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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

  • CLAUS KRESS

Abstract

At the beginning of the renaissance of international criminal law in the 1990s, the law on crimes against humanity was in a fragile state. The International Criminal Tribunal for the former Yugoslavia (ICTY) decisively contributed to the consolidation of customary international law on crimes against humanity and paved the way for its first comprehensive codification in Article 7 of the Statute of the International Criminal Court (ICC). At the same time, the ICTY in its early decisions already showed a certain inclination to broaden the scope of the application of the crime by downgrading its contextual requirement. More recently, this tendency culminated in the complete abandonment of the policy requirement. While this ‘progressive’ facet of the ICTY's jurisprudence largely took the form of obiter dicta, the Situation in the Republic of Kenya has confronted the ICC with the need to ‘get serious’ about the present state of the law. This has led to a controversy in Pre-Trial Chamber II about the concept of organization in Article 7(2)(a) of the Statute. While the majority essentially follows the path of the more recent case law of the ICTY, the ICTR, and the Special Tribunal for Sierra Leone and supports a liberal interpretation, Judge Kaul prefers to confine the term to state-like organizations and generally calls for caution against too hasty an expansion of the realm of international criminal law stricto sensu. This comment agrees with the main thrust of the Dissenting Opinion and hopes that it will provoke a thorough debate.

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1 International criminal law stricto sensu establishes individual criminal responsibility directly under international law; see C. Kress, ‘International Criminal Law’, in R. Wolfrum (ed.), Max Planck-Encyclopedia of Public International Law (forthcoming), para. 10; the electronic version can be accessed at www.mpepil.com/ViewPdf/epil/entries/law-9780199231690-e1423.pdf?stylesheet=EPIL-display-full.xsl.

2 The point was made before the issuance of the Kenya decision in C. Kress, ‘Völkerstrafrecht der dritten Generation gegen transnationale Gewaltakte Privater?’, in G. Hankel (ed.), Die Macht und das Recht. Beiträge zum Völkerrecht und zum Völkerstrafrecht am Beginn des 21. Jahrhunderts (2008), 368.

3 Office of the Prosecutor, Request for Authorisation of an Investigation Pursuant to Article 15, ICC-01/09, 26 November 2009, para. 56.

4 Ibid., paras. 67, 68.

5 Ibid., paras. 72, 73, 74, 75, 80.

6 Ibid., Introduction.

7 Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ICC-01/09, 31 March 2010, paras. 115–128 (in particular 117).

8 Ibid., Dissenting Opinion of Judge Hans-Peter Kaul, ICC-01/09, 31 March 2010.

9 This tendency is most clearly discernible from the ICTY's and the ICTR's abandonment of any policy requirement in their more recent jurisprudence, which is usefully summarized in the Dissenting Opinion, supra note 8, para 31 (n. 29).

10 Decision, supra note 7, para. 89; this sweeping statement is questioned in the Dissenting Opinion, supra note 8, para. 43.

11 Decision, supra note 7, para. 90 (footnote omitted).

12 Ibid., para. 93.

13 Ibid., para. 117.

14 An organization is ‘any structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes’, with a structured group defined as being not ‘randomly formed . . . and that does not need to have formally defined roles for its members, continuity of its membership or a developed structure’. It is only consistent with his general dislike of the policy requirement that Matt Halling supports the transfer of this wide definition in the context of Art. 7(2)(a) of the Statute; see ‘Push The Envelope – Watch It Bend: Removing the Policy Requirement and Extending Crimes Against Humanity’ in this issue, at 829.

15 M. Di Fillipo, ‘Terrorist Crimes and International Co-operation: Critical Remarks on the Definition and Inclusion of Terrorism in the Category of International Crimes’, (2008) 19 EJIL, 533, at 564–70. It may be mentioned in passing that the references to scholarly opinions in the Decision, supra note 7, para. 90, nn. 83 and 84) are fairly selective; for an at least somewhat fuller account of the scholarly writing on the subject, see Kress, supra note 2, at 368–71 (with references in nn. 138, 143–8). Beyond that, the article by Darryl Robinson to which the majority refers in the second place (Decision, supra note 7, para. 90, n. 84) does not really support the position taken by the majority. This author does not deal with the question of interpretation in any detail, but merely mentions that the drafters of Art. 7(2)(a) of the ICC Statute were aware of a formulation in the ICTY case law which ‘leaves open the possibility that other organizations [other than those with territorial control] might meet the test as well’. D. Robinson, ‘Defining “Crimes against Humanity” at the Rome Conference’, (1999) 93 AJIL 43, at 50 (see also subsection 2.2.4 infra, text following note 63).

