Hostname: page-component-cd9895bd7-8ctnn Total loading time: 0 Render date: 2024-12-26T16:45:49.546Z Has data issue: false hasContentIssue false
  • English
  • Français

Push the Envelope – Watch It Bend: Removing the Policy Requirement and Extending Crimes against Humanity

Published online by Cambridge University Press:  22 November 2010

MATT HALLING
Get access Rights & Permissions [Opens in a new window]

Abstract

This article argues for amending the Rome Statute to remove the state or organizational policy requirement from the classification of crimes against humanity. After a brief look at the requirement itself, the article presents arguments to show how the policy loophole creates an accountability loophole in international criminal law, and how removing it both resolves inconsistencies in the Rome statute and facilitates prosecutions for international crimes. The article's final section examines and responds to leading arguments for keeping the policy requirement. The article is intended to show how the policy requirement limits international criminal law's scope in unwelcome ways and to challenge the use of state or organizational policy as a dividing line between domestic and international crimes.

Keywords

crimes against humanityInternational Criminal Courtinternational criminal lawpolicy requirementRome Statute
Type
HAGUE INTERNATIONAL TRIBUNALS: International Criminal Court and Tribunals The Policy Element of Crimes against Humanity
Information
Leiden Journal of International Law , Volume 23 , Issue 4 , December 2010 , pp. 827 - 845
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2010

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Simon Wiesenthal Center, ‘Quotes’, available at www.wiesenthal.com/site/pp.asp?c=lsKWLbPJLnF&b=4441355.

2 1998 Rome Statute of the International Criminal Court, 37 ILM 999 (hereinafter Rome Statute), Art. 7(1).

3 Ibid.

4 R. Cryer et al., An Introduction to International Criminal Law and Procedure (2007), 187.

5 Rome Statute, supra note 2, at Arts. 7(1), 30. When the enumerated acts in Art. 7 indicate no mens rea, then, per Art. 30, these crimes have the default mens rea of needing to be committed with intent and knowledge.

6 Ibid., Art. 7(2)(a) (emphasis added).

7 Prosecutor v. Katanga and Chui, Decision on the Confirmation of Charges, Case No. ICC-01/04–01/07–717, PTC I, 30 September 2008 (hereinafter Katanga Confirmation Decision), para. 396; see also Prosecutor v. Blaškić, Judgement, Case No. IT-95–14-T, T.Ch. 3 March 2000, at para. 204 (ICTY authority on this point).

8 Finalized Draft Text of the Elements of Crimes, UN Doc. PCNICC/2000/1/Add.2 (2000) (hereinafter Elements of Crimes), available at www.icccpi.int/library/about/officialjournal/Element_of_Crimes_English.pdf, Art. 7.

9 Ibid., Art. 7, n. 6. See also Ambos, K. and Wirth, S., ‘The Current Law of Crimes against Humanity – An Analysis of UNATAET Regulation 15/2000’, (2002) 13 Criminal Law Forum 1CrossRefGoogle Scholar, at 31–3 (the Elements of Crimes language precludes toleration from fulfilling policy).

10 Elements of Crimes, supra note 8, at Art. 7.

11 Prosecutor v. Bemba, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor against Jean-Pierre Bemba Gombo, Case No. ICC-01/05–01/08–424, PTC II, 15 June 2009 (hereinafter Bemba Confirmation Decision), at para. 88; Katanga Confirmation Decision, supra note 7, at para. 396.

12 Bemba Confirmation Decision, supra note 11, at para. 115.

13 Ibid.

14 Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, Case No. ICC-01/09–19-Corr, PTC II, 31 March 2010 (hereinafter Kenya Decision).

15 The factors are (i) whether the group is under a responsible command, or has an established hierarchy; (ii) whether the group possesses, in fact, the means to carry out a widespread or systematic attack against a civilian population; (iii) whether the group exercises control over part of the territory of a state; (iv) whether the group has criminal activities against the civilian population as a primary purpose; (v) whether the group articulates, explicitly or implicitly, an intention to attack a civilian population; and (vi) whether the group is part of a larger group, which fulfils some or all of the abovementioned criteria. Ibid., para. 93. But see ibid., para. 51 (Judge Kaul, dissenting) (arguing more narrowly that an organization should partake of some of the characteristics of a state).

16 2000 United Nations Convention against Transnational Organized Crime, UN Doc. A/Res/55/25/Annex (hereinafter Transnational Organized Crime Convention’), available at www.uncjin.org/Documents/Conventions/dcatoc/final_documents_2/convention_eng.pdf.

