An Introduction to International Criminal Law and Procedure PDF

Genocide 09/08/24, 10:14...

Genocide 09/08/24, 10:14 An Introduction to International Criminal Law and Procedure ISBN 9781108680455 Part IV Substantive Law of International Crimes 10 Genocide 10 Genocide 10.1 INTRODUCTION 10.1.1 Overview Genocide ‘is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human be‐ [email protected], Fri, 09 Aug 2024 08:13:41 GMT ings’.1 It is a crime simultaneously directed against individual victims, the group to which they belong, and human diversity. What makes genocide particularly abhorrent is the intention to destroy a group of people. This particular intent, a necessary element of the crime, distin‐ guishes it from all other international crimes. It explains why genocide is regarded as having a particular seriousness, and why it has been re‐ seenferred to as the ‘crime of crimes’.2 The seriousness of the crime is underlined by the fact that its prohibition has attained the status of a jus co‐ gens norm3 and an erga omnes obligation.4 The legal concept of genocide is narrowly circumscribed, the term ‘genocide’ being reserved in law for a particular subset of atrocities which are committed with the intent to destroy groups, even if the word is colloquially used for any large-scale killings.5 Most of the crimes com‐ mitted by the Pol Pot regime in Cambodia in 1975–79, for example, are atrocities which do not readily fit within the narrow legal definition of genocide, however dreadful the suffering they caused.6 The definition has been criticized as being too limited. Victim groups have wanted to appropriate the term for atrocities which may fall out‐ side the definition. There is a wish to attract the mobilizing power of the label, reference being made to the obligation imposed by the Geno‐ cide Convention (Article I) to prevent genocide and the possibility (mentioned in Article VIII) of involving the United Nations if genocide is committed.7 mini Further, if the crime of genocide is said to stand at the apex of international criminality there will be emotional or political reasons for wish‐ ing to use the label for all particularly serious atrocities. Not to use the term may seem like a judgment on a victim group’s suffering.8 The re‐ Trae sponse is that if the classification is to be meaningful, the term should be precisely and carefully used, both on legal grounds and on the ground that if the term is stretched, it reduces its capacity to evoke a unique form of devastation; belittling the scale and intensity of unmis‐ takable forms of genocide such as the Holocaust. A decision that a particular atrocity is not ‘genocide’ does not of course remove the moral or legal guilt for conduct that falls within the definition of other international crimes such as crimes against humanity. When the conduct constituting the offence is attributable to a State, genocide, like other international crimes, is not only a crime of individual responsibility: it also engages State responsibility. In the Bosnian Genocide case, Bosnia took proceedings in the International Court of Justice (ICJ) alleging breaches of the Genocide Convention9 by Serbia in attempting to destroy protected groups, in particular the Muslim popula‐ Tato tion. The Court confirmed that the Convention not only imposes a duty on States to prevent and punish genocide but also an obligation to Fairy refrain from genocide.10 This is not to introduce a concept of State crime or State criminal responsibility; the obligation is one of State re‐ sponsibility under general international law.11 The standard definition of genocide is contained in Article II of the Genocide Convention, which is adopted verbatim in the Statutes of the ad L c hoc Tribunals and of the International Criminal Court (ICC). It is: i iiiwin any of the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; https://ereader.cambridge.org/wr/printpage.html Pagina 1 di 18  Genocide 09/08/24, 10:14 (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group. Almost every word of this definition has raised difficulties of interpretation. 10.1.2 Historical Development The identification of genocide as an international crime came as a response to the Holocaust. Massacres with the purpose of exterminating national or ethnic minorities were not a twentieth-century novelty, but the term ‘genocide’ was not coined until 1944 by Raphaël Lemkin, a Polish lawyer.12 The indictment of the defendants at Nuremberg stated that they had conducted: deliberate and systematic genocide, viz., the extermination of racial and national groups, against the civilian i population of certain occupied territories in order to destroy particular races and classes of people, and national, racial or religious groups, particularly Jews, Poles, and Gypsies.13 However, genocide as such was not a crime within the jurisdiction of the Nuremberg Tribunal, and the term was not mentioned in its judg‐ ment. As the International Criminal Tribunal for Rwanda (ICTR) said many years later: The crimes prosecuted by the Nuremberg Tribunal, namely the holocaust of the Jews or the ‘Final Solution’, were very much constitutive of genocide, but they could not be defined as such because the crime of genocide aatueyiniaas.ae was not defined until later.14 ifeng.fiaa All of the crimes prosecuted by the Nuremberg Tribunal and its immediate successors were defined as having a connection with war. It was because of this restriction in the definition of crimes against humanity that it was necessary to recognize the crime of genocide as a separate international crime. This was done in General Assembly Resolution 96(1) of 11 December 1946. Two years later, the Genocide Convention was concluded, having been drafted largely by the Sixth Committee of the UN General Assembly; it came into force on 12 January 1951. In the same year, the ICJ declared that the prohibitions contained in the Convention constituted customary international law.15 Although Article VI refers to the possibility of an international court being available to try cases of genocide, it was not until the establish‐ ment of the ad hoc Tribunals in 1993 and 1994 that this became a reality. The first conviction for genocide by an international court was recorded on 2 September 1998 by the ICTR, of Jean-Paul Akayesu, a Rwandan mayor. Two days after his conviction Jean Kambanda, the for‐ mer Prime Minister of Rwanda, was sentenced to life imprisonment after pleading guilty to genocide, conspiracy, incitement, complicity in genocide, as well as crimes against humanity. 10.1.3 Relationship to Crimes Against Humanity Genocide has obvious similarities to crimes against humanity.16 As mentioned in section 10.1.2, the Nuremberg defendants were charged with war crimes and crimes against humanity for what would now be prosecuted as genocide. The Genocide Convention makes clear in Arti‐ cle I that genocide can be committed in time of peace as well as in war and there is no nexus between genocide and armed conflict.17 The chief difference between the two categories of crimes is the intent to destroy the whole or part of a group, which is a necessary element of genocide. The interests protected by the law against genocide are narrower than for crimes against humanity. The law against genocide pro‐ tects the rights of certain groups to survival, and thus human diversity,18 but the similar crime against humanity – persecution ‘against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender … or other grounds that are universally recog‐ nised as impermissible under international law’ – protects groups from discrimination rather than elimination. Thus, ‘when persecution esca‐ lates to the extreme form of willful and deliberate acts designed to destroy a group or part of a group, it can be held that such persecution amounts to genocide’.19 i 10.1.4 Nature of Genocide https://ereader.cambridge.org/wr/printpage.html Pagina 2 di 18  Genocide 09/08/24, 10:14 Unlike crimes against humanity, the crime of genocide does not explicitly include any objective requirement of scale. The threshold for a crime against humanity is its connection to a widespread or systematic attack directed against a civilian population. In contrast, the gravity of genocide is primarily marked by the subjective mens rea (the intent to destroy a national, ethnic, racial or religious group as such), which in principle is only in the mind of the perpetrator. However, if the threshold for genocide is only a mental element, without an objective requirement of scale or serious threat, that would raise important questions about the nature of genocide and its status as the ‘crime of crimes’. Can it be ‘genocide’ where an isolated individual acts with a fervent, albeit unrealistic, intent to destroy a group? During the negotiation of the ICC Elements of Crimes, for example, the US dele‐ iti gation pointed out that an isolated hate crime, if committed with the requisite intent, would satisfy the description in the Genocide Conven‐ tion, and yet it would seem absurd to label a single murder by an isolated individual as a ‘genocide’.20 ideaThe International Criminal Tribunal for the former Yugoslavia (ICTY), in the Jelisić, case, stated that killings committed by a single perpetra‐ tor are enough: iiiiiiiii to establish the material element of the crime of genocide and it is a priori possible to conceive that the accused harboured the plan to exterminate an entire group without this intent having been supported by any in organisation in which other individuals participated. ma a The Chamber ‘did not discount the possibility of a lone individual seeking to destroy a group as such’.21 Such a view is not supported consis‐ tently in the case law, or in academic writing.22 William Schabas, for example, described the possibility as ‘little more than a sophomoric hy‐ as pothèse d’école’.23 Others go further, taking the view that the very nature of genocide requires a structural element.24 Mark Drumbl rightly notes that ‘[a]rchetypically, genocide