Abstract
The existing approach to the crimes against humanity prohibition on other inhumane acts is deeply flawed. In my last chapter, I suggested that a new approach to the prohibition was required: one based on the understanding that the prohibition is a direction to courts to act as law-makers and an invitation to courts to create and apply retroactive criminal laws. In this chapter, I elaborate on that new approach. The starting point is to identify how unlisted acts are like the listed prohibitions in the various articulations of crimes against humanity. To understand whether an unlisted act is “like” one of the existing prohibitions, we need to understand what the term “inhumane” means. I propose a victim-focussed understanding drawn from domestic criminal law theory. Using the work of Stephen Shute and John Gardner, I argue that for the purpose of the prohibition on other inhumane acts, inhumanity must be understood as sheer use of a person. Building on this, I articulate a new analytical approach to recognizing and defining new, permanent, other inhumane acts. I deploy the theory of Lon Fuller to show how this new approach would, unlike the current approach, reinforce the legitimacy of the law.
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Notes
- 1.
See my discussion in Chap. 3.
- 2.
Boyle and Chinkin 2007, p 17.
- 3.
Sadat 2013, p 334.
- 4.
Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002) (Rome Statute).
- 5.
- 6.
Fuller 1969, p 94.
- 7.
For ease of reference, the desiderata of legality identified by Fuller are the requirements of (1) generality, (2) promulgation, (3) clarity, (4) consistence through time and (5) congruence between the stated laws and official acts and the prohibitions on (6) retroactive laws, (7) inconsistent laws and (8) laws which require the impossible.
- 8.
See my more detailed discussion of Fuller’s theory in Chap. 2.
- 9.
Rundle 2009, p 65 at 81, citation omitted.
- 10.
ICC, Prosecutor v Dominic Ongwen, Decision on the confirmation of charges, 23 March 2016, ICC-02/04-15-422-Red, (Ongwen, Decision on confirmation of charges).
- 11.
Luban 2004, p 85 at 90. As Luban observed:
…violating humanness and offending against humankind are not equivalent. Arguably, all human beings share an interest in suppressing grave acts of environmental destruction – an interest that may well justify making such acts international crimes; but the value that is harmed is not, strictly speaking, human at all. Conversely, an especially sadistic rape or murder might degrade the humanity of its victim without implicating the interests of the entire human race. Crimes against humanity are simultaneously offenses against humankind and injuries to humanness.
Luban concluded that crimes against humanity attack our nature as political animals; that is the aspect of humanness which crimes against humanity violate.
- 12.
This is similar to Mettraux’s suggestion that a policy element is not required to maintain the integrity of the offence or limit its scope; that is accomplished by the existing elements: Mettraux 2011, p 142 at 176.
- 13.
ICTY, Prosecutor v Mucić et al., Trial judgment, 16 November 1998, IT-96-21-T, para 564 (Čelebici, Trial judgment).
- 14.
- 15.
Čelebici, Trial judgment, above n. 13.
- 16.
Luban 2004, p 85.
- 17.
Ibid., p 98.
- 18.
Ibid., p 99.
- 19.
Ibid., p 103.
- 20.
Ibid., p 101.
- 21.
Ibid., p 99.
- 22.
Geras 2011, p 39.
- 23.
Ibid., pp 40–41.
- 24.
Ibid., p 49.
- 25.
Ibid., pp 50–51.
- 26.
Haenen 2013, p 796. She makes this point specifically at 809 and 810–814.
- 27.
Ibid., pp 808–810, 814-15.
- 28.
Ibid., pp 814–815. ICC, Elements of Crimes, reproduced in the Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court, First session, New York, 3-10 September 2002, ICC-ASP/1/3 and Corr. 1, part II.B.
- 29.
See Chap. 5 on the ICTY’s changing approach to the residual clause.
- 30.
Haenen 2013, p 796 at 818.
- 31.
Ibid., pp 818–19.
- 32.
Ibid., p 820.
- 33.
Ibid.
