Substantive law on international crimes definitions Learning objectives

Substantive law on international crimes: definitions

Learning objectives • Recognise the substantive law of international crimes, focussing on the definitions of war crimes, crimes against humanity, genocide and aggression. • Have a basic understanding of the elements of international crimes which need to be proved in order to establish individual responsibility for the crimes.

Overview War crimes Crimes against humanity Genocide Aggression

War crimes: background • Definition: war crimes are serious violations of the laws and customs of armed conflict or international humanitarian law (IHL). • The Treaty of Versailles (1919) marked the first significant attempt to criminalise, under international law, acts which violate the laws and customs of armed conflict. • The Nuremberg Charter (1945) cites examples of war crimes: ‘War crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity’. (Nuremberg Charter Article 6(b)).

Terminology Law of war International humanitarian law Ius in bello Law of armed conflict

Sources of IHL I Geneva law protects: • Military personnel no longer taking part in hostilities (wounded, shipwrecked, sick combatants, prisoners of war) • People not actively involved in hostilities (civilians, medical and religious military personnel Modern law of war = Hague law: • Establishes the rights and obligations of belligerents in the conduct of military operations • Limits the means (weapons) and methods (military tactics) of warfare International humanitarian law

Sources of IHL II Geneva law • The Geneva Convention (GC) for the Amelioration of the Conditions of the Wounded in Armies in the Field of 1864 (as revised by the GCs of 1906 and 1929). • Four GCs of 1949: – – • GC I: Amelioration of the Conditions of the Wounded and Sick in Armed Forces in the Field; GC II: Amelioration of the Conditions of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea; GC III: Treatment of Prisoners of War; GC IV: Protection of Civilian Persons in Time of War. Two Additional Protocols of 1977: – AP I: protection of victims of international armed conflicts; AP II: protection of victims of noninternational armed conflict. Hague law • The Hague Conventions of 1899 and 1907 which provide restrictions on the means and methods by which belligerent states conduct wars, in particular: – – 1899 Convention (II) with respect to the Laws and Customs of War on Land; 1907 Convention (V) Respecting the Laws and Customs of War on Land with the Regulations annexed thereto. • Two additional protocols of 1977 which incorporate part of Hague law to combine both branches. • Other conventions – protection of cultural property, prohibition of certain weapons, mines.

Sources of IHL III Conventions and protocols have been adopted to strengthen the protection afforded by IHL and to prohibit or regulate certain weapons: • The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. • The 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxic Weapons and on Their Destruction. • The 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (CCW), and its three Protocols. • The 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction. • The 1995 Protocol Relating to Blinding Laser Weapons (Protocol IV to the 1980 CCW). • The Protocol on Prohibition or Restrictions on the Use of Mines, Booby Traps and Other Devices (as amended on 3 May 1996) (Protocol II (revised) to the 1980 CCW). • The 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on their Destruction. International humanitarian law treaties & documents available at: www. icrc. org/ihl. nsf/TOPICS? Open. View (ICRC website)

Geneva law + Hague law = IHL • Geneva law and Hague law are interwoven into a single, complex system called international humanitarian law. • This inter-relationship finds expression in the provisions of the Additional Protocols of 1977, which combine both branches into IHL.

ICL versus IHL ICL

ICL versus IHL II • IHL is one of the main sources of international criminal law. • IHL overlaps with ICL when international humanitarian law is criminalised as war crimes. • IHL rules, at least part of it, are criminalised in the law of war crimes. • War crimes: serious violations of the laws and customs of armed conflict/IHL.

Scope of application of IHL Armed conflict Internal disturbances

Classification of armed conflicts International (IAC) Non-international (NIAC) • Fighting between the armed forces of at least two states. • Fighting on state territory between government armed forces and identifiable nonstate armed groups, or between such groups fighting one another. • Wars of national liberations (AP I). • Any difference arising between two states and leading to the intervention of armed forces. • Fighting/violence must reach a certain level of intensity and extend over a certain period of time.

Internal disturbances • Definition: serious disruption of internal order resulting from acts of violence such as riots, struggles between fractions or against the authority, internal disturbances and tensions, isolated or sporadic acts of violence. • IHL does not apply to international disturbances.