17 Ibid.

18 Prosecutor v. Kunarac, Judgement, Case No. IT-96–23, A.Ch., 12 June 2002, para. 98, n.114. The footnote reads,

There has been some debate in the jurisprudence of this Tribunal as to whether a policy or plan constitutes an element of the definition of crimes against humanity. The practice reviewed by the Appeals Chamber overwhelmingly supports the contention that no such requirement exists under customary international law. See, for instance, Article 6(c) of the Nuremberg Charter; Nuremberg Judgement, Trial of the Major War Criminals before the International Military Tribunal, Nüremberg, 14 November 1945 – 1 October 1945, in particular, pp 84, 254, 304 (Streicher) and 318–319 (von Schirach); Article II(1)(c) of Control Council Law No 10; In re Ahlbrecht, ILR 16/1949, 396; Ivan Timofeyevich Polyukhovich v The Commonwealth of Australia and Anor, (1991) 172 CLR 501; Case FC 91/026; Attorney-General v Adolph Eichmann, District Court of Jerusalem, Criminal Case No. 40/61; Mugesera et al. v Minister of Citizenship and Immigration, IMM-5946–98, 10 May 2001, Federal Court of Canada, Trial Division; In re Trajkovic, District Court of Gjilan (Kosovo, Federal Republic of Yugoslavia), P Nr 68/2000, 6 March 2001; Moreno v Canada (Minister of Employment and Immigration), Federal Court of Canada, Court of Appeal, ?1994g 1 F.C. 298, 14 September 1993; Sivakumar v Canada (Minister of Employment and Immigration), Federal Court of Canada, Court of Appeal, ?1994g 1 F.C. 433, 4 November 1993. See also Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), S/25704, 3 May 1993, paras 47–48; Yearbook of the International Law Commission (ILC), 1954, vol. II, 150; Report of the ILC on the work of its 43r session, 29 April – 19 July 1991, Supplement No 10 (UN Doc No A/46/10), 265–266; its 46th session, 2 May – 22 July 1994, Supplement No 10 (UN Doc No A/49/10), 75–76; its 47th session, 2 May – 21 July 1995, 47, 49 and 50; its 48th session, 6 May – 26 July 1996, Supplement No 10 (UN Doc No A/51/10), 93 and 95–96. The Appeals Chamber reached the same conclusion in relation to the crime of genocide (Jelisić Appeal Judgement, para 48). Some of the decisions which suggest that a plan or policy is required in law went, in that respect, clearly beyond the text of the statute to be applied (see e.g., Public Prosecutor v Menten, Supreme Court of the Netherlands, 13 January 1981, reprinted in 75 ILR 331, 362–363). Other references to a plan or policy which have sometimes been used to support this additional requirement in fact merely highlight the factual circumstances of the case at hand, rather than impose an independent constitutive element (see, e.g., Supreme Court of the British Zone, OGH br. Z., vol. I, 19). Finally, another decision, which has often been quoted in support of the plan or policy requirement, has been shown not to constitute an authoritative statement of customary international law (see In re Altstötter, ILR 14/1947, 278 and 284 and comment thereupon in Ivan Timofeyevich Polyukhovich v The Commonwealth of Australia and Anor, (1991) 172 CLR 501, pp 586–587).

19 Prosecutor v. Kunarac, supra note 18.

20 Prosecutor v. Semanza, Judgement, Case No. ICTR-97–20-A, A.Ch., 20 May 2005, at para. 269.

21 Report of the International Commission of Inquiry on Violations of International Humanitarian Law and Human Rights Law in Darfur, UN Doc. S/2005/60 (2005), para. 179.

22 G. Mettraux, ‘Crimes against Humanity in the Jurisprudence of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda’, (2002) 43 Harvard International Law Journal 237, at 271–83.

23 W. Schabas, ‘State Policy as an Element of International Crimes’, (2008) 98 Journal of Criminal Law & Criminology 953.

24 Ibid. at 953, 960–3.

25 Cryer et al., supra note 4, at 197.

26 D. Robinson, ‘Defining “Crimes against Humanity” at the Rome Conference’, (1999) 93 AJIL 43, at 47.

27 Ibid.

28 Report of the International Law Commission on the Work of Its Forty-Eighth Session, UN Doc. A/51/10 (1996) (hereinafter ILC 1996 Report), at 93.

29 Van Schaack, B., ‘The Definition of Crimes against Humanity: Resolving the Incoherence’, (1999) 37 Columbia Journal of Transnational Law 787, at 791Google Scholar. Genocide was not conceived of as an international crime until the 1948 Genocide Convention, which was two years after the Nuremberg International Military Tribunal.