is a collective crime’,25 but a collective element is not a legally required element of the crime.26 It is ordinarily assumed, therefore, that several protagonists are involved in the crime of genocide.27 Although it is not a formal element of the crime that there be a genocidal plan,28 the Tribunals have noted that it would be difficult to commit genocide without one.29 The only realis‐ tic exception may be where others were committing crimes against humanity, without genocidal intent, but a single perpetrator had the intent Iiii iii to eliminate a group while committing the same atrocities. In such a situation, the surrounding crimes against humanity would already pro‐ vide the pattern of mass atrocities, so it might be conceivable for an individual with the necessary intent to carry out acts that could be de‐ scribed as ‘genocide’.30 Two different ways have been proposed for ensuring that the crime of genocide includes some objective dimension of scale or a threat to a group. The first approach is that taken in the ICC Elements of Crimes, which add a ‘contextual element’ to the actus reus, requiring that the conduct for which the defendant is on trial takes place in the context of ‘a manifest pattern of similar conduct’ or is of itself able to destroy at least part of the group. This contextual element rules out most situations of isolated crimes by requiring either a broader pattern of crimes or a concrete threat to the group. It is discussed in more detail at section 10.3.2. The alternative approach, proposed in the context of the intent requirement, is that there must be an organized and widespread plan to exter‐ minate a group and the perpetrator must act with knowledge that the commission of the individual act would, or would be likely to, further the implementation of the plan.31 This approach, which has not to date been accepted in jurisprudence of international Tribunals, is dis‐ cussed at the end of section 10.4.1. and 10.2 PROTECTED GROUPS Not all groups of people are protected by the Genocide Convention.32 The Convention lists only national, ethnic, racial and religious groups, and the list is a closed one. During the negotiation of the Convention attempts were made to include other groups, such as social and political ones, but those proposals failed.33 Ever since the conclusion of the Convention there have been criticisms of its narrow focus and proposals have been made to expand it, but these have all been similarly unsuccessful.34 It has also been suggested that other groups come within the scope of genocide by virtue of customary international law.35 inside Another approach has been to expansively interpret the existing terms so as to include other groups within the definition. For example, the successful ICTR Trial Chamber in the Akayesu case determined on the basis of a (mis)reading of the travaux préparatoires that the drafters of the Con‐ p https://ereader.cambridge.org/wr/printpage.html Pagina 3 di 18  Genocide 09/08/24, 10:14 vention intended to protect any stable and permanent group, rather than the groups specifically mentioned.36 This approach was followed by the Commission of Inquiry established at the request of the Security Council to investigate violations of international criminal law in Darfur.37 The Commission stated that this expansive interpretation had ‘become part and parcel of international customary law’.38 While stability and permanence were certainly used as criteria by some delegates in the Sixth Committee to argue for or against the inclusion of a particular group in the drafting of the Convention, there is no evidence that these criteria were accepted as an open-ended description of protected groups. The enumerated list of groups, rightly or wrongly, was intended to be exhaustive. The view that the Convention list of groups is not exhaustive is not supported by case law other than Akayesu, nor by general State practice and opinio juris, and cannot be seen as reflective of current law. The ICTY Appeals Chamber39 and the ICC have adopted this view.40 estuary vimeo.ie There are national jurisdictions that have adopted wider formulations of the protected groups in their domestic law.41 At the domestic level, States are entitled to use broader definitions without requiring other States to accept them.42 It has been rightly said that it is precisely be‐ iii cause of the rigours of the definition, and because of its focus on crimes aimed at the eradication of particular groups, that genocide is espe‐ 43 mican cially stigmatized. give 10.2.1 National, Ethnical, Racial and Religious Groups Given that these four groups are the exclusive beneficiaries of the protection of the Genocide Convention, it is unfortunate that there is no internationally recognized definition of any of the terms it uses. It is difficult to attribute a distinct meaning to each group, since they overlap considerably.44 The ICTR has attempted to give each one a meaning. In past judgments it has described a national group as a ‘collection of people who are perceived to share a legal bond based on common citizenship, coupled with reciprocity of rights and duties’;45 what it de‐ scribed as the ‘conventional definition’ of racial group ‘is based on the hereditary physical traits often identified with a geographical region, irrespective of linguistic, cultural, national or religious factors’;46 an ethnic group it described as ‘a group whose members share a common iii language or culture’;47 and ‘a religious group includes denomination or mode of worship or a group sharing common beliefs’.48 But to attempt to give each term its own definition risks missing the wood for the trees. The ICTR Trial Chamber in Akayesu ran into difficul‐ ties in assessing whether the Tutsi were a protected group in the context of the widespread massacres in Rwanda.49 Having defined an ethnic group as sharing a common language or culture, the evidence before the Chamber made it clear that this was not the trait that distinguished the Tutsis from the Hutus. The Chamber had to rely on the fact that Rwandans were required to carry identification cards indicating the eth‐ iiiiiiii nicity of the bearer as Hutu, Tutsi or Twa and that the Tutsi constituted a group referred to as ‘ethnic’ in official classifications. It was only by virtue of its determination that any ‘stable and permanent’ group was covered by the Convention, and therefore by the ICTR Statute, that the I in Chamber was able to find that the Tutsi were a protected group.50 As mentioned above, the decision on this point is not legally defensible. That would not, however, change the outcome in this case, as the Tutsi are considered an ethnic group on the correct interpretation of the Convention, and the ICTR has taken judicial notice of that fact.51 The better approach, followed by the Krstić Trial Chamber, is to recognize that the list is exhaustive but to accept that the four groups were not given distinct and different meanings in the Convention. As they said: The preparatory work of the Convention shows that setting out such a list was designed more to describe a single phenomenon, roughly corresponding to what was recognised, before the Second World War, as ‘national minorities’, rather than to refer to several distinct prototypes of human groups. To attempt to differentiate each of the named groups on the basis of scientifically objective criteria would thus be inconsistent with the object and purpose of the Convention.52 The groups also ‘help to define each other, operating much as four corner posts that delimit an area within which a myriad of groups covered by the Convention find protection’.53 This ‘four corners’ approach avoids the difficulties of fitting a group such as the Tutsis precisely into one of the listed categories, but ensures that it comes within the area of protection that was intended by the negotiators, while also respecting the negotiators’ intent that the list be a closed one. 10.2.2 Identifying the Group and its Members https://ereader.cambridge.org/wr/printpage.html Pagina 4 di 18  Genocide 09/08/24, 10:14 µ As is clear from the wording of the different parts of the actus reus of the offence, the acts must be directed at members of the group. Howev‐ Kation acres er, determination of the groups and their members is not a simple matter.54 It is certainly more difficult than the drafters of the Convention, working against the presuppositions (and perhaps prejudices) of their era, thought. There are genuine difficulties in deciding if a person is a member of the group. For example, should the group be identified objectively (pointing to factual distinctions) or subjectively (based on per‐ ceptions)?55 avg.ed It is by no means clear that groups intended to be protected by the Genocide Convention always have an objective existence in the manner which the drafters thought. Groups are often social constructs, rather than scientific facts. This problem was discussed by the Darfur Com‐ tea mission, owing to the fact that, although the United States had described the crimes committed in Darfur as ‘genocide’,56 on close analysis the question of group existence in Darfur was complicated. The Commission found that the Fur, Massalit and Zaghawa groups did not appear to make up ethnic groups distinct from those to which their attackers belonged. They had the same religion, and the same language, though the ‘Africans’ spoke their own dialect in addition to Arabic, while the ‘Arabs’ spoke only Arabic. Years of inter-marriage and coexistence had blurred the distinction between the groups. The sedentary or nomadic character of the groups appeared to constitute one of the main distinc‐ whitey tions between them.57 The Commission relied upon a partially subjective concept of groups in deciding that the victim groups nevertheless came within the scope of the crime of genocide. Victims and perpetrators had ‘come to perceive themselves as either “African” or “Arab”’. A ‘self-perception of two distinct groups’ had emerged.58 When the same