Armed conflict: applicable law IAC NIAC Four Geneva Conventions + Additional Protocol I Common Article 3 of the Geneva Conventions + Additional Protocol II (provides more limited protection)

Common Article 3 of the Geneva Conventions • Characteristics: – it is called a ‘mini-Convention’ within the Geneva Conventions as it contains the essential rules of the Geneva Conventions in a condensed format and makes them applicable to conflicts not of an international character; – it requires humane treatment for all persons in enemy hands, without any adverse distinction; – it specifically prohibits murder, mutilation, torture, cruel, humiliating and degrading treatment, the taking of hostages and unfair trial; – it requires that the wounded, sick and shipwrecked be collected and cared for; and – it grants the ICRC the right to offer its services to the parties to the conflict.

General principles of IHL • • • General principles: protection of non-combatants; principle of distinction; principle of proportionality; principle of humanity and necessity. Martens clause (1899): ‘Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience. ’ Additional Protocol I, Article 1(2): ‘In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from dictates of public conscience. ’

War crimes: Article 8 of the ICC Statute Grave breaches of Geneva Conventions (protected persons and property), for example: - wilful killing; - torture or in humane treatment; - wilfully causing great suffering. Other serious violations of the laws and customs applicable in international armed conflict, for example: - intentionally directing attacks against the civilian population; - intentionally directing attacks against civilian objects. War crimes In the case of an armed conflict, not of an international character, serious violations of Article 3 common to the Four Geneva Conventions, for example: - violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture. Other serious violations of the laws and customs applicable in armed conflicts not of an international character, for example: - intentionally directing attacks against the civilian population; - intentionally directing attack against buildings dedicated to religion, education.

IHL versus ICC Statute Source of IHL Violation of IHL Provision of the ICC Crime under the statute ICC statute Articles 50, 51, 130 and 147 of GC I-IV respectively. Wilful killing. Article 8(2)(a)(i) Wilful killing. Articles 50, 51, 130 and 147 of GC I-IV respectively. Torture or inhuman treatment, including biological experiments. Article 8(2)(a)(ii) Torture or inhuman treatment, including biological experiments. Article 52(1) AP I. Civilian objects shall not be the objects of attacks or of reprisals. Article 8(2)(b)(ii) Common Article 3 (1)(c) of GC I-IV. The following acts are and shall remain prohibited [. . . ]: Outrages upon personal dignity, in particular humiliating and degrading treatment. The civilian population as such, as well as individual civilians, shall not be the object of attack. Article 8 (2)(c)(ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives. Committing outrages upon personal dignity, in particular humiliating and degrading treatment. Article 13(2) of AP II. Article 8 (2)(e)(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities.

Amendment to Article 8 of the ICC Statute • Article 8 paragraph 2(e) was revised at the Review Conference of the Rome Statute in Kampala, Uganda, 10 June 2010, to include the following additional crimes, when committed in armed conflicts not of an international character: ‘(xiii) Employing poison or poisoned weapons; (xiv) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices; (xv) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions. ’ • Article 8 of the ICC Statute prescribes the above crimes as war crimes during IAC (Article 8(2)(b)(xvii), (xviii), (xix)) but not during NIAC. • The amendment adds the above crimes the category of war crimes, ‘Other serious violations of the laws and customs applicable in armed conflicts not of an international character’.

War crimes: elements General/chapeau requirements Physical and mental elements of a specific or underlying offence Elements of war crimes

War crimes: general requirements Existence of an armed conflict Nexus with armed conflict (not ordinary crimes) The perpetrator (eg, members of the armed forces) The victim and an object of the crime (protected) Seriousness or gravity of the crime

Existence of an armed conflict I • Definition: ‘A resort to armed force between states, or protracted armed violence between organised armed groups within a state. ’ (ICTY Appeals Chamber in Tadić). • • Two categories of armed conflicts: IAC or NIAC. The question whether NIAC qualifies as an ‘armed conflict’ depends on the following considerations: – – – – • intensity of the conflict; seriousness of the attack; an increase in armed clashes; spread of clashes over territory over a period of time; any increase in the governmental forces; mobilisation and distribution of weapons among both parties to the conflict; whether the conflict has attracted UN Security Council attention; the level of military organisation of the parties. Article 8(2)(f) of the ICC Statute: ‘… armed conflict that takes place in the territory of a state when there is protracted armed conflict between Governmental authorities and organised armed groups or between such groups’.

