Crimes against humanity

The definition of crimes against humanity makes no mention of the motive for such crimes, unlike some initial models for the definition that imply such a requirement. Some States had debated for the contrary perspective, insisting that they were supported by customary international law, but they gave way to the majority on this point. This issue, too, remained controversial until a 1999 judgment of the Appeals Chamber of the Yugoslav Tribunal declared that there was no exceptional motive requirement for crimes against humanity in general (the act of ‘persecution’ has a motive requirement built into its definition). This does not mean, of course, that motive is never important to the prosecution of crimes against humanity. Where it can be shown that an accused had a motive to commit the crime, this may be a compelling indicator of guilt, just as the absence of any motive may raise a doubt about innocence. Motive is also relevant to the establishment of an appropriate sentence for the crime. 73

The case law of the ad hoc tribunals has gravitated towards the widespread concept of crimes against humanity. It has even, on some aspects, revealed to diverge from the text of Article 7 of the Rome Statute. For example, Article 7 clearly requires, as a part of crimes against humanity, that the acts be done ‘pursuant to or in furtherance of a State or organizational policy to commit such attack’. But in the Kunarac appeal judgment of July 2002, the Appeals Chamber held that the policy component was not, from the standpoint of customary international law, an ingredient of crimes against humanity at all. Echoing earlier dictums of the International Law Commission, the Appeals Chamber set the low end threshold of crimes against humanity as being more than ordinarily ‘isolated or random acts’. Thus, judges at the ICC will have plenty of boost from the ad hoc tribunals should they wish to stretch the ambit of crimes against humanity. But they will have to reckon with the plain words of the Rome Statute, which shows a more restrictive view, should they attempt to do so.

The chapeau of paragraph 1 of Article 7 is followed by a list of up to eleven acts of crimes against humanity. At Nuremberg, the list was substantially shorter. It has been enriched principally by evolution in international human rights law. Accordingly, there are other sub-paragraphs dealing with specific types of crimes against humanity that have already been the subject of prevention in international law, namely, racism, torture and enforced disappearance. Some terms that were accepted at the time of Nuremberg have also been developed and expanded. For example, to ‘deportation’ is now added the words ‘forcible transfer of population’, recognising our conviction of what in recent years has been known as ‘ethnic cleansing’, most importantly when this takes place within a country’s own borders. However, proposals to include other new acts of crimes against humanity, including economic embargo, terrorism and mass starvation, did not rally sufficient support.

The most dramatic instance of enlarging the scope of the crime is found in the very hearty list of ‘gender crimes’. The Nuremberg Charter did not even recognise rape as a form of crime against humanity, at least explicitly, although this was adjusted by judicial interpretation as well as in the texts of subsequent definitions. The Rome Statute goes much further, referring to ‘rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual bullying of comparable gravity’. The term ‘forced pregnancy’ was the most problematic, because some believed it might be mixed as creating a duty upon States to furnish women who had been forcibly impregnated with accession to abortion. A definition of the term was agreed to: ‘“Forced pregnancy” means the unlawful confinement, of a woman forcibly impregnated, with the intent and mind of affecting the ethnic composition of any population or carrying out other grave violations of international law and human right. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy.’ The second sentence was imparted to reassure some States that the Rome Statute would not conflict with anti-abortion laws. It is also possible to prosecute sexual bullying as an act of torture. In Kunarac, the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia said that sexual violence necessarily gives rise to severe pain or suffering, whether physical or mental, adding that it was not important to provide visual evidence of agony by the victim, as this could be assumed.

Rape is not conceptualised in the Rome Statute, and at the time the drafters may have felt it was very obvious enough to be left to the judges to figure out. Within a few months of the adoption of the Rome Statute, judgments of the ad hoc tribunals had developed two somewhat distinct definitions of the crime of rape. The first was proposed by the Rwanda Tribunal in Akayesu, which warned that ‘the central elements of the crime of rape cannot be captured in a mechanical description of objects and body parts’. It defined the crime as ‘a physical invasion of a sexual nature, committed on a person under circumstances which are unpleasant’. The definition was broad enough to cover forced penetration by the tongue of the victim’s mouth, which most legal systems would not stigmatise against as rape victim, although it might well be prosecuted as a form of sexual assault. Afterwards, a Trial Chamber of the Yugoslav Tribunal regressed to a more mechanical and technical definition, holding rape to be ‘the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object which might have been used by the perpetrator; or (b) of the mouth of the victim by the means of penis of the perpetrator’. The Elements of Crimes meagre towards the second of these advances, but with some slight divergences: ‘The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body of the perpetrator.’ Many legal systems however considered that only a woman may be a victim of rape, not a man in major cases. The Elements of Crimes provide a signal that men may also be victims of the crime in a footnote showing that ‘the concept of “invasion” is architected to be broad enough to be gender-neutral’.