16 The term ‘transnational criminal law’ denotes a body of international treaties dealing with crimes of a transnational character. The key components of such treaties are the duties of states parties to criminalize the prohibited conduct under their national laws and either to investigate and prosecute, or to extradite a suspect apprehended on their territory (aut dedere aut judicare; criminal jurisdiction of the judex deprehensionis); see further Kress, supra note 1, paras. 6–9.

17 Di Fillipo, supra note 15, at 567 and 569 respectively.

18 Decision, supra note 7, at 92.

19 With the single exception of a statement by M. C. Bassiouni, The Legislative History of the International Criminal Court: Introduction Analysis and Integrated Text, vol. 1 (2005), 151; cf. Dissenting Opinion, supra note 8, para. 50 (with a reference in n. 52 to a contradiction in Bassiouni's writings on the matter).

20 Dissenting Opinion, supra note 8, para. 45.

21 Decision, supra note 7, para. 91.

22 On why the Decision refers to the 1991 Draft Code and not to the more recent 1996 Draft Code (UN Doc. A/51/10, 15), see subsection 2.2.4 infra.

23 Di Fillipo, supra note 15, at 567.

24 The second key element of the emergence of a second generation of international criminal law stricto sensu is the crystallization of war crimes committed in non-international armed conflicts. Kress, supra note 1, para. 25.

25 S. Kirsch, Der Begehungszusammenhang der Verbrechen gegen die Menschlichkeit (2009), 105 (with a careful account of the historical development).

26 Para. 3 of the Preamble; note also the title of the 1996 ILC Draft (supra note 22) as ‘Code of Crimes against the Peace and Security of Mankind’.

27 See, e.g., para. 8 of General Comment No. 31 of the UN Human Rights Committee: ‘The article 2, paragraph 1, obligations are binding on State parties only and do not, as such, have direct horizontal effect as a matter of international law’. UN Doc. HRI/GEN/1/Rev.8, 8.5.2006.

28 A. Clapham, ‘Human Rights Obligations of Organized Armed Groups’, in M. Odello and G. L. Beruto (eds.), Non-state Actors and International Humanitarian Law. Organized Armed Groups: A Challenge for the 21st Century. 32nd Roundtable on Current Issues of International Humanitarian Law, San Remo, 11–13 September 2009 (2010), 102, at 103.

29 See, for example, Art. 17 of the Statute; the intrusion into state sovereignty is even greater where, as in the case of the ICTY and the ICTR, the international criminal court possesses a primary right to exercise its jurisdiction.

30 C. Kress and K. Prost, ‘Article 98’, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (2008), para. 16.

31 Kress, C., ‘Universal Jurisdiction over International Crimes and the Institut de Droit International’, (2006) 4 Journal of International Criminal Justice 561.

32 C. Kress and L. Grover, ‘International Criminal Law Restraints in Peace Talks to End Armed Conflicts of a Non-international Character’, in M. Bergsmo and P. Kalmanovitz (eds.), Law in Peace Negotiations (2009), 29.

33 For example, it should also be borne in mind that crimes against humanity are often referred to in the context of the debate about the proper threshold for forcible humanitarian interventions.

34 D. Robinson, ‘The Identity Crisis of International Criminal Law’, (2008) 21 LJIL 925, esp. at 933–46.

35 Dissenting Opinion, supra note 8, para. 6.

36 Ibid., para. 9.

37 Ibid., para. 10.

38 It may be noted in passing that the Dissenting Opinion demonstrates a commendable effort not to exclusively rely on publications written in English.

39 For a compelling argument on why Art. 7(2)(a) of the Statute, although its English version speaks of an ‘organizational policy’, refers to an organization and not simply to an organized manner, see Dissenting Opinion, supra note 8, paras. 37–39.

40 Ibid., para. 51.

41 The Dissenting Opinion itself makes it clear that it draws on that provision (ibid., para. 51, n. 55).

42 Ibid., para. 51 (n. 56 in fine).

43 Dissenting Opinion, supra note 8, paras. 54–55.

44 One could also see the principle contained in the second sentence of Art. 22(2) as a meta-principle of interpretation rather than trying to bring this principle within one of the canons of interpretation.

45 For doubtful techniques to reduce the significance of this principle to almost zero, see Robinson, supra note 34, at 935.

46 Dissenting Opinion, supra note 8, para. 55 n. 61. In this footnote, the interesting point is made that Art. 22(2) of the Statute does also relate to the ‘jurisdictional ambit’ of the Court. Whether the contextual requirement of crimes against humanity is of an exclusively jurisdictional nature is beyond the scope of this case note (but see the observation in note 60 infra). For a recent argument in support of such a characterization see Kirsch, supra note 25, passim.

