Part Four: Crimes Against Humanity
Gerhard Werle, Florian Jeßberger
- Crimes against humanity — Mens rea — Armed conflict, international — Murder — Extermination — Enslavement and forced labour — Imprisonment — Torture — Rape and sexual violence — Apartheid
866 Kai Ambos and Steffen Wirth, ‘The Current Law of Crimes Against Humanity’, 13 Criminal Law Forum (2002), 1; M. Cherif Bassiouni, Crimes Against Humanity, Historical Evolution and Contemporary Application (2011); Machtheld Boot, Rodney Dixon, and Christopher K. Hall, ‘Article 7’, in Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court, Observers’ Notes, Article by Article, 2nd edn (2008), 159; Antonio Cassese, ‘Crimes Against Humanity’, in Antonio Cassese, Paola Gaeta, and John R.W.D. Jones (eds), The Rome Statute of the International Criminal Court, A Commentary, Vol. I (2002), 353; Roger S. Clark, ‘History of Efforts to Codify Crimes Against Humanity, From the Charter of Nuremberg to the Statute of Rome’, in Leila Nadya Sadat (ed.), Forging a Convention for Crimes Against Humanity (2011), 8; Marjolein Cupido, ‘The Policy Underlying Crimes against Humanity, Practical Reflections on a Theoretical Debate’, 22 Criminal Law Forum (2011), 275; Iris Haenen, ‘Classifying Acts as Crimes Against Humanity in the Rome Statute of the International Criminal Court’, 14 German Law Journal (2013), 796; Thomas Obel Hansen, ‘The Policy Requirement in Crimes Against Humanity, Lessons from and for the Case of Kenya’, 43 George Washington International Law Review (2011), 1; Herman von Hebel and Darryl Robinson, ‘Crimes Within the Jurisdiction of the Court’, in Roy S. Lee (ed.), The International Criminal Court, The Making of the Rome Statute (1999), 79; Jérôme De Hemptinne, ‘La définition de la notion de “population civile” dans le cadre du crime contre l’humanité. Commentaire critique de l’arrêt Martić’, 114 Revue Général de Droit International Public (2010), 93; Charles Chernor Jalloh, ‘Situation in the Republic of Kenya, International Criminal Court Pre-Trial Chamber Decision on the Standard for the Prosecutor to Initiate Investigations under the Rome Statute’, 105 AJIL (2011), 540; Stefan Kirsch, ‘Two Kinds of Wrong, On the Context Element of Crimes against Humanity’, 22 Leiden Journal of International Law (2009), 525; David Luban, ‘A Theory of Crimes Against Humanity’, 29 Yale Journal of International Law (2004), 85; Stephan Meseke, Der Tatbestand der Verbrechen gegen die Menschlichkeit nach dem Römischen Statut des Internationalen Strafgerichtshofs (2004); Guénaël Mettraux, ‘The Definition of Crimes Against Humanity and the Question of a “Policy” Element’, in Leila Nadya Sadat (ed.), Forging a Convention for Crimes Against Humanity (2011), 142; Gustav Radbruch, ‘Zur Diskussion über das Verbrechen gegen die Menschlichkeit’, Süddeutsche Juristenzeitung (1947), col. 131; Darryl Robinson, ‘Defining Crimes Against Humanity at the Rome Conference’, 93 AJIL (1999), 43; Leila Nadya Sadat (ed.), Forging a Convention for Crimes Against Humanity (2011); Leila Nadya Sadat, ‘Crimes Against Humanity in the Modern Age’, 107 AJIL (2013), 334; Gerhard Werle and Boris Burghardt, ‘Do Crimes Against Humanity Require the Participation of a State or a “State-Like” Organization?’, 10 JICJ (2012), 1151; Willem-Jan van der Wolf and Donja de Ruiter (eds), Crimes Against Humanity and International Criminal Law (2011).
Additional literature can be found for the crimes of enslavement (marginal no. 927), deportation or forcible transfer (marginal no. 940), torture (marginal no. 956), sexual violence (marginal no. 1172), persecution (marginal no. 985), enforced disappearance (marginal no. 1004), and the crime of apartheid (marginal no. 1012).
I. The Phenomenon of Crimes Against Humanity
867 Crimes against humanity are mass crimes committed against a civilian population. Most serious is the killing of entire groups of people, which is also characteristic of genocide.1 Thus, the genocide of the European Jews was seen and punished as a crime against humanity by the Nuremberg Tribunal. However, crimes against humanity are broader than genocide: they need not target a specific group, but a civilian population in general. Thus, they also include crimes against political or other groups. Also, unlike genocide, it is not necessary for the perpetrator to intend to destroy a group, as such, in whole or in part.
868 In addition to the most serious cases—killing and extermination—crimes against humanity include manifestations also deriving from tragic historical experience: enslavement through forced labour, expulsion of people from their native regions, arbitrary imprisonment or torture of political opponents, mass rape of defenceless women, forced disappearances,2 and persecution through discriminatory laws and measures. The crime of apartheid is addressed in the latter context as an institutionalized form of racial oppression.3
II. History of the Crime
murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, 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.4
This category of crimes, unlike war crimes, also included crimes against the perpetrator’s own citizens if they systematically targeted a specific civilian population.
(p. 329) 870 In describing the history of crimes against humanity, it is first necessary to mention the Preamble to the Hague Regulations of 1899 and 1907.5 A general provision in these Conventions obligated the belligerent parties to obey the ‘laws of humanity’. The idea of criminalizing violations of laws of humanity, however, was not yet hinted at in the Martens Clause,6 the application of which was limited to wartime. The term ‘crimes against humanity’ was coined in 1915: France, the United Kingdom, and Russia used it to refer to the massacres of the Armenian population in Turkey.7 After World War I, there was talk of prosecuting ‘offences against the laws of humanity’, but this was never accomplished.8
871 Crimes against humanity were also included in Article 5(c) of the Tokyo Charter.9 In contrast to the Nuremberg Trial, however, no one was convicted of crimes against humanity in Tokyo.10 Control Council Law No. 10 also included crimes against humanity, with some supplements and an essential change: while the Nuremberg and Tokyo Charters required that crimes against humanity evidence a connection to aggressive war or war crimes, this supplementary requirement was left out of Control Council Law No. 10.11
872 In the majority of the Nuremberg successor trials, however, the courts followed the Nuremberg judgment, applying Control Council Law No. 10 only to crimes against humanity committed after the outbreak of World War II.12 The Supreme Court for the British Occupied Zone proceeded differently, consistently extending the definition of the crime, commensurate with its wording, to acts outside the context of war.13
(p. 330) 873 Abandoning the supplementary requirement was logical. The international criminal dimension of crimes against humanity does not depend on their commission in the context of an armed conflict, but on the intensity of the violation of individual human rights.14 Nevertheless, the abandonment of this requirement was long called into question.15
874 Like the Nuremberg Principles generally, criminal liability for crimes against humanity under customary international law has since been frequently affirmed and acknowledged.16 Thus, the crime was included in the 1954 Draft Code of Offences against the Peace and Security of Mankind and was also contained in all successive International Law Commission drafts.17 The criminal status of crimes against humanity was further assumed in conventions that nullified the statutes of limitations for these crimes or dealt with new ways in which they could be committed.18 None of these definitions and amendments of the crime requires commission in the context of an armed conflict.