question came before the ICC Pre-Trial Chamber in the Al-Bashir arrest warrant case, the majority found that each of the three groups had ‘its own language, its own tribal customs and its own traditional links to its lands’ and was therefore a distinct ethnic group. The majority did not consider it necessary to explore the subjective or objective approach to the definition of groups.59 Interestingly, Judge Ušaka, in dissent, argued that the three groups ought to be taken together as, in the Darfurian context, the ethnic faultline was considered to fall along the grounds of ‘Arab’ and ‘African’, the latter encompassing all three groups.60 A subjective approach has its attractions: that is, the criterion for the identification of members of the group is that a perpetrator considers the victims to be members of a group he or she is targeting. The most significant factor in a particular case may be that the perpetrators have the specific intent to destroy a group identified by themselves. As was said in the Bagilishema case: A group may not have precisely defined boundaries and there may be occasions when it is difficult to give a definitive answer as to whether or not a victim was a member of a protected group. Moreover, the perpetrators of genocide may characterize the targeted group in ways that do not fully correspond to conceptions of the group shared generally, or by other segments of society. In such a case, the Chamber is of the opinion that, on the evidence, if a victim was perceived by a perpetrator as belonging to a protected group, the victim should be considered by the Chamber as a member of the protected group, for the purposes of genocide.61 However, reliance on a purely subjective approach is uncomfortable, as it may be, as with all racism, that perceptions may be based on imag‐ ined distinctions rather than objective ones.62 While the ad hoc Tribunals have in some cases appeared to use an entirely subjective approach,63 the better view is that the group must have some form of at least perceived reality in the first place; otherwise the Convention could be used to protect fictitious national, ethnic, racial or religious groups. It now seems settled that the identification of members of the group cannot be solely subjective. To overcome the problems of purely objec‐ tive and purely subjective approaches, the Tribunals have adopted an approach that blends the two. The approach is sensitive to the fact that the idea of a separate group may not have a basis in objective facts, but can be a set of reified beliefs about difference. Thus, determining whether a group is a protected one should be ‘assessed on a case-by-case basis by reference to the objective particulars of a given social or his‐ torical context, and by the subjective perceptions of the perpetrators’.64 In addition, it is now well established that, notwithstanding some case law to the contrary,65 a group cannot be defined ‘negatively’, i.e. by identifying persons not sharing the group characteristics of the perpetrators, for example, ‘non-Serbs’.66 It is also the case that where a person has a mixed identity, if he or she is targeted on the basis of membership of the protected group, the person so targeting them may be guilty of genocide. Thus in the Ndindabahizi case, the ICTR accepted that a half-Belgian, half-Rwandan man, who was targeted as a Tutsi in the Rwan‐ dan genocide, was, in context, a member of a protected group.67 https://ereader.cambridge.org/wr/printpage.html Pagina 5 di 18  Genocide 09/08/24, 10:14 10.3 MATERIAL ELEMENTS 10.3.1 Prohibited Acts Not every act committed with the intention to destroy, in whole or in part, a protected group will lead to a conviction for genocide. Only those which are mentioned in Article II of the Convention may form the actus reus of genocide. Further, it is important to remember that it is not necessary to show that the relevant act assisted in destroying a protected group: what is needed is that it was committed with the inten‐ tion to destroy the group. Although all of the underlying crimes are defined by reference to victims in the plural, the ICC Elements of Crimes state that even one victim suffices, if the relevant act is committed with the necessary intent. This does, though, create issues with respect to Article 6(c), which refers to inflicting conditions of life on the ‘group’. Killing Article II(a) covers the paradigmatic conduct that amounts to genocide: killing members68 of the group. However, there are certain interpre‐ tative problems which have had to be resolved. The English term ‘killing’ (which the ICC Elements of Crimes state is interchangeable with ‘caused death’) is neutral as to whether the killing is intentional, or whether reckless (or perhaps even negligent) causing of death suffices. The term used in the French version of the Genocide Convention, ‘meurtre’, is more precise. In Kayishema, the ICTR determined that there is vir‐ tually no difference between the terms in the English and French versions of the Convention.69 The act must be intentional but not necessari‐ ly premeditated.70 If there is doubt about the intention to kill, rather than the intention to cause serious harm, it is of course possible to charge the defendant pursuant to Article II(b) of the Convention for the conduct that led to the death. Causing Serious Bodily or Mental Harm to Members of the Group ii In spite of the vernacular understanding of genocide as being confined to conduct causing death, the drafters of the Genocide Convention were not so limited in their understanding of the crime. Article II(b) of the Convention also criminalizes the causing of serious bodily or mental harm to victims. The ICTY has determined that the harm needs to constitute ‘a grave and long-term disadvantage to a person’s ability apretations to lead a normal and constructive life’.71 The ICTR in the Akayesu case broke new ground in deciding that acts of sexual violence and rape can constitute genocide; sexual violence was found to be an integral part of the process of destruction in the Rwanda genocide.72 The ICC Ele‐ iiÉiments follow this approach. 73 Yours Owing to its concerns about the possible breadth of the mental harm aspect of genocide, the United States entered an ‘understanding’ to the Convention upon ratifying, which stated that the term ‘means permanent impairment of mental faculties through drugs, torture or similar techniques’. Serious mental harm does mean more than minor or temporary impairment of mental faculties,74 but neither mental nor physi‐ cal harm need be permanent.75 Obviously, as the term ‘serious’ is one which involves a value judgement,76 there will be differing views on what treatment is included. In Kayishema, it was held that decisions on what is meant by serious bodily or mental harm should be made on a I case-by-case basis.77 Deliberately Inflicting on the Group Conditions of Life Calculated to Bring About Its Physical Destruction in Whole or in Part This category of prohibited acts comprises methods of destruction whereby the perpetrator does not immediately kill the members of the group, but which seek to bring about their physical destruction in the end.78 The ICC Elements of Crimes interpret the term ‘conditions of I life’ as including but ‘not necessarily restricted to, deliberate deprivation of resources indispensable for survival, such as food or medical ser‐ vices, or systematic expulsion from homes’.79 Unlike the two previous categories, this is not a result-based form of the crime80 but it requires that the conditions are ‘calculated’ to achieve the result.81 The question of the forced migration of people, commonly known by the ugly term ‘ethnic cleansing’, has been addressed under this subpara‐ graph of Article II. This practice, when committed by the Serbs to eliminate the Muslim presence in large parts of Bosnia-Herzogovina, was regarded by ad hoc Judge Lauterpacht in the ICJ provisional measures ruling of 13 September 1993 as constituting genocide,82 though his view was not shared by the majority. As seen above, the ICC Elements give ‘systematic expulsion from homes’ as one of the illustrations of this category of prohibited act. https://ereader.cambridge.org/wr/printpage.html Pagina 6 di 18 man inEichmanncase  Genocide 09/08/24, 10:14 Ethnic cleansing does not necessarily constitute genocide.83 In the Eichmann case, the District Court of Jerusalem found that, before 1941, Nazi persecution of the German Jewish population was aimed at persuading them to leave Germany. Only later did the policy develop into iiiin one of extermination. Since the court doubted that there was a specific intent to exterminate before 1941, Eichmann was acquitted of geno‐ cide for acts before that date.84 Eichmann is authority for the proposition that if and insofar as the objective of a forced migration is ‘only’ to remove a group or part of it Lawnfrom a territory, it differs from that of genocide. In Brđanin, for example, the Trial Chamber found a ‘consistent, coherent and criminal strate‐ gy of cleansing the Bosnian Krajina’ but determined that the crimes had been committed with ‘the sole purpose of driving people away’.85 There was no evidence that they had been committed with the intent required for genocide.86 The fact of forced migration alone is not enough for a court to deduce the special intent of destruction of the group. The matter was usefully summed up by the ICJ in the Bosnian Genocide case: Neither the intent, as a matter of policy, to render an area ‘ethnically homogeneous’, nor the operations that may be carried out to implement such policy, can as such be designated as genocide: the intent that characterizes genocide is ‘to destroy, in whole or in part’ a particular group, and deportation or displacement of the members of a group, even if effected by force, is not necessarily equivalent to destruction of that group, nor is such destruction an automatic consequence of the displacement. This is not to say that acts described as ‘ethnic cleansing’ may never