- 34.
Ibid.
- 35.
Macleod 2010, p 281 at 283. It is possible that crimes against humanity are crimes against humanity because they offend humanity in all seven ways identified by Macleod. This would suggest that crimes against humanity must include certain elements to reflect each of the understandings of humanity. It would also provide an understanding which would help with the interpretation of each element. However, it is not necessary to fully engage with this idea in this work; that is a discussion for another time.
- 36.
Ibid., p 284.
- 37.
Ibid.
- 38.
Ibid.
- 39.
Ibid., p 286.
- 40.
Ibid.
- 41.
Ibid., p 286.
- 42.
Ibid., p 286.
- 43.
Ibid., p 287.
- 44.
Ibid.
- 45.
Ibid.
- 46.
Ibid., p 294.
- 47.
That the act is of similar character to the existing prohibitions and intentionally causes great suffering or serious injury to body or to mental of physical health. What these clarifications do not do is indicate how to assess whether an act is of a similar character to the existing acts. Nor does it clarify the threshold for great suffering. It may be that the ICC will be unable to address that question since the ICC’s jurisdiction is limited to cases which are “of sufficient gravity to justify further action by the Court”. See Rome Statute, above n. 4, article 17(1)(d). Given the general gravity threshold, the ICC may never have to grapple with whether a specific act may not meet the standard of causing great suffering to the victims. Arguably, only cases in which it is obvious that victims have suffered great harm will ever come before the Court or even be subject to investigation.
- 48.
Luban 2004, p 85 at 101.
- 49.
Geras 2011, pp 50–51.
- 50.
Macleod 2010, p 281.
- 51.
Ibid. ICTY, Prosecutor v Krnojelac, Trial judgment, 15 March 2002, IT-97-25-T, para 130 (‘Krnojelac, Trial judgment’).
- 52.
Charter of the International Military Tribunal annexed to the Agreement by the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States of America, the Provisional Government of the French Republic and the Government of the Union of Soviet Socialist Republics for the prosecution and punishment of the major war criminals of the European Axis, opened for signature 8 August 1945, 82 UNTS 279 (entered into force 8 August 1945); UN Secretary General 1993; UNSC 1994; Statute of the Special Court for Sierra Leone, 12 April 2002, annexed to the Agreement Between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, United Nations—Sierra Leone, opened for signature 16 January 2002, 2178 UNTS 137 (entered into force 12 April 2002); Rome Statute, above n. 4.
- 53.
Čelebići, Trial judgment, above n. 13, para 518.
- 54.
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 35 (entered into force 21 October 1950), Article 50 (Geneva I).
- 55.
Geras 2011, pp 50–51.
- 56.
Macleod 2010, p 281 at 287.
- 57.
Ibid., p 294.
- 58.
What Macleod refers to as the grand-être. It is humankind in the abstract which shares some interest which crimes against humanity damage: see his discussion Ibid, pp 293, 295–299.
- 59.
Ibid., p 298.
- 60.
This reading is suggested by Macleod’s discussion; ibid., pp 298–99.
- 61.
Sands 2016.
- 62.
See for example the discussion Macleod 2010, p 281 at 299. While Macleod argues that he is concerned only with defining CAH, he suggests that a definition which helps to explain and justify international intervention provides support for his definitional views.
- 63.
- 64.
Macleod 2010, p 281 at 290.
- 65.
- 66.
Ibid. at 120. For Luban, what distinguished crimes against humanity from municipal offences was the violation of our political nature by government or similar organisations. I agree with Luban that crimes against humanity do share some essential features with municipal offences; it is not the nature of the inhumanity which distinguishes crimes against humanity. Rather, the uniqueness of crimes against humanity lies in the specific cluster of characteristics which distinguish crimes against humanity from municipal offences.
- 67.
Evans 2008, p 256, citations omitted.
- 68.
The ICTY’s approach to cumulative charging and convictions which required only that the acts have a distinct material element might actually permit the division of elements among victims. However, I need not address this here since, in my view, an approach which permits the division of elements is misguided in any event.
