Authored By: Dewanshi Bhatt
Bennett University
INTRODUCTION
This article’s goal is to investigate the origins and evolution of the notion that, according to international law, persecution is a crime against humanity. I will primarily focus on the latest case law on this topic and try to highlight the major challenges that tribunals domestic and international would encounter when handling such claims.
When discussing the topic of “crimes against humanity,” a terminological note is necessary due to the delicate nature of the concept. The term “crimes,” in the expression “crimes against humanity,” clearly refers to the serious acts that are punishable by law. The definition of the term “humanity,” however, is less clear-cut; it can be interpreted as pointing to any or all human beings, or humankind, or to the characteristic of being “human”-humanness.[1] The fact that crimes against “humanity” might be construed to pertain to both makes this ambiguity relatively advantageous. Because they constitute a major violation of respect for humanity or a serious embarrassment to a select few, crimes against humanity are now viewed as particularly heinous crimes. Analysing the beginnings and progression of these offences is crucial to comprehending them completely.
The notion that some fundamental human values have to be upheld in every situation, even armed wars, has emerged at different points throughout history. International crimes have signalled a slow but persistent departure from the traditional position that international law has not addressed individual obligations. The International Criminal Tribunal for Rwanda (ICTR) and its sister organisation, the Tribunal for the former Yugoslavia (ICTY), continue the tradition of the historic the Nuremberg trials after World War II challenged the impunity of widespread persecution and genocide.
The crime against civilisation of persecution has really come to characterise what occurred in the former Yugoslavia, as one analyst stated, “just as genocide was transformed into the offence corresponding to what took place in Rwanda during 1994.”[2] Furthermore, the ICC Statute, which was ratified in Rome in 1998, has given the world community access to a new institution: the permanent world Criminal Court.[3]The influence of this convention on the battle against persecution a clear example of a crime against humanity must be taken into account, even though major nations like the United governments, Russia, India, Pakistan, China, Israel, and the majority of Arab governments are yet to ratify it.
HISTORICAL ADVANCES
Following the 1915 Armenian massacres, persecution was initially recognised as an atrocity against humanity. Even while at first there were requests to try those. The final peace talks contained no clause requiring those accountable for the heinous crimes committed against the Armenian people to face justice. The Commission on the Responsibilities of the Authors of the War and the Enforcement of Penalties was established by the Versailles Peace Conference, and although there were no prosecutions, the Commission’s report contained language that somewhat advanced the idea of crimes against humanity.
The panel’s two American members dismissed even that small attempt, claiming that “humanity’s rules and principles are not certain, altering through location, time, and circumstance, and consequently, it might be to each judge’s conscience. There isn’t a single, accepted definition of humanity.[4]
However, the Allied Powers determined during World War II that senior German officials ought to stand trial for crimes against civilians and enemy combatants as well as for massacres along with additional violent acts against specific segments of the German population. However, under the then-current laws of war, which effectively solely protected the populace residing in enemy territory, the latter offences could not be regarded as crimes.
Therefore, a clause on crimes against humanity which included persecution as well as murder, extermination, enslavement, deportation, and other cruel acts was included in the London Charter that established the International Military Tribunal for the trial of the main war criminals of the European Axis.[5]
Thus, by designating persecution as a specific crime against humanity, the Nuremberg Charter established a new standard. But according to the Nuremberg Charter, persecuting had to be related to a crime that was within the Nuremberg Tribunal’s jurisdiction. As a result, while the prosecutor provided a significant amount of evidence about the persecuting of Jews and various other groups before 1939, no verdicts were rendered for these acts. This successfully stopped the Tribunal from taking on charges of crimes against humanity unrelated to the war.
However, because Germans’ crimes against fellow Germans within Germany’s borders were considered crimes against humanity, the Nuremberg Charter marked a sea change in international relations, but one that was somewhat constrained by the previously stated jurisdictional need.
PERSECUTION IN THE ICTY’S LEGAL CASE LAW
Persecution had been clearly recognised as an act against humanity under international law, but it wasn’t until the wars in the former Yugoslavia and the Tribunal’s subsequent prosecutions, which demonstrated that the crime’s essence was fully formed.[6]
In Tadi̒,[7] the Tribunal’s first case, the crime of persecuting was discussed. Although the act of persecution was mentioned in the Nuremberg Charter, the Trial Chamber acknowledged in the ruling that it had never been precisely established in international criminal law and was unknown in the main criminal justice systems of the world.[8]
Persecution is now defined as follows: the mens rea of persecuting is unfair treatment on one of the reasons given (at the ICTY, these are political, racial, and religious grounds); the actus reus of the crime consists of an underlying act that prejudices in fact and must deny an important human right laid down under international law; the Court has further refined the elements of the offence, with the ICTR also making significant contributions to its development.[9] From a legal perspective, there is little dispute regarding the latter element, even though prosecuting authorities find it difficult to prove it beyond a reasonable doubt.
