Guest Post: David J. R. Frakt on the Al-Bahlul Amicus Brief

AJIL Symposium: Sadat response to Robinson and van Sliedregt

[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 found the comments of my colleagues very thoughtful and helpful to my own continuing engagement with the law in this area.  As Elies points out, sovereignty concerns are indeed central to the original conceptualization of crimes against humanity at Nuremberg, and remain a preoccupation of the Rome Statute that the ICC’s judges are charged with interpretation.  As she notes, this thread of the Kaul dissent is unobjectionable.  She then turns to the question of “human-ness” – the focus of the Rome Statute and indeed, all of modern international criminal law, on the protection of “humanity” as a second value embedded in Article 7 of the Rome Statute.  I agree with this, and with Darryl’s understanding of much of the chapeau element’s purpose being essentially jurisdictional in nature – a way of sorting out permissible and impermissible exercises of international jurisdiction that will keep cases that belong in national courts in those courts and cases that need to be adjudicated internationally at the ICC (or elsewhere).  Indeed, one of the most interesting developments in international criminal law has been the elaboration of a fairly clear framework for the elaboration of a set of jurisdictional principles – complementarity, gravity, the widespread or systematic nature of the harm, the victim or the harm caused some specific damage to an international interest (i.e., attacks on UN peacekeepers), the shocking nature of the harm, etc. – to sift cases properly before international criminal courts from those properly tried elsewhere.  These jurisdictional bases overlap, but they are, by and large, alternative, not cumulative or, in the Rome Statute system, are directed to admissibility rather than “jurisdiction” strictly speaking.  Certainly, by electing the formulation “state or organizational policy,” it seems that the drafters of the Rome Statute were suggesting that non-state actors, if they committed attacks upon civilians that were sufficiently widespread and systematic, could perpetrate the kinds of atrocity crimes the Rome Statute was adopted to address; which is why I believe the majority in the Kenya case had the better view. Likewise, although I cannot comment on the Gbagbo decision as it is being appealed by the Prosecutor (assuming leave is given), I am grateful to Darryl for pointing out how the Majority exhibits the same trend I highlight in my article which is to disaggregate the statutory requirements and create new elements required to establish crimes against humanity not required by the Rome Statute.  As I note in Crimes Against Humanity in the Modern Age, one of the strangest of these is the requirement, first surfacing as a negative in obiter dictum, then apparently copied into other opinions as a new element, that the Prosecutor must identify what group – national, ethnic, religious, etc. -- the civilians belong to in order to demonstrate the existence of an attack.  The introduction of this language into the Court’s case law is unfortunate.  It may be useful to describe the group to demonstrate a policy to attack all those of a certain ethnicity, but unless persecution or genocide is charged, the appurtenance (or not) of victims to a particular group is simply irrelevant to finding that attack upon civilians has been carried out. Darryl’s comments made me wonder whether I completely support the reintroduction into the ICC Statute of the “state or organizational policy” requirement.

