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Preparatory Commission For The International Criminal Court
Preparatory Commission For The International Criminal Court
Introductory notes:
- The purpose of this commentary is to facilitate the debate of the
Preparatory Commission on crimes against humanity.
- This commentary contains a compilation of the relevant case law of the
ad hoc-Tribunals for the former Yugoslavia and Rwanda, references to
relevant treaty law and Charters of other international Tribunals,
excerpts of the 1996 ILC Report on the Draft Code of Crimes Against
the Peace and the Security of Mankind, citations of relevant literature as
well as comments on selected issues.
- Please note that bold parts in the judgements or other texts cited are
added in order to emphasize the relevant criteria.
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Preliminary remark:
The Statute itself contains detailed provisions on the jurisdiction of the
Court over crimes against humanity. Article 7 (1) establishes the
threshold that the crimes against humanity have to be "committed as part
of a widespread or systematic attack directed against any civilian
population". Article 7 (2) (a) defines the notion of "attack" as a "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".
As far as war crimes in Article 8 are concerned, the wording of the
Statute is poorer with regard to the jurisdiction of the Court. Therefore it
was necessary to introduce there as a first jurisdictional element that
"[t]he conduct took place in the context of and was associated with an
international armed conflict".
For consistency reasons it is suggested to introduce also for the elements
of each crime against humanity a first jurisdictional element, stressing
the scale or the organization of the attack, as well as the policy within
the specific crimes have to occur in order to amount to a crime against
humanity. These elements stem directly from the Statute. As the Statute
is precise enough in this regard, any additional elements are either
unnecessary or are not allowed if they altered the Statute. Therefore the
inclusion of elements that, for example, the crimes need to take place
during an armed conflict (see in this regard the chapeau of crimes
against humanity under the jurisdiction of the ICTY) or that they have to
be committed on discriminatory grounds (see in this regard the chapeau
of crimes against humanity under the jurisdiction of the ICTR) would
not be permissible (under the ICC Statute this is only the case for the
crime of persecution).
- ICC Statute
Article 7 (2) (a) "Attack directed against any civilian population" means
a course of conduct involving the multiple commission of acts referred
to in paragraph 1 against any civilian population, pursuant to or in
furtherance of a State or organizational policy to commit such attack.
Case law
- ICTR, Trial Chamber I, The Prosecutor v. Jean-Paul Akayesu, ICTR-
96-4-T, Judgement of 2 September 1998:
"581. The concept of 'attack' may be defined as a unlawful act of the
kind enumerated in Article 3(a) to (I) of the Statute, like murder,
extermination, enslavement etc. An attack may also be non violent in
nature, like imposing a system of apartheid, which is declared a crime
against humanity in Article 1 of the Apartheid Convention of 1973, or
exerting pressure on the population to act in a particular manner, may
come under the purview of an attack, if orchestrated on a massive scale
or in a systematic manner."
- ICTR, Trial Chamber II, The Prosecutor v. Clément Kayishema and
Obed Ruzindana, ICTR-95-1-T, Judgement of 21 May 1999:
"122. (...) The attack is the event in which the enumerated crimes must
form part. Indeed, within a single attack, there may exist a combination
of the enumerated crimes, for example murder, rape and deportation."
"As part of" an attack (Nexus between specific crimes and attack)
Case law
- ICTR, Trial Chamber II, The Prosecutor v. Clément Kayishema and
Obed Ruzindana, ICTR-95-1-T, Judgement of 21 May 1999:
"122. The enumerated crimes must be committed as part of a widespread
or systematic attack against any civilian population on national, political,
ethnic, racial or religious grounds (...)"
- ICTY, Appeals Chamber, The Prosecutor v. Dusko Tadic, IT-94-1-A,
Judgement of 15 July 1999:
"271. The Trial Chamber correctly recognised that crimes which are
unrelated to widespread or systematic attacks on a civilian population
should not be prosecuted as crimes against humanity. Crimes against
humanity are crimes of a special nature to which a greater degree of
moral turpitude attaches than to an ordinary crime. Thus to convict an
accused of crimes against humanity, it must be proved that the crimes
were related to the attack on a civilian population (occurring during an
armed conflict) and that the accused knew that his crimes were so
related."
Case law
- ICTR, Trial Chamber I, The Prosecutor v. Jean-Paul Akayesu, ICTR-
96-4-T, Judgement of 2 September 1998:
"587. The Chamber considers that murder is a crime against humanity,
pursuant to Article 3 (a) of the Statute. The International Law
Commission discussed the inhumane act of murder in the context of the
definition of crimes against humanity and concluded that the crime of
murder is clearly understood and defined in the national law of every
state and therefore there is no need to further explain this prohibited act.
588. The Chamber notes that article 3(a) of the English version of the
Statute refers to "Murder", whilst the French version of the Statute refers
to "Assassinat". Customary International Law dictates that it is the act of
"Murder" that constitutes a crime against humanity and not "Assassinat".
There are therefore sufficient reasons to assume that the French version
of the Statute suffers from an error in translation.
589. The Chamber defines murder as the unlawful, intentional killing of
a human being. The requisite elements of murder are:
1. the victim is dead;
2. the death resulted from an unlawful act or omission of the accused or
a subordinate;
3. at the time of the killing the accused or a subordinate had the intention
to kill or inflict grievous bodily harm on the deceased having known that
such bodily harm is likely to cause the victim's death, and is reckless
whether death ensures or not."
