War crimes and crimes against humanity in the Rome Statute of the International Criminal Court

Christine Byron

• Publisher: Manchester University Press
• Year: 2013
• ISBN:
  9781847796516
• Edition: 1
• Topic: Politique et relations internationales
• Subtopic: Politique

This book provides a critical analysis of the definitions of war crimes and crimes against humanity as construed in the Rome Statute of the International Criminal Court.Each crime is discussed from its origins in treaty or customary international law, through developments as a result of the jurisprudence of modern ad hoc or internationalised tribunals, to modifications introduced by the Rome Statute and the Elements of Crimes. The influence of human rights law upon the definition of crimes is discussed, as is the possible impact of State reservations to the underlying treaties which form the basis for the conduct covered by the offences in the Rome Statute. Examples are also given from recent conflicts to aid a 'real life' discussion of the type of conduct over which the International Criminal Court may take jurisdiction.This will be relevant to postgraduates, academics and professionals with an interest in the International Criminal Court and the normative basis for the crimes over which the Court may take jurisdiction.

1
Introduction

As the first defendants appear before the International Criminal Court it is now more important than ever to gain a proper understanding of the crimes with which they have been charged. The purpose of this study is to provide a critical analysis of the definitions of war crimes and crimes against humanity as construed in the Rome Statute and developed by the Elements of Crimes.

Background to the ICC

The origins of the ICC are mainly rooted in the events of the twentieth century. Whilst attempts to create an international tribunal prior to the Second World War failed dismally,¹ the horrific atrocities committed in that conflict led to the Nuremberg and Tokyo Tribunals to try German and Japanese war criminals.² Despite criticism of these tribunals for applying victors’ justice and ex post facto law, it is undeniable that they greatly contributed to international criminal law and the prospects of a permanent international criminal court.³ In particular, they revealed the potential of international criminal justice, when given political backing and sufficient resources.⁴

However, the momentum towards the formation of a permanent ICC, created in the wake of the International Military Tribunals, was soon mired in Cold War politics. The International Law Commission’s Draft Code of Offences was given priority over the creation of an international jurisdiction to deal with such crimes and the Draft Code could not be considered until aggression was defined, so the question of an international criminal court was postponed indefinitely.⁵ The issue was lost in silence as the years went by and only the work of academics and some non-governmental organisations kept the topic from being forgotten completely.⁶

Nevertheless, towards the end of the twentieth century barriers impeding an ICC began to tumble one by one. First, the General Assembly managed to adopt a definition of aggression,⁷ allowing the International Law Commission (ILC) to resume work on its Draft Code of Crimes.⁸ Second, the end of the Cold War created a ‘new political climate that favoured international cooperation’.⁹ This, in particular, enabled the General Assembly to react favourably to the request of the Prime Minister of Trinidad and Tobago for consideration of an international court to deal with transnational drug offences, and so it mandated the ILC to consider this under the umbrella of its work on the Draft Code of Crimes.¹⁰

The third factor was the instability of areas such as the Balkans and massive violations of human rights.¹¹ These atrocities, combined with the media coverage, which bombarded the public with images of death and destruction in their living rooms, created a groundswell of public pressure that ‘something must be done’.¹² The non-governmental organisations dedicated to fighting for an international criminal court were quick to capitalise on this.¹³ The ad hoc international tribunals for Yugoslavia and Rwanda were born out of the post-Cold War co-operation of the Security Council and public pressure following media coverage of the conflicts.¹⁴ Undoubtedly the existence and successful operation of the tribunals greatly increased support for the creation of an International Criminal Court.¹⁵

Influenced by these events, the ILC Draft Statute for an ICC envisaged jurisdiction over the crimes of genocide, aggression, serious violations of the laws and customs applicable in armed conflict and crimes against humanity, in addition to other exceptionally serious crimes of international concern contained in an Annex.¹⁶ The crimes themselves were not further defined, as the Draft Statute addressed issues of procedure rather than substantive law issues.¹⁷

Acting on the advice of the Sixth Committee, the General Assembly established an Ad Hoc Committee to review ‘the major substantive and administrative issues arising out of the draft statute’ and to consider arrangements for an international convention.¹⁸ However, the Ad Hoc Committee report in 1995 left many issues undecided, although it raised the issue of limiting the subject matter jurisdiction of the Court to crimes under general international law, as it was felt that limiting the Court to the most serious crimes would enhance its moral credibility and authority and promote a broader acceptance of the Statute.¹⁹ Nevertheless, whilst the Committee had expressed concern at the lack of definition of the crimes in the Draft Statute, it had not attempted to address this issue.²⁰

