[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. (more…)