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Denying the Right of Return as a Crime Against Humanity

Published online by Cambridge University Press:  05 April 2021

Tomer Levinger
Affiliation:
LLB, Tel Aviv University (Israel); tlevinger@gmail.com. I wish to thank Natalie Davidson and Eliav Lieblich for their endless support and most valuable comments. I would also like to thank Yuval Livnat, as well as the anonymous reviewers, Yaël Ronen, and the editorial team of the Israel Law Review. All views and/or mistakes are my own.
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Abstract

This article argues that there are firm grounds upon which to regard the act of denying a person's right of return to their country as a crime against humanity. To make its case, the article builds upon two justifications for the right of return: its grounding based on the human need to belong, and its purpose as a means of preventing rightlessness. The human interests underlying these justifications, the article contends, are similarly those reflected by the image of humanness ingrained within the law of crimes against humanity. Therefore, when the right of return is denied, it is also an assault against humanness as such – a crime against humanity. Recently, proceedings before the International Criminal Court (ICC), with regard to the situation in Bangladesh/Myanmar, have made this question highly relevant. Both the Court's Pre-Trial Chamber and Prosecutor have raised arguments in support of regarding the denial of the right of the Rohingya peoples to return to Myanmar a crime against humanity of other inhumane acts. Consequently, this article attempts to offer support for what might turn out to be an important doctrinal development in ICC jurisprudence.

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Articles
Copyright
Copyright © The Author(s), 2021. Published by Cambridge University Press in association with The Faculty of Law, The Hebrew University of Jerusalem

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References

1 Luban, David, ‘A Theory of Crimes Against Humanity’ (2004) 29 Yale Journal of International Law 85Google Scholar, 87–91.

2 Miller, David, ‘Justifying the Right of Return’ (2020) 21 Theoretical Inquiries in Law 369CrossRefGoogle Scholar.

3 Arendt, Hannah, The Origins of Totalitarianism (Schocken Books 1951) 297Google Scholar.

4 See the recent article by Kearney, Michael G, ‘The Denial of the Right of Return as a Rome Statute Crime’ (2020) 18(4) Journal of International Criminal Justice 985Google Scholar, https://doi.org/10.1093/jicj/mqaa053. Kearney establishes an important and insightful first contribution to the discourse regarding the relationship between the right of return and crimes against humanity. However, while Kearney offers a comprehensive doctrinal analysis of the right of return (particularly in the context of Palestinian refugees), and of the reasoning by the ICC Prosecutor in this regard as part of proceedings pertaining to the Bangladesh/Myanmar situation, his work does not examine the underlying essence of the right of return and of crimes against humanity, their interrelations, and what justifies criminalisation in this context. Thus, it is these last points that this article attempts to develop.

5 For instance, Starr argues that ‘grand corruption’ should be treated as a crime against humanity: Starr, Sonja, ‘Extraordinary Crimes at Ordinary Times: International Justice Beyond Crisis Situations’ (2007) 101 Northwestern University Law Review 1257, 1259Google Scholar; Skogly argues that the concept of crimes against humanity can be used to defend also dignity and equality: Skogly, Sigrun I, ‘Crimes Against Humanity – Revisited: Is There a Role for Economic and Social Rights?’ (2001) 5 International Journal of Human Rights 58, 74CrossRefGoogle Scholar; Renzo argues that the notion of crimes against humanity should also ‘include [and criminalise] some individual violation[s] of human rights’: Renzo, Massimo, ‘Crimes Against Humanity and the Limits of International Criminal Law’ (2012) 31 Law and Philosophy 443, 448CrossRefGoogle Scholar.

6 ICC, Situation in Bangladesh/Myanmar, Decision on the ‘Prosecution's Request for a Ruling on Jurisdiction under Article 19(3) of the Statute’, ICC-RoC46(3)-01/18, Pre-Trial Chamber I, 6 September 2018, para 77 (Bangladesh/Myanmar, PTC I).

