THE DISTINCTION OF CRIMES AGAINST HUMANITY IN ICTY & ICC

Chapter I

INTRODUCTION

The development of modern international criminal law must be seen against the backdrop of the various conflicts of the late 19^th and the 20^th Centuries. Some of these conflicts were relatively narrow whereas others were engaged in on a massive scale or other massacres. As a result, many attempts were made, usually in the aftermath of such a conflict, to codify rules of engagement in armed conflict and to define a set of core crimes that reflect behavior that can never be tolerated in any conflict at all.

The most influential publicist on the topic of crimes against humanity, Cherif Bassiouni, has pointed out that in the popular mind the term crimes against humanity means anything atrocious committed on a large scale.[1] As we can see, this general description is useful as a conceptual starting point but the modern law reveals crimes against humanity to be fairly specific and sometimes elusive. The concept of crimes against humanity was used firstly in the Charter of the Nuremberg Tribunal in 1945.

            Then, the development of the concept of crimes against humanity has continued. In 1993, by establishing the ad hoc tribunal or international criminal tribunal for Yugoslavia (ICTY) and international criminal tribunal for Rwanda (ICTR) also give new definition of crimes against humanity and its elements as well. Both of two concepts or definitions of crimes against humanity were influenced by the concept of crime against humanity in Nuremberg articulation. These tribunals were set up for the purpose to prosecute the perpetrators committed crimes against humanity in Yugoslavia and Rwanda by United Nation’s resolution.

In addition, by establishing both two earlier tribunals is the way of international community to establish a permanent court, ICC, which has purpose for prosecuting extra ordinary crimes which comprise war crime, crimes against humanity, genocide and aggression. However this research is focusing on crime against humanity. The charter of the permanent court also gives different definition, the offences and elements of crimes against humanity. Thus, crimes against humanity in ICC and ICTY is not so similar. This research want to provide further information regarding the differences of crimes against humanity in ICTY and ICC.

Chapter II

Theoretical Basis

            The first “official” international use of the concept of crime against humanity dates back to May 24, 1915. On that day, the governments of France, Great Britain and Russia issued a joint declaration condemning the deportation and systematic extermination of the Armenian population of the Ottoman Empire and denouncing these acts as constituting “new crimes against humanity and civilization” for which all members of the Turkish government would be held responsible together with its agents implicated in the massacres.[2]

A few years later, at the 1919 Paris Peace Conference, the Commission on the Responsibilities of the Authors of War and on Enforcement of Penalties for Violations of the Laws and Customs of War failed to define the new concept. However, the Commission repeatedly used the expressions “crimes-” or “offenses against the laws of humanity” clearly dissociated from “war crimes” or “offenses against the laws and customs of war”: the necessity to create a new legal concept for the designation and the incrimination of a specific form of State criminality, independent of the strict context of war, was undoubtedly recognized.[3]

The majority of commission supported the establishment of a tribunal with criminal jurisdiction over all persons of enemy countries that were found have violated the laws of war or the laws of humanity. However, The Treaty of Versailles and the Treaty of Sevres, which provided for the prosecution of the German Kaiser and Turkish major war criminals respectively were never implemented in this respect.

Hence, in 1945, there is a Tribunal by which is established to prosecute the violators who commit war crime, crime against humanity, and genocide during World War II. The tribunal is namely Nuremberg tribunal and the charter of its tribunal had defined the term of crimes against humanity as well (as mentioned in Chapter I). Subsequently, the definition of crime against humanity has adopted by International Military Tribunal for Far East which take place  in Tokyo to prosecute Japanese war criminals during second World War. The concept of crimes against humanity was used firstly in Art 6(c) of the Charter of the Nuremberg Tribunal in 1945.[4] This read as follows:

Crimes against Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of, or in connection with, any other crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

Until the establishment of International criminal tribunal for the former of Yugoslavia (ICTY) in 1993 and the incorporation therein of Art 5  there is no other international definition of crimes against humanity reappeared since the Nuremberg Statute. Nevertheless, a number of national prosecutions took place through the use of domestic statutes, which, although influenced by the Nuremberg articulation, proved to be significant factors in the gradual development of the concept of crimes against humanity.[5]

                       

Chapter III

Analyzing

A.   Crimes Against Humanity in ICTY

In ICTY statute, the provision of crime against humanity is regulated in Art 5. The ICTY jurisprudence has been largely responsible for its quick evolution and detailed elaboration. Article 5 of the ICTY statute encompasses offences committed in armed conflict, whether International or internal in character, being a part of overall attack any civilian population directly. Hence, there are five elements that comprise this offence under the ICTY statute are:

a.       Existence of an attack;

b.      The perpetrators acts must be part of the attack;

c.       The attack must be directed against any civilian population;

d.      The attack must be widespread or systematic; and

e.       The perpetrator must know of the wider context in which his acts occur and know that his acts are part of the attack

There is a list of offences which may constitute an attack under the concept of crime against humanity in ICTY. They consist of

a.       murder;

b.      extermination;

c.       enslavement;

d.      deportation;

e.       imprisonment;

f.       torture;

g.      rape;

h.      persecution on political, racial and religious grounds;

i.        other inhumane.

The ICTY definition also has retained the armed hostilities nexus of the Charter of Nuremberg Tribunal obviously, but has accepted jurisdiction irrespective of the nature of the conflict. The ICTY Appeals Chamber in the Tadic case held that Art 5 was narrower than customary international law, which no longer requires any nexus to armed conflict. This aspect of customary law (that is, the absence of a nexus to armed conflict) is reflected in Art 3 of the ICTR Statute, which, however, requires the existence of a discriminatory intent on national, political, ethnic, racial or religious grounds.[6] In Art 5 of ICTY statute requires discriminatory only with regard to the specific offence of persecution.

