OPBP: Legal Opinion on the Riots in Gujarat

LEGAL OPINION ON VARIOUS INTERNATIONAL HUMAN RIGHTS LAW ISSUES ARISING OUT OF THE RIOTS THAT TOOK PLACE IN GUJARAT, INDIA ON 28 FEBRUARY 2002

Legal Opinion produced for LC Associates Oxford Pro Bono Publico Group

University of Oxford, November 2005

TABLE OF CONTENTS EXECUTIVE SUMMARY ........................................................................................................ 2 PART I: QUESTIONS 1 -5 & 7– 9............................................................................................ 3

Question 1: To what extent are crimes against humanity, torture and genocide, part of customary international law? .................................................................................. 5 Questions 2 & 3: What is the precise content of “crimes against humanity”, torture and genocide under customary law and what is the difference between “crimes against humanity”, “torture” and “genocide”?.......................................................... 10 Question 4 a) Is customary international law binding on nations, even if they have not any treaty? ........................................................................................................... 26 Question 4 b) Can an action be brought in a domestic court against a head of state on the ground that the state organized, or abetted crimes against humanity, torture or genocide in international customary law?................................................................. 31 Question 5: How is intention to be proved for the purpose of genocide? Is it an inference to be drawn from the impact of the violence that has taken place? .......... 40 Question 7: Are heads of State immune from prosecution for crimes against humanity, torture and genocide on any ground? ....................................................... 45 Question 8: To what extent are heads of state responsible for crimes against humanity, torture or genocide, by private non-state actors? ..................................... 49 Question 9: What is the extent of liability for acts of omission, that is, failure to prevent crimes against humanity, torture or genocide of heads of state? ................. 58 PART II : QUESTIONS 6, 11 & 12 ........................................................................................ 70

Question 6: Would Narendra Modi qualify as a Head of State?............................... 71 Question 11: On the basis of the facts presented to you in the suits filed in Himmatnagar, can a case of crimes against humanity or genocide under international customary law resulting in wrongful death be made out?......................................... 75 Question 12: On the basis of the facts presented to you in the plaint, can an investigation be launched in any part of the world (in particular Spain), by the issuance of an international warrant of arrest?.......................................................... 93

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EXECUTIVE SUMMARY Oxford Pro Bono Publico (‘OPBP’) was approached by LC Associates to assist with research into various international human rights law issues that arise in relation to the suit that has been filed in the Himmatnagar District Court on behalf of Imran Mohammad Salim Dawood, a victim of the riots perpetrated in Gujarat, India on 28 February 2002 claiming general and punitive damages against various government officials.

OPBP was asked to provide answers to a series of questions which deal both with matters of general public international law and specific issues of application of the law to the facts of the suit. The organisation of the answers to the prescribed questions follows that distinction. Thus Questions 1 to 5, and 7 to 9, which deal with general issues of public international law, are dealt with in Part I of this opinion. Questions 6, 11, and 12, which deal with matters of application, are to be found in Part II of the opinion.

Part II of the opinion has been written on the basis of the facts as presented in the Plaint, as well as the accompanying set of documents received from LC Associates. It should be borne in mind, therefore, that the conclusions reached in relation to these questions are substantially constrained by the facts as they are presented there.

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PART I: QUESTIONS 1 -5 & 7– 9 For ease of reference, the Questions dealt with in this section of the opinion have been reproduced below:

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1) To what extent are crimes against humanity, torture and genocide, part of customary international law?

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2) What is the precise content of “crimes against humanity”, torture and genocide under customary law?

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3) What is the difference between “crimes against humanity”, “torture” and “genocide”?

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4 a) Is customary international law binding on nations, even if they have not any treaty?

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4 b) Can an action be brought in a domestic court against a head of state on the ground that the state organized, or abetted crimes against humanity, torture or genocide in international customary law?

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5) How is intention to be proved for the purpose of genocide? Is it an inference to be drawn from the impact of the violence that has taken place?

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7) Are heads of State immune from prosecution for crimes against humanity, torture and genocide on any ground?

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8) To what extent are heads of state responsible for crimes against humanity, torture or genocide, by private non state actors?

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9) What is the extent of liability for acts of omission, that is, failure to prevent crimes against humanity, torture or genocide of heads of state?

Given that there is some overlap between the answer to question 5 and the aspects of questions 2 and 3 which deal with genocide, it is recommended that the answers to these questions be read together. Similarly, there is considerable overlap between questions 8 and 9, and thus it is suggested that these should be read together.

In relation to question 4b), it important to note that we have approached the question generally, and not specifically in the Indian context and, furthermore, that the answer focuses on the different grounds of jurisdiction and does not deal specifically with 3

questions of actions against Heads of State for crimes against humanity, torture and genocide as these issues are dealt with in the answers to questions 2&3, 7, 8 and 9.

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Question 1: To what extent are crimes against humanity, torture and genocide, part of customary international law?

Certain human rights may now be regarded as having entered into the category of customary norms of international law in the light of state practice.1 These would certainly include the prohibition on torture and genocide.2 Torture The prohibition of torture is contained in a wide variety of human rights and humanitarian law treaties, and has become part of customary international law. It is now universally recognised as having attained the status of a jus cogens norm.3 In December 1975, the General Assembly adopted by consensus the Declaration on Protection from Torture requiring each state to ensure that all acts of torture ‘are offences under its criminal law’ and hence, set up criminal proceedings against alleged offenders.4 The status of torture as a jus cogen norm was emphasised by the House of Lords in Ex Parte Pinochet (No.3).5 The case was concerned with the issue of jurisdiction over the former Chilean head of state, Senator Pinochet. The court considered the issue of the prohibition on torture and Lord Browne-Wilkinson emphasised that the international law prohibiting torture has attained the character of a jus cogens or peremptory norm of international law.6 The House of Lords endorsed the view that the prohibition on torture has become one of the most fundamental standards of the international community.

The court in Ex Parte Pinochet (No.3) built on the jurisprudence that arose from the International Criminal Tribunal for the Former Yugoslavia (“ICTY”). The statute

1

M. Shaw International Law 5th ed. (2003), 257.

Filartiga v Pena-Irala 630 F.2d 876 and Kadic v Karadzic 70 F.2d 232.

3 Filartiga v Pena-Irala 630 F.2d 876.

4 E. Van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law, The Hague: TMC Asser Press, 2003, 35.

5 Ex parte Pinochet (No.3) [2000] 1 A.C. 147.

6 Ex parte Pinochet (No.3) [2000] 1 A.C. 147 at 198. See further Prosecutor v Furundzija (unreported) 10 December 1998, International Tribunal for the former Yugoslavia, Case No. IT-95-17/1-T10 (hereafter ‘Furundzija’).

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establishing the ICTY provided express jurisdiction for the tribunal to consider allegations of torture. However, in Prosecutor v Furundzija the tribunal noted that: “…the proposition is warranted that a general prohibition against torture has evolved in customary international law. This prohibition has gradually crystallised from the Lieber Code and The Hague Conventions, in particular articles 4 and 46 of the Regulations annexed to Convention IV of 1907, read in conjunction with the `Martens clause' laid down in the Preamble to the same Convention.”7

The tribunal went on to state: “…[that] these treaty provisions have ripened into customary rules is evinced by various factors.

First, these treaties and in particular the Geneva Conventions have been ratified by practically all States of the world. Admittedly those treaty provisions remain as such and any contracting party is formally entitled to relieve itself of its obligations by denouncing the treaty (an occurrence that seems extremely unlikely in reality); nevertheless the practically universal participation in these treaties shows that all States accept, among other things, the prohibition of torture. In other words, this participation is highly indicative of the attitude of States to the prohibition of torture. Secondly, no State has ever claimed that it was authorised to practice torture in time of armed conflict, nor has any State shown or manifested opposition to the implementation of treaty provisions against torture. When a State has been taken to task because its officials allegedly resorted to torture, it has normally responded that the allegation was unfounded, thus expressly or implicitly upholding the prohibition of this odious practice...”8

It is clear from the authorities cited above that the prohibition against torture is one of the most fundamental norms of customary international law from which no derogation is permitted. Indeed, the tribunal in Prosecutor v Furundzija concluded that it is “incontrovertible” that torture is prohibited by a general rule of customary international law.9 Genocide It is universally acknowledged that genocide is also part of customary international law.10 In its Advisory Opinion of 28 May 1951 on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (the "Genocide Convention"), the ICJ acknowledged the principles underlying the Convention as those recognized by civilized nations. Therefore, it held that even in the absence of conventional

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Furundzija, para. 137.

Ibid, para. 138.

9 Ibid, para. 139.

10 Kadić v Karadžić 70 F.2d 232.

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obligations, the prevention of genocide would, as a norm of customary international law, be binding on states.11 The Statutes of both the ICTY and the International Criminal Tribunal for Rwanda (‘ICTR’), established to deal with international crimes committed by individuals within defined geographical and chronological limits, have provided for the prosecution of individuals for the crime of genocide. The definition of genocide, as given in Article 2 of the ICTR’s Statute, is taken verbatim from Articles 2 and 3 of the Genocide Convention.12 One of the most significant cases in the jurisprudence of the ICTR is The Prosecutor v Jean-Paul Akayesu.13 The case related to the indictment and trial of Jean Paul Akayesu, a Rwandan citizen, who was subsequently found criminally responsible for acts of genocide and crimes against humanity. The tribunal was in no doubt that genocide was part of customary international law and stated: “The Genocide Convention is undeniably considered part of customary international law, as can be seen in the opinion of the International Court of Justice on the provisions of the Genocide Convention, and as was recalled by the United Nations' Secretary-General in his Report on the 14 establishment of the International Criminal Tribunal for the former Yugoslavia.”

Furthermore, in Prosecutor v Kayishema and Ruzindana, the tribunal noted that: “[T]he crime of genocide is considered part of international customary law and, moreover, a norm of jus cogens.”15

Similarly, in Prosecutor v Rutaganda the tribunal noted that: “The Genocide Convention is undeniably considered part of customary international law…”

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S. Ratner Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (2nd Edition), Oxford: Oxford University Press, 2001, 40.

12 The Convention on the Prevention and Punishment of the Crime of Genocide was adopted by the United Nations General Assembly, on 9 December 1948.

13 The Prosecutor v Jean-Paul Akayesu Case N. ICTR 96-4-T (hereafter ‘Akayesu’) 14 Ibid, paras 494-495. See further Secretary General's Report pursuant to paragraph 2 of resolution 808 (1993) of the Security Council, 3 May 1993, S/25704 15 Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T (Trial Chamber), May 21, 1999, para. 88.

16 Prosecutor v. Rutaganda, Case No. ICTR-96-3 (Trial Chamber), December 6, 1999, para. 46; See also Prosecutor v. Musema, Case No. ICTR-96-13-A (Trial Chamber), January 27, 2000, para. 15.

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The jurisprudence of the ICTR points to the clear conclusion that the crime of genocide is part of customary international law and has attained the status of being a jus cogens norm.

Crimes against Humanity The issue of whether crimes against humanity are part of customary international law is not as straightforward as in relation to the classification of genocide and torture. A crime against humanity is a term in international law that has been used loosely and has traditionally had a vague meaning. The concept has developed over time and the exact definition accorded to the term “crime against humanity” will ultimately determine its status within international law. To some extent, crimes against humanity overlap with genocide and war crimes and, to this extent, will automatically have attained the status of customary international law. However, there is a strong case for asserting that crimes against humanity are part of customary international law in their own right.

The statute establishing the ICTR included, by virtue of Article 3, a provision for considering allegations of the commission of crimes against humanity. In the case of The Prosecutor v Jean-Paul Akayesu the tribunal traced the historical development of the term “crime against humanity” and noted the gradual development of the concept.17 The tribunal appeared to focus on the definition of crimes against humanity and seems to have assumed that once the correct definition is achieved the status in international law is uncontroversial. Moreover, the tribunal noted that the statute: “…confers on the Chamber the jurisdiction to prosecute persons for various inhumane acts which constitute crimes against humanity.”18

The tribunal went on to note that: “Crimes against humanity are…prohibited regardless of whether they are committed in an armed conflict, international or internal in character.”19

This suggests a recognition that the commission of crimes against humanity is never acceptable to the international community. The ICTR was established to hear cases of inhumane acts which are universally prohibited and the inclusion of crimes against 17

Ibid, para 568 Akayesu, para. 578.

19 Ibid, para565; See further Secretary General's Report on the ICTY Statute, (S/25704), para 47.

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humanity adds weight to the suggestion that the international community regards the prohibition on the commission of crimes against humanity as being a fundamental aspect of international law. Furthermore, crimes against humanity have been included in the statutes of the ICTY, as well as the International Criminal Court (‘ICC’). These courts and tribunals have jurisdiction over the most serious crimes of concern to the international community and this adds weight to the claim that crimes against humanity are part of customary international law.

Conclusion It appears beyond question that torture and genocide have entered into the category of customary international law. In relation to crimes against humanity, the definition of the term has been evolving over time. The fact that the term has been included in the Statutes establishing the ICTY, ICTR and ICC lends weight to the argument that crimes against humanity, correctly defined, have also achieved the status of customary international law.

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Questions 2 & 3: What is the precise content of “crimes against humanity”, torture and genocide under customary law and what is the difference between “crimes against humanity”, “torture” and “genocide”?

The precise content of ‘crimes against humanity’ under customary law According to Cassese20, under general international law the category of crimes against humanity covers actions that share a set of common features: 1. They are particularly odious offences in that they constitute a serious attack on humanity dignity or a grave humiliation or degradation of one or more human beings.21 2. They are not isolated or sporadic events, but are either of a governmental policy, or of a widespread or systematic practice of atrocities tolerated, condoned, or acquiesced in by a government or a de facto authority.22 3. They are prohibited and may consequently be punished regardless of whether they are perpetrated in time of war or peace.23 4. The victims of the crime may be civilians or, in the case of crimes committed during armed conflict, persons who do not take part (or no longer take part) in armed hostilities, as well as, under customary international law (but not under the Statute of the ICTY, ICTR, and the ICC) enemy combatants.24 The criteria for ‘crimes against humanity’ Actus reus

20

Antonio Cassese, International Criminal Law, Oxford University Press, 2003, 64 (hereafter ‘Cassese’) Prosecutor v George Rutaganda, Case No ICTR-96-3, ICTR T. Ch. I, 6 Dec. 1995, para, 65; Prosecutor v. Alfred Musema, Case No. ICTR – 96-13-T, ICTR T. Ch. I, 27 January 2000, para. 201 22 Albrecth, The Netherlands, Special Court of Cassation, judgment of 11 April 1949, NederJ., 1949, at 747-51, Menten, The Netherlands, Supreme Court (Hoge Raad), decision of 13 January 1981, in NederJ., 1981, no.79 at 362-3. regarding the link or connection with a systematic policy of a government or a de facto authority, see J. and R., Germany, Supreme Court in the British Occupied Zone, judgment of 16 November 1948, in Entscheidungen, at 167-71).

23 Prosector v Tadić, IT-94-1, Appeals Chamber, para.272 (hereafter ‘Tadić Appeals Judgment’) and Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-T, T.Ch. I of the ICTY, 3 March 2000, paras. 66-68 (hereafter ‘Blaskic’).

24 Kupreskic and Others, case no. IT-95-16, para. 568 (hereafter ‘Kupreskic and Others’).

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Commission of an attack that is inhumane in nature and character, causing great suffering, or serious injury to body or mental or physical health. The inhumane act must be committed as part of a widespread or systematic attack against members of a civilian population.25 Mens rea In addition to the specific elements contained in each individual crime, the perpetrator must knowingly commit the crime in the sense that he must understand the overall or broader context in which his act occurs. He must have actual or constructive knowledge that his act(s) is part of a widespread or systematic attack on a civilian population and pursuant to a policy plan.26 Without this knowledge, the perpetrator would have the mens rea for an ordinary crime, but not a crime against humanity.

Knowledge is examined on an objective level and factually can be implied from circumstances, and it is not necessary that the accused must know exactly what will happen to the victim. It is also not necessary to prove that the accused knows of the criminal policy or plan; it suffices that he deliberately takes a risk that the crime might be committed, even with the hope that the risk would not lead to any damage or harm.27 It is not necessary to prove the perpetrator’s motive.28 Nexus with an armed conflict

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Prosecutor v George Rutaganda, Case No ICTR-96-3, ICTR T. Ch. I, 6 Dec. 1995, para, 65; Prosecutor v. Alfred Musema, Case No. ICTR – 96-13-T, ICTR T. Ch. I, 27 January 2000, para. 201.

26 Kayishema and Ruzindana, case no. ICTR – 95- 1-7, decision of 21 May 1999, paras. 133-4 (hereafter ‘Kayishema and Ruzindana’); Prosecutor v Tadić, Trial Chamber, IT-94-1-T, paras. 626, 638, 656-7 (hereafter ‘Tadić Trial Judgment’); Prosecutor v DuskoTadic, Case No. IT-94-1-A, ICTY App. Ch., 15 July 1999 para.271 27 Tadić Trial Judgment, paras 657, 659; T and K, Germany Supreme Court for the British occupied Zone, decision of 21 December 1948 in Entscheidungen I, 53-6 28 Tadić Appeals Judgment, paras. 248, 250, 255, 269, 270 -2.

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There is no distinction between crimes against humanity which are committed in times of war or peace.29 The same holds true for the Rome Statute for an ICC, which confirms the rupture of the link between crimes against humanity and armed conflict.30 Attack

The attack involved is an unlawful act that may be violent or non-violent in nature, like apartheid or exerting pressure on the population to act in a particular manner. That attack may be an act or omission.31

Nexus between specific crimes and attack A crime against humanity must be committed as part of widespread or systematic attack against any civilian population. The agent must be cognisant of the link between his misconduct and a policy of systematic practice.32 Committed against any civilian population Under customary international law, the victims of crimes against humanity need not necessarily be civilians but may include military personnel.33 Where there is no armed conflict or where there is relative peace, the definition of civilian

29

Tadić Appeals Judgment, para.272 and Blaskic, paras. 66-68.

On the other hand, some treaties and other binding international instruments enshrining the Statutes of International courts and tribunals also restrict the scope of customary rules because strictly speaking those Statutes do not lay down substantive rules of criminal law but only provide for the definition of those crimes over which each relevant court or tribunal is endowed with jurisdiction. Thus, the statutes of the ICTY (1993), the ICTR (1994) and the ICC (1998) provide that the crimes at issue can only be committed against civilians, whereas in some respect customary law upholds a broader notion of victims of such crimes.

31 Prosecutor v. Jean Kambanda, Case No. ICTR 97-23-S, ICTY T. Ch., 4 Sept. 1998, para. 40 (5) (6).

32 As the ICTY Appeals Chamber held in the Tadić Appeals Judgment that the perpetrator needs to know that there is an attack on the civilian population and that his act comprise part of the attack, para. 248, or as held in Blaskic, he at least needs to be aware of the risk that his act is part of the attack and then takes that risk, 251.

33 Kupreskic and Others, para. 568. ‘Civilian’ must be given a broad definition to cover not only the general population, but also members of the armed forces and resistance forces who are hors de combat by sickness, wounds, detention, or any other cause, Tadić Trial Judgment, paras. 626, 641-3.

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includes all persons except those who have the duty to maintain public order and the legitimate means to exercise force.34 The ‘population’ element does not mean that the entire population of a given State or territory must be targeted; it is intended to indicate the collective nature of crimes against humanity that excludes single or isolated acts punishable as war crimes or crimes against municipal law not rising to the level of crimes against humanity.35

On a widespread or systematic basis The act can be part of either a widespread or systematic attack and need not be a part of both.36 Under established international jurisprudence, 37 a widespread attack is an attack directed against a multiplicity of victims, whereas a systematic attack is an attack carried out pursuant to a preconceived policy or plan.38 Article 7(2) (a) of the ICC Statute blurs the distinction between ‘a widespread attack’ and ‘a systematic attack’ which exists under established international jurisprudence. To reconcile the provision under article 7 of the ICC Statute with established international jurisprudence, it is hereby submitted that the difference between the two types of attack is one of degree of organization of the attack.

The systematic requirement involves a higher threshold test than the requirement that the attack be widespread because the latter involves the unorganized, uncoordinated and unorchestrated multiple commission of acts that somehow serve a policy to commit a crime against humanity.

34

Kayishema and Ruzindana, para. 127.

Tadić Trial Judgment, para. 644 36 Tadić Trial Judgment, paras. 646-7. In practice however it is difficult to separate the widespread and the systematic nature of the attack since the widespread attack aimed at a large number of victims is generally carried out with some kind of planning and organization.

37 Kayishema and Ruzindana, para.123 38 For the importance of this criterion see also Albrecht case, 1949, the Netherlands, Special Court of Cassation, judgment of 11 April 1949, Nederj.1949 at 747-51. English excerpts in Annual Digest 1949, at 396-98…65,155,267. J and R., Germany, Supreme Court in the British Occupied Zone, judgment of 16 November 1948, in Entscheidungen, I, 167-71… 66,170, Harlan Veit, Germany, Supreme Court, in the British Occupied Zone, judgment of 12 December 1949, in Entscheidungen, II, 291-312…66.

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The policy element Crimes against humanity may be committed in pursuance of a policy of either a State or non-State actor. They can also be committed on behalf of entities with de facto control over a particular territory although those entities have no international recognition or formal status of a de jure state; it can be also committed by a terrorist group or organization.39 Private individuals with the aforesaid de facto power, persons organized in criminal gangs, or groups may also be in the position to commit crimes against humanity.40 However, when the atrocities are part of a government policy the perpetrators need not identify themselves with this policy.41 In what do crimes against humanity consist?

The conduct prohibited was loosely described in the London Agreement of 1945, and similarly in Control Council Law no.10 and the Statutes of Tokyo International Tribunal, as well as the ICTY and the ICTR. Gradually case law has contributed to defining the legal contours of the actus reus, and in the event the various categories have been largely spelled out in the ICC Statute, Article 7 which may be held, according to Cassese,42 either to crystallize or codify the bulk of existing customary law.

The following classes of offences make up crimes against humanity: 1. Murder (article 6(c) of the Nuremberg Charter, Article II (1)(c) of Control Council Law No.10, article 5 (a) of the ICTY Statute, article 3(a) of the ICTR Statute and article 7 (1) (a) of the ICC Statute)

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Kupreskic and Others, paras. 654-5 Ibid, para, 655; Balskic, para 205. Indeed article 7(2) (a) of the ICC Statute states, inter alia, that the attack is a course of a conduct ‘pursuant to or in furtherance of a State or organizational policy’.

41 Enigster, a case concerned a Jew imprisoned in a Nazi concentration camp, who persecuted his fellow Jewish inmates - Enigster Yehezkel Ben Alish, Israel, District Court of Tel Aviv, judgment of 4 January 1951, in 5 Pesakim Mehoziim (1951-2), 152-80 (in Hebrew); summary in English in 18 ILR 1951, at 542.

42 See Cassese, 74.

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2. Extermination (article 6(c) of the Nuremberg Statute, article II (1)(c) of Control Council Law, No. 10, article 5(c) of the Tokyo Charter, Article 5 (b) of the ICTY Statute, article 3 (b) of the ICTR Statute and article 7 (1) (b) and (2) (b) of the ICC Statute).