47 Dissenting Opinion, supra note 8, paras. 56–66; for an enlightening comparison between this reasoning and observations made by the eminent Dutch scholar B. V. A. Röling about sixty years earlier, see van den Herik, L., ‘The Dutch Engagement with the Project of International Criminal Justice’, (2010) 57 Netherlands International Law Review 313.

48 Dissenting Opinion, supra note 8, para. 59.

49 Ibid., para. 66.

50 The pertinent formulation in the Dissenting Opinion (see the text accompanying note 44 supra) would appear to mirror the classic formulation by E. Schwelb, ‘Crimes against Humanity’ (1946) 23 British Yearbook of International Law 178, at 195: ‘A crime against humanity is an offence against certain principles of law, which, in certain circumstances, become the concern of the international community, namely if it has repercussions across international frontiers, or if it passes “in magnitude or savagery any limits of what is tolerable by modern civilisations”.’

51 For an extraordinarily clear presentation and discussion of this debate, see E. de Wet, The Chapter VII Powers of the United Nations Security Council (2004), 138–44.

52 According to those views, a crime against humanity is an attack on the foundations of the international legal order in that members of a significant part of the population of a state are systematically deprived of their essential human rights; see G. Manske, Verbrechen gegen die Menschlichkeit als Verbrechen an der Menschheit (2003), 360–4; K. Gierhake, Begründung des Völkerstrafrechts auf der Grundlage der kantischen Rechtslehre (2006), 266–76; the Dissenting Opinion, supra note 8, uses similar language in para. 60.

53 I am unaware of any Security Council determination under Chapter VII of the UN Charter that the situation in the republic of Kenya constituted a threat to international peace and security; the Presidential Statement of 6 February 2008 mentions the Security Council's ‘call for those responsible for violence to be brought to justice’, but does not use language that would suggest the qualification as crimes against humanity. S/PRST/2008/4, 6.2.2008, at 1.

54 Dissenting Opinion, supra note 8, para. 63.

55 Ibid., para. 62.

56 Ibid., para. 66.

57 I shall not return, at this point in the analysis, to the consideration advanced in subsection 1.2 supra that it is only the state which can violate international human rights law stricto sensu. This point was made to demonstrate that the general scope of application of crimes against humanity cannot simply be broadened in order to strengthen the protection of internationally recognized human rights. At this juncture, we start from the premise of a very high threshold for crimes against humanity. Within such a limited sphere, as in the case of genocide, the international community might have accepted the international criminalization of conduct outside the context of state or state-like action.

58 Dissenting Opinion, supra note 8, paras. 63, 64.

59 In the literature, this point has been made, for example, by E.-J. Lampe, ‘Verbrechen gegen die Menschlichkeit’, in H.-J. Hirsch et al. (eds.), Festschrift für Günter Kohlmann (2003), 153; Kirsch, supra note 25, at 150–4.

60 It should be emphasized that this consideration is a purely jurisdictional one.

61 H. v. Hebel and D. Robinson, ‘Crimes within the Jurisdiction of the Court’, in R. Lee (ed.), The International Criminal Court (1999), at 186.

62 For such a two-pillar explanation of the right to exercise (true) universal jurisdiction, see T. Weigend, ‘Grund und Grenzen universaler Gerichtsbarkeit’, in J. Arnold et al. (eds.), Festschrift für Albin Eser (2005), at 973.

63 The Dissenting Opinion, supra note 8, para. 58 (n. 62), refers, inter alia, to one important strand of the debate which is situated within the context of the philosophy of Immanuel Kant. This has remained, for the time being, a debate led by German scholars and in the German language (the three most important contributions – two of which are referred to in the Dissenting Opinion, ibid. – are Köhler, M., ‘Zum Begriff des Völkerstrafrechts’, (2003) 11 Annual Review of Law and Ethics 435; Manske, supra note 52, at 273–365 and passim; Gierhake, supra note 52, at 266–76 and passim). It would be fascinating to see to what extent a similar philosophical debate is under way elsewhere. For a scholarly recent attempt in the English language to explore the nature of crimes against humanity, see C. Macleod, ‘Towards a Philosophical Account of Crimes against Humanity’, (2010) 21 EJIL 281.

64 Dissenting Opinion, supra note 8, para. 63.

65 Ibid., para. 32; see also the statement in para. 5: ‘This conclusion does not preclude or prejudice any finding on individual criminal responsibility for crimes committed in the Republic of Kenya under customary law [footnote omitted]’.

