Author:	Vincent Sautenet LLM (Int Human Rights) University of Essex
Subjects:	Crimes against humanity (Other articles) International humanitarian law (Other articles)
Issue:	Volume 7, Number 1 (March 2000)
Category:	Comment

Contents

• Introduction
• Analysis of the elements of the Crimes
• No requirement of a nexus to war
• No requirement of a discriminatory motive
• The requirement of a "widespread or systematic attack"
• "directed against any civilian population"
• The "knowledge of the attack"
• "Other inhuman acts", "persecution", and the principle of legality
• "Other inhuman acts"
• "Persecution"
• Conclusion
• Notes

Les juges ne sont que la bouche qui prononce les paroles de la loi, des êtres inanimés qui ne peuvent ni en adresser la force ni la rigueur.
Charles de Secondat Montesquieu, L'esprit des Lois, Livre XI, Ch. III, 127 (1748).

If the interpretation of laws is an evil, their obscurity, which necessarily entails interpretation, is obviously another evil (...).
Cesare Beccaria, On Crimes and Punishment, 10-12 (D. Young trans. 1986).

Introduction

1. For Charles de Montesquieu, judges were only those through whose mouth the law spoke, and they could neither address the law's force or rigor. However if the law is unclear, judges necessarily have to address such considerations, and give their interpretation of its obscure parts. The fundamental "principles of legality" emerged from such social contract theorists, and since then constantly developed. They are enshrined in the maxims nullum crimen sine lege, nulla poena sine lege, and also contain another fundamental principle of criminal law: the prohibition of ex post facto criminal laws and its derivative rule of non-retroactive application of criminal laws and criminal sanctions. A corollary is the requirement of specificity and the prohibition of ambiguity in criminal legislation.[1]

2. Before Nuremberg and Tokyo, the question of legality only arose once in the entire history of the Permanent Court of International Justice (hereafter PCIJ), in the Advisory Opinion on the Consistency of Certain Danzig Legislative Decrees with the Constitution of the Free City, December 4, 1935[2] "Instead of applying a penal law equally clear to both the Judge and the party accused, (...) there is a possibility under the new decrees that a man find himself placed on trial and punished for an act which the law did not enable him to know was an offence, because its criminality depends entirely on the appreciation of the situation by the Public Prosecutor and by the Judge."

3. As far as crimes against humanity are concerned the issue of legality arose for the first time from the desire to investigate, try and punish those responsible for the atrocities committed on Axis territory against nationals of non-Allied countries.[3] On 8 August 1945, the four Allied Powers (France, Great Britain, the USSR and the United States) concluded the London Agreement. Annexed to it was the Charter of the International Military Tribunal for the Prosecution and Punishment of the Major War Criminals of the European Axis, article 6 of which provided that the Tribunal had the power "to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organisations" committed crimes against peace, war crimes, or crimes against humanity.

4. The latter category was defined as follow: "Crimes against humanity: namely, murder, extermination, enslavement, deportation or other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated." [4]

5. Since the crimes were incorporated for the first time in an international instrument, they could have been seen as ex post facto law, and be regarded as violating the principles of legality. In addressing this defence claim the Nuremberg Tribunal concluded: "The Charter is not an arbitrary exercise of power on the part of the victorious nations, but in the view of the Tribunal (...) is the expression of international law existing at the time of its creation; and to that extent is itself a contribution to international law."[5]

6. It is true that the term "crimes against humanity" existed prior to World War II. The 1868 Saint Petersburg Declaration limited the use in times of war of certain explosive or incendiary projectiles, since they were declared contrary to the laws of humanity. In 1907 the well-known Martens clause provided as follows: "until a more complete code of the laws of war has been issued, (...) the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages among civilized peoples, from the laws of humanity, and the dictates of the public conscience."[6]

7. In 1915 the expression "crimes against humanity" was used for the first time as such in the 1915 Declaration by the governments of France, Great Britain and Russia denouncing the massacre of Armenians taking place in Turkey: "crimes against humanity and civilisation for which the members of the Turkish Government will be held responsible together with the agents implicated in the massacres."[7] Also in the 1919 Report of the Commission on the Responsibilities of the Authors of War and on Enforcement of Penalties for Violations of the Laws and Customs of War[8] the majority of the members concluded that the German Empire and its Allies carried out the war "by barbarous or illegitimate methods in violation of the established laws and customs of war and the elementary laws of humanity" and "all persons belonging to enemy countries (...) who have been guilty of offences against the laws and customs of war or the laws of humanity are liable for criminal prosecution." But whether this was a legislative act creating a new crime or whether it reflected customary international law still remains controversial.[9]

