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International. ' ' ,CriminaI Law : Quo:V~dis- ?

Proceedings of the International Conference held in Siracusa, Italy, 28 November' - 3 December 2002, on the Occasion 01 the 30th Anniversary' of l51SC

ASSOCIATION N°19 INTERNATIONALE 2004 DE DROIT PENAL

i " ... ~.;'.

Selected Issues R~garding the_'Core Crimes' in International Criminal Law

~.?~:

Kai Ambos· . ". ;.~\;:.

;~ ..:~.:.Summary /

The paper, part of a broader research project of the Max Planck Institute f.or FOreign imd International Criminal Law,I analyses thecore crimes as codified in Art. 6 to 8 of the ICC Statu.te addressing some.selected issues. This analysis will demonstrate that these crime's, although for the first time· comprehensively codified, still generate a lot of eomplex and delicate questions of interpretation and therefore require· further reflection and refmement.

1. Tbe Crime oC Genocide

A. Legal history

Genocide developed from a category of crimes against humanity to an autonomous crime after WW IV With the definition of the erime of genocide in the Convention on the Prevention and Punishment of the Crime of Genocide of 9 Getober 19483 and its incorporation ·in the statutes of the ­ad hoe criminal tribunals created by the Security Council to judge those accused of genocide and other crimes in the fonner Yugoslavia and Rwanda4

and the Rome Statute.of the International Criminal Courts there is a widely accepted basis for the proseeution of the "crlme of erimes." Yet, the applieation of the definition still poses a whole host of problems. As

* Privatdozent Dr. iur University of Munieh; Associate Professor of the University of GÖllingen; Senior Research fellow Max Planck Institute for Foreign and Internationaf Criminal Law. I. See hllp:llww~.iuscrim.mpg.delforschlstraf/referate/sachlintstiaf.htrnl>. Johanna Rinceanu and TobiaS Wenning are researchers of this project, and have made valuable contributions to this paper. . 2. See Cassese, i" I THE' ROME STATlTTE OF TIlE INTERNATIONAL CRJMJNAL COURT, 336-7, 339-40 (Cassese el al. Cds., 2002); Mettraux. Crimes Against Humanity in the Jwisprudence 01 (he ICTYand lCfR, 43 HARV. INT'L). 237,302-6 (2002); Kai ArnboslWirth, The Current Law ofCrimesagainst Humanity, 13 CRtM. L. F. 1,2-13 (2002). 3. 78 UNTS 277-(195Il,entered into force 12th Jan. 1951. 4. Stalute of the International Crirninal Tribunal for the Former Yugoslavia (hereinafter:

. ICTY Statute), U.N. Doc. SIRES/827 (.1993), annex; Statute of the International Crirninal Tribunal fol' Rwanda (hereinafter: ICTR Stalute), U.N. Doc. SlRES1955 (1994), annelt. 5. Rorne Statute of the International Criminal Court, U.N: Doc. AlCONF.l83I9, as adopted 171uly 1998 (hereinafter ICC statute). ­

221 i)' iVvuveLLes etudes penales 2004 International Criminal Law : Quo Vadis ?~~v

t. opposed to some of the case Jaw6 genocide may be characterized by three :cQnstitu.tive elements:7 .

• the actus reus of the offence, which consists of one or sevetal of the acts enumerated under Article 6(2) lCC Statute (see infra n.); - th~ correspondingmens rea, as described in Art. 30lCC Statute (III. 1.); • the. intent to destroy, the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such as an extended mental element (llI. 2.).

B. Actus reus

·1. The protected groups

Although frequently criticized,8 it is now settled that po'itical, economic, and cultural groups were intentionally left 'out when drafting the Genocide Convention.9 While this clearly follows from the travaux as the expression of the will of the parties, it may also be deduce4 from the concept of"group, as such." This concept 'only embraces "stable" gröups· and distinguishes them from "mobile" groups, Li., political, economic andcultural groups.1O This iS basically the position that can be found in various judgements of the ad hoe Tribunals.

In Akayesu, an:tCTR Trial Chamber refened to 'stable groups,' Le., groups "constitlited in .a pe~anent fashion and membership of which is

6. In PTOBeeulor"l'. KTBlic,ludgmentof 1 August 2001 (IT-9&-33-T), para 541,lCTY Trial Chamber I holds that there are only two elements, namely, the actus reus and the intent to destroy. Concurring: Proseeutor v. Kayishema anti RU1.indana, Judgment of 21 May 1999 (lcrR-95·1-T), para. 90. 7; See Qua Triffterer, Genacide, Lu Particular LrUent 10 Destroy in Wlwie or in Part the Group afSuch, 14 LBloJo\.JRNlm.L 399 er.seq. (2001); Proseeutor v. Bagillshema, Judgment of7 June 2001 IcrR-95-IA-T). paras. 56,60. 8.· See esp. Van Schaack. 106 YALE LJ. 2259 (1997). See also Cassese. supra note 2, at 336; Heintze, Zur Durchsetl.U1lg der UN-Völkermordkonvention, 13 HuV-I 225, 227 (2000);

. G6mez-BenCtez; Ei exterminio de grupos politieos en el Derecho penal irUernacional ete., REVISTA Oll DERE.CHO Y PROCIlSO PENAL No. 4, 147, at 148 et 'seq, (2000); Lyal Sunga, The Crimes within the JuriSetictionoflhe lCC (Part lI,Art: 5·10),6 EuR. J. CRIMIlCR. L.CR.J.. 377,

> 383 (199&), pointing out that the systematic targeting of a group on the basis of nationality. ethnicity. race or religion, tends to Carry a much stronger potential for massive violations, for the very reason that theintended victims can be singled out from the rest of the population with particular ease, on account Of their telatively immutable difference. 9. . Cf. Schabas, in COMMIlNTARY ON lllil ROMIl STATUTIl OF lllil INTERNATIONAL CRIMINAL COURT (Otto Triffterer ed.• 1999),Art. 6 mn. 6. 10. See Cassese, supra llQle 2, at 345; cril; Ntanda Nsereko in 1 McDoNALD/SWhhK­GOLDMAN, SUBSTANnVI! ANO PROCI!DURAL AsPl!CfS OF INTERNATIONAL CRlMlNAL LAw 113, 130 (2000), pointing out that it is inconsistent to include religious but exclude political groups since in both case,s the membership Uis a maller of wilf or choice.'·

~

detennined by birth, with the exclusion of the more 'mobile' groups which one joins through individual voluntary commitment. such as political and economic groups."11 A common criterion in the groups protected by the Convention i5 that "membership in such groups would seem to be nonnally not challengeable by its members~ who belong to it automatically, by birth, in a continuous and often irremediable manner."12 In a similar vein, in

.kutagaiUia it was stated that politica1 and ecc,momic groups have been excluded from the protected groups because they are considered to be "mobile groupS."1l In Jelisic; a Trial Chamber of the Icry, refened to "stable" gt'9upS "objecti.vely defined and to which individuals belong regardless of their own desires" thereby excluding political groUpS.14

The ,felisic decision also invoked for the first time explicitly aso called subjective - instead of an objective - criterion to define a group as national, ethnical etc.JS For it would be a"perilous exercise" to detennine a group with purely objective and scientifically irreproachable criteria, it is "more appropriate" to evaiuate its status from the perspective of th{)si persons "who wish to single that group out from the restef the. community," Le., from the perspective of the alleged perpetrators. This criterion goes back to the ICTR's Kayishema decision where a Trial Chamber distinguished between the "self-identification" of a group or its "identification by others."16 In the parallel Rutaganda judgment, however, trus criterion was apparently understOOd more restrictively: While it was recognized that membership is in essence a subjective concept it was also. held that a "subjective defini.tion alone~' is not el)oughP Finally, in the most recent Krstic judgment, the fltst ICIY conviction on geriocide, the subjective criterion again prevailed identifying the relevant group by way of its stigmatisationby the perpetrators.18 Although it is doubtful whether t11.: subjec.tive approach eontributes. to more legal c~rtainty, from a purely technical perspCctive it may be argued that it is a consequence of die structure ofthe genocide offence as.a specific intent crime (see infra ll. 2.). For if the dominantelement of th~ offence is the perpetrator's specific intent to destroy a certaingroup, that is, her state of mind with regard to a certain

11. Proseeutor v. Akayesu, Judgment of 2 September 1998 (IcrR-96-4-T). para. 51/. li. Prosecutor v.Akayesu, supra note 11, para. 511. Proseeutor v. Rutaganda. Judgment of 6 December 1999 (IcrR-96-3-T), para. 56. 13 14. Proseeutor v. Jelisie, Judgment of 14 December,1999 (rr-95-1O-T), para. 69. 15. lbid., para. 70. 16. Proseeulor v. KayiJhema, supra note 6, para. 98. 17. Prosecutor v. RUlaganda. supra note 13, paras. 55-6. 1&. Prosecutor v. Krstic, supra note 6, para. 557. At para. 556 ··scientifically objective criteria" were cönsidered "inconsistent with the object and purpose of the Convention."

....,L 19 Nouvellesetudespenales 2004

'!.' group, this group mayaiso be defined in accordance with this state of mind, i.e., from tl)esubjective jlerspective of the perpetrator,l9

In sum, pol~tical, economic and cultural groups are not protected by the Conventionnor by genocide provisions in the Statutes of the International Tribunals. The resulting'loophole may, however, be fiiled bY'the crime of. persecution which; in any case, was already employed in some cases to punlsh the extermination of the lews and other'ethnie or religious groupsin . NizLÖermany.20 We. will come back.to this'erime tater.,

2. The sPeclfic rorms of ieilocide

The ICC Statute lists in Article 6 the following specific fonns of genocide: killing members of aprotected group (a), causing serious bodily or inental harm to members of the group (b); deliberately,infiictlng on the

,group conditions of lifecalculated to bring about its physical destruction in whole or in part (c), imposing measures intended to 'prevent births within the group (d) and forcibiy transferring children of the group to another group (e). This list is exhaustive and'therefore precludes states from any extension to other forms of gen6cide;21 this also aPl'lies to the .so-called "ethnie . cleansing" (infra f)). ,

The victims of the specific acts must be members of the m~tional, raclal, ethnic or religious group that is the target of the genocidein question.22 While it is clear that the perpetrator m~st - subjectively .. intend or seek to destroy a significant number ofthe members ofthe group,objectively it is only required that she attacks successfully at least two' members. The structure'oY'the genocide offence as a specific intent crlme even admits the view that the perpetrators - objectively - only kills etc. one member of the groUp.23 The problem with this interpretation, however, is that the underlying acts refer to members ofthe group (para. (a) and (b» and children ofthe group (para. (e)) in plural, i.e., a strict interpretation requires, objectively, at leaSt two victims.24

19. For the same view, without reasoning however, Gbmez.-Benltez., supra note 8, at 149. 20. See,Cassese, supra note 2, at 336. . . • 21: .See Ntanda Nsereko, supra note 4, at \28; MACHTEl.D BOOT, GENOClDB, CRIMES AOAINST HUMANITY, WAR CRIMBS: NULLUM CRIMEN SINE LeGB AND nm SUBJECT MATIl!R JUR1SDlCI10N OFTIfB ICC (2002), P!lfll. 415; (or eullural·genocide, see infra A. III. 2. b)(i). 22. Prosecutor v. AkOyesu, supra note 11, para. 712: "such aets ascomrnilted against vietim V were perpetrated againSl a Hut\! and cannat, thetefore;constitute a crime of genocide against the Thtsi group," '. . 23. PrOsecuror v. Akayesu, supra note 11, pani. 521 : Ntanda Nsereko, supra nole 10, 125-6; WILLIAM SOIABAS, GENociDB IN INTBliNATIONAL LAW 158 (2000); Art. 6 of the Elements of Crimes as adopted al the FirSt Session of tlie Assembly ofSrate Parries (3-10 Sept. 2(02) - ICC­ASP/II3 • states 8,S the first element of all the five alternatives: "The perpetrator (killed ete.) Olle or more peIS<lns." 7,4.· Conc. Cassese, supra note 2, at 345.

International CriminallAw ~. Quo Vadis ? 223

a) Killing members 01the group .

'q1ere is little controversy regarding the actus reus of the act of '.'killing membecsof the groUp."15 The Elements of ,Crimes state: '''The perpetrator killed one or more persons."26 A footnote adds ~at the term "killed" is interchangeable with the term "caused death."27 This is supported by the case law of the ad hoc Tribunals.28 The causation of'death is usually accomplished by mass killings, torchingthe houäes JJelonging to members of the group, destroying the infrastructure and other life-support sy'stems, and forcing' members of the group into so caUed "protected" or concentration camps where they are massacred or leftto die.29

b) Causing serious bodily or mental harm to members ofthe group

.According to the Eichmann Judgment, the fono~ing acts may constitute senons bodily or mental harm: "the etislavement,starvation, deportation and persecution and the detention of individuals in ghettos, transit camps and concentration camps in conditions which were designed to cause their degradation, deprivation of their rights as human beings and to suppress them and c,ause them inhumane suffering and tOrture."30 The rctR Trial Chamber takes causing "serious bOdily or mental barm, without limiting itself thereto, to mean acts of torture, be they bodily or mental, inhumaneor degrading treatment, persecution" just as acts of sexual violence, rape, mutilations and interrogations combined with beatings, and/or. threats of death.3\ In Krsne, IcrY Trial Chamber I holds that "inhuman treatment, torture, rape, sexual abuse and deportation are among the acts which may cause serious bodily or mental injury."31 "Causing serious mentitl bann" may involve forcing members of the. target group to use narcotic drugs in order to weaken the members of the group mentally.33 ,

25. The relevant writings and ease lawconeenttate, therefore, on the subjective side of this alternative, See, e.g., SCHABAS, supra note 23, at 157, 158,441,442; BOOT, supr.a note,21, at 441-443 and infra III. I. a). . 26. glements of Crimes,sllf1ra note 23, Art. 6 (a). 27. Id., fn. 2. 28. Proseeutol' v. Aknyesu, supra note I \ ~ para. 500; ProseCUI01' v. RUlaganda, supra note 13, -para. 50; Prosecutor v. Musema, Judgment of 27 January 2000 (lCIR-96-13-T), para. 1.55. 29. See Ntanda Nsereko, supra note 4, at 128. 30. The Israeli Govemment Prosecuror General v, Adolph Eichmann, Jerusalem Districr Courr,I2 Deeember 1961, in INTBRNATIONAL LAW REroRTS (ILR), vol. 36,1968, p. 340. 31. Prosecuror v. Akayesu. supra note J1, para. 504, 706, 707; concurring: Prosecutor v. Kayishema, supra note 6, para. lOS; Prosecutor v. Bagilishema, supra note 7, para. 59. ' 32. Prosecutor v. Krsric, supra note 6, para. 513. 33. See Ntanda Nsereko, supra note 4, at 129.

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224 22519 Nouvelles etudes penales 2004 International Criminai Law : Quo Vadis ? ~

'". Tbe tenn "serious bodily or mental hann" leaves room for divergent

opinions as 10 the seriousness o/the harm inflicted upon the individuals conCemed~: ~ust the harm' be pennanent and irremediable? Whereas it :S~~;1Y~~';;,8:ccepted that physical hannneed not be pennanent, there is

;it~;\><',,,. /;'l'" .'contrQ.ye~y'.with.:res.pecttomental hll1l)i.34 Tbe Krstic Judgment held "that .. ,:<ti',~'~;(: serl6t1s;J:i8irti\rieednot1cause pemianentaiid~mediableharm, butit must

:;~~~:;~)i:):;fu'Xbl,rei~atii\rtflit;:g" 66k.~beyond, tempo'~;;V "unhap'pl~ess,embarrassment or ~ ..~~:.:.;:.. ·t ••. ·•. f1.\~"'··~'~;\'i{ .'. :f;.. " ."..:..... ~-J .'

",.}f~\··:'···b~~tipn::,It m~st Oe hann :thatresults ~ a grave and long-term 'l'''' " . disadvantage toa person's ability to lead anormal and constnlctive life."33

Tb~Bagilishema Trial Chamber held that !'serious hann entails more .than minor impainnent on mental orphysical faculties, butit need not amount to permanent or' irremediable hann."36 111e case law of the ad hoc tribunals determines the seriousness on a case-by-case basis.31

It is irrelevant whether thebodily or mental hann inflicted on the members ofthe group is sufficient to threaten thedestruction of the·group.38 Such a requiremeIit would go beyond the plain words of the text. Neither is such an interpretation of the Rome Statute supported by the travaux preparatoires. It .would also confuse, the actus reus and the mens rea requirements.39

c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part

This fonn of genocide refers to the destruction of a group by "slow death."4Q This' includes methods such as denying members of a group nutrition (food and water), subjecting a group of peopleto systematic

34. See SCH'ABA.s. supra note 23, at 162. 35.' Prosecuior v. Krstic, supra note 6, para. 513. 36. Prosecutor v. Bagilishema. supra note 7, para. 59. 37. ProsecUlor v. Kayishema, supra note 6, paras. 108·113; Prosecutor v. Rutaganda, supra note 13. para. 51; Prosecutor v. Musema.supra note 28. para. 156; Prosecuior v. Krstic. supra note 6. para. 513. 38. See SCHABAS, supra note 9. Art. 6 mn. 10; id., supra note 23. at 161; Boot. supra note 21; para. 417; but see Report of the ILC on the Work of i1s Forty-Eighth Session 6 May-26 July , 1996, UN. Doc.AlSI/IO. at 9L 39. See SCHABAs.supra note 9,Art. 6 mn. 10; id., supra note 23. a(l61. 40. See Ntanda Nscreko, supra note 10. at 129. gives a clas8ic example: "when Gel1ll8.llS drove the Hereros of Namibia into the arid and waterless Omaheke Desert andthen, sealing it off by .a 250.kiloll]ctre cordon, made il impossible for anyone to escape il" (citing Hqrst Drechsler, Let us die Fighting: SlrUggle of the, Herero and the Nama against Geman lmperialism (1884-1915). Loridon (1980). at 156. who recounts the conseq\lences as folIows: "This cordon was maintained until about mid·I90S. The bulk of the Hereros met a slow, agonising death. The Study of the Genera[ Staff noted that the Omaheke had inflicted a worse fate on the Hereros than German anns could eO/cr have done, however' bloody and costly the banle.").

expulsion from hornes and the reduction ofessential medical services below a minimum vital standard, excessive work or physical exertion!1 It is c1ear '.tha~ the methodsof destruction n~d not inunediately kill any member of the group, but must (subjectively) be caiculated to, ultimately, physically destroy the (members of the) group,42 According to the German courts, it suffices that the methods are (objectively) apt ("geeignet") to destioy the group; yet, this interpretation isb~ed on a wroqgtranslation of the term "calculated to" into the German term "geeignet" which only requires acts causing abstract danger .for the legal- interests protected.~3 Tbe Ad Hoc Tribunals and the Elements of Crimes are silent on the matter.« Tbe PreparatoryCommission rejected the U.s; proposal to require "that the conditions of life contributed to the physical destruction of that groUp."43 TheProsecution in the Kayishema case submitteci thatArticle 2 (2)(c) ICTR .Statute applies to situations likely to cause'death regardless of whether death ' ac~ally occurs.46 This is similar to the German approach.

d) Imposing measures intended to prevent births within the group

The words "imposing measures" indicate the necessity of an element of coercion.41 The prevention. of births within, the group, the so-called biological genocide, is accomplished by denying the group the means of self-propagatiori. Tbe measures usually include forced sterilisation of the sexes, sexual mutilation, forced birth control, separation of the sexes and prohibition of marriage.48 The Akayesu Trial Chamber stated that

"[i]n patriarchal societies,where membership of a group is deteimined by the identity of the father, an eltample of a measure intended to preveilt' births within a group is the case where, during rape, a woman of the .said group is deliberately impregnated by a man of another grpup, with the intent

41. Prosecuror v. Akayesu. suprd note 11, para. 506; Prosecuror v. Kayishema, supra note 6. para. 1[5, 116;' Prosecutor v; Rutaganikl, suprfI note 13, para. 52; Prosecutor v. M,usema. supra note 28, pani. 157. 42. Prosecuror v. Akayesu, supra note [I, para. 505. 43. Cf Kai Ambos & Wirth, in IflrrnRNATIONAL AND NATIONAL PROSECtITION OF CRJMES UNDER INTERNATIONALLAW 769 (Horst Fischer, Claus Kreß, & LUders eds., 2001). at 784-789. 44. Elements of Crimes, supra note 23, Art. 6 (c). 45. See RUckert & Witschel, in Fischer, Kreß, & LUder, supra note 43, 59, at 68. 46. Proseculor's Closing Brief, 9 OClober 1998, at 28 (emphasis added).. 47. See BOOT, supra note 21, para. 422. 48., ProsecUlorv. Akayesu. supra note 11, para. 507; Ntturda Nsereko. supra nole 10. at 129. Nsereko gives the example of German Occupied Poland where "marrlage between Poles was forbidden without permission from the German Govemor. An indirect method Q.f lowering the birth rate of the Poles was 10 underfeed patents, thus lowering the survival capacity of lhe children of such parents."

I

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to have her gi:ve birth to a child who will consequently notbelong to its mother's groUp."·9

.Furthermore, the Chamber notes that

f) The so called "ethnic cleailsing": an additional form ofgenocide?

Tbe term "ethnic cleansing" was deliberately omitted in Art. 6 of the Rome Statute and. therefore does, technically speaking, not constitute

':1-"

f... "... .' "''';'', i. • :1f... <j; .,::..~~ intended to prevent births within the group may be physical, ~)''''i.';-r '}.:.:;~; ;:,p.qt;PW:$.o..bemen~~For instance, rape cau be a mea$ure intended to '·:;;~~:~{~i;t,;i?~~~~}~~.wijen the person raped refuses subsequently to ptoereate, in ..;~!:t'}f:Y:;7f6~I'~ame'Way that members of a group can be led, through threats or trauma,

i'... · . ".' not'tö procreate."j()

e) Forcibly transferring children ofthe group to another group

TIUsfonn of genocide is a very controversialone. As will be discus~ .' below~1 some schalars argue that the general tenor and the aim of the law of genocide is the proteetion of the right of the group to physical but not culturaI 'or other forms of existence. Non-physical forms of a group's existence are (primarily) protected under international humanrights and minority rights law. Thus, appareutly acts aimed at destroying the identity of a group, without physically destroying its members, ca,nnot be considered as genocide. Applied to the forcible transfer of children it may oeargued that the transfer leads to a loss of cultural identity by assimilation of the children

. of one group to another group, but it does not per se lead to physical destruction of the group. In fact, the transfer is a form of cultural genocide andthereby contrasts the decision .of the drlifters to exclude cultural .genocide from the scope cf the Convention.S2 The Akayesu Trial Chamber

holds that .

