Crimes Against Humanity in the Modern Age

Leila Nadya Sadat

doi:10.5305/amerjintelaw.107.2.0334

Crimes Against Humanity in the Modern Age

Published online by Cambridge University Press: 20 January 2017

Leila Nadya Sadat

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Leila Nadya Sadat*: Affiliation:
Whitney R. Harris World Law Institute, Washington University School of Law

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Despite the promises made after World War II to eliminate the commission of atrocities, crimes against humanity persist with horrifying ubiquity. Yet the absence of a consistent definition and uniform interpretation of crimes against humanity has made it difficult to establish the theory underlying such crimes and to prosecute them in particular cases. In the 1990s, several ad hoc international criminal tribunals were established to respond to the commission of atrocity crimes,1 including crimes against humanity, in specific regions of the world in conflict. Building on this legacy, in 1998 a new institution—the International Criminal Court(ICC)— was established to take up the task of defining crimes against humanity and other atrocity crimes and preventing and punishing their commission.

Type: Research Article
Information: American Journal of International Law , Volume 107 , Issue 2 , April 2013 , pp. 334 - 377

DOI: https://doi.org/10.5305/amerjintelaw.107.2.0334 [Opens in a new window]
Copyright: Copyright © American Society of International Law 2013

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Footnotes

This article was written prior to the author’s appointment as Special Adviser on Crimes Against Humanity to the International Criminal Court Prosecutor. It expresses the author’s personal views, not the views of any organ of the ICC. Thanks to Diane Amann, Elena Baylis, Olivier Cahn, Richard Goldstone, Monica Hakimi, Charles Jalloh, H.E. Hans-Peter Kaul, Claus Kress, Máximo Langer, Martha Minow, Saira Mohamed, Laura Rosenbury, William Schabas, Timothy Waters, and Alex Whiting for helpful comments on earlier drafts, and to the participants in the Washington University Law Roundtable on International Law and Theory and the Harvard Law School Project on the First ICC Prosecutor. I would also like to thank the University of Cergy-Pontoise, the U.S. Fulbright Commission, and the French Commission Franco-Américaine for supporting this work, much of which was done during my tenure as the Alexis de Tocqueville Distinguished Fulbright Chair in Spring 2011 and involved lengthy and illuminating conversations with my French colleagues. Eileen Boyle, Samuel Chaffin, John Grothaus, Marie Hastreiter, Yordanka Nedyalkova, and Michelle Penn provided excellent research assistance and Shishir Jani did a particularly fine job on data collection, analysis, and presentation.

References

¹ Scheffer, David, Genocide and Atrocity Crimes, in 1 Genocide Studies and Prevention 229, 238–39 (2006)CrossRef Google Scholar. This article uses David Scheffer’s helpful terminology of atrocity crime as applying to crimes against humanity, war crimes, and genocide.

² The recent ICC intervention in Libya is a case in point. As the humanitarian situation began to deteriorate, the Security Council on February 26, 2011, quickly and decisively referred the situation to the ICC for investigation. SC Res. 1970 (Feb. 26, 2011).At that time no armed conflict was taking place, but the assertion was that the Gaddafi regime was committing human rights abuses sufficiently widespread or systematic to constitute crimes against humanity under the ICC Statute. Id. Resolution 1970 was followed by Security Council Resolution 1973 authorizing the use of force. SC Res. 1973 (Mar. 17, 2011). On June 27, 2011, Pre-trial Chamber I issued arrest warrants against Libyan leader Muammar Gaddafi, his son Saif Al Islam Gaddafi, and Libyan head of intelligence Abdullah Al Sanousi, alleging they had committed crimes against humanity. No war crimes were charged. Situation in the Libyan Arab Jamahiriya, Case No. ICC-01/11, Warrants of Arrest (June 27, 2011). ICC materials, including information on its situations and cases, are available online at the Court’s website, http://www.icc-cpi.int.

³ Article 7(2)(a) provides: “‘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[.]” Rome Statute of the International Criminal Court, July 17, 1998, 2187 UNTS 90 [hereinafter Rome Statute].

⁴ Rome Statute, supra note 3, Art. 22(2).

⁵ See infra notes 202–215 and accompanying text.

⁶ See, e.g., Kress, Claus, On the Outer Limits of Crimes Against Humanity: The Concept of Organization Within the Policy Requirement: Some Reflections on the March 2010 ICC Kenya Decision, 23 Leiden J. Int’l L. 855 (2010)CrossRef Google Scholar; Jalloh, Charles C., Situation in the Republic of Kenya, 105 AJIL 540 (2011)CrossRef Google Scholar; Schabas, William A., Prosecuting Dr. Strangelove, Goldfinger, and the Joker at the International Criminal Court: Closing the Loopholes, 23 Leiden J. Int’l L. 847 (2010)CrossRef Google Scholar. But see Darryl Robinson, Essence of Crimes Against Humanity Raised by Challenges at ICC, EJIL: TALK!, Sept. 27, 2011,at http://www.ejiltalk.org/essence-of-crimes-against-humanity-raised-by-challenges-at-icc/#more-3782.

⁷ Schabas, supra note 6, at 852.

⁸ Kress, supra note 6, at 862.

⁹ see Situation in the Republic of Kenya, Case No. ICC-01/09, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya [hereinafter Article 15 Decision], Diss. Op. Kaul, J., para. 18 (Mar. 31, 2010) [hereinafter Kaul Kenya Dissent].

¹⁰ Id., para. 46.

¹¹ I thank Charles Jalloh for this insight about the potential Eurocentrism of Kaul’s position. Also helpful in this context is David Luban’s suggestion that crimes against humanity occur in environments of “politics gone cancerous.” If so, then the post-election violence in Kenya that led to ICC intervention appears to fit closely in the post Nuremberg conceptualization of crimes against humanity as not necessarily resulting from the organized policies that Kaul envisions. see Luban, David, A Theory of Crimes Against Humanity, 29 Yale J. Int’l. L. 85 (2004)Google Scholar.

¹² The prosecutorial limitation implicit in Judge Kaul’s dissent brings to mind the way in which genocide prosecutions were limited at the International Criminal Tribunal for the Former Yugoslavia (ICTY), see infra notes 39–42 and accompanying text.

¹³ Because the quantitative analysis is insufficient to a full understanding, a qualitative narrative is included in part III.

¹⁴ Data was collected for the Extraordinary Chambersin the Courts of Cambodia (ECCC) and the Special Panels in East Timor (Special Panels), but not included in this article because of a paucity of cases at the ECCC (for the moment) and difficulties of comparison for the work of the Special Panels. The data from the ECCC and Special Panels support the findings of this article.

¹⁵ Rome Statute, supra note 3, pmbl., para. 2.

¹⁶ References to crimes against humanity are present in nineteenth century French writings, see, e.g., Alexis De Tocqueville, 1 De La Démocratie en Amérique 478 (Flammarion 1981) (1835) (suggesting slavery violated the “laws of humanity”); and the concept of crimes against humanity is also reflected in the Martens Clause (named after Russian delegate Fyodor Martens) in the preambles of the 1899 and 1907 Hague Conventions: “[I]n cases not included in the Regulations adopted by [the High Contracting Parties], populations and belligerents remain under the protection and empire of the principles of international law, as they result from... the laws of humanity.” Convention (IV) respecting the Laws and Customs of War on Land, and its annex: Regulations concerning the Laws and Customs of War on Land, Preamble, opened for signature Oct. 18, 1907, 36 Stat. 2277, 2280, reprinted in 2 AJIL Supp. 90, 92 (1908). References to crimes against humanity emerged in the twentieth century as a weak condemnation of the 1919 massacres of Armenians. See also M. Cherif Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application 86–111 (2011). The 1919 Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, established at the Paris Preliminary Peace Conference, also frequently cited violations of the “laws of humanity,” “dictates of humanity,” and “principles of humanity” as giving rise to criminal liability for the instigators of World War I. Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, Report Presented to the Preliminary Peace Conference, 32 Pamphlet Series of the Carnegie Endowment for International Peace 4 (1919), as reprinted in 14 AJIL 95 (1920). At Nuremberg they were defined in Article 6(c) of the London Charter. Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, Art. 6(c), Aug. 8, 1945, 82 UNTS 279.

¹⁷ See, e.g., Bassiouni, M. Cherif, “Crimes Against Humanity”: The Need for a Specialized Convention, 31 Colum. J. Transnat’l L. 457 (1994)Google Scholar.

¹⁸ The Crimes Against Humanity Initiative is an ongoing project of the Whitney R. Harris World Law Institute involving the study of crimes against humanity, the drafting and elaboration of a proposed convention on crimes against humanity, and support for efforts to adopt it. The effort is guided by an international steering committee and supported by an international advisory council. see Whitney R. Harris World Law Institute, Crimes Against Humanity Initiative, at http://crimesagainsthumanity.wustl.edu.

¹⁹ Forging a Convention for Crimes Against Humanity(Leila Nadya Sadat ed.,2011).The proposed convention was published in French and English in August 2010. Spanish, Arabic, and Russian translations are also available at http://law.wustl.edu/harris/crimesagainsthumanity.

²⁰ See, e.g., The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and Post-Conflict Justice (M. Cherif Bassiouni ed., 2010); Javier Solana, A Secure Europe in a Better World: European Security Strategy, at 5 (2003), at http://www.iss.europa.eu/uploads/media/solanae.pdf (European Council report stating that “[s]ince 1990, almost 4 million people have died in wars, 90% of them civilians”); see also David E. Hogan & Jonathan L. Burstein, Disaster Medicine 322 (2007).

²¹ see Prosecutor v. Kaing, Case No. 001/18-07-2007/ECCC/TC (July 26, 2010) (convicting Duch of, among other offenses, crimes against humanity for persecution on political grounds); see also Orentlicher, Diane F., International Criminal Law and the Cambodian Killing Fields, 3 ILSA J. Int’l & Comp. L. 705 (1996–97)Google Scholar.

²² see Prosecutor v. Brdanin, Case No. IT-99-36-A (Apr. 3, 2007); Prosecutor v. Simić, Case No. IT-95-9A (Nov. 28, 2006); Paust, Jordan J., Applicability of International Criminal Law to Events in the Former Yugoslavia, 9 Am. U. J. Int’l L. & Pol’y 499 (1993–1994)Google Scholar. The decisions and other materials concerning the ICTY are available on the Tribunal’s website, http://www.icty.org.

²³ see Prosecutor v. Sesay (RUF case), Case No. SCSL-04-15-A (Oct. 26, 2009); Prosecutor v. Brima (AFRC case), Case No. SCSL-04-16-A (Feb. 22, 2008).

²⁴ Prosecutor v. Katanga, Case No. ICC-01/04-01/07, Confirmation of the Charges (Sept. 30, 2008) (charging defendants with, among other offenses, murder, rape, and sexual slavery as crimes against humanity).