8. Legislative act or not, the definition given in the Charter of the International Military Tribunal has been challenged, especially concerning the nexus to war. Although it has recently been asserted that "the post-Nuremberg developments have failed decisively to resolve the nexus issue,"[10] there should be no doubt that the concept of crimes against humanity under customary international law applies to atrocities committed during peacetime. The nexus to war was not included in the definition of crimes against humanity contained in Control Council Law No. 10.[11]

9. Second, in its report on the development of the laws of war at the conclusion of the Nuremberg and Control Council Law No. 10 trials, the United Nations War Crimes Commission concluded that international law may now sanction individuals for crimes against humanity committed not only during war but also during peace.[12]

10. Third, in the International Law Commission's formulation of the Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal, the International Law Commission indicated that crimes against humanity of the inhuman act type could be committed apart from war[13]

11. Fourth, article 1 of the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity provides that such limitations do not apply to "[c]rimes against humanity whether committed in time of war or in time of peace."[14]

12. Since the International Military Tribunal, definitions have been as diverse as numerous. At least some particular crimes against humanity such as genocide, apartheid and enforced disappearances[15] have been clearly identified. The next developments have been the adoption by the Security Council of the International Criminal Tribunal for the former Yugoslavia (hereafter ICTY) and the International Criminal Tribunal for Rwanda (hereafter ICTR) statutes[16] and more recently the International Criminal Court (hereafter ICC) statute.[17]

13. One may hope the ICC statute will have an authoritative status, being the product of national positions as to the content of customary law. Consequently the present analysis will focus on the definition given in its article 7 concerning crimes against humanity. It will try to give the potential offender some guidelines regarding the definition of the crimes. In the end he may hopefully know what to expect at the threshold of the new millennium, if ever prosecuted.

    Analysis of the elements of the Crimes

14. The chapeau of article 7 of the ICC statute reads as follows: "For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack".

15. The following elements will be analysed: the absence of a nexus to war, the absence of a discriminatory motive, the requirement of a "widespread or systematic attack directed against any civilian population", and finally the "knowledge of the attack", or mens rea.

    No requirement of a nexus to war

16. This is consistent with the Post Nuremberg developments (see supra) and also with article 3 of the ICTR statute. However if article 5 of the ICTY requires a nexus to an armed conflict, this was contrary to the Report of the Secretary General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993) and interpreted as such by ICTY Appeals Chamber in its Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Tadic case), in which it considered that by requiring proof of an armed conflict, the statute had narrowed the customary concept of crimes against humanity.[18]

    No requirement of a discriminatory motive

17. Article 3 of the ICTR statute requires a discriminatory motive: "on national, political, ethnic, racial or religious grounds". The ICTY statute does not. However, subsequent to the Appeals Chamber's decision in Prosecutor v. Tadic, crimes against humanity need to be committed with a discriminatory intent only with regard to the category of "persecutions" under Article 5(h).[19] As stated in paragraph 652, this requirement is "not in the article on crimes against humanity in the I.L.C. Draft Code nor does the Defence challenge its exclusion in the Prosecution's definition of the offence." The only reason why it was included in the statute is because it was incorporated in the Report of the Secretary-General in its paragraph 48, and because "several Security Council members stated that they interpreted Article 5 as referring to acts taken on a discriminatory basis".

    The requirement of a "widespread or systematic attack"

18. The requirement, although not mentioned in the ICTY statute, had been mentioned in the Report of the Secretary General.[20] As pointed out by William Fenrick, it has "always been regarded as an element of the offense."[21] As such it was necessarily included in the ICTR statute, and later in the ICC statute. The terms have been clearly defined by the ICTR in Akayesu: "The concept of 'widespread' may be defined as massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims. The concept of 'systematic' may be defined as thoroughly organised and following a regular pattern on the basis of a common policy involving substantial public or private resources."[22]

19. The question of whether the test should be disjunctive ("widespread or systematic") or conjunctive ("widespread and systematic") has been discussed at the Rome Conference. However according to the Trial Chamber in Tadic[23] it is doubtful that such a controversy was relevant. It states that in addition to the Report of the Secretary-General numerous other sources support the conclusion that "widespreadness" and "systematicity" are alternatives, namely the Report of the Ad Hoc Committee on the Establishment of a Permanent International Criminal Court, which provides that crimes against humanity "usually involved a widespread or systematic attack against the civilian population rather than isolated offences"[24] article 18 of the International Law Commission Draft Code of Crimes Against the Peace and Security of Mankind, which requires that the act be committed "in a systematic manner or on a large scale"[25] and explicitly states that these are two alternative requirements, etc.