«as in the case of measures inte~ed to prevent births, the· objective is not only to sanction a direct act of forcible physical transfer, but also to sanction acts of threats or trauma which w~uld lead to the forcible transfer of children from oue group to another."~3

._ If the purpose of the transfer of the children to another g'roup is to subject them to slave laboUr, this would amount to imposing on the group

~ conditions of life calculated to bring about its physical destruction and therefore fall underaltemative c) discussed above.~

49. Proiecutor v. Akayesu, supra note ,11, para. 507. 50. ld, para. SOS. 51. See infra A. III. 2. b) (i). 52. See BOOT, supra note 21, para. 422. 53. prosecUUJr 11. Akayesu, supra note I I. para. 509; concurring: Proseculor 11. Kayishema, !Upra oote 6, para. H8; Prosecutor v. Rutaganda. supra note 13. para. 54; Proseculor 11.

Musema, supra note 28, para. 159. -' 54. Ntanda Nsereko, supra note W, at BO.

genocide.~s Tbe. expression "ethpic cleansing" is relatively newand its origin is difficult to establish. 1t appeared in 1981 in the Yugoslav media

.talking of "ethnical1y clean territories" in. KOSOV056 and in documents of intemational bodies in 1992. Since then there have been a number of . . attempts to define the tern1.~7 According to the Comrnission of Experts' Report "ethnic cleansing'" includes murder, torture, arbitrary arrest and detention, extra-judicial executions, and sexual assault, confinement of civilian population in' ghetto areas, forcible removal, displacement and deportation of civiliari populations, deliberate military attacks or threats of attack on civilians andcivilian areas, and wanton destruction ofproperty.~a

The Special Rapporteur of the Comrnission on Human Rights, Tadeus~

Mazowiecki equates ethnic cleansing with "a systematic purge of the civilian population with a view. to forcing it to abandon the territories in which it Iives."S9

It was always debated whether ethnic cleansing constitutes genocide.60

Taken the available definitions together, ethnic cleansing is aimed at displacing a population of a given territory in order to render the territory ethnically homogeneous. Thus. ethnic cleansing pursues a different'aim as genoeide, it is not directed at the destrUction of the groUp.61 While the

55. . Althoogh the UN. Genetal Assembly slated in paragraph 9 ()f its Reoo\uti()n 47111\ ()f 18 December 1992: in pursuit of lhe abhorrent policy of 'elhnic cleansing,' which is a form of genocide." . 56. See Petrovie, Ethnic Cleansing - An Allempt at Methodology, 5 EJIL 342, 343 (1994). 57. See SCIiABAS, supra nOle 23. al 190. 58: First Interim Report of lhe Commission.of Experts, 10 February 1993, U.N. Doc. 8125274 (1993). para. 56. . . 59. . PeriOdic Reports on lhe situation of human rights in lhe territory oflhe fonner Yugoslavia submined by Me. Tadel!sz Mazowiecki; Sixlh Report, 2) February 1994, EJCN.4il994ill.O. para. 283. The Proseculor of Ihe ICfY defined elhnic cleansing as: "a praetice which means thaI YOU Bel in sueh a way lhal in a giyen lerrilory lhe members of a given elhnic group are eliminated, 11 means a praetice that aims. at sueh and such a tetrltory be. as they meant, ellmically pure. [I]n olher words, that Ihattetntory would 00 longer conlain only members of lhe elhnie group lhat took lhe initiative of cleansing lhe terrilOry;" Proseculor v. Karad'l.ic anti Mladic, Transcript of hearing, 28 'une 1996 (IT-9S-1S-R61, IT-9S-5-R61); at 12S: Cassese, supra nOle 2, at 338 defines 'elhnic c1eansing' as "lhe forcible expulsion ()f eivilians belonging 10 a partieular group from an area, vil/age, or lown." 60. On lhis debate. see also JOHN R.W.o. JONES. TIm PRAcnCE OF THE INTERNATIONAL CRlMINAL TRIBUNALS FOR THE FORMER YUGOSLAVIA AND RWANDA (2d ed. 2000, al 99-102; Schaba:s, supra note 9, Art. 6 mn. 8. 6L See SCHABAS, supra note 23, at 199.

oi., •'v .... rc.Uc.o> C;:f,&4Ut::o> pc.UUU:',,) ,LoVVT • A;;,,~'''' .' -- ••••

•

material acts perl'ormed to commit these crimes may often resemble each ether, the main difference lies in the differentspecific intents: ethnic c1eansi~g is intended to displace a populatiqn, genocide to destroy a population.~2 Thus, it is clear that~'ethnic cleansing" need not per se amount to genocide.63 Ethnic cleansing remains, of course, punishable as a crime . against hllmapity and a war crime.

3. A Context Element in Genocide?

Although the wording of Art. 6 ICC Statute clearly does not require a conte,xt element, the Elements of Crimes as adopted by the Assembly of State Parties (ASP) state at the end of each of the definitions of the specific forms of genocide: .

''The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction:"64

Also the German Oberlandesgericht (Appeals Court) Düsseldorf argued in Jorgie that genocide requires a "structurally orgailized centralized guidance."65 The German . Federal Constitutional Court (Bundesve'rfassungsgeriCht) adopted the same view.66 Although this. requir~ment will be present in most cases, it is neither required by internationallaw nor isthere a need for such an (additional) element.67 Thus, the ad hoe Tribunals have repeatedly imd correctly affumed that the existence of a plan or policy is not a legal ingredient of the crime of genocide; it may only become ap important factor to prove the specific intent,6& As a consequencethe Elements are in violation of Art. 9 (3) ICC Statute and should, therefore, be considered void.69

62. Id, at 200. 63. See Cassese, supra note 2, at 342. 64. Elements ofCrimes,supra note 23. 65. bLG DUsseldorf, Iudgment, 26 September 1997,2 SIE 8/96. unpublished typescripl (on file with the author) at 162 ("strukturell organisierte zentrale Lenkung");'on the German ease law seeAmbos & WirtJi, supra'note 43, at 769. 66, BVerfGE. Judgment, 12 ~ember 2000 - 2 BvR 1290/99, at 1II. 4 a), available ljt:

www.bverfg.delentsCheidungenlframesl2000/12i12 =.EuGRZ 2001, 76-82; crit. Ambos & Wirth, supra note 43. at789-90.' • 67. Ambos & Wirth. supra note 43, at 789,790; Triffterer, supra note 7. at 406-408. 68. ProseculOr v. JeUsic, ludgment (IT-95-IO-A) 5 July 2001, para. 48; Prosecutor v. JeiLI'ic, supra note 14, paras. 100, 101; Prosecutor v. Kayishema & Ruzindana, ludgment of 1 lune 2001 (lcrR·95·'-A), para. 138; ProseculOr v. Kayishema, supra note 6, para. 276. 69. See Ambos & Wirth. supra note 43, at 790.

C, Mens rea t·

Tbe ~eneral mental element

According .to Art. 30 ICC-Statute "a person.....shall be criminally responsible and Hable for punishment for a crirne (..,.) only if the material elements are committed with intent and knowledge." Notwithstanding the complex questions involved in the interpretation of this provision and the mental elemimt in criminallaw in general,70 it suffices for our purposes to state that "genocide," i.e., .the chapeau and the different forms of commission, must be performed with intent and knowledge. In other words, the perpetrator's intent and knowledge must cover all (material) elements of the chapeau and the specific act According 'to the case law, the perpetrator must,oD the ODe hand, know that the victim is a member of.the grQup71 and, 'on the other, act withthe intent to further the destruction of the group.n While the former requirement refers to the general rnens rea since the rnembership of the group is a material element in the form of a circumstance and as such the perpetrator must be aware of it (Art. 30 (3) ICC-Statute), the inteni to further the destruction of the group apparently belongs to the specific intentdiscussecl below (2.). Tbe problem is that the Tribunals do not precisely distinguish between the general mens rea and the speeifie intent as an additional mental element (subjektives Tatbestandsmerkmal) .13

If the peq)etrator lacks the knowledge of a circumstance she nonnally incurs ina mistake of factand criminal responsibility would t>e excluded (Art. 32 (1) ICC-Stattite). If, for example, the perpetrator leills - objectively - a Jew but she does - subjectively - not knew that the victim belongs to this· religious group, she acts without knowledge of the circumstance "member of a religious group" an~ this mistake would "negate the mental element", or, moreexactly, a part of the rn.ental element. Thlls, the mistake of fact is only the other side. of the coin of (the existence of) mens rea. "Another question, not to be treat~ here, is ifit is not too strlct to declare, in principle,

70. See for a detailed analysis Albin Eser, in Cas~ et al .• supra note 2, at 889 et seq.: KAI

AMBOS, DER AU.oEMElNB TB1L DES VÖLKERS1lW'RECHTS (2002), at 757 et seq.; Triffterer. Sl/prCI

note 7, al 400. 71. Prosecutor v, RutagandJJ, supra note 13, para. 60; Prosecutor v. Musema,supra note 28, para, 165; Prosecutor v, Bagilishema, supra note 7, para. 61; Proseeutor v. jelislc, supra note 14, para. 66.• Trijfterer, supra note 7, at 400 requires knowledgeof the membersbip of the viclim of tbe group and that the viclim is 'attacked in 'this eapacity by the perpelrlltor.' 72. Cf. Prosecutor v. Kayishemii, supra note 6, para. 91: accordingly, by his act "the perpetralor does not [. ..Jonly manifesl his hatred of Ihe group 10 whieh bis victim belongs bUI also knowing1y commits this acl as part of a wider-ranging intention 10 dCSlroY the [...Jgroup of which th~ viclim is a member." S~ also Prost!clitor v. Jelisic, supra note 14. para: 79.

-

19 Nouvelles etudes penales 2004. 230

811 mistakes as irrelevant that do not negate the mental element (Art. 32(2) ICC Statute).74

.~... a) Killing "!embers ofa group

~&:<.. .'..Thetenn "killing" is broader thari the term "murder" since the latter ~;"~"~ ..' .' . . .~ ';' . . .fif:k>t.~~ .'i'eqUite's~J~~!?rdi~g·:tQ;so!Jle,nationallaws, more than the intention to cause :fS:.?:~~~~~;.~ .,.;' d.eath,1l,~~~y,pterileditation}5 Asto. theEnglish aJid French verSions of the ~::tyz;~. woromgiof Alternative a) ICfR Trial Chamber held in Kayishema ~·that there ~W·· .is~al1y no. difference between the term 'killing' .• ~ and 'meurtre' ... ," :. but aSkilling or meurtre sb,outd be considered along with the specific intent

of genocide both concepts require intentional homicide.76 Other Chambers argued that "[t]he coneept of killing includes 'both intentional and unintentional homicide, whereas meurtre refers exclusively to homicide committed with the intent to cause death". These Chambers, however, came to the same result considering that "pursuant to the general principles of criminal law, the version more favourable to the Accused [te.' the requirement of intent] must be adopted."l1 Hence, the killing must be eommitted - in accordance with Art. 30 ICC-Statute - with intentthough not necessarily with premeditation.78

b) Deliberately inflicting on the group conditions of life calculated to bring about its physical· destruction in whole or in:pt;lrt

By using the term "deliberately" the drafters of,the Con:vention wanted to express that this specific form of genocide does not only require general intent but a kind of plan or prior reflection within the meaning of the French concept of"premeditation."79 However the term •deliberately' only refers, as the Frenclt and Spanish translations show ("intentionnelle," "intencional"), .to tht? generai.intent requirement.80 . ' .

As a consequence, the keyword is "calculated."8\ It indicates that the imposition of the said conditions must be the principal mechanism used to

73. See supra fns. 71 and 72. 74. See AMBOS, supra note 70, al 805 et seq. (822.24). 75. See SCHA.BAS, supra note 23, at 241; BOoT. supra nole ~I, para.416. 76. Prosecutor v. Kayishema, supra note 6, para. 104. 77 . Prosecutor v. Bagilishema, supra note 7, paras. 57,58; Prosecutor v. Akayesu, supra note 11, para. 501; prosecutor v. Rutaganda, supra note 13, para. 5O;·Prosecutor v. Musema. supra note 28. para. 155. See also AMBOS, supra note 70, at 795, 796. 78. See BOOT. supra note 21; para. 416. . 79. See ROBINSON, THB GENOCIDE CONVEWJON: A COMMENTARY (1960), at 60; SCHABA.S, supra note 23, at243.' . . 80.. See Ambos & Wirth, supra note 43; at 785; Ambos, supra note 70, at 796. 81. Tbc Elements ofCrimes, supra note 23,do noleven mention this tenn.

International Criminal lAw : Quo Vadis ? ~

231

,; . ...destroy the group, rather than some forin of iII-tteatment that accompanies or isinciderital to the crime.82 The ICTR requires that the "methods of des~ction (...). are, ultimately, aimed ."at their (9'e group mem~rs'J phYS1cal destroCtiOIl."83

c) lmposing measures intended 10 prevent births within the group

Any measures imposed must be "intended" to prevent births.. It is not necessary that the perpetrator had the inlent to prevent births completely. It suffices that partial. birth prevention is the purpose of the measures in question.84 ' .

Although ptlblic birth control programmes are indeed intended to . (partially) prevent births, they do not fall under the provision as 10ng as they

arevoluntary, Le., do not exert undue pressure or coercion. Even ifthey are compulsory - as, for ex.amplem China's one-child policy - they do. not constitute genocide sinee the perpetrators do not intend to destroy a groUp.8S

d) Forcibly transferring childrenofthe group to another group

If one conceives this alternative as a form of cultural genocide86 it may be argued that the perpetrator's intent only needs to refer to destroction of the group in a eultural sense, not necessarily in a biological sense.87 This 'would imply,however, that the nature of the specific intent depended on the underlying form of commission. As will be shown below,88 the nature of the destroction depends on the interpretation of the term "destroy" and the interest or object protected by the offence.11Us approach is more convincing because it relates the perpetrator's conduct to the crirne of genocide as a wholeand not only to the - sometimes accidental - performance of one or the other alternative.

2. The speqfic intent reqyiremem

a) General considerations

Genocide requiresthe "spedfic" or "special" intent89 to destroy one of the protected groups. In cornmonlaw, the concept of specific intent is used

82. Schabas, supra no~ 23, at 243. 83. Prosecutor v. Rutaganda. supra note 13, para. 52; Prosecutor v. Musemo, supra note 28. para 157; similar: Prosecutor v. Akayesu, supra note 11, para. 505. 84. Boot,supra note 21, para. 422. 85. Schabas, supra note 23, at 244. 86. See supra H. 2. e). 87. Schabas, supra nole 23, at 245, 228·230. 88. See infra A.ni. 2. b) (i). 89. Triffterer, supra note 7, a.p99, 400, considers lhe expression "genocidal intent" (or the special intent requirementas "deceiving." The problem is !hat there is no better expression.

232 23319Nouvelles.etudes penales 2004 International Criminal iAw : Quo Vadis ? ;. .

.. •

to distinguish offences of "general intent," Le., offences for which no particular level or degree of intent is required. Inthe civil law tradition, specific intent corre$ponds to dolus directus of first degree, i.e., it emphasizes the volitive element of the dolus. It has beensaid·that a specific intent offence requires perfonnance of the actus reus but in associatiön with anintent orpurpose that goes beyond the mere pert'ormance of .the aet ("Uberschießendelnnententeoz''90).91 Ot that it conslstsof "an aggravated criminal intent that must' eXist in addition to the criminal intent;~fIL' accompanying the underlying offence."92 1'et, details are· highly controversial. Ifone takes the quite successfulcognitivist theory93 seriously, the volitive element is DO longer. part of at least the dolus eventualis and, consequently, the specific intent only implies (positive) knowledge of the constituent elements of the actus reus. This theory is, in fact or by accident, the basisof the different and diverse attempts by some writers to lower the subjective threshQld of genocide by way oi a ."knowledge-based interpretation."94 This interpretation also 100 to a proposal during the negotiations of the elements 01 crimes of the ICC Statute which ooly required that the perpetrator "knew or should have known" that her conduct would destroy a groUp.95 Although this proposal was finally rejected, the discussion is by no means over since the followers of the knowledge-based . interpretation would argue that the issue is not one of rewriting the genocide offence but only of correctlY interpreting the specific intent requirement.

As to the case law,in its first decision in Akayesu, the ICI'R defmOO "special intent" as the "specific intention [...] which demands Umt..t.i.e perpetrator clearly seeks to produce the act"96 or "have the c1ear intent to cause the offence."97 A specific intent offence ls "characterized by a psychological relationship between the physicaI result and the mental state of the perpetrator.''9B In a similar vein, the Kambanda Trial Chamber

90 See Ambos, supra nOle 70;.at 789. 91. Schabas. supra note 23. at 218; Triffterer, supra note 7, at 402: "so-calIed crimes wit~ an eXlended mental element." " . 9i Cassese, supra nole 2, at 338. 93. See thefundament,al work of Wolfgang Frisch, Vorsatz und Risiko (1983),101-2, 255 el seq.,JOO et seq. and passim. . .94.· . AuclA Gll. Gll., PERECHO PENAL lloITERNACIONAL (1999), at 231. seq., 236 seq.; Greenwalt,99 COLUM. L. REV. 2259,2265 er seq. (1999); Triffterer, Festschrift Roxin, 1422, 1438 et seq.• 1441 el seq. (2001); Vest, Genozid durch organisatorische Machl/lpparate, at 101 (2002); summarizing: Ambos. supra note 70, at 790-5. 95. U.N. Doc. PCNICC/1999IWGEClRT.1. 96. ProsecUlor v. Akayesu. supra note 11, para 497. 97.lbid., para 518. . 98. Id.• para 518.

referred to the "element of dolus specialis,"99 Kayishema to the requirement •of "specific intent.'·'loo The ICfY took a more sophisticated approach. In Jelisic, th~ special

intent was defined with regard to the discriminatory nature ofthe acts, Le., the selection' ofthe victims because of their membership in Iil protected groUp}OI As to the degree.of intention required, the Chamber, in fact, rejects a knowledge-based interpretation, brought forWard by the Prosecutiori, and follows the traditional specific intent requirement developed by the -1kayesu Trial Chamber.I02 fudeed, the Chamber absolves the accused of genocide since "he killed arbitrarily rather than with the clear intention to destroy a groUp."103 The App. Ch. confmned the Trial Chamber's narrow concept of specific intent and explicitly rejected the Prosecution's broader definition including knowledge}04 In Krstic - in its first genocide conviction - the IcrY distinguished "between the individual intent of the accused and the intent involved in the conception and commission ofthecrime:tlO~ Thus, the Chamber refers, on the one hand, to the collective act of genOcide which is motivated by the specific intent to destroy and which "must be discernible in the criminal act itself;"I06 and, on the other hand, to the individual acts of the participan,ts in the collective act of genocide. 'Wbile the individu81 participants may have different intentions and motives, each participant must share "the intention that a genocide be carried out" in order to be prosecuted for genocide.107 The intent to destroy presupposes that the victims were chosen ,iby reason of their membership in the group whose destruction was sought." Mere knowledge of Ws membership is not sufficient.IOB Similarly, foteseeableness or probability of the destruction of the group - in the sense of the mentioned knowledge~based interpretation­is not stifficient since, according to the Chamber, it is not clear whetherthis

99. Kambanda,Judgment of 4 September 1998 (lcrR 97-23-S), para. 16. 100.. Prosecutor 11. Kayishenra. supra note 6, para. 89. lÖI. Prosecutor 11. Jelisk supranote 14, para. 67 102. Ibid., paras. 84 et seq. t86). 103. Ibid., para. 108. 104. Prosecutor 11. Je/isic, sl/pra note .14, paras. 41 el seq. (46: "[... ) seeks 10 achieve the deslCUction [...).").The Appeals Chamber also stated (para.45 with fn. 81) that when using the term specific intent it "does not attribute to this tenn any meaning it might· carry in anational jurisdiction:' Yet,this is neither helpful nor uue since lhe Chamber cannot compleIeI)' separate internalional from national criminal law and less so as far as the general principles are concerned. 105. Prosecutor 11. Krstic. supra nOle 6; para. 549. 106. Id. 107. Id. 108. Id., para. 561.

. - - ----­ .

ZJ4 19 Nouvelles etudes penales LUU4 ........... 4 _ , _ ,,_•• _ ..,;.. •• _ .. •

standard' reflects customary law and therefore genocide still must be und~rstood in the sense of encompassing only actS "with the goal of destJ.'oying all or part of the groUp."I09 Thus, in fact, the ChamOOr follows the earliercase 'law~ Also, as this case law, it does not analyse in detail the

• concrete Pl'QpOsals of the knowledge-based approach nor does it sufficiently ,_. . distinguisb between the different scholilrly views. JJO '

r<~~~;.,'..,">/'::":' ,!f is '~lear 'that the major p~blem in cases of genocide .is to prove the tt;,~:p,,:, ,;.:~~~c .Ultent. The Prosecution .wants to .overcome thlS problem by ': ' '. 'c' . , IOwer,zrzg lhe standard or degree of tntent required. It should suffice ~at the ,,": ' aceused "cODsciously desired" the destruction of the group or that "he knew

bis acts were destroying" the group.1II In other words, as has been said before, the Prosecution defends what since Greenwalts illuminating paperJJ2 may be called a "knowledge based interpretation" or "standard."

But the lowering of mental thresholds in criminal offences is a doubtful way toovercome problems of evidence. In any case, it is not the only one. The other possibility is a procedural one, Le~, to draw inlerences or conclusions from certain indicia based on objective facts and circumstances, statements of witnesses etc.1I3 Tbe absence of direct evidence, e.g., a confession of the accused that she acted with specific intent, forces any :court, no matter whether it operates on thenational or intematl.onallevel, to

. .

analyse the available indicia and, as the case may 00, infer from them the specific' intent of the accused. The case law used this method already in the - almost forgotten - Rule 61 decision in Karadzic and Mladic. ICTY.L..~h~ 1 then referred to "a certain numOOr of facts," e.g., the general political doctrine which gave rise to the specific acts and to the "combined effect of speeches or projects" laying the groundwork for the acts.1I4 The Akayesu Chamber 'adopted thisapproach invoking"a ,certain number of presumptions of fact" sucl~ as thegeneral cöntext of the perpetration; the scale of atrocities etc. IIS Similarly, the Jelisic App. Ch. refers to "a number

109. Id., para. 571 (emphasis in original), • lIO. ld. The Chamber quotes in fn. 1276 authors who defend, very different alternative concepts. . . 111. Cf. Proseculor v.Jelisic, supra note 68, para.42; Proseculor v. Krslic, supra note 6, para. 569. 112. See supra note 94. 113. Cf. Volk, Dolus ex Te, in: Festschrift Arthur Kaufmann, 611, 613 el seq., 619 (1993), on its original derivation from the "dolus el( re," '.e. (rom the intent which follows from a particular (external) commission of an offence. See also Nlanda Nsereko, supra note 10, at 126. 114. Proseeutor v. Karadzic and Mladic,' Consideration of the lndictment within the framework of Rule 61 of the Rules of Procedure and Evidence (IT-95-5-R61 and IT-95"18­R61), paras. 94-5. 11 5.Proseculor v. Akayesu, supra note 11, para 523 and in para. 524 quoting Proseculor v. Karadzic'and Mladic. supra 114; para. 94: see also Prosecutor v. Ru/aganda. supra note 13. para 61.

of facts and drcumstances" and lists, inter aUa, the general context. the .':'perpetratiori of other acts against the same group, the scale of atrocities COIOmitted etc.1I6 In casu, the T.Ch.established the "discriminatory intent" of Jelisic, although not his intent to destroy the group,lI7 referring not only to the general context but also to his deedsand statements.1I8 The Krstic Chamber refers to simultaneous attaeks on culturaI and religious property as weIl as houses of members of the. group .as (indirect) evidence for a genocidal intent of the accused.1I9 Generally speaking, all acts directed against a protected group which occur during a ,certain perlod in a certain geographical area, Lc!., in casu; the ldlling of 7000-8000 Bosnian Muslim men of military age in 7 days in Srebrenica,t21l are strong indicia for specific intent on the part of the perpetrators.

