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- ICC OTP requests authorisation to open an investigation into the Myanmar situation: three comments
- Q&A regarding the “Q&A REGARDING APPEALS CHAMBER’S 6 MAY 2019 JUDGMENT IN THE JORDAN REFERRAL RE AL-BASHIR APPEAL”
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Category Archives: Crimes against Humanity
By Catherine Harwood, Grotius Centre for International Legal Studies
The use of chemical weapons in Syria in August 2013 has generated widespread international outrage. International actors have condemned the use of chemical weapons and have employed the language of international criminal law to convey the severity of the violation. The UN Secretary-General stated that “[a]ny use of chemical weapons anywhere, by anybody, under any circumstances, would violate international law. Such a crime against humanity should result in serious consequences for the perpetrator.” Similar sentiments were expressedby the Bureau of the Parliamentary Assembly of the Council of Europe. US President Obama also labelledchemical weapons “a crime against humanity, and a violation of the laws of war”. The use of chemical weapons is prohibited under both conventionaland customaryinternational law and may be prosecuted as a war crime. But does the prohibition extend to liability under international criminal law as a crime against humanity?
Many voices have called on the Security Council to refer Syria to the ICC. Although practical prospects of referral remain doubtful, the ICC is in principle an appropriate institution to conduct international prosecutions regarding the situation in Syria. If a prosecution is initiated, many may expect to see the use of chemical weapons reflected in the charge sheet. In light of this, the question whether the use of chemical weapons could amount to a crime against humanity is explored by reference to the Rome Statute. This inquiry explores the statements by the UN Secretary-General and others that any and all uses of chemical weapons amount to crimes against humanity.
The ICC should resist its "Boy Scout Mentality" in relation to Vatican "Crimes against Humanity" for child abuse
Cross posted on the Invisible College
Earlier this week, the Center for Constitutional Rights (CCR) submitted, on behalf of the Survivors Network of Those Abused by Priests, a communication to the International Criminal Court requesting that an investigation be opened for Crimes against Humanity committed by high-level Vatican officials.
In a nutshell, the submission argues that there is evidence of widespread and systematic abuse (both rape and torture) of a civilian population by priests in a number of countries and that the Vatican, and more specifically Joseph Ratzinger, both in his former capacity as Prefect of the Congreation of the Doctrine of the Faith, and current capacity as Pope Benedict XVI, should be held liable for covering this up, even to the point of promoting it (this last point is a little ambiguous and I’ll return to it later).
This idea has been floating around for a while now. Geoffrey Robertson published a book last year arguing for such an approach. I remain skeptical however and think that there are a number of difficulties with the submission.
As a preliminary remark, one should remember that the Prosecutor is under no obligation to proceed from here, neither to open a preliminary examination, nor, of course, to open a formal investigation. The submission by the CCR does not “trigger” the jurisdiction of the ICC, as would a referral by a State Party of the Security Council, and the OTP is not even under an obligation to respond to the submission (although it claims that, for reasons of transparency, it generally will “aim” to respond to communications).
I would like to comment on three aspects: jurisdiction, the scope of the situation, and finally on whether the crime is actually constituted.
First of all, it should be pointed out that the Prosecutor, should it proceed with an investigation, would only be able to look into crimes that were committed after the entry into force of the Statute in July 2002. Moreover, he will only be able to look at alleged crimes that took place, either on the territory of a State Party or by a national of a State Party. In this sense, it explains why the Communication includes the United States and one alleged american perpetrator, to the extent that the crimes in the US could have been committed by nationals of State Parties and that the American Citizen might have committed crimes on the territory of State Parties.
- The scope of the situation
Second of all, the submission raises the question of the scope of the “situation” that would be the object of an investigation. Traditionally, situations have been expected to be limited in some way, especially from a territorial perspective. Up to now, this has been the case for all the situations looked into by the Court. The CCR submission, if it was followed would therefore be a first in the history of the Court, by defining a situation through a unity of crimes and alleged perpetrators exclusively, rather than through a territorial criteria. It should be pointed out that this is an implicit consequence of the reasoning of the CCR, because they don’t actually explicitely deal with this issue. Three brief comments on this.