²⁵ Prosecutor v. Kony, Case No. ICC-02/04-01/05, Warrant of Arrest (Sept. 27, 2005).

²⁶ See, e.g., Sikkink, Kathryn, From Pariah State to Global Protagonist: Argentina and the Struggle for International Human Rights, 50 Latin Am. Pol. & Soc’y 1, 1–29 (2008)CrossRef Google Scholar (regarding forced disappearances in Argentina); Lutz, Ellen L. & Sikkink, Kathryn, International Human Rights Law and Practice in Latin America, 54 Int’l Org. 3, 633–59 (2000)Google Scholar.

²⁷ See, e.g., Report of the United Nations Fact-Finding Mission on the Gaza Conflict, UN Doc. A/HRC/12/48 (Sept. 15, 2009); Report of the High Commissioner for Human Rights on the Occupied Palestinian Territories, UN Doc. A/HRC/13/54 (Mar. 15,2010), Gunning, Jeroen,Peace with Hamas? The Transforming Potential of Political Participation, 80 Int’l Aff. 2,233–55 (2004)Google Scholar.But see Israel Ministry of Foreign Affairs,The Operation in Gaza, 27 December 2008–18 January 2009: Factual and Legal Aspects (July 29, 2009), at http://www.mfa.gov.il/NR/rdonlyres/E89E699D-A435-491B-B2D0-017675DAFEF7/0/GazaOperationwLinks.pdf (contradicting the findings of the UN fact-finding mission). For a description of the controversy over the UN Report, see Rosen, Richard, Goldstone Reconsidered, 21 J. Transnat’l L. & Pol’y. 35 (2011)Google Scholar.

²⁸ Gibson, James L., The Contributions of Truth to Reconciliation: Lessons from South Africa, 50 J. Conflict Resol. 3, 409–32 (2006)CrossRef Google Scholar.

²⁹ Report of the International Commission of Inquiry on East Timor to the Secretary-General, UN Doc. A/54/726-S/2000/59 (2000).

³⁰ See, e.g., Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General Pursuant to Security Council Resolution 1564 of 18 September 2004, UN Doc. S/2005/60 (2005); Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/S-17/2/Add.1(2011);Report of the International Commission of Inquiry on Libya (Advance Unedited Version), UN Doc.A/HRC/19/68 (2012).

³¹ See, e.g., Downes, Alexander B., Restraint or Propellant? Democracy and Civilian Fatalities in Interstate Wars, 51 J. Conflict Resol. 872, 873 (2007)CrossRef Google Scholar.

³² See, e.g., Charlotte Lindsey, International Committee of the Red Cross, Women Facing War 52 (2001), available at http://www.icrc.org/eng/assets/files/other/icrc_002_0798_women_facing_war.pdf.

³³ Testimony of Kristin Kalla, Chief Programme Officer, ICC Trust Fund for Victims, to the ICC Assembly of States Parties (Dec. 8, 2010) (on file with author).

³⁴ See, e.g., Wessells, Michael G., Review: Children, Armed Conflict, and Peace, 35 J. Peace Res. 635, 639 (1998)CrossRef Google Scholar.

³⁵ Seymour, James D., Indices of Political Imprisonment, 1 Universal Hum. Rts. 99, 101 (1979)CrossRef Google Scholar; see generally Mitchell, Neil J. & McCormick, James M., Economic and Political Explanations of Human Rights Violations, 4 World Pol. 476 (1988)CrossRef Google Scholar; see Amnesty International, Amnesty International Report 2011: The State of the World’s Human Rights, 2011 (reporting on political dissidents).

³⁶ See, e.g., Prosecutorv. Lukić, Case No. IT-98-32/1-T (July 20, 2009),aff’d. Appeals Chamber (Dec.4, 2012). For a moving and comprehensive survey of modern atrocity crimes, see David Scheffer, All the Missing Souls (2012) (discussing the author’s service as the first U.S. ambassador for war crimes issues).

³⁷ Antonio Cassese, Claus Kress, and William Schabas are often cited in this regard.See, e.g., Gregory H.Stanton, Why the World Needs an International Convention on Crimes Against Humanity, in Forging a Convention,supra note 19, at 345, 353; Antonio Cassese, Is Genocidal Policy a Requirement for the Crime of Genocide, in The Un Genocide Convention: A Commentary 128, 130 n.4 (Paola Gaeta ed., 2009) (noting that Gil, Greenawalt, Kress, Schabas, and Vest support including an element of policy in the definition of the crime of genocide).

³⁸ See, e.g., Prosecutor v. Jelisić, Case No. IT-95-10-A, para. 45 (July 5, 2001) (requiring specific intent for geno cide).

³⁹ Although the General Assembly characterized ethnic cleansing in Bosnia and Herzegovina as genocide, GA Res. 47/121, pmbl., para. 10 (Dec. 18, 1992) (“concerned about [actions].... in pursuit of the abhorrent policy of ‘ethnic cleansing’, which is a form of genocide”), and the European Court of Human Rights found in Jorgic v. Germany, 2007-III Eur. Ct. H.R. 1, para. 108, that “the applicant’s acts, which he committed in the course of the ethnic cleansing.... could reasonably be regarded as falling within the ambit of the offence of genocide,” the ICTY and the International Court of Justice (ICJ) have declined to find that ethnic cleansing is a form of genocide. See, e.g., Prosecutor v. Krstić, Case No. IT-98-33-T, para. 580 (Aug.2, 2001) (“The Trial Chamber is aware that it must interpret the Convention with due regard for the principle of nullum crimen sine lege. It therefore recognises that, despite recent developments, customary international law limits the definition of genocide to those acts seeking the physical or biological destruction of all or part of the group.”); see also infra note 42.

⁴⁰ See, e.g., Prosecutor v. Krstić, Case No. IT-98-33-A (Apr. 19, 2004); Prosecutor v. Popović, Case No. IT-05-88 (June 10, 2010).

⁴¹ See, e.g., Prosecutor v. Karadžić, Case. No. IT-95-5/18-1, 98 bis Oral Decision (June 28, 2012), reported in ICTY Press Release, Tribunal Dismisses Karadžić Motion for Acquittal on 10 of 11 Counts of the Indictment(June 28, 2012) (entering an oral acquittal on Count 1 of the indictment charging genocide at the close of the prosecution’s case, noting that although it heard evidence of culpable acts systematically directed against Bosnian Muslims or Bosnian Croats in the municipalities and of repetition of discriminatory acts and derogatory language, the nature, scale, and context of these culpable acts did not reach the level from which a reasonable trier of fact could infer that they were committed with genocidal intent).

⁴² Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.), 2007 ICJ Rep. 43 (Feb. 27). For a critique of the Court’s jurisprudence, see Antonio Cassese, A Judicial Massacre, Guardian, Feb. 27, 2007, at http://www.guardian.co.uk/commentisfree/2007/feb/27/thejudicialmassacreofsrebr. For a discussion of the interpretation of the Convention on the Prevention and Punishment of the Crime of Genocide, Dec.9,1948,78 UNTS 277, see, for example, Robert Cryer, Håkan Friman, Darryl Robinson & Elizabeth Wilmshurst, International Criminal Law and Procedure 169–73 (2007); see also Stanton, supra note 37, at 352 (“the framers bound the definition of genocide... so that proving genocide becomes difficult after the fact and nearly impossible while genocide is being committed”); Gareth Evans, Crimes Against Humanity and the Responsibility to Protect, in Forging A Convention, supra note 19, at 3 (characterizing attempts to expand the definition of genocide as “a lost cause”).

⁴³ Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal, GA Res. 95(1) (Dec. 11, 1946); J. Spiropoulos (Special Rapporteur), Formulation of Nürnberg Principles, UN Doc.A/CN.4/22 (Apr. 12, 1950), reprinted in 1950-II Y.B. Int’l L. Comm’n 181, available at http://untreaty.un.org/ilc/documentation/english/a_cn4_22.pdf.

⁴⁴ See supra notes 17–19 and accompanying text.

⁴⁵ International Military Tribunal (Nuremberg), Judgment and Sentences, 41 AJIL 172 (1947); see also Wexler, Leila Sadat, The Interpretation of the Nuremberg Principles by the French Court of Cassation: From Touvier to Barbie and Back Again, 32 Colum. J. Transnat’l L. 289, 303–11 (1994)Google Scholar.

⁴⁶ Report of the International Law Commission on the Work of Its Forty-Eighth Session, UN Doc. A/CN.4/SER.A/1996/Add.1 (Part 2), reprinted in 1996-II Y.B. Int’l L. Comm’n 17, 45, available at http://untreaty.un.org/ilc/publications/yearbooks/Ybkvolumes(e)/ILC_1996_v2_p2_e.pdf [hereinafter 1996 Draft Code of Crimes]; see Bassiouni, supra note 16, at 171–83 (describing the ILC’s efforts); Roger S. Clark, History of Efforts to Codify Crimes Against Humanity: From the Charter of Nuremberg to the Statute of Rome, in Forging a Convention, supra note 19, at 8.

⁴⁷ Canada adopted the Crimes Against Humanity and War Crimes Act, 2000, ch. 24, to implement the ICC Statute, but cases were brought prior to 1998 under earlier legislation. See, e.g., R v. Finta, [1994] 1 S.C.R. 701; Mugesera v. Canada, [2005] 2 S.C.R. 100. Crimes against humanity were incorporated in Israel through the Nazis and Nazi Collaborators (Punishment) Law of 1950. See, e.g., Att’y Gen. of Israel v. Eichmann, 36 ILR 5 (Dist. Ct. Jerusalem 1961), aff. 36 ILR 277 (Isr. Sup. Ct. 1962); Att. Gen. of Israel v. Demjanjuk, Trial Judgment, (Isr. Dist. Ct. Jerusalem Apr. 18, 1988); Appeals Judgment, (Isr. Sup. Ct. July 29, 1993) Demjanjuk v. State of Israel, Isr. SC 221 (1993). Before March 1, 1994, crimes against humanity were incorporated in France’s legal system through the French law of Dec. 26, 1964, by reference to the Nuremberg Principles. See, e.g., Public Prosecutor v. Barbie, Trial Judgment, Cour d’assises du Rhône (July 4, 1987) (Fr.); see also Leila Sadat, Nadya, The Nuremberg Paradox, 58 Am. J. Comp. L. 151 (2010)CrossRef Google Scholar. France amended its legislation after ratification of the ICC Statute.