The' consequenee of the strict distinction .between the actus reus I the corresponding 'mens rea and the special intent as an extended mental element is that it is irrelevant for the completion of the crime wh~ther the perpetrator is in any way succes,sful in desfrOying the group (in whole or in part)pI She needs only intend to achieve this consequence or result. As the defmition of genocide refers to any of tht! following acts of which only the fIrst ("killing") has the victims' death as the essential' consequence, it follows that not a single person must die for an act of genocide to havebeen (completely) perpetrated.122 Qnly Ü one <>fthe five specific acts listed in the Convention as wen as in the ICfY, ICfR and leC Statutes is not completed but only attempted with the necessary special "intent to destroy," an attempted genocideexists.123 '

There is a fInal pr<?blem which only will 00 mentioned heresince it has been discussed in depth elsewhere.J24 lt is the problem of the mens rea 01 participants in genocide, especially accomplices and commanders/ superiors. The case law does not yet offer convincing solutions in this respect. In our view, all formsof direct perpetration, ,Le., the direct and

116. Proseculor v. Jelisic, supra note 68, para. 47. 117. See, supra note 103 and text. 118. Prosecutor v. Jelisic, supra note 14,para. 73 eueq. 119. Prosecutor v. Krslic, supra note 6. para. 580. 120. Id., paras. 594, 598. 121. .Triffterer, supra note 7, at. 402; Prosecutor v. Akayesu, supra note 11. para. 497: "Contrary to papular belief, the crime of genocide does not imply the actuiIJ el(termination of group in ils entirety, but is understood as such once any one of the sets mentionOO in Article 2(2)(a) through 2(2)(e) is committed with the specific intent to destroy [...1a [...Jgroup." I~. Sunga, supra note 8, at 383. 123. Triffterer, supra note 7, at 402. 124. Ambos, supra note 70. at 792 et seq.; for the case law 413-7; see also Sclwbas. supra note 23,259.264-266,275,300-303,304-313.'see also AmbOs, in Trifft(!rer (00.), Commentary on the leC Statute, 2nd 00.,', Art. 25 (2003, forthcoming)

ttes eluaes penates ,l,UUOf J.fuef IlUUVfl.U" '-', ."U/l.U" ............... \r:::UV... ..

inunediate perpetration, co-perpetration and (indirect) perpetration by means, ~ weIl as similar. forms of intellectual and/or' psychological dominationlcontrol of the crime (instigation, inducement, incitement,

. c.onspiracy), require sPecific intent. Accomplices' need onIy positive <, ..Jq~owledge of the genocidal intent·of the perpetrators. In the case of ; }':i~~~~prs:;Of,~~?WlP~ders ~ne. must distingu~sh on what b~is they are held

Ji4k~;:Co~S~OI1·br;onusslOnon tlie b~lS ofthe supenor or command '~'~Porisibility dodrine oi1l.y·requires knowledge or even negligent faUure to , know of genocidal acts.l25 If the superior is. direct1y involved in the

coInmission of genocide by positive acts, e.g., by ordering genocidal acts or inducing them, thespecific intent, as in the other cases, is required. All these question~ deserve further reflections though.

b) The specificelemems ofthe specific intem

(i) "to destroy" . . The specific intent must be directed at the destruction of the relevant

group. Thedestruction is the object of the specific intent. It need nQt ­objectively - occur but only - subjectively - be intended by the perpetrator. While this clearly follows from the wording of article II of the Genocide Convention and subsequent provisions, it is less cleai whether "destruction" requires the physical or biological destruction of the group. This restrictive interpretation is defended by the ILCl26 and by some writers.121 They rely on the travaux of the Convention and argue that cultural genocide in form of destroying a group's filltional, linguistic, religious, cultural or other eJÜStence was fmall)' -despite a proposal b)' the Ad Hoc Committee - not incIuded in the Convention.128 Although the destruction of a people does not automaticallyimply: its physical extinction and having in m1nd iliat destruction of peoples often begin with vicious assaults on culture, particular ll;Ulguage, religious and cultural monuments and institutions, the

125. Por the same view.apparently SchaIJos. supra note 9, Art 6mn, 4; against Schabos but apparentlymisreading him Cossese, 'supra note 2, at 348. 126. See 1996 ILC Report. supra note 38, at 90-91: "As ciearly shown by the preparalory work. for the Convention, lhe destruetion in question is the material destruetion ofa group eilher by physica[ 01 by biological rneans, nallhe destruetion of the national. Iinguistie, religious, cullUral or other idemity of a particulargroup."; see also the earlier stalemenl in: Report of the ILC to the General Assembly on Ihe Work of its Porty-Pirst Session •. V.N. Doc. NCN.41SER.N1989/Add.1 (part 2), p. 102. para. (4) (cited aceo.rding 10 SchalJos. supra note 91. al 229. 230). 127. See, e.g.. Schabas, supra note 23. al 229-3; Barboza, Internatianal CriminalLAw. 278 RdC 9, 59 (1999); Sleven RaIner. The Genocide Convenrion After Fifty Years. 92 ASIL Proceedings I. 2 (1998). 128. Boot. supra note 21. paras. 413-4: Schabos. supra nole 23, al 187; see for further references AinboslWirth. supra note 43. al 791-2.

~

dr3fters of the ICC-Statute excluded acts of cultural genocide as a specific fonn of genocide from Artiele 6 ICC-Statute with the exception of"foreibly • transferring children of the group to another group."129 More recently, the Krstic Tnal Chamber, invoking the nullum crimen principle, took the same view limiting genocide to "acts seeking the physical destruction of a1l or part of the groUp."IJO

or biological

As has beeil argued elsewherep' it is doubtful, however, iftrus restrictive interpretation .is compatible with the wording 01 die Convention and all subsequem genocide'provisions sincethey clearly refer to the "group, 1'11\

such." In other words; the crime ofgenocide is intended to protect not_only the physical existence of the individual members of the group but the' group as a sodal entity. This supra-individual concept of genocide, developed. and . defended above all by the German Supreme Court (Bundesgerichtshof) and the Federal Constitutional Court (Bundesverjassungsgericht) ,132 implies that the int.em to destroy "extends beyond physical and biological interpretation."l33 '1ms does not. mean, however, as the Krstic' Cham~r apparently misreads,l34 that the Gennan Courts den)' that Art. II (c) of the Convention requires - objectively' - a physical destruction. Rather, a distinetion between the actus reus arid the mens rea of the crime of genocide must be drawn and the latter does not limit the offence to the physical de!!truction ofthe group. The fact that the statesparties to die, Genocide Convention were not willing 'to include cuItural genocide in the Convention as one of the specific forms of the act\ls reus does not necessarily influence the interpretation of the specific intent requirement~135 Therefore, the BwtdesveifassUngsgericht correetly affinns that the "text .of the law doesnot [...) compel the interpretations that theculprit's intent must be to exterminate physically [...] members oithe group;"136 ,

129. See supra II. 2. e) and Schabos. supra nOle 23. at 179-89: The issue of including act~ nf eullUral genoeide withln Article 6 of the Rome SlalUie was a very delicate one. as "counu'ies who were conscious of problemswith their own policies IOwards minority groups, specifieally indigenous peoples and immigrants," saw their sovereignty endangele<1, . 130. Prosecutor'v; Krstic. supra note 6. para. 580. 131. See Ambos &. Wirth, supra note 43. at 791 et seq. -132. For references see Ambos &. Wirth, supra note 43. at 791 in fn. 122. 133. BVerfG. supra note 66; para. 22 (English translation quoted according 10 Proseeutor v. Krstic, supra note 6; para. 579). 134. Prosecutor v. Krstic, supra riole 6, para. 579 quoting the BVerftJ only seleclively.. 135. NUlfUJaNsereko. supra note [0. at [28. slates thaI "these aets [thaI costilUte genocide] underscore thefacl that the essence of genocide is the physicaJ destruction or decimalicin of the group.'· Whatever "the essence of genocide" is, according 10 the authors h is not possible 10

' ptojcct elements of the actus reus on the special intent requiremenl as im element of the mens rea. 136. BVerftJ, supra note 66, para. (lIll(4)(a)(aa)•.

" 19 Nouvelles etudes penales 2004 238

.. •

Historically the notion "as such". was.,.. at least as intended by Venezuela, which suggested the amenetrnent - meant to eJ<press the concept ofmotive.131

Schabas tberefore distinguishes "between what mightbe called the coll~tive motive artd the individuaiör personal motive" and requires "a raeist or discriminatory motive, that is, a genocidal niotive."138 Be that as it may, it does not preclude the interpretation of the group as soeialentity as

.:.. :, .. tbe prot~ted legal good of the crime of genocide. . ~~ ~~t·:~ (ii) "in whole or in part"

While there was disagreement as tothe requirement of the lntent to destroy the whole group during the negotiations of the Convention,l39 it is now clear from the wording ofArt. n and·tbe subsequent provisions that it is sufficient that the intent be directed at the destruction of the group "in part." It is still unclear, though, what exact1y a "destruction in part" means, i.e., how mariy members of the group mustbe potentially targeted. The following questions may be formulated:

Is it necessary to intend the destruction of .a significant number of members of the group (quantitative element)?

Would it be sufficient to intend to de.stroy a significant section of the group, e.g., the leaders (qualitative element)?

Would it be sufficient to intend to destroy a reasonably significant number oe section of apart of a group?

Ar, to the first question the answer must be clearly in the affmnattve. Already in 1960 Nehemia Robinson defined genocide .as aimed at destroying "a multitude of persons of the same group,,, as long as the number is "substantial."'~ Tbe Whitaker 1985 Expert Report referred to "a reasonably significant number, relative to the total of the group as a whole."1.41 These definitions \vere in fact adopted bythe subsequent statements of the international authorities. The ILCrefers to a "substantial -part of the ·groUp'."j42 The lCfR speaks, inter· aUa, of a "considerable number of individuals."'43 Duting the ICC Preperatory Commission negotiations it wasnoted that "[T]he reference to 'intent to destroy, in whole or in part [...]' was understood to refer to the specific intention to destroy

137. On this concept see Schabas, supra note 23, at 245 ­ 256; BOOT, supra note21, para. 388. 138. Schabas. supra nole 23, at 255. -139. See Schabas.supra note 23, at 230 et seq. 140. Robinson, supra note 79. at 63. 141. Benjamin Whitaker. Revised and Updated Repon on the question of the Prevention and Punishment of the Crime of Genocide, UN Doc. ElCN.4/Sub.2J1985/6, p.16, para. 29. 142. Draft Code 1996. at 89.' . 143. Prosecuror v. Ka,rishema, supranole 6. para 97; see also Prosecuror v. Bagilishema, supra note 7, para. 64: "at least a substantiitf part."

International Criminal Law : Quo Vadis ? 239 $.5";

144. Draft Sta!Ule for the ICC. Pan i. lurisdiction, Admissibility. and Applicable Law', UN Doc. A1AC.249!1998/CRP.8,p.2. n.l. See also Schabas, supra note 9, Art. 6 mn 5 with referimces. 145. See as an example the discussion of the. problem by Cassese, supra note~ 2, at 347-8 referring to Leila Wexlet Sadal & Jordan Paust. Model Draft Starure, 13ter NOUVELLES ETUDES ~NALES (1998), at 5. 146. Draft COde 1996, at 89. 147. Prosecutor Y. ie!isic, supra note 14, para. 83; Prosecutor Y. Krstic, supra note 6, p~rn. 560,589; BGHSt 45. 64 (81); BVerfG, supra note 66, para 22-24. 148. Prosecutor Y. Krsric", supra note 6. para. 590 (emphasis added). 149. Id. 150. [hid. 151. Whitaker. supra note 141. para. 29. 152. Prosecutor Y. Karadzic andMladic: Tianscript of hearing of 27 lune 1996 (IT-95-18­R61, IT~95-5·R61), p. 24. 153. lCI'Y Trial Chamber. Prosecutor v. Sikirica et al.. Judgment on Defence Motions to Acquit of 3 September 2001 (IT-95-8-T,), para. 65. 76; Prosecutor v. Jelisic, supra nOle 14. paras. 79-82; Prosecutor v. Krsric. supra note 6. para. 587. .

more than a small number of individuals (... ]"144 Critics of this quantitative requieement often do not sufficiently distinguish between the objective atld subjective level.'4'

In this eontext it was also argued thllt itis not neCeSSary toto intend to achieve the complete annihilation ofa group fromevery corner of the gloOO."I46 From this it follows that it is suffiCient to intend 10 destrOy a

.geographically limited part. of a group.141 The Krstic Trial Chamber considers as the decisive factor that the perpetrators seek "to destroy a distinct part of the· group as opposed. to an accumulation of· isolated individuals within it" and that they "view the partof the group they wish to destroy as a distinct entity which must be eliminated'as SUCh."148 Ir this is the case, "the kiIling of all members of the part of a group located within a small geographical area, although resulting in a lesser number of victims, would qualifyas genocide [...}"'49 In turn, if the members of the group were onIy killed selectively over a broad geographical area, the specific intent requirement would not be shown} so

Also, the second question, regarding the qUalitative element, has been answered in the affmnative a1ready by the Whitaker Report referring explicitly to "a significant section. ofa group, such as its leadership."151 This statement has OOen adopted by tbe Prosecutor'52 and the Chambersl53 of the ICf.Y. However, it is doubtful wheth~e the intention to destroy the leader:ship of a particular group constitutes genocidal intent if it remains an isolated act, Le., if it does not entail the complete disappearance or end of the group. In other words, the consequences for the group' as such must be taken into account. One may, in accordance withthe J 994 Report of the Commission of Experts, argue that "the atta~k on the leadership must be .

.. '

..

~s LUU4

viewed in lhe context o[ the [ate o[ what happened to the rest o[ the group."154 In this sense, the attack concerns only a significant seetion of the group if it enuUIs serious consequences for its existence. .

Thc third question came up in Krstic. Tbe Chamber, taltirig the Bosnian Muslims aS the protected group,JSS had to deeide whether the Bosnian Muslim men of military age ofthe town of Srebrenica "represented a ,sUfficient part of the Bosnian Muslim group so that the intent to destroy them qlialifieSas an 'intent to destroy the group in whole or in part."'IS6 In the light of.the.criterion mentioned above it answered tliis question in the affIrmative since the "Bosniari Serb could nothave faiied to know [...) that this selective .destruction of the group would have a lasting impact on the entire group," they "had to be aware of the catastrophic impact that the disappearance of two or three generations 'of men would have on the survival oia traditionally patriarchal society [...)." It was sufficient that "[t]he Bosnian Serb forces knew {...] thaI the combination of those killings with the forcible transfer of the women, ehildren and elderly would inevitably result in the physical disapPe~ance of the Bosnian Muslim population at Srebreniea."151 In fact, the Chamber referred to a "part" of the group of the Bosnian Muslims in the form of the Bosnian Muslims of the Srebrenicacommunity. Thus, the questionarises how small a "pari" oia Pf9tected group can possibly be to constitute the object of proteetion of the crime. It is elear that by narrowing down the eoncept of group to very small parts or units of a broader group the scope of the cnme may become in fact unlimited. By considering'the Bosn~an Muslim men of Srebreniea as part of the group of the Bosnian Muslims, the Chamber, in fact,performed a double

, reduction of the actus reus: 1t redueed the Bosnian Muslims to the' ones living in Srebreniea and further to the Bosnian Muslim men of Srebreniea. Thus, in fact, the Chamber analysed whether the Serbs intended to desti"oy a part -"the Bosniaq Muslim men of Srebrenica • of a part - the Bosnian Muslims of S~brenica • of the group of the Bosnian Muslims: One eould even argue that it constitutesa further reduetion of the group ccneept if the Chamber refers t9 the Bosnian Muslims instead of the Muslims' as a religious group as such.

Be that as it may, the discussion shows that it is necessary to delimitate more clearly what is meant by "in whole 01' in part." Thisis evenmore true if one, onee again, keeps in mind the strueture of the offence as a erime of

154. Final Report of the Commission of Ellperts Establishe,d pursuant to Security Council Rewlution 780 (1992). U.N. Doc. 511994/674, para. 94 (emphasis added). . 155. Proseeutor v. Krstic, supra nOle 6~ para. 591. 156. Id, para. 581. 157. ld. para 595.

~flterflUIlUflW l,H/lllflUt LMW • \.tuu, YUUt~ [ "''+1

intention (Absichtsdelikt), Le., an offenee where the mens rea of the perpetrator i5 dominating and prevails over the actus reus. Onee again, the »

perpetrator need not objectively destroy a group "in whole or in part" but only intend to doso.' .

(iU) "a group"

The perpetrator's intent must be directed towards the destruction of a "graup". Groups consist cf individuals, and therefore,destructive action must ultimately be takeit and directed against individuals. However, these individuals are not per se important hut only as members of the group to whieh they belong.U8 They must be targeted because of their membership in the groupP9 In other words, the ultimate victim cf genocide is the group, although its destruetion necessarily requires the eommission of erimes against its members, that is, again5t individuals belonging to th~t group.'60 As has been said before (supra (i)), the crime of genocide protects the group as a social, supra.individual entity, it protects the group u!lS such." While ordinary eriminallaw protect the rights and legal interests of individllals. e.g. their right to life, tophysical integrity, to prope.rty, ete., the crime cf genocide protects the right of certain groups to exist. J6J

2. Crimes Against Humanity

A. The context element

1. Widespread oe ßj'stematic attack a)Attack

Tbe case law defInes attack as the multiple commission oj acts whieh fulfil therequirements of the inhumane acts enumerated in Art. 5 ICfY Statute and Art. 3 ICTR Statute.162 Thi; is asolid and convineing definition which excludes isolated and random.actsl63 and,in addition, eoncurs with

158. Robinson, supra note 79,'aI58. ." 159. Prosecutor v. Akilyesu,supru nOle 11, para 521: "Thus, the victim is chosen not because of his individual identity. but rat1ler on llCOOunt of nis membersnip of anational, etlmical. racial or religious llrouP. The victim of the act is therefore a member of a group, chosen as such, which, hence, inean~ that the victim of the crime of genocide is the group itself and not only the individual." See also Prosecutor v. Kayishema and RuzituJana. supra note 6. paca 97. 160. ICTYTriai Chamber, Pr.osecutor v. SOOrica, supra nOle .153, para 89. . 161. Correctly NtandaNsereko,supra nOle 1I,aI124: "While the aimofthe Iaw ofhomicide is to proteet the rignt of an individual to live. that of genoci~ is to protect the rlgnt of g~ur~ to physically exisl as such." , 162. See Ambos & Wirth, supra note 2-, at 16 with further references; see also Mettraux. supra note 2. al 259-61. 163. See Roger Clark, Crimes Against Humanity and the Rorne StatUle, in EssAYS IN HONOUR

OF GEOR(JE G/NSBUR(JS 139,'152 (Clark, Feldbrugge, & Pomorski eds., 20(1): Dixon, in:

Ul-JG . 19 Nouvelles etudes penales 2004

Art. 7 (2)(a) Rome Statute referring to "a course of eonduet involving the multiple eommission of aelS refeired to in paragraph 1;" Thus, the attack is not limited to a military attack but also comprises rather peaceful or non­violent means such as imposing a system of apartheid. IM Conversely, a military operation is not necessarily an attaek unless it is direeted against the

.eivilian population (see infra C»)".16S Onthe other hand, the multiple eommission of other aets than the ones enumerated in the Statutes, i.e., . human rights violations such as the denial of fair trial, the infriilgement of property ete., eannot, ·as a ruIe, eonstitute an ~'attaek." However, such violations may be included in the eatch all provision of"other inhumane acts of a similareharaeter" (Art. 7 (2)(k) Rome Statute),J66

The mode 01commission is not strictly defined, A multiple commission of aets may be performed by one single perpetrator or by yarious perpetrators aeting·at one time or at various times. Ifa death squad kilts the· members of the. political opposition during a long period of ~me its members eommit multiple kiIIings through various acts at different times. Also, a single perpetrator who throws a bomb in a crowd of people or poisons the driitking ·water of a village commits multiple kiIIings but she only resorts to a single act; still the multiple killings constitlite a "multiple eommission ofaets" within the meaning of an attaek. Similarly, if a terrotist group flies a plane in a civilian building and thereby causes the death of various persons, Its members eommit multiplekillings, with one single aet. lf the same erime is eommitted with various planes against dlffereJit buildings, the group, in addition to the multiplicity cf killings, uses various acts at one time instead of only one single acl.

b) Widespread or systematic

A wfdespread attaek requires a large number of vietims which, as pointed out above, may either be the result of multiple aelS or a single ael "of extraordinary magnitutle."!67 The common denorninator of a systematic attaek is that it is "carried out pursuant to a preconceived poliey or plan."I6l!

Triffierer (ed.), supra note 9, Art. 7 mn. 4; G6mez-Benftez, Elemenios eommunes de los erimenes contra la humanidad en el Estatuto· de 1a CPI e!e., 7 CUADBRNOS OB DBRBCHO

JUDlCIAL (Escuela Judjciat. Consejo General dei Poder Judicial) 9 (200I). at 2\. 164. See already."Prosecu!or v. Akayesu, supra note \1, para. 581. See also Mellraux. supra note 2. al 246: Duon. supra note 163,Art. 7 mn. 8. . 165. Cf. Mellraux. ~upra nole 2. at 246. 166. Cf. Ambos & Wirth. supra note 2, at 83-4. 167. Proseeutor v. Bkukic, Judgmeni of 3 March 2000 (lT-95-14-T). para. 206; Prosecutor v. Vasiljevic, Judgmenl of 29 November 2.002 (IT-98-32-T) para. 35. See tilso Ambos & Wuth,

.supra note 2, al 20-1 ,30. 34 with further references; conc. GOmez-Ben{tez, supra note·163, at 30. 168. Proseeutor v. Bagil/shema. supra note? para. 77; Prosecutor v. Vasiljevic, supra note 167. para. 35. See also Ambos & Wirth, supra note 2. at 18-20.30 with further references.