1) One should remember that the ICC Statute does not define what a situation is. Therefore, as I’ve discussed before in relation to the Libya Referral, any challenges to the scope of a situation faces this difficulty of having no statutory guidelines on which to base such a challenge. The case-law has suggested some limitations to the scope of a situation, but these are vague enough for anybody to argue that they could be extended to cover the events in the current submission.
2) It remains that there might be a difficulty with the submission when one considers not so much the concept of “situation” in general, but consider it in relation to the other ICC distinction, namely a “case”. Indeed, I might not be able to define a situation, but what the CCR is describing in its communication certainly appears to me to be a “case”: they identify a crime, the perpetrators and the mode of liabity. In this sense, the OTP, even should it accept a broader approach to a “situation”, would be in violation of the Statute and the rights of the defense should it define the situation in the terms used by the CCR.
3) Which leaves the question open of how this situation would be phrased. One option would be to open a distinct investigation into each of the countries named by the CCR, but in practice, it would still require that it be shown that the crime is constituted based on a transnational policy.
- Is the alleged crime of “Crimes against Humanity” actually constituted? (and another rant on the confusion between HR and ICL…)
Which brings me to my third point : there is the major issue of whether Crimes against Humanity are indeed constituted. There is no doubt that the abuse in the catholic church has been widespread and systematic. Where the communication fails to convince, is on the organizational element required by the Elements of the Crimes in the following way:
“Attack directed against a civilian population”[…] is understood to mean a course of conduct […] pursuant to or in furtherance of a State or organizational policy to commit such attack. […] It is understood that “policy to commit such attack” requires that the State or organization actively promote or encourage such an attack against a civilian population.
A footnote to this paragraph specifies that:
A policy which has a civilian population as the object of the attack would be implemented by State or organizational action. Such a policy may, in exceptional circumstances, 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
How does this apply to the current situation? For one, no one seems to be arguing that the Vatican set up an actual policy to perpetrate widespread and systematic abuse against persons in the care of priests. It is their “deliberate failure to take action” which is put forward. However, even if the conduct of Church authorities is subject to criticism, I think it falls short of showing that it was “consciously aimed at encouraging such attack”. In this sense, when the communication says that the Vatican has been dealing with such situations in ways that ensured such violence would continue”, I think it still does not establish intent, even by omission.
In relation to this, the reasoning of the CCR is even more confusing as regards the modes of liability put forward. Indeed, the CCR is clearly confusing the constitutive elements of the crime and the modes of liability. Let me explain. The CCR considers three possible modes of liability: superior responsibility (Article 28), contribution (25(3)(d)) and aiding and abetting (25(3)(c)). All these modes of liability have in common to be “subsidiary” to the main crime, which still has to be constituted. But the CCR does not do that. It would have to show that independently of the Vatican, its officials are claimed to “only” be the accomplice, the priests that committed the abuse acted under a plan or policy that they had set up, which, again, is not argued here. Indeed, without an established Vatican policy there is nothing that links the individual cases of abuse in a sufficiently organisational way to constitute a crime against humanity.
The consequence of this is that the Vatican officials are either responsible for “direct” commission under 25(3)(a), or not responsible at all. But they cannot be held complicit for a crime that is not constituted independently of them. Which leaves us with one, arguably progressive, but at least coherent way of putting the case forward. It is the systematic cover up of this widespread abuse that constitutes the crime against humanity, not the abuse itself. This would mirror the development under human rights law of positive obligations, whereby if the State does not prevent the violation of a right under the ECHR, for example, by a third party, it is held responsible for the violation of that right. This reasoning would at least solve the issue of the modes of liability and the constitution of the crime.