- ICTR, Trial Chamber II, The Prosecutor v. Clément Kayishema and
Obed Ruzindana, ICTR-95-1-T, Judgement of 21 May 1999:
"138. (...) Although it may be argued that, under customary international
law, it is murder rather than assassinat that constitutes the crime against
humanity (a position asserted by the Chamber in the Akayesu
Judgement), this court is bound by the wording of the ICTR Statute in
particular. It is the ICTR Statute that reflects the intention of the
international community for the purposes of trying those charged with
violations of international law in Rwanda. Furthermore, the ICTR and
ICTY Statutes did not reflect customary international law at the time of
drafting. This is evident by the inclusion of the need for an armed
conflict in the ICTY Statute and the inclusion of the requirement that the
crimes be committed with discriminatory intent in the ICTR Statute.
Accordingly, it may be presumed that the drafters intended to use
assassinat alongside murder. Indeed, by using assassinat in French, the
drafters may have intended that only the higher standards of mens rea
for murder will suffice.
139. If in doubt, a matter of interpretation should be decided in favour of
the accused; in this case, the inclusion of premeditation is favourable to
the accused. The Chamber finds, therefore, that murder and assassinat
should be considered together in order to ascertain the standard of mens
rea intended by the drafters and demanded by the ICTR Statute. When
murder is considered along with assassinat the Chamber finds that the
standard of mens rea required is intentional and premeditated killing.
The result is premeditated when the actor formulated his intent to kill
after a cool moment of reflection. The result is intended when it is the
actor's purpose, or the actor is aware that it will occur in the ordinary
course of events.
140. The accused is guilty of murder if the accused, engaging in conduct
which is unlawful:
1. causes the death of another;
2. by a premeditated act or omission;
3. intending to kill any person or,
4. intending to cause grievous bodily harm to any person."
Comment:
Content of the mens rea
There is a difference between the English versions of ICTY and ICTR
Statutes which both use the term "murder," whilst the French versions of
the Statutes use the term "assassinat". The interpretation by Trial
Chamber II of the ICTR on Article 3(a) of the Statute contradicts the
judgement of the Trial Chamber I in the Akayesu case.
This differentiation with regard to the ICTR Statute is not of primary
relevance for the ICC Statute, as both the English and the French
versions of the Statute use in Article 7 (1) (a) the term "murder" or
"meurtre". However, it could be inferred from the conclusions of the
ICTR that, as the ICC Statute mentions only the term "murder", this
crime could be committed without premeditation.
However, article 7 of the ICC Statute has also to be read in the context
of article 30 of the ICC Statute, which states that "[u]nless otherwise
provided, a person shall be criminally responsible and liable for
punishment for a crime within the jurisdiction of the Court only if the
material elements are committed with intent and knowledge." With
regard to this question, the forthcoming Trifterer Commentary on the
ICC Statute states:
"However, article 7 must be interpreted in the light of the somewhat
confusing and circular definitions of intent and knowledge in article 30.
Article 30 para. 1 states that "[u]nless otherwise provided", the material
elements of the crime must be "committed with intent and knowledge".
In relation to conduct, the accused has intent under article 30 para. 2 (a)
where "that person means to engage in the conduct". Therefore, a person
would have the necessary intent to commit murder where the person
meant to kill the victim or inflict serious bodily harm on the victim. In
relation to a consequence, the accused has intent under article 30 para. 2
(b) where "that person means to cause that consequence or is aware that
it will occur in the ordinary course of events". A person has knowledge
under article 30 para. 3 where there is "awareness that a circumstance
exists or a consequence will occur in the ordinary course of events".
Therefore, a person would have intent if the person meant to kill or
inflict grievous bodily harm or was aware that the actions would lead to
death in the ordinary course of events. It is less clear, but still possible,
that if the accused was aware that the actions would be likely to lead to
death in the ordinary course of events that the accused would be
responsible for murder. Since knowledge includes awareness that a
circumstance exists, that circumstance could be the likelihood that death
would ensue as a result of the actions rather than the certainty that death
would occur. There would be then no need to show that the person was
reckless whether the death occurred or not, only that the person
intentionally inflicted grievous bodily harm knowing that in such
circumstances death would be likely to occur."
Intent to cause grievous bodily harm
The ICTR states that the accused must not have in every case the intent
to kill a person. It suffices that he intended to cause grievous bodily
harm, having known that such bodily harm is likely to cause the victim's
death, and is reckless whether death ensures or not. This concept is, for
example, described in Cherif Bassiouni's book, Crimes Against
Humanity in International Criminal law, 2nd edition, p. 301: "The
customary practice of states (...) reveals that murder is not intended to
mean only those specific intentional killings without lawful justification.
Instead, state practice views murder in its largo senso meaning as
including the creation of life-endangering conditions likely to result in
death according to reasonable human experience".
Treaty law
- ICC Statute
Article 7 (2) (b): "Extermination" includes the intentional infliction of
conditions of life, inter alia the deprivation of access to food and
medicine, calculated to bring about the destruction of part of a
population.