International CriminalLAw : Quo Vadis ? 243 ·(t·

The attack is systematic if it is based on a policy orplan which serves as a ~ . guidance for the individual perpetrators·as to the object of the attaek, i.e., the specific victims.

While these definitions as such afe moreor less elear, it is a compIicated question how these elements are interrelated, Le., whetherthe a.ttack must be either widespread or systematic (alternative approach) or hoth (cumulative .approach). At first sight, the case lawl69 and some codifieations, such as the ILC Draft Code 1996,170 UNTAET Regulation 15/2oooP.' and the Special Court Statute for the Special Court för Sierra Leone172 seem to adopt the alternative approach. The doctrine normally follows this approachl73

without, however, discussing the issues involved adequately. On the other hand, Art. 7 (2) (a) lCC Statute requires that the "multiple commission of aets" be based ("pursuant to or in furtherance or') on a certain P9licyand. therefore, seems to opt for the eumulative approaehP4 How can these apparent contradictions be reeoneiled? More concretely: is there a possibility to interpret Art. 7 (2) (a) in accordance with the alternative approach which is explicitly adopted by Art. 7 (1)?

The ~olution to this problem lies in the function accorded' to the policy element. Whereas article 7(2)(a) of the lCC Statute expressly requires this element, the question whether itis required under customary international law is subject of ongoing debate.17S In fact, the poliey element is thc international element of crimes against humarn.ty, it converts otherwise ordinary crirninal aets into erimes against humanity. In essence, the policy element oruy .requires thatthe acts of individuals alone. which are isolated, uneoordinated, and haphazard, be excluded.'76 Such ordinary crirninal

169. See the references in Ambos & Wirth. supra nole i. at 18 with'fn 81. 170. Art. 18: "I...Jin a syslematic manner or on a largescale [...]" (1996 ILC Report. supra note 38; GAOR. Fifty-firstSession. Supplement No. 10 (A/5I/10), at 14 et seq. (paras. 50 et seq.». 171. ·Available at http://www.un.orglpeaceletimor/untaetRIr-2000.htm. See also Ambos·& Wirth, supra note 2. al 26,88 and AmboslO!hman (eds.). New approaches in international criminal juslice, Freiburg i. Hr. 2003 (forthcomiilg). 172. Statule of 22 January2002. Available at http://www.specialcourt.orgldoeumentslStatute.html. See also· Ambos10thman. supra notll 171. ' 173. See.e.g., Swaak-Goldman. Crimes Agains! Humanity, in McDonald & Swaak-Gol.dman. supra note 10. 141, at \57. 174. For this view see Clark. supra note 163. at 155. 175. See M. CHERIF BASSlOUNI. CRIMES AGAJNST HUMANITY IN IN'I1lRNATIONAL CRIMlNAL LAw. 243 er seq. (2d ed. 1999); Cassese.supra note 2. at 360; BOOT, supra note 2\ ;paras. 458 er seq.; Ambos & Wirth, supra not~ 2, at 26,28 e! seq.with further references; Prosecutor- v. Kunorac, supra note 215. para. 98; prosecu!or:v.Vasiljevic. supra note 167. para. 36. 176. Duon. supra note 163, Art. 7 mn. 92; 1996 ILC Report, supra note 38. at 94; See also Prosecutor v. Dragan Nicolie, Review of Indictment pursuant to Rule 61 of the Rules of Procedure and Evidence, 20 OCtoberl995 (IT-94-2-T). para. 26. .

.J.' .... L' , ..........."', ........ ""'" •• , .. .,~_ .. ...-... ••• ~""V ............... "UUH:.> ~ VV#f

~

offenees, even if committed on a widespread scale, do not constitute crimes against humanity. ü they are not, at leaSt, tolerated by aState Of an organisation.1n While the policy element is already part of the definition of the ~nn "systematic," this is not the case with regard to the notion of

.. "wideSpreäd." According to the definition set out above, "widesptead" only ~"; ~UiIeS a luge num\>er of vietims. Such a pure quantitative standard wouJ,d

i,~\; {::<.': :tnof;';)i~wev~r,'providefor a clearcut delimitation between ordinary domestic f)~?f{:''!::'" '.> 'i 'ana:ihtemaüonal crlmes.lt would, in fact, put on an equal fooüng ordinary I; ...' "crimes and crimes against humanity and thereby eliminate the international

element which makes the difference between the two.178 Tbus, to conStitute crlmes against humanity, crimes committed on a widespread seale must be linked, in one way or the other,to state or organisational authority; they must, at least, be tolerated by such authority. For the interpretation of the controversial formulation ofArt. 7 (2) (a) lee Statute thismeans that it need not. be interprete<I in the sense of the cumulative approach but only as an expression of the • generally recognized - need of the policy element in both the systematic and widespreadalternative of crimes against humanity.119

Tbe question remains what exactly is required by a policy to commit crirnes against humanity? While it is beyond controversy that an implicit or defacto policy is sufficient,180 it was hotlydebated in Rome and New York.· whether mere toleration of the erimes by the State or organisation would be sufficient. As is wen known, the Elements of enmes offer a contradictory proposal: On the one hand, it is required that "the State or organisation actively promote or encourage" the aets, on the o.ther, it is admitteu;"h-. a footnote, that such a poliey may, in exceptional circumstances, "be implemented by a deliberate fai/ure to take action." It is clear that the former "active" approach wOJ,lld make it difficult, if not impossible, to consider widespread crimes as crimes· against humanity since active promotion Of encouragement by the entity behind these crimes ean hardly be proven. Apart from this rather strategie argument the substantive isime is whethee such a high threshold Jscompatible with customary international law and whethersuch arestrictive understanding of erimes against humanity makes sense at alt In OUf view, the answer rru.\st be clearly in the negative. Customary intemationallaw does not require an active polley. On the basis of nationaland international case law and practice since Nuremberg, itmay

177. Cassese. supra note 2. at 356. 178. Cf. BASSIOuNI,supra nOleI75,aI245. 179. Cone. G6mez-Benflez, supra nole 163, at 27-8. See also sect. 7 ofthe Gennan Völkmtrofgest/%bllCh (i1!fra nOle lß9) 'only requiring "a wklespread or systematic attack.;· 180. See Ambos & Wirth, supra nole 2, at 27-8; Dixon. supra nole 163. an.7 mn. 93; boLh

. with further references.

•

even be argued, as Mettrauxl8 / recently did, that this requirement i5 not

trelevant ~t all and only serves as "one of the faetors which a court can take into account to conclude th~t an attaek was· directed upon a civilian .population [... ]."J82WhiIe this may gotoo far in light oIthe explicit wording of Art. 7 (2) (a) lee Statute, more than toleration or implicit approval need not ex1st.18J !fit were otherwise th,e widespread element would be eliminated froffi Art. 7 (1) lee Statute for a whole range of cases where the entity behind these crimes would notactively promote oe furtber them. l84 Tbus,

.Art. 7 (2) (a) leC Statute mustbe interpreted restrictively in $at it does not ~uire an active policy of the State. or organisation to promote and/or encourage the erimes but that a tc;>leration of these crimes, at least inthe widespread alternative, is sufficient.

. .

2. Directed against MY cjvilian population This requirement is a reminiscence of the war crirnes legacy of erimes

against huma'nity.185 The reference te "population" is identical to the element oE attack in' that .it hnplies a multipiicity of victims excluding isolated and randem acts.186 It adds something new, though, in that it refers to "a self-containedgroup oE individuals,either geographically or as a result of ether common features."'87 However, this additional element should not be interpreted too restrieti:vely, e.g., requiring that the·population must be targeted indiscriminately rather than selectively,!88 This would conflict with same of the und~rlying offences whieh, in practice, have been committed selectiv~ly, think for example of the practice of disappearances in South Ameriea .or the persecutions of the political opposition on the same continent as well aS in Asia and Afriea.

Tbe qualifier "any" _es clear that the victims may passes the saine nationality as their perpetrators, Le., crimes against humanity are not

181. Mettraux, sUp'ra note 2, at 270-82: "Ln fact, Ibis requirernent appears tobe contradieted by almost all releVll.l\t v.:riting on the &ubjeCt and by the overwhelming pracl~:' (110). 182. Meltraux, supra note 2. at 282. 183. Cf. Prosecutor v. Kupreskic el al., Judgmenl of24 January2000 (IT-95-16-T). paras. 552. 555 requiring toleration. "implicil approval or endorsemenl." Cf also Casse.re. supra nole 2. ac 375-6; Alieia Gi! Gil. Die Tatbestände der Verbrechen gegen die Menschlichkeit und des VlJ/kermords im Römischen Statut des Internationalen Strafgerichtshofs• 112 ZErrsCHRJFr FüR

DIE GESAMTE S1'RAFRacHrsWISSENSCHAFr (ZSTW) 381,385-6 (2000); BOOT, supra note 21. para.462; Gamet-Benitet. supra note 163. at 22 er seq. with a teieological inlerprellition. 184. See Ambos & WIrth, supra note 2, at 33. 185. Bossiouni, supra note 175. sI 18 er seq. See also Mettraux. supra nOle 2. at 299-301 indicating the dislinelions belween crimes against humanily and war crimes. . 186.. See Ambos & WirtlJ., supra nOle 2, at 21-2 with fucther references. . 187. Meuraux, supra note 2, 8.t 255; alw at 250: not only ", Ioosely COllnecte4 group of individuals," 188. Meltraux, supra nOle 2. at 255.

247 19 N,ouvellesetudes penales 2004 246

•

limited, as war crimes, to crimes against nationals of a foreign State}89 Tbe acts must be "directed against" the population, Le., it must be"the primary object of the attack."I90 .

Tbe relationship with the laws of war is still more obvious inthe case of the requirement Ihat the victim must· be a "civilian."191 There is general agreement that the defmition of the term in humanitarian law serves as a

. ,juidanee or; at least, starting point, for crimes against humanity committed during armed· conflict. tonsequently, inthis situation, civilians are all personswho arenon-eombitants in thesense of common article 3 of the Geneva Conventions. More concretely speaking and following .the Blaskie Trial Chamber definition, a civilian is everyone who is no longer an active eombatant in the "specific situation" at thetime of the eommission of the crime}92 This includes former combatants and membersof a· resistanee movement that are "no longer taking part in the hostilities [.•.]."193 One may also include members of the police sinee they are in charge of the civil order and as such non-eombatants.I94'

Tbe situation is different, though, in. times of peace. In thismoment humanitarian law is not applicable and therefore the law of crimes against humanity must afford a broader proteetion.19S Since there are no "combatants" duringpeace time, it would Ihake no sense to follow the humanitarian·law definition of the term "civilian'; and exclude combatints from the scope of application of crimes against humanity.· Consequently, everybody, includingthe police,'96 is a "civilian" and may be the victim of crlmes against humanity. Only such a broad definition takes sufficiently into account the underlying rationale of crimes against humanity, Le., the penal proteetion of the human rights of all human beings ·against widespread and systematic violations of certain fundamental rights. At the same time, such a broad definition enables the courts, at least in peace time, to overcome the unneeessary and harmful restriction of the offenee by the inclusion of the

189. See Ambos & Wirth, supra note 2. at 22 with further references; Mettraux.supra note 2, at 254. 256, 299-300; Dixl'n, supra pote 163.Art. 7 mn.13. . 190. ProsecUlor v. Kunarac, Judgment of22 February 2001 (IT-96-23-T). para. 421. See also Mettraux. supra note 2, at 247. and 253 with further references; 191. See Ambos & Wirth. supra note, at 22-6. For a good discussion see also Swaak­Go/dman,supra note 173. at 154-155. 192. Prosecuror v. Blaskic, supra note 167. pllI1l. 214. 193. Proseeutor v. Blasldc. supra·note 167, pllI1l. 214. See also Cassese.supra note 2, at 375; Dixon. supra note 163. Art. 7 mn. 13, On the broader post WW 11 national case law see AmboslWinh, supra note 2; at 23 with references. 194. See Ambos & Wirth, supra note 2, at 25. 195. See Ambos & Wirth, supra note 2. at 24 with references. 196. In the contrary: Prosecutor v. Kayishema, para. 127; concurring with the judgment: Metrraux. supra note 2, at 257.

" . ,.. International Criminal Law : Quo Vadis ?

element "civilian." Obviously, this definition cannot be transferred easily to the situation of armed tonfliet. Here, thc definition derived from. h\.!manitarian lawand the existenc~ of combatants makes it dit'ficult, if not impossible, to emplgy adefinition which,in fact, ignores.the wording ofthe international instruments. Tbe best to be achieved is the broad definitionl97

adopted by the Tribunals whieh; inter alia, implies that the characterof a predominantly civilian population is not altered by the presence of certain ·non-civilians in their midst:<I98 Ultimately, the only effective r~medy for the situation.of armed conflict is to remove the word "civilian" as soon as possible from Art. 7 ICC Sta~ute.

3. Tbe nexus between the individual aets and the context element .Certainly, there has to be a link between the individual criminaI acts and

the eontext of a widespread or systeniatie attack. Tbe wording of the chapeauofarticle 3 ofthe ICfR Statute and article 7(1) ofthe Rome Statute provide that the enumerated criminal aet must be "committed as part of a widespread or systematic attack" (emphasis added). Artic1e 5 icry Statute provides 'that a Person is responsible "for the foUowing crimes when committed in armed eonflict [...} and directed against any civilian P9pulation."

Tbe individual, underlying aets must be part of the overall attack. Tbey must be "part of a pattern of widespread and systematie crimes directed against a civilian population."I99This nexus requirement exelud~s isolated aets, e.g., the single killing of a member of thevictim group in her place of exile if they are t06 remote from the core of the attack.lt does, however, not, as has been pointed·out above, exelude single aets per se if they only form' part of the overall attaek. In other words, the commission of a single' underlying aet may constitute a crimeagainst humanity if it fits into the pattern of a widespread or systematic commission.200

197. See AmboslWirth, supra hote 2, at 22 with references; Mettraux, supra note 2. at 256-57 with fn. 91. • 198. See the referimces in AmboslWtrth, supra note 2. at 26 with fn 124; M"et"aux,supra note 2. at 257 with fn 95. 199. Prosecutor v. Tadic, Judgment of 15 Ju1y 1999 (IT-94-I-A). pllI1l.248~ 255. See also Mettraux, supra note 2. at 251-2; Duon. supra note 16j. Art. 7 mn. 10; AmbosiWirth, supra note 2. at 35-36. 200. Prosecutor v. Mrksic, Review of the Jndlctment Pursuant to Rule 61 of Rules of Procedure andEvidence. 3 April 1996 (IT-95-13a-R61). paras. 29-30; Prosecutor v. Tadic. Opinion and Judgment, 7 Ma)' 1997 (IT-94-1-T). para. 649; Proseeutor 1'. Kayishema. supra note 6. para. 135: Proseeutor v. Kupreslcic et a/."supra t1ote·183, pllI1l. 550; Prosecutor v. Kunarac. supra note 190, para. 417; Prosecutor 1'. Kordic and Cerkez.Judgment of 26 February 2001 (IT-95-4/2-T), para. 178; Prosecutor v. Bagi/ishema. supra note 7, para. 82. See ;I!so Mettraux, supra note 2, at 251; Duo';, supra note 163, Art. 7 tim. 9; Gbmez-Benltez, supra note 163.at 32.

ei/es etudes penales 2UU4 ;~.: ­

,

The case law requires two "elements" with regard to the nexus: On the One hand, "ibe crimes must be committed in the context of widespread or systematic crimes against a civilian population" (material element); on the other, "the accused must have known that his acts. 'fitted into such a pattern'" (mental element).201 Additional eiements are regarded irrelevant. With regard tothe material element - for .the mental element see infra 4.­both "ad Me Tribunals'made clear that the underlying offenee need not constitute the auack:202

"[t]hecrimes themselves need not contain the three' elements. of the attack (...), but must form part ofsuch an attack,"203.

"It is sufficient to show that the. aet took place in the context of an accumulation of acts of violence which, individually, may vary greatly in nature and gravity,"204

A more precise definition of the required link may be derived from the· rationale of crimes against humanity. 1t consists in the protection against the particular dangers of multiple crimes supported or unopposed by the authorities. Thus, an adequate testto determine whether a certain actwas part of the attaek ia to ask whether the act would have been less dangerous for the.victim if the attack and the poliey had not existed ,205

In eontrast to the crjme of genocide. the victim of the individual aet of a crime against humanity n~ not necessarily be a member of s specifically targeted group. The Prosecution only needs to prove that the victim was targeted as part of an sttack against a eivilian population.206 It is unnecessary "to demonstrate that the victims are linked to any particular side of the conflict,"207 Finally. the perpetrator mayaiso be a member of the targeted group itself.208

201. Proundor v. Kordic, supra note 199. para.. 1ß7; Prosecutor 11. Tadic, A.Ch. Judgment. supra note 199, paras. 248, 255; Proseeulor v. Kupreskie~ supra note 183, para. 556. 202. Proseeulor v. KU1IlJrac, supra note 190. para. 417; Proseeulor v. Kuname. Judgment of 12 June 2002.(lT~96"23 &IT-96-23/1-A). para. 85; Proseeulor v. Tadie, A.Ch. Judgment, supra 'note 199, para. 248: Proseeutdr v. 8agilishema. supra note 7, para: 82. 203. ProseelUor 11. Ka)'ishema. supra note 6. para. 135. 204. Proseculor v. Kunarae, supra note 190, para. 419. 205. Ambos/Wirlh, supra note 2. at 36. See for examples where this is not the ease: Mellraux, supra note 2, at.251, 252. 206. Mellraux, supra note 2, at 256, gives the example of a German who is detained or tortured for hiding a Jewish friend during World War 11 ellen though he was not part of the targeted Jewish population. 207. Prosecutor v. Kunarac. supra note 190, para. 423; Proseeutor v. Akayesu, Judgment of 1 June 2001 (lcrR-96-4-A), para. 437. 208. Mellraux. supra note 2, at 256.

International Criminal Law : Quo Vadis ? 249 ..

4.The mens rea It is clear (rom the. wording of the ICC Statute. ("Knowledge ofthe "

sttack") that each perpetrator must know that there is an attac.k on the civilian population; Tbe perpetrator must also know that her individual act forms partof that attack. Both elements are usually dealt with jointly and concurrently.209 .

While it is clear thatthe knowledge requirement' in crimes against humanity is specific in that it Olily refers to the "attack" and as such must .not be confused with the. general intent requirement which applies to the underlying acts of crimes against humanity,210 iUs less dear whether the general mental element, as now codified in Art. 30ICC Statute, in particulllr tbe definition of knowledge in para. 3, must be taken into account for the determination of the knowledge requirement. If this were the case,i.e.• if one conceives the knowledge requirement not as.a specific subjective or mental element of crimes against humanity but only as the expression ofa general intent requirement.211 Art. 30 (3) leC Statute would apply and the perpetrator would need to be "aware" of the attack. If, on the other hand. one considers that the knowledge requirement is a specific subjective element of crimes against bumanity which mllSt be\lefined on the basis of customary internationallaw, independent of the genetat definition laid down in Art. 30 (3) ICC ·Statute.212 one arrives at a broader definition of knowledge as developed by the case law ofthe ad hoc Tribunals. While the Tadic Appeals .Chamber still spoke of knowledge of the attaek. without qualifying the requirement rurther.213 the Blaskic Trial Chamber introduced what one could call a "risk orientatedapproach....l\ccordingly. knowledge "also includes the conduct of a person taking a deliberate risk in the hope that the risk does. not cause injury."214 This approach was most recently confirmect by the Kunarac Appeals Chamber21S adopting the Trial Chamber's view that the' perpetrator must "take the risk that bis act is part of the attack."216 .

At frrstsight, it .appears as if these two standards. knowledge in the sense of Art. 30 (3). leC Statute and the· risk-orientated approach, seem

209. E.g. BOOI, 3upra !lOte 21 ,para. 467: Mellraux, Jupra note 2, st 261~263. 210. See also Mmraux, supra note 2, at 254. 211. Cf. Ambos, supra note 70, at 774. 212. Amhos/Wirth, supra note 2. at 39. 213. Proseeutor v. Tadie,A.Ch. Judgment.supra note 199, para. 271 214. ProueuUJr v. Blaskie, supra note 167,·para. 254 quoting DesporleslLe Gunehec in fn. 483. 215. Proseeutor v. Kunarae. supra note 202, para. 102; eone. Proseeulor v. Vasiljevie, supra note 167, para. 37. 216. Proseeutor v. Kunarae. supra note 190. para. 434. See also Metlraux. supra note 2, at 261. .

250 19 Nouvelles etudespenales2004 International Criminal Law : Quo Vadis ? 251 ;;.• i'

incompatible. Indeed, it has been argued elsewhere that knowledge according to Art. 30 (3) ICC Statute does 'not embrace awareness of a mere risk.217 Consequently, if one considers the knowledge requirement in crimes against hum~ity asa general intent requirement the risk orientated approach would not be applicable. It would then only.help to mvoke the "unless otherwise provided" fonnula or Art. 30 Ice Statute and argue that the knowledge requirement in crimes against humanity i8 lex specialis and 'as such derogates the lex generalis of Art. 30 (3) ICC Statute.2li Yet,.there may be another way of reconciling the apparently contradittory interpretations ofthe knowledge requirement. One could redejine Art. 30 (3) ICC Statute in the light of the risk orientated approach. This would mean that knowledge as a general mental element always must be understood in the sense of awareness of the risk of one's conduct, more concretely speaking, being aware of the risk thatthe conduct could. fulfil a circumstance which would convertthe act into an international crime. This interpretation wouldbe supported by the already mentioned cognitivist theory since this theory conceives intent (dolus) asknowledge of the risk that a certain conduct will lead to a certain offence.219 .

This risk-orientated approach is complementedby the standard of "constructive knowledge" which, according to thecase.law, fonns part of the definition of knowledge.220 This highly controversial concept imputes knowledge on the basis öf certitin indicia and constitutes amere negligeitce standard .in the sense of a wilful blindness221 and "should have known" standard known fröm the superior responsibility doctrine.222 While~nhe'use

of certain indicia to infer knowledge is generally reeognized in tbe law of evidenceand'a necessary teehnique to prove a (specific) mental element (also adopted by the ad hoc TribunalsW ), one must not confuse this technique with the "constrilction" ofknowledge on the basis of mere assumptions and suspicions. Such an imputation ofobjectively non-existing knowledge operates on a Iictional basis and violates the principle cf guilt. AU the more caution 1s necessary in the light of the gerierally low standard applied by the Tribunals with regard to the.scopebfthe k7wwledge required.