constitute genocide, if they are such as to be characterized as, for example, ‘deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part’, contrary to Article II, paragraph (c), of the Convention … the term ‘ethnic cleansing’ has no legal significance of its own. That said, it is clear that acts of ‘ethnic cleansing’ may occur in parallel to acts prohibited by Article II of the Convention, and may be significant as indicative of the presence of a specific intent (dolus specialis) inspiring those acts.87 Imposing Measures Intended to Prevent Births Within the Group This provision88 (Article II(d) of the Genocide Convention) was inspired by the Nazis’ practice of forced sterilization before and during the Second World War. Examples of these measures given by the ICTR Trial Chamber in Akayesu are sexual mutilation, sterilization, forced birth control, separation of the sexes and prohibition of marriages.89 The Trial Chamber added: In patriarchal societies, where membership of a group is determined by the identity of the father, an example of a measure intended to prevent births within a group is the case where, during rape, a woman of the said group is deliberately impregnated by a man of another group, with the intent to have her give birth to a child who will consequently not belong to its mother’s group. Furthermore, the Chamber notes that measures intended to prevent births within the group may be physical, but can also be mental. For instance, rape can be a measure intended to prevent births when the person raped subsequently refuses to procreate, in the same way that members can be led, through threats or trauma, not to procreate.90 While this may stray into the separate crime of forced impregnation, it is not too broad given that genocidal intent, the requirement that the measures be ‘imposed’ and the intent to prevent births within the group must also be proven. Forcibly Transferring Children of the Group to Another Group This is a form of genocide which has received little judicial consideration.91 Probably the most authoritative interpretative source on the point is to be found in the ICC Elements of Crimes (Article 6(e)), defining children as being those below eighteen and noting that: [t]he term ‘forcibly’ is not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment. heights to them https://ereader.cambridge.org/wr/printpage.html Pagina 7 di 18  Genocide 09/08/24, 10:14 The provision (Article II(e)) was included in the Genocide Convention as a compromise for the exclusion of cultural genocide. In 1997, the Australian Human Rights and Equal Opportunities Commission controversially decided that the forcible transfer of Aboriginal children to non-indigenous institutions and families constituted genocide.92 The wording of the Commission’s findings indicated, however, that it was ‘cultural genocide’ that was in mind, since the objective of the transfers was to assimilate the children into non-Aboriginal society. Cultural genocide is not within the scope of the Convention,93 nor in customary law,94 although forcibly transferring children can be close to such a concept. 10.3.2 ‘Contextual Element’ The ICC Elements of Crimes have an additional material element, which was introduced to avoid the problem that isolated hate crimes could fall within the Convention definition, diluting the seriousness of the term ‘genocide’.95 In relation to each prohibited act the element requires that: [t]he conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.96 The first branch of this element reflects the more likely situation, where the individual accused is acting within a broader context in which others are also committing acts of genocide (or crimes against humanity) against the targeted group.97 The adjective ‘manifest’, included at the insistence of the United States, means that the pattern must be a clear one and not one of a few isolated crimes occurring over a period of years.98 The second branch applies where the conduct in question ‘could itself effect such destruction’. Although by far the less likely, this could occur where a group is particularly small or where the accused has access to powerful means of destruction (such as the use of a nuclear or biologi‐ iii cal weapon) with genocidal intent. In such a case there is no need for a pattern of similar conduct, since the accused is in a position to pose a real threat to a protected group. The provision would be relevant for prosecutions of ringleaders and instigators. It would also capture those who had the means to destroy a group but for whatever reason managed to cause only a single death or a few deaths, such that there would be margin no objective ‘pattern’.99 entri The contextual element does not entirely exclude the possibility of a ‘lone génocidaire’, since it requires similar conduct, not similar intent;100 the second clause of the element also envisages a single perpetrator with the means to destroy the group or part of it. The element requires either a pattern of crimes, or a concrete danger to a group, thereby ruling out isolated hate crimes. The Elements of Crimes are equivocal on the mental element attaching to this element: Notwithstanding the normal requirement for a mental element provided for in article 30, and recognizing that knowledge of the circumstances will usually be addressed in proving genocidal intent, the appropriate requirement, if any, for a mental element regarding this circumstance will need to be decided by the Court on a case-by-case basis.101 The ‘contextual element’ was based very loosely on two passages in the Akayesu trial judgment.102 The ICTY Trial Chamber in Krstić adopted the element although it was not obliged to,103 but the Appeals Chamber was hostile to the Trial Chamber’s view: The Trial Chamber relied on the definition of genocide in the Elements of Crimes adopted by the ICC. This definition, stated the Trial Chamber, ‘indicates clearly that genocide requires that “the conduct took place in the context of a manifest pattern of similar conduct’”. The Trial Chamber’s reliance on the definition of genocide given in the ICC’s Elements of Crimes is inapposite … the requirement that the prohibited conduct be part of a widespread or systematic attack does not appear in the Genocide Convention and was not mandated by customary international law. Because the definition adopted by the Elements of Crimes did not reflect customary law as it existed at the time Krstić committed his crimes, it cannot be used to support the Trial Chamber’s conclusion.104 https://ereader.cambridge.org/wr/printpage.html Pagina 8 di 18  Genocide 09/08/24, 10:14 In the ICC, on the other hand, a majority in a Pre-Trial Chamber took the view that the contextual provision in the Elements is not inconsis‐ tent with the ICC Statute and has therefore applied it.105 The Chamber took the view that the contextual element was ‘fully consistent with the traditional consideration of the crime of genocide as the “crime of crimes’”.106 Indeed, if genocide is to be seen as a particularly serious crime, it might be argued that ‘scale and gravity’107 must be maintained and the ICC Elements provision offers a formulation which has been accepted and adopted by consensus by the parties to the Rome Statute for the purposes of the ICC. We 10.4 MENTAL ELEMENTS The mental elements of genocide comprise both the requisite intention to commit the underlying prohibited act (such as killing) and the in‐ tent special to genocide. It is the special intent ‘to destroy in whole or in part [a protected group] as such’ that distinguishes genocide from other crimes.108 But determining the meaning to be attributed to this intent requirement is a matter of some difficulty. There are four aspects to be considered, and they are interconnected. Does every perpetrator have to have a specific intent to destroy or is it sufficient, either for all, or at least for non-leaders, that they have knowledge of a collective plan and foresee that their conduct will further it? What is the meaning of ‘destroy’ for the purpose of the special intent? What is the ‘whole’ or ‘part’ of a group? What is the meaning of ‘as such’: is motive relevant? These four issues are considered below. 10.4.1 Intent It is worth emphasizing that, unlike the crime of aggression, genocide is not a crime that may be committed only by those who lead and plan a campaign of destruction. The rank and file may also be genocidaires, provided they have the requisite intent.109 The intention differs from the ‘normal’ intent in criminal law, as exemplified in Article 30 of the ICC Statute, which is a less stringent requirement than the special intent for genocide. Article 30 is, however, relevant to the underlying acts and to some other forms of liability in relation to genocide.110 In time of armed conflict, where the intention is to defeat the opposing side, it may be difficult to assess whether mass killings are committed iii with a genocidal intent or with the intent of winning the war. The findings of the ICTY in the Krstić case and of the Commission of Inquiry on Darfur provide useful illustrations. The defence in Krstić argued that the purpose of the killings in Srebenica was not to destroy the group as such, but to remove a military threat; this was evidenced by the fact that men of military age had been targeted. The Trial Chamber held, however, as affirmed by the Appeals Chamber, that the killings did constitute genocide. As they said: the Bosnian Serb forces could not have failed to know, by the time they decided to kill all the men, that this selective destruction of the group would have a lasting impact upon the entire group. Their death precluded in any effective attempt by the Bosnian Muslims to recapture the territory. Furthermore, the Bosnian Serb forces had to be aware of the catastrophic impact that the disappearance of two or three generations of men would aE.li i s have on the survival of a traditionally patriarchal society … The Bosnian Serb forces knew by the time they decided to