⁴⁸ Statute of the International Criminal Tribunal for the Former Yugoslavia, Art. 5, SC Res. 827, annex (May 25, 1993) [hereinafter ICTY Statute]; International Criminal Tribunal for Rwanda, Art. 3, SC Res. 955, annex (Nov. 6, 1994) [hereinafter ICTR Statute]; Statute of the Special Court for Sierra Leone, Art. 2, see SC Res. 1315 (Aug. 14, 2000) [hereinafter SCSL Statute]; UN Transitional Administration in East Timor, On the Organization of Courts in East Timor, sec. 9, UN Doc. UNTAET/REG/2001/25, Annex I (Sept. 14, 2001) [hereinafter East Timor Statute]; Agreement Between the United Nations and the Royal Government of Cambodia Concerning the Prosecution Under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, Art. 9 (June 6, 2003), see GA Res. 57/228 (Dec. 18, 2002) [hereinafter ECCC Statute].

⁴⁹ Göran Sluiter, “Chapeau Elements” of Crimes Against Humanity in the Jurisprudence of the UN Ad Hoc Tribunals, in Forging a Convention, supra note 19, at 103.

⁵⁰ William A. Schabas, The Un International Criminal Tribunals 185–86 (2006). This is an over statement—charges of war crimes are more useful than charges of crimes against humanity in certain types of atrocity crime situations— but contains an important grain of truth.

⁵¹ The figure of 161 indicted persons is derived from the figure son the ICTY website. In the case of theHaradinaj matter, which involved two trials of three defendants, it reconciles the data from both trials.

⁵² ICTY Statute, supra note 48, Art. 5.

⁵³ War crimes, as stated in the text, include charges under Article 2 (“Grave breaches of the Geneva Conventions of 1949”) and Article 3 (“Violations of the laws or customs of war”) of the ICTY Statute.

⁵⁴ Of the 939 counts of war crimes, 208 counts (representing 22 percent of the total) stemmed from only four cases: eighty-nine counts in the Delalić case Ćelebići Camp”), fifty-seven in the quashed Haradinaj I case, forty in the triple indictment against former Federal Republic of Yugoslavia president Slobodan Milosevic, and twenty-two in the Tadić case. The Milošević indictment contained the highest number of crimes against humanity charges (twenty-four); Brahimaj, Balaj, and Haradinaj were indicted with the second most (eighteen each); and Goran Jelisić was indicted with the third most (fifteen). Twenty-seven accused— or more than 16 percent of all indictees— were charged solely with war crimes (accounting for 209 counts); two defendants (Milan Kovačvić and Simo Drljaća) were charged solely with genocide; and three defendants (Dragan Nikolić, Dragan Papić, and Miroslav Deronjić) were charged solely with crimes against humanity (accounting for six counts).

⁵⁵ Indictment data is from operative (or last amended) indictment, compiled as of February 2013.

⁵⁶ Genocide includes genocide-related offenses under Article 4 of the ICTY Statute, that is, complicity in genocide and conspiracy to commit genocide.

⁵⁷ Of the forty-seven sentenced persons, six were sentenced by the trial chamber without appeal, and the remaining forty-one were sentenced on appeal by the appeals chamber.

⁵⁸ Eleven of the twenty withdrawn indictments are from one case (Mejakić).

⁵⁹ Seven cases are at trial: Jadranko Prlić et al., Vojislav Šešelj, Jovica Stanišić and Franko Simatović, Mićo Stanišić and Stojan Župljanin, Radovan Karadžić, Goran Hadžić, and Ratko Mladić.

⁶⁰ The proportion of crimes against humanity, genocide, and war crimes counts among indictments for which proceedings have concluded are only slightly different than the proportion of each of those counts among all 161 indictments. For all proceedings, crimes against humanity charges represent 40.6 percent of charges in the indictments, genocide represents 2.4 percent of charges, and war crimes represent 57 percent. Fourteen defendants are currently appealing the judgment or sentence entered against them; their convictions will not become final until the appeals chamber renders its judgment.

⁶¹ Meron, Theodor, War Crimes in Yugoslavia and the Development of International Law, 88 AJIL 78, 81–82 (1994)CrossRef Google Scholar.

⁶² Brđanin, supra note 22; Prosecutor v. Jokić, Case No. IT-01-42/1-A (Aug. 30, 2005).

⁶³ Prosecutor v. Kvocka, Case No. IT-98-30/1-T (Nov. 2, 2001).

⁶⁴ See, e.g., Prosecutor v. Galić, Case No. IT-98-29-I (Mar. 26, 1999). It might be possible that the war crimes counts are higher because of the presence of two articles in the ICTY Statute on war crimes versus only one article on crimes against humanity. However, because the same charging patterns appear at the SCSL and ICC in terms of the predominance of war crimes counts during armed conflict, there does not appear to be a basis for concluding that the war crimes counts at the ICTY are inflated.

⁶⁵ Rule 61 of the ICTY Rules of Procedure and Evidence permits the Tribunal to hold an evidentiary hearing on an indictment if an accused cannot be brought before the Tribunal after a warrant has been issued. Following the hearing, the trial chamber may issue an “international arrest warrant”if it finds “reasonable grounds for believing that the accused has committed all or any of the crimes charged in the indictment.” Rules of Procedure and Evidence, Rule 61(c), (d), UN Doc. IT/32/Rev.4Y (2012) [hereinafter ICTY RPE]. When the ICTY was first established, it had difficulty apprehending its indictees; therefore, Rule 61 proceedings were held to publicize the cases against them, presumably to improve chances of their apprehension and to preserve the evidence against them. Although there was initial enthusiasm for the procedure, some criticism of it, as well as improved arrest records obviating its use, caused the ICTY to stop using Article 61. See, e.g., Thieroff, Mark & Amley, Edward A. Jr., Proceeding to Justice and Accountability in the Balkans: The International Criminal Tribunal for the Former Yugoslavia and Rule 61, 23 Yale J. Int’l L. 231 (1998)Google Scholar.

⁶⁶ See, e.g., Brđanin, supra note 22, para. 448 (appeals chamber finding that the intent to destroy the groups in part, as opposed to the intent to forcibly displace them, is not the only reasonable inference that may be drawn); see also Schabas, William A., Was Genocide Committed in Bosnia and Herzegovina? First Judgments of the International Criminal Tribunal for the Former Yugoslavia, 25 Fordham Int’l L.J. 23, 52–53 (2001–2002)Google Scholar (calling Srebrenica an “exceptional case”).

⁶⁷ see Prosecutorv.Tadić, Case No. IT-94-1, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction, paras. 81–84 (October 2, 1995).

⁶⁸ Id., paras. 76, 78.

⁶⁹ Prosecutor v. Kupreškić, Case No. IT-95-16, Indictment (Nov. 10, 1995); Id., Amended Indictment (Feb. 9, 1998).

⁷⁰ Prosecutor v. Tadić, Case No. IT-94-1-A, paras. 283, 305 (July 15, 1999).

⁷¹ Tadić held that discriminatory intent is not required to establish a crime against humanity, although the sec retary-general’s report establishing the ICTY indicated that it was an element of the offense. Report of the Secretary General Pursuant to Paragraph 2 of Security Council Resolution 808, para. 48, UN Doc. S/25704 (May 3, 1993).

⁷² See infra note 121 and accompanying text.

⁷³ Prosecutor v. Kunarac, Case Nos. IT-96-23 & IT-96-23/1-A, para. 98 (June 12, 2002).

⁷⁴ Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808, supra note 71, para. 34.

⁷⁵ See, e.g., Guénaël Mettraux, Crimes Against Humanity and the Question of a “Policy” Element, in Forging a Convention, supra note 19, at 167–69.

⁷⁶ See, e.g., Sadat, Nuremberg, supra note 45, at 303–11 (discussing the need for a “common plan” in French case law).

⁷⁷ See, e.g., Bassiouni, supra note 16, at 14–19 (supporting the inclusion of a policy element). But see Mettraux, Guénaël, Crimes Against Humanity in the Jurisprudence of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda, 43 Harv. Int’l L. J. 237, 270 (2002)Google Scholar (disputing the existence of a policy element); see generally Richard Steinberg, Assessing The Legacy of the Icty (2011).

⁷⁸ Kunarac, supra note 73. The appeals chamber noted that there was some “debate” in the jurisprudence of the Tribunal on the question whether a policy or plan constitutes an element of crimes against humanity. Id., para. 98 n.114. The Kunarac appeals chamber decision effectively ended the debate.

⁷⁹ Kai Ambos, Crimes Against Humanity and the International Criminal Court, in Forging a Convention, supra note 19, at 279.

⁸⁰ See, e.g., Schwelb, Egon, Crimes Against Humanity, 1946 Brit. Y.B. Int’l 178Google Scholar.

⁸¹ see Prosecutor v. Tadić, Case No. IT-94-1-T (May 7, 1997); see also Prosecutor v. Martić, Case No. IT-95- 11-T, paras. 50–56 (June 12, 2007).

⁸² Prosecutor v. Martić, Case No. ICTY-IT-95-11-A, para. 297 (Oct. 8, 2008).

⁸³ The ICTY did not follow the French jurisprudence on this point. see Sadat, Nuremberg, supra note 45.

⁸⁴ Martić, Case No. ICTY-IT-95-11-A, para. 306.

⁸⁵ ICTR Statute, supra note 48, Arts. 2–4.

⁸⁶ Id., Art. 3.

⁸⁷ Following the decision of the Security Council to remove Carla del Ponte as ICTR Chief Prosecutor and appoint a separate chief prosecutor for the ICTR in 2003, SC Res. 1503 (Aug. 28, 2003), a noticeable shift in indictment practice occurred: War crimes were charged more sparingly (only 19 percent of post-2003 indictments included war crimes) and the average number of crimes against humanity charged per indictment was halved (from 3.92 per indictment to 1.79).

⁸⁸ Indictment data is from operative (or last amended) indictment, and is current as of January 2013.

⁸⁹ Conviction data for cases on appeal is from the trial chamber.

⁹⁰ This number excludes two persons charged with false testimony and contempt of the tribunal (no crimes against humanity, genocide, or war crimes counts were charged).

⁹¹ From 1995 to 2003, the prosecution charged an average of 3.92 counts of crimes against humanity per indictment; during the same period, no indictment was amended to remove such a charge. After 2003, the average dropped by fifty-four percent to 1.79 counts of crimes against humanity per indictment. Moreover, after 2003, nine out of thirty (thirty percent) of the initial indictments were amended to reduce the number of charges for crimes against humanity. Six out of thirty (twenty percent) of the initial indictments were also amended to add crimes against humanity charge(s). The frequency of war crimes charges exhibits a similar decline after 2003. From 1995 to 2003, forty-one out of fifty-five (74.5 percent) indictments charged war crimes. After 2003, only one in ten initial indictments included war crimes, and only seven out of thirty-six (19.4 percent) ultimately included war crimes charges; seven indictments were amended to remove the war crimes counts completely. The smallest degree of change was seen for genocide charges, which were reduced from a pre-2003 rate of approximately 3.12 counts per indictment to a post-2003 rate of 2.32 counts per indictment. Like crimes against humanity and war crimes, genocide counts were more routinely withdrawn after 2003. Twelve out of thirty-two (37.5 percent) indictments were amended to reduce the number of genocide charges, a practice consistent with the Tribunal’s emphasis on completing its work more quickly inline with the completion strategy set out bythe Security Council. Four out of thirty-two (12.5 percent) indictments were also amended to add genocide charge(s).