217. AmboslWirth, supra notc 2. at 39. 218. See Am1xJsIWirth. supra notc 2. at 39. 219.Cf. Frisch, supra note 93, at 341 er.seq. (34.1: "Notwendig ist das Wissen um das der. Handlung eignende und (normative) ihre TatbestandsmJIßigkeit begründende Risiko [...IU). 220.see AmboslWirth, supra note 2, at 38 with references.in in. 178. 221.see R. v. Finrti [19941 S.C.R. 701, 812; AmboslWirth, supra note 2,at 38-9. 222. See Ambos, supra note 70, at 696-7, 699-700; id.• in:. Cassese, supra note 2, 823; at 864 et seq. 223. See Mimralu, supra note 2, at 262 with fn. 124 and supra A.llI. I. c).

The perpetrator need neither know the details of the attacknorthe details of .~,the underlying plan or policy.224

11. The individual acts

I, The mental state requjred with regard to the individual crimjnal ifcts Apart from the general intent as defined in Art. 30 ICC Statute there is

no other mental requirement with. regard to the individualcriminal acts of crimes against humanity. In particular, since the Appeal Chamber decision . in Tadic, it is clear that crimes. against humanity in general need not be committed with a discriminatory intent.2;.' This also applies to Art: 3 ICI'R Statute since the reference to certain discriminatory grounds can be read as a characterization of the attack rather than of the mens rea of the perpetrator.226 Tbe sole category in which discrimination comprises an integral element of the prohibited conduct is the crime of "persecution."

By the·same token, in principle, motives (as distinct from the iment) of the accused do not fonU part of the mental element.227

2. The indjvidual acts a) Murder

Article 7(2) of the Rome Statute does not explain the term "murder." It was regarded as a concept sufficiently well-understood in alllegaisystems as not to requirefurther elaboration.228 Still, national legal systems do vary to some extent with regard to the doctrinal details.229 According to Bassiouni state practice defin~s murder in its "largo sensu" meaning as including the

224. Prosecutor v. Kunarac, supra note 215, para. 102-4. See also Ambos, supr:a note 70. at 774 et seq.; AmboslWirth, supra note 2, at 41-2 both with references; Mettraux, supra note 2,

. at 262 with fn. 123; Dixon·, supra note 163, An. 7 mn. 15. . 225. Prosecutor v. Tadic, A.Ch. JUdgment, supra note 199, para. 305. See also AmboslWirth,

supra note 2, at 43·5; Mettraux, supra note 2, at 268-9; Dixon, supra note 163. Art. 7 mn. 16; Swaak-Goldman, supra.note 17~, at 160 et seq.; Cassese, supra note 2, at 369. 226. Prosecutor v. Bagilishema ,supra note 7; para. 81; Prosecutor v. Akayesu, ·supra note 207; paras. 467-469. The AkLlyesu A.Ch., however, heldthat uArticle 3 restriets the jUrisdiction of the Tribunal to crimes against humanity cQmmitted [...] on diseriminatory grounds" (para. 469). See also Ambos & Wirth, supra note 2, at 44. 227.· Prosecutor v: Tadic, A.Ch. Judgment, supra note 199, paras. .270. 272; Prosecutor v. Kupreskic, supra note 183, para. 558 '(noting that the issue was "free from dispute"); Prosecutor v. Kunarac, supra note 190. para. 433; Prosecutor v. KorrJic, supra note '199, par:t. 187; Prosecutor v.Vasiljevic. supra note 167, para. 37; see also Ambos &: Wirth. supra note 2,. at 45; Mettraux, supra note 2, at 268-9; Swaak-Goldman,supra note 173, 160-164; Gomez. Benitez, supra note 8, at 151. 228. Robinson. The Elements of Crimes against Humanity, in: Lee (ed.), The International Criminal Court.- Elements of Crimes and Rules ofProcedure and Evidence, 57, at 80 (2001). 229. FOT an analysis ofthe differences, see HeinelVest. in: McDonaldlSwaak-Goldman (eds.), . supra note 10, 175, 176 -: 182.' .

253 252 19 Nouvelles etudes penales 2004

creation of life endangering conditioils likely to result in death aecording to reasonable human experience.2~ Thus, murder includes aclosely related form of unintentional but foreseeable death which the common law labels as voluntary and involuntary manslaughter and which the Romanist-Civilist­Ge~anic system consider homicide with dolus (Vorsatz) and homicide with cf,llpa (Fahr/ii.ssigkeit),231

The case law defines murder by three requirements: first, the victim died, second, the victim's death resulted from an act of the accused and, finally, the accused must have been motivated by the intent to kill the victim or to cause grievous bodily harm with the reasonable knowledge that the attack was likely 10 .result in death.232 Although there has been some controyersy in the ad hocTribunals, jurispmdence as to the meaning tobe attached to thediscrepancy between the use of the word "murder" inthe English text of the Statuteand the use of the word "assassinat" in the French text, it is now settled that premeditation is not required.233

b) Extermination

·"Extermination" is defined in Artiele 7(2)(b) of the RomeStatute to include the intentional inflietion of conditions of life, inter aUa, the deprivation of access to food and medicine, ealculated to bring about the destruction of part of a population.234 According to the Akayesu Trial Chamber "[e]xtermination is a crime which by its very nature is directed against a group of individuals. Extermination differs from murder in that it requires an element of mass destruction which is not required for murder."ns In this regard extermination is closely related to the crime of genocide as

230. BassioiUli. supra note 175, at 300-302. 231. Ibid. .

. 232. Proseculor v. Akayesu. supra note 11. para. 589; Prosecutor v. Kupreskic el 81 .• supra note 183, para. 560; Prosecutorv: Blaskic. supra note 167. para. 217; Prosecutor v. Ru/aganda. stpra note .13. para. 80; ProsecUlor v. Musema, supra note 28. para.· 215;· Prosecutor v.VasiljeviC, supra note 167, para. 205. 233. Proseculor v. Kordic, supra note 199, para. 235; Prosecutor v. Akayesu, supra nOle .11. para. 587·589; Proseculor v. RUlaganda, supra nole 13, para. 79; Proseculor v. Musema, supra note 28, para. 214-215; Prosecutor v. Jelisic, supra nöte·14, paras. 35, 51; Prosecutor v. Bkukic, supra·note 167. para. 216;disagreeing: Prosecu/or v. Kayishema. supr.a nole 6. para. 140; Proseculor v. Kupreskic, supra note 183,para. 561. 234. In Proseculor v. Kayishema, supra note 6, para. 144 the elements of extermination have. been further spedfied: "The aetor participates in the mass killing of others oe in the creation of conditions of life that lead io mass killing of others, through his act(s) or omission(s); having intended the killing.· or being reckless. or grossly negligent as to whether the killing would result and; belng aware that his act(s) or omissjon(s) ~orms part of a mass killing event; where, his act(s) or omisSion(s) forms part of a widesPrelld or systematie attaek against eivilian population on national. politieal, ethnis. raeial or religious grounds." 235. Prosecutor v. Akayesu. supra note 11, para. 591.

International Criminal Law .. Quo Vadis ?

~

both crimes are directed againsta large number of vietiins. However, unlike genocide extermination as a crime against humanity covers situations in •which a group of individuals who do not share any cOlIlIDon characteristics are killed. 1t also appJjes to situations in which some members· of a group are killed while. others are spared.236 A single kiIIing may qualify as extennination if it was. part of a mass killing event, and if the perpetTntor knowingly committed her act in this context.:lJ1 While extermination generally involves a large number ofvictims the mass killing event need not

. destroy a sPecified proportion of the targeted population.2J8 1t is the combined effect of a vast murderous enterprise and the accused's part in it, <....

in <;ontrast 10 a simple. murder; ~hich gives the crime its specificity and distinctiveness.239

c) Enslavement

The main element of the definition of "enslavement" is the right of ownership exercised by one over another person (Article 7(2)(e»). Tbe Kunarac Trial Chamber finds that "enslavement as a crime against humanity in customary intemationallaw consisted of the exerCise of any or all ofthe powers attaching to the right of ownership over a person."240 Indicia of enslavement include: "the control of someone's mo,!ement, control of physical environment, psychological control, measures taken to prevent or deter escaPe, force, threat offorce or coercion, duration, assertion of exclusivity, subjection to cmel treatment and abuse, control of sexuality and forced labour."24\ Tbe mere ability to buy, seil, trade or inherit a person or bis or her labours or services is insufficient, but .such actions actually occurring could be arelevant factor.242

The Appeals Chamber follows this definition stressing that "it is not possible exhaustively to enumerate all of the contemporary forms of slavery which are comprehended in the expansion of the orig~ idea."243 Itfurther

236. See 1996ILC Report supra nole 38. al 97. ·237. Me//raw:. supra note 2. at 184-5; Prosecutor v. Koyishema, supra note 6, paras. 146-7. Thisview is suslained bythe wording ofArt. 7(1)(b) oftheElements ofCrimes, supra nOle 23. But now see Proseculor v. Vasiljevic, SUpra nole 167, para. 'll7·229, stating "that the Kayishema and Rutindana Trial Chamber omitted to provide any state praetice in support of its ruling on that point,lhereby very mueh weakening the value of its ruling as a precedent" (fn. 586).

238... Me/traux, supra note 2, at 285, crilicising Proseculor v. Krslic. ·supra nOle. 6, para. 501­503, but app~ntly misinterpreting it. 239. Mellraux, supra note 2, at 285. 240. Prosecutor v. Kunarac., supra note 190, para. 539. 241. ProsecU/or v. Kunarac. supra note 190. para. 543; see also Proseculor v. KrllOjelac, . Ju~gment of 15 March 2002 (IT-97:25-T), para. 350.. 242. ProsecU/or v. Kunarac, supra note 190, para. 543. 243. Proseculorv.Kunarac.supranote215,plltll; 119.

"t"'t./~U.4.J.U'~~" """'''~'''.;~''~~ 'w .... • :.:,. .

considers that lack of consent of the victims is not an element of the crime since enslavement flows from claimed rights of ownership.244 Tbe required mens. rea consists of the intentional exercise of apower attaching to the right of ownerShip.24'

d) Deportation or forcible transfer ofpopulation

Accoroing to the definition in Article 7(2)(d) of the Rome Statute. "deportation or forcible transfer of Population" means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without. grounds penIrltted under international law. Tbe Nicolic Rule 61 decision suggested that the conditions of transfer could transfonn a legal transfer into an illegitimateand possibly criminal one.2~

Whereas the tenn "deportation"carries with it the connotation that people are moved beyond national boundaries, "forcible transfer" fetates 10

displacements within a State.247 However, .the Krstic Trial Chamber held, that forcible transfer (which is not covered by Art. 5(d) ICTY Statute), "in .the circumstances of this case, still constitutes a form of inhumane treatment covered under Article 5" [(i) ICfYStatute}.248

e) Imprisonment or other severe deprivationofliberty

Whereas the Kordie Trial Chamber held that for imprisonment the same· conduct is requi,red as for the war crime of unlawful confinement,249 the Kmojelac Trial Chamber considered that "the definition of imprisonmcrpt is not restricted by the grave breaches provisions of the Geneva Conventions.''''o However, it concluded that the deprivation of an individual~s litJerty is only arbitrary if it 1s imposed without due process of law in the light of the. relevant international instrUments. Analysing these instruments, both judgments fmally come to the same result.251 Tberefore; imprisonment is the arbitrary "deprivation of liberty of the .individual

244. /bld. para. 120. • . 245. Proseeutor v. Kunarae, supra note .190. para. 540; Proseeutor v. Kunarae, supra note 215, para. 122; Pi-osteutor v. Krnojelae, supra note 241. para. 350. 246. Prosecutor v. Nicolie, supra note 176, para. 23, see also Ambos & Wirth, supra note 2, at 60. 247. Clark, supra nore 163, at 148; Proseeutor v. Krstic. supra note 18, para..531-2. 248. Proseeutor v. Krstic, sup;a note 18, para. 532; see also Proseeutor v. Kupreskie, supra note 183, para. 566. However. Proseeutor v; Nicolie, supra note 176, para. 23 stated that the unlawful transfer of detainees from Susica .camp to Batkovic couldbe characrerised as deportation, aIlthough both plaees lie within the the same country (Bosnia and Herzegowina). 249. Prosecutor. v. Kore/ie, supra note 199, para. 30l~302. 250. Proseeutor v. Krnojelac, supra note 241, para. III. 251. See Ambos & Wirth, supra note 2. at 63.

without due process of law, Le. if no legal basis can be called upon to justify the initial deprivation qf liberty.""'. If national law is relied upon as justification, the relevant provisions must not violate internationallaw:"3

Tbe procedural safeguards of Geneva law as well as theJCCPR'S2S4

provisions onfair trial apply to boih the initial decision to deprive a person of liberty and thesubsequent review.m If lItany time theinitia11egal basis ceases to apply, the initially lawful deprivation of liberty may become unlawful at that time and be regarded as arbitrary imprisonment."6 It is woi1h mentioning thai the WorkingGroup on Arbitrary Detention of the Commission of Human Rights has pointed out that adeprivation of liberty is also illegal1f it is imposed solelybecause the victim exercised her human rights."7 Thus, imprisornnent or other severe deprivation of liberty in violation of fundamental mIes of intemationallaw covers gross violations of human rights characterized by arbitrary imprisonment.2'8

Although not expressly required by Krnojela.c and Kordic, adeprivation ofliberty must be severe to be criminal under internationallaw. This follows from the formulation in Art. 7(1)(e) ICe Statute "imprisonment:or other severe deprivation of liberty" (emphasis added)."9

f) Torture

"Torti.Jre" means"within the understanding of Article 7(2)(e) of the Rome Statute, the intentionalinfliction of severe pairi or"suffering, whether physical or mental, upon a person in the custody or under the control of the accused~ except that torture shallnot include pain or suffering arising only

. from, inherent in or. incidenful to,lawful sanctions. Tbe expression "severe pain or suffering" conveys the idea that only acts of substantial gravity may qualify as torture.2fiO While this definition' adds a so called controi requirement,261 the relevant case law requires a specijIc purpose ,Le., that the act must aimat obtaining information or a confession, or at punishing, intimidating, or coercing the victim or a third pers~>n, or at discrimina~g,

252. Proseeutor v. KordiC, supra note 199, para. 302; Prosecutor v. Krnojelac; supra note 241. para.1l4. 253. Proseeutor v. Krnojelac, supranore 241. para. t 14. 254. Inremational Covenanlon qvil and Political Rights, 999 U.N.T.s. 171. 255. See Ambos & Wirth, supra note 2, al 63·64. 256. Prosecutor v. Krnojelac, supra note 241, para. 114. 257. Report of the Working Gtoup on Arbitrary Detention, U.N. Doc. ElCN.4119<J8144, Annex I, para. 8. 258. See Clark, supra nore 163, at 148. 259. See Ambos & Wirth, sripra nole 2, at 65. 260. Proseeutor v. De1alic, supra note 263, para.-461-469; Menraux, supra note 2, at 289. 261. See Ambos & Wirth, supra' note 2, at 67.

..1· ;

~.

, .

'-'.;"".'~''';; .v.

l .ouvelles etudes penales 2004"'.JV • 7

• on any ground, against the victim or a third person.262 However, the conduct need not 00' solely or. predominately perpetrated for one of the prohibited ·purposes; they need only be part of the motivation behind the conduct.261

. Tbe requirement of a specific purpose must· 00 rejected. It w,as '. d~Mberatt:ly omitted from the Rome Statute as weH as from Art. 7(1)(f) of

. .the:E1ements of Crimes. A footnoteto the Elements reads: "lt is understciod ~;f~"";':\:;;+~t>5~tb,~i~Ö:p'Wpose' n'eedbe proved for this crime."264 This is goes pand in hand ~(';:}t;.' ::';~?~i~:~:feceritjudgement of the German Supreme Court according to wllich >- .,- :. '. ....:tortureis infliction of "most severe physical or mental suffering" and does

. not' require an additional purpose but only the intent to inflict the said treatQi.ent.26S As a result, torture does not require any (additional) purpose or special'intent which would. go beyond the mere intent to inflict severe

• 266 . pam.

g) Rape. sexual slavery, enlorced prostitution, lorced pregnancy, enforced sterilization, or any other form 01 sexual vlolence 01 comparable gravity

According to thedefinition in Article 7(2)(f) ofthe RomeStatute "forced pregnancy" means the unlawful confinement of a woman forciblymade pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations ofintemationallaw. Article 7(2)(f) ofthe Rome Statute states further that this definition shall not in any way 00. interpretedas affecting national laws relating to pregnancy. The expressions "Rape," "sexual slavery," "enforced prostitution," "enforced sterilization," "or any other fonn of sexual violence of comparable gravity" have not been defmed within Article 7(2)(f) of the Rome Statl.l:te.267

The Chambers of the two ad hoc tribunals distinguish between a conceptual and a mechanical definition of rape. Some consider:

"that rape is a fonn of aggression and that the central elements of the crime ofrape cann~t be capturedin a mechanical description of objects and body parts. Tbe Convention against Torture C•••)does not catalogu~

specific acts in its definition of torture, focusing rather on the conceptual

262. 'Proseculor v. Kunarac, supra note 190, para. 497; Proseculor 11. Akayesu, supra note 11, para, 594; Prosecutor v. Furundzlja, Judgment of 10 December. 1998 (IT-95-I7-T) para. 162. 263. Prosecutor v. Kunarac, supra note 190; para. 486; Prosecutor v. Dewlic, Judgment of 16 November 1998 (IT-96-21-n, para. 470; Mettraux, supra note 2. at 290. 264. Elements of Crimes. supra note 23. article 7(1)(t), fn. 14. 265. Judgment of 21 February z001 (Sok%vic) - 3 SIR 372/00, 4. d) aa) = NStZ 2001, 658 (661). .

266. Cf. Kai Ambos, Immer niehr Fragen im inlernalionalen Slrafrecht, NStZ ZOO 1, 628 (632). . 267. These acts are definOO in the Elements of Crimes, supra note 23,

'International Criminal Law : Quo Vadis ? 257

~

framework of state sanctioned violence.This approach is more useful in intemationallaw."l68 • Rape was, therefore, defined as

"a physical invasion of a sexual nature, committed on a person under circumstances which are coercive. Sexual violenc.e which includes rape

.is considered to be any ~ct ora sexual nature wlrich is committed on a person under circumstances which arecoercive."269

The Fururukija Trial Chamber held "that the following may be acceptcu .as the objective elements of rape: .

(i) the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator

.or any other object used by the perpetra~or; or (b) of the mouth of the victim by the penis of the perpetrator;

(ii) by coercion or force or threat of force against the victim or a third person."270 "

The Kunarac Trial· Chamber adopted this view with regard to the elements listed under (i) but held that under (ii) it was only necessary that

"such sexual penetration occurs without the consent. of the victim. Consent for this purpose must be consent given voluntarily, as a result of the victim's free will, assessed in the context of the surrounding circumstances."27I

Thus, apparently, the consent is considered an element of the actus reus and not a defence. This correspondt<s .to the Gennan distinction between "Einverständnis" and "Einwilligung,"272 the fonner eliminating the actus . reus and the latter the unlawfulness of the' acl. The distincuon has . substantive and procedural consequences. As to the latter, it is clear that the existence of the actus reusmust be proved by the prosecution while thc burden of proof with regard 10 a defence rests, as a ruIe, with the defence.

268. Prosecutor v. Akayesu, supra note 11, para. 597; Prosecutor v. Dewlic. supra note 263, paras. 478-479; Prosecutor v. Musema, supra note 28, paras. 220-229. 269. Prosecutor v.Akayesu, supra note 11. para. 598; Prosecutor v. DelaIic. supra note 263. paras. 478-479; Prosecutor v. Ml,ISema. supra note 28, paras. 220-229.

. 270. Prosecutor v. Furundzlja, supra note 262, para. 185. Article 7(1 )(g)-I (I) of the Elements of Crimes, supra note 23, follows this "mechanical" definition. 271.Prosecutor v. Kunarac, supra note 190, para. 460. Article 7(1)(g)-1 (2) of the Elements of Crimes, supra note 23, requires "that the invasion was committed by force, threat of fon:e or coen:ion [...], or by taking advantage of a coen:ive environment, or the invasion was committed against a person incapable of giving genuine consent." 272. Cf. (erit.) ROXIN, I STRAFREcHT ALIAlEMElNER (3d 00. 1997), at § 13 mn. I er seq.

.. As to the substance;complex issues ofmistake may arise. If, as to mens rea, it is notonly required that the perpetrator intends to effect the· sexual penetration, but also acts with the knowledge that it occurs without the consent ofthe victim.m he may invoke amistake of fact if he believed that the.victim consented to sexual intereourse. This mistake would negate the mental element within the meaning of Art. '32 (l) ICC-Statute since the peypetrator would lack the necessary knowledge as to an element of th"e actus reus. If, on the other hand, one corisiders the consent a defence the perpetrator would, believing that the victim consents, err about the factual elements of this defence, more exactly, about a justification (UErlaubnissachverhaltsirrtum" = putative justification).274 Depending on the theory one follows this would either negate "the mental element or ooIy the blameworthiness of the conduct.27S In the former situation the perpetrator . would be - in .accordance with Art. 32(1) ICC Statute - exempted from punishment, in the latter situation the mistake would be irrelevantaccording to the error iuris rule contained in Art. 32 (2) ICC Statute.276 Still another situation could occur if the perpetratQr is ignorant of.the requirement of consent (or of a certain defence); ~is would constitute an irrelevant mistake oflaw (Art. 32 (2) lee Statute).

.~

h) Persecution

Persecution is defined in Article 7(2)(g)·of the Rome Statute as the intentional and severe deprivation of fundamental rights cOIitrary· to international law by reason of the identity of the group or collectivity. 'According to the case law .

u[TJhe crime of perse~utiQnconsists of an act or omission wbich 1. discriminates in fact and which denies or infringes upon a fundamental right laid down in international custoinary or treaty law (the actus reus); aIid 2. was carried out deiiberately with the intention to discriminate on one of .the listed grounds, specifically race, religion or politics (tbe mens rea)."277

Persecutory acts can. take many forms and do not require any link to other crlmes enumerated elsewhere·in the Statute. They.·can consist of acts enumerated in other sub-clauses ofMicle 5, of aets mentioned elsewhere in

273. ProsecU1or v. KutuUac, supra note 190. para, 460. 274. Cf. Fleteher. Basic concepts of criminallaw, 1998, at 158 et seq. (159"60). i75. The correct l'iew is to !reat the "Erlaubnissachl'erhaltsintum" as amistake of fact, see Ambos. supra note 70, at 808 eiseq. . 276. CI it.on Ihe striet st!lndtlld 0' Art. 32 (2) Ambos, supra note 7Q, at 822-4. 277, Prosecutor v. Vasiljevic, supra note 167. para. 244; Prosecutor v, Kmojelac, supra note

.. the Statute, or of acts not explicitly mentioned anywhere in the Stanite.m The deprivation of rights must be severe, i.e. it must reach." the same level

:t \f .~of gravity as the other acts prohibited in Artide 5.''219

The additional element of discriminatory intent for persecution "amounts to an aggravated criminal intent (dolus specialis, .dal special). In the case of persecution, the intentmust be to subject a person or group to discrimination, in-treatment, or barassment so as· to bring about great suffering or injury to that person or group on religious, political or other such grounds."280 This persecutory mens rea is the disti!lctive feature of tbe crime of persecution that "sets the crime of perseeution apart from other Article 5 crimes against humanity."28\ This led the Kupreskic Trial Chamber to draw paralIeis between genocide and persecution:282

.. "[I]it can be saidthat, from the viewpoint of mens rea, genocide is an extreme and most inhuman form of persecution. To put it differently, when persecution escalates to the extrerne form of wilful and deliberate acts designed·to destroy a group or part of a group, it can be held that such persecution amounts to genocide.":i83

i} Enforced disappearance ofpersons

Micle 7(2){i) of the' Rome Statute offeis, for the first time, a definition of enforced disappearances wh"kh complies with minimum standardS of legal certainty. Accordingly, the conduct is characterized by the arrest, detention or abduction·of persons by, or with the'authorization, support or acquiescence of, a Stare or a political organiza~on and the subsequent

. refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those perSons. with t1J.e intention of removing them from the proteetion of the law fot a prolonged period of time.