Existence of an armed conflict II • Question: Is knowledge of the existence of the armed conflict an element of war crime? • ICTY/ICTR jurisprudence: unclear, there is a suggestion that the perpetrator must know of the existence of an armed conflict. • ICC Elements of Crimes: ‘in the context of, and associated with an armed attack’. • Tadić case: ‘… closely related to the hostilities’.

Nexus between the crime and the armed conflict • There must be sufficient connection or ‘nexus’ between the crime and the conflict in order to exclude domestic crimes: Tadić case, ‘… closely related to the hostilities’. • No need to prove that a crime was committed in the course of, or as a part of the hostilities in an area controlled by one of the parties, or in furtherance or to take advantage of, the situation created by the fighting. • No need to prove that the criminal act was part of state policy or practice that is officially endorsed, tolerated, or in the interest of one of the parties to the conflict.

The perpetrator • Members of armed forces. • Civilians: important nexus with the armed conflict (to be distinguish from an ordinary criminal offence). • ICC Elements of Crimes: awareness of the existence of the armed conflict, ‘… the perpetrator was aware of factual circumstances that established the existence of an armed conflict’.

Victim and object of the crime I Protected persons and property Geneva Conventions: each Geneva Convention identifies conditions under which a person or an object is protected by its provisions: i. iii. iv. wounded, sick combatants, persons treating those wounded and sick, medical establishments and mobile medical units, medical transport; wounded, sick and shipwrecked combatants at sea, religious, medical and hospital personnel of hospital ships, lifeboats; prisoners of war; civilians, civilian hospitals, medical transport, objects necessary for religious worship, real or personal property belonging to individually or collectively to private persons, humanitarian aid.

Victim and object of the crime II Protected persons and property • Common Article 3: ‘persons no longer taking active part in hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or other cause’. • Other serious violations of the laws and customs of war: the civilian population, civilian objects, personnel involved in humanitarian assistance, buildings dedicated to religion or education. • Protecting combatants as victims of crimes: ‘killing and wounding treacherously individuals belonging to the hostile nation or army. ’ (Article 8(2)(b)(xi)).

Seriousness or gravity of the crime • ‘Grave’ breaches of the Geneva conventions. • ‘Serious’ breaches of Common Article 3. • Other ‘serious’ violations of the laws and customs of war/armed conflict: – Article 8(1) of the ICC Statute: ‘the ICC shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes’; – Question: is this an additional element? Answer: no. • ICC versus ICTY/ICTR: Article 8(2) of the ICC Statute (provides an exclusive list of crimes which qualify as ‘serious’.

Specific/underlying offences: elements Physical elements Mental elements Underlying offence

Mental elements Article 30 of the ICC Statute 1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the court only if the material elements are committed with intent and knowledge. 2. For the purposes of this article, a person has intent where: (a) in relation to conduct, that person means to engage in the conduct; (b) in relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. 3. For the purposes of this article, ‘knowledge’ means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. ‘Know’ and ‘knowingly’ shall be construed accordingly.

Underlying offences: examples I Article 8 of the ICC Statute lists elements of specific acts/underlying offences, for example: • War crime of torture (Article 8(2)(a)(ii)-1 of the ICC Statute): – the perpetrator inflicted severe physical or mental pain or suffering upon one or more persons; – the perpetrator inflicted the pain or suffering for such purposes as: obtaining information or a confession, punishment, intimidation or coercion or for any reason based on discrimination of any kind. • War crime of attacking civilians (Article 8(2)(b)(ii) of the ICC Statute): – the perpetrator directed an attack; – the object of the attack was a civilian population as such or individual civilians not taking direct part in hostilities; – the perpetrator intended the civilian population as such or individual civilians not taking direct part in hostilities to be the object of the attack.

Underlying offences: examples II Examples: • War crime of employing prohibited gases, liquids, materials or device (Article 8(2)(b)(xviii) of the ICC Statute): – the perpetrator employed a gas or other analogous substance or device; – the gas, substance or device was such that it causes death or serious damage to health in the ordinary course of events, through its asphyxiating or toxic properties; – the ICC Elements of Crimes notes that nothing in element two shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law with respect to the development, production, stockpiling and use of chemical weapons.