⁹² Ten defendants were acquitted on all counts.

⁹³ See, e.g., Prosecutor v. Akayesu, Case No. ICTR-96-4-T, paras. 599–644 (Sept. 2, 1998) (holding that it was not proven beyond a reasonable doubt that the acts perpetrated by Akayesu were committed in conjunction with an armed conflict or that he was a member of the armed forces).

⁹⁴ See, e.g., Prosecutor v. Rutaganda, Case No. ICTR-96-3-A, paras. 557–58 (May 26, 2003) For a good discussion, see generally Eve La Haye, War Crimes in Internal Armed Conflicts 324–25 (2008).

⁹⁵ See supra note 91.

⁹⁶ The change in charging practice coincided with the appointment of Hassan Jallow to replace Carla del Ponte as the new prosecutor for the Rwanda Tribunal. In addition, the appeals chamber reversed, for the first time, an accused’s acquittal for violations of common Article 3 and Additional Protocol II, charged under Article 4 of the ICTR Statute. Rutuganda, paras. 583–85, 589.

⁹⁷ In the first judgment delivered at the ICTR, the trial chamber held that crimes against humanity must be committed as part of a ”widespread or systematic attack.”In further defining systematicity, it held that “it may be defined as thoroughly organised and following a regular pattern on the basis of a common policy involving substantial public or private resources.... There must however be some kind of preconceived plan or policy.” Akayesu, para. 580.

⁹⁸ Prosecutor v. Bagilishema, Case No. ICTR-95-1A-T, para. 78 (June 7, 2001).

⁹⁹ See supra notes 75–78 and accompanying text.

¹⁰⁰ Prosecutor v. Nahimana, Case No. ICTR-99-52-A, para. 1029 (Nov. 28, 2007); see Davidson, H. Ron, The International Criminal Tribunal for Rwanda’s Decision in Prosecutorv. Ferdinand Nahimana, et al.: The Past, Present and Future of International Incitement Law, 17 Leiden J. Int’l L. 505 (2004)CrossRef Google Scholar. More recently, the Tribunal found cumulative convictions permissible for crimes against humanity, genocide, and war crimes in a fifteen-hundred-page decision in the Butare case, the first to convict a woman of genocide. Prosecutor v. Nyramasuhuko, Case No. ICTR-98-42-T (June 24, 2011).

¹⁰¹ SCSL Statute, supra note 48, Arts. 1(1), 2.

¹⁰² Press Release, Outreach and Public Affairs Office, Special Court for Sierra Leone, Charles Taylor Sentenced to 50 Years in Prison (May 30, 2012), at http://www.sc-sl.org/LinkClick.aspx?fileticket=wMFT32KRyiY=&tabid=53.

¹⁰³ Prosecutorv. Taylor, Case No. SCSL-03-01-T (May 18, 2012).

¹⁰⁴ SCSL Statute, supra note 48, Art. 2(g).

¹⁰⁵ See supra note 86 and accompanying text.

¹⁰⁶ Genocide was not included in the SCSL Statute.

¹⁰⁷ Indictment data is from operative (or last amended) indictment.

¹⁰⁸ Brima, supra note 23, para. 202. This was the first case in which forced marriage was given independent legal qualification as a “situation in which the perpetrator through his words or conduct, or those of someone for whose actions he is responsible, compels a person by force, threat of force, or coercion to serve as a conjugal partner resulting in severe suffering, or physical, mental or psychological injury to the victim.” Id., para. 196. This case may prove important at the ECCCas it confronts the issue of forced marriages performed by the Khmer Rouge regime between nonconsenting men and women. see Jain, Neha, Forced Marriage as a Crime Against Humanity: Problems of Definition and Prosecution, 6 J. Int’l Crim. Just. 1013, 1023–25 (2008)CrossRef Google Scholar.

¹⁰⁹ See supra notes 17–20 and accompanying text.

¹¹⁰ See supra notes 16–19, 43–48 and accompanying text.

¹¹¹ Report of the Preparatory Committee on the Establishment of an International Criminal Court, para. 83 (Proceedings of the Preparatory Committee During March-April and August 1996), reprinted in M. Cherif Bassiouni, The Statute of the International Criminal Court: A Documentary History 398 (1998) [hereinafter Preparatory Committee Proceedings].

¹¹² see Sadat, Leila Nadya,Custom, Codification and Some Thoughts About the Relationship Between the Two: Article 10 of the ICC Statute, 49 Depaul L. Rev. 909, 913–14 (2000)Google Scholar; Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, para. 57, UN Doc. A/50/22 (1995) (“a procedural instrument enumerating rather than defining the crimes would not meet the requirements of the principle of legality (nullum crimen sine lege and nulla poena sine lege) and that the constituent elements of each crime should be specified to avoid any ambiguity and to ensure full respect for the rights of the accused.”).

¹¹³ See generally Kelly Dawn Askin, War Crimes Against Women: Prosecution in International War Crimes Tribunals (1997).

¹¹⁴ See Tadić, supra note 67, Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction (Oct. 2, 1995); Tadić, supra note 81.

¹¹⁵ Akayesu, supra note 93.

¹¹⁶ Sadat, Leila Nadya & Carden, S. Richard, The New International Criminal Court: An Uneasy Revolution, 88 Geo. L.J. 391 (2000)Google Scholar.

¹¹⁷ Id. at 407–10; see also Arsanjani, Mahnoush H., The Rome Statute of the International Criminal Court, 93 AJIL 22, 26 (1999)CrossRef Google Scholar.

¹¹⁸ The Elements of Crimes elaborated by the Preparatory Commission pursuant to Article 9 of the Statute refers to these as context elements as opposed to the “chapeau,” the term more usually employed. see Rome Statute of the International Criminal Court, Elements of Crimes, Art. 7. Using the word “context” is consistent with the drafters’ efforts to eliminate terminology pertaining to any particular legal system (and also accounts for the disappearance of the term “indictment” from the Statute). Nonetheless, this terminology can be somewhat confusing. See, e.g., Leila Nadya Sadat, The International Criminal Court and the Transformation of International Law 146–48 (2002).

¹¹⁹ Tadić, supra note 81, paras. 650–52. The appeals chamber reversed this holding, Tadić, supra note 70, para. 305. The French delegation had advocated for this position, undoubtedly relying on France’s own jurisprudence after World War II. Robinson, Darryl, The Elements of Crimes Against Humanity, in The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence 63 (Lee, Roy S. ed., 2001)Google Scholar. This linkage is reinserted, however, in the definition of persecution under Article 7(1)(h).

¹²⁰ see Boot, Machteld, Dixon, Rodney & Hall, Christopher K.,Article 7: Crimes Against Humanity, in Commentary on the Rome Statute of the International Criminal Court 117, 123 (Triffterer, Otto ed., 1999)Google Scholar. The French text of the ICTR Statute used “and,” but this was viewed as a drafting error by the Tribunal. see Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, para. 579 n.144 (Sept. 2, 1998).

¹²¹ The Rome Statute prohibits “[p]ersecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender... or other grounds that are universally recognised as impermissible under international law....” This expansive language is followed by a proviso that the persecution must be “in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court,” meaning that persecution is only prosecutable when accompanied by war or other acts of violence. Cassese, Antonio, Crimes Against Humanity, in The Rome Statute of the International Criminal Court 376 (Cassese, A., Gaeta, P. & Jones, J. eds., 2001)Google Scholar argues that this limitation is not required by customary international law, yet it follows the practice of the ad hoc tribunals. see Ken Roberts, The Law of Persecution before the International Criminal Tribunal for the Former Yugoslavia, Leiden J. Int’l L. 623, 632 (2002); see also Prosecutor v. Kupreškić, Case No. IT-95-16-T, paras. 573–81 (Jan. 14, 2000).

¹²² Author’s notes from the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome (June 15–July 17, 1998) (on file with author); see also Bureau: Discussion Paper Regarding Part 2, UN Doc. A/CONF.183/C.1/L.53 (July 6, 1998) (see discussion regarding paragraph 1), reprinted in 3 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court: Official records 204 (2002); Cuba: Proposal Regarding Article 5, UN Doc. A/CONF.183/C.1/L.17 (June 23, 1998), reprinted in 3 United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court: Official Records 240 (2002).

¹²³ Rome Statute, supra note 3, Art. 7(1).

¹²⁴ Id. Some delegations supported deletion of the words “civilian population” during the Rome Conference as too restrictive, but this traditional limit on the ambit of crimes against humanity remained.

¹²⁵ Id.

¹²⁶ Id., Art. 7(2)(a).

¹²⁷ Robinson, Darryl, Developments In International Criminal Law: Defining “Crimes Against Humanity” at the Rome Conference, 93 AJIL 43, 47–51 (1999)CrossRef Google Scholar. The “multiple acts” element does not have a textual analog in earlier texts, but would seem to be included in the language “widespread or systematic,” necessarily implying harm beyond an isolated single event.

¹²⁸ Preparatory Committee Proceedings, supra note 111, paras. 82–102. As late as 1997, France submitted a proposed definition that did not contain a policy element but instead focused on the systematic/widespread nature of crimes against humanity, noting “The term ‘crimes against humanity’ means any of the [acts]/[crimes] listed below, committed [systematically [and]/[or] on a broad scale]/[in the context of a systematic [and]/[or] widespread attack] [on a large scale] against [any]/[a] civilian population group[, and inspired by political, philosophical, racial, ethnic or religious motives or any other arbitrarily defined motive].” Proposal for a Definition of Crimes Against Humanity Submitted by the Delegation of France, UN Doc. A/AC.249/1997/WG.1/DP.4 (Feb. 19, 1997) (alterations in original).

¹²⁹ Report of the Inter-sessional Meeting from 19 to 30 January 1998 in Zutphen, the Netherlands, UN Doc.A/AC.249/1998/L.13 (1998).

¹³⁰ Report of the Preparatory Committee on the Establishment of an International Criminal Court, A/CONF.183/2/Add.1 (Apr. 14, 1998) [hereinafter April Draft Statute].

¹³¹ Bureau: Discussion Paper Regarding Part 2, supra note 123. For discussion of the Rome negotiations on crimes against humanity, see William A. Schabas, The International Criminal Court 142–43 (2011).