The crime goes back to the Latin American experience which led to ~ts

qualification as a crime against humanity by the Inter-American Convention on Forced Disappearance of Persons of 1994.284 The inclusion in the Rome Statute converts it into a truly international crime. Still, there is no case law in international criminal butonly in human rights law, in particular the

241. para. 431. 278. Mettraux, supra note 2, at 292 with references. 279. PTOsecutor v. Kupreskic, supra tmte 18~, paras. 610-621; Ambo3lWirth,supra note 2. at 74 et seq. with further references. . 280. Cossese, supra note.2, at 364. ·281. Prosecutor v. Kordic,supro note /99. para.212.. 282. Prosecutor v. Kupresklc. supra note I83•.parB. 636: 80th offences belong "to the same genus." 283. Id. 28( OENSer. p. AG/doc, 3114194 rel'. I.

:ibU i9 NouveLles etudes pl!nales 2004

., •

famous VeÜlsquez Rodriguez case of the Inter American 'Court of Human Rights (San lose, Costa Rica).28S But this andother human' rights

, decisions286 ,did not develop the elements of the crime of forced disappearance.287 Nor did the national law of same Latin American States

, (inter aliaPeru, Venezuela, Mexieo, Guatemala, Paraguay and Colombia) ,;:··off~r,',a, convincing definition.288 Most recently the Gennan

. <:,~ ": Y'iJJkerstrajgesetzbuch (Code of Crimes againsl International Law ­;- ".' ~', CeAIL), whieh ente~ into force 30 lUDe 2002,289 proposed the following

, definition on the basis ofArt. 7 (2) (i) Ice Statute and the:Elements:

...... with the intention of removing him or her from the protect~on of the law,för a prolonged period of time, (a) by abdueting that person on behalf of or with the approval of a Stateor a politieal organisation, or by,otherwise severely depriving such person of bis or her physical Iiberty, followed by a failure immediately to give tr.uthful information, upon inquiry, on that person's fate and whereabouts,or ' (b) by refusing, on behalf of aState or of a political organisation or in contravention of a legal duty, to give information immediatelyon the fate and whereabouts ofthe person deprived of his oeher physicalliberty under the circumstances referred to undetletter (a) above, or by giving false information thereon,"

While subpara.. (a) adopts the combination of depriyationof freedom and the subsequent refusal to supply (trothful) information as known from the lee Statute, subpara. (b) criminalizes the mere refusal of immediate information or the giving of false information implying a kind of collusion with the State or organisation responsible for the deprivation of liberty.290

285. Velasquez Rodriguez was - together with Godinez Cruz and Facen GarbilSolis Corrales­the f1l'St of three cases in which lhe Court held aState party (Honduras) to lhe Inter American Human Rights Conventiori aceountable for the forced disappellfi10ce of persons (Judgments of 29 July 1988.20 January 1989, 15 March 1989. SerieS C, No. 4). These decisions were followed by several otllers: Neira Alegrla el a/. (Serles C No. 20); Caballero Delgado y Sanlana (22); GClrrido y BCligorriCl (26); Caslillo Pae: (34); Blake (361; Trujillo Orow (64); D!Uand y Ugarle (68); Blunaco Velhsquez (70). 286. See lhe variousjudgments oflhe Eur. ~ourt ofHuman Rights: Kurl v. Turkey.judgment ,25 May 1998; Caldci v. 7lukey.judgment 8 July 1999; Tunurlas v. Turkey.judgment 13 June 2000; Ckek v. Turkey,judgment 27 February 2001; Tas v. ThrJcey, judgment 14 November 200 I. 287. Cf. KAI AMBOS. IMPUNIDAD y DERECHO PENAL INTERNACIONAL (2d. ed. 1999), at 66 el seq. (77 er seq., 113 el seq.). 288. Id., at 403 et seq. 289. Bundesgesetzblatt 2002 12254. translations available at www.iuscrim.mpg.delforschlonIine-pub.htmI. 290. Cf. Moiives, Draft of the CCAIL. 28 December 2001. at 46·7; available at www.iuscrim;mrg·delforSchlonline_pub.html.

261international Criminal Law : Qua Vadis ? ~

Thus, it is clear, notwithstanding the difficult details,291 that thecrime can tonly be commiued by,state agents or with their consent or acquiescence292

arid cpnsists of two interrelated acts.

, j), The crime 01apartheid

"'The crime of apartheid," as defmed in Article 7(2)(h) of the Rome , Statute, m~s inhumane aets or a charaeter similar to those referred to in

paragraph 1, committed in the context of an institutionalized regiine of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.293 For reasons of legal certainty, the CeAIL constIues the crime of apartheid as a qualification to the other individual acts contained in sect. 7 (1) CCAU... Iri other words, the perpetrator ofone of the underlying acts ofcrimes against humaility receives a stronger sentence if she commits these aets with the (additional) intention of maintaining an institutionalised 'regime of systematic oppression and domination by one racial group over any'other.m

k) Other inhuman acts

The expression'''other inhuman aets of a siffiilar character intentionally eausing great suffering, .or serious injuring to body' or mental or physieal health" is not defined in Articie 7(2) of the Rome Statute. The Elements of Crimes for l;Irti.cle 7(l)(k) require that:

"1. The perpetrator inflicted great suffering, or serious injury to body or to mental or physical health, by means of an inhumane aet. 2. Such' aet was of a charaeter seminal to any other act referred to in

article 7, paragraph 1" of the Statute."19S' .

Afootnote clarifies: "It is understood that 'character' refers to the nature, and' gravityof, the act."296 The Ud hoe Tribunals require that the !lct or omission must be of similar seriousness as in the other alternatives, and the act or omission must have caused serious mental or physical suffering or injury or constituted a serious attack on human dignity,297 To assess the

291. See for a detailed comparative and international analysis lhe forthcoriling work of Christoph Grammer, Der Straftatbestand des zwangsweisen 'Verschwindenlassens von Personen (doclOrai thesis, University of Mainz, Germany), 292. Hall in Triffteter, supra note 9,art. 7 mn. 124; Boot, supr!J nOle 21. para. 502. 293. On the differences of the d,efinitions in lhe Rome 5talUte and article II of lhe Apartheid Convention see Hall in Triffterer.supra note 9,Art. 7 mn. 116-122. 294. Cf. Motives, supra note 290, at 49-50. 295. Elements of Crimes..supra note 23. 296. Id., fn. 3010 Element 2 ofArt. 7(k). 297. ProsecUtor v. Vasiljevic. supra note 167. para. 234; Ambos/Wirth. supra note 2. at 83 with further references.

JnlernatwllUl t-,umnat JAW : lluO VatilS f ~o.)

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~',,:

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seriousness of an act, consideration must' be given to a11 the factuaI circumstances. These circurnstances may include the nature of the act or omission, the context in which it occurred, the personal c!rcumstances of the victim including age, sex and health, as.well as the physical, mental lind moral' ef(ects of the act upon the victim.298 Examples for such "other inhumanacts"could be unlawful human experimentation and particularly viQlerttassault'.299 .

.,' 3;W;r.: Crlmes A. Gimeralobservations'

1. Stmeture pr Art. 8 lCC Statute Aliliougn Art. 8 of the ICCStatute recognires the existence of "war

crimes" in non-intemational armed copflict and this is certainly an improvement,300 it 'does .not "assimilate" the crimes committed in intemational conflict to the ones eommitted in non-intemational armed conflict30' hy way of the creationofacategory of"arined conflict crimes."302 On the contrary, Art. 8 lee" StalUtezrtaintains the' traditional. two box approach separating "international" and "non-international crimes" in four subparagraphs (para. 2 (a), (b) versus (e), (e». Moreover, it does not provide - as the Statutes of the Ad Hoc Tribunals do- for an opening formula ("[s]uch violations' shall inClude, but not belimited to [...]) but rather presents aclosed and exhaustive list of the crimes.303 While this t~chnique

298. Prosecutor v. Vasi/jevic, supra note 167, pari!. 234 with furtherreferences. 299. See Roger Clark, supra note 163, at 152 refering to Robinson, Defining Crimes against Humanity at the Rome Conference. 93 AM. 1.INT'LL. 43 (1999).. 300. Zimmermann, in: Quo Trimerer (ed.). CoMMENTAR'i ON nIE ROMS S,..~ OFTllE ICC, Art. 8. mn. 238. 289. 30 I,' Crit. M. Cherif Bassiouni, The Normative Framework ollnternatiQIUJ1 Humanitarian Law.· Overlaps, Gaps. and Ambiguities, 8 TRANSNAT'L L. & CONTEMP, PROBS. 199(1998). at 232-3; Zimmermar:tn. supra"note 300, Art. 8 m.n, 235. 302. See Claus Kress. War Crimes commitred in non-international Armed Conjlict and the Emerging System oflnternational.Criminal Justice, 30 ISR. Y.B. HUM. Rn. 103,132 (2000) questions whether there is really a trend towards the complete elimination of .the dichotomy between crimes committed in international andnon-iJiternational annOO eonflicts. He refees. at 132, to Prosecutor v. Tadi?, Decision on the" Defence Motion fo'r Interlocutory Appeal on lurisdiction, 2 October 1995 (IT-94-I-AR72). para. 126, where it was stated that "[tlhe ernei'gence cf \he aforementioned general roles on internal armedconflicts doos oot imply that intemal suife is regulatOO by general intemational law in allhs aspeets. 1\vo' particular Iimitations may be noted: Ci) only a number of mIes aM principles governlng international anned conflicts hlive gradually been extended to apply to internat confliets; and (ii) this extension has not taken plaee in the fonn of a fulland mechanical transplant o{ those mIes to

" internal conflicts; rather the general essence of those roles,"and not the detililed regulationthey may contain. has become applicable to internal conflicts:' 303. See also Condorelli. War Crimes and Internal Conflicts in·the Slatute 01the ICC, in THE ROME STA1'UTE OFTHE ICC 107, 112 (MauroPoliti &Giuseppe Nesi eds.• 2001).

of codification may be welcomed in light of the principle of legality (nullUm crimen sine lege certa),YJ4 it has the disadvantage to bestatic and, thereby, to preclude judicial interpretationto fill alleged lacunaein the codification of war crimes, especially with regard ,to the ODes coinmitted in aDon­intemationäl confliet. As a consequenee, Ute alieged shorteomings ofArt. 8 ICC Statute compared to 'eustomary intemational law,3<lS may only be remedied by amendments to the ICC treaty according to Art. 121 et seq. of the Statute. In addition, Art. 8 ICC Statute has been further restricted by the introduction of a previously unknown context element taken from crirnes against humlinity ("in particular when eommined as part of a plan or poliey or [...] large-scale commission of such. crimes").306

Tbe German CCAlL307 abolishes the traditional distinction and ereates one category ofarmed conjlict crimes taking into account the currentstatus of eustormy intemationallaw, referring in particular to relevant statements by States in international organisations or 'as expressed in military manuals,308 eh~pter 2 follows a differentiation according to the legal interests or objects protected: war' crimes against persons (Section 8) ,309

against property and other rights(Section 9), against humanitarian operations andemblems (Section 10), consisting in the"use of prohibitcd methodsofwarfare (Section 11), and finally consisting in employment of prolübited means of warfare (Sec.tion 12). This approach reflects the distinction between the proteetion of persons and property on theone side (Geneva law) and the limitation'of the use of certain methods and means of warfare (Hague Iaw) on the other side.3lO However, where the sU!-tus of

"customary law' dOßs' not allow intemational and non-mtemationalarmed

304 Similarly William Schabas, Follow upro Rome: Preparingfor Entry Into Force ofthe Infernational Criminal Court Sfafufe.10 HUM. Rn. LJ. 15'1. 163 (im). , 305. See Fischer, in: Fesischrift Ipsen, 77, 86 er seq (2000); see also Sunga, supra note 8. at 395; Askin, Crimes within the lurisdiction oflhe lCC. 10 CRlM. L.F. 33, 57 (1999); Condor"l!i, supra note 303. at 111 et seq. ' "306', Against this requfrement for war crimes clearly Prosecutor v. Tadi? ,ludgment of 7 May 1997 (IT-94-I-T). para. 573; Prosecutor v. Delalic et a\., supra note 263, para. 195; conc. Prosecufor .... Blaski? ,Judgment of 3 March 1000 (IT-95-14-T). para. '10. See also Sunga, supra note 8, at 392; Fenrick, in: Trimerer (ed.). Commentary on the Rome Statute of the ICe, Art. 8 mn. 4; Fischer, supra note 305, al 85; Ambos. supra note 70, at 779. For an explanation in the light of the complementarity principle see Bothe, War Crimes, in: Cassese et aJ. (OOs.), supra 'nOte 2. 379. 380-81. ' 307. See supra l\ßte 289. 308'. See Motives, supra note 290, aIS). 309. Subpara. (6), no. 1 defines persans to be proteeted under international humanitarian law in an international anned conflict as "pCrsons protected for the purposes of the Geneva Conventions and of the Prolocol Additional to the" Geneva Conventions (Protocof !) [ ...1. narnely the wounded, the siek ,lhe shipwrecked. prisoners of war an<! civilians;" 310, See Motives. supra nole 290. at 52.

o~

#i'"

264~.

19 Nouvelles etudes penales 2004

conflicts to be treated equally, the differences have been retained by including particular elements within the different Sections of.. Chapter 2.311Whereas Sections 10 and 12 treat international and non-international anned conflicts eq~ally, Sections 8,9 and 11 take adifferentiated approach. Thus, for example, Section8, subparas. (1) and (2) dea1 witb, war crimes against persons in connection with· both an international and a non­international anned conflict while subpara. (3) only criminalizes actS cornmitted in an international armed confl~ct.

The Gennan approach is compatible with the Rome Statute since, according to Micle 10lCe StatUte, "[n]othing [... ] shall be interpreted as limiting or prejudicing in any way existing' or developing mIes of internationallaw for purposes other than this Statute." In other words, State parties may inc~nate certain acts committed during non-international anned conflicts 8s international crimes in accordance with the existing customary internationallaw.ö\'l .

2. Existence of an aoned conflict There is no positive definition of "armed conflict" in internationallaw.

There are some indications, though. Common Art. 2 of the four Geneva Conventions (hereinafter "GC I - IV") makes clear that there are other armed conflicts than "cases of declared war." From the famous negative defmition in Art. 1 (2)of AP (uAP n"), tlik.en up in Art. 8 (2)(d) and (t) of the ICC Statu~, follows that "internaldisturbances and tensions" do not amount to an anned conflict.

The notion uarmed conflict" presupposes the resort to anned force or armed vio~ence' between different (state Of non 'state) actors.313 To distinguish this situation from ordinary criminality, unorganized and short­lived insurrections or terrorist activities, the intensity of the conflict and the organization of the parties must be evaluated.J 14 .The ascertainment of the .'

. intensity öf a non~international conflict does not depend on the subjective

311. /bid. 312, . Cf. /'rfomlaz, War crimes in non-international Anned Conflicts under the Statute of the International Criminal Court, 2 Y.B.INr··L HUMANIT. L. 177. 188 (1999). See also Boot. supra note 21. al para. 594, . '. 313. Prosecutor v. Tadi?, T,Ch. Judgment, supra note 306. para. 561; Prosecutor v.Tadi?, Decision 00 lunsdiclioo. supra note 301; pani. 70; cone, Proseculor v. Kupreski? el al.. supra note 183, para, 545; Proseeutor v. Bla?kic, supra note 167, para, 63. See also·Prosecutor v. Akayesu. T.Ch. 'Judgment, supra note II• para. 620: "existence of hostilities between arme<! forces organized to a greater or lesser extent." See also /psen, Völkerrecht. (4'h 00. 1999), § 65 mn, 9. § 66 mn. 7; Greenwood, in: Fleck (00.), Handbookof armed cantlict, Na. 202, at 35-6. 314. ProsecUlor v: Akayesu, T.Ch, Judgment. supra note 11. para. 620, 625; Prosecutor v. Tadi? :T.Ch. Judgment, suprq nale 306; para. 562; ProseculOr v. Musema, supra note 28, para. 256.

International Criminal Law : Quo Vadis ? 265 tP

judgment of the parties to the conflict but must be assessed objectively on the basis of the conclitions laid down in Common Micle 3 and.AP II.31S If • the application of international' humanitarian law depend'ed on the discretionary (subjective) judgment of the parties in most cases there would be a tendlmcy for the conflict tobe minimized so as not to' apply the humartitarian roles. As a consequence, the ·very purpo$e of international humanitarian law, that is the protection 01 the victims' of anned conflicts. -would not be aehieved.316

.

The parties to the conflict will usually either be the government confronting dissident anned forces, or the government fighting insurgent organized armed groups. The term, Uanned forces" is to be defined broadly, so as tO'cover all armed forces as described within riationallegislations.317

The dissideJ;lt-armed forces must be under responsible command, Le, there must besome.degree of organization but this does no~ necessarily .mean that there must be a hierarchical system of military organization similar to that .of regular anned forces: "It means an organization capable' of, on ·the one hand, planning and carrying out sustained and concerted military operations- operations tb,at are kept up continuously and that are done in agreement according to aplan, and on the other, of imposing discipline in the name of the de facto authorities."318 The dissident anned forces must further be able to dominate a sufficient part of the territory so as to maintain sustainedand concerted .military operations and to be in the position to implement the Protocol.>J9 .

As ~o the period or time frame the armed conflict starts with the first use . of anned force and ends, at earliest, with the end of the hostilities. While this

follows from Art. 3 (b) AP I, some writers require the reestablishment of the previous (peaceful) situation.no The Tadi? App. Ch. also extended'the period beyond the pure cessation of hostilities and required that "a general conclusion of. peace" or, in the case of a non-international conflict, Ua peac;eful settlement" be achiev~.

. As to the geographieal' extension of the hostilities it is sufficient to establish the existente of. the 'conflict for a whole region of which certain municipalities are a part without the necessity to have an ~ed conflict

315. Proseculor v. Akaye.m, T.Ch. Judgmenl. supra note 11, pani. 603. 316. /d. . 317. Proseculor v. Akayesu, T.Ch. Judgment, supra note II, para. 625; Prosecutor v. Musema, supra nole 28, para. 256. 318. Prosecutor v. Musema, supra note 28, para. 257. 319. Prosecutoi' v. Mu.sema, supra note 28. para. 258. . 320. '/psen.supra note 313. § 68 mn. I et seq.• mn.4 el seq.; Doehring, Völkerrecht. (1999). § 11 Rn. 646 el seq. .

267 Nouvel/e.f eludes penales 2004

•

within eachmunicipality concerned:1!1 If the existence of an armed conflict for a certain territory is established. international'humanitarian law is applicable in aU parts of this territo\)' whether or not actual combat takes plaee thereP~ It i8 not necessary that the crimes must all be eommitted in the precise geographieal region where an armed eonfliet is taking place at a given moment.32J

Tbe question arises whether this quite liberal detennination of the , geographieal requirements ean be transferred to large Federal States like the U.S., Mexico or Brasil. In other words. would an armed eonfliet in one state ofa Federation amount toan armed confliet inthe whole Federal State? Let us, for the sake of the argument, suppose that the situation in the Mexiean State of Chiapas amounts to an armed confliet in thesense of humanltarian law, eould we then say that in Mexico as a whole exists an armed confliet? My answer would be in the negative and my maiiJ. argument woulcl be that

.Chiapas is a too small'part of Mexico to turn the whole eountry into an anned conflict scenario. But still; the question remains ifit were not reasonable to allow for the application of humanitarian law in this particular State of the Federation, Le., for a kind of partial or geographically limited application of the law where the situation this requires..

3. "Intemationalisation" of an anned conflict While it is dear that.an armed eonmet is international ifit takes place

between two or more states and that it is non-international if it takes place within a territory of astate between forces belonging to that state,324 it is less dear if and how a foreign intervention or partieipation in a eonflict taking place in one territory may"internationalise" this confliet. Tbe correct answer is that such aJ.l intemationalisation oceurs if the aets·of one of the parties to th.e confliet must be attributed to a foreign State, Le., if the individuals or groups taking part in the conflict arede facta organs of this State325 or if their eonduet can. be imputed to this State by other eriteria. These criteria. however, are hotly disputed andit would exceed the scope of

321. ,Proseclllol' \'. Blaski?, supra oote 306. para. 6·t 322. ProseCllwr \'. fadi? Decision on Jurlsdiction. sl/pra note 302. al para 70; Proseeutor v, Blaski? supra nole 306, at para. 64, 323. Proseeutor \'. Blaski?supra nole 306. para. 69. 324. Cf Kai Ambos, Zur Bestrafung \'0/1 \'trbrechen im internationalen. nicht· internationalm lind internen Konflikt, in HDt-\.\"IT.1.RES VÖI.KERRECHT (Hasse. Müller. & Schneider eds.. :!OO Il. al 331. 338. 325. Prosecuwr 1'. Tadi?, A.Ch. ludgment. supra note 199. para. 104.

InternationalCriminal lAw : Quo Vadis ? .~

.-.;, "

this paper to offer a profound analysis going beyond the presentation.of the 7...~ ..;.