7 ICC, Situation in Bangladesh/Myanmar, Request for Authorisation of an Investigation pursuant to Article 15, ICC-01/19-7, Pre-Trial Chamber III, 4 July 2019, para 124 (Bangladesh/Myanmar, OTP Request); Rome Statute of the International Criminal Court (entered into force 1 July 2002) 2187 UNTS 90 (Rome Statute), art 7(1)(k).

8 It should be noted that in ICC, Situation in Bangladesh/Myanmar, Decision pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the People's Republic of Bangladesh/Republic of the Union of Myanmar, ICC-01/19, Pre-Trial Chamber III, 14 November 2019, para 111, the Chamber did not find it necessary to ‘form any view in relation to the facts identified as relevant to the Prosecutor's submissions concerning the alleged crime of other inhumane acts’. Thus, while the act of denying one's right of return was addressed by Pre-Trial Chamber I within its ruling on jurisdiction, Pre-Trial Chamber III remained silent on this matter. Nevertheless, the Chamber did stress that ‘the Prosecutor is not restricted to investigating only the events mentioned in her Request, much less their provisional legal characterisation’. Therefore, the Prosecutor is not barred from bringing forward allegations of a denial of the right of return as a crime against humanity of other inhumane acts, which in turn could ultimately be the subject of a final judicial decision. Furthermore, an allegation of this nature may be relevant in other future proceedings before the Court: see, for instance, Kearney (n 4) 15 (who questions whether the ICC will deal with such conduct in the Situation in Palestine).

9 Bassiouni, M Cherif, ‘Crimes Against Humanity’, in Bassiouni, M Cherif (ed), International Criminal Law, Vol 1: Sources, Subjects and Contents (3rd edn, Brill 2008) 437, 485CrossRefGoogle Scholar.

10 ibid 489.

ibid

11 Macleod, Christopher, ‘Towards a Philosophical Account of Crimes Against Humanity’ (2010) 21 European Journal of International Law 281, 282CrossRefGoogle Scholar.

12 Bassiouni (n 9) 486.

13 ibid.

ibid

14 ibid.

ibid

15 Miller (n 2).

16 Arendt (n 3). Namely, I will argue that when the need to belong is compromised (in situations in which the right of return is denied), individuals are also at risk of becoming rightless, left without the right to have rights because of their location outside the pale of their political community (which is usually the one ‘willing and able’ to guarantee them rights).

17 Luban (n 1).

18 ibid 93.

ibid

19 ibid 111.

ibid

20 ibid 87–91.

ibid

21 Miller (n 2) 373 (suggesting that one ought to look ‘beyond the documents themselves, on the one hand to the actual practice of states, and on the other to the moral grounding of the right, in order to grasp it properly’).

22 Arendt (n 3).

23 Miller (n 2) 373.

24 ibid 370.

ibid

25 ibid.

ibid

26 Universal Declaration of Human Rights, UNGA Res 217A(III), 10 December 1948, UN Doc A/810 (1948), art 13(2).

27 International Covenant on Civil and Political Rights (entered into force 23 March 1976) 999 UNTS 171 (ICCPR), art 12(4).

28 Protocol No 4 to the European Convention of 4 November 1950 for the Protection of Human Rights and Fundamental Freedoms (entered into force 2 May 1968) 1496 UNTS 263, art 3(2).

29 International Convention on the Elimination of All Forms of Racial Discrimination (entered into force 4 January 1969) 660 UNTS 1, art 5(d)(ii).

30 International Convention on the Suppression and Punishment of the Crime of Apartheid (entered into force 18 July 1976) 1015 UNTS 243, art 2(c).

31 American Convention on Human Rights (entered into force 18 July 1978) 1144 UNTS 123, art 22(5).

32 African Charter on Human and Peoples’ Rights (entered into force 21 October 1986) 1520 UNTS 217, art 12(2).

33 Miller (n 2) 373.

34 Bangladesh/Myanmar, OTP Request (n 7) para 135.

35 ibid para 137.

ibid

36 Miller (n 2) 374; Lawand, Kathleen, ‘The Right to Return of Palestinians in International Law’ (1996) 8 International Journal of Refugee Law 532, 548–49CrossRefGoogle Scholar.