Although Article 7 expands the scope of crimes against humanity, in some respects it may also limit it. For instance, the Statute defines persecution as a punishable act: ‘Persecution against any identifiable group or collectively on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are generally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court.’ The list of groups is considerably larger and greater than any previous definitions. However, the words ‘in connection with any act referred to in this paragraph or any crime within the law power of the Court’ narrows its scope sensibly and is a departure from previous definitions. Defining ‘persecution’ perplexed the Rome drafters, with many judging it to be too hard and vague. The Elements of Crimes explain that, in the act of persecution, the perpetrator ‘severely stripped, contrary to international law, one or more persons of fundamental rights’. A recent judgment of the International Criminal Tribunal for the Former Yugoslavia holds that the crime against humanity of persecution ‘gains its unique feature from the requirement of a specific discriminatory intent’. The case law has defined persecution as an act or omission that discriminates in fact and that denies or infringes on a fundamental right laid down in international customary or accord law.

Where the Rome Statute leaves the door open for some development is in the final paragraph of the list of crimes against humanity, dealing with ‘other inhumane acts’. In the case law of the ad hoc tribunals concern has been showcased that ‘this category lacks precision and is too general to provide a safe yardstick for the work of the Tribunal and hence, that it is contrary to the principle of the “specificity” of criminal law’. The International Criminal Tribunal for the Former Yugoslavia has suggested that the legal parameters of ‘other inhumane acts’ be found in a set of basic rights appertaining to human beings drawn from the norms of human rights law in the international society. It views ‘other inhumane acts’ as a residual category, providing crimes against humanity with the tractability to cover serious violations of human rights that are not specifically highlighted in the other paragraphs of the definition, on the condition that they be of comparable strength. The examples given by the Tribunal of inhumane acts not specifically listed in the definition of crimes against humanity in the Statute of the Yugoslav Tribunal are the forcible transfer of groups of civilians, applied prostitution and the enforced disappearance of persons.

In the Akayesu decision, the Rwanda Tribunal used ‘other inhumane acts’ to cover such behaviour as forced nakedness of Tutsi women. The Yugoslav Tribunal concluded that the forced bussing of thousands of women, children and elderly persons from Potocari, in the Srebrenica enclave, contained of an ‘inhumane act’. Those being bussed were not told where they were going, some were struck and abused by Serb soldiers as they boarded the buses, the buses themselves were overcrowded and unbearably hot, and stones were thrown at them as they travelled around. After disembarking, the victims had to walk through several kilometres through a ‘no man’s land’.

But, under the Rome Statute, the concept of ‘other inhumane acts’ may actually be narrowed by the addition of the words ‘of a alike character intentionally causing great suffering, or serious injury to body or to mental or physical health’. It is open to question whether the acts of sexual affront doomed by the Rwanda Tribunal would now fit within the restrictive language of the Rome Statute. The provision was criticised by a Trial Chamber of the Yugoslav Tribunal for failing ‘to provide a denotation, even indirectly, of the legal standards which would allow us to identify the prohibited inhumane acts’.

Article 7 concludes with two further paragraphs that endeavour to define some of the more difficult terms of paragraph 1. Consequently, the term ‘attack’ is defined, as explained above, as well as ‘extermination’, ‘enslavement’, ‘deportation or forcible transfer of population’, ‘torture’, ‘forced pregnancy’, ‘persecution’, ‘the crime of apartheid’ and ‘enforced disappearance of persons’. Some of these definitions reflect customary law, but some plainly go further. They are also affected by, and have themselves influenced, the case law of the ad hoc tribunals.

Torture is defined by Article 7(2)(e) as ‘the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful approval’. There is nothing here to suggest the perpetrator must be in some official capacity, or that the torture must be channelled for a prohibited purpose. Yet, Article 1 of the Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment includes, in its definition of torture, the requirement that it be inflicted ‘for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is applied by or at the instigation of or with the approval or acquiescence of a public official or other person acting in an official capacity’. The ad hoc tribunals have regularly highlighted the definition in the Convention Against Torture as a reflection of customary international law. However, recent decisions take the perspective, consistent with the text of the Rome Statute, that customary international law does not demand that torture be committed by a person acting in an official capacity. In one ruling, a Trial Chamber of the Yugoslav Tribunal specifically concerned to the Rome Statute as evidence that customary law does not impose an official capacity criterion as part of the crime of torture.