~positions of the Chambers of the.rCfY.326 The Tadi? Trial Chamber foUowed the effective control test as developed

by the ICJ. in the Nicaragua case327 and required that the foreign State exercise effective control of a miÜtary or paramilitary group wirb respect to the specific operations of this group and bythe issuance of specific instructions.328 This test was rejected by the Celebiei T.Ch. and the Tadi? App. Ch. since, inter aUa, it was considered not appropriate for the question at hand, Le., the question of individual eriminal -not State ­responsibility.m Instl~ad, it was distinguished betweeri the persons or groups object of the eontrol of the foreign State. In case of military or pararnilitary groups, the foreign State need not only equip and finance the group, but also coordinate or help in the general planning of its military activity, Le., an overall contral is necessary but also sufficient. In partieular; the foreign State need not issue specific instructions to the head or members of the group.330 In the ease of individuals or not militarily organizedgroups the foreign State must issue specific instructions or direetives aimed at the commission of specific acts· or publicly approye the commission of such acts.331 In addition, it may also happen that certain individuals assimilate to organs of a foreign State on account'of theiractual behaviour within the structure of that State (and regardless of any instructions of that State) and, as a consequenee, their behaviour may be attributed to.this State.332

4. Different fonns of non·international aimed cQnfliets In addition to the restrictions described above (1.), the ICC Statute .

introduces a new type of non-international confliet for the "serious violations of the laws and etistoms" of war (Art. 8.(2)(e», namely it requires .. that such confliets be "protracted" (Art. 8 (2)(f). Tbus, a newoverlapping

326. Par such a profound analysis see Oe Hoogh, Anicles 4 and 8 of the 200 I ILC Anicles on ~tale'Responsibilily eIe .• 72 BYIL 255 (200112002). arguing at 264 et seq. (275-6) thaI the Bosnian Serb arrny VRS and the Republika SrjJska werede facta organs ofthe FRY since "they operaled within th'e organic struclure of lhe FRY." He furthei examines (at 277 et seq.) the question in light of An. 8 of the ILC's 200 I Drafl of Slate Responsibility showing thallhe ILC does not follow lhe Tadic. Ap. Ch. See also Kress, L'organe de facta en droifinlenlalional public etc., 105 RGDIP 93 (200 I). . ' 327. , Military and Paramilitary Activi/fes in and Against Nicaragua. Judgment,lCI Reparts 1986.14:: International Law Repons 76,349. ' 328. lCJ. supra note 327. para. 115; Prosecutor v. Tadi? T. Ch. ludgment, supra note 306, para. 58.5. . 329. Proseeutor v. DelaUe et al., supra note 263. paras. 262-263; Proseeutor v. Tadi?, A, Ch. ludgmenl.supra nole 199. para. 103. 330. Prosecutor v. Tadi?,A. eh. ludgment, supra note 199. paias. 131, 137.. 331. ld., paras. 132, 137. 332. ld. paras. 141 et seq.

r lUU4

• .. , distinction of "nonnal" and "protracted" non international contlicts has

come into existente. In the laUer type, b()th serious violations of Common Article 3 and serious violations of the laws and customs of war qualify as

'war crime.s. In "nonnal" non-international conflicts, serious violations of the :", ' , , "lawsand customs ofwar are not to be considered war crimes. This has been ;rT~,:-" '::,cJjticized~I!S"~'apatent ab~urdity"133 and,it is indeed difficultto unders~d ~~~;'::!t,;;;',,,~,/.why'~,~' to 'sanitary units, mass rapes, deportation or intentional ii,f!~~)~!~,;;!;;~:;#i~ill.~on::W!:)1l1d;conStitute -war crimes otily when the non-international

:'Jt:}t;~rifliCfis "protraet.ed;' and not when it is just a "normal" non-international ;;~ '-:,::' ,conflict. In fact, the' distinetion reealIs' ~ad memories of the classical

distinction between international and non-international conflict crimes and deserves therefore .the same criticism as being arbilraly and contravening the raison d'2tre of international humanitarian and critninallaw, that is, the proteetion ofall persons who do not actively take part in the conflict.

It must not be overlooked, however, that the term protracted W;iS not invented by the drafters of the Rome Statute but was fIrst mentioned by the Tad.i? App. Ch. when it determined that an armed conflict exists when there is "protracted anned vioIence [...] within a State."334 It may be argued that the term fmds the basis in the notion "sustained and concerted military operations"as contained in Art. 1 (l) ofAP ll. This does not imply, however,

,that the operations must go on continuousiy; rather, it is sufficient, as the French version makes dear ("de maniereprolongee"), that' the armed

, conflict operates a certain time.335 Thus, in fact, the difference between a "nonnal" and "protracted" anned conflict is a pure time difference which, however, is not precisely enough defIned.' Given the arbitrarines;tofthe distinction arestrictive interpretation of the tenn protracted is called for.

5, RelatiQDsh;p between anned cQnflict Md individual crimes. in 1?ar\icular mentallWUirements , As in the case of crimes against humanity, the question arises how the

individual aets or crimes relate to the context element, i .e., to the existence of an armed conflict. The case law quite unanimously requires that there must ,00 an "evident nexus between the alleged, crimes and the anned conflict as a whole."336 Such a nex.us exists if the "crimes were closely related to the hostilities occurring in other parts of the territories controlled

333. See Coodorelli,supra OOle 303; al 113. 334. ,Proseculor v. Tadi?, Decision on 5urisdietion. supra note 302. para. 70; conc. Proseculor v. Delalic el al., supra note 263, para. 183 : Prosec:ulor v. Furund?ija; supra note'262. para. 59. 335. See Zimmennann, supra nOle 300, Art. 8 mn. 334. 336. Prosec:ulor v.BIa.rkic. supra nOleJ67. para. 69.

269International Criminal Law .' Quo Vadis ?

~

by the parties to the conflict."337 It is not necessary that the alleged crimes occur inthe midst of battle or that the "amied conflict was occurring at the ~

exact time and place of the proscribed acts,"338 but it suffices ifa relatioriship between them and the.conflict can be established.339

Yet, a muchmore complex, but not duly adressed question is howthe context element must be Iegally qualified and what consequences this entails for possible mental requirements. If one understands the context element as a purely objective,jurisdictional element it need not be ,covered by theperpetra1Or's mtent. If, however, one conceives the context element as a "cireumstance" within the meaning of Art. 30 (3) lee Statute the perpetrator must know of its existence.340 When this eminently practical question was first discussed - at the intersessional meeting of the Preparatory Commission in Siracusa, Italy, in February 2000 - two positions emerged. I would call them an objective public internationallaw approach and a 8ubjecti..,e criminal law. approach (hereinafter "objective" and "subjective" approach). The objective approach341 argued that the purpose of international humanitarian law is to counter the increased risk of factual non-prosecution of serious crimes during an anned contlict by creating a supra-national ,criminal law regime to replace imperfect national, criminal prosecutions.This hu~anitarian Iaw, regime, so die argument gcx;s on, constitutes only a paiallel regime of competence 10 the national iaw. A~9rd.ingly, to date, the case l~w ,of the Ad Hoc Tribunals has always viewed armed conflict as a mere "jurisdictional element." FinalIy,the drafters of the Rome Statute did not include an intent requirement in the chapeau of Art. 8.lCC Statute - as they did in Art. 6 lCC Statute and, in particular, Art. 7 lCC Statute~342 The subjective approach, ont,he other hand,

,337. ProseculOr Y. Tadi?, 'Decision on Jurisdictlon, supra note 302. para. 70; See also Prosecutor v. Tadi?, T.Ch. Judgmenl. supra nole 306, paras. 572.573; Prosecutor,v. Tadi? A.Ch. Judgmenl. supr.a note 199, paras. 249, 252; ProsecUlor v. Delalic ct al .. supra nOle 263.paras. 193, 195; ProsecUlor v. Furund?ija, supra nole 262. para, 60: Prosecutor v. Bla?kic. supra nole 167; para.68.' ' 338. ProsecUlor v. T~i?, T.Ch. 5udgment. supra oote 306, para. 573. 339. Proseculor Y. Tadi?, Decision on Jurisdiction supra note 302, para. 69, refernng to the crime of deprivation of Iiberty, " 340. Tbe following considercllions are based on earlierretlections in A.mbos, supra nole 70, at 778 eluq.and Cassese Festschrift, 2003 (forthcoming).

, 341. CI. e.g. Human RighlS Watch, Commentary on lhe 4th Preparatory Conunission meeting for lhe ICC (March 2(00).llt 3. Also in favor of a "jurisdietional element:" Fennek, supra lIOle 306, Art. 8 mn. 4; see generally Zimmennann, in Triffterer, supra note 300, Art. 5, mn; 9; see also Arsanjani, The Rome S(alute ollhe International Criminal Courl, 93 AJIL 22, 33 (/999); Boot, in J ANNOTAlEO L!lAOINO CASES 452 (Andre KJip & Goran Sluiter eds., 1999). al 456. leaves the question open. 342. lCRC, Non Paper. 27 January 2000,3; also HRW.supra note 341.3-4.

--

_~._-. _.. --- . lIuelILUlIUIIUI \.-1 OI/1UIIU t.<Hv • j,tUU .u....... .. .. • '" invoked the divergent nature of ordinary erimes and war erimes. The higher

degree of blameworthiness associated with a war erime ean only be justified if the perpetrator was also awate that he acted in the context of an anned eonfliet and, therefore, committed a war erime. In fact, the context element is. part of the actus reus and therefore covered by the normal fiens rea requirements. As is known, the issue could not be resolved in Siraeusa.343

From a crimiriallawyers perspective the subj~tive approach is clearly . preferable.The objective approaehmakes the "contextual element" an objective condition of punishability or criminal .liability (objektive Strajbar:keitsbedingung) and thus eonmets with the principle of guiIt.344 The question whether a particular element of the actus reus requires the perpetrator's intent and, therefore, cannot be. considered an objective eondition of punishability depends on the relevanee of this eondition for the wrongfulness of the. eonduet (Unrechtsrelevanz) in ques.tiori.34S Thus, the crucial question is whether the 'ieontextual element" of anned eonfliet influences the eontent of wrongfulness (Unrechtsgehalt) of war crimes pursuant to Art. 8 lee Statute. Ir. this is the ease, i.e., if this element inereases the eontent of wrongfulness of the aetions in question, theintent of the perpetrator must also be related to it if a violation of the principle of guilt is to be avoided. .

The answer to our question results from a eomparison of eonducts punishable aecording to bothgeneral (national) eriminallaw and Art. 8 lee Statute. Take, tor example, kiUing (Art. 8 (2)(a)(i) lee Statute), destruetion and appropriation of property (Art. 8 (2)(a)(iv) lee Statutc) and~(Art. 8 (2)(b)(xxiiH lee Statute). The punishability of these aeis according to general eriminal la\\, or international eriminal law depends, in objective' terms, on the existenee of an anned conflict and the eharacterization of the object of the offences as protected persons or objects. Thus, these elements have the effect of inereasing the wrongfulness ofthe aets in question, at least if one assumes. that a war crime posseses a higher degree of ~ngfulness than a comparable ördinary erime. This· "wrongfulness-iliereasing effeet"

343. The final report reads: "Por Genocide and Crimeugainst humanity, a particuiar mental element will be listed. Por War crimes. 1'10 mental element asto the eontexf will be liste<!. The issue is left open [...]" (PrepCommis. Working Group on Elements of Crimes. Outcome of an intersessional meeting of the Preparatory Commission for the International Criminal Court held in Siracusa from 31 January to 6 Pebruary 2000, PCNlCCJ2000IWGECIINF/I, 9 February 2000,6, emphasis added). ' 344. As. weil aS the tradilional tendency of U.S. criminal law to construe individual responsibility objectively as "strict-liability" (cf erit. Kadish, Fifty years of criminallaw: an opinionated review, 87 CAL. L. REV. 943, 954 et seq. (1999». 345. Cf. GElSUlR, ZUR VEREINBARKEIT OBJEKTIVER BEDINGUNGEN DER STRAFBARKEIT MIT DEM

, .sCHUlJ)PRINZlP (1998),130 ef seq. .

., ~.

~,

alone would prohibit the eharacterization of the aforementioned elements as objective eonditions of punishability. As to criminal responsibility· jn f ~

COncreto we can distinguish between three situations: " - Tbe offences occur in peacetime. - Tbe offenees occur during anarmed eonfliet but are not related to this conflict, viz. occur only on the oceasion of this eonmet. - Tbe offenees oceur during an armed eonflict and are related to this confliet. It is obvious thatin. the fIrSt situation only eriminal responsibility

aeeording to general criminal law is triggered. In the second and third situations, during an armed confllet, both general national eriminallaw and international eriminallaw eould be applied. elearly, ordinary crimes can also be eommitted during an armed eonfliet. Tbe ~acetime criminal justice system is not replaeed by the wartime system, but the two systems exist

'simultaneously and thus the question of thek delirnitation arises. In this respect, the Elements coneentrate on whetherthe eonduet "took place in the eontext of and was associated with an [international) armed eonfli~t [not of an international character]."346 Thus, there seerns to be agreement that the mere eornmission of an offence on the occasion of an anned confliet does not rnake it a war crirne,347 If the perpetratot uses the general chaos broJlght aboutby the outbreak of war to "sett1e old debts" and kills bis neighbour, this offenee is ­ to be sure ­ not a war erime for the rather formal reason that the neighbour is not a protected person aecording to the IV Geneva eon.vention;348 howevei, it is also not a war crime because the act is not related to the armed. confliet since the perpetrator wanted to kill the neighbour regardless of the ~xistence of the armedconflict' and did SO.349 'This is even more obvious in the following ease: If a group of rioting young football hooligans destrOys several automobiles, this damage to property does not beeome the war erime of destruetion of propert)r aeeording to Art. g (2)(a)(iv) lee Statute simply beeause it occurs objeetively during an

.armed confliet. Similarly, a rape punishal?le under general. eriminal law in peaeetime does not become a war crime of rape aceording to Art. 8 (2)(b)(xxii)-1 lee Statute simply because war has broken out oveniight. The perpetrator in all theseeases only turns into a "war eriminal" if his·

346. See, e.g., Element 1'10. 4 to Art. 8(2)(a)(i) ICC-Statute or Art. 8(2)(c)(i)-lICC-Statute. 347. Cf Kress, supra note 302. at 122-3. . 348. According to article 4 of the IV. Geneva Convention of 1949. civilians "who. at a given moment and in any manner whatsoe.ver, findthemselves. in case of a confliet or occupation, in the hands of a Party to the. conflict or Occlipying Power of which they are not nationals" are protected. 349. See Bothe, supra note 306. at 388: "slrictly private interpersonal conflict',"

InlernWWnw l-nmlllW L-UW .. \tuu' "UUl~ ; """i.J

" .. 'l

conduct. as correctly required by the Elements. took place in the context of an anried conflicl. However,' this context cannot be merely qetermined objectively but results from the attitude of the offender towards the offence. ~f the Perpetrator acts independently of the armed conflict, if he does not evell know thatan arined conflict is taking place, then his .conduet does not

.:ui!epiace within the context of this conflict, it is merely a coiricidence that a\If.",~;: .....•.../ ;:tlie.Y Occuc. simultaneously. However, if the perpetrator acts in the awareness ~~;;:f:;<~~::/r::()fjthe9ngojng anned conflict, if he even benefits from it, this awareness is ~ .. ' _.~. "'.' ". ," .,,' ~;~. :.:. ." •..' ."'thelink Detween his 'conduct and the a.nned conflict. Thus, the link with· the . '> '. annedconflict is formed or created by the imagiriation of the perpetratorand

not only based on mere' objective circumstances. 1t is sufficient, however, that the pezpetrator was aware of the factual circumstances of an armed conflict; he does not know or understand the underlying legal qualifications (te., possible normative elements of the actus reus). The introduction to the Elements of War Crimesreads:

"There is only. a requirement for the awareness of the factual circum&tances that established the existence of an armed conflict that is implicit in the tenns .'took place in the context of and was associated with.'''3so

'Similarly, the intent requirement must be fonnulated with respect to the nature of the conflict as international or non-international, since there are .courses of conduct which render a person criminally Iiable in international conflictsbut not in non-international conflicts.JS1 Thus, the punishment according to one or the other category of "war crimes"can· only be. explained by the fact that the perpetrator was aware that he acted in one or the other type of conflici. Tbe Elements, however, omit the requirement of intent in this context completely: .

"ln that context tI:tere i8 no requirement for awareness by the perpetrator of thejacls that established the characler of the conJli.ct as international or non~international."JS2

This would only make sense if Art. 8 ICC Statute did not. retain the distinction of crimes committed in international and nott-international

350. Elements ofCrimes, supra note 23. al 18. 351. E,g., Ibe use of poison or poisonous weapons ·is punishable in an international. hut. not in a non-international contlict (Art. 8(2)(h)(xvii) ICC Statute). Another important example is Art. 8(2)(b) (iv) ICC Statute as 10 the damage to the natural environment since Ihis is a crime which not onlyaccording to the ICC-Siatute bur also according to elC.isting customlll)' international

. Iaw is oot applicable in a oon-international artrn:d conflicl. Cf. also the far lenger list in Art. 8(2)(a) and (b) ICC Statute as compared 10 Art. 8(2)(c) and (e) ICC·Slalule. 352.: Elements ofCrimes.supra note 23.atI8.

conflicts. As long as this distinction exists, it must have an impact on the intent requirement if factual knowledge wi~ respeCt to the exisience of an ft

armed conflict,as correctly stated in the Elements, is require<l,. On the ather hand, it must be admitted that the'main difference in terms of the content of wrongfulness lies between crimes committed in peacetime or on the occasion· of an armed conflict and those committed in the contextof an armed conflict whereas the difference between crimes committed in an international and those committed in a non-int~rnational conflict is a minor one.As to the lex lata, itis limited to the (few) crimes that are punishable in an international, but not in a non-international armed conflict.

A parallel reflection with respect to the element of the offence regarding protected persons or objects also indicates the need for a requirement of intent.. It is generally agreed that intent must relate to protected perSons and objects.ln the language of Art. 30 lCe Statute, these elements constitute a "circumstance" of which the perpetrator must be aware. The corresponding Elements require that the perpetrator be aware of the "factual circumstances that establish this status ras aprotected person or protected object]."JSJ If. however, the perpetrator is required to have knowledge of the factual circumstances. this implies similar knowledge with regard to the existence <>fan armed conflict, since protected Persons or objects- as typical concepts of the laws of war - can only exist during such a conflict.

Finali)', the subjective approach ismore convincing with regard to the intezpretation of Art. 7lCC Statute. Iil both, Art. 7 lee Statute and Art. 8 leeStatute, a particular context is necessary for the conduct at issue to be treated as an internatiönal crime. Where Art. 7 lee Statute refers to action "as part of a widespread or systematic attack against the civilian population~" Art. 8 lee Statute places the action in the contel'.t of an (international or non-international) anned conflict. It would therefore be inconsistent if intentwere necessary in one case, while in the other not even factual knowledge of the attendant circumstances were required.

The case law of the Ad Hoc Tribunals does not contradict this intezpretation. It is certainly correct that the IcrY has, to date, viewed the requirement of anned 'conflict .only as a "jurisdictional element." The judicial precedents, however, only discuss the issue within the franiework of ,the jurisdiction of the CO~54 and stateonly the undisputed, namely, that the incriminating conduct musttake place in ~e context of an armed conflicl. The truly controversial question is whether the elements in question can also

353.. Cf e.g. Element 3 of Art. 8(2)(a)(i) ICC Stalute. supra 1.; similarly e.g, also Element 5 of Art. ß (2)(a)(iv) leC Statute reganling proteclerl property. 354, See, e.g,. Prosecutor v. Todi? T.Ch. Judgment, supra note 306. para. 572: "For a crimc to fall within thejurisdiction ofthe International Tribunal [... ],"

.. be viewed as attendant circumstances according to Art. 30(3) lee Statute beyond their characterization as "jurisdictional elements," and thus whether knowledge of them is required. This question would need to be discussed within.tbe framework ofindividual responsibility for war crimes~ in tbis part of the judgments, however, only - if at aU - discussions of the objective and subjective. requirements of the individual offences against the laws of war

.. canbe. found.J55 In other words, the case law, .ike the Preparatory . Commission, has left the question open.

Be that aS it. may, in prosecution practice~ thesubjective approach ­knowledge of tbe factual circurristances of the existence of an (international

.or non-international)"armed eonflict - .will hardly be distinguishabie from tbe objective approach - assumption of an objective conditionof punishability. The reason is that the international case law derives intent, particularly its eognitive element (knowledge),fröm objectively detennined facts and .circumstances anyway. lt uses elassieal circumstantial evidence.3S6

This judicial practice has also influenced the Elements, where the general .introduction reads: "Existenceof intent and knOwledge can be inferred from relevant facts and circumstances."3S1 However, if, in a particulai" case, the

. conduct of an accused party took place in the context of an armed confliet, e.g., because.she was the commander ofa prison eamp3SB oi was involvedin offences in military headquarters, the objection that she had nokßowledge of this anned conflict eail be rejected as a mere self-servingdeclaration. Even if the subj~tive approach would lead to insunnoontable prosecution and proof problems, as was suggested, inter aUa, by some NGOs,359 this must be accepted )n the interest of an international criminallawbased on the rule of law lind, in.particular. on the ptinciple of goUt. In the.light of the IMT's dictum tbat "mass punishments should be avoided"360and the always diffieult task to separate the guilty from the· innocent.361 -modern

355. Cf Proseclltor I'. De/alic et al., supra note 263. para. 419 et seq:: "roseeutor Y.

Furund?ija. supra note 262, para. 134 et seq. In COnlrasl, this is nol discussed in Proseculor v,. radi? T.Ch. Judgment, supra oote 306. .

• 356.. See already supra note 113 amhe~t. 357. Cf. Elements of Crimes. supra note 23, al 5. 358. Prosecutor v. Tadi.', T.Ch. Judgment;supra nole 306. para. 575; Proseculor v. Delalic el al.,supranote 263. paras. 196-197. . 359. Cf. e.g., HRW. supra note 34 t •a14. 360. The Trial of the Major War Criminals. Proceedings of the International MilitilI}' Tribunal sitting al Nuremberg. Qerinany. Val. 22. at 469 (London, HMSO 1(50).-ld. was also stited: "{...] the Tribunal should make such declaration of criminality lof an organizalion or group}so far as possible in a manner to ensure that innocent persons will not be.punished." 361. See US. I'. Krauch et al. (case 6). VIll Trial of War Criminals (US Government Printing· Office). IOßI-1210,at 1126: "{...}we are unablelo findonce we have passed below those who have led a country into a war of Aggression. a rational mark dividillg the guilty from the

" ,:,.. international criminallaw eannot pursuetheobjective of punishment of aIl '. possible suspects at all costs.!62 As a result,lUl intent requirement could ooly ..".t be qtiestioned if more than mere factual knowledge were required. ~

However, this is not the Case as can clearly be seen fröm the Elements and the whale analysis just made.