30 Cryer et al., supra note 4, at 191–2. For more on the end of the war nexus requirement, see generally Van Schaack, supra note 29.

31 Cryer et al., supra note 4, at 192.

32 Schabas, supra note 23, at 960–2 (looking at Nuremberg precedents when analysing Kunarac's customary international law argument).

33 Ibid., at 960.

34 Ibid., at 982 (‘Indeed, the existence of a State policy may be the best criterion in distinguishing between individual crimes that belong to national justice systems, and international crimes’).

35 Rome Statute, supra note 2, preamble.

36 Ibid., Art. 17(1)(d).

37 Ibid., Art. 17. Art. 17 allows for the court to assess the gravity and complementarity grounds on their own initiative, but they may not rule over a third admissibility check constraining the Office of the Prosecutor: the Prosecutor additionally may decline jurisdiction over a case when doing so ‘is in the best interests of justice.’ Ibid., Art. 53.

38 R. Slye and B. Van Schaack, ‘The Internationalization of Crimes’, in Slye and Van Schaack (eds.), International Criminal Law: The Essentials (2008), 111.

39 Rome Statute, supra note 2, Art. 7(1)(d). This conduct may also fall within the persecution provision.

40 Ibid., Art. 7(1)(a).

41 Ibid., Art. 7(1)(b). This conduct may also fall within the extermination or other inhumane acts provisions.

42 Prosecutor v. Kayeshima, Judgement, Case No. ICTR-96–3-T, T.Ch., 12 May 1999, para. 123 (emphasis added).

43 Shortly after the Second World War, Jewish poet Abba Kovner led a plot with the aim of poisoning various urban water supplies in an effort to kill six million Germans, which would equal the number of Jews killed in the Holocaust. The plan was found out before most of the poison had been released, but had it succeeded it would have been both genocide and a crime against humanity. See generally T. Segev, The Seventh Million: The Israelis and the Holocaust (2000), 140–53.

44 Rome Statute, supra note 2, at Art. 8.

45 Elements of Crimes, supra note 8, at Art. 6.

46 Schabas, supra note 23, at 967 (the difference between manifest pattern and policy ‘would appear to be largely semantic’).

47 Prosecutor v. Jelisić, Judgement, Case No. IT-95–10-A, A.Ch., 5 July 2001, para. 48.

48 Prosecutor v. Jelisić, Judgement, Case No. IT-95–10-T, T. Ch., 14 December 1999, para. 100. Although they do not use the words ‘lone individual committing genocide’, the fact that the Jelisić Appeals Chamber clearly rejects a policy requirement for genocide is confirmation that they also agree that lone génocidaires are possible.

49 W. Schabas, ‘The Genocide Convention at 60’, Crimes of War Project, 6 February 2009, available at www.crimesofwar.org/onnews/news-schabas.html (‘Subject to some insignificant technical quibbles, the crime of genocide constitutes the most aggravated or extreme form of crimes against humanity’).

50 Rome Statute, supra note 2, at Art. 6.

51 Prosecutor v. Al Bashir, Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, Case No. ICC-02/05–01/09, PTC I, 4 March 2009 (hereinafter Bashir Arrest Warrant Decision), para. 144.

52 Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia & Herzegovina v. Serbia & Montenegro), Judgement of 26 February 2007, [2007] ICJ Rep. 70, para. 190.

53 Rome Statute, supra note 2, at Art. 6.

54 W. Schabas, ‘Darfur and the “Odious Scourge”: The Commission of Inquiry's Findings on Genocide’, (2005) 18 LJIL 871, at 877.

55 The Al Bashir PTC recognizes that a well-disguised genocidal intent should not be a barrier to prosecution, but it also acknowledges that the rarity of finding direct evidence of intent ‘renders the establishment of the dolus specialis of genocide particularly difficult’. Bashir Arrest Warrant Decision, supra note 51, at para. 27. The PTC dismissed genocide charges against Al Bashir on grounds of specific intent; the decision was reversed on appeal for applying an erroneous legal standard and was remanded for a new determination. See Prosecutor v. Al Bashir, Judgment on the appeal of the Prosecutor against the ‘Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir’, Case No. ICC-02/05–01/09–73, A.Ch., 3 February 2010.

56 Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94–1-AR72, A.Ch., 2 October 1995, at para. 91 (discussing the scope of Common Art. 3 in relation to ICTY jurisdiction).

57 K. J. Heller, ‘The Rome Statute in Comparative Perspective’, in K. J. Heller and M. D. Dubber (eds.), The Stanford Handbook of Comparative Criminal Law (2009), 45.