    "directed against any civilian population"

20. This requirement is mentioned in the ICTY, ICTR, and ICC statutes. In the latter the term is defined in article 7 (2a) as "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 organizational policy to commit such attack".

21. The policy element ("directed") has been widely supported since Nuremberg.[26] It is to be found, for example, in cases such as Barbie[27] Touvier[28] Menten[29] Finta[30] Article 7 overcomes the traditional position, which was, in fact, "not only that a policy must be present but that the policy must be that of a State."[31] However it reflects the developments of international customary law, which do not require the policy to be the policy of a state.[32] Accordingly article 7 (2a) takes into account "organizational" policies. The policy "does not need to be formalized and can be deduced from the way in which the acts occur."[33]

22. Concerning the term "civilians", the ICTY went further than admitting the possible attacks strictly directed at them. In Tadic the Trial Chamber affirmed that it might include resistance movements.[34] This was recently confirmed in Prosecutor v. Kupreskic[35] at para. 549: "the presence of those actively involved in the conflict should not prevent the characterization of a population as civilian and those actively involved in a resistance movement can qualify as victims of crimes against humanity."

    The "knowledge of the attack"

23. The "knowledge of the attack" refers to the mens rea. According to the Trial Chamber in Tadic[36] the mens rea for crimes against humanity comprises of the intent to commit the underlying offence, combined with knowledge of the broader context in which that offence occurs. This knowledge has been defined by the ICTR in Prosecutor v. Kayishema as follows: "[t]he perpetrator must knowingly commit crimes against humanity in the sense that he must understand the overall context of his act. Part of what transforms an individual's act into a crime against humanity is the inclusion of the act(s) within a greater dimension of criminal conduct; therefore an accused should be aware of this greater dimension in order to be culpable thereof. Accordingly, actual or constructive knowledge of the broader context of the attack, meaning that the accused must know that his act(s) is part of a widespread or systematic attack on a civilian population and pursuant to some sort of policy or plan, is necessary to satisfy the requisite mens rea element of the accused."[37]

24. The mens rea requirement is a fundamental principle for the potential offender. To find him guilty, the Prosecution would have to prove that he knew that the acts he committed were connected to a "widespread or systematic" attack. . For example he could have the mens rea for murder, but not for crimes against humanity. Consequently for most of the acts enumerated in article 7 (2), the alleged offender will be protected by the mental element. One can only say "most", since if some acts do not involve any problem concerning their definition (since clearly defined in the ICC statute or in international instruments[38]), others may cause problem in a near future, namely "other inhuman acts" and "persecution". They may be deemed to be contrary to the principle of specificity of international law.

    "Other inhuman acts", "persecution", and the principle of legality

25. Article 7 of the ICC statute, in its paragraph 2, lists the acts included in the definition of crimes against humanity. Among them some may cause greater problems than others, namely "other inhuman acts" and "persecution". As regard to these acts, the last judgement of the ICTY, Prosecutor v. Kupreskic[39], provides for a pertinent analysis, giving an accurate idea of their actual content.

    "Other inhuman acts"

26. These crimes are contained in the ICTY and ICTR statutes but not defined. They raise grave concerns about the imprecision of their content, which is "too general to provide a safe yardstick (...) and hence (...) is contrary to the principle of the specificity of criminal law" (Prosecutor v. Kupreskic[40]). This is precisely the reason why the States decided to include precisions in the ICC statute, which defines the acts as "other inhuman acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health." But is this sufficient to clarify the issue? The aim of such a category is undoubtedly to "catch up with the imagination of future torturers"[41], but certainly not to give them a mean of defence before a court.

27. In the Kupreskic case, the ICTY expressly mentioned that the definition given in the ICC statute does not help.[42] The alternative remains the same: looking at international standards on human rights such as the Universal Declaration on Human Rights of 1948 and the two United Nations Covenants on Human Rights of 1966. It then gives examples: [S]erious forms of cruel or degrading treatment of persons belonging to a particular ethnic, religious, political or racial group, or serious widespread or systematic manifestations of cruel or humiliating or degrading treatment with a discriminatory or persecutory intent no doubt amount to crimes against humanity: inhuman or degrading treatment is prohibited by the United Nations Covenant on Civil and Political Rights (Article 7), the European Convention on Human Rights, of 1950 (Article 3), the Inter-American Convention on Human Rights of 9 June 1994 (Article 5) and the 1984 Convention against Torture (Article 1). Similarly, the expression at issue undoubtedly embraces the forcible transfer of groups of civilians (which is to some extent covered by Article 49 of the IVth Convention of 1949 and Article 17(1) of the Additional Protocol II of 1977), enforced prostitution (indisputably a serious attack on human dignity pursuant to most international instruments on human rights), as well as the enforced disappearance of persons (prohibited by General Assembly Resolution 47/133 of 18 December 1992 and the Inter-American Convention of 9 June 1994."[43]

