – Appeal, above n 717, [49]; and (icty) Prosecutor v Kupreškić et al. (Appeals Chamber Judgment), Case No IT-95-16-A (23 October 2001) (‘Kupreškić – ­Appeal’), [303]. But note (ictr) Muhimana – Appeal (Joint Partly Dissenting Opinion of Judge Shahabuddeen and Judge Schomburg). 718 (scsl) afrc – Trial, above n 81, [708] (affirmed at Prosecutor v Brima, Kamara and Kanu (Appeals Court Judgment), Case No. SCSL-2004-16-A (22 February 2008) (‘afrc – Appeal’), [102]); ruf – Trial, above n 66, [158]; Taylor – Trial, above n 79, [418]; (eac) Ministère Public v Habré (Judgment) (30 May 2016), accessed online at (only available in French) (Habré – Trial’), [1502]. See also authorities below in relation to Article 7 of the icc Statute. 719 (scsl) afrc – Trial, above n 81, [708]; ruf – Trial, above n 66, [158]; and Taylor – Trial, above n 79, [418]; (eac) Habré – Trial, above n 719, [1497]. See also authorities below in relation to Article 7 of the icc Statute. 720 While not contained in the icc Elements of Crimes, this is the proper interpretation of the provision for reasons discussed below. See (icc) Katanga – Confirmation, above

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Under Article 7(1)(g)-2 of the icc Elements of Crimes, the crime of ‘sexual slavery’ as a crime against humanity comprises the following elements when committed as part of a widespread or systematic attack against a civilian population:721 1.

2.

The perpetrator exercised any or all the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.722,723 [Mental element: The perpetrator meant to exercise any or all the powers attaching to the right of ownership over one or more persons.724] The perpetrator caused such person or persons to engage in one or more acts of a sexual nature.725 [Mental element: The perpetrator:726 a. meant to perform one or more act or omission; and b. either: (i) meant, by such act(s) or omission(s), to cause such person or persons to engage in one or more acts of a sexual nature; or (ii) was aware that such a consequence would occur in the ordinary course of events as a result of the act(s) or omission(s).]

n 26, [433], [435]; (scsl) afrc – Trial, above n 81, [708]; ruf – Trial, above n 66, [158]; and Taylor – Trial, above n 79, [418]. 721 See discussion in (icc) Katanga – Trial, above n 25, [973]–[984]. 722 Footnote from Elements of Crimes: It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labour or otherwise reducing a person to a servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children. 723 (icc) Elements of Crimes, Art 7(1)(g)-2, followed in Katanga – Confirmation, above n 26, [429]–[433]. See also Rodney Dixon and Christopher Hall, ‘Article 7 Crimes Against Humanity: Para 1 “Chapeau”’ in Otto Triffterer, Commentary on the Rome Statute of the International Criminal Court – Observer’s Notes, Article by Article (2nd ed, ch Beck etc: Munich, 2008) [45]ff; and Bassiouni, above n 289. 724 No mental element is specified meaning that Article 30 of the icc Statute provides that ‘intent and knowledge’ apply as discussed above at Section 1.2.3. 725 (icc) Elements of Crimes, Art 7(1)(g)-2, followed in Katanga – Confirmation, above n 26, [429]–[433. See also: Hall, above n 724, [45]ff; Bassiouni, above n 289. 726 No mental element is specified meaning that Article 30 of the icc Statute provides that ‘intent and knowledge’ apply as discussed above at Section 1.2.3.

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8.3.1 Introduction The crime of sexual slavery was first introduced as a specific crime in the icc Statute.727 Since, it has been followed and adopted by the scsl728 and the eac.729 Nonetheless, despite not being a specific crime in the icty Statute, sexual slavery has been discussed by the icty in the context of ‘enslavement’730 as well as by various un commentators and committees.731 On the basis that it is a species of enslavement, the scsl and the eac have considered the crime of sexual slavery and held it to be a crime proscribed by customary international law732 as a form of enslavement733 The icc has applied similar logic.734 8.3.2 Slavery Element The first element, the ‘slavery element’, is that the perpetrator exercised any or all the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.735 As the words ‘such as’ 727 icc Statute, Art 7(1)(g). 728 (scsl) afrc – Trial, above n 81, [708]; ruf – Trial, above n 66, [158]; Taylor – Trial, above n 79, [418]. 729 (eac) Habré – Trial, above n 719, [1483]–[1502]. 730 (icty) Kunarac – Trial, above n 253, [746]–[782]; and Kunarac – Appeal, above n 281, [186]. 731 un sc Resolution 1820 (2008), un Doc. S/RES/1820, 5916th mtg (19 June 2008); Final report submitted by Ms Gay J McDougall, Special Rapporteur, Contemporary Forms of Slavery: Systematic rape, sexual slavery and slavery-like practices during armed conflict, Economic and Social Council, Commission on Human Rights, Sub-Commission on the Promotion and Protection of Minorities, un Doc. E/CN.4/Sub.2/1998/13 (22 June 1998), [7]–[19]; Update to Final report submitted to Ms Gay J McDougall, Special Rapporteur, Contemporary Forms of Slavery: Systematic rape, sexual slavery and slavery-like practices during armed conflict, Economic and Social Council, Commission on Human Rights, Sub-Commission on the Promotion and Protection of Minorities, un Doc. E/CN.4/Sub.2/2000/21 (6 June 2000), [20]. 732 (scsl) ruf – Trial, above n 66, [157] (citing Update to Final Report of Special Rapporteur, [51] and considering that the crime of ‘enslavement’ has been held to be prohibited under customary international law: Kunarac – Trial, above n 253, [519]–[537]; and Kunarac – A ­ ppeal, above n 281, [124]); and (eac) Habré – Trial, above n 719, [1483]–[1502]. 733 (scsl) ruf – Appeal, above n 323, [734]. 734 (icc) Katanga – Confirmation, above n 26, [430], referring to the reference in footnotes of 11 and 18 of the Elements of Crimes to Supplementary Slavery Convention, above n 291. 735 (icc) Elements of Crimes, Art 7(1)(g)-2, followed in Katanga – Confirmation, above n 26, [429]–[433]; (scsl) afrc – Trial, above n 81, [708] (affirmed at afrc – Appeal, above n 719, [102]); ruf – Trial, above n 66, [158]; and Taylor – Trial, above n 79, [418]; (eac) Habré – Trial, above n 719, [1502]. See also Hall, above n 724, [45]ff; and Bassiouni, above n 289.

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indicate, the list of actions that many constitute exercising powers attaching to the right of ownership is not exhaustive and ‘may take many forms’.736 The term ‘powers attaching to the right of ownership’ has been held by the icc to be construed as ‘the use, enjoyment and disposal of a person who is regarded as property, by placing him or her in a situation of dependence which entails his or her deprivation of any form of autonomy’.737 This will be determined on a case-by-case basis.738 Given the acceptance that sexual slavery is a species of enslavement (discussed above at 8.3.1), this element appears to be identical to the equivalent element in the crime of enslavement.739 Accordingly, the scsl Trial Chamber in the Taylor Case applied the principles of ‘enslavement’ discussed by the icty in the Kunarac case.740 While these elements are discussed further above in the context of enslavement, the scsl in the Taylor Case explained that the element must be examined by considering the relevant indicia identified by the icty in Kunarac in the context of enslavement: • control of someone’s movement; • control of physical environment; • psychological control; • measures taken to prevent or deter escape; • force, threat of force or coercion; • duration; • assertion of exclusivity; • subjection to cruel treatment and abuse; and • control of sexuality and forced labour. The eac in Habré provided a similar list.741 736 (icc) Katanga – Trial, above n 25, [975]. 737 (icc) Katanga – Trial, above n 25, [975]. 738 (icc) Katanga – Trial, above n 25, [976]. 739 Further, for instance, the scsl Trial Chamber in the ruf – Trial, above n 66, (at [159]) cites the icty authority in Kunarac – Trial, above n 253, for its statement of the element. 740 (scsl) Taylor – Trial, above n 79, [420], (citing, inter alia, Kunarac – Trial, above n 253, [543]; and Kunarac – Appeal, above n 281, [119]); see also afrc – Trial, above n 81, [709]. 741 (eac) Habré – Trial, above n 719, [1505] (detention or captivity and the respective duration of this; the limitation of all liberty of choice or movement; intimidation, including by physical or moral restraint; the exercise of psychological pressure; the state of vulnerability of the victim). Interestingly, at [1538], the Court noted that some of the victims were minors.

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The icc Trial Chamber in Katanga cited the icty and scsl decisions when formulating its own list of relevant considerations.742 The Chamber held that relevant factors may ‘include’ detention or captivity and their respective duration, restrictions on freedom to come and go or any freedom of choice or movement, any measure taken to prevent or deter any attempt at escape, and the use of threats, force or coercion, the victim’s vulnerability, and the socioeconomic conditions in which power is exerted. Importantly, it will also be relevant to consider the ‘subjective’ element of the deprivation, namely, the victim’s perception of their situation as well as their ‘reasonable fear’.743 While the scsl Trial Chamber in Taylor also found that ‘the primary characteristic’ of enslavement is the absence of consent or free will of the victim,744 the scsl Appeals Chamber has followed the icty in finding that – while of evidentiary relevance – consent is not an element of the offence.745 Once the powers of ownership are exercised, consent is not possible. The principles in this respect are the same as with enslavement. The final clause of the element in the icc Elements of Crimes makes clear that the powers of ownership may be exercised not only by ‘purchasing, selling, lending or bartering such a person or persons’ but also ‘by imposing on them a similar deprivation of liberty’. The scsl has explained that the drafters at the Rome Conference intended this term to encompass situations where ‘victims may not have been physically confined, but were otherwise unable to leave as they would have nowhere else to go and feared for their lives.’746 Similarly, both the scsl and the icc have accepted that there need not be a payment, exchange or commercial transaction in order to establish the offence.747 In application, this element will be linked closely with the second element, the ‘sexual element’. For instance, in Katanga, icc Pre-Trial Chamber i held 742 (icc) Katanga – Trial, above n 25, [976]. 743 (icc) Katanga – Trial, above n 25, [977]. 744 (scsl) Taylor – Trial, above n 79, [420], citing afrc – Trial, above n 81, [709]; Kunarac – Trial, above n 253, [542]; Kunarac – Appeal, above n 281, [129]–[131]; and Update to Final Report submitted by Ms. Gay J. McDougall, above n 732, [51]. 745 (scsl) ruf – Appeal, above n 323, [734] (citing Kunarac – Appeal, above n 281, [102]). See also ruf – Trial, above n 66, [163]. 746 (scsl) ruf – Trial, above n 66, [161], citing Eve La Haye in Roy Lee (Ed), The International Criminal Court: Elements of Crimes and Rules of Evidence (Transnational Publishers: New York, 2001) 191–192. (icty) The Trial Chamber also pointed to an example of such a circumstance: see Kunarac – Trial, above n 253, [750]. See also (scsl) afrc – Trial, above n 81, [709]; and Taylor – Trial, above n 79, [420]. 747 (scsl) afrc – Trial, above n 81, [709], followed in Taylor – Trial, above n 79, [420]; and (icc) Katanga – Trial, above n 25, [976].

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that sexual slavery encompasses forced marriage, domestic servitude and other forced labour involving compulsory sexual activity (including the detention of women in ‘rape camps’ and ‘comfort stations’, and ‘forced temporary “marriages” to soldiers’).748 However, as discussed further below,749 the crime of forced marriage is not subsumed within the category of sexual slavery. Further, it has been noted that a footnote in the Elements of Crimes indicates that the conduct includes trafficking in persons, in particular women and children.750 8.3.3 Sexual Element The second element, the ‘sexual element’, is that the perpetrator must cause the victims to engage in one or more acts of a sexual nature.751 This element distinguishes the crime of sexual slavery from that of enslavement. While the scsl Trial Chamber in the ruf Case referred to acts of ‘sexual violence’ at one stage in its decision,752 there does not appear to be any explicit need for violence in this element of the offence (although it may well be present in most cases and, indeed, any act of sex without consent may fairly be considered inherently violent).753 However, it should be noted that the Elements of Crimes lists the sexual offences culminating with the phrase ‘or any other form of sexual violence of comparable gravity’. This indicates that, taken in total, the act of sexual slavery must amount to a type of ‘sexual violence’. As noted immediately above, icc Pre-Trial Chamber i in Katanga provided an indicative list of certain acts that would fulfil the ‘sexual element’: forced marriages, domestic servitude, and other forced labour involving compulsory sexual activity (including the detention of women in ‘rape camps’ and ‘comfort stations’, and ‘forced temporary “marriages” to soldiers’).754 The later decision of the Trial Chamber in Katanga cited this decision but only went as far as 748 (icc) Katanga – Confirmation, above n 26, [431]. 749 See Sections 8.3.3 and 8.7.2. 750 Schabas, above n 228, 172. 751 (icc) Elements of Crimes, Art 7(1)(g)-2, followed in Katanga – Confirmation, above n 26, [429]–[433]; (scsl) afrc – Trial, above n 81, [708]; ruf – Trial, above n 66, [158]; and ­Taylor – Trial, above n 79, [418]; (eac) Habré – Trial, above n 719, [1497]. See also Hall, above n 724, [45]ff; and Bassiouni, above n 289. 752 (scsl) ruf – Trial, above n 66, [162], citing Update of Report by Special Rapporteur, [47] and [51]. 753 (scsl) Compare the Trial Chamber’s enunciation of the elements: see ruf – Trial, above n 66, [158]. 754 (icc) Katanga – Confirmation, above n 26, [431]. In respect of ‘rape camps’, the Trial Chamber pointed to (icty) Prosecutor v Gagovic (Foca) (Indictment), Case No IT-96-23-1 (26 June 1996) (‘Gagovic – Indictment’), [1.5], [4.8].

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to say that the crime ‘may also encompass situations where women and girls are forced to share the existence of a person with whom they have to engage in acts of a sexual nature’.755 Further guidance on what amounts to ‘acts of a sexual nature’ may be gleaned from the ad hoc Tribunals’ consideration of acts amount to ‘sexual violence’ (discussed below756). Particularly controversial in this list has been whether ‘forced marriage’ is subsumed within sexual slavery.757 As discussed below,758 while the icc has considered the crime to be of a sexual nature, the scsl Appeals Chamber has appeared to suggest that it would not. Interestingly, though, while the crime of ‘forced marriage’ was not pleaded in Taylor, the Trial Chamber considered that ‘marriage’ was not helpful to describe the forced conjugal associations in Sierra Leone and (although there was in fact no charge of forced marriage brought by the prosecution) found that it should be considered a ‘conjugal form of enslavement’.759 Accordingly, there will certainly be significant overlap between the crimes of forced marriage and sexual slavery. 8.3.4 Mens Rea Both the scsl and the icc have accepted that the mens rea will be established where the perpetrator ‘intended’ to exercise the act of sexual slavery.760 However, the two bodies have diverged slightly on the indirect intent standard. On the one hand, the scsl has accepted that it will suffice if the perpetrator ‘acted in the reasonable knowledge that this was likely to occur’.761 The eac has reached the same conclusion.762 On the other hand, the icc Pre-Trial Chamber in Katanga stated that the crime ‘encompasses, first and foremost, cases of dolus directus of the first and second degree’763 and that it would suffice if the perpetrator knew that sexual slavery would occur as a result of the acts.764

755 (icc) Katanga – Trial, above n 25, [978]. 756 See Section 8.7. 757 For further discussion of this issue, see Iris Haenen, ‘The Parameters of Enslavement and the Act of Forced Marriage’ (2013) 13(4) International Criminal Law Review 895. 758 See Section 8.7. 759 (scsl) Taylor – Trial, above n 79, [426]–[427], [429]–[430]. 760 (icc) Katanga – Confirmation, above n 26, [433], [435]; (scsl) afrc – Trial, above n 81, [708]; ruf – Trial, above n 66, [158]; and Taylor – Trial, above n 79, [418]. 761 (scsl) afrc – Trial, above n 81, [708]; ruf – Trial, above n 66, [158]; Taylor – Trial, above n 79, [418]. 762 (eac) Habré – Trial, above n 719, [1506]. 763 (icc) Katanga – Confirmation, above n 26, [433]. 764 (icc) Katanga – Confirmation, above n 26, [435].

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The Trial Chamber in Katanga later held that the perpetrator must have been ‘aware’ that they were exerting such powers and have ‘meant to’ engage in the conduct or ‘aware that such a consequence would occur in the course of ordinary events’.765 Ultimately, the better view is that, in respect the slavery element, for the same reasons as set out above in relation to enslavement, the person must mean to exercise any or all the powers attaching to the right of ownership over one or more persons. In respect of the sexual element, the element is a ­material element of consequence. As a result, the perpetrator must mean to cause such person or persons to engage in one or more acts of a sexual nature or was aware that such a consequence would occur in the ordinary course of events. 8.3.5 Cumulative Convictions The icty Appeals Chamber in Kunarac confirmed that a conviction may stand for both ‘rape’ and ‘enslavement’ (i.e. sexual slavery) over the same set of facts.766 In the Appeals Chamber’s view, the fact that a defendant ‘also forced their captives to endure rape as an especially odious form of their domestic servitude does not merge the two convictions’ and that it is a ‘distinct offence from rape’ even if based on sexual exploitation. 8.4 Enforced Prostitution Article 7(1)(g) of the icc Statute proscribes ‘enforced prostitution’ as a crime against humanity when the following elements are committed as part of a widespread or systematic attack against a civilian population: 1.

The perpetrator caused one or more persons to engage in one or more acts of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent.767 [Mental element: The perpetrator:768 a. meant to perform one or more act or omission; and

765 (icc) Katanga – Trial, above n 25, [981]. 766 (icty) Kunarac – Appeal, above n 281, [186] 767 icc Elements of Crimes, Art 7(1)(g)-3, [1]. 768 No mental element is specified meaning that Article 30 of the icc Statute provides that ‘intent and knowledge’ apply as discussed above at Section 1.2.3.

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b.

2.

either: (i) meant, by such act(s) or omission(s), to cause one or more persons to engage in one or more acts of a sexual nature by force, or by threat of force or coercion; or (ii) was aware that such a consequence would occur in the ordinary course of events as a result of the act(s) or omission(s).] The perpetrator or another person obtained or expected to obtain pecuniary or other advantage in exchange for or in connection with the acts of a sexual nature.769 [Mental element: The perpetrator was aware that the perpetrator or­ another person obtained or expected to obtain pecuniary or other ­advantage in exchange for or in connection with the acts of a sexual nature.770]

The provision originated in international humanitarian law, with Article 27 of the Fourth Geneva Convention, which provides that ‘[w]omen shall be ­especially protected against any attack of their honour, in particular against rape, enforced prostitution, or any form of indecent assault’.771 Schabas notes that the commentary to the Convention states that the provision was aimed at certain practices during World War 2 where ‘[i]n areas where troops were ­stationed, or through which they passed, thousands of women were made to ­enter brothels against their will or were contaminated with venereal diseases’.772 It is presently not clear whether this crime is a crime under customary international law. While a credible argument may be made that it is given its relatively uncontroversial status at the Rome Conference and its similarity to the crime of sexual slavery, the better view is that its status in this regard remains to be seen. 8.5 Forced Pregnancy Article 7(1)(g) of the icc Statute proscribes ‘forced pregnancy’ as a crime against humanity when the following elements are committed as part of a widespread or systematic attack against a civilian population: 769 icc Elements of Crimes, Art 7(1)(g)-3, [1]. 770 No mental element is specified meaning that Article 30 of the icc Statute provides that ‘intent and knowledge’ apply as discussed above at Section 1.2.3. 771 Schabas, above n 228, 173. 772 Schabas, above n 228, 73, citing Jean Pictet et al. (eds), Commentary, iv, Geneva Convention Relative to the Protection of Civilian Persons in Time of War (icrc: Geneva, 1958) 205.

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The perpetrator confined one or more women forcibly made pregnant.773 [Mental element: The perpetrator did so with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law.774]

At the Rome Conference, forced pregnancy was the most controversial aspect of the definition of the sexual offences, due to the opposition from particularly the Middle Eastern States and the Holy See concerned such a crime condoning abortion.775 Prior to the icc Statute, the term ‘forced pregnancy’ was used in the Vienna Declaration and Programme of Action,776 the 1995 Beijing Declaration777 and the scsl Statute (although it was never prosecuted).778 As a result, it is not clear whether this crime constitutes a crime against humanity under customary international law. 8.6 Enforced Sterilization Article 7(1)(g) of the icc Statute proscribes ‘enforced sterilization’ as a crime against humanity when the following elements are committed as part of a widespread or systematic attack against a civilian population: 1.

The perpetrator deprived one or more persons of biological reproductive capacity.779

773 icc Elements of Crimes, Art 7(1)(g)-4, [1]. 774 The Elements of Crimes specifically ‘otherwise provide’ the mens rea element for this actus reus element and so the ordinary default rules discussed above at Section 1.2.3 do not apply. 775 Schabas, above n 228, 173, citing un Doc. A/CONF.183/C.1/SR.4 (18 June 1998), [63] (Libya), [66] (United Arab Emirates), [70] (Bahrain); un Doc. A/CONF.183/C.1/SR.5 (21 November 1998), [10] (Kuwait), [16] (Lebanon), [21] (Saudi Arabia), [33] (Egypt), [72] (Iran); and Cate Steains, ‘Gender Issues’ in Roy Lee (ed), International Criminal Court: The Making of the Rome Statute – Issues, Negotiations, Results (Kluwer Law International: The Hague, 1999) 365–369. 776 Vienna Declaration and Programme of Action, un Doc. A/CONF.157/23 (12 July 1993), Part ii, [38]. 777 Beijing Declaration and Platform for Action, un Doc. A/CONF.177/20/Add.1 (15 September 1995), [11], [114], [132], [135] and [142]. 778 Schabas, above n 228, 174. 779 icc Elements of Crimes, Art 7(1)(g)-5, [1]. The footnote in the Elements of Crimes reads: ‘The deprivation is not intended to include birth-control measures which have a nonpermanent effect in practice.’

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[Mental element: The perpetrator:780 a. meant to perform one or more act or omission; and b. either: (i) meant, by such act(s) or omission(s), to deprive one or more persons of biological reproductive capacity; or (ii) was aware that such a consequence would occur in the ordinary course of events as a result of the act(s) or omission(s).] The conduct was neither justified by the medical or hospital treatment of the person or persons concerned nor carried out with their genuine consent.781 [Mental element: The perpetrator was aware that the conduct was neither justified by the medical or hospital treatment of the person or persons concerned nor carried out with their genuine consent.782]

As is well known, this provision may well have its origins in the way in which Nazi doctors experimented on Jewish victims in Auschwitz and Ravensbruck. As Schabas notes, however, such experiments were not ‘sexual’ and as such the inclusion of the provision within the sexual offences may not be ­appropriate.783 Ultimately, it is unclear whether such a crime is a crime against humanity under customary international law. 8.7 Other Sexual Violence Under customary law, ‘sexual violence’ may be defined as the following acts when committed as part of a widespread or systematic attack against a civilian population: 1. 2.

The perpetrator commits an act of a sexual nature under circumstances which are coercive.784 The act is of the same gravity as the other underlying crimes.785

780 No mental element is specified meaning that Article 30 of the icc Statute provides that ‘intent and knowledge’ apply as discussed above at Section 1.2.3. 781 icc Elements of Crimes, Art 7(1)(g)-5, [2]. The footnote in the Elements of Crimes reads: ‘It is understood that “genuine consent” does not include consent obtained through deception.’ 782 No mental element is specified meaning that Article 30 of the icc Statute provides that ‘intent and knowledge’ apply as discussed above at Section 1.2.3. 783 Schabas, above n 228, 174. 784 (ictr) Akayesu – Trial, above n 66, [688], followed in (icty) Kvočka – Trial, above n 70, [180]; and (Bangladesh) Sayeedi – Judgment, above n 669, [191]. 785 The ad hoc Tribunals have not stated this to be an element of the crime. Nonetheless, given that the crime is dealt with under the context of ‘other inhumane acts’, this element is necessarily present (see below, Section 12).

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The perpetrator intended to commit the act or acted in the reasonable knowledge that this was likely to occur.786

Article 7(1)(g) of the icc Statute proscribes ‘other sexual violence’ as a crime against humanity when the following elements are committed as part of a widespread or systematic attack against a civilian population 1.

2. 3.

The perpetrator committed an act of a sexual nature against one or more persons or caused such person or persons to engage in an act of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent.787 [Mental element: The perpetrator:788 a. meant to perform one or more act or omission; and b. either: (i) meant, by such act(s) or omission(s), to commit an act of a sexual nature against one or more persons or cause such person or persons to engage in an act of a sexual nature by force or by threat or force or coercion; or (ii) was aware that such a consequence would occur in the ordinary course of events as a result of the act(s) or omission(s).] Such conduct was of a gravity comparable to the other offences in [A] rticle 7, paragraph 1 (g), of the Statute.789 [Mental element:] The perpetrator was aware of the factual c­ ircumstances that established the gravity of the conduct.790

786 (icc) Katanga – Confirmation, above n 26, [433], [435]; (scsl) afrc – Trial, above n 81, [708]; ruf – Trial, above n 66, [158]; and Taylor – Trial, above n 79, [418]. See also ­discussion below in relation to ‘other inhumane acts’. 787 (icc) Elements of Crimes, Art 7(1)(g)-6, [1], cited in Kenya – Authorisation, above n 358, [151]. 788 See above, Section 1.2.3. 789 (icc) Elements of Crimes, Art 7(1)(g)-6, [2], cited in Kenya – Authorisation, above n 358, [151]. 790 (icc) Elements of Crimes, Art 7(1)(g)-6, [3], cited in Kenya – Authorisation, above n 358, [151]. The Elements of Crimes specifically ‘otherwise provide’ the mens rea element for this actus reus element and so the ordinary default rules discussed above at Section 1.2.3 do not apply.

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8.7.1 Introduction The residual crime of ‘any other form of sexual violence’ was first set out in Article 7(1)(g) of the icc Statute. It was also included in the Statute of the scsl, although without the accompanying Elements of Crimes. Nonetheless, the other Tribunals have also dealt with the crime, albeit as a species of ‘other inhumane acts’. Accordingly, the crime is properly considered to be proscribed as a crime against humanity under customary international law at least since the ad hoc Tribunals in the 1990s. 8.7.2 Act of a Sexual Nature under Coercive Circumstances Under customary international law, the crime of ‘sexual violence’ requires that the perpetrator commit an act of a sexual nature under circumstances which are coercive.791 While the ad hoc Tribunals have not explicitly set out the requirement that the act must be of the same gravity as the other underlying crimes, this requirement is implicit given that the Tribunals have considered the crime as a species ‘other inhumane acts’. The crime of ‘other form[s] of sexual violence’ is largely the same under Article 7(1)(g) of the icc Statute. The icc Elements of Crimes states that the offence is committed where the perpetrator commits ‘an act of a sexual nature’ in one of the enumerated coercive circumstances and that the act is of comparable gravity to the other offences in Article 7(1)(g). Insofar as the requirement of force or the threat of force or coercion, the principles will largely be similar to those discussed in the context of rape. The crime of ‘other forms of sexual violence’ is a ‘residual category of sexual crimes’ and ‘may encompass an unlimited number of acts.’792 In assessing whether an act falls within the ambit of the crime, icc Pre-Trial Chamber ii in Muthaura held that ‘not every act of violence which targets parts of the body commonly associated with sexuality should be considered an act of sexual violence’.793 In the Chamber’s view, ‘the determination of whether an act is of a sexual nature is inherently a question of fact’.794 The precise boundaries of the crime therefore must depend on a ­case-by-case analysis. The icty Trial Chamber in Kvočka found that ‘sexual 791 (ictr) Akayesu – Trial, above n 66, [688], followed in (icty) Kvočka – Trial, above n 70, [180]; and (Bangladesh) Sayeedi – Judgment, above n 669, [191]. 792 (scsl) afrc – Trial, above n 81, [720] (referring to the crime of ‘other forms of sexual violence’ under Article 2(g) of the scsl Statute. 793 (icc) Muthaura – Confirmation Decision, above n 410, [265]. 794 (icc) Muthaura – Confirmation Decision, above n 410, [265].

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violence is broader than rape and includes such crimes as sexual slavery or molestation’.795 Similarly, the ictr Trial Chamber in Akayesu held that ‘sexual violence’ need not involve penetration or even physical conduct.796 The Chamber found that it included forced undressing and public display of women as well as forcing a woman to perform exercises naked in front of a crowd.797 Further, sexually violating dead bodies may also suffice.798 In Milutinović, the icty Trial Chamber made a number of findings of relevance to ‘sexual violence’. In finding that the act of ‘sexual assault’ constituted an ‘other inhumane act’ the Tribunal required that the act be of a sexual nature and that it ‘infringes the victim’s physical integrity or amounts to an outrage to the victim’s personal dignity’.799 The Chamber also found that it would be ‘inappropriate to place emphasis on the sexual gratification of the perpetrator’ because, in the context of an armed conflict, ‘the sexual humiliation and degradation of the victim is a more pertinent factor’.800 By contrast, the icc Pre-Trial Chamber in Muthaura considered the allegation that forcible circumcision and penile amputation in the Kenyan postelection violence constituted a form of ‘other sexual violence’. The Prosecutor argued that these were not just attacks on men’s sexual organs, but attacks on their identities as men within their society and were designed to destroy their masculinity.801 The Chamber rejected this argument on the evidence, finding that the acts were rather ‘motivated by ethnic prejudice and intended to demonstrate cultural superiority of one tribe over the other’.802 More difficult is the question of whether ‘forced marriage’ is properly characterised as ‘sexual violence’. On the one hand, icc Pre-Trial Chamber i in Katanga considered that ‘forced marriages, domestic servitude, and other forced labour involving compulsory sexual activity’ would satisfy the ‘sexual element’ 795 (icty) Kvočka – Trial, above n 70, [180], followed in afrc – Rule 98 Decision, above n 150, [111]. 796 (ictr) Akayesu – Trial, above n 66, [688] (see also [598] and [690]), followed in (icty) Milutinović – Trial, above n 350, [199]; and (Bangladesh) Sayeedi – Judgment, above n 669, [191]. 797 (ictr) Akayesu – Trial, above n 66, [688], [690] and [697]. 798 (ictr) Prosecutor v Niyitegeka (Trial Chamber Judgment), Case No ICTR-96-14-T (16 May 2003) (‘Niyitegeka – Trial’), [465]. See also conduct described in Kajelijeli – Trial, above n 160, [677]. 799 (icty) Milutinović – Trial, above n 350, [201]. 800 (icty) Milutinović – Trial, above n 350, [199]. 801 (icc) Muthaura – Confirmation Decision, above n 410, [264]. 802 (icc) Muthaura – Confirmation Decision, above n 410, [266].

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of sexual slavery.803 The same conclusion was reached by the icty Trial Chamber in Kvočka.804 On the other hand, the scsl Appeals Chamber – in the course of holding that the crime is not subsumed within the crime of ‘sexual slavery’ – has suggested that forced marriage is ‘not predominantly a sexual crime’.805 While the Chamber accepted that ‘forced marriage’ was of a similar gravity to other ­enumerated crimes,806 the Chamber held that while it ‘shares certain elements with sexual slavery such as non-consensual sex and deprivation of liberty there are also distinguishing factors’, all of which were non-sexual factors. These include forcing the façade of marriage, performing household tasks and so on. The better view appears to be that the scsl’s reasoning should be limited to the point being decided – namely, whether the crime was subsumed within sexual slavery or not. It is difficult to see how forced marriage would not be of a sexual nature simply because the factors distinguishing it from sexual slavery are non-sexual. A forced marriage in the context of an armed conflict would seem to inherently include acts of a sexual nature, albeit including many nonsexual elements. Whether the crime is classified as ‘other sexual violence’ or ‘other inhumane acts’, a further question involves the definition of the crime. According to the scsl Chamber, the crime of ‘forced marriage’ will be committed where the perpetrator, through his words or conduct, or those of someone for whose actions he is responsible, compels a person by force, threat of force, or coercion to serve as a conjugal partner resulting in severe suffering, or ­physical or ­psychological

803 (icc) Katanga – Confirmation, above n 26, [431]. In respect of ‘rape camps’, the Chamber pointed to: (icty) Gagovic – Indictment, above n 755, [1.5], [4.8]. See also the un Economic and Social Council, Final Report of the Special Rapporteur of the Working Group on Contemporary Forms of Slavery, above n 732, [30]; and un Economic and Social Council, Report of the Special Rapporteur on Violence against Women, above n 732, [42]. 804 (icty) Kvočka – Trial, above n 70, [541]. 805 (scsl) afrc – Appeal, above n 719, [195]. 806 (scsl) afrc – Appeal, above n 719, [200]. In the words of a prosecution expert, cited by the Appeals Chamber: ‘Bush wives’ were constantly sexually abused, physically battered during and after pregnancies, and psychologically terrorised by their husbands, who thereby demonstrated their control over their wives. Physically, most of these girls experienced miscarriages, and received no medical attention at the time … Some now experience diverse medical problems such as severe stomach pains … some have had their uterus removed; menstrual cycles are irregular; some were infected with sexually transmitted diseases and others tested hiv positive”: see Separate Concurring Opinion of Judge Sebutinde, [13], [15], cited in afrc – Appeal, [192].

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injury to the victim.807 As with sexual slavery, however, the ­prosecution need not establish that the victim did not consent to the marriage.808 In the eccc, it was at one stage suggested that a slightly different definition of forced marriage be adopted to match the particular context of Cambodia. In Duch, the Co-Lawyers for the Civil Parties filed an application requesting that the Co-Prosecutors investigate forced marriage in Cambodia during the Khmer Rouge.809 A distinction was sought to be drawn between the forced marriages in Sierra Leone – which were acts of mistreatment directed at individual women – from the forced marriages in Cambodia – which were a state-directed means of social control directed at couples.810 Unlike in Sierra Leone, ‘the Khmer Rouge used forced marriages to weaken the traditional family structure and guarantee the loyalty of the people of the Regime[ b]y forcing people into random marriages […]. The Khmer Rouge enforced strict limits on how often husbands and wives could meet; their relationship was under permanent observation by “the Party”’. It was alleged that, in the ‘unique’ context of the eccc, the crime of forced marriage contains the following elements:811 1.

2.

3.

the perpetrator conferred a status of marriage [on one or more persons], through words or conduct by force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against the victims, or by taking advantage of a coercive environment or such person’s incapacity to give consent; the perpetrator cause such person to engage in conduct similar to that arising out of a marriage relationship (including prolonged association, acts of a sexual nature, child bearing and the rendering of other conjugal duties); and the perpetrator caused the loss of virginity and disqualified the marriage to a freely chosen person and hindered the person from separation because he or she had to promise to stay together forever.

807 (scsl) afrc – Appeal, above n 719, [196]. 808 (scsl) ruf – Appeal, above n 323, [734]. 809 (eccc) Civil Parties’ Co-Lawyers’ Request for Supplementary Preliminary Investigations, Case File No. 001/18-07-2007-ECCC/TC (9 February 2009) (‘Duch – Forced Marriage Submission’). 810 (eccc) Duch – Forced Marriage Submission, above n 810, citing Neha Jain, ‘Forced Marriage as a Crime Against Humanity: Problems of Definition and Prosecution’ (2008) 6(5) Journal of International Criminal Justice 1013, 1027. 811 (eccc) Duch – Forced Marriage Submission, above n 810, 28, 30.

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Ultimately, neither the courts in Duch nor Case 001-002 addressed the issue of forced marriage in any detail, but the matter may be addressed in Case 002-002.812 8.7.3 Mens Rea In respect of the mens rea in the icc, ‘intent and knowledge’ will be required unless provided otherwise. The only section that appears to provide otherwise is Element 3 of the Elements of Crimes, which states that ‘[t]he perpetrator was aware of the factual circumstances that established the gravity of the conduct’. This appears to require that the perpetrator be aware only of those facts which render the act to be of a similar gravity without having to conclude, on the basis of a legal assessment, that they were of a certain gravity.813 9 Persecution Under customary international law, the offence of ‘persecution’ as a crime against humanity requires the prosecution to establish that the following elements were committed as part of a widespread or systematic attack against a civilian population:814 1.

The perpetrator commits an act or omission which: a. discriminates in fact; and

812 (eccc) Case 002/01 – Trial, above n 66, [128]–[130]. 813 See similar reasoning in (icc) Lubanga – Confirmation, above n 15, [360]. 814 (icty) Tadić – Trial, above n 79, [715]; Kupreškić – Trial, above n 34, [621]; and Kordić – Trial, above n 70, [189], [195], consolidated in Krnojelac – Trial, above n 70, [431], [434] (affirmed in Krnojelac – Appeal, above n 325, [185]), followed in Prosecutor v Vasiljević (­Appeals Chamber Judgment), Case No IT-98-32-A (25 February 2004) (‘Vasiljević – ­Appeal’), [113]; Blaškić – Appeal, above n 117, [131]; Kordić – Appeal, above n 66, [101]; Stakić – Appeal, above n 144, [327]–[328]; Kvočka – Appeal, above n 66, [320]; Prosecutor v Simić et al. (Appeals Chamber Judgment), Case No IT-95-9-A (28 November 2006) (‘Simić – Appeal’), [177] (actus reus only); (ictr) Prosecutor v Nahimana (Appeals Chamber Judgment), Case No ICTR-99-52-A (28 November 2007) (‘Nahimana – Appeal’), [985]; Bagosora – Trial, above n 71, [2208]–[2209]; (eccc) Duch – Trial, above n 66, [376]–[379] (affirmed in Duch – Appeal, above n 281, [226]); Case 002/01 – Trial, above n 66, [427]; see also (BiH) Rašević and Todović – First Instance, above n 66, 100; and (spet) Marques – Judgment, above n 34, [662]–[668], followed in Da Costa – Judgment, above n 182, [73] (adopting the definition in the icc Elements of Crimes).

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b. [seriously]815 denies or infringes upon a fundamental right laid down in international customary or treaty law; and The conduct was carried out deliberately with the intention to discriminate on one of the listed grounds, specifically race, religion or politics.

Article 7(1)(h) of the icc Statute proscribes as a crime against humanity ‘[p] ersecution 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’. The Elements of Crimes are largely in line with this: 1.

2.

3.

The perpetrator severely deprived, contrary to international law,816 one or more persons of fundamental rights. [Mental element: The perpetrator:817 a. meant to perform one or more act or omission; and b. either: (i) meant, by such act(s) or omission(s), to severely deprive one or more persons of fundamental rights; or (ii) was aware that such a consequence would occur in the ordinary course of events as a result of the act(s) or omission(s).] The perpetrator targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such. [Mental element: The perpetrator meant to target such person or persons by reason of the identity of a group or collectivity or target the group or collectivity as such.818] Such targeting was based on political, racial, national, ethnic, cultural, religious, gender as defined in article 7, paragraph 3, of the Statute, or other grounds that are universally recognized as impermissible under international law. [Mental element: The perpetrator was aware that such targeting was based on political, racial, national, ethnic, cultural, religious gender as

815 While this word is not in the tests stated by the ad hoc Tribunals, for reasons discussed below, it is properly understood as being present. 816 Footnote to the Elements of Crimes reads: ‘This requirement is without prejudice to paragraph 6 of the General Introduction to the Elements of Crimes.’ 817 No mental element is specified meaning that Article 30 of the icc Statute provides that ‘intent and knowledge’ apply as discussed above at Section 1.2.3. 818 Ibid.

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defined in article 7, paragraph 3, of the Statute, or other grounds that are universally recognized as impermissible under international law.819] The conduct was committed in connection with any act referred to in article 7, paragraph 1, of the Statute or any crime within the jurisdiction of the Court.820 [Mental element: The perpetrator was aware that the conduct was committed in connection with any act referred to in article 7, paragraph 1, of the Statute or any crime within the jurisdiction of the Court.821]

9.1 Introduction Persecution was first codified as a crime against humanity at Nuremberg.822 Despite this, the eccc Supreme Court Chamber traces the crime of persecution back to Grotius’s writing during the period of the Reformation and the rise of various Christian sects that were accompanied by waves of persecution.823 In 1625, Grotius wrote that it was ‘unjust to persecute with punishments those who receive the law of Christ as true, but entertain doubts or errors on some external points, taking them in an ambiguous meaning or different from the ancient Christians in their explanation of them.’824 This principle of ­non-persecution was extended to non-Christians also: ‘Christ being the author of a new law, will have no one brought to embrace his doctrine by the fear of human punishments.’825 Prior to the 20th Century, persecution under customary international law was ‘viewed in the context of just reasons for a country waging war against ­another country, rather than as an international crime entailing ­individual criminal liability’.826 Further, states often protested other states’ acts of 819 Ibid. 820 Footnote to the Elements of Crimes reads: ‘It is understood that no additional mental element is necessary for this element other than that inherent in element 6.’ 821 No mental element is specified meaning that Article 30 of the icc Statute provides that ‘intent and knowledge’ apply as discussed above at Section 1.2.3. 822 imt Charter, Art 6(c). See also history traced in Fausto Pocar, ‘Prosecution as a Crime Under International Criminal Law’ (2008) 2 Journal of National Security Law & Policy 355, 360. 823 (eccc) Duch – Appeal, above n 281, [216]ff. 824 Hugo Grotius (ed), De Jure Belli ac Pacis Libri Tres (first published 1646), transl. William Whewell (Cambridge University Press: Cambridge 1925), Book ii, Ch 20, para L, cited in (eccc) Duch – Appeal, above n 281, [216]. 825 Grotius, above n 825, Book ii, Ch 20, para xlviii, cited in (eccc) Duch – Appeal, above n 281, [216]. 826 (eccc) Duch – Appeal, above n 281, [218].

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­ ersecution, especially when the victims belonged to a minority group that p shared a bond with the protesting state.827 States often signed bilateral treaties to regulate the treatment of minorities828 and some cases declared war to protect minority groups.829 After World War 1, the Commission of Fifteen Members, established in 1919 by the Preliminary Peace Conference, first suggested persecution in the context of criminal liability. The Commission listed offences against, inter alia, the ‘laws of humanity’ as including ‘the massacres of Armenians by the Turks and the massacres, persecutions, and expulsions of the Greek-speaking population of Turkey, both European and Asiatic.’830 The crime of persecution as a crime against humanity was then realised after World War 2, being codified under the imt Charter,831 imtfe Charter,832 Control Council Law No 10833 and the 1950 Nuremberg Principles.834 Several defendants were convicted for persecutions at Nuremberg, including Defendant Rothaug in the Justice Case being convicted for persecution for depriving Poles and Jews of their rights in civil and penal cases.835

827 (eccc) Duch – Appeal, above n 281, [217]. 828 See, for example, Treaty of Friendship, Commerce and Navigation, France-Korea, signed 4 June 1886, Parry Consolidated Treaty Series, Volume 168, 49, Art 4(3) (ensuring that in the future, French citizens will have ‘la liberté de pratiquer leur religion’). 829 See, for example, the Bohemian Revolt of 1618 mushroomed into a larger war when neighbouring Protestant Princes sent military forces to aid their religious compatriots in Bohemia, who feared religious persecution from the Catholic Holy Roman Empire. This conflict eventually became the Thirty Years’ War, which ended with the signing of the treaties of the 1648 Peace of Westphalia. These treaties contain provisions prohibiting religious persecution (see the Treaty of Peace, Sweden-Holy Roman Empire, signed 24 October 1648, Parry Consolidated Treaty Series, Volume 1, 209, Arts xxviii–xxxiv, cited in (eccc) Duch – Appeal, above n 281, [217]). 830 Egon Schwelb, ‘Crimes Against Humanity’ (1946) 23 British Year Book of International Law 178, 181. 831 imt Charter, Art 6(c). 832 imtfe Charter, Art 5(c) (nb: the imtfe Charter did not include religion as a ground for persecution). 833 Control Council Law No 10, Art ii(1)(c). 834 1950 Nuremberg Principles, Principle vi(c). 835 (Nuremberg) The Justice Case, above n 11, vol iii, 23–25, 1144–1156 (conviction for racial persecution) and 1110–1114, 1118 (conviction on the basis of deprivation of rights in civil and penal cases). See further the examples cited by the (eccc) Duch – Appeal, above n 281, [220]–[222].

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After Nuremberg, the crime of persecution was applied to defendants by the Supreme National Tribunal of Poland,836 the Israeli Supreme Court,837 the French Court of Cassation838 and the Zagreb District Court.839 The eccc Supreme Court Chamber held the crime of persecution existed under customary international law at least by 1975.840 The crime of persecution was first considered by the ad hoc Tribunals in the Tadić Trial Judgment. As the Chamber acknowledged, while the crime of persecution had been included in the Nuremberg Charter, it had never been comprehensively defined either in international criminal law or in the world’s major criminal justice systems.841 The Chamber held that the crime required that there be a ‘persecutory act or omission, and that act or omission must be based on one of the listed grounds [of discrimination]’. The elements have since been developed by the Tribunals and have now been supplemented by the icc Statute. The definition embraced by the ad hoc Tribunals is that persecution is ‘the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity’.842 What distinguishes ‘persecution’ from other crimes against humanity is that the underlying act is committed on discriminatory grounds.843 As held by the icty 836 (Poland) Supreme National Tribunal of Poland, Law Reports of Trials of War Criminals Selected and Prepared by the United Nations War Crimes Commission (New York, 1977), Vol. xiii, p. 70, Case No. 74. (‘Greiser Case’), 2–4, 105. 837 (Israel) Eichmann Case, above n 399, 277–278. 838 (France) Prosecutor v Klaus Barbie, Cour de cassation (chambre criminelle), 20 decembre 1985, Bull. No. 407 translated in Fédération Nationale des Désportés et Internés Résistants et Patriotes and Others v Barbie (1988) 78 ilr 124 (‘Barbie’), 139. 839 (Croatia) Zagreb District Court, Case No K-1/84-61 (14 May 1986), 23 (cited in (icty) Kupreškić – Trial, above n 34, [602]). 840 (eccc) Duch – Appeal, above n 281, [225]. 841 (icty) Tadić – Trial, above n 79, [694]. 842 (icty) Tadić – Trial, above n 79, [715]; Kupreškić – Trial, above n 34, [621]; and Kordić – Trial, above n 70, [189], [195], consolidated in Krnojelac – Trial, above n 70, [431], [434] (affirmed in Krnojelac – Appeal, above n 325, [185]), followed in Vasiljević – Appeal, above n 815, [113]; Blaškić – Appeal, above n 117, [131]; Kordić – Appeal, above n 66, [101]; Stakić – ­Appeal, above n 144, [327]–[328]; Kvočka – Appeal, above n 66, [320]; Simić – ­Appeal, above n 815, [177]; (ictr) Nahimana – Appeal, above n 815, [985]; Bagosora – Trial, above n 71, [2208]– [2209]; (eccc) Duch – Trial, above n 66, [376]–[379] (affirmed in Duch – A ­ ppeal, above n 281, [226]); and (BiH) Rašević and Todović – First Instance, above n 66, 100. 843 (icty) Kupreškić – Trial, above n 34, [607], followed in Martić – Trial, above n 69, [115]; and Perišić – Trial, above n 100, [121]; Kordić – Trial, above n 70, [217]; Blaškić́ – Trial, above n 67, [235]; Vasiljević – Trial, above n 70, [248]; Simić – Trial, above n 350, [51]; and Brđanin – Trial, above n 69, [996].

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Trial Chamber in Blaškić, the acts of persecution are ‘rendered serious not by their apparent cruelty but by the discrimination they seek to instil within humankind.’844 As Schabas notes, the crime of persecution ‘contemplates racist or other discriminatory acts and policies of a State that may in fact be authorized by its legal regime.’845 For this reason, the Trial Chamber in Kupreškić held that persecution is of the same genus as genocide:846 [the deprivation of] the fundamental rights to life, liberty and basic humanity enjoyed by members of wider society. The deprivation of these rights can be said to have as its aim the death and removal of those persons from the society in which they live along-side the perpetrators, or eventually from humanity itself.847 A similar view has been expressed by the eccc848 and the passage in Kupreškić was referred to with apparent approval by the icj in the Bosnian Genocide Case.849 Accordingly, it is this history as well as the conceptual connection of the crime to genocide that must be kept in mind when the difficult questions as to the scope of the crime are considered below – for instance, in relation to property crimes.850 844 (icty) Blaškić – Trial, above n 67, [227], cited in Blaškić – Appeal, above n 117, [136], [143]. As discussed below, however, this decision was revised significantly in Blaškić – Appeal, [138] on the basis that the acts must reach a requisite level of gravity – mere discrimination is insufficient. This does not seem to change the point that the central wrong in persecution is the discriminatory element. See also the adoption of this point in (eccc) Duch – Appeal, above n 281, [259]. See also Pocar, above n 823, 360. 845 Schabas, above n 228, 175. 846 (icty) Kupreškić – Trial, above n 34, [634]–[636]; see also [751] (where persecution is ­described as being ‘one step away from genocide’); and Mettraux, above n 159, 336 (Persecution may, therefore, be a first step in a genocidal enterprise and it may serve from a prosecutorial point of view as a gap-filling criminal prohibition between other crimes against humanity which are not otherwise motivated by the persecutory agenda, and genocide). 847 See also (ictr) Prosecutor v Georges Ruggiu (Judgment and Sentence), Trial Chamber i, Case No ICTR-97-32-I (1 June 2000) (‘Ruggiu – Trial’), [22]. 848 (eccc) Duch – Trial, above n 66, [374]. 849 (icj) Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro) (Judgment) [2007] icj Rep 2, [188]. 850 See, for example, the same logic in (icty) Kordić – Trial, above n 70, [205]. For more on the link between genocide and persecution as a crime against humanity, see: Caro-

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The definition of the ad hoc Tribunals is largely in line with that at the icc. The one key difference is that, in the icc, the crime must be connected to another crime enumerated in the Statute.851 In this sense, the crime of persecution is a type of aggravated version of the other underlying crimes. The same requirement is also present in the Statue of the Court of Bosnia Herzegovina852 and the spet.853 The important difficulty with this definition may be that it would exclude situations such as the persecution of Jews and other groups in the 1930s before the Second World War and exterminations began (e.g. the stripping of voting rights from Jews in 1935).854 While some such circumstances may be covered by the crime of apartheid, that crime is limited to racist oppression; it does not include broader forms of discrimination. This question is discussed further below.855 9.2 ‘Discriminate in fact’ Under customary international law, the first element of the actus reus for persecution is that the perpetrator commits an act or omission which discriminates in fact.856 In the icc, the Elements of Crimes set out the equivalent provision as the second element of the actus reus, namely that the perpetrator ‘targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such’. This may usefully be considered as comprising two aspects. First, the act in question must discriminate in fact, that is, it must result in discriminatory consequences. Secondly, the act must discriminate by targeting a victim because of their membership of a prescribed group. These two aspects are considered in turn. line Fournet and Clotilde Pégorier, ‘“Only one step away from genocide” – The crime of ­persecution in international criminal law’ (2010) 10(5) International Criminal Law Review 713. 851 (eccc) Duch – Trial, above n 66, [261]; and Case 002/01 – Trial, above n 66, [432]–[433]. 852 (BiH) Rašević and Todović – First Instance, above n 66, 100. 853 See, Chapter 5, Section 3.1.3(b); and (spet) Mesquita – Judgment, above n 511, [72]–[80]. 854 See discussion in Pocar, above n 823, 359ff. 855 See Section 9.4. 856 (icty) Tadić – Trial, above n 79, [715]; Kupreškić – Trial, above n 34, [621]; and Kordić – Trial, above n 70, [189], [195], consolidated in Krnojelac – Trial, above n 70, [431], [434] (affirmed in Krnojelac – Appeal, above n 325, [185]), followed in Vasiljević – Appeal, above n 815, [113]; Blaškić – Appeal, above n 117, [131], Kordić – Appeal, above n 66, [101], Stakić – A ­ ppeal, above n 144, [327]–[328]; Kvočka – Appeal, above n 66, [320]; Simić – Appeal, above n 815, [177]; (ictr) Nahimana – Appeal, above n 815, [985]; Bagosora – Trial, above n 71, [2208]–[2209]; (eccc) Duch – Trial, above n 66, [376]–[379] (affirmed in Duch – A ­ ppeal, above n 281, [226]); and (BiH) Rašević and Todović – First Instance, above n 66, 100.

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9.2.1 Discriminate ‘in fact’ In respect of the first, an act will discriminate in fact when a victim is targeted ‘on the basis of religious, political or racial considerations’ or ‘because of his or her membership in a group defined by the perpetrator on religious, political or racial grounds’.857 That is, the requirement that the perpetrator ‘discriminate in fact’ requires not only that the person intend to target that group, but that the act or omission have ‘discriminatory consequences’.858 The icc requires similarly that the perpetrator target the victim(s) ‘by reason of the identity of a group or collectivity or targeted the group or collectivity as such’. Provided that the conduct has discriminatory consequences, it is immaterial that the conduct also affects those outside the persecuted group.859 This element has caused some disagreement between the Tribunals. While some Chambers have viewed the requirement of ‘discriminatory ­consequences’ as being somewhat controversial, this dispute is better looked at as centring on the proper application of the ‘discriminatory consequences’ requirement.860 The key controversy in this regard has been whether the victim must in fact be a member of the group intended to be persecuted. For example, can a Serb mistaken for a Muslim still be the victim of the crime of persecution? On the one hand, the icty Appeals Chamber in Krnojelac found that this can constitute ‘discrimination in fact’ as it discriminates in fact ‘vis-à-vis the 857 (icty) Naletilić – Trial, above n 393, [636], referring to Kvočka – Trial, above n 70, [195] (‘A discriminatory basis exists where a person is targeted on the basis of religious, political or racial considerations, i.e. for his or her membership in a certain victim group that is targeted by the perpetrator group’), followed in Blagojević – Trial, above n 70, [583]; Milutinović – Trial, above n 350, [177]; and (eccc) Duch – Trial, above n 66, [377] (affirmed in part in Duch – Appeal, above n 281, [276]). 858 (icty) Vasiljević – Trial, above n 70, [245], followed in Stakić – Trial, above n 30, [733]; (eccc) Duch – Trial, above n 66, [377] (relevantly affirmed in Duch – Appeal, above n 281, [276]); and Case 002/01 – Trial, above n 66, [428]. The same conclusion was reached in (icty) Krnojelac – Trial, above n 70, [432], although it was partially overturned in Krnojelac – Appeal, above n 325, [185]. 859 (spet) Marques – Judgment, above n 34, [771]. 860 For instance, in (icty) Krnojelac – Trial, above n 70, [432], the Trial Chamber stated that the Trial Chamber in Kvočka – Trial, above n 70 (at [195]) had rejected the applicability of this statement. Further, while the Appeals Chamber in Krnojelac – Trial, above n 70, rejected part of the Trial Chamber’s reasoning, it did not specifically reject its requirement that there be ‘discriminatory consequences’ (see [185]). See, for instance, the differing view of the controversy in Naletilić – Trial, above n 393, [636], fn 1572. See also (eccc) Duch – Trial, above n 66, [377] (relevantly affirmed in Duch – Appeal, above n 281, [276]) for an accommodation of both positions. But cf. (icty) Simić – Trial, above n 350, [49], fn 89.

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other Serbs who were not subject to such acts, effected with the will to discriminate against a group on grounds of ethnicity’.861 A number of other icty Trial Chambers have found similarly that the targeted group must be interpreted broadly to include persons defined by the perpetrator as belonging to the victim group.862 In such cases, the victims are discriminated in fact for who or what they are on the basis of the perception of the perpetrator. On the other hand, the eccc Supreme Court Chamber in Duch held that such a scenario would not constitute persecution.863 While the Chamber recognised that the relevant group of which the victim is thought to be a member may be defined by the perpetrator,864 the Appeal Chamber followed the icty Trial Chamber in Krnojelac to find that the victim must nonetheless ‘actually belong to a sufficiently discernible political, racial or religious group.’865 This was on the basis that ‘the requisite persecutory consequences must occur for the group, in that denying the individual victim’s fundamental right has an impact on the discrimination of the group as a whole.’866 While the icc Statute is not entirely clear on the matter, it appears to lean towards the icty position. The eccc Supreme Court Chamber asserted that the icc Statute defines persecution ‘as an act that is perpetrated against a person belonging to an “identifiable group or collectivity”’.867 However, the Statute and Elements of Crimes state only that a person must be targeted ‘by reason of the identity of a group or collectivity or targeted the group or collectivity as such’. If anything, this suggests that a person need not be part of that group or collectivity provided that the group or collectivity was targeted. This view 861 (icty) Krnojelac – Appeal, above n 325, [185] (overturning Krnojelac – Trial, above n 70, [432] fn 1294), followed in Brđanin – Trial, above n 69, [993]. 862 (icty) Naletilić – Trial, above n 393, [636]; Kvočka – Trial, above n 70, [195]. 863 (eccc) Duch – Appeal, above n 281, [274]–[277]. While the later Trial Chamber in Case 002 did not refer to this requirement, it appeared to have intended to follow the principles in Duch: see Case 002/01 – Trial, above n 66, [189] (particularly fn 568). 864 (eccc) Duch – Appeal, above n 281, [272]. 865 (emphasis in original) (eccc) Duch – Appeal, above n 281, [274]–[275], citing (icty) Krnojelac Trial, above n 70, [432] fn 1294. The Chamber also cited (icty) Blaškić – Trial, above n 67, [235] (‘the perpetrator of acts of persecution does not initially target the individual but rather membership in a specific racial, religious or political group’); Bassiouni, above n 510, 327 (proposing that victims are targeted because of beliefs, view or membership in a given identifiable group or a category singled out by the perpetrator’); and Gerhard Werle, Principles of International Criminal Law (tmc Asser Press: The Hague, 2005) 254 (‘The material element requires the persecution of an identifiable group or community’). 866 (eccc) Duch – Appeal, above n 281, [276]. 867 (eccc) Duch – Appeal, above n 281, [274].

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is supported by the icc Pre-Trial Chamber in the Gaddafi case, which held that individuals were targeted ‘only on the basis of their political opposition (whether actual or perceived) to Muammar Gaddafi and his regime’ (emphasis added).868 Ultimately, the better view appears to be that adopted by the icty, namely, that there will be discrimination in fact where a victim is targeted because of their perceived membership of a particular group, regardless of whether the victim is in fact a member of that group. First, the fundamental affront to human dignity occurs at the stage of discrimination in the mind of the perpetrator; the fact that such an action happens to inadvertently affect a member not part of that group by way of collateral damage does not affect the quality of the perpetrator’s action to discriminate against the persecuted group. Secondly, in circumstances where an act of persecution forms part of a widespread or systematic attack against a population, it must necessarily be the case that attacks against perceived members of a persecuted group will have a detrimental effect on the persecuted group itself. It will likely, for instance, encourage members of the persecuted group to act in a particular manner (e.g. to leave or evacuate the territory) to avoid the same crimes being committed against them or their families. 9.2.2 ‘Discriminate’ in fact The Tribunals have followed the imt Charter in finding that an act or omission may only be relevantly ‘discriminatory’ for the crime of persecution where it is discriminatory on ‘religious, political or racial grounds’.869 These grounds have been held to have been exhaustive at least at the time of the atrocities in Yugoslavia (1992–1995).870

868 (icc) Situation in the Libyan Arab Jamahiriya (Decision on the ‘Prosecutor’s Application Pursuant to Article 58 as to Muammar Mohammed Abu Minyar Gaddafi, Saif Al-Islam Gaddafi and Abdullah Al-Senussi’), ICC-01/11 (27 June 2011). 869 (icty) Tadić – Trial, above n 79, [715]; Kupreškić – Trial, above n 34, [621]; and Kordić – Trial, above n 70, [189], [195], consolidated in Krnojelac – Trial, above n 70, [431], [434] (affirmed in Krnojelac – Appeal, above n 325, [185]), followed in Vasiljević – Appeal, above n 815, [113]; Blaškić – Appeal, above n 117, [131]; Kordić – Appeal, above n 66, [101]; Stakić – A ­ ppeal, above n 144, [327]–[328]; Kvočka – Appeal, above n 66, [320]; Simić – Appeal, above n 815, [177]; (ictr) Nahimana – Appeal, above n 815, [985]; Bagosora – Trial, above n 71, [2208]–[2209]; (eccc) Duch – Trial, above n 66, [376]–[379] (affirmed in Duch – Appeal, above n 281, [226]); Case 002/01 – Trial, above n 66, [189]; and (BiH) Rašević and Todović – First Instance, above n 66, 100. 870 (BiH) Rašević and Todović – First Instance, above n 66, 100.

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Generally speaking, the ‘group’ targeted has been interpreted broadly.871 Nonetheless, difficult questions have arisen at times as to the precise identification of the group persecuted, particularly where ‘political’ grounds are relied upon. On the one hand, it has been held that the group or groups persecuted on political grounds may include various categories of persons, such as officials and political activists; persons of certain opinions, convictions and beliefs; persons of certain ethnicity or nationality; or persons representing certain social strata (‘intelligentsia’, clergy or bourgeoisie, for example).872 Further, it has been held that the targeted group or groups may be characterised in positive terms or negative terms (e.g. as non-Serb)873 and include affiliates, sympathisers and perhaps suspects (pending the outcome of the controversy discussed above).874 On the other hand, some chambers have taken a narrower view of what amounts to ‘political’ grounds. Less controversially, the icty Trial Chamber in Krnojelac considered that it was not sufficient simply that the victim was tortured in order to extract political information in the absence of the victim being selected on political grounds.875 More controversially, the ictr Trial Chamber in Semanza considered that moderate Hutus and Tutsi sympathisers were not a sufficient ‘political’ group.876 This decision appears out of step with a number of other authorities. The spet, for instance, found persecution to have taken place in relation to East Timorese persons supporting or perceived to be supporting the independence of East Timor.877 Similarly, the eccc Trial Chamber in Case 002-01 considered that it is not required that the victim hold political views or be members of a particular political group or party – it ­suffices if the discrimination is effected ‘pursuant to political motivations or a political agenda against a group which itself may not hold any political views’.878 871 (icty) Naletilić – Trial, above n 393, [636] fn 1571; and Kvočka – Trial, above n 70, [195]. 872 (eccc) Duch – Appeal, above n 281, [272]. 873 (icty) Tadić – Trial, above n 79, [652], followed in Blaškić – Trial, above n 67, [236]; Kvočka – Trial, above n 70, [195] (affirmed in Kvočka – Appeal, above n 66, [363]); Jelisić – Trial, above n 68, [71] (citing: Final Report of the Commission of Experts, op. cit., [96]); and (eccc) Duch – Appeal, above n 281, [272]. 874 (icty) Naletilić – Trial, above n 393, [636], followed in Simić – Trial, above n 350, [49]; Stakić – Trial, above n 30, [733]–[734]; (eccc) Duch – Appeal, above n 281, [272]; and (Nuremberg) The Justice Case, above n 11, vol vi, 81, fn 1. 875 (icty) Krnojelac – Trial, above n 70, [454]–[456]. 876 (ictr) Semanza – Trial, above n 135, [471]. 877 (spet) Marques – Judgment, above n 34, [757]–[771], [843] and [1049]. 878 (eccc) Case 002/01 – Trial, above n 66, [430].

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Ultimately, the question is likely to be one of particularisation and evidence rather than principle. If the Semanza decision is looked at more closely, the real issue was that the targeting was primarily on the basis of the victims’ Tutsi ethnicity rather than any political grouping.879 This may be contrasted with the targeting in the cases in East Timor and Cambodia where the targeting was more clearly against defined political groups. A similar issue has arisen in the icc. On the one hand, in the Gbagbo Arrest Warrant Decision,880 the icc Pre-Trial Chamber was willing to define the group broadly, finding that there were reasonable grounds to believe that acts of persecution had occurred ‘based on political, ethnic and religious grounds’.881 In the Mbarushimana Confirmation Decision, Judge Monageng took a more exacting view in her dissenting opinion.882 Judge Monageng noted that the prosecution allegation was that the fdlr troops targeted members of the civilian population in the Kivu provinces perceived as having called for, collaborated with, or supported the fardc and/or the rdf’s efforts to defeat the fdlr.883 Her Honour considered that in light of the evidence and context and nature of the conflict, ‘the alleged targeted group in the instant case lacks the required specificity, ideological coherence and necessary identifiable characteristics in order to fall within one of the protected groups as listed under article 7, be it political or otherwise’.884 While the Tribunals have not specifically listed ‘ethnicity’ as being a ground of discrimination when stating the applicable tests, they have accepted that discrimination on the basis of ‘ethnicity’ will be sufficient for persecution.885 879 (ictr) Semanza – Trial, above n 135, [471]. 880 (icc) Prosecutor v Laurent Gbagbo (Decision on the Prosecutor’s Application Pursuant to Article 58 for a warrant for the arrest against Laurent Koudou Gbagbo), ICC-02/11-01/11 (30 November 2011) (‘Laurent Gbagbo – Arrest Warrant Decision’). 881 (icc) Laurent Gbagbo – Arrest Warrant Decision, above n 881, [68]. 882 (icc) Prosecutor v Callixte Mbarushimana (Decision on the confirmation of charges, Dissenting opinion of Judge Sanji Mmasenono Monageng), ICC-01/04-01/10 (16 December 2011) (‘Mbarushimana – Confirmation (Dissenting Opinion of Judge Monageng’). 883 (icc) Mbarushimana – Confirmation (Dissenting Opinion of Judge Monageng), above n 883, [35]. 884 (icc) Mbarushimana – Confirmation (Dissenting Opinion of Judge Monageng), above n 883, [36]. 885 (icty) Brđanin – Trial, above n 69, [992] fn 2484; Milutinović – Trial, above n 350, [176]; Đorđević – Trial, above n 69, [1758]; Krnojelac – Appeal, above n 325, [185]; Kupreškić – T ­ rial, above n 34, [636], [589], [591], [780]; Simić – Trial, above n 350, [56]; Kvočka – A ­ ppeal, above n 66, [366], [455] (taking a broad reading of political and religious grounds to include ‘non-Serbs’, which may better be characterised as ethnic grounds); see also (ictr) Bagosora – Trial, above n 71, [2209].

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The fact that this view may reflect customary international law is further ­supported  by the fact that Article 7(1)(h) of the icc Statute explicitly lists ­ethnic  grounds as part of the definition of persecution as a crime against humanity. In addition to ‘ethnic’ Article 7(1)(h) of the icc Statute expands the specific grounds for persecution to include ‘national’, ‘cultural’, ‘gender’ and the catchall ‘or other grounds that are universally recognized as impermissible under international law’. Not all these grounds, however, may reflect customary international law. The provision’s extended list was opposed by some states at Rome on the ground of fidelity to existing customary international law.886 Of particular controversy was the reference to ‘gender’. The reference to gender, rather than sex, was intended to encompass socially constructed roles that may be ascribed to men and women beyond the physical differences between the two sexes.887 When this was ‘emphatically rejected’ by Middle Eastern States, Article 7(3) was inserted.888 It cryptically says ‘gender’ in the icc Statute refers to ‘the two sexes, male and female, within the context of society’. This probably captures the broader notion of gender as commonly understood in international human rights law.889 The extent to which this provision – and particularly the term ‘other grounds that are universally recognized as impermissible under international law’ – can extend is not entirely clear. Luban states that the term would include ‘any group at all – if the group is suffering an attack that includes crimes against humanity of the murder type.’890 Others express more tentative views. Schabas contends that it may include discrimination on the basis of disability. First, the Preparatory Committee draft contained a footnote to the word ‘grounds’ that stated ‘[t]his also includes, for example, social, economic and 886 McCormack, above n 5, 197. 887 See Machteld Boot, ‘Article 7(3)’ in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court – Observer’s Notes, Article by Article (2nd ed, ch Beck etc: Munich, 2008) 171; and Steains, above n 776, 371–375. For example, the Office of the Special Adviser on Gender Issues and Advancement of Women (osagi) says in un usage: ‘Gender refers to the social attributes and opportunities associated with being male and female […] These attributes, opportunities and relationships are socially constructed and are learned through socialisation processes […] Gender is part of the broader socio-cultural context’: Website of osagi, accessed online at on 14 January 2006. 888 McCormack, above n 5, 197. 889 See Boot, above n 888, 172. 890 David Luban, ‘A Theory of Crimes Against Humanity’ (2004) 29 Yale Journal of International Law 85, 106–107.