3. Enslavement (article 6(c) of the Nuremberg Statute, article II (1)(c) of Control Council Law, No. 10, article 5(c) of the Tokyo Charter, Article 5(c) of the ICTY Statute, article 3(c) of the ICTR Statute and article 7 (1)(c) and (2)(c) of the ICC Statute).

4. Deportation or forcible transfer of population (article 6 Š of the Nuremberg Statute, article II (1)(c) of Control Council Law, No. 10, article 5(c) of the Tokyo Charter, Article 5(d) of the ICTY Statute, article 3(d) of the ICTR Statute and article 7(1) and (2)(d) of the ICC Statute).

5. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law (article II (1)(c) of Control Council Law, No. 10, article 5(e) of the ICTY Statute, article 3(e) of the ICTR Statute and article 7(1)(e) of the ICC Statute )43.

6. Torture (article II (1)(c) of Control Council Law, No. 10, Article 5(f) of the ICTY Statute, article 3(f) of the ICTR Statute article 7(1)(f) and 2(e) of the ICC Statute).

7. Sexual Violence: a. Rape (article II (1)(c) of Control Council Law, No. 10, Article 5(g) of the ICTY Statute, article 3(g) of the ICTR Statute article and article 7(1)(g) of the ICC Statute). b. Sexual Slavery (article 7(1)(g) of the ICC Statute. There is no similar provision in any other international criminal statute). c. Enforced prostitution (article 7(1)(g) of the ICC Statute). d. Forced Pregnancy (article 7(1)(g) and (2)(f) of the ICC Statute). e. Enforced sterilization (article 7(1)(g) of the ICC Statute) 8. Persecution (article 6(c) of the Nuremberg Statute, article II (1)(c) of Control Council Law, No. 10, article 5(c) of the Tokyo Charter, Article

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Kordic and Cerkez, ICTY Trial Chamber III, judgment of 26 February 2001 (case no. IT-95-14/2-T), 302-3.

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5(h) of the ICTY Statute, article 3(h) of the ICTR Statute article 7(1)(h) and (2)(g) of the ICC Statute).

9. Enforced Disappearance of persons (article 7(1)(i) of the ICC Statute). 44 10. Apartheid (article 7(1)(j) and (2)(h) of the ICC Statute) 11. Other inhumane acts of a similar character and gravity (article 6(c) of the Nuremberg Statute, article II (1) of Control Council Law, No. 10, article 5(c) of the Tokyo Charter, Article 5(i) of the ICTY Statute, article 3(i) of the ICTR Statute, and article 7(1)(k) of the ICC Statute).

From the above it is obvious that article 7 of the ICC Statute broadens the classes of conduct amounting to crimes against humanity, first, by incorporating more subcategories within the category of sexual violence, namely sexual slavery, enforced prostitution, forced pregnancy and enforced sterilization (article 7(1)(g) and (2)(f)); secondly, by including the categories of enforced disappearance of persons (article 7(1)(i) and the crime of apartheid (article 7(1)(j) and (2)(h)).

The precise content of torture under customary international law and the difference between torture as an international crime and torture as a crime against humanity Different categories of torture Torture is not only prohibited when it is part of a widespread or systematic practice thus amounting to a crime against humanity. Torture is also proscribed when it is done as a single act, outside any large-scale practice. If torture is perpetrated in a time of armed conflict, it is a war crime. It may also be a discrete crime under customary international law, whether committed in a time of peace or during an armed conflict.

As a war crime

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Although neither the ICTY Statute or the ICTR Statute explicitly proscribes enforced disappearance of persons as a crime against humanity, it might be prosecuted under the offence ‘other inhumane acts’ pursuant to article 5 (i) of the ICTY Statute and 3(i) of the ICTR Stature, see also Kittichaisaree, International Criminal Law, Oxford University Press (2001), 122.

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A serviceman or a private individual not acting in an official capacity may perpetrate torture in a time of war, if the torture is committed against: i) a member of the enemy belligerent army (or other lawful combatants), or ii) a prosecuted person who either has the nationality of the enemy or (particularly in the case of internal armed conflict) is under the control of the adversary. In these two classes of criminal conduct, to qualify as a war crime, the torture must be linked to the armed conflict.45 As a crime against humanity Torture during an internal or international armed conflict or in a time of peace needs, among other things, to be part of a widespread or systematic practice in order to qualify as a crime against humanity. Moreover, the accused must know that his acts of torture form part of this widespread or systematic practice. The requirement of official involvement is not included in the definition of torture under article 7(2)(e) of the ICC Statute.46 The ‘purpose’ element is not included either. However, according to Cassesse,47 it is implicit in the very definition of this class of crimes that, in addition to the specific case of torture being prosecuted, numerous acts of torture are being or have been perpetrated without being punished by the authorities, and therefore there must be at least some sort of ‘passive involvement’ of the authorities. It should be noted that article 7’s definition excludes torture arising from, inherent in or incidental to, lawful sanctions.

Under customary law

45

See Cassese, 117-8.

Article 7 (2) (e) of the ICC Statute: ‘ "Torture" 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’.

47 See Cassese,118.

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Torture as a discrete crime, i.e not a crime against humanity nor a war crime, may be perpetrated either in a time of peace or during an armed conflict,48 but the action must be committed by an official or someone acting at the instigation of, or with the consent or acquiescence of, an official or person acting in an official capacity49 for one of the following purposes – to obtain information or confession from the victim or a third person; to punish the victim or a third person; to intimidate or coerce the victim or the third person, or for any reason based on discrimination of any kind.50 Actus reus All the elements described in article 1(1) of the 1984 UN Convention constitute the actus reus of the discrete crime of torture, namely: a) ‘any act by which severe pain or suffering, whether physical or mental is ….inflicted on a person’, b) ‘such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity’; and c) such pain or suffering does not arise ‘only from’ nor is ‘inherent in or incidental to lawful sanctions’.51 Mens rea Criminal intent is always required for torture to be an international crime, which is not required in the torture as a crime against humanity.

The precise content of genocide under customary international law

48

Kunarac and others, case no. IT-96-23-T and IT-96-23/1-T, decision of 22 February 2001, paras. 48897.

49 Prosecutor v. Anto Furundzija, case No. IT-95-17/1-T, ICTY T.Ch.II, 10 December 1998, para.162 50 Prosecutor v. Jean Paul Akayesu, Case No. ICTR-96-4-T, ICTR T. Ch.I, 2 Sept.1998, paras. 593-4, Celebići, case no. IT-96-21-T, T.ch.II, 16 November 1998, para.494. The need for this sort of participation of a de jure or de facto State official, according to Cassese, stems from: i) the fact that in this case torture is punishable under international rules even when it constitutes a single or sporadic episode; and ii) the consequent necessity to distinguish between torture as a common or ‘ordinary’ crime (for example, torture of a woman by her husband, or of a young man by a sadist) and torture as an international crime covered by international rules on human rights. See Cassese, 118.

51 See Cassese, 119.

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The term ‘genocide’ has been coined from genos which is Greek for “race” or “tribe” and cide which is Latin for “killing”. Raphael Lemkin is believed to have been the first person to use of the term "genocide" in 1944 in his book Axis Rule in Occupied Europe.52 The Nazi Holocaust of Jews, Roma (Gypsies), Jehovah's Witnesses, homosexuals and other groups in the early 1940s prompted the United Nations' General Assembly to pass a resolution on 12th December 1946 to combat future act of genocide.

It defined the term "genocide" in its preamble as: "Genocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations."

Genocide became a crime under international law when the United Nations General Assembly voted, on 9 December 1948, to approve the Convention on the Prevention and Punishment of the Crime of Genocide (‘the Genocide Convention’).

The Genocide Convention defines genocide as any of a proscribed set of acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such.” The Convention which came into force on 12 January 1951, and the proscription of the crime of genocide, as defined by the Convention, has long since became a norm of jus cogens and an unequivocal part of customary international law53. Genocide is foremost an international crime for which individuals, no matter how high in authority, may be indicted, tried, and punished by the International Criminal Court (‘ICC’).

Article II of the Genocide Convention defines genocide as: “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; 52

R. Lemkin Axis Rule in Occupied Europe (1944), 79 Prosecutor v. Goran Jelisic, Case No. IT-95-10-T, ICTY T. Ch. I, 14 Dec. 1999, para. 60 (“[T]he Convention has become one of the most widely accepted international instruments relating to human rights. There can be absolutely no doubt that its provisions fall under customary international law as, moreover, noted by the International Court of Justice as early as 1951. The Court went even further and placed the crime on the level of jus cogens because of its extreme gravity.”) (hereafter ‘Jelisic’).

53

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(d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.”

This definition of genocide has been repeated without significant change in subsequent instruments, including Article 4(2) of the statute creating the International Criminal Tribunal for the Former Yugoslavia (ICTY), Article 2(2) of the statute creating the International Criminal Tribunal for Rwanda (ICTR), and Article 6 of the Rome Statute for the Creation of the International Criminal Court54. Article 30 of the Rome Statute codifies the mental element as a general requirement of individual criminal responsibility for the first time in international criminal law. Neither the Nuremberg Charter nor the Statutes of the ICTR or the ICTR include general provisions on the mental element. In the Charter and in both Statutes, the subjective requirements for criminal liability are fragmentary, if at all there, they are embedded in the definitions of the crimes themselves.

A common attribute of the four groups protected by the Genocide Convention is that “membership in such groups would seem to be normally not challengeable by its members, who belong to it automatically, by birth, in a continuous and often irremediable manner”.55 The definition of genocide does not apply to more mobile groups which one may join through individual voluntary commitment, such as political, social, or economic groups. It is not necessary to show that a group specifically meets one of the four criteria set forth in the Convention in order to make a claim of genocide, but only to demonstrate that it fits within the four corners defined by these criteria. In recent years, adjudicators have shown a willingness to use this approach to hold that a number of kinds of groups fall under the Convention’s protection, including, most prominently, tribal groups56

54

Statute of the International Criminal Tribunal for the Former Yugoslavia, U.N. Doc. S/RES/827 (1993), annex, art. 4(2); Statute of the International Criminal Tribunal for Rwanda, U.N. Doc. S/RES/955 (1994), annex, art. 2(2); Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, art. 7(1).

55 Jelisic, para. 511.

56 Report of the International Law Commission on the World of Its Forty-Eighth Session, 6 May-26 July 1996, U.N. Doc. A/51/10, at 89.

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The Trial Chamber in the Krstic judgment held that the definitional requirement, that a victim chosen on account of his membership of a particular group enumerated, would be met if the victim is identified as a member of a group which is different from the national, ethical, racial or religious group a perpetrator identifies himself with.57 The crime of genocide itself consists of two important elements: the prohibited act (the material element, or actus reus) and the requisite intent (the moral/mental element, or mens rea).58 The act element of genocide is explicitly set forth in the five subparagraphs of Article II of the Convention, where the drafters list the five types of “acts” that, if committed with the requisite intent and directed against a group protected by the Convention, constitute genocide. Of the five genocidal acts, three require proof of a result—killing members of the group, causing serious bodily or mental harm to members of the group, or forcibly transferring children of the group to another group.

The other two acts—deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part and imposing measures intended to prevent births within the group—do not require proof of the result, but instead require a further specific intent to destroy the group. For the three acts that require proof of a result, a finding of genocide does not require establishment of a cause and effect relationship between the acts and the destruction of the group, but may instead be based on a showing that one or more victims suffered physical or mental harm and that the act was committed with the requisite intent.59 Genocide can be committed by acts or by omissions. For example, military officers’ failure to intervene when their subordinates are violating the Convention has been held to constitute genocide60. The Genocide Convention deals with both prevention and punishment for genocide. Further, it does not restrict it to punishment for killing but includes other attempts as well.61

57

Prosecutor v Kristic, Case No IT-98-33, Trial Chamber, para 557 (hereafter ‘Kristic Trial Judgment’).

Mucic et al, Case No IT-96-21-T, Trial Chamber, 16 November 1998, para 424.

59 William A. Schabas, Genocide in International Law: The Crime of Crimes 111 (2000) at 164-165.

60 Prosecutor v. Kambanda, Case No. ICTR-97-23-S, ICTR T. ch. 4, Sept. 1998 (holding that failure by governmental leaders to take action to stop ongoing, known massacres, constituted genocide). The jurisdiction of the Convention also extends, in Article III, to include attempt to commit genocide, conspiracy to commit genocide, and complicity in genocide as crimes under international law.

61 Article 3 provides for punishment where it states that the following acts shall be punishable: (a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; (e) Complicity in genocide.

58

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The prohibition of genocide as a jus cogens obligation The prohibition of genocide is a jus cogens62 obligation. This is an important aspect of the crime of genocide because this means that irrespective of being signatories to the Genocide Convention, states have a duty in customary international law to prevent the crime of genocide. The ICJ Advisory Opinion Concerning Reservations to the Genocide Convention held: “the origins of the Convention show that it was the intention of the United Nations to condemn and punish genocide as “a crime under international law” involving a denial of the right of existence of mankind and resulting in great loss to humanity, and which is contrary to moral law and the spirit and aims of the United Nations.”

It further held that special characteristics of the Genocide Convention show that the principles underlying the Convention are recognised by civilized nations as binding on states without Conventional obligation.63 Genocide can be manifested in two forms. It is may consist of desiring the extermination of a very large number of the members of a group, in which case it would constitute an intent to destroy the group en masse. Second it may also consist of desired destruction of a more limited number of persons selected for the impact that their disappearance may have on the survival of the group as such. This kind of destruction would amount to substantial destruction.64 For a particular act to qualify as an act of genocide it is not necessary to eliminate the whole of the group, it would suffice even if a section of the targeted group is destroyed.

Because genocide is not committed against individuals per se, but rather against persons by virtue of their group membership, the issue of numbers becomes important.

In the Krstic judgment, it was held that the crime of genocide may be activated by the destruction of even a numerically small part of a group if, as a consequence, the entire group is eliminated. The ultimate question will be what impact the killing had on the

62

Jus cogens are customary international norms binding on all states and from which no derogation is permitted.

63 Reservations to the Genocide Convention,1951 ICJ 15 at 23-4.

64 Boot, Machteld Genocide, crimes against humanity, war crimes : nullum crimen sine lege and the subject matter jurisdiction of the International Criminal Court Antwerpen (2002).

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remainder of the same group.65 It further held that the destruction must target a qualitatively significant part of the group, for example, intent systematically to eliminate the elite of a group would be considered substantial.66 Religious groups In the Krstic judgement, the Trial Chamber highlighted that the Genocide Convention does not define the group against which genocide is perpetrated on the basis of geographical criteria and thus declined to define the group on that ground. Instead, the group is identified on the sole basis of its national, racial, ethnical or religious characteristics. Thus the Trial Chamber held that the Muslims living in Brcko, those living in Bosanski amac or Prijedor, belong to the same group, within the meaning of Article 4, that is, the group of Bosnian Muslims and “no national, ethnical, racial or religious characteristic makes it possible to differentiate the Bosnian Muslims residing in Srebrenica, at the time of the 1995 offensive, from the other Bosnian Muslims�. 67 The only basis for distinction would be their geographical location. However, as discussed above, this was not a criterion contemplated by the Genocide Convention.68 The Trial Chamber held that this characterisation corresponds to the perception of both the victims and the perpetrators of the crime, who targeted individuals by reasons of their belonging to the Bosnian Muslim group. The Trial Chamber thus chose to define the group by subjective criteria. However, those subjective criteria were not assessed at the level of one particular individual. The subjective criteria considered, rather referred to the social context and the common perceptions of a specific human group. The Trial Chamber concluded that a group's cultural, religious, ethnical or national characteristics must be identified within the socio-historic context which it inhabits.

The difference between genocide and crimes against humanity: The most distinguishing element of the crime of genocide is the requirement of the proof of genocidal intent, which differs from mere criminal intent as required to prove 65

Edwin Shorts Edwin & Than Claire De, International criminal law and Human rights (2003) Sweet & Maxwell.

66 Kristic Trial Judgment, para 585-7 67 Kristic Trial Judgment, para 559.

68 Ibid.

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murder. In the case of genocide there is an additional requirement of proving dolus specialis, the fact that the crime must be committed 'on grounds of national or racial origin'. Thus according to the general principles of criminal law, we have either an ideal concurrence of offences or an apparent concurrence of provisions. An ideal concurrence of offences occurs when a single criminal act is split into two or more separate offences. An apparent concurrence of provisions, conversely, occurs when the perpetrator performs an act that may appear simultaneously to breach several criminal provisions, whilst, in reality, it violates only one. Two principles, (1) unilateral speciality and (2) bilateral speciality can be used here to further explain the difference between genocide and crimes against humanity.

An apparent concurrence of provisions, in particular, occurs when the offences in question are in a relationship of unilateral speciality: “... if an act is legally regulated both by a general provision and by a specific one, the latter prevails as the more appropriate of the two, since it is more specifically directed toward that action (in toto jure genus per speciem derogatur).” On the other hand, an ideal concurrence of crimes occurs when the offences are in a relationship of bilateral speciality, i.e. where each offence requires proof of an additional element which the other does not or, put differently, both have a common element. For example persecution and extermination, as crimes against humanity, share the requirement that the underlying act forms part of a widespread or systematic attack against a civilian population.69 In the Krstic case, the Appeals Chamber had to resolve three issues related to the concurrence of offences, namely whether, in relation to the same conduct: (a) the conviction for extermination (as a crime against humanity) could be cumulated with that for genocide; (b) the conviction for persecution (as a crime against humanity) could be cumulated with that for genocide; and finally (c) the conviction for murder and inhumane acts (as crimes against humanity) could be cumulated with that for persecution (as a crime against humanity).

69

M. Palombino Fulvio, ‘Notes and Comments-Should Genocide Subsume Crimes Against Humanity?

Some Remarks in the Light of the Kristic Appeal Judgement’ Journal of International Criminal Justice 3.3 (778).

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In respect of point (c), the Appeals Chamber, held that “the offence of persecution is more specific than the offences of murder and inhumane acts as crimes against humanity because, in addition to the facts necessary to prove murder and inhuman acts, persecution requires the proof of a materially distinct element of a discriminatory intent in the commission of the act�.

With respect to points (a) and (b), on the other hand, the Appeals Chamber held that neither extermination nor persecution as crimes against humanity can be subsumed within the crime of genocide, since each of them is in a relationship of ideal concurrence: both persecution and extermination, as crimes against humanity under Article 5 ICTYSt., share the requirement that the underlying act forms part of a widespread or systematic attack against a civilian population. This contextual element is not required to prove the commission of an act of genocide, whose characteristic feature is the intent to destroy, in whole or in part, a national, ethnic, racial or religious group.70

70

Ibid.

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Question 4 a) Is customary international law binding on nations, even if they have not any treaty?

Customary international law is a source of international law Article 38 (1) of the Statute of the International Court of Justice provides a list of sources of international law. Paragraph (b) of this article refers to “international custom as evidence of a general practice accepted as law”. The ICJ has not established a specific theory or stated precise rules on what will constitute a rule of customary international law; it will rather most often assert that a particular rule is part of customary law without providing a detailed analysis of the criteria that brought the Court to that conclusion. It is, however, possible to state general principles that have to be proved in order to establish the existence of a customary international law rule, based on the ICJ’s jurisprudence.

Establishment of a rule of customary international law State Practice This element is also called the “material element”. The alleged rule of customary law refers to the behaviour of states which must represent a general and consistent practice adopted by them. The ICJ has held that there is no requirement that the practice should have been engaged for a long period of time, provided the generality and the consistency of the practice are proved. The length of time required to establish a rule of customary international law will vary according to the circumstances relating to each alleged rule.

The ICJ held that state practice could be acknowledged as law if this practice was “…in accordance with a constant and uniform usage practiced by the States in question…”.71 The proof of the generality of the practice does not require complete uniformity among states. Art. 38(1)(b) speaks of “general practice” 71

Asylum Case, I.C.J.Rep. 1950, 277 (hereafter ‘Asylum Case’).

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rather than universal practice. It is, however, indispensable that “…state practice, including that of states whose interests are specially affected, should have been both extensive and virtually uniform”.72 State practice may take different forms such as diplomatic correspondence, policy statements, press releases, the opinion of official legal advisers, official manuals on legal questions, comments by governments on drafts produced by the International Law Commission, state legislation, international and national judicial decisions, recitals in treaties and other international instruments, the practice of international organs, and resolutions relating to legal questions in the United Nations General Assembly73. The significance of these sources will vary depending on the circumstances of each particular case.

Opinio Juris Practice in itself is insufficient to establish a rule of customary international law.

The wording of article 38(1)(b) of the ICJ Statute indicates that the general practice must be “accepted as law”. This acceptance as law refers to the subjective element that needs to be proved for an alleged rule to become part of customary international law. In Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. The United States) Case (Merits) the ICJ held that: “…not only must the acts concerned ‘amount to a settled practice’ but they must also be accompanied by the opinion juris sive necessitates. Either the States taking such action or other States in a position to react to it must have behaved so that their conduct is evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e. the existence of a subjective element, is implicit in the very notion of the opinion juris sive necessitates.”74

The problem with this element resides in the difficulty of its proof. The party alleging the existence of a customary rule of international law must demonstrate states’ acceptance, recognition or conviction of the binding character of the rule.

A lack of evidence concerning the opinio juris of the states with regard to a

72

North Sea Continental Cases, I.C.J.Rep. 1969, 43 (hereafter ‘North Sea Continental Cases’).

Browlie, Principles of Public International Law, p. 6 (6th ed. 2003).

74 I.C.J.Rep. 1986 14 at 108-109.

73

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certain practice can be fatal to a case, as in North Sea Continental Shelf Cases75 and in the Lotus Case.76 It is important to note that once these two elements have been proved, the alleged practice becomes part of the customary international law and is binding upon all states, even for those who have not contributed to the practice. There is no need for treaties to be enacted in order for a rule to be binding upon states.

As long as state practice and opinion juris are proved, a presumption is created and states are all bound by the new customary rule. There is, however, one exception to this principle and it is the doctrine of the “persistent objector”.

The doctrine of “persistent objector” States are presumed to have agreed to rules of international customary law, even if they have not specifically expressed their agreement. This presumption can however be rebutted by proof of persistent objection. If a state succeeds in proving its persistent opposition to a particular rule, it will not be bound by the rule. Showing evidence of persistent objection is crucial since a state’s consent, rather difficult to prove, will notably be inferred from its silence. A state cannot therefore argue that it has never acquiesced to a specific practice; it must rather show that it has constantly objected to that practice for it not to be binding on it.

In practice, such a demonstration will be difficult. The opposition must be persistent and the state must have always objected to the practice. The opposition must be made prior to the crystallization of the rule into customary international law. Subsequent departure from such a rule will be considered as a breach of international law.

Cases which deal with the principle of persistent objection are rare. In fact, this concept can be found in only two cases, the Anglo-Norwegian Fisheries77 case and the Asylum case. Unfortunately, in none of these cases did the ICJ explain how the principle of persistent objector applies and what states need to do to be qualified as persistent objectors. It is therefore far from clear in what 75

North Sea Continental Cases.