58 Ambos and Wirth, supra note 9, at 33.

59 Robinson, supra note 26, at 51.

60 Katanga Confirmation Decision, supra note 7, at para. 396.

61 Ibid.

62 Cryer et al., supra note 4, at 195, n. 41.

63 Bemba Confirmation Decision, supra note 11, at para. 115.

64 Elements of Crimes, supra note 8, at Art. 6.

65 Schabas, supra note 23, at 966–7 (presenting arguments as to why the conclusions in Jelisić on non-policy genocide do not accurately reflect opinio juris).

66 Report of the Ad Hoc Committee on Genocide, UN Doc. E/AC.25/SR.4 (1948), 3–6 (fourth meeting).

67 Ibid., at 6.

68 Ibid., at 4.

69 ILC 1996 Report, supra note 28, at 89.

70 Ibid. at 95.

71 Report of the International Law Commission on the Work of Its Forty-Seventh Session, UN Doc. A/50/10 (1995) (hereinafter ILC 1995 Report), 66 (making the decision to exclude terrorism and five other crimes).

72 P. Robinson, ‘The Missing Crimes’, in A. Cassese et al. (eds.), The Rome Statute of the International Criminal Court: A Commentary (2002), 497–525 (explaining the history behind crimes that were considered, but not included, in the Rome Statute).

73 M. Di Filippo, ‘Terrorist Crimes and International Co-operation: Critical Remarks on the Definition and Inclusion of Terrorism in the Category of International Crimes’, (2008) 19 EJIL 533, at 566.

74 Robinson, supra note 72, at 517.

75 A list of nine terrorism conventions in existence before the Rome Conference is included in the annex of the 2000 International Convention for the Suppression of the Financing of Terrorism, UN Doc. A/54/109.

76 Ibid.

77 W. Schabas, Introduction to the International Criminal Court (2007), 181–2 (inferring this requirement from ICC PTC jurisprudence); see also Prosecutor v. Lubanga, Decision on the Prosecutor's Application for a Warrant of Arrest, Case No. ICC-01/04–01/06–8-Corr 17–03-2006, PTC I, 10 February 2006 (hereinafter Lubanga Arrest Warrant Decision), paras. 31–40 (national proceedings must encompass both the person and the conduct which is the subject of the case before the Court to be inadmissible). The Court has not made it clear if a legitimate terrorism prosecution is prosecuting the same conduct as crimes against humanity for complementarity purposes.

78 See K. J. Heller, ‘The Shadow Side of Complementarity: The Effect of Article 17 of the Rome Statute on National Due Process’, (2006) 3 Criminal Law Forum 255 (arguing that complementarity makes it broadly permissible and easier for states to convict criminals, even to the point of eroding due process guarantees).

79 Several countries that have abolished the policy requirement are listed in the Kunarac footnote. See text accompanying note 18supra. But see Schabas, supra note 23, at 963 (explaining that, because they had been overruled on this point by the country's Supreme Court, the Canadian precedents were erroneously included). The United States does not have a criminal crimes against humanity statute on point, and relevant civil cases under the Alien Tort Statute (ATS) give little guidance as to whether policy must be demonstrated when alleging crimes against humanity in the ATS context. See Cabello v. Larios, 402 F.3d 1148, 1161 (11th Cir., 2005) (policy not addressed when declaring how crimes against humanity involve proving a widespread or systematic attack directed against any civilian population.); Wiwa v. Royal Dutch Petroleum Co., 2002 WL 319887, 9–10 (SDNY, 2002) (purporting to follow Rome Statute Art. 7, but ignores the policy requirement and defines crimes against humanity only as widespread or systematic attacks against a civilian population).

80 Schabas, supra note 23, at 982.

81 Prosecutor v. Katanga and Chui, Judgement on the Appeal of Mr Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case, Case No. ICC-01/04–01/07–1497, A.Ch., 25 September 2009, paras. 80–83.

82 Goldsmith, J., ‘The Self-Defeating International Criminal Court’, (2003) 70 University of Chicago Law Review 89, at 101CrossRefGoogle Scholar.

83 Schabas, supra note 23, at 960.

84 Prosecutor v. Akayesu, Judgement, Case No. ICTR-96–4-T, T.Ch., 2 September 1998, at para. 580.

85 Prosecutor v. Blaškić, supra note 7, at para. 206.

86 Prosecutor v. Abu Garda, Decision on the Confirmation of Charges, ICC-02/05–02/09–243-Red, PTC I, 8 February 2010 (hereinafter Abu Garda Confirmation Decision), at para. 31.