Underlying offences: examples II Examples: • War crime of pillaging (Article 8(2)(e)(v) of the ICC Statute): – the perpetrator appropriated certain property; – the perpetrator intended to deprive the owner of the property and to appropriate it for private or personal use; – the appropriation was without the consent of the owner; – appropriations justified by military necessity cannot constitute the crime of pillaging.

Crimes against humanity: background I • The Martens clause of the Hague Convention (IV) of 1907 was the first legal instrument enshrining the principle of humanity in respect to armed conflict referring to ‘the usages established among civilised peoples, […] the laws of humanity, and the dictates of the public conscience. ’ • In 1915, the Governments of France, Great Britain and Russia made a declaration regarding the massacres of the Armenian population in Turkey, denouncing them as ‘crimes against humanity and civilisation for which all the members of the Turkish government will be held responsible together with its agents implicated in the massacres. ’

Crimes against humanity: background II • Crimes against humanity were first prosecuted at the Nuremberg International Military Tribunal. • The Nuremberg Charter did not treat crimes against humanity as a selfstanding crime, since it required that crimes against humanity be committed in connection with another crime within the jurisdiction of that tribunal, that is, war crimes or crimes against peace. • Article 6(c) of the Nuremberg Charter: ‘Crimes against humanity: namely, murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian populations, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the tribunal, whether or not in violation of the domestic law of the country where perpetrated. ’

Crimes against humanity: Article 7 of the ICC Statute 1. For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) murder; extermination; enslavement; deportation or forcible transfer of population; imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; torture; rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognised as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; enforced disappearance of persons; the crime of apartheid; other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

Crimes against humanity: elements General/chapeau requirements Physical and mental elements of a specific/underlying offence Elements of crimes against humanity

Crimes against humanity: general requirements Existence of an attack Widespread or systematic Directed against any civilian population The underlying offence is part of the attack Knowledge that the offence is part of the attack

Existence of an attack • Definition: ‘“Attack directed against any civilian population” means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a state or organizational policy to commit such attack. ’ (Article 7(2)(a) of the ICC Statute). • Elements: – the acts need not constitute an armed attack (ICC Elements of Crimes); – there can be a multiple commission, that is, the same type of act or the commission of different types of acts; – a ‘policy to commit such attack’ means that the state or organisation actively promote or encourage such an attack against civilian population; – the policy which has a civilian population as the object of the attack must be implemented by state or organisational action; – in exceptional circumstances, such a policy may be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack; – random acts of individuals do not constitute crimes against humanity.

Widespread or systematic • The attack must be widespread or systematic. • Only the attack, not individual acts of the perpetrators, must be widespread or systematic; the commission of a single act, such as one murder, in the context of a broader campaign against the civilian population, can therefore constitute a crime against humanity.

Directed against any civilian population • The general population and members of armed forces who have surrendered or have been rendered hors de combat due to wounds, illness, detention or other cause. • All persons except those who have the duty to maintain public order or the legitimate means to use force (in times of peace). • Non-combatants, including, under Geneva law, prisoners of war and the wounded, sick and shipwrecked. • Those who are ‘predominantly civilian in nature’ (the presence of certain non-civilians in their midst does not change the character of the population). • A civilian population of any nationality as well as stateless civilians. • ‘Population’ implies collective nature therefore excluding single or isolated acts.

Underlying offence is part of the attack • The link between the perpetrator’s conduct and the attack. • The underlying offence must be ‘related’ to the attack. • The perpetrator’s conduct must comprise part of a pattern of widespread or systematic crimes against civilian population. • No nexus between the offence and armed conflict is required (note, ICTY exception). • The offence need not be committed in the midst of the attack (it can be committed before or after the attack). • A single act may equate to a crime against humanity when it occurs as part of the attack (not an isolated act).

