Emerging Voices: Peace-Time Crimes Against Humanity and the ICC

[Efrat Bouganim-Shaag, LL.B, The Hebrew University of Jerusalem (2012); Yael Naggan, LL.B and B.A. in International Relations graduate from The Hebrew University of Jerusalem (2013)]

Last February, a report by the Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea concluded that there are “nine patterns of violation” of rights, which “may amount to crimes against humanity, committed as part of systematic and/or widespread attacks against civilian population”. The violations mentioned were, inter alia, in respect of the right to food, torture, arbitrary detentions, discrimination, the right to life and enforced disappearances. Following this report, a UN special panel has recently begun to investigate human rights violations in the DPRK. Persecutions, arbitrary detentions and torture reportedly committed in Eritrea are another example of state-sponsored human rights violations, possibly amounting to crimes against humanity (see, e.g., here and here). These all-too-common situations, in which the civilian population in a given country is continuously subjected to human rights violations which could amount to crimes against humanity, presumably warrant the International Criminal Court’s attention.

Indeed, the framework of the Rome Statute allows for the investigation and prosecution of peace-time crimes against humanity; i.e. those taking place without any connection to an armed conflict.  Nonetheless, a review of the current situations handled by the ICC suggests that crimes of this nature have been somewhat outside of the Court’s focus. In this post we will highlight what we identify as a gap between the Court’s subject matter jurisdiction and its practice.

Under article 7 of the Rome Statute, the definition of crimes against humanity does not require that the acts in question occur in connection with an armed conflict. In all the “situations” presently before the Court the charges brought forward have included crimes against humanity (except for the situation in Mali, in which no charges have been brought as of yet) (see Prof. Sadat’s recent study). Nevertheless, seven out of the eight current situations have to do with armed conflicts; the post-election violence in Kenya being the exception. Furthermore, an overview of the current preliminary examinations being held by the Office of the Prosecutor (as of August 2013) may suggest a similar focus on situations in which armed conflicts have occurred. Even events presently being discussed by the international community as meriting the Court’s attention involve armed conflicts, namely Syria (see, e.g., here and here).

While this trend is not necessarily a negative one, it certainly calls for further consideration.

One should recall that the absence of the armed conflict requirement in the Rome Statute is rooted in the evolution of the definition of crimes against humanity in previous international criminal law instruments. In the Nuremberg era, the Charter of the International Military Tribunal included a requirement for a nexus between the crimes against humanity charged and the armed conflict. While Allied Control Council Law No. 10 (the legal basis for the Nuremberg Military Tribunals) did not include this requirement, the NMTs’ jurisprudence on this matter was not uniform (see Heller). The statutes of the ad hoc international criminal tribunals also varied in this respect. The requirement was included in the ICTY statute (1993), but was eliminated as early as the Tadić Appeals Chamber’s interlocutory decision on jurisdiction in 1995, which cited customary international law in its reasoning. The ICTR (1994) and the hybrid SCSL (2000) statutes did not include this requirement in their definitions of crimes against humanity.

Although the majority of delegations at the Rome Conference were of the view that customary international law did not require a nexus to an armed conflict, this issue was not beyond dispute amongst the various delegations, as well as in the work of the Preparatory Committee. Despite the conflicting views, the outcome was that the ICC has had, from its nascence, ratione materiae jurisdiction over crimes against humanity committed during times of peace. It is against this backdrop, that the gap between the legal framework which allows for this jurisdiction, and the nature of the cases currently being prosecuted or investigated, is apparent.

Of course, some reservations are in order. Firstly, the reality described above regarding the current docket of the Court can be explained by the fact that four of the situations currently before it are a result of self-referrals by states party to the Statute, and two situations are the result of a UN Security Council referral. Thus, this gap is not necessarily a reflection of any particular prosecutorial policy. Secondly, jurisdictional issues are obviously an essential component which we have disregarded for present purposes. Finally, in three situations, Libya, Côte d’Ivoire and Kenya, crimes against humanity are the only crimes that have been charged. Whereas with regards to Côte d’Ivoire, Pre-Trial Chamber III nonetheless acknowledged the circumstances of a non-international armed conflict, the Situation in Libya, as referred by the UNSC, is not considered to be in direct connection with the armed conflict which later evolved in the country (see, Sadat, above, and Shenkman). In respect of Libya, we would suggest that even if we disregard the armed conflict that eventually evolved, the Security Council’s referral in this case might very well be reflective of what Prof. Sonja Starr has termed international criminal law’s “crisis mentality” (“crisis” referring to both armed conflicts and extraordinary upheavals). To a certain degree, one might suggest that the Kenyan situation before the Court is reflective of a similar “mentality”.

In any event, the question remains whether there is more room for the international community to employ its criminal justice mechanisms with respect to peace-time crimes against humanity? The aim of this discussion was not to point to one situation, or a crime of a certain nature, as being preferable to another. Rather, its purpose was to outline the fact that under certain circumstances, the extent of peace-time crimes against humanity and their effects on daily lives of civilian populations may justify taking heed of these situations as well. The Rome Statute offers an array of tools, and whether or not stake-holders take advantage of this framework should be a result of a conscious deliberation and decision-making process.