Case law
- ICTR, Trial Chamber I, The Prosecutor v. Jean-Paul Akayesu, ICTR-
96-4-T, Judgement of 2 September 1998:
"591. The Chamber considers that extermination is a crime against
humanity, pursuant to Article 3 (c) of the Statute. Extermination is a
crime which by its very nature is directed against a group of individuals.
Extermination differs from murder in that it requires an element of mass
destruction which is not required for murder."
- ICTR, Trial Chamber II, The Prosecutor v. Clément Kayishema and
Obed Ruzindana, ICTR-95-1-T, Judgement of 21 May 1999
"142. The crime of extermination was not specifically defined in the
Statute or the Nuremberg Charter. Indeed, there is very little
jurisprudence relating to the essential elements of extermination. In the
Akayesu Judgement, Chamber I considered that extermination is a crime
that by its very nature is directed against a group of individuals and
differs from murder in that it requires an element of mass destruction
that is not required for murder. The Prosecution asserted that there is no
need for a defined number of people to die for the killing to rise to an act
of extermination; it is determined on a case-by-case basis even though
there is the need for a numerical requirement. Notably, Akayesu was
found guilty of extermination for ordering the killing of sixteen people.
The Chamber agrees that the difference between murder and
extermination is the scale; extermination can be said to be murder on a
massive scale. The Defence did not address the numerical question but
argues that "the essence of extermination lies in the fact that it is an
indiscriminate elimination."
"144. Having considered the above, the Chamber defines the requisite
elements of extermination:
The actor participates in the mass killing of others or in the creation
of conditions of life that lead to the mass killing of others, through
his act(s) or omission(s); having intended the killing, or being
reckless, or grossly negligent as to whether the killing would result
and; being aware that his act(s) or omission(s) forms part of a mass
killing event; where, his act(s) or omission(s) forms part of a
widespread or systematic attack against any civilian population on
national, political, ethnic, racial or religious grounds.
145. The term "mass", which may be understood to mean 'large scale,'
does not command a numerical imperative but may be determined on
a case-by-case basis using a common sense approach. The actor need not
act with a specific individual(s) in mind.
146. The act(s) or omission(s) may be done with intention,
recklessness, or gross negligence. The 'creation of conditions of life
that lead to mass killing' is the institution of circumstances that
ultimately causes the mass death of others. For example: Imprisoning a
large number of people and withholding the necessities of life which
results in mass death; introducing a deadly virus into a population and
preventing medical care which results in mass death. Extermination
includes not only the implementation of mass killing or the creation of
conditions of life that leads to mass killing, but also the planning thereof.
In this event, the Prosecutor must prove a nexus between the planning
and the actual killing.
147. An actor may be guilty of extermination if he kills, or creates the
conditions of life that kills, a single person providing the actor is aware
that his act(s) or omission(s) forms part of a mass killing event. For a
single killing to form part of extermination, the killing must actually
form part of a mass killing event. An 'event' exists when the (mass)
killings have close proximity in time and place."
- ICTY: No judgements. However, the indictments of 25 November
1995 against Radovan Karadzic and Ratko Mladic and of 2 November
1998 against Radislav Krstic include extermination.
Treaty law
- ICC Statute
Article 7 (2) (c): "Enslavement" means the exercise of any or all of the
powers attaching to the right of ownership over a person and includes
the exercise of such power in the course of trafficking in persons, in
particular women and children.
- Convention to Suppress the Slave Trade and Slavery (25 September
1926) and Supplementary Convention on the Abolition of Slavery, the
Slave Trade, and Institutions and Practices Similar to Slavery (7
September 1956):
Article 1: Slavery is the status or condition of a person over whom any
or all of the powers attaching to the right of ownership are exercised.
- Convention concerning Forced or Compulsory Labour (28 June 1930):
Article 2:
1. For the purposes of this Convention the term "forced or compulsory
labour" shall mean all work or service which is exacted from any person
under the menace of any penalty and for which the said person has not
offered himself voluntarily.
2. Nevertheless, for the purposes of this Convention, the term "forced or
compulsory labour" shall not include-- (a) any work or service exacted
in virtue of compulsory military service laws for work of a purely
military character; (b) any work or service which forms part of the
normal civic obligations of the citizens of a fully self-governing country;
(c) any work or service exacted from any person as a consequence of a
conviction in a court of law, provided that the said work or service is
carried out under the supervision and control of a public authority and
that the said person is not hired to or placed at the disposal of private
individuals, companies or associations; (d) any work or service exacted
in cases of emergency, that is to say, in the event of war or of a calamity
or threatened calamity, such as fire, flood, famine, earthquake, violent
epidemic or epizootic diseases, invasion by animal, insect or vegetable
pests, and in general any circumstance that would endanger the existence
or the well-being of the whole or part of the population; (e) minor
communal services of a kind which, being performed by the members of
the community in the direct interest of the said community, can therefore
be considered as normal civic obligations incumbent upon the members
of the community, provided that the members of the community or their
direct representatives shall have the right to be consulted in regard to the
need for such services.
- Convention concerning the Abolition of Forced Labour (25 June 1957)
Case law
- ICTR: No Judgements
- ICTY: No Judgements. However, the indictments of 26 June 1996
against Radomir Kovac, Radovan Stankovic and Dragoljub Kunarac
("Foca-case" - IT-96-23) include enslavement:
"10.6 In addition to the rapes and other sexual assaults, all the female
detainees were forced to work for the Serb soldiers, washing
uniforms, cooking and cleaning the house. FWS-87 was taken three
times from Karaman's house to other buildings inMiljevina. On these
occasions, she was forced to clean rooms in the buildings, cook for the
soldiers and paint the window-frames. On one of the three occasions,
when she was taken out with another woman, two Montenegrin soldiers
sexually assaulted both women.
