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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 facto