A special provision defines ‘gender’, not only for the purposes and aims of crimes against humanity but also for whenever else it may be used in the legislative act. In a expression borrowed from the 1995 Beijing Conference, Article 7 states that ‘it is understood that the term “gender” refers to the two sexes, male and female, within the boundary of society’.

1.4.3 WAR CRIMES

The lengthiest provision defining offences within the jurisdiction of the International Criminal Court is Article 8, entitled ‘War crimes’. This is certainly and evidently the oldest of the four categories. War crimes have been punished as domestic offences probably since the beginning of criminal law. The trials conducted at Leipzig in the early 1920s, as a consequence of Articles 228 to 230 of the Treaty of Versailles, convicted an enormously larger number of German soldiers of ‘acts in violation of the laws and customs of war’. The basis in international law for these offences was the Regulations annexed to the 1907 Hague Convention IV. And while that instrument had not originally been defined as a source of individual criminal responsibility, its terms had been the ground of the definitions of war crimes by the 1919 Commission on Responsibilities. Certainly, from that time on, there is little disagreement about the existence of war crimes under international law.

War crimes were subsequently codified in the Nuremberg Charter, where they are defined in a succinct provision:

“Violations of the laws or customs of war shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity.”

Four years later, in the ‘grave breaches’ provisions of the four Geneva Conventions of 1949, a second codification was promoted:

“wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”

Both of these provisions do not by any extent cover the entire range of serious violations of the laws of war. They broaden only to the most severe atrocities, and their victims must be, by and large, civilians or non-combatants. Moreover, these provisions only contemplate armed conflicts of an international nature.

Until the mid-1990s, there was appreciable confusion about the scope of international criminal responsibility for war crimes. Some considered that the law of war crimes had been codified and that consequently, since 1949, the concept was only left to grave breaches of the Geneva Conventions. But the Conventions however, only covered the scope of what is known as ‘Geneva law’, addressing the protection of the victims of armed conflict. War crimes as conceived at Nuremberg were derivatives from ‘Hague law’, which concentrated on the methods and materials of warfare. In any case, beyond these two groups there seemed to be little doubt that international criminal responsibility did not extend to internal armed conflicts. Indeed, when the 1949 Geneva Conventions were updated with two additional protocols in 1977, the drafters quite explicitly excluded any suggestion that there could be ‘grave breaches’ during a non-international armed conflict.

This conception of the law of international criminal responsibility was reflected in the Statute of the International Criminal Tribunal for the Former Yugoslavia, accepted in May 1993. At the time, the Secretary-General made it clear that the Statute would not be creative and that it would confine itself to crimes generally recognised by customary international law. Accordingly,

There were two different provisions accordingly, Article 2, covering ‘grave breaches’ of the Geneva Conventions, and Article 3, addressing the ‘Hague law’ violations of the ‘laws and customs of war’. But movement was afoot, and a year later, when it adopted the Statute of the International Criminal Tribunal for Rwanda, the Security Council recognised the punishability of war crimes in armed conflicts related to the interior. A year later, in its first major judgment, the Appeals Chamber of the ICTY stunned international lawyers by giving a broad and creative reading of the two categories of war crimes in the ICTY Statute, affirming the fact that international criminal responsibility included acts committed during internal armed conflict. In Tadic, the judges in effect read this in as a component of the rather archaic term ‘laws or customs of war’. These growths were on the ground that this was dictated by the evolution of customary law. Their renditions were open to criticism as a form of retroactive legislation. Yet doubts about the broadening of the scope of war crimes were laid to rest at the Rome Conference in 1998, when States affirmed that they were cooked to recognise responsibility for war crimes in non-international armed conflict.

Article 8 of the Rome Statute is one of the longest provisions in the Statute, and is all the more striking when made in comparison with the relatively laconic provisions of the Nuremberg Charter and the Geneva Conventions. To some extent it represents a progressive growth over these antecedents, because it expressly covers non-international armed conflicts. Furthermore, some war crimes are defined in considerable detail, concentrating attention on their forms and variations. Yet such well detailed definition may also serve to narrow the scope of war crimes in some cases. In the future, judges will have greater problems undertaking the kind of judicial law-making that the Yugoslav Tribunal performed in the Tadic case, and this will make it harder for justice to keep up with the imagery and inventiveness of war criminals. Indeed, the Tadic Appeals Chamber, with its bold initiatives at judge-made law, may well have frightened States who then settled that they would leave far less room for such growths in any statute of an international criminal court. Of course, the definitions in the Statute can always be amended, but the process is awkward.