875 Following the Nuremberg Trials, no trials were held before international criminal courts until the early 1990s. However, although the practice of prosecuting crimes against humanity was rare, it did not come to a complete standstill. The trial of Adolf Eichmann in Israel19 and the conviction of Klaus Barbie in France should be noted.20 Trials for crimes against humanity also took place in the Netherlands,21 East Germany,22 and (p. 331) Canada.23 However, the only defendants were Nazi criminals whose crimes had occurred years before, despite the existence of numerous other cases of serious crimes against humanity.24 This situation changed only upon creation of the Yugoslavia and Rwanda Tribunals.25
876 The Statutes of the Yugoslavia and Rwanda Tribunals reaffirmed the customary law character of crimes against humanity. However, there are considerable differences between the texts of the relevant provisions. These deviations are not expressions of uncertainty about the scope of the crime but can be explained by the situational nature of the Statutes. When the ICTY Statute states, in Article 5, that a crime must occur ‘in armed conflict, whether international or internal in character’,26 it is simply drawing a connection in place and time to the Yugoslavia conflict. This is by no means a reintroduction of the long-abandoned supplementary requirement of the Nuremberg Charter.27 Article 3 of the ICTR Statute includes crimes against humanity without requiring a link to armed conflict, and thus avoids any misunderstanding: crimes against humanity provisions apply regardless of (p. 332) the presence of armed conflict. But the ICTR Statute requires, not only for the crime of persecution but for all crimes against humanity, that they be committed ‘on national, political, ethnic, racial or religious grounds’.28 This should not be seen as a requirement that limits the definition of the crime, but as a means of restricting the Tribunal’s jurisdiction to those crimes against humanity typical of the Rwanda case.29
877 Two years after the adoption of the ICTR Statute by the Security Council, the International Law Commission issued a Draft Code of Crimes Against the Peace and Security of Mankind, which included a further definition of crimes against humanity that would play an important part in the negotiations on the ICC Statute.30
878 During the negotiations in Rome, there was agreement that crimes against humanity should be included in the list of core crimes. In spite of this broad consensus, formulating crimes against humanity proved to be a difficult undertaking. Ultimately, however, it was possible to work out a relatively precise definition in Article 7 of the ICC Statute, utilizing earlier definitions and especially the case law of the Yugoslavia Tribunal.31
879 The material elements of crimes against humanity require the commission of one of the individual acts described more precisely in Article 7(1). These individual acts become crimes against humanity when they are committed in the course of a widespread or systematic attack on a civilian population. The attack on a civilian population represents the contextual element of the crime.32 The mental element requires intent and knowledge (Article 30 of the ICC Statute) regarding the material elements of the crime, including the contextual element.
IV. Protected Interests
880 Crimes against humanity target fundamental, recognized human rights, in particular life, health, freedom, and dignity. These violations of individual rights become international crimes when they are committed as part of a widespread or systematic attack on a civilian population. The individual acts gain a new level of criminality by being embedded in the contextual element. They call into question humanity as such33—in the sense of a ‘minimum standard of the rules of human coexistence’.34 Therefore, a widespread or systematic attack against fundamental human rights also constitutes a threat to peace in a broader sense, encompassing the security and well-being of the world.35 The crime affects not only the individual victim, but also the international community as a whole.36
881 Crimes against humanity under Article 7(1) of the ICC Statute comprise only those crimes listed in the definition that are committed ‘as part of a widespread or systematic attack directed against any civilian population’. Only if these elements, which can be taken together as a contextual element of the crime, are present can one presume the existence of a crime against humanity.37 According to the definition in Article 7(2)(a), an ‘attack on a 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’. The following text first analyses the material elements of the contextual element—that is, the term ‘civilian population’, the requirement of ‘widespread or systematic attack’, and the meaning of the ‘policy element’ in Article 7(2)(a). It will then discuss the range of potential perpetrators and the question of whether and how the mental element refers to the attack on a civilian population.
I. A Civilian Population as the Object of the Crime
882 Crimes against humanity are directed against a civilian population as such, not merely at an individual. The term ‘civilian population’ encompasses any group of people linked by shared characteristics that in turn make it the target of an attack. The occupancy of a certain area, for example, may constitute such a feature.38 This does not mean, however, that the entire population of a state or territory must be affected by the attack. Rather, this criterion emphasizes the collective nature of the crime, thus ruling out attacks against individuals and isolated acts of violence.39
(p. 335) 883 The crime can occur both in war and in peacetime. In contrast to war crimes, the definition protects not only civilians from the opposing side, but also, and specifically, the civilian population of the perpetrator’s state.40 Neither the victim’s nor the perpetrator’s nationality plays any role. In addition, the presence of a number of combatants among an attacked civilian population does not negate its civilian character.41
884 The ‘attack’ must target a civilian population. The ‘civilian’ character of the attacked population and persons applies both in war and in peacetime. Therefore, the distinction cannot be made solely by applying the terms of international humanitarian law, which specifically protects all persons not (or no longer) taking part in hostilities.42 Thus, in construing the term ‘civilian population’ in regard to crimes against humanity, the purpose of protecting the fundamental rights of every human being against any form of systematic violation must be observed.43
885 In some of their earlier decisions concerning membership in a civilian population, the Tribunals have thus rightly concentrated on the victims’ need for protection, which resulted from their defencelessness against governmental, military, or any other form of organized violence.44 Therefore, anyone who is not part of the organized power using force should be considered a civilian. What is crucial is not formal status, such as membership in specific military forces or units, but the person’s actual role at the time of commission of the crime.45 This includes members of military forces or other armed groups who have laid down their arms or have otherwise been rendered hors de combat, commensurate with the idea behind Common Article 3 of the Geneva Conventions. The same is true in international armed conflict for soldiers no longer participating in hostilities or for prisoners of war, who are specifically protected by international humanitarian law.46
(p. 336) 886 In the Blaškić case, the Appeals Chamber departed from these principles to some extent. The Chamber argued that, as a result of both Article 4(A) of the Geneva Convention III and Article 50 of the Additional Protocol I, members of armed military forces and organized resistance groups could not claim civilian status. According to the Appeals Chamber, it is wrong to rely on the specific situation of the victim; the key question is whether the victim is a member of an armed organization.47
887 In the Martić case, the Appeals Chamber considered the matter once again and returned to an interpretation concentrating on the victims’ need for protection.48 The Appeals Chamber, without formally overruling its contrary reasoning in Blaškić, posited that neither the wording nor any previous authorities required individual victims of crimes against humanity to be civilians. Indeed, the Appeals Chamber held that the question of military or civilian status was relevant only regarding the chapeau element of ‘civilian population’.49 Accordingly, members of the armed forces placed hors de combat can be victims of a crime against humanity, provided that they are targeted in the context of a widespread or systematic attack against a civilian population.50
888 While the Appeals Chamber’s methodological approach raises questions,51 its reconsideration of the victim’s status is welcome. The mechanical transfer of interpretations used in international humanitarian law to the law of crimes against humanity, as proposed in Blaškić, fails to acknowledge the object and purpose of the latter, that is, the protection of individuals, and must therefore be rejected.52 In contrast to international humanitarian law, (p. 337) it is not important to the protected status of civilians whether they are under the control of their own side or the opposing side. Hence, present or former members of one’s own armed forces, in particular, who are not protected by international humanitarian law, can become direct objects of a crime against humanity.53 In this way, such people are given protection not offered by international humanitarian law.