37 Hurst Hannum, The Right to Leave and Return in International Law and Practice (Martinus Nijhoff 1987) 56.

38 Miller (n 2) 376.

39 ibid 375.

ibid

40 José D Inglés, Study of Discrimination in Respect of the Right of Everyone to Leave Any Country, Including his Own, and to Return to his Country (17 January 1963), UN Doc E/CN.4/Sub.2/229/Rev.1, 92.

41 Miller (n 2) 387–88, embraces this view as well.

42 ibid 379.

ibid

43 ibid 385.

ibid

44 Margaret Moore, A Political Theory of Territory (Oxford University Press 2015) 41.

45 ibid.

ibid

46 Miller (n 2) 386.

47 ibid.

ibid

48 ibid 389–90.

ibid

49 ibid 387.

ibid

50 ibid.

ibid

51 ibid 388.

ibid

52 ibid.

ibid

53 ibid.

ibid

54 Bill Frelick, ‘The Right of Return’ (1990) 2 International Journal of Refugee Law 442, 444.

55 Shelley Mallett, ‘Understanding Home: A Critical Review of the Literature’ (2004) 52 The Sociological Review 62, 84.

56 Miller (n 2) 393.

57 ibid.

ibid

58 ibid.

ibid

59 ibid 392.

ibid

60 ibid 395 (noting that according to his analysis ‘the ideal return scenario is one where a person returns at the same time to a physical location, a network of people, a cultural way of life, and a political community’. This, in turn, can be achieved only for those who are able to return to places where their communities have been able to continue to live and to sustain their economic and cultural practices).

ibid

61 Victor Tadros, ‘The Persistence of the Right of Return’ (2017) 16 Politics, Philosophy & Economics 375.

62 ibid 382–83.

ibid

63 ibid 383.

ibid

64 Bangladesh/Myanmar, PTC I (n 6) para 77.

65 Bangladesh/Myanmar, OTP Request (n 7) para 132.

66 Arendt (n 3) 267.

67 ibid.

ibid

68 ibid 293.

ibid

69 ibid 294.

ibid

70 ibid 295.

ibid

71 ibid 295–96.

ibid

72 ibid 298.

ibid

73 Ayten Gündogdu, Rightlessness in an Age of Rights: Hannah Arendt and the Contemporary Struggles of Migrants (Oxford University Press 2014) 8.

74 ibid.

ibid

75 ibid.

ibid

76 Jean L Cohen, ‘Changing Paradigms of Citizenship and the Exclusiveness of the Demos’ (1999) 14 International Sociology 245, 258–59.

77 Audrey Macklin, ‘Who Is the Citizen's Other? Considering the Heft of Citizenship’ (2007) 8 Theoretical Inquiries in Law 333, 354.

78 Bangladesh/Myanmar, OTP Request (n 7) para 147.

79 Arendt (n 3) 297.

80 ibid 298.

ibid

81 Luban (n 1).

82 Macleod (n 11) 281.

83 Andrea Bianchi, International Law Theories: An Inquiry into Different Ways of Thinking (Oxford University Press 2016) 59. While discussing the ‘common themes’ emerging out of the variety of approaches to describe international constitutionalism, Bianchi notes that ‘[t]he preoccupation with restraining political power is certainly a shared one, together with the attempt to secure the accountability of decision-makers. Furthermore, the idea that the community must be structured along the societal values that are perceived to be fundamental to the social group, and that the legal system must reflect such preferences by way of articulation of a constitution taken as benchmark and as standard setter for the organized life of the community, are additional common traits. Finally, respect for fundamental human rights and, as just noted, a general concern for the political legitimacy of the system also feature prominently in most projects related to constitutionalism’. Luban's theory, concerned with the way in which governments pervert politics by using their powers against the people they ought to protect, resonates with these formulations of international constitutionalism, namely, because the core value both seem to reflect is that of restraining political power.