¹³² von Hebel, Herman & Robinson, Darryl, Crimes Within the Jurisdiction of the Court, in The Making of the Rome Statute 97 (Lee, Roy S. ed., 1999)Google Scholar.

¹³³ Id.

¹³⁴ The Like-Minded Group of States emerged during the negotiation of the Rome Statute as a sixty-member set, committed to the establishment of the ICC, that tended to act in concert during the Statute’s negotiation. See, e.g., Sadat & Carden, The New International Criminal Court: An Uneasy Revolution, supra note 116.

¹³⁵ von Hebel & Robinson, supra note 132, at 94–95; see also Robinson, supra note 127.

¹³⁶ Boot et al., supra note 120, at 123 (“State or organizational policy is a necessary component of the widespread or systematic attack on the civilian population. It constitutes a basis for ensuring that random or isolated acts are excluded from the scope of crimes against humanity.” Id. at 127).

¹³⁷ von Hebel & Robinson, supra note 132, at 96.

¹³⁸ This requirement was articulated in the Barbie case and followed in subsequent decisions. Fédération Nationale des Déportées v. Barbie, Cass. Crim., June 3, 1988, JCP 1988 II 21, 149 (Fr.) (report of Counselor Angevin), translated in 100 ILR 330 (1995).

¹³⁹ Mettraux, supra note 75, at 162– 66.

¹⁴⁰ See supra notes 77–78 and accompanying text; supra notes 98–99 and accompanying text.

¹⁴¹ Sadat, Nuremberg, supra note 45, at 361–63. But see Bassiouni,supra note 16, at 47 (noting that state policy is an “essential characteristic” of crimes against humanity). For a creative argument proposing amendment of the Rome Statute to delete the policy requirement, see Halling, Matt, Push the Envelope—Watch It Bend: Removing the Policy Requirement and Extending Crimes Against Humanity, 23 Leiden J. Int’l L. 827 (2010)CrossRef Google Scholar.

¹⁴² Boot et al., supra note 120, at 159.

¹⁴³ See also Robinson, supra note 127, at 57–58 (noting that many of the detailed provisions of Article 7 were adopted out of a concern to avoid vagueness and to underscore the operation of the legality principle in the Rome Statute).

¹⁴⁴ Author’s notes from the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome (June 15–July 17, 1998) (on file with author); see also Arsanjani, supra note 117, at 31 (“[I]t became clear that a short article on crimes against humanity modeled on the Statute of the Yugoslav Tribunal would be unacceptable to the majority of states.... Accordingly, crimes against humanity may be committed not only by or under the direction of state officials, but also by ‘organizations.’ “).

¹⁴⁵ Boot et al., supra note 120, at 159.

¹⁴⁶ Cass. Crim., Jan. 26, 1984, JCP 1984 II 20,197 (submission of French Advocate Dontenwille), translated in 78 ILR 125–48, 147, reprinted in Paust, Bassiouni, Scharf, Sadat, Gurulé & Zagaris, International Criminal Law: Cases and Materials 762 (4th ed. 2013). This view did not prevail because the French Court of Cassation held that not only must the plan emanate from a state under Article 6(c), but it also must emanate from one practicing a “hegemonic political ideology.” Cass. Crim., Dec. 20, 1985, JCP 1986 II 20,655. This, the court explained, was required by Article 6(c) of the Nuremberg Charter, which targeted only those working on behalf of the Axis powers and excluded by definition the nationals of other states. The decision was criticized in France, as it appears not only to have been an erroneous reading of Article 6(c), but additionally one that was motivated by the upcoming proceedings in the Touvier case, which involved accusations of crimes against humanity against a French, rather than a German, accused. See also Sadat, Nuremberg, supra note 45.

¹⁴⁷ Robinson, supra note 119, at 58.

¹⁴⁸ The Rome Statute of the International Criminal Court, Elements of Crimes, Article 7, provides:

The last two elements for each crime against humanity describe the context in which the conduct must take place. These elements clarify the requisite participation in and knowledge of a widespread or systematic attack against a civilian population. However the last element should not be interpreted as requiring proof that the perpetrator had knowledge of all characteristics of the attack or the precise details of the plan or policy of the State or organization. In the case of any emerging widespread or systematic attack against a civilian population, the intent clause of the last element indicates that this mental element is satisfied if the perpetrator intended to further such an attack.

A footnote observes that in exceptional circumstances, a policy may be “implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack. The existence of such a policy cannot be inferred solely from the absence of governmental or organizational action.” Id. n.6.

¹⁴⁹ Robinson, supra note 119, at 78.

¹⁵⁰ This article makes only a modest claim regarding the possibility of prevention and deterrence, as the ICC’s operations only commenced a few years ago. As of this writing (spring 2013), it is too early in ICC history to gather significant empirical evidence supporting a stronger claim. See also Scheffer, supra note 36, at 5–7.

¹⁵¹ The situation in Mali was recently referred to the Court. see UN News Centre, ICC Prosecutor Opens Investigation into War Crimes in Mali (Jan. 16, 2013), at http://www.un.org/apps/news/story.asp?NewsID=43939#.UU-s6oO4YSs. As charges have yet to be brought, the Malian situation is not included in the data collected on the ICC.

¹⁵² As of February 26, 2011, the date that the Security Council adopted Resolution 1970 (“Deploring the gross and systematic violations of human rights”), no armed conflict was present in Libya; the ICC arrest warrants issued on June 27, 2011, made reference only to crimes against humanity. Situation in the Libyan Arab Jamahiriya, supra note 2. Subsequently, the conflict escalated and was characterized as an armed conflict by the international community, but no further ICC action was taken, leaving crimes against humanity as the sole basis for ICC action at the present time. See, e.g., SC Res. 1973 (Mar. 17, 2011) (referring to “parties to armed conflicts”).

¹⁵³ Dragan Nikolić and Drajan Papić.

¹⁵⁴ Paul Bisingimana and Juvénal Rugambarara were charged with crimes against humanity only; one defendant, Callixte Kalimanzira, was charged with genocide only.

¹⁵⁵ Scheffer, supra note 36, at 266–70.

¹⁵⁶ Data acquired from confirmation of charges (when available) and arrest warrants.

¹⁵⁷ Charges were not confirmed against Bahar Idriss Abu Garda (Darfur, Sudan), Prosecutor v. Abu Garda, Case No. ICC-02/05-02/09, Public Redacted Version– Confirmation of Charges (Feb. 8, 2010); Callixte Mbarushimana (DRC), Prosecutor v. Mbarushimana, Case No. ICC-01/04-01/10, Confirmation of Charges (Dec. 16, 2011); and Henry Kosgey and Mohammed Hussein Ai (Kenya), Prosecutor v. Kosgey, Case No. ICC-01/09-01/11, Confirmation of Charges (Jan. 23, 2012); Prosecutor v. Ali, Case No. ICC-01/09-02/11 (Jan. 23, 2012). The prosecution may subsequently request confirmation of the charges against these individuals if such a request is supported by additional evidence.

¹⁵⁸ See All Situations at http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/situations/Pages/situations%20index.aspx.

¹⁵⁹ The twelve accused still at large are four defendants in the Uganda situation, two accused in the Libya situation (their whereabouts are known but they refuse to appear), four in the Darfur situation, and two from the DRC.

¹⁶⁰ ICC Press Release, President of Uganda Refers Situation Concerning the Lord’s Resistance Army (LRA) to the ICC (2004).

¹⁶¹ In accepting Uganda’s “self-referral” the prosecutor notified Ugandan authorities that he would interpret the scope of the referral “consistently with the Rome Statute,” and would therefore analyze crimes in Northern Uganda “by whomever committed.” Letter from Luis Moreno Ocampo, Chief Prosecutor, to President Philippe Kirsch (June 17, 2004). Charges have not been brought against any government officials, however, although allegations of war crimes and torture have been made against them. See, e.g., Human Watch, State of Pain: Torture in Uganda (2004) (alleging cases of torture and arbitrary detention), at http://www.hrw.org/sites/default/files/reports/uganda0304.pdf; Akhavan, Payam, The Lord’s Resistance Army Case: Uganda’s Submission of the First State Referral to the International Criminal Court, 99 AJIL 403, 403–04 (2005)CrossRef Google Scholar; see also International Crisis Group, Building a Comprehensive Peace Strategy for Northern Uganda (Africa Briefing No. 27, 2005), at http://www.crisisgroup.org/en/regions/africa/horn-of-africa/uganda/B027-building-a-comprehensive-peace-strategy-for-northern-uganda.aspx.

¹⁶² Prosecutor v. Kony, Case No. ICC-02/02-01/05 (July 8, 2005) (warrants of arrest for Joseph Kony, Vincent Otti, Okot Odhiambo, Dominic Ongwen, and Raska Lukwiya).

¹⁶³ The ICC, see Situation in Uganda, lists only Raska Lukwiya as deceased, but Vincent Otti is also widely assumed to be deceased. Otti “Executedby Uganda Rebels,” BBC News (Dec. 21, 2007), at http://news.bbc.co.uk/2/hi/africa/7156284.stm; Vincent Otti, The Hague Justice Portal (2011), at http://www.haguejusticeportal.net/index.php?id=8194.

¹⁶⁴ Conversely, the war crimes charges are important for offenses such as enlisting and using child soldiers.

¹⁶⁵ Letter from Luis Moreno Ocampo, supra note 161.

¹⁶⁶ Accordingly, the DRC referral is broader than the Ugandan referral.

¹⁶⁷ Merope, Sienna, Recharacterizing the Lubanga Case: Regulation 55 and the Consequences for Gender Justice at the ICC, 22 Crim. L.F. 311 (2011)CrossRef Google Scholar.

¹⁶⁸ Katanga, supra note 24, para. 25.

¹⁶⁹ Id., Warrant of Arrest (July 2, 2007); Democratic Republic of the Congo: Case The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, ICC, at http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/situations/situation%20icc%200104/related%20cases/icc%200104%200107/Pages/democratic%20republic%20of%20the%20congo.aspx.

¹⁷⁰ Prosecutor v. Chui, Case No. ICC-01/04-01/07, Warrant of Arrest (July 6, 2007).

¹⁷¹ Katanga, supra note 24, Joinder of Cases Against Germain Katanga and Mathieu Ngudjolo Chui (March 10,2008).

¹⁷² Katanga, supra note 24. On September 26, 2008, Pre-trial Chamber I sent the case to trial, confirming all but three counts in the arrest warrants. On December 18, 2012, Chui was acquitted on all counts and released from ICC detention. The Prosecutor has appealed the verdict. see ICC Press Release, ICC Released Mathieu Ngudjolo Chui from Custody Following His Acquittal (Dec. 21, 2012).