P.C.I.J.Rep., ser.A, no.10 (1927).

77 I.C.J.Rep. 1951 at 116 76

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circumstances this doctrine will be applicable. In the Asylum case, after having rejected an alleged rule of customary international law regarding diplomatic asylum due to “…so much uncertainty and contradiction, so much fluctuation and discrepancy in the exercise of diplomatic asylum and in the official views expressed on various occasions…”78 the ICJ held that even if such a rule existed: “…it could not be invoked against Peru which, far from having by its attitude adhered to it, has, on the contrary, repudiated it by refraining from ratifying the Montevideo Convention of 1933 and 1939, which were the first to include a rule concerning the qualification of the offence in matters of diplomatic asylum.” 79

In the Anglo-Norwegian Fisheries case, the ICJ also held that even if an alleged rule which would have prohibited the drawing of straight baselines that would have exceeded ten miles in length was one of customary international law, it would not be binding upon Norway: “In any event the ten-mile rule would appear to be inapplicable as against Norway inasmuch as she has always opposed any attempt to apply it to the Norwegian coast.” 80

Finally, the US Restatement81 mentions, on the question of “persistent objector,” that: “…in principle a state that indicates its dissent from a practice while the law is still in the process of development is not bound by that rule even after it matures. Historically, such dissent and consequent exemption from a principle that became general customary law has been rare.”

It is regrettable that the doctrine of persistent objector is ill-defined, but the fact that it is not often found in judgments and that it is rarely invoked by the parties is a sign that the required conditions which would enable this doctrine to apply are rather difficult to meet.

The rule of “persistent objector” and jus cogens rules

78

Asylum Case, 277.

Ibid, 277-278.

80 Anglo-Norwegian Fisheries, I.C.J.Rep. 1951, 131.

81 Restatement of the Foreign Relations Law of the U.S., Third (1987), Vol. I, para. 102, comment, p. 26.

79

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The doctrine of persistent objector raises the question whether it should apply to jus cogens rules. Jus cogens rules represent fundamental principles of international law considered to have acceptance among the international community, as a whole. These norms cannot be violated by any state. Even though these rules have originated in the law of treaties - in that no treaty can violate a rule of jus cogens, writers have argued that the same concept has been transposed into the law on the formation of general custom. It seems unlikely that states could argue with success their persistent objection to such fundamental rules. Given the fact that these rules are deemed universal and the fact that extensive evidence seems to be required in order for the doctrine of persistent objector to apply, proving a state’s objection to a jus cogens norm would be an almost impossible task.

Conclusion The answer to the question “is customary international law binding on nations, even if they have not any treaty?” should be “yes”. Once state practice and its complementary opinio juris have been proved, a rule of customary international law will be binding on all states, even if the rule is not contained in any treaty, unless a state can demonstrate that it has persistently objected to the alleged rule of customary international law before it became crystallized, which appears to be rarely satisfied.

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Question 4 b) Can an action be brought in a domestic court against a head of state on the ground that the state organized, or abetted crimes against humanity, torture or genocide in international customary law?

Under what circumstances is customary international law applied by domestic courts?

In British and commonwealth law countries According to Brownlie,82 the dominant principle, normally characterised as the doctrine of incorporation, is that customary rules are to be considered part of the law of the land and enforced as such, with the qualification that they are incorporated only so far as is not inconsistent with Acts of Parliament or prior judicial decisions of final authority.83 This principle is supported by a long line of authority84 and represents a practical rather than theoretical policy in the courts. The courts must first make a choice of law depending on the nature of the subject-matter. Where it is appropriate to apply international law, rather than the law of the forum or a foreign law, then the courts will take judicial notice of the applicable rules, whereas formal evidence is required in the case of foreign (municipal) law. However, the courts still have to ascertain the existence of the rules of international law and their effect within the municipal sphere: the latter task is a matter of some difficulty on which the rules of international law may provide no real guidance. Lastly, the courts have to make sure that what they are doing is consonant with the conditions of (internal) competence under which they must work.

Thus the rule of international law will not be applied if it is contrary to a statute,85 and

82

I. Brownlie Principles of Public International Law 6th Edition (Oxford University Press; 2003), 41 (hereafter ‘Brownlie’).

83 Blackstone, Commentaries, iv. Ch,.5; 86-8. Cf. Lord Finlay in the SS. Lotus case (1927), PCIJ, Ser. A No.10, 54 (hereafter ‘SS. Lotus Case’; and the Eichmann case (1961), 56 AJ (1962), 805, 806-7 (Distinct Ct.) ILR 36, 18 at 24-5 (District Ct) (hereafter ‘Eichmann’).

84 Barbuit’s case (1737), Cas. temp. Talbot. 281; Triquet v Bath (1764), 3 Burr.1478; Heathfield v Chilton (1767), 4 Burr.2015; Dolder v Lord Huntingfield (1805), 11 Ves. 283; Viveash v. Becker (1814), 3 M. & S. 284, 292, 298; Wolff v Oxholm (1817), 6 M. & S. 92, 100-6; Novello v Toogood (1823), I B. & C. 554; De Wutz v Hendricks (1824), 2 Bings.314, 315; Emperor of Austria v. Day (1861), 30 LJ Ch. 690, 702 (reversed on appeal on another point); Trendtex Trading Corporation v. Central Bank of Nigeria [1977] 1QB 529, CA. Cf. R. v. Secretary of State, ex p. Thakrar [1974] 1 QB 694, CA; International Tin Council Appeals [1988] 3 WLR 1033; ILR 80, 49 CA; [1989] 3 WLR 969; ILR 81, 670, HL; Al-Adsani v. Government of Kuwait, ILR 103, 420 at 428; ILR 107, 536, 540-2.

85 See Mortensen v. Peters (1906) 8 F. (JC) 93 (Scotland: High Ct of Justiciary); Polites v The Commonwealth (1945), 70 CLR 60 (High Ct. of Australia), Ann. Digest, 12 (1943-5), no.61; Roussety v A.-G., ILR 44, 108.

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the courts will observe the principle of stare decisis.86 However, there is good reason to expect the English Courts to refuse to apply the rule of stare decisis if a previous decision rested upon an obsolete rule of international law.87 The cases decided since 1876 are interpreted by some authorities88 in such a way as to displace the doctrine of incorporation by that of transformation, viz.: customary law is a part of the law of England only in so far as the rules have been clearly adopted and made part of the law of England by legislation, judicial decision, or established usage and the principal source of authority for this view is assumed by most writers to be the decision of the Court for Crown Cases Reserved in Regina v. Keyn.89 However, the authorities, taken as a whole, support the doctrine of incorporation, and the less favourable dicta are equivocal to say at least.90 Commonwealth decisions reflect the English emphasis on incorporation.91 In other States Brownlie92 also suggests that a very considerable number of States follow the principle of the incorporation, or adoption, of customary international law.93 The principle may be applied in judicial practice or on the basis of constitutional provisions as interpreted 86

The principle that a tribunal should follow its own previous decisions and those of the tribunals of equal or greater authority. See Chung Chi Cheung v The King [1939] AC 160, 169. For criticism of this application of stare decisis see Fawcett, The British Commonwealth in International Law, 39; Morgenstern, 27 BY (1950), 80-2; Crawford 48 BY (1976-70, 359; and County of Saint John v Fraser Brace (1958), 13 DLR (2d) 177; ILR 26 (1958, II), 165.

87 See Trendtext Trading Corporation v. Central Bank of Nigeria [1977] 1 QB 529, at 554, 578-9, per Lord Denning, MR, and Shaw, LJ, respectively; and 1o Congreso del Partido [1978] 1 QB 500 at 518 per Robert Goff J. See also Kaffraria Property Co. v. Government of Zambia, ILR 64, 708 at 714. Cf. Alcom Ltd. v. Republic of Colombia [1984] AC 580 at 597-600.

88 Halsbury, Laws of England (3rd edn.), vii. 4, 264. The 4th edn. of Halsbury takes a different view of Keyn, 4th edn., vol. XVIII, para. 1403, n.1.

89 (1876) 2 Ex D. 63, 202, 203. Cf. Reg. v Kent Justices, ex p. Lye [1976] 2 QB 153, DC; 42 BY (1967), 293 90 See Brownlie, 44.

91 See The Ship ‘North’ v The King [1906] 37 SCR 385 (Canada); Wright v Cantrell [1943] 44 SR (NSW), 45; Ann. Digest, 12 (1943-5), no. 37; Chow Hung Ching v The King (1948), 77 CLR 449 (Australia); Virendra Singh v State of Uttar Pradesh, ILR 22 (1955), 131 (India); Qureshi v USSR, ILR 64, 585 at 600 (Pakistan).

92 See Brownlie, 47.

93 Current evidence may be found in the International Law Reports. For use of English sources on the question see: Stampfer v A.-G., ILR 23 (1956), 284 (Israel); Re Lawless, ILR 24 (1957) 420 (Eire).

American authorities: Hilton v. Guyot (1895), 159 US 113; the Paquette Habana (1900), 175 US 677; U.S. v. Melekh (1960), 190 F. Supp.67.

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by the courts. An increasing number of states make appropriate provision in their constitutions. In general, it may be said that governments and lawyers are increasingly more conscious of the need to establish a constructive relationship between the municipal law and the system of international law. However, the subject-matter is complicated by issues of constitutional law peculiar to the given state and inadequate forms of incorporation. In the majority of States, the rule obtains that international law must give way to national legislation. An important consideration is the fact that many rules of customary international law do not provide precise guidance for their application on the national plane. The principal task remains that of creating a sensible working relationship between the two systems within the jurisdiction of the particular state, an accommodation between them rather than the attainment of a formal ‘harmony’, or the ‘primacy’ of international law. The problems are obscured if they are placed in the context of the conflict between monists and dualists.94 In addition, differences originate from different legal approaches, which may influence the appraisal by an international judge of the significance of case law. Judges trained in common law systems naturally tend to attach great importance to cases as ‘precedents’ and are inclined to apply such ‘precedents’ without asking themselves whether they evidence the formation of, or crystallise, an international customary rule or, instead, testify to the proper interpretation of a treaty or customary rule offered by another court. On the other hand, judges form civil law countries, where judicial precedents have lesser weight and criminal codes enjoy great legal status, tend to play down judicial decisions, or at least to ask themselves first, before relying upon such decisions, what legal status should be attached to them in international proceedings. This difference in cultural background and legal training of international judges often leads to different legal decisions.95 Under what circumstances is it applied by domestic courts in criminal cases?

Jurisdiction in international law

94 95

See Brownlie, 31-3.

See Cassese International Criminal Law (Oxford University Press; 2003), 28 (hereafter ‘Cassese’).

33

Jurisdiction refers to the legal power of States to regulate persons, objects and events.

The central issue here is whether a State is able to subject a person, object or event to the regulation of that State, or put differently, the allocation of competence among States.96 According the Restatement of Foreign Relations Law (Third)97, jurisdiction should be distinguished as follows: a)

Jurisdiction to prescribe - the power of the State ‘to make its law applicable to activities, relations, or status of persons, or the interests of persons in things, whether by legislation, by executive act or order, by administrative rule or regulation, or by determination of a court’.

b)

Jurisdiction to enforce – the power of the state ‘to induce or compel compliance or to punish non-compliance with its laws and regulations, whether through the Courts or by use of executive, administrative, police or other non-judicial action.’

c)

Jurisdiction to adjudicate – the power of the State ‘to subject persons or things to the process of its courts or administrative tribunals, whether in civil or criminal proceedings, whether or not the State is a party to the proceedings’.

The importance of this distinction is that the rules relating to each category of jurisdiction are different. Whilst a state may not exercise its enforcement jurisdiction outside that State’s territory, a State may be able to exercise its prescriptive (or adjudicatory) jurisdiction outside its territory.98 According to O’Keefe,99 the application of a State’s criminal law by its criminal courts is simply the exercise or actualization of prescription: both amount to an assertion that the law in question is applicable to the relevant conduct. As a result, a State’s criminal courts have no greater authority under international law to adjudge conduct by reference to that State’s criminal law than has the legislature of the State to prohibit the conduct in the first place. Equally, the trial and, in the event, conviction and sentencing

96

See R. Higgins Problems and Process, International Law and How we Use it (Clarendon Press, Oxford; 2003), 56 (hereafter ‘Higgins’).

97 Restatement of Foreign Relations Law (Third), American institute Publishers (1987).

98 See SS. Lotus Case.

99 O’Keefe ‘Universal Jurisdiction, Clarifying the Basic Concept’, JICJ 2 (2004) 728, 737 (hereafter ‘O’Keefe’).

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of an individual for conduct prohibited by a State’s criminal law is as much a means of executing or enforcing that law as is the police’s investigation, arrest, charging and prosecution of the individual under it. As such, States’ criminal courts have no greater authority under international law to execute the State’s criminal law than have the police or other coercive organs and agents of that State: neither can operate as of right in the territory of another state.

In the SS. Lotus case,100 two approaches to the issue of jurisdiction emerged. The one is the prohibitive approach101 under which a State has a general jurisdiction to prescribe, except for when there is a contrary prohibitive rule and the other is the permissive rule approach102 under which a State, to be entitled to exercise jurisdiction, must demonstrate the existence of a specific permissive rule that allows the State to do so.

The Permanent Court of International Justice took the view that the prohibitive approach is only applicable in relation to jurisdiction to prescribe and adjudicate, whereas the permissive approach is only applied in relation to the jurisdiction to enforce.103

100

See SS Lotus Case.

Ibid, ‘it does not however follow that international law prohibits a state from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have been taken place abroad, and in which it cannot rely on some permissive rule of international law. Such a view would only be tenable if international law contained a general prohibition to States to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, and if, as an exception to this general prohibition, it allowed States to do so in certain specific cases. But this is certainly not the case under international law as it stands at present. Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect as wide measure of discretion which is only limited in certain cases by prohibitive rules’.

102 Ibid ‘... the first and foremost restriction imposed by international law upon a State is that – failing the existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory of another state. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention’.

103 Ibid It does matter which one of the two approaches someone follows as it is connected with the burden of proof: in the first case, in the prohibitive approach, the burden of proof lies not with the State that exercises its jurisdiction, but with the other States, which should prove that there is a prohibitive rule that doesn’t allow the State in question to exercise its jurisdiction. On the contrary, under the permissive rule approach, the burden lies with the State that tries to exercise its jurisdiction to prove the existence of a permissive rule that permits it to exercise its jurisdiction. And from this difference one can conclude that the prohibitive approach is much wider and easier to be applied than the permissive one, especially if there is no prohibitive rule. Under the prohibitive approach, in the absence of any specific rule, the jurisdiction is allowed, whereas under the permissive approach, even if there is no prohibitive rule, jurisdiction is still not permitted.

101

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In practice,104 it seems that it is the permissive approach that prevails. International law has developed the following permissive rules of jurisdiction:105 a)

Territorial jurisdiction, by which a state can make laws for, and apply them to, persons and events within its territory.106 This is an unquestionable head of jurisdiction, celebrated by the SS Lotus case107 and is applicable even where a crime is committed outside the territory, if its effects will be felt in the territory108.

b)

Nationality jurisdiction, by which a state can make laws for, and apply them to, persons of their nationality, even over acts of nationals outside the home state. This basis of jurisdiction is more favoured with civil law countries, although common law countries also apply it109 and its underlying motivation is the will of a State that its nationals comply with its laws whether at home or abroad, regardless of what is provided for in the foreign State where the crime is committed110. A problem that may arise concerns the moment at which the alleged perpetrator must possess the nationality of the prosecuting state: is it when the crime is perpetrated or when criminal proceedings are instituted? There is a trend that most States tend to accept that the nationality may be possessed at either moment, thus broadening the jurisdiction of the State.111

c)

Passive personality jurisdiction, by which a State of the nationality of the victim is allowed to exercise jurisdiction over the offender even if the crime was committed abroad by a non-national.112 Such

104

For a good reference of States’ practice, especially in relation to universal jurisdiction, see L. Reydams Universal jurisdiction: International and Municipal Legal Perspectives (2003).

105 See Higgins, 56.

106 See SS Lotus Case; DPP v Doot [1973] AC 807; Section 3 (2) (3) UK Criminal Justice Act. 107 See SS Lotus Case.

108 See Cassese, 278.

109 See UK International Criminal Court Act 2001, which extends British Courts’ jurisdiction to crimes committed by British nationals abroad.

110 See Cassese, 281.

111 Ibid, 282.

112 Ibid.

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jurisdiction was disputed in the past113 but now appears generally permissible.114 d)

Protective jurisdiction, which relates only to certain offences, that is offences that are committed abroad by aliens where the offence is deemed to constitute a threat to some fundamental national interests.115 The court in Lotus was content simply to note the occasional assertion of such jurisdiction.116 In the past, at least, this principle has been less a general rule than the basis on which a few, specific exercises of extraterritorial jurisdiction over non-nationals have been tolerated by States, e.g. the offence of counterfeiting currency or an inchoate conspiracy to assassinate the head of state.117 But it has proved highly controversial in other areas, such as in the field of antitrust or competition law.118

e)

Universal jurisdiction, which is applicable to certain crimes that are so serious and deemed prejudicial to the interests of the international community as a whole that all States are permitted to try those who commit these crimes.119

From the above analysis one can conclude that to bring the alleged authors of international crimes to book, States need to have not only the laws, statutes or some sort of judge-made legal regulation punishing the crimes but also legal provisions authorising courts to prosecute and punish the alleged perpetrators. Based on each of the above mentioned bases of jurisdiction, national courts can proceed with the prosecution of different crimes. However, as noted above, while jurisdiction to prescribe and adjudicate can be extraterritorial, jurisdiction to enforce is strictly 113

SS Lotus Case; Cutting Case (1887), Harvard Law School Research in International Law, ‘Jurisdiction with Respect to Crime’, 29 American Journal of International Law Supp. (1935) 435 at 445 and 579.

114 See O’Keefe, 739; See also joint separate opinion of Judges Higgins, Kooijmans and Buergenthal, in Arrest Warrant of 11 April 2000 case (Democratic Republic of Congo v. Belgium) Decision of the ICJ, 2002, http://www.icj-cij.org/icjwww/idocket/iCOBE/iCOBEframe.htm, para 47 (hereafter ‘Arrest Warrant of 11 April 2000 Case’).

115 See SS. Lotus Case, 20; Arrest Warrant of 11 April 2000 case (Democratic Republic of Congo v.

Belgium) Decision of the ICJ, 2002, http://www.icj-cij.org/icjwww/idocket/iCOBE/iCOBEframe.htm; Joyce v. DPP [1946], AC 347, Attorney General of the Government of Israel v. Eichman (1961) 36 ILR 5; United States v. Yousef, 327 F.3d 56 (US2nd Cir., 2002) 116 SS. Lotus Case..

117 See O’Keefe, 739.

118 Ibid.

119 See the answer to Question 12 for more information on universal jurisdiction.

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territorial.120 A State may not enforce its criminal law in the territory of another state without that State’s consent.121 Jurisdiction to prescribe and jurisdiction to enforce are logically independent of each other. The lawfulness of a state’s enforcement of its criminal law in any given case has no bearing on the lawfulness of that law’s asserted scope of application in the first place and vice versa.122 At the same time, while jurisdiction to prescribe and jurisdiction to enforce are mutually distinct, the act of prescription and the act of enforcement are in practice intertwined. A state’s assertion of the applicability of its criminal law to given conduct is actualised when it is sought to be enforced in a given case. Nonetheless, the act of prescription can still be said to take place when the prohibition in question is promulgated, the conduct prohibited being, at that point, hypothetical (that is, paradigmatic murder, paradigmatic robbery and so on).123 Thus, in relation to the question of when the relevant prescriptive jurisdictional nexus (be it territoriality, the nationality or residency of the offender, the nationality of the victim, or the offender’s service in the armed forces of the prescribing state) must exist in a given case, the answer is that the nexus relied on to ground prescriptive jurisdiction over given conduct must exist at the time at which the conduct is performed.124 The nullum crimen principle, together with all other fundamental criminal principles like the principles of legality and specificity, the presumption of innocence and the equality of arms etc. also hold true for customary law and seem to be embedded in the international legal system.125 It should be noted that the nullem crimen principle is addressed to the question whether the accused's conduct was, and should have been known to have been, criminal at the time and place that it was committed.

In the case of international crimes, that

requirement was regarded by the Nuremburg principles as being satisfied by the

120

See O’Keefe, 740.

See, SS. Lotus Case, 18-19; General international law admits of only rare exceptions to the territoriality of criminal jurisdiction to enforce, all of them pertaining to armed conflict, see O‘Keefe, 740.

122 See O’Keefe, 741.

123 Ibid.

124 Ibid 742.

125 Ibid 743 and Cassese, 31.

121

38

international criminality of the conduct. There is, however, a crucial and distinct question concerning its criminality in domestic law. It is not enough to say that customary law is part of domestic law: it must also be established that international law crimes are triable as crimes in domestic law. For that to be true there must be an incorporation of the international law crime as a crime in domestic law, and a municipal court must be given jurisdiction to try it. (That is a question of venue, quite distinct from the broader question whether the State has legislative or enforcement jurisdiction in respect of the crime.)126 This issue is currently being appealed to the House of Lords in the case of R v Jones et al.127

126

See, in this regard, R. O’Keefe ‘Customary International Crimes in English Courts’ 72 British Yearbook of International Law (2001) 293.

127 [2005] 1 Cr. App. R. 12.

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Question 5: How is intention to be proved for the purpose of genocide? Is it an inference to be drawn from the impact of the violence that has taken place?

The act element of genocide128 is inextricably connected to the element of intent.

Genocide is distinguishable from crimes against humanity in international law largely on the basis of the intent behind the crime.129 This intent must be specific—it cannot be a general intent to murder, in the case of Article II(a); it must be a specific intent to kill someone because of his or her membership in a group. Genocidal intent may involve the desire to exterminate a large number of members of a protected group or, alternatively, the desire to destroy a more limited number of members of the group who are selected because of the potential impact of their destruction on the survival of the group as such.130 The defining feature of genocide is that it must be proven that the alleged offender possessed the “specific intent” or dolus specialis to destroy the group in whole or in part. Where this intent is not established, the act remains punishable, but not as genocide. A “specific” intent offence requires performance of the actus reus but in association with an intent or purpose that goes beyond the mere performance of the act.131 Although specific intent is required, it may be inferred in most cases from the acts themselves, as well as from the context in which those acts took place. As the ICTR held in Prosecutor v. Akayesu, “it is possible to deduce the genocidal intent inherent in a particular act charged from the general context of the perpetration of other culpable acts systematically directed against that same group, whether these acts were committed by the same offender or by others”.132 It is also possible to infer intent when genocidal acts are committed in connection with a separate objective with a non-

128

See question 2&3 for a discussion of the precise content of the crime of genocide.

Prosecutor v. Goran Jelisic, Case No. IT-95-10-T, ICTY T. Ch. I, 14 Dec. 1999, para 66 (hereafter ‘Jelisic’) 130 Ibid, paras 81-82.