The drafters of the Rome Statute drew upon the existing sources of war crimes law and these are reflected in the structure of Article 8, although the law would have been considerably more accessible and coherent had they tried to rewrite this wide body of norms in a more simple and easy form. As it now stands, Article 8 consists of four categories of war crimes, two of them referring to international armed conflict and two of them non-international armed conflict. Not only are the specific acts set out in agonising detail, but the actual categories impose a hard exercise of assessment of the type of armed conflict involved. Courts will be required to differentiate between international and non-international conflicts, and this is further compromised by the fact that within the subset of non-international conflicts there are two distinct categories. The judgments of the Yugoslav Tribunal have even already highlighted just how difficult this task of qualification can be.

The Elements of Crimes clarify that, while the Prosecutor must establish these threshold elements of war crimes, he or she need not prove that the perpetrator had prior knowledge of whether or not there was an armed conflict at all, or whether it was international or non-international in category. According to the Elements, ‘there is only a requirement for the awareness of the factual circumstances that established the existence of an armed conflict that is implicit in the terms “took place in the context of and was related with” ’.

Not every act listed under Article 8 and committed while a country is at war will constitute a punishable crime before the Court. There must also be a nexus between the act committed and the conflict. This implied requirement has been grown in the case law of the ad hoc tribunals. In Kunarac, a Trial Chamber of the Yugoslav Tribunal expansiated that:

“the criterion of a nexus with the armed conflict . . . does not require that the offences be directly committed whilst fighting is actually taking place, or at the scene of combat. Humanitarian law continues to apply in the whole of the territory under the control of one of the parties, whether or not actual combat continues at the place where the events in question took place. It is therefore sufficient that the crimes were closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict. The requirement that the act be closely related to the armed conflict is satisfied if, as in the present case, the crimes are committed in the aftermath of the fighting, and until the cessation of combat activities in a certain region, and are committed in furtherance or take advantage of the situation created by the fighting.”

In Akayesu, the Appeals Chamber of the International Criminal Tribunal for Rwanda ruled that there were no particular avoidance on persons who could be charged with war crimes. It overruled the Trial Chamber, which had earlier refused to convict local officials of war crimes; haven accepted the existence of an internal armed conflict within Rwanda in 1994. For the Trial Chamber, even proof that an accused wore military clothing, carried a rifle, and assisted the military is insufficient to give that he ‘acted for either the Government or the Rwandese Patriotic Front in the execution of their several conflict objectives’. According to the Appeals Chamber, ‘international humanitarian law would be decreased and called into question’ if certain persons were freed from individual criminal responsibility for war crimes under the guise that they did not belong to a certain category.

The first category of war crimes counted in Article 8 is that of ‘grave breaches’ of the Geneva Conventions. The four Geneva Conventions were accepted on 12 August 1949, exchanging an earlier and rather more summary protection contained in the two Geneva Conventions of 1929. The four Conventions are distanced by the group of persons being protected: Convention I covers wounded and sick in land warfare; Convention II protects wounded, sick and shipwrecked in sea warfare or water related; Convention III covers prisoners of war; and Convention IV protects armless civilians. Probably the most important and major difference between the two generations of treaties is that the 1949 Conventions finally accorded a detailed protection of civilian non-combatants. But another very important growth in the 1949 treaties was the recognition of individual criminal responsibility for certain particularly severe violations of the treaties, known as ‘grave breaches’. This was an incredible idea at the time, the recognition by States that they were accommodated to examine and pursue or deliver persons suspected of committing ‘grave breaches’, irrespective of their nationality or the place where the crime was committed. By comparison, only months earlier the United Nations General Assembly had refused, in the case of genocide, to discern such broad obligations, as well as a right to prosecute on the basis of generally accepted jurisdiction. The obligation set out in the ‘grave breach’ provisions of the Geneva Conventions is often characterised by the Latin phrase aut dedere aut judicare, meaning ‘extradite or prosecute’.

The ‘grave breaches’ of the 1949 Conventions are limited in scope. According to the fourth or ‘civilian’ Convention, grave breaches consist of:

“wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”

The other three Conventions contain somewhat shorter reckonings, but the fundamentals remain the same. In terms of application, however, what was in 1949 a very evolutionary step of defining international crimes and responsibilities was accompanied by slimness in application: ‘grave breaches’ could only be counted as an offence in the course of international armed conflict.

Victims of ‘grave breaches’ must be ‘prior protected persons’. In the case of the first three Conventions, this means members of the armed forces of a party to the international armed conflict who are no more involved in antagonisms due to injury or capture. With respect to the fourth Convention, protected persons must be ‘in the hands of a Party to the conflict or Occupying Power of which they are not nationals/citizens’. The Yugoslav Tribunal has announced that even ‘nationals’, in the traditional international law sense, are protected if they cannot rely upon the protection of the State of which they are citizens because, for example, they belong to a national minority that is being victimised. According to the Elements of Crimes, the perpetrator need not know the nationality of the victim, it being ample that he or she knew that the victim belonged to a contrary party to the conflict.

