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Classifying Acts as Crimes Against Humanity in the Rome Statute of the International Criminal Court

Published online by Cambridge University Press:  06 March 2019

Iris Haenen

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The law is a living organism, which is reflected by the ever-evolving landscape of international criminal law. Time and again, conflicts demonstrate the many ways in which human beings can hurt each other. The law must be able to anticipate and react to these cruelties. On the one hand, the law must be specific enough to assure legal certainty and prevent arbitrary convictions; on the other hand, it must be broad and general enough to keep up with developments in real life and cover previously unimagined behavior. Forced marriage is an example of such a criminal phenomenon, which, even though the taking of brides by the victor has for centuries been a common occurrence during conflict situations, has only recently appeared in the international limelight. When the international community is confronted with criminal practices that are not codified in the Rome Statute of the International Criminal Court, it is faced with the daunting task of legally characterizing this conduct: can the act in question be brought within the ambit of the core crimes of the Rome Statute? And if so, how is it best criminalized: as a war crime, a form of genocide, or a crime against humanity?

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German Law Journal , Volume 14 , Issue 7 , 01 July 2013 , pp. 796 - 822
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Copyright © 2013 by German Law Journal GbR 

References

1 Over the past few decades, many conflicts around the world have been marked by the abduction of women and girls who were forced into (conjugal) associations with their captors. A few examples are Sierra Leone (Chris Coulter, Bush wives and girl soldiers: Women's lives through war and peace in Sierra Leone (2009)), Cambodia (Peg LeVine, Love and dread in Cambodia: Weddings, births, and ritual harm under the Khmer Rouge (2010)), and Uganda (Khristopher Carlson & Dyan Mazurana, Forced marriage within the Lord's Resistance Army, Uganda (2008)). The case law of international criminal courts and tribunals, numerous NGO reports and literature demonstrate that the international community strongly condemns this practice and wants to hold perpetrators of these forced marriages criminally responsible (See inter alia Prosecutor vs. Brima, Kamara and Kanu, 2008 SCSL-04-16-A, Appeal Judgement (February 22); Prosecutor v. Sesay, Kallon and Gbao, 2009 SCSL-04-15-A, Appeal Judgement (October 26); Case of Nuon Chea, leng Sary, Khieu Samphan & leng Thirith, 2010 ECCC 002/19-09-2007/ECCC/OCIJ, Closing Order (September 15); Jain, Neha, Forced Marriage as a Crime Against Humanity: Problems of Definition and Prosecution, 6 JICJ 1013, 1022–1025 (2008); Watch, Human Rights, “We'll kill you if you cry” Sexual Violence in the Sierra Leone Conflict, January 2003, available at: http://www.hrw.org/reports/2003/01/15/well-kill-you-if-you-cry (last accessed: 27 June 2013).Google Scholar

2 As of 2017, the International Criminal Court will also exercise jurisdiction over the crime of aggression, see Resolution 6 of the Review Conference, Jun. 11, 2010, C.N. 651.2010.Google Scholar

3 This article focuses on crimes against humanity only. The classification of conduct as a war crime, form of genocide or aggression falls outside of the scope of this article.Google Scholar

4 See Robert Cryer, Prosecuting international crimes: selectivity and the international criminal law regime 9–72 (2005).Google Scholar

5 Instead, states are obliged by treaty to criminalize the offences in their domestic laws Paola Gaeta, International criminalization of prohibited conduct, in Oxford Companion to International Criminal Justice 63, 63–65, 69–70 (Antonio Cassese ed., 2009); and Cryer, Robert, The doctrinal foundations of international criminalization, in International criminal law. Volume I: Sources, subjects and contents 107, 109 (Mahmoud Cherif Bassiouni ed., 2008).Google Scholar

6 Milanović, Marko, Is the Rome Statute binding on individuals? (And why we should care), 9 JICJ 25, 28 (2011); and Cryer, , supra note 5, at 108–109. The core crimes, i.e. those crimes over which the ICC and other international criminal courts and tribunals have jurisdiction, refer to the crimes of genocide, war crimes, crimes against humanity and aggression.Google Scholar