AJIL Symposium: The Humaneness-side of Humanity – CAH’s Modern Meaning

[Elies van Sliedregt is the Dean and Professor of Criminal Law at VU University Amsterdam] In this article Leila Sadat convincingly makes clear that CAH are central to international prosecutions. She points to the importance of CAH at the ICC with its potential to intervene in peace-time. Sadat underscores the importance of CAH as gap-filler; it provides for jurisdiction in the absence of an armed conflict and addresses discriminatory campaigns that do not qualify as genocide. The independent existence of CAH has become clearer over the years. CAH prosecutions capture key social harms and particular patterns of victimization, such as ethnic cleansing or sexual slavery. While CAH have gained importance as an independent category of crimes and according to Sadat “have emerged from the shadow of Nuremberg” (p. 336), we cannot ignore that CAH’s raison d’être is that of solving a jurisdictional problem. This goes back to the period before Nuremberg. For centuries international law has recognized the enemy of all mankind, the hostis humani generis. Pirates, who had no allegiance to a state and who committed crimes beyond the jurisdictional control of States, were regarded as the enemy of all mankind. With the interests of ‘mankind’ affected, all nations had a right to fill a jurisdictional void and exercise (universal) jurisdiction. Similarly, the notion of ‘humanity’ justifies intervention by way of criminal law enforcement. When States fail to protect, or are engaged themselves in harm to the security and subsistence of their subjects, they forfeit their privileges as a sovereign entity; other States or an international court may step in. While both ‘mankind’ (for piracy) and ‘humanity’ (for CAH) provide a justification for intervening in domestic affairs, the underlying reasoning and interests differ. Piracy more directly harms the interests of a multitude of States; self-interest prompts the exercise of jurisdiction. CAH, on the other hand, can be confined to one country.  They affect the interests of other States in that they shock “the conscious of mankind” (UK prosecutor Shawcross in his opening statement in Nuremberg). They are so egregious that it is in the international community’s interest that they are punished. This is what Arendt meant when she referred to the Holocaust as “crimes against mankind committed on the body of the Jewish people”. Viewing CAH through the prism of jurisdictional justification makes clear that sovereignty is a concern with CAH. For the international community to intervene, CAH must qualify as an international harm. They must shock the conscience of mankind. While this leaves pertinent questions unanswered, (is there a world community? with a common conscience?) it is clear that CAH must reach a level that distinguishes them from domestic crimes. The contextual elements of CAH, that crimes are committed as part of a widespread or systematic attack pursuant to a State or organizational policy, must ensure that this level is met. Judge Kaul is sensitive to sovereignty concerns. In his dissenting opinion to the Article 15 Kenya Decision he opines that the policy element is a decisive, characteristic and indispensable feature of crimes against humanity; it distinguishes ordinary crimes from international crimes and should therefore be interpreted narrowly. Sadat criticizes Judge Kaul’s view for denying CAH’s modern meaning, as a residual category of crimes that protect human values, values the ICC was established to protect. ‘Organizational’ in Article 7(2)(a) should include non-State(-like) organizations. What to think of this disagreement? 

AJIL Symposium: A Plea to Judges – Don’t Make the Policy Element Impossible

[Darryl Robinson is Associate Professor at Queen’s University Faculty of Law] I am delighted to offer this comment on Leila Sadat’s excellent article on crimes against humanity in the modern age.  Her article makes several important contributions. I agree with her central normative point, which is that ICC jurisprudence has often been too restrictive and too demanding in its interpretation of the policy element. If we trace the history of academic discourse around the policy element, we see that it has had gone through cycles of ascendance and decline.  For decades after Nuremberg, the policy element seemed fairly generally supported (see eg Keenan, Bassiouni).  In the nineties, following this tradition, it was recognized in the Tadic decision and the ICC Statute.  Around that time, however, the tide of academic opinion turned against it.  Most commentary grew quite skeptical. The nadir for the element was the ICTY’s about-face in Kunarac, which repudiated the element en passant in a highly controversial footnote. Recently, the element has enjoyed a scholarly resurgence, led by thoughtful pieces by Bill Schabas (here) and Claus Kress (here), advocating that a policy element is not only legally required but conceptually required, in order for the law of crimes against humanity to make sense.  I am in a very similar camp to these two scholars, in that I think that some form of policy element has doctrinal support and, more importantly, is conceptually essential. My only caveat was that the element was perhaps at times cast a bit too stringently. Leila’s article is a leading and welcome example of the latest movement, which is a mildly corrective counter-movement, arguing for a modest threshold. Leila gives arguments based in customary law precedents for an inclusive concept of the type of ‘organization’ that may be behind a crimes against humanity.  In a similar direction, Gerhard Werle and Boris Burghardt give arguments based in the ordinary meaning of the term ‘organization’ (here), and Charles Jalloh has noted the possible Euro-centricism of a rigid concept of organization that does not regard tribal groups as a sufficient form of organization (here). I have also given arguments based in the theory underlying the element (here).  While I acknowledge that the narrower view, requiring a state-like entity, can also be supported by a principled theory (‘betrayal of the responsibility to protect’), I suggested that the essence of crimes against humanity may be humans acting collectively to harm humans.  The purpose of the policy element is simply to exclude the ‘normal’ crime patterns of individuals acting on their own initiatives.  This purpose is satisfied by a modest threshold, encompassing coordination by many types of organization.  I think Leila’s contrast of a ‘traditional’ and a ‘modern’ view of the dangers posed by organizations is another helpful contribution. In this comment, I wish to expand upon Leila’s thesis, by highlighting the most recent confirmation decision in Gbagbo. 

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.