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Refining the Structure and Revisiting the Relevant Jurisdiction of Crimes against Humanity

Published online by Cambridge University Press:  02 February 2016

Alain Zysset
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Abstract

In this article, I test predominant normative approaches to CAH against the notion’s deployment in law. Embarking on this cross-disciplinary project is needed because those the predominant literature fail to address (or were just articulated before) the waves of cases brought before international criminal courts throughout the last decade. I start by examining how international criminal courts have specified the core elements of the definition and then assess if and how the predominant philosophical literature can account for it. I then argue that this legal-empirical inquiry leads to both refining the structure and revisiting the relevant jurisdiction of CAH.

As far as structure is concerned, I distinguish a third but neglected element in the structure of CAH, which I identify as the preparatory conditions of the crimes (the ‘PCs’). In relying on Joseph Raz’ concept of authority, I argue that reconstructing the PCs help to specify what it is about states that those crimes deeply pervert. While the PCs strikingly mirror the systematic and pre-emptive role of the state, those patterns are established to massively persecute, terrorize and finally odiously attack. As far as jurisdiction is concerned, I infer that the agent of CAH and the state in which those crimes occur become ‘answerable’ to the normative community of responsible states (following Anthony Duff’s accountability model). By establishing international trials, this normative community does justice not only to the victims by proving the crimes but also to the perpetrators by treating them as responsible members.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 29 , Issue 1 , February 2016 , pp. 245 - 265
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2016 

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References

1. Rome Statute of the International Criminal Court, 17 July 1998 at Preamble (entered into force 1 July 2002), online: ICC https://www.icc-cpi.int/EN_Menus/ICC/Pages/default.aspx. [Rome Statute].

2. Ibid at Article 7(2)(a).

3. Renzo, Massimo, “Crimes Against Humanity and the Limits of International Criminal Law” (2012) 31:Google Scholar 4 Law & Phil 443 at 448.

4. For Duff”s framework applied to international criminal law, see in particular Antony Duff, “Authority and Responsibility in International Criminal Law” in Besson, Samantha & Tasioulas, John, eds, The Philosophy of International Law (New York: Oxford University Press, 2010Google Scholar ) 589 [Duff].

5. David Luban, “A Theory of Crimes Against Humanity” online: (2004) Georgetown Law Faculty Publications and Other Works. Paper 146 at 90 http://scholarship.law.georgetown.edu/facpub/146/.

6. Vernon, Richard, “What Is Crime against Humanity?” (2002) 10:3Google Scholar J Pol Phil 231 at 242.

7. Luban, supra note 5 at 141.

8. Vernon, “What Is Crime against Humanity?”, supra note 6 at 245.

9. Richard Vernon, ‘Crime against Humanity: A Defence of the “Subsidiarity” View’ (2013) 26:1 Can J L & Juris 229 at 232 [Vernon, A Defence of the “Subsidiarity” View].

10. Raz, Joseph, The Morality of Freedom (Oxford: Clarendon Press, 1986)Google Scholar at ch 3.

11. Duff, supra note 4 at 603.

12. Renzo, supra note 3 at 445.

13. Ibid at 444.

14. Jalloh, Charles, “What Makes a Crime Against Humanity a Crime Against Humanity” (2013) 28:2Google Scholar Am U Int’l L Rev 381 at 414.

15. Rome Statute, supra note 1 at Article 7(2)(a).

16. For an overview of this debate, see Robinson, Darryl, ‘Crimes Against Humanity: A Better Policy on “Policy”’ online: (December 5, 2013),Google Scholar Queen’s University Legal Research Paper No. 2015-022 at 9-10 http://www.ssrn.com/en/ [Robinson, A Better Policy on “Policy”].

17. Cherif Bassiouni, M, The Legislative History of the International Criminal Court (New York: Transnational Publishers, 2005) vol 1 at 151-52.Google Scholar

18. See, e.g., Halling, Matt, “Push the Envelope—Watch It Bend: Removing the Policy Requirement and Extending Crimes against Humanity” (2010) 23:4Google Scholar Leiden J Int’l Law 827 and the reply by Schabas, William A, “Prosecuting Dr Strangelove, Goldfinger, and the Joker at the International Criminal Court: Closing the Loopholes” (2010) 23:4Google Scholar Leiden J Int’l Law 847.

19. Prosecutor v Jean-Pierre Bemba Gombo, ICC-01/05-01/08, Decision on the Confirmation of the Charges (15 June 2009) at paras 83-84 (International Criminal Court, Pre-Trial Chamber), online: ICC https://www.icc-cpi.int/EN_Menus/ICC/Pages/default.aspx [Jean-Pierre Gombo].

20. Ibid at para 81.

21. Situation in the Republic of Kenya, ICC-01/09-19, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya (31 March 2010) at para 93 (International Criminal Court, Pre-Trial Chamber), online: ICC https://www.icc-cpi.int/EN_Menus/ICC/Pages/default.aspx.

22. Prosecutor v Tadic, IT-94-1-T, Opinion and Judgment (7 May 1997) at para 653 (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber), online: ICTY http://www.icty.org/.

23. Prosecutor v Kupreškic, IT-95-16-T, Judgment (14 January 2000) at para 552 (International Criminal Court for the Former Yugoslavia, Trial Camber), online: ICTY http://www.icty.org/ [Kupreškic].

24. Prosecutor v Dario Kordic, IT-95-14/2-T, Judgment (26 February 2001) at paras 181-82 (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber), online: ICTY http://www.icty.org/.

25. Situation in the Republic of Kenya, supra note 21 at para 87.

26. Rodenhäuser, Tilman, “Beyond State Crimes: Non-State Entities and Crimes against Humanity” (2014) 27:4Google Scholar Leiden J Int’l Law 913 at 923.