7 Mahmoud Cherif Bassiouni, Crimes against humanity in international criminal law, 253 (1999); Cryer, , supra note 5, at 119–120. The first initiatives regarding criminalization of core international crimes date back to the 1919 report of the Commission on the Responsibility of the Authors of the War and on the Enforcement of Penalties and to the 1919 Treaty of Versailles after the First World War (see Cryer, supra note 4, at 32–35).Google Scholar

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12 The ICC will have jurisdiction over the crime of aggression once the States Parties have activated the jurisdiction, which will happen after January 1, 2017, see Resolution 6 of the Review Conference, supra note 2.Google Scholar

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14 Id. at 66–67, 72.Google Scholar

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17 Saul, Ben, Reasons for defining and criminalizing ‘terrorism’ in international law, The University of Sydney, Sydney Law School, Legal Studies Research Paper no. 08/121, 208, 210, 216 (2008); Tallgren, Immi, The sensibility and sense of international criminal law, 13 EJIL 561, 564 (2002).Google Scholar

18 See for example, Resolution E attached to the Final Act of the UN Diplomatic Conference of Plenipotentiaries on the establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF. 183/10, which provides for the possibility of including crimes of terrorism and drug crimes in the Rome Statute. This means that it is possible that in the future, these crimes will become part of the category of core crimes, and thus give rise to direct individual liability under international law. See Cryer, supra note 5, at 110.Google Scholar

19 Larry May, Crimes against humanity: a normative account 21, 64–68 (2005), also acknowledges–indeed stresses–the importance of uncovering the theoretical foundations of international criminalisation, see section B.II of this paper.Google Scholar

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22 Cryer, , supra note 5, at 133.Google Scholar

23 For an overview see Cryer, supra note 5, at 134–135. These are international crimes in the broad sense, i.e. including treaty crimes that do not create direct individual criminal responsibility. Bassiouni conducted this empirical study for the first time in 1983. In that year, he classified twenty international crimes. See Mahmoud Cherif Bassiouni, The penal characteristics of conventional international criminal law, 15 Case West. Res. J. of Int'l L. 27, 27–29 (1983). In 1999, he repeated the exercise and identified a total of twenty-five international crimes. See Mahmoud Cherif Bassiouni, Crimes against humanity in international criminal law 253 (1999).Google Scholar

24 Cryer, , supra note 5, at 133.Google Scholar

25 Pursuant to Cassese's narrower definition, piracy, trafficking in drugs, arms and humans, money laundering, slave trade and apartheid are not international crimes. See Antonio Cassese, Int'l crim. l. 12–13 (2008). These offences are classified as international crimes under Bassiouni's alternative criteria.Google Scholar

26 Id. at 11.Google Scholar

27 Cassese points out that some senior state officials, such as heads of state, may nevertheless enjoy personal immunity while they are in office. See id. at 12. However, in a recent decision of ICC Pre-Trial Chamber I in the case against the President of Sudan, Omar Al Bashir, the Pre-Trial Chamber ruled that personal immunity of former or sitting heads of state cannot be invoked to oppose a prosecution by an international court. See The Prosecutor v. Omar Hassan Ahmad Al Bashir, 2009 ICC-02/05-01/09, Decision pursuant to Article 87(7) of the Rome Statute on the failure by the Republic of Malawi to comply with the cooperation requests issued by the Court with respect to the arrest and surrender of Omar Hassan Ahmad Al Bashir (Dec. 12, 2011) at para. 36.Google Scholar

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29 It is legitimate to criminalise an act when it causes (at least a certain amount of) harm–defined as a ‘setback of interests'–and when criminalisation is aimed at the prevention of this harm. See id., at 66.Google Scholar

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32 Id. at 68–69.Google Scholar

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34 Id. at 70.Google Scholar

35 Id. at 80–95.Google Scholar

36 Id. at 81–82, 84–90.Google Scholar

37 Id. at 80, 82.Google Scholar

38 Id. at 107.Google Scholar

39 As do the other three core crimes, see Rome Statute of the International Criminal Court, Preamble (2) (3), Jul. 17, 1998, 2187 U.N.T.S. 90.Google Scholar