889 Outside of armed conflicts, crimes against humanity are generally characterized by one-sided acts on the part of the state or other organized armed groups against a civilian population. Here, holders of state or other organized power are not included under the heading of civilian population if they wield this power against the civilian population. Examples are members of a state police apparatus or of non-governmental organizations endowed with comparable de facto authority.54
890 A further question is whether an act can be prosecuted as a crime against humanity if it is permissible under international humanitarian law. Since this would circumvent the judgments of international humanitarian law, the answer is no. International humanitarian law thus frees actors of criminal liability. Harm caused to enemy civilian persons or objects in the execution of a military operation that does not violate international humanitarian law is not punishable as a crime against humanity.55
II. Widespread or Systematic Attack
891 The ‘attack’ element describes a course of conduct involving the commission of acts of violence.56 An act becomes a criminally relevant course of conduct when it is intended to (p. 338) violate the protected human rights of a civilian population.57 According to Article 7(2)(a) of the ICC Statute, such a course of conduct must include the ‘multiple commission’ of acts listed in Article 7(1) of the Statute. Multiple commission is a lesser requirement than ‘widespread’ attack.58 It is present both if the same act is committed many times and if different acts are committed. The perpetrator does not need to act repeatedly him or herself. A single act of intentional killing can constitute a crime against humanity if the single act fits within the overall context.59 A vivid historical example is the denunciation of a single Jew to the Gestapo, which was part of the process of excluding German Jews from cultural and economic life in the Third Reich.60
892 A military attack is not necessary. The Elements of Crimes explicitly state that ‘the acts need not constitute a military attack’.61 The concept of ‘attack’ encompasses any mistreatment of the civilian population.62
893 It is unclear whether a single act may constitute an attack within the meaning of Article 7(1) of the ICC Statute if it leads to a large number of injuries. These include, for example, acts such as dropping an atom bomb or—borrowing from the events of 11 September 2001—flying an airplane into a nuclear power plant or a skyscraper. The answer is yes. The examples show that even a one-time act can harm individual rights on a scale that affects the international community. The object and purpose of the norm alone argue that such cases should be considered attacks within the meaning of the definition. The legal definition of (p. 339) the element in Article 7(2)(a) allows no other conclusion. The many violations of very personal rights permit this to be defined as ‘multiple commission’.63
2. Widespread or Systematic Character
894 At the negotiations on the ICC Statute, it was soon agreed that the criteria of ‘widespread’ and ‘systematic’ would be included in the definition of the crime. However, there was disagreement over whether these two criteria should be alternative or cumulative. The group of ‘like-minded states’ advocated an alternative relationship. But a large number of the remaining delegations believed that the criteria had to be cumulative. In the end, an alternative linkage was accepted, but with the proviso that the definition ‘attack on a civilian population’—including the policy element it contained—would be adopted into Article 7(2)(a).64
895 The criterion of ‘widespread’ describes a quantitative element, which also allows conclusions to be drawn about the quality of the attack.65 The widespread nature of the attack can be inferred from its extension over a broad geographic area, but this is not necessary to satisfy the requirement. The widespread character of an attack can also be derived from the number of victims, as clarified in the International Law Commission’s commentary on the corresponding article in the 1996 Draft Code.66 International case law has followed this view.67
(p. 340) 896 The criterion of a ‘systematic’ attack is qualitative in nature.68 It refers to the character of the acts of violence committed, requiring a certain degree of organization and planning. The violation of individual rights must follow a pattern. Thus, spontaneous and isolated acts are not punishable as crimes against humanity.69
897 Under Article 7(1) of the ICC Statute, the criteria ‘widespread’ and ‘systematic’ need only be present in the alternative, but in practice, both are generally satisfied.70 Both prerequisites refer only to the attack as a part of the contextual element. The criteria do not have to apply to each of the individual acts.71
III. The ‘Policy Element’
898 At the negotiations in Rome, the price of an alternative, rather than cumulative, relationship between the requirements ‘widespread’ and ‘systematic’ was the inclusion of a definition of ‘attack on a civilian population’ containing a ‘policy element’ that applies to both widespread and systematic attacks: Article 7(2)(a) of the ICC Statute requires that the attack on a civilian population be carried out ‘pursuant to or in furtherance of a State or organizational policy to commit such attack’.72
899 The formulation of this ‘policy element’ was inspired in particular by the 1996 Draft Code, in which incitement or support of the crime by a government, organization, or group was a requirement for criminality.73 Earlier definitions, such as Article 6(c) of the Nuremberg Charter, Article 5 of the ICTY Statute, and Article 3 of the ICTR Statute, were able to manage without this element.74 That said, all crimes against humanity tried in the past were (p. 341) the result of criminal state policies.75 It remained unclear whether the presence of a specific policy was only the typical manifestation of crimes against humanity or whether it was an actual requirement of criminality.
900 Relying on the International Law Commission’s commentary on the 1996 Draft Code,76 the ad hoc Tribunals initially held that the individual acts would have to follow a preconceived plan or policy.77 Since the Yugoslavia Tribunal’s Appeals Chamber’s judgment in Kunarac et al., both ad hoc Tribunals have departed from this jurisprudence and no longer require a plan or policy. There is no basis in customary international law, they argue, for such a limited interpretation. However, the existence of a plan or policy may be useful for proving that a systematic or widespread attack occurred.78
[S]uch a policy need not be formalized and can be deduced from the way in which the acts occur. Notably, if the acts occur on a widespread or systematic basis that demonstrates a policy to commit those acts, whether formalized or not.81
902 The policy need not be explicit or clearly and precisely stipulated. Nor is it necessary that it be decided upon at the highest levels.82 The crucial factor is that the actual aim of the policy is an attack on a civilian population; other aims, such as political ones, are not sufficient.83 The presence of the policy element can be gathered from the totality of the circumstances. Significant evidence includes actual events, political platforms or writings, public statements or propaganda programmes, and the creation of political or administrative structures.84
903 The body responsible for the policy must be a specific entity, namely a state or organization.85 The term ‘state’ is understood in the functional sense and, aside from the 194 states in the world, also includes stable entities that control areas de facto and exercise (p. 343) governmental functions there (Abkhazia, Nagorno-Karabakh, and Northern Cyprus, for instance).86
904 The exact meaning and scope of the term ‘organization’ remains unclear. It certainly includes groups of persons that govern a specific territory, or are able to do so.87 But this territorial element is not necessary. The term ‘organization’ merely presumes the existence of a group of persons over a certain period of time and possessing established structures. Ultimately, however, the crucial factor is not the internal structure of the group, but its potential, in terms of both personnel and physical capacity, to commit a widespread or systematic attack on a civilian population.88 In addition to paramilitary units, this particularly includes terrorist organizations.89 After Pre-Trial Chamber II of the International Criminal Court adopted this position in its decision to authorize an investigation into the Kenya situation, Trial Chamber II confirmed it in Katanga.90
(p. 344) 905 Thus, acting under a common group name, members’ shared political or ideological views, the existence of a hierarchical structure, infrastructure, and division of labour, and holding regular meetings or assemblies to build internal agreement on goals and actions amount merely to evidentiary significance.91
906 We reject the opposing view92 that a ‘state-like’ organization must always be involved. There is no support in the text for a limited interpretation of the concepts of ‘organization’ and ‘organizational policy’. The fact that the terms ‘state’ and ‘organization’ are connected with the word ‘or’ does not allow the conclusion that the latter requirement must be determined in light of the former. Systemic considerations support this view: requiring a ‘state-like’ organization for crimes against humanity would create inconsistencies when compared with the crime of genocide. There is no question that genocide as defined in Article 6 of the ICC Statute does not require that the intent to destroy a protected group must be held by a state or state-like organization.93
907 A state-centred interpretation of the term ‘organization’ is also called into question by considerations of the protected interest. Defining crimes against humanity as international crimes is based on the premise that massive violations of human rights represent a threat to peace, and therefore affect the international community as a whole (the so-called ‘expanded definition of peace’).94 The contextual element of crimes against humanity guarantees that violations will be included if they rise to the level of threats to world peace. The extent and intensity of the violation of rights, not the organizational form of the attacker, is decisive. If the violations cannot be ascribed to a state actor, no human rights violation may be present in the technical legal sense.95 But this is not a decisive objection to classifying such violations as international crimes. Massive violations of protected human rights may also be committed by non-state actors and thereby threaten world peace.96
(p. 345) 908 The state-centred interpretation of crimes against humanity is based on the idea that effective use of power, force, and authority requires established organizational structures with clear levels of hierarchy and chains of command. This may have been true of the crimes committed in Europe, but it cannot simply be transposed onto other political and cultural contexts.97 The mass violence that occurs repeatedly in some African countries in the aftermath of elections provides a vivid example. These are not spontaneous acts, but are conscious efforts to influence politics that reveal a recurring pattern not confined to one country. Such crimes affect the interests of the international community when, as in Kenya or, more recently, Ivory Coast and Nigeria, they lead to hundreds of deaths, force hundreds of thousands to flee, grip broad areas of the country, and often threaten the political stability of neighbouring countries.98 If the violence can be traced to political organizations, such as parties or their armed supporters, the definition of the contextual element of crimes against humanity has been met.