Both Tribunals are currently wrapping up their operations, some fifteen years after they were established. By 2008 or 2009, all trials are expected to be finished, and all appeals of trial verdicts must be completed by 2011. Only two of the 161 people the ICTY has charged are still at large. 45 people are still the subject of ongoing proceedings, while 116 people have had their cases resolved thus far. In the majority of these cases, both at the trial and appeal levels, the Tribunal has taken the act of persecution into consideration. The details of the offence have gained more substance and clarity with each ruling.
The lawful creation of crimes against humanity has benefited greatly from this advancement in knowledge of the act of persecution in its varied expressions in mankind as a whole. When dealing with this intricate and horrible crime, national and international courts will probably find it to be a valuable source of guidance.
As you might expect, determining the underlying acts that constitute persecution is one of the trickiest problems. Despite being based on the Nuremberg Charter, the International Criminal Court (ICTY) Statute expressly rejects the previously indicated condition that persecution must be committed in connection with another offence established by the Statute.
The Tribunal instead explained that because of the evolution of the act of persecution over the fifty-year period among Nuremberg and the initial ICTY proceedings, is the wilful, flagrant, or egregious denial of a basic right established by international customary or international treaty law on the basis of discrimination.[10]That is, persecution includes other acts that violate a fundamental right as long as they are as serious as other crimes against humanity, such as murder, extermination, enslavement, expulsion, imprisonment, and torture. Persecution is not restricted to crimes listed in the ICTY Statute.[11]
Consequently, it has now been acknowledged that persecution can include the denial of a broad range of rights, such as assaults on social, political, and economic liberties, as well as acts of psychological abuse, humiliation, and harassment. Situations like the extermination of Jews along with other groups during the 1930s, prior to the Second World War before the start of exterminations, highlight the significance of this enlarged definition. Many horrible acts of discrimination would not be regarded as persecution if the fundamental behaves of persecution were limited to those that were also acts under international law. This would be in opposition to both current awareness and fundamental humanitarian principles that are recognised on a global scale.
Taking a closer look at this case, keep in mind that one of the notorious Nuremberg laws deprives German Jews of the ability to vote on September 15, 1935. Himmler issued an order on October 21, 1937, authorising the arrest of German Jews who choose to return to Germany after living outside. Through July and December 1938, Jewish communities were subject to a collective tax of one billion Deutschemarks, were prohibited from attending schools, and had their access to numerous professions restricted by legislative and executive measures. Because these acts of which I am only naming a handful of many atrocities were unrelated to the war and were not perpetrated alongside with other crimes outside the purview of the Nuremberg Tribunal, they were not punished there.
ICC STATUTE ON PERSECUTION
With a few minor exceptions, the acts included in the 1996 Draft Code as well as the ICTY are listed as offences against humanity under Article 7 in the ICC Statute. Statutes of the ICTR.[12] “The deliberate and severe privation of basic freedoms pursuant with international law by reason of an identifiable characteristic of a community or collectively” is the specific definition of persecution.[13]
“Intentional and grave deprivation of fundamental liberties contrary to global law by reason of a characteristic of the group or collectively” is the stated definition of persecution.20 The Statute of the ICC, differs from customary international law or the statutes of ad hoc tribunals in how it defines certain components of offences against humanity, and consequently, persecution.
First off, this clause only comes into play when the offender commits a series of covered crimes in order to further or pursue “a State or organisational policy.” Specially to carry out an assault on a civilian population.[14] This restricts the application of current customary international law. Second, in addition to political, racial, and religious grounds, the ICC Statute lists national, ethnic, social, gender, and “other reasons that are universally recognised as unlawful under international law” as grounds for discrimination.[15]
Despite its ambiguity and potential application challenges, this should be applauded as an extension of the law as indicated in the ICTY and ICTR Statutes. One other divergence from current international law is made by the ICC Statute, and it is highly pertinent to the topic of this article. According to the ICC Statute, a crime must be perpetrated in conjunction with another act or crime that falls under the ICC’s purview.[16]
Therefore, it appears that Article 7 of the ICC Statute may represent a return to the principle that persecutory conduct can only be penalised if they are committed in relation to other crimes or conduct that fall under the Court’s purview. Once more, discriminatory practices that are not directly connected to crimes against humanity, such as war crimes or genocide, may escape unpunished.
Will it be so, though? It will be fascinating to observe how the first persecution-related cases before the ICC are tried and decided, in my opinion. Although the Statute is an agreement and its language shall be regarded as obligatory by State parties with regard to the classification of crimes covered by it, in light of customary international law, I wonder if Article 21 does not permit more latitude in interpreting the Statute.
Article 21(1) of the ICC Statute provides that the Court shall apply:
(a) In the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence;
(b) In the second place, where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict . . . .[17]
Without a doubt, while determining the criminal liability of accused individuals, judges must take into account customary international law, which does not require a connection to other crimes for persecution. Although it has not yet been established what the Statute implies when it says that customary international law must be implemented “where appropriate.” Of course, courts will not apply principles that are obviously at odds with the Statute’s language.