¹⁷³ The Katanga confirmation decision is interesting for a variety of reasons, notably its rejection of the kinds of liability theories prevalent at the ad hoc tribunals as well as the idea of cumulative charging at an early stage of the case before either the prosecution or defense has proffered its evidence. This feature of ICC pretrial practice may be protective of the accused, who will have fewer charges to respond to and a more narrow scope of criminal responsibility to worry about. However, it requires the prosecution to attempt to determine at an early stage which charges and theories of liability will likely be accepted by the Court.

¹⁷⁴ Katanga, supra note 24, para. 396.

¹⁷⁵ See supra note 97.

¹⁷⁶ This formulation was most recently reiterated by Pre-trial Chamber III in the decision pursuant to Article 15 authorizing the investigation in Côte d’Ivoire. see Situation in Coôte d’Ivoire, infra note 228, para. 43.

¹⁷⁷ Draft Code of Crimes Against the Peace and Security of Mankind, Art. 21, cmt., para. 3, in Report of the International Law Commission on the Work of Its Forty-Third Session, UN GAOR, 46th Sess., Supp. No. 10, UNDoc. A/46/10 (1991).

¹⁷⁸ Katanga, supra note 24, para. 396. In Katanga, id. at 127 n.507, the chamber cites in support the commentary to the 1991 Draft Code of Crimes Against the Peace and Security of Mankind, supra note 177, Art. 21, cmt. 5, language to the effect that the organization can be “private individuals with de facto power or organized in criminal gangs or groups,” along with several somewhat inapposite ICTR and ICTY decisions cited without explanation. Although the use of ICTR and ICTY jurisprudence is appropriate in many cases it does not seem so here, insofar as those tribunals initially suggested that crimes against humanity required a policy element but eventually reversed that position. For example, Prosecutor v. Semanza held that “although the existence of a plan or policy may be useful to establish that an attack was directed against a civilian population and that it was widespread and systematic, it is not an independent legal element.” Prosecutor v. Semanza, Case No. ICTR-97-20-A, para. 269 (May 20, 2005). The ICC cites not this case but rather Akayesu, decided quite some time earlier, for the proposition that there must have been some preconceived plan or policy, even if not formally adopted. Akayesu, supra note 93, para. 580. This authority is only of limited persuasive value given its own rejection by the ICTR in subsequent cases, such as Semanza; the same is true at the ICTY. In the Kenya confirmation decisions, discussed infra notes 211–215 and accompanying text, Pre-trial Chamber II addressed this seeming anomaly.

¹⁷⁹ Robinson, supra note 119, at 78.

¹⁸⁰ Katanga, supra note 24, para. 399. Katanga cites to the Tadić Trial Judgment to support this statement, but Tadić was making a different point, to wit, that the word “any” civilian population means that “crimes against humanity can be committed against civilians of the same nationality as the perpetrator or those who are stateless, as well as those of a different nationality.” Tadić, supra note 81, para. 635. The language in Katanga, which in fact does not follow Tadić, leads one instead to believe that an issue thought to have been settled—the irrelevance of group identity to the commission of crimes against humanity—is in fact unsettled or potentially relevant. In this author’s view, it was dictum unnecessary to the decision of the case, and phrased in a manner that could lead to confusion.

¹⁸¹ See, e.g., Prosecutor v. Muthaura, Case No. ICC-01/09-02/11, Confirmation of Charges Pursuant to Article 61(7)(a) and (6) of the Rome Statute, para. 110 (Jan. 23, 2012).

¹⁸² Mbarushimana, supra note 157.

¹⁸³ See, e.g., id., paras. 145, 151.

¹⁸⁴ Id., paras. 263, 265. Judge Monageng dissented, arguing that although the case against Mbarushimana is “not a conventional one,” it would seem to present “‘triable issues’ deserving of the more rigorous fact finding that only a Trial Chamber can provide.” Id., para. 134.

¹⁸⁵ Mbarushimana, supra note 157, Appeal of the Prosecutor Against the Decision of Pre-trial Chamber I of 16 December 2011 Entitled “Decision on the Confirmation of Charges,” paras. 41–46 (May 30, 2012).

¹⁸⁶ Prosecutor v. Bemba, Case No. ICC-01/05-01/08, Decision Pursuant to Article 61(7)(a) and (b)of the Rome Statute on the Charges of Prosecutor Against Jean-Pierre Bemba-Gombo, paras. 72, 205 (June 15, 2009). Some commentators have suggested that the arrest warrant decision supports a more limited view of the “policy” element by the Court. see Werle, Gerhard, Principles of International Criminal Law 302 n.86 (2d ed. 2009)CrossRef Google Scholar (citing Prosecutor v.Bemba, Warrant of Arrest, para. 33 (June 10, 2008) (“the existence of a State or organizational policy is an element from which the systematic nature of an attack may be inferred”)). But the decision contains no explanation of this statement and does not actually support much in the way of inference about the Court’s think ing on this issue.

¹⁸⁷ For example, the chamber retained the murder and rape charges as crimes against humanity, but declined to confirm charges of torture as a cumulative charge that was “subsumed” by the count of rape. Prosecutor v. Bemba, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of Prosecutor Against Jean-Pierre Bemba-Gombo, paras. 72, 205. Likewise, the chamber confirmed three of the five war crimes counts (murder, rape, and pillaging), but declined to confirm charges of torture as a war crime on the grounds that the evidence of specific purpose was lacking. Id., para 291. The chamber also declined to confirm the crime of outrages upon personal dignity, again on the basis that this count constituted “cumulative charging” because the “essence of the violation of the law underlying these facts is fully encompassed in the count of rape.” Id., para. 310. This finding of the chamber is debatable. Many of the acts identified involved rape; however, others were associated with but not necessarily constitutive of the crime of rape and indicated that the prosecutor endeavored to capture not only the rapes but also the accompanying degradation and public humiliation, which affected both the rape victims and those required to watch or participate.

¹⁸⁸ Id., para 78.

¹⁸⁹ See supra notes 81–84 and accompanying text.

¹⁹⁰ See supra note 84 and accompanying text.

¹⁹¹ Report of the International Commission of Inquiry on Darfur to the Secretary-General, at 2, UN Doc.S/2005/60 (Feb. 1, 2005).

¹⁹² The Janjaweed are described in the report in paragraphs 98 to 126.

¹⁹³ Id. at 3.

¹⁹⁴ Id., at 4. This language is troubling given that the Genocide Convention, supra note 42, makes no reference to “policy” in its text. As provided by the ICC’s Elements of Crimes, Art. 6(a)(4), UN Doc. PCNICC/2000/1/Add.2 (2000) (genocide by killing), “The conduct [must take] place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.” This, however, seems more of a “widespread or systematic” requirement than a policy element, and, in any event, has been criticized as it is not found in Article II of the Genocide Convention.

¹⁹⁵ Report of the International Commission of Inquiry on Darfur to the Secretary-General, supra note 191, para. 5.

¹⁹⁶ SC Res. 1593, para. 1 (Mar. 31, 2005). A Security Council referral was necessary to the Court’s jurisdiction as Sudan is not a party to the Rome Statute.

¹⁹⁷ Some of the counts charge “murder of civilians” generally, such as counts 2, 3, 4, 5, 11, 12, 40, and 41; others allege “murder of men” (counts 22–30). Prosecutor v. Harun, Case No. ICC-02/05-01/07, Warrants of Arrest (Apr. 27, 2007).

¹⁹⁸ See the ICC’s Situations and Cases, at http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/Pages/situations%20and%20cases.aspx.

¹⁹⁹ Prosecutor v. Al Bashir, Case No. ICC-02/05-01/09, Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, para. 249 (March 4, 2009).

²⁰⁰ Id., Second Decision on the Prosecution’s Application for a Warrant of Arrest, para. 43 (July 12, 2010).

²⁰¹ African Union Press Release, On the Decisions of Pre-trial Chamber I of the International Criminal Court (ICC) Pursuant to Article 87(7) of the Rome Statute on the Alleged Failure by the Republic of Chad and the Republic of Malawi to Comply with the Cooperation Requests Issued by the Court with Respect to the Arrest and Surrender of President Omar Hassan Al Bashir of the Republic of Sudan (Jan. 9, 2012), at http://www.au.int/en/sites/default/files/PR-%20002-%20ICC%20English.pdf. The fourth case in the Sudan situation involved three individuals accused of attacks on African Union Peacekeepers. They received summonses to appear and did so; because all three cases involve only war crimes, they add little to this article. One of the cases was dismissed by Pre-Trial Chamber I. Prosecutor v. Abu Garda, Case No. ICC-02/05-02/09, Confirmation of Charges (Feb. 8, 2010). On April 23, 2010, Pre-Trial Chamber I issued a decision rejecting the Prosecutor’s application to appeal the decision. The other two are currently awaiting trial.

²⁰² Situation in the Republic of Kenya, Case No. ICC0-o1/09, Request for Authorisation of an Investigation Pursuant to Article 15 (Nov. 26, 2009).

²⁰³ Id., para. 4.

²⁰⁴ Id., para. 56.

²⁰⁵ Id.

²⁰⁶ Id., para. 74.

²⁰⁷ Article 15 Decision, supra note 9, paras. 104–06.

²⁰⁸ Id., para. 114. There is little information on the police attacks and their organization in the opinion or the prosecutor’s request for authorization. The evidence adduced suggests that the police attacks severely worsened the scope and gravity of the violence, and aggravated the attacks by rival groups.

²⁰⁹ ICC Press Release, ICC, Waki Commission List of Names in the Hands of ICC Prosecutor (July 16, 2009).

²¹⁰ The prosecutor received this information on July 16, 2009, following meetings with the Kenyan government and futile efforts to establish a specially constituted tribunal to conduct proceedings in Kenya.

²¹¹ Article 15 Decision, supra note 9, para. 27.

²¹² Id., para. 35.

²¹³ Kaul Kenya Dissent, supra note 9, para. 18.

²¹⁴ Article 15 Decision, supra note 9, para. 80.

²¹⁵ Id., para. 81.

²¹⁶ Prosecutor v. Ruto, Case No. ICC-01/09-01/11, Appeal of the Republic of Kenya Against the Decision of Pre-trial Chamber II of 30 May 2011 Entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute” (Aug. 30,2011); see also Muthaura, supra note 181, Appeal of the Republic of Kenya Against the Decision of Pre-trial Chamber II of 30 May 2011 Entitled “Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pur suant to Article 19(2)(b) of the Statute” (Aug. 30, 2011).