40 See Robert Cryer, Hakan Friman, Darryl Robinson & Elizabeth Wilmshurst, An introduction to international criminal law and procedure, 71 (2010); Gaeta, , supra note 5 at 66; Cryer, supra note 5, at 133, 138.Google Scholar

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43 See references in Cryer, Friman, Robinson & Wilmshurst, supra note 40 at 38. See e.g. remarks made by the Libyan delegation during the 6th plenary meeting held during the Rome Conference: “Western values and legal systems should not be the only source of international instruments. Other systems were followed by a large proportion of the world's population”, Summary record of the 6th plenary meeting held during the Rome Conference, Jun. 17, 1998, UN Doc. A/CONF.183/SR.6, Nov. 20, 1998, para. 83.Google Scholar

44 The same cannot be said with regard to Protocol I additional to the Geneva Conventions which concerns the protection of victims of international armed conflicts: this Protocol is less broadly ratified. See Cryer, Friman, Robinson & Wilmshurst, supra note 40, at 53.Google Scholar

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47 Gaeta, , supra note 5, at 66.Google Scholar

48 U.N. General Assembly [UNGA], Establishment of an international criminal court, Dec. 18, 1995, UNGA Resolution 50/46 of 11 December 1995; see also Bassiouni, supra note 13, at 36.Google Scholar

49 Although the general idea was that the crimes which were to be included in the Rome Statute should be the most serious crimes already established under customary international law, in the end crimes which were not (yet) part of customary international law were also included in the Statute. See Cryer, supra note 5, at 107, 118; and Valerie Oosterveld, Sexual slavery and the International Criminal Court: advancing international law, 25 Michi. J. of Int'l L. 605, 615 (2004); Hebel, Herman von, The making of the Elements of Crimes, in The International Criminal Court. Elements of Crimes and Rules of Procedure and Evidence 3, 5 (Roy Lee ed., 2001)). Certain enumerated crimes expand customary international law, in the sense that they are (or at least were at the time of codification in the Statute) broader than customary international law, examples are sexual slavery, forced pregnancy and apartheid, see Antonio Cassese, Crimes against Humanity, in The Rome Statute of the International Criminal Court: a commentary, Volume I 353, 376 (Antonio Cassese, Paola Gaeta & John Jones eds., 2002); and Antonio Cassese, International criminal law, 126 (2008). Some delegates also explicitly stated that they believed the Rome Statute could advance international law. See Valerie Oosterveld, Sexual slavery and the International Criminal Court: advancing international law, 25 Mich. J. of Int'l L. 605, 623, 625 (2004). In other words: there was no consensus among delegates with regard to the customary nature of crimes to be included in the Statute. See also Milanović, supra note 6 at 25, 32, footnote 25.Google Scholar

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51 International Criminal Court, Elements of Crimes, art. 7, para. 1 (2011).Google Scholar

52 It should be noted that some overlap already existed between crimes recognized under customary international law, such as between the crimes against humanity of murder and extermination. See Oosterveld, supra note 49, at 623.Google Scholar

53 See e.g. Prosecutor v. Dragoljub Kunarac et. al. (Trial Judgment}, 2001 I.C.T.Y. IT-96-23-T, IT-96-23/1-T (Feb. 22) [hereinafter Kunarac Trial Judgement]. In this precedent-setting case, the ICTY considered the crime of enslavement for sexual purposes (NB: enslavement was included in the ICTY Statute; sexual slavery was not).Google Scholar

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56 Oosterveld, , supra note 49, at 622; Jain, supra note 1, at 1029.Google Scholar

57 In addition, it was argued that a crime of mass starvation did not have the special recognition in international instruments that other crimes such as apartheid enforced disappearance did have. For apartheid, see e.g. Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, Nov. 26, 1968, 754 U.N.T.S. 73; International Convention on the Suppression and Punishment of the Crime of Apartheid, Nov. 30, 1973, A/RES/3068(XXVIII); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Jun. 8, 1977, 1125 U.N.T.S. 3. With regard to enforced disappearance, see The Inter-American Convention on Forced Disappearance of Persons, Mar. 28, 1996, O.A.S.T.S. 68, 33 ILM 1429. See Herman von Hebel & Darryl Robinson, Crimes within the jurisdiction of the court, in The International Criminal Court. The making of the Rome Statute: issues, negotiations, results 79, 103 (Roy Lee ed., 1999).Google Scholar