II.lndividun{crimes

1, General The different crimes of Art. 8 ICC Statute have been taken from the

prohibitions of the Hague and Geneva law, te., they must be interpreted in the light of these primary rules.36J This dependence on the primary rules enmBs that there ean be no war crimes regarding conducts which are not prohibited by the primary mIes. On the ather hand" not all primary prohibitions . may be converted or transfonned intosecondary criminalisations, Le., not aIl prohibitions are actual crimes,3~ This is a consequence of the.- already mentioned - elosed system of Art. ß lee. Statute: While Art. 3 IcrYS refers to tbe "laws or customs .of war" and thereby criminalizes all primary mIes object of this reference, Art. 8 ICe Statute explidtly lists the crimes andnaturally is more restricted tban Art. 3 iCTYs. Art. ß lee Statute does not,for example, criminalize the use of nuelear or biological weapons explicitly but makes their eriminalization dependend on a "comprehensive prohibition" which must be included in an annex to the Statute.(Art. 8 (2)(b)(xx) lee Statute). Apart fröm that, the use of these weapons could be covefed bysubparas. 2 (b)(i)·; (ü) or (iv) .365

. 2. International versus non-international crimes A mere reading ofArt. 8 ICeStatute apparently shows that there exists

more ·acts punishable in international, than . in non·intemational armed . conflicts.J66 Yet. one must be careful in comparingsubparas. (a) and (1) with .

innocent. I...JThe mark has already been set by the Honorable Tnöunal in the triaJ of the international criminals. It was set below the planners and leaders [...] who were found guilty of . waging aggressive war, and above those whose participation was less and whose activity took the form o{ neither planning nor guiding the natioo in its aggressive ambitkms. To find the defendants guilty of waging aggressive war would require us to move the mark without finding a finn place in whieh to resel it. We luve the mark where we find il, well satisfied lhar individuals who plan [...] arl aggressive war should be held guilty [...J. but not those who merely follow lhe leaders [...]." . 362. In p9.rticular human righlS organizations, otherwise in favor of the fair-trial principle. slmuld lII)\ be guilty of using double standaros. 363. On primary and secondary mIes (prohibitions and crimes) ·in this context see B·othe. supra note 306, at 381. 364; Cf. BOIhe, supra note 306, al 387. 365. See Bothe, supra nOle 306.lll 396-7.406 er seq. 366. See for more delails Condoreltl. supra. note 303. at 112-113; La flaye, The E;fements of War Crjmt.~, in Lee, .~upra nole 228. I09l!1 Sl'q .. l'.~pecial(" at 217.

'S penales 2004

'." subparas. (c) and (e) 9n a purely literal basis. While there may be many divergences in the wording of the crimes, in substance there is considerable similarity, if not identity. Thus'; far example, Art. 8 (2)(b)(ii) lCC. Statute punishes iritentionalattacks against "civilian'objects" and these very objects a.re enumerated in subparas. (e)(H) and (iv), i.e., the Same acts are punishable in.a non-international. armed conflict. Taking this into account, one can eriumerate, at f~tsight, the following crimes that are only punishable in international armed conflict according to Art. 8 lCC Statute:~61

-. Launching an attack in the knowledge that such attack will cause incidentalloss of live or injury to civilians or damage to civilian objects or wideSpread,long-tenn and severe damage to the natural environment whichwould be clearly excessive in relation to the concrete and direct overall military advantage anticipated (Art. 8 (2)(b)(iv»; - Anacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military Qbjectives; . - Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion (Art. 8 (2)(b)(vi»; - Making improper use of a flag of truce, of the flag or of the military insignia ~d uniform of the enemy or of the Uiuted Nations, as weIl as of the distinctive emblems of the Geneva Conventions, resulting in death

.or serious personal injury (Art. 8 (2)(b)(vii»; - Tbe transfer, directly or indirectly, by the Occupying Pow~t.,91parts of its own civilian popula~on into fhe terrltory it· occupies, or the deportation or transfer of all or partS of. the population .of the occupied terrltory within or outside this terrltory (Art. 8 (2)(b)(viii»; - Declaring abolfshcd, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party (Art. 8 (2)(b)(xiv»; ~ Compelling the nationals of the hostile party 10 take. part in' the operations ofwar directed against their own cO\lntzy, even if they Were in the belligerent's service before the commencement of the war (Art. 8 (2)(b)(xv»; - Employing poison or poisoned w~pons (Art. ß (2)(b)(xvii»); - Employing asphyxiating, poispnous or other gases, and all analogous liquids, materials or devices (Art. 8 (2)(b)(xviü»;

367. For a comparative chan from the perspective of the non-international conflict crimes of subpara. (2)(e), see La Haye, supra note 366, at 217.

International Criminal Law : Quo Vadis ? 277 't

- Employing buHets which expand or flatten easily iri the human body, such as bullets with a hard e~velope which does not entirely c0ver'the • core or is pierced with incisions (Art. 8 (2)(b}(xix)); - Employing weapons, projectiles and material and inethods of warfare which are of ii nature to cause· superfluous injury or unnecessary suffering or which are inherently indiscriminate' in viollltlon of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensiv~ prohibition and are included in an annex 10 this Statute ... {Art. 8 (2)(b){"x»; - Coromitting outrages upon pe~nal dignity, in particular humiliating and degrading treatment {Art. 8 (2)(b)(xxi»; -Utilizingthe preseilce of acivilian or other protected person to tender certain points, areas or militarY forces immune from military operations (Art. 8 (2)(b)(xxüi»; '. . - Using starvation of civilians as a method of warfare by. depriving them of objects dispensable to. their survival, including wilfully impeding relief supplies as provided for under the GeI!eva Conventions (Art. 8 (2)(b)(xxv»).

Taking;a closer look at the shortcomings of Art. 8 -(2)(e) lee Statute, it . is remarkable that the number of figurae crimines for non-international anned conflicts is limited compared to the ones applicable in international armed conflicts. The "use of inhumane weapons:' far example, is nottaken inta consideration in the context of non-international armed conflicts.368

Neither is "starvation of civilians as a method of combat,"369 wlüch is

368.' SeeCondorelJi, supra nole 303. at 112, Bothe. supra note 306, at 420 points out that "[t]he use of anti-persOlleJ mines and ofchemical and biologicaJ weapons is not covered by the Iist.ofcriminal acts in subparagmph (e), a1lhough their use is clearly prohibited in clJS!: of non­international arme,d conflic,ts undec the relevant m:a.ties as weU 8$, il is submitted, under customary international law. Art. 1(2) of Protocolll to the UN. Weapons Convention expressly provides that its prohibition appty also in situations teferced to in Article 3 common to Ihe Gc;neva Conventions," . 369. See BoOT, supra note 21, at para. 593. recalls .that "(i]n 1992, the UN. Security CoucH slrongly condemned the practices of starvation during the Somali conflicl. Not only \\'a~

starvation considered contrary to international Humanitarian Ia.w, but th.e Council also affrrmed that persons who committedor ordere<! such practice would be held individulilly responsible for such acts." Nevel1heless, "starvation of civilians as a method of combat" has not been included as a war crime commilted under non-international armed conflict. See also Bothe, supra note 306•.aI420. .

JmerntJllOncil LrifnmUI i..uw : f.tui> yadls ! 'LN

a­.. prohibited under Article 14 of AP Il,J70 included in Article 8 (2)(e) leCS.371

Other examples that have not been incorporated as war crimes ~ommitted in non-international anned conflicts in Article 8 (2)(e) lees are "colleetive punishmetits," "acts of terrorism," and "slavery and slave trade,"372 all prohibited under Article 4 (2) ofAP II.373 Finally,Article 8 (2)(e) leeS does not incorporate attacks which cause disproportionateinddental civilian damage' as war crime committed in a non-international anned conflict.3?4

Thenon-incIusion ofthese crjmes in Article 8 (2)(e) ICCS is partly due to the fact that some States have aigued thatthese crimes have not yet reached the status of customary inteniation81lavi.375 In particular, "Acts of terrorism" is not included for a lack of consensus among states on defining the acts constituting' "terrorism."376 Further, some States tend to see any limitation of their ex<:lusive competence in this field as.a threatto their sovereignty.m This also. explains why Art. 8 ICCS, as already rnentioned,m lacks an opening fonnula.

3. Definition of War Crimes Art. 8 lee Statute contains 51 different provisions with various elements

conflicting with the pri!1ciple of legality, in particular its requirement of certainty (nullum crimen sine lege terta). As has Ileen said before, Art. 8 lee Statute basically copies the prlrnary mIes contained in the Geneva Conventions and AP's but these provisions have not been drafted for criminallaw purposes.379 This is the main reason thatthey do not comply .

370. Anicle 14 of AP 11 states that "[S]la!'Vation of civilians' as 'a method ofcombat is prohibited. 1I is therefore prohibited to attack, destroy, remove or render Ilseless for that purpose, objeclS indispensable 10 the survival of tIie civilian population such as food-stuffs, agricullural areas forthe production offood-stuirs. crops.liveslock. drinking wat~r installations and supplies and irrigalio!1 works." 371. See Kress. supra note 302. at 134. 372. See Kress. supra note 302. notes. however.at 134, that "[tlo a certain extent these fonns of conduct are {...] covered {by] [...] Article 8(2)(c)(ii) to (iv) of the ICC Statute. 373.Article 4(2) of AP II states that "the following aets {...] are and shall remain prohibited at any time lind in any place whatsoever: {...] (b) colleclive punishments: (c) taking ofhostages; (d) acts of lerrorism; [.,.,] (f) slavery and the slave Irade inalllh!!ir fonns;" 374. Kress, supra note 302. al 135. 375. See Zimmermann, supra note 300, Art. 8, nm. 237; Kress, supra note 302. at 134 (customary criminalization undet Article 4(2) of AP 11 not entirely free from doubt). 376. See BOOT. supra note 2\, at para. 592; see also Kress. supra note 302. at 134 (civil war erime of "aets of terrorism" gives rise to eoncems with a view to the demands of legal certainty); Momtaz, supra note 312. at 183, states that "[r]egarding acts ofteiTorisrtl • [ ... ) one eould justify the refusal of the Statute to eriminalize thein by the absence of generally.accepted definitions of such acts under general public international law." 377. ld. See also BoOT. supra note 21, at para. 594. 378. Supra I. note 303. 379. Cf. Bothe. supra nole 306, at 392-3.

i~ \~.

without more with the requirements of the principle of legality. For reasons -iJof space, only a few examples which are not only highly disputed but also <:jo

of major importance will be given. " Art. 8 (2)(b)(iv) ICC Statute criminalizes the intentionallaunching ofan

"attac.k in the knowiedge that such attack will cause incidentalloss of live or injury to civilians or damage to civilian objects or widesprelld, long-term and severe damage to the natural. environment which would be clearly excessive in relation to the conerete and direct overall military advantage anticipated."The nonn.combines the grave breaches contained in Art. 85 (3) (b) and (c) of AP I arid adds the damage to the environment as a specific element, which is based on a combination ofArt. 35 (3) AP I and Art. 55 (1) AP 1.380 Whil~ the criminal sanction of environmental dainage rnay be considered a progress,l81 the codification as a whole clearly constitutes a limitation compared to the primary roles. As regards the actus reus ,criminal responsibility within the meaning of subpara. (2)(b) (iv) IC;C Statute presupposes that the military advantage be "clearly excessive:' taking into account its "overall" impact, Le., not only referring to the "concrete and direct military advantage ariticipated" (Art. 57 (2)(a)(üi) AP P82) but "to the advantage anticipated from the attack considered asa whole."383 Thus, thc delicate balance of interests implicit in the drafting of the primary mIes was

. changed in favour of the military interests protected. Tbe military perspective becomes even more important if one takes' the view - in accordance. with theCommittee established by the Prosecutor of the IcrY to review the NATO bombing campaign against the FR Yugoslavia - that the balancing process itself must be carried out from the perspective of a

380. See Hennan von Hebel & Robinson, Crimes Within the Jurisdiction ofthe Court. in THE INTEIl,NATtoNAL CRtM1NAL COUlcr -TH!! MAKINO 01' ni!! ROM!! STATI1l'I! -lssuf!S. NEGO'\1A"ON~. Rf!SutTS 79 (Roy S. Lee ed.». Art. 35(3) of the AP 1 reads: "It is prohibited to employ melhoos er means of warfare which are .intended. or may be expeeted, to eause widespread. long-tenn and severe damage tO.the natural environment." Art. 55(1) AP 1reads: "eare shall betaJcen in warfare to protect the natural environment against widespread, long~tenn and severe damage. 'Ibis protection includes a prohibition of the use of methods or means of warfare whieh are intended or may be el(pected to cause such damage to the natural environment and thereby to prejutiice the health or survival of the population." 381. Cf. Bothe. supra note 306. at 400. 382. Art. 57(2)(a)(iii) AP I slales that "[w]ith respect to attacks, the following precautions shall be taken: {...] thosewho plan or decide upon an attack shall: [.,,) refrain.from deciding. to launeh any attaek which may be expected to c:ause incidentalloss of civilian life. injury to civilians. damage to civilian objecL~, or a combination thereof, which would be el(cessive in relation to the eonerete and direct military advantage anticipated;" See also Fischer. supra note 305. at 9{).

383. Interpretative Declaration of the UK to AP I. quote<! according to Bothe.supra note 306, ~m .

. . ""ov 19 Nouvelles etudes penales 2004 International CriminallAw : Qua Vadis ?- 2&1

.~ . .. • "reasonable military commander."3B4 As to the mental element, the question between the intent (dolus) as part of the aetus reus and the blameworthiness .,

arises what consequences an erroneous evaluation of the commanc\er as to theproportionality .of the'military advantage would entaiI.1n this case, the commander would not act withthe knowledge required and could invoke

. :tJ1e defence of inistake. (Art. 32 IC(:: Statute). Thus, flrst, one must establish whether the rule on mistake of fact 01.' Inisuike of law applies. The commander would not err on faetual circumstanees or the so ealled descriptive elements of the actus reus but with regard to the evaluation or assessment of its nonnative elements, The decision that the military advantage' is exeessive and tberefore not proportional with regard to the damagescaused is a value judgment. Thus, applying Art. 32 ICC Statute, the questionarises if thismistake or error "negates thementalelement," While this is nonnally nöt .the case for mistakes of law, in caSu the Elements provide for an exception to the general rule that a value judgment mus.t not be completed bythe perpetrator and require "thattheperpetrator .make the . value judgement" deseribed in subpara. (2)(b)(iv) ICC Stafute.38S In other 'words, if the perpe~ator makes an erroneous value judgement this would negatethe mental element of subpara. (2)(b)(iv) ICC Statute since knowledge in this provision requires that the perpetrator makes a correct value judgment. An interpretation independent of the Elements would qualify the error about the proportionality of the attack as error about the nonnative elements of the actus reus (normativer Tatbestandsirrtum) and qualify it as an irrelevant error about the (legal) .subsumption (Subsumtionsirrtum).386 While this error, being irrelevant, does not e)(:lude the actus reus, it may affect the petpetrator's euipability in that the cOl\duct

. or result may not be blamed on him sinee he made the wrong evaluation of the proportionality involved. Tbe problem with this approach is that the. . underlying distinction between mental element or intent and clilpability or blameworthiness isnot recögnized in the ICCStatute. Tbe Statute "is based .on the classical canonical distinction between.the external and internal side of the eommission of a crime - "actus non facit reum nisi menssit rea"381 ­and does not take up more modem developments in criminal law,' in.. particular the finalistconcept of a human act, which'led to the distinction

384. See Final report to the Proseculor by lhe Commitlee Establiched 10 Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia <http://www.un.orglicty/pressreal/nato061300.htm>.para.SO. quoted in Bolhe, supra nole 306, at 399. See on the Report also Quenivel, 41 IND. J. INT'L L. 478 (2001). 385. Elements ofCrimes;supra note 23, at 5. 386. See Bothe, supra note 306, at 400. See general/y Ambos, supra nole 70, at 788 with fn. 167 and at 811 el seq. 387. See Gao, in 4 Rechtfertigung und Entschuldigung 379 (Albin Eser & Nishihara HrSg.• 1995), al 383 with further references. .

as part of the guilt or culpability.388 Anöther eXample iso the meaning of "regularly constituted court" in Art.

S (2)(c)(iv) ICC Statute. Neither Article 8 (2)(c)(iv) ICC Statute nor commori Article 3 GC give much guidance of what i5 meant by the notions '~regularly coilstituted court"and '~udicial guarantees which are generally recognized as indispensable,'" However, the wording of the chapeau of Article 6 (2) AP II i8 in its essence identical to common Article 3 of the Geneva Conventions, and thus also to Article 8 (2)(c)(iv) IC;:CS. The relevance ofArticle 6 (2) AP II for the interpretation of common Article 3 oe the Oeneva Conventions is underlined in the ICRC Commentary on Article 6 AP U:

"Article 6 lays down some principles of uni~ersal. application which every responsibly organiZed body must, and can, respect. It supplements and develops common Article 3, paragraph 1, sub-paragraph (l)(d), which prohipits the passing of sentences and the carrying out of executions withc;ut previous judgement pronounced by a regularly .constituted coUrt, affording all the judicial guarantees which are tecogni~ as indispensable by civilized peoples. This very general rule required clariflcation to strengthen the prohibition of summary justice and of convictions without trlal, which it aIready covers. Article 6 reiterates the principles contained in the Third and Fourth Conventions, and for the rest is largely basedon the International Covenant on Civil and Political Rights, particularly Article 15, from which no derogation is perniitted, evenin the case of a public emergency threatening the life ur the nation.;'~89 . . .

Given the fact that the Statute has verbatim retained the language of common Article 3 of the Geneva Conventions, also dissident anned groups arebound to set up "a regularly constituted court" before a sentencing might take place. Thus, special courts set up on im ud hoc basis by rebel groups are prohibited. Independence and impartiality are the main features of "a regularly constituted court," (cf. Art. 14 (1) ICCPR, 6 (1) ECHR, & (1) ACHR).390 In .deteqxiining whether a body can be considered to be independent, the court has regard tö the manner of appointment of its members and the duration of their tenn ofoffice, the existence ofguarantt:es against outside pressure and the question whether the body presents an'

388. See also the criticism in supra note 276. 389. Preparalory Commission for the ICC, PCNICC/99IWGEiINF2, at p. 91, 390. id. at 92.

i - ,- .,. ~ ....... •;juue:;' penates LUU4 .,

'. .. appearance of independence. The court is impartial when the judges stand above the parties, decide without persorial influence and objectively, only according to their best knowledge and conscience. Impartiality also means lack of prejudice or bias. 391

Finally, one can mention Article 8 (2)(c)(iv) ICC Statute which refers to "judicial guarantees which are generallj recognized as indispensable." The judicial guarantees to be afforded aceording to eommon Artiele 3 Of the Geneva Conventions are only describe~ by the fonnulation "which are ' recognized as indispensable by civilized peoples"; this formula has been replaced in the Statuteby "which are generally reeognized as indispensable."392 In order to determine thegenerally recognized necessary judicial guarantees, the particular judicial guarantees under Article ~ of AP n may serve as a,basis for interpretation. As indicated by the expression "in particular" 'atthe head of the list, it is illustrative, "only enumerating universally recogni~d standards."J9J

391. ld. at 94. See al,ro Iudments of the European Court of Human Righls concerning Art, 6 . of the Convention for the Protection of Human RighlS and Fundamental Free<Ioms, e.g .• Case of Kamasinski' v. Austria; Judgment of 19 December 1989'(9119ßSI153n07)",at pataS'. 61aOO 96; Case of Kremzow v. Austria, Judgment of 21 September 1993 (29/1992/374/445). at paras. 43 sI seq.; Gase of Remli v. France,Iudgment of 23 April 1996 (411995/510/593), at paras. 24. 28 SI seq.• 43 and 48; Case of Ferrantelli and Sanlangcilo v. Ilaly; Judgmenl of 7 August 1996 (48/1995/554/640). at paras. 37 and 54:'Ca~ of Gregory v; The United Kingdom, Judgment of 25 FebrulU')' 1997 (I II11995/6I7n<l7}. at par1tS. 35, 38 and 49. 392. Id., supra note 389. at 97. ' 393. Id.

"'ciCybercrime-Cyberterrorism 0'

Ellen S. Podgor',

Introduction

Globalization increasingly blurs the line between national and international jurisdiction. Countries are faCed with detennining whether, they have extraterritorial jurisdiction to prosecute eriminal aetivity such as international fraud, narcotics trafficking, and money launderlng. These jurisdiction issues can be problematic.J Equally problematic is determining whether conduct should be classified as an international crime. Characterizing a crime as national, transnational, or international provides the basis for determining "who" will enforce the law and oftentimes. it will also determine "who" will set the contours of how that crime is defined.2

,. Professor of Law, Georgia State University College of Law. Thanks go to research assistant David Walker. I. The focus hete is orten on international bases that provide exlJaterritorlal jurisdiction. Most notably in this regard are the five traditionaf bases of jurisdiction, namely: territorial, nationality! passive personality, protective prindple, and unive~aIity. See Harvard Research in International Law, Jurisdiction W;th Respect 10 Crime, 29 AM. I. I"",,,L L: 4~7 (Supp. 1935); see also THI! REsTATEMI!NT, (THIRO) 01' rul! FORI!IGN RELATIONS LAw 01' THI!,UNrmo STATES:

BASES OF JUPJSOtcrtON 1'0 PREScPJßE • 402 (1986). It is not t«:eepted here that these üve principles are set in stone. Rather, modification \0 these categorles and the scope of jurlsdiction may be warranted. See ~ward M. Wise, JurisdiClion, Theories ofPunishinent. and the Idea of Communiry (Paper presented at a Special Session organized by the Comrninee on Philosophy and Law, at the Annual Meeting of the American Philosophical Association, Bastern Division, Boston. December 30.1999) (cited in EOWARO M; WISE &ElJ..BN S. PODOOR, lNi'ERNATIONAL CRlMlNAL LAw: CASES AND MATER1AUl 44 (2000)). The breadt/l of Ibis area is highlighted by the many dimen~ions of territorial jurisdiction and the varied means by which some counirle$ approach lerritoriality. For instance, Geimany includes the "doctrine of-ubiquity," while the United States often uses "objeclive lerrilorialily," Council of Europe Committee on Crime Problems, Extraterrilorial Criminal Jurisdiclion. CRiMINAL LAw FORUM 3,441. (1992). Most recently I have been advocated for replacing "objective terriioriality" with a less intrusive ,methodology that I call "defensive territoriality." See Ellen S. Podgor. Exlralerritorial Criminal Jurisdiccion: Replacing '''Objeccive Terricorialiry" Wich "Defensive Terricorialily:' STUO.1N L.• POl... & Soc=y (forthcoming); Ellen S. Podgor, "Defensive Territi>rialicy": ANew Paradigmfor the Prosecution 01Extraterritorial Business Crirnes, 31 GA. J. INT'L L. & COMP. L. I (2002): 2. Arguably it can be said that adefinition of a crime should proceed' any grant ,of jurisdiction. But, ir, is equally persuasive to say thatabsent a. consensus of adefinition for a, crime, the praclicaIities are !hat the jurisdiction with the authority to prosecute will be the one to determine the definition ofthat crime. When the issue is whether Pt crime belangs in an international arena, the questions of definition and jurisdiction merge. If the crime is found tn be an international crime, than there is international jurisdiction. This does not preclude a determination ofwhether thisjurisdiction will be complementary to national jUrisdictioiJ. nie lackof a cJear definition for what constitutes cybercrime makes the delennination of whelher it is an international crime particularly difficult. .

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