However, and regular readers of this blog won’t be surprised, I am not in favour of such an approach. This communication illustrates once again the slow (and apparently inevitable) blurring of the line between human rights and international criminal law. For me, widespread and systematic human rights violations do not necessarily constitute crimes under international law. These are related, but conceptually distinct domains that should remain distinct. In relation to this, it is unsurprising that the Communication relies heavily on the ICC Pre-Trial Chamber decision that authorized the opening of the investigation in the Kenya situation. I criticised it at the time, agreeing with the dissenting opinion of Judge Kaul, for broadening too much the scope of Crimes against Humanity. I expressed similar doubts in relation to the reference to Crimes against Humanity in the Libyan Arrest warrants. In a way, you can’t blame the CCR for its communication. It’s a direct consequence of all-encompassing conceptually blurred approach to crimes against humanity by the ICC judges themselves that is to blame. The conduct of the Church in past decades is certainly appalling, requires the utmost attention and should be dealt with accordingly, but, but I remain convinced that the ICC is not the right forum.
Hopefully, the Prosecutor and judges will not fall victim once again to the “boy scout mentality”, which leads them to systematically want to save the world with two twigs and a piece of rope, even if someone else might have a far better set of tools…
UPDATE: Of course, another angle to approach this is from a PR perspective. It is clearly the ambition of the CCR to get media attention over the issue. This plays into the general trend of trying to get the ICC involved in every situation, to get some news coverage. Indeed, no situation seems to escape this trend (Palestine, Syria, Tunisia…). As discussed above, I disagree with this conceptually, but I have to admit that it is certainly effective. Thanks Joe for pointing this out.
Khaddafi Arrest Warrant: Some Thoughts on the arrest "obligations" and Crimes against humanity as the new "crime of crimes"
In my last post, I considered one of the political aspects of the indictment against Khaddafi in relation to the Peace vs. Justice debate.
Today, some quick thoughts on the legal dimension of the request for arrest warrants. The situation in Libya indeed raises a number of interesting issues which I am particularly fond of. I won’t delve into the question of the actual legality of security council referrals. I’ve said in the past that I was skeptical about the mechanism as a whole, because i don’t believe the SC has the power to bind a state not party to a treaty to that treaty, and more particularly discussed the legality of Resolution 1973 here (don’t forget to read the comments section, it raises some quite interesting ideas on the extent of Security Council powers.
I also will not insist on the issue of head of state immunity that is raised here, for the second time at the ICC after the Bashir case. Dapo Akande, over at EJIL Talk! argues that because SC resolution binds Libya to the Statute of the ICC, it must abide by article 27 which removes immunity. Needless to say, given my previous remarks, that I disagree with this analysis. At best, SC 1973 obliges Libya to cooperate with the Court, but within the limits of its international rights and is not bound by the actual content of the Statute.
- Third State obligations in relation to arrest warrants
One notable point that comes up in relation to the request for the arrest warrants is what they would, if granted, require of other states. As I have argued before, I don’t believe that the issuance of an arrest warrant automatically creates an obligation for state parties to the ICC to arrest the person in the absence of a specific request under 89(1). Moreover, I have also argued that the general requests to all states under 89(1), irrespective of actual knowledge of the presence of the accused on the state’s territory, seemed contrary to the drafting of that article. This argument seemed to me like a shot in the dark, given the practice of the court in wholesale notifications… But apparently the ICC Prosecutor agrees with me (which also means that for once, I agree with the ICC Prosecutor…)! Indeed, in the request for arrest warrants, the Prosecutor points out in the request that :
65. The Office submits that, if this Application is granted and the Court proceeds to issue warrants of arrest, the Court should exclusively transmit a request for the arrest of the suspects to Libyan authorities.
66. This would conform with the requirements of Article 89(1) which provides “The Court may transmit a request for the arrest and surrender of a person, together with the material supporting the request outlined in article 91, to any State on the territory of which that person may be found and shall request the cooperation of that State in the arrest and surrender of such a person”. Addressing a request at this stage to other States on whose territory, according to the information available, the suspects are not physically present would appear superfluous and contrary to the express scheme foreseen in Part 9.
Dapo Akande finds this position strange, because it suggests that the approach adopted in the Bashir case was contrary to the statute. But I think that the Prosecutor is perfectly right in his reading of article 89(1) and that indeed, the previous practice of the court was contrary to the statute. Apparently, someone at the OTP is reading this blog and some credit would have been nice…
- Crimes against Humanity as the new crime of choice?