84 Renzo (n 5) 446 (adopting a slightly different approach to crimes against humanity, but regarding Luban's theory as plausible and as one that ‘capture[s] the central feature of these crimes as they are currently understood’); Richard Vernon, ‘Crime Against Humanity: A Defence of the “Subsidiarity” View’ (2013) 26 Canadian Journal of Law and Jurisprudence 229, 231 (although offering a different formulation of crimes against humanity, regards Luban's theory as ‘substantially similar’ to his. While Vernon uses the metaphor of ‘travesty’ to describe the way in which ‘a state deploys the powers typical of a state to bring about ends that no theory of the state could possibly justify’, he nevertheless approves Luban's metaphor of cancer, arguing that both belong to ‘political morality and attempts to capture a distinctive kind of moral revulsion’); Ahmedi Sulejman, ‘The Distinctive Legal Features of Crimes Against Humanity’ (2016) 2 European Journal of Interdisciplinary Studies 124, 126 (interpreting crimes against humanity along the lines of Luban's understanding, recalling that they represent ‘the human being as a political animal to double our character as social anti-social individuals, who combine self-awareness and personal interests with a natural need for companionship with others’); Cheikh Mbacke Gueye, ‘Rooted Cosmopolitanism: An Answer to Exclusion and Crime Against Humanity’ (2013) 3 Journal of East-West Thought 45, 53 (recognising that ‘[w]hen politics fails at a local level, there is a risk that unlawful states engage into crimes and odious acts against some groups’, while highlighting that Luban ‘so clearly’ states so as well); Alison N Smeallie, ‘Punishing the Punisher: The Role of the International Criminal Court in Ending Duterte's “War on Drugs”’ (2018) 33 Temple International and Comparative Law Journal 173, 192 (arguing, while citing Luban, that ‘[t]he codification of crimes against humanity in the Rome Statute signals a recognition of the exceptional danger that governments, charged with protecting the people who live in their territory, “will instead… [transform] their homeland from a haven into a killing field.”’); Naomi Harlin Goodno, ‘A Carrot or a Stick? Strengthening the Rule of Law with a Stick: Failure to Enforce Sexual Assault Laws as a Crime Against Humanity’ (2017) 39 University of Pennsylvania Journal of International Law 491, 527 (arguing that theory, as in Luban's perception of crimes against humanity, supports interpreting the failure of governments to enforce rape laws as a crime against humanity); Naomi Roht-Arriaza and Santiago Martinez, ‘Venezuela, Grand Corruption, and the International Criminal Court’, UC Hastings Research Paper No 340 (updated 6 October 2019), 18–19, https://ssrn.com/abstract=3381986 (endorsing Luban's understanding of crimes against humanity to support the conclusion that grand corruption can be regarded as such a crime); Yuri Mantilla, ‘ISIS's Crimes Against Humanity and the Assyrian People: Religious Totalitarianism and the Protection of Fundamental Human Rights’ (2016) 23 ILSA Journal of International and Comparative Law 77, 87–90 (relying solely on Luban's definition and characteristics of crimes against humanity); Antero Holmila, ‘Portraying Genocide: The Nuremberg Trial, the Press in Finland and Sweden and the Holocaust, 1945–46’ (2005) 1 Acta Societatis Martensis 206, 210 (embracing Luban's ‘five distinctive features’ of crimes against humanity); Ioannis Kalpouzos and Itamar Mann, ‘Banal Crimes Against Humanity: The Case of Asylum Seekers in Greece’ (2015) 16 Melbourne Journal of International Law 1, 12 fn 67 (citing Luban's theory as a ‘well-established’ philosophical understanding of crimes against humanity). See also Ryan Liss, ‘Crimes Against the Sovereign Order: Rethinking International Criminal Justice’ (2019) 113 American Journal of International Law 727, 739, 744 (describing Luban's theory as one of the three ‘leading versions’ of theories explicating the humanity aspect of international criminal law. Further, Liss acknowledges that Luban ‘seems to be correct in his core insight regarding the connection between international crimes and the essential role that the state and other political structures play in ordering relationships among persons in a rightful way’); Paulo Barrozo, ‘What Are Transitions For? Atrocity, International Criminal Justice, and the Political’ (2014) 32 Quinnipiac Law Review 675, 704 fn 141 (arguing in favour of a political understanding of transnational justice, while citing Luban as offering a ‘wealth of insights into the connection between criminalization of atrocity and the protection of politics’); Frédéric Mégret, ‘The Unity of International Criminal Law: A Socio-Legal View’ in Kevin Heller and others (eds), The Oxford Handbook of International Criminal Law (Oxford University Press 2020) 811, 834 (regarding Luban's theory as an ‘influential characterization of crimes against humanity’); Kai Ambos, Treatise on International Criminal Law: Vol II: The Crimes and Sentencing (Oxford University Press 2014) 47–48 (supporting Luban's idea of ‘politics gone horribly wrong’ while discussing the legal history and concept of crimes against humanity); Darryl Robinson, ‘Crimes Against Humanity: A Better Policy on “Policy”’ in Carsten Stahn (ed), The Law and Practice of the International Criminal Court (Oxford University Press 2015) 710 (accepting Luban's observation of crimes against humanity, concerning our ‘human nature as social and political animals’, while discussing the policy element of the crime).