58 Prosecutor v. Jean-Paul Akayesu (Trial Judgment), ICTR-96-4-T, Sept. 2, 1998, para. 585 [hereinafter Akayesu Trial Judgement]. With regard to the category of other inhumane acts, the ICTY Trial Chamber in the Blaškić case (Prosecutor v. Tihomir Blaškić, Trial Judgment, ICTY IT-95-14-T, Mar. 3, 2000, para. 237 [hereinafter Blaškić Trial Judgement]) quoted Jean Pictet, Commentary on the 1st Geneva Convention of 12 August 1949, 54 (1952): “However much care [is] taken in establishing a list of all the various forms of infliction, one would never be able to catch up with the imagination of future torturers who wished to satisfy their bestial instincts; and the more specific and complete a list tries to be, the more restrictive it becomes.”Google Scholar

59 This was also recognised during the negotiations on the inclusion in the Rome Statute of inter alia sexual slavery, enforced disappearance of persons and apartheid. See Darryl Robinson, Defining “Crimes against Humanity” at the Rome Conference, 93 AJIL 43, 55 (1999); Hebel, & Robinson, , supra note 57, at 102. See also Cryer, Friman, Robinson & Wilmshurst, supra note 40, at 230.Google Scholar

60 The Prosecutor v. Katanga and Ngudjolo Chui (Decision on the confirmation of charges), ICC Case No. ICC-01/04-01/07, Sept. 30, 2008, para. 431. The ICC Trial Chamber and Appeals Chamber have yet to speak out on this.Google Scholar

61 Prosecutor v Charles Ghankay Taylor (Trial Judgment), SCSL-03-01-T, May 18, 2012, at paras. 422–430. Unlike in the AFRC and RUF cases (see below), forced marriage was not charged in the indictment against Charles Taylor, but the evidence adduced by the Prosecution related to charges of sexual violence did include extensive testimony by women and girls regarding so-called ‘bush marriages'. The Trial Chamber, at paragraph 422, “considered this evidence with regard to the charges in the Indictment, as well as the past jurisprudence of the SCSL with regard to this issue.”Google Scholar

62 See Hebel, & Robinson, , supra note 57, at 103.Google Scholar

63 Judgement, Akayesu Trial, supra note 58, at paras. 598, 688. The ICTY and ICTR also qualified sexual violence, forced disappearance and forced prostitution as ‘other inhumane acts'. These crimes were not included as distinct crimes against humanity in the statutes of the ICTR and ICTY, but have now been included in the Rome Statute as such. See Cryer, Friman, Robinson & Wilmshurst, supra note 40, at 265.Google Scholar

64 Prosecutor vs. Brima, Kamara and Kanu, supra note 1, at paras. 197–202. This conclusion was followed by the Co-Investigating Judges at the ECCC, who have indicted the accused in one of the cases on charges of ‘the other inhumane act of forced marriage'. See Case of Nuon Chea, leng Sary, Khieu Samphan & leng Thirith (Closing Order), ECCC 002/19-09-2007/ECCC/OCIJ, Sept. 15, 2010, at paras. 1442–1447.Google Scholar

65 As required by the first element of the crime of ‘other inhumane acts’ (see International Criminal Court, supra note 51 at Article 7(1)(k)). The ILC commenting on its 1991 Draft Code also held that an inhumane act “must in fact cause injury to a human being in terms of physical or mental integrity, health or human dignity”, as quoted in Prosecutor v. Clément Kayishema (Trial Judgment), ICTR-95-1-T, May 21, 1999, para. 150 [hereinafter Kayishema Trial Judgement].Google Scholar

66 See also Mattler, Suzanne, Memorandum for the Office of the Prosecutor of the Special Court for Sierra Leone. Issue: forced marriage as a prosecutable crime against humanity, Case Western Reserve University, School of Law, International War Crimes Research Lab 23 (2004), available at: http://law.case.edu/war-crimes-research-portal/memoranda/SMattler.pdf (last accessed: 27 June 2013).Google Scholar

