AJIL Symposium: Crimes Against Humanity in the Modern Age

[Leila Nadya Sadat is the Henry H. Oberschelp Professor of Law and Director, Whitney R. Harris World Law Institute, at Washington University School of Law]

I am honored to participate in this Opinio Juris/AJIL forum discussion, and wish to thank, in advance, the editors for agreeing to host it, and Elies van Sliedregt and Darryl Robinson for agreeing to comment.

Crimes Against Humanity in the Modern Age emerged out of my leadership of the Crimes Against Humanity Initiative, a multi-year project undertaken by the Whitney R. Harris World Law Institute at Washington University School of Law, and directed by a Steering Committee of distinguished jurists, that, over the course of three years, examined the need for and assessed the feasibility of drafting a new convention for the prevention and punishment of crimes against humanity.  During our discussions it became clear that participants believed crimes against humanity (CAH) charges to be critically important to both international and domestic prosecutions of atrocity crimes, but there was little empirical data to support these intuitions.  I set out to systematically examine every case brought to the ad hoc international criminal tribunals to determine which charges were brought and which were successful in order to get a sense whether or not these could properly be labeled “crimes against humanity courts,” as some scholars have observed. In a second step, it seemed important to see how this analysis would play out at the International Criminal Court (ICC).  Tables 1-6 in the article summarize this data.

Collecting and sorting the data was difficult as indictments at the ad hoc tribunals were often amended, and appeals regularly set aside or added additional counts.  I am indebted to the Harris Institute staff members who assisted me, as well as my research assistants Sam Chaffin and Shishir Jani who pored through the information and reworked it time and time again.  The ICC presented a particular challenge as there are no “indictments” but a “document containing the charges” followed by a confirmation decision, making it sometimes difficult to assess what the charges are in a particular case.  However, based upon the information available on the websites of three of the tribunals – the International Criminal Tribunals for the former Yugoslavia and Rwanda (the ICTY and ICTR) and the Special Court for Sierra Leone (SCSL) – and the ICC, it was possible to ascertain overall prosecution and conviction rates for each of the core crimes.

Interestingly, the data suggested that war crimes counts dominated at the ICTY and SCSL, but CAH (and genocide) counts dominated at the ICTR.  Both the ICTY and the ICTR had conviction rates on CAH that were higher than the war crimes conviction rates; this was not true for the SCSL.   The pattern for cases involving armed conflicts remained relatively stable across all courts and tribunals (and situations at the ICC), and suggest about a 55-45 ratio of war crimes counts to CAH counts, except at the ICTR and for situations at the ICC in which only CAH have been charged.

At the ICTY, only two out of 161 defendants were charged solely with crimes against humanity, representing 1.2 percent of all accused.  At the ICTR, only two out of 90 defendants were charged solely with crimes against humanity, representing 2.2 percent of all accused.  This is in sharp contrast with the pattern at the ICC before which, at the time the article was written, 11 out of 30 accused were charged only with crimes against humanity in the Kenya, Libya and Côte d’Ivoire cases, representing a stunning 36.7 percent of all accused.

Turning to a more normative and qualitative assessment of the data, the article postulates that the increase in “CAH only” cases at the ICC is to be expected because the ICC is a permanent court, created prior to the onset of atrocities in many cases, that can intervene in times of peace, not only once war has begun.  This, in turn, suggests that David Scheffer’s intuition about peacetime atrocity crimes being “pre-cursors of genocide” may also be correct, although more research is required to fully explore this hypothesis.

The article painstakingly analyzes the ICC’s early jurisprudence on crimes against humanity, and concludes that there is some cause for concern.  Interpretations of the chapeau elements of Article 7 that are found neither in the Statute nor customary international law seem to crop up in confirmation decisions, either as obiter or new elements of crimes, and early judgments have evidenced a tendency to read the Statute to restrict the ambit of Article 7 in ways neither required by the text itself or the legality principle.  Given the importance of crimes against humanity charges at the ICC, this is particularly problematic, and the article suggests that ICC judges should interpret Article 7 of the Rome Statute in accordance with the Vienna Convention on the Law of Treaties and the nullum crimen principle found in Article 22(2) of the Statute, keeping in mind the need to do so in line with the object and purpose of the treaty, as well as the context in which the provision to be interpreted is situated.  It argues that because Article 7 was drawn from and negotiated against the backdrop of customary international law, it and other similar provisions should be interpreted consistently with customary international law whenever possible, rather than viewed in isolation from the establishment and jurisprudence of the ad hoc tribunals (and other sources of customary international law).  Otherwise, the jurisprudence of the ICC may lead to the fragmentation rather than the consolidation of international criminal law.  Additionally, because the Rome Statute can be applied to all persons through the vehicle of a Security Council referral, whether or not their state of nationality has ratified the ICC Statute, it is important for the transparency and legitimacy of the ICC – and international criminal law more generally — for the Court to be very cautious in departing from common understandings of the law it is charged with applying.

The article conducts a particularly detailed examination of Judge Hans-Peter Kaul’s thoughtful and influential dissent in the Kenya article 15 decision discussing the “state or organizational policy” element of Article 7, concluding that it adopts the wrong paradigm (Nuremberg) to explain the modern day phenomenon of crimes against humanity. History, the article argues, may offer an understanding of the origins of crimes against humanity, but cannot properly serve as a comprehensive guide to is current application. The modern law of CAH is no longer limited to a prohibition on racial extermination, which has been codified in the genocide convention.  Rather, it is a residual category encompassing the commission of other widespread or systematic atrocities committed in times of peace or during war. CAH has emerged from the “shadow of Nuremberg” to take on new meaning in modern international criminal law.  Indeed, the situations before the ICC underscore that today’s crimes against humanity are typically not committed by totalitarian states planning hegemonic domination but by internecine struggles for political power in which political groups and their armed followers target civilians in their bid for domination.  As the majority has observed, these groups have the capacity to negatively affect the “human values” the Court was established to protect, and are therefore capable of formulating, within the meaning of Article 7, the kind of policy that can satisfy the prosecutor’s burden to establish all the elements of the crime in a particular case.

The article concludes that the Kenya majority has support in the statutory text, the negotiating history and customary international law.  The drafters of the Statute specifically included the words “state or organizational policy,” suggesting that an organization need not share the characteristics of state to formulate a policy to commit CAH.  This interpretation is supported by the travaux préparatoires of the Statute, which do not evince a desire to depart from customary international law by inserting the policy element (which was rejected by the Appeals Chamber of the ICTY and the ICTR) but simply to exclude random and isolated acts from the Statute’s purview.  While acknowledging the dissent’s legitimate concerns about potentially overextending the reach of the Court through prosecutorial overreaching, the article nonetheless suggests that artificially restricting the scope of Article 7 is the wrong solution.  The data demonstrates that the ICC, even more than the ad hoc tribunals, is going to be a “crimes against humanity court.”  This means that successful prosecutions for CAH will be critical if the Court is to fulfill its mandate to punish the perpetrators of atrocity crimes and the possibility of such convictions will be critical if it is to fulfill its mandate to prevent.