The difficult task of defining the subject matter jurisdiction and working towards an acceptable statute for the Court fell to the Preparatory Committee, a body created by the General Assembly to finalise issues and work towards a diplomatic conference.²¹ The task before the Preparatory Committee was described as ‘daunting’ by Kirsch, ‘[g]iven the widely divergent views as to the appropriate scope and powers for the ICC, and the need to reconcile aspects of the world’s legal systems’.²² Indeed, the committee spent over two years debating and refining proposals for a workable ICC and moving towards an acceptable statute.²³ The UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court finally took place at the headquarters of the Food and Agriculture Organisation in Rome, from 15 June to 17 July 1998.²⁴ Despite ‘deep divides, a substantial volume of work and limited time’,²⁵ the Rome Statute was eventually adopted on 17 July 1998.²⁶

Articles 7 and 8 of the Rome Statute set out the eleven crimes against humanity and fifty war crimes. The Elements of Crimes, developed by the Preparatory Commission established under the Final Act of the Conference,²⁷ set out the elements of war crimes and crimes against humanity in detail over thirty-nine pages.²⁸ Nevertheless, there still remains a need for further analysis of these offences. First, the Rome Statute draws strongly upon international humanitarian law, but the interpretation of provisions drawn from this source can prove problematic, as they were primarily enacted with thoughts of the prevention of war crimes and gross abuses of human rights, rather than as a basis for their prosecution.²⁹ Second, there is a vagueness inherent in customary international law, which is also often present in treaties, owing to compromises during negotiations. The Rome Statute, itself a product of political compromises, is not immune from this.³⁰

Therefore, an in-depth analysis of the crimes contained within Articles 7 and 8 is essential to understand how the ICC will interpret these offences as the trials commence. Such analysis is particularly crucial in light of the Rome Statute’s de facto codification of part of humanitarian law and the importance of effective national implementation of this law by States Parties to the ICC.³¹ The definitions of crimes in the Rome Statute and Elements of Crimes (EOC) will not only be pertinent to cases before the ICC but, owing to the principle of complementarity, are likely to influence national trials of those who commit war crimes and crimes against humanity across the globe.³²

Default mental element for offences in the Rome Statute

It is necessary at this point to explain that the delegates at Rome felt that whilst the definition of specific crimes set out the material elements or actus reus clearly, they did not always articulate the mental element or mens rea to be proved by the prosecutor. Whilst those offences which include a mental element usually adopt the language used in the treaty from which the offence has been drawn, other offences have not previously been set out in treaty form or do not include an express mental element.³³ Therefore, Article 30 was included in Part 3 of the Rome Statute on ‘General Principles of Criminal Law’.

Article 30 of the Rome Statute

Article 30 essentially acts as a default mental element setting out that ‘unless otherwise provided’ the accused will not be found criminally responsible unless he or she has committed the ‘material elements’, or actus reus of the crime, with both ‘intent and knowledge’. Article 30 does not explain where else the mens rea may be ‘provided’, it is submitted that that an alternative mental element could be found in the language of the Statute, the EOC, applicable treaties or customary international law.³⁴

‘Intent’ in relation to conduct

Intent is defined in relation to conduct, where the actus reus of the offence forbids a certain behaviour,³⁵ when a person ‘means to engage in the conduct’. This suggests, according to Piragoff, that the conduct ‘must be the result of a voluntary action on the part of an accused’ and also connotes some element ‘of desire or willingness to do the action’.³⁶ It is a basic principle of criminal law that the actus reus of an offence must be committed voluntarily,³⁷ and so this phrase must connote something more than mere voluntariness, such as deciding upon and initiating the conduct.³⁸

It is uncertain whether the expression ‘conduct’ in Article 30 includes omissions in addition to actions. This uncertainty results from the fact that the article on criminal liability for omissions, included in earlier drafts, was omitted from the final Statute.³⁹ Ambos suggests that its removal confirms that the offences in the Rome Statute may not be committed by omission, except in the case of command responsibility, which is expressly allowed for in Article 28.⁴⁰ Piragoff, however, considers that there is still scope for the Court to decide whether a particular offence may be committed by omission and under what circumstances.⁴¹ The latter opinion is persuasive, as the reasons for removal of the article in question are unclear.⁴² Therefore, in deciding whether a particular offence may be committed by omission, the Court should consider the history and jurisprudence of the particular offence in international law and principles drawn from national legal systems.⁴³

‘Intent’ in relation to a consequence

Intent is defined in relation to a consequence, where the actus reus of the offence forbids a particular result,⁴⁴ in two ways. First, when a person ‘means to cause that consequence’. This would describe the situation where it was the accused’s aim or objective to cause the result. Second, a person is taken to intend a consequence when he or s...