131 Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T, ICTR T. Ch. I, 2 Sept. 1998, para 497.

132 Ibid, para 523.

129

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genocidal motive; for example, when otherwise genocidal acts are carried out with the ultimate motive of giving the government greater access to natural resources.133 In absence of a genocidal intent, severe offences committed on a mass scale and directed against a civilian population are likely to constitute “crimes against humanity” under customary international law. There are several definitions of crimes against humanity, but all involve the persecution of individuals or groups in a widespread and systematic fashion.

As the ICTY concluded in the Jelisic case: “It is in fact the mens rea [the mental-state element of the crime] which gives genocide its speciality and distinguishes it from an ordinary crime and other crimes against international humanitarian law134”. In other words, whereas the act element is what makes the genocide a crime in the first place, the intent element is what makes the crime genocide. According to the ICTR, “[I]t is possible to deduce the genocidal intent inherent in a particular act charged from the general context of the perpetration of other culpable acts systematically directed against that same group, whether these acts were committed by the same offender or by others”.135

The perpetrator's intent is critical. According to the Report of the Preparatory Commission for the International Criminal Court (PCICC), the ICC may infer such intent from “conduct [which] took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction,”136 including “the initial acts in an emerging pattern”.137 Further, the Report expressly states that, “notwithstanding the normal requirement for a mental element provided for in article 30, and recognizing that knowledge of the circumstances will usually be addressed in proving genocidal intent, the appropriate requirement, if

133

The ICTY and the ICTR have been largely silent on the question of dual motives. However, the Australian Human Rights and Equal Opportunities Commission has ruled that “even if motives were mixed, a fundamental element in the programme [of transferring indigenous children to families of European descent] was the elimination of indigenous cultures, and that as a result the co-existence of other motives was no defense.” Australian Human Rights and Equal Opportunities Commission, Bringing Them Home, Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children fromTheirFamilies,270-275, at http://www.austlii.edu.au/au/special/rsjproject/rsjlibrary/hreoc/stolen, last visited 7 November 2005.

134 Prosecutor v. Kambanda, Case No. ICTR-97-23-S, ICTR T. ch. 4, Sept. 1998.

135 Jelisic, paras 81-2.

136 Article 6a of the report, text available at http://daccessdds.un.org/doc/UNDOC/GEN/N00/72427/PDF/N0072427.pdf?OpenElement, last visited 7 November 2005.

137 Ibid, Article 6 Introduction, 6.

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any, for a mental element regarding this circumstance will need to be decided by the Court on a case-by-case basis.138 The ICTY was faced with a more complex issue in Prosecutor v. Dr. Milomir Stakic,139 where Dr. Stakic faced charges of genocide, complicity in genocide, and conspiracy to commit genocide. Here, the court had to decide whether the requisite mens rea of an individual in a position of power was enough for a conviction even where no material element of the offence had been committed. The ICTY held that Dr. Stakic and his coperpetrators acted in the awareness that the crimes would occur as a direct consequence of their pursuit of the common goal and further, the accused knew that his role and authority as the leading politician in Prijedor was essential for the accomplishment of the common goal. An individual in a position of power or authority is held responsible for the crimes committed by his co-perpetrators or co-conspirators where there is the existence of an agreement to reach a common goal by coordinated cooperation with joint control over the criminal conduct. The co-perpetrator may be convicted of genocide or conspiracy to commit genocide where he acted in the awareness of the substantial likelihood that crime would occur and must have been aware that his role was essential for the achievement of the common goal.

However, genocidal intent is bifurcated into two levels of mens rea. First, the intent to commit the underlying crime which does not differ from the one required in any ordinary crime. The individual perpetrates with the intent to commit a particular crime.

Genocide adds another level of mens rea which needs to be proved by the intent to destroy, in whole or in part, a group as such.140 The ICTY has clarified the level of intent required. The issue before the court being whether the underlying criminal act(s) must aim to destroy the group, or whether it is enough that the underlying crime(s) be perpetrated in full knowledge that it will inevitably result in the destruction of the group, or, more flexible still, in the knowledge that it will probably result in the 138

Ibid.

Prosecutor v. Dr. Milomir Stakic, ICTY-97-24-T, ICTYT Ch 2, 31 July 2003.

140 Otto Triffterer expresses these two levels of intent as follows: ‘there are two subjective elements required to establish criminal responsibility for genocide: the mens rea, as the pendant to the actus reus, and the ‘intent to destroy [... ]’. He emphasises that ‘[...] guarantee the rule of law and respect for the principle nullum crimen sine lege, the two ‘'intents’' ought to be strictly separated when it comes to prove the facts necessary to establish the innocence or guilt of an accused’, in ‘Genocide, Its Particular Intent to Destroy in Whole or in Part the Group as Such’ Leiden Journal of International Law vol 14, no 2 (2001) 400.

139

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destruction of the group. It was held that ‘genocide’ is characterized by the fact that it aims to destroy a human group, “the specific intent requires that the perpetrator seeks to achieve the destruction, in whole or in part, of a national, ethnical, racial or religious group, as such”.141 Further it has been affirmed that, “mere knowledge of the victims’ membership in a distinct group on the part of the perpetrators is not sufficient to establish an intention to destroy the group as such,”142 therefore rejecting the possibility of a ‘reckless genocide’.143 The ICTR has also upheld a similar interpretation of the genocidal intent.144 The ICTY has specifically stated that motive is not an element of the crime.145 Further, The ICTY judgments have consistently found that the destruction referred to under the Genocide Convention only covers a physical or biological destruction and does not include cultural destruction of a group.146 Unlike the Holocaust or the Rwandan genocide, the required intent may not be inferred as easily in all cases. Hence, in such cases intent may be inferred from a number of facts such as words or deeds or a pattern of purposeful action that deliberately, consistently, and systematically target victims on account of their membership in a particular group while excluding the members of other groups and which can also be 141

Jelisic, 46.

Prosecutor v Radislav Krstic ICTY-98-33, Trial Chamber, para 561 (hereafter ‘Kristic’).

143 Thereby rejecting the interpretation recently advocated by some commentators that genocide should comprise those acts whose foreseeable or probable consequence is the total or partial destruction of the group for instance, Alexander KA Greenawalt, ‘Rethinking genocidal intent: the case for a knowledgebased interpretation’ Columbia Law Review, Dec 1999, 2259-94. The ICJ Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (ICJ Reports, 1996, 240) also rejected a broad interpretation of intent.

144 Prosecutor v Jean-Paul Akayesu, ICTR-96-4-T (2 Sept 1998), paras 497, 544-7; Prosecutor v Clément Kayishema and Obed Ruzindana, ICTR-95-1-T (21 May 1999), para 91; Prosecutor v Georges Anderson Nderubumwe Rutaganda, ICTR-96-3-T (6 Dec 1999), para 59; Prosecutor v Alfred Musema, ICTR-96-13-T (27 Jan 2000), para 164; The Prosecutor v Kambanda, ICTR 97-23-S (4 Sept 1998), para 16.

145 The Jelisic Appeal Judgement emphasizes ‘the necessity to distinguish specific intent from motive’ and states that ‘[t]he personal motive of the perpetrator of the crime of genocide may be, for example, to obtain personal economic benefits, or political advantage or some form of power. The existence of a personal motive does not preclude the perpetrator from also having the specific intent to commit genocide’. In the Tadic Appeals Judgement, the Appeals Chamber stressed the irrelevance and ‘inscrutability of motives in criminal law’.

146 Krstic, para 580; Jelisic, paras 78-83; Sikirica et al Judgement on Defence Motion to Acquit, paras 63-86, available at http://www.un.org/icty/cases-e/index-e.htm last visited 7 November 2005. The case law however does make it possible to take into consideration attacks on the group's symbols, such as the cultural or religious buildings, as further evidence of the intent to target the group as a distinct entity.

Prosecutor v Radovan Karad and Ratko Mladic, IT-95-5-R61, IT-95-18-R61, Review of the Indictments Pursuant to Rule 61 of the Rules of Procedure and Evidence, para 94.

142

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inferred from the general impact or immediate outcome of the violence that has taken place. As the intention to destroy all or part of a group, as such, is an essential element of the crime, it is crucial, and at the same time often very difficult, to find clear evidence of the motives and intentions that lie behind acts. The Tribunals have employed a broad spectrum of various mental elements to determine which crimes constitute “genocide�, as such it is not possible to prove mens rea per se, and inference can be drawn from the impact of the violence itself.

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Question 7: Are heads of State immune from prosecution for crimes against humanity, torture and genocide on any ground?

A customary rule of international law provides that Heads of State enjoy certain rights and privileges, the most important of which is jurisdictional immunity. This has been sustained by eminent publicists147 and case law.148 In fact, it is a rule of customary international law that has been always uncontested.

This immunity can be distinguished into two different categories: the first being immunity ratione materiae (functional immunity) and the second ratione personae (personal immunity). Functional immunity is grounded on the notion that a state official is not accountable to other states for acts that he accomplishes in his official capacity and that therefore must be attributed to the State.149 This is related to substantive law and is immunity from the civil and criminal jurisdiction of foreign national courts, but only in respect of governmental or official acts of de jure or de facto State agents at any level. This immunity does not cease after an individual ceases to hold a particular office or position because the acts are attributed to the State and not to the individual themselves. Furthermore, a plea of functional immunity may be raised erga omnes against any other State.

Ratione personae immunity is a plea of procedural law and entails the immunity to which certain classes of State officials are entitled. Such classes have been held to

147

Oppenheim’s International Law (9th ed. Longman 1996), vol. 1, 1042 et seq.; Sorensen M., Manual of Public International Law (ed. Macmillan, 1968), 385-391; Rousseau C., Droit International Public (5th ed., Sirey, Paris, 1980), vol. IV, 117 et seq.; A. Watts The legal position in International law of Heads of State, Heads of Government and Foreign Minister, 247 Recueil des Cours 9; The Jurisdictional Immunity of Foreign Sovereigns, 63 Yale LJ (1953-1954) 1148-1172; Cassese A., International Criminal Law (1st ed. Oxford University Press 2003), 273-274.

148 Duke of Brunswick v. King of Hanover, 3 British International Law Cases 113; Cour d’Appel de Paris, 23.8.1870, Delle Masset, S.1871.2.6; Mighell v. Sultan of Johore [1894] 1 QB 149; Cour d’Appel d’Alger, 22.1.1914, Ben Aiad c. Bey de Tunis, JDI 1914, 1290; X v. Prince Lippe-Schaumbourg, 26 American Journal of International Law 1932 Special Supplement, p. 477; Khanji Kashari Khanji v.

Gulam Ra Sul Chandbal [1955] All IR 499; Rahintoola v. Nizam of Hayderabad [1958] 1 AC 379; Village Holdings Sdn Bhd v. HM The Queen in Right of Canada 87 International Law Reports 223.

149 A. Cassese ‘When May Senior State Officials Be Tried For International Crimes? Some Comments On The Congo v. Belgium Case’ 13 European Journal of International Law 853 et seq (hereafter ‘Cassese EJIL’)

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include Heads of State150 or Government, diplomatic agents and foreign ministers.151 This covers official or private acts carried out by the state agent while in office, as well as private or official acts performed prior to taking office; in other words, it assures total inviolability while in office. It comes to an end after cessation of the official functions of the State agent and may not be erga omnes (in the case of diplomatic agents it is only applicable with regard to acts performed as between the receiving and the sending state, plus third states whose territory the diplomat may pass through while proceeding to take up, or to return to, his post, or when returning to his own country: so called jus transitus innoxii).152 Its basis is not the nature of the action, but the official status of the person concerned.153 Unlike the personal immunity, the functional one that persists after the end of office is not absolute and may be subject to an exception, namely the commission of international crimes.154 At this juncture, there appears to be some disagreement between jurisprudence and eminent publicists.

National higher courts such as the House of Lords in the Pinochet155 case and American courts156 drew a distinction between private and official acts, stating that immunity covers only official acts and, therefore, private acts do not benefit from the immunity.

In the Pinochet case, some of their Lordships stated that: the determination of what constitutes an official act is to be made in accordance with customary law; international crimes, such as torture cannot constitute official acts of a Head of State, giving recognition to the fact that torture is an international crime against humanity and a norm of jus cogens.157 Other opinions in this case, however, relied primarily on the 1984 International Convention Against Torture (‘the Torture Convention’). They stated that in signing and ratifying the Convention, the signatory States gave recognition to 150

R. v. Bow Street Metropolitan Stipendiary Magistrate & ors., ex parte Pinochet Ugarte (No. 3) [1999] 2 WLR 827 (hereafter ‘ex parte Pinochet’); HAS et al. v. SA et al., (RG P.02.1139.F), Pasicrisie Belge 2003/2, p.318; Cour de Cassation, arrêt no. 1414, 13 Mars 2001, (105) RGDIP 474.

151 Arrest Warrant of 11 April 2000 (Congo v. Belgium) [2002] ICJ Rep 3, 20.

152 Cassese EJIL, 853 et seq.

153 Bantekas I. & Nash S., International Criminal Law (2nd ed., Cavendish Publishing London 2003) p.

168.

154 Cassese EJIL, 853 et seq.

155 ex parte Pinochet.

156 Lafontant v. Aristide 103 International Law Reports (1993) 581; Re Estate of Marcos, 25 F3d 1467 (1994).

157 ex parte Pinochet, 899 per Lord Hutton and 903 per Lord Saville of Newdigate.

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the fact that torture is an international crime. The Convention could not reach its goal of bringing perpetrators of torture to justice if most acts of torture, being performed in an official capacity, fell under immunity ratione materiae. They therefore held that the Torture Convention had to be interpreted as implying a waiver of that immunity.158 On the related matter of state immunity, however, the European Court of Human Rights has not been able to find a general restriction of immunity for acts in violation of ius cogens.159 Given the ongoing debate over this issue in the literature and the limited practice so far, the question of whether or not functional immunity applies to acts in violation of ius cogens must be regarded as so far unsettled.

This question was left open in the Belgian Arrest Warrant Case that dealt with personal and not functional immunity. Here, the ICJ first observed that in international law it is firmly established that, similar to diplomatic and consular agents, certain holders of high-ranking office in a State, such as the Head of State, Head of Government and Minister for Foreign Affairs, enjoy immunities from jurisdiction in other States, both civil and criminal.160 It further took the view that no distinction between private and officials acts should be made161 and that it has found no rule of customary international law or any form of exception to the rule according immunity from criminal jurisdiction and inviolability to incumbent Ministers for Foreign Affairs, where they are suspected of having committed war crimes or crimes against humanity.162 The Court also iterated four exceptions to the rule of immunity in a manner, which seems to be exhaustive.163 These are: (a) the national State initiating proceedings against the official; (b) the national State waiving the immunity of the official; (c) the person ceasing to discharge his official functions (for acts outside the scope of immunity ratione materiae) and (d) the incumbent or former official being prosecuted before an international criminal court. Relating to the last exception, the extent to which an official loses their immunity will depend upon the legal instrument establishing the international criminal

158

ex parte Pinochet, 847 per Lord Browne-Wilkinson, 882-887 per Lord Hope, and 904 per Lord Saville.

159 Al-Adsani, European Human Rights Reports 34 (2001) 273. But note also the strong dissenting opinions.

160 The Belgian Arrest Warrant Case (Congo v. Belgium) at http://www.icjcij.org/icjwww/idocket/iCOBE/icobejudgment/icobe_ijudgment_20020214.PDF, para. 51.

161 Ibid, para. 55.

162 Ibid, para. 58.

163 Ibid, para. 61.

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jurisdiction. At this point, it is worthy to note that India is neither a contracting party nor has it acceded to the 1998 Rome Statute of the International Criminal Court.

Some authors, the most prominent of whom is Cassese, have argued that, with respect to immunity ratione materiae, the distinction between official and private acts has been unhelpful.164 Cassese asserts that international crimes, in particular, can only ever be committed by a person taking advantage of his official capacity and can only be conceived of as official acts. It is the nature of these crimes that results in the loss of the official’s functional immunity.

Conclusions Taking into consideration all the above, we conclude that: 1.

In benefiting from personal immunity, pursuant to public international law, a Head of State cannot be subjected to any court’s jurisdiction unless the immunity is explicitly waived by him or by his State or when the latter or some international tribunal initiates proceedings against him.

2.

In the event of him leaving office, he will cease to benefit from personal immunity.

3.

The question of whether the functional immunity that persists after the end of office is limited in cases of international crimes in violation of ius cogens has so far not been settled in literature and practice, even though one can observe a trend towards limits in this respect.

4.

In the Belgian Arrest Warrant Case the ICJ provided a non-exhaustive enumeration of high-ranking officials benefiting from the immunities under International Law. ‘High-ranking’ in this regard related to officials of sovereign states and could not be construed as including even high-ranking officials of non-sovereign states. If the opposite were to be the case, then it would be entirely upon the State to determine the threshold of who is or is not a ‘high-ranking’ official and would lead to a State eradicating the responsibility of its organs for international crimes.

164

Cassese EJIL, 853 et seq.

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Question 8: To what extent are heads of state responsible for crimes against humanity, torture or genocide, by private non-state actors?

At the outset, it is important to distinguish the issue involved in this question from other related areas, such as immunity of heads of state from criminal prosecution165 and state responsibility for international crimes. The central question here is the assessment of individual criminal responsibility of heads of state for acts carried out by non-state actors. Issues of immunity from prosecution will only arise consequent to a determination of whether the head of state is responsible in the first place. State responsibility is a separate area of study altogether, as what is at issue here is individual criminal responsibility of a person by virtue of his status and functions.

There are essentially two ways of attributing conduct of an individual/group of individuals to another individual in international criminal law– one can be applied to individuals regardless of their status/relationship, and the other relates to the particular relationship between the parties in question. This is exemplified in Articles 25 and 28 of the Rome Statute of the International Criminal Court, 1998. Broadly speaking, Article 25 imposes individual criminal liability on an individual for the acts of another individual or group when the former (i) orders, solicits or induces the commission of an international crime; (ii) aids, abets or otherwise assists in its commission; or (iii) contributes in any other way to the commission of such a crime by a group of persons acting with a common purpose. Article 28 provides for criminal responsibility of military as well as civilian superiors for the acts of their subordinates, provided certain conditions are satisfied. A head of state could be held responsible for the acts of private non-state actors under either or both of these criteria, provided certain conditions are met: Responsibility of heads of state under the doctrine of superior responsibility The doctrine of superior responsibility provides for the liability of superiors, whether military or civilian, for the acts of their subordinates. The responsibility arises from two

165

This issue was dealt with in the previous question.

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factors: there is a direct liability on the superior for his act of omission – that is his failure to intervene and lack of supervision; there is an indirect liability for the criminal acts of his subordinates.166 The doctrine was first codified in Article 86(2) of Additional Protocol I to the Geneva Conventions, and subsequently in Articles 7(3) and 6(3) of the ICTY and ICTR statutes respectively. Other formulations of the doctrine can be found in Article 28 of the ICC Statute, as well as Article 6 of the ILC’s Draft Code of Crimes against the Peace and Security of Mankind.

Development of the doctrine and its applicability While the origin of the doctrine of superior responsibility may be traced back to the 15th century, it became linked to criminal responsibility for acts of subordinates only in the post-war period.167 One of the most prominent cases that applied the doctrine during the trials in the aftermath of the Second World War is Yamashita.168 In this case, General Yamashita, one of the commanding generals of the Imperial Japanese Army was charged with having violated the laws of war because of having unlawfully disregarded and failed to discharge his duties as commander to control his subordinates, permitting them to commit crimes against the people of United States and the Philippines. He was convicted on the basis that the crimes committed by the subordinates were so extensive and widespread that he must have known of their occurrence and therefore could be held responsible for failing to prevent further crimes and punishing his subordinates. The high standard of responsibility of commanders was somewhat watered down in subsequent cases before the Nuremberg Military Tribunals. In the Hostages case,169 the irrebuttable presumption of knowledge of the commander on the basis of the widespread nature of atrocities was changed to a rebuttable one. In the High Command case,170 the Tribunal

166

K. Ambos, “Superior Responsibility” in A. Cassese, P. Gaete and John R.W.D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary: Vol I (OUP: Oxford, 2002) 823, 824 (hereafter ‘Amos’).

167 Ibid, at 825.

168 Trial of General Tomoyuki Yamashita, 4 UNITED NATIONS WAR CRIMES COMMISSION, LAW REPORTS OF CRIMES OF WAR TRIBUNALS 1, 34-35 (U.S. Mil. Comm’n., 1946). For a summary of the decision, see L.C. Green, “Command Responsibility in International Humanitarian Law” 5 Transnational Law and Contemporary Problems (1995) 320.

169 Trial of Wilhelm List and others (‘Hostages’ case), (1953) 15 Ann. Dig. 632.

170 Trial of Wilhelm von Leeb and others (‘High Command’ case), (1953) 15 Ann. Dig. 376.

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held that since a commander cannot know everything that happens within his command, the prosecution must prove knowledge on his part. Beyond that, the prosecution must prove wanton criminal neglect in supervising subordinates to hold the commander criminally responsible.171 The doctrine of command responsibility was not restricted to military commanders. In US v. Pohl et al.,172 the US military courts at Nuremberg extended the doctrine to civilian superiors, as one of the convicted defendants was a civilian administrator. US v. Brandt et al,173 also recognised the superior responsibility of civilians.174 The Tokyo Military Tribunal for the Far East also confirmed and extended the Nuremberg jurisprudence to civilian personnel. It imposed duties of supervision and command on civilian and military personnel with regard to proper treatment of war prisoners. Superior responsibility was further extended to the civilian government, arguing for a type of collective responsibility.175 The doctrine saw a revival with the statutes of the ICTY and the ICTR specifically incorporating it as a ground for imposing criminal responsibility. The jurisprudence of these tribunals has contributed significantly to the criteria for establishing superior responsibility in military as well as non-military contexts. The ICC statute explicitly distinguishes between responsibility of civilian and military superiors and applies different standards to attribute responsibility.

Criteria for establishing responsibility in the case of civilian superiors The first case comprehensively to consider the criteria for attributing criminal responsibility to civilian superiors was Celibici.176 The trial chamber of the ICTY held that the doctrine that military or civilian superiors may be held responsible for the acts of their subordinates was well established in customary international law. This liability could be direct (arising out of positive acts) or

171

See B.D. Landrum, “The Yamashita War Crimes Trial: Command Responsibility Then and Now” 149 Military Law Review (1995) 293, 298-99.

172 (Case 4), VTWC, 958-1163, cited from Amos, supra note 1, at 828-29.

173 II TWC 171-300 cited from Amos, supra note 1, at 828-29.

174 Ambos, 828-29.

175 Ambos, 830.

176 Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delalic and Esad Landzo (‘Celibici’ case), Case.

No. IT-96-21-T.

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indirect (arising out of omissions). The tribunal affirmed that the doctrine applied to all persons, whether civilian or military, including political leaders, so long as the existence of a superior subordinate relationship was established.