kill all of the military aged men, that the combination of those killings with the forcible transfer of the women, children and elderly would inevitably result in the physical disappearance of the Bosnian Muslim population at Srebrenica. Intent by the Bosnian Serb forces to target the Bosnian Muslims of Srebrenica as a group is further evidenced by their destroying homes of Bosnian Muslims in Srebrenica and Potocari and the principal mosque in Srebrenica soon after the attack. Finally, there is a strong indication of the intent to destroy the group as such in the concealment of the bodies in mass graves, which were later dug up, the bodies mutilated and reburied in other mass graves … By killing all the military aged men, the Bosnian Serb forces effectively destroyed the community of the Bosnian Muslims in Srebrenica and eliminated all likelihood that it could ever re-establish itself on that territory.111 On the other hand, the Appeals Chamber decided that General Krstić himself did not personally have a genocidal intent and hence was not liable as a principal. He was, however, held liable as an accessory to the genocidal attack on Srebrenica. In the same direction, the Darfur Commission decided that the policy of attacking, killing and forcibly displacing members of some tribes in Darfur did not show the special intent of genocide, but rather the intent ‘to drive the victims from their homes, primarily for purposes of counter-insurgency warfare’.112 https://ereader.cambridge.org/wr/printpage.html Pagina 9 di 18  Genocide 09/08/24, 10:14 Proof of Special Intent Direct evidence of genocidal intent is difficult to find. The Tribunals have been prepared to deduce intent from circumstantial evidence, in‐ cluding the actions and words of the perpetrator. In Seromba, for example, the defendant, a priest, had approved the decision to destroy a church to kill those inside it, had shown the bulldozer driver the weakest side of the church and directed him to destroy it. The Appeals Chamber found that Seromba ‘knew that there were approximately 1,500 Tutsis in the church and that the destruction of the church would necessarily cause their death’. More questionably, the ICTR Trial Chamber also stated in the Akayesu case that intent may be deduced from the behaviour of others, from: EE fneaai the general context of the perpetration of other culpable acts systematically directed against that same group, Lask.tn whether these acts were committed by the same offender or by others. Other factors, such as the scale of i areconsideration atrocities committed, their general nature, in a region or a country, or furthermore, the fact of deliberately and systematically targeting victims on account of their membership of a particular group, while excluding the members of other groups, can enable the Chamber to infer the genocidal intent of a particular act.113 This was somewhat tempered by the Appeals Chamber in Stakić, which noted that the Trial Chamber in that case ‘considered whether the apparent intentions of others … could provide indirect evidence of the Appellant’s own intentions when he agreed with those others to un‐ dertake criminal plans’.114 As the Appeals Chamber also noted, all the evidence (such as the type of attacks, discriminatory animus, the use of derogatory slurs, attacks on religious sites and ‘targeting of … leaders for death or slander’)115 must be taken together when determining in‐ tent since, looking at each piece individually rather than cumulatively as the Trial Chamber did, ‘obscured the proper inquiry’.116 Intention versus Knowledge It is said that foot soldiers will normally follow orders without necessarily having an intent to destroy a whole group117 and that it would not be realistic to look for an intent from one individual to destroy the group through their own conduct. In relation to an accused who partici‐ pated in a genocidal campaign, courts may therefore face the difficult choice between acquittal for lack of evidence of the special intent as normally defined and ‘squeezing ambiguous fact patterns into the specific intent paradigm’.118 Courts may be tempted to ease the require‐ ments of evidence by drawing wide implications from their findings of fact, thus establishing the special intent ‘by the evidentiary backdoor’.119 These difficulties have led commentators to propose alternative formulations of the intent necessary for genocide. In particular, iÉi Alexander Greenawalt has suggested: i In cases where a perpetrator is otherwise liable for a genocidal act, the requirement of genocidal intent should be satisfied if the perpetrator acted in furtherance of a campaign targeting members of a protected group and in knew that the goal or manifest effect of the campaign was the destruction of the group in whole or in part.120 This ‘knowledge-based’ approach, which is more akin to what is required by Article 30 of the ICC Statute, is to be distinguished from the ‘purpose-based’ approach used by the Tribunals and the ICC in interpreting the crime of genocide. Some commentators argue that the pur‐ pose-based approach goes beyond what is envisaged in the Genocide Convention.121 They distinguish between the collective intent, mani‐ fested in an overall genocidal plan or campaign, and the individual intent which, in their view, need involve only knowledge of the plan on the part of the individual perpetrator together with foresight or recklessness as to the occurrence of the planned destruction.122 If such an approach were adopted, it would recognize the different roles of individuals involved in a collective act of genocide. In Krstić, how‐ ever, the Appeals Chamber, while noting that the intent to destroy must be discernible in the joint participation of the crime itself, held that individual participators must each have the necessary intent.123 This insistence on the special intent for each individual perpetrator remains the standard required for the crime of genocide by the case law and may be seen as correctly reflecting the need to reserve genocide convic‐ tions only for those who have the highest degree of criminal intent. In practice, however, accessorial modes of liability, such as aiding and abetting,124 can allow conviction of persons as an accessory to genocide if they have knowledge of the genocide.125 Prosecutors who are not sure of being able to prove the special intent are likely to charge such lesser modes of liability rather than genocide as a principal perpetrator. 10.4.2 ‘To destroy’ https://ereader.cambridge.org/wr/printpage.html Pagina 10 di 18  Genocide 09/08/24, 10:14 Genocidal intent is eliminatory. The destruction specified in the Convention is physical or biological, although the means of causing the de‐ struction of the group may be by acts short of causing the death of individuals.126 Other forms of destruction, for example, the social assimi‐ lation of a group into another, or attacks on cultural characteristics which give a group its own identity, do not constitute genocide if they are not related to physical or biological destruction of the group. The travaux préparatoires of the Convention indicate that the inclusion of cul‐ tural genocide was hotly debated and eventually rejected.127 Some national jurisdictions have extended the meaning of genocide to cover other forms of destruction within their own law.128 However, as iii the Trial Chamber in Krstić (which was quoted approvingly on appeal) put it: despite recent developments, customary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group. An enterprise attacking only the cultural or sociological characteristics of a human group in order to annihilate these elements which give to that group its own identity distinct from the rest of the community would not fall under the definition of genocide.129 The Trial Chamber in the later case of Blagojević appears to have departed from this in finding that ‘the forcible transfer of individuals could lead to the material destruction of the group, since the group ceases to exist as a group, or at least as the group was’. It emphasized ‘that its rea‐ soning and conclusion are not an argument for cultural genocide, but rather an attempt to clarify the meaning of physical and biological de‐ struction’130 but this looks like an attempt to square the circle. In the Bosnian Genocide case, the ICJ confirmed that genocide was limited to physical or biological destruction of a group.131 If the transfer of members of a group results in the splitting up of the group, that is not geno‐ cide unless done with an intent to physically destroy the group. However, acts of ethnic cleansing – and attacks on cultural and religious property – may be significant evidence towards establishing the intent to destroy.132 10.4.3 ‘In whole or in part’ There must be an intent to destroy the protected group in whole or in part. This aspect of the intention133 has caused considerable controver‐ sy. This is because the ambit of the protections granted by the prohibition of genocide is heavily dependent on how broadly or narrowly the relevant group is conceptualized. The first issue is defining the relevant geographical scope. To take an example from a clear case of genocide – Rwanda – the Hutu génocidaires did not appear to want to destroy all Tutsis everywhere, but only in Rwanda.134 The relevant group could be conceived of as Tutsis every‐ where, in which case Rwandan Tutsis were protected only as a ‘part’ of that group. Or it could be thought that the relevant group was the Rwandan Tutsis. According to the ICJ, ‘it is widely accepted that genocide may be found to have been committed where the intent is to de‐ iii stroy the group within a geographically limited area’.135 A second issue is the meaning of ‘part’ of a group. The case law of the Tribunals has established that the intention must be to target at least a ‘substantial’ part of the group,136 and this has been confirmed by the ICJ, which opined:.the intent must be to destroy at least a substantial part of the particular