Crimes Against Humanity

Question 1

What article in ICC Statute identifies crimes against humanity?

Answer 1

Art 7

Question 2

How does crimes against humanity differ from genocide?

Answer 2

• Doesn’t need to intent to commit genocide (no special intent).
• Needs to be widespread and systematic.

Question 3

How do crimes against humanity differ from war crimes?

Answer 3

• Crimes against humanity can be committed by government against its own citizens.
  
  • ->Purpose in IMT was to prosecute Nazis who committed crimes against their own population. War crimes would have required the victim to be from the other side.
• War crimes require connection to armed conflict.

Question 4

Where was crimes against humanity first defined? What did it say?

Answer 4

Art 6(c) IMT

• Murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population.
• Before or during the war
• Or persecution on political, racial or religious grounds
• Any crime within the jurisdiction of the tribunal
• Whether or not in violation of domestic law of the country where perpetrated.

Question 5

What was difference in ICTY Statute (Art 5) and ICTR Statute (Art 3)?

Answer 5

ICTY (Art 5): Contextual threshold = when committed in an armed conflict, whether international or internal character.

• SC promptly reversed this position in 1994, when adopted the ICTR statute.

ICTR (Art 3): Widespread or systematic attack against any civilian population on NPERR grounds.

Question 6

How did ICC (Art 7) then differ from ICTY and ICTR?

Answer 6

ICTY - required armed conflict.

ICTR - required discriminatory grounds.

ICC - required neither armed conflict or discriminatory grounds. Adds to lists of acts including:

• Sexual slavery
• Enforced prostitution
• Forced pregnancy etc

Question 7

What is the objective element of a crime against humanity?

Answer 7

1) Widespread and systematic attack

2) Certain specific acts (Murder, Extermination, Enslavement, Deportation, Torture)

Question 8

What is the subjective element of a crime against humanity?

Answer 8

1) Intent

2) Knowledge regarding the material elements of the crime, including the contextual element.

Question 9

What is ‘widespread?’

Answer 9

QUANTITATIVE:
Large scale nature of attack and the number of victims (Tadic).

• No numerical limit set
• Can be single act of great magnitude

Question 10

What is ‘systematic’?

Answer 10

QUALITATIVE:

Akayesu:
1) Thoroughly organised

2) Following regular pattern
3) On basis of common policy
4) Involving substantial public or private resources

Question 11

What does Cryer say is the ‘hallmark’ of systematic?

Answer 11

• The high degree of organisation

- Features such as patterns, continuous commission, use of resources, planning, and political objectives.

Question 12

What kind of test is widespread/ systematic?

Answer 12

Disjunctive: prosecutor need only satisfy one or the other threshold.

However, attack is needed with both. Attack requires some degree of scale and organisation. Needs some minimal dimension of each.

Question 13

What’s the formula for ‘attack?’

Answer 13

1) Minimal level of scale (multiple acts) + minimal level of collectivity (policy element)
2) Plus, high level of scale (widespread) + high level of collective coordination (systematic)

Question 14

What constitutes ‘multiple acts’

Answer 14

1) Attack - A course of conduct involving commission of acts of violence
2) Can be a single act - applies to attack, not actions.
3) However, needs to be some thread of connection between acts so they can be described collectively as an attack.

Question 15

How can we distinguish crimes against humanity (Art 7 ICC) from CA 2 and 3?

Answer 15

CA 2 and 3: Applies to situations of armed conflicts and the use of violence of one state against another.

Art 7 ICC: Attack against civilian population. No armed conflict.

Question 16

What is key factor of attack?

Answer 16

You need a thread of connection between acts so that they can collectively be described as an attack directed against a civilian population.

Question 17

What do some legal authorities think this thread of connection is derived from?

Answer 17

An underlying governmental or organisational policy.

Question 18

What does ‘pursuant to or in furtherance of a state or organisational policy’ mean?

Answer 18

• No requirement of formal programmatic determination.

- Planned, directed or organised crime.

Question 19

There is controversy over whether:

Answer 19

“Policy” is necessary

Question 20

What do those who argue policy is required believe?

Answer 20

• Look at national jurisprudence post WW2
• Rome conference concerns: whether an unqualified disjunctive test would mean widespread but unconnected crimes.
• Favoured that ‘attack’ in CL excluded random crimes.
• YET, Art 7(2)(a) still included policy element based on Tadic.
• Tadic: Policy = low threshold and inferred from manner in which acts occurred.
• Other authorities: doesn’t have to be from government.

Question 21

What do those who reject policy requirement believe?

Answer 21

• Would impose novel burden and would be difficult to prove.
• Tribunal cases begun to split.
• Kunarac (ICTY): nothing in statute or in CIL required proof of existence of a plan or policy to commit these crimes.

Question 22

What are the three features of the policy element?

Answer 22

1) Policy need not be formally adopted, nor expressly declared. (Katanga, ICC)
2) Satisfied by inference from the manner in which the acts occur (improbability of random occurrence).
3) Not required to show action by a state or organisation. (approval, endorsement or encouragement sufficient).

Question 23

What are the implication of tribunal jurisprudence rejecting policy element?

Answer 23

1) Still emphasises unconnected random acts cannot constitute an attack, but doesn’t seem to have any legal element that actually performs this function.
2) May have reinfected something similar - its requirement to examine whether an ‘identifable population’ was targeted or was primary object = all of which imply some direction (Haradinaj).

Question 24

SUBJECTIVE:

What level of knowledge is required?

Answer 24

1) Perpetrator must be aware
2) A widespread or systematic attack on a civilian population is taking place;
3) And his action is part of this attack
4) It is not necessary for him to be aware of all the details.