87 Situation in the Democratic Republic of the Congo, Judgment on the Prosecutor's appeal against the decision of Pre-Trial Chamber I entitled ‘Decision on the Prosecutor's Application for Warrants of Arrest, Article 58’, Case No. ICC-01/04–169, A.Ch., 3 July 2006, at paras. 68–82 (reversing a gravity test advanced by the PTC in the Lubanga Arrest Warrant Decision). The author takes no position as to whether the new gravity test from the Abu Garda Confirmation Decision would satisfy the Appeals Chamber; it is only considered in this article because it is the only gravity test that has, at present, not been overruled by the jurisprudence.

88 Katanga Confirmation Decision, supra note 7, at para. 396.

89 Chesterman, S., ‘An Altogether Different Order: Defining the Elements of Crimes against Humanity’, (2000) 10 Duke Journal of Comparative & International Law 307, at 316Google Scholar.

90 Rome Statute, supra note 2, Art. 1.

91 2002 Statute of the Special Court for Sierra Leone, 2178 UNTS 138.

92 Rome Statute, supra note 2, at Art. 11(1).

93 Chesterman, supra note 89, at 342.

94 Rome Statute, supra note 2. The court's jurisdiction can be triggered by referral from a state party (Art. 14), referral from the Security Council (Art. 13(b)), or on the initiative of the Office of the Prosecutor (Art. 15). Normally the court only has territorial jurisdiction over states parties, but territorial jurisdiction may also be conferred by Security Council referrals or by non-parties on an ad hoc basis (Art. 12(3)).

95 Ibid., Art. 12(2)(a).

96 Para. 6 of UN Security Council Resolution 1593 states that referrals exclude members of non-State parties for ‘alleged acts or omissions arising out of or relating to operations in Sudan’. UN SC Res. 1593, UN Doc. S/Res/1593 (2005), at para. 6. Regardless of whether para. 6 is legal under the UN Charter or a jus cogens legal obligation, the Prosecutor has made it clear in other contexts that exceptions to personal jurisdiction will not be effective. Situation in Uganda, Decision to Convene a Status Conference on the Investigation in the Situation in Uganda in Relation to the Application of Article 53, Case No. ICC-02/04–01/05–68, PTC II, 2 December 2005, paras. 3–4. See also Schabas, supra note 77, at 157 (Whatever the legality of para. 6 of Resolution 1593, it is ‘most certainly incompatible with the Rome Statute’.)

97 Report of the Secretary-General on the Establishment of a Special Tribunal for Lebanon – Attachment – Statute for the Special Tribunal for Lebanon, UN Doc. S/2006/893 (2006), Art. 1.

98 The parties to the STL may change the end date with Security Council approval. Ibid.

99 Report of the Secretary-General on the Establishment of a Special Tribunal for Lebanon, UN Doc. S/2006/893 (2006), para. 24. The relevant paragraph reads as follows: 24. Mindful of the differences in scope and number of victims between the series of terrorist attacks committed in Lebanon and the killings and executions perpetrated on a large and massive scale in other parts of the world subject to the jurisdiction of any of the existing international criminal jurisdictions, it was nevertheless considered that the 14 attacks committed in Lebanon could meet the prima facie definition of the crime, as developed in the jurisprudence of international criminal tribunals. The attacks that occurred in Lebanon since 1 October 2004 could reveal a ‘pattern’ or ‘methodical plan’ of attacks against a civilian population, albeit not in its entirety. They could be ‘collective’ in nature, or ‘a multiple commission of acts’ and, as such, exclude a single, isolated or random conduct of an individual acting alone. For the crime of murder, as part of a systematic attack against a civilian population, to qualify as a ‘crime against humanity’, its massive scale is not an indispensable element.

100 Ibid., para. 25; see also Report of the Secretary-General on the Establishment of a Special Tribunal for Lebanon: Addendum, UN Doc. S/2006/893/Add.1 (2006) (statement by Nicolas Michel confirming the exclusion of crimes against humanity from the STL).

101 Slye and Van Schaack, supra note 38, at 108.

102 See generally Van Schaack, supra note 29. See also Kenya Decision, supra note 14, paras. 8–9 (Judge Kaul, dissenting) (emphasizing the importance of the distinction between international and national crimes).

103 Van Schaak, supra note 29, at 819 (certain inhumane acts that defined the Nazi era could never be ‘shoehorned’ into crimes against the peace or traditional notions of war crimes).

104 M. Cherif Bassiouni, Crimes against Humanity in International Criminal Law (1992), 186.

105 Rome Statute, supra note 2, at Art. 121.

106 Ibid.