In article 3 of the ICTR statute further qualifies an attack as crime against humanity when it is perpetrated in widespread or systematic fashion. This last element requiring a widespread or systematic attack, although not expressly articulated in art 5 of the ICTY statute, follows the customary definition of crimes against humanity and was early elaborated by ICTY Chambers. In addition, International law requires that only overall attack, and not the underlying offences, be widespread or systematic. This is mean that a single offence could be regarded as a crime against humanity if it takes place under the umbrella of a widespread or systematic attack against a civilian population.

The Blaskic judgment held that the term ‘systematic’ requires the following ingredients:

a.       The existence of a political objective, a plan pursuant to which the attack is perpetrated or an ideology that aims to destroy, persecute or weaken a community;

b.      The perpetration of a crime on a large scale against a civilian group, or the repeated and continuous commission of inhumane acts linked to one another;

c.       The preparation and use of significant public or private resources, whether military or other; and

d.      The implication of high-level political and/or military authorities in the definition and establishment of the plan.[7]

In addition, the Akayesu judgment defined a systematic attack as one that is ‘thoroughly organized and following a regular pattern on the basis of a common policy involving substantial public or private resources’.[8] Moreover, the existence of a plan does not have to be expressly declared, nor clearly and precisely stated, in order to prove the systematic element of crimes against humanity, although if such is found it will be useful from an evidentiary point of view.[9]

Meanwhile, the term widespread of element of crimes against humanity is easier to substantiate, it refers to the number of victims and the scale of the acts perpetrated. The judgment of Akayesu has defined the element of ‘widespread’ as ‘massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims’.[10] Besides that, in crime against humanity, the perpetrators are engaging in particular unlawful acts with the knowledge and committing those acts on a widespread scale or based on a policy against civilian population. Thus, a single unlawful act which is perpetrated with the knowledge that it is part of an overall attack directly against a civilian population constitutes a crime against humanity as well.  

B.   Crimes Against Humanity in ICC

In ICC the number of offences which constitute an attack under concept of crime against humanity are different than the number of offences that was found in ICTY statute. The general threshold for crimes against humanity in ICC statute is laid down in Article 7 (1), comprising any act contained in an exhaustive list of offences when committed ‘as part of a widespread or systematic attack’ against any civilian population. Then, the concept of an ‘attack’ in the ICC statute is regulated in Art 7(2)(a) that mentions a ‘course of conduct involving the multiple commission of acts pursuant to or in furtherance of a state or organizational policy to commit such attack’. The mens rea for crimes against humanity in ICC requires that the perpetrator act with knowledge that his or her underlying offence was part of an overall widespread or systematic attack against civilian population and the elements of the particular offence be proven.[11]

However, unlike the ICTY statute, in Art 7 of ICC statute does not require a nexus to an armed conflict or a discriminatory intent. The persecution as crime against humanity in the ICC context refers only to extreme forms of discrimination with has a criminal character clearly. Moreover, persecution can only be characterized as a crime against humanity if it is linked to any of the other 10 acts articulated in Art 7 or any other offence within the jurisdiction of the court. Besides that, the ambit of offence of a sexual nature comprising crimes against humanity has been considerably expanded in comparison to the ICTY statute, including sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any form of sexual violence of comparable gravity.[12] This is the offences which is regulated in Art 7 of ICC statute:

a.       Murder;

b.      Extermination;

c.       Enslavement;

d.      Deportation or forcible transfer of population;

e.       Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

f.       Torture;

g.      Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

h.      Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

i.        Enforced disappearance of persons;

j.        The crime of apartheid;

k.      Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

Chapter IV

Conclusion

            To sum up, in crime against humanity, the perpetrator that commit crimes against any civilian population can only be punished if the violator has fulfilled all elements of the offence. The term and the elements of crime against humanity in ICTY and ICC are not so different. In the one hand, ICC statute also requires elements of crime against humanity as same as in the ICTY. On the other hand, there are several differences between crime against humanity in ICTY statute and ICC statute as well, including the term of sexual violence is more expand in ICC statute rather than in ICTY statute and ICC statute does not require a nexus to an armed conflict or a discriminatory intent, whereas ICTY requires a nexus to an armed conflict.

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[1] Crimes Against Humanity, in Crimes of War – The Book http://www.crimesofwar.org/the book/crimes-against-humanity.html. His monumental work, Crimes Against Humanity in International Criminal Law (2d rev. ed., 1997), remains the gold standard on this subject. See the extensive review of Bassiouni’s book by Ambos, (2003) 14 Criminal Law Forum 225.  

[2]  Sévane Garibian, Crime against Humanity, Online Encyclopedia of Mass Violence, [online], published on 19 June 2008,

[3]  Idem

[4]  Ilias Bantekas and Susan Nash, International Criminal Law(Third Edition). 1945 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 82 UNTS 279. See E Schwelb, ‘Crimes Against Humanity’, 23 BYIL (1946), 178; B Van Schaack, ‘The Definition of Crimes Against Humanity: Resolving the Incoherence’, 37 Columbia J Trans L (1999),787.

[5]  Ilias Bantekas and Susan Nash, International Criminal Law(Third Edition).

[6]  ICTY Prosecutor v Tadic, Appeals Jurisdiction Decision (2 Oct 1995), paras 140-41

[7]  ICTY Prosecutor v Blaskic, Trial Chamber Judgment (3 March 2000), para 203

[8]  ICTR Prosecutor v Akayesu, Trial Chamber Judgment (2 Sept 1998), para 580.

[9]  Blaskic Trial Judgment, note 26, para 204

[10]  Akayesu Trial Judgment, note 27, para 580.

[11]  Ilias Bantekas and Susan Nash, International Criminal Law(Third Edition).

[12]  Art 7(1)(g), ICC Statute