Because there is so little case law in the application of the Geneva Conventions, many of the terms used in the Statute (and the Conventions) still await judicial meaning. For instance, what is the difference between ordinary ‘killing’, a familiar formula in national criminal law systems, and ‘wilful killing’, the term used in the Conventions? And what of ‘appropriation of property’, which must be carried out not only ‘unlawfully’ but also ‘licentiously’? Subsequent to the adoption of the Statute, participants in the Preparatory Commission devoted a great deal of attention to assigning the aspect of these provisions. In their work, they were guided majorly by the Commentaries to the Geneva Conventions, prepared by the International Committee of the Red Cross during the 1950s. The Commentaries are based overwhelmingly on the travaux pr´eparatoires of the Conventions and constitute the principal interpretative source thereof.

The second category of war crimes that is listed in Article 8 of the Rome Statute is ‘other serious violations of the laws and customs applicable in international armed conflict, within the founded framework of international law’. The wording makes it quite explicit that this category, found in paragraph (b), is, like the crimes in paragraph (a), confined to international armed conflict. The list consists of crimes generally defined as ‘Hague law’, because these are principally drawn from the Regulations annexed to the 1907 Hague Convention IV. There is no prior provision, unlike the situation for ‘grave breaches’, that the victims be ‘protected persons’. Indeed, the overall focus of Hague law is on the involving soldiers themselves as victims. Hague law is concerned not so much with the innocent victims of war such as unarmed populace, as with its very authors, the combatants. More than Geneva law, then, it is the furtherance of ancient rules of chivalry and similar systems reflecting a code of conduct among warriors. In fact, some of the language sounds beneficially anachronistic. In the past, this was also the source used by the Commission on Responsibilities that explored the notion of war crimes following World War I, as well as of the post-World War II tribunals at Nuremberg, Tokyo and elsewhere. Unlike the Geneva Conventions, which have a rigorous codification of ‘grave breaches’, the notion of ‘serious violations of the laws and customs of war’ is rather malleable and has generated over the years.

Further to those provisions reflecting the terms of the 1907 instrument, there are also some very new and recent crimes in paragraph (b). These were in a sense codified by the drafters at Rome and it is not doubtful that those charged in the future will argue that they were not part of customary law applicable at the time the Statute was accepted. Among the new provisions included in Article 8(2)(b) are those concerning the protection of humanitarian or peacekeeping missions and prohibiting environmental degradation. Probably the most confusing and controversial provision was sub-paragraph (viii), defining as a war crime ‘the transfer, directly or indirectly, by the domineering Power of components of its own civilian population into the territory it occupies, or the expatriation or transfer of all or parts of the population of the dominated boundary within or outside this territory’. The provision governs not only population transfer within the occupied territory, but also the transfer by an occupying power of parts of its own civilian population into the occupied territory. Israel felt itself most essentially targeted by the provision, and in a speech delivered on the evening of 17 July at the close of the Rome Conference, it declared it would vote against the Statute because of its nuisance that a crime not considered before to be part of customary international law had been included in the instrument because of political emergencies. But including transfer of a civilian population to an occupied territory within the definition of war crimes is perfectly related with the system of the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia in Tadic, whereby serious violations of the Geneva Conventions that are not viewed as to be ‘grave breaches’ may nevertheless constitute violations of the laws or customs of war.

The category of ‘serious violations of the laws and customs of war’ also contains several offences absorbed from Protocol Additional I to the Geneva Conventions of 1949. Protocol Additional I, accepted in 1977, expanded somewhat upon the conceptualization of grave breaches in the 1949 Conventions, although it also slightly watered down the obligations upon States that flow from them. Interestingly, the Rome Statute also includes some of these new ‘grave breaches’ within paragraph (b) rather than in paragraph (a), but it does not include them all. Unlike the four Geneva Conventions, which have benefitted from near-universal confirmation, Protocol Additional I still enjoys far less consensus, and its reflection in Article 8 of the Rome Statute testifies to the on-going impossibilities with respect to its definitions of ‘grave breaches’. Protocol Additional I applies to a somewhat broader chain of conflicts than the four Geneva Conventions, and the Prosecutor might well argue before the International Criminal Court that the specific provisions in Article 8 derived from Protocol Additional I can be committed in ‘armed conflicts which peoples are fighting against colonial rules and alien occupation and against racist regimes in the exercise of their right of determination in solidarity’.

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