10.7 At Karaman's house, the detainees constantly feared for their lives.
If any woman refused to obey orders, she would be beaten. Soldiers
often told the women that they would be killed after the soldiers were
finished with them because they knew too much. FWS-87 felt suicidal
during the entire time of her detention in Karaman's house.
10.8 By the foregoing acts and omissions, RADOVAN STANKOVIC
committed: Count 56: A CRIME AGAINST HUMANITY punishable
under Article 5 (c) (enslavement) of the Statute of the Tribunal"
Article 7 (1) (d): Deportation or forcible transfer of population
Treaty law
- ICC Statute
Article 7 (2) (d): "Deportation or forcible transfer of population" means
forced displacement of the persons concerned by expulsion or other
coercive acts from the area in which they are lawfully present, without
grounds permitted under international law.
Case law
- ICTR: No Judgements
- ICTY: No Judgements. However, the indictments of 21 July 1995
(amended on 25 August and 12 December 1998 against Blagoje Simic,
Miroslav Tadic, Stevan Todorovic and Simo Zaric (IT-95-9) include
deportation and forcible transfer. The indicments of 24 May 1999
against Slobodan Milosevic, Milan Milutinovic, Dragoljub Ojdanic,
Vlajko Stojiljkovic and Nikola Sainovic (IT-99-37) include deportation
and forcible expulsion:
"35. The unlawful deportation and forcible transfer of thousands of
Kosovo Albanians from their homes in Kosovo involved well-planned
and co-ordinated efforts by the leaders of the FRY and Serbia, and
forces of the FRY and Serbia, all acting in concert. Actions similar in
nature took place during the wars in Croatia and Bosnia and
Herzegovina between 1991 and 1995. During those wars, Serbian
military, paramilitary and police forces forcibly expelled and deported
non-Serbs in Croatia and Bosnia and Herzegovina from areas under
Serbian control utilising the same method of operations as have been
used in Kosovo in 1999: heavy shelling and armed attacks on villages;
widespread killings; destruction of non-Serbian residential areas and
cultural and religious sites; and forced transfer and deportation of non-
Serbian populations."
Case law
- ICTR: No Judgements
- ICTY: No Judgements. However, the amended indictments of 30
September 1998 against Dario Kordic and Mario Cerkez include
imprisonment. In The Prosecutor v. Zejnil Delalic, Zdravko Mucic,
Hazim Delic and Esad Landzo, ICTY IT-96-21-T, Judgement of 16
November 1998, Trial Chamber II of the ICTY addressed the issue of
unlawful confinement of civilians in the context of armed conflict.
Treaty law
- ICC Statute
Article 7 (2) (e): "Torture" means the intentional infliction of severe pain
or suffering, whether physical or mental, upon a person in the custody or
under the control of the accused; except that torture shall not include
pain or suffering arising only from, inherent in or incidental to, lawful
sanctions.
- Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment (10 December 1984)
Article 1: For the purposes of this Convention, torture means any act by
which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from
him or a third person information or a confession, punishing him for an
act he or a third person has committed or is suspected of having
committed, or intimidating or coercing him or a third person, or for any
reason based on discrimination of any kind, when such pain or suffering
is inflicted by or at the instigation of or with the consent or acquiescence
of a public official or other person acting in an official capacity. It does
not include pain or suffering arising only from, inherent in or incidental
to lawful sanctions.
Case law
- ICTR, Trial Chamber I, The Prosecutor v. Jean-Paul Akayesu, ICTR-
96-4-T, Judgement of 2 September 1998:
Trial Chamber I defines the crime of torture according to Article 1 of the
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment:
"594. The Chamber defines the essential elements of torture as:
(i) The perpetrator must intentionally inflict severe physical or mental
pain or suffering upon the victim for one or more of the following
purposes:
(a) to obtain information or a confession from the victim or a third
person;
(b) to punish the victim or a third person for an act committed or
suspected of having been committed by either of them;
(c) for the purpose of intimidating or coercing the victim or the third
person;
(d) for any reason based on discrimination of any kind.
(ii) The perpetrator was himself an official, or acted at the instigation of,
or with the consent or acquiescence of, an official or person acting in an
official capacity."
- ICTY, Trial Chamber II, The Prosecutor v. Zejnil Delalic, Zdravko
Mucic, Hazim Delic and Esad Landzo, ICTY IT-96-21-T, Judgement of
16 November 1998:
"452. There can be no doubt that torture is prohibited by both
conventional and customary international law. In addition to the
proscriptions of international humanitarian law, which are pleaded in the
Indictment, there are also a number of international human rights
instruments that express the prohibition."