²¹⁷ Reports of the confirmation hearings suggested that the accused ably defended themselves. See, e.g., Confirmation of Charges Hearing in the Case of Ruto et al. Begins, International Criminal Court: Kenya Monitor (Sept. 1, 2011), at http://www.icckenya.org/2011/09/confirmation-of-charges-hearing-in-the-case-of-ruto-et-al-begins/; Uhuru Kenyatta Defence Team Respond to ICC Prosecutor. Kenyatta Gives Live Evidence, International Criminal Law Bureau (Sept. 30, 2011), at http://www.internationallawbureau.com/index.php/uhuru-kenyatta-defence-team-respond-to-the-icc-prosecutor-kenyatta-gives-live-evidence/. They also suggested that support among Kenyans for the ICCs intervention appears quite strong. See, e.g., Kenyans’ Perceptions Towards ICC Process, Synovate (Aug. 2011), at http://www.ipsos.co.ke/spr/downloads/downloads.php?dir=polls&file=Level%20of%20Support%20for%20the%20ICC%20process%20(August%202011).pdf

²¹⁸ Ruto, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute (Jan. 23, 2012); Muthaura, supra note 182, Confirmation of Charges Pursuant to Article 61(7) (a) and (b) of the Rome Statute (Jan. 23, 2012).

²¹⁹ Ruto, supra note 216, paras. 184–208.

²²⁰ Id., para 182.

²²¹ Judge Kaul was unconvinced, arguing that the Network did not satisfy Article 7 and therefore the ICC lacked jurisdiction. Id., Diss. Op. Kaul, J., para. 12. (Judge Kaul’s dissent in Muthaura was similar, finding that the Mungiki was a criminal gang but not one falling within the meaning of “organization” in Article 7. Muthaura, supra note 181, Diss. Op. Kaul, J., paras. 15–21.) He reiterated his view that the Network was an ”amorphous,” ethnically driven group, opining that “members of a tribe [... ] do not form a state-like ‘organization’, unless they meet additional prerequisites.” Ruto, Diss. Op. Kaul, J., para. 12.

²²² SC Res. 1970 (Feb. 26, 2011). Unlike Resolution 1593 referring the Darfur situation, which was adopted by a vote of eleven to zero with four abstentions (Algeria, Brazil, China, and the United States), Security Council Press Release SC/8351, Security Council Refers Situation in Darfur, Sudan, to Prosecutor of International Criminal Court (Mar. 31, 2005), at http://www.un.org/News/Press/docs/2005/sc8351.doc.htm, the vote on Resolution 1970 (Feb. 26, 2011) was unanimous. The Resolution’s preamble noted that “widespread and systematic attacks currently taking place in the Libyan Arab Jamahiriya against the civilian population may amount to crimes against humanity,” and in paragraph 4 the Security Council referred the situation in Libya since February 15, 2011 to the Court.

²²³ See, e.g., Situation in the Libyan Arab Jamahiriya, supra note 2, Warrant of Arrest for Muammar Mohammed Abu Minyar Gaddafi.

²²⁴ Libya has challenged the admissibility of the case against Saif Al Islam Gaddafi, citing a national investigation and prosecution. see ICC Prosecutor Statement to the United Nations Security Council on the Situation in the Libyan Arab Jamahiriya, Pursuant to UNSCR 1970 (2011) (May 16, 2012), at http://www.icc-cpi.int/en_menus/icc/situations%20and%20cases/situations/icc0111/reports%20to%20the%20unsc/Pages/otpstatement160512.aspx.

²²⁵ Kaul Kenya Dissent, supra note 9, para. 55.

²²⁶ Saif Al Islam Gaddafi is being held in Libya, in accordance with a decision of the pre-trial chamber granting Libya the right to suspend his transfer to the ICC pending a decision on his admissibility challenge. Abdullah Al-Se-nussi was initially detained in Mauritania and later extradited to Libya. Because Libya did not formally challenge the admissibility of the case against Al-Senussi, Pre-trial Chamber I has found that Libya may not suspend his transfer to the Court and therefore is under an obligation to surrender him to the Court. Prosecutor v. Al-Senussi, Case No. ICC-01/11-01/11, Decision on the “Urgent Application on Behalf of Abdullah Al-Senussi for Pre-Trial Chamber to Order the Libyan Authorities to Comply with their Obligations and the Orders of the ICC” (Feb. 6, 2013).

²²⁷ Muammar Gaddafi’s death was confirmed by the ICC. see Prosecutor v. Gaddafi, Case No. ICC-01/11-01/11, Decision to Terminate the Case Against Muammar Mohammed Abu Minyar Gaddafi (Nov. 22, 2011).

²²⁸ Situation in the Republic of Côte d’Ivoire, Case No. ICC-02/11, Decision Pursuant to Article 15 of the Rome Statute of the Authorisation of an Investigation into the Situation in Côte d’Ivoire, paras. 10–15 (Oct. 3, 2011).

²²⁹ Id., para. 181.

²³⁰ Id. (citing Human Rights Watch, “My Heart Is Cut, ” Sexual Violence by Rebels and Pro-government Forces in Côte d’Ivoire 17 (Aug. 2, 2007), at http://www.hrw.org/reports/2007/cdi0807/cdi0807web.pdf).

²³¹ Situation in the Republic of Cote d’Ivoire, supra note 228, para. 51.

²³² Id., para. 62.

²³³ Id., para. 67.

²³⁴ Id., para. 72.

²³⁵ Id., para. 76.

²³⁶ Id., paras. 82, 86.

²³⁷ Id., para. 99.

²³⁸ Id., paras. 103–14. The chamber relied upon earlier cases to find first, that generally speaking, only crimes committed prior to the date the prosecutor files the request for authorization may be considered, but second, crimes committed after that time may be investigated if they, “at least in a broad sense, involve the same actors and have been committed within the context of either the same attacks (crimes against humanity) or the same conflict (war crimes).” Id. paras. 177–79. Judge Silvia Fernandez de Gurmendi took issue both with the majority’s “overall approach” to its Article 15 analysis and with the temporal scope of the authorized investigation. Id., Sep. & Partially Diss. Op. Fernandez de Gurmendi, J., para. 9.

²³⁹ Situation in the Republic of Côte d’Ivoire, supra note 228, para. 15.

²⁴⁰ Even though the declaration of Côte d’Ivoire took effect from September 19, 2002, the chamber limited the temporal scope of the inquiry considerably. Prosecutor v. Gbagbo, Case No. ICC-02/11-01/11, Warrant of Arrest (Nov. 23, 2011).

²⁴¹ Prosecutor v. Gbagbo, Case No. ICC-02/11-01/12, Warrant of Arrest (Feb. 29, 2012).

²⁴² Article 15 Decision, supra note 9, para. 86.

²⁴³ Id., para. 87 (citing Prosecutor v. Blaškić, Case No. IT-95-14-T, para. 205 (Mar. 3, 2000)).

²⁴⁴ Id., para. 90 n.82. The French text, for example, provides: “en application ou dans la poursuite de la politique d’un État ou d’une organisation ayant pour but une telle attaque.” Rome Statute, supra note 3, Art. 7(2)(a).

²⁴⁵ Article 15 Decision, supra note 9, para. 90.

²⁴⁶ Id. The chamber quoted with approval language from M. Di Filippo to the effect that purely private criminal organizations could satisfy the “organizational policy” requirement. see Di Filippo, M., Terrorist Crimes and International Cooperation: Critical Remarks on the Definition and Inclusion of Terrorism in the Category of International Crimes, 19 Eur. J. Int’l L. 533 (2008)CrossRef Google Scholar. Although others have criticized the majority’s reliance on this particular article, this view is expressed by other commentators. The Triffterer commentary on Article 7, supra note 120, and the ILC take the same position. Accord Werle, supra note 186, at 301–02; Cryer et al., supra note 42, at 196–98; Robinson, supra note 127, at 50; Sadat, Nuremberg, supra note 45, at 342.

²⁴⁷ Article 15 Decision, supra note 9, para. 89.

²⁴⁸ Kaul Kenya Dissent, supra note 9, para. 52.

²⁴⁹ Id.

²⁵⁰ Id., para. 82.

²⁵¹ Id., para. 153.

²⁵² The dissent reads Article 21 of the Court’s statute (on applicable law) more narrowly than the majority, particularly in regard to the use of case law from other tribunals. His view seems narrower than international law requires, as judicial decisions may be accorded subsidiary value in ascertaining rules of customary international law. see ICJ Statute, Art. 38(1)(d). Indeed, the ICC has often looked to the jurisprudence of the ICTY—for example, in the Lubanga confirmation decision regarding the definition of international armed conflict. see, e.g., Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, Decision on the Confirmation of Charges, paras. 205–11(Jan. 29,2007) (adopting the overall control test).

²⁵³ Kaul Kenya Dissent, supra note 9, para. 9.

²⁵⁴ Id., para. 10.

²⁵⁵ See supra note 6 and authorities cited.

²⁵⁶ See, e.g., Sadat, Nuremberg, supra note 45; see also Cassese, supra note 121, at 357 (“[C]rimes of this category are characterised either by their seriousness and their savagery, or by their magnitude, or by the fact that they were part of a system designed to spread terror, or that they were a link in a deliberately-pursued policy against certain groups....”) (German equivalents of specific terms omitted) (citing Albrecht, Apr. 11, 1949, [Special Court of Cassation], NJ 1949, 425, at 747 (Neth.)).

²⁵⁷ This may be especially the case insofar as war crimes jurisdiction would likely not attach in the absence of armed conflict.

²⁵⁸ Vienna Convention on the Law of Treaties, Art. 31, opened for signature May 23, 1969, 1155 UNTS 331.

²⁵⁹ Kaul Kenya Dissent, supra note 9, para. 51. Although this is an interesting argument, my research has not identified a single instance in which a provision involving two disjunctive terms was held by an international court or tribunal to mean that one modifies the other. See, e.g., Maritime Delimitation and Territorial Questions (Qatar v. Bahr.), Jurisdiction & Admissibility, 1995 ICJ Rep. 6, paras. 34–36 (Feb. 15) (interpreting an Arabic word disjunctively when to do otherwise would “deprive the phrase of its effect”).

²⁶⁰ Indeed, in each of the three contextual paragraphs and footnote 6 the words “State” and “organizational” refer to two separate and independent entities, and there is no indication that “State” modifies the word “organization.” Elements of Crimes, supra note 119, Art. 7.

²⁶¹ The dissent states at several junctures that the violence was insufficiently organized, requiring that the “organization” that perpetrates it must meet “prerequisites of structure, membership, duration, and means....” Kaul Kenya Dissent, supra note 9, para. 150. This leitmotif of insufficient organization also informs the dissent’s statement that groups having “quasi-state abilities” include those that are “(d)... under responsible command or adopted a certain degree of hierarchical structure,” id., para. 51, citing with approval the notion that “organized armed groups” are qualified as “organizations” for the purposes of crimes against humanity, id., para. 51 & n.55. It would be difficult for groups that are not organized armed groups to fulfill Judge Kaul’s requirements effectively linking crimes against humanity to the existence of an armed conflict in any given case. While the majority uses similar factors, it qualifies its list by noting that these factors “may assist” the chamber, but do not “constitute a rigid legal definition.” Article 15 Decision, supra note 9, para. 93.