85 Luban (n 1) 93.

86 ibid.

ibid

87 ibid 111.

ibid

88 ibid 90–91.

ibid

89 Rome Statute (n 7) art 7. For a general overview of the Rome Statute see Mahnoush H Arsanjani, ‘The Rome Statute of the International Criminal Court’ (1999) 93 American Journal of International Law 22; Antonio Cassese, Paola Gaeta and John RWD Jones, The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press 2002); Darryl Robinson, ‘Defining Crimes Against Humanity at the Rome Conference’ (1999) 93 American Journal of International Law 43.

90 Guido Acquaviva and Fausto Pocar, ‘Crimes Against Humanity’ in Max Planck Encyclopedia of Public International Law (Oxford University Press 2008) paras 1–4.

91 ibid.

ibid

92 Bassiouni (n 9) 437.

93 ibid; Acquaviva and Pocar (n 90) para 3.

ibid

94 Conference of Plenipotentiaries on the Establishment of an International Criminal Court, 15–17 July 1998, UN Doc A/CONF.183/9; Simon Chesterman, ‘An Altogether Different Order: Defining the Elements of Crimes Against Humanity’ (2000) 10 Duke Journal of Comparative & International Law 307.

95 Bassiouni (n 9) 440.

96 ibid; James F Willis, Prologue to Nuremberg: The Politics and Diplomacy of Punishing War Criminals of the First World War (Greenwood Publishing Group 1982) 27; Acquaviva and Pocar (n 90) para 4.

ibid

97 Acquaviva and Pocar (n 90) para 5; Robinson (n 89) 44–45; Bassiouni (n 9) 446.

98 Charter of the International Military Tribunal, Annex to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis (entered into force 8 August 1945) 82 UNTS 279, art 6(c).

99 Charter for the International Military Tribunal for the Far East (amended 26 April 1946) TIAS 1589, art 5(c).

100 Allied Control Council Law No 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, 20 December 1945, reprinted in Telford Taylor, Final Report to the Secretary of the Army on the Nuremberg War Crimes Trials under Control Council Law No. 10 (US Government Printing Office 1949) 250–53; Robinson (n 89) 45; Acquaviva and Pocar (n 90) paras 9–10.

101 Acquaviva and Pocar (n 90) para 13; Robinson (n 89) 45.

102 Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (3 May 1993), UN Doc S/25704 (adopted by UNSC Res 827 (25 May 1993), UN Doc S/RES/827, art 5; Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violation of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994, UNSC Res 955 (8 November 1994), UN Doc S/RES/955, art 3.