"454. Based on the foregoing, it can be said that the prohibition on
torture is a norm of customary law. It further constitutes a norm of
jus cogens,(...) as has been confirmed by the United Nations Special
Rapporteur for Torture.470 It should additionally benoted that the
prohibition contained in the aforementioned international instruments is
absolute and non-derogable in any circumstances.471"
"470. Another critical element of the offence of torture is the presence of
a prohibited purpose. As previously stated, the list of such prohibited
purposes in the Torture Convention expands upon those enumerated in
the Declaration on Torture by adding "discrimination of any kind". The
use of the words "for such purposes" in the customary definition of
torture, indicate that the various listed purposes do not constitute an
exhaustive list, and should be regarded as merely representative.
Further, there is no requirement that the conduct must be solely
perpetrated for a prohibited purpose. Thus, in order for this requirement
to be met, the prohibited purpose must simply be part of the motivation
behind the conduct and need not be the predominating or sole purpose."
____________________________________________
470 See Report of the Special Rapporteur, para. 3.
471 See e.g. Art. 2(2) Torture Convention; Art. 15(2) European
Convention; Art. 4(2) ICCPR; Art. 27(2) American Convention on
Human Rights; Art. 5 Inter-American Convention."
- ICTY, Trial Chamber II, The Prosecutor v. Anto Furundzija, ICTY IT-
95-17/1-T, Judgement of 10 December 1998:
"160. (...) However, attention should be drawn to the fact that article 1 of
the Convention explicitly provides that the definition contained therein
is "for the purposes of this Convention". It thus seems to limit the
purport and contents of that definition to the Convention solely. An
extra-conventional effect may however be produced to the extent that
the definition at issue codifies, or contributes to developing or
crystallising customary international law. Trial Chamber II of the
International Tribunal has rightly noted in Delalic that indeed the
definition of torture contained in the 1984 Torture Convention is broader
than, and includes, that laid down in the 1975 Declaration of the United
Nations General Assembly and in the 1985 Inter-American Convention,
and has hence concluded that that definition "thus reflects a consensus
which the Trial Chamber considers to be representative of customary
international law".176 This Trial Chamber shares such conclusion,
although on legal grounds that it shall briefly set out. First of all, there is
no gainsaying that the definition laid down in the Torture
Convention, although deliberately limited to the Convention, must be
regarded as authoritative, inter alia, because it spells out all the
necessary elements implicit in international rules on the matter.
Secondly, this definition to a very large extent coincides with that
contained in the United Nations Declaration on Torture of 9 December
1975, hereafter "Torture Declaration".177 It should be noted that this
Declaration was adopted by the General Assembly by consensus. This
fact shows that no member State of the United Nations had any
objection to such definition. In other words, all the members of the
United Nations concurred in and supported that definition. Thirdly, a
substantially similar definition can be found in the Inter-American
Convention.178 Fourthly, the same definition has been applied by the
United Nations Special Rapporteur and is in line with the definition
suggested or acted upon by such international bodies as the European
Court of Human Rights 179 and the Human Rights Committee.180
161. The broad convergence of the aforementioned international
instruments and international jurisprudence demonstrates that thereis
now general acceptance of the main elements contained in the
definition set out in article 1 of the Torture Convention.
162. The Trial Chamber considers however that while the definition
referred to above applies to any instance of torture, whether in time of
peace or of armed conflict, it is appropriate to identify or spell out some
specific elements that pertain to torture as considered from the specific
viewpoint of international criminal law relating to armed conflicts. The
Trial Chamber considers that the elements of torture in an armed conflict
require that torture:
(i) consists of the infliction, by act or omission, of severe pain or
suffering, whether physical or mental; in addition
(ii) this act or omission must be intentional;
(iii) it must aim at obtaining information or a confession, or at
punishing, intimidating, humiliating or coercing the victim or a third
person, or at discriminating, on any ground, against the victim or a third
person;
(iv) it must be linked to an armed conflict;
(v) at least one of the persons involved in the torture process must be a
public official or must at any rate act in a non-private capacity, e.g. as a
de facto organ of a State or any other authority-wielding entity.
As is apparent from this enumeration of criteria, the Trial Chamber
considers that among the possible purposes of torture one must also
include that of humiliating the victim. This proposition is warranted
by the general spirit of international humanitarian law: the primary
purpose of this body of law is to safeguard human dignity. The
proposition is also supported by some general provisions of such
important international treaties as the Geneva Conventions and
Additional Protocols, which consistently aim at protecting persons not
taking part, or no longer taking part, in the hostilities from "outrages
upon personal dignity".181 The notion of humiliation is, in any event
close to the notion of intimidation, which is explicitly referred to in the
Torture Convention's definition of torture.
____________________________________________
176 Case No. IT-96-21-T, para. 459. 177 Declaration on the Protection
of All Persons from Being Subjected to Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, adopted by the United
Nations General Assembly resolution 3452 (XXX) of 9 Dec. 1975. Art.
1(2) describes torture as "an aggravated and deliberate form of cruel,
inhuman or degrading treatment or punishment."
178 Arts. 2 and 3.
179 The European Court of Human Rights found that torture is
deliberate inhuman treatment causing very serious and cruel
suffering(Ireland v. United Kingdom, Eur. Ct. H.R., Series A, No. 25,
para. 167) (...).
180 The Human Rights Committee, in its General Comment on Art. 7 of
the ICCPR, indicated that the distinction between prohibited forms of
mistreatment depends on the kind, purpose and severity of the particular
treatment. (Compilation of General Comments and General
Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc.
HRI\GEN\1\Rev. 1 at 30 (1994)).