Such a relationship may be established either by law (de jure command) or by circumstantial evidence showing actual and effective possession of control over others (de facto control), as in the case of highly regarded individuals who by virtue of their status were able to exact adherence to commands. Civilian superiors could be held liable for crimes committed by their subordinates over whom their formal authority under national law was limited or non-existent.

However, the doctrine applied to civilian superiors only to the extent that they exercised control over their subordinates which was similar to that of military commanders.

As regards the mental element required to establish superior responsibility, the tribunal held that the mens rea requirement was satisfied if the superior possessed actual knowledge that his subordinates were committing or about to commit crimes, or where he possessed information which would put him on notice of the risk of such crimes by need for additional investigation to ascertain their actual or possible commitment. The knowledge of the superior could not be presumed and had to be established by direct or circumstantial evidence, such as the number, type and scope of illegal acts, their location, manner of occurrence and tempo etc.

With respect to the kinds of measures that are required to be taken by the superior to prevent the commission of offences or punish their perpetrators, the tribunal held that a superior could only be held criminally responsible for failing to take measures that were within his powers. Further, lack of formal legal competence to take such measures did not necessarily preclude his criminal responsibility.

In Prosecutor v. Aleksovki,177 the ICTY Trial Chamber affirmed the proposition that superior responsibility was not reserved for official authorities and the 177

Case No. IT-95-14/1.

52

decisive criterion for determining who was a superior under customary international law was not only the formal legal status of the accused, but also his ability, as demonstrated by his duties and competence, to exercise control. In the case of civilian superiors, the relevant criterion was the ability de jure or de facto, of the superior to prevent an offence or to sanction its perpetrators.

However, the sanctioning power of a civilian superior had to be broadly interpreted, as a civilian authority could not be expected to have disciplinary power over his subordinate equivalent to that of military authorities in a similar command position. Hence, the civilian superior’s ability to impose sanctions was not essential. The ICTR, in Kayishema178 and Musema,179 applied similar standards to determine the existence of superior responsibility. In the first case, Kayishema, a local politician was held responsible, in his capacity as prefect of Kibuye, Rwanda, for the acts of the gendarmes, mayors, police and prison guards, who were his subordinates. In Musema, the accused, who was a director of a tea factory, and exercised de jure authority over his employees while they were engaged in their professional duties and had legal and financial control over them, was held to be in a position to take measures to prevent and punish commission of crimes by the employees, and hence, was liable under the doctrine of superior responsibility.

The Rome Statute of the ICC makes a distinction between military and civilian superiors for the attribution of liability. In the case of military commanders, Article 28 provides for responsibility when the commander either knew, or owing to the circumstances at the time, should have known that the forces under his command were committing or about to commit such crimes. In the case of civilian superiors, the standard is lower, in that they must either have known, or consciously disregarded information which clearly indicated that the subordinates were committing or about to commit such crimes.

178

Prosecutor v. Clement Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T (hereafter ‘Kayishema’).

179 Prosecutor v. Alfred Musema, Case No. ICTR-96-13-T (hereafter ‘Musema’).

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Thus, as long as a superior-subordinate relationship is established, and the mens rea requirements are met, a head of state can be held responsible for the acts of private non-state actors under the doctrine of superior responsibility.

Responsibility of heads of state for complicity/inchoate offences Criteria for establishing complicity of heads of state A head of state could also be held responsible for complicity in the crime committed by private non-state actors. This could involve aiding or abetting the crime, or contributing to its commission by a group of persons acting with a common purpose.180 The main case dealing with the responsibility of individuals as co-perpetrators of the crime is Tadić.181 There, the ICTY held that the actus reus required for the crime was (a) a plurality of persons – which could be an organised group or a disorganised mob acting out a common purpose; (b) the existence of a common plan, design or purpose which amount to or involves the commission of a crime, and which may materialise extemporaneously; (c) participation of the accused in the common design involving the commission of a crime.

The mens rea required differed according to the category of common design. In the first category, cases of co-perpetration, what was required was the same intent to commit a certain crime, although each perpetrator may carry out a different role within this common design. Thus, the prerequisite actus reus and mens rea required to hold liable a person who did not effect the commission of the crime were: (a) the person voluntarily participated in one aspect of the common design (for example, by furnishing material assistance to coperpetrators); (b) the person intended the result of the action taken by his coperpetrators. In the second category, cases where the offences were alleged to be committed by members of military or administrative units acting pursuant to a concerted plan, the actus reus was active participation in the enforcement of 180

Article 25(3)(c) and 25(3)(d). See also, Articles 7(1) and 6(1) of the ICTY and ICTR statutes respectively.

181 Prosecutor v. Dusko Tadić, Case No. IT-94-1-A, paras 196-204.

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that concerted plan and in terms of mens rea, personal knowledge of the nature of the system of ill-treatment was required, as well as the intent to further the common design of ill-treatment. The third category, cases of common design to pursue a course of conduct where one of the perpetrators committed an act, which while outside the common design, was nevertheless a natural and foreseeable consequence of the implementation of that common purpose, required proof of the intent to participate in and further the criminal purpose and to contribute to the commission of a crime by the group. In addition, it must have been foreseeable that such a crime might be committed by one of the group members and the accused should have willingly taken that risk.

What is important in establishing complicity is not always a tangible contribution by the accused or even his presence. For instance, an approving spectator, whose presence encourages the perpetrators because of the influence he wields over them, may be guilty of complicity if he knows the effect his presence would occasion.182 Aiding in the commission of a crime has been interpreted as giving assistance to the perpetrator, whereas abetting involves the commission of an act by being sympathetic to it, including mere exhortation or encouragement.183 In both cases, the actus reus has a substantial effect on the perpetration of the crime.184 Further, the assistance may not always be in the form of a positive act, but could also consist of an omission (for instance, mere presence to give moral support) that has a decisive effect on the perpetration of the crime, provided it is accompanied by the requisite mens rea. The assistance need not constitute a condition sine qua non for the acts of the principal offender; it may merely sustain and facilitate the commission of the crime.185 The standard of mens rea required for the crime of aiding and abetting in customary international law is the knowledge that the accused’s act assists the

182

Prosecutor v. Anto Furundzija, Case No. IT-95-17/1 (hereafter ‘Furundzija’); see also Kayishema.

Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T (hereafter ‘Akayesu’).

184 Furundzija, paras 235, 249.

185 Furundzija, paras 209, 233.

183

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commission of the act by the principal; he need not share the mens rea of the principal in the sense of positive intention to commit the crime, nor does he need to know the precise crime that was intended and actually committed.186 The mens rea or special intent required for complicity in genocide is knowledge of the genocidal plan, coupled with the actus reus of participation in the execution of such plan. Thus, the accused is liable as an accomplice to genocide if he knowingly and wilfully aided or abetted or instigated one or more persons in the commission of genocide, while being aware of the genocidal plan even though the accused himself did not have the specific intent, to destroy, in whole or in part, members of a particular group, as such.187 Criteria for establishing responsibility of heads of state for inchoate offences Heads of state may be held responsible if they directly and publicly incited genocide (and not any other international crime). Incitement consists of persuading or encouraging others to commit a crime, or committing an act intended to directly provoke another to commit a crime, through speeches, shouting or threats, or any other means of audiovisual communication. The incitement must not be made in private but must be made in a public place or to members of the general public at large. The incitement must also be made in a direct form and specifically provoke another to commit a crime. Vague or indirect suggestions may not qualify as incitement.188 The direct element must be considered on a case-by-case basis and in the light of its cultural and linguistic context and the circumstances in which it took place, particularly whether the person for whom the incitement was intended understood immediately the implication of the message.189 Articles 4(3)(b) and 2(3)(b) of the ICTY and ICTR statutes respectively, establish criminal responsibility for conspiracy to commit genocide. This could

186

Furundzija, para 245-46.

Akayesu, paras 545, 726.

188 Akayesu, paras 555-57.

189 Prosecutor v. Ruggiu, Case No. ICTR-97-32-I, paras 14, 17, 44.

187

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also be covered indirectly by Article 25(3)(d) of the ICC statute. Conspiracy to commit genocide involves an agreement between two or more persons to commit genocide. The mens rea required is the concerted intent to commit genocide, that is, the dolus specialis of genocide itself.190 In Kambanda,191 the Rwandan Prime Minister was found to have conspired to commit genocide. This conspiracy took the form of participation in meetings to discuss action to commit genocide.

Conclusion A head of state could be held responsible for the acts of private non-state actors, both by virtue of his omission in preventing them or punishing the perpetrators, as well as by his positive acts of complicity, provided the criteria for establishing criminal responsibility identified above are met.

190 191

Musema, para 192.

Prosecutor v. Jean Kambanda, Case No. ICTR-97-23-S.

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Question 9: What is the extent of liability for acts of omission, that is, failure to prevent crimes against humanity, torture or genocide of heads of state?

Persons qualified as “superiors” may incur criminal liability for failure either to prevent or punish crimes committed by their subordinates in cases where they had proper knowledge that their subordinates were about to commit crimes or had already done so.

This concept is known as the doctrine of command responsibility or superior responsibility and it addresses acts of omissions rather than direct participation in crimes. The legal nature of this doctrine is rather controversial, and the extent of its application would need more clarification. It is useful to review the evolution of this doctrine since World War II to get a better understanding of its scope.

The Law after World War II The origins of the doctrine of command responsibility can be found in military law Post-World War II. The international military tribunals at Nuremberg and Tokyo notably applied this concept even though none of their Charters expressly addressed it.

The International Military Tribunal at Nuremberg only convicted highest Nazi officials while the one sitting at Tokyo convicted both military and non-military persons for failing to prevent and punish crimes. One of the most significant cases for us concerns the conviction of a Japanese leading political figure, Foreign Minister Koki Hirota who was convicted for the atrocities committed by the Japanese army in the Chinese city of Nanking. Having received ample information on the atrocities and discussed the reports with the Japanese War Ministry, Hirota did not take any further actions. The Court held that: “Hirota was derelict in his duty in not insisting before the cabinet that immediate action be taken to put an end to the atrocities, failing any other action open to him to bring about the same result. He was content to rely on assurances which he knew were not being implemented while hundreds of murders, violations of women, and other atrocities were being committed daily. His inaction amounted to criminal 192 negligence”.

192

R. John Pritchard & S. Magbanua Zaide The Tokyo War Crimes Trials: The Complete Transcripts of the Proceedings of the International Military Tribunal for the Far East (New York: Garland, 1981) vol.

20, 791.

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The principle that can be derived from the jurisprudence that followed World War II, would be that those in the highest echelons of the military and political command had the duty to comply with the laws of war and also to effectively supervise their subordinates’ compliance.193 The doctrine of command responsibility was rather rarely applied in the years that followed. It was, however, significantly developed with the adoption, in 1977, of the Geneva Protocol I194 which included the doctrine of command responsibility in its articles 86(2) and 87. Article 86(2) of Protocol I provides: “The fact that a breach of the Conventions or of this Protocol was committed by a subordinate does not absolve his superiors from penal or disciplinary responsibility, as the case may be, if they knew, or had information which should have enabled them to conclude in the circumstances at the time, that he was committing or was going to commit such a breach and if they did not take all feasible measures within their power to prevent or repress the breach.”

Article 87 of this Protocol concerns duties for a commander to prevent any breaches of the Geneva Conventions. None of the command duties contained in these articles were contested during the deliberations that preceded the adoption of Geneva Protocol I, and theses articles were held to conform to the preexisting law on the subject.195 This doctrine was interpreted for the first time, in the context of modern warfare, when the conflicts in Yugoslavia and Rwanda arose. Celebici196 was the first case in which the ICTY held a defendant liable under the doctrine of command responsibility, rather than under charges for direct participation. The ICTY held that “the principle of individual criminal responsibility of superiors for failure to prevent or repress the crimes committed by subordinates forms part of customary international law.”197 Celebici concerned the murder and ill treatment of Serbs in a prison camp ran by

193

L. Bantekas, ‘The Contemporary Law of Superior Responsibility’, (1999) 93 American Journal of International Law, 573, 573 -574 (hereafter ‘Bantekas’).

194 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 UNTS 3.

195 The Yugoslav representative mentioned that command duties were present in “military codes of all countries”. CCDH/1/SR.71, 9 Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, 339, para. 2 (1978).

The Swedish representative offered a similar view. CCDH/I/SR.64, 4 Official Records, supra, 315, para.

61.

196 Prosecutor v. Delalic, Judgment No. IT-96-21-T (Nov. 16, 1998) (hereafter ‘Celebici’).

197 Ibid, para 343.

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Bosnians. In this case, the ICTY analyzed the elements of individual criminal responsibility under 7(3) of the ICTY Statute. This article provides that: “The fact that any of the acts […] was committed by a subordinate does not relieve his superior of criminal responsibility if he knew or had reason to know that the subordinate was about to commit such acts or had done so and the superior failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof.”

The Court determined that a superior should be held responsible for crimes committed by others if these three elements were present: (i) (ii) (iii)

the existence of a superior-subordinate relationship; the superior knew or had reason to know that the criminal act was about to be or had been committed; and the superior failed to take the necessary and reasonable measures to prevent the criminal act or punish the perpetrator thereof.198

It is important to note that the definitions of these criteria have generated much debate in the legal community. The following analysis will therefore concentrate on the general principles that can be inferred from the case law and the commentaries on it.

Criteria applicable to the doctrine of command responsibility The Existence of a Superior-Subordinate Relationship In Celebici,199 the Court determined that a superior, whether military or civilian, who had the power to control the acts of his subordinates and the corresponding duty to exercise this power so as to prevent and repress the crimes committed by them could be held liable for failing to do so. The authority of the superior can be de facto or de jure. The formal designation of a person as a commander or as a superior is therefore not necessary. Control exercised by the superior must be effective. The Court in Celebici mentioned that there is a threshold “at which persons cease to possess the necessary

198 199

Celebeci, para 346.

Ibid, para 377.

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powers of control over the actual perpetrators of offences and, accordingly, cannot properly be considered their "superiors"…”200 and then added: “…in order for the principle of superior responsibility to be applicable, it is necessary that the superior have effective control over the persons committing the underlying violations of international humanitarian law, in the sense of having the material ability to prevent and punish the commission of these offences. With the caveat that such authority can have a de facto as well as a de jure character, the Trial Chamber accordingly shares the view expressed by the International Law Commission that the doctrine of superior responsibility extends to civilian superiors only to the extent that they exercise a degree of control over their subordinates which is similar to that of military commanders.” (Emphasis added).201

According to this case, non-military civilians will therefore only be held responsible if they operate as military commanders and have the same degree of control as military commanders over their troops. In Kordic and Cerkez,202 the ICTY provided some examples of when a government official can be held liable under the doctrine of command responsibility: “It follows that a government official will only be held liable under the doctrine of command responsibility if he was part of a superior-subordinate relationship, even if that relationship is an indirect one. Even though arguably effective control may be achieved through substantial influence, a demonstration of such powers of influence will not be sufficient in the absence of a showing that he had effective control over subordinates, in the sense of possessing the material ability to prevent subordinate offences or punish subordinate offenders after the commission of the crimes. For instance, a government official who knows that civilians are used to perform forced labour or as human shields will be held liable only if it is demonstrated that he has effective control over the persons who are subjecting the civilians to such treatment. A showing that the official merely was generally an influential person will not be sufficient. In contrast, a government official specifically in charge of the treatment of prisoners used for forced labour or as human shields , as well as a military commander in command of formations which are holding the prisoners, may be held liable on the basis of superior responsibility because of the existence of a chain of command.

In sum, only those superiors, either de jure or de facto, military or civilian, who are clearly part of a chain of command, either directly or indirectly, with the actual power to control or punish the acts of subordinates may incur criminal responsibility.”

In this case, the ICTY found that even though Kordic was a civilian and a politician with tremendous influence and power in Central Bosnia and played

200

Ibid.

Ibid, para 378.

202 Prosecutor v. Kordic and Cerkez, Judgment No. IT-95-14/2 (Feb. 26, 2001) paras 415-416.

201

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an important position in military matters, even at time issuing orders, he lacked effective control to prevent or punish the crimes that had been perpetrated and could not be held liable under article 7(3) of the Statute.

In Prosecutor v. Akayesu,203 the ICTR Trial Chamber examined the case of Mr. Akayesu who had been elected as the mayor (bourgmestre) approximately one year before the genocide. The Court examined the doctrine of command responsibility which is stated under article 6(3) of the ICTR Statute and is similar to article 7(3) of the ICTY Statute.204 Mr. Akayesu was accused of crimes of sexual violence, categorized as a crime against humanity, and war crimes. The Court had to determine whether Mr. Akayesu had authority and control over local militia. It stated that the application of the principle of individual criminal responsibility, enshrined in article 6(3), to civilians remained contentious. The Court added that it is important to assess on a case by case basis the power of authority actually devolved upon the accused in order to determine whether or not he had the power to take all necessary and reasonable measures to prevent the commission of the alleged crimes or to punish the perpetrators thereof. The Court found that Mr. Akayesu had the necessary authority as the head of the communal administration, an officier de l'état civil, and a person responsible for maintaining and/or restoring the peace.

It further noted that “[i]n Rwanda, the bourgmestre is the most powerful figure in the commune”.205 Knowledge Under the ICTY and ICTR statutes, a superior can be held responsible for acts committed by his subordinates if (1) he or she knew or (2) had reason to know that the subordinates were about to commit such acts or had done so. In Celebici, the ICTY stated that under customary law:

203

Judgment, No. ICTR-96-4-T (Sept. 2, 1998) (hereafter ‘Akayesu’).

The Statute of the Special Court for Sierra Leone has also a similar provision. See article 6(3).

205 Akayesu, section 1.2, para. 2.

204

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“…a superior may possess the mens rea required to incur criminal liability where: (1) he had actual knowledge, established through direct or circumstantial evidence, that his subordinates were committing or about to commit crimes […], or (2) where he had in his possession information of a nature, which at the least, would put him on notice of the risk of such offences by indicating the need for additional investigation in order to ascertain whether such crimes were committed or were about to be committed by his subordinates.”206

In the absence of any actual knowledge (eg. when a superior personally witnesses an offence or is informed about it),207 a superior’s knowledge can be established through circumstantial evidence. In Celebici, the Court referred to a Report of the UN Commission of Experts, responsible for investigating the legal and factual basis for gross violations of humanitarian law in the former Yugoslavia to illustrate what type of evidence could be taken into account. In this report, the Commission noted that commanders “must have known” about the criminal activities of their subordinates based on: “The number of illegal acts; the type of illegal acts; the scope of illegal acts; the time during which the illegal acts occurred; the number and type of troops involved; the logistics involved, if any; the geographical location of the acts; the widespread occurrence of the acts; the tactical tempo of operations; the modus operandi of similar illegal acts; the officers and staff involved; and the location of the commander at the time.”208

It could be argued that the abundance of circumstantial evidence creates a presumption of knowledge. In fact, there are several judgments of military tribunals209 that support such a presumption. The ICTY however expressly rejected this affirmation in Celebici and held that no such presumption existed.210 The ICTY restated its position in Aleksovski but held that an individual’s superior position per se is a significant indicia that he had knowledge of the crimes committed by his subordinates.211 The Court, in interpreting the scope of article 7(3) of the ICTY Statute, in Celebici, also considered article 86 of Additional Protocol I as evidence of 206

Celebici, para. 383.

USA v. Toyoda, (Official Transcrit), pp. 5005-5006.

208 Final Report of the Commission of Experts, established pursuant to Security Council Resolution 780 (1992), UNSCOR, annex, UN Doc. S/1994/674, para. 58 (May 27, 1994) and Celebici, para. 386.

209 See In re Yamashita, 327 U.S. 1 (1946) and United States v. Von Leed (High Command Case), 11 Trial of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10, at 462 (1951).

210 Celebici, para. 384.

211 Prosecutor v. Aleksovski, Judgment No. IT-95-14/1 (June. 25, 1999) para. 80.

207

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customary law as it existed at the time of the commission of the alleged offences. The Court noted that an imputed knowledge element: “should have known” was initially included in article 86. It held that the drafters explicitly rejected the proposed inclusion of a mental standard according to which a superior would have been criminally liable for the acts of his subordinates in situations where he should have had knowledge concerning their activities.212 It also added that an amended version put forward by the United States employing the formulation "if they knew or should reasonably have known in the circumstances at the time" was also not accepted.213 This standard would have entailed, for a superior, a duty to be appraised of the actions of his subordinates, which presupposes a duty to collect information. Cryer notes that article 86(2) of Additional Protocol I may be more limited than custom, but it does not mean that it overturned the custom relating to this duty.214 With regard to the “had reason to know” standard, the ICTY held in Celebici that a superior cannot remain willfully blind to the acts of his subordinates. A superior who ignores information within his actual possession compelling the conclusion that criminal offences are being committed, or are about to be committed, by his subordinates could be held criminally responsible under the doctrine of command responsibility.215 It is argued that a presumption of knowledge in cases of notorious and widespread criminality represents an emerging rule of customary law.216 It is yet to be seen what other interpretations of the “knowledge” criteria will be given by courts.

Failure to Act

212

This assertion is controversial in the doctrine. See R, Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (Cambridge: Cambridge University Press, 2005), 321-322 (hereafter ‘Cryer’), and L. Bantekas, Principles of Direct and Superior Responsibility in International Humanitarian Law (Manchester: Manchester University Press, 2002) pp. 111-112.

213 Celebici, paras. 390-391.

214 Cryer, 321-322.

215 Celebici, para. 387.

216 Bantekas, 594.

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Article 7(3) of the ICTY Statute, Article 6(3) of the ICTR Statute and Article 86(2) of the Geneva Protocol I all create a duty for a superior to prevent crimes that are about to be committed and a duty to punish acts committed by his subordinates. In Celebici, the ICTY held that superiors have a legal duty to take all necessary and reasonable measures to prevent the commission of crimes by their subordinates or punish the perpetrators of these crimes if they have been committed. The Court emphasized the fact that the formulation of a principle in abstracto for the evaluation of the actions taken by a superior is not meaningful as the duties to prevent and punish are inextricably linked to the facts of each particular situation. The Court added that international law cannot force a superior to perform the impossible. A superior may only be held responsible for failing to take measures that are within his powers.217 In Akayesu, the Court found that the accused “had reason to know and in fact knew that acts of sexual violence were occurring on or near the premises of the bureau communal and that he took no measures to prevent these acts or punish the perpetrators of them.”218 Ilias Bantekas, in his article “The Contemporary Law of Superior Responsibility”,219 mentions that the mens rea for omission of the duties to prevent and punish is direct or indirect intention, or gross intention. Cassese220 distinguishes various situations in which a superior could be held responsible for acts of omission. First, a superior could be held liable if he knows that crimes are about to be committed by his subordinates and takes no action. In this situation, the superior’s responsibility would derive from (i) his knowledge or awareness that crimes are about to be committed, and (ii) his intention not to act, or at the minimum his recklessness, i.e. his awareness that his failure to prevent the actions of his subordinates risks bringing harmful consequences, and his decision not to act.

217

Celebici, paras. 394-395.

Akayesu, section 7.7, para. 691.