A second notable point is the crimes for which the warrants are sought. The “Tripoli Three”, as Mark Kersten has aptly named them, would be charged, according to the request, for two counts of crimes against humanity. This raises a number of questions. The first one relates to the question of whether counts of war crimes could also have been possible (see Dapo Akande’s discussion of whether there was in fact an armed conflict in Libya at the relevant times for the acts under consideration).
More generally, I think it shows a recent trend towards crimes against humanity becoming the new ideal crime of international justice. Indeed, it seemed that crimes against humanity had lost their appeal, more particularly in relation to genocide, as the debate surrounding the Bashir arrest warrant showed. But now, it is back in fashion, especially in the new context of wanting the ICC to deal with the “arab spring” and more generally with situations of internal crack down of political opposition.
Indeed, Crimes against humanity have the benefit of not needing the special intent of genocide (and generally being more adequate for criminal law than genocide, as I’ve argued elsewhere). Moreover, they don’t require an armed conflict, which are usually hard to identify in the situations of popular uprising that we are witnessing now.
Of course, there still remains the question of establishing the widespread and systematic nature of the attacks (with the corresponding knowledge), as required by article 7(1) of the Statute. But even this is turning out to be not so much of a problem if the threshold is lowered, as was the case in the Kenya situation, thus allowing for systematic human rights violations to be “caught” under the umbrella of crimes against humanity. I had strong doubts about the Pre-Trial Chamber’s approach back then, and still do, but if the trend is confirmed, then Crimes against Humanity have found a new youth and may even becoming the new “crime of crimes”.
The First Judgment at the (un)Extraordinary Chambers in Cambodia and the question of Crimes against Humanity
The Extraordinary Chambers in the Courts of Cambodia (ECCC), which started functioning in 2006 after lengthy negotiations to try the (remaining) leaders of the Khmer Rouge Regime, issued its first Judgment today in the trial of KAING Guek Eav alias “Duch”, the former commander of the infamous S21 prison.
The Judgment was going to have a tough time to maintain the drama of the end of the trial which saw some extraordinary (no pun intended) bickering between the co-counsels, with one of them being fired and the other suddenly launching in a virulent challenge to the jurisdiction and the legitimacy of the Chamber, despite apparently not having raised the issue previously, and then creating some confusion on the plea entered by his client.
Various comments can be made on this Judgment, for example on victim reparations, and on sentencing. I’d like to briefly focus on its discussion of crimes against humanity.
Indeed, One question which was going to be an issue from the start was the content of customary law at the time the crimes were committed, more specifically in relation to crimes against humanity and the link with the existence of an armed conflict. If today, there is really no doubt, after the case-law of the ad hoc tribunals and the Statute of the ICC, that crimes against humanity can be committed in time of peace, things are not so clear for1975-1979, which is the scope of the temporal jurisdiction of the ECCC.
The Chamber finds that the nexus was no longer required in 1975. Maybe it is right, but it is not convincing. Indeed, the reasoning is just as poor as it was in Tadic. I reproduce the (concise) argumentation of the Chamber for the sake of clarity:
291. In particular, the Chamber notes that Article 5 of the ECCC Law does not require a link between crimes against humanity and armed conflict. Although Article 6(c) of the Nuremberg Charter required a nexus between crimes against humanity and armed conflict, such a nexus was not included in the 1945 Control Council Law No. 10, the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the 1954 International Law Commission’s Draft Code of Offenses against the Peace and Security of Mankind, the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, and the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid. The notion of armed conflict also does not form part of the current-day customary definition of crimes against humanity.