909 To sum up, in crimes against humanity the participation of states or state-like entities is the rule in practice, but not a legal requirement. This leads to the conclusion that, in order to classify the attacks on the New York World Trade Center and the Pentagon on 11 September 2001 as crimes against humanity, it does not matter whether the acts can be ascribed to a terrorist organization alone or also to a state or state-like entity. However, the ICC Statute does not include attacks on civilian populations by individual actors, even if these attacks, because of detailed planning or large numbers of victims, fulfil the ‘systematic or widespread’ requirement.99
910 The policy of a state or organization can consist of taking a leading role in commission of the crime, but also in actively promoting the crime or in merely tolerating it. If there is a duty to protect—as would normally be assumed on the part of a state—tolerance of an attack on a civilian population is sufficient. The Elements of Crimes are too narrow in requiring that the state or organization ‘actively’ promote or encourage the attack on the civilian population.100 The text of the ICC Statute gives no cause for such a limitation; in a number of decisions, international criminal courts have permitted ‘tolerating’ to be (p. 346) sufficient to satisfy the requirements of the crime.101 However, it is necessary that the failure to intervene be a purposeful ‘looking away’ and a refusal to take measures to protect the attacked population.
911 Taking the interpretation advocated here as a basis, the significance of the policy element essentially corresponds to the criterion of a ‘systematic attack’. The International Criminal Court agreed in its first relevant decision.102 As regards widespread attacks, the ICC Statute’s policy element adds a qualitative dimension. Thus, a ‘widespread’ attack on a civilian population does not qualify as a crime against humanity according to Article 7(2) of the ICC Statute unless it is committed pursuant to or in furtherance of a state or organizational policy as defined above.103 In addition, the policy element excludes crimes committed by single perpetrators from the definition of crimes against humanity.
912 Perpetrators need not be members of the state or organization involved in the crime, but can include all persons who act to implement or support the policy of the state or organization.104 Typical examples of commission of a crime by private persons are denunciations that lead to deprivation of liberty or to the death of the victim.105
V. Mental Element
913 The perpetrator’s mens rea must encompass the facts constituting the contextual element.106 In accordance with customary international law,107 Article 7(1) of the ICC Statute explicitly provides that the perpetrator must act ‘with knowledge’ of the attack on the civilian population. This is a merely declaratory reference to Article 30’s general requirement for the mental element.108 As a ‘circumstance’, the attack is in any case an aspect of the mental element under Article 30(3).109
(p. 347) 914 Thus, the perpetrator must be aware that a (widespread or systematic) attack on a civilian population is taking place and that his or her action is part of this attack.110 However, it is not necessary that the perpetrator be aware of the details of the state’s or organization’s plan or policy.111
915 Additional subjective criteria for crimes against humanity are found neither in customary international law nor in the ICC Statute’s definition of the crime. In particular, crimes against humanity do not require that the perpetrator act out of discriminatory motives, as required by Article 3 of the ICTR Statute112 and by early decisions on Article 5.113 Discriminatory intent is required only for the act of persecution, one of the possible individual acts in the definition.114
916 An individual act must be committed as part of a widespread or systematic attack on a civilian population. In determing this, the context in which it is committed, the method of commission, the consequences of the act, and, of course, the purposes and motive of the perpetrator must be taken into account.115 In order to constitute a crime against humanity, the underlying offences, with the exception of extermination, need not be carried out against a large number of victims. An act directed against a limited number of victims, or even against a single victim, can constitute a crime against humanity provided that it forms part of a widespread or systematic attack.116
917 The following text analyses the individual crimes against humanity in the order in which they are contained in the ICC Statute. No distinction is made between ‘inhuman acts’ (‘murder type’) and ‘acts of persecution’ (‘persecution type’). The distinction between crimes against humanity of the ‘murder type’ and of the ‘persecution type’ is common because it is the basis of Article 6(c) of the Nuremberg Charter.117 In contrast, the 1991 Draft Code and the 1996 Draft Code did not make this distinction, nor do the Statutes of the ICTY, ICTR, and ICC.118
918 Article 7(1)(a) of the ICC Statute encompasses the individual act of murder. The provision is based on Article 6(c) of the Nuremberg Charter, Article II(1)(c) of Control Council Law No. 10, Article 5(c) of the Tokyo Charter, Article 5(a) of the ICTY Statute, and Article 3(a) of the ICTR Statute. At the negotiations on the ICC Statute, murder was seen as a crime that is clearly defined in all national legal systems.119 The material element requires the (p. 349) perpetrator to have caused the death of another person through his or her conduct.120 This corresponds to the requirements for killing in the genocide definition,121 as well as in the definitions of war crimes in international armed conflict (wilful killing) and non-international armed conflict (murder).122 The crime can also be committed by omission.123
919 The requisite mental element is present if the perpetrator is aware of the substantial likelihood that his or her actions will result in the death of the victim. Under the established jurisprudence of the ad hoc tribunals, this does not require that the perpetrator recognize that death is the certain result of his or her actions. It is sufficient if the perpetator significantly violates the victim’s physical integrity and is aware that his or her actions could cause the victim’s death.124 This jurisprudence embodies customary international law.125 In the Bemba case, the Pre-Trial Chamber II of the International Criminal Court held that Article 30 applies, which would only include dolus directus in the first degree and dolus directus in the second degree. Therefore, it is necessary that the perpetrator either ‘meant to cause death or was aware that death “will occur in the ordinary course of events”’.126
(p. 350) 920 Because of the French version of the crime against humanity of killing (‘assassinat’) and Article 6(c) of the Nuremberg Charter, as well as Article 5(a) of the ICTY Statute and Article 3(a) of the ICTR Statute, it was long unclear whether the mental element of the crime required premeditation. Given this background, the ad hoc Tribunals at first had difficulty in clearly delineating the mental element of killing in accordance with customary international law.127 Well-established case law now presumes that, despite the French wording (‘assassinat’), only the French term ‘meurtre’ correctly characterizes customary international law.128 Thus, it is not necessary for the perpetrator to have acted with premeditation.129
921 Article 7(1)(b) of the ICC Statute governs the crime of extermination. The provision is based on Article 6(c) of the Nuremberg Charter, Article II(1)(c) of Control Council Law No. 10, Article 5(c) of the Tokyo Charter, Article 5(b) of the ICTY Statute, and Article 3(b) of the ICTR Statute. Extermination means killing on a large scale.130 It differs from the alternative crime of intentional killing in requiring the element of mass killing.