219 Bantekas, 593.

220 A. Cassese, International Criminal Law (Oxford: Oxford University Press, 2003) 209-211.

218

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Another situation would be where a superior has information which should enable him to conclude in the circumstances at the time that crimes are being or are about to be committed, and fails to act. In this case, recklessness or gross or culpable negligence could be sufficient to hold a superior liable. Finally, if a superior knows that crimes have been committed and fails to punish the perpetrators, he could be held liable if his knowledge of the crimes and his intention not to act or his culpable negligence are proven.

Much debate exists on the question of the mens rea required to convict a superior under the doctrine of command responsibility, particularly with regard to the “had reason to know” standard.

The ICC Statute The Rome Statute of the International Criminal Court entered into force on 1 July 2002. Article 28 expressly criminalizes omission with regard to superior responsibility.

It is interesting to note that this article creates a distinction between military (art.

28(1)(a)) and non military command (art. 28(2)(b)) and imposes a different standard of “required knowledge” for each type of command. Article 28(1)(a) requires that the military commander “knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes” while under article 28(2)(b), the superior “either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes”. The civilian standard is therefore lower that the military one which, by the “should have known” standard, imposes a duty to collect information on the commander. As explained by Vetter,221 it is difficult to evaluate if the civilian standard of responsibility departs from prior customary international law, notably due to the various interpretations that the doctrine of command responsibility has had in the jurisprudence. It can be argued that article 28(2)(b) merely codifies a lower standard that has been developing in international customary law or that this article establishes a new standard for international tribunals that incorporate a superior responsibility

221

Greg R. Vetter, ‘Command Responsibility of Non Military Superiors in the International Criminal Court (ICC)’ (2000) 25 YJIL 89, p.111.

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provision in their charters. One thing that is clear is that the drafters of the ICC Statute chose to expressly differentiate the superior responsibility of a military commander from that of a civilian superior. Vetter criticizes the new language as lessening the efficacy of the Permanent Court because it allows a lesser knowledge standard for civilians based on conscious disregarding of information. It can be inferred from this language that the prosecutor will have a higher evidentiary burden when the accused is a civilian superior rather than a military commander. Judgments from the ICC will hopefully elucidate the matter.

Cases on Genocide In Prosecutor v. ClĂŠment Kayishema & Obed Ruzindana,222 Dr Kayishema was the prefect of Kibuye prefecture. He was convicted on four counts of genocide under both articles 6(1) for direct responsibility and article 6(3) for superior responsibility. The court held that Kayishema was individually responsible for instigating, ordering, committing or otherwise aiding and abetting in the planning, preparation and execution of genocide by the killing and causing of serious bodily harm to Tutsis but also, for genocide, as superior, for the mass killing and injuring of Tutsis undertaken by his subordinates. The Court found that Kayishema had de jure control over most of the assailants and de facto control over all the attackers and held that the evidence proved that Kayishema was leading and directing the massacre. The Court added that since Kayishema himself participated in the massacres, it was self-evident that he knew that his subordinates were about to attack and failed to take reasonable and necessary measures to prevent them, when he had the material ability to do so.

The conviction of Kayishema under the doctrine of superior responsibility is questionable considering that he had participated in the atrocities. It seems that there would be no need to use article 6(3) when an accused is convicted of direct participation. It is unclear why the ICTR proceeded that way. This confusion is also present in Prosecutor v. Alfred Musema.223 Musema was the director of a tea factory in

222 223

Judgement, Case No. ICTR-95-1-T, 21 May 1999.

Judgement, Case No. ICTR-96-13-A, January 27, 2000.

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Kibuye prefecture. He was convicted for command responsibility for acts of genocide.

The Court found that: “Musema incurs individual criminal responsibility for the above-mentioned acts, on the basis of the provisions of Article 6 (1) of the Statute, for having ordered and, by his presence and participation, having aided and abetted in the murder of members of the Tutsi ethnic group, and for the causing of serious bodily and mental harm to members of the said group.

The Chamber notes that, in the instant case, it has been established that employees of the Gisovu Tea Factory were among the attackers. […]

The Chamber finds that it has also been established that Musema was the superior of said employees and that he held not only de jure power over them, but also de facto power. Considering that Musema was personally present at the attack sites, the Chamber is of the opinion that he knew or, at least, had reason to know that his subordinates were about to commit such acts or had done so. The Chamber notes that the Accused nevertheless failed to take the necessary and reasonable measures to prevent the commission of said acts by his subordinates, but rather abetted in the commission of those acts, by his presence and personal participation.” (Emphasis added).

Again, the approach taken by the ICTR is questionable. It seems that for the superior responsibility doctrine to be useful, it should cover ground beyond the reach of article 6(1).224 Application of the Doctrine to a Head of state There is no reason why the doctrine of superior responsibility should not apply to heads of state. If the criteria of superior/subordinate relationship, knowledge, and failure to act are met, a head of state could be held liable for acts of omission. The evidentiary burden should be rather high, since heads of state can exercise control in many ways without effectively acting as military commanders. Bassiouni and Manikas contend that: “The inquiry will usually start with the perpetrator of the violation and then gradually move up the chain of command to the superior who issued the order. Such a chain of command can, depending upon the factual circumstances, reach the highest echelon in the military hierarchy […] including the head of State.”225

The application of the doctrine of superior responsibility to a head of state has been rare. However, in 1998, the former prime minister of Rwanda, Jean Kambanda, 224

A. Zahar ‘Command Responsibility of Civilian Superiors for Genocide’ (2001) 14 LJIL 591, p. 604.

M. Cherif Bassiouni & P. Manikas The Law of the International Criminal Tribunal for the Former Yugoslavia (New York: Transnational Publishers, 1996) 346.

225

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pleaded guilty for crimes against humanity, complicity to homicide and other counts.

He notably pleaded guilty to charges that included article 6(3) ICTR Statute counts.

The guilty plea however exempted the Court from examining the application of the doctrine of superior responsibility under article 6(3) to a head of state. In 1999, Slobodan Milosevic was indicted for direct command responsibility and imputed responsibility under article 7(3) of the ICTY Statute for various crimes against Kosovo Albanians. It is yet to be seen how the Court will apply the doctrine of superior responsibility to this former head of state.

Conclusion The doctrine of superior responsibility is far from being clear. It is rather difficult to draw the delimitations of this concept due to its heterogeneous application in the case law. It seems that if a superior has effective control over his subordinates, proper knowledge that crimes are about or have been committed, and fails to prevent or punish the perpetrators, he could be held criminally liable for the offences. Problems with regard to the required mens rea need to be clarified.

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PART II : QUESTIONS 6, 11 & 12 For ease of reference, the Questions dealt with in this section of the opinion have been reproduced below:

•

6) Would Narendra Modi qualify as a Head of State?

•

11) On the basis of the facts presented to you in the suits filed in Himmatnagar, can a case of crimes against humanity or genocide under international customary law resulting in wrongful death be made out?

•

12) On the basis of the facts presented to you in the plaint, can an investigation be launched in any part of the world (in particular Spain), by the issuance of an international warrant of arrest?

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Question 6: Would Narendra Modi qualify as a Head of State?

Facts Mr Narendra Modi is the Chief Minister of the State of Gujarat, a position he has held since October 2001 in order to aid and advise the Governor of the State of Gujarat, Shri Nawal Kishore Sharma. Mr Modi was holding this position when the Gujarat riots took place on 27th February 2002. In the action raised by the plaintiff, Imran Mohammad Salim Dawood, a British citizen, Mr Modi is accused that his acts and omissions, as a hierarchical superior of the Prantji Police Station, contributed to the violation of the rights of the plaintiff, including perpetrating hate speech, offences relating to religion contained in Chapter XV of the Indian Penal Code, violation of fundamental rights of life, liberty and freedom of movement, perpetrating acts of genocide, torture, crimes against humanity, negligence, battery and assault, loss of property as well as mental pain, agony hock. He is also accused of being responsible not only for his own acts as agent of the State that caused and facilitated the violation of the rights of the Plaintiff as stated above, but also for acts of non-State players acting within the jurisdiction of the state of Gujarat.

Law A customary rule of international law provides that Heads of State enjoy certain rights and privileges, the most important of which is jurisdictional immunity. This has been sustained by eminent publicists226 and case law.227 In fact, it is a customary rule of international law that has been always uncontested.

226

Oppenheim’s International Law (9th ed. Longman 1996), vol. 1, 1042 et seq.; Sorensen M., Manual of Public International Law (ed. Macmillan, 1968), pp. 385-391; Rousseau C., Droit International Public (5th ed., Sirey, Paris, 1980), vol. IV, 117 et seq.; A. Watts The legal position in International law of Heads of State, Heads of Government and Foreign Minister, 247 Recueil des Cours 9; ‘The Jurisdictional Immunity of Foreign Sovereigns, 63 Yale LJ (1953-1954) 1148-1172.

227 Duke of Brunswick v. King of Hanover, 3 British International Law Cases 113; Mighell v. Sultan of Johore [1894] 1 QB 149; X v. Prince Lippe-Schaumbourg, 26 American Journal of International Law 1932 Special Supplement, 477; Khanji Kashari Khanji v. Gulam Ra Sul Chandbal [1955] All IR 499; Rahintoola v. Nizam of Hayderabad [1958] 1 AC 379; Village Holdings Sdn Bhd v. HM The Queen in Right of Canada 87 International Law Reports 223.

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The first question that immediately arises is: who qualifies as a Head of State? In default of any rule of international law providing a definition, recourse must be had to domestic legislation and jurisprudence. As Rousseau argues: “…Whatever the name of the title given to the Head of State, it is up to the domestic law and, specially, to the Executive to which he belongs to, to determine the State organ that has to qualify as a Sovereign.”228

Therefore, it is to Indian law that reference should be made. Under Article 1 of the 1950 Constitution, as amended, India is a Union of States. Article 3 of the Constitution provides that the Parliament can ordain the formation of new States and the alteration of areas, boundaries or names of existing States. Articles 52 and 53 regulate the function of the President of India as Head of the Executive. Article 153 provides that every State constituting the Union shall have a Governor appointed by the President in accordance with article 155. The Governor is assisted in the performance of his duties by a Council of Ministers according to the provisions of Article 163. Head of the Council of Ministers is the Chief Minister. His duties vis-à-vis the Governor are illustrated in Article 167. Article 253 provides that legislation for giving effect to international agreements shall be passed by Parliament. Article 258 regulates the power of the Union to confer powers on States and Article 258A the power of a Governor to entrust powers, vested to him, to the Government of India, only after the latter’s consent. The President, Governors and Rajpramukhs are rendered immune as long as their office lasts, as Article 361 provisions. Article 362 on the rights and privileges of Rulers of Indian States has been repealed by virtue of the 26th Amendment Act, 1971.

Finally, Article 363A provides that, notwithstanding anything in this Constitution or in any law for the time being in force, the recognition granted to Rulers of Indian States ceases to exist and that privy purses are abolished.

Furthermore, the Indian Code of Civil Procedure of 1908, as amended, in section 86 enshrines the doctrine of sovereign immunity of foreign Rulers. Section 87 provides for the meaning of the terms “foreign State”229 and “Ruler”230 and section 87A extends the

228

C. Rousseau C Droit International Public (5th ed., Sirey, Paris, 1980), vol. IV, 124 (translation by the authors of the present Opinion).

229 "Foreign State" means any State outside India which has been recognised by the Central Government.

230 "Ruler", in relation to a foreign State, means the person who is for the time being recognised by the Central Government to be the head of that State.

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protection of the previous section to Rulers of former Indian States, only for causes of action having arisen prior to the commencement of the Constitution. There has been case law before English and Indian Courts where Rulers of Indian States were recognised as Heads of State and, subsequently, the doctrine of sovereign immunity protected them against actions brought in foreign courts.231 In all these cases, the Rulers of Indian States, within the limitations imposed upon them by the constitutional arrangements, were recognised as sovereign rulers of States.232 This conclusion was reinforced by the fact that these States had acceded to the Dominions of India or Pakistan and that the subjects of the Rulers retained this capacity together with their Indian or Pakistani citizenship.233 However, in one occasion it was stated by the learned judges that: “…the Indian States ceased to have any independent existence and ultimately became merged with India to form the Union of India.”234

Conclusions Taking into consideration all the above, we conclude that: 1. The Republic of India, as a Union of States, has one, indivisible international legal personality. In its foreign affairs it is represented by the President, who is also qualified as Head of State and enjoys the right of sovereign immunity.

2. A combined reading of Articles 3, 153, 253, 258 and 258A of the 1950 Constitution, as amended, shows that the competence of competence (Kompetenzkompetenz) lies within the Union rather than the States. Therefore, the States have neither conferred competence to the Union nor are the States sovereign.

3. It derives from Articles 153 and 163 of the Constitution that the Governors are the Heads of the States forming the Union, whereas the Chief Ministers are

231

Sayce v. Ameer Ruler Sadig Mohammad Abbasi Bahawalpur State [1952] 2 QB 390; Maharaja Bikram Kishore of Tripuna v. Province of Assam 22 International Law Reports (1958), 64; Bhimaji Narasu Mare v. Vijayasinvrao Ramrao Dale 22 International Law Reports (1955) 67; Maharaj Indrajitsinghji Vijaysinghji v. HH Maharaja Rajendrasinghji Vijaysinghji 22 International Law Reports (1955), 244-256; Rewa Shautar v. Narasinghji Maharaj 24 International Law Reports (1957), 229-230; Mandalsa Kumari and Others v. M. Ramnarain Private Ltd 27 International Law Reports (1958), 109.

232 Sayce v. Ameer Ruler Sadig Mohammad Abbasi Bahawalpur State [1952] 2 QB 390.

233 Ibid.

234 Bhimaji Narasu Mare v. Vijayasinvrao Ramrao Dale 22 International Law Reports (1955) p. 67.

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merely the Heads of the Council of Ministers appointed to aid and assist the Governors in their duties. It is true that under the democratic system of government adopted by the States, the initiative of decision-making lies with the Chief Minister and the Council and not within the Governor. However, this does not alter the fact that the Head of the State is the Governor and not the Chief Minister.

4. No argument can be derived from the case law mentioned above in favour of the proposition that the Heads of the Indian States are Heads of State. This is because the Maharajas and other Rulers of States outside British India were under the suzerainty of His or Her Majesty, thus recognised by the British Crown as sovereigns but not fully independent. According to the Independence of India Act, 1947, the suzerainty of His Majesty over the Indian Rulers lapsed and the Indian States (meaning the States outside British India) opted for either the Dominion of India or the Dominion of Pakistan. The Indian States that opted for India, merged with India to form the Union and, thus, relinquished their sovereignty. In other words, it was their sovereignty, even limited by suzerainty to the British Crown, which made the Rulers of Indian States enjoy sovereign immunity. As soon as the incorporation in India took place, the sovereignty of the Indian States disappeared. This is reinforced by the fact that, unlike in the Sayce v Ameer Ruler case, there is no Accession Instrument of Gujarat to India and the citizens of Gujarat have one nationality, namely, the Indian one.

5. Under Indian national law, the issue of immunity of state officials is governed by the Constitution and the Code of Civil Procedure, 1908, as amended. Article 361 of the Constitution confers immunity only to the President, the Governors and the Rajpramukhs; not to the Chief Ministers. The Chief Minister does not fall under the scope of provisions of Sections 86, 87 and 87A of the Code of Civil Procedure, as he is neither Ruler of foreign State nor Ruler of former Indian State.

6. Mr Narendra Modi, as Chief Minister of the State of Gujarat, does not qualify as a Head of State, neither as a notion of public international law, nor as a notion of Indian constitutional law. Even if he did qualify as a Head of State under public international law, he would still not enjoy sovereign immunity before the Indian courts, but only before foreign courts.

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Question 11: On the basis of the facts presented to you in the suits filed in Himmatnagar, can a case of crimes against humanity or genocide under international customary law resulting in wrongful death be made out?

A caveat needs to be entered before the analysis is undertaken. Both genocide and crimes against humanity are crimes committed by individuals. Although characterising a situation as ‘genocidal’ may be useful ultimately to fix responsibility on the leaders using the doctrine of command responsibility, a criminal trial will necessarily focus on the acts and omissions of the accused in question. Thus it is important to note that the present answer deals primarily with the liability of offenders on the ground and not the more specific question of the liability of the leaders concerned, who may, indeed, be liable only for their omissions. In relation to liability for omissions, it is suggested that reference be made to the answers to questions 8 & 9, in Part I of this Opinion.

Was it Genocide?

The definition of genocide in Article 6235 of the Rome Statute is the same as the definition in Article II of the Genocide Convention, 1948.236 To prove the crime of genocide, the prosecution needs to establish a ‘specific intent’ of the perpetrator to destroy a protected group. This group has to be a national, racial, ethnic or religious group. The quantitative dimension of genocide involving the intentional destruction of a group in whole or in part also belongs to the mental element

235

Article 6 – Genocide: For the purpose of this Statute, ‘genocide’ means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.

236

Convention on the Prevention and Punishment of the Crime of Genocide, available at <http://www.unhchr.ch/html/menu3/b/p_genoci.htm>.

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and not the material element of the crime of genocide.237 Besides this, Article 30 of the Rome Statute imposes a separate obligation to prove ‘knowledge’ and ‘intent’ to establish mens rea in all cases. Further, the actus reus (the physical element) for the crime of Genocide is any of the five acts in sub-clauses (a) to (e) of Article 6 of the Rome Statute. All of the elements that constitute the crime of genocide are taken up separately in what follows and examined in the context of Gujarat.

Group A protected group, for the purposes of genocide, has to be national, ethnical, racial or religious. The target group in the crimes committed in Gujarat was the Muslims, who belonging to a particular religion, are clearly a protected group under the definition of genocide.

In the case of Sikirica et. al., the ICTY agreed with “the prosecution’s submission that the intent to destroy a multitude of persons belonging to a group may amount to genocide, even where these persons constitute only part of a group within a given geographical area: a country or a region or a single community……. Whether the group belongs to a country or a region or a single community, it is clear that it must belong to a geographic area, limited though it may be.”238 The trial chamber drew support from the judgments in Akayesu, which dealt with a single commune where the accused was bourgemestre239 and from the Jelisic Trial Judgment, where it was held that customary international law permits the characterization of genocide even when the discriminatory intent only extends to “a limited geographic zone”.240 Therefore, Muslims in Gujarat would constitute a ‘group’ for the purposes of the definition of genocide.

Actus Reus 237

William A. Schabas Genocide in International Law: The crime of Crimes (Cambridge: Cambridge University Press, 2000), 158 (hereafter ‘Schabas’).

238 Case No.: IT-95-8-T, para 68.

239 The Prosecutor v Jean-Paul Akayesu Case N. ICTR 96-4-T, paras. 48-49, 129, 675 and 734 (hereafter ‘Akayesu’).

240 Prosecutor v. Goran Jelisic, Case No. IT-95-10-T, ICTY T. Ch. I, 14 Dec. 1999, para. 83 (hereafter ‘Jelisic’).

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Killing Members of the groupAccording to official estimates, more than 850 people were killed in the communal violence that took place in Gujarat from 27th February 2002, most of them being Muslims. Unofficial figures put the toll to over 2000.241 There is no minimum numerical requirement for the number of people actually killed for genocide to be established. A 1982 Resolution of the United Nations General Assembly declared the massacre of a few hundred victims in the Palestinian refugee camps of Sabra and Shatila an ‘act of genocide.’242 This aspect has been further clarified under the Elements of Crimes under the Rome Statute, which, while enumerating the elements under Article 6(a) says that the perpetrator should have killed ‘one or more persons’ belonging to that group. The Elements also insist that ‘killing’ is interchangeable with ‘causing death’. This phrase as understood in the Elements connotes intentional omission that leads to the death of the victim.243 (b) Causing serious bodily or mental harm to members of the group Causing serious bodily harm means serious acts of physical violence falling short of actual killing.244 In Prosecutor v. Kayishema and Ruzindana245 the Rwandan Tribunal defined the phrase as “harm that seriously injures the health, causes disfigurement or causes any serious injury to the external, internal organs or senses”. The harm inflicted need not be permanent nor irremediable.246 Rape and sexual violence have now been clearly established to constitute ‘serious bodily or mental harm’ after the ICTY in Akayesu judgment said:

241

Human Rights Watch, ‘We have no orders to save you’, http://www.hrw.org/reports/2002/india/ GA Res. 37/123 D, 16 Dec 1982. However, it must be conceded that the legal effect of a General Assembly resolution is highly debatable and may depend on a number of accompanying circumstances.

See generally: Richard A. Falk, ‘On the quasi-legislative competence of the General Assembly’ 60 AJIL (1966) 782.

243 K. Kittichaisaree International Criminal Law (Oxford: Oxford University Press, 2001), 78.

244 Schabas, 159.

245 ICTR-95-1-T, para 109, available at <www.ictr.org>.

246 Akayesu, para 108-110.

242

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“Indeed, rape and sexual violence certainly constitute infliction of serious bodily and mental harm on the victims and are even, according to the Chamber, one of the worst ways of inflict [sic] harm on the victim as he or she suffers both bodily and mental harm. In light of all the evidence before it, the Chamber is satisfied that the acts of rape and sexual violence described above, were committed solely against Tutsi women, many of whom were subjected to the worst pubic humiliation, mutilation, and raped several times, often in public………and often by more than one assailant………”247

This view has been incorporated in the Rome Statute, Elements of Crimes under Article 6(b), the footnote to Element 1, which reads that causing serious bodily or mental harm ‘may include, but is not necessarily restricted to, acts of torture, rape, sexual violence or inhuman or degrading treatment.’

Although the acts of rape and sexual violence significantly contribute to the destruction of a group in whole or in part, the law does not insist on the proof of this causal link.248 All that the prosecution needs to prove is that one or more victims actually suffered physical or mental harm, which is amply done by the above evidence.

In the case of Gujarat, hundreds were killed and seriously injured. The death and destruction was either not opposed or tacitly supported by the government officials. (Plaint, para 38) The plaintiffs themselves were injured and their companions killed. A clear case of omission against defendants 1-8 to prevent these acts has also been made out. The intelligence bureau of the government of Gujarat had warned the state police about possible communal violence time and again in February 2002. (Plaint, paras 19-21) The conduct of the state machinery was found wanting by both the National Human Rights Commission and the Election Commission. (Plaint, para 40) Mens Rea: Article 30 of the Rome Statute declares that the mens rea of the crimes within the jurisdiction of the court has two elements: knowledge and intent.

247 248

Ibid, para 731.

Schabas, 164-65.