Knowledge that the offence is part of the attack • The perpetrator must be aware of the circumstances which make the offence a crime against humanity: – the perpetrator must know that there is a widespread or systematic attack on civilian population; – the perpetrator must know that his acts comprise part of that attack; – alternatively, he must take the risk that his acts were part of the attack; – the perpetrator need not share the purpose or goal behind the attack; – ICC Elements of Crimes: ‘the perpetrator knew that the conduct was part of or intended the conduct to be part of widespread or systematic attack against a civilian population’.

Additional requirements • Nexus with armed conflict ICTY. • Discrimination requirement ICTR: crimes committed on national, ethnic, racial or religious grounds; generally: discriminatory/persecutory intent not required; such intent is required for persecution as a crime against humanity.

Specific/underlying offences: elements Physical elements Mental elements Underlying offence

Underlying offences under the ICC statute Article 7(1) of the ICC Statute (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) murder; extermination; enslavement; deportation or forcible transfer of population; imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; torture; rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence of comparable gravity; persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognised as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the court; enforced disappearance of persons; the crime of apartheid; other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

Underlying offences: an example ‘Murder’ (Article 7(1)(a) of the ICC Statue) • Physical element: – the victim is dead; and – the death of a victim resulted from an unlawful act or omission of the perpetrator. • Mental element: – intention to kill the victim; or – intention to inflict serious injury or grievous bodily harm in reckless disregard of human life. • The ICC Elements of Crimes provide the following element in addition to the contextual or chapeau elements, ‘[t]he perpetrator killed [or caused the death of] one or more persons’.

Genocide: background I • Etymology: ‘genocide’ (genos (race, nation, tribe) + cide (from caedere ‘to kill’). • Definition: ‘A coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objective of such a plan would be disintegration of the political and social institutions of culture, language, national feelings, religion and the economic existence of national groups and the destruction of personal security, liberty, health, dignity and even the lives of the individuals belonging to such groups. Genocide is directed against the national group as an entity, and the actions involved are directed against individuals, not in their individual capacity, but as members of the national group. ’ (Raphael Lemkin, 1944).

Genocide: background I • Examples: – holocaust of Jews and Gypsies by Nazis during the World War II; – the extermination of Australian and Tasmanian Aboriginals in the 19 th Century; – the forced removal and elimination of American Indians in the United States; – extermination of the Herero and Namaqua in Namibia in 1904; – extermination of the Armenians in 1915; – genocide in Rwanda in 1994; – genocide in Bosnia and Herzegovina in 1992– 1995.

Genocide: background II • Not included in the Nuremberg Charter because the offence was created ex post facto (principle of legality). • Genocide established as internationally recognised crime on 11 December 1946 by the UN General Assembly resolution 96(1): – – • affirmed that genocide is a crime under international law; determined individual criminal responsibility for perpetrators; eliminated the limitations of the crimes of genocide to situations of armed conflict; mandated the UN to prepare a convention on genocide. Convention on the Prevention and Punishment of the Crime of Genocide (1948): – – adopted by the UN General Assembly in 1948; came into force on 12 January 1951; 141 states parties to the Convention; genocide is a crime under international whether committed in time of peace of time of war; – states parties are obliged to prevent or punish it. • ICJ recognised prohibition of genocide as jus cogens.

Definition of genocide I • Definition: ‘genocide’ means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group. (Article 2 of the ICTR Statute/Article 4 of the ICTY Statute; Article 6 of the ICC Statute; and Article II of the Genocide Convention).

Definition of genocide II • ‘The following acts shall be punishable: (a) (b) (c) (d) (e) genocide; conspiracy to commit genocide; direct and public incitement to commit genocide; attempt to commit genocide; complicity in genocide. ’ (Article 2 of the ICTR Statute/Article 4 of the ICTY Statute; and Article III of the Genocide Convention). • The above provision sets out different forms of punishable, genocidal acts. • Conspiracy, incitement, attempt to commit genocide are inchoate offences. • Complicity in genocide is a form of responsibility (aiding and abetting). • ICC Statute: – does not include the above provision; – forms of participation in genocide are included in Article 25 (forms of responsibility); – Article 25 omits ‘conspiracy’ to commit genocide.

Genocide: elements General/chapeau requirements Physical and mental elements of a specific/underlying offence Elements of genocide

Genocide: general requirements Victims must belong to a particular national, ethnical, racial or religious group. ICC: 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 the group’s destruction. Specific intent (dolus specialis): ‘intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such’.