67 Murder and extermination are two crimes against humanity which overlap.Google Scholar

68 Oosterveld, supra note 49, at 638, footnote 149. The argument that a crime must have a unique element was also raised by the Holy See in relation to the crime of enforced pregnancy. The Holy See argued, together with several Catholic and Arab countries, that the elements of this crime were already covered in the Draft Rome Statute by the offences of rape and unlawful detention, which made inclusion of a specific crime of enforced pregnancy unnecessary in their view. See Cate Steains, Gender issues, in The International Criminal Court. The making of the Rome Statute: Issues, negotiations, results 357, 367 (Roy Lee ed., 1999). Delegates from Bosnia and Herzegovina, however, argued that a specific criminalisation of this offence was needed because it has a different criminal purpose (i.e. making and keeping a woman pregnant, for example to change the ethnic composition of a population) than other forms of sexual assaults. See Discussion Paper: Delegation of Bosnia and Herzegovina (crime of enforced pregnancy), Rome Conference Preparatory Works, 15 April 1998, available at: http://www.legal-tools.org/en/go-to-database/ltfolder/0_15715/#results (last accessed: 27 June 2013). It should be noted that the main reason the Holy See had for arguing that forced pregnancy should not be included, was that it (along with a few Catholic and Arab countries) was concerned that a crime of forced pregnancy might oblige national systems to allow women who were forcibly impregnated to abort the fetus, and would in that way in fact create a right to abortion. See Hebel & Robinson, supra note 57, at 100; and Cate Steains, Gender issues, in The International Criminal Court. The making of the Rome Statute: Issues, negotiations, results 357, 366–367 (Roy Lee ed., 1999).Google Scholar

69 Prosecutor v. Delalić, Mucić, Delić and Landžo (Appeal Judgment), ICTY IT-96-21-A, Feb. 20, 2001, para. 412 (hereinafter “Čelebići Appeal Judgement”).Google Scholar

70 Saul, , supra note 17, at 245.Google Scholar

71 With regard to criminalising terrorism in international law, see id. at 247 (2008).Google Scholar

72 Id. at 210.Google Scholar

73 The ICTY Trial Chamber declared that the charge of ‘other inhumane acts’ is generic and encompasses a series of criminal activities that are not explicitly enumerated. See Blaškič Trial Judgement, supra note 58, at para. 237.Google Scholar

74 See e.g. the preliminary observations of the Prosecution in the Stakić case with regard to the classification of forcible transfer as an inhumane act. The prosecutor submitted that forcible transfer is an inhumane act which ‘is not a lesser offence included in the crime of deportation.’ The Trial Chamber disagreed and held that forcible transfer was in fact included in the crime of deportation. See Prosecutor v. Milomir Stakić (Trial Judgment), ICTY IT-97-24-T, Jul. 31, 2003, paras. 716, 722 [hereinafter “Stakić Trial Judgement”]. The Appeals Chamber reversed this judgement and held that forcible transfer as an ‘other inhumane act’ and deportation are in fact conceptually different. See Prosecutor v. Milomir Stakić (Appeal Judgement), ICTY-IT-97-24-A, Mar. 22, 2006, para. 321 [hereinafter “Stakić Appeal Judgement”].Google Scholar

75 Jain, , supra note 1, at 1028, referring to the Kayishema Trial Judgment, supra note 65, at para. 150. See also Prosecutor v. Mitar Vasiljević (Trial Judgment), ICTY IT-98-32-T, Nov. 29, 2002, para. 234; Prosecutor v. Dario Kordić & Mario Čerkez (Trial Judgment), ICTY IT-95-14/2-T, Feb. 26, 2001, at para. 269.Google Scholar

76 For concerns with regard to formulating duplicitous crimes (in particular with regard to forced marriage), see also Michael Scharf, Forced marriage: exploring the viability of the Special Court for Sierra Leone's new crime against humanity, in African Perspectives on ICJ 77, 95 (Evelyn Ankumah & Edward Kwakwa eds., 2005).Google Scholar