181 See e.g. Art. 3 (1)(c ) common to the Geneva Conventions, Art. 75
(2)(b) of Additional Protocol I and Art. 4 (2)(e) of Additional Protocol
II."
Case Law
- ICTR, Trial Chamber I, The Prosecutor v. Jean-Paul Akayesu, ICTR-
96-4-T, Judgement of 2 September 1998:
"596. Considering the extent to which rape constitute crimes against
humanity, pursuant to Article 3(g) of the Statute, the Chamber must
define rape, as there is no commonly accepted definition of this term in
international law. While rape has been defined in certain national
jurisdictions as non-consensual intercourse, variations on the act of rape
may include acts which involve the insertion of objects and/or the use of
bodily orifices not considered to be intrinsically sexual.
597. The Chamber considers that rape is a form of aggression and that
the central elements of the crime of rape cannot be captured in a
mechanical description of objects and body parts. The Convention
against Torture and Other Cruel, Inhuman and Degrading Treatment or
Punishment does not catalogue specific acts in its definition of torture,
focusing rather on the conceptual frame work of state sanctioned
violence. This approach is more useful in international law. Like torture,
rape is used for such purposes as intimidation, degradation, humiliation,
discrimination, punishment, control or destruction of a person. Like
torture, rape is a violation of personal dignity, and rape in fact
constitutes torture when inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an
official capacity.
598. The Chamber defines rape as a physical invasion of a sexual
nature, committed on a person under circumstances which are
coercive. Sexual violence which includes rape, is considered to be any
act of a sexual nature which is committed on a person under
circumstances which are coercive."
- ICTY, Trial Chamber II, The Prosecutor v. Anto Furundzija, ICTY IT-
95-17/1-T, Judgement of 10 December 1998:
"175. No definition of rape can be found in international law. However,
some general indications can be discerned from the provisions of
international treaties. In particular, attention must be drawn to the fact
that there is prohibition of both rape and "any form of indecent assault"
on women in article 27 of Geneva Convention IV, article 76(1) of
Additional Protocol I and article 4(2)(e) of Additional Protocol II. The
inference is warranted that international law, by specifically prohibiting
rape as well as, in general terms, other forms of sexual abuse, regards
rape as the most serious manifestation of sexual assault. This is, inter
alia, confirmed by Article 5 of the International Tribunal's Statute, which
explicitly provides for the prosecution of rape while it implicitly covers
other less grave forms of serious sexual assault through Article 5(i) as
"other inhuman acts".
"185. Thus, the Trial Chamber finds that the following may be accepted
as the objective elements of rape:
(i) the sexual penetration, however slight:
(a) of the vagina or anus of the victim by the penis of the perpetrator or
any other object used by the perpetrator; or
(b) of the mouth of the victim by the penis of the perpetrator;
(ii) by coercion or force or threat of force against the victim or a third
person."
Case law
- ICTR: No Judgements
- ICTY: No Judgements
Treaty law
- ICC Statute
Article 7 (2) (g): "Persecution" means the intentional and severe
deprivation of fundamental rights contrary to international law by reason
of the identity of the group or collectivity.
Case law
- ICTR: No Judgements
- ICTY, Trial Chamber II, The Prosecutor v. Dusko Tadic, IT-94-1-T,
Judgement of 7 May 1997:
Concept of persecution
"697. From the above it is evident that what is necessary is some form of
discrimination that is intended to be and results in an infringement of an
individual's fundamental rights. Additionally, this discrimination must
be on specific grounds, namely race, religion or politics. Because the
"persecution type" is separate from the "murder type" of crimes against
humanity it is not necessary to have a separate act of an inhumane nature
to constitute persecution; the discrimination itself makes the act
inhumane231. The commentary to the I.L.C. Draft Code speaks of a
denial of human rights and fundamental freedoms to which individuals
are entitled without distinction, and refers to articles of the Charter of the
United Nations and the International Covenant on Civil and Political
Rights which address the right to non-discrimination232. It also
discusses the relationship between the crime of "persecution on political,
racial, religious or ethnic grounds" and that of "institutionalized
discrimination on racial, ethnic, or religious grounds involving the
violation of fundamental human rights and freedoms and resulting in
seriously disadvantaging a part of the population", noting that they both
involve "the denial of the human rights and fundamental freedoms of
individuals based on an unjustifiable discriminatory criterion", although
in the case of the latter the discriminatory plan or policy must be
institutionalised233. It is the violation of the right to equality in some
serious fashion that infringes on the enjoyment of a basic or
fundamental right that constitutes persecution, although the
discrimination must be on one of the listed grounds to constitute
persecution under the Statute.