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mental or ­physical disability grounds.’891 Secondly, disability is a widely recognised ground of discrimination.892 Discussing the ‘catch-all’ provision ‘other grounds that are universally recognized as impermissible under international law’, Schabas contends that the term imposes a ‘very high threshold’ which, ‘if strictly construed … is probably an impossible one’.893 To overcome this construction, Schabas argues the ground should be understood instead to depend on whether persecution on such grounds is permissible rather than prohibited.894 The difficulty with this view is that it was specifically intended to be a ‘very high-threshold provision’ due to concerns about its potential ambit.895 It is suggested that the preferable view is that the ground simply requires that the conduct be manifestly unlawful in the sense of being clearly established under customary international law in the context of criminal law as opposed to a ‘mere’ breach of human rights law.896 For instance, based on a range of human rights instruments, a strong argument may be made that discrimination on the grounds of ‘sexual orientation’ would be sufficient. However, others have argued that it may not fall within the ambit on the provision on the basis that there is little international consensus on the point.897 What is required is that sufficient state practice and opinio juris exist to contend that discrimination based on sexual orientation may constitute the criminal offence of persecution. While one District Court in the us has held that persecution could include persecution of the lesbian, gay, bisexual, transgender and intersex community in Uganda,898 the Court did not conduct any detailed analysis of the state practice on the subject nor the objections raised by states at the Rome Conference. Finally, the obvious point should be made that the conduct must be discriminatory rather than based on lawful or legitimate grounds. In Brđanin, the 891 Schabas, above n 228, 177, citing Preparatory Committee Draft Statute, 26. 892 Schabas, above n 228, 177, citing Convention on the Rights of Persons with Disabilities, un Doc. A/RES/61/106 (13 December 2006), Annex. 893 William Schabas, The International Criminal Court: A Commentary on the Rome Statute (2nd ed, Oxford University Press: Oxford, 2016), 198. 894 Schabas, above n 894, 199. 895 Darryl Robinson, ‘Defining “Crimes Against Humanity” at the Rome Conference’ (1999) 93(1) American Journal of International Law 43, 54. 896 See above, Sections 1.2 and 6.3. 897 Schabas, above n 228, 177. 898 (United States) Sexual Minorities Uganda v Lively, 960 F. Supp. 2d 304 (D. Mass., 2013) (‘Sexual Minorities Uganda – District Court’), 316 – 318. The case is discussed in more detail in Chapter 7.

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icty Trial Chamber found that the widespread dismissal of Bosnian Muslims and Bosnian Croats was on the grounds of discrimination notwithstanding other reasons were given such as a failure to pledge allegiance, legitimate redundancy and national security.899 The decision was affirmed by the icty Appeals Chamber.900 Both Chambers did so, however, on the factual basis that the dismissals were in fact on the grounds of discrimination in the context of a plan to ethnically cleanse the territory. This suggests that if an action is not discriminatory in an arbitrary or unlawful sense, the actions will not amount to persecution.901 9.3 Seriously Denies or Infringes upon One or More Fundamental Rights 9.3.1 The ‘fundamental right’ Threshold Under customary international law, the second element of the actus reus for persecution is that the perpetrator’s act or omission – or more commonly acts or omissions, seen in the context of other acts – denies or infringes upon a fundamental right laid down in international customary or treaty law.902 The icc Statute has adopted a similar threshold, requiring that the perpetrator ‘severely deprived, contrary to international law, one or more persons of fundamental rights’.903 Like ‘other inhumane acts’, there is no comprehensive list of what may constitute the underlying acts of persecution.904 While persecution often ­refers 899 (icty) Brđanin – Trial, above n 69, [1037]–[1040]. 900 (icty) Brđanin – Appeal, above n 149, [166]–[167]. 901 See, for example, (icty) Simić – Trial, above n 350, [507] (finding that an order prohibiting the work and activities of political parties was not relevantly discriminatory); and [512] (finding that restrictions on alcohol and movement were in the interests of the public generally). 902 (icty) Tadić – Trial, above n 79, [715]; Kupreškić – Trial, above n 34, [621]; and Kordić – Trial, above n 70, [189], [195], consolidated in Krnojelac – Trial, above n 70, [431], [434] (affirmed in Krnojelac – Appeal, above n 325, [185]), followed in Vasiljević – Appeal, above n 815, [113]; Blaškić – Appeal, above n 117, [131]; Kordić – Appeal, above n 66, [101]; Stakić – A ­ ppeal, above n 144, [327]–[328]; Kvočka – Appeal, above n 66, [320]; Simić – Appeal, above n 815, [177]; (ictr) Nahimana – Appeal, above n 815, [985]; Bagosora – Trial, above n 71, [2208]–[2209]; and (eccc) Duch – Trial, above n 66, [376]–[379] (affirmed in Duch – Appeal, above n 281, [226]). See also (ictr) Semanza – Trial, above n 135, [347]; and (BiH) Rašević and Todović – First Instance, above n 66, 100. 903 icc Elements of Crimes, Art 7(2)(h). 904 (icty) Tadić – Trial, above n 79, [694]; Kupreškić – Trial, above n 34, [567]; and Blaškić – Trial, above n 67, [219], followed in Kordić – Trial, above n 70, [192]; Vasiljević – Trial, above n 70, [246]; Krnojelac – Trial, above n 70, [433]; and Lukić – Trial, above n 79, [993].

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to a series of acts, a single act or omission may amount to persecution.905 Whether an act or omission reaches the relevant threshold is a ‘fact-specific inquiry’.906 A concern about the potential breadth of ‘persecution’ is reflected both in the drafting of the icc Statute907 as well as in the jurisprudence of the Tribunals. Precisely because it cannot be comprehensively defined, the crime requires ‘careful and sensitive development in light of the principle of nullum crimen sine lege’.908 Two key limitations apply. First, the icty Appeals Chamber has held that while the crime of persecution may be considered an ‘umbrella’ crime, ‘[p]ersecution cannot, because of its nebulous character, be used as a catch-all charge’.909 The Prosecution must plead particular acts or omissions which it alleges amount to persecution in the indictment.910 It will not be sufficient, for instance, for the prosecution to include a non-exhaustive list of matters relied upon.911 Secondly, those acts or omissions must, in their context, reach a particular level of seriousness. Not all violations of fundamental rights will constitute persecution. As stated by the icty Trial Chamber in Kupreškić: [t]here must be clearly defined limits on the expansion of the types of acts which qualify as persecution. Although the realm of human rights is dynamic and expansive, not every denial of a human right may constitute a crime against humanity.912 905 (icty) Kupreškić – Trial, above n 34, [624], followed in Krnojelac – Trial, above n 70, [433]; Vasiljević – Appeal, above n 815, [113]; Blaškić – Appeal, above n 117, [135]; Kordić – ­Trial, above n 70, [102]; (eccc) Duch – Appeal, above n 281, [258]; and (spet) Marques  – J­ udgment, above n 34, [33]. 906 (icty) Brđanin – Appeal, above n 149, [295]. 907 Robinson, above n 896, 54–55. 908 (icty) Kordić – Trial, above n 70, [192], followed in (eccc) Duch – Trial, above n 66, [375]. 909 (icty) Kupreškić – Appeal, above n 718, [98], followed in Blagojević – Trial, above n 70, [581]; and Đorđević – Trial, [1756]. 910 (icty) Kupreškić – Appeal, above n 718, [98], followed in Blaškić – Appeal, above n 117, [139]; Blagojević – Trial, above n 70, [581]; Đorđević – Trial, [1756]; and (eccc) Case 002/01 – Trial, above n 66, [431]. 911 (icty) Krajišnik – Trial, above n 147, [737]. 912 (icty) Kupreškić – Trial, above n 34, [618], followed in Kordić – Trial, above n 70, [194]; Martić – Trial, above n 69, [116]; Blagojević – Trial, above n 70, [580]; Krajišnik – Trial, above n 147, [735]; (eccc) Duch – Appeal, above n 281, [254]; and (spet) Marques – J­ udgment, above n 34, [32]–[33]. See also (icty) Kordić – Appeal, above n 66, [103]; and Blaškić – Appeal, above n 117, [139]; (‘It is not the case that any type of act, if committed with the requisite discriminatory intent, amounts to persecutions as a crime against humanity’). See also Luban, above n 891, 101–102.

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The Trial Chamber held that to reach the relevant threshold required for persecution, the act or omission needs to be a ‘gross’ or ‘blatant’ denial of a fundamental human rights.913 The Court held that the acts must be ‘evaluated not in isolation but in context, by looking at their cumulative effect’, and that while ‘individual acts may not be inhumane, their overall consequences must offend humanity in such a way that they may be termed “inhumane”.’914 In Krnojelac, for instance, the icty Trial Chamber noted that ‘[i]n the Second World War cases, that context was one in which discrimination against and the extermination of the Jewish people on grounds of race was the official State policy of the Nazi Government’.915 Similarly, many incidents considered by the icty concerned the policy of ethnic cleansing adopted by the Bosnian Serbs. In the icc, the same view appears to be taken, on the wording of the icc Elements of Crimes. That is, the perpetrator must have ‘severely’ deprived a person of one or more fundamental rights.916 This reflected the concern of the drafters of the Rome Statute that the ‘while discrimination may not be criminal, extreme forms amounting to deliberate persecution clearly are criminal’ and that the crime relates to ‘serious violations of international criminal law, not international human rights law’.917 This issue has been discussed above in the context of imprisonment. An act or omission will only reach that threshold where the conduct, taken separately or cumulatively with other acts or omissions, constitutes a crime of equal gravity to the other underlying crimes.918 The same approach was adopted by the eccc ­Supreme Court Chamber in Duch, where it was held that the 913 (icty) Kupreškić – Trial, above n 34, [621], [627], followed in Naletilić – Trial, above n 393, [635]; Krnojelac – Trial, above n 70, [434]; Kordić – Trial, above n 70, [195]; (ictr) Ruggiu – Trial, above n 848, [21]; and Semanza – Trial, above n 135, [347]. 914 (icty) Kupreškić – Trial, above n 34, [622]; Kordić – Trial, above n 70, [199]; Krstić – Trial, above n 70, [535]; Krnojelac – Trial, above n 70, [446]; Vasiljević – Trial, above n 70, [247]; and Stakić – Trial, above n 30, [736]. 915 (icty) Krnojelac – Trial, above n 70, [446]. 916 See similar language used in (ictr) Semanza – Trial, above n 135, [349]. 917 Robinson, above n 896, 53. 918 (icty) Kupreškić – Trial, above n 34, [620] (‘[the ejusdem generis criterion can be used as a supplementary tool, to establish whether certain acts which generally speaking fall under the proscriptions of Article 5(h), reach the level of gravity required by this provision’); Krnojelac – Appeal, above n 325, [199], [221], followed in Blaškić – Appeal, above n 117, [135], [138]; Kordić – Appeal, above n 66, [102], [671]; Kvočka – Appeal, above n 66, [321]–[323]; Naletilić – Appeal, above n 462, [574]; Simić – Appeal, above n 815, [177]; Brđanin – Appeal, above n 149, [296]; (ictr) Nahimana – Appeal, above n 815, [985]; S­ emanza – Trial, above n 135, [347]; and (eccc) Duch – Appeal, above n 281, [258].

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crux of the analysis was not whether there had been a breach of a fundamental right but whether an act or omission, when considered cumulatively and in context, r­ esults in a ‘gross or blatant breach of fundamental rights such that it is equal in gravity to other underlying crimes against humanity’ (emphasis in original).919 Relevant factors in determining whether this threshold is met will include:920 • the cumulative effect of the persecutory act or omission when committed in conjunction with other similar acts or omissions; • whether the act or omission was committed in the context of, or as part of a chain of events in a larger persecutory campaign the ultimate goal and end result of which was extremely grave, resulting in gross violation of fundamental rights, often other underlying crimes against humanity;921 and • whether an act or omission rises to the level of persecution is not only ‘a function of its apparent cruelty, but of the discriminatory effect the act seeks to encourage within the general populace’ against a targeted group. This final point echoes the raison d’être of the crime of persecution set out by the icty Trial Chamber in Blaškić that the acts of persecution are ‘rendered serious not by their apparent cruelty but by the discrimination they seek to instil within humankind.’922 The icty Trial Chamber in Blaškić considered, for instance, that some rights that are ‘elementary and inalienable’ are:923 919 (eccc) Duch – Appeal, above n 281, [257]. 920 (eccc) Duch – Appeal, above n 281, [259]. In respect of the final point, the Appeals Chamber paraphrases the icty Trial Chamber in Blaškić – Trial, above n 67, [227] (also citing Pocar, above n 823). 921 See also jurisprudence regarding property crimes: (icty) Kordić – Trial, above n 70, [205]; Stakić – Trial, above n 30, [763]. However, while this point may be relevant, the icty Trial Chamber in Krajišnik observed as follows (at [767]) in respect of the consideration of plunder at Nuremberg: ‘In the Flick case, however, the American Military Tribunal held that the scale of the appropriation was not the critical issue when the act is considered as a crime against humanity. Rather, it was the impact of the appropriation on the victim.’ 922 (icty) Blaškić – Trial, above n 67, [227], cited in Blaškić – Appeal, above n 117, [136], [143]. As discussed below, however, this decision was revised significantly in Blaškić – Appeal, [138] on the basis that the acts must reach a requisite level of gravity – mere discrimination is insufficient. This does not seem to change the point that the central wrong in persecution is the discriminatory element. See also the adoption of this point in (eccc) Duch – Appeal, above n 281, [259]. See also Pocar, above n 823, 360. 923 (icty) Blaškić – Trial, above n 67, [220]; see also Blaškić – Appeal, above n 117, [143].

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• the right ‘to life, liberty and the security of person’; • the right not to be ‘held in slavery or servitude’; • the right not to ‘be subjected to torture or to cruel, inhuman or degrading treatment or punishment’; and • the right not to be ‘subjected to arbitrary arrest, detention or exile’. Other Chambers have also looked outside human rights law to rights protected by the Geneva Conventions such as: • the right to protection from ‘outrages on personal dignity’;924 • the protections against targeting civilians during wartime;925 and • other acts prohibited under international humanitarian law.926 9.3.2 Application of the Threshold While each case must be assessed on a case-by-case basis on its individual merits, a court or tribunal can look to the other tribunals and courts’ application of the crime for guidance.927 In looking to these precedents, courts and tribunals must distinguish carefully between the questions of law and questions of fact. In a preliminary decision in the Karadžić case, the icty Trial Chamber held that there applying the fundamental rights threshold involves both questions.928 Paraphrasing that decision, there will first be a question of fact as to what level of gravity the alleged acts or omissions were said to amount to. This will be a matter for evidence. Secondly, there will be a question of law as to whether the facts establish are sufficient to meet the equal gravity or fundamental rights threshold. The most obvious circumstance where the ‘fundamental rights’ test will be satisfied is where the underlying acts or omissions constitute another underlying crime as a crime against humanity such as murder, extermination, torture, imprisonment and deportation and forcible transfer.929 Outside of this, 924 (icty) Kvočka – Appeal, above n 66, [323]. 925 (icty) Blaškić – Appeal, above n 117, [156]–[158]. 926 (icty) Kordić – Trial, above n 70, [202]ff. 927 (icty) Naletilić – Trial, above n 393, [637]. 928 (icty) Prosecutor v Karadžić (Decision on Six Preliminary Motions Challenging Jurisdiction), Case No IT-95-5/18-PT (28 April 2009) (‘Karadžić – Jurisdiction Decision’), [42]. 929 Murder, extermination and torture (icty) (Blaškić – Appeal, above n 117, [143]); murder (Vasiljević – Appeal, above n 815, [143]; Kordić – Appeal, above n 66, [106]); forcible ­transfer and deportation (Krnojelac – Appeal, above n 325, [222], followed in Blaškić – ­Appeal, above n 117, [153]; Naletilić – Appeal, above n 462, [153]–[154]; Simić – Appeal, above n 815, [172], [174]); imprisonment or other unlawful detention (Naletilić – Trial, above

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the application of the threshold shades into greys of difficulty. This difficulty is compounded by the fact that the Tribunals have not always been clear on when an act is considered in itself to reach the relevant threshold or only do so when considered cumulatively with other acts. The Tribunals have applied the crime in a wide range of contexts.930 With the caveat noted above, the findings of acts constituting persecution may be broken up into the following categories. First, conduct amounting to serious bodily and mental harm931 or cruel or inhuman or degrading treatment.932 These appears to have included: • beatings933 and other physical violence;934 • subjecting detainees inhumane conditions,935 such as overcrowded conditions, deprivation of food, water and sufficient air, exposure to extreme heat or cold, random beatings of detainees as a general measure to instil terror amongst them and similar forms of physical assaults not amounting to torture (if it reaches the same level of gravity);936 • sexual assaults;937 n 393, [637]); and other enumerated underlying crimes (Kupreškić – Trial, above n 34, [629]). 930 For a general list, see (icty) Kvočka – Trial, above n 70, [186]; and Martić – Trial, above n 69, [119]. 931 (icty) Blaškić – Appeal, above n 117, [143], [155] (citing Kupreškić – Trial, above n 34, [615]), followed in Kordić – Appeal, above n 66, [106]). 932 (icty) Krnojelac – Appeal, above n 325, [187]; Stakić – Trial, above n 30, [790]; Perišić – Trial, above n 100, [120]; (spet) Mendonça – Judgment, [105]. See also (icty) Blaškić – ­Appeal, above n 117, [143], [151]–[153], [155] (accepting that serious bodily and mental harm can suffice, but doing so in reliance on the human right to be free from cruel, inhuman or degrading treatment), followed in Kordić – Appeal, above n 66, [106]; and Vasiljević – Appeal, above n 815, [143] (where murder and inhumane treatment was found to suffice). 933 (icty) Blaškić – Appeal, above n 117, [155]). 934 (icty) Stakić – Trial, above n 30, [786]–[790]. 935 (icty) Kvočka – Trial, above n 70, [190]–[192]. 936 (icty) Stakić – Trial, above n 30, [752]; and Brđanin – Trial, above n 69, [581]. 937 (icty) Stakić – Trial, above n 30, [757] (with ‘sexual assault’ including ‘all serious abuses of a sexual nature inflicted upon the integrity of a person by means of coercion, threat of force or intimidation in a way that is humiliating and degrading to the victim’s dignity’); Brđanin – Trial, above n 69, [1012]; and Milutinović – Trial, above n 350, [192]. Influential in these decisions was the reasoning in Furundžija – Trial, above n 330, [186] (distinguishing between rape and ‘sexual assault’ for sentencing purposes). For a summary of the elements of ‘sexual assault’, see Milutinović – Trial, above n 350, [201].

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• harassment, humiliation and psychological abuse;938 • deprivation of adequate food and water;939 • forced labour assignments in breach of the Geneva Conventions or such as to create danger for the life or health of the civilians, or such as may arouse in them feelings of fear, and humiliation940 (e.g. partaking in military service941 or trench digging on the front-line);942 • arbitrary selection of victims at gunpoint to be marched to their death;943 • use of human shields;944 and • denial of humanitarian assistance.945 Secondly, conduct which otherwise threatens the ‘right to life’ or bodily security of civilians, particularly where prohibited by the Geneva Conventions. This includes: • unlawful attacks on civilians and civilian objects (including generally on undefended towns, villages, dwelling or villages), meaning acts of violence 938 (icty) Kvočka – Trial, above n 70, [190]–[192] (the Chamber also noted that ‘humiliating treatment … may, in combination with other crimes or, in extreme cases alone, similarly constitute persecution), affirmed in Kvočka – Appeal, above n 66, [324]–[325] (‘in the c­ ontext in which they were committed and taking into account their cumulative ­effect, the acts of harassment, humiliation and psychological abuse ascertained by the Trial Chamber are acts which by their gravity constitute material elements of the crime of persecution’); Blaškić – Appeal, above n 117, [155]) (‘subjected to physical or psychological abuse and intimidation’); Stakić – Trial, above n 30, [757] (‘acts of constant humiliation and/or degradation’); and Kordić – Appeal, above n 66, [107] (‘psychological abuse’). 939 (icty) Blaškić – Appeal, above n 117, [155]; and (eccc) Case 002/01 – Trial, above n 66, [457] (‘food, water, adequate shelter and medical assistance and sub-par sanitary conditions’). 940 (icty) Krnojelac – Appeal, above n 325, [199] (‘considered as part of a series of acts comprising unlawful detention and beatings whose cumulative effect is of sufficient gravity’); Simić – Trial, above n 350, [84]–[93]. 941 (icty) Simić – Trial, above n 350, [93]; Krajišnik – Trial, above n 147, [757]–[759]. 942 (icty) Simić – Trial above n 350, [835]–[837]; Krajišnik – Trial, above n 147, [818]; Kordić – Trial, above n 70, [204]; and Kordić – Appeal, above n 66, [107]. 943 (icty) Lukić – Trial, above n 79, [1005], [1019] (provided that such acts are not too closely intertwined with the crime of murder – for instance, where the victims are not ultimately killed). 944 (icty) Blaškić – Appeal, above n 117, [155]; Krajišnik – Trial, above n 147, [762]–[764]. 945 (icty) Gotovina – Trial, above n 74, [1839] (‘housing, property and humanitarian assistance’).

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deliberately launched against civilians or civilian objects, as well as indiscriminate attacks on cities, towns, and villages’;946 ‘terrorising a civilian population’, meaning using or threatening acts of violence with the intention to cause extreme fear in the population;947 prolonged and routine imprisonment and confinement;948 enforced disappearances;949 and hate speech, when viewed in context and accompanied by other acts, particularly when it advocates egregious acts of violence.950

Thirdly, infringements of lesser rights, such as liberty as well as social, ­political and economic rights in certain circumstances and when taken collectively. Such decisions have their origins in the widespread discriminatory ­measures adopted against Jews by the Nazi government. The Nuremberg J­ udgment found that acts amounting to persecution included the discriminatory laws limiting offices and professions open to Jews, restrictions placed on their f­amily life 946 (icty) Blaškić – Appeal, above n 117, [159] (‘attacks in which civilians are targeted, as well as indiscriminate attacks on cities, towns, and villages’); Kordić – Trial, above n 70, [203] (‘attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings’); Kordić – Appeal, above n 66, [104]–[105] (‘attacks launched deliberately against civilians or civilian objects’ (see also [672]–[673]); and Gotovina – Trial, above n 74, [1841] (‘acts of violence deliberately launched against civilians or civilian objects … as well as indiscriminate attacks on cities, towns, and villages’). This includes shelling: G ­ otovina – Trial, above n 74, [1892]. However, see criticism of this inclusion: William Schabas, The un International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone (Cambridge University Press, Cambridge, 2006) 220, 222. 947 (icty) Blagojević – Trial, above n 70, [588]–[592]; see also Krstić – Trial, above n 70, [617]–[618] (where such terror conducted pursuant to a policy to forcibly transfer). 948 (icty) Krnojelac – Trial, above n 70, [438]; Kupreškić – Trial, above n 34, [629]; Naletilić – Trial, above n 393, [642]; see also Blaškić – Trial, above n 67, [220] (noting the reservations to the decision expressed in Blaškić – Appeal, above n 117). 949 (icty) Kupreškić – Trial, above n 34, [566], followed in Kvočka – Trial, above n 70, [208]; and Gotovina – Trial, above n 74, [1839]. 950 (ictr) Nahimana – Appeal, above n 815, [986]–[987] (but cf. Nahimana – Appeal (Partially Dissenting Opinion of Judge Meron), [8]); (Canada) Mugesera v Canada (Minister of ­Citizenship and Immigration) [2005] 2 s.c.r. 100, 2005 scc 40 (‘Mugesera – Supreme Court’), [150] and the authorities cited from the ad hoc Tribunals. See also (ictr) R ­ uggiu – Trial, above n 848, [22]. A further authority is the conviction of Streicher for speaking, writing and preaching hatred of the Jews amounting to an incitement to murder and exterminate the Jews: (Nuremberg) Nuremberg Judgment, above n 2, 302–304, adopted in (icty) Tadić – Trial, above n 79, [708]. Compare such conduct with that discussed in (United States) Sexual Minorities Uganda v Lively – District Court, above n 899, discussed in Chapter 7.

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and their rights of citizenship, the creation of ghettos, the plunder of p ­ roperty and the imposition of a collective fine.951 For example, the N ­ uremburg ­Tribunal found Göring guilty of persecution for imposing of a ­collective ­billion mark fine on Jews in Germany with the intention of e­ xpelling them from ­Europe.952 The laws culminated in a final decree placing Jews ‘­outside the law’ and handing them over to the Gestapo, all of which ‘paved the way for the “final solution”’.953 These laws are discussed further below.954 The authorities at Nuremberg and following have been discussed and relied upon by various icty Trial Chambers, most notably Tadić and Krajišnik.955 In light of these authorities, it was confirmed by the icty Appeals Chamber in Brđanin that, at least when taken cumulatively and in the context of an official practice of ethnic cleansing,956 it may be sufficient that there be a denial of the rights to: (a) employment;957 (b) freedom of 951 (Nuremberg) Nuremberg Judgment, above n 2, 247–249. 952 (Nuremberg) Nuremburg Judgment, above n 2, 248, 282–283 cited in (icty) Blaškić – T ­ rial, above n 67, [228]; and Krajišnik – Trial, above n 147, [767]. 953 (Nuremberg) Nuremberg Judgment, above n 2, 300. 954 See Section 9.4. 955 (icty) Tadić – Trial, above n 79, [704]–[710]; Krajišnik – Trial, above n 147, [736]–[739], [741] (relying upon the denial of freedom of movement, employment and judicial process in (Nuremberg) United States et al. v Hermann Göring et al., International Military Tribunal (6 October 1945), in 1 tmwc 27, 55–60 (‘Göring – Trial’), 171, 247–249, 254, 298, 300, 304–305, 329, 335, 339–340; The Justice Case, above n 11, 959, 1063–1064 as well as a number of decisions under Control Council Law No 10); Kvočka – Trial, above n 70, [186] (relying upon the jurisprudence from World War ii trials found acts or omissions such as denying bank accounts, educational or employment opportunities, or choice of spouse to Jews on the basis of their religion); and Blaškić – Trial, above n 67, [218]–[234]. See also Luban, above n 891, 99 (suggesting that the list may include ‘indignities such as compelling group members to wear distinctive costume[s] (such as the Nazis’ [sic] infamous yellow arm bands for Jews), or prohibiting use of the group’s native language’) and 101 (suggesting that ‘banditry, suppression of the free press, and denial of the right to vote or own real property’ will not reach the threshold). 956 (icty) Brđanin – Trial, above n 69, [1049]–[1050]. It was also considered significant by the Trial Chamber that the acts were widespread and formed part of an official plan of ethnic cleansing: [1032]–[1041]. The findings of persecution were confirmed on appeal in Brđanin – Appeal, above n 149, [292]–[297]. 957 (icty) Brđanin – Trial, above n 69, [1032]–[1041] (the actions were the dismissal of Bosnian Muslims and Bosnian Croats from their employment en masse, including the gradual removal of such persons from key positions and key sectors, and the actions were found to have taken place within the context of a plan to ethnically cleanse the territory claimed by the Bosnian Serb authorities).

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movement;958 (c) proper judicial process;959 and (d) proper medical care.960 Later cases have adopted the same position,961 although have often used the terminology that the relevant conduct is ‘the imposition and maintenance of restrictive and discriminatory measures’.962 Further, the list of deprivations has been extended to depriving victims of rights to: privacy through arbitrary searches; and equal access to public services (i.e. not only medical services).963 This does not necessarily mean that all such violations listed above necessarily need to be present in order to amount to persecution. In Gotovina, for instance, the icty Trial Chamber considered a narrower set of conduct to be sufficient, namely, the deprivation of housing, property and humanitarian assistance.964 Nonetheless, the violations must be sufficiently serious to meet the equal gravity requirement.965 As Schabas notes, the crime envisages conduct much more severe than mere discrimination.966 On one end of the spectrum, 958 (icty) Brđanin – Trial, above n 69, [1071] (the relevant deprivations were the enactment of curfews and a requirement for special permits to leave the territory). 959 (icty) Brđanin – Trial, above n 69, [1044]–[1045] (Bosnian Muslims and Bosnian Croats were: arbitrarily arrested and detained; never informed of the charges against them; their property was relinquished without any due legal process and, frequently, without compensation; and the majority of lawsuits initiated by Bosnian Muslims and Bosnian Croats in response to their dismissals were never dealt with). 960 (icty) Brđanin – Trial, above n 69, [1049]. 961 (icty) Prosecutor v Karadžić (Public Redacted Version of Judgment), Case No IT-95-5/18T (24 March 2016) (‘Karadžić – Trial’), [536]; Prosecutor v Stanišić and Župljanin (Trial Chamber Judgment), Case No IT-08-91-T (28 March 2013) (‘Stanišić and Župljanin – ­Trial’), [91]–[92]; Gotovina – Trial, above n 74, [1804]–[1807]; and Simić – Trial, above n 350, [58]. 962 (icty) Krajišnik – Trial, above n 147, [736]–[741]. The conduct included: the institution of curfews, checkpoints, compulsory reporting to police, travel permits and arbitrary house searches (at [784]); the dismissal of Muslims and Croats from various areas of the public service (at [785]); the denial of Muslims and Croats equal access to public services such as electricity, water or telephone services and denying access of children to public schools (at [786]) and the imposition of various other discriminatory measures (at [787]). The context included that the measures occurred at a time when Muslims and Croats were increasingly targeted for killings, arbitrary arrests, detention, looting and destruction of property (at [789]). See also Karadžić – Trial, above n 962, [2560]–[2570]. 963 (icty) Krajišnik – Trial, above n 147, [736]–[739], [741]. 964 (icty) Gotovina – Trial, above n 74, [1804]–[1807], [1843]–[1846]. 965 For an example where the measures were found not to reach such gravity, see (icty) Simić – Trial, above n 350, [457]–[516]. Consideration should also be given to the conduct discussed in (United States) Sexual Minorities Uganda v Lively – District Court, above n 899, discussed in Chapter 7. 966 Schabas, above n 894, 198.

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the icc Pre-Trial Chamber in Bashir held that the practice of ‘ethnic cleansing … usually amounts to the crimes against humanity of persecution’.967 On the other end of the spectrum, the icty Trial Chamber in Kordić dismissed a case concerning the dismissal and removal of Bosnian Muslims from office, stating that ‘[t]he act would have to amount to an extremely broad policy to fit within Nuremberg jurisprudence’.968 The Trial Chamber approved the following statement from the Einsatzgruppen case: We do not refer to localised outbursts of hatred nor petty discriminations which unfortunately occur in the most civilised of states. When persecutions reach the scale of nation-wide campaigns designed to make life intolerable for, or to exterminate large groups of people, law dare not remain silent. Fourthly, certain offences against the right to property (although, as discussed immediately below at Section 9.3.3, this category has been particularly controversial): • destruction of religious, cultural, historic monuments, sacred sites or educational institutions;969

967 (icc) Bashir – Arrest Warrant Decision, above n 144, [140]. 968 (icty) Kordić – Trial above n 70, [210]. 969 (icty) Kordić – Trial, above n 70, [206]–[207] (institutions dedicated to Muslim religion or education); and Stakić – Trial, above n 30, [765]–[768] (‘destruction of, or wilful damage to, religious and cultural buildings’), followed in Milutinović – Trial, above n 350, [181], [205] (‘religious sites and cultural monuments’); Prosecutor v Miroslav Deronjić (Trial Chamber Judgment), Case No IT-02-61-S (30 March 2004) (‘Deronjić – Trial’), [122] (‘institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science’, albeit in a sentencing judgment); Blaškić – Trial, above n 67, [227] (‘symbolic buildings’); Krajišnik – Trial, above n 147, [780]–[783] (‘cultural monuments and sacred sites’); Đorđević – Trial, above n 69, [1773] (‘an institution dedicated to religion’); (Nuremberg) Nuremberg Judgment, above n 2, 248 and 302 (finding the accused Streicher guilty of crimes against humanity for the demolition on 10 August 1938 of the synagogue in Nuremberg); and (Israel) Eichmann Case, above n 399, 276 (the District Court noted the burning and demolition of 267 synagogues on the so-called “Kristallnacht” when discussing “The Persecution of the Jews in Germany”). The Trial Chamber in Đorđević also set out the ‘elements’ of such a crime as persecution. See also (icty) Blaškić – Trial, above n 67, [227] (noting the rejection of the Trial Chamber’s reasoning in Blaškić – Appeal, above n 117).

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• destruction, plunder and/or looting of private property (in certain circumstances);970 • robbery971 and extortion972 (although technically considered as a sub-­ category of harassment, humiliation and psychological abuse). It would seem arguable that these authorities should apply in the icc (albeit with some modification) despite the need for the acts to be in connection with another underlying crime. The connection element is discussed further below, but some indication that it was considered able to so extend can be drawn from the drafting history at the Rome Conference. As Robinson recognises, the fact that one such crime is ‘other inhumane acts’ necessarily means that the crime is potentially open ended.973 It is also of significance that the inclusion of apartheid as an underlying crime – which may be viewed as analogous to the circumstances raised above – was included on grounds that it was considered an inhumane act that resembled other enumerated acts in character and gravity.974

970 (icty) Kupreškić – Trial, above n 34, [631] (depending on the nature of property), followed in Blaškić – Appeal, above n 117, [146], [149]; and followed in Kordić – Appeal, above n 66, [108] (see also comments on whether ‘plunder’ may rise the relevant level); see also Kordić – Trial, above n 70, [205] (where the cumulative effect of the destruction of property such as homes and means of livelihood (e.g. businesses, livestock, farms) is the removal of civilians from their homes and villages), followed in Stakić – Trial, above n 30, [763]–[764]; Brđanin – Trial, above n 69, [1023]; Simić – Trial, above n 350, [102]–[103]; Deronjić – Trial, above n 970, [123]; Milutinović – Trial, above n 350, [204]; Krajišnik – Trial, above n 147, [766]–[768] (where it has a severe impact on the owner or user of the property); Gotovina – Trial, above n 74, [1820], [1839]; (spet) Marques – Judgment, above n 34, [33]–[34]; and (Bangladesh) Sayeedi – Judgment, above n 669, [102]–[126], [176]–[181]. But see (BiH) Šimšić – First Instance, above n 971, 104–106 (where the appropriation of money and jewellery was sufficient); and (icty) Tadić – Trial, above n 79, [707], [710]; and Blaškić – Trial, above n 67, [218]–[234]. 971 (icty) Martić – Trial, above n 69, [119] fn 226; and Lukić – Trial, above n 79, [1008] (the perpetrators ‘committed not only theft of personal property but also subjected them to harassment, humiliation, terrorisation and psychological abuse by robbing an already vulnerable group of civilians under threat of death and physical harm of the few belongings that they had in their possession’). 972 (icty) Kvočka – Trial, above n 70, [496] (‘the extortion of detainees and stealing money from detainees … which in this context can be characterised as part of the harassment inflicted upon detainees in the camp’). 973 Robinson, above n 896, 56. 974 Robinson, above n 896, 56.

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The following acts have been held not to amount to persecution (at least taken individually): • confinement of persons on discriminatory grounds;975 • beating or confinement falling short of cruel treatment or inhumane acts;976 • encouraging and promoting hatred on discriminatory grounds (taken individually);977 • harassment, humiliation, terrorization and psychological abuse (where such acts were so closely intertwined with the murder that occurred immediately afterwards);978 • dismissing and removing persons of an ethnic group from their employment or government (unless amounting to ‘an extremely broad policy’ comparable to the Nuremberg jurisprudence, where economic discrimination generally rose to the level of legal decrees dismissing all Jews from employment and imposing enormous collective fines);979 • the forcible takeover of the municipality, being the overthrow of an existing government by force;980 • unlawful arrest, which means to apprehend a person without due process of law, unless taken together with unlawful detention or confinement;981 and • the interrogation of persons and forcing them to sign false and coerced statements.982 Under the definition in Article 7(1)(h), the conduct will only amount to persecution if such acts can be said to be in connection with ‘inhumane acts’ or certain war crimes. 975 (icty) Krnojelac – Trial, above n 70, [447]–[448]. Although cf. Krajišnik – Trial, above n 147, [754] and other authorities above at n 949. 976 (icty) Krnojelac – Trial, above n 70, [448]–[449]. 977 (icty) Kordić – Trial, above n 70, [209]. Cf. (ictr) Nahimana – Trial, above n 160, [1074]– [1076], left open in Nahimana – Appeal, above n 815, [987] (although note [986]). 978 (icty) Lukić – Trial, above n 79, [1001], [1005] and [1019]. 979 (icty) Kordić – Trial, above n 70, [209], citing (Nuremberg) Einsatzgruppen Case, above n 179, 49 (‘We do not refer to localised outbursts of hatred nor petty discriminations which unfortunately occur in the most civilised of states. When persecutions reach the scale of nation-wide campaigns designed to make life intolerable for, or to exterminate large groups of people, law dare not remain silent’), followed in Simić – Trial, above n 350, [55]. 980 (icty) Simić – Trial, above n 350, [55]–[56]. 981 (icty) Simić – Trial, above n 350, [62]. 982 (icty) Simić – Trial, above n 350, [67]–[69].

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9.3.3 Property Crimes One controversy has been whether crimes directed against property can be sufficient. At Nuremberg, in the Flick Case (later reiterated in the i.g. Farben Case), the Court considered that case of Friedrich Flick, the industrialist charged with acquiring property formerly owned by Jews. The Court held that the application of the principle of ejusdem generis meant that while the destruction of ‘dwellings, household furnishings and food supplies of persecuted people’ may amount to persecution, the act of taking Jewish ‘industrial property’ could not.983 In the Tribunal’s words: The ‘atrocities and offences’ listed therein, ‘murder, extermination’ etc. are all offenses against the person. Property is not mentioned. Under the doctrine of ejusdem generis the catch-all words ‘other persecutions’ must be deemed to include only such as affect the life and liberty of the oppressed peoples.984 Plunder of public and private property was explicitly included in the Nuremberg Charter and Control Council Law No 10 as a war crime, and such acts were charged in many of the Nuremberg trials.985 Acts such as ‘looting of Jewish businesses’ were also charged as persecution as a crime against humanity,986 however convictions were only entered where plunder occurred on a nationwide scale987 (a fact also true in some war crimes cases988). While some other Nuremberg and CCL10 cases appeared to find that persecution could encompass ‘lesser forms of racial persecution’ such as property 983 (Nuremberg) United States v Flick and others 6 ccl 10 Trials 3 (‘Flick Case’), 26, cited in (icty) Tadić – Trial, above n 79, [707]. 984 (Nuremberg) Flick Case, above n 984, 1215 and 1129–1130 (re I G Farben), cited in (eccc) Duch – Appeal, above n 281, [254]. 985 (Nuremberg) Indictment in Göring – Trial, above n 956, 65; Indictment in the case United States v Ulrich Greifelt et al. (‘RuSHA case’), American Military Tribunal (July 1947), in 4 twc 608, 610, 616, 618; Indictment in the case United States v. Oswald Pohl et al. (‘Pohl case’), American Military Tribunal (13 January 1947), in 5 twc 200, 204, 207. 986 (Nuremberg) Nuremberg Judgment, above n 2, 248, 283. 987 (Nuremberg) Nuremberg Judgment, above n 2, 296 (Alfred Rosenberg), 298 (Hans Frank), 306–307 (Walter Funk), 328–329 (Arthur Seyβ-Inquart), 335 (Konstantin von Neurath), 171 (Martin Bormann). 988 (Nuremberg) RuSHA case, American Military Tribunal (10 March 1948), in 5 twc 88, 147–152; Pohl case, American Military Tribunal (3 November 1947), in 5 twc 958, 976–978; United States v. Ernst von Weiszäcker et al. (‘Ministries case’), American Military Tribunal (13 April 1949), in 14 twc 314, 680–794.

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crimes (such as the confiscation of property in the Justice Case989), and looting of Jewish businesses orchestrated by Hermann Göring,990 the eccc Supreme Court Chamber has noted that the World War ii tribunals never considered persecutory acts in isolation, but rather, in the context of a larger persecutory campaign, the ultimate goal of which was the gross violation of fundamental rights.991 The question therefore remains when property crimes will reach the required level. As Lauterpacht put it ‘[p]illage, plunder, and arbitrary destruction of public and private property may, in their effects, be no less cruel and deserving of punishment than acts of personal violence’.992 It will just depend on the circumstances. In line with the standard developed by the Tribunals, such crimes must reach the ‘fundamental rights’ threshold. This will depend on the nature and extent of the destruction or appropriation.993 First, the destruction of public property will suffice in certain ­circumstances. Primarily, the destruction of religious property such as mosques and synagogues, for instance, has been held to suffice as it amounts to ‘an attack on the very religious identity of a people’.994 Other Chambers have held that this

989 (Nuremberg) The Justice Case, above n 11, vol iii, 1063–1064. 990 (Nuremberg) Nuremberg Judgment, above n 2, 283, cited in (icty) Blaškić – Trial, above n 67, [218]–[234]; and Krajišnik – Trial, above n 147, [766]–[767] 991 (eccc) Duch – Appeal, above n 281, [256]; see similar comments in (icty) Krajišnik – Trial, above n 147, [767]. 992 Hersch Lauterpacht, ‘The Law of Nations and the Punishment of War Crimes’ (1944) 21 British Year Book of International Law 58, 79. 993 (icty) Blaškić – Appeal, above n 117, [149], followed in Kordić – Appeal, above n 66, [108]. 994 (icty) Kordić – Trial, above n 70, [206]–[207] (institutions dedicated to Muslim religion or education) and Stakić – Trial, above n 30, [765]–[768] (‘destruction of, or wilful ­damage to, religious and cultural buildings’), followed in Milutinović – Trial, above n 350, [181], [205] (‘religious sites and cultural monuments’); Deronjić – Trial, above n 970, [122] (‘institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science’); Blaškić – Trial, above n 67, [227] (‘­symbolic buildings’); Krajišnik – Trial, above n 147, [780]–[783] (‘cultural monuments and s­ acred sites’); Đorđević – Trial, above n 69, [1773] (‘an institution dedicated to religion’); (­Nuremberg) Nuremberg Judgment, above n 2, 248 and 302 (finding the accused Streicher guilty of crimes against humanity for the demolition on 10 August 1938 of the synagogue in Nuremberg); (Israel) Eichmann Case, above n 399, 276 (the District Court noted the burning and demolition of 267 synagogues on the so-called “Kristallnacht” when discussing “The Persecution of the Jews in Germany”). See also Blaškić – Trial, above n 67, [227] (noting the rejection of the Trial Chamber’s reasoning in Blaškić – Appeal, above n 117).

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also extends to cultural and symbolic monuments995 as well as ‘charity and education, the arts and sciences, historic monuments and works of art and science’.996 The extent to which these other buildings will fall within the crime will depend on their value to the identity and life of the persecuted people. Secondly, the destruction or appropriation of private property will also suffice in certain circumstances. The icty Trial Chamber in Kupreškić found that the destruction of ‘certain types of property’ will suffice where it has a ‘severe enough impact on the victim’.997 The Chamber considered for example that while ‘the burning of someone’s car [would not suffice] unless the car constitutes an indispensable and vital asset to the owner’, the ‘comprehensive destruction of homes and property’ would suffice as it ‘constitutes a destruction of the livelihood of a certain population’. Similarly, the icty Trial Chamber in Kordić found that the destruction of ‘homes and livelihood’ may suffice when the ‘cumulative effect of such property destruction is the removal of civilians from their homes’.998 These decisions have since been followed in the ad hoc Tribunals999 and similar decisions may be found in some domestic decisions.1000 The spet appears to have taken a similar view, having found the crime of persecution to have been committed in the context of the burning down of houses (and also livestock) of perceived pro-independence supporters in East Timor.1001 995 (icty) Stakić – Trial, above n 30, [765]–[768] (‘destruction of, or wilful damage to, religious and cultural buildings’), followed in Milutinović – Trial, above n 350, [181], [205] (‘religious sites and cultural monuments’); Blaškić – Trial, above n 67, [227] (‘symbolic buildings’); and Krajišnik – Trial, above n 147, [780]–[783] (‘cultural monuments and sacred sites’). 996 (icty) Deronjić – Trial, above n 970, [122] (‘institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science’); and Đorđević – Trial, [1771]. While not a persecution case, see discussion of the destruction of the Mostar Bridge in Prosecutor v Prlić (Trial Chamber Judgment), Case No IT-04-74-T (29 May 2013), [1281]–[1282], [1291]–[1293], [1364]–[1366],[1579]–[1611]. 997 (icty) Kupreškić – Trial, above n 34, [631]. 998 (icty) Kordić – Trial, above n 70, [205]. 999 (icty) Following Kupreškić – Trial, above n 34; Blaškić – Appeal, above n 117, [146], followed in Kordić – Appeal, above n 66, [108], following Kordić – Trial, above n 70; Stakić – Trial, above n 30, [763]–[764]; Brđanin – Trial, above n 69, [1023]; Simić – Trial, above n 350, [102]–[103]; Deronjić – Trial, above n 970, [123]; and Milutinović – Trial, above n 350, [204]. But see (BiH) Šimšić – First Instance, above n 971, 104–106 (where the appropriation of money and jewellery was sufficient). 1000 (iht) Anfal – Trial, above n 145, 431–432; (Bangladesh) Sayeedi – Judgment, above n 669, [89] (finding that setting fire to houses constituted persecution), [127]–[139], [164]–[167]. 1001 (spet) Marques – Judgment, above n 34, [757]–[771], [843] and [1049].

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In such cases, villagers had their houses burned, sometimes also with all of their possessions inside, which at least cumulatively resulted in the necessary deprivation of their fundamental rights of property and shelter. While the icty Appeals Chamber in Blaškić queried whether acts of plunder could in themselves reach the necessary threshold,1002 later Trial Chambers have followed the logic in Kupreškić and Kordić to find that they can, at least where they have a ‘serious impact’ on the victim.1003 As suggested by the Appeals Chamber, this position appears to be reinforced by the fact that the icc Statute includes the crime of ‘pillage’ under Article 8(2)(e)(v) and would therefore be caught under the crime of persecution. Of course, it is important to remember that even acts of plunder and other property crimes falling short of this ‘serious impact’ threshold may still constitute an act of persecution when considered with other acts.1004 Applying these principles, the icty Trial Chamber in Blagojević held that the destruction of personal belongings such as clothes, wallets and even identity cards – a technique intended to terrify the men into thinking ‘that they would no longer need this most basic document’ – did not suffice as the ­belongings were not ‘indispensable assets’ and their burning did not have a ‘severe enough impact’ on the victims to amount to persecution.1005 By contrast, a first instance decision of the Court of Bosnia & Herzegovina found that the appropriation of money and jewellery did suffice, although most likely because it was done at gunpoint in very coercive circumstances and were the last remaining possessions of the fleeing victims that may be used to fund their new lives. While robbery and extortion have been held to be sufficient to constitute persecution, these events have been considered more as a violation of the victim’s right to be free from ‘cruel, inhuman or degrading treatment’ rather than their right to property.1006 It is so far unclear what approach the icc will take. The spet – applying a law modelled upon Article 7 of the icc Statute – has held that held that 1002 (icty) Blaškić – Trial, above n 67, [148], fn 310. 1003 See (icty) Krajišnik – Trial, above n 147, [766]–[772] (requiring a ‘serious impact’ on the victim or that it be taken in conjunction with other acts); and Gotovina – Trial, above n 74, [1820], [1839]. 1004 (icty) Krajišnik – Trial, above n 147, [772]. 1005 (icty) Blagojević – Trial, above n 70, [613], [620]. 1006 Robbery: (icty) Martić – Trial, above n 69, [119] fn 226; Lukić – Trial, above n 79, [1008]; and (BiH) Šimšić – First Instance, above n 971, 104–106. Extortion: Kvočka – Trial, above n 70, [496].

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the destruction of property can amount to ‘persecution’ provided that the ‘­connection’ requirement is satisfied.1007 This approach appears sound, especially in light of the position under customary international law. A number of early icc decisions appear consistent with this approach. In the decision of icc Pre-Trial Chamber i authorising an investigation in Georgia, the Chamber considered the crime of persecution to be committed by an attack that included ‘deliberate killing, beating and threatening civilians, detention, looting properties and burning houses’.1008 The Chamber referred to the ‘systematic destruction of Georgian houses’ and the looting of properties before they were burned1009 and the overall context of attempted ethnic cleansing.1010 While not as explicit, icc Pre-Trial Chamber ii in the Ntaganda Confirmation Decision made similarly supportive findings, referring to the ‘right to property’ in the context of discussing persecution.1011 Conduct was Committed ‘in connection with’ Another Underlying Crime The Nuremberg Judgment (and the cases under Control Council Law 10)1012 did not limit persecution to the other crimes in the London Charter and ­included economic and property crimes, such as the imposition of fines and the destruction of property, within the concept of crimes against humanity. The Nuremberg Judgment described numerous acts of persecution against the Jews without always making it clear whether they were relied on as war crimes, crimes against humanity, both or just as historical background. As discussed above, the Judgment referred to the progressively more oppressive treatment of Jews consisting of discriminatory laws limiting the offices and professions open to Jews, restrictions on family life and rights of citizenship, burning and demolishing synagogues, looting businesses, imposing a collective fine, seizing assets, restricting movement, creating ghettos and forcing the wearing of 9.4

1007 (spet) Marques – Judgment, above n 34, [32]–[33] and [1049]. 1008 (icc) Situation In Georgia (Decision on the Prosecutor’s request for authorization of an investigation), ICC-01/15 (27 January 2016) (‘Georgia – Authorization Decision’), [19]–[22], [30]–[31]. 1009 (icc) Georgia – Authorization Decision, above n 1009, [20]. 1010 (icc) Georgia – Authorization Decision, above n 1009, [21]. 1011 (icc) Prosecutor v Bosco Ntaganda (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda), ICC-01/04-02/06 (9 June 2014), [58]. 1012 See Chapter 3, Section 2. See also (Nuremberg) Flick Case, above n 984, 327; and Ministries Case, above n 989, 471 and 675–678.

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a ­yellow star.1013 One such law – the Reich Citizenship Law1014 – decreed that only ‘citizens of German or related blood’ could be citizens of the Reich and thus ‘bearers of full political rights’. The ilc took the same approach, finding that, in addition to the acts enumerated elsewhere in the Statute, persecution may also encompass other acts if they ‘seek to subject individuals or groups of individuals to a kind of life in which enjoyment of some of their basic rights is repeatedly or ­constantly denied.’1015 The commentary to the ilc 1991 Report stated that these acts include:1016 a prohibition on practising certain kinds of religious worship; prolonged and systematic detention of individuals who represent a political, religious or cultural group; a prohibition on the use of a national language, even in private; systematic destruction of monuments or buildings representative of a particular social, religious, cultural or other group. Such acts would come within the scope of this article when committed in a systematic manner or on a mass scale. Accordingly, the ad hoc Tribunals rejected the requirement that the acts or omissions must be in connection with other crimes within the jurisdiction of the Tribunal.1017 While the acts may be committed in connection with other crimes within the jurisdiction – and in practice often are charged as such – they are not required to be. The Tribunals’ approach has the support of many scholars.1018 Section 7(1) No 10 (German) Code of Crimes Against International 1013 See Chapter 2, Section 5.2. See also (Nuremberg) Nuremberg Judgment, above n 2, 247–249. 1014 (Germany) Reich Citizenship Law [Reichbürgregesetz], 15 September 1935, Reichsgesezblatt 1935 I, 1146. 1015 Report of the International Law Commission on the Work of its Forty-Third Session, un gaor, 46th sess, Supp 10, un Doc. A/46/10 (22 October 1991) (‘1991 ilc Report’), 236; see also Report of the International Law Commission on the work of its forty-eighth session, 6 May – 26 July 1996, un gaor, 51st sess, Supp. 10, un Doc. A/51/10 (12 November 1996) (‘1996 ilc Report’), 98. 1016 1991 ilc Report, 268. 1017 (icty) Tadić – Trial, above n 79, [703]–[710]; Kupreškić – Trial, above n 34, [608]–[614], [581]; and Blaškić – Trial, above n 67, [220]–[233], followed in Kordić – Trial, above n 70, [193], [197]–[198]; and Krstić – Trial, above n 70, [535], approved in Krnojelac – Appeal, above n 325, [219], followed in Brđanin – Appeal, above n 149, [296]; Kvočka – Appeal, above n 66, [323]; and (ictr) Semanza – Trial, above n 135, [349]. 1018 See Vespasian Pella, Mémorandum présenté par le Secrétariat, un Doc A/CN.4/39, reprinted in 1950 [ii] Year Book of the International Law Commission 278, 346; Jean Graven, ‘Les

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Law [Völkerstrafgesetzbuch, VStGB] has also taken this view.1019 The ad hoc ­Tribunals have reached their conclusion despite the wording of Article 7(1)(h) of the icc Statute.1020 Article 7(1)(h) of the icc Statute takes a different approach. The statute specifically requires that the conduct be in connection with either another underlying crime in Article 7 or ‘any crime within the jurisdiction of the Court’ (i.e. including genocide and war crimes). This restriction reflects states’ concerns about the looseness of this crime.1021 The precise interpretation to be given to the ambit of the connection requirement is not clear. If read narrowly, the offence is reduced to what is effectively an aggravated form of the other crimes such as murder, torture or imprisonment or imprisonment.1022 As noted in Chapter 5, the same requirement has been incorporated into the statute of the Special Panels of East Timor.1023 Unfortunately, however, there has not been much substantive discussion of the connection requirement. In the Marques case, the prosecution submitted the following in relation to the ambit of the connection requirement:1024 … a multiplicity of grave human rights violations (which are not, as such, enumerated among the inhumane acts), like, for instance severe attacks on personal property or widespread arsons, can be transformed into the crime of persecution by a single connected murder or forcible transfer of population. While the Panel did not indicate whether or not it approved this statement, it accepted the prosecution submissions in the case at hand that the burning Crimes Contre l’Humanité’ (1950-i) 76 Recueil Des Cours 427, 554–555; Bassiouni, above n 510, 326–330; Henri Meyrowitz, La répression par les tribunaux allemands des crimes contre l’humanité et de l’appartenance à une organisation criminelle (1960) 257–259; Schwelb, above n 831, 191; Seventh Report by Mr Doudou Thiam, Special Rapporteur, un Doc A/CN. 4/419 Add 1 (24 February 1989), reprinted in 1989 [ii] 1 Year Book of the International Law Commission 81, 87–88. 1019 See Explanatory Memorandum of the (German) Code of Crimes against International law [Bergründung zum Völkerstrafgesetzbuch, VStGB], BT-Drs 14/8524, p 22. 1020 (icty) Kordić – Trial, above n 70, [197]. 1021 Robinson, above n 896, 54–55. 1022 The special state of mind has been regarded as an aggravating factor in sentencing: (icty) Prosecutor v Todorović (Sentencing Judgment), Case No IT-95-9/1-S (31 July 2001) (‘Todorović – Sentencing’), [32]. 1023 See Chapter 5, Section 3.1.3(b); and (spet) Mesquita – Judgment, above n 511, [72]–[80]. 1024 (spet) Marques – Judgment, above n 34, [42], [757]–[771], [843] and [1049].

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down of houses and the destruction of livestock satisfied the connection requirement as it was part of a larger policy of forcible transfer or deportation of pro-independence supporters in East Timor.1025 The spet later clarified that at least one of the acts or omissions specified as constituting the underlying conduct of persecution must be an enumerated crime.1026 Outside of the Marques decision, while there has again been little discussion of the requirements of the connection element, the factual circumstances in which the crime has been found and the connection satisfied is instructive. The element has typically been satisfied in circumstances where the act: was an underlying crime, occurred contemporaneously in time and place with another underlying crime, or possibly facilitated or enabled another underlying crime: • abduction in connection with ‘imprisonment or other severe deprivation of liberty’ on the apparent basis that it itself constituted or possibly was connected in time and space or enabled another severe deprivation of liberty;1027 • arrest and beating of persons in connection with the crime of ‘imprisonment or other severe deprivation of physical liberty’ and ‘other inhumane acts’ in apparent circumstances where the acts occurred at the same time and place;1028 • arbitrary arrest and detention in connection with the crime of torture in circumstances where the individuals arrested and detained were then tortured;1029 and • deprivation of physical liberty and inhuman acts in circumstances where the arrest, detention and mistreatment ‘illegal detention’ and ‘assault’ in connection with severe deprivation of physical liberty, torture and other inhumane acts.1030 Ultimately, it remains unclear what is necessary to satisfy the connection requirement. It is the authors’ view that the connection requirement should not be read so strictly as to be limited to an aggravated form of an offence but 1025 (spet) Marques – Judgment, above n 34, [406]. 1026 (spet) Mesquita – Judgment, above n 511, [80]. 1027 (spet) Mesquita – Judgment, above n 511, [81]–[90]; and Da Costa – Judgment, above n 182, [75]. 1028 (spet) Barros – Judgment, above n 519, [149]–[154]. 1029 (spet) Soares – Judgment, above n 89, [21]. 1030 (spet) Perreira – Judgment, above n 91, 27–28, 31.

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rather in a manner that requires that there be a real connection to an underlying crime. For instance, it may be that deprivations such as such as deliberate failures to afford due process and arbitrary arrests that facilitate the detention, mistreatment and killing of detainees, or actions such as the destruction of property that further a policy of ethnic cleansing by way of forcible transfer or deportation may be sufficient in the particular circumstances. 9.5 Mens Rea The ad hoc Tribunals have set out the mens rea for persecution as requiring that the perpetrator:1031 1. 2.

carried out the conduct deliberately; and did so with the specific intent to discriminate on the listed grounds, specifically race, religion or politics.

As to the first, this component of the mens rea has received little attention from the ad hoc Tribunals. A question arises as to whether the person must intend only the conduct making up the offence or whether it is also necessary that the perpetrator intend to deprive the victim of a fundamental right. Following Tadić, a number of early Chambers stated that ‘the persecutory act must be intended to cause, and result in, an infringement on an individual’s enjoyment of a basic or fundamental right’.1032 This appears to suggest that the person must have knowledge that the victim is being deprived of one or more fundamental rights. A number of later Tribunals appear to have taken a different approach. In Kordić, the icty Trial Chamber held that the person must have ‘the requisite specific intent to commit the underlying act (such as murder, extermination or torture)’ or, said differently, have the ‘specific intent (to commit the act and produce its consequences)’.1033 Further, following the icty Trial Chamber’s 1031 (icty) Tadić – Trial, above n 79, [715]; Kupreškić – Trial, above n 34, [632]–[636]; and Kordić – Trial, above n 70, [189], [195], [211]–[212], consolidated in Krnojelac – Trial, above n 70, [431], [434] (affirmed in Krnojelac – Appeal, above n 325, [185]), followed in Vasiljević – Appeal, above n 815, [113]; Blaškić – Appeal, above n 117, [131], [165]; Kordić – Appeal, above n 66, [101]; Stakić – Appeal, above n 144, [327]–[328]; Kvočka – Appeal, above n 66, [320], [460]; (ictr) Nahimana – Appeal, above n 815, [985]; Bagosora – Trial, above n 71, [2208]– [2209]; and (eccc) Duch – Trial, above n 66 (affirmed in Duch – Appeal, above n 281, [226]). See also (BiH) Rašević and Todović – First Instance, above n 66, 100; and Šimšić – First Instance, above n 971, 42. 1032 (icty) Tadić – Trial, above n 79, [715]; and Kordić – Trial, above n 70, [189]. 1033 (icty) Kordić – Trial, above n 70, [211]–[212].

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formulation in Krnojelac, a number of later decisions of both Trial and Appeal Chambers at the icty used the terminology that the discrimination or denial of fundamental rights ‘was carried out deliberately’.1034 This suggests that the physical components of the actus reus only must be intended. Such a conclusion is supported by the fact that the focus of the mens rea for persecution has clearly been held to rest on the discriminatory component. The icty Appeals Chamber in Blaškić affirmed the proposition that the mens rea is fundamentally ‘the specific intent to cause injury to a human being because he belongs to a particular community or group’.1035 Ultimately, in light of the above authorities as well as the doctrine of ignorantia juris non excusat (ignorance of the law is no excuse), the conclusion must be that the perpetrator must intend the conduct comprising the underlying acts or omissions, including the detrimental results of that conduct on the victim, but need not appreciate their legal consequences. While this will be clear in most cases (e.g. murder, torture and imprisonment), it will be more difficult in cases such as deprivations of less obvious rights such as due process, employment and privacy. For example, where an arbitrary arrest is relied upon, the perpetrator must intend or have knowledge that the arrest is other than in accordance with the law. Similarly, where an act of persecution only reaches the requisite level of gravity when taken cumulatively with other systematic forms of discrimination and oppression, the perpetrator must intend or know that their acts to further that enterprise. As to the second, the specific intent or dolus specialis component of the mens rea, it is this component that has received most attention in the ad hoc Tribunals. The element requires that the perpetrator intend ‘to cause injury to a human being because he belongs to a particular community or group’.1036 However, while this means that the intent is in some ways ‘aimed at a group, rather than an individual’,1037 the perpetrator need not possess a further ‘­persecutory

1034 (icty) Krnojelac – Trial, above n 70, [431], (affirmed in Krnojelac – Appeal, above n 325, [185]), followed in Vasiljević – Appeal, above n 815, [113] (referring specifically to ‘this act or omission’ being carried out deliberately); Blaškić – Appeal, above n 117, [131]; Kordić – Appeal, above n 66, [101]; Stakić – Appeal, above n 144, [327]–[328] (referring to ‘the intent to commit the underling act’); Kvočka – Appeal, above n 66, [320]. The same approach has been taken in (BiH) Šimšić – First Instance, above n 971, 42. 1035 (icty) Blaškić – Appeal, above n 117, [165]. 1036 (icty) Blaškić – Trial, above n 67, [235], approved in Blaškić – Appeal, above n 117, [165], followed in Kordić – Appeal, above n 66, [111]; and (spet) Marques – Judgment, above n 34, [669]. 1037 (icty) Martić – Trial, above n 69, [121].

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intent’ or persecutory policy or plan beyond the intent to discriminate.1038 Nonetheless, there must be conscious intention; it will not suffice that the accused is reckless, has knowledge of a discriminatory attack, or has knowledge that the perpetrator’s own acts are discriminatory.1039 The discriminatory intent need not be the ‘primary intent’ and the perpetrator may have other motives provided that the discriminatory intent must be ‘significant’.1040 The specific discriminatory intent can be inferred from ‘objective facts and the general conduct of an accused seen in its entirety.’1041 Relevant considerations will include ‘the systematic nature of the crimes committed against a racial or religious group’ and the ‘general attitude of the alleged perpetrator as demonstrated by his behaviour’.1042 For instance, the perpetrator’s participation in an attack knowing its discriminatory purpose will be a relevant consideration.1043 However, the requisite intent cannot be inferred solely from the general discriminatory nature of the attack; discriminatory intent may only be inferred from context of the attack where it is supported by all the circumstances.1044 The Special Panels in East Timor have made a number of findings relevant to persecution. On the one hand, they have found the discriminatory element will not to be satisfied where the perpetrator was motivated by revenge 1038 (icty) Vasiljević – Trial, above n 70, [248]; Blaškić – Appeal, above n 117, [165], followed in Kordić – Appeal, above n 66, [111]. Cf. earlier case of Kordić – Trial, above n 70, [220]. 1039 (icty) Krnojelac – Trial, above n 70, [435]; Vasiljević – Trial, above n 70, [248]; Kordić – Trial, above n 70, [216]–[217]; Blaškić – Appeal, above n 117, [166]; Simić – Trial, above n 350, [51]; Brđanin – Trial, above n 69, [996]; Đorđević – Trial, above n 69, [1759]; see also Naletilić – Trial, above n 393, [638]. 1040 (icty) Krnojelac – Trial, above n 70, [435]–[436]. 1041 (icty) Krnojelac – Appeal, above n 325, [184], followed in Kordić – Appeal, above n 66, [674], [715]; (eccc) Duch – Trial, above n 66, [380]; and Case 002/01 – Trial, above n 66, [429]. 1042 (icty) Krnojelac – Appeal, above n 325, [184], followed in Kvočka – Appeal, above n 66, [460]; and (eccc) Case 002/01 – Trial, above n 66, [429]. 1043 See, for example: (icty) Prosecutor v Blagojević and Jokić (Appeals Chamber Judgment), Case No IT-02-60-A (9 May 2007) (‘Blagojević – Appeal’), [115]. See also Kordić – Trial, above n 70, [218] (‘In practice, it is hard to imagine a case where an accused somehow has the objective knowledge that his or her acts are committed in the context of a widespread or systematic attack against a civilian population, yet remains ignorant of the grounds (racial, religious or political) on which that attack has been launched’). 1044 (icty) Krnojelac – Appeal, above n 325, [184], followed in Blaškić – Appeal, above n 117, [164]; Kvočka – Appeal, above n 66, [366], [460]; Kordić́ – Appeal, [110], [950]; Martić – T ­ rial, above n 69, [121]; Naletilić – Appeal, above n 462, [129], [131], [146], [572]; and Perišić – Trial, above n 100, [122].

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rather than discrimination,1045 where the perpetrator responded in the spur of the moment to a detainee attempting to escape,1046 and appear to have entertained a submission that it will not suffice that an act is indiscriminate in its targeting of victims.1047 On the other hand, a person who is found to have genocidal intent will necessarily have the requisite mens rea for persecution.1048 The mens rea for persecution is a lessor form of persecution than that required for genocide.1049 The crime of persecution also raises more clearly the question of who needs to possess the requisite mens rea discussed in Chapter 9.1050 The icty Appeals Chamber in Stakić approved of the statement of the Trial Chamber to the effect that ‘it is immaterial for the assessment of the intent of the indirect perpetrator whether or not the actor had such a discriminatory intent’ since ‘the actor may be used as an innocent instrument or tool only’.1051 This appears to endorse the conclusion reached by the Trial Chamber in Milutinović that the relevant intention must be possessed by the physical perpetrator or the accused who planned, ordered or instigated the conduct of the physical perpetrator.1052 9.6 Cumulative Charging As with the crime of deportation and forcible transfer, the Tribunals1053 and the icc1054 have held that there is no issue with a prosecutor charging an individual both for an underlying crime (e.g. murder, torture or rape) as well as for the crime of persecution based on the same acts (e.g. of murder, torture or rape). This is despite earlier authority that found them to be impermissibly 1045 (spet) Tacaqui – Judgment, above n 520, 49 (where the militia, having lost a key battle, took out their aggression on the villagers that supported the opposition fighters), followed in Da Costa – Judgment, above n 182, 15–16. 1046 (spet) Perreira – Judgment, above n 91, 23. 1047 (spet) Mesquita – Judgment, above n 511, [625] (p 173). 1048 (ictr) Nahimana – Trial, above n 160, [1077], affirmed in Nahimana – Appeal, above n 815, [1010]. 1049 (icty) Krstić – Trial, above n 70, [553]. 1050 See Chapter 9, Section 8.2.1. 1051 (icty) Stakić – Trial, above n 30, [741], affirmed in Stakić – Appeal, above n 144, [329] and [339]. 1052 (icty) Milutinović – Trial, above n 350, [181], endorsed by Đorđević – Trial, [1761]. 1053 (icty) Kordić – Appeal, above n 66, [1039]–[1043], followed in Stakić – Appeal, above n 144, [358]–[359]; Blagojević – Trial, above n 70, [804]–[810]; Naletilić – Appeal, above n 462, [589]; (ictr) Nahimana – Appeal, above n 815, [1026]; and (eccc) Duch – Appeal, above n 281, [316]–[335]. 1054 (icc) Ruto – Confirmation, above n 392, [280]–[281], citing (icty) Kordić – Appeal, above n 66; Blagojević – Trial, above n 70; and Stakić – Appeal, above n 144.