77 Čelebići Appeal Judgement, supra note 69, at paras. 412–413.Google Scholar

78 On March 14, 2012, the ICC issued its first ever judgment. The Lubanga case concerned only one crime (the war crime of child soldiering); the issue of cumulative convictions therefore did not arise. See Prosecutor v. Thomas Lubanga Dyilo (Trial Judgment), ICC-01/04-01/06, Mar. 14, 2012.Google Scholar

79 At the pre-trial stage, the ICTY allows the prosecutor to cumulatively charge offences for the same conduct, since at an early stage of the trial, it is difficult for prosecutors to know precisely which charges will ultimately be proven. See Čelebići Appeal Judgement, supra note, at para. 400; Saul, supra note 17, at 249. However, in earlier case law, the ICTY Trial Chamber judged otherwise: “the Prosecutor may be justified in bringing cumulative charges when the Articles of the Statute referred to are designed to protect different values and when each Article requires proof of a legal element not required by the others”. See Prosecutor v. Kupreškić et al. (Decision on the Defence challenges to form of the Indictment), ICTY IT-95-16-T, May 15, 1998.Google Scholar

80 Prosecutor v. Jean-Pierre Bemba Gombo (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo), ICC-01/05-01/08-PT, Jun. 15, 2009, para. 202 [hereinafter “Bemba Gombo Decision on the Confirmation of Charges”].Google Scholar

81 Bemba Gombo Decision on the Confirmation of Charges, supra note 80 at para. 202. The Pre-Trial Chamber recognised that the practice of cumulative charging is widely accepted before other international criminal bodies, but pointed to the unique context of the ICC: in contrast to the Trial Chambers of the ad hoc Tribunals, the ICC Trial Chamber is authorised to modify the legal characterisation of facts and give them the most appropriate legal characterisation and is therefore actively involved in determining (and, when necessary, correcting) the charges. See International Criminal Court, Regulations of the Court, ICC-BD/01-02-07, reg. 55, Dec. 18, 2007. Therefore, the Pre-Trial Chamber held, the necessity of cumulative charging before the ICC differs from the necessity of presenting all possible characterisations to the ICTY and ICTR, and this justifies a departure from the general practice of allowing cumulative charging without any restrictions. See Bemba Gombo Decision on the Confirmation of Charges, supra note 80, at para. 203. See also Prosecutor v. Ayyash et al. (Amicus Curiae Brief respecting the practice of cumulative charging before international criminal bodies, submitted by The War Crimes Research Office at the American University Washington College of Law), STL-11-01/I, Feb. 10, 2011, at 11, 15.Google Scholar

82 The Pre-Trial Chamber included in the arrest warrant charges of both murder and extermination as crimes against humanity based on the same facts, even though the former crime is subsumed within the latter. See Prosecutor v. Omar Al Bashir (Decision on the Prosecution's Application for a Warrant of Arrest against Omar Al Bashir), ICC-02/05-01/09-PT, Mar. 4, 2009, paras. 95–96. See also Prosecutor v. Ayyash et al. (Amicus Curiae Brief respecting the practice of cumulative charging before international criminal bodies, submitted by The War Crimes Research Office at the American University Washington College of Law), supra note 81, at 13–14.Google Scholar

83 This is also emphasized by the ICC's Elements of Crime introductory paragraph to crimes against humanity. See International Criminal Court, supra note 51.Google Scholar

84 The ICTY Trial Chamber declared that the charge of ‘other inhumane acts’ is generic and encompasses a series of criminal activities that are not explicitly enumerated. See Blaškić Trial Judgement, supra note 58, at para. 237.Google Scholar

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87 Article 7(1)(k) Rome Statute refers to “[o]ther inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.” See Rome Statute of the International Criminal Court, supra note 39, at art. 7(1)(k).Google Scholar

88 International Criminal Court, supra note 51, at Article 7(1)(k). Elements 4 and 5 concern the chapeau requirement of crimes against humanity.Google Scholar