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(a) Knowledge Article 30(3) of the Rome Statute defines knowledge as “awareness that a circumstance exists or a consequence will occur in the ordinary course of events”. The International Law Commission considered the question of knowledge in the commentary on its draft “Code of Crimes against the Peace and Security of Mankind” as follows: “The definition of the crime of genocide requires a degree of knowledge of the ultimate objective of the criminal conduct rather than knowledge of every detail of a comprehensive plan or policy of genocide”.249

The threshold requirement of knowledge is very low, as is discernible from the debates in the Preparatory Commission for the ICC.250 It also includes cases of ‘wilful blindness’, where an individual deliberately fails to enquire into the consequences of certain behaviour and where the person knows that such inquiry should be undertaken.251 Knowledge of the genocidal plan or policy, or the wider context in which the act occurs should not be confused with knowledge that these amount to genocide as a question of law.252 In Akayesu, the ICTR held that the killings in Taba were openly committed and so widespread that, as bourgmestre [an official in charge of a region], Akayesu must have known about them.253 So, the officials, ministers and the police cannot claim that they did not know of the mass killings. Given the low threshold requirement, this much should suffice in establishing knowledge on the part of the accused. (b) Specific Intent Intent, as required to be proved generally for all crimes, is defined in Article 30(2) of the Rome Statute to mean:

249

Ibid, 210.

Ibid, 212-13.

251 Ibid, 212-213.

252 Ibid, 211.

253 Akayesu, para 12.

250

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(a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.

However, in the case of genocide, establishing ‘intent’ according to the above definition is not enough. A higher degree of ‘specific intent’ or a dolus specialis needs to be proven.254 This is derived from the chapeau of the definition of genocide, which insists on the proof of an ‘intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such’. This is easily the most important element of genocide – the most difficult to prove, as well as the element which sets genocide apart from all other crimes. So, the general intent to commit one of the enumerated acts combined with a general awareness of the probable consequence of such an act with respect to the immediate victim or victims is not sufficient for the crime of genocide.255 In Akayesu, this specific intent was defined as follows: “the specific intention, required as a constitutive element of the crime, which demands that the perpetrator clearly seeks to produce the act charged. Thus, the special intent in the crime of genocide lies in ‘the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such”.256

Proving a genocidal intent requires the satisfaction of a very high threshold. It was only with the establishment of the ICTR and the ICTY that actual convictions for genocide took place, and therefore the law relating to the manner of proving such intent has only recently been articulated. In Akayesu, the ICTR held that: “in the absence of a confession from the accused, his [special] intent can be inferred from a certain number of presumptions of fact…… it is possible to deduce the genocidal intent inherent in a particular act charged from the general context of the perpetration of other culpable acts systematically directed against that same group, whether these acts were committed by the same offender or by others. Other factors, such as the scale of atrocities committed, their general nature, in a region or a country, or furthermore, the 254

Schabas, 214.

Ibid, 219.

256 Akayesu, para. 497.

255

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fact of deliberately and systematically targeting victims on account of their membership of a particular group, while excluding the members of other groups, can enable the Chamber to infer the genocidal intent of a particular act.”257

The following points make out a strong case for the presence of this specific intent.

First, the Trial Chamber of ICTY, in its Rule 61 hearing in Prosecutor v.

Karadzic and Mladic258, noted that genocidal intent may be implied by the general political doctrine giving rise to the criminal acts, or the repetition of destructive and discriminatory acts. It further said in the context of the Serbian Democratic Party in Bosnia and Herzegovina that: “the project of an ethnically homogenous State formulated against the backdrop of mixed populations necessarily envisages the exclusion of any group not identified with the Serbian one …”259

Analyzing the above judgment in the context of the history and the political philosophy of the groups responsible for the Gujarat violence gives stark parallels. The groups most directly alleged to be responsible for violence against Muslims in Gujarat include the Vishwa Hindu Parishad (VHP) and the Bajrang Dal, sister organizations of the party ruling both at the Centre and the State of Gujarat (Bharatiya Janata Party, BJP), all belonging to the umbrella organization the Rashtriya Swayamsevak Sangh (RSS). All these organizations collectively form the sangh parivar (or “family” of Hindu nationalist groups).

These organizations espouse a right wing Hindutva ideology with the ultimate aim of the creation of a Hindu State in India, in total opposition to the values of equality enshrined in the Indian Constitution. (Plaint, para 8) Several acts of the Government of Gujarat indicate a policy of exclusion and marginalisation of minorities. In, or about, July 1998 police cells for monitoring inter religious marriages were set up in Gujarat. They were justified by the then State Home Minister on the grounds that such marriages were not made of free 257

Akayesu, para 523.

Case No. IT-95-5-R61, IT-95-18-R61, para 84.

259 Ibid, para. 94.

258

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choice but were forced on Hindu women. (Plaint, para 10) In, or about, 1999, the government of Gujarat introduced in the social studies texts concepts like, ‘Muslims, Christians and Parsees are foreigners’ and the glorification of fascism and Nazism. (Plaint, para 14) In January 2002, the government of Gujarat headed by Mr. Modi issued a circular directing schools to conduct Hindu pujas in all schools to mark the anniversary of the earthquake in Bhuj, Gujarat.

(Plaint, para 17) This suggests an ideological bias against non-Hindus in general and Muslims in particular.

Secondly, genocidal intent to wipe out the group can be established even on the basis of statements made by the leaders, songs and slogans used etc. when the violence was taking place, as was the case in Akayesu.260 Praveen Togadia, International General Secretary of the VHP, said in an interview: “Hindu society will avenge the Godhra killings. Muslims should accept the fact that Hindus are not wearing bangles. We will respond vigorously to all such incidents.”

While the Chief Minister Modi said on national television “… we will set an example that nobody, not even in his dreams, thinks of committing a heinous crime like this.’ Both these comments were made in the immediate aftermath of the trainburning incident and before the mass violence had broken out. (Shirin, para 23) The mobs raised slogans like “Mian ne Pakistan Moklo” [Send Muslims to Pakistan] and ‘Maro, Mian log no kapi do’ [‘Kill the Muslims’].” (Plaint, para 38)

Thirdly, the act of separating and killing Tutsis in itself along with the propaganda campaign on the radio that established the specific intent261 find their parallels in Gujarat. The propaganda inciting the genocide in Akayesu’s case identified the group as the enemy “by branding the RPF fighters and Tutsi civilians together, through dissemination via the media the idea that every Tutsi was allegedly an accomplice of the Inkotanyi’.262

260

Akayesu, para 118.

Ibid, para 123.

262 Ibid, para 127.

261

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In the present case, between October 2001 and February 2002, pamphlets advocating the economic boycott and annihilation of the Muslim community were widely distributed in Gujarat. No action to prevent their circulation was taken by defendants 1-7. (Plaint, para 16) On February 28, the Vadodara edition of Sandesh, a local Gujarati language paper headline read: “Avenge blood for blood”. It further reported – “Ahmedabad, Vadodara and Rajkot have partly avenged the killings of Hindus in Godhra. In the case of Bhavnagar, the gutless leaders are hiding their faces under the guise of non-violence”. The state officials took no action to prevent or prosecute the publishers. (Plaint, para 32) These events were followed by speeches, which legitimized what had happened and in fact made a case for a similar cleansing in other parts of the country. For example, K.K. Shastri, President of the VHP, said in an interview: “we were terribly angry over Godhra. Hindutva was attacked. This is … a terrible outburst that will be difficult to roll back. … we can’t condemn it because they are our boys.” (Plaint, para 31)

The Chief Minister Modi justified the violence citing Newton’s laws to say it was a natural reaction to the burning of the train. (Plaint, para 34) Fourthly, the ICTR points out that it is necessary, in order to show such intent, to establish that the victims were members of a particular group and were chosen for the reason only of belonging to that group: “…it was indeed a particular group, the Tutsi ethnic group, which was targeted.

Clearly, the victims were not chosen as individuals but, indeed they belonged to said group; and hence the victims were members of this group selected as such. According to Alison Desforges’s testimony, the Tutsi were killed solely on account of having been born a Tutsi.”263

Many incidents described in the Plaint show that just like in Rwanda where “Tutsi women were subjected to sexual violence because they were Tutsi”,264 263 264

Ibid, para 124.

Ibid, para. 731.

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women in Gujarat were raped and killed only because they were Muslims.

(Plaint, para 37) Without exception, the Hindu-owned establishments neighbouring the destroyed structures were unscathed. (Plaint, para 36) The mobs were seen carrying lists with full details of Muslim houses and establishments which were to be targeted. (Plaint, para 31) The National Human Rights Commission report also talks about how Muslim Judges even of the High Court, members of legislative assembly and Parliament, police officers etc. were also targeted (Plaint, para 38F). It is undoubtedly clear from the various events described in the Plaint, particularly at para 38, that the only basis for choosing the victims was their belonging to a particular protected group, in this case Muslim.

Fifthly, although the Genocide Convention does not recognize cultural genocide as a criminal act falling within its scope, proof of attacks directed against cultural institutions or monuments, committed in association with killing, may prove important in establishing the existence of a genocidal rather than merely a homicidal intent.265 As was noted by the ICTY, “…the destruction of mosques or Catholic churches is designed to annihilate the centuries-long presence of the group or groups…”266 More than 504 Muslim shrines, dargahs and mosques were destroyed, sometimes using bulldozers and cranes. In some cases, Hindu idols were installed in these shrines. (Plaint, para 35) Sixthly, it was held by the ICTY that the existence of a plan was not a legal ingredient of the crime of genocide but could be of evidential assistance to prove the intent of the authors of the criminal act(s).267 The policy aspect behind the crimes committed in Gujarat have been analyzed in detail in the subsequent

265

Schabas, 223.

Case No. IT-95-5-R61, IT-95-18-R61, para 94.

267 Jelisic, para. 48. See also Prosecutor v Kristic, Case No IT-98-33, Trial Chamber, 572 (hereafter ‘Kristic’): ‘[e]vidence presented in this case has shown that the killings were planned: the number and nature of the forces involved, the standardised coded language used by the units in communicating information about the killings, the scale of the executions, the invariability of the killing methods applied, indicate that a decision was made to kill all the Bosnian Muslim military aged men’.

266

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section dealing with ‘crimes against humanity’ while determining whether the attacks in Gujarat were ‘systematic’.

The final requirement to establish genocidal intent is to show that the destruction of the group was intended to be ‘in whole or in part’. Though theoretically the actual destruction can be miniscule in terms of the number of victims, in practice, the greater the number of victims, the easier it will be for the prosecution to establish genocide.268 Also, there is a great debate on whether the intent must be to destroy a substantial part of the group, and how substantial should that part be. The law on this point is unsettled.269 Many statements emanating from the VHP and BJP leadership, including the Chief Minister, express a sentiment of ‘teaching them a lesson’. Mr. Modi talked of “setting an example” (Plaint, para 23). These statements in themselves may not meet the threshold requirement of establishing an intent to destroy the group, in whole or in part. How substantial should the part be is a crucial but unsettled area of law. It is important to emphasise again that, its evidentiary weight notwithstanding, the legal question is not what part of the group was actually destroyed. An intention to destroy a substantial part, even if it fails to realise its objective, is sufficient.

Were crimes against humanity committed?

A crime against humanity is a crime against ‘humaneness’ that becomes the concern of the international community.270 Article 7 of the ICC defines crimes against humanity.

Its chapeau reads “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. The definition then goes on to list certain offences such as murder, extermination, enslavement, rape, sexual slavery, persecution,

268

Schabas, 234.

Ibid, 230-239.

270 K Kittichaisaree, International Criminal Law (Oxford: Oxford University Press, 2001), 85.

269

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apartheid etc. which need to be proved along with the criteria laid down in the chapeau for the crime to be proved. Four important features of the chapeau are:271 1. the absence of a requirement of a nexus to armed conflict, 2. the absence of a requirement of a discriminatory motive, 3. the ‘widespread or systematic attack’ criterion, and 4. the element of mens rea.

The absence of the requirement of an armed conflict is a development in international law which makes the Rome Statute applicable even during times of peace or civil strife, e.g. in cases like Gujarat.

Actus Reus & Mens Rea The major respect in which this crime differs from that of genocide is the absence of the requirement of a specific intent to destroy a group. An exception to this general rule, of course, is the requirement of proof of a discriminatory motive for the specific crime of persecution.272 The crime of persecution is defined by Article 7(2)(g) as ‘the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity’. Of course, even in this case, the threshold level of proof of the intent seems to be lower than that in the case of genocide, with the International Law Commission saying that even where specific intent of genocide cannot be established, the crime may still meet the conditions of the crime against humanity of ‘persecution’.273 So, in case of persecution, the perpetrator selects her victims because of their membership in a specific community but does not necessarily seek to destroy the community as such.274 For this reason, all that has been said in the previous section, while trying to establish the proof for the specific intent of genocide is equally valid here, and what suffices for genocide certainly does so, with a lower threshold, to a crime like persecution.

271

D. Robinson ‘Defining “Crimes Against Humanity” at the Rome Conference’ 93 AJIL (1999) 43, 45 (hereafter ‘Robinson’).

272 Ibid, 46.

273 ‘Report of the International Law Commission on the Work of its Forty-Eighth Session’, 6 May-26 July 1996, UN Doc. A/51/10, 87.

274 Kristic, 553.

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Equally applicable is the descriptions given previously about the murders, torture and sexual violence that were perpetrated in Gujarat to establish the actus reus of the crimes against humanity, and is therefore not repeated here. In this section, the focus is on the question whether the incidents in Gujarat satisfy the requirement of the chapeau of Article 7.

The definition also has an element of mens rea inasmuch as the accused, beyond having the mens rea to commit the specified acts, and while not necessarily responsible for the overarching attack against the civilian population, must at least have knowledge of the attack.275 However, given the inescapable notoriety of any widespread or systematic attack against a civilian population, it is difficult to imagine a situation where a person could commit a murder as part of such an attack while credibly claiming to have been completely unaware of that attack.276 ‘widespread or systematic attack’ This is a stringent threshold requirement test. The concept of ‘widespread’ may be defined as “massive, frequent, large-scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims. The concept of ‘systematic’ may be defined as thoroughly organized and following a regular pattern on the basis of a common policy involving substantial public or private resources.”277 Thus, it requires a high degree of orchestration and methodical planning. These qualifiers are disjunctive, i.e. any one of them may be proved.278 In practice, however, it is difficult to separate the widespread and the systematic nature of the attack since the widespread attack aimed at a large number of victims is generally carried out with some kind of planning or organization.279 As a compromise to having a disjunctive requirement of ‘widespread or systematic attack’, during the negotiating process, a safety net was incorporated in the definition of

275

Robinson, 51.

Ibid, 52.

277 Akayesu, para. 6.4.

278 Robinson, 47.

279 Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-T, T.Ch. I of the ICTY, 3 March 2000, para 207 (hereafter ‘Balskic’).

276

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‘attack directed against any civilian population’ in Article 7(2)(a) as being ‘a course of conduct involving the multiple commission of acts [enumerated as crimes against humanity] against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack’. This qualification requires some degree of scale as well as a policy element. This latter requirement is a conjunctive but low threshold test.280 By use of the phrase ‘course of conduct’, it rules out a singular act as amounting to a crime against humanity. However, a few points should be borne in mind. Firstly, this is not a reintroduction of the ‘widespread’ attack requirement, having a much lower threshold than the latter. Secondly, it need not be proven that the accused personally committed multiple offences, her acts, even if singular, must have been committed as part of the broader attack.281 The use of the word ‘directed’ implies an element of planning and organization.282 Again, this is not the reintroduction of the ‘systematic’ attack requirement but has a much lower threshold level.283 Secondly, it does not require an official or State policy. The Tadić opinion and judgment acknowledges that the entity behind the policy could be an organization with de facto control over the territory, and leaves open the possibility that other organizations might meet the test as well.284 Let us first consider the criteria of a widespread attack as well as the one requiring a course of conduct in the context of Gujarat and see whether each of them is satisfied. In the case of Gujarat, hundreds were killed and seriously injured. The death and destruction was either not opposed or tacitly supported by the government officials.

(Plaint, para 38) In Ahmedabad itself, there were 98,000 refugees, while there were another 76,000 people in relief camps outside Ahmedabad. (Plaint, para 44) The attacks engulfed almost the whole of Gujarat.

280

Robinson, 51.

Ibid, 48.

282 Ibid, 48.

283 Ibid, 50.

284 Prosecutor v. Tadić, Opinion and Judgment, Case No. IT-94-I-T, 7 May 1997, paras 654-55 (hereafter ‘Tadić’).

281

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While this certainly establishes that the attacks formed a course of conduct and were not isolated events, whether these facts also satisfy the higher threshold requirement of the attacks being ‘widespread’ or not is debatable. This is especially in light of the ambiguity surrounding the concept of ‘widespread’ which has not received enough judicial attention, given its recent history. Were the attacks massive, frequent, largescale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims? The problem with this definition is that all the terms used by it are relative in nature, and leaves the question open as to how widespread is widespread? It therefore becomes very difficult to predict the reaction of a tribunal judging the issue.

However, the answer to the above question is crucial, because if the attacks are also proved to be widespread, all that is left to be proved is the existence of a state or organizational policy behind these attacks to establish that crimes against humanity were committed in Gujarat. On the other hand, if this requirement is not satisfied, the more stringent requirement of the attacks being systematic will require proof. However, leaving this question open, it is useful to examine the systematic and policy aspects of the attacks.

Authorities have held that the policy can be gathered from the acts themselves; for example, the widespread or systematic nature of the acts may itself evince a policy. In Tadić, the ICTY noted that to prove this policy requirement, the policy need not be formalized.285 This is despite the fact that the connection between the act and the policy concerned may be denied by the relevant authorities or apparatus of that policy.286 Also, systematic has been held to mean “thoroughly organized and following a regular pattern on the basis of a common policy involving substantial public or private resources”.287 Thus, by definition, the policy element will stand proved once the systematic nature of the attacks is established.

285

Tadić, para. 653.

Prosecutor v. Zoran Kupreskic and others, Case No. IT-95-16-T, ICTY T.Ch. II, 14 Jan. 2000, paras 551-5.

287 Akayesu, para. 6.4.

286

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In the present case, the VHP called for a bandh on the 28th of February, 2002, which was supported by the Chief Minister, in defiance of his legal and constitutional duties.

The governmental support for the bandh, and the fact that the law and order machinery was disabled, made it easier for the violence to be perpetrated. (Plaint, para 24) The Chief Minister called a meeting of senior police officers and his cabinet colleagues on the 27th of February and instructed them to not take any action during the bandh. As a result of these instructions, the defendants nos. 3-7, through the police force, enabled and protected the mobs unleashing violence on the Muslims in Gujarat. There was no police intervention to protect the Muslims from the mobs on the day of the bandh, i.e.

28th of February 2002. (Plaint, para 25) Another meeting of senior cabinet ministers took place in Lunavada village, Sabarkantha District, where plans were drawn and instructions issued to the top leadership of the BJP, VHP, Bajrang Dal and the RSS. Police control rooms were taken over by two ministers and pleas for help and support were turned down. Police officers who refused to follow these instructions and continued to perform their legal and constitutional duties were ordered specifically to release the leaders of the mobs. (Plaint, paras 26 & 43)

The existence of a political agenda or ideology to destroy, persecute or weaken a particular community coupled with institutions to implement that policy, the involvement of political or military authorities at a high level are among the factors that may evince the systematic character of an attack.288 For proof of the political philosophy behind these attacks, reference may again be made to the section on genocide where this aspect has been dealt with in detail under the discussion of the specific intent element of genocide.

In the present case, two circulars were issued by the State of Gujarat in February 1999 to collect sensitive information about Christians and Muslims. These were challenged in the Gujarat High Court, consequent upon which they were withdrawn. (Plaint, para 11) From 1998 onwards, there was a policy of withdrawing, as far as possible, all Muslim officers in the government of Gujarat employment from field postings. (Plaint, para 12) Between October 2001 and February 2002, the VHP openly organized Trishul Diksha Samarohs widely in the State of Gujarat which were used as fora to incite 288

Jelisic, para 53; Blaskic, para 203.

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communal passions and shout anti-Muslim and anti-Christian slogans coupled with distribution of trishuls and guptis, and advocating violence against minorities. The defendants nos. 1-7 failed to take any action to prevent or control these activities, thought legally and constitutionally obliged to do so. (Plaint, para 15)

The degree of planning that went into the attacks is further evidenced by the attacks that took place on Muslim business establishments. The attackers had precise knowledge of the ownership of the shops and restaurants, and even those businesses which did not appear to be Muslim owned but were actually so owned were targeted. (Plaint, para 36)

The involvement of high ranking Ministers and government officials in the attacks only further substantiate the case that the attacks followed a state/organisational policy and used public resources for their commission. (Plaint, para 26)

The indications of an organizational policy are further strengthened by the statements made in the aftermath of the attacks, as noted previously.

Further, as noted in a footnote to Element 3 under the Elements of Crimes against Humanity, in exceptional circumstances, the policy may be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack. However, this should not be the sole basis to prove the policy.

Though the army arrived in Gujarat soon after the Godhra incident to control the situation, the state government refused to deploy the soldiers during the first crucial 72 hours (Plaint, paras 29 & 38).

The policy may also be evinced from the general historical contexts and the entire political context in which the criminal acts take place, media propaganda, administrative or other discriminatory measures, destruction of non-military property, especially religious edifice etc.289

289

Blaskic, para 204.

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The discussion under the contextual factors which evince a specific intent to commit genocide in the preceding section is relevant here. The systemic nature of the attacks is also evidenced by the efforts that were made after the violence was over to shield the accused from the judicial process. (Plaint, para 41-42) Thus, even though it might be difficult to establish that the attacks were widespread, a much stronger case exists for saying that they were ‘systematic’ in nature.

Conclusion Whether what happened in Gujarat can be characterised as genocide depends on the legal meaning of ‘part’ in its definition, and how substantial this part should be. No clear conclusions can be drawn on the basis of the facts available in the Plaint provided.

However, a much stronger case exists to show that crimes against humanity were committed in Gujarat – particularly the systematic organisation of killing, sexual violence, torture and persecution.

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Question 12: On the basis of the facts presented to you in the plaint, can an investigation be launched in any part of the world (in particular Spain), by the issuance of an international warrant of arrest?

In addressing this question, this text proceeds on the assumption that a reasonable case can be made for genocide, crimes against humanity or torture having been committed during the events in Gujarat in 2002.

The question whether an investigation can be launched in any part of the world (in particular Spain) by the issuance of an international warrant of arrest depends primarily on the ability of the state to exercise jurisdiction over the acts committed. Spain has no connection to the events at Gujarat in 2002. As a result, in seeking to exercise jurisdiction, it must rely on the principle of universal jurisdiction. Spain is one of a limited number of ‘pioneer’ countries which continuously pushes forward and expands the boundaries of what is regarded as permissible exercises of ‘true’ universal jurisdiction.

However, limits exist on the Spanish exercise of universal jurisdiction. In its decision of October 5th, 2005, the Spanish Constitutional Court states that national courts in the country where crimes have been committed enjoy priority for the prosecution of those crimes. Only when they fail to prosecute, either formally or as a matter of fact, will Spanish courts exercise universal jurisdiction. Though this judgment makes clear that the requirements for finding such a failure are not as strict as those established by the Audiencia Nacional and the Spanish Supreme Court, priority nevertheless remains with national courts in the country where crimes have been committed. This priority (depending on how it is applied) may be a serious hurdle in our case.

A second hurdle in the case at hand is the question of whether there exists universal jurisdiction under international law for the crime of genocide. Though this question has not yet been conclusively decided, it appears as if both commentators and courts are moving towards accepting the crime of genocide as one for which universal jurisdiction may be asserted.