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cumulative.1055 As noted by the icty Appeals Chamber in Kordić, such charges are not cumulative because persecution contains a materially distinct element not contained in each of the underlying crimes – namely, the specific intent to discriminate. 10

Enforced Disappearance

As noted above, while the crime of enforced disappearance is proscribed in Article 7(1)(i) of the icc Statute and some of the ad hoc Tribunals,1056 the majority of tribunals have considered enforced disappearances in the context of persecution or other inhumane acts. In that context, they have defined it slightly differently on each occasion. The elements can be broadly summarised as follows:1057 1. 2.

An individual is deprived of his or her liberty. The deprivation of liberty is followed by the refusal to disclose information regarding the fate or whereabouts of the person concerned, or to acknowledge the deprivation of liberty, and thereby deny the individual recourse to the applicable legal remedies and procedural guarantees.1058 3. The first and second elements were carried out by state agents, or with the authorisation, support or acquiescence of a State or political organisation. Under Article 7(2)(i) of the icc Statute, the crime of ‘enforced disappearance’ 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.’ The icc 1055 (icty) Vasiljević – Appeal, above n 815, [146]; and Krnojelac – Appeal, above n 325, [188], followed in Krstić – Appeal, above n 173, [231]–[233]. 1056 (spet) For instance, the Special Panels in East Timor (untaet Regulation 2000/15, s 5.1(i), s 5.2(h)). For the elements, see Maubere – Sentence, above n 645, 14. 1057 (icty) Gotovina – Trial, above n 74, [1837] (listing only the first two elements); (eccc) Case 002/01 – Trial, above n 66, [448]; (eac) Habré – Trial, above n 719, [1468]–[1471]; (BiH) Rašević and Todović – First Instance, above n 66, 98. 1058 (BiH) The definition expresses this final part differently, requiring that the acts be committed ‘with the aim of removing those persons from the protection of the law for a prolonged period of time’: Rašević and Todović – First Instance, above n 66, 98.

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Elements of Crimes requires the prosecution establish that the following elements occurred as part of a widespread or systematic attack against any civilian population:1059 1.

The perpetrator: a. Arrested, detained1060, 1061 or abducted one or more persons;1062 or b. Refused to acknowledge the arrest, detention or abduction, or to give information on the fate or whereabouts of such person or persons.1063 [Mental element: The perpetrator:1064 a. meant to perform one or more act or omission; and b. either: (i) meant, by such act(s) or omission(s), to arrest, detain or abduct one or more persons, or refuse to acknowledge the arrest, detention or abduction or give information on the fate or whereabouts of such person or persons; or (ii) was aware that such a consequence would occur in the ordinary course of events as a result of the act(s) or omission(s).] 2. [Either]:1065 a. such arrest, detention or abduction was followed or accompanied by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of such person or persons;1066 or 1059 Footnote to the Elements of Crimes reads: ‘This crime falls under the jurisdiction of the Court only if the attack referred to in elements 7 and 8 occurs after the entry into force of the Statute.’ 1060 Footnote to the Elements of Crimes reads: ‘The word “detained” would include a perpetrator who maintained an existing detention.’ 1061 Footnote to the Elements of Crimes reads: It is understood that under certain circumstances an arrest or detention may have been lawful. 1062 See also (icty) Gotovina – Trial, above n 74, [1837] (‘one or more persons are deprived of their liberty’); (BiH) Rašević and Todović – First Instance, above n 66, 98; (iht) Anfal – Trial, above n 145, 666; and 1991 Incidents Case – Summary, above n 65, 104–105. 1063 See also (icty) Gotovina – Trial, above n 74, [1837]; (BiH) Rašević and Todović – First Instance, above n 66, 98; and (iht) Anfal – Trial, above n 145, 666–667; and 1991 Incidents Case – Summary, above n 65, 104–105. While Gotovina and Rašević provide only that the denial must ‘follow’ the deprivation of liberty, Anfal accepts that denial may also come ‘simultaneously with’ the deprivation. 1064 No mental element is specified meaning that Article 30 of the icc Statute provides that ‘intent and knowledge’ apply as discussed above at Section 1.2.3. 1065 Ibid. 1066 See also (iht) Anfal – Trial, above n 145, 667; and 1991 Incidents Case – Summary, above n 65, 104–105.

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b.

such refusal was preceded or accompanied by that deprivation of freedom.1067 3. [Mental element:] The perpetrator was aware that:1068 a. such arrest, detention or abduction would be followed in the ordinary course of events by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of such person or persons;1069 or b. such refusal was preceded or accompanied by that deprivation of freedom. 4. Such arrest, detention or abduction was carried out by, or with the authorization, support or acquiescence of, a State or a political ­ organization.1070 [Mental element: The perpetrator was aware that the arrest, detention or abduction was carried out by, or with the authorization, support or acquiescence of, a State or a political organization.1071] 5. Such refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of such person or persons was carried out by, or with the authorization or support of, such State or political organization.1072 [Mental element: The perpetrator was aware that the refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of such person or persons was carried out by, or with the authorization or support of, such State or political organization.1073]

1067 Elements of Crimes specifically ‘otherwise provide’ the mens rea element for this actus reus element and so the ordinary default rules discussed above at Section 1.2.3 do not apply. 1068 Footnote to the Elements of Crimes reads: ‘This element, inserted because of the complexity of this crime, is without prejudice to the General Introduction to the Elements of Crimes.’ 1069 Footnote to the Elements of Crimes reads: ‘It is understood that, in the case of a perpetrator who maintained an existing detention, this element would be satisfied if the perpetrator was aware that such a refusal had already taken place.’ 1070 See also (BiH) Rašević and Todović – First Instance, above n 66, 98; and (iht) Anfal – Trial, above n 145, 667. Cf. (icty) Gotovina – Trial, above n 74, [1837]. 1071 No mental element is specified meaning that Article 30 of the icc Statute provides that ‘intent and knowledge’ apply as discussed above at Section 1.2.3. 1072 Ibid. 1073 Ibid.

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[Mental element:] The perpetrator intended to remove such person or persons from the protection of the law for a prolonged period of time.1074

10.1 Introduction Despite the complicated way in which the crime is laid out in the icc Elements of Crimes, the crime can be understood as constituting the following elements: 1. 2. 3. 4.

5.

One or more persons are arrested, detained or abducted. The deprivation of freedom is followed by a refusal to acknowledge the deprivation of freedom or to give information on the fate or whereabouts of such person or persons. Elements 1 and 2 are carried out by, or with the authorization or support of, such State or political organization. The perpetrator: a. commits the deprivation of freedom element knowing the refusal to acknowledge element would follow in the ordinary course of events; or b. commits the refusal to acknowledge element knowing that it accompanied or followed the deprivation of freedom. The perpetrator intended to remove such person or persons from the protection of the law for a prolonged period of time.

The crime of ‘enforced disappearance’ is a new crime introduced by the icc Statute. Nonetheless, the origin of the crime dates back to Nuremberg with the 1941 ‘Nacht und Nebel Erlass’ (Night and Fog Decree).1075 Pursuant to this decree, persons from occupied territories were seized and secretly deported to ­Germany where they were then held in secret in concentration camps. While Field Marshal Wilhelm Keitel was convicted of war crimes for participating in these acts and not strictly crimes against humanity, the facts mimic the crime that today would constitute enforced disappearance. As the imt Judgment noted:

1074 See also (BiH) Rašević and Todović – First Instance, above n 66, 98; and (iht) Anfal – Trial, above n 145, 667. While the icty Trial Chamber in Gotovina did not explicitly specify a mens rea for the underlying offence, the fact that it was dealt with as conduct amounting to ‘persecution’ indicates that the conduct must have been performed deliberately (see above, Section 9.5). 1075 See discussion at (BiH) Rašević and Todović – First Instance, above n 66, 88–90; and (eccc) Case 002/01 – Trial, above n 66, [444]–[445].

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After these civilians arrived in Germany, no word of them was permitted to reach the country from which they came or their relatives; even in cases where they died awaiting trial the families were not informed, the purpose being to create anxiety in the minds of the family of the arrested person.’1076 Despite this early instance, the notion of ‘enforced disappearance’ – as a ­particular violation of a human right and a crime – did not truly develop until the 1980s in response to the practices of Latin American governments during the so-called ‘Dirty Wars’. In 1983, the oas General Assembly declared that enforced disappearance ‘is an affront to the conscience of the hemisphere and constitutes a crime against humanity.’1077 In 1984, the Parliamentary Assembly of the Council of Europe similarly declared that ‘the recognition of enforced disappearance as a crime against humanity is essential if it is to be prevented and its authors punished.’1078 The resolution called ‘on the governments of the member states of the Council of Europe to support the preparation and adoption by the United Nations of a declaration setting forth the following principles [that] [e]nforced disappearance is a crime against humanity.’1079 Despite these pronouncements, the normative status of the crime remained unclear. In 1988, the Inter-American Court held that ‘[i]nternational practice and doctrine have often categorized disappearances as a crime against humanity,’ but that ‘there is no treaty in force which is applicable to the States Parties to the Convention and which uses this terminology’.1080 The crime came a step closer in 1992 when the un General Assembly adopted the Declaration on the Protection of All Persons from Enforced Disappearance, which stated that ‘enforced disappearance undermines the deepest values of any society committed to respect for the rule of law, human rights and fundamental freedoms, and that the systematic practice of such acts is of the nature of a crime against

1076 (Nuremberg) International Military Tribunal, Judgment of 1 October 1946 (‘imt ­Judgment’), Trial of the Major War Criminals before the International Military Tribunal (‘Blue Series’), Vol. I (1947), 232–233. 1077 oas Doc. AG/Res. 666 (XIII-0/83), 18 November 1983, [4]. See also, oas Doc. AG/RES. 742 (XIV-O/84), 17 November 1984. 1078 Parliamentary Assembly Council of Europe Resolution 828 (26 September 1984) (‘pace Res. 828’), [12]. 1079 pace Res. 828, above n 1079, [13]. 1080 (ICtHR) Velasquez Rodriguez v Honduras (Judgment), Inter-American Court of Human Rights, Petition No. 7920/1981 (29 July 1988) (‘Velasquez Rodriguez – Judgment’), [153].

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humanity.’1081 Since then, disappearances have been discussed on a number of occasions in the European Court of Human Rights.1082 The first instance of binding law came with the 1994 Inter-American ­Convention on the Forced Disappearances of Persons.1083 This Convention requires each state to proscribe as criminal the practice of enforced disappearance when: committed in its territory, committed by its nationals, (if it sees fit) committed against its nationals, and in any other case in which it chooses not to extradite an offender. It further contains an extradite or prosecute provision and eliminates any statute of limitations.1084 The crime appeared for the first time as one of the offences included within the definition of crimes against humanity in the 1996 ilc Draft Code.1085 Since the 1994 Convention, the crime has been proscribed in the 2006 Convention for the Protection of All Persons from Enforced Disappearance1086 and – most importantly – the icc Statute.1087 The difficulty with relying on the icc Statute as evidence of custom is that not all states supported its inclusion in the icc statute. Schabas describes the crime as ‘perhaps the most troublesome of the acts of crimes against humanity’ at the Committee of the Whole at the Rome Conference.1088 Despite this resistance, the crime was ultimately included at the instance of a number of Latin American countries because of their own experiences with the crime.1089 The detailed and complicated definition reflects that experience. 1081 un ga Resolution 47/133 (1992), un Doc. A/RES/47/133, 47th sess, 92nd plen. mtg (18 ­December 1992). 1082 See, for example, (ECtHR) Kurt v Turkey (Judgment), European Court of Human Rights, App No 24276/94 (25 May 1998) (‘Kurt v Turkey’), [87]–[99], [122]–[123]; Cakici v Turkey (Judgment), European Court of Human Rights, App No 23657/94 (8 July 1999) (‘Cakici v Turkey’); and Cyprus v Turkey (Judgment), European Court of Human Rights, App No 25781/94 (10 May 2001) (‘Cyprus v Turkey’). 1083 On 9 June 1994: see (1994) 33 ilm 1529. 1084 See Arts 4, 6, 7: (1994) 33 ilm 1529, 1530–1531. 1085 1996 ilc Report, 94 (Art 18). 1086 (Entered into force 28 March 1996). See Preamble, (‘the systematic practice of the forced disappearance of persons constitutes a crime against humanity’); and Art 2 (defines the legal elements of the offence); Article 4 (obliges State parties to include enforced disappearance as a criminal offense under domestic law and exercise jurisdiction over cases committed in their jurisdiction when the perpetrator is a citizen or when the perpetrator is in its territory). 1087 icc Statute, Art 7(1)(i). 1088 Schabas, above n 894, 204. 1089 von Hebel and Robinson, above n 510, 102; and McCormack, above n 5, 198.

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There are, accordingly, differing views on the customary status of ‘enforced disappearance’ as a crime against humanity. On the one hand, on the basis of the lack of agreement at the icc, some commentators have suggested that the inclusion of the crime within the icc Statute has not codified existing customary international law but instead contributed to the crystallization of a nascent rule’ derived from treaty law, human rights law and un General Assembly Resolution.1090 On the other hand, a number of courts have reached ­different conclusions. The eac in Habré found that the crime was now enshrined in ­customary international law by reason of the 2006 Convention and the icc Statute.1091 The Court of Bosnia & Herzegovina in Rašević and Todović held that the 1994 Convention indicated that the crime was established under customary international law even prior to the icc Statute (and therefore applicable, for instance, to the Yugoslav conflict in 1991–1994).1092 Finucane has expressed the view that it was a crime at the time of the Second World War.1093 The view that the crime has now gained the status of customary i­ nternational law is strengthened by the fact that, since the icc Statute, there have been a number of convictions for enforced disappearances as a crime against ­humanity outside the icc. This includes in the Court of Bosnia & ­Herzegovina in Rašević and Todović,1094 the Iraqi High Tribunal in the Al-Anfal case1095 and 1991 Incidents case1096 and the Extraordinary African Chambers in Senegal in the Habré case.1097 Further, a number of icty Tribunals have, and the eccc Trial Chamber has, found that enforced disappearances are sufficiently serious to be able to constitute the crimes of ‘persecution’ or ‘other inhumane acts’ as a crime against humanity on the basis of the ejusdem generis principle.1098 There have also been convictions in state courts of Argentina and Guatemala.1099 Accordingly, while the crime may not yet be considered customary international law, it is certainly de lege ferenda. This is particularly so given the 1090 Cassese, above n 108, 98. 1091 (eac) Habré – Trial, above n 719, [1468]–[1471]. 1092 (BiH) Rašević and Todović – First Instance, above n 66, 90. 1093 Brian Finucane, ‘Enforced Disappearance as a Crime under International Law: A ­Neglected Origin in the Laws of War’ (2010) 35 Yale Journal of International Law 171, 172. 1094 (BiH) Rašević and Todović – First Instance, above n 66, 97–99. 1095 (iht) Anfal – Trial, above n 145, 666–667. 1096 (iht) 1991 Incidents Case – Summary, above n 65, 104–105. 1097 See Chapter 5, Section 3.7.3. 1098 (icty) Kupreškić – Trial, above n 34, [566], followed in Kvočka – Trial, above n 70, [208]; Gotovina – Trial, above n 74, [1839]; and (eccc) Case 002/01 – Trial, above n 66, [448]. 1099 See Chapter 7, Sections 4.1 (Argentina) and 4.3 (Guatemala).

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s­ upport of the Latin American countries (which is of particular importance given they have arguably been specially affected by the conduct), its ultimate inclusion in the icc Statute, and as well the endorsement of a number of judicial convictions. Once it becomes custom, then the icc Statute is likely to reflect its definition. Nonetheless, the practice of the Latin American countries – and the ICtHR in particular – will no doubt be relevant in interpreting the contours of the offence. While this is discussed, where relevant, in relation to each element, the general observation should be kept in mind that the crime is intended to encompass a violation that is not ‘only’ comprised of its parts such as k­ idnapping, torture or homicide, but is a ‘multiple-offence crime’:1100 a differentiated phenomenon characterized by the multiple and ­continued violation of rights established in the [ia] Convention, since it does not only produces an arbitrary deprivation of freedom, but also violates the personal integrity and safety and endangers the life of the persons, placing him in a state of full defencelessness and leading to linked crimes. One spet Panel similarly described the value protected by the crime as being ‘not only the freedom of the victim but more specifically the lack of external protection (legal) and the lack of external knowledge about the situation of the victim’.1101 10.2 Arrest, Detention or Abduction The first element of the crime is that one or more persons are arrested, detained or abducted.1102 As the Court of Bosnia & Herzegovina has held in considering legislation modelled on the icc, this element of the offence is satisfied by ‘secured detention, transfers, transportations and takings away of persons from initial detention or custody locations to other locations’.1103 This element 1100 (IACtHR) Velásquez Rodríguez v Honduras, above n 1081, [155]; and Gómez Palomino v Perú (Merits, Reparations and Costs), Inter-American Court of Human Rights, (ser. C) No 136 (22 November 2005) (‘Gómez Palomino v Perú’), [92]. 1101 (spet) Mesquita – Judgment, above n 511, [86]. 1102 icc Statute, Art 7(2)(i); icc Elements of Crimes, Art 1(a). See also (icty) Gotovina – Trial, above n 74, [1837] (‘one or more persons are deprived of their liberty’); (eccc) Case 002/01 – Trial, above n 66, [448]; (BiH) Rašević and Todović – First Instance, above n 66, 98; (iht) Anfal – Trial, above n 145, 666; and 1991 Incidents Case – Summary, above n 65, 104–105. 1103 (BiH) Rašević and Todović – First Instance, above n 66, 98.

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may be established even where the arrest, detention or abduction is lawful; the element is a factual element and need not in itself be illegal.1104 The prosecution need only establish that the victims are arrested, detained or abducted – it is not required to establish where the victims were taken or that they were killed.1105 For example, the European Court of Human Rights found a violation under Article 2 of the Convention (the right to life) where the State was not responsible for the disappearance or death itself, but there was proof that the victim was taken into State custody and the State has failed to conduct an effective investigation into the fate of disappeared persons.1106 Naturally, such a situation may face difficulties in respect of the mens rea element (discussed below). The Latin American context suggests, however, that the arrest, detention or abduction must be of a ‘continuous or permanent character’.1107 It is the prolonged isolation that produces a ‘situation of particular vulnerability and augments the risks of aggression and arbitrariness in the detention centres’.1108 Accordingly, one scholar suggests that the Venezuelan case of “ruleteo” – where the police detained someone and took him from police station to police station without offering any information, but the victim reappeared hours after the detention – was an illegal practice, but would not constitute a forced disappearance because it is not conduct apt to endanger other interests.1109 10.3 Followed by a Refusal to Communicate Whereabouts or Information The second element of the crime is that the deprivation of liberty must be followed by or accompanied by a refusal to acknowledge the arrest, detention 1104 (spet) Mesquita – Judgment, above n 511, [85]; (IACtHR) Case of Heliodoro Portugal v Panamá, (Preliminary Exceptions, Merits, Repairs and Costs), Inter-American Court of Human Rights, (ser. C) No 186 (12 August 2008) (‘Case of Heliodoro Portugal v ­Panamá’), [192]; and Blanco Romero & Ors v Venezuela, (Merits, Reparation and Costs), ­Inter-American Court of Human Rights, (ser. C) No 138 (28 November 2005) (‘Blanco Romero v Venezuela’), [105]. 1105 See, for instance (BiH) Rašević and Todović – First Instance, above n 66, 98 (where victims were taken into the custody of the Foča Tactical group and handed over to the military without being seen or heard from again). 1106 (ECtHR) Cyprus v Turkey, above n 1083, cited in (icty) Gotovina – Trial, above n 74, [1835]. 1107 (IACtHR) Case of Heliodoro Portugal v Panamá, above n 1105, [34]; Case of Ticona Estrada and Otros v. Bolivia, Merits, Reparation and Court expenses (27 November 2008), [28]ff. 1108 (ICtHR) Case of Bámaca Velásquez v Guatemala (Merits, Reparation and Costs), InterAmerican Court of Human Rights, (ser. C) No 70 (25 November 2000), [150]. 1109 Modolell González, ‘The Crime of Forced Disappearance of Persons According to the Decisions of the Inter-American Court of Human Rights’ (2010) 10 International Criminal Law Review 475, 483.

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or abduction, or to give information on the fate or whereabouts of such person or persons.1110 As held by the Court of Bosnia & Herzegovina, it is implicit that ­giving false information about the victim’s whereabouts or fate constitutes refusal or failure to give information and satisfies the third element of the offense.1111 Interestingly, it is this element of the crime that has frequently been used by Latin American courts to tackle difficult jurisdictional impediments, in particular statutes of limitations. The Inter-American Court of Human Rights has found that the crime of enforced disappearance is a crime of a ‘continuing’ nature, meaning that, despite the deprivation of liberty occurring many years previously, the crime does not cease being committed until the fate or whereabouts of the victim is determined.1112 The same conclusion was also reached in Spain in the context of the investigation of Franco-era atrocities  in Spain.1113 In that context, however, an alternative position argued has been that the crime of ends once the death of the victim has become ‘notorious’.1114 It is perhaps to address this reasoning that the icc Elements of Crimes specifically states in a footnote to the crime that the court will only have jurisdiction over the crime if ‘the attack’ – not the crime itself – occurs after the entry into force of the Statute. It would be difficult to argue that an ‘attack’ will be ongoing simply by way of an ongoing refusal to acknowledge arrests, detentions or abductions that occurred decades earlier. 10.4 Official Participation The icc statute requires that both substantive elements – the custody element and the denial element – be carried out with the ‘authorization, support

1110 icc Statute, Art 7(2)(i); icc Elements of Crimes, Art 1(b), [2]. See also (icty) Gotovina – Trial, above n 74, [1837]; (BiH) Rašević and Todović – First Instance, above n 66, 98; (eccc) Case 002/01 – Trial, above n 66, [448]; (iht) Anfal – Trial, above n 145, 666–667; and 1991 Incidents Case – Summary, above n 65, 104–105. While Gotovina and Rašević provide only that the denial must ‘follow’ the deprivation of liberty, Anfal accepts that denial may also come ‘simultaneously with’ the deprivation. 1111 (BiH) Rašević and Todović – First Instance, above n 66, 98. 1112 (IACtHR) Case of Heliodoro Portugal v Panamá, above n 1105, [34]–[35]. 1113 See Chapter 7, Section 3.5.2(b). 1114 Chief Prosecutor Javier-Alberto Zaragoza Aguado, Report in support of appeal against Garzon’s competency to open proceedings (23 October 2008), cited in Peter Burbidge, ‘Waking the Dead of the Spanish Civil War: Judge Baltasar Garzon and the Spanish Law of Historical Memory’ (2011) 9 Journal of International Criminal Justice 753, 765, fn 46.

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or acquiescence of, a State or a political organization’.1115 The reason being, of course, because the essential wrong of the crime is not that an individual hides the disappearance of another individual; it is that the state (usually the territorial state) itself hides the disappearance. This reflects the position in Latin America, which requires that the crime be committed by ‘persons or groups of persons that act with the authorization, the help or acquiescence of the State’.1116 Accordingly, in the Blake case, civil patrols acting with the acquiescence of the Guatemalan government were within the ambit of the crime.1117 This element raises difficult questions that are useful to consider in comparison to the policy element under Article 7. While the policy component of this element is likely to be largely in line with the way in which this text has interpreted the requisite policy for crimes against humanity, the term ‘political organization’ is likely to be similar but not entirely the same as the term ‘Organizational’.1118 As to the addition of the word ‘political’, the historical context of enforced disappearances being perpetrated by the state machinery and the context of the term among the other elements of the crime (e.g. the refusal to provide information on the victim1119 and the intention to remove the ­victim ‘from the protection of the law’) all suggest a more restrictive interpretation than that suggested by the authors for the policy element.1120 As has been pointed out, the crime presupposes that the offender has a special legal duty to provide information about a detainee’s whereabouts.1121

1115 icc Statute, Art 7(2)(i); icc Elements of Crimes, [4], [5]; (eccc) Case 002/01 – Trial, above n 66, [448]; (BiH) Rašević and Todović – First Instance, above n 66, 98; and (iht) Anfal – Trial, above n 145, 667. Cf. (icty) Gotovina – Trial, above n 74, [1837]. 1116 (IACtHR) Gómez Palomino v Perú, above n 1101, [100]–[101]; and Blanco Romero v Venezuela, above n 1105, [105]. 1117 (IACtHR) Blake v Guatemala, (Merits), Inter-American Court of Human Rights, (ser. C) No 36 (24 January 1998), [78]; see also Case of Florencio Chitay Nech et al. v Republic of Guatemala (Preliminary Objections, Merits, Reparations and Costs), Inter-American Court of Human Rights, (ser. C) No 212 (25 May 2010), [49]. 1118 See Chapter 8, Section 4.7 (in respect of the position under custom) and Chapter 9, Section 7.2 (in respect of the position under the icc Statute). 1119 See discussion of this aspect in Irena Giorgou, ‘State Involvement in the Perpetration of Enforced Disappearance and the Rome Statute’ (2013) 11(5) Journal of International Criminal Justice 1001, 1012–1014. 1120 For a differing view on the relationship between this element and the ‘organizational’ element in the chapeau, see: Giorgou, above n 1120. 1121 González, above n 1110, 487.

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Ultimately, the precise ambit of the term is not clear. In light of the sources above, the credible argument may be made that the term appears to be limited to states and those non-state entities that have the political qualities of a state rather than armed groups in the context of an armed conflict (even possibly powerful armed groups with de facto control over territory) that may be able to constitute ‘organizations’ for the chapeau component. One author has suggested the organization must be ‘state-like’.1122 Another has offered the view that it would include ‘not any kind or organizations with political purpose or ambitions, but solely those organizations which replace a State in at least some of its functions’.1123 Considering the nature of the crime, the organization in question must be of such a nature that has the capacity and responsibility to extend the ‘protection of the law’ to those who have disappeared within its sphere of control. Relevant indicia would include the organisation having a mechanism for individuals to make complaints about disappearances and for the organization to have some capacity or responsibility to conduct investigations into and prosecutions of the perpetrators. This will raise difficult questions of fact and degree. One such difficult case may arise in the context of the Kosovo Liberation Army, which may come under consideration by the Specialist Chambers of Kosovo.1124 10.5 Perpetrator Participation As acknowledged by the icc Elements of Crimes, the crime of ‘enforced disappearance’ is complex and will usually involve a wide range of actors. Further, the harm caused by ‘enforced disappearance’ arises from the person being taken into official custody and them or others (usually their family members) being refused an official answer about their whereabouts. Accordingly, the Elements of Crimes make clear that any individual perpetrator need only take part in either the custody element or the refusal element – they need not be involved in both. Difficult questions are likely to arise in how the perpetrator is required to take part in these aspects of the crime. For instance, does the crime capture only the person who orders the arrest or also anyone who participates in any way? What about the person who operates the telephone fielding the requests 1122 Giorgou, above n 1120, 1020. 1123 Lisa Ott, Enforced Disappearance in International Law (Intersentia, Antwerp: 2011), 25. 1124 For a discussion of that prospect, see Gabriella Citroni, ‘The Specialist Chambers of Kosovo: The Applicable Law and the Special Challenges Related to the Crime of Enforced Disappearance’ (2016) 14 Journal of International Criminal Justice 123.

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from family members of disappeared persons? These questions are likely to be resolved in a similar way to those discussed in respect of extermination.1125 10.6 Mens Rea While the precise wording of the mens rea is set out in the icc Elements of Crimes, the mens rea for enforced disappearance essentially contains three aspects: 1. 2. 3.

The intention to undertake one of either the custody or the refusal element.1126 The knowledge that the other of the custody or refusal element is present or would occur in the ordinary course of events.1127 The specific intention to remove the person from the protection of law for a prolonged period of time.1128

This mens rea is probably the most complex of any of the underlying crimes owing to the complexity of the crime itself and the range of ways in which a perpetrator may take part in the crime (discussed above1129). As to the first two aspects of the mens rea, the result is essentially that while the perpetrator may only take part in one of the two main elements of the crime, the perpetrator must be aware that their actions form a crucial part of the crime taking place. As to the third aspect, this requires the specific intent that the removal of the person is in order to remove them from the protection of the law and that it be for a ‘prolonged period of time’. The most difficult questions appear to arise in respect of the specific intention aspect. The primary point to be made is there must be an intention that the person is taken into custody and a refusal to communicate information about that person for the purposes of removing them from the protection of law. For instance, the Special Panels in East Timor have held that the requisite mens rea was not established where the perpetrators detained a person in 1125 See above, Section 3.2. 1126 While not specified, this is implicit from icc Elements of Crimes, [3]; read with icc Statute, Art 30. 1127 icc Elements of Crimes, [3]; see also (iht) Anfal – Trial, above n 145, 667. 1128 icc Elements of Crimes, [3]; see also (BiH) Rašević and Todović – First Instance, above n 66, 98; and (iht) Anfal – Trial, above n 145, 667. While the icty Trial Chamber in Gotovina did not explicitly specify a mens rea for the underlying offence, the fact that it was dealt with as conduct amounting to ‘persecution’ indicates that the conduct must have been performed deliberately (see above, Section 9.5). 1129 See above at Section 10.5.

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order to mistreat and kill him, and then later exhumed and hid the body in order to frustrate any investigation.1130 This finding is doubtful. It would appear to suggest a tenuous distinction between removing a person from the protection of the law and covering up a murder. Nowak has criticised this element on the basis that it may prove extremely difficult to prove in practice:1131 perpetrators usually only intend to abduct the victim without leaving any trace in order to bring him (her) to a secret place for the purpose of interrogation, intimidation, torture or instant but secret assassination. Often many perpetrators are involved in the abduction and not everybody knows what the final fate of the victim will be. It is unlikely that the drafters would have intended such a result and much of the criticism would appear to fall away once the term ‘prolonged’ is properly understood (discussed below). Factually speaking, the removal of a person to a secret location without adhering to procedural safeguards or judicial process must lead to a strong factual inference that that the intention is to remove the person from the protection of the law. The failure to release that person or communicate the person’s whereabouts must immediately ground the further inference that such actions are being taken to remove the person from the law for as long a period of time as such conduct continues. Two further questions arise: what amounts to ‘protection of law’ and how long is a ‘prolonged period of time’? As to the first, protection of the law, it would appear that this is a question not only of domestic law but also of basic international standards. The icty Trial Chamber in Gotovina quoted the following passage from the decision of the European Court of Human Rights in Kurt v Turkey:1132 … any deprivation of liberty must not only have been effected in conformity with the very substantive and procedural rule of national rules but must equally be in keeping with the very purpose of Article 5 [the right to liberty and security], namely to protect the individual from 1130 (spet) Maubere – Sentence, above n 645, 14–16. 1131 Report Submitted by Mr. Manfred Nowak, Independent Expert Charged with Examining the Existing International Criminal and Human Rights Framework for the Protection of Persons from Enforced or Involuntary Disappearances, pursuant to paragraph 11 of Commission Resolution 2001/46, un Doc. E/CN.4/2002/71 (8 January 2002), § 74. 1132 (ECtHR) Kurt v Turkey, above n 1083, [122]–[123], cited in (icty) Gotovina – Trial, above n 74, [1834].

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arbitrariness […] What is at stake is both the protection of the physical liberty of individuals as well as their personal security in a context which, in the absence of safeguards, could result in a subversion of the rule of law and place detainees beyond the reach of the most rudimentary form of legal protection. This element may act as a gateway for the introduction of international human rights jurisprudence in regard to an individual’s right to an adequate remedy for a violation of a person’s right to life. For instance, as discussed by the icty Trial Chamber in Gotovina, the ECtHR has addressed the situation where the state is not responsible for the disappearance or death, but there was proof that the State failed to conduct an effective investigation to ascertain the whereabouts and fate of missing persons.1133 However, as noted above in relation to imprisonment, deportation and forcible transfer and persecution, caution1134 should be used when importing human rights standards into international criminal law. As to the second, the term prolonged period of time, there is unlikely to be any clear minimum requirement. While enforced disappearances usually extend over the period, that does not appear to necessarily mean that prolonged should be limited to that length of time frame. Particularly in light of the primary intention being to remove a person from the protection of the law and the unlikelihood that the definition would have been drafted to require at the time of a removal a final decision on how long the person would be held for, the function of the term appears to be exclude de minimis instances where an ­alleged perpetrator temporarily removes a person from the protection of the law on legitimate or lawful grounds. Detaining persons incommunicado for interrogations, for instance, would not seem to suffice, provided that they are lawful and that the person is released as soon as any lawful purpose is served. ­Difficult questions will arise – as in the case of deportation and forcible ­transfer – where domestic laws are not enacted or followed bona fide. 11 Apartheid Article 7(1)(j) proscribes ‘apartheid’ as a crime against humanity. Article 7(2)(h) defines ‘apartheid’ as meaning ‘inhumane acts of a character similar to those referred to in [Article 7(1)], committed in the context of an institutionalized 1133 (icty) Gotovina – Trial, above n 74, [1835], citing Cakici v Turkey, above n 1083; and Cyprus v Turkey, above n 1083. 1134 See also above at Section 1.2.2.

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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’. The icc Elements of Crimes requires the prosecution establish that the following elements occurred as part of a widespread or systematic attack against any civilian population: 1.

2. 3. 4. 5.

The perpetrator committed an inhumane act against one or more persons. [Mental element: The perpetrator:1135 a. meant to perform one or more act or omission; and b. either: (i) meant, by such act(s) or omission(s), to commit an inhumane act against one or more persons; or (ii) was aware that such a consequence would occur in the ordinary course of events as a result of the act(s) or omission(s).] Such act was an act referred to in article 7, paragraph 1, of the Statute, or was an act of a character similar to any of those acts.1136 [Mental element:] The perpetrator was aware of the factual circumstances that established the character of the act.1137 The conduct was committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups. [Mental element:] The perpetrator intended to maintain such regime by that conduct.1138

11.1 Introduction The crime of ‘apartheid’ is also a crime introduced by the icc Statute. However, it was referred to as a crime against humanity earlier in the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against 1135 No mental element is specified meaning that Article 30 of the icc Statute provides that ‘intent and knowledge’ apply as discussed above at Section 1.2.3. 1136 Footnote to Elements of Crimes reads: ‘It is understood that “character” refers to the nature and gravity of the act.’ 1137 (icc) icc Statute, Art 7(1)(g)-6; icc Elements of Crimes, [3], cited in Kenya – Authorisation, above n 358, [151]. The Elements of Crimes specifically ‘otherwise provide’ the mens rea element for this actus reus element and so the ordinary default rules discussed above at Section 1.2.3 do not apply. 1138 icc Statute, Art 7(1)(g)-6; icc Elements of Crimes, [3], cited in Kenya – Authorisation, above n 358, [151]. The Elements of Crimes specifically ‘otherwise provide’ the mens rea element for this actus reus element and so the ordinary default rules discussed above at Section 1.2.3 do not apply.

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Humanity1139 and the Apartheid Convention of 1973.1140 However, these conventions were controversial for Western countries, particularly on the ground of the looseness of the definitions of the crime of apartheid.1141 At the Rome Conference, the crime continued to be controversial. Schabas states that there was both ‘broad support’ for the inclusion as well as ‘substantial opposition’.1142 The push for the assertion was largely driven by South Africa and a coalition of A ­ frican states.1143 The result was the inclusion of the crime in Article 7, but with a consensus definition that was different to and more stringent than that in the Apartheid Convention. Present controversy has continued with some arguing the crime applies to the Israeli occupation of Palestine.1144 For these reasons, Cassese and Tomuschat argued that the apartheid has not yet attained the status of customary international law as a crime against humanity.1145 Others such as Bassiouni and Hall have disagreed.1146 The us District Court in the Southern District of New York in the South African Apartheid Litigation case considered apartheid to be a recognised norm of customary international law when practiced by a state actor, but not when practiced by non-state actors.1147 Ultimately, the better view appears to be that apartheid is unlikely to be enshrined in customary international law as a crime against humanity. As has been pointed out elsewhere, this is most particularly so given the weak support for the Apartheid Convention and the deficiency in sources supporting apartheid as a crime as opposed to a norm binding on states.1148 1139 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, above n 373. 1140 Apartheid Convention. 1141 See Chapter 3, Section 3.1. 1142 Schabas, above n 894, 206. 1143 McCormack, above n 5, 199. 1144 Human Sciences Research Council, Occupation, Colonialism, Apartheid?: A Re-Assessment of Israel’s Practices in the Occupied Palestinian Territories Under International Law (Cape Town, May 2009), accessed online at on 13 February 2013. 1145 Antonio Cassese, International Criminal Law (Oxford University Press: Oxford, 2003) 25; Christian Tomuschat, ‘Universal Criminal Jurisdiction with Respect to the Crime of Genocide, Crimes Against Humanity and War Crimes’ (2005) 71 Yearbook of the Institute of International Law 213, 246. See also Ariel Bultz, ‘Redefining Apartheid in International Criminal Law’ (2013) 24 Criminal Law Forum 205. 1146 Hall, above n 724, 228, fn. 334. 1147 (South Africa) Ntsebeza v Daimler ag, Khulumani v Barclays National Bank (Opinion and Order), Case No 02 mdl 1499 (sas) (8 April 2009), 28. 1148 See generally, Bultz, above n 1146.

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Nonetheless, the two key elements to the crime of apartheid will be: 1. 2.

What will constitute an ‘inhumane act’? What will constitute an ‘institutionalized regime of systematic oppression and domination by one racial group’?

11.2 Inhumane Act The Apartheid Convention lists six different kinds of ‘inhumane acts’ which constitute the crime of apartheid if committed with intent:1149 1.

The denial to members of a racial group of the right to life and liberty of person. 2. The deliberate imposition on racial groups of living conditions calculated to cause their physical destruction. 3. Any legislation calculated to prevent racial groups from participating in the political, social, economic, and cultural life of the country. 4. Any measures designed to racially divide the population. 5. The exploitation of labour of racial groups. 6. Persecution depriving racial groups of their fundamental rights and freedoms. Perhaps with the reservations discussed above in mind, the icc Statute limited the types of acts to those ‘of a character similar to those referred to in’ Article 7(1) – i.e. of the same gravity. Accordingly, the analysis is likely to be similar to that conducted in respect of persecution as well as other inhumane acts, namely, whether the acts amount to a similar gravity as the other listed offences. Similar difficult questions will be raised in respect of violations of social, economic and political rights. 11.3 Institutionalized Regime of Systematic Domination and Oppression The key distinguishing factor of the crime of apartheid from, for instance, the crime of persecution, is that it occurs in the context of an institutionalized regime of systematic domination and oppression. The ilc stated that this required that there be a plan or policy to effect the domination and oppression.1150 This essentially elevates the crime to a type of institutionalised racial persecution.

1149 Apartheid Convention, Art 2. 1150 1996 ilc Report, 49.

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The models for the crime – South Africa and, to a lesser extent, Nazi Germany – will no doubt set the standard for what will amount to systematic domination and oppression. The Nazi system was discussed above in the context of persecution. The South African regime involved the racial segregation in nearly every aspect of public life (housing, education, medical care and employment) and enacted discriminatory laws that categorised citizens and segregated them into geographical areas allocated by racial group.1151 The state further enacted draconian security laws to quash potential uprisings and support the white minority.1152 As with persecution, an institutional system that arbitrarily discriminates will not likely suffice alone; the terms ‘domination’ and ‘oppression’ imply a further intent to dominate or oppress the racial group discriminated against. Similarly, a single instance of such conduct would also not suffice; conduct must be ‘systematic’. While in a different context, the Dutch Court of Appeal in the Hague has held that the government of Sri Lanka was not a “racist regime” within the meaning of Article 1(4) of Additional Protocol 1 to the Geneva Conventions.1153 A further question arises as to whether the reference to a ‘regime’ requires that there be a regime of a state (or state-like entity). Hall contends that no such requirement exists and the term extend to armed groups if that group controls the area where it systematically commits inhumane acts against members of another racial group.1154 McCormack appears to suggest to the contrary that it requires a ‘government policy’.1155 Ultimately, like in the context of enforced disappearances, the clear historical and conceptual origin of apartheid and the elements of the offence presuppose a quintessentially state crime. It is the maintenance of a regime of systemised oppression and domination that marks out the crime as a particular type of persecution. Much like the deprivation of certain lower level rights in the context of persecution, it is only when acts are taken cumulatively and considered in the context of large-scale state action that the acts become of equal gravity to the other enumerated crimes. Accordingly, despite the differences in terminology, it is suggested that the better view is that the term ‘institutionalized regime’ should be read in a similar manner to the ‘political 1151 Bultz, above n 1149, 208. 1152 Bultz, above n 1149 209. 1153 (Netherlands) Gerechtshof Den Haag, ecli: nl: ghdha: 2015: 1082, Case No 22-005123-11, Judgment, 7 May 2015, §10.4.3.3.3. 1154 Hall, above n 651, 122. 1155 McCormack, above n 5, 200.

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organization’ in enforced disappearances (discussed above). The term is likely to imply the existence of a state or an entity of a political nature that maintains many of the functions of a state concerning the administration of the daily life of the inhabitants the territory under that organization’s control. 12

Other Inhumane Acts

Under customary international law, the underlying offence of ‘other inhumane acts’ as a crime against humanity requires the prosecution establish that the following elements were committed as part of a widespread or systematic attack against a civilian population:1156 1.

The perpetrator commits an act or omission that caused serious mental or physical suffering or injury or constituted a serious attack on human dignity.1157

1156 See generally: (icty) Kordić – Appeal, above n 66, [117] (which appears to state the test as only requiring the perpetrator cause ‘serious bodily or mental harm’ and that they do so ‘intentionally’, although the Trial Chamber referenced may be referring only to the second element rather than the entire test for ‘other inhumane acts’ in full: see Kordić – Trial, above n 70, [271]); and early decisions in Tadić – Trial, above n 79, [728]–[729] and Kupreškić – Trial, above n 34, [562]–[566], followed in Kordić – Trial, above n 70, [269]. See also similar definitions in (iht) Anfal – Trial, above n 145, 569; (BiH) Rašević and Todović – First Instance, above n 66, 50; (spet) Gouveia Leite – Judgment, above n 484, [160]; and (Bangladesh) Kamaruzzaman – Judgment, above n 180, [282]–[283]. 1157 (ictr) Kayishema – Trial, above n 68, [151], followed in Kajelijeli – Trial, above n 160, [932]–[933]; Bagilishema – Trial, above n 68, [91]–[92]; Bagosora – Trial, above n 71, [2218]; Musema – Trial, above n 66, [232]; (icty) Krnojelac – Trial, above n 70, [130], followed in Vasiljević – Trial, above n 70, [234] (‘caused serious mental or physical suffering or injury or constituted a serious attack on human dignity’) (apparently affirmed in Vasiljević – A ­ ppeal, above n 815, [165], [167]); Simić – Trial, above n 350, [74]; Galić – Trial, above n 66, [152]; Blagojević – Trial, above n 70, [626]; Martić – Trial, above n 69, [83]; Milutinović – Trial, above n 350, [170]; Milošević, D – Trial, above n 109, [934] (see Milošević, D – Appeal, above n 109, [108]); Lukić – Trial, above n 79, [960]; and (eccc) Case 002/01 – Trial, above n 66, [437]. See also: Duch – Trial, above n 66, [368] (‘serious harm to body or mind’); (scsl) afrc – Trial, above n 81, [698], [700] (without complete clarity on the inclusion of the ‘human dignity’ aspect) (affirmed in afrc – Appeal, above n 719, [198]), followed in ruf – Appeal, above n 323, [735]; Taylor – Trial, above n 79, [436] (also citing the jurisprudence of the ad hoc Tribunals); (icty) Čelebići – Appeal, above n 66, [424]; and Blaškić – Appeal, above n 117, [595], followed in Prosecutor v Haradinaj (Trial Chamber Judgment), Case No IT-04-84-T (3 April 2008) (‘Haradinaj – Trial’), [126] (in respect of ‘cruel treatment’ as a war crime); Prosecutor v Aleksovski (Trial Chamber Judgment), Case No IT-95-14/1-T (25 June 1999) (‘Aleksovski – Trial’), [49]–[57] (in respect of ‘­outrages

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The act or omission is of similar gravity or seriousness to other enumerated acts.1158 The act or omission was committed deliberately1159 with:1160 a. intent to cause,1161 or b. knowledge that the act was likely to, or would probably, cause,

upon personal dignity’ as a war crime); and Blaškić́ – Trial, above n 67, [239]–[243] (re serious mental or physical suffering or injury). 1158 (ictr) Kayishema – Trial, above n 68, [151], followed in Kajelijeli – Trial, above n 160, [932]–[933]; Bagilishema – Trial, above n 68, [91]–[92]; Bagosora – Trial, above n 71, [2218]; (icty) Krnojelac – Trial, above n 70, [130], followed in Vasiljević – Trial, above n 70, [234] (apparently affirmed in Vasiljević – Appeal, above n 815, [165], [167]); Simić – Trial, above n 350, [74]; Martić – Trial, above n 69, [83]–[84]; Galić – Trial, above n 66, [152]; Blagojević – Trial, above n 70, [626]–[627]; Milutinović – Trial, above n 350, [170]; Krajišnik – Appeal, above n 280, [331]; Milošević, D – Trial, above n 109, [934]; Lukić – Trial, above n 79, [960]; (scsl) afrc – Trial, above n 81, [698] (affirmed in afrc – Appeal, above n 719, [198]), followed in ruf – Appeal, above n 323, [735]; Taylor – Trial, above n 79, [436]; (eccc) Duch – Trial, above n 66, [369]; and Case 002/01 – Trial, above n 66, [437]. See also (ictr) Niyitegeka – Trial, above n 799, [460]. 1159 (ictr) Kayishema – Trial, above n 68, [153], followed in Kajelijeli – Trial, above n 160, [932]–[933]; Bagilishema – Trial, above n 68, [91]–[92]; (icty) Krnojelac – Trial, above n 70, [130], followed in Vasiljević – Trial, above n 70, [234] (apparently affirmed in Vasiljević – Appeal, above n 815, [165], [167]); Simić – Trial, above n 350, [74]; Blagojević – Trial, above n 70, [626] (‘intentionally’); Milutinović – Trial, above n 350, [170]; Đorđević – Trial, [1610] fn 6010 (seeing no difference between ‘deliberately’ and ‘intentionally’); and (eccc) Case 002/01 – Trial, above n 66, [437]. 1160 (ictr) Kayishema – Trial, above n 68, [153] (‘… and was reckless as to whether such suffering would result’), followed in Bagilishema – Trial, above n 68, [91]–[92]; (icty) Krnojelac – Trial, above n 70, [132] (‘… and was reckless as to whether such suffering or attack would result from his act or omission’) and Vasiljević – Trial, above n 70, [234] (‘… and was reckless thereto’), followed in Blagojević – Trial, above n 70, [626], [628] (‘… and, with that knowledge, acted or failed to act’), Simić – Trial, above n 350, [76] (‘… and was reckless thereto’); Galić – Trial, above n 66, [152], [154]; Martić – Trial, above n 69, [83], [85]; Milutinović – Trial, above n 350, [170]; Milošević, D – Trial, above n 109, [934]; Lukić – Trial, above n 79, [960]; Perišić – Trial, above n 100, [112] (‘… and was reckless thereto’); and (scsl) afrc – Trial, above n 81, [698], [700]. See also ruf – Appeal, above n 323, [735]; Taylor – Trial, above n 79, [436] (following afrc – Trial without specifically stating that indirect intent is included); and Bagosora – Trial, above n 71, [2218] (following Kayishema without specifically including indirect intent). 1161 (icty) Note the Trial Chamber in Aleksovski – Trial, above n 1158, [56] specifically limited the mens rea to intention (in respect of ‘outrages upon personal dignity’ as a war crime: ‘[r]ecklessness cannot suffice’) and other Chambers refer only to ‘intention’ without specifying whether indirect intention is included: see also Kordić – Appeal, above n 66, [117]; (ictr) Bagosora – Trial, above n 71, [2218]; and (eccc) Case 002/01 – Trial, above n 66, [437].

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serious mental or physical suffering or injury or constitute a serious attack on human dignity and the perpetrator was reckless or indifferent as to whether such consequences would result from his act or omission. Article 7(1)(k) proscribes as a crime against humanity ‘[o]ther inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health’. The icc Elements of Crimes requires the prosecution establish that the following elements occurred as part of a widespread or systematic attack against any civilian population: 1.

2. 3.

The perpetrator inflicted great suffering, or serious injury to body or to mental or physical health, by means of an inhumane act. [Mental element: The perpetrator:1162 a. meant to perform one or more act or omission; and b. either: (i) meant, by such act(s) or omission(s), to inflict great suffering, or serious injury to body or to mental or physical health, by means of an inhumane act; or (ii) was aware that such a consequence would occur in the ordinary course of events as a result of the act(s) or omission(s).] Such act was of a character similar to any other act referred to in article 7, paragraph 1, of the Statute.1163 [Mental element:] The perpetrator was aware of the factual circumstances that established the character of the act.1164

12.1 Introduction Now recognised as forming part of customary international law,1165 the crime of ‘other inhumane acts’ was first introduced under Article 6(c) of the Nuremberg Charter and was intended as a residual catch-all provision so as to punish criminal acts not specifically recognised as a crime against humanity. The crime ‘was deliberately designed as a residual category, as it was felt to be 1162 No mental element is specified meaning that Article 30 of the icc Statute provides that ‘intent and knowledge’ apply as discussed above at Section 1.2.3. 1163 Footnote to the Elements of Crimes reads: ‘It is understood that “character” refers to the nature and gravity of the act.’ 1164 icc Statute, Art 7(1)(g)-6; icc Elements of Crimes, [3], cited in Kenya – Authorisation, above n 358, [151]. The Elements of Crimes specifically ‘otherwise provide’ the mens rea element for this actus reus element and so the ordinary default rules discussed above at Section 1.2.3 do not apply. 1165 (icty) Blagojević – Trial, above n 70, [624]; and Stakić – Appeal, above n 144, [315] (and sources cited therein), followed in (scsl) afrc – Appeal, above n 719, [198].

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undesirable for this category to be exhaustively enumerated’.1166 In this respect, a number of Chambers have cited the following extract from the commentary to the Geneva Conventions:1167 However much care were taken in establishing a list of all the various forms of infliction, one would never be able to catch up with the imagination of future torturers who wished to satisfy their bestial instincts; and the more specific and complete a list tries to be, the more restrictive it becomes. But this potential breadth that has lead both the District Court of Israel in the 1950 case of Ternek as well as the ad hoc Tribunals to recognise that the range of the acts covered may raise concerns of a possible violation of the nullum crimen principle.1168 As a result, the Tribunals have held that ‘great caution’ must be exercised in extending the scope of ‘other inhumane acts’ to ensure that norms provide individuals with sufficient notice of what is criminal behaviour and what is not.1169 The icc has similarly provided that the provision must be interpreted ‘conservatively’.1170 The residual provision does not criminalize simply any morally reprehensible act or act of mistreatment committed.1171 The scope of the provision must therefore effect a balance. On the one hand, given it was intended as a residual provision, it is ‘inclusive in nature, 1166 (icty) Kupreškić – Trial, above n 34, [563], followed in Stakić – Appeal, above n 144, [315]; Kordić – Appeal, above n 66, [117]; (scsl) afrc – Appeal, above n 719, [183]; (spet) Prosecutor v Abilio Mendes Correia (Judgment), Case No 19/2001 (29 March 2004) (‘Mendes Correia – Judgment’), 10–11; (ictr) Kayishema – Trial, above n 68, [149]; Akayesu – Trial, above n 66, [585]; Rutaganda – Trial, above n 34, [77]. See also (eccc) Duch – Trial, above n 66, [367]; Case 002/01 – Trial, above n 66, [437]. 1167 (icty) Blaškić – Trial, above n 67, [237]; Kupreškić – Trial, above n 34, [563]; and (ictr) Kayishema – Trial, above n 68, [149], citing Pictet et al., above n 773, 54 (in respect of ‘humane treatment’ in the context of war crimes); see also (Bangladesh) Kamaruzzaman – Judgment, above n 180, [284]–[285]. 1168 (Israel) Attorney-General of the State of Israel v Ternek, Tel Aviv District Court (14 December 1951) (‘Ternek – District Court’), reprinted in (1951) 18 ilr 520, 540 and [7] (where the court accepted that the crime of ‘other inhumane acts’ must be limited by the principle of ejusdem generis); (icty) Blagojević – Trial, above n 70, [625]; Stakić – Trial, above n 30, [719], apparently accepted in Stakić – Appeal, above n 144, [313], [315]; and Kordić – Appeal, above n 66, [117]. 1169 (icty) Blagojević – Trial, above n 70, [625], followed in Martić – Trial, above n 69, [82]; and (spet) Mendes Correia – Judgment, above n 1167, 10; see also Bassiouni, above n 10, 406. 1170 (icc) Muthaura – Confirmation Decision, above n 410, [269]. 1171 (BiH) Rašević and Todović – First Instance, above n 66, 50.

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intended to avoid unduly restricting the Statute’s application to crimes against humanity’.1172 On the other hand, it must not be read too broadly such that it would render superfluous the crimes expressly provided for, render the concept nebulous and incapable of concrete assessment or infringe the nullum crimen principle.1173 The ad hoc Tribunals have attempted to effect this balance through the requirement that – like with the crime of persecution – the conduct be of a similar gravity or seriousness as the other underlying crimes (discussed further below).1174 In its confirmation of charges decision in Katanga, the icc Pre-Trial Chamber i stated that the icc Statute constituted a departure from the ‘catch-all provision’ of Nuremberg and the ad hoc Tribunals.1175 These differences are discussed further below. Serious Injury/Suffering or Attack on Human Dignity of Similar Seriousness 12.2.1 General Under both customary international law and the icc, the actus reus for the crime of ‘other human’ acts is usually articulated as requiring that1176 the perpetrator commits an act or omission causing serious mental or physical suffering or injury or constituting a serious attack on human dignity.1177 12.2

1172 (scsl) afrc – Appeal, above n 719, [183], [185]. 1173 (scsl) afrc – Appeal, above n 719, [183], [185]. 1174 (ictr) Kayishema – Trial, above n 68, [151], followed in Kajelijeli – Trial, above n 160, [932]–[933]; Bagilishema – Trial, above n 68, [91]–[92]; Bagosora – Trial, above n 71, [2218]; Niyitegeka – Trial, above n 799, [460]; (icty) Krnojelac – Trial, above n 70, [130], followed in Vasiljević – Trial, above n 70, [234] (apparently affirmed in Vasiljević – Appeal, above n 815, [165], [167]); Simić – Trial, above n 350, [74]; Martić – Trial, above n 69, [83]–[84]; Galić – Trial, above n 66, [152]; Blagojević – Trial, above n 70, [626]–[627]; Milutinović – Trial, above n 350, [170]; Krajišnik – Appeal, above n 280, [331]; Milošević, D – Trial, above n 109, [934]; Lukić – Trial, above n 79, [960]; (scsl) afrc – Trial, above n 81, [698] (affirmed in afrc – Appeal, above n 719, [198]), followed in ruf – Appeal, above n 323, [735]; Taylor – Trial, above n 79, [436]; (icc) icc Statute, Art 7(1)(k); and Elements of Crimes, [2]. 1175 (icc) Katanga – Confirmation, above n 26, [461]. 1176 (icty) Cf. Kordić – Appeal, above n 66, [117]; and (eccc) Case 002/01 – Trial, above n 66, [437]. 1177 (ictr) Kayishema – Trial, above n 68, [151], followed in Kajelijeli – Trial, above n 160, [932]–[933]; Bagilishema – Trial, above n 68, [91]–[92]; Bagosora – Trial, above n 71, [2218]; Musema – Trial, above n 66, [232]; (icty) Krnojelac – Trial, above n 70, [130], followed in Vasiljević – Trial, above n 70, [234] (‘caused serious mental or physical suffering or injury

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While sometimes expressed as a separate requirement, like persecution, an act will only meet this threshold where the act or omission is of similar gravity or seriousness to the other underlying crimes.1178 Like the crime of persecution, the crime of other inhumane acts includes both a factual and a legal element.1179 First, the perpetrator must commit an act or omission that – as a matter of fact to be established by evidence – causes some mental or physical suffering or injury for one or more victims or constitutes an act said to be a serious attack on their human dignity. Secondly, the act or omission must be one that is – as a matter of law – amounts to great suffering or serious injury or an inhumane act. In respect of the first question, a mixed question of fact and law that will arise is in respect of causation. That is, the particular suffering of the victim or constituted a serious attack on human dignity’) (apparently affirmed in Vasiljević – Appeal, above n 815, [165], [167]); Simić – Trial, above n 350, [74]; Galić – Trial, above n 66, [152]; Blagojević – Trial, above n 70, [626]; Martić – Trial, above n 69, [83]; Milutinović – Trial, above n 350, [170]; Milošević, D – Trial, above n 109, [934]; Lukić – Trial, above n 79, [960]; (icc) icc Statute, Art 7(1)(k); and Elements of Crimes, [1]. See also (scsl) afrc – Trial, above n 81, [698], [700] (without complete clarity on the inclusion of the ‘human dignity’ aspect) (affirmed in afrc – Appeal, above n 719, [198]), followed in ruf – Appeal, above n 323, [735]; Taylor – Trial, above n 79, [436] (also citing the jurisprudence of the ad hoc Tribunals); (icty) Čelebići – Appeal, above n 66, [424]; and Blaškić – Appeal, above n 117, [595], followed in Haradinaj – Trial, above n 1158, [126] (in respect of ‘cruel treatment’ as a war crime); Aleksovski – Trial, above n 1158, [49]–[57] (in respect of ‘outrages upon personal dignity’ as a war crime); and Blaškić́ – Trial, above n 67, [239], [243] (re serious mental or physical suffering or injury). 1178 (icty) Krnojelac – Trial, above n 70, [130]; Vasiljević – Trial, above n 70, [234] (apparently affirmed in Vasiljević – Appeal, above n 815, [165], [167]); Simić – Trial, above n 350, [74]; Martić – Trial, above n 69, [83]–[84]; Galić – Trial, above n 66, [152]; Blagojević – Trial, above n 70, [626]–[627]; Milutinović – Trial, above n 350, [170]; Krajišnik – Appeal, above n 280, [331]; Milošević, D – Trial, above n 109, [934]; Lukić – Trial, above n 79, [960]; (ictr) Kayishema – Trial, above n 68, [151]; Kajelijeli – Trial, above n 160, [932]–[933]; B ­ agilishema  – Trial, above n 68, [91]–[92]; Bagosora – Trial, above n 71, [2218]; ­Niyitegeka  – Trial, above n 799, [460]; (scsl) afrc – Trial, above n 81, [698] (affirmed in afrc – ­Appeal, above n 719, [198]), followed in ruf – Appeal, above n 323, [735]; Taylor – Trial, above n 79, [436]; (icc) icc Statute, Art 7(1)(k); and Elements of Crimes, [2]. 1179 See ilc 1996 Report, 103, applied in (icty) Tadić – Trial, above n 79, [729]; Blaškić – Trial, above n 67, [242]; and (ictr) Kayishema – Trial, above n 68, [150]–[151]. This approach has been explicitly noted in the context of persecution: see (icty) Karadžić – Jurisdiction Decision, above n 929, [42].

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must have occurred ‘as a result of’1180 or ‘by means of’1181 the perpetrator’s inhumane act.1182 It is suggested that the jurisprudence on causation in the context of murder (discussed above) would apply equally here. In respect of the second question, this will be a question of whether the act or omission established by the evidence reaches the legal threshold of causing a ‘serious mental or physical suffering or injury’ or amounts to ‘a serious attack on human dignity’. As discussed above (at 12.1), this requires a balance be struck between the residual nature of the provision and the nullum crimen principle. Both under customary international law and in the icc, this question must be answered on a case-by-case basis taking into account ‘all of the factual circumstances’.1183 As noted above, an act will only meet the relevant threshold where the act or omission is of similar gravity or seriousness to the other underlying crimes. In a number of early decisions, this was controversial. The icty Trial Chamber in Kupreškić held that that this principle ‘lacks precision, and is too general to provide a safe yardstick for the work of the Tribunal.1184 The Chamber instead considered that human rights instruments should be used to ‘identify a set of basic rights appertaining to human beings, the infringement of which may amount, depending on the accompanying circumstances, to a crime against humanity’.1185 This view was criticized by the icty Trial Chamber in Stakić, which was concerned about conflating human rights laws with international criminal laws.1186 A similar concern for the application of human rights principles in a criminal context has been expressed throughout this chapter in the 1180 (icty) Kordić – Appeal, above n 66, [117]. 1181 (icc) Katanga – Confirmation, above n 26, [453]. 1182 See also (ictr) Kayishema – Trial, above n 68, [151] (‘The Prosecution must prove a nexus between the inhumane act and the great suffering or serious injury to mental or physical health of the victim’). 1183 (ictr) Kayishema – Trial, above n 68, [151]; (icty) Kordić – Appeal, above n 66, [117]; Krnojelac – Trial, above n 70, [130]; Vasiljević – Trial, above n 70, [234], followed in Galić – Trial, above n 66, [153]; Simić – Trial, above n 350, [75]; Blagojević – Trial, above n 70, [627]; Martić – Trial, above n 69, [84]; Lukić – Trial, above n 79, [961]; Đorđević – Trial, above n 69, [1611]; (scsl) afrc – Appeal, above n 719, [184]; Taylor – Trial, above n 79, [437]; (icc) Katanga – Confirmation, above n 26, [450]; (eccc) Duch – Trial, above n 66, [367]; and Case 002/01 – Trial, above n 66, [438]. See also (BiH) Rašević and Todović – First Instance, above n 66, 50 (in respect of wording substantially similar to the icc Statute); and (spet) Mendes Correia – Judgment, above n 1167, 10–11. 1184 (icty) Kupreškić – Trial, above n 34, [564]. 1185 (icty) Kupreškić – Trial, above n 34, [566]. 1186 (icty) Stakić – Trial, above n 30, [721].

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context of imprisonment or other severe deprivation of liberty, deportation and forcible transfer and persecution. Despite receiving some support from the icty Trial Chamber in KvoČka,1187 the balance of authorities have continued to apply the equal gravity standard and working on a case by case basis rather than relying upon human rights. Relevant considerations in determining whether the threshold is met will include:1188 • • • • •

the nature of the act or omission; the context in which it took place; [its duration and/or repetition];1189 the personal circumstances of the victim (e.g. age, sex, health); and the physical, mental and moral effects of the perpetrator’s conduct upon the victims.

While it is not necessary that the victim suffer long-term effects (as long as they are ‘real and serious’), such an outcome will be relevant to an assessment of whether the requisite ‘seriousness’ is present.1190 To reach the requisite threshold of ‘serious mental or physical suffering or injury’, the perpetrator’s conduct ‘must in fact cause injury’, whether physical 1187 (icty) Kvočka – Trial, above n 70, [207]. 1188 (icty) Krnojelac – Trial, above n 70, [130] (applying Čelebići – Trial, above n 73, [536], which in turn applied the ECtHR), followed in Vasiljević – Trial, above n 70, [235], followed in Galić – Trial, above n 66, [153]; Simić – Trial, above n 350, [75]; Blagojević – Trial, above n 70, [627]; Martić – Trial, above n 69, [84]; Lukić – Trial, above n 79, [961]; Đorđević – Trial, above n 69, [1611]; (scsl) afrc – Appeal, above n 719, [184]; (eccc) Case 002-01 – Trial, [438] (although omitting the final bullet point); (icc) Katanga – Confirmation, above n 26, [450]; and (Bangladesh) Kamaruzzaman – Judgment, above n 180, [285]. 1189 Note: while this element is only mentioned in (icty) Krnojelac – Trial, above n 70, [130], this decision was followed in Vasiljević – Trial, above n 70, [235] and it is unclear that this omission is intentional. 1190 (icty) Krnojelac – Trial, above n 70, [144]; and Kunarac – Trial, above n 253, [501] (regarding ‘outrages against personal dignity’ within Article 3 of the Geneva Conventions), followed in Vasiljević – Trial, above n 70, [235]; Galić – Trial, above n 66, [153]; Simić – Trial, above n 350, [75]; Blagojević – Trial, above n 70, [627]; Martić – Trial, above n 69, [84]; Lukić – Trial, above n 79, [961]; Đorđević – Trial, above n 69, [1611]; and (eccc) Case 002/01 – ­Trial, above n 66, [439]. However, as noted by the Trial Chamber in Kunarac, ‘Obviously, if the humiliation and suffering caused is only fleeting in nature, it may be difficult to accept that it is real and serious’ (at [501]); see also (Bangladesh) Kamaruzzaman – Judgment, above n 180, [282]–[283].

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or mental.1191 The degree of ‘serious mental or physical suffering or injury’ need not amount to torture or rise to the same level as that required to prove ‘wilfully causing great suffering or serious injury to body or health’ as a war crime.1192 icty Judge Liu Daqun, in considering the nascent crime of ‘terror’ as an ‘other inhumane act’, considered that psychological harm should not be considered as a medical condition stricto sensu but ‘should be considered in light of most recent developments in psychological disorders’.1193 This has some support from the icty Trial Chamber in Galić.1194 By contrast, a ‘serious attack on human dignity’ does not require that the perpetrator cause any injury to the victim, but requires that they ‘cause serious humiliation or degradation to the victim’.1195 The assessment is not purely a subjective one looking at the victim; rather, the question will be whether ‘a reasonable person’ would have been outraged or whether the conduct would be ‘generally considered’ to reach the threshold of serious humiliation or degradation.1196 icc Pre-Trial Chamber i in Katanga cited both Kupreškić and Stakić in finding that ‘inhumane acts are to be considered as serious violations of international customary law and the basic rights pertaining to human beings, drawn from the norms of international law which are of a similar nature and gravity to the acts referred to in article 7(1) of the Statute’.1197 12.2.2 Relevant Differences in the icc The icc definition defines the actus reus similarly to the ad hoc Tribunals, although: (a) it has omitted the reference to acts which constitute a ‘serious 1191 (icty) Kordić – Trial, above n 70, [269] (relying on Tadić – Trial, above n 79, [729]). 1192 (icty) Kunarac – Trial, above n 253, [501]; and Kvočka – Trial, above n 70, [161] (regarding ‘outrages against personal dignity’ and ‘cruel treatment’ within Article 3 of the Geneva Conventions), followed in Naletilić – Trial, above n 393, [246]. 1193 (icty) Milošević, D – Appeal (Partly Dissenting Opinion of Judge Liu Daqun), above n 109, [26], referring to the International Statistical Classification of Diseases and Related Health Problems, who, 10th Revision, 2007 (particularly, Chapter V, F43 and F44). 1194 Where, as Cryer points out, the accused was convicted murder and inhumane acts on the basis of the same facts as the war crime of terror: (icty) Galić – Trial, above n 66; and Krstić – Trial, above n 70, [607], [653]. 1195 (icty) Kunarac – Trial, above n 253, [501], citing Čelebići – Trial, above n 73, [511] (regarding ‘outrages against personal dignity’ within Article 3 of the Geneva Conventions), read in light of Jelisić – Trial, above n 68, [52]; and Krnojelac – Trial, above n 70, [130]. 1196 (icty) Kunarac – Trial, above n 253, [501], citing Aleksovski – Trial, above n 1158, [56] (regarding ‘outrages against personal dignity’ within Article 3 of the Geneva Conventions), read in light of Jelisić – Trial, above n 68, [52]; and Krnojelac – Trial, above n 70, [130]. 1197 (emphasis added) (icc) Katanga – Confirmation, above n 26, [448].