66 For a thoughtful and more detailed discussion of this point, see L. Grover, ‘A Call to Arms: Fundamental Dilemmas Confronting the Interpretation of Crimes in the Rome Statute of the International Criminal Court’, (2010) 21 EJIL (forthcoming).

67 The most important case is a Security Council referral of a situation pursuant to Art. 13(b) of the Statute and the second case is a non-state party's declaration under Art. 12(3).

68 A. Zimmermann, ‘Article 5’, in Triffterer, supra note 30, para. 1; for many further references see Grover, supra note 66.

69 Robinson, supra n. 15, at 50 (n. 44); this reference does not, of course, carry the same weight as a reference to the travaux préparatoires of the Statute. Such a weighty reference, however, is not required at this juncture as the general intent is clear and the point here is simply to indicate that the negotiations on the contextual requirement of crimes against humanity are fully in line with this general intent.

70 Prosecutor v. Tadić, Case No. IT-91-1-T, 7 May 1997, para. 654.

71 (1991-II-2) YILC, at 103.

72 Robinson, supra note 69.

73 The judgment of the ICTY Appeals Chamber in Prosecutor v. Kunarac, Case Nos. IT-96-23 and IT-96-23/1-A, 12 June 2002, para. 98, marks the famous turning point of the international jurisprudence; see also supra note 9.

74 Dissenting Opinion, supra note 8, para. 30 (emphases in the original).

75 For a full exposition of this critique, see Schabas, W. A., ‘State Policy as an Element of International Crimes’, (2008) 98 Journal of Criminal Law & Criminology 981. It is highly deplorable that the Trial Chamber within the Extraordinary Chambers in the Courts of Cambodia uncritically accepts Kunarac in its recent Judgment of 26 July 2010, 001/18-07-2007/ECCC/TC, para. 301.

76 Halling, supra note 14, at 830.

77 Of course, it is possible in the light of Art. 10 of the Statute that Art. 7(2)(a) is more restrictive than customary international law, but nothing suggests that the drafters have made a deliberate choice to fall behind existing customary international law. The far better explanation of the inclusion of the policy requirement in the Statute's definition of crimes against humanity is that there is as yet no consensus on a customary definition of those crimes without such a requirement.

78 For a full exposition of this critique, see Kress, supra note 2, at 377–8.

79 Prosecutor v. Tadić, supra note 70, para. 655.

80 L. May, Crimes against Humanity: A Normative Account (2005), 88.

81 For the same view, see W. A. Schabas, ‘Prosecuting Dr Strangelove, Goldfinger and the Joker at the International Criminal Court: Closing the Loopholes’, in this issue, at 850.

82 See, for example, Halling, supra note 14, at 836.

83 It is regrettable that the ICTY does not as yet appreciate the usefulness of this clarification and instead attempts to distance the state consensus reflected in this ‘contextual element’ from customary international law; for the most recent rehearsal of this position see Prosecutor v. Popović, Case No. IT-5-88-T, 10 June 2010, para. 829; for an explanation of the ‘contextual element’ see Kress, C., ‘The Crime of Genocide and Contextual Elements: A Comment on the ICC Pre-Trial Chamber's Decision in the Al Bashir Case’, (2009) 7 Journal of International Criminal Justice 297.

84 W. Schabas, ‘Darfur and the “Odious Scourge”: The Commission of Inquiry's Findings on Genocide’, (2005) 18 LJIL 877.

85 This argument is also made by Halling, supra note 14, at 838.

86 For the same view, see Schabas, supra note 75, at 981.

87 In Kress, supra note 2, at 378, I had argued that there is as yet no state practice in support of an expansion of the concept of organization in Art. 7(2)(a) of the Statute into the area of organizations without territorial control. In my more recent article ‘Some Reflections on the International Legal Framework Governing Transnational Armed Conflicts’, (2010) 15 Journal of Conflict & Security Law 271, I had, however, recognized that a case could be made for including also those organizations which pass the organizational threshold for classification as a party to a non-international armed conflict; this would seem to be position endorsed in the Dissenting Opinion (see the text accompanying note 42supra).

88 On the following text see C. Kress, ‘The International Criminal Court as a Turning Point in the History of International Criminal Justice’, in A. Cassese (ed.), The Oxford Companion to International Criminal Justice (2009), 147, 153–4.

89 Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94-1-AR72, 2 October 1995, paras. 96–135.

* Professor of Public International Law and Criminal Law, University of Cologne [].

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