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Launching an investigation in any part of the world by the issuance of an international warrant of arrest In order to launch an investigation in any part of the world (in particular Spain) by the issuance of an international warrant of arrest, the country launching the investigation must first assert jurisdiction over the acts committed abroad. In the case at hand, due to the lack of any link or connection between Spain and the events at Gujarat in 2002, the only applicable form of jurisdiction is universal judirisction.

Universal jurisdiction As noted by Bantekas, “the applicaion of universal jurisdiction to a particular offence does not require [any] link or connection with the prosecuting State”.290 Reydams states that “A state exercises universal jurisdiction when it seeks to punish conduct that is totally foreign, ie conduct that is conducted by and against foreigners, outside its territory and its extensions, and not justified by the need to protect a narrow self-interest (such as the protection of its security or credit).”291

In order to complete the definition, reference should be made to the motivation behind any purported exercise of universal jurisdiction. The State asserting universal jurisdiction will claim that it is not motivated by narrow State interest, but instead it will justify its action as having been taken in the interests of the international community as a whole. In other words, some crimes are of their nature so heinous that their very commission has an impact worldwide and injures all of humanity, requiring that the violator be held accountable.

The last decade has witnessed a significant increase in cases of States asserting universal jurisdiction. There are a number of well-known examples, most memorably those occasions where one State has claimed jurisdiction over both former and current leaders of foreign States, such as when Belgium initiated

290 291

I. Bantekas International Criminal Law (London; Cavendish, 2003) 156.

L. Reydams Universal Jurisdiction (Oxford University Press, 2003) 5.

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proceedings against Ariel Sharon and Spain sentenced former Argentinian military officer, Adolfo Scilingo to a total of 640 years imprisonment. Some countries, it should be added, are far more ‘active’ in this regard than others, with countries such as Spain, Germany and (prior) Belgium being at the forefront of the development of the universal jurisdiction principle. It should also be noted that universal jurisdiction is a relatively ‘new’ concept and according to Oppenheim, it is still in the process of gradual evolution and what may be termed ‘crystallisation’.292 In other words, the applicable principles and the boundaries of ‘legitimate’ exercises of universal jurisdiction continue to develop and refine. As such, any attempt to provide an overview of the principle of universal jurisdiction will of necessity be at least partly speculative, based upon limited examples of state practice and opinio juris.

In seeking to justify their exercises of universal jurisdiction, states usually need and claim a basis in both municipal law and international law.

Universal jurisdiction: basis in municipal law Municipal laws providing for universal jurisdiction fall within three categories: so-called aut dedere aut judicare provisions (as a result of obligations undertaken in bilateral and multilateral treaties), general enabling clauses in civil law countries and, significantly, municipal statutes covering specific crimes whether or not in the implementation of a treaty. A sharp division can be seen between treaty-based assertions of universal jurisdiction and non treatybased assertions of universal jurisdiction. Universal jurisdiction, as originally understood, encompassed proceedings undertaken on the basis of international law obligations entered into through treaty commitments, however, over the last ten years the principle has expanded to include non-treaty based claims. Some commentators and judicial decisions refer alternatively to so-called ‘true’ universal jurisdiction (non treaty-based jurisdiction) and ‘subsidiary’ universal

292

‘While no general rule of positive international law can as yet be asserted which gives to states the right to punish foreign nationals for crimes against humanity in the same way as they are, for instance, entitled to punish acts of piracy, there are clear indications pointing to the gradual evolution of a significant principle of international law to that effect’, Oppenheim International Law 9th edition, 998.

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jurisdiction (treaty-based jurisdiction). Alternatively, there is a distinction between ‘true’ universal jurisdiction and the ‘obligatory territorial jurisdiction’.293 Exercises of ‘subsidiary’ universal jurisdiction, it should be noted, occur far more frequently than claims of ‘true’ universal jurisdiction. On the whole, subsidiary universal jurisdiction is more likely to be accepted as a ‘proper’ exercise in jurisdiction, for the reason that it is more ‘palatable’ to the international community to accept a co-operative (and subsidiary) exercise of jurisdiction. This is to be compared to ‘true’ universal jurisdiction, which is characterised by its unilateral and unconditional nature. In summary, when exercising ‘true’ universal jurisdiction, a State does not look for permission in conventional international law. Rather, it asserts jurisdiction on the basis of its inherent national sovereignty, permitting freedom of action up and until the ‘duties’ established by international law are met (the so-called ‘immanence’ theory of international law which emphasises the sovereignty of the State).

Spain Spain has positioned itself at the forefront of the development of the universal jurisdiction, and is far more ‘active’ in this regard than other countries. In this respect, Spain exercises ‘true’ universal jurisdiction: that is to say, it exercises jurisdiction in cases where the only link with Spain (the forum State) is the international legal character of the crime. With respect to municipal law, the jurisdiction of the Spanish courts to exercise international law derives from LOPJ294 article 23.4: “Furthermore, Spanish courts have jurisdiction over acts committed abroad

by Spaniards and foreigners, if these acts constitute any of the following offences under Spanish law: (a) genocide; (b) terrorism; (c) sea or air piracy; (d) counterfeiting; (e) offences in connection with prostitution and corruption of minors and incompetents; (f) drug trafficking; (g) any other offence which Spain is obliged to prosecute under an international treaty or obligation.”

293

Joint Separate Opinion of Judges Higgins, Kooijmans and Buergenthal in Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) I.C.J. Rep. 2002, 3.

294 Ley Organica del Poder Judicial, 1985 Organic Law of the Judicial Power.

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Notable features of LOPJ article 23.4 include the following: it permits jurisdiction to be exercised over foreigners for offences committed abroad, there is no (express) nationality link, there need be no Spanish victim(s) and Spanish state interest does not have to be directly affected.

The list of specified offences includes those for which there are already international conventions (to which Spain is a party). However, the Spanish legislature has gone further than is required by the terms of the relevant conventions. Spanish jurisdiction extends beyond the aut dedere aut judicare principle to embrace ‘true’ universal jurisdiction. Significantly, Spain does not expressly require the presence of the offender upon its territory and, in addition, any private citizen or organisation is able to request a central examining magistrate to investigate an alleged extraterritorial offence. In other words, a complaint does not have to be lodged by a ‘victim’,295 thus allowing for the possibility of transnational advocacy (as evidenced in the Spanish cases). As a result, Spanish courts may exercise universal jurisdiction in a very wide range of circumstances. The only ‘link’ apparently required is that the alleged offence is included within the list provided by the Spanish legislature.

For present purposes, it must be noted that in the Spanish statute on universal jurisdiction, neither torture nor crimes against humanity are explicitly mentioned. Only genocide is expressly included. However, the statute does contain a category of offences “which Spain is obliged to prosecute under an international treaty or obligation”. Torture will easily fall under that owing to the Torture Convention. However, this may be more difficult to establish for crimes against humanity.

Attention turns now to the Spanish courts’ interpretation of LOPJ article 23.4.

Two cases in particular require comment: Union Progresista de Fiscales de Espana et al v Pinochet296 and Menchu Tum et al v Montt et al.297 The case of

295

The legal basis of the accion popular is article 125 of the Constitution and articles 101 and 270 of the code of penal procedure.

296 Union Progresista de Fiscales de Espana et al v Pinochet, Audiencia Nacional (central investigating tribunal no 5) decisions of 16 and 18 October and 3 November 1998.

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Pinochet relates to complaints filed against Augusto Pinochet and other military junta leaders of Chile and Argentina. The fact were as follows: in Chile, during the period of 1973-1989 there were at least 3,000 deathd and in Argentina, during the ‘Dirty War’ of 1976-1983, there was the murder or disappearance of some 30,000 people. In this case the Spanish courts, and specifically the Audiencia Nacional, hearing the case on appeal, upheld Spain’s exercise of universal jurisdiction over the offences of genocide, terrorism and torture. The Audiencia Nacional rejected the argument that LOPJ article 23.4 invaded or interfered with the sovereignty of Chile. According to the Court, the Public Prosecutor was wrong to argue that the sovereign equality of States precluded the exercise of jurisdiction in this instance, as Spain instead asserted its own sovereignty in relation to international crimes which had a major impact worldwide, affecting both the international community and humanity itself directly. Further noteworthy features of this complaint include the Court’s expansive interpretation of genocide and, moreover, the Court description of Spain’s jurisdiction as subsidiary. In other words, limits to Spain’s jurisdiction did indeed exist: Spain was required to refrain from exercising its jurisdiction if either domestic courts in the territorial State or an international penal tribunal was already trying the offence.

The second complaint relates to atrocities which arose out of the thirty-four year long civil war (1962-96) in Guatemala. Some 200,000 native Indians had been killed by the then Guatemalan regime, and both the UN Special Rapporteur, amongst other independent experts, and the Guatemalan Commission for Historical Clarification298 had concluded that acts of genocide had occurred.

This provides an immediate contrast to the Pinochet case, because in the Pinochet case there was no definitive evidence of genocide. The Public Prosecutor appealed here also, both to the Supreme Court and the Audiencia Nacional. More recently, on October 5th 2005, the Spanish Constitutional Court has issued a ruling in this case. The Audiencia Nacional followed its logic in the Pinochet case, to the extent that it declined to find jurisdiction at

297 298

Menchu Tum et al v Montt et al, Audiencia Nacional, 13 December 2000.

Guatemalan Commission for Historical Clarification, Guatemala: Memory of Silence.

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least for the present time, on the grounds that Spain’s jurisdiction was subsidiary. The subsidiary nature of Spain’s jurisdiction in these particular circumstances was held to preclude jurisdiction or, alternatively, Spanish jurisdiction was not yet ‘triggered’. Before Spanish jurisdiction could be exercised, the complainant had to demonstrate that the Guatemalan authorities were ‘inactive’ in the sense of either legal inaction or de facto inaction. Since only a short time had elapsed since the filing of the complaint in Guatemala and because the Guatemalan courts had not issued a decision actually rejecting the complaint, the threshold requirement of ‘inactivity’ had not been met. As a result, jurisdiction for the time being could only properly be asserted by Guatemala, as the territorial State. Finally, it is pertinent to observe the Court’s interpretation of subsidiarity. As noted by Reydams, in the context of universal jurisdiction this principle traditionally refers to the notion of double criminality and the impossibility of extradition. This is to be contrasted to the different interpretation offered by the Spanish court, whereby the Audiencia Nacional interprets subsidiarity as referring instead to the exhaustion of local remedies and the complementarity of the International Criminal Court. In summary, the Audiencia Nacional sets clear limits upon the principle of universal jurisdiction.

Priority is conferred upon the territorial State and Spain appears only able to act when and if the territorial State categorically refuses to take action.

The complaint in this case was heard also before the Supreme Court. This Court was of the opinion that any exercise of Spanish jurisdiction required the complaint to involve Spanish ‘national interest’. This was interpreted as requiring a Spanish victim. The case had been brought by various NGOs and, therefore, as there was no specific Spanish victim, there were no grounds for jurisdiction. A nationality requirement was thus read into LOPJ article 23.4 in addition to the criterion of ‘de facto rejection’ introduced by the Audiencia Nacional. Cumulatively, the two judgments offer a relatively narrow conception of universal jurisdiction.

On October 5th 2005, the Spanish Constitutional Court gave its judgment relating to the human rights abuses in Guatemala. The official text of the judgment is not yet available in Spanish or English and, therefore, the following 99

remarks must be regarded as provisional only. The Court effectively reversed both prior judgments on Guatemala. Far from conditioning the exercise of universal jurisdiction, the Court reasserted Spain’s freedom to exercise universal jurisdiction. In other words, the Court reverts back to the express wording of LOPJ article 23.4 without implying any additional criteria into LOPJ article 23.4. The Court held the principle of universal jurisdiction takes precedence over the existence of national interests. It found Spain possessed jurisdiction to investigate cases of genocide and crimes against humanity committed abroad, whatever the nationality of the victims. In other words, the judgment is very significant because it endorses ‘true’ universal jurisdiction and would appear to give LOPJ article 23.4 the most expansive interpretation possible.

However, as noted above, limits exist on the Spanish exercise of universal jurisdiction. In its decision of October 5th, 2005, the Spanish Constitutional Court states that national courts in the country where crimes have been committed enjoy priority for the prosecution of those crimes. Only when they fail to prosecute, either formally or as a matter of fact, will Spanish courts exercise universal jurisdiction. Though this judgment makes clear that the requirements for finding such a failure are not as strict as those established by the Audiencia Nacional and the Spanish Supreme Court, priority nevertheless remains with national courts in the country where crimes have been committed.

Since this judgment, on October 20th, 2005, a Spanish central examining magistrate has issued an international arrest warrant for three American soldiers as a result of the death of two journalists in Iraq (after an American tank fired at a Baghdad hotel during the Iraq War in 2003). Although one of the victims in this particular instance was Spanish, the arrest warrant is distinctive in that it relates to ‘footsoldiers’ as opposed to military and political leaders. There has, however, been criticism of the three arrest warrants, on the basis that there is a qualitative difference between these alleged offences and the systematic torture and disappearances orchestrated by officials.

Universal jurisdiction: basis in international law 100

Certain features can be listed as conditions required prior to any exercise of universal jurisdiction in international law. First, it is essential that the alleged offence rises to the level of an international crime. In other words, a criterion of ‘heinousness’ is attached. In Case Concerning the Arrest Warrant of 11 April 2000, Judges Higgins, Kooijmans and Buergenthal in their joint separate opinion were of the view that universal jurisdiction could be exercised only as regards the offences of piracy, war crimes and crimes against humanity (a notable omission is the offence of genocide). As noted above, this text proceeds on the assumption that a reasonable case can be made for genocide, crimes against humanity or torture having been committed during the events in Gujarat in 2002.

Questions remain as to whether there exists universal jurisdiction under international law for the crime of genocide. In their separate opinion in Case Concerning the Arrest Warrant of 11 April 2000, Judges Higgins, Kooijmans and Buergenthal omitted genocide from its list of offences for which universal jurisdiction could be exercised. Amnesty International, on the other hand, provides a more expansive definition of crimes of universal jurisdiction, including genocide amongst the listed offences.

In a recent article, M. Cherif Bassiouni discuses the place of genocide within the history of universal jurisdiction.299 He notes that the ‘serious and international crime of genocide’ did not exist before the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (‘the Genocide Convention’).300 Article 6 of the Convention states: “Persons charged with genocide or any of the other acts enumerated in article III shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction” [emphasis added by Bassiouni].301 299

M. Cherif Bassiouni, “The History of Universal Jurisdiction and Its Place in International Law”, in Universal Jurisdiction, ed. Stephen Macedo (Philadelphia: University of Pennsylvania Press, 2004) (hereafter ‘Bassiouni’).

300 Ibid, 53.

301 Ibid.

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Bassiouni notes that it is clear from the plain meaning and language of this provision that jurisdiction is territorial and that only if an “international penal tribunal” is established and only if state parties to the Genocide Convention established an “international penal tribunal” can the latter court have universal jurisdiction. However, such universal jurisdiction will be dependent upon the statute of that international penal tribunal,” if or when it is established.302 Bassiouni notes that since the adoption of the Genocide Convention, two international ad hoc criminal tribunals were established, namely, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR), in 1993 and 1994, respectively. On July 1, 2002, the treaty for the International Criminal Court came into force. All three statutes contain a provision making genocide a crime within the jurisdiction of the court. But that in itself, notes Bassiouni, does not give these tribunals universal jurisdiction.303 While both Article 4 of the ICTY and Article 2 of the ICTR define genocide, the jurisdiction of both tribunals is territorial; their competence extends only to crimes committed within the territory of the former Republic of Yugoslavia and Rwanda, respectively.304 Bassiouni notes that as for the ICC, Article 6 defines genocide in almost the same terms as Article 2 of the Genocide Convention.305 The jurisdiction of the ICC, as stated above, is essentially territorial as to the parties; the parties can refer cases to the ICC for crimes that did not occur on their territory and are obligated to surrender persons who are on their territory, whether nationals or non-nationals.306 Thus, notes Bassiouni, while the reach of the ICC is universal as to “referral” by state parties under Article 14 and nonstate parties under Article 12(3), “referrals” by the Security Council have a universal scope and also represent a theory of universal jurisdiction.307

302

Ibid.

Ibid.

304 Ibid.

305 Ibid.

306 Ibid, 53-54.

307 Ibid, 54.

303

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Bassiouni argues that notwithstanding the fact that Article 6 of the Genocide Convention hardly justifies the contention that it reflects the theory of the universality of jurisdiction, commentators argue consistently that customary international law has recognized the universality of jurisdiction for crimes of genocide.308 Nevertheless, state practice has ignored that argument.309 As stated

by Theodor Meron, “it is increasingly recognized by leading commentators that the crime of genocide (despite the absence of a provision on universal jurisdiction in the Genocide Convention) may also be cause for prosecution by any state.310 Other authors including Christopher C. Joyner, Jordan J. Paust, and Kenneth Randall have consistently asserted that universal jurisdiction applies to genocide as a jus cogens international crime.311 In addressing genocide in the Tadić case, the ICTY’s Appeals Chamber stated that “universal jurisdiction is nowadays acknowledged in the case of international crimes”.312 In a similar manner, the ICTR held in the case of Prosecutor v. Ntuyahaga that universal jurisdiction exists for the crime of genocide.313 Secondly, in returning to the pre-conditions for the exercise of universal jurisdiction under international law, it would appear a ‘link’ of some sort is required between the forum or investigating State and the ‘crime’, reminiscent of Mann’s proposed test for jurisdiction based on ‘closeness’.314 As observed

by Reydams, the majority of cases that have gone to trial are those where the defendant has a strong link with the forum State and/or extradition is impossible 308

Ibid.

Ibid.

310 Theodor Meron, “International Criminalization of Internal Atrocities”, American Journal of International Law 89 (1995), in Bassiouni, 54.

311 Bassiouni, 282; Christopher C. Joyner, ‘Arresting Impunity: The Case for Universal Jurisdiction in Bringing War Criminals to Accountability’, Law and Contemporary Problems 59 (1996), Jordan J. Paust, ‘Congress and Genocide: They’re Not Going to Get Away with It’ Michigan Journal of International Law 11 (1989); Kenneth Randall, ‘Universal Jurisdiction under International Law’ Texas Law Review 66 (1988).

312 Bassiouni, 54; Prosecutor v Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, para. 62 (October 2, 1995).

313 Bassiouni, 54; Prosecutor v Ntuyahaga, Case No. ICTR-90-40-T, Decision on the Prosecutor’s Motion to Withdraw the Indictment (March 18, 1999).

314 Mann (1964-I) 111 Hague Recueil 1 pp49-51 309

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or refused. It is rare, in practice, for jurisdiction to be truly universal to the extent of any state unilaterally launching an investigation based upon the criterion alone of the alleged offence’s status as an international crime. In other words, there will normally be a link of nationality of victim and/or offender, a territorial link of some sort or some ‘substantial’ impact upon the forum State.

Application to the events of Gujarat in 2002 In the events of 2002 in Gujarat, there is no link of nationality of victim or offender to Spain; there is no territorial link; furthermore, it can be argued that there is no ‘substantial’ impact upon Spain, the forum State. Thus, Spain’s initiation of the investigation would be based solely upon the criterion of the alleged offence’s status as an international crime.

Further, it appears to be a de facto requirement that the accused is voluntarily present in the forum State. In the case at hand, the accused is not voluntarily present in Spain.

Thus, Spain would have to proceed with an investigation in abstentia. Though Spain does not require the presence of the accused in order to initiate an investigation, a trial in absentia is only permitted in exceptional circumstances.315 Furthermore, such an investigation remains very controversial and will be likely declared an excessive use of jurisdiction.

In addition, even if it were to go ahead, a trial in abstentia would be likely to be frustrated, as without the permission of the territorial State, practical necessities such as the collection of evidence and site inspection would not be possible. Finally, there are further complexities when the accused is a serving or former head of State.316 The Yerodia case317 provides for the immunity of a serving head of State, although this reverts to immunity rationae personae once the accused has left office.

315

L. Reydams Universal Jurisdiction (Oxford University Press, 2003) 184.

This should be considered in the light of the conclusions reached in relation to question 7 above.

317 Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of Congo v Belgium) I.C.J. Rep. 2002, 3.

316

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Even if the above conditions are met, the forum State will additionally have to demonstrate both the ‘reasonableness’ of its actions and that its actions do not interfere with the internal affairs of other States (see Article 8 of the 1993 Draft Resolution on Extraterritorial Jurisdiction of States by the Institute of International Law and 1987 Restatement (Third) of the Foreign Relations Law of the USA). A balancing test is effectively required, weighing the respective components of the relevant states’ interests with justice requirements, whether this is expressly articulated or not. The underlying reasoning is as follows: international criminal law has developed as a result of bilateral and multilateral cooperation in the detection and prevention of crime. As such, a State is not properly able unilaterally to assert its jurisdiction where this would undermine international cooperation and because, moreover, an aggressive assertion of primacy would risk weakening the very international order and sense of community that universal jurisdiction purports to uphold. Unilateral jurisdiction, it is to be recalled, is motivated by the need to protect the international community from the damage caused by the commission of otherwise unpunished international crimes. In other words, the need for cooperation provides the rationale for the criterion of an objective and substantial link.318 As Spain has no substantial link to the events at Gujarat in 2002, it would face some difficulty in establishing its actions as “reasonable”. Furthermore, by taking these actions, it would most likely interfere with the internal affairs of other States conducting their own, territorial, investigations.

There are a number of factors which weigh against the conclusion that the issuance of an international arrest warrant by Spain would be competent in the present case: 1. The events underlying the present case appear to apply to a single isolated event and in this respect can be contrasted with the previous cases dealt with by the Spanish courts where the offences were alleged to have been committed on a larger scale and over a number of years, as opposed to sporadic or isolated events.

318

Council of Europe, Extraterritorial Criminal Jurisdiction, 25-31

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2. Most of the previous Spanish cases have involved (at least some) Spanish victims. Even if not expressly articulated, a ‘victim’ link would appear to provide Spanish courts with added confidence to justify the assertion of jurisdiction.

3. There is concern over the status of genocide as a crime of ‘true’ universal jurisdiction. This is counterbalanced by the fact that LOPJ article 23.4 specifically includes genocide as a listed offence, and the fact that certain commentators and courts have accepted genocide as a crime of universal jurisdiction.

4. The identity of the actors involved may present some difficulty. In the past, successful Spanish claims have been brought against political and military leaders, as opposed to a mixture of leaders and ‘footsoldiers’.

5. In the absence of the voluntary presence of the accused in the territory of the forum state, a claim of universal jurisdiction becomes more controversial.

6. Finally, Spanish courts are constrained by the doctrine of priority as affirmed in the October 5th judgment of the Spanish Constitutional Court. Only when national courts fail to prosecute, either formally or as a matter of fact, can Spanish courts exercise universal jurisdiction. Though this judgment makes clear that the requirements for finding such a failure are not as strict as those established by the Audiencia Nacional and the Spanish Supreme Court, priority nevertheless remains with national courts in the country where crimes have been committed.

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