____________________________________________
231 See, e.g., the Barbie case, 143, supra.
232 I.L.C. Draft Code, 98, supra.
233 Id., 99."
- ICTY, Trial Chamber II, The Prosecutor v. Dusko Tadic, IT-94-1-T,
Judgement of 7 May 1997:
Nature of the persecutory acts
"707. Thus, as illustrated by these findings and as the International Law
Commission noted, persecution can take numerous forms, so long as the
common element of discrimination in regard to the enjoyment of a basic
or fundamental right is present, and persecution does not necessarily
require a physical element. There is, however, a limit to the acts which
can constitute persecution within the meaning of crimes against
humanity. For example, in the Flick trial, the court determined that
offences against industrial property could not constitute crimes against
humanity, although it made a distinction between industrial property and
the "dwellings, household furnishings and food supplies of persecuted
people"262 and thus "left open the question whether such offences
against personal property as would amount to an assault upon the health
and life of a human being (such as the burning of his house or depriving
him of his food supply or his paid employment) would not constitute a
crime against humanity"263. The Rebuttal statement of the prosecution
before the Nürnberg Tribunal has been interpreted to refer to economic
deprivation of this more personal type264 and the finding of the
Nürnberg Tribunal characterizing certain acts of economic
discrimination as persecution support the conclusion that economic
measures of a personal, as opposed to an industrial type, can
constitute persecutory acts265. The finding in the Eichmann case also
supports this conclusion. Count 6 of the indictment against Adolf
Eichmann alleged persecution of Jews on national, racial, religious and
political grounds and Count 7 concerned property.266 He was convicted
of crimes against humanity (Counts 5 to 7) for his activities in the
Emigration Centres, deportations and the "final solution". The plunder of
property of those Jews who were forced to emigrate or who were
deported was found to be a crime against humanity when committed "by
means of terror or linked with other acts of violence as defined in the
Law267, or when it was a result of those acts, so that it was part of a
comprehensive process, as was the plunder by the Centres for Jewish
Emigration of those who were deported and exterminated"268.
____________________________________________
262 Id., 26.
263 Notes on the Flick Trial, id., 50.
264 British Command Paper, Cmd. 6964, 85, quoted in Notes on the
Flick Trial, 51, supra.
265 See, e.g., the Nürnberg Tribunal's statements in the Leadership
Corps of the Nazi Party case, Nürnberg Judgment, supra at 259; the
Seyss-Inquart case, id., 328, 329; the Funk case, id., 305; the Frick case,
id., 300; and the Goering case, id., 282.
266 Eichmann case, supra.
267 Nazi and Nazi Collaborators (Punishment) Law, 5710/1950.
268 Summary of Eichmann case, id. at 14.
Comment:
Under the ICTY Statute, persecution itself constitutes a crime against
humanity. Persecution does not require a separate act of an inhumane
nature. Under the ICC Statute, however, there must be persecution either
in connection with any act referred to in article 7 (1) or any other crime
within the jurisdiction of the ICC. It is of importance to notice the
alternative in this reference: The notion "any act referred to in this
paragraph" does not mean that this act itself must constitute a crime
against humanity. Persecution can also be any conduct referred to in
article 7 (1) which occurs on discriminatory grounds.
In addition, persecution under the jurisdiction of the ICC does require a
discriminatory ground, however, unlike persecution under the ICTY
Statute, there is no definitive list of grounds. Article 7 (1) mentions
"other grounds that are universally recognized as impermissible under
international law" as possible intent for constituting a crime against
humanity. In this regard, the forthcoming Trifterer Commentary on the
ICC Statute explains:
"The words "universally recognized" should be understood as "widely
recognized," not within the meaning that all States have to recognize a
particular ground as impermissible. The first interpretation would be
most in accord with the overall purpose of the Rome Statute. Most of the
distinctions enumerated in both the Universal Declaration and the
ICCPR can be considered to fall within the scope of "other grounds that
are universally recognized as impermissible under international law."
Treaty law
- ICC Statute
Article 7 (2) (i): "Enforced disappearance of persons" means the arrest,
detention or abduction of persons by, or with the authorization, support
or acquiescence of, a State or a political organization, followed by a
refusal to acknowledge that deprivation of freedom or to give
information on the fate or whereabouts of those persons, with the
intention of removing them from the protection of the law for a
prolonged period of time.
Case law
- ICTR: No Judgements (The crime of humanity of "enforced
disappearance" is not explicitly mentioned in the ICTR Statute.
However, it cannot be excluded, that the Tribunal will consider this
crime as "other inhumane act" in terms of the Statute)
- ICTY: No Judgements (The crime of humanity of "enforced
disappearance" is not explicitly mentioned in the ICTY Statute.
However, it cannot be excluded, that the Tribunal will consider this
crime as "other inhumane act" in terms of the Statute)
Other Sources
- GA Assembly Declaration 47/133 on the Protection of all Persons
from Enforced Disappearances (18 December 1992):
Preamble:
Deeply concerned that in many countries, often in a persistent manner,
enforced disappearances occur in the sense that persons are arrested,
detained or abducted against their will or otherwise deprived of their
liberty by officials of different branches or levels of Government, or by
organized groups or private individuals acting on behalf of, or with the
support, direct or indirect, consent or acquiescence of the Government,
followed by a refusal to disclose the fate or whereabouts of the persons
concerned or a refusal to acknowledge the deprivation of their liberty,
which places such persons outside the protection of law.
Article 1:
1. Any act of enforced disappearance is an offence to human dignity. It
is condemned as a denial of the purposes of the Charter of the United
Nations and as a grave and flagrant violation of the human rights and
fundamental freedoms proclaimed in the Universal Declaration of
Human Rights and reaffirmed and developed in international
instruments in this field.
2. Any act of enforced disappearance places the persons subjected
thereto outside the protection of the law and inflicts severe suffering on
them and their families. It constitutes a violation of the rules of
international law guaranteeing, inter alia, the right to recognition as a
person before the law, the right to liberty and security of the person and
the right not to be subjected to torture and other cruel, inhuman or
degrading treatment or punishment. It also violates or constitutes a grave
threat to the right to life."