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attack on human dignity’; (b) it refers only to ‘acts’ (rather than acts or omissions); and (c) it refers to the act being of a ‘character’ similar to other acts in Article 7 (not gravity). Bassiouni notes that such a definition is intended to give the term greater specificity.1198 At the Rome Conference, a number of delegations expressed their concerns about the lack of precision of this ‘catch-all’ crime which had been in all previous instruments on crimes against humanity.1199 This understanding has so far been confirmed by the icc PreTrial Chambers. That is, while it constitutes a ‘residual category within the system of article 7(1) of the Statute’,1200 unlike the crime of ‘other inhumane acts’ at Nuremberg and the ad hoc Tribunals, the crime is not intended to be a ‘catch-all’ crime ‘leaving a broad margin for the jurisprudence to determine its limits’.1201 The limitation of the crime to attacks on the victim’s person rather than extending to affronts to human dignity has some support in prior cases.1202 In Enigster, the Court held that crimes against humanity must be of a ‘serious character and likely to embitter the life of a human being, to degrade him and cause him great physical or moral pain and suffering’ and ‘other inhumane acts’ must ‘comprise an act of the kind specified in the definition of crime against humanity’.1203 The 1996 ilc Report had a similar definition.1204 Accordingly, some writers emphasise that the limitation of the crime to attacks on the victim’s ‘body’ or ‘mental or physical health’ may mean the crime cannot include property crimes or attacks on political, social and economic rights.1205 This has some support from the Elements of Crimes, which states that the term ‘character’ is to refer to both the ‘nature and gravity of the act’ 1198 Bassiouni, above n 10, 409. 1199 McCormack, above n 5, 200. 1200 (icc) Muthaura – Confirmation Decision, above n 410, [279]. 1201 (icc) Katanga – Confirmation, above n 26, [450]. 1202 (Israel) Ternek – District Court, above n 1169, 540, where it was said the acts ought resemble ‘in their nature and in their gravity those specified in the definition. 1203 (Israel) Attorney General of the State of Israel v Yehezkel Ben Alish Enigster, District Court of Tel-Aviv, 4 Jan 1952 (‘Enigster – Trial’), 541; see also Eichmann, above n 399, 239 (inhumane acts are those ‘causing serious physical and mental harm’). 1204 Other inhumane acts were said to be circumscribed by two requirements: they must ‘similar in gravity to those listed’ and ‘in fact cause injury’ ‘of physical or mental integrity’: 1996 ilc Report, 103. 1205 Pella, above n 1019, 346; and Graven, above n 1019, 548–554. See also (icty) Jelisić – Trial, above n 68, [52] (equating inhumane acts with the war crimes of cruel and inhumane treatment).

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(emphasis added).1206 In the Kirimi Muthaura Confirmation Decision, icc PreTrial Chamber ii held that, at least in the case before the Chamber, the destruction of property alleged failed to meet the relevant threshold.1207 The Chamber held that evidence was only presented to establish that homes and businesses were destroyed as part of the attack and used as a means of deportation; no evidence was lead to establish ‘the occurrence, the type and the intensity of the alleged mental suffering caused, in itself, by the loss of property’.1208 While not ruling out property crimes as a matter of principle, the threshold will clearly be difficult to reach. At the very least, like in the ad hoc Tribunals, the crime ‘must be interpreted conservatively’.1209 Interestingly, icc Pre-Trial Chamber i in Katanga appeared to open up the early debate at the icty in relation to the role of human rights in assessing whether the threshold is met. The Chamber cited both Kupreškić and Stakić in finding that ‘inhumane acts are to be considered as serious violations of international customary law and the basic rights pertaining to human beings, drawn from the norms of international law which are of a similar nature and gravity to the acts referred to in article 7(1) of the Statute’.1210 It is suggested that a finding in line with the Tribunals is preferable. 12.2.3 Application of the Threshold While the crime must be assessed on a case-by-case basis on its individual merits, a court or tribunal can look to the other tribunals’ and courts’ application of the crime for guidance. Most acts that have reached the relevant threshold appear to relate to either severe physical and mental injury1211 or inhumane and degrading treatment.1212 The following conduct has been held to be capable of amounting to ‘other inhumane acts’ in certain circumstances:

1206 (icc) icc Statute, Art 7(1)(k); Elements of Crimes, [2], cited in Katanga – Confirmation, above n 26, [451]. 1207 (icc) Muthaura – Confirmation Decision, above n 410, [279]. 1208 (icc) Muthaura – Confirmation Decision, above n 410, [279]. 1209 (icc) Muthaura – Confirmation Decision, above n 410, [269]. 1210 (emphasis added) (icc) Katanga – Confirmation, above n 26, [448]. 1211 (ictr) Kayishema – Trial, above n 68, [151]; (icty) Blaškić – Trial, above n 67, [239], followed in Kvočka – Trial, above n 70, [208]; Naletilić – Trial, above n 393, [246]; see also Tadić – Trial, above n 79, [729]–[730]. 1212 (icty) Kupreškić – Trial, above n 34, [566], followed in Kvočka – Trial, above n 70, [208] (‘detainees were subjected to serious bodily or mental harm through such means as beatings, torture, sexual violence, humiliation, harassment, psychological abuses, and confinement in inhumane conditions’).

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• beatings and other acts of violence1213 (e.g. gunshot or arrow wounds1214); • mutilation and similarly severe bodily harm;1215 • certain kinds of forced labour1216 (e.g. digging graves,1217 use for military operations,1218 minesweeping,1219 human shields,1220 and on the frontline1221); • forced prostitution;1222 • forced marriage;1223 • forced disappearances;1224 • forcible transfer;1225 • being held in inhumane conditions of detention;1226 1213 (icty) Tadić – Trial, above n 79, [730], followed in Kordić – Trial, above n 70, [270]; Kvočka – Trial, above n 70, [208]; (BiH) Rašević and Todović – First Instance, above n 66, 53 (‘That the witness passed out as a result of the beatings is sufficient to establish that the physical abuse was of such severity as to cause great suffering or serious bodily injury’); and (spet) Prosecutor v Francisco Pedro (Judgment), Case No 1/2001 (14 April 2005) (­‘Pedro – Judgment’), [8], [11]. 1214 (icc) Muthaura – Confirmation Decision, above n 410, [272]–[273]; and Kenya – Authorisation, above n 358, [167]–[168]. 1215 (icty) Tadić – Trial, above n 79, [729], followed in Kvočka – Trial, above n 70, [208] (approved in Kvočka – Appeal, above n 66, [435]); and Kordić – Trial, above n 70, [270]. 1216 (icty) Naletilić – Trial, above n 393, [245]. 1217 (ictr) Bagosora – Trial, above n 71, [2220], [2222], [2224]. 1218 (icty) Blaškić – Appeal, above n 117, [597] (in regard to ‘cruel treatment’ as a war crime). 1219 (BiH) Rašević and Todović – First Instance, above n 66, 84–86. 1220 (icty) Blaškić – Trial, above n 67, [716], followed in Naletilić – Trial, above n 393, [245]. See also (BiH) Rašević and Todović – First Instance, above n 66, 124. 1221 (icty) Naletilić – Trial, above n 393, [262]. 1222 (icty) Kupreškić – Trial, above n 34, [566], followed in Kordić – Trial, above n 70, [270]; and Kvočka – Trial, above n 70, [208]. 1223 (scsl) afrc – Appeal, above n 719, [201]. 1224 (icty) Kupreškić – Trial, above n 34, [566], followed in Kordić – Trial, above n 70, [270]; and Kvočka – Trial, above n 70, [208]. 1225 (icty) Kupreškić – Trial, above n 34, [566], followed in Kordić – Trial, above n 70, [270] (affirmed in Kordić – Appeal, above n 66, [151]); Kvočka – Trial, above n 70, [208]; Krstić – Trial, above n 70, [523]; Stakić – Appeal, above n 144, [317]; Perišić – Trial, above n 100, [113]; Blagojević – Trial, above n 70, [629]; Blaškić – Trial, above n 67, [713]; see also Tadić – Trial, above n 79, [764]. 1226 (icty) Kvočka – Trial, above n 70, [209] (see also [189]–[190]); Krnojelac – Trial, above n 70, [33]ff (apparently affirmed in Krnojelac – Appeal, above n 325, [163]); and Limaj – Trial, [288]–[289], followed in (BiH) Rašević and Todović – First Instance, above n 66, 69ff. creation of brutal and deplorable living conditions for detainees including systematic beatings; (icty) Simić – Trial, above n 350, [97] (in respect of persecution); and

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• medical experimentation;1227 • acts of sexual violence, including forced undressing and parading of women, forcing women to perform exercises naked;1228 • leading a respected teacher around a town with his face covered in ink and lime and his head shaved;1229 • forcing a person to watch a family member or friend being murdered, tortured, mutilated or raped;1230 • forcing a man to eat his own flesh;1231 • forcing a victim run down a steep slope while being fired at;1232 • lining victims up for an execution in circumstances where threat of execution was clearly reasonable;1233 • sexual and physical violence perpetrated upon dead human bodies;1234 • deliberate sniping causing serious injuries and deliberate firing of shells at areas where civilians would be seriously injured;1235 • terror (although the judge acknowledged that it does not yet constitute a crime under customary international law);1236 and • compelling somebody to convert his own religious belief to another religion.1237 Čelebići – Trial, above n 66, [1119] (in respect of cruel treatment and wilfully causing great suffering or serious injury to body or health as war crimes). See also (spet) Cardoso – Judgment, above n 484, [417] (cf. [421]); and Gouveia Leite – Judgment, above n 484, [161]–[163]. 1227 (Nuremberg) Medical Case, above n 569. See also discussion in Bassiouni, above n 10, 419–424. 1228 (ictr) Akayesu – Trial, above n 66, [598], [688], [690], [697]; and Bagosora – Trial, above n 71, [2220], [2222], [2224]. 1229 (Bangladesh) Kamaruzzaman – Judgment, above n 180, [284]–[285]. This example may be controversial. 1230 (ictr) Kayishema – Trial, above n 68, [153]; Bagosora – Trial, above n 71, [2220], [2222]; and (icty) Kupreškić – Trial, above n 34, [566]. See also (iht) Anfal – Trial, above n 145, 570–571. 1231 (spet) Cardoso – Judgment, above n 484, [417]. 1232 (icty) Kordić – Appeal, above n 66, [572]–[573]. 1233 (icty) Lukić – Trial, above n 79, [964]. 1234 (ictr) Kajelijeli – Trial, above n 160, [934]–[936]; Niyitegeka – Trial, above n 799, [312], [316], [465]; and Bagosora – Trial, above n 71, [2219], [2222], [2224] (approved in ­Bagosora – Appeal, above n 189, [729]). See also (iht) Anfal – Trial, above n 145, 570–71. 1235 (icty) Galić – Appeal, above n 66, [158]. 1236 (icty) Milošević, D – Appeal (Partly Dissenting Opinion of Judge Liu Daqun), above n 109, [26], [29]. 1237 (Bangladesh) Sayeedi – Judgment, above n 669, [214].

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On the other hand, one us Appeals court held that a food and medical blockade did not did not constitute an ‘other inhumane act’.1238 More controversially, the Iraqi High Tribunal in the Al-Dujail case found Saddam Hussein guilty for other inhumane acts in respect of the confiscation of farms and the destruction of farmlands and orchards that were the livelihood of the victims and caused great suffering on the victims and was an act similar in nature to forcible transfer.1239 This would suggest that the position on property crimes may be similar to that discussed in respect of persecution. That is, property crimes may amount to other inhumane acts, where they are serious enough to rise to the level of forcible transfer, namely, that it essentially forces the victims out of their homes, or perhaps only where the result on the victim rises to the level of serious psychological harm or a sufficiently serious attack on their dignity (which appears to be a more difficult standard to meet than under persecution). The scsl Appeals Chamber has held that the ‘so-called “exhaustive” listing of sexual crimes’ should not foreclose other crimes with a sexual or gender component.1240 However, this position would seem to differ in the context of the icc, where the icc Statute includes the residual sexual category of ‘other sexual violence’. In the icc, Chambers have held the following acts can amount to other inhumane acts: • mutilation and similarly severe bodily harm;1241 • cutting and hacking (including amputation);1242 • forced circumcision or genital amputation;1243

1238 (United States) Sarei v Rio Tinto – Appeal, above n 221. 1239 The judgment and sentence in the Al Dujail Case, No 1/9 First 2005, was issued by the Iraqi High Tribunal Trial Chamber on 5 November 2006, unofficial English translation accessed online at on 22 April 2007. See discussion in Chapter 5, Section 3.5.3(a). 1240 (scsl) afrc – Appeal, above n 719, [186], followed in Fofana and Kondewa v Prosecutor (Appeals Chamber Judgment), Case No SCSL-04-A-829 (28 May 2008) (‘cdf – Appeal’), [441]. 1241 (icc) Muthaura – Confirmation Decision, above n 410, [271]; see also Mbarushimana – Confirmation (Dissenting Opinion of Judge Monageng), above n 883, [30] 1242 (icc) Kenya – Authorisation, above n 358, [170]; and Muthaura – Confirmation Decision, above n 410, [272]–[273]. 1243 (icc) Kenya – Authorisation, above n 358, [167]–[168], [170]–[171]; and Muthaura – Confirmation Decision, above n 410, [270]–[271].

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• forcing a person to watch a family member or friend being murdered, tortured, mutilated or raped;1244 • threatening victims with execution, beating with bricks, slashing with machetes and injuring with shelling;1245 12.3 Mens Rea Under customary international law, the requisite mens rea is that the act or omission was committed deliberately1246 with1247 either intent to cause,1248 or knowledge that the act was likely to cause, serious mental or physical suffering or injury or constitute a serious attack on human dignity and the perpetrator was reckless or indifferent as to whether such consequences would result from his act or omission. Controversially, one Pre-Trial Chamber has held that a perpetrator must intend serious injury or suffering or a serious attack on human dignity rather than some other outcome such as murder. icc Pre-Trial Chamber i in Katanga 1244 (icc) Muthaura – Confirmation Decision, above n 410, [277]. 1245 (icc) Laurent Gbagbo – Arrest Warrant Decision, above n 881, [60]–[61]. 1246 (ictr) Kayishema – Trial, above n 68, [153], followed in Kajelijeli – Trial, above n 160, [932]–[933]; Bagilishema – Trial, above n 68, [91]–[92]; (icty) Krnojelac – Trial, above n 70, [130], followed in Vasiljević – Trial, above n 70, [234] (apparently affirmed in Vasiljević – Appeal, above n 815, [165], [167]); Simić – Trial, above n 350, [74]; Blagojević – Trial, above n 70, [626] (‘intentionally’); Milutinović – Trial, above n 350, [170]; and Đorđević – Trial, [1610] fn 6010 (seeing no difference between ‘deliberately’ and ‘intentionally’). 1247 (ictr) Kayishema – Trial, above n 68, [153] (‘… and was reckless as to whether such suffering would result’), followed in Bagilishema – Trial, above n 68, [91]–[92]; (icty) Krnojelac – Trial, above n 70, [132] (‘… and was reckless as to whether such suffering or attack would result from his act or omission’); Vasiljević – Trial, above n 70, [234] (‘… and was reckless thereto’), followed in Blagojević – Trial, above n 70, [626], [628] (‘… and, with that knowledge, acted or failed to act’), Simić – Trial, above n 350, [76] (‘… and was reckless thereto’); Galić – Trial, above n 66, [152], [154]; Martić – Trial, above n 69, [83], [85]; Milutinović – Trial, above n 350, [170]; Milošević, D – Trial, above n 109, [934]; Lukić – Trial, above n 79, [960]; Perišić – Trial, above n 100, [112] (‘… and was reckless thereto’); and (scsl) afrc – Trial, above n 81, [698], [700]. See also ruf – Appeal, above n 323, [735]; Taylor – Trial, above n 79, [436] (following afrc – Trial without specifically stating that indirect intent is included); and Bagosora – Trial, above n 71, [2218] (following Kayishema without specifically including indirect intent). 1248 (icty) The Trial Chamber in Aleksovski – Trial, above n 1158, [56] specifically limited the mens rea to intention (in respect of ‘outrages upon personal dignity’ as a war crime: ‘[r] ecklessness cannot suffice’) and other Chambers refer only to ‘intention’ without specifying whether indirect intention is included: see also Kordić – Appeal, above n 66, [117]; and (ictr) Bagosora – Trial, above n 71, [2218].

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considered a situation where a perpetrator charged with ‘other inhumane acts’ for intentionally causing serious physical or mental injury in fact attempted to kill a victim but was stopped short from doing so. The majority (Judge Anita Usacka dissenting) found that the relevant intent was not satisfied as the combatants had an intent to kill (rather than ‘the intent to only cause serious injury to body or to mental or physical health’).1249 This conclusion appears difficult to accept given an intention to murder must at least encompass an intention to cause serious injury. By contrast, Judge Anita Usacka held that this intent could still be established even though the victims were not killed, on the basis that the requisite mens rea ‘is to be inferred from the moment in which the perpetrator takes the action that commences its execution by means of a substantial step.’1250 The Tribunals have accepted that indirect intention will suffice, namely, that the perpetrator committed the acts with the knowledge that the act was likely to cause (or would probably cause) serious mental or physical suffering or injury or constitute a serious attack on human dignity and the perpetrator was reckless or indifferent as to whether such consequences would result from his act or omission.1251 Accordingly, on this broader standard of indirect intent, an accused may be held liable for causing serious injury to the mental health of a third party who witnesses acts committed by the perpetrator against others. Trial Chambers of the ictr and scsl have held that an accused may be held liable in such a circumstance unless ‘at the time of the act, the accused was unaware of the third party bearing witness to his act’.1252 1249 (icc) Katanga – Confirmation, above n 26, [463]–[464]. 1250 (icc) Katanga – Confirmation, above n 26, [458]–[460]. 1251 (ictr) Kayishema – Trial, above n 68, [153] (‘… and was reckless as to whether such suffering would result’), followed in Bagilishema – Trial, above n 68, [91]–[92]; (icty) Krnojelac – Trial, above n 70, [132] (‘… and was reckless as to whether such suffering or attack would result from his act or omission’) and Vasiljević – Trial, above n 70, [234] (‘… and was reckless thereto’), followed in Blagojević – Trial, above n 70, [626], [628] (‘… and, with that knowledge, acted or failed to act’), Simić – Trial, above n 350, [76] (‘… and was reckless thereto’); Galić – Trial, above n 66, [152], [154]; Martić – Trial, above n 69, [83], [85]; Milutinović – Trial, above n 350, [170]; Milošević, D – Trial, above n 109, [934]; Lukić – Trial, above n 79, [960]; Perišić – Trial, above n 100, [112] (‘… and was reckless thereto’); and (scsl) afrc – Trial, above n 81, [698], [700]. See also ruf – Appeal, above n 323, [735]; Taylor – Trial, above n 79, [436] (following afrc – Trial without specifically stating that indirect intent is included); and Bagosora – Trial, above n 71, [2218] (following Kayishema without specifically including indirect intent). 1252 (ictr) Kayishema – Trial, above n 68, [153], followed in (scsl) ruf – Trial, above n 66, [171].

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In respect of the mens rea in the icc, ‘intent and knowledge’ will be required unless provided otherwise. The only section that provides otherwise is Element 3 of the Elements of Crimes, which states that ‘[t]he perpetrator was aware of the factual circumstances that established the gravity of the conduct’. This appears to require that the perpetrator be aware only of those facts which render the act to be of a similar gravity without having to conclude, on the basis of a legal assessment, that they were of a certain gravity.1253 In the icc, the mens rea element is worded slightly differently, with the perpetrator being required to be aware that the consequence would occur in the ordinary course of events. Further, as the icc Pre-Trial Chamber noted in Katanga, ‘in addition to the requirement that the objective elements were committed with intent an knowledge’, the Elements of Crimes requires that the ‘perpetrator must also [have been] aware of the factual circumstances that established the character of the act’. This additional element appears to make clear that the perpetrator is not required to know that their actions were of the same gravity as the other enumerated crimes provided that they are aware of the factual circumstances of their act. As to the standard of awareness, it remains to be seen whether this differs significantly from the balance of probabilities standard adopted by the ad hoc Tribunals. As noted above (at 2.3.3), one Special Panel in East Timor – applying the same wording as that in the icc Statute – appears to see no difference between an awareness that a consequence ‘will occur in the ordinary course of events’ and the ad hoc Tribunal’s standard that the consequence was the likely or probable outcome.1254 It is not precisely clear what ‘character’ means in this context, or indeed, to what extent the ‘objective’ elements are required to be known. 12.4 Cumulative Convictions Unlike the crimes of deportation and persecution, the status of ‘other inhumane acts’ as a residual category with no additional elements means that, if conduct can be charged as another specific enumerated crime (e.g. murder, rape, etc), its charging as an ‘other inhumane act’ is impermissible.1255 The position is the same in the icc.1256 1253 See similar reasoning in (icc) Lubanga – Confirmation, above n 15, [360]. 1254 (spet) De Carvalho – Judgment, above n 90, 12–13. 1255 (ictr) Prosecutor v Georges Anderson Nderubumwe Rutaganda (Appeals Chamber Judgment), Case No ICTR-96-3-A (23 May 2003), [580]. 1256 (icc) Katanga – Confirmation, above n 26, [461].

Chapter 11

Prosecuting Crimes against Humanity in Domestic Courts Affirming that the most serious crimes of international concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation1

⸪ 1

Introduction

The above paragraph of the Preamble to the icc Statute raises, but does not resolve, the many difficult issues involved when state courts prosecute ‘the most serious crimes of international concern’. This includes universal jurisdiction, immunities and the alleged duty to extradite or prosecute. These issues are particularly difficult in the context of crimes against humanity, which – unlike genocide, war crimes and torture – is not governed by an applicable treaty. While many of the issues are often addressed in relation to international crimes generally, this Chapter considers these issues specifically in relation to crimes against humanity. This chapter examines the issue of state courts prosecuting crimes against humanity in three parts. First, it considers the alleged right under customary international law to assert universal jurisdiction over crimes against humanity. Secondly, it considers the application of immunities. Thirdly, it explores the alleged duty to prosecute all those reasonably suspected of committing crimes against humanity (including the role played by amnesties). Those who claim that there exists both such a right and such a duty to prosecute international crimes frequently ground their case on the need to ensure that such crimes ‘must not go unpunished’.2 As Judges Higgins, Kooijmans and * The authors would like to acknowledge the assistance of Stephen Bailey in commenting on this Chapter. 1 Rome Statute of the International Criminal Court (‘icc Statute’), Preamble. 2 icc Statute, Preamble. © koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004347687_012

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Buergenthal put it in their Joint Separate Opinion in the Arrest Warrant Case, ‘the international consensus that the perpetrators of international crimes should not go unpunished is being advanced by a flexible strategy, in which newly established international tribunals, treaty obligations and national courts all have their role to play.’3 There exists a paradox in the prosecution of crimes against humanity before state courts. On the one hand, the very reason for the international concern that perpetrators of crimes against humanity may go unpunished will frequently arise because of state involvement or acquiescence in the crimes in question – hence the need to ensure effective measures are taken by state courts outside the place of the offence. On the other hand, it is this very s­ ituation which makes it practically difficult for state courts to prosecute. States – ­particularly those with no link to the perpetrator or the victim of the crime – are understandably reluctant to launch an extraterritorial prosecution of a foreign state official because of the tension this may cause to relations between the two countries. It was to address this problem that the icc was regarded as necessary.4 Concern for state sovereignty also led the drafters of the icc Statute to depart from the model of the supremacy of international tribunals seen in the ad hoc Tribunals to the model of complementarity.5 Now that the icc is operating, where does that leave state prosecutions? Should they be emboldened or should they leave the work to be done by international institutions? This chapter explores this question in the context of crimes against humanity. 2

Extraterritorial Jurisdiction over Crimes against Humanity

2.1 Introduction Extraterritorial or universal jurisdiction over serious international crimes, such as crimes against humanity, continues to arouse a great deal of i­ nterest.6 3 (icj) Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) (Judgment) [2002] icj Rep 3 (‘Arrest Warrant Case’), Separate Opinion of Judges ­Higgins, Kooijmans and Buergenthal, [51]. 4 (icc) See remarks of Kofi Annan at the Rome Conference that adopted the icc Statute: un Press Release (20 July 1998), accessed online at on 24 March 2006. 5 Robert Cryer et al., An Introduction to International Criminal Law and Procedure (Cambridge University Press: Cambridge, 2010) 153–154. For a further discussion of ‘complementarity’, see Chapter 8. 6 Luc Reydams, Universal Jurisdiction: International and Municipal Legal Perspectives (­Oxford University Press: Oxford, 2003), Chapter 1; Stephen Macedo, Universal Jurisdiction: National

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It has triggered negative reactions in some circles7 and invited acclaim in ­others.8 On the one hand, universal jurisdiction provides a powerful weapon in the fight against impunity for serious crimes of international concern. On the other hand, such jurisdiction is seen as interfering with the sovereignty of another state, conflicting with the basic notion that jurisdictional competence of a state should primarily be territorial.9 There has been a tendency to regard universal jurisdiction over crimes against humanity as following from the fact that the conduct was so heinous or was carried out on such a large scale that it thereby had become a crime under international law. For example, in an oft-quoted passage, the Jerusalem District Court in Eichmann10 held that: Not only are all the crimes attributed to the Appellant of an international character, but they are crimes whose evil and murderous effects were so widespread as to shake the stability of the international community to its very foundations. The State of Israel, therefore, was entitled, p ­ ursuant



Courts and the Prosecution of Serious Crimes Under International Law (University of Philadelphia Press: Philadelphia, 2004); M. Cherif Bassiouni, ‘Universal Jurisdiction for International Crimes: Historical Perspectives and Contemporary Practice’ (2001) 42 Virginia Journal of International Law 81; Roger O’Keefe, ‘Universal Jurisdiction: Clarifying the Basic Concept’ (2004) 2(3) Journal of International Criminal Justice 735; Munivrana Vajda, ‘The 2009 aidp’s Resolution on Universal Jurisdiction – An Epitaph or a Revival Call?!’ (2010) 10 International Criminal Law Review 325; Sienho Yee, ‘Universal Jurisdiction: Concept, Logic, and Reality’ (2011) 10(3) Chinese Journal of International Law 503; Luc Reydams, “The Rise and Fall of Universal Jurisdiction”, Leuven University, Working Paper No 37 (January 2010). 7 Henry Kissinger, ‘The Pitfalls of Universal Jurisdiction’ (July/August 2001) Foreign Affairs 1. 8 See Joint Press Report of Human Rights Watch, the International Federation of Human Rights Leagues and the International Commission of Jurists, Rights Group Supports Belgium’s Universal Jurisdiction Law (16 November 2000), accessed online at on 23 March 2006. See also Amnesty International, ‘Universal Jurisdiction: The Duty of States to Enact and Implement Legislation’ (September 2001); and Amnesty International, ‘Universal Jurisdiction – A Preliminary Survey of Legislation Around the World’ (5 October 2011). 9 (ECtHR) Banković v Belgium (Decision on Admissibility), European Court of Human Rights (Grand Chamber), App No 52207/99 (12 December 2001), [59]. 10 (Israel) Attorney-General v Adolph Eichmann, District Court of Jerusalem, Case No 40/61 (11 December 1961); see also Attorney-General v Adolph Eichmann, Supreme Court of ­Israel, Case No 336/61 (29 May 1962) (‘Eichmann’). For a thorough commentary, see James Fawcett, ‘The Eichmann Case’ (1962) 27 British Yearbook of International Law 181.

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to the principle of universal jurisdiction and acting in the capacity of guardian of international law and agent for its enforcement, to try the appellant.11 Similar comments have been made by Justice Toohey of the High Court of ­Australia in Polyukhovich12 and by the French Court of Cassation in Barbie.13 Hence, universal jurisdiction over crimes against humanity is traditionally based upon the following premises: (1) by reason of the nature of the acts, their scale or savagery, they are the concern of all humanity (referred to in this work as the ‘humanity principle’);14 and (2) national courts, as ‘agents’ for the international community, can enforce such crimes. One further basis – the analogy with piracy – is discussed further below. This reasoning was applied by us courts in Demjanjuk v Petrovsky15 and more recently in the Pinochet cases.16 Following these lines, scholars such as Cassese and Watts have argued that universal jurisdiction follows from the fact that all states have an interest in upholding the international order which is challenged by such crimes.17 As noted in the opening of this chapter, courts 11 (Israel) Eichmann, above n 11, 304. 12 (Australia) Polyukhovich v The Commonwealth (1991) 172 clr 501 (‘Polyukhovich’), 536. 13 (France) Prosecutor v Klaus Barbie, Cour de cassation (chambre criminelle), Bull. crim no 407 (20 December 1985), translated in Federation Nationale des Désportés et Internés Résistants et Patriotes and Others v Barbie (1988) 78 ilr 124 (‘Barbie’), 131. 14 (Belgium) Aguilar Diaz et al. v Pinochet, Tribunal of First Instance of Brussels (Belgium), order of 6 November 1998 (‘Belgian Pinochet Case’), reprinted in (1999) 118 Journal des Tribunaux 308 with critical note by Joe Verhoeven; see also summaries in English in Luc Reydams, ‘In re Pinochet’ (1999) 93 American Journal of International Law 700, 702–703; and (United Kingdom) R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 3) [2000] 1 ac 147 (‘Pinochet No 3’), 274 per Lord Millet. 15 (United States) Demjanjuk v Petrovsky 776 F.2d 571 (6th Cir. 1985), 582–583. 16 See above, n 15. 17 Antonio Cassese ‘When May Senior State Officials Be Tried for International Crimes?’ (2002) 13(4) European Journal of International Law 853, 859; Arthur Watts, ‘The Importance of International Law’, in Michael Byers, The Role of Law in International Politics (Oxford University Press: Oxford, 2000) 5, 7; see also Robert Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (Cambridge University Press: Cambridge, 2005) 84–85.

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have also frequently invoked the need to counter impunity to support their resort to universal jurisdiction.18 While it is frequently stated that universal jurisdiction over crimes against humanity is well established in international customary law,19 other writers remain cautious.20 As will be argued further below, the proposition that 18 (Nuremberg) For example, a us military tribunal said: ‘Crimes against humanity … can only come within the purview of this basic code of humanity because the State involved, owing to indifference, impotency or complicity, has been unable or has refused to halt the crimes and punish the criminals’: see United States v Otto Ohlendorf et al., 4 ccl 10 Trials 411 (1950) (‘The Einsatzgruppen Case’), 498. 19 See, for example: Ian Brownlie, Principles of International Law (6th ed, Clarendon Press: Oxford, 2003) 303–305; Andrew Clapham, ‘National Actions Challenged: Sovereignty, Immunity and Universal Jurisdiction before the International Court of Justice’ in Mark Lattimer and Philippe Sands (eds), Justice For Crimes Against Humanity (Hart Publishing: ­Oxford, 2003) 303; Kenneth Randall, ‘Universal Jurisdiction under International Law’ (1988) 66 Texan Law Review 785, 800; Bruce Broomhall, International Justice and the International Criminal Court (Oxford University Press: Oxford, 2003) 106–107; Rosalyn Higgins, Problems and Process: International Law and How We Use It (Clarendon Press: Oxford, 1994) 61; Steven Ratner and Jason Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (2nd ed, Oxford University Press: Oxford, 2001) 164 (although this was based upon the lack of opposition to Canada’s and Belgium’s legislation); M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law (2nd rev. ed., Kluwer Law International: The Hague, 1999) 210–217; Lori Fisler Damrosch, Enforcing International Law through Non-Forcible Measures (1997) 269 Recueil des Cours 9, 218; Theodor Meron, ‘International Criminalization of Internal Atrocities’ (1995) 89(3) American Journal of International Law 554, 569; but note the absence of ‘crimes against humanity’ in the Restatement of the Law (Third), The Foreign Relations Law of the United States, s 404: ‘A state has jurisdiction to define and prescribe for certain offences recognised by the community of nations as being of universal concern, such as piracy, slave trade, attack on or hijacking of aircraft, genocide, war crimes and perhaps certain acts of terrorism…’. See also William Aceves, ‘Liberalism and International Legal Scholarship: The Pinochet Case and the Move Towards a Universal System of Transnational Law Litigation’ (2000) 41 Harvard International Law Journal 129. 20 See, for example, Henzelin who concluded in 2000 that ‘L’application unilatérale du principe de l’universalité doit dès lors être présumée illégale.’: Marc Henzelin, Le Principe de l’Universalité en Droit Pénal International: Droit et Obligation pour les Etats de Poursuivre et Juger Selon le Principe de l’Universalité (Helbing & Lichtenhahn/Bruylant: Bâle/Genève/ Munich/Bruxelles, 2000) 235; Reydams, above n 7, 220–231; Antonio Cassese, International Criminal Law (Oxford University Press: Oxford, 2003) 292–298; Iain Cameron, ‘Jurisdiction and Admissibility Issues under the icc Statute’ in Dominic McGoldrick, Peter Rowe and Eric Donnelly (eds), The Permanent International Criminal Court: Legal and Policy Issues (Hart Publishing: Oxford, 2004) 65, 69; see also Lassa Oppenheim, Robert Jennings and Arthur Watts, Oppenheim’s International Law (9th ed, Oxford University Press:

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­ niversal jurisdiction exists over crimes against humanity requires closer u analysis. In particular, attention needs to be given to the definition of a ‘crime against humanity’, including whether at the time of the courts’ assumption of jurisdiction the crime required a nexus to war or was considered analogous to war crimes. A customary rule of international law in favour of universal jurisdiction over crimes against humanity with a war nexus does not necessarily support universal jurisdiction when the international offence no longer comes with a nexus to war. In addition, the rationale that universal jurisdiction ought to follow from the conclusion that all states have an interest in suppressing ‘international offences’ such as crimes against humanity should also be given further attention. This rationale was certainly understandable at a time when there existed no mechanism for enforcement other than through national courts. In Eichmann, for instance, universal jurisdiction was expressly invoked ‘in the absence of an International Court’.21 Today, however, there exists a permanent international criminal court and the international community has demonstrated its willingness to create ad hoc and hybrid tribunals where considered appropriate. Some of the authorities began to turn against universal jurisdiction for crimes against humanity following the icj Arrest Warrant case and the demise of Belgium’s experiment in universal jurisdiction.22 Cassese asked whether ‘the bell is tolling for universality’.23 This trend has continued with the restriction of universal jurisdiction in Spain.24 Scholarly debate continues, generally in favour of universal jurisdiction, but the tone and approach is far more cautious.25 ­Oxford, 2008) 998: ‘While no general rule of positive international law can as yet be asserted which gives to states the right to punish foreign nationals for crimes against humanity in the same way as they are, for instance, entitled to punish acts of piracy, there are clear indications pointing to the gradual evolution of a significant principle of international law to that effect.’ 21 (Israel) Eichmann, above n 11, 292. 22 See Chapter 7, Section 3.1. See also Steven Ratner, ‘Belgium’s War Crimes Statute: A Postmortem’ (2003) 97(4) American Journal of International Law 888. 23 Antonio Cassese, ‘Is the Bell Tolling for Universality? A Plea for a Sensible Notion of Universal Jurisdiction’ (2003) 1(3) Journal of International Criminal Justice 595. 24 See Chapter 7, Section 3.5. See also Christopher Borgen, ‘Adios Spanish Universal Jurisdiction?’, Opinio Juris (26 June 2009), accessed online at on 4 May 2014. 25 See, for example: Anne-Marie Slaughter, ‘Defining the Limits: Universal Jurisdiction and National Courts’, in Macedo, above n 7, 168; Georges Abi-Saab, ‘The Proper Role of Universal Jurisdiction’ (2003) 1(3) Journal of International Criminal Justice 596; and Cassese, above n 24; but cf. George P. Fletcher, ‘Against Universal Jurisdiction’ (2003) 1(3) Journal of International Criminal Justice 580.

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It is no coincidence that this revision has occurred following the expansion of the definition of crimes against humanity to a greater number of situations which have no nexus with any armed conflict. As the field of international ­offences has expanded, it is more frequently accepted that the criminalisation of certain conduct under international law does not necessarily coincide with the existence of a right of states to assume universal jurisdiction over all perpetrators; the latter must still be proven with respect to each crime under international law.26 As Kress puts it: It is not necessarily inconsistent for states, on the one hand, to pronounce themselves in favour of the international criminalization of certain conduct because such conduct is of ‘concern to the international community as a whole’ and, on the other hand, to deny a state’s competence to exercise universal jurisdiction over such a crime. States may be driven towards such a negative position because they fear that the exercise of such jurisdiction at the national level lends itself to politically motivated abuses, and they consider that the safeguard of the community interest should be exclusively entrusted to a genuine community organ, i.e. a genuine international criminal court or a court specifically legitimized as a trustee of the international community by an international organ such as the Security Council of the United Nations.27 This is consistent with the approach adopted in this work, namely, that the elements of an international offence such as crimes against humanity must be considered as a separate but related question to the jurisdictional right to try. The conclusion reached in Chapter 8 was that a firm legal basis exists for the establishment of international criminal tribunals by the Security Council acting under Chapter vii with a prescriptive, adjudicative and enforcement jurisdiction over crimes against humanity and such jurisdiction may be applied ­irrespective of the position or official capacity of the defendant and of the effect of any local law. Indeed, it was suggested that the modern contextual element of all crimes against humanity – ‘a widespread or systematic attack directed against any civilian population’ – is best viewed as a summary of a permissive rule of jurisdiction allowing the Council to invoke its powers because 26

27

See, for example, Christian Tomuschat’s summary of the comments received in his Final Report and Draft Resolution (2005) 71(1) Annuaire de l’Institut de droit international 32, 34, 36, 37. Claus Kress, ‘Universal Jurisdiction over International Crimes and the Institut de Droit international’ (2006) 4 Journal of International Criminal Justice 561, 572.

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it is now accepted that such an ‘attack’, without more, constitutes a threat to international peace and security. As a result, it may be an appropriate time to take stock and review the case that international customary law permits states to invoke universal jurisdiction over crimes against humanity as currently defined under Article 7 of the icc Statute. The following section analyses state practice and then consideration is given to the related issue of state immunity before domestic courts. State Practice before the icc Statute Universal Jurisdiction over Crimes against Humanity at Nuremberg The Nuremberg Tribunal held that the Allies ‘have done together what any one of them might have done singly’.28 Some controversy surrounds this comment. According to the Secretary-General’s Report of 194929 and some academic writers,30 the Nuremberg Tribunal may have regarded the crimes as being subject to universal jurisdiction. The passage, however, needs to be read as a whole:

2.2 2.2.1

the Charter was the exercise of the sovereign legislative power by the countries to which the German Reich unconditionally surrendered; and the undoubted right of these countries to legislate for the occupied territories has been recognised by the civilized world … In doing so, they have done together what any one of them might have done singly.31 Viewed in context, it is clear that the Tribunal was only repeating the submission of the French Prosecutor, de Menthon. De Menthon did not submit that the Tribunal, like any state court, had universal jurisdiction over the crimes against humanity committed in Germany against German nationals. His submissions on jurisdiction were, firstly, that whilst it would be foremost the duty of the German state to punish its own nationals who have violated international law, following Germany’s unconditional surrender, ‘there is no German State and the four occupying Powers were the highest authority and had the right to

28 (Nuremberg) ‘Judicial Decisions, International Military Tribunal (Nuremberg), Judgment and Sentences (1 October 1946)’ (1947) 41 American Journal of International Law 172 (‘Nuremberg Judgment’), 216. 29 Memorandum of the Secretary-General on the Charter and Judgment of the Nürnberg Tribunal, 67–68, un Doc A/CN 4/5 (3 March 1949). 30 See Bassiouni, above n 20, 236; and Randall, above n 20. 31 (Nuremberg) Nuremberg Judgment, above n 29, 216.

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adjudge the guilt of German nationals for the crimes committed’.32 Secondly, he submitted that the London Charter (which had been signed by 19 countries in addition to the four Allies) was, in effect, the method by which the ‘territorial jurisdiction of sovereign States’ affected by the crimes of the Nazis was ceded to the Tribunal in respect of the crimes committed in their territories.33 De Menthon’s submissions on crimes against humanity and jurisdiction appear to have had a great influence on (or generally been supported by) Donnedieu de Vabres, the French member of the Tribunal, and Francis Biddle, the American judge on the Tribunal.34 Donnedieu de Vabres was a leading writer at the time on international law and criminal jurisdiction. Whilst he supported the ‘subsidiary’ right of states to exercise extraterritorial criminal jurisdiction in default of other states being able to act, he did not support the right of a state to assert its criminal jurisdiction over foreign nationals for conduct committed outside that state’s borders in face of opposition to such a course by the suspect’s state of nationality.35 Indeed, few international law scholars did at the time. Accordingly, the Nuremberg Judgment is best understood as a precedent for two forms of jurisdiction. First, an occupying power after war may set up a tribunal to prosecute the war crimes and ‘crimes against humanity’ of the defeated power. Secondly, states may cede their territorial jurisdiction to an international tribunal by international treaty, as occurred under the icc Statute.36 32 (Nuremberg) Trial of the Major War Criminals before the International Military Tribunal Nuremberg, 14 November 1945–1 October 1946 (26 July 1946) (‘Record of Nuremberg Trial’), vol. v, 352. 33 (Nuremberg) Record of Nuremberg Trial, above n 33, vol i, 418ff. 34 This conclusion is based upon both the judgment of the Nuremberg Tribunal (discussed in Chapter 2) and the contemporaneous writings of the two former judges after the judgment which revealed a very conservative approach to the novel international offence defined for the time in positive international law at Article 6(c) of the London Charter: see Chapter 2, Section 5.2. 35 Henri Donnedieu de Vabres, Les principes modernes du droit pénal international (Recueil Sirey: Paris, 1928). 36 This is the conclusion of Madeline Morris, ‘High Crimes and Misconceptions: The icc and Non-State Parties’ (2001) 64(1) Law and Contemporary Problems 13, 26; and Diane Orentlicher, ‘The Future of Universal Jurisdiction’ in Stephen Macedo, Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under International Law (University of Philadelphia Press: Philadelphia, 2004) 214, 217. See also Matthew Garrod, ‘The Protective Principle of Jurisdiction over War Crimes and the Hollow Concept of Universality’ (2012) 12 International Criminal Law Review 763 (who concludes that the Nuremberg trials were properly viewed through the lens of the protective principle rather than universality).

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It is somewhat unreal to regard Nuremberg (or Tokyo)37 as a precedent for the assumption of universal jurisdiction over crimes against humanity by state courts outside the context of war. Nor does universal jurisdiction over p ­ iracy have a role to play, as some have suggested.38 Rather, it was victory in war and Germany’s unconditional surrender which grounded the Allies’ actions at Nuremberg. This was visually demonstrated by the image of us soldiers guarding the defendants in the courtroom at Nuremberg. Its nearest precedent was not universal jurisdiction over piracy but the imprisonment of Napoleon after Waterloo. 2.2.2 Universal Jurisdiction over Nazi War Criminals after Nuremberg From Nuremberg to the Rome Conference in 1998, the state practice relied on by proponents in favour of the exercise of universal jurisdiction over crimes against humanity appears to be based solely upon the prosecutions (particularly, the extraterritorial prosecutions) of surviving Nazi war criminals. These prosecutions and the governing legislation have been summarized in Chapter 3. They include prosecutions in occupied Germany, Australia, Canada, France, Israel and the Netherlands. To this end, reference is frequently made to the decision of the us Military Tribunal in In re List under Control Council Law No 10 (the law which authorized prosecutions for crimes against humanity before military tribunals in occupied Germany).39 The Tribunal asserted that, under international law, there existed a right to invoke universal jurisdiction over war crimes and crimes against humanity. As discussed in Chapter 3, however, the Tribunal’s jurisdiction was in fact grounded upon a law which was an occupational enactment of the Allies acting as the ‘Control Council’ pursuant to Germany’s unconditional surrender. The law was expressed to be one ‘in and for Germany’, not an exercise in universal jurisdiction.40 In addition, the us Military Tribunals confined their prosecutions to crimes which had a nexus to the Second World War and 37 38

See a more detailed discussion of the Nuremberg and Tokyo Tribunals in Chapter 2. Randall links piracy with crimes punished in the post-war period: above n 20, 803–804. Similarly, according to the Secretary-General writing in 1949, if the Nuremberg Tribunal thought the crimes were subject to universal jurisdiction, ‘[t]he case of piracy would then be the appropriate parallel’: Memorandum of the Secretary-General on the Charter and Judgment of the Nürnberg Tribunal, 67–68, un Doc. A/CN 4/5 (13 April 1949). The latter passage is quoted with approval in Bassiouni, above n 20, 236. 39 (Nuremberg) United States v List et al. 11 ccl 10 Trials 1230 (1950) (‘The Hostages Case’), 1241–1242. 40 See Chapter 3, Section 2.1.

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this was assumed in some (but not all) decisions to be a part of the definition of a crime against humanity under Control Council Law No 10.41 Domestic prosecutions of Nazi war criminals after the Second World War are similarly weak precedents. The trial of Eichmann tends to be the seminal case relied upon to ground the right to invoke universal jurisdiction over crimes against humanity. This is no doubt because it appears to represent the only actual example of an assertion of universal jurisdiction over crimes against humanity before the adoption of the icc Statute. Much has been written on the case.42 It needs to be recalled, however, that the legislation which permitted the Israeli prosecution of Eichmann – Article 1(a)(2) of the Nazi and Nazi Collaborators (Punishment) Law (1950) – was limited to offences committed ‘in enemy territory’ during ‘the Nazi regime’, not crimes against humanity more widely.43 Hence, the jurisdiction of the Israeli courts was limited to events in Germany around the time of the Second World War, not acts committed at any time and in any place in the world. Further, in its statements at the time, Israel sought primarily to act for the Jewish victims, not humanity as a whole.44 Taylor, a prosecutor at Nuremberg, took Israel to task for charging Eichmann with ‘crimes against the Jewish people’ not ‘crimes against humanity’.45 The Supreme Court, however, clearly sought to rely upon the principle of universal jurisdiction and not the nationality or ethnicity of the victims. Some have suggested that the prosecution of Eichmann in the victims’ home state, particularly following his abduction from Argentina, makes the case a less than satisfactory precedent.46 Nevertheless, no state, including Germany, objected at the time.47 As discussed in Chapter 3, similar qualifications must be made when considering other domestic prosecutions for crimes against humanity after the Second World War and prior to the Rome Conference. In the cases of France and the Netherlands, the legislation authorised prosecutions for crimes against 41 42 43 44 45 46

47

See Chapter 3, Section 2. See, for example, Gary J. Bass, ‘The Adolf Eichmann Case: Universal Jurisdiction and ­National Jurisdiction’ in Macedo, above n 7, 77. See Chapter 3, Sections 4.5. See, for example, Bass, above n 43, 80. Telford Taylor, ‘Large Questions in the Eichmann Case,’ New York Times Magazine (22 ­January 1961), 22; see also Bass, above n 43, 80. Fawcett says ‘the process in Israel would have served only to weaken the rule of law if it were to be invoked as a precedent for trials where such a combination [of extraordinary events] was not present’: above n 11, 215. David Lasok, ‘The Eichmann Trial’ (1962) 11(2) International and Comparative Law Quarterly 355, 360, fn 20.

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humanity based upon the London Charter and, hence, incorporated the war nexus.48 In the case of France, the courts went further, holding that ‘crimes against humanity’, as defined under Article 6 of the London Charter, only applied to conduct in furtherance of the interests of the Axis powers.49 Hence, despite the lofty statements of the Court in Barbie that crimes against humanity was the ‘subject of an international criminal order to which the notions of frontiers and extradition rules arising therefrom are completely foreign’,50 prosecutions for crimes against humanity in France at that time were limited to Nazi atrocities and could not even be applied to conduct in France in support of the ­Vichy government (as opposed to the Nazi government) or to the conduct of the French military in Algeria before independence.51 Outside these Nazi war crimes cases, French courts consistently rejected the suggestion that crimes against humanity could exist without the requisite war nexus. For example, in Javor,52 investigating magistrate, Judge Getti, rejected an attempt to invoke extraterritorial jurisdiction for crimes against humanity in the context of Rwanda. Judge Getti found he had no jurisdiction over crimes against humanity because General Assembly Resolution 3074 (xxiv) had no binding force53 and there were no customary law rules or other international basis for him to invoke universal jurisdiction.54 The same conclusion was later reached by a different French judge (Judge Le Loir) in relation to an attempt to indict General Pinochet.55 In Australia, legislation granted courts extraterritorial jurisdiction over some ‘war crimes’ – crimes which were more in the nature of crimes against 48 See Chapter 3. 49 See Chapter 3, Section 4.4. 50 (France) Barbie, above n 14. 51 See Chapter 3, Section 4.4; and Chapter 7, Section 3.2. 52 (France) Tribunal de Grande Instance de Paris (examining magistrate), order of 6 May 1994; Cour de cassation (chambre criminelle), 26 March 1994 reprinted in 1996 Bull. crim., No. 132 (‘Javor’), 379, quoted in Cour d’Appel de Paris decision of 24 November 1994. For comments, see: Rafaëlle Maison, ‘Les premiers cas d’applications des dispositions pénales des Conventions de Genève par les jurisdictions internes’ (1995) 6 European Journal of International Law 260; Bridgette Stern, ‘In re Javor; In re Munyeshyaka’ (1999) 93(2) American Journal of International Law 525; and Reydams, above n 7, 135. 53 Stern, above n 53, 526. 54 Stern, above n 53, 526. 55 (France) Pinochet (Order of Judge Le Loir), Tribunal de grande instance (Paris) (2 ­December 1998) quoted in Bridgette Stern, ‘International Decisions’ (1999) 93(3) American Journal of International Law 696, 697.

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humanity – only where the impugned acts were committed in Europe during the Second World War.56 While this jurisdiction is more expansive than in East Germany, France and the Netherlands, given that the law was passed in 1989, this represents, in fact, a very cautious approach to the assertion of a prescriptive extraterritorial jurisdiction over crimes against humanity. Further, no trial has actually been completed under this law. Similarly, Canada’s legislation – whilst providing for the broadest of jurisdictions over crimes against humanity before the Rome Conference – still ­required both that the offence be an existing offence under international law57 and either a connection with war or the presence of the accused in the jurisdiction.58 Moreover, Canada’s only prosecution under such legislation prior to 1998 was of Finta – a Nazi war criminal and resident at the time.59 2.2.3

Conclusion: Prosecuting Nazi War Criminals and the Piracy Analogy Prior to the 1998 Rome Conference, the instances where universal jurisdiction has been invoked, or even provided for, in the case of crimes against humanity have been rare. Despite the laudable remarks of the courts, the practice in fact has been limited to the prosecution of former Nazis for conduct during or associated with the Second World War. None of the states under consideration expressly provided for extraterritorial jurisdiction over crimes against humanity without a link to war or, more frequently, the Second World War. In the cases of Australia, France, East Germany, Israel and the Netherlands, this approach was adopted as the conscious choice of the prosecuting state in the form of the legislation passed. Two factors informed this choice. First, for most of the period, the assumption was likely made that crimes against humanity required a war nexus. As discussed earlier in this text, this view was the best view of the law until the adoption of the modern definition of crimes against humanity in the 1990s.60 This limited the field of potential perpetrators worldwide to an ever dwindling supply of former Nazis or other war criminals. 56 57

58 59 60

See Chapter 3, Section 4.2. The law required that the offence ‘at that time and in that place, constitutes a contravention of customary international law or conventional international law or is criminal according to the general principles of law recognised by the community of nations’ which, until the early 1990’s, required a nexus with war: see Chapter 3, Section 4.3. See Chapter 3, Section 4.3. See Chapter 3, Section 4.3; and (Canada) R v Finta [1994] 1 scr 701. This was the conclusion reached in Chapter 2 in relation to the consensus view after Nuremberg (see Section 8), the practice that followed ww2 (see Chapter 3, Section 5), and was summarised in Chapter 8 (see Section 1.1).

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Secondly, states were likely content to maintain this status quo as the r­equirement of a war nexus eliminated the potential for causing tension in interstate relations. The new state of Germany had shown itself to be disinterested in objecting to the exercise of extraterritorial jurisdiction by other states in respect of former Nazis. In the result, at best, there is some basis for asserting that state practice supports the right to invoke universal jurisdiction over crimes against humanity where there is a nexus with international armed ­conflict, and in particular, where the prosecuting state was involved in that conflict. It would be dangerous to rely on the precedents discussed above to support a general rule of universal jurisdiction for the wider definition of crimes against humanity found in Article 7 of the icc Statute. In his Separate Opinion in the Arrest Warrant case, Judge Guillaume stated that ‘international law knows only one true case of universal jurisdiction: piracy’.61 Perhaps recognising this practice, some courts62 and commentators (including the then un Secretary-General)63 have suggested that universal jurisdiction for war crimes or crimes against humanity can be grounded by analogy with piracy. As initially discussed in Chapter 1, however, there are a number of reasons why the analogy is inapposite.64 First, it remains open to doubt whether piracy is an international crime, stricto sensu, as opposed to a rule which permits a state to invoke its own criminal law when contact is made with a pirate on the high seas. This was the view of Georg Schwarzenberger, who classically categorised piracy jure gentium as a species of ‘internationally authorized municipal law’. As discussed in ­Chapter 1, the right to invoke universal jurisdiction in the case of piracy is clearly based upon special circumstances and can be explained only on the basis of special considerations. The sui generis characterization of piracy on the high seas as a crime of customary universal jurisdiction would seem to rest upon a combination of the absence of a territorial sovereign and the typical 61 (icj) Arrest Warrant Case, above n 4, [12]. 62 (United Kingdom) For example, in the Almelo Trial, the British Military Court said ‘every independent state has in International Law jurisdiction to punish pirates and war criminals in its custody regardless of the nationality of the victim or the place where the offence was committed’. See also (icj) Arrest Warrant Case, above n 4, Opinion of Judge Van Der Wyngaert, [15]. 63 Randall links piracy with crimes punished in the post-war period: above n 20, 803–804. According to the Secretary-General in 1949, if the Nuremberg Tribunal thought the crimes were subject to universal jurisdiction, ‘[t]he case of piracy would then be the appropriate parallel’: quoted in Bassiouni, above n 20, 236. 64 Chapter 1, Section 3 argued that piracy is best seen as sui generis rather than a precedent for crimes against humanity.

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difficulty of establishing one of the traditional bases for alternative forms of jurisdiction such as, in particular, the nationality of the alleged offender or a connection with the territory of a state. Secondly, even if piracy is an international crime, it is doubtful whether or not piracy is properly seen as analogous to crimes against humanity. In a very loose sense, a factual analogy could be applied to the Nazi war criminal and the pirate. The Second World War had affected many nations and different populations. Nazi Germany and its judicial system had wholly collapsed so that, like the pirate, Nazi war criminals were hostis humanis generis – without any state support and scattered around the globe.65 Paraphrasing de Vabres, some states, acting in default of any other state being able to act, invoked an extraterritorial jurisdiction to counter, in the interests of humanity, an outrageous impunity.66 From this limited experience with ‘universal jurisdiction’, however, it is difficult to extrapolate a rule of customary international law which permits an extraterritorial prosecution for crimes against humanity outside the context of war. As will be discussed further below, this is particularly so where (unlike the example of Nazi perpetrators), the leader is still in office or where the third (territorial) state does object.67 As held by the majority of the us Supreme Court in Kiobel v Royal Dutch Petroleum Co, piracy typically occurred on the high seas and did not involve the imposition of one sovereign onto conduct occurring in the territory of another sovereign.68 2.3 The icj Arrest Warrant Case The right of Belgium to assert universal jurisdiction over crimes against humanity was considered, but not ruled upon, by the icj in the Arrest Warrant Case.69 As considered further below, Belgium indicted the former Congolese Minister of Foreign Affairs, Abdoulaye Ndombasi, for, inter alia, incitement to commit crimes against humanity for comments directed against ethnic Tutsis 65 (United States) In Demjanjuk v Petrovsky, above n 16, 582, the Court of Appeal, in upholding Israel’s extradition request of a Nazi war criminal suspected of committing crimes against humanity, accepted Israel’s right to invoke universal jurisdiction. 66 Vabres, above n 36, 135. 67 Here the piracy analogy just breaks down: see Eugene Kontorovich, ‘The Piracy Analogy: Modern Universal Jurisdiction’s Hollow Foundation’ (2004) 45 Harvard International Law Journal 183, where the author criticises the analogy. 68 (United States) Kiobel v Royal Dutch Petroleum Co., 133 S.Ct. 1659 (2013), 10–11. 69 For writings on the case, see M. Cherif Bassiouni, Introduction to International Criminal Law (Transnational Publishers: New York, 2003) 80–81; and Alexander Orakhelashvili, ‘Case Report: Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium)’ (2002) 96 American Journal of International Law 677.

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in Rwanda in 1998. At the time of the arrest warrant – but not at the time of the acts charged or the hearing of the case – Ndombasi was the Foreign Minister of the drc. The Court did not need to decide the difficult question of universal jurisdiction on the ­basis that the Congo did not press the ground in its submissions.70 Nonetheless, several judges commented on the issue in separate judgments. President Guillaume said universal jurisdiction ‘in absentia’, as he described the assertion of universal jurisdiction without the presence of the defendant in the forum state, is unknown to international conventional law71 and universal jurisdiction for crimes against humanity cannot be supported absent a treaty provision.72 Judges Rezek, Ranjeva and Bula-Bula appeared to agree, at least in the absence of the presence of the defendant in the forum state. With the ­exception of Israel, ‘which in this field obviously constitutes a very special case’, the President could not find support for such jurisdiction in domestic legislation or decisions of state courts.73 While Belgium sought to rely upon the well-known dictum in the Lotus decision74 to say universal jurisdiction was not prohibited under international 70 (icj) Arrest Warrant Case, above n 4, [45]–[46]. 71 (icj) Arrest Warrant Case, above n 4, Separate Opinion of President Guillaume, [9]. 72 (icj) Arrest Warrant Case, above n 4, Separate Opinion of President Guillaume [16]. 73 (icj) Arrest Warrant Case, above n 4, Separate Opinion of President Guillaume [12]. This view of State practice needs to be revised in the light of more recent developments: see Chapter 7. 74 (pcij) ss Lotus (France v Turkey), Permanent Court of International Justice. p.c.i.j (ser. A) No 10 (1927) (‘Lotus Case’), 18–19 (‘Now the first and foremost restriction imposed by international law upon a State is that – failing the existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention. It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law. Such a view would only be tenable if international law contained a general prohibition to States to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, and if, as an exception to this general prohibition, it allowed States to do so in certain specific cases. But this is certainly not the case under international law as it stands at present. Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion, which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt

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law, the President rejected this argument, finding that ‘[t]he adoption of the United Nations Charter proclaiming the sovereign equality of states, and the appearance on the international scene of new States, born of decolonisation, have strengthened the territorial principle’.75 He concluded: [A]t no time has it been envisaged that jurisdiction should be conferred upon courts of every State in the world to prosecute such crimes, whoever their authors and victims and irrespective of the place where the offender is to be found. To do this would moreover risk judicial chaos. It would also be to encourage the arbitrary for the benefit of the powerful, purportedly acting as agents for an ill-defined ‘international community’. Contrary to what is advocated by certain publicists, such a development would represent not an advance in the law but a step backward.76 In their Joint Separate Opinion, Judges Higgins, Kooijmans, and Buergenthal found that state practice was neutral as to the exercise of universal jurisdiction, particularly in absentia. Based on the dictum in Lotus and the practice of the international community in labelling certain crimes as warranting the attention of the international community, the Joint Separate Opinion concluded that international law does not prohibit states from exercising extraterritorial criminal jurisdiction and universal jurisdiction over persons accused of crimes against humanity.77 Judge Van Der Wyngaert agreed with the Joint Separate Opinion for essentially the same reasons, while Judge Koroma also accepted Belgium’s right to assert universal jurisdiction, but for reasons that were not articulated. In the end, the right of a state to exercise universal jurisdiction for crimes against humanity was left open by the Court. The uncertainty in the law would appear to be greater where jurisdiction is asserted over a person who is not present in the forum state at the time. the principles which it regards as best and most suitable. This discretion left to States by international law explains the great variety of rules which they have been able to adopt without objections or complaints on the part of other States … In these circumstances all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty.’). 75 (icj) Arrest Warrant Case, above n 4, Separate Opinion of President Guillaume, [15]. 76 (icj) Arrest Warrant Case, above n 4, Separate Opinion of President Guillaume, [15]. 77 (icj) Arrest Warrant Case, above n 4, Separate Opinion of President Guillaume, [52], [58], [60]–[61], [65].

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2.4 The Rome Statute 2.4.1 The Rejection of Universal Jurisdiction Stricto Sensu The view that international law allows universal jurisdiction over serious international offences such as genocide, crimes against humanity and war crimes, was considered by states at the Rome Conference of 1998. Initially, Germany proposed that the icc have jurisdiction without any need for state consent.78 Then, South Korea proposed that the icc have jurisdiction if a State Party is: (a) the territorial state; (b) the state of the nationality of the defendant or the victim; or (c) the state where the suspect is found. The final result was that the icc only has jurisdiction if: • the territorial state or the state of the nationality of the suspect is a State Party; or • the matter was referred to the icc by the un Security Council. Even then, the United States objected to the icc having jurisdiction over nationals of non-State Parties. For the reasons advanced above, the Nuremberg Tribunal may be regarded as a precedent which supports the right of states, by way of an international treaty, to cede to an international tribunal its criminal jurisdiction over acts that take place within its territory. Some, such as Sadat and Carden, argue the jurisdiction of the icc is premised ‘[f]irst, and foremost’ on the ­principle of universality.79 The debate, however, suggests a consensus on universal jurisdiction for serious international crimes did not exist in 1998. Rather, delegations felt more confident about their right to assert a criminal jurisdiction over non-nationals if the crimes occurred in the territory of a State Party. This is the view of the Chairman of the Conference80 and others such as

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79 80

For the negotiating process, see Philippe Kirsch and John T Holmes ‘The Rome Conference on an International Criminal Court: The Negotiating Process’ (1999) 93(1) American Journal of International Law 2; and Elizabeth Wilmshurst, ‘Jurisdiction of the Court’ in Roy Lee (ed), International Criminal Court: The Making of the Rome Statute – Issues, Negotiations, Results (Kluwer Law International: The Hague, 1999) 132. See also Orentlicher, above n 37, 214, 217. Leila Nadya Sadat and Richard Carden, ‘The New International Criminal Court: An Uneasy Revolution’ (2000) 88(3) Georgetown Law Journal 381, 412. Kirsch wrote in response to us objections to the icc having jurisdiction over us nationals: ‘This does not bind states that are not parties to the Statute. It simply confirms the recognised principle that individuals are subject to the substantive and procedural criminal laws applicable in the territories to which they travel, including laws arising from treaty

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Orentlicher81 and Fowler.82 Hence, the icc Statute emphasises the principles of nationality and territoriality rather than universal jurisdiction. While the icc emphasised the principles of nationality and territoriality over universal jurisdiction, the icc did adopt one further mechanism for jurisdiction that is in some ways analogous to universal jurisdiction; namely, referral by the un Security Council. The mechanism is analogous to universal jurisdiction, as it effectively allows an international body established by a certain number of states to prosecute persons accused of crimes committed in states not party to the agreement. This mechanism, however, is not universal jurisdiction; the powers can only be exercised when the un Security Council is acting under Chapter vii. Otherwise, states were not confident about the icc, let alone a domestic state court, asserting a universal jurisdiction over crimes against humanity. 2.4.2 Adoption of the Subsidiarity Principle Parties to the Rome Statute restricted the powers of the Court on the basis of the principle of complementarity, reflecting a strong preference of parties for prosecution by national and territorial courts over prosecutions at the icc.83 While this was done in the context of admissibility rather than jurisdiction, the point is nonetheless important. Referring to the preamble of the Rome Statute (which provides that the Court ‘shall be complementary to national criminal jurisdictions’), Article 17 of the Rome Statute provides that the Court shall determine that a case is inadmissible where the case ‘is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution’. This position is an important shift from the ad hoc Tribunals, whose statutes are usually drafted so as to take precedence over domestic proceedings. One may assume that states would also exhibit a general preference for prosecution

81 82 83

obligations’. See Philippe Kirsch, ‘The Rome Conference on the International Criminal Court: A Comment’, asil Newsletter (November/December 1998), 8. Orentlicher, above n 37, 218. See Jerry Fowler, ‘Not Fade Away: The International Criminal Court and the State of Sovereignty’ (2001) 2 San Diego International Law Journal 137. The preference for the claims of the territorial state can also be seen in the resolution of the dispute over the Lockerbie bombing. In March 1999, Libya accepted a us and uk proposal to try the Libyan suspects before a Scottish Court, applying Scottish law and largely following Scottish procedures but located in the Netherlands. As part of the arrangement, the court became Scottish territory for the duration of the proceedings, reinforcing the territorial principle: Orentlicher, above n 37, 226.

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by national and territorial courts over prosecutions in a third state exercising universal jurisdiction. 2.5 State Practice after the icc Statute 2.5.1 International and Internationalised Tribunals In terms of the hybrid Tribunals, both of the un-administered areas of Kosovo and East Timor adopted laws which granted their courts universal jurisdiction over crimes against humanity without requiring a nexus to war as did the Extraordinary African Chambers.84 With the exception of the Habré trial at the eac, however, the actual trials have not involved extraterritorial prosecutions.85 The Special Court for Sierra Leone and the Extraordinary Chambers of Cambodia only have territorial jurisdiction over crimes against humanity.86 The Iraqi High Tribunal’s jurisdiction extends to acts outside the territory of Iraq, but it is limited to Iraqi nationals and residents.87 The Appeals Chamber of the scsl, in assessing the validity of an amnesty granted under the Lomé Peace Agreement, considered whether universal jurisdiction existed for crimes against humanity.88 It did this because it held that if the international crime attracts universal jurisdiction (which it accepted will not always be the case for every international offence) then a local amnesty could not bar a foreign court or international court from exercising that universal jurisdiction.89 Relying on In re List et al. and Eichmann, it concluded that crimes against humanity (as defined in the Statute without a war nexus) are subject to universal jurisdiction and the amnesty will therefore not be binding upon it.90 The flaw in this line of reasoning is that it fails to consider the need to ­examine state practice anew when considering whether universal jurisdiction 84

See Chapter 5, Section 3.1.3 (in respect of East Timor), Section 3.4 (in respect of Kosovo) and Section 3.7 (in respect of the eac). 85 Ibid. 86 See Chapter 5, Sections 3.2 (in respect of the scsc) and 3.3 (in respect of the eccc). 87 See Chapter 5, Section 3.5. 88 (scsl) Prosecutor v Kallon, Norman and Kamara (Decision on Constitutionality and Lack of Jurisdiction), Case No SCSL-2004-14-AR72(E) (13 March 2004) (‘cdf – Jurisdiction’), [15]; see also Simon M. Meisenberg, ‘Legality of Amnesties in International Humanitarian Law: The Lomé Amnesty Decision of the Special Court of Sierra Leone’ (2004) 86 International Review of the Red Cross 837; and Antonio Cassese, ‘The Special Court and International Law: The Decision Concerning the Lomé Agreement Amnesty’ (2004) 2(4) Journal of International Criminal Justice 1130. 89 (scsl) cdf – Jurisdiction, above n 89, [67]. 90 (scsl) cdf – Jurisdiction, above n 89, [68] and [70]. See also (Nuremberg) The Hostages Case, above n 40; and (Israel) Eichmann, above n 11, discussed in Chapter 3, Section 4.5.