This is especially true when international law takes the shape of jus cogens, which are pre-emptive regulations that cannot be altered by treaty or “simple” tradition. In these situations, the Court may determine that the governing law’s jurisdiction over crimes against humanity has been limited by the ICC Statute. The Court may, however, decide otherwise, concluding that it is bound by recent advancements in international customary law if applying this law in conjunction with the Statute would be “appropriate” in the sense of Article 21. The outcome of the interaction can only be predicted by practice.
Another fascinating topic is the application of the Court’s jurisdiction to crimes committed in nations that have not agreed upon the Statute. As an instance, the circumstance in Darfur is being investigated after the Security Council referred it to the ICC, even though Sudan is not a signatory to the ICC treaty.
Given that the Statute is not enforceable on nations like Sudan, will the Court in these situations merely apply the international law specified in the Statute, or will the judges begin using customary international law, which is debatable? It is relevant to all nations and other international legal entities, whether or not they have executed the Statute? Will the Court apply custom even where it contradicts the text of the Statute, such as when it comes to the link between persecution and other crimes, if it is to apply it to states like Sudan? Again, it will only be evident with experience.
CONCLUSION
The actions of the ICTY and ICTR over the last fifteen years have largely contributed to our current comprehension of crimes against humanity. The meaning and application of some specific crimes, including persecution, as well as several previously controversial aspects of the idea of offences against humanity broadly have been clarified by the ad hoc Tribunals.
These ideas are now unquestionably well-established in customary international law, and future international and local tribunals will continue to apply and take them into consideration.
Reference(S):
[1] See ANTONIO CASSESE, INTERNATIONAL CRIMINAL LAW 101-103 (2nd ed. 2008); David Luban, A Theory of Crimes Against Humanity, 29YALE J.INT’L L. 85, 86-93 (2004); see also LE CRIME CONTRE L’HUMANITÉ (Bruno Gravier & Jean-Marc Elchardus eds., 1996) (reflecting an interdisciplinary approach, particularly in the introduction to the volume and in the contribution by Mireille Delmas-Marty).
[2] William J. Fenrick, The Crime Against Humanity of Persecution in the Jurisprudence of the ICTY, 32 NETHERLANDS YEARBOOK OF INT’L L. 89, 89 (2001).
[3] Rome Statute of the International Criminal Court, entered into force July 1, 2002, A/CONF.183/9, available at http://untreaty.un.org/cod/icc/statute/english/rome_statute(e).pdf.
[4] UNITED NATIONS WAR CRIMES COMMISSION, HISTORY OF THE UNITED NATIONS WAR CRIMES COMMISSION AND THE DEVELOPMENT OF THE LAWS OF WAR 36-37 (William S. Hein & Co. 2006) (1948) (quoting a Memorandum of Reservations dated Apr. 4, 1919).
[5] Charter of the International Military Tribunal art. 6, 59 Stat. 1546, 1547 (crimes against humanity are “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.”), available at http://www.stephen-stratford.co.uk/imtcharter.htm#Article %206. 6. S
[6] See Ken Roberts, Striving for Definition: The Law of Persecution from its Origins to the ICTY, in THE DYNAMICS OF INTERNATIONAL CRIMINAL JUSTICE 257 (Hirad Abtahi & Gideon Boas eds., 2006).
[7] Prosecutor v. Tadiƒ, Case No. IT-94-I-T, Opinion and Judgment (May 7, 1997), available at http://www.icty.org/x/cases/tadic/tjug/en/tad-tsj70507JT2-e.pdf. For a table that is useful in locating the opinions referred to in this article, see WILLIAM A. SCHABAS,THE UN INTERNATIONAL TRIBUNALS: THE FORMER YUGOSLAVIA, RWANDA, AND SIERRA LEONE x-xlv (2006).
[8] Tadiƒ ¶694 ; see Roberts, supra note 6, at 270.
[9] Prosecutor v. Krnojelac, ICTY-97-25-A, Judgement ¶185 (Sept. 17, 2003), available at http://www.icty.org/x/cases/krnojelac/acjug/en/krn-aj030917e.pdf.
[10] Prosecutor v. Kupreškiƒ, Case No. IT-95-16-T, Judgement ¶621 (Jan. 14, 2000), available at http://www.icty.org/x/cases/kupreskic/tjug/en/kup-tj000114e.pdf; Prosecutor v. Krnojelac, Case No. IT-97-25-T, Judgment ¶434 (Mar. 15, 2002), available at http://www.icty. org/x/cases/krnojelac/tjug/en/krn-tj020315e.pdf; Prosecutor v. Kvo…ka, Case No. IT-98-30/1-A, Judgement ¶323 (Feb. 28, 2005), available at http://www.icty.org/x/cases/kvocka/acjug/ en/kvo-aj050228e.pdf.
[11] Prosecutor v. Blaškiƒ, Case No. IT-95-14-A, Judgement ¶135 (July 29, 2004), available at http://www.icty.org/x/cases/blaskic/acjug/en/bla-aj040729e.pdf.
[12] See Rome Statute, supra note 3, at art. 7.
[13] Id. art. 7(2)(g).
[14] Id. art. 7(2)(a).
[15] Id. art. 7(1)(h).
[16] Id.
[17] Id. art. 21(1).