group. That is demanded by the very nature of the crime of genocide: since the object and purpose of the Convention as a whole is to prevent the intentional destruction of groups, the part targeted must be significant enough to have an impact on the group as a whole.137 The findings in Krstić illustrate the difficulties of determining both the whole and the substantial part of the group for the purpose of assess‐ ing whether the special intent is present. The Trial Chamber determined that the Bosnian Muslims constituted the protected group and ‘the Bosnian Muslims of Srebrenica or the Bosnian Muslims of Eastern Bosnia constitute a part of the protected group’.138 This finding was af‐ firmed by the Appeal Chamber, which also pointed out that, in determining what a ‘substantial’ part was, the prominence of the targeted indi‐ viduals within the group as well as the number targeted (in absolute and in relative terms) could also be relevant; hence, both qualitative and quantitative criteria should be considered. ‘If a specific part of the group is emblematic of the overall group, or is essential to its survival, that may support a finding that the part qualifies as substantial.’139 In the Krstić case, the fate of the Srebenica Muslims was considered emblematic of that of all Bosnian Muslims. https://ereader.cambridge.org/wr/printpage.html Pagina 11 di 18  Genocide 09/08/24, 10:14 The decision has been criticized as having set too low a threshold for the scale of genocide.140 The killings were of 7,000–8,000 men, and it therefore appeared that the people targeted formed a part of a part of a group. However, the Chamber also took into account the fact that women and children were transferred from the area, to argue that the ‘part’ of the group was the Bosnian Muslims of Srebrenica. The prose‐ cution had urged the ICTY to take the view that the Bosnian Muslims of Srebrenica were the relevant whole group.141 If the Chamber had accepted this, it would have made proving genocide considerably simpler for the prosecution, as the Bosnian Muslim men of military age could have been seen as a substantial part of the group. This would, however, have diluted the concept of genocide considerably. 10.4.4 ‘As such’ ftp fr There must be an intent to destroy the group, or part of it, ‘as such’. During the negotiation of the Convention there were those who wanted to include motive as a necessary element of genocide. Others did not. The compromise which allowed agreement to be reached was to exclude any explicit reference to motive, but to include the words ‘as such’.142 While these words are therefore relied upon by some as evidence of the need for motive,143 the travaux préparatoires disclose that that was not the meaning that all the negotiators attached to the words. The motive for which a crime is committed, as opposed to the intention with which it is committed, is ordinarily irrelevant to guilt in crimi‐ nal law. But the discriminatory nature of genocide seems to require a motive: the victims are singled out not by reason of their individual identity but because of their membership of a national, ethnic, racial or religious group.144 It is not surprising, therefore, that decisions by the ad hoc Tribunals have sometimes used the language of motive, referring to the need for the accused to ‘seek’ or ‘aim at’ the destruction of the group.145 If it is possible to untangle the sometimes apparently conflicting case law of the Tribunals, it can be said that the Tribunals do dis‐ tinguish between motive and genocidal intent146 – personal motivation (such as a wish to profit financially from the genocide) for the perpe‐ trator’s participation in the crime is not relevant – but having a discriminatory purpose for the crime is intrinsic to the special intent.147 Fur‐ ther, in cases where a set of facts and their consequences may have different explanations, a consideration of motive may be relevant in assess‐ ing intent, even though it will not itself be decisive.148 after 10.5 OTHER MODES OF PARTICIPATION The ‘other acts’ of participation in genocide are listed in Article III of the Convention.149Conspiracy, ‘direct and public incitement’, attempt and complicity are expressly incorporated in the Statutes of the ad hoc Tribunals. The ICC, on the other hand, relies on the general principles of law in Part 3 of its Statute, which apply to all of the crimes within the jurisdiction of the Court, for all these forms of liability. The exception Elas is incitement to genocide, for which specific provision was made in Article 25(3)(e) of the ICC Statute. For the ICC, the omission of conspira‐ cy, due to hesitations of civil law countries, has left a gap, although the Statute’s provision on contribution to a common purpose may largely fill it. Further discussion of these other acts and of command responsibility in relation to genocide may be found in Chapter 15. Further Reading Hirad Abtahi and Philippa Webb, The Genocide Convention: The Travaux Préparatoires (The Hague, 2008) Payam Akhavan, Reducing Genocide to Law (Cambridge, 2012) Antonio Cassese, ‘Genocide’ in Cassese et al., Commentary, 335 Caroline Fournet, Genocide and Crimes Against Humanity (Oxford, 2013) Paula Gaeta (ed.), The UN Genocide Convention: A Commentary (Oxford, 2009) Alexander Greenawalt, ‘Rethinking Genocidal Intent: The Case for a Knowledge-based Interpretation’ (1999) 99 Columbia Law Review 2259 Nina Jørgensen, ‘The Definition of Genocide: Joining the Dots in the Light of Recent Practice’ (2001) 1 ICLR 285 Claus Kreß, ‘The Crime of Genocide under International Law’ (2006) 6 ICLR 461 Laurence J. Le Blanc, ‘The Intent to Destroy Groups in the Genocide Convention: The Proposed US Understanding’ (1984) 78 AJIL 369 https://ereader.cambridge.org/wr/printpage.html Pagina 12 di 18  Crimes Against Humanity 09/08/24, 10:15 An Introduction to International Criminal Law and Procedure ISBN 9781108680455 Part IV Substantive Law of International Crimes 11 Crimes Against Humanity war Esther aming 11 Crimes Against Humanity AL 11.1 INTRODUCTION aghast 11.1.1 Overview Crimes against humanity are as old as humanity itself.1 However, it is only in the last century that the international legal prohibition of crimes [email protected], Fri, 09 Aug 2024 08:15:34 GMT against humanity has emerged, and it is only in the last twenty years that the precise contours of the crime have been clarified. Whereas genocide and war crimes have been codified in conventions with widely accepted definitions, crimes against humanity have ap‐ peared in a series of instruments with somewhat inconsistent definitions. The law of crimes against humanity was initially created to fill cer‐ tain gaps in the law of war crimes, but many parameters were left undefined. With increased application of international criminal law since the mid-1990s, a transnational conversation between national and international jurisprudence has clarified the law of crimes against humani‐ ty we have today. A crime against humanity involves the commission of certain inhumane acts, such as murder, torture or rape, in a certain context: they must be part of a widespread or systematic attack directed against a civilian population. It is this context that elevates crimes that might otherwise fall exclusively under national jurisdiction to crimes of concern to the international community as a whole. An individual may be liable for crimes against humanity if he or she commits one or more inhumane acts within that broader context. It is not required that the individual be a ringleader or architect of the broader campaign. 11.1.2 Historical Development The most significant early reference to ‘crimes against humanity’ as a legal concept was a joint declaration by France, Great Britain and Russia in 1915. Responding to the massacre of Armenians by Turkey, the joint declaration denounced ‘crimes against humanity and civilization’ and warned of personal accountability.2 After the First World War, an international war crimes commission recommended the creation of an in‐ ternational tribunal to try not only war crimes but also ‘violations of the laws of humanity’.3 However, the US representatives objected to the references to the ‘laws of humanity’ on the grounds that these were not yet precise enough for criminal law, and the concept was not pursued at that time.4 In the wake of the Second World War, the drafters of the Nuremberg Charter were confronted with the question of how to respond to the Holocaust and the massive crimes committed by the Nazi regime. The classic definition of war crimes did not include crimes committed by a government against its own citizens. The drafters therefore included ‘crimes against humanity’, defined in Article 6(c) as: assets's jiifs.ita metaphoric murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian salepopulation, before or during the war, or persecutions on political, racial or religious grounds in execution of or E in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the law of the country where perpetrated. Three major features may be noted. First, the reference to ‘any’ civilian population meant that even crimes committed against a country’s own population were included. This was a major advance given that, at that time, international law generally regulated conduct between States and said little about a government’s treatment of its own citizens. Second, the requirement of connection to war crimes or the crime of aggression in effect meant that crimes against humanity could occur only with some ‘nexus’ to armed conflict.5 Third, the reference to ‘population’ was Edited understood to create some requirement of scale, but the precise threshold was specified neither in the Charter nor in the Nuremberg judg‐ ment.6 https://ereader.cambridge.org/wr/printpage.html Pagina 1 di 27  Crimes Against Humanity 09/08/24, 10:15 It remains controversial whether the Nuremberg Charter created new law, or whether it recognized an existing crime.7 Among those con‐ cluding that it was a new crime, many argued