- 69.
ICC, Prosecutor v Muthaura, Kenyatta and Ali, Decision on the Confirmation of Charges, 23 January 2012, ICC-01/09-02/11-382-Red (Kenyatta, Decision on confirmation of charges).
- 70.
ICTR, Prosecutor v Niyitegeka, Trial judgment, 16 May 2003, ICTR-96-14-T, para 465 (Niyitegeka, Trial judgment).
- 71.
The Trial Chamber noted that one of the victims had been a prominent member of the Tutsi community and, after his body was mutilated, some parts “were hung on a spike, visible to the public”. Ibid, para 462.
- 72.
Persecution includes a broad range of acts done with discriminatory intent. There is no reason why targeting members of a community to send a discriminatory message to other members of the community could not be considered the CAH of persecution. I would still suggest, however, that in such cases it would be preferable to have evidence of the impact on the persons whose mental health or dignity was impacted rather than relying on assumptions about impact.
- 73.
Werle and Jessberger 2014, p 373.
- 74.
Recall for example that Article 7(1)(k) of the Rome Statute, above n. 4 specifies that the residual clause includes “Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”
- 75.
Shute and Gardner 2007, p1 at 16.
- 76.
Ibid.
- 77.
Ibid., pp 16–17.
- 78.
Levi 1958. Also translated from the Italian as If this is a Man.
- 79.
Ibid., p 27.
- 80.
Geras 2011, p 53.
- 81.
Ibid.
- 82.
Ibid., p 54.
- 83.
Though one which may not result in criminal liability for the acquaintance given the intent requirements for many offences.
- 84.
Geras 2011, p 54.
- 85.
Luban 2004, p 85 at 119–120, citations omitted.
- 86.
Shute and Gardner 2007, p 1 at 16.
- 87.
ICTY, Prosecutor v Kordić & Čerkez, Appeal judgment, 17 December 2004, IT-95-14/2-A, para 117 (Kordić & Čerkez, Appeal judgment).
- 88.
Discussed in Chap. 5.
- 89.
Niyitegeka, Trial judgment, above n. 70. While I have critiqued that judgment, my difficulty is with the approach rather than the actual outcome.
- 90.
Kenyatta, Decision on the confirmation of charges, above n. 69, paras 274–77.
- 91.
Shute and Gardner 2007, p 1 at 16.
- 92.
Ibid.
- 93.
See for example the International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR). especially Articles 12, 18, 23 and 27; International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976) (ICESCR); International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969) (ICERD) especially Article 5; Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981) (CEDAW); Convention on the Rights of Persons with Disabilities, opened for signature 13 December 2006, 2515 UNTS 3 (entered into force 3 May 2008) (CRPD) especially Articles 18-30.
- 94.
Shute and Gardner 2007, p 1 at 16.
- 95.
Haenen 2013, p 796.
- 96.
Ongwen, Decision on Confirmation of Charges, above n 10.
- 97.
SCSL, Prosecutor v Brima et al., Appeal judgment, 22 February 2008, SCSL-04-16-A, para 189, footnote omitted (AFRC, Appeal judgment).
- 98.
Ibid., para 190.
- 99.
Ibid., in particular at para 190–192.
- 100.
Ibid., para 195.
- 101.
Ibid., para 196.
- 102.
Ibid., para 198 (footnote omitted).
- 103.
Ibid., para 195.
- 104.
Rome Statute, above n. 4.
- 105.
See Haenen 2013, p 796 at 810.
- 106.
Ongwen, Decision on Confirmation of Charges, above n. 10.
- 107.
See Haenen 2013, p 796 at 810–814.
- 108.
AFRC, Appeal judgment, above n. 97.
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MacNeil, G. (2021). A New Way Forward: Advocating a Fullerian Approach to Other Inhumane Acts. In: Legality Matters. International Criminal Justice Series, vol 28. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-443-3_6
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