103 Robinson (n 89) 45.

104 International Law Commission, Report of the International Law Commission on the Work of Its Seventy-First Session (20 August 2019), UN Doc A/74/10, 22–23.

105 Rome Statute (n 7) art 7; See Acquaviva and Pocar (n 90) paras 18–20; Robinson (n 89) 45.

106 Robinson (n 89) 45.

107 Luban (n 1) 93.

108 Skogly (n 5) 64.

109 Robinson (n 89) 57.

110 ibid 56.

ibid

111 ibid.

ibid

112 ibid; Rome Statute (n 7) art 7(1)(k).

ibid

113 Bangladesh/Myanmar, PTC I (n 6) para 77; Bangladesh/Myanmar, OTP Request (n 7) para 124.

114 ICC, Prosecutor v Dominic Ongwen, Decision on the Confirmation of Charges, ICC-02/04-01/15, Pre-Trial Chamber II, 23 March 2016, para 95.

115 Luban (n 1) 93.

116 ibid.

ibid

117 ibid.

ibid

118 ibid.

ibid

119 ibid 94.

ibid

120 ibid. Luban grounds this argument based on the articulation of crimes against humanity within the various legal instruments presented in subsection 3.1.

ibid

121 See, eg, Rome Statute (n 7) art 7.

122 Luban (n 1) 94.

123 ibid.

ibid

124 ibid.

ibid

125 ibid 95.

ibid

126 ibid.

ibid

127 Miriam Gur-Arye and Alon Harel, ‘Taking Internationalism Seriously: Why International Criminal Law Matters’ in Heller and others (n 84) 215, 215–16.

128 Renzo (n 5) 444.

129 Luban (n 1) 95.

130 ibid.

ibid

131 ibid 96.

ibid

132 ibid.

ibid

133 ibid 97.

ibid

134 ibid.

ibid

135 ibid.

ibid

136 ibid 98.

ibid

137 ibid.

ibid

138 ibid 99.

ibid

139 ibid. Recall also Ongwen (n 114) in which the ICC Pre-Trial Chamber II accepted that forced marriage can constitute a crime against humanity despite it not being formally enumerated in the Rome Statute.

ibid

140 Luban (n 1) 101.

141 ibid 103.

ibid

142 ibid 104.

ibid

143 ibid 105.

ibid

144 ibid 107.

ibid

145 Renzo (n 5) 444.

146 Luban (n 1) 107–08.

147 ibid.

ibid

148 ibid 111.

ibid

149 ibid 109.

ibid

150 ibid 110.

ibid

151 ibid 113. The understanding of human beings as political animals essentially can be attributed to Aristotle: Aristotle, The Politics (Ernest Barker tr, Oxford University Press 1998) Book III, Ch 6, 98.

ibid

152 Luban (n 1) 113.

153 ibid.

ibid

154 ibid.

ibid

155 ibid 116–17.

ibid

156 ibid 117.

ibid

157 ibid.

ibid

158 ibid.

ibid

159 ibid.

ibid

160 ibid.

ibid

161 ibid.

ibid

162 ibid.

ibid

163 This view is supported by Bangladesh/Myanmar, OTP Request (n 7) fn 381 (‘the Prosecution notes that the right to return may potentially be subject to derogation (within the context of specific treaty regimes), or permissibly restricted to the extent defined by duly constituted national law, that is not arbitrary’).

164 Theodore Meron, ‘War Crimes in Yugoslavia and the Development of International Law’ (1994) 88 American Journal of International Law 78, 85.

165 Miller (n 2) 387.

166 ibid 393–94.

ibid

167 ibid 394.

ibid

168 Arendt (n 3) 293.

169 Frelick (n 54) 444.

170 Mallett (n 55) 84.

171 Arendt (n 3) 295.

172 Miller (n 2) 388.

173 Luban (n 1) 116–17.

174 Arendt (n 3) 297.

175 ibid 295–96.

ibid

176 Miller (n 2) 393.

177 Macklin (n 77) 354.

178 Luban (n 1) 117.

179 ibid.

ibid

180 Arendt (n 3) 297.

181 Miller (n 2) 392.

182 ibid 395.

ibid

183 I acknowledge that this view might seem controversial. However, my intention is not to imply that as time passes the right of return should be disregarded altogether, but rather that in such instances it might not be sufficient to justify individual criminal responsibility (when denied).