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exists over crimes against humanity without a war nexus, particularly where the Court accepted that one could not reason from the mere existence of an international offence a right to invoke universal jurisdiction. 2.5.2 State Practice in Domestic Courts since the Rome Statute (a) The Right to Exercise Universal Jurisdiction Whilst the icc Statute does not require that States Parties provide for extraterritorial jurisdiction over crimes against humanity, particularly over nonnationals, many states have now done just that. The icc Statute has caused something of a revolution in the assertion of universal jurisdiction over crimes against humanity in municipal legislation. The expressed approach of the United Kingdom – that the creation of an international criminal court means there is now no need for state courts to assume universal jurisdiction91 – has not been followed by other states.92 A large number of states have enacted legislation that allows their courts to assert universal jurisdiction over crimes against humanity – at least with varying levels of a connection to the jurisdiction required. In its survey of cases for its submissions to the icj in the Obligation to Prosecute or Extradite decision, Belgium found that 51 states in total had legislated to provide universal jurisdiction for crimes against humanity.93 More recently, a survey conducted by Amnesty International found that, as at October 2012, at least 80 states had provided for universal jurisdiction over crimes against humanity.94 A sample of states was discussed in Chapter 7.95 Of the 29 surveyed states that have proscribed crimes against humanity, 20 states’ legislation either does not require any connection between the offence and the prosecuting state (Australia, New Zealand, Germany, Chile, Latvia Hungary and Senegal) or requires a minimal connection to the jurisdiction, such as victims of the crimes being citizens/residents or the defendant being present in the jurisdiction (Canada, the Netherlands, Bosnia & Herzegovina, Romania,96 Argentina,97 91 See Chapter 7, Section 2.4.1. 92 See Chapter 7, Section 8.3. 93 (icj) Questions Relating to the Obligation to Prosecute or Extradite (Belgium v Senegal), Judgment of 20 July 2012, reported in [2012] icj Rep 422 (‘Obligation to Prosecute or Extradite Decision’), Separate Opinion of Judge Abraham, [34]. 94 Amnesty International, ‘Universal Jurisdiction – A Preliminary Survey of Legislation Around the World’ (October 2011), Al Index ior 53/004/2011, 13. 95 See Chapter 7, Section 8.3. 96 Although Romania also requires that the act be criminalised in the state where the crime was committed. 97 Where the person cannot be extradited to the icc.

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Brazil, South Korea, Ethiopia, Senegal, Kenya, the drc and South Africa). By contrast, 6 countries (the United Kingdom, Belgium, France, Norway, Guatemala, and Uruguay) have limited their courts’ extraterritorial reach to where the accused persons are nationals and/or residents,98 and 3 countries (­Estonia, and non-State Parties, Indonesia and Bangladesh) have proscribed crimes against humanity without any extraterritorial reach. (b) The Actual Exercise of Universal Jurisdiction It remains to be seen the extent to which the right to assert extraterritorial jurisdiction will be utilised. For example, a number of states provide that any extraterritorial prosecution must be consented to by a member of the executive (Australia, Canada, New Zealand, the uk and Indonesia).99 This discretion has already prevented at least one prosecution, in Australia.100 This suggests that states are still cautious about exercising universal jurisdiction. When it comes to the case law and actual trials a few points can be made. With respect to international offences, state courts have tended to reject the old law under the representation principle, which required some link between the offence and the prosecuting state, such as presence or a link to the victim. In a number of recent decisions – such as the Pinochet101 and Sharon102 cases in Belgium, the Spanish case of Scilingo103 (for crimes against humanity); the Guatemalan Genocide case of the Spanish Constitutional Court104 98

The proposed us Crimes Against Humanity Act 2009 had also proposed to limit its universal jurisdiction in this way. 99 See Chapter 7, Sections 2.1.1 (Australia), 2.2.1 (Canada), 2.3.1 (New Zealand), 2.4.1 (United Kingdom), 5.3.1 (Hungary) and 7.2.1 (Indonesia). The same was also required in the proposed legislation in the us (see Section 2.5.1). Other states required the approval of a federal prosecutor (Belgium, France, Germany, Spain), an elected Chief Prosecutor (Hungary) or requires that the executive be ‘consulted’ (Ethiopia). 100 See Chapter 7, Section 2.1.1 (Australia). 101 (Belgium) Belgian Pinochet Case, above n 15. 102 (Belgium) Abbas Hijazi et al. v Sharon et al., Cour de cassation belge, Arrêt No. JC032CI (12 February 2003), translated in (2003) 42 ilm 596. 103 (Spain) Sentencia por crímenes contra la humanidad en el caso Adolfo Scilingo, Audiencia National Española, Case No 16/2005 (19 April 2005) (‘Scilingo – Audiencia National’), accessed online at on 17 September 2015. Whilst the defendant voluntarily appeared, the court had permitted the investigation to proceed in absentia, including against the Argentinean exGeneral, Carvallo, who was extradited from Mexico, which accepted the claim to universal jurisdiction and ordered extradition on 11 January 2001. See also Cryer, above n 18, 90. 104 (Spain) Guatemala Genocide Case, Constitutional Tribunal (second chamber), Judgment No stc 237/2005 (26 September 2005) (‘Guatemala Genocide Case – Constitutional

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and the G ­ erman Supreme Court case of Sokolovic105 (for treaty crimes such as ­genocide) – national courts have held that a legitimate link to the offence, such as voluntary presence in the jurisdiction, is not a requirement. Scholars such as Cassese106 and Reydams107 question the right of states to proceed against a defendant who is not present in the jurisdiction.108 Others are of the view that the requirement of presence has more to do with preventing the possible legal overload that comes with having jurisdiction over all of the world’s perpetrators of crimes against humanity than being a requirement under customary law.109 On the other hand, on 12 December 2007, the Guatemalan Constitutional Court refused two extradition requests from Spain in the Rios Montt case for alleged acts of genocide committed in Guatemala.110 The Court refused the extradition requests on the basis that Spain could not exercise universal jurisdiction without the prior consent of the territorial State, in this case Guatemala.111 Actual trials for crimes against humanity grounded upon universal jurisdiction remain rare affairs. Where trials have taken place in domestic courts (as opposed to the ad hoc tribunals or the icc) – such as in Sierra Leone, East Timor, Cambodia, Kosovo, Ethiopia, Iraq and Estonia – they have ­largely been prosecuted by (or with the consent of) the territorial state as part of those countries’ transitions from a totalitarian regime or period of occupation. The same can be said of prosecutions in western countries arising out of crimes committed in Rwanda (Canada, Belgium and France)112 as well Court’). For a review of these decisions, see: Naomi Roht-Arriaza, ‘Guatemala Genocide Case’ (2006) 100 American Journal of International Law 207. 105 (Germany) Prosecution v Maksim Sokolović (Judgment), German Federal Court of Justice, Case No. 3 StR 372/00 (21 February 2001) (‘Sokolović Case’). 106 Cassese, above n 24, 595. 107 Reydams, above n 7, 224. 108 See also Kress, above n 28, 577 (who appears to accept that there is insufficient state practice to recognise such a rule of custom). 109 See Cryer, above n 18, 91–94; and (icj) the remarks of Judges Higgins, Kooijmans, and Buergenthal in the Arrest Warrant Case, above n 4. 110 In fact, the definition of genocide in the Spanish Penal Code included political associations as one of the discriminatory grounds and, hence, lies somewhere between the international law definitions of genocide and crimes against humanity: see Chapter 7, Section 3.5. 111 Third ilc Report on aut dedere aut judicare, below n 340, [88(b)]. 112 See Chapter 7, Sections 2.2.2 (Canada), 3.1.2(b) (Belgium) and Section 3.2.2 (France). A similar point may be made in respect of the Norwegian conviction for war crimes (albeit not crimes against humanity) committed in Bosnia: see Chapter 7, Section 3.6.2.

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as Senegal’s prosecution of Hissène Habré, as the territorial state has not objected.113 The same may also be said of the Spanish prosecution of Scilingo, an Argentinian navy captain. Not only did Argentina not object to Spain exercising jurisdiction,114 but the trial occurred following the defendant’s voluntary­ presence in Spain to face the charges brought.115 Accordingly, even if the Spanish Courts did hold that universal jurisdiction could be justified based on the fact that crimes against humanity were jus cogens prohibitions with erga omnes obligations on all states (an analysis that is open to question116), as Tomuschat argues, the accused’s voluntary presence alone justifies the assertion of jurisdiction under international law.117 (c) Academic Opinion The general weight of academic opinion appears to maintain that states have the right, if not the obligation, to assert universal jurisdiction over crimes against humanity in certain circumstances (at least where the defendant is present in the forum state). Among this number are Cryer,118 Kress,119 Cassese,120 Bassiouni,121 the Common of the Institute of International Law (under the guidance of rapporteur Tomuschat),122 and others.123 A minority view, however, has remained opposed to this view.124 This still leaves unresolved the question of immunity, discussed below. 113 See Chapter 7, Section 6.2.2. 114 Lekha Sriram, ‘The “Pinochet Precedent”: A Mixed Legacy for Human Rights’, Jurist (11 December 2006), accessed online at on 4 November 2014. 115 Christian Tomuschat, ‘Issues of Universal Jurisdiction in the Scilingo Case’ (2005) 3(5) Journal of International Criminal Justice 1074, 1074–1078. 116 Tomuschat, above n 116. For a further discussion of the Court’s reasoning, see Chapter 7, Section 3.5.2(a). 117 Tomuschat, above n 116, 1074–1078. 118 See Cryer et al., above n 6, 51. 119 Kress, above n 28, 584. 120 Cassese, above n 107, 592; and Cassese, above n 21, 336–338. 121 Bassiouni, above n 7. 122 Institute of International Law, “Resolution on Universal Criminal Jurisdiction with Regard to the Crime of Genocide, Crimes Against Humanity and War crimes” (Krakow Session, 26 August 2005), accessed online at on 14 November 2014. 123 Aceves, above n 20, 135; see also Luis Bienvenides, ‘The Universal Jurisdiction Principle: Nature and Scope’ (2001) 1 Annuario Mexicano de Derecho Internacional 58. 124 See authorities cited in Kress, above n 28, 570.

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(d) Remaining Controversy Whilst the conferring of universal jurisdiction over crimes against humanity in recent domestic legislation points in one direction, the frequent and virulent opposition of states to the actual exercise of universal jurisdiction points to a different conclusion. Chile intervened and objected to the assertion of universal jurisdiction by European states and the extradition of Augusto Pinochet from London.125 Similarly, the Democratic Republic of Congo successfully objected to the assertion of universal jurisdiction by Belgium in the icj Arrest Warrant case. A further example of this virulent opposition to such jurisdiction occurred in relation to the request by the New York-based Centre for Constitutional Rights that the German Federal Prosecutor launch a criminal prosecution against then-Secretary of Defence, Donald Rumsfeld, and others in respect of allegations of abuse in the Abu Ghraib prison in Iraq.126 This led to a vitriolic attack by the United States against Germany, with threats of boycotts.127 On 10 February 2005, the Federal Prosecutor announced his decision not to launch an investigation and relied upon the principle of ‘subsidiarity’.128 As the states primarily involved had a superior interest and were not ‘unwilling or unable to prosecute’ the claims, the Prosecutor stated that no investigation would be launched by Germany. Most significant of all, however, is the experience of Belgium – one of the earliest proponents of a broad universal jurisdiction. According to Israel’s ­supporters, Belgium’s criminal proceedings against Ariel Sharon, then Prime Minister of Israel, was tantamount to an attack upon Israel itself.129 Following opposition by Israel and the United States, Belgium reversed its legislation such that it went from being at the vanguard to now lagging behind many ­other

125 See, for instance, Amnesty International, ‘The arrest of Augusto Pinochet ten years on’ (13 October 2008), accessed online at on 4 November 2014. 126 See American Society of International Law, International Law in Brief (23 February 2005). 127 It was reported that the Pentagon warned that such cases could harm us–German relations and Rumsfeld warned he would not take part in a planned security conference in Germany in February if the investigation proceeded: ‘Lawsuit against Rumsfeld threatens us–German relations’, Deutsche Welle (Munich) (14 December 2004). 128 See American Society of International Law, above n 127. 129 Gershom Gorenberg, ‘Damned Spot’, Jerusalem Reporter (30 July 2001); quoted in Monica Mans, ‘Providing for Uniformity in the Exercise of Universal Jurisdiction’ (2002) 15(2) Transnational Lawyer 357, 384.

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states in respect of the assertion of universal jurisdiction.130 Its law now requires not only presence, but residency, before a prosecution can be launched. A similar point can be made of universal criminal jurisdiction in Spain, Germany and the civil jurisdiction in the us. While Spanish courts initially proclaimed their universal jurisdiction to be absolute, similar objections were made. As a result, legislation was amended in 2009 and 2014 to require that any case have a substantial connection with Spain.131 Along the same lines, the German courts have read into their broad jurisdiction a need for a connection to Germany.132 Finally, a similar retreat can be seen in the us (albeit in the civil context), where the us Supreme Court has held that the us Alien Tort Statute does not apply extraterritorially, in part due to the fact that such an application constituted an infringement of the sovereignty of the third state.133 The Court noted that objections to the extraterritorial application of the statute had been received from Canada, Germany, Indonesia, Papua New Guinea, South Africa, Switzerland and the United Kingdom.134 Spain, despite being one of the earliest proponents of universal jurisdiction, in fact in 2014 rejected an extradition request from an Argentinean Court to try Spanish perpetrators of Franco-era atrocities.135 Reportedly, the Spanish Justice Ministry cited not only the expiration of the statute of limitations136 but also ‘the principle of preferential jurisdiction in which the state may refuse to extradite if it is able to prosecute itself’. That said, the Spanish position appears at least in this instance untenable in circumstances where the territorial state is in fact not prosecuting the perpetrators. (e) Emerging Practice of Subsidiarity? As noted above, the icc Statute enshrined the principle of subsidiarity (­albeit at the level of admissibility, rather than jurisdiction).137 As discussed in ­Chapter 7, a number of states have demonstrated similarly the importance of the principle of subsidiarity in relation to the scope of jurisdiction or in relation to the discretion whether or not to exercise jurisdiction. 130 See Fletcher, above n 26, 584; and Luc Reydams, ‘Belgium Reneges on Universality: The 5 August 2003 Act on Grave Breaches of Humanitarian Law’ (2003) 1(3) Journal of International Criminal Justice 679. See also Chapter 7, Section 3.1. 131 See Chapter 7, Section 3.5.1. 132 See Chapter 7, Section 3.3.2. 133 See Chapter 7, Section 3.5.2(b). 134 See Chapter 7, Section 3.5.2(b). 135 See discussion in Chapter 7, Section 3.5.2(b). 136 See discussion in Chapter 7, Section 3.5.2. 137 See Section 2.6.2.

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In Spain, the principle of subsidiarity is now built into the scope of jurisdiction. Article 23(4) of the Ley Organica del Poder Judicial provides that the amended law will not be a basis for jurisdiction if ‘another competent or ­international Tribunal has begun proceedings that constitute an effective investigation and prosecution of the punishable acts’. Case law, including the Guatemala Genocide case and the Tibet Genocide case, both demonstrate that a primary consideration will be whether proceedings have been commenced in the territorial or national state.138 In Germany and Belgium, legislation specifically provides that a prosecutor may refuse to initiate proceedings if proceedings have been, or should be, brought in the territorial state or the state of nationality.139 In Germany, this practice is best shown in the cases against Bush officials for torture (discussed in more detail in Chapter 7).140 In respect of a case launched in 2004, the Chief Federal Prosecutor declined to open an investigation purportedly on the ­basis of Article 17 of the Rome Statute, finding that there were no indications that the United States was refraining from investigating the violations in the ­complaint.141 In a further case filed in 2006 on a similar basis, the Prosecutor General also declined to proceed with an investigation on the ground that any prosecution would be a purely symbolic prosecution and that the United States was the appropriate state to prosecute the alleged offenders.142 In South Africa, the Constitutional Court in the Zanu-PF Case143 has specifically held that the exercise of universal jurisdiction is qualified by the principles of subsidiarity and non-intervention.144 The Court held that this meant that where crimes were committed in a foreign territory and against foreign nationals, universal jurisdiction to investigate the offending could not 138 Harmen Van der Wilt, ‘Universal Jurisdiction under Attack – An Assessment of African Misgivings towards International Criminal Justice as Administered by Western States’ (2011) 9(5) Journal of International Criminal Justice 1043, 1055–1056. 139 See Chapter 7, Section 3.1.1 (Belgium) and Section 3.3.1 (Germany). 140 Ibid. 141 See Katherine Gallagher, ‘Universal Jurisdiction in Practice – Efforts to hold Donald Rumsfeld and Other High-level United States Officials Accountable for Torture’ (2009) 7(5) Journal of International Criminal Justice 1087, 1104. 142 (Germany) Re Criminal Complaint against Donald Rumsfeld et al. (Decision of the Federal Prosecutor), Case No. 3 arp 156/06-2 (5 April 2007), [7]–[8], accessed online at on 5 May 2013. 143 (South Africa) National Commissioner of the South African Police Service v Southern ­African Human Rights Litigation Centre [2014] zacc 30 (30 October 2014) (‘Zanu-PF Case – Constitutional Court’). 144 See discussion in Chapter 7, Section 6.5.2.

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be ­exercised unless the foreign state was unwilling and unable to prosecute. The German Constitutional Court has made a similar finding in respect of the prosecutor’s discretion to prosecute.145 This is consistent with the recommendation of the United Nations Fact Finding Mission on the 2014 Israel-Gaza Conflict (known as the Goldstone Report), which concluded that a referral to the icc or the assertion of universal jurisdiction was recommended (only) where the parties failed to carry out credible investigations and prosecutions.146 This practice should be seen in light of the development of what was referred to in Chapter 8 as the ‘organising principle’ of international criminal law, namely, the need for an international criminal jurisdiction in the face of an inability or unwillingness by the territorial state to prosecute perpetrators of mass atrocities. It is this organising principle that fits most clearly with the raison d’être of crimes against humanity. While it has been contended that this practice has already established the principle of subsidiarity for domestic courts as part of customary international law,147 the ­better view may be that it is still emerging. 2.6 Conclusion In the result, despite the confidence with which many assert that international customary law permits universal jurisdiction over crimes against ­humanity, the position under customary international law is still unresolved and in a state of rapid development. For example, there appears to be a blending of the principles of ‘subsidiarity’, as was originally conceived in the representation principle of jurisdiction in the German legal tradition, and the ­notion of ‘complementarity’ common to human rights bodies and now the icc Statute. Increasingly, universal jurisdiction is no longer regarded as a primary source of jurisdiction, but one that should only be invoked when the territorial state is unwilling or unable to prosecute. This was the approach of the Dutch courts in Bouterse, the German Prosecutor,148 the Spanish courts in 145 (Germany) Federal Constitutional Court, Case No. 2 BvR 1/11 (1 March 2011) (‘Rwandan ­Jurisdiction Case – Federal Constitutional Court’), accessed online at on 5 May 2013. 146 See discussion in Michael Nesbitt, ‘Due Process in un Commissions of Inquiry: A ­Legal Analysis of the Procedures of Goldstone’s Gaza Inquiry (2017) 18(1) German Law Journal 127. 147 Cassese, above n 107, 593; and Kress, above n 28, 580. 148 (Netherlands) Wijngaarde et al. v Bouterse (Judgment), Amsterdam Court of Appeal (20 November 2000) (‘Bouterse – Appeal’) translated in (2000) 3 Yearbook of International Humanitarian Law 677.

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Pinochet,149 Scilingo,150 Montt,151 and the lower courts in the Guatemalan Genocide case,152 and the Swiss Courts in the Nezzar Case (in respect of war crimes).153 This has the support of Cassese154 and Kress,155 while others regard the principle as being a sensible rule of practice rather than law.156 Residual concerns about state sovereignty, as confirmed by the icc Statute, have resulted in prosecutions before territorial courts or courts of the nationality of the defendant having greater legitimacy than courts with no links to the prosecuting state. This is reflected in the matters which the Prosecutors in Germany, Belgium and Spain are required to take into account before launching an extraterritorial investigation.157 There are, of course, sound reasons for this. Local courts, all things being equal, are likely to be the most convenient and fitting forum. Further, territorial courts ought to be supported because such courts are needed to foster and strengthen the rule of law in the local community.158 The case for universal jurisdiction rests upon several separate arguments. First, there is the traditional rationale that relies upon the nature of the offence itself – its scale and heinousness. This reasoning is flawed because it fails to explain how the nature of the alleged offence justifies the exercise of a c­ riminal 149 (Spain) Pinochet, Audiencia Nacional Española (Criminal Division), Case No 1/98 (5 November 1998), quoted in Reydams, above n 7, 185–186. 150 (Spain) Scilingo – Audiencia National, above n 104. 151 (Spain) Ríos Montt, Audiencia Nacional Española (13 December 2000), translated in (2000) 3 Yearbook of International Humanitarian Law 691. 152 (Spain) This was the approach of the examining judge and the Audiencia Nacional (Appeal No. 115/2000, 13 December 2000) which declined to take jurisdiction because it was not demonstrated that the Guatemalan authorities were not willing and able to take proceedings. The Supreme Court, however, took the view that such an inquiry about the adequacy of another state’s judicial system should not be embarked upon and the Constitutional Court did not require exhaustion of local remedies first: Decision of the Spanish Supreme Court concerning the Guatemala Genocide Case, Judgment No sts 327/2003 (25 February 2003) (‘Guatemala Genocide Case – Supreme Court’), translated in (2003) 42 ilm 686. See also Guatemala Genocide Case – Constitutional Court, above n 105. 153 (Switzerland) A v Office of the Attorney-General of Switzerland (Decision), Federal Criminal Court of Switzerland, Case No BB.2011.140 (25 July 2012) (‘Nezzar Case’), [3.4], translation accessed online at on 7 May 2014. 154 Cassese, above n 107, 593. 155 Kress, above n 28, 580. 156 Cryer, above n 18, 90. 157 See Chapter 7, Sections 3.1 (Belgium), 3.3 (Germany) and 3.5 (Spain). 158 Orentlicher, above n 37, 213 and 233.

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jurisdiction which would otherwise be regarded as an interference in the affairs of another state.159 The heinousness of the offence may give rise to the crimes’ status as an international crime or state responsibility for the territorial state or even intervention by the Security Council under the un Charter, but otherwise, how can it ground a right to override state sovereignty and the principle of non-intervention?160 Secondly, there is reliance upon the Lotus principle and the assumption that international law allows a state a wide measure of discretion to assert extraterritorial jurisdiction as long as it only enforces its powers in its own territory.161 This view remains highly controversial, with many maintaining that excessive claims of extraterritorial jurisdiction do indeed violate the principle of non-intervention.162 Whatever the logical and moral appeal of the Lotus principle,163 there is force in the remarks of President Guillaume that, today, it is divorced from reality of the way states conduct themselves to argue that the Lotus case permits 159 See Chapter 8. 160 This point is made in Anthony Sammons, ‘The Under-Theorization of Universal Jurisdiction’ (2003) 21(1) Berkeley Journal of International Law 111, 127–133. 161 See, for example, (icj) Arrest Warrant Case above n 4, Separate Opinion of Judges Higgins, Kooijmans and Buergenthal; see also Michael P. Scharf, ‘Application of Treaty-Based Universal Jurisdiction to Nationals of Non-Party States’ (2001) 35 New England Law Review 363, 366–368 and 377. 162 See, for example: Donald Donovan and Anthea Roberts, ‘The Emerging Recognition of Universal Civil Jurisdiction’ (2006) 100(1) American Journal of International Law 142, 143; Cryer, above n 18, 82, 88; Louis Henkin, ‘International Law, Politics, Values and Functions’ (1989) 216 Recueil des Cours 9, 278–280, 288, 301; Reydams, above n 7; Franz Schick, ‘The Nuremberg Trial and the International Law of the Future’ (1947) 41 American Journal of International Law 770, 785; and (Spain) Guatemala Genocide Case – Supreme Court, above n 153. (icj) In the Separate Opinion of Judges Higgins, Kooijmans and Buergenthal, Lotus was said to represent the ‘high water mark of laissez-faire in international relations’: Arrest Warrant Case, above n 4, 78 [51]. 163 For further discussion, see: Chimène Keitner, ‘Foreign Official Immunity and the “Baseline” Problem’ (2011) 80(2) Fordham Law Review 605, 606; Lee Caplan, ‘State Immunity, Human Rights and Jus Cogens: A Critique of the Normative Hierarchy Theory (2003) 97(4) American Journal of International Law 741, 744; Rosalyn Higgins, ‘Certain Unresolved Aspects of the Law of State Immunity (1982) 29 Netherlands International Law Review 265, 271; and Lorna McGregor, ‘Torture and State Immunity: Deflecting Impunity, Distorting Sovereignty’ (2007) 18(5) European Journal of International Law 903, 912. Keitner, for instance, makes the interesting argument that the majority of authorities supporting the triumph of immunity over the assertion of territorial jurisdiction concerned instances where the accused was not present in the forum state. (icj) Further, the icj appeared to leave this theoretical question open in Jurisdictional Immunities of the State (Germany v

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all states to invoke a universal jurisdiction for a wide range of crimes. States do resent the imposition of another state’s criminal law over the conduct of their nationals in their own country and not just on the grounds of state immunity. This view also appears to command the support of a number of scholars.164 Further, at a time when people routinely travel over borders, the execution of a secret arrest warrant on an unsuspecting foreign national may rightly be perceived to be a hostile act, even if execution only takes place abroad. No one can doubt the reaction that would follow if a former, let alone a serving, United States or Chinese President were arrested when travelling abroad. Such acts do smack of interference in the affairs of other countries. Examples of objections to such exercises of jurisdiction (and even threats of such an exercise) are in abundance. The African Union (au) Assembly has adopted a number of decisions criticising what is seen to be the political abuse of universal jurisdiction by western states.165 The United States – among many other objections – famously threatened to move the nato headquarters out of Brussels should Belgium not curb its exercise of universal jurisdiction. Even the icc has not been spared from criticism, with the arrest warrant issued against Sudanese President Omar Al-Bashir prompting ‘grave concern’ of au members166 and having led to a number of States refusing to act on such a warrant. Spain’s rejection of an Argentinean arrest warrant for Franco-era atrocities may now also be added to that list. Hence, it may be necessary and safer to rely upon a positive rule of customary law for the assertion of universal jurisdiction over crimes against humanity to overcome the territorial principle; but is there sufficient evidence of state practice?167 To many, the statements in support of universal jurisdiction Italy; Greece Intervening), Judgment of 3 February 2012 (‘Jurisdictional Immunities of the State – Judgment’), [57]. 164 Patrick Capps, Malcolm Evans and Stratos Konstanidis (eds), Asserting Jurisdiction (Hart Publishing: Oxford, 2003), xxi ff; Robert Cryer et al., An Introduction to International Criminal Law and Procedure (Cambridge University Press: Cambridge, 2007) 39; Cedric Ryngaert, Jurisdiction in International Law (Oxford University Press: Oxford, 2008) 21; and Kress, above n 28, 572. 165 (African Union) Decision on the Report of the Commission on the Abuse of the Principle of Universal Jurisdiction, Decision No. Assembly/AU/Dec.199 (xi), 30 June – 1 July 2008, ss ii, iii and 5. For discussion of this objection, see Van der Wilt, above n 139. 166 (African Union) Decision on the Meeting of African States Parties to the Rome Statute of the International Criminal Court, Decision No. Assembly/AU/Dec.245 (xiii) Rev.1., 1–3 July 2009, s 3. 167 According to Robert Cryer, ‘State practice is more equivocal, but offers just about sufficient state support to ground a right to do so in state custom’: above n 18, 87.

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c­ ontained in the national decisions in Re List, Eichmann and Bouterse and now the Special Court for Sierra Leone168 provide enough evidence. However, for the reasons raised above, these cases cannot be regarded as resolving the matter, at least outside the context a definition of crimes against humanity that came with a required war nexus and indifference by the state of nationality of the defendant. The strongest evidence of state practice in support of universal jurisdiction over crimes against humanity without a war nexus is probably the recent legislation granting state courts extraterritorial jurisdiction over crimes against humanity. Reliance on such laws needs to be tempered by the absence of actual trials based upon universal jurisdiction and the recent virulent opposition of states to such jurisdiction, as is well demonstrated in the cases of Belgium and Spain. Bassiouni accepts that state practice with respect to universal jurisdiction is like a checkerboard.169 He prefers to rely upon a third argument – that crimes against humanity is a jus cogens norm which gives rise to an erga omnes obligation upon all states which grounds the right to exercise universal jurisdiction.170 The argument has been relied upon in a number of decisions to ground universal jurisdiction over crimes against humanity, such as the Scilingo decision in Spain171 and the Pinochet decision in Belgium.172 The reasoning has also been applied for other so-called jus cogens crimes such as torture.173 There are, however, a number of difficulties with this reasoning. First, the argument suggests that there is an obligation to act, rather than a permission to act. Whether there is such a duty to act is considered in depth in Section 4. In short, it is difficult to find an existing obligation on third states to prosecute all suspects of crimes against humanity. Secondly, the argument does not answer a state’s complaint that a foreign court’s prosecution is unjustified or unfair or 168 (scsl) cdf – Jurisdiction, above n 89, [68] and [70]. 169 M. Cherif Bassiouni, ‘The History of Universal Jurisdiction and Its Place in International Law’, in Macedo, above n 7, 39 and 62. 170 Bassiouni, above n 70, 168 and 701. 171 (Spain) Scilingo – Audiencia National, above 104; see also Chapter 7, Section 3.5.2. 172 (Belgium) Belgian Pinochet Case, above n 15, 702–704; see also Chapter 7, Section 3.1.2. 173 (United Kingdom) Pinochet No 3, above n 15, 275 (Lord Millett): if the jus cogens crimes are ‘so serious and on such a scale that they can justly be regarded as an attack on the international legal order’. See also (icty) Prosecutor v Furundžija (Trial Chamber Judgment), Case No IT-95-17/1-T (10 December 1998) (‘Furundžija – Trial’), [156]; and (Belgium) Lord Slynn did not think any jus cogens character of international crimes could override state or head of state immunity or provide a basis for universal jurisdiction: Belgian Pinochet Case, above n 15, 79.

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that the third state is unreasonably failing to defer to a state’s offer to prosecute its own nationals.174 The complaint is not about the need to prevent impunity, but about the right of one state to judge whether an outrageous impunity has occurred in another state. For example, the Supreme Court in Spain in the Guatemala Genocide case took the view that, whilst such an inquiry may be ­undertaken by an international tribunal, it would be damaging for the relations between states for one state’s courts to judge the adequacy of another state’s judicial or legal system.175 Thirdly, and finally, it is difficult to see how the jus cogens character of the crime can override the principle of non-intervention or the sovereign equality of states. The icj in the Arrest Warrant Case explicitly held that such jus ­cogens crimes do not override a serving state officials’ personal immunity on the basis that a distinction lies between substantive and procedural norms. Since the 1990’s, the international community has been addressing the issue of procedural norms by creating a variety of international tribunals with jurisdiction over perpetrators of crimes against humanity, including in the absence of meaningful prosecutions by the territorial or national states. Such international tribunals (such as the icc) are intended to be ‘totally independent of states and subject to strict rules of impartiality’.176 Fear of procedural abuse remains the main concern for permitting all states a universal jurisdiction over crimes against humanity. Nevertheless, it is probably going too far to assert, as President Guillaume did, that without treaty authorisation, customary law does not in any case permit the assertion of universal jurisdiction over crimes against humanity without a substantive link to the prosecuting state. It is hard to find a clear statement from a state denying the right to assert universal jurisdiction over crimes against humanity in all circumstances. Even the United States enquired whether Canada was willing to commence a prosecution of Pol Pot.177 174 (United Kingdom) For example, the new democratic regime in Chile said to the House of Lords that it should first be able to try Pinochet, but Lord Hutton said this was not a relevant factor for the Court to take into account: Pinochet No 3, above n 15, 263. 175 (Spain) Guatemala Genocide Case – Supreme Court, above n 153. 176 (icc) Prosecutor v Omar Hassan Ahmad Al Bashir (Decision Pursuant to Article 87(7) of the Rome Statute on the Failure by the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of Omar Hassan Ahmad Al Bashir), Pre-Trial Chamber i, ICC-02/05-01/09 (12 December 2011) (‘­Malawi Decision’), [34], citing Antonio Cassese, International Criminal Law (2nd ed, Oxford ­University Press: Oxford, 2008) 312. 177 David Scheffer, ‘Opening Address to the Conference on Universal Jurisdiction’ (2001) 35 New England Law Review 233, 254–256.

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The United States has said that it accepts, in principle, that universal jurisdiction may exist for crimes against humanity in certain circumstances.178 There is probably just enough evidence of state practice to suggest that a truly permissive and default jurisdiction over crimes against humanity can be exercised where no other practical alternative forum exists and there is at least state indifference. This is a truly a last resort or default jurisdiction to vindicate the interests of all humanity where no other state is interested in the matter and no better placed court or international tribunal is either able or willing to prosecute. This could cover a future Nazi war criminal or a Pol Pot who has no state support. This default jurisdiction is analogous to the ‘representation principle’ in the German legal tradition, which encompasses serious extraterritorial domestic crimes. The legislation now exists in many countries to permit such extraterritorial prosecutions to take place. The right of such defendants to claim state immunity, however, needs to be separately addressed. This view is supported by the fundamental raison d’être of crimes against humanity discussed in Chapter 8.179 3

Immunities

3.1 Introduction One of the major issues that state courts face in initiating actions against the authors of crimes against humanity based upon universal jurisdiction is whether or not there is any applicable immunity. This is particularly so given that the authors of crimes against humanity are often high-ranking members of a state. This is emphasised by the so-called policy element that is part of the crime’s definition under Article 7 of the icc Statute and, the authors argue, is present under customary international law. In considering the immunity of state officials, however, an important distinction is to be drawn between two categories of immunity: 1. immunity ratione materiae (or conduct-based immunity), sometimes called foreign state immunity. This is the immunity enjoyed by holders of 178 David Scheffer, ‘International Criminal Court: The Challenge of Jurisdiction’, Address at the Annual Meeting of the American Society of International Law, Washington d.c., (26 March 1999); see also Michael P. Scharf, ‘The icc’s Jurisdiction over the Nationals of Non-Party States: A Critique of the u.s. Position’ (2001) 64 Law and Contemporary Problems 67, 70. 179 See Chapter 8, particularly Section 4.

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office whose conduct is said to have been performed in performance of a state duty or function. 2. immunity ratione personae (or position-based immunity), sometimes called head of state immunity. This is the immunity enjoyed by current holders of certain high offices. 3.2 The Nuremberg Precedent and the Charles Taylor Decision Notwithstanding the general affirmation of immunities in international law at the time of World War ii, Article 7 of the London Charter and Article 6 of the Tokyo Charter purported to overrule any right to invoke state immunity. The respective Articles expressly stated that no immunity could be invoked based on the ‘official position’ of defendants. For its part, the Nuremberg Tribunal prosecuted a number of senior German officials: • Admiral Dönitz (accepted by the Allies as Germany’s head of state when he signed Germany’s unconditional surrender); • Erich Rader (appointed by Hitler as Germany’s successor); • Fritz von Pappen (Vice Chancellor and Foreign Minister); and • Hermann Goering (Vice Chancellor). The same can be said of the Tokyo Tribunal prosecutions, including: • Kiichiro Hiranuma (Prime Minister); and • Koki Hirota (Minister of Foreign Affairs and Ambassador).180 Following the lead of the Nuremberg Charter, international and internationalised tribunals have consistently included provisions that remove any immunity­that state officials may otherwise enjoy.181 The tribunals have almost universally182 upheld such provisions. For example, the Special Court for 180 Bassiouni, above n 70, 73. 181 Nuremberg Charter, Art 7; Tokyo Tribunal Charter, Art 6; icty Statute, Art 7(2); Statute of the International Criminal Tribunal for Rwanda, Art 6; Statute of the Special Court for Sierra Leone, Art 6(2); and icc Statute, Art 27. For a detailed discussion on the history and development of the immunity provisions in the Nuremberg Charter, see reasons of Judge Eboe-Osuji in Prosecutor v Ruto and Sang (Decision on Defence Applications for Judgments of Acquittal), ICC-01/09-01/11 (5 April 2016). 182 (icty) See contrary authority to the effect that immunity does not disappear simply because a tribunal is ‘international’: Prosecutor v Blaškić (Decision on the Objection of the Republic of Croatia to the Issuance of Subpoena Duces Tecum), Case No IT-95-14-T

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Sierra Leone dismissed Charles Taylor’s assertion of immunity on the grounds that the scsl was ‘an international tribunal’ in the Charles Taylor Immunity Decision.183 The Court examined the legal basis of the scsl.184 It held that the legal basis of the Court was anchored in Security Council Resolution 1315 authorising the Secretary General to reach an agreement with Sierra Leone to create a Court.185 In that resolution, the Security Council had stated that the situation was a threat to international peace. The Court held that the Security Council had the power under Article 41 of the un Charter to create the Special Court to give effect to its decisions under Article 39 to maintain and restore international peace. This link with the un Security Council led the scsl to find that it was a true ‘international court’ that could override immunity.186 It is on the basis of this Nuremberg Precedent that a number of commentators and domestic judges have suggested or ruled, not always in a convincing fashion, that this position applies equally to domestic tribunals. In Eichmann, for instance, the Supreme Court of Israel followed Article 7 of the London Charter and rejected the defence of act of state for the charges of crimes against humanity and crimes against the Jewish people.187 Many other courts prosecuting war criminals have taken this approach, but it must be observed that, generally, the relevant state has not claimed the immunity or taken the matter to any international tribunal.188 3.3 The icj Arrest Warrant Case The intersection between immunities and crimes against humanity was ­greatly clarified by the icj in the Arrest Warrant Case, although it should be kept in mind that the case concerned a claim for immunity ratione personae. First, the icj upheld the claim for immunity ratione personae, finding that the precedents cited by Belgium did not evidence an exception for immunity from prosecutions of crimes against humanity before national courts.189 This is a significant finding. It means that the icj rejected the view that Nuremberg (18 July 1997) (‘Blaškić – Subpoena’); Prosecutor v Radislav Krstić (Dissenting Opinion of Judge Shahabuddeen), Case No IT-98-33-T (2 August 2001) (‘Krstić – Trial’). 183 (scsl) Prosecutor v Taylor (Decision on Immunity from Jurisdiction), Case No SCSL2003-01-I (31 May 2004) (‘Taylor – Immunity Decision’), [37]–[42] and [58]–[59]. 184 (scsl) Taylor – Immunity Decision, above n 184, [38]. 185 (scsl) Taylor – Immunity Decision, above n 184, [38]. 186 (scsl) Taylor – Immunity Decision, above n 184, [38]. 187 (Israel) Eichmann, above n 11; 309–312, see also Chapter 3, Section 4.5. 188 Cassese, above n 21, 362–267; see also Bassiouni, above n 70, 81. 189 (icj) Arrest Warrant Case, above n 4, [58].

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or Tokyo190 are precedents for the view that national courts, as ‘agents’ of the international community, can prosecute defendants for crimes against humanity irrespective of their official capacity. It found that the immunity was only inapplicable before ‘certain international criminal courts’. The majority stated that an incumbent: may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction. Examples include the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda … and the future International Criminal Court.191 But while the icty and ictr are clearly ‘international’ tribunals in the purest sense of the term – being directly authorised by the un Security Council acting under Chapter vii – what courts are encompassed by the icj’s idea of ‘certain international criminal courts’? In the Charles Taylor Immunity Decision discussed above, the scsl considered that it was the resolution of the Security Council that meant that the Court was ‘international’ for the purpose of this principle. The issue has also been addressed by the icc in the context of the sitting President of Sudan, Omar al-Bashir (discussed immediately below).192 Secondly, the other important exception raised by the icj in the Arrest Warrant case was where the representative state decides that immunity should not apply, namely, where the accused is prosecuted in his or her own country, and/or where the accused’s state decides to waive immunity.193 Only Judge Van Der Wyngaert, in dissent, accepted that any personal immunity for Foreign Ministers (which she could not find in international customary law) did not apply to a charge of crimes against humanity. Since this decision, most courts and scholars have focused attention on the application of immunity ratione materiae, discussed further below. 190 The Nuremberg Tribunal prosecuted Erich Rader, who was appointed Germany’s named successor Chancellor (Head of State) by Hitler, Fritz von Pappen, Vice Chancellor and Foreign Minister and Hermann Goering, Vice Chancellor. The Tokyo Tribunal prosecuted Kiichiro Hiromma, Prime Minister, and Kaki Hirota, Minister of Foreign Affairs and Ambassador: see Bassiouni, above n 70, 73. 191 (icj) Arrest Warrant Case, above n 4, [61] (emphasis added). 192 (icc) Prosecutor v Omar Hassan Ahmad Al Bashir (Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir), Pre-Trial Chamber i, ICC-02/05-0l/09-3 (4 March 2009) (‘Al Bashir – Arrest Warrant Decision’), [41]. 193 (icj) Arrest Warrant Case, above n 4, [61].

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3.4 The icc and Omar Al-Bashir The arrest warrant against Omar al-Bashir was the first time the icc had issued a warrant against an active head of state. And, perhaps more controversial was the fact that Sudan was not a State party to the icc Statute. In the Pre-Trial Chamber decision to issue an arrest warrant against al-Bashir on 4 March 2009, the Chamber held that it was not prevented from issuing the warrant either because of al-Bashir’s status as a head of state or as a head of state of a non-State party.194 The Chamber reached this conclusion for four reasons. First, the preamble to the Rome Statute states that one of the core goals of the icc is to put an end to impunity for the perpetrators of the most serious crimes of concern to the international community as a whole.195 Secondly, ­Article  27(1) and (2) provide that: the Statute ‘shall apply equally to all persons without any distinction based on official capacity’, that ‘official capacity as a Head of State or Government … shall in no case exempt a person from criminal responsibility under this Statute…’ and that ‘[i]mmunities or special ­procedural rides which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.’196 Thirdly, other sources of law outside the Rome Statute, Elements of Crimes and icc Rules can only be considered where there is a lacuna in those materials and that lacuna cannot be filled by the application of the Vienna Convention on the Law of Treaties.197 Fourthly, that by referring the situation to the icc, the Security Council has ‘accepted that the investigation into the said situation, as well as any prosecution arising therefrom, will take place in accordance with the statutory framework provided for in the Statute…’.198 The issue arose again for consideration in the Pre-Trial Chamber’s decisions of 12 and 13 December 2011 on the failure by the Republic of Malawi and Chad to comply with the co-operation requests and to arrest Al-Bashir when he visited their respective territories.199 The Chamber went further than its earlier decision and assessed the immunity of heads of states under general international law and the interaction between Article 27 and Article 98 of the icc Statute.200 In respect of States who are parties to the Rome Statute, the Court noted that 194 (icc) Al Bashir – Arrest Warrant Decision, above n 193, [41]. 195 (icc) Al Bashir – Arrest Warrant Decision, above n 193, [42]. 196 (icc) Al Bashir – Arrest Warrant Decision, above n 193, [43]. 197 (icc) Al Bashir – Arrest Warrant Decision, above n 193, [44]. 198 (icc) Al Bashir – Arrest Warrant Decision, above n 193, [45]. 199 (icc) Malawi Decision, above n 177. 200 (icc) Malawi Decision, above n 177, [33].

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an acceptance of Article 27(2) by State Parties implies a waiver of immunities for the purposes of Article 98(1) with respect to the proceedings conducted by the Court.201 In respect of States who are not parties to the Rome Statute, the Chamber found that customary international law creates an exception to head of state immunity when an international court seeks a head of state’s arrest for the commission of international crimes and, accordingly, Article 98(1) does not apply to excuse a State Party’s compliance with an icc arrest warrant.202 The Chamber’s conclusion was based on a number of propositions. First, the Chamber cited the Nuremberg Tribunal, the Tokyo Tribunal and the ad hoc Tribunals as evidence of this proposition. Secondly, the Chamber distinguished the icj Arrest Warrant case as enforcing head of state immunity in national courts, but not addressing the immunity in international courts. The Chamber cited Professor Cassese in stating that the rationale for foreign state officials being entitled to raise personal immunity before national courts is that otherwise national authorities might use prosecutions to unduly impede or limit a foreign state’s ability to engage in international action, a danger that does not arise with international courts and tribunals, which are ‘totally independent of states and subject to strict rules of impartiality’.203 Finally, the Chamber applied the Taylor Immunity Decision for the proposition that ‘the principle seems now established that the sovereign equality of states does not prevent a Head of State from being prosecuted before an international criminal tribunal or court’.204 This decision has divided academic opinion.205 As argued by Professor Akande, while the conclusion appears correct, the Chamber’s reasoning needed further consideration.206 The precedents cited by the Chamber, at most, 201 (icc) Malawi Decision, above n 177, [18]. 202 (icc) Malawi Decision, above n 177, [43]. 203 (icc) Malawi Decision, above n 177, [34]. 204 (icc) Malawi Decision, above n 177, [35], citing (scsl) Taylor – Immunity Decision, above n 184, [51]–[52]. 205 See Paola Gatea, ‘Does President Al Bashir Enjoy Immunity from Arrest?’ (2009) 7(2) Journal of International Criminal Justice 315; Dapo Akande, ‘The Legal Nature of Security Council Referrals to the icc and its Impact on Al-Bashir’s Immunity’ (2009) 7(2) Journal of International Criminal Justice 332; Jadranka Petrovic, Dale Stephens and Vasko Nastevski, ‘To Arrest or Not to Arrest the Incumbent Head of State: The Bashir Case and the Interplay between Law and Politics’ (2016) 42(3) Monash University Law Review 740. 206 Dapo Akande, ‘icc Issues Detailed Decision on Bashir’s Immunity (…At Long Last…) But Gets the Law Wrong’, ejil: Talk! (15 December 2011), accessed online at on 30 December 2012.

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supported the position that individual criminal responsibility is not affected by a person’s official role – a separate question from whether or not that person may be immune from the jurisdiction of particular tribunals. Further, the precedents cited by the Chamber (including the scsl) all concern the construction of instruments that were binding on the relevant states and could therefore effect a valid waiver of head of state immunity. In the present case, Sudan was not a party to the Rome Statute. The Chamber also failed to recognise contrary authority in the icty that immunity does not disappear simply because a tribunal is ‘international’207 and contrary state practice where States Parties have implemented a distinction in domestic legislation between immunities applying to State Parties and non-State parties. Further, the effect of the decision is that it fails to explain any work that is left to be done by Article 98 of the icc Statute. It is important to note in this respect that the icj in the Arrest Warrant Case found only that immunity would not apply in certain international tribunals. As Akande points out, the much safer route that the Chamber could have taken was to rely on the fact that the referral was effected by the Security Council.208 Particularly, it could have said that the effect of referring the situation to the icc meant that Sudan – or, similarly, Libya – is bound by the statute, including Article 27, meaning that they are in the same position as a State Party. Arguably, this draws support from the fourth point relied on in the Bashir Arrest Warrant Decision, where the Chamber alluded to the Security Council foreseeing prosecutions arising out of the referral of the situation itself that may involve persons with immunity from domestic prosecution. This approach is consistent with the scsl Charles Taylor Immunity Decision, where it was the Security Council resolution establishing the Tribunal that meant it was a relevantly international tribunal. The danger of enunciating the kind of general principle that the icc did in the Malawi Decision – at least where it is not based on rigorous legal ­analysis – is that it risks undermining the legitimacy of the icc. Nowhere is this more clear than the icc Arrest Warrant against al-Bashir, which has led to the A ­ frican Union moving away from the icc, not only in its strong objections to the Arrest Warrant itself, but also in taking steps to set up its own regional criminal court.209 In July 2014, it was reported that African leaders had also taken steps 207 (icty) Blaškić – Subpoena, above n 183; and Krstić – Trial, above n 183, Dissenting Opinion of Judge Shahabuddeen. 208 See also Sophie Papillon, ‘Has the United Nations Security Council Implicitly Removed Al Bashir’s Immunity?’ (2010) 10 International Criminal Law Review 275. 209 See Simon Weldehaimanot, ‘Arresting Al-Bashir: The African Union’s Opposition and the Legalities’ (2011) 19(2) African Journal of International and Comparative Law 208. See also

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to ensure immunity is granted to sitting heads of state before the au’s Court of Justice and Human Rights.210 And, while such criticism may not always be avoidable, its risks can certainly be minimised by not too eagerly expanding the power of the Court beyond the bounds of customary international law. The issue appears to have been appreciated by the icc in its more recent decisions concerning the non-compliance with the obligation to arrest Al-Bashir by the Congo, South Africa, Uganda and Djibouti.211 In those decisions, the PreTrial Chamber chose not to rely upon the reasoning adopted in the Malawi Decision and found rather that no immunity was applicable where there was a un Security Council referral as the effect of such a referral was that the Rome Statute applies as if they were a State Party.212 In its South Africa Decision in particular, the Court stated that it was ‘unable to identify a rule in customary international law that would exclude immunity for Heads of State when their arrest is sought for international crimes by another State, even when the arrest is sought on behalf of an international court’.213 The Court found such authority in the Security Council referral of the situation to the Court by way the move to establish a criminal chamber of the African Court of Justice and Human Rights: Chacha Murungu, ‘Towards a Criminal Chamber in the African Court of Justice and Human Rights’ (2011) 9(5) Journal of International Criminal Justice 1067. 210 ‘African leaders grant themselves immunity from war crimes’, rt (3 July 2014), accessed online at on 13 July 2014. 211 (icc) Prosecutor v Omar Hassan Ahmad Al Bashir (Decision on the Cooperation of the Democratic Republic of the Congo Regarding Omar Al Bashir’s Arrest and Surrender to the Court), Pre-Trial Chamber ii, ICC-02/05-01/09-195 (9 April 2014) (‘Al Bashir – drc Decision’); Prosecutor v Omar Hassan Ahmad Al Bashir (Decision under Article 87(7) of the Rome Statute on the non-compliance by South Africa with the request by the Court for the arrest and surrender of Omar Al-Bashir), Pre-Trial Chamber ii, ICC-02/05-01/09-302 (6 July 2017) (‘Al Bashir – South Africa Decision’); Prosecutor v Omar Hassan Ahmad Al Bashir (Decision on the non-compliance by the Republic of Uganda with the request to arrest and surrender Omar Al-Bashir to the Court and referring the matter to the United Nations Security Council and the Assembly of State Parties to the Rome Statute), Pre-Trial Chamber ii, ICC-02/05-01/09-267 (11 July 2016) (‘Al Bashir – Uganda Decision’); and Prosecutor v Omar Hassan Ahmad Al Bashir (Decision on the non-compliance by the Republic of Djibouti with the request to arrest and surrender Omar Al-Bashir to the Court and referring the matter to the United Nations Security Council and the Assembly of the State Parties to the Rome Statute), Pre-Trial Chamber ii, ICC-02/05-01/09-266 (11 July 2016) (‘Al Bashir – Djibouti Decision’). 212 (icc) Al Bashir – South Africa Decision, above n 212, [85]–[87]; Al Bashir – drc Decision, above n 212, [29]; Al Bashir – Uganda Decision, above n 212, [11]; and Al Bashir – Djibouti Decision, above n 212, [11]. 213 (icc) Al Bashir – South Africa Decision, above n 212, [67].

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of Resolution 1593, which had the effect of imposing obligations upon Sudan that were analogous to that of a State Party.214 Nonethless, there are those that continue to support the broader principle in the early icc decisions. In Prosecutor v Ruto and Sang (Decision on Defence Applications for Judgments of Acquittal),215 Judge Eboe-Osuji concluded that, while customary international law does recognise official position immunity in certain contexts such as inter-state relations, it is a ‘mistaken understanding to say that customary international law recognises any such immunity for anyone before an international court in the exercise of criminal jurisdiction’.216 Rather, his Honour considered there to be a positive customary international legal norm founded in the Third Nuremberg Principle that prevents a plea of official position immunity, including for Heads of State, before international criminal tribunals.217 The decision, however, does not appear to overcome the apparent deficiency in state practice to support that proposition nor does it satisfactorily come to terms with what is an ‘international’ court or why it is that the rationale for immunity does not apply equally outside the limited context where a state has consented or where there is a Security Council referral.218 Accordingly, the better view appears to be that the immunity exists under customary international law – even where crimes against humanity are ­alleged – but that immunity may be explicitly or implicitly overridden by the un Security Council referral to the icc acting under Chapter vii. While there  has been some criticism of the South Africa Decision on the grounds that the a­ uthority of the Security Council should not be construed to implicitly waive immunities of heads of state,219 such a requirement appears ­inconsistent 214 (icc) Al Bashir – South Africa Decision, above n 212, [85]–[87]. 215 ((icc) Prosecutor v Ruto and Sang (Decision on Defence Applications for Judgments of Acquittal), ICC-01/09-01/11 (5 April 2016) (‘Ruto and Sang – Defence Application for Acquittal’). 216 (icc) Ruto and Sang – Defence Application for Acquittal, above n 216, [223]. 217 (icc) Ruto and Sang – Defence Application for Acquittal, above n 216, [290]–[291]. 218 E.g. the African Union has inserted an Article 46A bis into the Protocol on the Statute of the African Court of Justice and Human Rights that provides: ‘No charges shall be commenced or continued before the Court against any serving African Union Head of State or Government, or anybody acting or entitled to act in such capacity, or other senior state officials based on their functions, during their tenure of office.’ 219 See, for example Ntombizozuko Dyani-Mhango, ‘South Africa’s Dilemma: Immunity Laws, International Obligations, and the Visit by Sudan’s President Omar Al-Bashir’ (2017) 26(3) Washington International Law Journal 535, wherein the author suggests that ‘it is difficult to fathom that the Security Council can implicitly waive sovereign immunities of a un member state’ (emphasis from original), and that it would be reasonable to expect

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with the intention of the Security Council in the two referrals to date (Libya and ­Sudan), both of which concerned atrocities believed to be committed by the current governments. Of course, in the (unlikely) event that the Security Council wished to ensure that any referral to the icc did not waive any immunities, it would always be open to the Council to explicitly state in any referral that such referral does not amount to a waiver of any immunities. 3.5 The Immunity ratione materiae for Crimes against Humanity Insofar as domestic courts are concerned, since the icj in its Arrest Warrant D ­ ecision considered that immunity ratione personae will prevail over allegations of crimes against humanity, most controversy has surrounded the application of the immunity ratione materiae in the context of former state ­officials. When it comes to testing immunity ratione materiae, the starting point is the Pinochet cases in the United Kingdom. The cases were the first to directly ­consider whether a former head of state could invoke immunity ratione materiae in the face of charges of crimes against humanity and torture. The first case (Pinochet No. 1)220 arose when the former General and President of Chile, Augusto Pinochet, was arrested in the United Kingdom pursuant to an international arrest warrant issued by Spain the previous day. Pinochet challenged the validity of the arrest warrant on the basis of immunity ratione materiae. By a 3-2 majority, the House of Lords rejected Pinochet’s argument. Lord Nicholls,221 with whom Lords Hoffman and Steyn agreed, held that immunity ratione materiae cannot be invoked for international jus cogens ­offences such as crimes against humanity because international law holds such conduct to be unlawful, and, hence, such crimes cannot be recognised as ‘official’ acts. In dissent, Lord Slynn,222 with whom Lord Lloyd agreed, held that a jus cogens norm does not override state immunity. The case returned to the House of Lords in January 1999 (Pinochet No. 3)223 after the decision in Pinochet No. 1 was quashed on procedural grounds.224 A differently constituted bench of the House of Lords (this time by a 6-1 majority) again rejected Pinochet’s reliance on immunity ratione materiae, un sc Resolution 1593 to include express terms regarding the removal of head of state immunities, rather than impute this to the Security Council’s intention. 220 (United Kingdom) R v Bow Street Metropolitan Stipendiary Magistrate and others, ex parte Pinochet Ugarte [2000] 1 ac 61 (‘Pinochet No 1’). 221 (United Kingdom) Pinochet No 1, above n 221, 108–109. 222 (United Kingdom) Pinochet No 1, above n 221, 79. 223 (United Kingdom) Pinochet No 3, above n 15. 224 (United Kingdom) In re Pinochet [2000] 1 ac 119 (15 January 1999) (‘Pinochet No 2’).

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but with i­mportant differences in reasoning. Lords Browne-Wilkinson,225 Hutton226 and Saville227 thought the Torture Convention was decisive in denying the claim to state immunity as such a claim was necessarily inconsistent with the express provisions of the Convention. As Lord Browne-Wilkinson reasoned, given Chile was a party to the Convention, it must be regarded as having waived the right to claim immunity ratione materiae where the charge was one of torture. Lord Hope did not think a single act of torture was an international offence in respect of which a claim to state immunity could not be made.228 His Lordship denied the claim of state immunity because the allegation was that the acts of torture were part of a widespread policy of state such as to amount to a crime against humanity. In his view, this was truly an international offence and in respect of which a state could no longer claim immunity. Lords Millet229 and Phillips230 thought state immunity could not exist for a jus cogens crime, which included torture. Lord Goff, in dissent, adopted the reasoning of Lord Slynn in Pinochet (No 1) and would have upheld the claim to immunity.231 Ultimately, no majority consensus occurred in Pinochet (No 3) on why ­immunity was rejected in the case of General Pinochet and, in particular, whether the Torture Convention was decisive to the result. If it is regarded as decisive, then the reasoning cannot apply to charges of crimes against humanity because no treaty covers such offences. Despite the frequent recitation of the Pinochet cases with apparent ­approval, state practice in the field has been mixed. In the context of civil claims brought against another state, courts have almost consistently upheld state immunity. For instance, both the icj in its Immunities Decision and the European Court of Human Rights in Al-Adsani upheld claims of immunity in the face of civil suits for damages brought against another State – i.e. the State on whose behalf the individual was performing official acts.232 Similarly, in the context of civil claims brought against individuals, the weight of authority has also been in favour of upholding state immunity. Immunity has been upheld in the E ­ uropean 225 (United Kingdom) Pinochet No 3, above n 15, 204–206. 226 (United Kingdom) Pinochet No 3, above n 15, 261–262. 227 (United Kingdom) Pinochet No 3, above n 15, 266–267. 228 (United Kingdom) Pinochet No 3, above n 15, 242–248. 229 (United Kingdom) Pinochet No 3, above n 15, 278. 230 (United Kingdom) Pinochet No 3, above n 15, 290. 231 (United Kingdom) Pinochet No 3, above n 15, 207–224. 232 (icj) Jurisdictional Immunities of the State, above n 164; (ECtHR) Al-Adsani v United Kingdom (2002) 34 ehrr 273 (‘Al-Adsani – ECtHR’).

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Court of Human Rights in Jones,233 as well as the courts of both common law countries (the uk,234 Canada,235 Australia,236 and New Zealand237) and ­civil law countries (France,238 Poland239 and Slovenia240). While not all such cases purport to apply principles of international law – as opposed to their own ­domestic statutes241 – the findings are nonetheless significant. They have generally regarded the Torture Convention as being decisive to the decision in Pinochet No 3 and rejected the argument, in the civil context, that immunity ratione materiae before a foreign domestic court cannot apply to crimes against humanity because such acts cannot be part of an official’s state duties being contrary to a jus cogens norm under international law. For instance, in Jones, the uk House of Lords expressly rejected the idea expressed by some judges in the Pinochet decisions that torture could not be an official act; to the contrary, the Court held that the very definition of torture required it to be an official act.242 This conclusion was followed by the Canadian Supreme Court in Kazemi and Hashemi243 as well as in Australia.244 233 (ECtHR) Jones v United Kingdom (Judgment), European Court of Human Rights, App Nos 34356/06 and 40528/06 (14 January 2014) (‘Jones v uk – ECtHR’). 234 (ECtHR) Jones v uk – echr, above n 234. 235 (Canada) Bouzari v Islamic Republic of Iran (2004) 71 OR (3d) 675, followed in Iran v Hashemi [2012] qcca 1449. The decision was later affirmed in Kazemi and Hashemi v Iran [2014] scc 62 (‘Kazemi v Iran’). 236 (Australia) Zhang v Zemin [2010] nswca 255 (‘Zhang v Zemin’); and Li v Zhou [2014] nswca 176 (with special leave to appeal to the High Court refused: Li v Zhou [2014] HCATrans 281). 237 (New Zealand) Fang v Jiang [2007] nzar 420. 238 (France) Cour de cassation, Case No 02-45961 (16 December 2003) reported in (2003) Bull No 258, 206. 239 (Poland) Ewa Dąbrowska, ‘The Supreme Court Decision of 29 October 2010, Ref No iv csk 465/09 in the Case brought by Winicjusz N against the Federal Republic of Germany and the Federal Chancellery for Payment’ (2010) 30 Polish Yearbook of International Law 299; and Marcin Kałduński, ‘State Immunity and War Crimes: The Polish Supreme Court on the Natoniewski Case’ (2010) 30 Polish Yearbook of International Law 235. 240 (Slovenia) aa v Germany, Ustavno Sodišče, Slovenian Constitutional Court, Case No Up-13/99-24 (8 March 2001), reported in [2001] 28/1 Official Gazette of the Republic of Slovenia, [21]. 241 See, for example, (Australia) Zhang v Zemin, above n 237, [130] and [136]–[137] (see also [164]). Although compare (Canada) Bouzari, above n 236, [90] (Goudge ja). 242 (United Kingdom) Jones v Saudi Arabia [2006] ukhl 26, [19] (Lord Bingham) and [83] (Lord Hoffman) (Lords Roger, Walker and Carswell agreeing with both judgments). 243 (Canada) Kazemi v Iran, above n 236, [95]. 244 (Australia) Zhang v Zemin, above n 237, at [166]–[167] (Allsop P).

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There are some opposing cases where the defendant is an individual, not the state.245 Most notably, the United States Fourth Circuit Appeals Court in Samantar held that while jus cogens violations may be committed under colour of law, they cannot have been lawfully authorised by the sovereign and therefore cannot be considered acts immune ratione materiae.246 While the defendant subsequently did not contest the charges and default judgment was entered against him, a further petition for review was filed on 5 May 2014.247 This petition was denied on 9 March 2015. Nonetheless, since Samantar, a split has emerged in United States courts as to whether a jus cogens exception to conduct-based immunity exists.248 In the criminal field, the position is less clear. By and large, the authority of Pinochet (No 3) has not been challenged. In a number of the above decisions, courts have explicitly distinguished immunity in civil proceedings from the criminal proceedings considered in Pinochet (No 3).249 This includes, most importantly, the icj in its Jurisdictional Immunities of the State,250 the ECtHR in Al-Adsani251 and Jones,252 and the Canadian Supreme Court in Kazemi and 245 See also William Dodge, ‘Is Torture an “Official Act”? Reflections on Jones v. United Kingdom’, Opinio Juris (15 January 2014); Phillipa Webb, ‘Jones v uk: The re-integration of State and official immunity?’, ejil Talk! (14 January 2014); David Luban, ‘European Court of Human Rights to Torture Victims: Get Lost’, Just Security (15 January 2014); and Keitner, above n 164. 246 (United States) Samantar v Yousuf 699 F. 3d 763 (4th Cir., 2012). Importantly, however, it should be noted that the us Government had made submissions to the Court that the defendant was not entitled to immunity as there was no recognised government in Somalia capable of asserting immunity. 247 For a summary of the proceedings and links to the relevant decisions, see Beth Van Schaack, ‘The Third Time’s The Charm? scotus cvsgs in Samantar’, Just Security (15 October 2014), accessed online at on 15 November 2014. 248 Christopher Totten, ‘The Adjudication of Foreign Official Immunity Determination in the United States Post Samantar: A Circuit Split and its Implications’ (2016) 26 Duke Journal of Comparative and International Law 517, 519. 249 (ECtHR) See summary in Jones v uk – ECtHR, above n 234. 250 (icj) Jurisdictional Immunities of the State – Judgment, above n 164, [91] (‘In reaching that conclusion, the Court must emphasize that it is addressing only the immunity of the State itself from the jurisdiction of the courts of other States; the question of whether, and if so to what extent, immunity might apply in criminal proceedings against an official of the State is not in issue in the present case’). 251 (ECtHR) Al-Adsani – ECtHR, above n 233, [I-III4] (the minority opinion put the majority decision even higher in respect of criminal proceedings: ‘apparently they accept that a jus cogens rule [in the context of criminal proceedings] has the overriding force to deprive the rules of sovereign immunity from their legal effects’). 252 (ECtHR) See, for instance Jones v uk – echr, above n 234, [212].

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Hashemi.253 Again this leaves open whether the Torture Convention is considered decisive in the lifting of state immunity. Since Pinochet, there have been only a handful of decisions permitting ­extraterritorial prosecutions for international crimes – outside of torture254 – in the face of a claim for immunity. They have generally involved war crimes. For example, in the Lozano case the Italian Court of Cassation255 accepted that immunity ratione materiae could not apply in the context of international crimes as such crimes ‘bear the stigma of being contrary to the most elemental principles of humanity, are glaringly criminal’ and that the norm of immunity must fall to the jus cogens prohibition on the committing of international crimes.256 Similarly, in A v Attorney General257 a Swiss Court found that it was ‘no longer unanimous’ that immunity ratione materiae extended to serious violations of human rights, and that serious international crimes were so serious that they were jus cogens norms.258 In the Court’s view, the domestic law granting the Swiss Court’s jurisdiction should not be interpreted so as to give a ‘wide interpretation’ to the laws of immunity. The European Court of Human Rights in Jones did not decide the question, stating only that ‘some support can be found for the argument that torture ­cannot be committed in an “official capacity” in criminal cases’259 and that the law is currently in a ‘state of flux’ and is ‘beginning to evolve’.260 As the Court noted, while the ilc Special Rapporteur, Mr Kolodkin, found in 2011 that support for such a view was ‘fairly widespread’, this conclusion was not unanimously held. As discussed in Chapter 7, the Bouterse case concerned an application to open a criminal prosecution against Desiré Bouterse – the former President of

253 (Canada) Kazemi v Iran, above n 236, [42] (‘[s]ignificantly, the [State Immunity Act under consideration] does not apply to criminal proceedings, suggesting that Parliament was satisfied that the common law with respect to state immunity should continue governing the area of the law’). 254 For a recent list of prosecutions for torture grounded upon universal jurisdiction, see Andrew Sanger, ‘Immunity of State Officials from the Criminal Jurisdiction of a Foreign State’ (2013) 62(1) International and Comparative Law Quarterly 193, 222. 255 Discussed in Antonio Cassese, ‘The Italian Court of Cassation Misapprehends the Notion of War Crimes – The Lozano Case’ (2008) 6 Journal of International Criminal Justice 1077. 256 Cassese, above n 256, 1082–1083. 257 (Switzerland) Nezzar Case, above n 154. 258 (Switzerland) Nezzar Case, above n 154, [5.4.3]. 259 (ECtHR) Jones v uk – ECtHR, above n 234, [212]. 260 (ECtHR) Jones v uk – ECtHR, above n 234, [213].