922 At the Nuremberg Trial, the genocide committed against the European Jews, in particular, was considered the crime against humanity of extermination. In contrast to the crime of genocide, however, no specific group must be attacked, but only a civilian population as such. Mass killing of political opponents or annihilating attacks on cultural, social, or (p. 351) economic groups cannot be considered genocide, but may be considered a crime against humanity: that of extermination.131
923 Under Article 7(2)(b) of the ICC Statute, which borrows from the crime of genocide,132 ‘“[e]xtermination” includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine,133 calculated to bring about the destruction of part of a population’. Contrasting with the wording of Article 7(2)(b), under the Elements of Crimes134 extermination requires, from an objective point of view, that the perpetrator cause the death of one or more persons, a view that was controversial at the beginning of the discussions on the Elements of Crimes.135 Further, according to the Elements of Crimes, these killings must be part of a mass killing. The Elements of Crimes are largely based on the case law of the Rwanda Tribunal.136
924 The crime of extermination includes direct and ‘indirect’ causing of death.137 The latter was described by the Rwanda Tribunal as the infliction of conditions of life calculated to bring about the destruction of a part of the population.138 As possible examples of indirect causing of death, the Tribunal mentioned imprisoning a large group of people while (p. 352) depriving them of necessities,139 or infecting such a group with a deadly virus while withholding medical care.140
925 Unlike the Elements of Crimes, the ad hoc Tribunals have advocated the view that the perpetrator him or herself must, directly or indirectly, be responsible for the death of a large number of people, in order for the requirements of the crime of extermination to be fulfilled.141 However, international jurisprudence has emphasized that no definite minimum number of killings must be exceeded in order to fulfil the definition of the crime. When a given number of killings suffices to constitute a mass killing must be established on a case-by-case basis.142 In Krajišnik case, the Yugoslavia Tribunal held that the material element was met by the killing of 17 Muslim and Croat detainees by Serb soldiers.143 In a more recent decision the Yugoslavia Tribunal found that eight victims do not suffice.144
926 Article 30 of the ICC Statute applies to the mental element of extermination.145 The provision in Article 7(2)(b) that inflicting destructive conditions of life must be ‘intentional’ is no different from the general requirement for the mental element. The perpetrator must be aware that his or her conduct is part of a mass killing.146 The act must, in addition, be (p. 353) ‘calculated’ to bring about the destruction of a part of the population. The term ‘calculated’ is sometimes147 interpreted subjectively as intent on the part of the perpetrator to destroy a population in whole or in part. Such a specific intent requirement, however, has been correctly rejected by the international criminal tribunals,148 and there is no basis for it in the text of the ICC Statute.
927 Jean Allain and Robin Hickey, ‘Property and the Definition of Slavery’, 61 International and Comparative Law Quarterly (2012), 915; M. Cherif Bassiouni, ‘Enslavement as an International Crime’, 23 New York University Journal of International Law and Politics (1991), 445; Janie Chuang, ‘Redirecting the Debate over Trafficking in Women, Definitions, Paradigms and Contexts’, 11 Harvard Human Rights Journal (1998), 65; Stephanie Farrior, ‘The International Law on Trafficking in Women and Children for Prostitution, Making it Live up to its Potential’, 10 Harvard Human Rights Journal (1997), 213; Anne Gallagher, ‘Human Rights and the New UN Protocols on Trafficking and Migrant Smuggling, A Preliminary Analysis’, 23 Human Rights Quarterly (2001), 975; Iris Haenen, ‘The Parameters of Enslavement and the Act of Forced Marriage’, 13 International Criminal Law Review (2013), 895; Jenny S. Martinez, ‘Antislavery Courts and the Dawn of International Human Rights Law’, 117 Yale Law Journal (2008), 550; Stephan Meseke, Der Tatbestand der Verbrechen gegen die Menschlichkeit nach dem Römischen Statut des Internationalen Strafgerichtshofs (2004), 190; A. Yasmine Rassam, ‘Contemporary Forms of Slavery and the Evolution of the Prohibition of Slavery and Slave Trade Under Customary International Law’, 39 Virginia Journal of International Law (1999), 303.
928 Article 7(1)(c) of the ICC Statute on enslavement comprises a classic crime against humanity. Such a stipulation is found in Article 6(c) of the Nuremberg Charter, Article II(1)(c) of Control Council Law No. 10, Article 5(c) of the Tokyo Charter, Article 5(c) of the ICTY Statute, and Article 3(c) of the ICTR Statute.
929 Interestingly, it was the transatlantic slave trade and international efforts to abolish it in the nineteenth century that led to the creation of the first international courts. These so-called ‘anti-slavery courts’ were formed in such places as Sierra Leone, Cuba, and Brazil on the basis of interstate treaties. The treaty parties, which included, for example, Great Britain, Spain, Portugal, the Netherlands, some South American states, and also the United States, authorized one another to search and, if necessary, seize suspicious ships. The anti-slavery (p. 354) courts determined whether to impound the ships and free the slaves. The judges hailed from various countries and applied international law.149
930 Under Article 7(2)(c) of the ICC Statute, enslavement is ‘the exercise of any or all of the powers attaching to the right of ownership over a person’.150 This wording was borrowed from the Slavery Convention of 25 September 1926151 and corresponds to the definition under customary international law.152 In addition, it is made clear that enslavement also includes ‘the exercise of such power in the course of trafficking in persons, in particular women and children’. The Elements of Crimes expand the definition with a list of examples of additional manifestations of enslavement, including purchasing, selling, lending, or bartering a person or persons, or ‘similar’ deprivation of liberty.153
931 By referring to ‘similar’ deprivation of liberty, the Elements of Crimes suggest that the crime should not be limited to traditional manifestations of enslavement such as ‘slavery’ and the ‘slave trade’, as defined in relevant treaties.154 Such traditional manifestations of slavery, in which perpetrators treat victims as ‘chattel’,155 rarely occur today.156 The term ‘enslavement’ used in the ICC Statute should thus not be limited to slavery in the traditional sense, but should be interpreted in a functional legal sense that includes institutions and practices that do not fall under the formal heading of slavery.157
[I]ndications of enslavement include elements of control and ownership; the restriction or control of an individual’s autonomy, freedom of choice or freedom of movement; and, often, the accruing of some gain to the perpetrator. The consent or free will of the victim is absent. It is often rendered impossible or irrelevant by, for example, the threat or use of force or other forms of coercion; the fear of violence, deception or false promises; the abuse of power; the victim’s position of vulnerability; detention or captivity, psychological oppression or socio-economic conditions.…The ‘acquisition’ or ‘disposal’ of someone for monetary or other compensation, is not a requirement for enslavement. Doing so, however, is a prime example of the exercise of the right of ownership over someone. The duration of the suspected exercise of powers attaching to the right of ownership is another factor that may be considered when determining whether someone was enslaved; however, its importance in any given case will depend on the exercise of other indications of enslavement.159
933 The Appeals Chamber subsequently made clear that neither a specific length of time nor the victim’s opposition is a necessary requirement for a presumption of slavery.160
934 For the mental element of enslavement, Article 30 of the ICC Statute applies.161
2. Forced Labour
935 ‘Forced labour’162 is not addressed by the ICC Statute and the Elements of Crimes as a separate form of enslavement. However, in accordance with customary international law, it is classified as enslavement if it is accompanied by the exercise of supposed property rights in the person affected.163 At the Nuremberg Trials, forced labour was the most important (p. 356) example of the crime of enslavement, which was included in the Nuremberg Charter as a crime against humanity.