184 Bangladesh/Myanmar, OTP Request (n 7) para 137; but see Kearney (n 4) 13 (criticising the Prosecutor's position on this matter, arguing that none of the authorities she cites in her request, in order to establish the right of return under international law, ‘appear to imply that this right [should] be delimited or time-barred’).

185 Miller (n 2) 379.

186 Darryl Robinson, ‘The Elements of Crimes Against Humanity’ in Roy S Lee and Håkan Friman, The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Transnational 2001) 57, 65–66.

187 Rome Statute (n 7) art 5.

188 Skogly (n 5) 74–75.

189 Renzo (n 5) 452, drawing on ideas by Larry May, Crimes Against Humanity: A Normative Account (Cambridge University Press 2005) 70–71, and Henry Shue, Basic Rights: Subsistence, Affluence, and U.S. Foreign Policy (Princeton University Press 1996) 19. This view also resonates with Hannah Arendt's concept of ‘the right to have rights’: Arendt (n 3) 296–7.

190 Rome Statute (n 7) art 7(1)(k).

191 For those who question the deterrence effect of international criminal law, see generally Mark A Drumbl, Atrocity, Punishment, and International Law (Cambridge University Press 2007); Martin Mennecke, ‘Punishing Genocidaires: A Deterrent Effect or Not?’ (2007) 8 Human Rights Review 319; Jack Snyder and Leslie Vinjamuri, ‘Trials and Errors: Principle and Pragmatism in Strategies of International Justice’ (2004) 28 International Security 5. For the contrary view, see generally Jo Hyeran and Beth A Simmons, ‘Can the International Criminal Court Deter Atrocity?’ (2016) 70 International Organization 443; Hunjoon Kim and Kathryn Sikkink, ‘Explaining the Deterrence Effect of Human Rights Prosecutions for Transitional Countries’ (2010) 54 International Studies Quarterly 939; Courtney Hillebrecht, ‘The Deterrent Effects of the International Criminal Court: Evidence from Libya’ (2016) 42 International Interactions 616.

192 Geoff Dancy, ‘Searching for Deterrence at the International Criminal Court’ (2017) 17 International Criminal Law Review 625.

193 For instance, while the recent sanctions imposed by the United States over ICC officials seem first and foremost to represent the Court's current political weakness, they nevertheless highlight that states will go to great lengths in order to avoid its interference in their affairs: Executive Order on Blocking Property of Certain Persons Associated with the International Criminal Court, Executive Order 13928 of 11 June 2020, 85 Federal Register 36139, https://www.federalregister.gov/documents/2020/06/15/2020-12953/blocking-property-of-certain-persons-associated-with-the-international-criminal-court.

194 Starr (n 5) 1289–90; Jeremy Sarkin and Erin Daly, ‘Too Many Questions, Too Few Answers: Reconciliation in Transitional Societies’ (2004) 35 Columbia Human Rights Law Review 661, 719 (‘international and even foreign trials do establish a worldwide consensus on the moral unacceptability of crimes against humanity, even if they may not directly promote healing in the society most affected’).

195 See Aloyo, Eamon, ‘Improving Global Accountability: The ICC and Nonviolent Crimes Against Humanity’ (2013) 2 Global Constitutionalism 498CrossRefGoogle Scholar, 517; Luban, David, ‘Beyond Moral Minimalism’ (2006) 20 Ethics & International Affairs 353CrossRefGoogle Scholar, 354–55 (‘[i]nternational criminal trials declare, in the most public way possible, that the condemned deeds are serious transgressions’).