89 The eiudem generis standard is an accepted rule of interpretation in international criminal law and is not regarded as a violation of the ban on analogy. See Case 002 Decision on Appeals by Nuon Chea and leng Thirith against the Closing Order, supra note 86, at para. 161. See also Antonio Cassese, International criminal law 49 (2008).Google Scholar

90 Rome Statute of the International Criminal Court, supra note 39, at art. 7(1)(g).Google Scholar

91 The Prosecutor v. Vlastimir Đorđević (Trial Judgment), ICTY IT-05-87/1-T, Feb. 23, 2011, para. 1610 [hereinafter “Đorđević Trial Judgement”]; Prosecutor v. Momcilo Krajišnik (Appeal Judgment), ICTY IT-00-39-A, Mar. 17, 2009, at para 331. For the ICTR, see inter alia Prosecutor v. Eliézer Niyitegeka (Trial Judgment), ICTR-96-14-T, May 16, 2003, para. 460 [hereinafter “Niyitegeka Trial Judgement”].Google Scholar

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94 Cryer, Friman, Robinson & Wilmshurst, supra note 40, at 291.Google Scholar

95 Prosecutor v. Delalić, Mucić, Delić and Landžo (Trial Judgment), ICTY IT-96-21-T, Nov. 16, 1998, at para. 511.Google Scholar

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98 Đorđević Trial Judgement, supra note 91, at para. 1611. Dörmann, supra note 92, at margin number 22.Google Scholar

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100 Kupreškić et al. Trial Judgement, supra note 85, at para. 565.Google Scholar

101 Kupreškić et al. Trial Judgement, supra note 85, at para. 565. The ICTR has also referred to the ICC Elements of Crime in the context of other inhumane acts. See Kayishema Trial Judgement, supra note 65, at para. 150.Google Scholar

102 Kupreškić et al. Trial Judgement, supra note 85, at para. 564.Google Scholar

103 Kupreškić et al. Trial Judgement, supra note 85, at para. 566.Google Scholar

104 Kupreškić et al. Trial Judgement, supra note 85, at para. 566.Google Scholar

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106 Antonio Cassese, International criminal law 99 (2008), as referred to in Natalae Anderson, Memorandum charging forced marriages as a crime against humanity, Documentation Center of Cambodia, Sept. 22, 2010 52, available at: http://www.d.dccam.org/Abouts/Intern/Natalae_Forced_marriage.pdf. (last accessed: 27 June 2013); Saul, , supra note 17, at 233.Google Scholar

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108 Draft report of the Commission on the work of its forty-third session, Draft Code of Crimes against the Peace and Security of Mankind, Article 21, UN Doc. A/CN.4/L.464/Add.4, Jul. 15, 1991.Google Scholar

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113 As an illustration, Article 24 UDHR stipulates that “everyone has the right to […] periodic holidays with pay.” It is difficult to imagine a violation of this right in itself amounting to an inhumane act. See Universal Declaration of Human Rights, art. 24, UN G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948).Google Scholar

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115 In its comments on Article 18 of its Draft Code of Crimes, the International Law Commission stated that the category of ‘other inhumane acts’ “is intended to include only additional acts that are similar in gravity to those listed in the preceding subparagraphs. Second, the act must in fact cause injury to a human being in terms of physical or mental integrity, health or human dignity”. See Report of the International Law Commission on the Work of its Forty-Eighth Session, May 6-Jul. 26, 1996, UN G.A. A/51/10 (Supp. No. 10) (Crimes Against the Peace and Security of Mankind) 103, at para. 17.Google Scholar

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118 Prosecutor vs. Brima, Kamara and Kanu (Appeal Brief of the Prosecution), SCSL-04-16-A, Sept. 13, 2007, para. 606. These acts are now listed as crimes against humanity in the Rome Statute. See Rome Statute of the International Criminal Court, art. 7(1)(d) - 7(1)(g), 7(1)(i), Jul. 17, 1998, 2187 U.N.T.S. 90. These crimes, with the exception of enforced disappearance of persons, are also included in the SCSL Statute.Google Scholar

119 The Assembly can deal with the proposed amendment directly or convene a Review Conference pursuant to the Rome Statute of the International Criminal Court, supra note 39, at article 123(2).Google Scholar

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