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Suriname – in respect of potential torture, crimes against humanity and war crimes committed in the so-called ‘December killings’ in 1982.261 Relevantly, the Amsterdam Court of Appeal rejected Bouterse’s claim to immunity ratione materiae on the basis that ‘the commission of very grave criminal offences of this kind cannot be regarded as part of the official duties of a head of state’.262 The Court provided no further explanation, cited no authorities to support its position and – most importantly – drew no distinction between treaty and non-treaty offences. While the decision was later overturned by the Dutch ­Supreme Court, the Supreme Court did not address the issue of immunity. This reasoning may be challenged by the line of authority which has rejected such arguments in the civil context. On the other hand, in a judgment of 25 November 2005, the Chambre d’accusation of the Dakar Court of Appeal in Senegal ruled on Belgium’s extradition request (including in respect of charges of crimes against humanity), holding that: as “a court of ordinary law, [it could] not extend its jurisdiction to matters relating to the investigation or prosecution of a Head of State for acts allegedly committed in the exercise of his functions”; that Mr. Habré should “be given jurisdictional immunity”, which “is intended to survive the cessation of his duties as President of the Republic”; and that it could not therefore “adjudicate the lawfulness of [the] proceedings and the validity of the arrest warrant against a Head of State”.263 This was despite the territorial state, Chad, having formally waived any such immunity. 3.6 Conclusion Based upon the icj Arrest Warrant Decision, immunity ratione personae will constitute a bar to a domestic court exercising jurisdiction over certain high ranking officials of a foreign state alleged to have perpetrated crimes against humanity outside the forum state. As stated by the icj, this does not extend to ‘certain international courts’, such as those endorsed by the Security Council, either explicitly as in the case of the ad hoc tribunals (icty and ictr) or implicitly as in the case of a Security Council referral to the icc.264 But even this principle is not entirely without controversy. There has been a strong reaction of the African Union to the icc Arrest Warrant issued for Omar Al-Bashir

261 See, generally Liesbeth Zegveld, ‘The Bouterse Case’ (2001) 32 Netherlands Yearbook of International Law 97. 262 (Netherlands) Bouterse – Appeal, above n 149, [4.2]. 263 (icj) Obligation to Prosecute or Extradite Decision, above n 94, [22]. 264 On the latter, see Akande, above n 206.

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largely on the basis of head of state immunity265 and a number of African states have refused to surrender Al-Bashir to the icc upon entering their territory.266 In respect of immunities ratione materiae, it is unclear whether there currently exists a customary rule of international law which permits a state court exercising extraterritorial jurisdiction to prosecute a former foreign state ­official, particularly a former head of state, for crimes against humanity committed in an official capacity if the state claims immunity on his or her ­behalf. There remains considerable academic support for the view that no such ­immunity can be claimed.267 In light of more recent authorities, care must be taken in relying on older cases (such as in the case of Bouterse) or cases where the relevant state did not object (such as in the case of Eichmann). As former icj Judge, Professor Higgins, has noted, it is difficult to argue with the logic that an act can be an ‘official act’ notwithstanding it is illegal – an act’s official nature and its legality are two separate questions.268 As was noted by the icj in Jurisdictional Immunities of the State, even Italy conceded that the acts of the German armed forces were acta jure imperii notwithstanding the fact that they were illegal.269 This is further supported by the principle that acts will be official even if performed under colour of authority, albeit ultra vires under domestic law.270 As found by the icj in Jurisdictional Immunities of the State – in the context of foreign state immunity, or immunity ratione materiae – the flaw in the reasoning adopted by the minority in the ECtHR in ­Al-Adsani, namely, that a jus cogens norm ‘overrides’ state immunity, is that such an argument confuses substantive law norms with procedural law 265 See Weldehaimanot, above n 210; see also the move to establish a criminal chamber of the African Court of Justice and Human Rights: Murungu, above n 210. 266 Kenya, Chad and Nigeria have all entertained Al-Bashir on their territory regardless of requests from the icc for his surrender. 267 Dapo Akande and Sangeeta Shah, ‘Immunities of State Officials, International Crimes, and Foreign Domestic Courts’ (2011) 21(3) European Journal of International Law 815, 839; Keitner, above n 246, 607; Curtis Bradley and Laurence Helfer, ‘International Law and the us Common Law of Foreign Official Immunity’ (2010) Supreme Court Review 213, 238; Article iii, International Law Institute Resolution on the Immunity from Jurisdiction of the State and of Persons Who Act on Behalf of the State in case of International Crimes, adopted in its Naples session in September 2009. See also Annyssa Bellal, ‘The 2009 Resolution of the Institute of International Law on Immunity and International Crimes’ (2011) 9(1) Journal of International Criminal Justice 227; and Sanger, above n 255, 223–224. 268 Rosalyn Higgins, ‘Equality of States and Immunity from Suit: A Complex Relationship’ (2012) 43 Netherlands Yearbook of International Law 129, 138. 269 (icj) Jurisdictional Immunities of the State – Judgment, above n 164, [60]. 270 Robert Jennings, ‘The Caroline and McLeod Cases’ (1938) 32 American Journal of International Law 82, 94; see also (Canada) Jaffe v Miller (1993) 13 OR (3d) 745, 160.

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norms.271 The same issue affects the contention that crimes against humanity cannot be ‘official acts’ as states are not able to authorise actions that violate jus cogens norms.272 What is required is an international rule of jurisdiction which permits one state to judge another state’s ‘crimes against humanity’. This very concern was made clear by the icj in its Jurisdictional Immunities of the State in rejecting the argument that the mere seriousness of international crimes was itself sufficient to warrant their elevation above rules of jurisdiction or immunity.273 The fact that allegations – if established – would breach a jus cogens norm does not thereby enable a domestic tribunal to adjudicate over such a claim. While a number of states have indeed legislated to that effect, as discussed below, such practice remains nascent. A more sophisticated version of the argument, put by Bassiouni, is that with a jus cogens crime comes an erga omnes obligation, at least upon the territorial state to prosecute.274 Hence, a claim to state immunity will be made in bad faith, and can be rejected, unless the state offers to investigate and prosecute the matter itself.275 The difficulty, however, still lies in resolving the competing claims about bad faith. This is the very concern recognised by the icj in the Jurisdictional Immunities of the State. A territorial state may say there is no basis for an investigation or prosecution and that the prosecuting state is acting in bad faith. One state’s ‘crime against humanity’ may be another’s unfounded allegation. The position is likely to be different where the crimes in question, at least outside the context of international armed conflict, have been committed in the forum state – and thus the forum state is purporting to exercise territorial jurisdiction over the offences.276 For example, the United Kingdom High Court in the case of Khurts Bat, ordered the extradition to Germany of a Mongolian head of National Security for crimes of kidnapping and serious bodily harm alleged to have been committed in Germany, notwithstanding a claim for 271 (icj) Jurisdictional Immunities of the State – Judgment, above n 164, [92]–[93]. 272 For such an argument, see Zachary Douglas, ‘State Immunity for the Acts of State Officials’ (2012) 58(1) British Yearbook of International Law 1, 61–62. 273 (icj) Jurisdictional Immunities of the State – Judgment, above n 164, [82]. 274 Bassiouni, above n 70, 701. For an argument along similar lines, see (icj) Jurisdictional Immunities of the State – Judgment, above n 164, Separate Opinion of Judge Bennouna, [15], [21], [27]. 275 (icj) Judge van den Wyngaert said Congo did not come to Court with ‘clean hands’: Arrest Warrant Case, above n 4, 20. 276 See (United Kingdom) Khurts Bat v Investigating Judge of the Federal Court of Germany [2011] ewhc 2029 (‘Khurts Bat’); and discussion in Sanger, above n 255.

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­immunity.277 In rejecting the claim for immunity ratione materiae, the court held that customary law immunity does not extend to municipal offences committed on the territory of the forum state.278 This distinction makes sense in principle. How can a norm based on non-intervention and sovereign equality be allowed to shield a state from a much more serious intervention into another state? Further, while state officials may benefit from a claim to immunity, the better view is that the immunity is in fact that of the state and, as such, it is the state alone that may claim or waive immunity.279 The icj has confirmed that a state seeking to claim immunity for one of its agents must notify the authorities of the other state.280 By a state asserting such a claim, the state is assuming responsibility for any internationally wrongful act in issue committed by such organs.281 Accordingly, where a state exercising an extraterritorial criminal jurisdiction over a former official has notified the defendant’s state of the prosecution, it should be able to presume, in the absence of a claim being notified, that the state is waiving any claim to immunity on behalf of the official.282 4

The Duty to Prosecute or Extradite

4.1 Introduction The maxim, aut dedere aut judicare (to extradite or try) is traced by some to the sixteenth-century Spanish writer, Covarrubias.283 Relying on a natural law common to all nations, he said all states had a duty either to punish or extradite 277 (United Kingdom) Khurts Bat, above n 277. 278 (United Kingdom) Khurts Bat, above n 277, [99], [101]. 279 Hazel Fox, The Law of State Immunity (2nd ed, Oxford University Press: Oxford, 2008) 102–103; and Sanger, above n 255, 199. 280 (icj) Certain Questions of Mutual Assistance in Criminal Matters (Djibouti v France) [2008] icj Rep 177 (‘Mutual Assistance Decision’), [196]. 281 (icj) Mutual Assistance Decision, above n 281, [196]. 282 Hence, the decision in Senegal in the case of Habré can be considered to have been wrongfully decided. 283 See Reydams, Universal Jurisdiction, above n 7, 29; Gilbert Guillaume, ‘La compétence universelle, formes ancienne et nouvelles’ in Georges Levasseur, Mélanges offerts à Georges Levasseur: Droit pénal, droit européen (Gazette du Palais: Paris, 1992) 23, 27. Bodin, in the fifteenth century had already said that ‘[E]very prince by the laws both of God and nature … [is] bound to do justice…’ Jean Bodin, The Six Bookes of a Commonwealth (Oxford University Press: Oxford, 1962) 359–360.

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any dangerous criminal in its custody.284 Grotius285 and de Vattel286 supported the principle, but emphasised the negative obligation not to grant asylum or shield a fugitive as a duty owed to other states as much as to the ‘international community’.287 While a number of international treaties provide for the duty to extradite or prosecute persons found in a State Party’s territory,288 no such treaty exists for crimes against humanity. Hence, those that argue such a duty exists in relation to crimes against humanity must rely upon international customary law.289 Writers, such as Bassiouni, who claim that the duty to prosecute or extradite persons accused of crimes against humanity has attained the status of customary international law290 usually rely on three grounds: first, the nature of crimes against humanity as a norm of jus cogens; secondly, General Assembly resolutions 2840 (1971) and 3074 (1973) and other similar international 284 See Guillaume, above n 284, 27. 285 Grotius refers to the duty “aut dedere … aut punire” (“extradite or punish”): Hugo Grotius (ed), De Jure Belli ac Pacis Libri Tres (first published 1646), transl. William Whewell (Cambridge University Press: Cambridge 1925) ii, xxi. 286 Emer De Vattel, The Law of Nations or Principles of Natural Law Applied to the Conduct and Affairs of Nations and Sovereigns, transl. Joseph Chitty (5th American ed., Nicklin & Johnson: Philadelphia, 1839) i, xix, [233]. 287 Grotius appeared to suggest the duty arose only when another State ‘appealed to it’ in order to avoid giving offence to another sovereign: Grotius, above n 286, ii, xxi, §IV, 1. See also Reydams, Universal Jurisdiction, above n 7, 36–37; and Bassiouni, above n 70, (2003) 341. 288 See M. Cherif Bassiouni and Edward M. Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law (Martinus Nijhoff: Dordrecht, 1995). Of about 281 relevant treaties, less than 100 provide for a duty to extradite or prosecute: see Bassiouni, above n 70, 344. 289 See Bassiouni, above n 70, 168–178 and 343; Guy Goodwin-Gill, ‘Crime in International Law: Obligations Erga Omnes and the Duty to Prosecute’ in Guy Goodwin-Gill and Stefan Talmon (eds), The Reality of International Law; Essays in Honour of Ian Brownlie (Oxford University Press: Oxford, 1999) 199, 213–220; Alexander Orakhelashvili, ‘State Immunity and International Public Order’ (2002) 45 German Year Book of International Law 227, 257–258 and 263; André de Hoogh, Obligations Erga Omnes and International Crimes (Kluwer International Law: The Hague, 1996); and Anna Asher, ‘The Legal Regime of Erga Omnes Obligations and International Law’ (1994) 46 Austrian Journal of Public and International Law 131. 290 M. Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application (Cambridge University Press: Cambridge, 2011) 270–271; Gerhard Mueller, ‘International Criminal Law: Civitas Maxima: An Overview’ (1983) 15 Case Western Reserve Journal of International Law 27; and Payam Akhavan, ‘The Universal Repression of Crimes Against Humanity before National Jurisdictions: The Need for a Treaty-Based Obligation to Prosecute’, in Leila Nadya Sadat (ed), Forging a Convention for Crimes Against Humanity (Cambridge University Press: Cambridge, 2010) 28.

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statements; and thirdly, regional human rights norms and associated jurisprudence. Bassiouni also argues, fourthly, that the fact that the other ‘international crimes’ – genocide, war crimes, apartheid, torture and enforced disappearances – are all covered by treaties that do impose an obligation to prosecute or extradite means that the same must also apply to crimes against humanity.291 It is important to analyse the alleged duty by distinguishing between different circumstances, such as the obligation upon a state with no connection to the crime (the third party state) compared with the state where the crime occurs (the territorial state), and the obligation where the alleged perpetrator is present, including where there is a request for extradition by a territorial state. As part of analysing the alleged duty to prosecute, this section considers the two related issues of amnesties and statutes of limitations – both of which are instructive in assessing the extent to which a duty to extradite or prosecute exists. 4.2 Norm of jus cogens and Obligations erga omnes Without any applicable treaty, reliance is often placed upon the status of crimes against humanity as a jus cogens crime, which is said to create a duty erga omnes to suppress such crimes and assist in bringing perpetrators to justice.292 The icj in the Genocide Case referred to its Opinion of 28 May 1951, where it held that the principles underlying the Genocide Convention were recognized by civilized nations as binding on States, even without any conventional obligation.293 Accordingly, the Court held that: It follows that the rights and obligations enshrined by the Convention are rights and obligations erga omnes. The Court notes that the obligation each State thus has to prevent and to punish the crime of genocide is not territorially limited by the Convention. Similarly, in its Obligation to Prosecute or Extradite decision, the icj made findings in respect of the Torture Convention as follows:294 291 Bassiouni, above n 291, 273–275. 292 Bassiouni, above n 291, 273–275; see also Theodor Meron, ‘On a Hierarchy of International Human Rights’ (1986) 80(1) American Journal of International Law 1. 293 (icj) Case Concerning Application of the Convention on the Prevention and Punishment of the crime of Genocide (Bosnia and Herzegovina v Yugoslavia) (Preliminary Objections) [1996] icj Rep 595, 616. 294 (icj) Obligation to Prosecute or Extradite Decision, above n 94, [68]. See also the similar finding made in (icty) Furundžija – Trial, above n 174, [156].

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As stated in its Preamble, the object and purpose of the Convention is “to make more effective the struggle against torture … throughout the world”. The States Parties to the Convention have a common interest to ensure, in view of their shared values, that acts of torture are prevented and that, if they occur, their authors do not enjoy impunity. The obligations of a State Party to conduct a preliminary inquiry into the facts and to submit the case to its competent authorities for prosecution are triggered by the presence of the alleged offender in its territory, regardless of the nationality of the offender or the victims, or of the place where the alleged offences occurred. All the other States Parties have a common interest in compliance with these obligations by the State in whose territory the alleged offender is present. That common interest implies that the obligations in question are owed by any State Party to all the other States Parties to the Convention. All the States Parties “have a legal interest” in the protection of the rights involved (Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain), Second Phase, Judgment, i.c.j. Reports 1970, p. 32, para. 33). These obligations may be defined as “obligations erga omnes partes” in the sense that each State Party has an interest in compliance with them in any given case.’ But what are the obligations erga omnes that apply to crimes against humanity where there is no treaty framework similar to torture and genocide? The question of the duty to extradite or prosecute in respect of crimes against humanity was unfortunately not clarified by the icj in its Judgment in its Obligation to Prosecute of Extradite Decision. Belgium alleged that Senegal’s failure to prosecute or extradite the former President of Chad, Hissène Habré, to face charges which included crimes against humanity constituted a violation either under the Torture Convention or under customary international law. The Court, however, found that it had no jurisdiction to hear the latter on the basis that Belgium had only made its extradition requests to Senegal on the basis of the Torture Convention; not under customary international law.295 The question was considered by Judge Abraham in his Separate Opinion. The judge made clear that he was not addressing the question of whether a State is required to investigate or prosecute where the offenders are nationals of that State or the crimes have been committed in the territory of that State (i.e. the active personality or territorial jurisdiction).296 The judge also 295 (icj) Obligation to Prosecute or Extradite Decision, above n 94, [54]. 296 (icj) Obligation to Prosecute or Extradite Decision, above n 94, Separate Opinion of Judge Abraham, [28].

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distinguished the situation where a national of the state is a victim of the crime (‘passive personal’ jurisdiction), although suggested that there was ‘very probably’ no duty to prosecute in this case.297 The judge went on to address the following question:298 31. […I]s there sufficient evidence, based on State practice and opinio juris, of a customary obligation for States to prosecute before their domestic courts individuals suspected of war crimes or crimes against humanity (which presupposes that they have provided their courts with the necessary jurisdiction), when there is no connecting link between the alleged offence and the forum State, that is to say, when the offence found was committed outside the territory of that State and neither the offender nor the victim were nationals of that State? 32. In my opinion, the answer to that question is very clearly and indisputably no, regardless of whether or not the suspect is present in the territory of the State in question.’ Judge Abraham came to this conclusion for three reasons. First, Belgium’s evidence of state practice, being 51 states which had provided universal jurisdiction over war crimes and crimes against humanity, was less than a majority of states. Second, many of those states may have done so, not out of any sense of legal obligation. Finally, even Belgium no longer invests its courts with universal jurisdiction for all cases of crimes against humanity or war crimes.299 The judge did not consider whether there might be an obligation to co-operate with the request for extradition, if not to prosecute itself. Article 41 of the International Law Commission rules on state responsibility provides that: ‘States shall cooperate to bring to an end through lawful means any serious breach within the meaning of article 40’. Professor Crawford’s remarks on this article suggest the duty to cooperate relates to political cooperation – not a duty to prosecute – unless it receives a formal request for extradition.300 297 (icj) Obligation to Prosecute or Extradite Decision, above n 94, Separate Opinion of Judge Abraham, [29]. 298 (icj) Obligation to Prosecute or Extradite Decision, above n 94, Separate Opinion of Judge Abraham, [31]–[32]. 299 (icj) Obligation to Prosecute or Extradite Decision, above n 94, Separate Opinion of Judge Abraham, [33]–[40]. 300 Crawford uses the examples of non-recognition of certain acts of apartheid in South Africa, not prosecutions: James Crawford, The International Law Commission’s Articles (Cambridge University Press: Cambridge, 2002) 252.

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Judge Abraham did not consider any argument based upon the existence of erga omnes obligations to assist in the punishment of international crimes which are jus cogens in nature. Nevertheless, whilst the notion of jus cogens has been relied upon to ground a right to invoke universal jurisdiction by some international judges, they have not suggested it gives rise to an obligation to assert universal jurisdiction.301 Some authors have concluded that the jus cogens character of the offence cannot extend to a correlative duty requiring a prosecution by third party states.302 Nevertheless, the fact that the prohibition against crimes against humanity is a jus cogens norm, combined with the reasoning of the icj about the existence of some resultant correlative duty on all states in the case of such crimes, suggests in a general sense that all states have a common obligation to co-operate to punish the perpetrators and to ensure that their authors do not enjoy impunity. The difficulty is in translating this general norm into some specific duty. This norm may have greatest likely application in the case of: (a) a territorial or national state which has credible information that a perpetrator is present in its jurisdiction leading to a possible obligation to submit the case to its authorities (considered further below); (b) a request for extradition or mutual assistance on third party states leading to a possible obligation to co-operate with such a request or a duty to submit the case to its own prosecuting authorities if it does not extradite; and (c) a third party state who has credible information that a perpetrator is present in its jurisdiction leading to a possible, but much less likely obligation, to submit the case to its authorities if it does not extradite. There is a body of case law which has developed (particularly in the context of domestic courts considering the legality of local laws of amnesties for 301 (icty) Furundžija – Trial, above n 174, [156]; (icj) Judges Higgins, Kooijmans, Buergenthal in the Arrest Warrant Case left the issue open: Arrest Warrant Case, above n 4. (ECtHR) In Judge Ferrari-Bravo’s Dissent in Al-Adsani, he said because torture was contrary to jus cogens it follows that every state has a duty to contribute to the punishment of torture but this did not cover the United Kingdom where the acts of torture had taken place elsewhere: Al-Adsani – ECtHR, above n 233. 302 ‘A duty on third States derived solely from the jus cogens status of some international criminal law prohibitions is at the utopian rather than the apologetic end of debate’: Cryer, above n 18, 116; see also Christina Tams, ‘Well-Protected Enemies of Mankind’ (2002) 61(2) Cambridge Law Journal 246, 248; and Broomhall, above n 20, 111.

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international crimes)303 which suggests that because the prohibition against crimes against humanity is a jus cogens norm the territorial state has an obligation to investigate such crimes and prosecute where appropriate and such state may not promote impunity by the grant of amnesties for such crimes. The obligation has been endorsed in respect of genocide by the Federal Court of Australia in Nulyarimma v Thompson.304 The appellants were Aboriginal Australians appealing a decision not to issue arrest warrants for various senior government leaders for genocide.305 While dismissing the application, the majority found that states are under an obligation to prosecute or extradite persons accused of genocide.306 The Court found that the obligation arises under customary international law on the basis that the crimes had attained the status of jus cogens. Even in the case of the territorial state there remain unresolved questions about whether the obligation permits some bona fide exercise of discretion not to prosecute, particularly in the case of minor offenders or because of the grant of amnesties on individual grounds or in the case of gross delay. These matters are considered further below. General Assembly Resolutions 2840 (1971) and 3074 (1973) and Other International Statements Others307 find evidence for a general duty to prosecute in General Assembly Resolutions 2840 (1971) and 3074 (1973).308 The first resolution states that refusal to co-operate in the extradition, arrest, trial and punishment of persons suspected of committing crimes against humanity and war crimes is contrary

4.3

303 See Section 4.7 below. 304 (Australia) Nulyarimma v Thompson [1999] fca 1192 (Federal Court). 305 The allegation arose out of the Howard Government’s aboriginal land legislation and failure to adequately apply unesco world heritage standards. 306 (Australia) Nulyarimma v Thompson, above n 305, [18] and [141]. 307 Jordan Paust, International Law as Law of the United States (Carolina Academic Press: Durham, 1996) 405; Amnesty International, above n 9, 10–11. 308 See Question of the Punishment of War Criminals and of Persons Who Have Committed Crimes Against Humanity, un ga Resolution 2712 (xxv), un gaor, 25th sess, Supp 28, 294, un Doc. A/8233 (11 November 1970); and Question of the Punishment of War Criminals and of Persons Who Have Committed Crimes against Humanity, un ga Resolution 2840, un gaor, 3rd Comm., 26th sess, Supp 29, 88, un Doc. A/8429 (20 December 1971); see also Principles of International Co-operation in the Detection, Arrest, Extradition and Punishment of Persons Guilty of War Crimes and Crimes Against Humanity, un ga Resolution 3074 (xxviii), un gaor, 28th sess, Supp 30A, 78, un Doc. A/9030/Add 1 (3 December 1973).

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to the purposes of the un Charter and international law. The latter goes even further, stating as follows: 1.

2.

3. 4.

War crimes and crimes against humanity, wherever they are committed, shall be subject to an investigation and the person against whom there is evidence that they have committed such crimes shall be subject to tracing, arrest, trial and, if found guilty, to punishment […]. States shall co-operate with each other on a bi-lateral and multi-lateral basis with a view to halting and preventing war crimes and crimes against humanity, and take the domestic and international measures necessary for that purpose. States shall assist each other in detecting, arresting and bringing to trial persons suspected of having committed such crimes and, if they are found guilty, in punishing them […]. States shall not grant asylum to any person with respect to whom there are serious reasons for considering that he has committed a crime against peace, a war crime or a crime against humanity.

The difficulty in relying upon these resolutions, however, is that they are nonbinding and the drafting history suggests they are likely to have been aspirational principles rather than a codification of existing law.309 Even if they have legal significance, their wording may suggest a duty to co-operate with a request for extradition – not an obligation to prosecute absent any such request. Certainly, Resolution 3074 uses the words ‘wherever they are committed’, ‘shall be subject to investigation’ and ‘shall be subject to tracing, arrest, trial and, if they are found guilty, to punishment.’ But at the same time, the Resolution states that ‘[e]very State has the right to try its own nationals for war crimes and crimes against humanity’ and that suspects ‘shall be subject to trial … as a general rule in the countries in which they have committed these crimes’ and ‘States shall co-operate on questions of extraditing such persons.’ Justice Brennan in the Australian High Court decision in Polyukhovich thought that the resolutions evidenced a right, not an obligation, to exercise universal jurisdiction.310 In any event, there must be doubt as to the legal 309 Yearbook of the United Nations 1976, 758 and 759 (‘[t]he majority of members stressed that the draft declaration under consideration was not intended to propound legal norms or to change existing rules of international law, but to lay down broad humanitarian and moral principles upon which States might rely in seeking to unify their practices relating to asylum.’) 310 (Australia) Polyukhovich, above n 13, 534.

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effect of such resolutions,311 particularly where Resolution 3074 had 29 abstentions.312 Scharf considers the resolutions to be merely evidence of an emerging rule (de lege ferenda)313 and Cryer is even more dismissive.314 This skepticism is supported by the historical context of the resolutions, which was one of expressing disfavor towards countries that harbored Nazi war criminals when it was feared that statutes of limitation in Europe may lead to the crimes becoming time-barred.315 For example, Bolivia refused France’s request to extradite Klaus Barbie in 1974. But, under growing international pressure, it expelled him in 1983 leading to his arrest in French Guinea.316 While some states explicitly viewed the resolutions as applying to war crimes both during the Second World War and into the future,317 the resolutions clearly linked crimes against humanity with war crimes. Accordingly, states at the time likely assumed that crimes against humanity came with a nexus to war. Some have argued the resolutions have since been bolstered by a number of other international declarations. First, the Security Council has affirmed that States are not to allow perpetrators who commit crimes to go unpunished.318 Secondly, the un Economic and Social Council has expressly stated that the obligation to prosecute or extradite perpetrators of serious international crimes exists.319 Thirdly, a number of other international and regional institutions 311 See Cryer, above n 18, 106–107; Vladimir Djuro Degan, Sources of International Law (Martinus Nijhoff: The Hague, 1997) 194–200; and (icj) Legality of the Threat or Use of Nuclear Weapons [1996] icj Rep 226, 254–255, [70]. 312 There were 94 positive votes and none against. 313 Michael P. Scharf, ‘National Prosecutions: Report of the Rapporteur’ in Christopher Joyner (ed), Reining in Impunity for International Crimes and Serious Violations of Human Rights (Érès: Toulouse, 1998) 125, 128. 314 Cryer, above n 18, 106–107. 315 Cryer, above n 18, 106–107. 316 Leila Sadat-Wexler, ‘The Interpretation of the Nuremberg Principles by the French Court of Correction: From Touvier to Barbie and Back Again’ (1994) 32 Columbia Journal of Transnational Law 289, 332; and Matthew Lippman, ‘Crimes against Humanity’ (1997) 17 Boston College Third World War Journal 171, 255. 317 Raphaël Van Steenberghe, ‘The Obligation to Extradite or Prosecute: Clarifying its Nature’ (2011) 9 Journal of International Criminal Justice 1089, 1101, citing statements from Belarus (un Doc. A/C.3/2020 (8 November 1973), [6]), Czechoslovakia (un Doc. A/C.3/2020 (8 November 1973), [9(a)]), the Netherlands (un Doc. A/C.3/2021 (9 November 1973), [16]) and Morocco (un Doc. A/C.3/2022 (9 November 1973), [4]). 318 Van Steenberghe, above n 318, 1101, citing: un sc Resolution 1318 (2000), vi; un sc Resolution 1325 (2000), [11]; un sc Resolution 1379 (2001), [9(a)]; un sc Resolution 1612 (2005), Preamble; un sc Resolution 1674 (2006), [8]; and un sc Resolution 1820 (2008), 3, [4]. 319 ecosoc Res 1989/65 (24 May 1989), [18].

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have similarly affirmed the obligation to prosecute or extradite perpetrators of serious international crimes, including the Inter-Parliamentary Union320 and the General Assembly of the Organization of American States.321 Fourthly, the preamble to the icc Statute provides ‘that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation’. Even taken together, these declarations do not rise higher than the General Assembly Resolutions. The resolutions do not require States to establish jurisdiction over offenders in their own domestic courts. Similarly, the icc Statute requires only that ‘measures’ be taken and cooperation be ‘enhanced’. And, the other instruments do not indicate that states considered the obligations to be binding as a matter of law as opposed to morality.322 4.4 Treaty Obligations to Extradite or Prosecute Some suggest that other international crimes are subject to an obligation to extradite or prosecute and therefore – since crimes against humanity is also an international crime of jus cogens – the same must also apply in respect of crimes against humanity.323 This argument is difficult to accept. There is insufficient evidence to establish that the parties to such treaties considered that they reflected an existing legal obligation in respect to those particular crimes, let alone a broader obligation in respect of jus cogens crimes generally. To the contrary, the fact that states have entered into treaties to impose an obligation in relation to particular international crimes suggests that no obligation to extradite or prosecute exists under customary international law. One particularly powerful indication that States do not view crimes against humanity as imposing the same obligation as other treaty crimes is that a number of states have legislated for the extradition or prosecution of the treaty crimes, but have not done so in the case of crimes against humanity.324 320 Inter-Parliamentary Union (ipu), Res., 112th ipu Assembly, Doc No 13 (8 April 2005), Preamble. 321 oas General Assembly Res 2225 (XXXVI-O/06) (6 June 2006), 252. 322 Van Steenberghe, above n 318, 1102. 323 Bassiouni, above n 291, 273–275; and Colleen Enache-Brown and Ari Fried, ‘Universal Crime, Jurisdiction and Duty: The Obligation of Aut Dedere Aut Judicare in International Law’ (1998) 43(3) McGill Law Journal 613, 629–630. 324 Compare, for example, the list of the states having implemented the relevant provisions of the Geneva Conventions but not crimes against humanity in Van Steenberghe, above n 318; and Roger O’Keefe, ‘The Grave Breaches Regime and Universal Jurisdiction’ (2009) 7 Journal of International Criminal Justice 811, 814, fn 9.

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Further, for some states, the extradition regime is a political agreement rather than a legal one. For instance, some have specifically stated that their compliance with an extradition request does not necessarily mean that they considered themselves bound by any obligation to do so – as opposed to acting out of politics or comity.325 It may be contended that one significant piece of state practice going the other way is the icc Statute. The Preamble to the icc Statute provides, ‘Recalling that it is the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes’. There are two issues with this argument. First, a state exercising its criminal jurisdiction over an offence does not mean the same thing as prosecuting or extraditing. As has been noted by the South African Constitutional Court, criminal jurisdiction includes, not only prosecution, but also prescriptive or legislative jurisdiction (i.e. the prohibition of certain conduct by way of statute) as well as the jurisdiction to investigate offences.326 At most, the Preamble to the icc Statute would support a duty to exercise legislative jurisdiction and to investigate and consider prosecuting alleged perpetrators. Secondly, and in any event, the icc Statute remains somewhat controversial, with some of the most populous and powerful states not being a party (i.e. the us, China, Russia, India and Indonesia). 4.5 State Practice Insofar as state practice is concerned, it is generally recognised, consistent with the Separate Opinion of Judge Abraham in the icj,327 that there is little evidence of state practice confirming a duty on third party states to investigate or prosecute based upon universal jurisdiction or mere presence in the jurisdiction.328 While some states (Ethiopia,329 the Netherlands,330

325 See, for example, comments from the Russian delegation during the ilc discussions: un Doc. A/CN.4/599 (30 May 2008), 15. 326 (South Africa) Zanu-PF Case – Constitutional Court, above n 144, [25]. 327 See Section 4.2 above. 328 Cryer, above n 18, 107–117; and Bassiouni and Wise, above n 289, 45. (Australia) This was also the conclusion of Brennan J in Polyukhovich, above n 13, 218. 329 In relation to crimes of its Derg regime on its own territory, see Julie V. Mayfield, ‘The Prosecution of War Crimes and Respect for Human Rights: Ethiopia’s Balance Act’ (1995) 9 Emory International Law Journal 553, 570. 330 The explanatory memorandum which accompanied the Dutch icc implementing legislation asserted an obligation to assert universal jurisdiction over icc crimes: see Jann K. Kleffner, ‘The Impact of Complementarity on National Implementation of Substantive International Criminal Law’ (2003) 1 Journal of International Criminal Justice 86, 91.

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Belgium,331 and possibly Hungary, Cuba, and Uruguay332) have at times claimed a ‘general duty’ to prosecute perpetrators of crimes against humanity and some have legislated for such a duty (Argentina), the majority have either specifically stated there is no such obligation (Germany, South Korea, the uk, Malaysia, the us, Israel, Jamaica,333 and Austria334) or understand such a law to be only emerging (Romania335). Of particular note, the Spanish Supreme Court has held that no such duty exists.336 Similarly, the South African Constitutional Court has held that any prosecution based on universal jurisdiction was subject to both the principles of complementarity and non-intervention as well as practicality.337 The German Constitutional Court has made a similar finding. The practice of prosecutions for crimes against humanity in domestic courts based upon universal jurisdiction was considered in section 2 above and remains a rare occurrence. While this practice is rare,338 there are a growing number of precedents in the case of serious international crimes.339 As to legislation, one author has found only 5 states that have provided an explicit obligation to prosecute or extradite in respect of crimes against humanity (Argentina,340 331 (icj) Belgium asserted a ‘general obligation’ on states under customary international law, but conceded that where such persons were non-nationals, outside of its territory, there was no obligation but rather an available option: see Arrest Warrant Case, above n 4, Separate Opinion of Higgins, Kooijmans and Buergenthal, [8]. 332 ilc Fourth report on the obligation to extradite or prosecute (aut dedere aut judicare) (Zdzislaw Galicki, Special Rapporteur), un Doc. A/CN.4/648 (31 May 2011) (‘Fourth ilc Report’), [79]. 333 Fourth ilc Report, above n 333, [80]. 334 Van Steeberghe, above n 318, 1102 fn 56: Austria, un Doc. A/C.6/62/SR.22 (31 October 2007), 11, [55]; Germany, ibid, 16, [82]; United States, ibid, 18, [90]; Malaysia, un Doc. A/C.6/62/ SR.23 (6 December 2007), 3, [14]; Greece, un Doc. A/C/6/62/SR.24 (13 December 2007), 7, [35]; Russia, ibid, 14, [84]; Israel, ibid, 18, [106]. 335 Fourth ilc Report, above n 333, [81]. 336 (Spain) Supreme Court of Spain, Judgment No 296/2015 (6 May 2015). 337 (South Africa) Zanu-PF Case-Constitutional Court, above n 144: see discussion in Chapter 7, Section 6.5.2. 338 Van Steenberghe, above n 318, 1097–1098. 339 ilc Third report on the obligation to extradite or prosecute (aut dedere aut judicare), 60th Sess, 2956th mtg, un Doc. A/CN.4/603 (5 May 2008) (‘Third ilc Report on aut dedere aut judicare’), [88]. 340 (Argentina) Implementation of the Rome Statute of the International Criminal Court, Act No. 26200 (5 January 2007), published in the Official Gazette on 9 January 2007, accessed online at on 26 January 2011.

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Uruguay,341 Panama,342 Peru,343 and Portugal344) with a further 2 imposing implicit obligations (Croatia345 and Azerbaijan346). And even these countries may only be acting to implement the icc Statute rather than acting on the basis that such an obligation is customary.347 4.6 Domestic Amnesties 4.6.1 Introduction A number of writers point to the substantial human rights jurisprudence striking down local amnesties as support for an international legal obligation to prosecute in the case of crimes against humanity. It is also suggested that such decisions establish that under international law, no amnesty can ever be granted in the case of crimes against humanity. Can a state, or even an international body, consistent with current international law grant amnesties for crimes against humanity? In respect of international armed conflicts, the Geneva Conventions provide an absolute obligation to prosecute for grave breaches which cannot be circumvented by an amnesty. In respect of other international crimes such as crimes against humanity, the position is less clear.348 341 (Uruguay) Cooperation with the International Criminal Court in combating genocide, war crimes and crimes against humanity, Act No. 18.026 (25 September 2006), published in the Official Gazette on 4 October 2006. 342 (Panama) Criminal Code of the Republic of Panama, Act. No. 14 (18 May 2007), published in the Official Gazette on 22 May 2007, accessed online at on 26 January 2011. 343 (Peru) icc Cooperation Bill, Code of Criminal Procedure, Legislative Decree No. 957 (29 July 2004), accessed online at on 26 January 2011. 344 (Portugal) Genocide Law, Act No. 31/2004 (22 July 2004), on the adaption of Portuguese legislation to the icc Statute, accessed online at on 26 January 2011. 345 (Croatia) Law on the Application of the Statute of the International Criminal Court and on the Prosecution of Criminal Acts against the International Law on War and Humanitarian Law, published in the Official Gazette on 4 November 2003. 346 (Azerbaijan) 2005 Criminal Code, Arts 12(3) and 13(3), accessed online at on 26 January 2011. 347 Van Steenberghe, above n 318, 1098. 348 Although Mallinder argues that Article 5 of the Genocide Convention has the same effect at the Geneva Conventions: see Louise Mallinder, ‘Amnesties’, in William Schabas and Nadia Bérnaz (eds), The Handbook of International Criminal Law (Routledge, 2010), accessed online via ssrn at , 4. For the contrary argument, see Claire Mitchell, ‘Aut Dedere, aut Judicare: The Extradite or Prosecute Clause in

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Article 6(5) of Protocol ii to the Geneva Conventions provides that ‘[a]t the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict’.349 However, while the Plenary Meeting Notes indicate the negotiating states specifically rejected a proposal to exclude individuals who committed crimes against humanity,350 other commentators say the preparatory work indicates the intention was not to cover breaches of international humanitarian law.351 During the 1990s, however, the icrc reinterpreted Article 6(5) to govern only ‘combat immunity’ rather than violations of international humanitarian law352 and, in 2005, reported that this was the position under customary international law.353 Dr Mallinder, however, argues that the report only considered a few amnesty laws and that a wider review of amnesty laws suggests that customary international law is yet to crystallise on the issue.354 In assessing this issue, separate consideration needs to be given to whether: (a) the amnesty operates at the local or at the international level; (b) the amnesty is barring a prosecution in the territorial state or that of a third-party state; or (c) the court is a domestic or international tribunal. International Law’, Collections électroniques de l’Institut de hautes études internationales et du développement, Graduate Institute Publications Online, 2009, accessed online at . 349 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol i), done in Geneva, Switzerland, opened for signature 8 June 1977, 1125 unts 3, (entered into force 7 December 1978). 350 Karen Gallagher, ‘No Justice, No Peace: The Legalities and Realities of Amnesty in Sierra Leone’ (2000) 23 Thomas Jefferson Law Review 149 at 177–178, cited in Mallinder, above n 349, 5. 351 (IACHR) ‘The preparatory work for Article 6(5) indicates that the purpose of this precept was to encourage amnesty … as a type of liberation at the end of hostilities for those who were detained or punished merely for having participated in the hostilities. It does not seek to be an amnesty for those who have violated international humanitarian law’: InterAmerican Commission of Human Rights (El Salvador) (1999) Report No. 1/99, [116]. 352 Toni Pfanner, Head of the icrc Legal Division, cited in Douglas Cassel, ‘Lessons from the Americas: Guidelines for International Responses to Amnesties for Atrocities’ (1996) 59(4) Law and Contemporary Problems 197, 218. 353 Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Volume 1: Rules (Cambridge University Press: Cambridge, 2005), rule 159. 354 Mallinder, above n 349, 5; see also Louise Mallinder, Amnesty, Human Rights and Political Transitions: Bridging the Peace and Justice Divide (Hart Publishing: Oxford, 2008), Chapter 3.

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This section considers, first, the question of domestic amnesties and then, separately, amnesties which may operate at the international level. 4.6.2 The Grant of Domestic Amnesties for Crimes against Humanity (a) State Practice in Granting Domestic Amnesties The granting of amnesties and pardons after civil strife have a long history. For centuries, states at the end of civil upheavals have pardoned the combatants and their leaders. After the English civil war, parliament passed the ‘Acts of Oblivion’ to immunise both rebel forces and royalists. During the American civil war, President Abraham Lincoln issued amnesty proclamations to encourage defection in confederate ranks.355 Even after Nuremberg, German and Japanese authorities enacted broad amnesties.356 Recently, a number of national decisions have upheld amnesties granted in a range of similar circumstances following civil strife.357 In 1993, the French Cour de Cassation upheld an amnesty law covering crimes arising during the French Indochina war of 1946–1954.358 This was despite the fact that the charges, brought against George Boudarel, included torture and other inhumane acts as a crime against humanity. There have been many instances of states granting amnesties covering such breaches in the last two decades, including crimes against humanity, with such amnesties being granted in Argentina, Cambodia, Chile, El Salvador, Guatemala, Haiti, Peru, Sierra Leone, South Africa, Uganda and Uruguay.359 355 (United States) Lincoln’s third annual message to Congress, 8 December 1863, Program for Reconstruction, a position upheld by the us Supreme Court in United States v Klein 80 u.s. 128 (1871). 356 (Germany) Bundesgesetzblatt (bgbi) 1949, 37f (‘Law Granting Exemption from Punishment; Law Concerning Release from Punishment and Fines and Cancellation of Punitive and Fining Proceedings 1954’); see also (Japan) Amnesty Law (Law No 20, promulgated 28 March 1947), reprinted in Kanpo fukkokuban No 6059 (28 March 1947). Both examples are cited in Mallinder, above n 349. 357 (Trinidad & Tobago) Attorney-General of Trinidad & Tobago v Lennox Phillip [1995] 1 a.c. 396; (Malaysia) Mustapha v Mohammed [1987] 1 l.r.c. Const & Admin. 16 (Malaysian Supreme Court); and (Fiji) State v Naitini (aka George Speight) [2001] fjhc 1. 358 (France) Boudarel case, Cour de cassation (chambre criminelle), 1 April 1993, Bull. No. 143. See also Yves Beigbeder, Judging War Crimes and Torture: French Justice and International Criminal Tribunals and Commissions (1940–2005) (Martinus Nijhoff: Leiden, 2006) 73–74, cited in Bassiouni, above n 291, 677. 359 See Broomhall, above n 20, 94. For the case of Haiti: see Michael P. Scharf, ‘Swapping Amnesty for Peace: Was There a Duty to Prosecute International Crimes in Haiti?’ (1996) 31 Texas International Law Journal 1. For Uganda, see Louise Mallinder, ‘Peacebuilding, the

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However, courts and human rights bodies have struck down many such laws (discussed further below) and an increasing number of states have excluded the application of amnesties to international crimes: Suriname,360 Nicaragua,361 Guatemala,362 Federation of Bosnia and Herzegovina,363 Venezuela,364 Cote d’Ivoire,365 Colombia,366 the Philippines,367 the Democratic Republic of the Congo,368 Tunisia,369 Poland370 and Argentina.371 Further, an increasing number of constitutions have provisions prohibiting amnesties for international

Rule of Law and the Duty to Prosecute: What Role Remains for Amnesties?’, Transitional Justice Institute Research Paper No 11-06, accessed online via ssrn, 14. 360 (Suriname) 1992 Amnesty Law providing for the granting of amnesty, Decree No. 5544 (excluding crimes against humanity from the scope of the amnesty). 361 (Nicaragua) 1993 Amnesty Law (excluding war crimes and crimes against humanity from its scope). 362 (Guatemala) 1996 National Reconciliation Law (excluding from the amnesty the crimes of genocide, torture, forced disappearance and crimes which are not subject to limitations or which, in conformity with internal law or international treaties ratified by Guatemala, do not allow release from penal responsibility). The eccc Trial Chamber noted that the Guatemalan courts have applied this amnesty on a case-by-case basis. 363 (Bosnia and Herzegovina) 1999 Law on Amnesty (excluding “criminal acts against humanity and international law as stipulated in Section xvi of the [sfry Criminal Code]” from the amnesty). 364 (Venezuela) 2000 Law of General Political Amnesty (excluding from its scope Crimes against humanity, grave crimes against human rights and war crimes). 365 (Cote d’Ivoire) 2003 Amnesty Law (excluding crimes against humanity from the amnesty) and 2007 Amnesty Ordinance (excluding “crimes and offences against international law” from the amnesty). 366 (Colombia) 2005 Justice and Peace Law (excluding from the complete amnesty combatants who committed certain serious crimes under international law, but limiting instead their sentences to 5–8 years). 367 (Philippines) 2007 Proclamation No. 1377 (excluding from the amnesty “Crimes against chastity, rape, torture, kidnapping for ransom, use and trafficking of illegal drugs and other crimes for personal ends and violations of international law” (even if alleged to have been committed in pursuit of political beliefs)). 368 (Democratic Republic of the Congo) 2009 Law of Amnesty (excluding genocide, war crimes and crimes against humanity). 369 (Tunisia) Legislative Decree No. 2011-1, granting amnesty (excluding international crimes). 370 (Poland) 1998 Act on the Institute of National Remembrance (excluding crimes against humanity from any prior amnesties). 371 (Argentina) Sancionaron Ley que Prohibe Indultos, Amnistias y Commutacion de Penas para Delitos de Lesa Humanidad (prohibiting the granting of pardons and amnesties).

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crimes.372 However, Dr Mallinder has noted that this trend of excluding crimes against humanity from amnesties in domestic law has fallen off since the 2000s.373 In addition to the above survey of state practice374, regard should be had to the approach of states to amnesties at the Rome Conference for the icc. Although some states said prosecution was the only appropriate response to international crimes, this was not accepted by all states and the icc Statute left the issue up to the broad discretion of the Prosecutor.375 Further, at the preparatory meetings to the Rome Conference, the us issued an informal ‘non paper’ that suggested that ‘the Court should take account of domestic amnesties when deciding whether or not to exercise jurisdiction’.376 While this suggestion garnered some support from the South African representative (on the basis that the icc may not recognise an amnesty such as its own Truth and Reconciliation Commission377), Rodman notes that other states strongly resisted this proposal, having concerns that it would allow governments to shield themselves from the icc’s jurisdiction.378 372 See, for example: (Ethiopia) Constitution of Ethiopia (1994), Art 28(1); (Ecuador) Constitution of Ecuador (2008), Art 80; (Venezuela) Constitution of Venezuela (1999, as amended), Art 29. 373 Mallinder, above n 360, 13. 374 On state practice, see Christine Bell, Peace Agreements and Human Rights (Oxford University Press: Oxford, 2000) 259–291. 375 See Darryl Robinson, ‘Serving the Interests of Justice: Amnesties, Truth Commissions and the International Criminal Court’ (2003) 14(3) European Journal of International Law 481, 483; John Dugard, ‘Possible Conflicts of Jurisdiction with Truth Commissions’, in Antonio Cassese, Paula Gaeta and John R.W.D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press: Oxford, 2002) 693; Michael P. Scharf, ‘The Amnesty Exception to the Jurisdiction of the International Criminal Court’ (1999) 32 Cornell International Law Journal 507; and Mahnoush Arsanjani, ‘The International Criminal Court and National Amnesty Laws’ (1999) 63 American Society of International Law Proceedings 65. 376 us Delegation to Preparatory Commission, State Practice regarding Amnesties and Pardons (1997); and Naomi Roht-Arriaza, ‘Amnesty and the International Criminal Court’, in Dinah Shelton (ed), International Crimes, Peace and Human Rights: The Role of the International Criminal Court (Transnational Publishers: Ardsley, 2000), cited in Mallinder, above n 349, 8. 377 William Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press: Oxford, 2010) 87, cited in Mallinder, above n 349, 8. 378 Kenneth Rodman, ‘Is Peace in the Interests of Justice? The Case for Broad Prosecutorial Discretion at the International Criminal Court’ (2009) 22 Leiden Journal of International Law 99, 103, cited in Mallinder, above n 349, 9.

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(b)

Case Law on the Legality of Domestic Amnesties for Crimes against Humanity In the context of the granting of amnesties to perpetrators of international crimes, the Inter-American Court of Human Rights (IACtHR),379 the African Commission on Human Rights,380 the Human Rights Committee381 and the European Court of Human Rights382 have all found States Parties to the applicable human rights treaties have a duty to investigate and prosecute 379 (IACtHR) See Velasquez Rodriguez v Honduras (Judgment), Inter-American Court of Human Rights, Petition No. 7920/1981 (29 July 1988) (‘Velasquez Rodriguez – Judgment’), 35; Case of the Serrano Cruz Sisters v El Salvador (Judgment on Preliminary Objections), ­Inter-American Court of Human Rights, (ser. C) No 118 (23 November 2004) (‘El ­Salvador – Preliminary Objections’); see also ‘El Salvador Report – State’s responsibility for 1983 Las Hajas massacre’ (1993) 14 Human Rights Law Journal 167, No. 5-6, Report No. 26/92 (24 September 1992), [169]. 380 (achpr) Social and Economic Rights Action Centre (serac) and Centre for Economic and Social Rights (cesr) v Nigeria (Decision on Merits), African Commission on Human Rights, Comm. No 155/96 (27 October 2001), [44]. 381 (unhrc) un Human Rights Committee General Comment No. 31 (80) (The nature of the legal obligation imposed on States parties), un Doc. CCPRIC/21IRev.1IAdd.13 (26 May 2004) (‘General Comment No. 31’), [15] and [18]: (‘Accordingly, where public officials or State agents have committed violations of the Covenant rights referred to in this paragraph, the States Parties concerned may not relieve perpetrators from personal responsibility, as has occurred with certain amnesties … and prior legal immunities and indemnities’). See also: Bautista de Arellana v Colombia (Views), Human Rights Committee, Comm. No 563/1993 (27 October 1995) (‘Arellana v Colombia’), [8.2] and [8.6]: (“the Covenant does not provide a right for individuals to require that the State criminally prosecute another person […]. The Committee nevertheless considers that the State party is under a duty to investigate thoroughly alleged violations of human rights … and to prosecute criminally, try and punish those held responsible for such violations”); Hugo Rodriguez v Uruguay (Views), Human Rights Committee, Comm. No 322/1988, (19 July 1994) (‘Rodriguez v Uruguay’), [12.4]: (‘amnesties for gross violations of human rights … are incompatible with the obligations of the State party under the Covenant.’); see also Concluding Observations of the Human Rights Committee on: Chile, un Doc. CCPRlC179/ Add.104 (30 March 1999), [7]; Republic of the Congo, un Doc. CCPRlC179/Add.l18 (25 April 2000), [12]; Peru, un Docs CCPRlC179/Add.67 (25 July 1996), [9] and CCPRlC0170IPER (15 November 2000), [9]; Lebanon, un Doc. CCPRlC179/Add.78 (1 April 1997), [12]; El Salvador, un Doc. CCPRlC179/Add.34 (18 April 1994), [4]–[5]; Haiti, un Doc. CCPRlC179/Add.49 (3 October 1995), [230]–[235]; and Uruguay, un Doc. CCPRlC179/Add.19 (5 May 1993), [7], [11]. 382 (ECtHR) Khashiyev and Akayeva v Russia (Judgment), European Court of Human Rights, App Nos 57942/00 and 57945/00 (25 February 2005) (‘Khashiyev and Akayeva – Judgment’), 502.

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allegations of criminal conduct by the state or its officials as part of the duty to provide an ‘effective remedy’ to victims.383 On this basis, amnesties in Argentina, Chile, El Salvador, Peru, Mauritania and Uruguay have been held incompatible with the state’s human rights obligations.384 The leading case in this area is the decision of the IACtHR in the Barrios Altos case. The decision related to the ‘self-amnesty’ laws enacted by President Fujimori in Peru which granted broad immunities to persons who committed human rights violations.385 In 2001, the Court invalidated the laws, finding them to be inconsistent with the American Convention on Human Rights: all amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation of those responsible for serious human rights violations…386 This decision has since been followed by courts in Argentina, Brazil and Uruguay.387 This practice was cited by Judge Cancado Trindade in his 383 (ECtHR) Khashiyev and Akayeva – Judgment, above n 383, 502. 384 ‘Uruguay Report – Legal Effects of the 1986 Amnesty Laws (confirmed by referendum) incompatible with the achr’ (1992) 13 Human Rights Law Journal 340, No. 9-10, Report No. 29/92 (2 October 1992), [22]; (iachr) Hugo Leonardo et al. (Judgment), Inter-American Commission of Human Rights, Petition No. 10.029 (12 March 1993); (IACtHR) Chumbipuma Aguirre et al. v Peru (Judgment on the Merits of the Barrios Altos Case), Inter-American Court of Human Rights, (ser. C) No 75 (4 March 2001) (‘Barrios Altos Case – Judgment’), [41]; (achpr) Malawi African Association et al. v Mauritania (Views), African Commission on Human Rights, Comm. Nos 54/91, 61/91, 96/93, 98/93, 164/97-196/97 and 2110/98 (11 May 2000). 385 (Peru) Conceden amistía general a personal military, politica y civil para diversos casos, Ley No 26479 (14 June 1995), published in Normas Legales, No 229 (June 1995), pp. 200ff, modified by Precisan interpretación y alcances de amnistía otogada por la, Ley No 26492 (28 June 1995), published in Normas Legales, No 230 (June 1995), pp. 8ff. 386 (IACtHR) Barrios Altos Case – Judgment, above n 385, [41]. 387 See (Argentina) Julio Hectór Simón et al. v Public Prosecutor (Decision declaring Argentina’s Amnesty Laws Unconstitutional), Supreme Court of Justice of Argentina, Case No 17.768 (14 June 2005) (‘Simón – Constitutionality’); (IACtHR) the 2010 decision striking down Brazil’s 1979 Amnesty Law in Case of Gomes Lund et al. (“Guerrilha do Araguaia”) v Brazil (Judgment on Preliminary Objections, Merits, Reparations and Costs), Inter-American Court of Human Rights, (ser. C) No 219 (24 November 2010) (‘Lund – Judgment’), [175]; and the 2011 decision considering Uruguay’s 1986 Amnesty Law in Case of Gelman v Uruguay (Judgment on Merits and Reparations), Inter-American Court of Human Rights, (ser. C) No 221 (24 February 2011) (‘Gelman – Judgment’), [241].

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Dissenting Opinion in the icj Jurisdictional Immunities of the State.388 While the statements of principle expressed by these courts have been broad, it must be recalled that these decisions have almost universally related to domestic courts refusing to recognise broad sweeping so-called ‘self-amnesties’ – that is amnesties granted by the territorial state, usually by a regime implicated in the offences. This has led Cryer to state that ‘it is by no means clear that [the practice referred to above] is reflective of a more general principle of human rights law, and probably has much more to do with the particular context of Latin America’, and the fact that the amnesty laws were self-amnesties granted by repressive regimes.389 Nevertheless, the jurisprudence has now extended well beyond Latin America and the statements are supportive of a general duty, at least on a territorial state, to investigate in good faith allegations of crimes against humanity and to prosecute where appropriate.390 Further, a blanket amnesty designed to shield such perpetrators from such criminal investigation is likely to be incompatible with such a duty. The Human Rights Committee, which interprets and supervises the implementation of the iccpr, considers the obligation to provide an effective remedy to include a duty to investigate allegations of such violations and bring their alleged perpetrators to justice, particularly in the case of crimes against humanity.391 The Committee has also stated that states parties may not relieve perpetrators of such crimes from responsibility by means of amnesties, which are generally incompatible with States’ duty to investigate such crimes.392 388 (icj) Jurisdictional Immunities of the State, above n 164, Dissenting Opinion of Judge Cancado Trindade, [212] and [217]. 389 Robert Cryer, ‘International Criminal Law’ in Malcolm Evans (ed), International Law (3rd ed., Oxford University Press: Oxford, 2010) 778–779; see also Mallinder, above n 360, 20. 390 See discussion in Josepha Close, ‘Crafting an International Norm Prohibiting the Grant of Amnesty for Serious Crimes: Convergences and Divergences in the Case-Law of International Courts’ (2016) 7 Queen Mary Law Journal 109. 391 (unhrc) General Comment No. 31, above n 382, [15] and [18]; see also Arellana v Colombia, above n 382, [8.2] and [8.6]: (“the Covenant does not provide a right for individuals to require that the State criminally prosecute another person […] The Committee nevertheless considers that the State party is under a duty to investigate thoroughly alleged violations of human rights … and to prosecute criminally, try and punish those held responsible for such violations”). 392 (unhrc) General Comment No. 31, above n 382, [18]: (“Accordingly, where public officials or State agents have committed violations of the Covenant rights referred to in this ­paragraph, the States Parties concerned may not relieve perpetrators from personal responsibility, as has occurred with certain amnesties … and prior legal immunities and indemnities”); General Comment No. 20, [15]: (“amnesties are generally incompatible with

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It should be noted that, absent exceptional circumstances, the duty to provide an effective remedy to victims will only apply to victims of crimes committed within the jurisdiction of the State Party.393 Hence, this jurisprudence does not directly deal with a third party state’s obligation to prosecute. Generally, the cases have emphasised the primary obligation of the territorial state. While the ilc’s Third Report on the Obligation to Extradite or Prosecute discusses a number of domestic decisions affirming the obligation to prosecute or extradite, the majority have only accepted such an obligation on the territorial state. Some cases have suggested an obligation may fall on a third party state which may be harbouring a fugitive whose extradition may be sought by a party to the regional human rights treaty. the duty of States to investigate [acts of torture]”); Basilio Laureano Atachahua v Peru (Views), Human Rights Committee, Comm. No 540/1993 (25 March 1996), [10]: (“Under [Article 2(3)] of the Covenant, the State party is under an obligation to provide the victim and the author with an effective remedy. The Committee urges the State party to open a proper investigation…, to provide for appropriate compensation to the victim and her family, and to bring to justice those responsible for her disappearance, notwithstanding any domestic amnesty legislation to the contrary”); Rodriguez v Uruguay, above n 382, [12.4]: (“amnesties for gross violations of human rights … are incompatible with the obligations of the State party under the Covenant.”); see also Concluding Observations of the Human Rights Committee on: Chile, un Doc. CCPRlC179/Add.104 (30 March 1999), [7]; Republic of the Congo, un Doc. CCPRlC179/Add.l18 (25 April 2000), [12]; Peru, un Docs CCPRlC179/Add.67 (25 July 1996), [9] and CCPRlC0170IPER (15 November 2000), [9]; Lebanon, un Doc. CCPRlC179/Add.78 (1 April 1997), [12]; El Salvador, un Doc. CCPRlC179/ Add.34 (18 April 1994), [4]–[5]; Haiti, un Doc. CCPRlC179/Add.49 (3 October 1995), [230]– [235]; and Uruguay, un Doc. CCPRlC179/Add.19 (5 May 1993), [7], [11]. 393 (icj) Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion requested by UN ga Res ES-10/14), International Court of Justice (9 July 2004) (‘Israeli Wall – Advisory Opinion’), [108]–[109]; (ECtHR) Al Skeini v United Kingdom (Judgment on Merits and Just Satisfaction), European Court of Human Rights (Grand Chamber), App No 55721/07 (7 July 2011) (‘Al Skeini – Judgment’), [131]–[132]; see also European Convention on Human Rights, Art 1 (‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section i of [the] Convention’); iccpr, Art 2(1) (‘Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the present Covenant….’); iachr, Art 1(1) (‘The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination…’). Cf. African Charter on Human and Peoples’ Rights, Art 1 (‘The Member States of the Organization of African Unity parties to the present Charter shall recognize the rights, duties and freedoms enshrined in this Chapter and shall undertake to adopt legislative or other measures to give effect to them’).

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On 22 September 2006, for instance, the IACtHR in Goiburú et al. v Paraguay,394 considered whether Paraguay was in violation of its international obligations by failing to institute criminal proceedings against persons responsible for certain forced disappearances during Operation Condor in 1974–1977 in Paraguay. In finding that Paraguay was in violation of its obligations, the Court held as follows: Consequently, the mechanisms of collective guarantee established in the American Convention, together with the regional and universal international obligations on this issue, bind the States of the region to collaborate in good faith in this respect, either by conceding extradition or prosecuting those responsible for the facts of this case on their territory. The reasoning does not seem to make the duty ‘to collaborate in good faith in this respect, either by conceding extradition or prosecuting those responsible’ dependent upon the crime being committed in the state’s territory. Secondly, often the obligation is based upon treaty provisions rather than customary law. Nevertheless, the reasoning applied has often drawn upon general principles of international law. In 2006, the IACtHR, for instance, considered an amnesty for crimes against humanity under the Chilean Amnesty of 1978, which prevented investigation into the 1973 extrajudicial execution of Luis Almonacid-Arellano.395 After reviewing the developments in international criminal law, the Court found that: The States cannot neglect their duty to investigate, identify, and punish those persons responsible for crimes against humanity by enforcing amnesty laws or any other similar domestic provision. Consequently, crimes against humanity are crimes which cannot be susceptible of amnesty.396 Similarly, on 12 December 2007, the Guatemalan Constitutional Court refused two extradition requests from Spain in the Rios Montt case. The Court refused the extradition requests on the basis that Spain could not exercise universal 394 (IACtHR) Goiburú et al. v Paraguay (Judgment on Merits, Reparations and Costs), InterAmerican Court of Human Rights, (ser. C) No 158 (22 September 2006) (‘Goiburú v Paraguay’), available online at . 395 (IACtHR) Case of Almonacid-Arellano et al. v Chile (Judgment on Preliminary Objections, Merits, Reparations and Costs), Inter-American Court of Human Rights, (ser. C) No 154 (26 September 2006) (‘Almonacid-Arellano’). 396 (IACtHR) Almonacid-Arellano, above n 396, [114].

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jurisdiction without the prior consent of the territorial state, in this case Guatemala.397 Secondly, however, the Court found that Guatemala was under an obligation to extradite or prosecute the two accused and that this obligation arose irrespective of the Genocide Convention.398 Accordingly, the Court affirmed the duty is in respect of the territorial state only, but they did so in a way that could apply more broadly to crimes against humanity under customary law. The Special Court for Sierra Leone has recognised a “crystallising i­nter national norm that a government cannot grant amnesty” for crimes under international law, finding that blanket amnesties were impermissible under ­international law.399 In declaring itself not to be bound by the amnesty in question, the scsl noted that states are under a duty to prosecute jus cogens crimes and that the amnesty granted by Sierra Leone could not cover crimes under international law, such as crimes against humanity.400 The icty has also held that “[crimes against humanity] are inhumane acts that by their extent 397 Third ilc Report on aut dedere aut judicare, above n 340, [88(b)]. 398 Third ilc Report on aut dedere aut judicare, above n 340, [88(b)]. 399 (scsl) See cdf – Jurisdiction, above n 89, [82]; Prosecutor v Gbao (Appeals Chamber Decision on Preliminary Motion on the Invalidity of the Agreement between the United Nations and the Government of Sierra Leone on the Establishment of the Special Court), Case No SCSL-04-15-PT (25 May 2004), [8]–[10] (finding that “states have a duty to prosecute crimes whose prohibition has the status of jus cogens” and that “there is […] support for the statement that there is a crystallized international norm to the effect that a government cannot grant amnesty for serious crimes under international law”); and Prosecutor v Norman, Fofana and Kondewa, (Appeals Chamber Decision on Lack of Jurisdiction/ Abuse of Process: Amnesty Provided by the Lomé Accord), Case No SCSL-04-14-AR72(E) (25 May 2004) (‘cdf – Amnesty’), [49], [51] (finding that blanket amnesties are impermissible for international crimes and for those most responsible of such crimes, that the grant of such amnesties violates erga omnes obligations under international law and that there is a crystallized norm of international law that a government cannot grant an amnesty for serious crimes under international law). See also Separate Opinion of Judge Robertson in this case (considering that the rule against impunity which has crystallized in international law is a norm which denies the legal possibility of pardon to those who bear the greatest responsibility for crimes against humanity and for widespread and serious war crimes and that international criminal law invalidates amnesties offered under any circumstances to persons most responsible for crimes against humanity). 400 (scsl) cdf – Jurisdiction, above n 89, [71], [82], [84] (“this court is entitled in the exercise of its discretionary power to attribute little or no weight to the grant of such amnesty which is contrary to the direction in which customary international law is developing and which is contrary to the obligations in certain treaties and convention the purpose of which is to protect humanity”).