27. Kress, Claus, “On the Outer Limits of Crimes against Humanity: The Concept of Organization within the Policy Requirement: Some Reflections on the March 2010 ICC Kenya Decision” (2010) 23:4Google Scholar Leiden J Int’l Law 855 at 856.

28. Situation in the Republic of Kenya, supra note 21, Dissenting Opinion of Judge Hans-Peter Kaul at para 9.

29. Ibid at para 51.

30. Ibid.

31. Kress, supra note 27 at 861.

32. Robinson, A Better Policy on “Policy”, supra note 16 at 2.

33. Darryl Robinson, “Essence of Crimes against Humanity Raised by Challenges at ICC” (27 September 2011), EJIL: Talk! (blog), online: http://www.ejiltalk.org/essence-of-crimes-against-humanity-raised-by-challenges-at-icc/ [Robinson, Essence of Crimes Against Humanity].

34. Robinson, A Better Policy on “Policy”, supra note 16 at 10.

35. Rodenhäuser, supra note 26 at 916.

36. Renzo, supra note 3 at 447.

37. While discriminatory intent originated in the ICTY’s case law, it is not stringent in the predominant literature and was rejected in the drafting of the Rome Statute. See Robinson, A Better Policy on “Policy”, supra note 16 at 11.

38. Renzo, supra note 3 at 449.

39. Ibid at 461.

40. Ibid at 453.

41. I am referring here to the debate opposing the “moral” and the “political” conceptions of human rights. See in particular the threshold critique (in defence of the political camp) provided by Raz in Joseph Raz, “Human Rights without Foundations” in Besson, Samantha & Tasioulas, John, eds, The Philosophy of International Law (New York: Oxford University Press, 2010) 321.Google Scholar

42. Kress, supra note 27 at 861.

43. Chehtman, Alejandro, “Contemporary Approaches to the Philosophy of Crimes against Humanity” (2014) 14:4-5Google Scholar Int’l Criminal L Rev 813 at 831.

44. See May, Larry, Crimes Against Humanity: A Normative Account (Cambridge: Cambridge University Press, 2005)Google Scholar in particular ch 5.

45. Renzo, supra note 3 at 456.

46. Luban, supra note 5 at 110.

47. Ibid at 120.

48. Ibid at 90.

49. Ibid at 117.

50. Vernon, “What Is Crime against Humanity?”, supra note 6 at 243.

51. Renzo, supra note 3 at 460.

52. Luban, supra note 5 at 109.

53. Ibid at 117.

54. Chehtman, supra note 4 at 819.

55. Luban, supra note 5 at 141.

56. Such principles include the rights to a speedy, public trial; the right to offer a defence or the right to be informed of the charges. See Luban’s list in Luban, David, “Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of International Criminal Law” in Besson, Samantha & Tasioulas, John, eds., The Philosophy of International Law (New York: Oxford University Press, 2010) 569Google Scholar at 580 [Luban, Fairness to Rightness].

57. Luban, supra note 5 at 143.

58. Ibid at 144.

59. Luban, Fairness to Rightness, supra note 56 at 571.

60. Luban, supra note 5 at 143.

61. Ibid at 102.

62. Kupreškic, supra note 23 at para 552.

63. Robinson, Essence of Crimes against Humanity, supra note 33.

64. Jean-Pierre Gombo, supra note 19 at para 115.

65. The Prosecutor v Bosco Ntaganda, ICC-01/04-02/06, Decision on the confirmation of charges against Bosco Ntaganda, (9 June 2014) at para 17 (International Criminal Court, Pre-Trial Chamber) online: ICC https://www.icc-cpi.int/EN_Menus/ICC/Pages/default.aspx [Bosco Ntaganda].

66. The Prosecutor v William Samoeiruto, Henry Kiprono Kosgey and Joshua Arap Sang, ICC-01/09-01/11, Decision on the confirmation of the charges (23 January 2012) at para 219 (International Criminal Court, Pre-Trial Chamber), online: ICC https://www.icc-cpi.int/EN_Menus/ICC/Pages/default.aspx [Samoeiruto].

67. Rodenhäuser, supra note 26 at 920.

68. Robinson, A Better Policy on “Policy”, supra note 16 at 16.

69. Ibid at 13.

70. Situation in the Republic of Kenya, supra note 21 at para 87.

71. Rodenhäuser, supra note 26 at 926.

72. Samoeiruto, supra note 66 at para 216.

73. Bosco Ntaganda, supra note 65 at para 21.

74. Robinson, A Better Policy on “Policy”, supra note 16 at 11.

75. Vernon, A Defence of the “Subsidiarity” View, supra note 9 at 231.

76. Vernon, “What Is Crime against Humanity?”, supra note 6 at 243.

77. Ibid.

78. Vernon, A Defence of the “Subsidiarity” View, supra note 9 at 230.

79. Raz, The Morality of Freedom, supra note 10 at 35.

80. As Raz explains, legitimate authority “involves showing that the alleged subject is likely better to comply with reasons which apply to him (other than the alleged authoritative directives) if he accepts the directives of the alleged authority as authoritatively binding and tries to follow them, rather than by trying to follow the reasons which apply to him directly.” Ibid at 53.

81. Rodenhäuser, supra note 26 at 926.

82. Bosco Ntaganda, supra note 65 at 19.

83. Samoeiruto, supra note 66 at para 172 [emphasis added].

84. Duff, supra note 4 at 598.

85. Ibid at 599.

86. Rome Statute, supra note 1 at Article 13 (b).

87. Duff, supra note 4 at 604.

88. Normas Geras, Crimes against humanity: birth of a concept (Manchester: Manchester University Press, 2011) at 94.