936 During the Nazi period and World War II, some eight million forced labourers were employed in the German Reich and in the territories occupied by Germany. The Nuremberg Tribunal convicted the defendant, von Schirach, for the crime against humanity of enslavement alone; most of the major war criminals, in contrast, were convicted for both deportations to slave labour as a war crime and for enslavement as a crime against humanity.164 At the Nuremberg successor trials, US military courts also convicted various perpetrators for both crimes. Particularly noteworthy is the Court’s reasoning in the Milch Trial.165
937 The Yugoslavia Tribunal has also recognized forced labour as one possible crime against humanity and has clarified the requirements.166
3. Trafficking in Persons
938 Practices similar to enslavement include ‘trafficking in persons, in particular women and children’. Here, international treaty law until recently had included trafficking only for purposes of prostitution.167 An example is the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others of 21 March 1950.168 More recent international treaties, such as the Convention on the Elimination of all Forms of Discrimination Against Women of 18 December 1979169 and the Convention (p. 357) on the Rights of the Child of 20 November 1989,170 have abandoned the link between trafficking and prostitution. This is also the position of the ICC Statute.
939 The Convention Against Transnational Organized Crime of 15 November 2000 did not come into existence until after the adoption of the ICC Statute. An additional protocol explicitly regulates trafficking, especially in women and children, and for the first time in international treaty law contains a definition of trafficking in persons.171
940 Payam Akhavan, ‘Reconciling Crimes Against Humanity with the Laws of War—Human Rights, Armed Conflict, and the Limits of Progressive Jurisprudence’, 6 JICJ (2008), 21; Grant Dawson and Sonia Farber, Forcible Displacement Throughout the Ages, Towards an International Convention for the Prevention and Punishment of the Crime of Forcible Displacement (2012); Jean Marie Henckaerts, ‘Deportation and Transfer of Civilians in Time of War’, 26 Vanderbilt Journal of Transnational Law (1993), 469; Jean Marie Henckaerts, Mass Expulsion in Modern International Law and Practice (1995); Jennifer Leaning, ‘Enforced Displacement of Civilian Populations in War, A Potential New Element in Crimes against Humanity’, 11 International Criminal Law Review (2011), 445; Lutz Lehmler, Die Strafbarkeit von Vertreibungen aus ethnischen Gründen im bewaffneten nicht-internationalen Konflikt (1999); Theodor Meron, ‘Deportation of Civilians as a War Crime Under Customary International Law’, in Theodor Meron (ed.), War Crimes Law Comes of Age (1998), 142; Michael P. Roch, ‘Forced Displacement in the Former Yugoslavia, A Crime Under International Law?’, 14 Dickinson Journal of International Law (1995), 1; Otto Triffterer, ‘Die Bestrafung von Vertreibungsverbrechen’, in Dieter Blumenwitz (ed.), Flucht und Vertreibung (1987), 259; Alfred de Zayas, ‘International Law and Mass Population Transfers’, 16 Harvard International Law Journal (1975), 207.
941 Article 7(1)(d) of the ICC Statute deals with deportation or forcible transfer of population. The crime of deportation is based on Article 6(c) of the Nuremberg Charter, Article II(1)(c) of Control Council Law No. 10, Article 5(c) of the Tokyo Charter, Article 5(d) of the ICTY Statute, and Article 3(d) of the ICTR Statute. ‘Forcible transfer of population’ as a crime against humanity is not contained in these instruments172 and is based on Article 18(g) of the 1996 Draft Code.
(p. 358) 942 Article 7(2)(d) of the ICC Statute defines deportation and forcible transfer of population as the ‘forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law’. In both cases, the material element thus requires the transfer of persons from one territory to another (forced displacement). The Elements of Crimes establish that the transfer of even one person from a territory can be sufficient.173
943 The difference between deportation and forcible transfer of population lies only in whether a border is crossed. Deportation means the transfer of one or more persons from one state’s territory to another state’s territory; that is, a state border is crossed.174 In contrast, forcible transfer means the transfer of one or more persons within the same state’s territory.175
944 In the Stakić trial, however, the Yugoslavia Tribunal determined that the crime of deportation does not require transfer across state borders. Rather, the forcible transfer of persons across a de facto border could in some cases qualify as deportation.176 The Yugoslavia Tribunal did not discuss the specific conditions under which this approach could be used. However, the Appeals Chamber has made it clear that constantly changing frontlines (p. 359) cannot be considered de facto borders.177 The relevance of the question flows from the fact that, under Article 5(d) of the ICTY Statute, only ‘deportation’ is recognized as a separate crime against humanity, while ‘forcible transfer’ may only be prosecuted as an act of persecution or under the umbrella clause of ‘other inhumane acts’ (Article 5(i)). The broad interpretation of ‘deportation’ in the context of the ICTY Statute can only be understood against this background. The ICC Statute, however, includes both deportation and forcible transfer as distinct crimes. A broad interpretation of the term ‘deportation’, which would practically undo this distinction,178 would therefore be implausible. Thus, in Article 7(2)(d) of the ICC Statute, the conventional distinction between deportation and forcible transfer should be maintained.
945 The transfer of the persons involved must occur through expulsion or other coercive acts. The Elements of Crimes employ a broad interpretation of the term ‘coercion’.179 A characteristic element is the ‘involuntariness’ of the transfer.180
946 Coercive measures leading to the transfer of a civilian population need not always appear in the form of direct physical force. The crime can also arise if the civilian population flees in fear of death or of further discrimatory acts.181 However, members of armed forces who abandon previously conquered territories due to the enemy’s military superiority have not been expelled; they make the decision to flee rather than fight or to surrender themselves as prisoners of war.182
947 In every case, the transfer of the persons involved from a specific territory must be impermissible under international law.183 Thus, for example, deportation and other coercive measures necessary to protect national security, public order, or public health are not included in the definition of the crime.184 The total or partial evacuation of an area during armed conflict can also be called for to protect the civilians involved or for compelling (p. 360) military reasons.185 However, the civilian population must be returned to its home territory immediately upon cessation of hostilities.186 In such cases, it must be ensured, as far as possible, that the civilian population finds suitable conditions in the place of reception in regard to accommodation, cleanliness, hygiene, security, and food.187 Assistance by humanitarian agencies does not render a displacement lawful.188
948 The crime requires that the civilians involved be residing legally in the territory from which they are deported or forcibly transferred.189 The standard for the lawfulness of their residence is set by international law. A forcible measure on the basis of a national law contravening international law, such as the deportation of a citizen,190 is therefore impermissible.191 The same is true for the collective deportation of foreign nationals.192 However, individual foreign nationals may in certain cases be transferred out of a state’s territory.193
949 The ICC Statute’s criminalization of (intrastate) forcible transfer is not new in relation to customary international law,194 under which forcible transfer of persons within the same state’s territory is not yet classified as deportation, but is included as other inhumane conduct of a similar nature.195 The ICC Statute clarifies customary international law by (p. 361) classifying forced transfer of persons within a state as forcible transfer, and thus, correctly, placing it on an equal footing with the crime against humanity of deportation.
950 The mental element must encompass the fact that the victim will not return to the place of his or her origin (ICC Statute, Article 30).196 Following the jurisprudence of the Yugoslavia Tribunal so far, the mens rea must be directed especially at the permanent prevention of the victim’s return.197 In the Stakić case, however, on the basis of dubious arguments the Yugoslavia Tribunal’s Appeals Chamber recently decided that this is no longer required.198
951 Article 7(1)(e) of the ICC Statute encompasses ‘imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law’. This provision is based on Article II(1)(c) of Control Council Law No. 10, Article 5(e) of the ICTY Statute, and Article 3(e) of the ICTR Statute. The Elements of Crimes require that the perpetrator must have imprisoned one or more persons or deprived them of their liberty of movement.