that the principle of non-retroactivity had to give way to the overriding need for accountability for large-scale murder and atrocities recognized as criminal by all nations.8 Perhaps because of this uncertainty in the status of crimes against humanity, the Nuremberg judgment tended to blur discussion of crimes against humanity and war crimes and provided very little guidance on the particular elements of crimes against humanity.9 The Tokyo Charter included a similar definition with some modifications.10 The Allied Control Council, creating law for occupied Germany, adopted Control Council Law No. 10 with a similar definition. Control Council Law No. 10 added rape, imprisonment and torture to the list i of inhumane acts, and did not require a connection to war crimes or aggression. The concept of crimes against humanity was promptly endorsed by the UN General Assembly,11 but in the decades that followed there was only a limited body of national cases,12 as well as a few treaties and instruments recognizing enforced disappearance and apartheid as crimes against humanity.13 The International Law Commission (ILC) also developed several definitions as part of its work on a draft code of in‐ ternational crimes. A major advance occurred when the Security Council created the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) in response to mass crimes in the former Yugoslavia and Rwanda. The Statute of each Tribunal contained a list of acts based on the Control Council Law No. 10 list. The ICTY Statute (Article 5) defined the contextual threshold as ‘when committed in armed conflict, whether international or internal in character, and directed against any civilian population’. The Tri‐ bunal itself, referring to previous authorities, interpreted this threshold as requiring a ‘widespread or systematic attack’.14 The ICTR Statute (Article 3) defined the context as ‘when committed as part of a widespread or systematic attack against any civilian population on national, EE political, ethnic, racial or religious grounds’. Thus, the definitions are similar, except that the ICTY Statute requires armed conflict and the ICTR Statute requires discriminatory grounds. The ICC Statute, adopted in 1998, recognizes the same contextual threshold in Article 7: ‘when committed as part of a widespread or system‐ atic attack directed against any civilian population’. The ICC Statute rejects both the armed conflict and the discriminatory grounds require‐ way ments, as these were not considered to be necessary elements in customary international law. The ICC Statute requires a ‘State or organiza‐ tional policy’, which is controversial, as is discussed below. The ICC Statute contains the same list of acts as previous instruments, but adds forced transfer of population, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, sexual violence, enforced disap‐ pearance and the crime of apartheid.15 The ICC Statute includes supplementary definitions in Article 7(2), some of which have been generally welcomed as helpful clarifications, whereas others have been controversial, as will be discussed below. Additional sources on the definition of crimes against humanity may now be found in national and international jurisprudence, the ICC Ele‐ ments of Crimes, and instruments of other tribunals, such as the Special Court for Sierra Leone (SCSL). Each of these includes a comparable list of acts as well as the now-standard requirement of widespread or systematic attack directed against any civilian population. In addition, discussions are underway about a possible convention on crimes against humanity, to affirm the obligations of States to prevent and punish such crimes.16 11.1.3 Relationship to Other Crimes i War crimes and crimes against humanity can and do frequently overlap. For example, a mass killing of civilians during an armed conflict could constitute both types of crimes. There are, however, significant differences. First, unlike war crimes, crimes against humanity may occur even in the absence of armed conflict. Second, crimes against humanity require a context of widespread or systematic commission, whereas non war crimes do not; a single isolated incident can constitute a war crime. Third, war crimes law was originally based on reciprocal promises L between parties to a conflict, and hence primarily focuses on protecting ‘enemy’ nationals or persons affiliated with the other party to the conflict. The law of crimes against humanity protects victims regardless of their nationality or affiliation. Fourth, war crimes law regulates conduct even on the battlefield and against military objectives,17 whereas the law of crimes against humanity concerns actions directed pri‐ marily against civilian populations.18 ii Thus, the ‘international dimension’ of war crimes arises from the armed conflict, and the ‘international dimension’ of crimes against humani‐ ty arises from the attack on a civilian population. Cumulatively, the two bodies of law, working together, penalize atrocities committed during armed conflict or committed on a widespread or systematic basis. Isolated crimes occurring in the absence of armed conflict continue to be https://ereader.cambridge.org/wr/printpage.html Pagina 2 di 27  Crimes Against Humanity 09/08/24, 10:15 governed by national criminal law and human rights law. War crimes law is sometimes useful to interpret some aspects of crimes against hu‐ manity, so that the two bodies of law work together.19 Genocide was initially regarded as a particularly odious form of crime against humanity,20 one committed with the intent to destroy, in whole higher or in part, a national, ethnical, racial or religious group as such. However, over time the definitions of the two crimes have evolved and they now pose differing requirements.21 11.2 COMMON ELEMENTS (CONTEXTUAL THRESHOLD) As already noted, the contemporary definition of a crime against humanity entails the commission of a listed inhumane act, in a certain con‐ text: the listed act must be committed as part of a ‘widespread or systematic attack directed against a civilian population’. 11.2.1 Aspects Not Required No Nexus to Armed Conflict iiin The Nuremberg and Tokyo Charters both required a connection to war crimes or to aggression, in effect requiring some nexus to armed con‐ flict.22 On the other hand, Control Council Law No. 10 did not include such a requirement. Subsequent case law of military tribunals split over whether such a nexus must be read into the definition. For example, the Flick and Weizsäcker cases imported the requirement from the Nuremberg Charter, whereas the Ohlendorf and Altstötter decisions concluded that it was unnecessary.23 Subsequent international conventions24 did not require a nexus to armed conflict. The ICTY Statute, adopted in 1993 by the Security Coun‐ cil, restricted crimes against humanity to those committed in armed conflict, but the Security Council promptly reversed this position in 1994, when it adopted the ICTR Statute without such a requirement. Finally, after extensive debates at the 1998 Rome Conference, agreement uwith was reached on a definition of crimes against humanity rejecting any such requirement (Article 7).25 Today, it seems well settled that a nexus to armed conflict is not required. The majority of instruments and precedents oppose such a require‐ ment. The limitation in the Nuremberg Charter is generally seen as a jurisdictional limitation only,26 and the ICTY Statute definition appears to be the anomaly. Indeed, the jurisprudence of the ICTY itself concludes that the requirement is a deviation from customary law.27 This view is also supported by national case law, international bodies of experts, and the writings of commentators.28 No requirement of armed conflict has appeared in subsequent definitions of crimes against humanity. No Requirement of Discriminatory Animus Article 3 of the ICTR Statute requires that crimes against humanity be committed on ‘national, ethnic, racial or religious grounds’.29 Such a requirement was supported by a few cases in France, but did not appear in most precedents.30 ICTY jurisprudence holds that discrimination is not a general requirement for crimes against humanity.31 The ICC Statute, adopted in 1998, also rejected a discrimination requirement. The ICTR Appeals Chamber has held that the restriction in the ICTR Statute is not customary law and restricts only that Tribunal.32 Thus, it would appear that discriminatory grounds are not required in customary law, except for the specific crime of persecution, discussed in sec‐ tion 11.3.9. 11.2.2 Widespread or Systematic The formula of a ‘widespread or systematic attack directed against any civilian population’ emerged in the 1990s as the accepted contextual threshold. The emergence of a generally accepted formulation, elaborating upon the laconic Nuremberg definition, has contributed to clarity and consistency in this area of law. Nonetheless, some aspects of the definition of these terms remain to be resolved. The ‘widespread or systematic’ test is disjunctive:33 a prosecutor need only satisfy one or the other threshold. However, in addition to ‘wide‐ spread or systematic’, there must also be an ‘attack’. As will be discussed below, some authorities indicate that an ‘attack directed against a civilian population’ necessarily entails at least some modest degree of scale and organization.34 This would mean that, while the rigorous thresholds of ‘widespread’ or ‘systematic’ are disjunctive, the ‘attack’ requires at least some minimal dimension of each. again wave o rganised É Iii ai https://ereader.cambridge.org/wr/printpage.html Pagina 3 di 27 mi  Crimes Against Humanity 09/08/24, 10:15 The term ‘widespread’ has been defined in various ways, and generally connotes the ‘large-scale nature of the attack and the number of vic‐ tims’.35 No specific numerical limit has been set; the issue must be decided on the facts. While ‘widespread’ typically refers to the cumulative effect of numerous inhumane acts, it could also be satisfied by a singular act of exceptional magnitude.36 The term ‘systematic’ has also been defined in various ways. Early decisions set high thresholds: in Akayesu, it was defined as (1) thoroughly organized; (2) following a regular pattern; (3) on the basis of a common policy; and (4) involving substantial public or private resources.37 In Blaškić, it was defined by reference to four factors: (1) a plan or objective; (2) large-scale or continuous commission of linked crimes; (3) sig‐ nificant resources; and (4) implication of high-level authorities.38 The most recent cases seem to be settling on ‘the organised nature of the acts of violence and the improbability of their random occurrence’.39 Consistent with the ordinary meaning of the term, it may be that the hallmark of ‘systematic’ is a high degree of organization, and that features such as patterns, continuous commission, use of resources, plan‐ ning and political objectives are important factors. 