²⁶² Vienna Convention, supra note 258, Art. 32. The ICJ has frequently confirmed this rule of interpretation. See, e.g., Territorial Dispute (Libya/Chad), 1994 ICJ Rep. 21, para. 41 (Feb. 3) (“As a supplementary measure recourse may be had to means of interpretation such as the preparatory work of the treaty and the circumstances of its conclusion.”); see also Maritime Delimitation and Territorial Questions, supra note 259, para. 33 (quoting Libya/Chad); Oil Platforms (Iran v. U.S.), Preliminary Objections, 1996 ICJ Rep. 806, paras. 28–31 (Dec. 12) (considering treaty signing and ratification circumstances in construing a clause as aspirational, rather than binding). For an explanation of the various methods of treaty interpretation, see Kasikili/Sedudu Island (Bots./Namib.), 1999 ICJ Rep. 1045 (Dec. 13).

²⁶³ Other commentators have made this point as well, both about the Rome Statute in particular and international treaties that take constitutional forms generally. In 1986, Sir Gerald Fitzmaurice wrote “[The teleological approach] is a method of interpretation more especially connected with the general multilateral convention of the ‘normative’... type.... [I]t is particularly with reference to this type of convention... that doubts have been felt as to the validity, or even practicability, of interpretation by that traditional method... of ascertaining the intentions of the parties.” Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice 341 (1986) (cross-reference omitted). More recently, Malcolm Shaw writes, “In the case of treaties that also operate as the constitutional documents of an international organisation, a more flexible method of interpretation would seem to be justified....” Malcolm N. Shaw, International Law 842-43 (5th ed. 2003). Shaw references the teleological interpretation of the European Convention on Human Rights for which a “purpose-oriented method of interpretation was adopted.” Id. at 844. Many now recognize that teleological interpretation is the norm for these types of treaties. See, e.g., Alvarez, Jose E., The New Dispute Settlers: (Half) Truths and Consequences, 38 Tex. Int’l L.J. 405, 442 (2003)Google Scholar (“There is also little doubt... that some of the new dispute settlers [the ICC, ICTY, and ICTR] are engaging in forms of constitutional discourse, including teleological interpretations of the treaties that they are charged with applying.”); Sadat & Carden, The New International Criminal Court, supra note 116, at 395.

²⁶⁴ Sadat, Leila Nadya, The Legacy of the ICTY: The International Criminal Court, 37 New Eng. L. Rev. 1073, 1077–78 (2003)Google Scholar (noting that the same issues of interpretation have arisen with respect to the foundational treaties of the European Union and citing George A. Bermann, Williamj. Davey & Eleanor M. Fox, Cases and Materials On European Community Law 30 (1993)).

²⁶⁵ However, even if ambiguity exists, it is not clear that the dissent is correct. The European Court of Human Rights has held that the principle of strict construction is satisfied when a judicial interpretation is “reasonably fore seeable” and is consistent with the essence of an offense. SW v. United Kingdom, Merits & Just Satisfaction, 335-B & 335-C Eur. Ct. H.R. (ser. A), paras. 34, 36 (1995). As Leena Grover contended in a recent article on treaty interpretation in international criminal law, “like domestic criminal law jurisdictions, international criminal law cannot adhere to the strict legality doctrine absolutely.” Grover, Leena, A Call to Arms: Fundamental Dilemmas Confronting the Interpretation of Crimes in the Rome Statute of the International Criminal Court, 21 Eur. J. Int’l. L. 543, 555 (2010)CrossRef Google Scholar, at http://ejil.oxfordjournals.org/content/21/3/543.full.pdf+html. It is simply not possible to elevate strict construction over every other goal of the ICC Statute, including achieving substantive justice; rather, it is essential for judges to articulate sound and principled bases for their rulings so that the jurisprudence of the Court is predictable.

²⁶⁶ See supra note 252 and accompanying text.

²⁶⁷ Rome Statute, supra note 3, Arts. 6, 7(1), 8(2).

²⁶⁸ Article 10 provides: “Nothing 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.” For an analysis of Article 10’s application, see Sadat, Transformation, supra note 118, ch. 9. It has become apparent to the author, since this monograph was written, that Article 7 has become increasingly influential and representative of the customary international law of crimes against humanity, and has been accepted as such by a wide variety of international courts and tribunals. For that reason, it was also used as the basis of the Proposed International Convention on the Prevention and Punishment of Crimes Against Humanity by the Steering Committee of the Crimes Against Humanity Initiative. Forging a Convention, supra note 19, at 359.

²⁶⁹ See, e.g., Korbely v. Hungary (Eur. Ct. H.R. Sept. 19, 2008) (Loucaides, J., dissenting) (“[O]ne may take the recent Rome Statute of the International Criminal Court as declaratory of the definition in international law of this crime.”); Goiburú v. Paraguay, Merits, Reparations & Costs, Inter-Am. Ct. H.R. (ser. C) No. 153, para. 82 (Sept. 22, 2006) (cited approvingly in González Medina v. Dominican Republic, Application, para. 104 (Inter-Am. Ct. H.R. May 2, 2010)) (confirming the status of forced disappearances as a crime against humanity due to its inclusion in Article 7 of the Rome Statute); Sarei v. Rio Tinto, PLC, 671 F.3d 736, 767 (9th Cir. 2011) (citing Article 7, along with the ICTR and ICTY Statutes, as “customary international law, primarily defined through the international criminal tribunals at Nuremberg and elsewhere”); Wiwa v. Royal Dutch Petroleum Co., 626 F.Supp.2d 377, 384 (S.D.N.Y. 2009) (examining “the Rome Statute of the International Criminal Court, decisions of international tribunals interpreting customary international law norms, as well as reports and commentary issued by the United Nations, to determine that crimes against humanity is a norm that is ‘customary, obligatory, and well-defined in international jurisprudence’”); R v. Evans ex parte Pinochet Ugarte (Q.B. Div’l Ct. 1998), reprinted in 38 ILM 68 (1999); R v. Bartle, ex parte Pinochet Ugarte (No. 3), [1999] UKHL 17, [2000] 1 A.C. 147 (H.L.) (appeal taken from Eng.) (citing Article 7 as evidence that charges against Pinochet were crimes against humanity).

²⁷⁰ On the formation of customary international law, see North Sea Continental Shelf (F.R.G./Den; F.R.G./Neth.), 1969 ICJ Rep. 3, para. 63 (Feb. 20).

²⁷¹ see Arsanjani, supra note 117, at 25 (one of the three underlying principles of the Rome Statute is that the statute should “remain within the realm of customary international law”); see also Robinson, supra note 127, at 55 (“The delegations participating in the Rome Conference agreed that the purpose of the deliberations on the definition of crimes was to identify existing customary international law and not to progressively develop the law.”). But cf. Arsanjani, supra note 117, at 28(“The statute prescribes a strict hierarchy among the rules of law to be applied by the court.... It must first apply the statute.... Second, the court must apply relevant ‘applicable treaties and the principles and rules of international law....’”).

²⁷² One example is the decision of the Tadić court to reject the test articulated by the ICJ for attribution of state responsibility.

²⁷³ Charney, Jonathan I., Is International Law Threatened by Multiple International Tribunals, 271 Recueil Des Cours 101, 347 (1999)Google Scholar.

²⁷⁴ David J. Luban, Remarks, April Experts Meeting, The Crimes Against Humanity Initiative, St. Louis, MO (Apr. 13, 2009) (author’s notes, on file with author); see also Luban, supra note 11.

²⁷⁵ See supra note 42.

²⁷⁶ Akayesu, supra note 93, Sentencing Decision; see also Schabas, William A.,Genocide, Crimes Against Humanity, and Darfur: The Commission of Inquiry’s Findings on Genocide, 27 Cardozo L. Rev. 1703, 1716 (2006)Google Scholar. It is technically possible for genocide to be committed on a smaller scale. The massacre at Srebrenica involved the death of “only” eight thousand—but took place in the context of a conflict that left more than two hundred thousand civilians dead. See supra note 41 and accompanying text.

²⁷⁷ Data for the ICC includes the sentence in the Lubanga case and the acquittal of Chui. These numbers are obviously very small.

²⁷⁸ SCSL Statute, supra note 48, Arts. 15(1), 19(1), 20(3).

²⁷⁹ Rome Statute, supra note 3, Art. 21(1)(b).

²⁸⁰ Accord Cryer Et Al., supra note 42, at 198.

²⁸¹ See generally Charney, supra note 273; see also Hafner, Gerhard, Pros and Cons Ensuing from Fragmentation of International Law, 25 Mich. J. Int’l L. 849 (2003)Google Scholar; Koskenniemi, Martti & Leino, Paäivi, Fragmentation of Inter national Law? Postmodern Anxieties, 15 Leiden J. Int’l L. 553 (2002)CrossRef Google Scholar (discussing the legitimacy of concerns over “institutions [using] international law to further new interests, especially those not predominant in traditional law”); Benvenisti, Eyal & Downs, George W., The Empire’s New Clothes: Political Economy and the Fragmentation of International Law, 60 Stan. L. Rev. 595 (2007)Google Scholar (discussing, inter alia, how powerful states promote fragmentation to preserve their dominance and “to reduce their accountability both domestically and internationally”).

²⁸² Cryer Et Al., supra note 42, at 198.

²⁸³ see Kaul Kenya Dissent, supra note 9. Claus Kress has noted that under Kaul’s view, the “contextual requirement of crimes against humanity... [must] amount to a ‘threat to peace.’” Kress, supra note 6, at 865.

²⁸⁴ See, e.g., Tsilonis, Victor,Thomas Lubanga Dyilo: The Chronicle of a Case Foretold, 3 Intellectum 27 (2008)Google Scholar; see also, Fairlie, Megan A., The United States and the International Criminal Court Post-Bush: A Beautiful Courtship but an Unlikely Marriage, 29 Berkeley J. Int’l. L. 528, 569 (2011)Google Scholar.

²⁸⁵ See generally Askin, Kelly D., Prosecuting Wartime Rape and Other Gender-Related Crimes Under International Law: Extraordinary Advances, Enduring Obstacles, 21 Berkeley J. Int’l L. 288 (2003)Google Scholar; Copelon, Rhonda, Gender Crimes as War Crimes: Integrating Crimes Against Women into International Criminal Law, 46 MCGILL L.J. 217 (2000)Google Scholar.

²⁸⁶ See supra notes 129–131 and accompanying text.

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Crimes Against Humanity in the Modern Age

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