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and gravity go beyond the limits tolerable to the international community, which must perforce demand their punishment”.401 As the un Human Rights Committee has noted, however, the European Court of Human Rights ‘[has] not gone so far as the Inter-American Court’.402 The European Court of Human Rights has yet to proclaim an ‘outright duty to punish’ perpetrators of international crimes. At most, the Court has found that States are under an obligation to conduct ‘investigations capable of leading to the identification and punishment of those responsible’.403 Hence, providing a remedy may not require a prosecution in every case, so there may remain room for a discretion not to prosecute on more nuanced and individual grounds, such as part of a truth and reconciliation process, or on individual humanitarian considerations, such as delay, age or health of the defendant and the seriousness of the offence. The European Court of Human Rights has found, however, that ‘when an agent of the State is accused of crimes that violate [the prohibition on torture in Article 3 of the echr], the criminal proceedings and sentencing must not be time-barred and the granting of an amnesty or pardon should not be permissible’.404 In 1996, at the end of the apartheid government in South Africa, the Constitutional Court of South Africa approved arrangements for the grant of amnesties to be issued at the discretion of a Commission in azapo v South Africa.405 The Court noted that the Geneva Conventions distinguished between war crimes committed in an international armed conflict and those committed within an internal armed conflict.406 In the context of the latter, amnesties were permitted under customary international law – at least where, as in South Africa, they are a constructive measure of transitional justice based on individual circumstances and not as a ‘blanket’ amnesty for all and sundry.407 401 (icty) Prosecutor v Erdemović (Trial Chamber Judgment), Case No IT-96-22-T (29 November 1996), [28]. 402 Cryer, above n 390, cited in Mallinder, above n 360, 778–779. 403 (ECtHR) Aydin v Turkey (Judgment on Merits and Just Satisfaction), European Court of Human Rights, Case No 57/1996/676/866 (25 September 1997). 404 (ECtHR) Abdülsamet Yaman v Turkey (Judgment), European Court of Human Rights, Case No 32446/96 (2 November 2004), [55]. 405 (South Africa) Azanian Peoples Organisation (azapo) and others v President of the Republic of South Africa (Judgment), Constitutional Court of South Africa, Case No cct 17/96 (25 July 1996) (‘azapo v South Africa’). 406 (South Africa) azapo v South Africa, above n 406, [29]–[31]. 407 (South Africa) azapo v South Africa, above n 406, [32] (noting ‘[t[he amnesty contemplated is not a blanket amnesty against criminal prosecution for all and sundry, granted

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While not stated as such, this was despite the fact that the crimes alleged were jus cogens norms. The South African Constitutional Court in Basson has also noted briefly that ‘international law obliges the state to punish crimes against humanity and war crimes’.408 It is not clear whether the Court here equates a duty to punish with a duty to prosecute or extradite409 or whether that obligation extends only to the territorial state (where the crimes of Basson were committed). It is noteworthy that the Court did not appear to challenge its earlier decision upholding the amnesties in South Africa after the apartheid era. The Extraordinary Chambers in the Courts of Cambodia (eccc)410 had to consider the legal effect of the Royal Decree of 1996, which pardoned Ieng Sary in respect of a sentence handed down by a Revolutionary Tribunal in absentia in 1979 (which included charges of genocide), and an amnesty under the 1994 Law on the Outlawing of the Democratic Kampuchea Group. Ieng Sary had been charged with offences within the eccc’s jurisdiction, including crimes against humanity. The eccc was created under domestic law, f­ollowed by an Agreement between Cambodia and the un. The Law states that the Chambers are to be established in the existing court structure.411 That is, the ­Chambers are domestic courts governed by domestic law.412 Cambodia refused the un’s initial automatically as a uniform act of compulsory statutory amnesia’ but ‘is specifically authorised for the purposes of effecting a constructive transition towards a democratic order’). 408 (South Africa) S v Basson (Judgment), Constitutional Court of South Africa, Case No cct 30/03 (9 March 2004), [37], citing John Dugard ‘Is the Truth and Reconciliation Process Compatible with International Law? An unanswered question’ (1997) 13 South African Journal on Human Rights 258, 263. See also (icty) Prosecutor v Tadić (Defence Motion for Interlocutory Appeal on Jurisdiction), Case No IT-94-1-AR72 (2 October 1995) (‘Tadić – Jurisdiction’). 409 In the article cited, for instance, Dugard accepts that state practice may not be sufficient to support a rule under customary international law – stating there is only a ‘prima facie case’ for such an obligation: above n 409, 264. 410 See Chapter 5, Section 3.3.1. 411 (eccc) Article 2. 412 See Daphna Shraga, ‘The Second Generation un-Based Tribunals: A Diversity of Mixed Jurisdictions’, in Cesare Romano, André Nollkaemper and Jann Kleffner (eds), Internationalized Criminal Courts and Tribunals: Sierra Leone, East Timor, Kosovo and Cambodia (Oxford University Press: Oxford, 2004) 18 and 30–31 where the author, a un legal officer, says: ‘the question of the primacy of the Agreement over the Law has never been conclusively determined’. See also Suzannah Linton, ‘Safeguarding the Independence and Impartiality if the Cambodian Extraordinary Chambers’ (2006) 4(2) Journal of International

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request that the amnesty not apply to the eccc.413 Article 11 of the Agreement recognized the amnesty but simply said its ‘scope’ ‘is a matter to be decided by the Extraordinary Chambers’. This was repeated in Article 40 of the Law. On 11 April 2011, the Pre-Trial Chamber dismissed the pardon and amnesty, holding that Ieng Sary’s pardon was confined to the sentence pronounced in 1979 and to future prosecutions under the 1994 law, but the amnesty did not extend to other future prosecutions, including for the international offences within the jurisdiction of the eccc, such as crimes against humanity.414 Further, the Pre-Trial Chamber held that interpreting the Royal Decree as granting an amnesty for the crimes charged before the eccc, such as genocide, torture, grave breaches of the Geneva Conventions and crimes against humanity, would be inconsistent with Cambodia’s international treaty obligations to prosecute and punish the perpetrators of such crimes and to afford victims an effective remedy.415 On 3 November 2011, the Trial Chamber revisited the pardon and amnesty.416 The Trial Chamber began its analysis by distinguishing between the crimes of torture, genocide and grave breaches of the Geneva conventions (where a duty to prosecute arose out of an international convention) and crimes against humanity (where any such duty had to be established as a matter of customary international law).417 The Trial Chamber examined the various sources in the field, discussed above, as well as the practice of states in the granting of Criminal Justice 327, 340, where the author says the Chambers: ‘are rooted in Cambodian Law’ with Cambodia retaining sovereignty over the process. 413 See Ernestine E. Meijer, ‘The Extraordinary Chamber in the Courts of Cambodia for Prosecuting Crimes Committed by the Khmer Rouge: Jurisdiction, Organization, and Procedure of an Internationalized National Tribunal’ in Romano et al., above n 413, 207, 209–211 and 214–215; see also Bert Stewart, ‘Internationalized Courts and Substantive Criminal Law’ in Romano, above n 413, 291, 313, 313–314. 414 (eccc) Pre-Trial Chamber Decision on ieng Sary’s Appeal against the Closing Order, Khmer Rouge Tribunal, Case No D427/1I30 (11 April 2011) (‘Sary – pt Closing Order Decision’), [118]–[176], [184]–[202]. The ptc noted that the Khmer word for amnesty was used inconsistently and provided its own translation of the Decree, finding that the Royal Decree granted two ‘amnesties’ to ieng Sary: “[a]n amnesty […] for the sentence of death and confiscation of all his property imposed by order of the People’s Revolutionary Tribunal of Phnom Penh, dated 19 August 1979; and an amnesty for prosecution under the [1994 Law]”. 415 (eccc) Sary – pt Closing Order Decision, above n 415, [191]–[201]. 416 (eccc) Decision on ieng Sary’s Rule 89 Preliminary Objections (Ne bis in idem and Amnesty and Pardon), Khmer Rouge Tribunal, Case No 002/19-09-2007/ECCC/TC (3 November 2011) (‘Sary – tc Amnesty Decision’). 417 (eccc) Sary – tc Amnesty Decision, above n 417, [40].

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amnesties after civil conflict in a number of countries in the past three decades,418 and found that that state practice regards blanket amnesties for serious international crimes to be in breach of international norms based upon a duty to investigate and punish the perpetrators.419 The Trial Chamber, however, distinguished blanket amnesties from other circumstances in which amnesties have been accepted,420 namely, amnesties ‘aimed at releasing political prisoners of a former regime or facilitating the return of refugees’421 and certain ‘conditional amnesties’. Examples of the latter included cases like South Africa, ‘where amnesties were granted as part of the reconciliation process’ and where ‘applicants were under an obligation to make full disclosure of all relevant facts’,422 and cases where conditions include surrendering to authorities, ceasing armed activities, or handing over weapons.423 The Trial Chamber held that these types of amnesties ‘have 418 (eccc) Sary – tc Amnesty Decision, above n 417, [41]–[49]. 419 (eccc) Sary – tc Amnesty Decision, above n 417, [49], [53]. 420 (eccc) Sary – tc Amnesty Decision, above n 417, [52], [53]. 421 (eccc) Sary – tc Amnesty Decision, above n 417, [52], citing (Bosnia and Herzegovina) 1996 Amnesty Law and 1999 Law on Amnesty; and (Republika Srpska) 1996 Law on Amnesty and 1999 Law on Charges and Amendments to the Law on Amnesty; see also (Spain) 1976 Royal Amnesty (given by King Juan Carlos to those convicted of political crimes during the rule of General Francisco Franco). 422 (eccc) Sary – tc Amnesty Decision, above n 417, [52], citing (South Africa) Promotion of National Unity and Reconciliation Act (Act No 34 of 1995). In 1996, the Constitutional Court of South Africa upheld the section of the 1995 Act relating to the amnesty, finding that there was an exception to the peremptory rule prohibiting an amnesty in relation to crimes against humanity contained in Article 6(5) of Additional Protocol ii of the 1949 Geneva Conventions (applying to internal conflicts) (see azapo v South Africa, above n 406); and (Colombia) 2005 Justice and Peace Law (Law 975) (providing for reduced sentences for serious international crimes). Further to the Constitutional Court of Colombia’s judgment of 18 May 2006 (Case No 70/2006), combatants were required to fully and truthfully disclose their crimes in order to benefit from the legislation. 423 (eccc) Sary – tc Amnesty Decision, above n 417, [52], citing (Sierra Leone) 1999 Lomé Peace Accord; (Cambodia) 1994 Law; (Angola) 2006 Memorandum of Understanding for Peace and Reconciliation in Cabinda Province implemented in a domestic Amnesty Law; and (Uganda) 2000 Amnesty Act. See also (Algeria) 1999 Law on National Reconciliation (also called Law on Civil Concord), conditional on informing the stopping of “terrorist or subversive activity” within 6 months of the promulgation of the law and on handing oneself in to the competent authorities. This amnesty law also excluded from its scope “terrorist or subversive acts; acts leading to death or permanent disability; rapes; bombings in public places”; Algeria’s 2005 Charter for Peace and National Reconciliation, supplemented by a number of Ordinances and Decrees (requiring applicants to surrender to authorities in a limited time-period and providing information about their crimes

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generally not been invalidated, but rather, applied on a case-by-case basis, depending on a number of factors, including the process by which the amnesty was enacted, the substance and scope of the amnesty, and whether it provided for any alternative form of accountability.’424 Ultimately, the Trial Chamber concluded that: Although state practice in relation to [non-treaty crimes such as crimes against humanity] is arguably insufficiently uniform to establish an ­absolute prohibition of amnesties in relation to them, this practice demonstrates at a minimum a retroactive right for third States, internationalised and domestic courts to evaluate amnesties and to set them aside or limit their scope should they be deemed incompatible with international norms. These norms further evidence a clear obligation on states to hold perpetrators of serious international crimes accountable and to provide victims with an effective remedy, and support the conclusion that amnesties for these crimes (especially when accompanied by any form of accountability) are incompatible with these goals.425 The Trial Chamber found that in the exercise of its discretion, it was entitled to give no weight to the 1996 Royal Decree in barring the current prosecution for crimes against humanity on the basis that, while the amnesty ‘may have been a useful negotiating tool in ending the conflict’, it was ‘unaccompanied by any truth or reconciliation process’ or the ‘internationally-enshrined rights of victims to an effective remedy otherwise acknowledged’.426 So far as third party states considering another state’s amnesty are concerned, the Trial Chamber cited two cases. First, the Ely Quid Dah case, where and ceasing armed activities); and (Haiti) 1994 Amnesty Law, enacted further to the 1994 Port-au-Prince Agreement between the us and Haiti under which certain military officers of the Haitian armed forces consented to an “early and honorable retirement” in exchange for an amnesty, which allowed President Aristide to return to the country and end the conflict. 424 (Uganda) See, for example, Thomas Kwoyelo alias Latoni v Uganda (Judgment), Ugandan Constitutional Court, Case No 36/2011 (22 September 2011), lines 531–582 (analysing the circumstances of the applicant and the general context of the country, and finding that the applicant, who was a former Lord’s Resistance Army (lra) commander, should have been granted an amnesty under the 2000 Amnesty Act, which was not a blanket amnesty, for crimes committed during the conflict opposing his rebel group to governmental forces). 425 (eccc) Sary – tc Amnesty Decision, above n 417, [53]. 426 (eccc) Sary – tc Amnesty Decision, above n 417, [54].

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the French Cour de Cassation declined to apply the Mauritanian amnesty law on the basis that the principle of universal jurisdiction would be deprived of any effect if the court was obliged to apply the amnesty.427 Second, the Pinochet case, where the Spanish court held that Chile’s 1978 Decree-Law on General Amnesty did not preclude the exercise of universal jurisdiction by Spanish courts and noted various decisions where courts had declined to act on foreign amnesties.428 This also has the support of the icty in a decision in respect of torture429 and various scholars.430 (c) Domestic Amnesties before International Courts The Lomé Accord of 2004 granted an amnesty to those involved in Sierra Leone’s civil war. Its legal effect was considered by the scsl in the case of Norman, Fofana and Kondewa (the cdf Case).431 The cdf accused relied upon the amnesty contained in the Lomé Peace Agreement, as also incorporated into local law, to challenge the right of the scsl to prosecute the accused for

427 (Mauritania) 1993 Law of Amnesty; see also: (France) Case of Ely Ould Dah, Cour de cassation (chambre criminelle), Bull., crim no 195 (23 October 2002), 5 (‘l’exercice par une juridiction française de la compétence universelle emporte la compétence de la loi française, même en présence d’une loi étrangère portant amnistie’, subsequently approved in (ECtHR) Ould Dah v France (Decision on Admissibility), European Court of Human Rights, Case No 13113/03 (17 March 2009) (considering that amnesty laws are generally incompatible with the duty of States to investigate acts of torture. The echr also found that the Mauritanian Amnesty Law could not prevent the applicability of French Law before the French Courts seized of the case because of their universal jurisdiction). 428 (Spain) Pinochet Case (Order affirming jurisdiction), Sala de lo Penal de la Audiencia Nacional, Appeal No. 173/98 (5 November 1998); and Case of Leopoldo Fortunato Galitieri (Order issuing international arrest warrant), Audiencia Nacional, (25 March 1997) (holding that Argentina’s amnesty laws were contrary to Argentina’s international treaty obligations). See also (Netherlands) Public Prosecutor v F (Judgment), District Court of The Hague, Case No 09/750001-06 (25 June 2007) (affirming the exercise of universal jurisdiction over war crimes charges despite the alleged existence of an amnesty in Afghanistan). 429 (icty) Furundžija – Trial, above n 174, [155]–[156] (noting in its analysis of torture as a jus cogens crime that “perpetrators of torture acting upon or benefiting from [national measures authorizing or condoning torture or absolving its perpetrators through an amnesty law] may nevertheless be held criminally responsible for torture, whether in a foreign State, or in their own State under a subsequent regime”). 430 For example, see Cassese, above n 21, 315; and Orentlicher, above n 37, 214. 431 (scsl) Prosecutor v Fofana and Kondewa (Trial Chamber Judgment), Case No SCSL04-14-T (2 August 2007) (‘cdf – Trial’); Fofana and Kondewa v Prosecutor (Appeals Chamber Judgment), Case No SCSL-04-A-829 (28 May 2008) (‘cdf – Appeal’).

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acts prior to its execution.432 Article 10 of the scsl Statute states that any amnesty shall not bar a prosecution for international crimes (Articles 2–4). According to the Secretary-General’s Report, this was to deny the amnesty legal effect under international law.433 The Appeals Chamber held that the Lomé Agreement could not create obligations at the international level because it was not an international treaty – only the government of Sierra Leone and the ruf, a non-state actor, were parties.434 The Appeals Chamber stated that if the international crime attracts universal jurisdiction (which will not always be the case), a local amnesty cannot bar a foreign court or international court from exercising that universal jurisdiction.435 Relying on In re List et al. and Eichmann, it concluded that crimes against humanity (and the other crimes in Articles 2–4) are subject to universal jurisdiction and the amnesty will therefore not be binding upon it.436 The characterisation of the Lomé Agreement as a non-international treaty suggests an international amnesty may have been relevant. Further, it is curious that the Court looked to the principle of universal jurisdiction. Where the court is in a state with no connection to the territorial state or the perpetrator, it makes sense to treat the state invoking universal jurisdiction in respect of crimes committed elsewhere not to be bound by any amnesty granted by a state which may have been complicit in the crime in the first place. Reliance upon the universal jurisdiction principle in the case of an international court, not a state court, seems misplaced. The Court found its jurisdiction was grounded on an international agreement authorised by the Security Council invoking Chapter vii of the un Charter. The Agreement expressly stated that no amnesty may bar any prosecution. Such a provision, like similar provisions in the London Charter, the Tokyo Charter and Control Council Law No 10, can be followed in accordance with its terms. Ever since the endorsement of the Nuremberg Judgment by the General Assembly, it may be assumed that under international law a local law of 432 (scsl) cdf – Jurisdiction, above n 89, [15]. 433 Report of the Secretary General on the Establishment of a Special Court for Sierra Leone, un gaor, 55th sess, un Doc. S/2000/915 (4 October 2000) (‘Report of the SecretaryGeneral’), [24]. 434 (scsl) cdf – Jurisdiction, above n 89, [37]–[50]; see Meisenberg, above n 89; and Cassese, above n 21. 435 (scsl) cdf – Jurisdiction, above n 89, [67]. 436 (scsl) cdf – Jurisdiction, above n 89, [68] and [70]; see also: (Nuremberg) The Hostages Case, above n 40; and (Israel) Eichmann, above n 11, discussed in Chapter 3, Section 4.5.

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amnesty will not bar a valid international prosecution of persons accused of committing crimes against humanity.437 (d) Conclusion on Domestic Amnesties There are three separate circumstances to consider, namely, the validity under international law of a domestic amnesty purporting to bar a prosecution for crimes against humanity before: (a) an international court; (b) a third-party state court; and (c) the territorial court. The first case presents the least controversy. It remains a part of wellestablished international criminal law since the Nuremberg Judgment that, before a validly constituted international tribunal, any domestic law or amnesty or other excuse or defence cannot bar a prosecution for crimes against humanity. As to the case of a grant of an amnesty by the territorial state, the conclusion of the eccc Trial Chamber in November 2011 in the Ieng Sary case as to the state of the law is most persuasive. On the one hand, state practice does not corroborate the view that international law prohibits the grant of any amnesty for crimes against humanity in all circumstances.438 In other words, there is no obligation to prosecute all cases of crimes against humanity. Michael Scharf asserted in 1996 that any such rule is so divorced from the realities of state practice that it can only be an international aspiration.439 This position has not yet changed. Not only is there no treaty prohibiting the granting of an amnesty, but, as one writer has stated, ‘on every occasion where an explicit amnesty prohibition or discouragement has been mooted in the context of a multilateral treaty negotiation, states have demonstrated a resolute unwillingness to agree to even the mildest discouragement’.440 Justice Robertson at the scsl concluded that customary international law ‘invalidates amnesties offered under any circumstances to persons most responsible for crimes against humanity’ but 437 See Chapter 8. 438 Charles Trumbull, ‘Giving Amnesties a Second Chance’ (2007) 25 Berkeley Journal of International Law 283, 291, cited in Mallinder, above n 360, 15. 439 Scharf, above n 360, 41. 440 Mark Freeman, Necessary Evils: Amnesties and the Search for Justice (Cambridge University Press: Cambridge, 2010) 33.

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perhaps not if offered to those who bear lesser responsibility.441 In the absence of either state support or an express treaty provision, even this statement remains doubtful as a blanket rule. On the other hand, it can be assumed, for instance, that a state will breach international law if, as a matter of state policy, it encourages, condones or acquiesces in the commission of a crime against humanity on its own territory, including by failing to prosecute those responsible.442 Blanket amnesties for crimes against humanity will generally be in breach of this international norm based upon a general duty to investigate and punish the perpetrators. This will generally cover ‘self-amnesty’ laws designed to benefit those passing the law, such as occurred in many Latin American states. Further, unwillingness to prosecute whilst such crimes are taking place may ground intervention by the Security Council, including referral to the icc as occurred in the case of Sudan and Libya. There probably is not yet a rule of customary law which prohibits a successor regime, acting in good faith in order to end a conflict or promote national reconciliation, from granting an amnesty for the ‘crimes against humanity’ of the member of a previous regime or former combatants. This is the view held by Cassese.443 Such amnesties may, however, be unlawful by reason of the ­obligation in any applicable human rights treaty to provide a remedy to victims. This obligation likely requires some investigation, fact-finding and ­reconciliation process if not an actual prosecution. Nevertheless, as also concluded by the eccc in the Ieng Sary case, a successor regime under international law will have a wide discretion to set aside or give no weight to the amnesty laws or pardons that may have been granted in the past for perpetrators of crimes against humanity. Similarly, a third party state, if validly exercising an extraterritorial jurisdiction over a defendant accused of committing crimes against humanity will also enjoy under international law a wide discretion or permission to decline to give any legal effect to such pardon or law of amnesty. Of course, if one assumes there is no obligation on a third party state to prosecute in any event, discussed further below, the 441 (scsl) cdf – Amnesty, above n 400, [51]. 442 (United States) See, for example: Restatement (Third) Of The Foreign Relations Law Of The United States (1987), s 702: ‘a state violates customary international law if, as a matter of state policy, it practices, encourages or condones genocide, slavery or slave trade, the murder or causing the disappearance of individuals, torture or other cruel, inhuman, or degrading treatment or punishment, prolonged arbitrary detention, systematic racial discrimination or a consistent pattern of gross violations of internationally recognised human rights’. 443 Cassese, above n 21, 315.

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third party state would be free to rely upon a local amnesty as one of the bases for not proceeding. That raises the question of whether a prosecutor of an international tribunal, such as the icc, can exercise a discretion not to proceed based upon a local amnesty. While any local amnesty can, in theory, be overridden,444 there likely exists some discretion to take an amnesty into account in the decision to prosecute. The icc Statute is silent with regard to amnesties and the Prosecutor has a broad discretion not to proceed ‘in the interests of justice’,445 which may involve having regard to a local amnesty.446 The two relevant articles in the Rome Statue are Articles 17 and 53.447 Article 17, the complementarity principle, provides that, where a state that has jurisdiction has investigated the crimes and decided not to prosecute, a case will only be admissible where the relevant state is ‘unwilling or unable genuinely to prosecute’. Some writers argue that the fact that amnesties are designed to prevent prosecutions means that a state that grants an amnesty must necessarily be unwilling or unable to prosecute.448 However, considering an example such as the South African trc, Robinson argues that, where states undertake ‘a diligent, methodical effort to gather the evidence and ascertain the facts relating to the conduct in question’ before deciding whether to grant an amnesty in an individual case, the icc is entitled to respect any amnesty granted.449 Former un Secretary-General Kofi Annan has expressed a similar view in relation to the South African trc.450 444 (Nuremberg) This is the effect of Principle 2 of the Nuremberg Principles. (scsl) In 2000, the Secretary-General said ‘the United Nations has consistently maintained the position that amnesty cannot be granted in respect of international crimes’: Report of the Secretary General, above n 434, [24]. 445 icc Statute, Art 53(1)(c). 446 This is supported by many writers such as Broomhall above n 20, 102; and Sadat above n 291, 203–204. See also Rodman, above n 379. 447 See discussion in Mallinder, above n 349, 9–10. Another more appropriate basis for the exercise of prosecutorial discretion may decline to initiate an investigation if: ‘[t]aking into account the gravity of the crime and the interests of victims, there are nonetheless substantial reasons to believe that an investigation would not serve the interests of justice.’ The only difficulty is that this discretion applies at the investigation stage rather than the prosecution stage, meaning that difficulties may arise where amnesties are granted to some individuals in a conflict, but not others. 448 Rodman, above n 379, 103. 449 Robinson, above n 376, 500. 450 See Charles Villa-Vicencio, ‘Why Perpetrators Should Not Always be Prosecuted: Where the International Criminal Court and Truth Commissions Meet’ (2000) 49 Emory Law Journal 205.

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Any view taken by a prosecutor must ultimately reconcile the circumstances in which amnesties are generally incompatible with human rights and international criminal law and the instances where a particular amnesty may pass muster under such legal principles. 4.7 International Amnesties Like local amnesties, amnesties at the international level for crimes against humanity have also frequently been offered and granted. The Treaty of Lausanne granted to Turkey and its army, after the First World War, an amnesty covering the acts of genocide towards the Armenians.451 After the Second World War, whilst no formal amnesty was ever granted, Emperor Hirohito was spared prosecution by General MacArthur. This followed the us agreeing to terms of surrender whereby the Emperor was ambiguously allowed to remain on the throne but under a Supreme Commander appointed by the Allied Powers. By the Evian Agreement of 1962, France and Algeria agreed not to try persons who had committed atrocities.452 The practice of granting amnesties continued throughout the 1970s. After the Bangladesh war of 1971, India and Bangladesh threatened to prosecute 195 captured Pakistani soldiers for genocide and crimes against humanity over the killing of approximately one million people in East Pakistan.453 This threat was abandoned in 1973 in return for Pakistani recognition of Bangladesh. In the cases of El Salvador, South Africa, Haiti and Cambodia, the un pushed for, helped negotiate, or endorsed the granting of amnesties to former regime members.454 Such amnesties did not exclude crimes against humanity. For example, in August 2003, the un supported a peace agreement for Liberia which required the transitional government to consider granting a ‘general amnesty’.455

451 The Treaty of Lausanne included a ‘Declaration of Amnesty’ for all offences committed between 1914 and 1922: Treaty of Peace Between the Allied Powers and Turkey, done in Lausanne, France, opened for signature 24 July 1923 (entered into force 24 July 1923). See also Chapter 1, Section 6. 452 See Carla Edelenbos, ‘Human Rights Violations: A Duty to Prosecute?’ (1994) 7(2) Leiden Journal of International Law 5, 13. 453 Edelenbos, above n 453, 13. 454 See Michael P. Scharf, ‘The Letter of the Law: The Scope of the International Legal Obligation to Prosecute Human Rights Crimes’ (1996) 59(4) Law & Contemporary Problems 41; Broomhall, above n 20, 94. For the case of Cambodia, see Chapter 5, Section 3.3. 455 (Liberia) Comprehensive Peace Agreement between the Government of Liberia and the Liberians United for Reconciliation and Democracy (lurd) and the Movement for Democracy in

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From about the mid-1990’s, however, a sea change occurred in the attitude of the international community to the granting of international amnesties to persons responsible for committing atrocities. This is demonstrated through the international amnesty granted in 1994 in Haiti. In 1990, Jean-Bertrand Aristide, Haiti’s first democratically elected president in the country’s history, was overthrown in a bloody military coup only months after his election. He sought exile in the United States where he campaigned against Haiti’s new military rulers. The military rulers were accused of engaging in atrocities against civilians and perceived supporters of former President Aristide.456 Michael Scharf argued that the military’s conduct amounted to a crime against humanity.457 This put pressure on the United States to find a way to restore Aristide to power. President Clinton accused the military of ‘brutal atrocities’ and ‘a campaign of murder, rape, and mutilation’.458 However, three days later, President Clinton announced an amnesty for the military leaders.459 Thereafter, with the help of 20,000 troops, most of them American, Aristide was reinstated as President. This led to a chorus of criticism, including from Richard Goldstone, the Prosecutor of the icty, who said the Haiti amnesty is ‘an example of the wrong way to deal with these [atrocities]. It doesn’t serve justice; it doesn’t serve the victims’.460 At the Dayton peace talks, the indicted leaders of the Bosnian Serbs were also seeking amnesties from prosecution before the icty, which led Geoffrey Robertson to quip that if you kill one man you are sent to jail, but if you kill 200,000 you are sent to Geneva for peace talks.461 The recognition of this change in attitudes towards the granting of ­amnesties can also be seen in the case of Sierra Leone. The un representative appended a disclaimer to the 1999 Lomé Peace Agreement for Sierra Leone stating that the amnesty contained therein shall not apply to international crimes, because ‘the United Nations has consistently maintained the position that amnesty cannot be granted in respect of international crimes’.462 As discussed below,

456 457 458 459 460

461 462

Liberia (model) and Political Parties, Art 34, done in Accra, Ghana, opened for signature 18 August 2003 (entered into force 18 August 2003). Scharf, above n 360, 2–8. Scharf, above n 360, 33. Scharf, above n 360, 2. Scharf, above n 360, 2. See Peter S. Canellos, ‘Amnesty plan worries un war crimes Prosecutor’, Boston Globe (1 October 1994), 8, quoted in Scharf, above n 360, 2. According to Scharf, Goldstone joined in a ‘chorus of international rights groups in criticizing the amnesty accord’. Geoffrey Robertson, Crimes Against Humanity: The Struggle for Global Justice (Penguin: London, 2000) 203. Report of the Secretary-General, above n 434, [23]–[24].

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however, the clause in the Lomé Agreement may merely be an acknowledgement that a local amnesty cannot bar an international prosecution. In terms of judicial decisions, there has been very little consideration of the validity under international law of an international agreement that has been struck between states that has required the grant of an amnesty to perpetrators. The scsl accepted that a peace agreement that settles an international armed conflict may have a different status to a local amnesty.463 There are probably two schools of thought, one based upon pragmatism and another based upon principle. The first school can draw upon the many different international conflicts that the world has faced. A sooner surrender by Germany or Japan during the Second World War in return for some form of amnesty could have saved many lives on both sides. The United Kingdom was prepared to consider asylum for President Hussein if he agreed to step down and thus avoid a war. It would be difficult to suggest that such offers, if done to save lives, should be prohibited by international law. Scharf argues, there is little basis to suggest that there is a rule of international law prohibiting amnesties for crimes against humanity at the international level.464 Hence, an amnesty offered by one country to another in return for peace is likely binding. This may not prevent, however, another country or international tribunal acting under the authority of the Security Council from prosecuting the defendants concerned. Alternatively, just as the Security Council, under Chapter vii, can establish an international tribunal to prosecute perpetrators of crimes against humanity, it can also choose to grant them amnesties in order to restore international peace. While the wisdom of such a move may be debated, it will likely then be binding upon all un members. The other school of thought could pray in aid the jus cogens nature of crimes against humanity, so that just as two states cannot lawfully agree to commit crimes against humanity, they cannot agree to afford such perpetrators immunity from prosecution. In the absence of statements to this effect in the case law considering the matter or any suggestion that states regard such an approach as reflecting current customary law, it is unlikely that this represents current international customary law. This will be particularly the case where 463 (scsl) cdf – Jurisdiction, above n 89, [42]. (icty) A similar distinction appeared to be made by the icty Trial Chamber in respect of the amnesty supposedly offered in Prosecutor v Radovan Karadžić (Decision on Accused’s Second Motion for Inspection and Disclosure: Immunity Issue), Trial Chamber iii, Case No. IT-95-5/18-PT (17 December 2008) (‘Karadžić – Immunity’), [25]. 464 Scharf, above n 360, 34–41.

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the amnesty being offered is by a state involved in international armed conflict covering the alleged crimes against humanity of the enemy’s combatants or nationals which occurred outside its own territory. 4.8 Statutes of Limitations 4.8.1 un Convention on the Non-Applicability of Statutory Limitations The starting point for many is the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity465 (Limitations Convention), discussed in Chapter 3.466 Article 1 of the Limitations Convention provides that statutes of limitations shall not apply to, inter alia, crimes against humanity. However, as discussed, the history and current ratification status demonstrates its controversial status. For many countries in the common law tradition there is no real issue because, generally, no limitation period applies to serious domestic offences such as murder in any event. In the civil law of many European countries (including of Germany), however, their laws of prescription would bar the prosecution of many Nazi war criminals from about the mid 1960s. Accordingly, focus was placed on the so-called special quality of a ‘crime against humanity’ which makes inapplicable laws of limitation. Many countries, including most western countries, could not support the Limitations Convention because of the controversial definition of crimes against humanity contained in it.467 In the result, it has currently only 55 State Parties468 and therefore cannot be taken as authoritative as to the position under customary international law. 4.8.2 State Practice Insofar as state practice is concerned, there is certainly a developing practice of States not applying statutes of limitations to crimes against humanity. 465 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, done in New York, United States of America, opened for signature 16 December 1968, 754 unts 73 (entered into force on 11 November 1970). 466 See Chapter 3, Section 3.1. 467 The proposition proved controversial at the time the Convention was debated in the General Assembly, including the proposition that existing international law rendered crimes against humanity imprescriptible: see Robert H. Miller, ‘The Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity’ (1971) 65(3) American Journal of International Law 476. See also Chapter 3, Section 3.1; and Chapter 7, Section 2.3.1. 468 There are 55 States Parties as at 23 October 2017: see un Treaty Collection, accessed online at on 23 October 2017.

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As discussed above, this list already includes common law countries such as Australia, Canada, the United Kingdom, the United States and New Zealand. But even outside those countries with civil law backgrounds, there is a burgeoning practice of specifically excluding statutes of limitation from applying to serious international crimes. Of the countries considered in Chapters 6 and  7, this includes Argentina, Bosnia and Herzegovina, Cambodia, East Timor, ­Estonia, Ethiopia, France and Senegal. Further, domestic courts have generally found that statutes of limitations will not bar prosecutions for crimes against humanity. In France, the issue was considered in Barbie and in Touvier. In France, a law was passed in 1964 which expressly states that crimes against humanity are imprescriptible.469 The French Cour de Cassation in Touvier upheld the prosecution even though the prior statute of limitation would have barred the prosecution.470 This conclusion was upheld by the European Commission on Human Rights.471 Similarly, the Italian Courte di Cassezione in Priebke rejected the applicability of statutes of limitations in respect of crimes against humanity based on the fact that crimes against humanity are jus cogens norms.472 In the Ferrini case, the Court relied upon the jus cogens nature of the norms as well as also upon certain international practice – namely, that of the icty, ictr and icc, the Limitations Convention and the European Convention on the Non-Applicability of Statutory Limitations to Crimes Against Humanity and War Crimes.473 Finally, the Latin American courts have probably gone the furthest of the domestic decisions, finding statutes of limitations to be incompatible with the human rights framework in place. The IACtHR in the Barrios Altos case found that statutes of limitations for serious human rights violations are contrary to the Inter-American Convention on Human Rights.474 And, in Argentina, the Supreme Court in the Simón case followed the IACtHR Barrios Altos Case in holding that forced disappearance (as a crime against humanity) was a jus 469 See Chapter 3, Section 4.4. 470 (France) Touvier, Cour de cassation (chambre criminelle), Bull., crim no 42 (6 February 1975), translated and reprinted in (1992) 100 ilr 338 (‘Touvier’). 471 (echr) Touvier v France (Decision), European Commission of Human Rights, App No 29420/95 (13 January 1997); see also (ECtHR) Papon v France (no 2) (Judgment), European Court of Human Rights, App No 54210/00 (15 November 2001); and Streletz, Kessler and Krenz v Germany (Judgment), European Court of Human Rights, App Nos 34044/96, 35532/97 and 44801/98 (22 March 2001) (‘Streletz et al. – Appeal’). 472 (Italy) In re Hass and Priebke (Judgment in Trial of Third Instance), Supreme Court of Cassation, Case No 1295 (16 November 1998) (‘Priebke – Third Instance’). 473 See Bassiouni, above n 291, 277, fn 591. 474 (IACtHR) Barrios Altos Case – Judgment, above n 385, [41].

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cogens norm and, as such, any limitation period was prohibited by international law.475 4.8.3 Conclusion In light of this practice, it may be safely stated that an international tribunal or a third party state, as in the case of a local law of amnesty, has the ability to ignore a local law of limitation when conducting an international or extraterritorial prosecution for crimes against humanity. When combined with the laws of countries in the common law tradition, it may be said that a consensus has emerged at the state level that, as a general rule, a statute of limitation ought not to bar a prosecution for crimes against humanity. As in the case of local amnesties, the existence of a blanket time bar, if ­applied to crimes against humanity by a territorial state, will probably be regarded by most international bodies as generally being incompatible with international law, particularly as part of the victim’s right to an effective remedy under any applicable human rights treaty. It remains more debatable whether this otherwise reflects a customary rule of international criminal law. There may be insufficient evidence of state practice to support a rule that, for example, a 25 or 30 year time bar is incompatible with an alleged customary law duty to prosecute for crimes against humanity. More clearly, there does not appear to be enough evidence to suggest that a state is in breach of an existing rule of international law if it applies a factor of time based on the individual case in question. The better view is that the ‘special’ quality of a ‘crime against humanity’ does not lie in the evil nature of the offence or the mass violation of human rights, but in the political circumstances of impunity which permitted or encouraged the offenders to commit their offences in the first place. Accordingly, it is difficult to argue that a different rule of prescription should exist for a crime against humanity compared with other serious human rights violations such as mass murder or rape as domestic offences. 4.9 Conclusion In the result, despite the contentions of some authors,476 the case for there being a general customary law duty on all states to seek out and prosecute perpetrators of crimes against humanity wherever committed is not strong. The evidence discussed above does suggest that current international law requires territorial states, absent bona fide grounds, to investigate allegations of crimes 475 (Argentina) Simón – Constitutionality, above n 388, Part vi. 476 See, for example, Van Steenberghe, above n 318.

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against humanity and then, depending upon the individual circumstances, prosecute and punish where appropriate, unless it chooses to extradite the offender.477 Two situations where this issue commonly arises are where a state grants a domestic amnesty or passes a statute of limitation for crimes against humanity. As discussed above, the better view appears to be that international law does not prohibit the granting of amnesties in certain circumstances. This would tend to suggest that there is no duty to prosecute such offences in all cases. Nonetheless, in 2005, after a report from Professor Bassiouni, the Commission on Human Rights resolved that, for ‘crimes under international law, states have the duty to investigate and, if there is sufficient evidence, the duty to submit to prosecution the person allegedly responsible for the violations and, if found guilty, the duty to punish her or him’.478 Some commentators, however, argue that it is going too far to say that there is an absolute duty to prosecute and that the relevant human rights bodies have misinterpreted the duty to provide an effective remedy by requiring a criminal prosecution.479

477 Robinson, above n 376, 491, 493–495; and Diane Orentlicher, ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’ (1991) 100(8) Yale Law Journal 2537, 2540. For a more sceptical view, see René Provost, International Human Rights and Humanitarian Law (Cambridge University Press: Cambridge, 2002) 110–115. See also Yasmin Naqvi, ‘Amnesty for War Crimes: Defining the Limits of International Recognition’ (2003) 85(851) International Review of the Red Cross 583; and Van der Wilt, above n 139, 1048. 478 (unhrc) Commission on Human Rights, Basic principles and guidelines on the right to a remedy and reparation for victims of gross violations of international human rights law and serious violations of international humanitarian law, Resolution 2005/35 (19 April 2005); see also (achpr) African Commission on Human Rights, Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or degrading Treatment or Punishment in Africa (14 February 2002) – Guideline 16 details the duty of states to ensure that there is no immunity from prosecution for nationals suspected of torture. 479 This is the conclusion of Michael Scharf: above n 360. The scope of the international legal obligations to prosecute human rights crimes is discussed in M. Cherif Bassiouni and Madeline H. Morris (eds), Accountability for International Crimes and Serious Violations of Fundamental Human Rights (Duke University School of Law: Durham, 1996); see also Scharf, above n 376. It is also the conclusion of Bruce Broomhall, who says ‘…there may be room for principled flexibility as long as the need for reparation and the dignity of victims is also recognised. It is possible that adequate acknowledgment, compensation and bona fide efforts at institutional reform might render acceptable a partial and nondiscriminatory failure to punish individuals through the criminal justice system’: above n 20, 99–100; see also Cryer, above n 18, 104–105.

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In practice, all states prosecute crimes selectively – issues such as limited resources, the gravity of the offence, the health of the accused, the effluxion of time and witness immunity, all lead to a prosecutorial discretion whether or not to proceed.480 Even in the practice of the international criminal tribunals, there has been a discretion applied. In respect of the ictr, spet and even the Security Council referral in Libya, it has been argued that the temporal jurisdiction was deliberately limited to ‘artificial and politically convenient’ periods.481 The Human Rights Committee has said that a ‘blanket amnesty’ for torture is ‘generally incompatible’ with a state’s obligations under international human rights law, which may leave room for the exercise of a bona fide discretion not to prosecute taking into account all the particular circumstances.482 In the result, as Cryer argues: …it is extremely unlikely that any duty could be deduced that required prosecution of every single international crime, but the precise principles upon which decisions on who should be prosecuted and for what are very unclear. This militates against any quick conclusion that there is as yet such a duty to prosecute in positive law.483 Any duty to prosecute or extradite is far less likely to fall on a third party state. As concluded by the ilc Special Rapporteur in 2008, the relationship between the obligation to extradite or prosecute and the exercise of universal jurisdiction 480 Ruti Teitel, Globalizing Transitional Justice (Oxford University Press: Oxford, 2000) 55. 481 Mark Drumbl, ‘Toward a Criminology of International Crime’, (2003) Washington & Lee Public Law Research Paper No. 03-07, 13, citing Jose Alvarez, ‘Crimes of States/Crimes of Hate: Lessons from Rwanda’ (1999) 24(2) Yale Journal of International Law 365, 397– 399. See also Mallinder, above n 349, 8; and Mark Kersten, ‘A Fatal Attraction? The un ­Security Council and the Relationship between R2P and the International Criminal Court’, accessed online at on 4 May 2013. 482 (unhrc) This is the language used by the Human Rights Committee in its interpretive comment on the duty to prevent torture in Article 7 of the iccpr: United Nations Human Rights Committee, General Comment No 20(44) (Art 7), un Doc. CCPR/C/21/Rev 1/Add 3 (7 April 1992), [15]. Similarly, thirty leading jurists and legal experts drafted The Princeton Principles on Universal Jurisdiction (see Macedo, above n 7, 18–25) where, at Principle 7(1), it says amnesties are ‘generally inconsistent’ with international law in respect of serious crimes; see also Juan E. Méndez, ‘The Human Right to Truth’ in Christopher Joyner (ed), Reining in Impunity for International Crimes and Serious Violations of Human Rights (Érès: Toulouse, 1998) 225, 261. 483 Cryer, above n 18, 109.

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remains ‘unresolved’.484 The conclusion of Judge Abraham in the icj, that no such customary law obligation exists on a third party state, likely is still the law. At most, there may be a possible duty on all states to deny a safe haven to perpetrators of crimes against humanity in the face of a bona fide request for extradition. Similarly, states may be under a duty to cooperate in good faith with another state’s criminal investigation of cases of crimes against humanity. Even this duty is problematic in light of the existence of the icc and other international tribunals. A third party state may only agree to extradite to an ­international tribunal and call on the territorial state to institute the request process under the icc or before the Security Council. As noted by the Special Rapporteur for the ilc, another unresolved question in relation to the obligation to extradite or prosecute arises in relation to the so-called ‘triple alternative’, namely, the third alternative to prosecuting or extraditing being surrendering an offender to an international criminal tribunal.485 According to the ilc, such a system has been implemented in Argentina, Uruguay, Panama and Peru.486 5

Conclusion

International criminal law, including crimes against humanity, has expanded greatly in the last twenty years and the alleged right to assert universal jurisdiction or the alleged duty to prosecute has expanded with it. This has placed the asserted principles at something of a crossroad. It risks, as in the case of Belgium and Spain, retreating rather than progressing under the weight of its own new found ubiquity. For example, a Pinochet style prosecution of Henry Kissinger or Donald Rumsfeld in Spain or Germany may be very fascinating for western lawyers but it is unlikely to do much for the advancement of human rights in the future where it is needed the most, such as in Africa where some countries are caught in endless civil wars. Such a prosecution may also weaken, not strengthen, the future direction of the law in the field. The starting point must be to accept that state courts are not well equipped to prosecute extraterritorially all the perpetrators of crimes against humanity, particularly when faced with state opposition to such prosecutions. The inability to rely on state courts was one of the primary reasons for the creation of international and hybrid tribunals. The mere existence of international rules about universal jurisdiction or a duty to prosecute will not change state 484 Third ilc Report on aut dedere aut judicare, above n 340, [127]. 485 Third ilc Report on aut dedere aut judicare, above n 340, [128]. 486 Third ilc Report on aut dedere aut judicare, above n 340, [129]–[130].

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practice. As Hermann von Hebel explains: ‘The apparent contradiction between the norms and non-observances of these norms shows the need for better methods of enforcement.’487 Schwarzenberger once argued that the United Kingdom was able to achieve a great deal in outlawing the slave trade in the nineteenth century, through a variety of measures, without ever suggesting that existing international law actually prohibited the practice.488 More than this, however, there is an issue of legitimacy. If the basis upon which such assertions of jurisdiction and duty are made is that states are acting as agents of the international community, it is important that states do indeed act with the support of the broad international community rather than unilaterally. For example, it would be wrong to ignore the strongly held views of countries in Africa and elsewhere which resent the attempts by western countries to assert their criminal jurisdiction outside their territory. The international community should continue to consider new and flexible mechanisms or rules to actually encourage future prosecutions of perpetrators of crimes against humanity before both state courts and internationalised bodies. 487 Herman von Hebel, ‘The International Criminal Court – A Historical Perspective’ in Herman von Hebel, Johan G Lammers and Jolien Schukking (eds), Reflections on the International Criminal Court: Essays in Honour of Adrian Bos (Kluwer International Press: The Hague, 1999) 13, 14. 488 Georg Schwarzenberger, ‘The Problem of an International Criminal Law’ in Gerhard Mueller and Edward M. Wise (eds), International Criminal Law (Sweet & Maxwell: New York, 1965) 3.

Chapter 12

Conclusion It is often said that mankind needs a faith if the world is to be improved. In fact, unless the faith is vigilantly and regularly checked by a sense of man’s fallibility, it is likely to make the world worse.1

∵ 1 Introduction The label, a ‘crime against humanity’, has been used by commentators, but less frequently by states, to describe a vast array of different human rights abuses, including terrorist attacks, policies of assimilation and the destruction of the social safety net.2 It appears sometimes that the term can be used to describe anything which outrages us. Part of the difficulty is that ‘crimes against humanity’ as defined in Article 7 of the icc Statute or the statutes of the International Criminal Tribunal for the former Yugoslavia (icty) and the International Criminal Tribunal for Rwanda (ictr) contains loose concepts that are susceptible to a range of interpretations and are readily applicable to a range of circumstances. For example, the meaning of concepts such as a ‘widespread or systematic attack directed against any civilian population’ and a ‘State or organizational policy to commit such attack’ are far from clear in international law. Whilst the ad hoc Tribunals have made substantial progress in elucidating principles that guide the crime’s meaning, those pronouncements are in the context of their own statutory definitions and factual situations and form only one part of a larger body of sources from which the law is to be drawn. There is the Nuremberg Charter, the Tokyo Charter and Allied Control Council Law No. 10, the Jurisprudence and origin, the many hybrid tribunals such as Sierra Leone, East Timor, Kosovo and Cambodia, as well as states’ own legislation and jurisprudence and sources such as the International Law Commission. 1 David Cecil, Library Looking-Glass: A Personal Anthology (1975). 2 Richard Vernon, ‘What Is a Crime Against Humanity?’ (2002) 10 Journal of Political Philosophy 231 at 249.

© koninklijke brill nv, leiden, ���8 | doi 10.1163/9789004347687_013

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It remains a complex and difficult exercise to identify with precision the ‘correct meaning’ of ‘crimes against humanity’ under international law. One has a sense that the concept of ‘crimes against humanity’ cannot, and should not, be reduced to just a dry exercise of construing international law. There is a desire to uncover the essence of the concept, to state why it is that ‘crimes against humanity’ are important and to identify what the concept aims to protect. ‘Crimes against humanity’ must be something more than just the sum of the definitions in treaties, such as Article 7 of the icc Statute. This text has sought to address this issue; to explore: whether there is some overarching theory of crimes against humanity? What is distinctive about crimes against humanity? and How are they different from other kinds of evil conduct such as ordinary domestic crimes or human rights abuses? The answer is not to be found merely in a literal reading of the text of Article 7. Nor is the answer to be found in using so-called ‘purposive’ reasoning based on notions such as human rights and human dignity3 to expand the definition of crimes against humanity to address as many wrongs as possible. Without understanding the history and raison d’être of crimes against humanity, such an approach is unhelpful. It does not identify in what way crimes against humanity seeks to protect and preserve human rights. The authors suggest that what is needed is an historical review of crimes against humanity – dating back from antiquity through to the present day – to understand the context in which crimes against humanity has arisen, the legal constraints upon their operation and to isolate what it is that defines a crime against humanity and its role in the international legal order. 2

An Historical Approach to Crimes against Humanity

One trend in the discussion of crimes against humanity has been to focus solely on the fact that the crime seeks to protect the victims of atrocities and to punish the perpetrators. Another trend has been to seek to distance the modern definition from Nuremberg based on the view that such a definition was historical only, is outdated and ‘shackles’ the modern definition of crimes against humanity. What a historical view of crimes against humanity reveals, 3 See, for example: (icty) Prosecutor v Furundžija (Appeals Chamber Judgment), Case No IT95-17/1-A (21 July 2000) (‘Furundžija – Appeal’), [184]; Prosecutor v Delalić et al. (Trial Chamber Judgment), Case No IT-96-21-T (16 November 1998) (‘Čelebići – Trial’), [170]; and Prosecutor v Tadić (Appeals Chamber Judgment), Case No IT-94-1-A (15 July 1999) (‘Tadić – Appeal’), [119].

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however, is that to adopt such an approach is to see only one side of a more complex equation. Crimes against humanity is not simply a crime. The ‘chapeau element’ came to replace the war nexus as the jurisdictional threshold or the so-called ‘international element’ that distinguished crimes against humanity from domestic crimes and meant that international institutions could intervene. It is a permissive rule of international criminal jurisdiction which allows the international­ community – by way of the Security Council or potentially the icc – to exercise criminal jurisdiction and stand in judgment over crimes committed by that state against its own nationals even where the state does not consent. It is not only the protection of victims that has been central to discussions on crimes against humanity, but also concerns about state sovereignty and international intervention. From the moment Grotius in the seventeenth century, asserted a right of foreign states to prosecute for crimes against the law of nations, objection has been made against the concept of crimes against humanity on the ground that it may lead to pretextual and unjustified interference in the affairs of other states.4 At Nuremberg, crimes against humanity was thrust into the realm of international law to justify the Allies’ assertion of jurisdiction over the crimes committed by defeated German authorities against its own people. And, a long history of rules from Charles i to Slobodan Milošević to Hissène Habré has refused to recognise the authority of a court to try them for their atrocity crimes. Trials for crimes against humanity are necessarily associated with both foreign intervention and the leaders of the losing state ending up in the dock. Before Nuremberg, the notion of a crime against humanity was best conceptualised as being founded – philosophically and historically – in the concept of humanitarian intervention and the idea that there are certain values which are both universal to the human condition and ultimately superior to the state and any of its laws such that intervention was justified.5 After Nuremberg, that changed. While the crime was crystallised into a norm of customary international law, the Allies rejected the conceptual foundation of humanitarian intervention and instead limited the ambit of crimes against humanity to crimes committed pursuant to an aggressive war waged by Axis powers.6 As de Vabres, the French judge at Nuremberg wrote, ‘[t]he theory of “crimes against humanity” is dangerous: …dangerous for the States because it offers a pretext

4 See Chapter 1. 5 See Chapter 1. 6 See Chapter 2.

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to intervention by a State in the internal affairs of weaker States’.7 The Allies had firmly in mind the concern that Hitler himself had invoked the doctrine of humanitarian intervention to justify his invasion of Czechoslovakia and they were concerned that states may use the assertion of crimes against humanity to unduly and inappropriately interfere in the affairs of other states (including themselves). The result was that crimes against humanity was severed from its origin in humanitarian intervention and its future application was stifled by the requirement that it was only able to be prosecuted when committed in connection with an act of aggression. Despite being an ad hoc (and perhaps even unprincipled) requirement, the war nexus was a very deliberate limit on what would otherwise have been an incredibly broad principle of international jurisdiction over the ordinary crimes committed by citizens of foreign states within the territory of that foreign state.8 As Justice Jackson stated at the London Conference:9 [O]rdinarily we do not consider that the acts of a government towards its own citizens warrant our interference. We have some regrettable circumstances at times in our country in which minorities are unfairly treated. We think it is justifiable that we interfere or attempt to bring retribution to individuals or to states only because the concentration camps and the deportations were in pursuance of a common plan or enterprise of making an unjust or illegal war in which we became involved. We see no other basis on which we are justified in reaching the atrocities which were committed inside Germany, under German law, or even in violation of German law, by authorities of the German state. It should not be forgotten that the Nuremberg precedent emerged at around the same time as the un Charter, which enacted strong provisions prohibiting the use of force and enshrining the principle of non-intervention in the purely domestic affairs of other states.10 Aside from self-defence, the critical exception to these prohibitions concerned action authorised by the un ­Security 7 8 9

10

Renaud Donnedieu de Vabres, ‘Le Jugement de Nuremberg et le principe de légalité des délits et des peines’ (1946–47) 27 Revue de droit pénal et de criminologie 811, 833. See Chapter 2, Sections 2.3, 4.3 and 8. Report of Robert H Jackson, United States Representative to the International Conference on Military Trials: London, 1945, Department of State Publication 3080 (Government Printing Office: Washington dc, 1949) 333. Charter of the United Nations (‘un Charter’), Arts 2(4) and (7).

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Council under Chapter vii of the un Charter in circumstances where there is considered to be a ‘threat to peace, breach of the peace or act of aggression’ such that measures would be justified to ‘maintain or restore international peace and security’.11 Between Nuremberg and the 1990s, the international community grappled with how the law of crimes against humanity could be modernised and its application expanded outside the limited context of an international armed ­conflict.12 It is often forgotten that, throughout this period, the potential definitions varied significantly and no clear consensus was reached upon a suitable replacement for the war nexus. It was not until the 1990s, with the drafting of the icty and ictr Statutes and the establishment of those ad hoc tribunals by the un Security Council that the ‘widespread and/or systematic attack against a civilian population’ formulation started to crystallise as the candidate most worthy of states’ consideration as a replacement for the war nexus.13 At the same time as this debate as to crimes against humanity was occurring, the un Security was also coming to terms with the way in which it exercised its powers and the circumstances in which it considered its intervention appropriate, i.e., deemed there to be threats to international peace and security warranting intervention. Most significantly, between 1991 and 1998, there was a reinterpretation of the notion of ‘threats to international peace’ by the Security Council so that it could encompass an atrocity purely internal to one state.14 An international consensus emerged that an internal atrocity of sufficient scale and seriousness and of a particular quality will amount to a threat to international peace under Chapter vii of the un Charter. In deciding when intervention was required or appropriate, the Security Council was required to conduct a similar balancing exercise to crimes against humanity – namely, to protect both the principles of state sovereignty and non-intervention as well as to prevent the occurrence of large-scale atrocities. It was in this context that, in 1993 and 1994, the Security Council adopted the test of a ‘widespread or systematic attack against any civilian population’ as central to establish a crime against humanity in times of peace in the context of the icty and ictr Statutes. Viewed in its historical context, this test was intended serve as a replacement to the war nexus, that would set out the circumstances in which intervention by way of the establishment of i­nternational jurisdiction over crimes against humanity was warranted in times of peace.

11 12 13 14

For example, un Charter, Arts 39–42. See Chapter 3. See Chapter 4, particularly Section 2. See more detailed discussion of this in Chapter 8, Section 2.

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At the Rome Conference, the representatives of the international community considered this definition in the context of the world’s first permanent international criminal court. The same questions arose as had arisen at Nuremberg – how could the application of the crime be extended beyond Nuremberg while at the same time provide states with appropriate protection from undue intervention from foreign states? The result of the icc Statute was that the ambit of prosecution for crimes against humanity was again limited in the interests of striking a balance between the protection of victims and the protecting state sovereignty. While the icc Statute was enacted and the icc created, the icc itself was constrained in important ways. Rather than endorsing a model of universal jurisdiction, bringing a matter before the Court requires either a state’s consent to be bound by the icc Statute or a un Security Council resolution. Even then, a case will not proceed unless it is of a certain gravity and the relevant state is unwilling or unable to prosecute. Further, the definition of crimes against humanity was itself consciously limited by the states involved. The term ‘attack’ was defined to mean ‘a course of conduct involving one or more acts of a kind referred to in Article 7(1)’ to emphasise that a certain scale was required and the attack was required to be committed pursuant to a ‘State or organizational policy’. To understand just how invasive states considered the potential exercise of international jurisdiction over their nationals to be, it is necessary only to look at the reluctance of states to sign up to the icc Statute, or the way in which states have addressed the issues involved with prosecuting crimes against humanity, such as: universal jurisdiction, immunities, the obligation to extradite or prosecute and the legality of amnesties.15 The criticism which states such as Spain and Belgium have attracted for their broad exercise of universal jurisdiction is indicative of the way in which states view the exercise of jurisdiction over their nationals.16 Most notoriously, us Defence Secretary Donald Rumsfeld threatened to move nato’s headquarters out of Brussels unless the Belgian law was rescinded.17 Accordingly, the modern definition of crimes against humanity can be seen as the mechanism by which – like the war nexus at Nuremberg and like ‘threats to international peace’ in the un Charter – a balance is effected between the 15 16

17

See Chapter 11. See Chapter 7, Section 3.1 (regarding Belgium), and 3.5 (regarding Spain). Similar concerns have also arisen in the us in the context of its equivalent broad-reaching civil statute: see Chapter 7, Section 2.5. David Luban, ‘A Theory of Crimes Against Humanity’ (2004) 29 Yale Journal of International Law 85, 148.

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i­nterests of state sovereignty and human rights. It requires that the crime reaches such a level of international concern as to warrant international intervention by way of the establishment of international criminal jurisdiction over persons in respect of crimes in peacetime. With that historical background and function in mind, consideration may be given to how that balance is to be effected by the concept of ‘crimes against humanity’. 3

The ‘Humanity’ Principle

There are various theories about the concept of crimes against humanity which focus on there being an attack against ‘humanity’. There are number of competing ideas and these can be grouped into four schools of thought. First, there is the view that the essence of the crime is that there has been an affront to the victim’s humanity, meaning that quality which we all share and which makes us human. The offence’s defining feature under this theory is the value they injure, namely human-ness. It is an international crime because this universal value is attacked. De Menthon, the French prosecutor at Nuremberg, supported this view, saying the offences are ‘crimes against the human status’.18 Egon Schwelb’s influential early account of Nuremberg also thought humanity was likely being used as a synonym for ‘humaneness’.19 This theory is grounded in natural law notions of universal right and wrong. Apart from the obvious problem of vagueness, the core problem with this theory is that it ‘seems at once too weak and too undiscriminating’.20 It would cover, for example, any and all cases of murder, rape or serious assault. Secondly, to counter the unwieldy breadth of this theory of crimes against humanity, there is a further school of thought which suggests that the essence of the offence is that the victim is selected by virtue of belonging to a ‘persecuted group’. The defining feature of the offence is that the crimes take place ­pursuant to a policy of persecution. Hence, isolated or random acts are excluded. According to Hannah Arendt, the value which is being protected is that of human diversity, without which the very words ‘mankind’ or ‘humanity’

18 19 20

Quoted in Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (rev ed, 1965) 257. Egon Schwelb, ‘Crimes Against Humanity’ (1946) 23 British Year Book of International Law 178, 178 and 195 (although he also refers to humanity as meaning the whole of mankind). Richard Vernon, ‘What Is a Crime Against Humanity?’ (2002) 10 Journal of Political Philosophy 231, 237.

Conclusion

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would be devoid of meaning.21 An attack upon the Jews in Europe is a crime against humanity because ‘mankind in its entirety’ is ‘grievously hurt and endangered’.22 If left unpunished then ‘no people on earth’ can feel sure of their continued existence.23 The main problem with this theory of crimes against humanity is that it is too discriminating and too limiting. It does not address any attack on ‘humanity’, but only those motivated by racial or other prejudices. It has the further difficulty that, while having been included in various formulations of crimes against humanity up to the 1990s and specifically included in the definition of crimes against humanity in the statute of the ictr, state practice supporting such a restriction is limited. The wane of the need for a discriminatory motive has led to a revised version of this second school of thought. This has involved an expansion of the notion of a ‘persecuted group’. According to David Luban, the crime’s defining aspect is that victims are targeted by a ‘political organization’ based on their membership of a group or ‘population’ rather than any individual characteristic.24 Here, ‘population’, as confirmed in the case law of the ad hoc Tribunals,25 simply means either a group whose features mark it out for persecution or simply any collection of people who may inhabit some geographic area under the control of a political organisation. Therefore, ‘crimes against humanity assault one particular aspect of human being, namely our character as political animals’.26 We have a universal need to live socially, but because we cannot live without politics, we exist under the permanent threat that ‘politics will turn cancerous’.27 The essence of the offence, based on this theory, is that there is an organised or systematic attack by one ‘group’ on another ‘group’. Luban argues that if the attack is ‘directed’ against such a body, rather than the personal attributes of the individuals, there is no need for a large body of victims, or indeed, more 21 22 23 24

25 26 27

Arendt, above n 18, 268–269. See also Vernon, above n 20, 240 where the author addresses this view. Vernon, above n 20, 262–263, 273 and 276. Vernon, above n 20, 262–263, 273 and 276; and Hannah Arendt, The Human Condition (1958) 1–3, 50–51. Luban, above n 17, 103–104. This is also the view of Richard Vernon who states: ‘It relates on the one hand to the necessary institutional prerequisites of an organised project, and on the other to damage suffered by individuals only by virtue of belonging to a group’: above n 20, 245. See discussion in Chapter 9, Section 5. Luban, above n 17, 90. Luban, above n 17, 90.

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than one victim. Luban’s reasoning, however, is too subtle and does not convincingly explain our instinctive reaction to the evil that accompanies a ‘crime against humanity’. When rebel forces in 1999 attacked Freetown in Sierra Leone, leading to the indiscriminate abduction of thousands of children so that they could become child soldiers or sex slaves,28 it just does not capture the essence of the atrocity to say that it was an attack against ‘our character as political animals’. Further complications arise with the related notion that a crime against humanity cannot be committed where individuals are targeted on the basis of their individual attributes. An oft-cited passage from the icty Trial Chamber judgment in Limaj provides that ‘the targeting of a select group of civilians – for the example, the targeted killing of a number of political opponents’ cannot constitute a crime against humanity.29 This decision requires important qualification and, fundamentally, hinges on the proper interpretation to be given to the word ‘population’.30 It seems incongruous to say that a deliberate decision by a head of state to kill, say, 200 dissidents selected by reason of their unique leadership qualities is not a crime against humanity because they do not form a ‘population’, but a totally indiscriminate attack on a small village for purposes unrelated to the inhabitants’ individual characteristics and which also leaves 200 dead is a crime against humanity. Thirdly, there is the school of thought which focuses not just on the victim’s humanity, but on the need for an ‘added dimension of cruelty and barbarism’ to be displayed by the perpetrator. This locates the essence of the crime in the added degree of heinousness involved in participating in such an attack, as opposed to an ordinary criminal act. This leads to difficult issues of proof for the prosecution, as occurred in the Canadian case of Finta,31 which adopted this test and was heavily criticised at the time for that reason.32 Such a theory is still too indiscriminate because, as has been observed, such a notion could just as easily cover cruel treatment of animals or child abuse.33 Under Article 7 of the icc Statute, there is the special mens rea of knowing involvement in a ‘widespread or systematic attack’. Sources up to the Rome 28 (scsl) Prosecutor v Brima, Kamara and Kanu (Trial Chamber ii Judgment), Case No SCSL-04-16-T (20 June 2007), [253]. 29 (icty) Prosecutor v Limaj, Bala and Musliu (Trial Chamber Judgment), Case No IT-03-66-T (30 November 2005) (‘Limaj – Trial’), [187]. 30 See Chapter 9, Section 5.1.3 for the discussion of this issue. 31 (Canada) Regina v Finta [1994] 1 scr 701. See Chapter 3, Section 4.3. 32 Judith Bello and Irwin Cotler, ‘Regina v Finta’ (1996) 90(3) American Journal of International Law 460. 33 Vernon, above n 20, 237.

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Conference of 1998 were far from clear on the issue.34 Whilst the Statutes of the icty and the ictr were silent on the matter, Finta was followed by the icty Trial Chamber in Tadić without analysis, probably because an alibi defence was raised rather than any question of intent.35 The special mens rea requirement was then incorporated into Article 7 as few States pushed for an offence less onerous than that set out in the Tadić Trial Judgment.36 Justice Cory in Finta stated that there needed to be a special mens rea because:37 [t]he degree of moral turpitude that attaches to crimes against humanity and war crimes must exceed that of the domestic offences of manslaughter and robbery. It follows that the accused must be aware of the conditions which render his or her actions more blameworthy than the domestic offence. This rationale has been repeated by Robinson (who was part of the Canadian delegation at the Rome Conference),38 other scholars,39 the Appeals Chamber in Tadić40 and the Peruvian Supreme Court in Fujimori.41 It is not entirely persuasive to argue that the moral culpability of the ­perpetrator of crimes against humanity is, or ought to be, greater than that for perpetrators of domestic crimes. If one considers the many diverse defendants that have been charged with crimes against humanity, they have not all been high ranking state officials. The 17-year-old Nazi recruit or the villager who joins a militia in East Timor does not necessarily act in a more ‘heinous’ manner than the ordinary rapist or murderer. It is not correct to say that 34

Many post-Second World War decisions did not require or deal with any special mens rea: see Chapter 3. 35 (icty) Tadić – Appeal, above n 3, [271]. 36 For a discussion of the role of the Tadić decisions at the Rome Conference, see Chapter 4, Section 5. 37 (Canada) Regina v Finta, above n 31, 820. 38 Darryl Robinson, ‘Defining “Crimes Against Humanity” at the Rome Conference’ (1999) 93(1) American Journal of International Law 43, 52. 39 M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law (2nd rev. ed., Kluwer Law International: The Hague, 1999), 243; Arendt, above n 18, 272; Leila SadatWexler, ‘The Interpretation of the Nuremberg Principles by the French Court of Correction: From Touvier to Barbie and Back Again’ (1994) 32 Columbia Journal of Transnational Law 289, 358. 40 (icty) Tadić – Appeal, above n 3. 41 (Peru) Alberto Fujimori (Special Criminal Chamber Decision), Supreme Court of Peru, Case No AV-19-2001 (7 April 2009) (‘Fujimori – Trial’), [714].

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a person convicted of, say, murder, as a crime against humanity deserves significantly greater punishment than one convicted of the domestic crime of murder (albeit there may be some level of greater culpability in knowing that their actions further a larger scale atrocity). As Richard Vernon puts it:42 We cannot suppose that the most inhumane results (however measured) reflect the most subjectively measured inhumanity. There is no reason why a middle-level administrator of genocide must be more “inhumane” than, say, a serial rapist, or even a sadistic teacher. It is the special political circumstances which bring forth crimes against humanity, not the heinousness of the acts themselves. For example, until Milošević fermented a culture of hate, Tadić, the ordinary café owner, may never have taken to torturing his fellow Bosnians. It is more convincing to regard any threshold test as needing to look to these broader political circumstances of crimes against humanity rather than merely describing a special type of evil conduct as displayed by the perpetrator. Fourthly, and most persuasively, there is the theory or school of thought that puts forward as the defining aspect of the crime that of scale and seriousness. A crime against humanity must ‘shock the conscience of humanity’ which, as understood in the doctrine of humanitarian intervention, primarily does so because of its magnitude and gravity. It is set apart from ordinary inhumanities by its grossness. An attack of sufficient ferocity, seriousness and scale means the domestic legal order is left behind and it is the international community as a whole which is being threatened. A single murder may be a domestic crime but when there is an attack involving a thousand murders an ‘international’ crime arises. This is the theory put forward in a number of cases such as Eichmann43 and the Justice Case.44 If the focus is on the extent of the harm done to victims, not the level of wrongdoing displayed by the perpetrator, then the concept of scale in this fourth school of thought begins to have some traction. The Preamble to the icc Statute speaks of the need to respond to ‘unimaginable’ atrocities.

42 Vernon, above n 20, 238. 43 (Israel) Attorney-General v Adolph Eichmann, Supreme Court of Israel, Criminal Appeal 336/61 (29 May 1962), 304. 44 (Nuremberg) United States v Altstötter et al. (1947) 3 Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No 10, 954 (us Government Printing Office: Washington dc, 1950), 982.

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It is impossible to think that the authors did not have in mind large-scale crimes as judged by their effect on victims. This view, properly, raises the important question of whether a minimum level of scale and seriousness is required for a crime against humanity. Many commentators reject the notion that there must be a minimum number of victims before an international interest is warranted. Luban, for example has argued as follows:45 To assert that only large-scale horrors warrant international interest reverts to the very fetishism of state sovereignty that the Nuremberg Charter rightly rejected. The assertion implies that small-scale, governmentinflicted atrocities remain the business of national sovereigns – that a government whose agents, attacking a small community as a matter of deliberate policy, forcibly impregnate only one woman, or compel only one father to witness the torture of his child, retains its right to be left alone. These are profoundly cynical conclusions, and it will do no credit to the Rome Statute if the icc accedes to them by interpreting the requirement of multiple acts to mean many acts. Fortunately, “multiple” might be read to mean as few as two, in which case the damage the multiple act requirement inflicts need not be severe…. Any body-count requirement threatens to debase the idea of international human rights and draw us into what I once called “charnel house casuistry” – legalistic arguments about how many victims it takes to make a “population”. This view is popular among human rights organisations as well as those minded towards using so-called ‘purposive’ reasoning based on notions such as human dignity46 to interpret the ambit of crimes against humanity. But such a result would make the test for crimes against humanity too undemanding and too undiscriminating. It would extend the notion of a crime against humanity not only to the acts of Al-Qaeda, the Red Brigade, the Baader-Meinhof gang, the ira, the Ulster Volunteer Force, but also to any two crimes of say the Ku Klux Klan, the Mafia ‘and for that matter – why not? – the Hell’s Angels’.47 On this logic, the assassination of a single political figure may amount to a ‘crime against humanity’ on the basis that it is intended to threaten a ‘civilian 45 46 47

Luban, above n 17, 107–108. See, for example, (icty) Furundžija – Appeal, above n 3, [184]; Čelebići – Trial, above n 3, [170]; and Tadić – Appeal, above n 3, [119]. William Schabas ‘Punishment of Non-State Actors in Non-International Armed Conflict’ (2003) 26 Fordham International Law Journal 907, 929.