Definition of the protected group: exhaustive list National Ethnical Racial Religious

Contextual element (ICC) • Question: could offence amount to genocide if an isolated individual act with the intent to destroy a group in the absence of any wider plan or context? – Prosecutor v Jelisić (ICTY): killings committed by a single perpetrator could amount to genocide; – Prosecutor v Krstić (ICTY): confirmed that it is assumed that several actors were involved in the crime of genocide; – Kayishema & Ruzindana (ICTR): although a specific plan to destroy does not constitute an element of genocide, it would appear that it not easy to carry out genocide without such plan. • ICC contextual element (adopted by the ICC Elements of Crimes): ‘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… [the group’s] destruction. ’

Specific intent (dolus specialis) • Definition: ‘Intent to destroy in whole or in part, a national, ethnical, racial or religious group as such’. • ‘Specific intent’ elevates genocide in relation to other international crimes. • The perpetrator must clearly intend the result. • Other categories of mental element (eg, recklessness (dolus eventualis) or gross negligence) are excluded. • If there is no direct explicit evidence, the specific intent may be inferred from the surrounding circumstances, for example: – the general context in which the crimes occur; – the perpetration of other culpable acts systematically directed against the same group; – the scale of atrocities committed; – the systematic targeting of victims on account of their membership of a particular group; – the repetition of destructive and discriminatory acts.

Specific intent (dolus specialis): elements • ‘To destroy’: – physical or biological destruction; – other acts (eg, not providing detention camp inmates with adequate food or sufficient medical care and subjecting them to poor conditions) which may constitute an underlying offence of ‘deliberately inflicting on the group conditions of life calculated to bring about its physical destructions in whole or in part. ’ (Article 6(c) of the ICC Statute). • ‘In whole or in part’ (intended scope of destruction): – Prosecutor v Kayishema & Ruzindana (ICTR): ‘in part’ implies a reasonably significant number, relative to the total of the group as a whole, or else a significant section of a group, such as its leadership; – Prosecutor v Krstić (ICTY): substantial part of the protected group; the relevant group was a group of were Bosnian Muslims and the targeted population, which was extremely significant portion of the protected group, the Muslims of Eastern Bosnia, most of whom lived in the Srebrenica enclave; – refers to intended scope of destruction, not whether or not this is actually achieved. • ‘As such’: – reinforces the fact that the individuals are selected as victims due to their membership of a group and specifically because they belong to this group; the victim is the group itself, not merely the individual.

Specific/underlying offences: elements Physical elements Mental elements Underlying offence

Genocide: underlying offences Article 6 of the ICC Statute (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group.

Underlying offences: an example Genocide by killing • Physical elements: – the victim is dead; – the death resulted from an unlawful act or omission of the perpetrator. • Mental elements: – intended to kill the victim; or – intended to inflict grievous bodily harm or serious injury in the reasonable knowledge that such act or omission was likely to cause death. • Same elements as for: – wilful killing as a grave breach of the Geneva Conventions; – murder as a war crime; – murder as a crime against humanity. • Additional requirement: the killing must be of members of a targeted national, ethnical, racial or religious group.

Genocide against one member of the group • Question: – Can there be genocide if one of the acts prohibited is committed against ‘one member’ of the group? • Answers: – Yes, Prosecutor v Akayesu (ICTR); – No, definition of genocide in the Statute and the Genocide convention, ‘members of the group’.

Crime of aggression • First criminalised as 'crimes against peace' (Article 6(a) of the Nuremberg Charter): – ‘Crimes against peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing. ’ • UN General Assembly Resolution 3314(XXIX) adopted in 1974: – ‘Aggression is the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition. ’ • ILC draft Code of Crimes Against the Peace and Security of Mankind (1996): – ‘An individual who, as leader or organiser, actively participates in or orders the planning, preparation, initiation or waging of aggression committed by a state shall be responsible for a crime of aggression’.

Crime of aggression: ICC I • The ICC Statute provides for jurisdiction of the ICC for the crimes of aggression (Article 5(1)(d) of the ICC Statute). • Initially the ICC Statute did not include a definition of the ‘crime of aggression’ but it merely provided as follows: – ‘The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. ’ (Article 5(2) of the ICC Statute).