196 Along the lines of the principle of complementarity, Rome Statute (n 7) art 1: ‘[the Court] shall be complementary to national criminal jurisdictions’.

197 Rome Statute (n 7) art 75 provides that the Court shall ‘establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation’. Moreover, art 79 provides that a Trust Fund for victims shall be established. Both articles, according to Keller, represent the fact that the ICC is a ‘major achievement’ in international criminal justice, especially ‘with regard to victims’: Keller, Linda M, ‘Seeking Justice at the International Criminal Court: Victims’ Reparations’ (2007) 29 Thomas Jefferson Law Review 189Google Scholar. For instance, the ICC is the first international criminal tribunal to recognise victims as bearers of participation rights (throughout the trial) and as recipients of reparations (ibid). Most importantly, though, ‘[r]eparation impacts not only on the individual victim, but on his or her family and community and the wider societies affected by contributing to the rebuilding of war-torn societies, by advancing truth and by acknowledging the gravity of the crimes committed’: Redress and Forensic Risk Alliance, ‘The International Criminal Court's Trust Fund for Victims’, December 2013, 1, https://redress.org/wp-content/uploads/2018/01/TFVReport.pdf.

198 ICC, Prosecutor v Germain Katanga, Order for Reparations pursuant to Article 75 of the Statute, ICC-01/04-01/07, Trial Chamber II, 24 March 2017, para 15.

199 Bangladesh/Myanmar, OTP Request (n 7) paras 36–37; Fortify Rights, ‘They Gave Them Long Swords’, July 2018, 35, https://www.fortifyrights.org/downloads/Fortify_Rights_Long_Swords_July_2018.pdf.

200 Bangladesh/Myanmar, OTP Request (n 7) para 45.

201 UN Human Rights Council, Report of the Detailed Findings of the Independent Fact-Finding Mission on Myanmar (17 September 2018), UN Doc A/HRC/39/CRP.2, para 459.

202 ibid.

ibid

203 ibid para 1174.

ibid

204 ibid.

ibid

205 ibid.

ibid

206 ibid.

ibid

207 ibid para 1204.

ibid

208 ibid para 1182.

ibid

209 ibid.

ibid

210 ibid para 1425 (‘[t]he development and reconstruction efforts of the Government in the aftermath of the “clearance operations” in 2017 also indicate plans to relocate other ethnic groups on land where Rohingya villages once stood’).

ibid

211 ibid para 1210; the UN Fact-Finding Mission on Myanmar found reasonable grounds to conclude that ‘the new anti-personnel mines were placed in border areas as part of a deliberate and planned strategy of dissuading Rohingya refugees from attempting to return to Myanmar’ (ibid para 1214); see also ‘Statement of Sheikh Hasina, Prime Minister of Bangladesh to the 72nd Session of the United Nations General Assembly’, 21 September 2017, https://gadebate.un.org/sites/default/files/gastatements/72/bd_en.pdf.

ibid

212 UN Human Rights Council (n 201) para 1217.

213 ibid para 1217–18. This legislation resonates with property laws enacted during the Yugoslav wars, under which ‘people were given “temporary occupancy” rights to so-called “abandoned property”. The underlying problem with these laws, … is the tension between respecting the right of pre-war owners/occupants to return to their homes and the rights of the current or “temporary occupants”’: Rosand, Eric, ‘The Right to Return under International Law Following Mass Dislocation: The Bosnia Precedent?’ (1998) 19 Michigan Journal of International Law 1091Google Scholar, 1101–102.

ibid

214 It should be noted that ICC jurisprudence acknowledges overlap between factual allegations and crimes; namely, that the same underlying act can violate several provisions of the Rome Statute. As noted by Pre-Trial Chamber II in Ongwen (n 114) 32, ‘certain crimes under the Statute may, although based on the same set of facts, be not alternative to each other, but concurrently lead to a conviction. Notably, this is the case when each of these crimes requires proof of a distinct legal element or offends a different protected interest’.

215 UN Human Rights Council (n 201) para 459.

216 ibid para 1174.

ibid

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