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population’. Ratner and Abrams speculate that the killing of Hungarian leader Imre Nagy in 1956 by the Soviet authorities, may suffice as a crime against humanity if it is intended to threaten the entire ‘civilian population’.48 Similarly, the assassination of Magistrates Falcone and Borsellino by the Sicilian mafia in 1992 or the imprisonment of Aung San Suu Kyi by the Burmese military could also suffice. The problem with this is that, at the end of the day, scale and seriousness do matter when it comes to the concept of crimes against humanity. There are two clear and principled answers to Luban’s complaint that a requirement of scale debases the idea of international human rights. First, as has been contended in this text, when a comprehensive analysis of state practice and opinio juris is conducted, the better conclusion is that customary international law requires a minimum level of scale and seriousness.49 Accordingly, to not apply such a minimum standard risks breaching the fundamental rights of persons accused of committing crimes. In doing so, it risks undermining the legitimacy and credibility of the institutions that enforce international criminal law, such as the icc. Secondly, and more philosophically, as argued in this text, the requirement of scale serves a purpose beyond merely describing an element of the offence. It is only if scale is seen as no more than an element of the crime itself that one reaches, as Simon Chesterman has written, ‘the gruesome calculus of establishing a minimum number of victims necessary to make an attack “widespread”’.50 Rather, as noted above, crimes against humanity is not simply a crime but a permissive rule of international criminal jurisdiction that permits intrusion on state sovereignty and intervention in the affairs of other states. As concerned the Allies at Nuremberg, it is this result that provides the great potential for crimes against humanity to serve as a potent and powerful mechanism to hold unscrupulous states and individuals to account for atrocities. But it also this feature that is invasive of state sovereignty and has served to dissuade states from endorsing crimes against humanity in an unconstrained form. The Security Council and the icc, like all international institutions, are creatures of diplomacy and statecraft, not of humanity. It is naïve to think they will be above politicking or will not have agendas and biases. Slobodan Milošević’s 48

49 50

Steven Ratner and Jason Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (2nd ed, Oxford University Press: Oxford, 2001) 61. See Chapter 8, Section 3. Simon Chesterman, ‘An Altogether Different Order: Defining the Elements of Crimes Against Humanity’ (2000) 10 Duke Journal of Comparative and International Law 307, 315.

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accusation against the icty that the ‘trial’s aim is to produce false justification for the war crimes of North Atlantic Treaty Organization (nato) committed in Yugoslavia’ are not absurd.51 Nearly all international trials are political affairs, the trial and hanging of Saddam Hussein in the Iraqi High Tribunal is one end of the spectrum. As Schwarzenberger put it, Nuremberg’s legacy is that ‘still tighter ropes’ can be ‘drawn in advance round the necks of the losers of any other world war’.52 The decision by the icty Prosecutor not to prosecute nato leaders for their role in certain bombing raids in Serbia strikes one as another political decision.53 The decision by the Extraordinary Chambers in the Courts of Cambodia to prosecute only a very small number of Khmer Rouge offenders is yet another.54 One cannot assume merely because a body is international that it will be fair and impartial. Similarly, one cannot assume simply because the icc Statute ‘guarantees’ defendants a right to a fair trial that either the prosecutor or the judges may not ‘stretch’ the bounds of existing international law to pursue what some states may regard as selective, politically motivated prosecutions or charges. It was the Union of Soviet Socialist Republics (ussr), with its history of show trials, that was favoured by the United States’ for a trial of Nazi leaders. It was Churchill who opposed such a course because he feared that such a trial would inevitably become a political affair. It is ironic that America today fears that the icc’s jurisdiction over its nationals may result in politicized prosecutions. But that fear is real and valid. The high threshold test in the definition of a crime against humanity, including the requirement of scale and seriousness, exists to answer such ­scepticism. It exists not only to shock the conscience of the international community, but also to make it more difficult for there to be political, biased or simply misguided prosecutions against government officials or military interventions by 51 (icty) Prosecutor v Slobodan Milošević, Case No IT-98-37, Transcript at 2 (1998), quoted in Michael Mandel, ‘Politics and Human Rights in International Criminal Law: our case against nato and the Lessons to be Learned from it’ (2001) 25 Fordham International Law Journal 95, 97. 52 Georg Schwarzenberger, ‘The Problem of an International Criminal Law’ in Gerhard Mueller and Edward M. Wise (eds), International Criminal Law (Sweet & Maxwell: New York, 1965) 3, 31. 53 Mandel, above n 51, 95–96 (in May 1999, a group of lawyers filed a war crimes complaint against 68 leaders of nato including all the Heads of Government. Amnesty International in its report concluded that nato had been guilty of war crimes but the icty Prosecutor, Carla Del Ponte in June 2000 announced that nato was not guilty of war crimes and declined to open an investigation). 54 See discussion in Chapter 5, Section 3.3.

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the Security Council. The same function is served to prevent misguided interference by the icc and states exercising or purporting to exercise universal jurisdiction. If an atrocity in question is both manifest and widespread, then the potential harm that may be caused to suspects, or peaceful relations between states, is outweighed by the far greater evil that may occur if no attempt is made to stop and prosecute those involved. But when is this minimum level of scale and seriousness met? There is no ‘body count’ fixed for all time like an element of the crime itself. Rather, that assessment must be made, like all other elements of the crime, on the basis of the state practice and opinio juris of crimes against humanity. At least while the jurisprudence is relatively nascent, the practice of the un Security Council in intervening under Chapter vii in purely internal atrocities may also provide a useful yardstick (albeit one to be used cautiously with due appreciation of the different contexts in which they arise). A detailed consideration is undertaken and a final conclusion offered in Chapter 8 of this text.55 4

The Impunity Principle

While a minimum level of scale and seriousness is necessary to constitute a crime against humanity, it is not sufficient. When a serial murderer kills a number of people (even if targeted on discriminatory grounds), it is not condemned as a crime against humanity.56 Similarly, the practice of the international community has been to draw a distinction between ‘mere’ acts of terrorism by terrorist organisations unconnected with a state and crimes against humanity.57 Something more is needed. There must be some reason why the international community should step in, so as to ensure that the perpetrators of the relevant crimes are not likely to go unpunished (referred to in this text as the ‘impunity principle’). This reason is found where the de jure or de facto power ordinarily responsible for bringing such perpetrators to justice are implicated to some extent in the offending, such that the offending have impunity from their actions.

55 56

57

See Chapter 8, Section 3.2. For example, Anders Breivik killing 67 members of a Worker’s Youth League summer camp: see Mark Lewis and Sarah Lyall, ‘Norway Mass Killer Gets the Maximum: 21 Years’, New York Times (24 August 2012), accessed online at on 16 October 2017. See Chapter 8, Section 4.6.

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The impunity principle has a lengthy pedigree. The principle has been a constant in the concept of a crime against humanity since the antiquities.58 St Augustine, basing himself upon the practice of plebeian resistance to senatorial decrees, suggested there was a right of humanity to respond to ‘abominable’ state acts.59 It was also inherent in the doctrine of humanitarian intervention. After Nuremberg, all of the main scholars writing at the time wrote that the defining aspect of a crime against humanity is that the perpetrators enjoy de facto or de jure immunity because their acts are linked to the policy of a bandit state which promotes or tolerates such crimes.60 The statement of Justice Jackson has already been referred to. Similarly, the us Military Tribunal in Einsatzgruppen declared that:61 Crimes against humanity … can only come within the purview of this basic code of humanity because the state involved, owing to indifference,­ impotency or complicity, has been unable or has refused to halt the crimes and punish the criminals. Whenever there is a manifest failure by a state to deal with large-scale crimes, the desire naturally arises to create an alternative mechanism for trying the perpetrators. This can only occur by creating a court outside the state concerned and investing it with extraterritorial or international jurisdiction. This is necessary, not because state-backed criminal conduct is more reprehensible than a large-scale ‘ordinary’ domestic crime, but because the latter takes place in a jurisdictional vacuum. State complicity or indifference towards an atrocity threatens world peace because the perpetrators enjoy or are likely to enjoy impunity. It is this ‘policy element’, rather than some technical notion of an attack on a ‘population’, which converts a large-scale criminal enterprise into both a crime against humanity and a threat to international peace. Consider Saddam Hussein’s attack on the small village of Al-Dujail.62 It was carried out on the express orders of the head of state. The state’s military, with helicopter gunships, attacked a defenceless village. Such gross misuse of state power strikes at the core of the crime’s rationale. This is captured by the remark of the unwcc that an attack is a crime against humanity ‘particularly if it 58 59

See Chapter 1. Saint Augustine, The City of God, transl. David Knowles (Penguin: Harmondsworth, 1972) 180. 60 See Chapter 2 and Chapter 3, Section 5.4. 61 (Nuremberg) United States v Otto Ohlendorf et al. 4 ccl 10 Trials 411 (1950), 498: see also Chapter 3, Section 2.2.3. 62 See Chapter 5, Section 3.5.3(a).

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was authoritative’.63 The same impunity issue arises where the territorial state acquiesces, tolerates or supports militia groups, such as the ‘Jokers’ or Arkan’s Tigers in Bosnia, the Interhamwe in Rwanda, militias in East Timor in 1999 or the Janjaweed in the Sudan. No such impunity issue arises in the case of a serial killer, criminal gangs or even terrorist organisations in circumstances where the territorial state is willing to punish the perpetrators of any relevant atrocity. It is this purpose that is served by the so-called ‘policy element’. At Nuremberg, Article 6(c) of the London Charter contained no explicit requirement that there be a state policy, but the authors contend that the better view is that such a requirement was in fact implicit.64 The policy element has now been explicitly adopted in Article 7 of the icc Statute in requiring that the attack be pursuant to a ‘State or organizational policy’. And while the requirement of a policy element under customary international law has been largely rejected by the international and internationalised tribunals following the decision of the icty Appeals Chamber in Kunarac,65 it has been contended in this text that the reasoning in the decision does not adequately sustain that view.66 Ultimately, it is contended in this text that the better view is that the attack must be committed pursuant to a policy – being a policy in a loose sense that it includes tolerance or acquiescence – of a state or such other non-state entity that has such a level of de facto control of people, resources or territory as to amount to a ‘state-like’ entity.67 Such a conclusion is consistent with the impunity principle discussed above. Such a conclusion is also supported by a careful analysis of the decisions of the international and internationalised tribunals, an analysis of state practice since the Rome Conference in 1998 and an understanding of the situations in which the un Security Council has intervened in purely internal atrocities. Non-state entities can also satisfy this definition depending on the extent to which they have sufficient control over territory, resources or people such that they sufficiently threaten the territorial sovereign and lead to the equivalent result that atrocities committed by them or their approval are likely to go unpunished but for the intervention of the international community.

63 unwcc, History of The United Nations War Commission (hmso: London, 1948), 179. 64 See Chapter 2, Section 5.4. 65 (icty) Prosecutor v Dragoljub Kunarac et al. (Appeals Chamber Judgment), Case No IT-96-23-A & IT-96-23/1-A (12 June 2002) (‘Kunarac – Appeal’). 66 See Chapter 5, Section 2.2.3. 67 See Chapter 8, Section 4 (and conclusion at Section 4.7).

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Legitimacy of Crimes against Humanity and the Role of Customary International Law

Finally, it is important to make a note about two concerning trends in the jurisprudence on crimes against humanity. The first is the heavy reliance on decisions of the ad hoc Tribunals in interpreting the elements of crimes against humanity – often without discussion or analysis. The decision of the icty Appeals Chamber in Kunarac, and its rejection of any requirement of a policy element for crimes against humanity under customary international law, is the example par excellence.68 On the one hand, there is much merit in drawing heavily on the jurisprudence of the ad hoc Tribunals, as indeed this text has done. The ad hoc Tribunals have produced a significant amount of case law that has effectively formed the backbone of the international jurisprudence on crimes against humanity. On the other hand, it must be remembered that the norms being applied are not some sui generis source of law existing in isolation. Decisions only have force to the extent that they can be properly said to form part of customary international law. This means that the requirements of the various elements of crimes against humanity need to be established with precision and to be constituted by both widespread and representative state practice accompanied by opinio juris.69 Those elements cannot be established by way of poorly reasoned decisions of any single tribunal. Even the ad hoc Tribunals – which assume greater significance given that they are bodies created by the un Security Council – are relevant only to the extent that they constitute one instance of state practice (to be looked at in the context of the full picture of all other state practice) or because they exhibit persuasive reasoning. These decisions must always give way to the extent that state practice and opinio juris, on balance, points in a different direction. In assessing what weight is to be given to the jurisprudence of the ad hoc tribunals in the assessment of its contribution as state practice, each decision must be looked at in the context of both the jurisdiction being exercised and the particular facts of the case. In the context of the policy element, for instance, it is significant that the overwhelming majority of cases that state that no policy element exists under customary international law occurred in ­circumstances

68 (icty) Kunarac – Appeal, above n 65; see also Chapter 5, Section 2.2.3. 69 (icj) Germany v Denmark and the Netherlands (Merits) [1969] icj Rep 3 (‘North Sea Continental Shelf Cases’), 43–44.

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where a state policy element was clearly present.70 Cases addressing crimes against humanity outside the context of either a state policy or an armed group with de facto control of territory, people or resources, are rare. In the most notable of these cases – the decisions of the icty in relation to the Kosovo Liberation Army – crimes against humanity was found not be made out.71 More recently, controversy has emerged at the icc in respect of the proper classification of the entity involved in the Kenyan post-election violence.72 Seen against these observations, caution must be exercised when relying on jurisprudence or commentators’ conclusions as to the status of certain aspects of crimes against humanity under customary international law, without proper identification and analysis of the basis on which such propositions are founded. Discussion on the war nexus is an example of this. It is often stated that crimes against humanity did not require a nexus with an international armed conflict even before the icty Tadić Jurisdictional Decision73 and the drafting of the icc Statute. But such statements are often made without a full understanding of the historical analysis undertaken in this text, including what occurred at Nuremberg74 and what happened in between Nuremberg and the establishment of the ad hoc Tribunals and the icc Statute in the 1990s.75 Also, for example, the work of the International Law Commission is often cited without fully considering such sources in their complete context, including the weight to be given to such practice and the profound disagreements then on foot between the various state representatives.76 Ultimately, while the question of the applicability of the war nexus will become of less and less relevance as time goes on, other aspects of the definition of crimes against humanity continue to remain controversial. Importantly, 70

See Chapter 5, Section 3.9 (in relation to the international and internationalised tribunals); Chapter 6, Section 5.3 (in relation to the icc); and Chapter 7, Section 8.2.2(b) (in relation to the decisions in state courts). 71 (icty) Limaj – Trial, above n 29; and Prosecutor v Ramush Haradinaj et al. (Trial Chamber Judgment), Case No IT-04-84-T (3 April 2008). 72 (icc) Authorisation of an Investigation into the Situation in the Republic of Kenya (Pre-Trial Chamber ii Decision), ICC-01/09-19-Corr (31 March 2010). The respective positions of the majority and Judge Kaul (dissenting) are set out in Chapter 6, Section 4.2.2, and analysed in Chapter 9, Section 7.2. 73 (icty) Prosecutor v Tadić (Defence Motion for Interlocutory Appeal on Jurisdiction), Case No IT-94-1-AR72 (2 October 1995). 74 See Chapter 2, particularly Sections 5.3, 5.4, 7.2, 7.5 and 8. 75 See Chapter 3. 76 See Chapter 3, Section 3.3.

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this includes whether a crime against humanity must reach a minimum level of scale or seriousness and whether it must be committed pursuant to a state policy. If so, what is that minimum level of scale and seriousness and what are the requirements of the state policy? While it is often stated, following the recitation of principles in Kunarac and the other ad hoc Tribunals, that customary international law has no such requirements, the authors have suggested in this text that a full and careful analysis of state practice suggests otherwise.77 The second trend of concern relates to the willingness of the icc to apply the words of the icc Statute at times as though it exists in a vacuum. Of course, the Vienna Convention on the Law of Treaties dictates that the statute must be interpreted in light of the ordinary meaning of the words in their context and in light of its object and purpose.78 But, as noted above, the wording of the chapeau for crimes against humanity is inherently ambiguous. It is both necessary and appropriate to look to supplementary means of interpretation.79 Indeed, the icc Statute itself recognises it may also be appropriate to look to ‘the principles and rules of international law’.80 Crimes against humanity were not created in 1998 with the Rome Statute, but rather have a rich and complex history that can and should be drawn upon by the icc in ascertaining the proper meaning to be given to crimes against humanity. Relying only – and indeed even primarily – on the ordinary words of the Statute permits of too many differing interpretations and runs the risk of creating disputes and undermining the legitimacy of the Court. Examples of clear areas of ambiguity abound,81 including the meanings to be given to the words: ‘attack’;82 ‘civilian’;83 ‘population’;84 ‘widespread’85 and ‘systematic’.86 This is before even addressing the vexed ‘State or organizational policy’ ­requirement87 and the underlying crimes.88 The clear response to such a concern is that the 77 78 79 80 81 82 83 84 85 86 87 88

See Chapter 8, Section 3 (on the minimum level of scale and seriousness), and Section 4 (on the policy requirement). Vienna Convention on the Law of Treaties, Art 31. Vienna Convention on the Law of Treaties, Art 31. icc Statute, Art 21. For a summary, see Chapter 6, Sections 5.2 and 5.3. See Chapter 9, Section 2.1. See Chapter 9, Section 4.3.4. See Chapter 9, Section 5.2. See Chapter 9, Section 6.2. See Chapter 9, Section 6.3. See Chapter 9, Section 7. See Chapter 10.

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icc should draw heavily on the meaning of crimes against humanity under customary international law when considering what meaning to be given to Article 7 of the icc Statute. Given the rigorous standard required to establish a norm of customary international law, such an approach would encourage a more rigorous analysis to be undertaken and would in turn lead to greater credibility and legitimacy for the Court. Of course, there may be differences between the position under customary international law and the position under the icc Statute. For instance, this text has contended that the minimum level of scale or seriousness and the policy element may be different in the icc as compared with custom, owing to the fact that the icc has a number of safeguards built into its constitutional structure that protect state sovereignty that a state exercising universal jurisdiction, for example, would not. This includes the fact that a prosecution may only take place where a state is ‘unable or unwilling’ to prosecute themselves. Nonetheless, such differences do not detract from the authors’ suggested approach. First, and most obviously, the rights of an accused must be safeguarded. International crimes charged must rest ‘on firm foundations of customary law’ and be defined with sufficient clarity for them to have been reasonably foreseeable and accessible at the date of the offence.89 The important principle of nullum crimen sine lege provides that whilst international offences need not always be prescribed in precise and exact terms,90 the elements of the offence must be accessible and reasonably foreseeable on the part of the defendant at the time of the offence.91 The Secretary-General, in the case of the icty, said the customary law status of the offences within the jurisdiction of the

89

90 91

See, for example, (icty) Prosecutor v Hadžihasanović et al. (Jurisdiction in Relation to Command Responsibility), Case No IT-01-47-AR72 (16 July 2003) (‘Hadžihasanović – Jurisdiction’), [55]; Prosecutor v Blaškić (Appeals Chamber Judgment), Case No IT-95-14-A (29 July 2004), [110], [139] and [141]; (ictr) Prosecutor v Bagilishema (Judgment), Case No ICTR-95-1A-A (3 July 2002) [34]; and Theodor Meron, ‘Revival of Customary Humanitarian Law’ (2005) 99(4) American Journal of International Law 817. See (icty) Prosecutor v Aleksovski (Judgment), Case No IT-95-14/1-A (24 March 2000), [127]. See, for example: (icty) Hadžihasanović – Jurisdiction, above n 89, [12], [34]; (tHR) S.W. v The United Kingdom (Decision on Merits), European Court of Human Rights, App 20166/92 (22 November 1995), [34]-[36]; and C.R. v The United Kingdom (Decision on Merits), European Court of Human Rights, App No 20190/92 (22 November 1995), [32] and [34].

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­ ribunal ought to be ‘beyond doubt’.92 Similarly at the icc, to the extent that T there is ambiguity in the law on crimes against humanity, it is fundamental that a criminal defendant is entitled to receive the benefit of any such doubt. Secondly, as noted above in the context of the humanity principle, states are justified in concerns to ensure that international prosecutions are carried out fairly. Prosecutions in the icc are no exception. While the icc has been established and has now completed a number of prosecutions for crimes against humanity, the icc itself remains controversial. Three of the five permanent members of the un Security Council (the us, China and Russia) and a large number of other powerful and populous states (e.g. India, Indonesia and most Middle-Eastern States) are not parties to the icc Statute. Additionally, the disquiet among African states about the manner in which the icc has conducted itself – including by overly targeting African states and by the indictment against sitting Sudanese President, Omar Al Bashir – has led to the creation of a separate regional criminal court and to a number of others states threatening to withdraw from the icc Statute. There is a need to counter the deep suspicion felt by some states, such as the United States, towards international judges and prosecutors and their willingness to brand norms as customary.93 It is sometimes said that demands for so-called positivist approaches to interpretation of international criminal law are outdated and simply hinder the international community from achieving a just outcome.94 To the contrary, the authors suggest that such an approach is the only approach to ensure the long term viability and support for international criminal law and the institutions that enforce it. The evolution of customary international law depends upon the consent of the international community and of the states that make it up. The practice of states forms the basis for the existence of crimes against humanity and the icc and their support is critical to its success. The icc depends upon the practical cooperation of states to arrest individuals involved, to provide evidence that may be used by the icc in criminal prosecutions and, indeed, to continue to fund the icc itself. The failure by a growing number of 92 93

94

Report of Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), un Doc. S/25704 (3 May 1993), [34]. See David Hunt, ‘The International Criminal Court: High Hopes, Creative Ambiguity and an Unfortunate Mistrust in International Judges’ (2004) 2 Journal of International Criminal Justice 56. See, for example: Meron, above n 89; and Mohamed Shahabuddeen, ‘Does the Principle of Legality Stand in the Way of Progressive Development of the Law?’ (2004) 2 Journal of International Criminal Justice 1007.

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states to arrest Sudanese President Omar Al-Bashir despite an active icc arrest warrant illustrates how non-cooperation can undermine international criminal justice objectives.95 Adopting an approach that carefully considers crimes against humanity under customary law – and in particular, analyses in line with that suggested in this text, bookmarked by the humanity principle (a minimum level of scale and seriousness) and the impunity principle (a policy element) – will provide states with a greater degree of certainty about what the law is and how the particular court or tribunal is likely to apply it. This enables all states to more confidently join or remain bound by the icc Statute or indeed to act in relation to crimes against humanity in other ways (e.g. asserting universal jurisdiction over certain crimes). It will also increase the confidence that states may have in the icc to apply the law rather than attempt to mould the law to redress any perceived injustice that finds its way to the Court. States should be confident when signing up to the icc that its leaders and its citizens will not find themselves charged unless they can be confident it is clearly appropriate. The suggested approach explicitly recognises that crimes against humanity does not effect a one-sided recognition of the importance of protecting human rights, but rather a balance between human rights and the sovereignty of states. Providing explicit recognition to state sovereignty in the proper interpretation of crimes against humanity is not only correct as a matter of law. It is also important to the way in which the consensus of the international community can be built and the confidence in its institutions safeguarded. Crimes against humanity is, in that respect, a proposition far more palatable to states than one that focuses solely on the protection of human rights. The suggested approach also encourages international tribunals and the courts of states exercising universal jurisdiction to not become silos of jurisprudence but to look to and consider the way in which courts around the world have considered these difficult issues. This can only benefit the quality of the analysis and add further content to how the difficult issues such as scale and seriousness and the policy element are met. They also provide courts with an opportunity to engage in judicial comity where appropriate. Substantive and useful discussion of the policy element has, for instance, occurred in Courts in the us, France and Peru. Consideration of the distinction between crimes against humanity and terrorism has been considered in Spain. Consideration of whether an attack was directed against a civilian population rather than military objectives has been considered in Germany. And a number of the 95

See discussion in Chapter 11, Section 3.4.

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peculiarities of the icc Statute have already been considered by the Special Panels in East Timor, which adopted a similar statute to the icc. 6 Conclusion A ‘crime against humanity’ is a chameleon-like creature. We all have a sense of what it is but find it hard to be specific about its elements. Through the ages, it has taken its colour from the times which have called forth the tribunals created to convict persons of the crime. It requires: firstly, a serious universal crime based upon the notion that there exist universal principles of criminal law shared by all humanity; and secondly, an attack of a certain type. Since the abandonment of the war nexus there are those who wish to downplay the threshold requirement of a crime against humanity because they see in this category of crimes an international penal code protecting individuals from the state. Unlike the definitions of other international crimes like slavery, genocide or torture, which can cover an isolated crime, crimes against humanity require a course of conduct. This is intended to describe attacks which both ‘shock the conscience of humanity’ and ‘threaten the peace, security and well-being of the world’. It thereby describes an atrocity which permits, and perhaps requires, an international response to each and every ‘crime against humanity’ by either the Security Council or the icc’s Prosecutor. It is this unique feature which sets a ‘crime against humanity’ apart from domestic crimes or ordinary human rights violations. It also gives to the concept its unique potency in international discourse. The threshold for crimes against humanity is high – attacks must reach a minimum level of scale and seriousness and be committed pursuant to the policy, tolerance or acquiescence of the state or de facto power. This high bar is deliberate. It maintains the stigma and seriousness attached to the label ‘crimes against humanity’ that warrant international action. It provides states with some protection against political and biased prosecutions. If adopted, it will also provide criminal defendants with greater certainty as to what the law is. Alternatively, to allow crimes against humanity to be diluted into yet another serious human rights violation malleable to the circumstances risks encouraging indifference in the international community to claims of ‘crimes against humanity’ as well as opposition to strengthening the institutions that enforce the crime. The twentieth century was an age of extremes, extreme violence included. The aim must be to make the twenty first century the age when, like polio

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or small pox, ‘crimes against humanity’ can also be a thing of the past. That aim is not necessarily achieved by seeking to extend the meaning of ‘crimes against humanity’ to redress every wrong and to apply to every criminal defendant. Effective enforcement is more likely achieved by maintaining the crime’s potency­and engendering the confidence of the international community to support its deployment.

Index Abrams, Jason 116, 148, 198, 598, 625, 685, 1064 Ad hoc tribunals 157, 317–323, 354–372 international tribunals 201–231 internationalised tribunals 231–306 African Court of Justice and Human and Peoples Rights (ACJHR) 203, 205,  296–297, 301, 929 Al Anfal Case 283–284, 820 Al Dujail Case 280–283 American Draft Definition of 14 June 1945 42 Amnesties 30, 154–155, 241–243, 258, 261, 293, 460–557, 813, 978 development of jurisprudence on the legality of local amnesties for CAH 1014, 1021–1045, 1047–1051 Amin, Idi 153, 675 Apartheid (See also Convention on the Non-applicability of Statutory ­Limitations to War Crimes and Crimes Against Humanity and Apartheid Convention of 1973) 114–120 definition of apartheid acts 937–938 general law and principles 938–940 ‘inhumane acts’ 940 institutionalized Regime of Systematic Domination and Oppression 940–942 mens rea 938 South Africa 115, 939, 941, 1032–1033 Apartheid Convention, International ­Convention on the Suppression and Punishment of Apartheid 119–120, 177,  268, 814, 940 Arendt, Hannah 194–195, 1058–1059, 1061 Argentina amnesties 1023–1024, 1027 dirty war 154 enforced disappearances 929, 969 exclusion of statute of limitations for CAH 1046 extradition 969, 1056 general duty to prosecute CAH 1020

Jurisprudence 469–474 legislation ratifying ICC Statute into domestic criminal law 456–457 Article 7 of the ICC Chapeau requirements 186–197 individual offences apartheid 937 background and elements 937–940 ‘inhumane act’ 940 institutionalized regime of ­systematic domination and oppression 940–942 deportation 811 accused’s role in the destination 829 across a de jure or de factor border or within national boundaries 825–828 criteria and background 811–812 ‘forced displacement of individuals’ 816–820 forcible transfer 814–815, 828–829 elements of deportation 815–816 requirement of ‘lawful presence’ 820–821 ICC approach 829–830 mens rea 830–832 ‘without grounds permitted under international law’ 821–825 enforced disappearance 923 arrest, detention and abduction 930–931 background and elements 923–930 mens rea 935–937 official participation 932–934 perpetrator participation 934–935 refusal to communicate whereabouts or information 931–932 extermination 776 actus reus 779 criteria 780 ‘killing (direct or indirect), 788, 791 ‘mass or ‘large scale’ 780–788 ‘taking part in’ or ‘contributing to’ the killing 791–795

1078 Article 7 of the ICC (cont.) cumulative convictions 800 criteria and definitional issue of ‘mass killing’ or killing of a ‘large number’ 776–779 intention to ‘take part in’ 798–800 mens rea 795–798 position of ICC 798 imprisonment or other severe deprivation of liberty 832 criteria and background  832, 834 features of imprisonment or other severe deprivation of liberty 834–837 ‘arbitrarily’, ‘no legal basis for it’, or ‘in violation of fundamental rules of international law’ 837–842 mens rea 842–843 murder 761 causation element 766–767 criteria 761–764 death of the victim 764–766 defences 776 intention 768–774 mens rea 768 position of ICC 774 premeditation 775 other inhumane acts 942 background 944–946 cumulative convictions 958 elements 942–944 mens rea 956–958 serious injury/suffering or attack on human dignity or similar seriousness 946–952 threshold 952–956 persecution 884 background and historical context 886–890 elements 884–886 ‘discriminate in fact’ 890 discriminate ‘in fact’ 891–893 ‘discriminate’ in fact 893–898 property crimes 911–915 conduct was committed ‘in connection with’ another underlying crime 915–919 cumulative charging 922 mens rea 919–922

Index seriously denies or infringes upon one or more fundamental rights 898 ‘fundamental right’ threshold 898–902 threshold 902–910 sexual offences 857 background of rape and other sexual offences 857–859 rape 859 corroboration 868 elements 859–861 force, threat or otherwise without lawful consent 862–866 mens rea 866–868 penetration 861–862 sexual slavery 868 background and elements 868–870 cumulative convictions 875 mens rea 874–875 sexual element 873–874 slavery element 870–873 enforced prostitution 875 elements 875–876 forced pregnancy 876 elements 876–877 enforced sterilization 877 elements 877–878 other sexual violence offences 878 act of a sexual nature under coercive circumstances 880–884 background and elements 878–890 mens rea 884 torture 843 criteria and background 843–845 cumulative charging 856–857 custody or control 852 infliction of ‘severe pain or suffering’ 845–852 mens rea 855–856 requirement of a state official and a prohibited purpose 852–855 Aroneanu, Eugène 68, 151, 195, 227 Arrest Warrant Case 255–256, 437, 526, 960, 964, 972–975, 983, 991, 994, 997–998 Australia 132–135, 224 asylum seekers 616–617, 688 extraterritorial jurisdiction 569–570

Index five Chapeau elements and the policy ­element 557, 560 legislation ratifying ICC Statute into domestic criminal law 395 migration law 395–398 Polyukhovich v The Commonwealth 133– 135, 221, 224 universal jurisdiction 395–398 war nexus 134–135, 566–568 War Crimes Amendment Act 1989 (Commonwealth) 132–135, 394 Austria 10,18, 21, 29, 55, 62, 87, 582, 1020 Atrocities justice and protection of human rights 633–635, 662, 679, 986, 1043, 1053 Nazi atrocities and jurisprudence 104– 105, 134, 139, 143 proposal to prosecute atrocities and Nuremberg Precedent 40–41, 45, 56–57,  60–63, 96–69, 74, 153, 160 threats to international peace and security under Chapter VII of the UN ­Charter 149, 157, 574, 577–619, 628,  1064–1068 Bangladesh 154–155 amnesties 1042 atrocities 581 extra-territorial jurisdiction 980 five Chapeau elements and the policy element 557, 559–560, 562, 665, 693–694 Jurisprudence 543–544 ICT-2 544–546 ICT-1 546–548 legislation ratifying ICC Statute into domestic criminal law 537–543 war nexus and retroactivity 567, 569 Bassiouni, M. Cherif 28, 31, 47, 68, 71, 73, 76, 89, 90, 92, 102, 112, 136, 163–164, 166, 186, 191–192, 194–195, 198–199, 237, 288, 342, 402, 440, 575, 625, 627–628, 641, 649, 710, 739, 741, 747, 802, 805, 840, 939, 951, 982, 990, 1008, 1010–1011, 1048 Belgium background 115 Case of Habré 290, 433–435, 524–527 deportation 813 duty to prosecute or extradite 1012–1013, 1020

1079 five Chapeau elements and the policy element 558–559, 562, 569, 570–572 Jurisprudence 433, 435–438 jus cogens 641 ICJ Arrest Warrant Case 964, 973–975 legislation ratifying ICC Statute into domestic criminal law 430–433 refugees 582 universal jurisdiction 979–1006, 1050, 1057 Berber, Friedrich 78 Berlin Protocol of 6 October 1945 45 Biddle, Francis 40, 57–58, 120, 967 Bosnia and Herzegovina amnesties 1024 Court of Bosnia & Herzegovina (See also Court of BIH)  204, 286–290, 299, 301, 914,  929–932 ethnic cleansing 156 extra-territorial jurisdiction 569 five Chapeau elements and the policy element 557, 562, 601, 605, 655, 685,  709–716, 728, 786 Galić Case 420–421 ICTY statute (1992–1993) 159–166, 203–204, 206–208 (See also ad hoc tribunals) Jurisprudence 499–500 Kunarac Case 213–214, 219–228 legislation ratifying ICC Statute into domestic criminal law 498–499 Limaj & Haradinaj Case 214–219 Martić Case 229 sexual offences 858–859 statutes of limitations 1046 Tadić Case background 176 discriminatory purpose/no armed conflict requirement 211 formation of Chapeau elements 212–213 jurisdictional issues 176–177 Tadić Appeal Chamber judgment 212 Tadić Trial Chamber judgment 177– 181, 190, 193, 196, 424 universal jurisdiction 979 Brazil amnesties 1027

1080 Brazil (cont.) extraterritorial jurisdiction 569 five Chapeau elements and the policy element 566, 557 Jurisprudence 497–498 legislation ratifying ICC Statute into domestic criminal law 494–495 universal jurisdiction 989–980 Burchard, Christoph 76, 80, 110–111 Burundi 167, 586, 588 Cambodia amnesties 1023, 1034, 1042 atrocities committed by the Khmer Rouge 155 duty to prosecute or extradite 1065 Duch Case 116, 237, 260, 266, 267, 269–274, 567, 806, 845, 857, 883–884, 892, 900 Extraordinary Chambers in the Courts of Cambodia (ECCC) statute, jurisprudence and jurisdiction 203–204, 258–266, 301,  304 five Chapeau elements and policy element 271–274 forced marriage 883 forcible transfer 815 nullum crimen and war nexus in 1975–1979 267–273 Canada extraterritorial jurisdiction and jurisprudence 135–137, 143–144, 151, 569–570 Finta Case 81, 92, 136, 144, 149, 194, 195–196, 225, 398–401, 457, 741, 971, 1060–1061 Jurisprudence 400 Munyaneza 403–406 Post-Mugesera decisions 406–407 Sivakumar and Mugesera 400–403 legislation ratifying ICC Statute into domestic criminal law 398 Cassese, Antonio 68, 71, 73, 86, 90, 107, 112, 119, 148, 187, 189, 191, 198, 602, 625–626, 628, 665, 669, 680, 726, 730, 855, 939, 962, 964, 981–982, 987, 997, 01040 Chad complaint to ECOWAS Court 527–528

Index duty to extradite and prosecute 572, 1012 Establishment of Extraordinary African Chambers in Senegal (EAC) 290–293 formation without consent or participation of the territorial state 301 impunity 996 jurisdictional immunity 1006 Trial of Hissène Habré 293–296, 433–435, 524–527 Chapeau elements and policy element analysis of each chapeau element of CAH 638 ‘attack’ 642 course of conduct 642–647 acts of violence or other mistreatment 647–655 particularising the attack 655 ‘directed against’ 655 primary object 655–657 presence of some military objective or legitimate ‘ultimate objective’ 657–658 ‘any civilian’ 658 ‘any’ civilian – distinction with war crimes 658–659 ‘predominantly’ civilian 659–670 any ‘civilian’ 660–661 historical background 662 jurisprudence 662–664 key controversy – definitional issues 664–667 ad hoc tribunal approach attack and its victims 667–675 presumptions and burden of proof 681 civilian population 681 background and ­principles– collective rather than individual 681–684 exclusion of single or isolated acts 689–695 number targeted and nature of targeting 684–688 ICC approach 695 ‘widespread or systematic’ key issues 697–699 ‘systematic’ 702–708 ‘widespread’ 699–702

Index policy requirement 708 customary international law 708 ICC approach 709 ‘state’, ‘organisation’ and ‘policy’ issues — 709, 725 nexus between attack and underlying crime 725–727 objective element 727 ‘part of’ the attack 727–729 ‘isolated or random’ acts  729–732 subjective element 732 mens rea 733–742 standard of proof 742–744 inconsistent state practices and approaches 557–572 Chea, Nuon (See also Cambodia, ECCC, Case 002) 261, 265 Chile amnesties 476, 1023, 1027, 1030, 1037 five Chapeau elements and the policy element 557–558 extraterritorial jurisdiction 569, 651, 693 Jurisprudence 476–480 legislation ratifying ICC Statute into domestic criminal law 475–476 Pinochet 154 extradition request 470–471 immunity 1001–1002 prosecution 435 universal jurisdiction controversy 983 war nexus and retroactivity 567 China 181–185, 200, 414, 422, 454, 557, 572, 855, 1019, 1073 Clark, Roger 31, 42, 738, 748, 758, 760, 842 Colombia 1024 Commission of Experts (See also ICTY and ICTR) definition of CAH 162–163, 167–168, 170–172, 186, 226–227 Interim Report of 1993 162–163 Commission of Experts for former Yugoslavia Final Report 168, 665–666 Commission of Experts for Rwanda, Preliminary Report on 1 October 1994 169 Control Council Law No.10 (CCL 10) definition and enactment of CAH as an offence 70, 101–102

1081 British Zone/West Germany 106–110 attacks on members of the military 109–110 denunciation cases – 107, 108 general principles of criminal justice 79 jurisdiction of CAH 78, 101–102, 105–106 jurisprudence and analysis of different zones 111–114 Russian Zone/East Germany (GDR) jurisprudence 110–111 US Zone jurisprudence 103–106 war nexus 102–114 Convention on the Non-Applicability of Statutory Limitations analysis and controversy 114–117, 1045–1046 Crimes against humanity (CAH) affirmation of as an international crime 38, 40, 50, 61, 93, 143–144 Article 6(c) and analysis 36, 59–65, 68, 82, 93 Article 6(c) and CCL10 111–114 concept and origins of CAH 2–3 ancient civilizations 3–6 atrocities in Armenia and WW1 29–33 laws of humanity from 18th century to WW1 19–29 middles ages in Europe 6–13 Treaty of Westphalia to 19th century 13–19 customary international law 93–97 definitional issues – 60–63, 121–122, 127–128, 160, 162, 178, 216–217 development of CAH definitions pre-1945: 1–2, 36–40, 41–42, 44–45, 47, 50, 53–54, 100–101 1945–1993 development 132–145 attempting to resolve incoherence 144–152 1993–1998 modern definition of CAH and codification of ICC Statute 157– 201, 212–214 humanity principle 149–150 impunity principle or the need for a ‘State Policy’ 150–152 legal elements of CAH 45, 53–54, 57–65, 101, 145–159, 177–180, 211–217

1082 crimes against humanity (cont.) territory jurisdiction of sovereign states 50–53, 61, 71–72, 145 UNWCC, 1948 Report 61, 63, 104, 178 genocide 117–119, 168 war crimes 38–40, 47, 52, 54–65, 142, 162–163, 168 CAH under Customary International Law and the ICC 745 Background 745–746 crimes 746–748 mens rea 748 statutory standard ‘intent and knowledge 748–752 proving intent and knowledge for ‘conduct’, ‘consequences’ and ‘circumstances’ 752–760 causation 760 Cryer, Robert 139, 198, 409, 626, 982, 1017, 1028, 1049 Dahm, Georg 58, 72, 74, 78 De Vabres, Donnedius 58, 580, 967, 985, 1054 Demjanjuk v Petrovsky 142–144, 429, 962 Declarations of the Allies and the Work of the United Nations War Crimes Commission (UNWCC) 37–38 Demjanjuk v Petrovsky 142, 429, 962 Democratic Republic of Congo (DRC) ICC current investigations 308 ICJ Arrest Warrant case 983 Discrimination nexus  171, 175 Domestic amnesties 1021 background 1021–1023 domestic amnesties for CAH  1026–1037 domestic amnesties before international courts 1037–1039 grant of domestic amnesties for CAH 1023 jurisprudence on legality of international amnesties 1042–1045 state practice in granting domestic amnesties 1023–1025 Statutes of Limitations 1045 state practice 1045–1047 Drafting London Charter 37 Drug trafficking 191, 629, 759

Index East Timor amnesties 303 deportation 826 mens rea 958 five Chapeau elements and the policy element 234, 693–694, 729 Los Palos case 234–236 nexus element 236–237 Nullum Crimen Principle 237–239 impunity 1068 INTERFET 232 Indonesia 548–549, 554, 563 Abilio Soares Trial 551–553 murder elements 767, 784 property crimes 913, 918 mens rea 921–922, 935 Special Panel of the District Court in East Timor (SPET) 91, 196, 203–204 background 231–233 establishment of United Nations Administration in East Timor (UNTAET) 232–243 jurisprudence 234 ‘overall justice’ 302, 523, 622 State Practice after ICC Statute 978 targeting defied political groups 894–895 UN Truth Commission for East Timor 303 Eichmann case 140–141, 150, 221, 224, 560–561, 818, 961, 964, 969, 978, 990, 994, 1007, 1038, 1062 Ehard, Hans 67, 72, 76 Einsatzgruppen trials 05, 112–113, 124–125, 128, 176, 193, 269, 908, 1067 Enforced disappearance (See also Deportation) 139, 198, 282, 290, 293–295, 300,  439, 445, 483, 484, 485, 496, 905,  923–929 Estonia deportation 651 extraterritorial jurisdiction 569–570 five Chapeau elements and the policy element 557–558, 566 Jurisprudence 502–505 Kork and Kislyiy v Estonia Case 85–87, 147, 270, 567

Index legislation ratifying ICC Statute into domestic criminal law 500–502 stricto sensu 590 Ethiopia duty to prosecute and extradite 1019–1020 expulsion 824 extra-territorial jurisdiction 569–570, 980 five Chapeau elements and the policy element 557–558, 562, 567 genocide 481, 485 Jurisprudence 518–523 Mengistu Haile Mariam 154, 518–519, 675–676 legislation ratifying ICC Statute into domestic criminal law 517–518 statutes of limitations 1046 European Convention on Human Rights Adoption 83–87 jurisprudence 147, 504, 513 European Court of Human Rights adoption 83–88 jurisprudence 147–148, 237–238, 268, 270, 442, 500, 504, 509, 513, 522, 567, 846, 931, 936, 1002, 1005, 1026, 1042 Eritrea-Ethiopia Claims Commission 823–824 Extraordinary African Chambers in Senegal (EAC) 202–204, 290–304, 435, 528, 689,  814, 870–874, 929 Ex post facto principle background 16, 65 CCL10 applications 78–83, 103–114 international criminal law 68–69, 73–83, 133–135 nullum crimen sine lege principle 67–69, 73–87 legality principle 68–87 Farben case 104 Feurstein case 62–63 France drafting CAH 44–45 establishment of CAH definition 137–240 Jurisprudence in Touvier, Barbie and Boudare 137–140, 144, 440–444, 493,  664–665, 670, 675, 962, 970, 1017, 1046

1083 legislation ratifying ICC Statute into domestic criminal law 438–440 Franco, Francisco (See also Spain) 459–460, 474, 526, 932, 984, 989 Fujimori, Alberto (See also Peru) 485–492, 609, 1027, 1061 Gaddafi, Muammar al (See also Libya) 341– 344, 893 Gender discrimination prohibitions, sexual discrimination 185, 300, 332–333, 506,  885–897, 955 General Assembly Resolutions 86, 93–94, 96, 98, 101, 114, 121–122, 152, 516, 522, 578, 1016 Resolution 95(I) (1946) Resolution 260B(III) (1948) Resolution 2840 (1971) Resolution 3074 (1973) General Prosecutor v. John Marques and Nine Others (Los Palos Case) and other East Timor cases 234–236, 298, 704 Geneva Conventions 91, 513, 666, 680, 681, 822, 838–839, 902, 904, 945, 1021, 1022, 1032, 1034 Genocide 24, 29, 117–120 Armenia 35, 72 Australia 1015 Cambodia 258, 1033 Draft Code of Crimes Against the Peace and Security of Mankind 123 Ethiopia 154 Guatemala 987, 991 Holocaust 35 Pakistan 155 Rwanda genocide 157, 168, 209 Treaty of Lausanne 1042 Genocide Convention formation and purpose 63, 114 definitions  117, 120 consensus 149 as state practice 132–133, 177 Germany CAH prosecutions and approach postWWII, 52–57, 81, 103–114, 132, 144, 424,  429, 1045 controversy with US 983–985, 1050 deportation 813, 906 enforced disappearances 926–927

1084 Germany (cont.) extra-territorial jurisdiction 569–571, 987 Jurisprudence 446–449 legislation ratifying ICC Statute into domestic criminal 444–446 Nuremberg precedent 594, 933 persecution 941 state practice 559–562 universal jurisdiction 966–973, 976, 979 Gros, Leo 44–45, 66 Habré, Hissène (See also Chad and EAC) 293–296, 433–435, 524–527 Hague Convention of 1907 28, 31, 36, 42–43, 52, 68, 74, 79, 91, 461, 533 Preamble 34, 72 Haradinaj, Ramush (Haradinaj trial) 208, 214, 218, 606, 690, 692, 694 Head of State immunity 281, 343, 534, 993, 997–998 Hebel, Herman von 197, 1051 Herzog, Jacques-Bernard 56, 58, 137, 151, 195 Hitler, Adolf 35–36, 39, 47, 62, 579, 635, 993, 1055 Holmes, John 199 Hostages Case 78 Hostis humani generis (See also Piracy) 11– 12, 25 Humanitarian intervention as precedent for CAH 19, 23–25, 34, 36, 44, 45, 47, 48, 50–51, 61, 62, 69, 93, 99, 100, 101, 104–105, 124, 128, 574, 579 humanity principle 149–150 impunity principle or the need for a ‘State policy’ 150–152 key issues 36, 39, 47–48, 61, 62 post-WW1 69 post-WWII 141 Security Council intervention 581–583, 586–587, 604, 634–636 ‘shock the conscience of humanity’ 24, 101, 149, 596, 605, 635, 1062, 1065, 1075 Hungary deportation 651 displacement 827 extra-territorial jurisdiction 569–570 Imre Nagy Case 616 Jurisprudence 510–513

Index Korbely v Hungary Case 268, 270, 510–513, 567 legislation ratifying ICC Statute into domestic criminal 509–510 universal jurisdiction 979, 1020 war nexus and retroactivity 567 Hussein, Saddam (See also Iraqi High Tri­ bunal) 73, 82, 116, 277, 280–282, 284,  305–306, 955, 1065–7 Hwang, Phyllis 56, 171, 186, 840 Farben Case 104 ICC Preparatory Committee/Commission ICC Statute, Article 7, 82, 158–159, 183–201 Rome Conference (July) 1998, 181–186 Ieng Sary (See also Cambodia, Case 002) 155, 258, 261, 266, 1033–1034, 1039–1040 Ieng Thirith (See also Cambodia, Case 002) 261 Impunity Principle 150–152, 617–633, 636, 724, 1066–1068, 1074 need for a ‘State’ 151–152, 155–156, 179, 193–194, 228 India Pakistani atrocities 154–155, 538–540 not a party to ICC Statute 557, 1019 Indonesia Abilio Soares Case 551–553 deportation 826 extra-territorial jurisdiction 569–570, 980 East Timor conflict 231–303 establishment of Human Rights Court 548–549, 1073 five Chapeau elements and policy element 557, 561–563–564 jurisprudence 549–555 universal jurisdiction 984 International Court of Justice (ICJ) 152, 255, 256, 291, 437, 511, 526, 528, 539, 641, 889, 964, 973–975, 979, 983, 991, 994–1014, 1028, 1050 International Covenant on Civil and Political Rights (ICCPR) 83, 87, 90–92, 133, 233,  238, 279, 461, 527, 544, 640, 837, 839, 1028 International Criminal Court (ICC) 129, 157, 173, 372–392, 964, 1057

Index Proprio Motu investigations and jurisprudence 346–372 Security Council referrals and jurisprudence 337–346 State referrals and jurisprudence 307–337 International Criminal Court Statute (ICC Statute) (See also Rome Statue) Article 7 183–201 Article 10 201 Article 17 193 Article 33 197 International Criminal Tribunal for Rwanda (ICTR) 167–172, 204, 205, 209–211 five Chapeau elements and jurisprudence 211–231 International Criminal Tribunal for the Former Yugoslavia (ICTY) 159–166, 204,  205–208 five Chapeau elements and jurisprudence 211–231 International Law Commission (ILC) 61, 120–131, 1052, 1070 Israel Eichmann Case 140–141, 221, 224, 818 extradition 142–143 Head of State immunity 436–437 Israeli Judges Case 476, 479, 651 Palestine conflict 425, 814, 939 universal jurisdiction 429 International criminal law application and development 5, 17, 33, 49–50 general principles recognized by civilized nations 47, 69–72–114, 142–143, 147,  153–164, 193–194, 231 International human rights law 89, 162, 169, 457, 747, 840, 900, 1049 International Military Tribunal (IMT, London Charter)  37–38, 41, 45–47, 62, 73,  81–82 International Military Tribunal (IMT, London Charter), Article 6 (c) (See also ­London Charter) 36, 41–48, 59, 65, 81–82, 100–101,  131–132, 145, 149, 161, 166, 174, 175 International Military Tribunal (Nuremberg) (See also Nuremberg trials) 50, 54, 56, 57,  65, 72, 78, 83, 100–101

1085 International Military Tribunal for the Far East (IMTFE, Tokyo Charter) (See also Japan) Article 5(c) 48–49 Iraq 82–83, 202–204, 387, 432, 446, 563, 570, 581–583, 630–631, 743, 831 Iraqi High Tribunal (IHT) 82–83, 116, 148, 202, 204, 277–301, 978–981 Italy 9, 93, 115, 161, 453, 523, 577, 631, 641, 1007 Jackson, Robert 36–37, 41–48, 70, 76, 94–96, 187, 1055 Japan (See also International Military Tribunal for the Far East, IMTFE, Tokyo Charter)  7, 49, 277, 486, 648–649, 840,  857, 1023–1044 Jaspers, Karl 67 Jescheck, Hans-Heinrich 67, 71–74, 76, 78 jus cogens 436, 457–458, 463, 476, 496, 640, 641, 642, 982, 990–991, 1001–1018, 1031, 1033, 1044, 1046 Kaing Guek Eav “Duch” (See also Cambodia, ECCC, Case 001) 116, 237, 260, 266, 267, 269–274, 567, 806, 845, 857, 883–884, 892, 900 Kambanda, Jean (Prosecutor v Kambanda) 209 Katanga Case 309, 312–313, 315–316, 318–344, 353–354, 358, 363, 372–391, 532, 607–608, 653, 655, 658, 660, 678, 695–706, 714–718, 722–724, 743, 754–755, 775, 864–867, 872–875, 946, 950, 952, 956, 958 Kayishema Case 210–211, 424, 673, 775, 790–793 Kellogg-Briand Pact 52 Kelsen, Hans 56, 68, 81 Khieu Samphan (See also Cambodia, ECCC, Case 002) 261 Khmer Rouge (See also Cambodia, ECCC, Case 002) 116, 155, 258, 261, 676, 815, 883,  1065 Kirsch, Phillipe 199 Kony, Joseph 313 Korbely, János 268, 270, 510–513, 568 Kordić and Čerkez Case 208, 316, 666, 672, 704, 837–838, 908, 913, 914, 919, 923

1086 Kosovo 204, 208, 214, 216–218, 221, 245, 248, 274–276, 297, 301, 305, 586, 606, 620, 630, 644, 690, 827–828, 934, 978, 981, 1052 Kosovo Liberation Army (KLA) 208, 214, 216–218, 248, 276, 364, 606, 609, 615, 617, 620, 630, 644, 652, 690, 695, 786, 827 Knieriem, August von 67 Krajišnik Case 206–207, 648, 786, 820, 826, 828, 906 Kranzbühler, Otto 67, 72, 77 Krstić Case 206, 782, 787–788, 793, 829 Kress, Claus 310, 625–627, 749, 965, 982, 987 Kunarac Case 206, 213–214, 219–229, 234–235, 245–252, 272, 295, 298, 319, 389, 402, 405–407, 548, 557, 559–564, 597, 599–626, 645, 656, 678, 682, 685, 690, 699–708, 728, 741, 803, 805–808, 853–855, 863–866, 871, 875, 1069, 1071 Latvia 501, 505–508, 517, 558, 567, 569, 591, 651, 827, 979 Lauterpacht, Hersch 32, 54, 63, 125, 912 Lebanon 20, 24–25, 69, 104, 292, 436, 614–615, 629 Liberia 239–240, 243, 254–257, 438, 581, 583, 586, 588 Lippman, Matthew 47, 56 Lomé Accord of 2004 1037 Lomé Peace Agreement 241, 978, 1043–1044 Lombois, Claude 46–47 London Charter. See International Military Tribunal (IMT, London Charter) 36–50,  52–62, 64–66, 69, 70, 74, 81, 82, 86, 89,  90–94, 97–105, 110–132, 145–151, 160–168,  174–179, 186, 199, 223, 251, 256, 367, 395,  399, 438–439, 441, 471, 504, 590, 595,  599, 619, 635, 640, 662–682, 967, 970 Los Palos Case (See also East Timor, Indo­ nesia) 234–236, 298, 704 Lotus Case 13, 974, 975, 988 Luban, David 12, 64, 99, 424, 574, 577, 593, 597–598, 603–604, 633–634, 649, 653, 731, 896, 1059–1060, 1063–1064

Index Lubanga Case 312–313, 752–753, 755, 757, 774 Lukić & Lukić Case 783–788 Al-Majid, Ali Hassan 743 Martens Clause 28, 461 Martins and Gonzales Case 236 McCormack, Timothy 197, 200, 592, 820, 840, 854, 941 Medical Case 79, 106, 845 Mein Kampf 54 Mengistu, Haile Mariam (See also Ethiopia) 154, 518–521, 523, 675–676 Menthon, François de 50, 60, 65, 70, 78, 84, 96, 195, 226, 966–967, 1058 Meron, Theodor 70, 170, 580 Mettraux, Guénaël 95, 222–223, 402, 577, 601–602, 626, 634, 649, 688–689, 699, 782 Milch Case 803, 807 Morris, Virginia 164, 170 Mugesera v. Canada 201, 221, 225, 400–401, 403–406, 560, 612, 648, 689, 741 Musema, Prosecutor v. 685 Nahimana et al, Prosecutor v. 210, 781 Natural law tradition 2–5, 8, 11, 13, 29, 34, 37, 69, 98–99, 1009, 1058 Nazi Germany (See also Control Council Law No. 10 (CCL10); International Military Tribunal (IML, London Charter) 32–40,   45, 54–65, 76–83, 103–114, 132–144, 364,  424, 429, 480, 594, 906, 941, 968, 969,  971–973, 1045 Netherlands Ahlbrecht (No ) 2, 141, 221, 224 CAH as punishable offence 129, 132, 141–143, 151, 161, 178, 221, 224, 227 deportation 813 duty to prosecute and extradite 969 extra-territorial jurisdiction 569, 971, 979 five Chapeau elements and policy element 557, 562–567, 651 Jurisprudence 450–452 legislation ratifying ICC Statute into domestic criminal law 449–450 Public Prosecutor v Menten 142, 178, 226, 457, 493 universal jurisdiction 968, 1020

Index Non-interference principle 13–14, 18–19, 23–24, 34, 596 Non-state actors/entities 128, 151–152, 179, 190–193, 215, 245, 248–249, 298–299, 323, 361, 363–369, 384, 387, 389, 423– 424, 451, 457, 464–465, 562–569, 574, 594, 597, 606, 616–620, 625–632, 652, 708, 716, 724, 934, 939, 976, 1038, 1068 Norway deportation 813 extra-territorial jurisdiction 569, 980 five Chapeau elements and the policy element 559, 562, 566 Jurisprudence 466 legislation ratifying ICC Statute into domestic criminal law 465–466 Nullum crimen sine lege principle 10, 16–17, 34, 37, 53, 58, 67, 73–77, 80, 84, 87–88, 90–93, 98, 147, 164, 237, 250, 267–268, 304, 468, 508, 510, 513, 527, 567–568, 571, 576, 899, 946, 948, 1072 O’Brien, James 166 Papon, Maurice 440, 467, 493 Paust, Jordan 170 Pellet, Alain 628 Permanent Court of International Justice (PCIJ) 13, 32 Peru domestic amnesties 1027, 1050, 1061 duty to extradite and prosecute 1023–1024 five Chapeau elements and policy element 557–558, 561, 565, 1074 genocide 481 humanity principle 608, 61, 687 Jurisprudence 485–494 legislation ratifying ICC Statute into domestic criminal law 484–485 war nexus and retroactivity 567, 591 Pinochet, Augusto 147, 154, 435–436, 442, 470, 962, 970, 983, 987, 990, 1001–1005, 1037, 1050 Piracy 11–13, 28, 427, 643, 962, 968, 971–973 Pohl et al., Unites States v. (The WVHA Case) 104, 807

1087 Pot, Pol (See also Cambodia) 155, 261, 265, 992 Polyukhovich v The Commonwealth 81, 133, 221, 224, 395, 568, 962, 1016 Potsdam Conference of July-August 1945 40 Principle of legality 16, 83–84, 89, 166, 487, 500 Prisoner of war (POWs) 74, 106, 110, 539, 540 Prosecuting CAH (See also universal jurisdiction and immunities) amnesties domestic jurisprudence 1023–1042 international jurisprudence 1042–1045 customary international law universal jurisdiction at Nuremberg 966–968 universal jurisdiction over Nazi War Criminals after Nuremberg 968–971 ICJ Warrant Case 973–976 stricto sensu principle 976–977 subsidiary principle 977–978 universal jurisdiction and state practice after ICC Statute 978–982 remaining controversy 983–986 extra-territorial jurisdiction 960–966 duties and obligations to prosecute 1009–1011 jus cogens 1011–1015 General Assembly Resolutions 2840 (1971) and 2074 (1973) 1015–1018 treaty obligations and state practice 1018–1021 immunities and universal jurisdiction 992–993 extra-territorial prosecutions jurisprudence 993–1006 Statutes of Limitations 1045–1047 Ratner, Steven 116, 148, 198, 598, 625, 650, 685, 1064 RuSHA Case 79 Ratione materiae. See Immunity. 439, 534, 992, 995, 1001–1009 Retroactivity principle 73–74, 80, 87, 89–90, 133, 137, 239, 458–463, 475, 487, 504–505, 509, 527–528, 548, 566

1088 Robinson, Darryl 4, 187–188, 190, 192, 195, 197, 222, 625–627, 909, 1041, 1061 Rome Conference, Rome Statute (See also International Criminal Court Statute (ICC Statute)) background and historical context 158– 159, 181–186, 197–201 chapeau requirements 186–197 RUF Case 240–241, 244, 247–254, 271, 300, 438, 671–674, 690, 797, 810, 865, 867, 873, 1038 Rwanda (See also ICTR and genocide) 8, 88, 157, 167–169, 171, 192, 202–203, 205, 209–210, 249, 299, 311–312, 325, 364, 387, 400, 402–403, 421, 424, 437, 441–444, 448, 532, 560, 562, 571, 581, 583–584, 589, 596, 604, 610, 612, 655, 658, 685, 689, 692, 699, 781, 793, 858, 970, 974, 981, 995, 1052, 1068 Sadat-Wexler, Leila 54, 56 Schabas, William 65, 118, 149, 164, 173, 185, 199, 267, 304, 625, 629, 791–792, 834, 876, 878, 889, 896–897, 907–908, 928, 939 Schachter, Oscar 70–71 Scharf, Michael 164, 170, 1017, 1039, 1043–1044 Schätzel, Wilhelm 72 Schick, Franz 66–67 Schmitt, Carl 75 Schwarzenberger, Georg 46, 67, 70, 74, 81, 98, 194, 231, 972, 1051, 1065 Schwelb, Egon 28, 46, 56, 61, 63, 93, 102, 1058 Scilingo, Adolfo 455–460, 464–465, 561, 570–571, 980, 982, 987, 990 Semanza Case 180, 210, 590, 894–895 Senegal (See also EAC and Habré Case) attacks on dissidents 693 extra-territorial jurisdiction 569 extradite 572, 1006, 1012 five Chapeau elements and policy element 559, 562 ICC Statute into domestic criminal law 456, 523–524 legislation ratifying Jurisprudence  203–204, 290–301, 304, 434–435, 524–528

Index statutes of limitations 1046 universal jurisdiction 979–980, 982 Shawcross, Sir Hartley 19, 50–52, 69 Sierra Leone (See also SCSL) amnesties 1023, 1031, 1037–1038, 1043 atrocities 585 forced marriage 883 territorial jurisdiction 978, 981 Soviet Union or Russia drafting CAH 41, 43, 93 Estonia invasion 500 Georgia conflict 352 Spain five Chapeau elements and policy element 557–558, 562, 566–567, 570–571 Jurisprudence 455 Franco-era crimes 459–463 other jurisprudence 463–465 scilingo and universal jurisdiction 455–459 legislation ratifying ICC Statute into domestic criminal law 452–455 stricto sensu principle 591 universal jurisdiction 964, 984–985, 987 Special Court for Sierra Leone (SCSL) 200, 203–204, 241–258, 279, 301, 303–304 Specificity requirement 71, 73, 89, 115, 129, 187, 746, 895, 951 Srebrenica massacre 160, 206, 655, 660, 829 Sri Lanka civil war and prosecutions 295–296, 397 Tamil Tigers conflict 225, 451–452, 563, 624, 632, 724, 837 State responsibility 25, 65, 840, 988, 1013 Statutes of limitations 114–118, 199, 268, 293, 413, 467, 471, 491, 505, 509–510, 514, 545, 566, 932, 1011, 1045–1046 State policy 24, 64–65, 95, 112–113, 139, 150– 151, 179, 190, 223–227, 273, 297–299, 339, 366, 387, 425, 477–478, 487, 490, 492, 513, 554–555, 560–564, 598, 624–625, 900, 1040, 1068, 1070–1071 Streicher, Julius 54–57, 76, 93, 96, 221, 223 Sudan (See also Omar al-Bashir) 308, 337– 342, 367, 387, 394, 414, 586, 587, 612, 651, 989, 995–1001, 1040, 1068, 1073–1074

1089

Index Tadic, Prosecutor v.  147–149, 157–159, 176–230, 239, 243, 251, 267–270, 319, 323, 373, 389, 397, 424, 489, 546–548, 568, 573, 584, 589–599, 609, 620–623, 627, 644, 661, 678, 682, 685–695, 700–705, 723, 726, 730–733, 741, 833, 906, 919, 1061–1062 Taylor, Charles (See also Serra Leone) 239, 244, 254–266, 303, 438, 993–995, 998 Terrorism distinction between terrorism and CAH 564, 628–632, 645, 692, 708, 1066,  1074 Tess, Nikolay (See also Latvia) 507–508 Threats to international peace conceptual development of CAH 145– 149, 155–159, 577–595 intervention 619, 636, 1056–1058 Tokyo Charter (See IMTFE) Tomuschat, Christian 70, 90, 939, 982 Torture Convention 233, 571, 844, 846, 848, 849, 852–855, 1002–1012 Turkey 20–23, 29–231, 51, 69, 104, 161, 182, 191, 813, 887, 936, 1042 Uganda (See also Idi Amin) ICC current investigations 308, 313–314, 325, 608, 675, 716 Movement for the Liberation of the Congo 312 United Kingdom defining and developing CAH 39, 40–47, 93–94, 115 extra-territorial jurisdiction 569 five Chapeau elements and policy element 557 Jurisprudence 411–412 legislation ratifying ICC Statute into domestic criminal law 409–411 Pinochet Case 1001–1002 universal jurisdiction 979–980, 984 United Nations Charter background 97–99, 149, 157, 159 Chapter VII threat to international peace and international intervention 159,  574–589, 593, 594, 619, 636, 725, 988,  1055–1057

United Nations War Crimes Commission (UNWCC) 37–38, 104, 178, 594–595 United States of America defining and developing CAH 38, 39–47, 78, 93, 115, 121, 129, 161 extra-territorial jurisdiction 570, 572 jurisprudence 413–426 narrow jurisdiction 426–430 no criminal proscription for CAH 412–413 opposition to ICC 148, 185, 278 universal jurisdiction 992 US zone jurisprudence 101–106 Universal Declaration of Human Rights, article 11, 83 Universal jurisdiction of CAH 940–992 Uruguay amnesties 1023, 1027 duty to prosecute and extradite 1020–1021 extra-territorial jurisdiction 980 five Chapeau elements and policy element 557, 561, 565–569, 612, 641 Jurisprudence 495–497 legislation ratifying ICC Statute into domestic criminal law 494–495 Van Schaack, Beth 54, 112 Von Schirach, Baldur 54–57 Von Feuerbach, Anselm 76 Vienna Convention on the Law of Treaties 373, 722, 1071 Von Hodenberg, Hodo 77 War crimes article 6(a) 45, 47, 54–55, 59 analysis 166–168, 185, 658–669, 682, 695, 964, 967–968 humanity principle 149–150 jurisdiction 38–40, 57–65, 141–142, 146, 162–163 jurisprudence 218, 223, 239, 264, 267, 275, 288, 291–297, 305–319, 339, 500, 519, 528, 532, 541, 926–927, 987 mens rea 194–195

1090 war crimes (cont.) prosecution pre-1945 10, 28–29 prosecution of Nazis 37–38, 40–41, 47, 52–59, 74, 81–82, 142 War nexus original definition of CAH 37, 42–64, 100–101 departure from war nexus requirement 111–114 Wechsler, Henry 68, 77 Werle, Gerhard 70, 602, 626–627, 634, 665, 680 ‘Widespread and systematic’ criteria ‘attack’ requirements 186–188 ‘civilian population’  216, 219

Index Chapeau requirements based on the Tadić and Kunarac decisions  212, 250, 274,  295, 355, 402, 553, 601 ICTR, article 3, 169–172, 180 ICTY, article 5, 163–166, 602 Rome Statute, article 7(1) and () 2, 603 UN Charter, Chapter VII 619 Woetzel, Robert 68 Yugoslavia (See also ICTY and Bosnia-­ Herzegovina) 156–157, 159, 168–169,  176, 202, 205, 206, 225, 248, 274, 286,  299, 403, 414, 421, 480, 666, 893, 1065