952 The term ‘imprisonment’ includes cases in which a person is, literally, ‘imprisoned’ in an enclosed space and thus prevented from moving to another place.199 Cases classed as other severe deprivations of physical liberty include those in which a person can continue to move in a specific area, for example within a ghetto or concentration camp.200 House arrest may also fall under this definition.201 Deprivation of liberty for a short period of time should not be viewed as ‘severe’ in terms of Article 7(1)(e) of the ICC Statute.
The term imprisonment…should be understood as arbitrary imprisonment, that is to say, the deprivation of liberty of the individual without due process of law.…In that respect the Trial Chamber will have to determine the legality of imprisonment as well as the procedural (p. 362) safeguards pertaining to the subsequent imprisonment of the person or group of persons in question.202
954 The cases that come into play here are especially those involving deprivation of liberty without any legal basis or without regard for elementary rules of procedure.203
955 For the mental element, Article 30 of the ICC Statute applies.204
956 Christoph Burchard, ‘Torture in the Jurisprudence of the Ad Hoc Tribunals—A Critical Assessment’, 6 JICJ (2008), 159; Andrew Byrnes, ‘Torture and Other Offences Involving the Violation of the Physical or Mental Integrity of the Human Person’, in Gabrielle Kirk McDonald and Olivia Swaak-Goldman (eds), Substantive and Procedural Aspects of International Criminal Law, The Experience of International and National Courts, Vol. I (2000), 197; Paola Gaeta, ‘When is the Involvement of State Officials a Requirement for the Crime of Torture?’, 6 JICJ (2008), 183; Oona A. Hathaway, Aileen Nowlan, and Julia Spiegel, ‘Tortured Reasoning, The Intent to Torture Under International and Domestic Law’, 52 Virginia Journal of International Law (2012), 791; Jasper M. Wauters, ‘Torture and Related Crimes—A Discussion of the Crimes Before the International Criminal Tribunal for the Former Yugoslavia’, 11 Leiden Journal of International Law (1998), 155.
957 The crime against humanity of torture is covered by Article 7(1)(f) of the ICC Statute. The provision is based on Article II(1)(c) of Control Council Law No. 10, Article 5(f) of the ICTY Statute, and Article 3(f) of the ICTR Statute. The Elements of Crimes205 additionally state that torture of even a single person fits the definition of the crime.
‘[t]orture’ means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions.
(p. 363) This definition takes up the wording in the Convention on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984,206 but does not adopt the means-ends relationship it contains. Under the ICC Statute, torture therefore includes pain caused even without a particular purpose, for example for purely arbitrary reasons. In a further deviation from the Torture Convention, participation by someone acting in an official capacity is not necessary.207
959 The definitions of torture under international criminal law and in the Torture Convention thus differ significantly. In fashioning this definition, however, international human rights law must be considered the standard, to the extent that its guiding considerations can be transferred to international criminal law.208
960 The characteristic objective criterion for torture as a crime against humanity is the infliction of severe physical or mental pain or suffering. This criterion is also a core element of the human rights definition of torture. Therefore, in their interpretations, the international criminal tribunals consider, for example, reports by the UN Human Rights Committee or relevant case law from international courts on the prohibition of torture.209 These provide that all the circumstances of the individual case should be considered, especially the duration of the abuse and its physical and mental effects.210 While it is not possible to (p. 364) formulate a complete catalogue of torture practices,211 the following conduct is, as a rule, classified as torture per se:212
Pulling out teeth, fingernails, or toenails; electric shocks to sensitive parts of the body; blows to the ears that cause the eardrums to burst; breaking bones; burning parts of the body; spraying eyes or other sensitive parts of the body with acid; hanging from a pole; submersion in water until symptoms of drowning occur; plugging nose and mouth to cause asphyxiation; causing hypothermia with strong fans; administration of medication (psychotropic drugs); withholding food, water, or sleep; rape.213
962 Severe mental pain or suffering also fits the definition of the crime. Examples from international jurisprudence include forcing a person to be present during the torture or execution of a family member,214 simulating execution, or even forcing victims to bury the bodies of family members or friends.215 However, the methods of torture need not lead to permanent damage to health or extreme pain or suffering.216
963 The definition of torture in Article 7(2)(e) of the ICC Statute clearly goes further than the definition in the Torture Convention.217 The conduct need not be carried out by a public official or other person acting in an official capacity, nor at his or her instigation or with his or her express or implicit consent. Such a requirement would be contrary to both the ICC Statute and customary international law.218 Thus, torture by non-state organizations and even private individuals is included.219
(p. 365) 964 Article 7(2)(e) of the Statute requires that the victim be ‘in the custody or under the control of the accused’. It is not clear what this element means. Should the requirement develop an effect of differentiation, the perpetrator may be required to take control of the victim—that is, to create a situation in which the victim is helplessly in the perpetrator’s power, and in which others cannot easily intercede.220
965 Torture does not include pain or suffering arising only from, inherent in, or incidental to lawful sanctions. However, legalization by the state does not automatically make torture ‘lawful’; the decisive factor is the international law standard.221
966 For the mental element of torture, Article 30 of the ICC Statute applies.222 The provision in Article 7(2)(e) that infliction of pain be ‘intentional’ is not a deviation from the general requirements of the mental element.223 Pursuance of a goal beyond the infliction of severe physical or mental pain or suffering is not necessary.224 The Elements of Crimes make this explicit.225
967 The ad hoc Tribunals have created additional subjective requirements that borrow from the Torture Convention.226 According to judgments of the Rwanda and Yugoslavia Tribunals, the crime must be committed to obtain a statement or confession from a person or a third person, in order to punish a person, for an act actually or supposedly committed by that person, or a third person, or to intimidate or coerce that person or a third person, or on (p. 366) another ground based on any type of discrimination.227 These grounds have even attained the status of customary international law.228
968 Under these judgments, at least until the adoption of the ICC Statute, a purpose or motivation beyond the infliction of pain was required. This was in accordance with the Torture Convention. The new definition in the ICC Statute, however, points to a development that could lead to a retreat from such additional subjective elements even under customary international law. On the other hand, one should not overestimate the practical effects of these divergences. The purpose or motivation required by the judgments is already so broadly conceived that few cases can be imagined in which it is not present. Therefore, one would generally achieve the same outcome based on the case law of the Yugoslavia Tribunal as on the Statute.
969 Kelly Dawn Askin, ‘Sexual Violence in Decisions and Indictments of the Yugoslav and Rwandan Tribunals, Current Status’, 93 AJIL (1999), 97; Kelly Dawn Askin, ‘Gender Crimes Jurisprudence in the ICTR, 3 JICJ (2005), 1007; Fatou Bensouda, ‘Gender and Sexual Violence Under the Rome Statute’, in Emmanuel Decaux, Adama Dieng, and Malick Sow (eds), From Human Rights to International Criminal Law, Studies in Honour of an African Jurist, the Late Judge Laïty Kama (2007), 401; Anne-Marie de Brouwer, Supranational Criminal Prosecution of Sexual Violence, The ICC and the Practice of the ICTY and the ICTR (2005); Anne-Marie de Brouwer et al. (eds), Sexual Violence as an International Crime, Interdisciplinary Approaches (2013); Kiran Grewal, ‘The Protection of Sexual Autonomy Under International Criminal Law, The International Criminal Court and the Challenge of Defining Rape’, 10 JICJ (2012), 373; Eve La Haye, ‘The Elements of War Crimes—Rape, Sexual Slavery, Enforced Prostitution, Forced Pregnancy, Enforced Sterilisation, and Sexual Violence’, in Roy S. Lee (ed.), The International Criminal Court, Elements of Crimes and Rules of Procedure and Evidence (2001), 184; Solange Mouthaan, ‘The Prosecution of (p. 367) Gender-based Crimes at the ICC, Challenges and Opportunities’, 11 International Criminal Law Review (2011), 775; Katie O’Byrne, ‘Beyond Consent, Conceptualising Sexual Assault in International Criminal Law’, 11 International Criminal Law Review (2011), 495; Wolfgang Schomburg and Ines Peterson, ‘Genuine Consent to Sexual Violence Under International Criminal Law’, 101 AJIL (2007), 121.