28. The traditional elements of crimes against humanity are still required and the analysis can only be made case by case. The category remains of an open-ended nature, and so does the eventual defense claim of violation of the principle of specificity.

    "Persecution"

29. Persecution is defined in the ICC statute as "the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity" on discriminatory grounds. For the first time persecution is defined in an international instrument. So as to the discriminatory motives, the ICC statute is a combination of the ICTY and the ICTR statutes, taking into account persecution on "political, racial or religious grounds" (common elements to both statutes) and on nationals and ethnic grounds (chapeau of the ICTR definition).[44] It adds an open-ended category, but with a very high threshold: "or other grounds that are universally recognized as impermissible under international law". connection "with any act referred to in this paragraph or any crime within the jurisdiction of the Court" is required.

30. This is a new requirement, which did not appear in previous instruments, except in the Tokyo Charter. This may appear to be in contradiction with the fact that a nexus to an armed conflict is not required ("any crime within the jurisdiction of the Court"). But since article 10 of the same statute states that "[n]othing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute", the issue should not be insurmountable. Recently the defence in the Kupreskic case, in alleging that a nexus to another crime in the statute shall be required, referred to the ICC statute[45] and relied on article 6, paragraph (c) of the IMT Charter. But for the latter, as noted by the ICTY, the nexus was essentially meant to be a nexus to war, and was factual. And article 10 provides for a good safeguard.[46]

31. The definition is broad, and seems to reflect the definition given in Tadic that persecutory acts could include, "inter alia, those of a physical, economic, or judicial nature, that violate an individual's right to the equal enjoyment of his basic rights".[47] In the Kupreskic case, the defence argued that a broad definition would be "a violation of the principle of legality (nullum crimen sine lege)"[48] but the Prosecution was against this argument, relying on article 7 (2) (g) of the ICC statute.[49] It is in favour of a wide definition. However the Trial Chamber "holds the view that in order for persecution to amount to a crime against humanity it is not enough to define a core assortment of acts and to leave peripheral acts in a state of uncertainty. There must be clearly defined limits on the types of acts, which qualify as persecution. Although the realm of human rights is dynamic and expansive, not every denial of a human right may constitute a crime against humanity."[50] The Trial Chamber therefore defines persecution as "as the gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law, reaching the same level of gravity as the other acts prohibited in Article 5."[51] These criterions may serve as a basis to identify what can be constitutive of persecution as a crime against humanity. The discriminatory element will certainly play a great role, as it is a strong requirement, among the other elements of the crimes.

32. A definition such as the one in the Kupreskic case is of a great importance since it allows a court to charge an offender with persecution as a crime in itself, and not only as an auxiliary offense or an aggravating factor. In sum, as recalled in the paragraph 626 of the decision, a charge of persecution must contain the following elements: a) those elements required for all crimes against humanity under the Statute; b) a gross or blatant denial of a fundamental right reaching the same level of gravity as the other acts prohibited under Article 5; (c) discriminatory grounds.

33. This should provide guidelines for the potential offender and for the (potential) Prosecutor or Judge. Nevertheless it is still possible that the ICC will not follow the ICTY and will try to connect persecution to one of the crimes listed in article 7. Even if it does so, the elements of the crimes will still have to be analysed.

    Conclusion

34. The fears of Charles de Montesquieu, Beccaria, and their contemporary counterparts that the principles of legality may be violated will be anachronistic, if the ICC becomes the expected tool of the New Millennium to prosecute international criminals. However this would involve that the frenzied atmosphere surrounding the Rome Conference will lead the States to ratify the Rome statute, with the same frenzy attitude. Even in such an event, national jurisdictions will still be competent, since under article 1 the jurisdiction of the ICC "shall be complementary to national criminal jurisdictions". At the national level, one may hope that judges will be reasonable. But the analogy that could be made with the "reasonable military commander" in applying the rules of international law of armed conflict is not very encouraging.