11.2.3 Attack The term ‘attack’ is not used in the same sense as in the law of war crimes. An ‘attack’ need not involve the use of armed force and can encom‐ pass mistreatment of the civilian population.40 It refers to the broader course of conduct, involving prohibited acts, of which the acts of the accused form part.41 ii The ICC Statute defines ‘attack’ in Article 7(2)(a): E 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. This definition requires that there must be at least some minimal level of scale (‘multiple’ acts) and some minimal level of collectivity (the ‘policy’ element). In addition, there must be a high level of scale (‘widespread’) or a high level of collective coordination (‘systematic’). The Iiiii definition screens out truly isolated crimes (‘multiple’) and truly unconnected crimes (‘policy’). The requirement of ‘multiple’ crimes has not been particularly controversial. Tribunal jurisprudence also indicates there must at least be mul‐ tiple acts or multiple victims in order to warrant the label ‘attack directed against a civilian population’.42 These acts may be all of the same type or of different types, for example murder, rape and deportation.43 A single event (planting a bomb) can constitute a ‘multiple’ commis‐ sion of prohibited acts (for example, murders).44 Recall that the multiple crimes requirement applies to the attack, not the actions of the ac‐ cused; it suffices that the accused commit a single act within the context of an attack. The requirement of ‘multiple acts’ is not synonymous with ‘widespread’. Both terms measure scale, but ‘multiple’ is a low threshold and ‘widespread’ is higher. Controversy Concerning the Policy Element The controversial aspect is the ‘policy’ element. The deeper question underlying this issue is what links different acts together so that they constitute an ‘attack’. Crime, even on a ‘widespread’ basis – for example, a crime wave, or anarchy following a natural disaster – does not by itself constitute a crime against humanity. The random acts of individuals are not sufficient; some thread of connection between acts is need‐ ed so that they can collectively be described as an attack directed against a civilian population. Some legal authorities seek to make this propo‐ sition explicit by indicating that there must be an underlying governmental or organizational policy that directs, instigates or encourages the a crimes. Other authorities reject such a requirement. It is therefore controversial whether the policy element is a necessary component of views crimes against humanity. arts Divide in the Authorities National jurisprudence on crimes against humanity following the Second World War frequently indicated that governmental policy is a re‐ quirement.45 In the 1990s, the very same authorities that established the ‘widespread or systematic’ test also coupled this with a requirement of policy or of direction, instigation or encouragement by a State or organization.46 Early Tribunal cases tended to follow this approach.47 At the Rome Conference, there was considerable opposition to an unqualified disjunctive ‘widespread or systematic’ test, on the grounds that it would incorrectly include widespread but unconnected crimes, such as a crime wave. It was argued in response that the customary law con‐ https://ereader.cambridge.org/wr/printpage.html Pagina 4 di 27 c f emerged  Crimes Against Humanity 09/08/24, 10:15 cept of an ‘attack’ excluded random crimes, because the crimes have to be connected. Agreement was reached on the disjunctive ‘widespread or systematic’ test, provided that the definition of ‘attack’ included this clarification. Article 7(2)(a) therefore defines ‘attack’ and includes a policy element, which was based on the Tadić decision and related authorities. ‘Policy’ was understood as a low threshold which could be in‐ ferred from the manner in which the acts occur.48 The definition followed Tadić and other, recent authorities indicating that the policy need disarmament not be that of a government and could also be that of an organization. iii Strong concerns were already growing about the policy element, both in Tribunal jurisprudence and in the ICC negotiations. The major con‐ cerns were that it imposed a novel burden, that it would be difficult to prove, and that it contradicted the disjunctive test.49 Tribunal cases began to split, with some supporting the element, then some declining to take a position, and then some expressing doubt.50 Finally, in Ku‐ iritis narac, the ICTY Appeals Chamber held, rather categorically, that ‘nothing in the Statute or in customary international law … required proof of the existence of a plan or policy to commit these crimes’.51 Whereas decisions on other issues of customary law have tended to involve an extensive review of precedents, the Appeals Chamber resolved this major controversy with reasoning appearing only in a single footnote, and declining to address (or even acknowledge) the contrary authorities.52 Thus, the main indicators of customary law are now divided. On the one hand, the ICC Statute indicates that policy is required. The Statute was adopted by a great number of States purporting to codify existing customary law, and hence it is a strong indicator of customary law. A similar requirement appears in some national jurisprudence and in legislation based on the ICC Statute definitions, which will also shape State practice. On the other hand, Tribunal jurisprudence, which also purports to reflect customary law, rejects the policy element. Moreover, Article 10 of the ICC Statute indicates that its definitions ‘shall not be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute’. Much of the controversy over the policy element may result from differing understandings of what the element means.53 Some commentators reject the policy element, but agree that random criminality of individuals does not amount to an ‘attack’.54 To other commentators, that is precisely what the policy element means:55 indeed, the necessary logical corollary of excluding crimes of individuals acting on their own ini‐ tiative is to require some instigation or encouragement by something other than individuals, namely a State or organization. Some scholars argue that the policy element reflects the fundamental essence of crimes against humanity: they are ‘politics gone cancerous’, as the human capacity for organized action is used for harmful ends.56 Implications for Jurisdictions Rejecting a Policy Element For those jurisdictions which have rejected the term ‘policy’, it is essential not to lose sight of the principle that unconnected random acts iii cannot constitute an ‘attack’.57 Tribunal jurisprudence often asserts that unconnected random acts are excluded, but does not seem to have any legal element that actually performs this function. (The requirement of ‘widespread’ crime does not suffice, because crimes in a region 19ndmay be rampant yet unconnected.) Recent Tribunal jurisprudence mentions the element of ‘improbability of random occurrence’, but only as may part of the definition of ‘systematic’.58 However, the improbability of random occurrence must surely be a requirement for all ‘attacks’.59 In the absence of some such clarification, a literal and mechanistic application of Tribunal definitions would encompass widespread but random crimes of individuals, which would be overbroad.60 nai Although Tribunal jurisprudence overtly rejects a policy element, it may indirectly re-inject something similar with its requirements to exam‐ ine whether an ‘identifiable population’ was ‘targeted’ or was a ‘primary object’, all of which imply some direction or coordination from some minified source.61 Furthermore, in Haradinaj, a Chamber found that a ‘relatively small number of incidents’, lacking scale or frequency, and without away significant evidence of structure, organization or targeting, did not amount to an attack directed against a civilian population.62 This com‐ mon-sense finding on the implicit requirements of an ‘attack’ is not significantly different from Article 7(2)(a) of the ICC Statute. Implications for Jurisdictions Requiring a Policy Element For those jurisdictions that apply a policy element, the element must be interpreted, in accordance with previous jurisprudence, as a modest threshold that simply excludes random action.63 The problem and danger with the word ‘policy’ is that, in many minds, it connotes a bureau‐ cratic measure formally adopted at highest level. However, ‘policy’ is a legal term of art, and the precedents highlight three important features. First, a policy need not be formally adopted, nor expressly declared, nor even stated clearly and precisely.64 Thus, it must be given an ordinary meaning such as ‘a course of action adopted as advantageous or expedient’,65 rather than any connotation of a formal and official strategy. Second, the element may be satisfied by inference from the manner in which the acts occur;66 it is sufficient to show the improbability of ran‐ Iii outice madias removic https://ereader.cambr