Treaty Law
- ICC Statute:
Article 7 (2) (h): "The crime of apartheid" means inhumane acts of a
character similar to those referred to in paragraph 1, committed in the
context of an institutionalized regime of systematic oppression and
domination by one racial group over any other racial group or groups
and committed with the intention of maintaining that regime.
- International Convention on the Suppression and Punishment of the
Crime of Apartheid (30 November 1973):
Article II: For the purpose of the present Convention, the term "the
crime of apartheid", which shall include similar policies and practices of
racial segregation and discrimination as practised in southern Africa,
shall apply to the following inhuman acts committed for the purpose of
establishing and maintaining domination by one racial group of persons
over any other racial group of persons and systematically oppressing
them:
(a) Denial to a member or members of a racial group or groups of the
right to life and liberty of person:
(i) By murder of members of a racial group or groups;
(ii) By the infliction upon the members of a racial group or groups of
serious bodily or mental harm, by the infringement of their freedom or
dignity, or by subjecting them to torture or to cruel, inhuman or
degrading treatment or punishment;
(iii) By arbitrary arrest and illegal imprisonment of the members of a
racial group or groups;
(b) Deliberate imposition on a racial group or groups of living conditions
calculated to cause its or their physical destruction in whole or in part;
(c) Any legislative measures and other measures calculated to prevent a
racial group or groups from participation in the political, social,
economic and cultural life of the country and the deliberate creation of
conditions preventing the full development of such a group or groups, in
particular by denying to members of a racial group or groups basic
human rights and freedoms, including the right to work, the right to form
recognized trade unions, the right to education, the right to leave and to
return to their country, the right to a nationality, the right to freedom of
movement and residence, the right to freedom of opinion and
expression, and the right to freedom of peaceful assembly and
association;
(d) Any measures, including legislative measures, designed to divide the
population along racial lines by the creation of separate reserves and
ghettos for the members of a racial group or groups, the prohibition of
mixed marriages among members of various racial groups, the
expropriation of landed property belonging to a racial group or groups or
to members thereof;
(e) Exploitation of the labour of the members of a racial group or
groups, in particular by submitting them to forced labour;
(f) Persecution of organizations and persons, by depriving them of
fundamental rights and freedoms, because they oppose apartheid.
Case law
- ICTR: No Judgements
- ICTY: No Judgements
Case law
- ICTR, Trial Chamber II, The Prosecutor v. Clément Kayishema and
Obed Ruzindana, ICTR-95-1-T, Judgement of 21 May 1999:
"149. Since the Nuremberg Charter, the category 'other inhumane acts'
has been maintained as a useful category for acts not specifically stated
but which are of comparable gravity. The importance in maintaining
such a category was elucidated by the ICRC when commenting on
inhumane treatment contained in Article 3 of the Geneva Conventions,
It is always dangerous to try to go into too much detail - especially in
this domain. However much care were taken in establishing a list of all
the various forms of infliction, one would never be able to catch up with
the imagination of future torturers who wished to satisfy their bestial
instincts; and the more specific and complete a list tries to be, the more
restrictive it becomes. The form of wording adopted is flexible and, at
the same time, precise.50
150. Other inhumane acts include those crimes against humanity that are
not otherwise specified in Article 3 of the Statute, but are of comparable
seriousness. The ICC Statute (Article 7(k)), provides greater detail than
the ICTR Statute to the meaning of other inhumane acts: "other
inhumane acts of a similar character intentionally causing great
suffering, or serious injury to body or to mental or physical health." The
ILC commenting on Article 18 of its Draft Code of Crimes states
The Commission recognized that it was impossible to establish an
exhaustive list of the inhumane acts which may constitute crimes against
humanity. First, this category of acts is intended to include only
additional acts that are similar in gravity to those listed in the preceding
subparagraphs. Second, the act must in fact cause injury to a human
being in terms of physical or mental integrity, health or human dignity.
151. The Chamber notes the International Law Commission's
commentary. In relation to the Statute, other inhumane acts include acts
that are of similar gravity and seriousness to the enumerated acts of
murder, extermination, enslavement, deportation, imprisonment, torture,
rape, or persecution on political, racial and religious grounds. These will
be acts or omissions that deliberately cause serious mental or physical
suffering or injury or constitute a serious attack on human dignity.
The Prosecution must prove a nexus between the inhumane act and
the great suffering or serious injury to mental or physical health of
the victim. The Chamber agrees with the Prosecution submission that
the acts that rise to the level of inhumane acts should be determined on a
case-by-case basis.51
____________________________________________
50 ICRC Commentary on the Geneva Conventions p. 54.
51 Prosecutor's Closing Brief, p. 37."
Comment
In contrast to the Statutes of the ICTY and ICTR, the ICC Statute limits
the scope of the crime of "other inhumane acts" to those acts by which
the perpetrator caused great suffering, or serious injury to body or to
mental or physical health. At first sight, one might argue that a violation
of human dignity does not fall within the ambit of this crime. However,
it cannot be excluded that also serious attacks on human dignity can be
interpreted as causing great suffering, or serious injury to body or to
mental or physical health.