292. International tribunals that have subsequently considered the issue have also found that the notion of crimes against humanity existed independently from that of armed conflict under customary international law prior to 1975. The ICTY Appeals Chamber has stated that the armed conflict requirement in Article 6(c) of the Nuremberg Charter was a jurisdictional issue, thus implying that it was not required under customary international law even in 1945. The Grand Chamber of the European Court of Human Rights has noted that, while the nexus with armed conflict initially formed part of the customary definition of crimes against humanity, this nexus may no longer have been relevant as of 1956. The Group of Experts for Cambodia appointed pursuant to General Assembly Resolution 52/135 similarly concluded that “[t]he bond between crimes against humanity and armed conflict appears to have been severed by 1975.” The Chamber therefore considers that the lack of any nexus with armed conflict in Article 5 of the ECCC Law comports with the customary definition of crimes against humanity during the 1975 to 1979 period.
Let’s analyse this in order:
- Control Council Law N°10: Yes, the definition of crimes against humanity does not include the nexus with armed conflict (Article II.1.a). However, article I makes the London agreement, which enacts the Nuremberg Statute and which does contain the nexus, an “integral part of this Law”. So it is not that clear. Especially as the Nuremberg Principles adopted by the ILC reproduce the Charter of Nuremberg, with the armed conflict nexus, not Control Council Law N°10…
- 1948 Genocide Convention: even if conceptually, I’m in favor of considering genocide as a sub-category of Crimes against Humanity, it was not legally conceived in this way at the time. Genocide is a discrete crime and the fact that the armed conflict nexus is not contained in the definition of genocide is not relevant for knowing if it is still contained in the definition of crimes against humanity. And even if one considers that Genocide is a sub-category of crimes against humanity, the disappearance of the nexus for one form of a crime, does not logically necessarily indicate disappearance for the totality.
- 1954 Code of Crimes: does not even mention crimes against humanity!
- 1968 Convention on non applicability of Statute of limitations: more tricky, as it, at the same time, says that it can be committed both in time of war and in time of peace, and says that it is defined by the Nuremberg Charter which does include the nexus.
- 1973 Convention on Apartheid: Same as for genocide, the absence of the nexus for one occurrence of crimes against humanity, does not logically imply the absence of the nexus for all crimes against humanity. You could even argue that it the specific nature of Apartheid that justifies the exclusion of the nexus. Also, the Convention only came into force in 1976, so one can wonder at the customary nature of the content of the treaty at that point in time…
- Tadic: The Appeals Chamber in Tadic deals with the issue in the same way. Affirming with little evidence that the nexus no longer exists. More specifically, it considers that it “was peculiar to the jurisdiction of the Nuremberg Tribunal” and that “there is no logical or legal basis for this requirement” (§140). For one, it doesn’t explain why it was “peculiar”. Second of all, the question of the “logical” basis is not relevant for a court of law the function of which is to apply the law, not question its logic. I could point out several instances of lack of logic in the drafting of the ICC Statute, but it doesn’t mean that Judges should be allowed to change it as they see fit. And thirdly, linked to the second point, the “legal” basis is that it is in the law! The drafters of the Nuremberg Statute decided to put the nexus there, so that constitutes the legal basis for the nexus.
- ECHR and group of experts: nothing much to add to this, apart from 1) questioning the relevance of these statements for the ECCC and 2) pointing out that “may no longer have been relevant” and “appears to have been severed” hardly seems like strong enough evidence to rely on to establish the content of a customary norm with sufficient certainty as to conform with the principle of legality.
But even if one were to accept these references, what is notable is the absence of evidence relating to the traditional components of customary law. I was taught in university that you needed to establish both opinio juris and state practice in order to identify the existence of a customary rule, not international case law or pronouncements by experts. However, the expression “opinio juris” appears nowhere in the reasoning and there is no mention of state practice whatsoever at this point in the argumentation (Eichmann is given as the sole example of State practice for prosecution of crimes against humanity earlier on in the Judgment). The ECCC therefore managed, and it is quite a feat, to be even less convincing than Tadic, which at least formally claimed that the nexus “has been abandoned in subsequent State practice with respect to crimes against humanity”, without however quoting even one relevant national criminal code…
I suppose that after the slamming of JCE by the ECCC Pre-Trial Chamber in the Ieng Sary Case, I had unreasonable expectations, but it turns out that in fact, there is nothing extraordinary about the Extraordinary Chambers in the Courts of Cambodia…