970 Crimes against humanity through sexual violence were not contained as such in the Nuremberg Charter, but could be incorporated by way of the catch-all clause of ‘other inhuman acts’.229 Rape was soon after explicitly included in Control Council Law No. 10, and is also contained in the ICTY and ICTR Statutes as a separate crime. Other forms of sexual violence, however, are not mentioned in these instruments and can only be incorporated as other crimes against humanity or again through the catch-all clause of ‘other inhuman acts’. Article 7(1)(g) of the ICC Statute here effects a significant clarification by bundling together the crimes of sexual violence. The ICC Statute encompasses rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and any other form of sexual violence of comparable gravity.230
971 Article 7(1)(g), first alternative, of the ICC Statute deals with the crime against humanity of rape. The provision is based on Article II(1)(c) of Control Council Law No. 10, Article 5(g) of the ICTY Statute, and Article 3(g) of the ICTR Statute.
972 The Elements of Crimes231 provide a more specific definition of the criminal conduct. The material element requires a physical assault on the victim’s body by the perpetrator, which must result in penetration. This is understood to be gender-neutral, as both men and women can be victims of rape. Rape does not include only forced sex (penetration of the male penis into the vagina); the crime also includes sexual conduct connected with the insertion of the perpetrator’s sexual organ into other body cavities (oral and anal penetration). Finally, the insertion of other parts of the perpetrator’s body or of objects into the (p. 368) vagina or other parts of the body is included. The definition of the crime also requires the use of violence or the threat of violence or force.
973 The elements of the crime were formulated to reflect the case law of the international criminal Tribunals.232 In the Akayesu case, the Rwanda Tribunal defined rape as a physical invasion of a sexual nature that must be accompanied by coercion,233 while the Yugoslavia Tribunal, in the Furundžija case, first characterized rape as (i) sexual penetration of a bodily cavity of the victim (ii) using coercion or force or threat of force against the victim or a third person.234
974 However, the ad hoc Tribunals modified their approach after the Elements of Crimes were adopted. In the Kunarac et al. case, the Trial Chamber of the Yugoslavia Tribunal found this emphasis on the coercive element too restrictive. In the Court’s view, a comprehensive comparison of the world’s national criminal law systems shows that the accent has been less on the exercise of coercion or use of force than on whether it occurred against the victim’s will.235 Element (ii) was therefore reformulated.236 The Appeals Chamber affirmed the Kunarac definition.237 The result is that the focus of the definition of rape has shifted from the perpetrator’s objective behaviour to the victim’s opposing will.
975 The International Criminal Court has not thus far followed the Kunarac definition. Taking the Elements of Crimes as its basis, the Court has adopted the earlier jurisprudence of the (p. 369) ad hoc Tribunals. In this view, the use of force, coercion, or the threat of force is necessary, in addition to penetration of a bodily cavity.238
976 In practice, the two approaches will usually lead to the same results.239 In armed conflict in which armed forces are present, a nearly universal situation of coercion exists, such that, as a rule, no genuine consent on the part of the victim can be assumed.240 This is even more true if the victim is held captive.241 This interpretation also forms the basis of the ICC Rules of Procedure.242
977 For the mental element of rape, Article 30 of the ICC Statute applies.243
978 Sexual slavery is, in substance, a specific manifestation of enslavement.244 This is made clear in the Elements of Crimes, in that they take up the criteria of slavery. In addition, the perpetrator must cause the victim to engage in sexual acts.245 Examples of sexual slavery are the ‘comfort stations’ set up by the Japanese army during World War II,246 and the ‘rape camps’247 that existed during the Yugoslavia conflict.248 In the Taylor case, the Special Court for Sierra Leone found that ‘forced conjugal associations’/‘forced marriages’ inflicted on girls and women during the Sierra Leonean conflict also satisfied the elements of the crime of sexual slavery.249
3. Enforced Prostitution
979 ‘Enforced prostitution’ has long been explicitly forbidden by a number of instruments of international humanitarian law.250 The ICC Statute for the first time recognizes it as a separate crime against humanity.251 According to the Elements of Crimes, the material element requires that the perpetrator cause one or more persons to engage in sexual acts through the exercise of force or threat of force or coercion. The perpetrator or another person must receive or expect financial or other advantages in exchange for or in connection with the sexual act.252
(p. 371) 980 Enforced prostitution will typically fit the definition of enslavement during armed conflict.253 The creation of coerced brothels frequently serves not to make a profit, but to ‘strengthen the morale’ of the troops.
4. Forced Pregnancy
981 ‘Forced pregnancy’ as a crime against humanity is a unique feature of the ICC Statute.254 According to the definition in Article 7(2)(f), the material element requires the illegal imprisonment of a forcibly impregnated woman. To complete the crime, it is sufficient if the perpetrator holds prisoner a woman who has been impregnated by someone else. The definition makes clear that domestic laws that prohibit abortion are not included.255 This obviated concerns that would have made the negotiations on forced pregnancy more difficult.256
982 From a subjective point of view, forced pregnancy first requires that the material elements of the crime are committed with intent and knowledge (ICC Statute, Article 30).257 In addition, the perpetrator must act with the purpose of affecting the ethnic composition of any population or carrying out other grave violations of international law (Article 7(2)(f)).
5. Enforced Sterilization
983 Enforced sterilization is listed for the first time in the ICC Statute as a special manifestation of a crime against humanity. The ICC Statute contains no definition of enforced sterilization. According to the Elements of Crimes, the perpetrator must permanently deprive at least one person of his or her biological reproductive capacity.258 Exceptions are cases of medically necessary treatment. Classic examples of relevant criminal acts were the forced sterilizations in the Third Reich to ensure so-called ‘racial hygiene’, and the medical experiments on inmates in the Nazi concentration camps.259
984 The inclusion of other forms of sexual violence of comparable gravity has a catch-all character. According to the Elements of Crimes, the perpetrator must commit an act of a sexual nature against one or more persons or cause such person or persons to engage in an act of a sexual nature by force, threat of force, or coercion.260 The conduct must be comparable in gravity to the acts listed in Article 7(1)(g) of the ICC Statute. The Elements of Crimes are based on the judgment of the Rwanda Tribunal in the Akayesu case.261 The Tribunal applied this concept to the order to strip a female student and force her to perform gymnastics naked before a large crowd of people.262 Carrying out sexual acts on dead bodies was also classed by the Rwanda Tribunal as a form of sexual violence of comparable severity.263 This jurisprudence extends the crime too far. It is not clear whether desecration of dead bodies can even be classed as ‘violence’. In addition, comparable severity can only be justified if we presume the existence of sexual self-determination after death; otherwise it is not possible to find a qualitatively equivalent violation of dignity. The shocking effect of such acts on observers does not justify equivalency.