Crime of aggression: ICC II • The Review Conference on the ICC Statue: – conducted in Kampala, Uganda, 31 May to 11 June 2010; – amendments to the ICC Statute, which included a definition of the crime of aggression, adopted by consensus. • Conditions for exercising jurisdiction over the crime of aggression: – the ICC will not be able to exercise its jurisdiction over the crime of aggression until after 1 January 2017 when a decision is to be made by states parties to activate the jurisdiction.

UN General Assembly Resolution 3314 (XXIX): definition of aggression Preamble: Considering that aggression is the most serious and dangerous form of the illegal use of force. Article 1: Aggression is the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition. Article 2: Non-exhaustive list of acts that qualify as an act of aggression: (a) the invasion or attack by the armed forces of a state of the territory of another state, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part of the territory of another State or the use of any weapons by a State against the territory of another State; (b) the blockade of the ports or coasts of a State by the armed forces of another State; (c) an attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; (d) the use of armed forces of one State which are within the territory of another State with the agreement of the receiving State, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; (e) the action of a State in allowing its territory, which it has placed at the disposal of another State, to be used by that other State for perpetrating an act of aggression against a third State; (f) the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein.

The crime of aggression: definition under the ICC Statute • Resolution RC/Resolution 6: The crime of aggression (adopted at the 13 th plenary meeting, on 11 June 2010, by consensus). • Annex I contains Amendments to the ICC Statute on the crime of aggression and provides the following definition: – ‘… planning, preparation, initiation or execution, by a person in a position effectively to exercise control over to or direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations. ’ (Article 8 bis, Paragraph 1).

Act of aggression under the ICC Statute I • Act of aggression: – ‘… the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. ’ (Article 8 bis, Paragraph 2).

Act of aggression under the ICC Statute II Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression: (a) the invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof; (b) bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; (c) the blockade of the ports or coasts of a State by the armed forces of another State; (d) an attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State; (e) the use of armed forces of one state which are within the territory of another state with the agreement of the receiving state, in contravention of the conditions provided for in the agreement or any extension of their presence in such territory beyond the termination of the agreement; (f) the action of a state in allowing its territory, which it has placed at the disposal of another state, to be used by that other state for perpetrating an act of aggression against a third state; (g) the sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another state of such gravity as to amount to the acts listed above, or its substantial involvement therein. (Article 8 bis, Paragraph 2).

Exercise of jurisdiction over the crime of aggression • Jurisdiction can be exercised only for crimes of aggression committed one year after the ratification or acceptance of the amendment by thirty states. • Aggression by a state party – unless the state party has previously declared that it does not accept such jurisdiction by lodging a declaration. • States not parties - no jurisdiction for crimes committed by that state’s nationals or on its territory. • States parties: Where the prosecutor concludes that there is a reasonable basis to proceed with an investigation, the prosecutor shall first: – ascertain whether the Security Council has made a determination of an act of aggression committed by the state concerned; – authorise the commencement of investigations by the Pre-Trial Division if no determination by the Security Council within six months after the date of notification. • The UN Security Council may refer a situation in which a crime of aggression appears to have been committed. (Article 15 ter).

GA resolution 3314 versus crime of aggression under the ICC GA resolution 3314 (XXIX) ICC Rome Statute Broader Narrower Purpose: to assist Security Council in determining the existence of aggression under Chapter VII of the UN Charter Purpose: to identify instances of individual criminal responsibility for aggression To be ‘inconsistent’ with the UN Charter A ‘manifest violation’ of the UN Charter

The crime of aggression: elements • The perpetrator planned, prepared, initiated or executed an act of aggression. • The perpetrator was a person in a position effectively to exercise control over or to direct the political or military action of the state which committed the act of aggression. • The act of aggression, which is the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any other manner inconsistent with the UN Charter, was committed. • The perpetrator was aware of the factual circumstances that established that such a use of armed force was inconsistent with the UN Charter. • The act of aggression, by its character, gravity and scale, constituted a manifest violation of the UN Charter. • The perpetrator was aware of the factual circumstances that established such a manifest violation of the UN Charter.