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Two Kinds of Wrong: On the Context Element of Crimes against Humanity

  • STEFAN KIRSCH

Abstract

It can be shown that – as with the tie between crimes against humanity and the perpetration of other international crimes in the Charter of the International Military Tribunal in Nuremberg – the context element of the crimes against humanity as set out in the Rome Statute is based on the international law principle of non-interference in the affairs of a foreign country, and only serves to justify ‘international’ jurisdiction in respect of crimes which are typically already punishable pursuant to the lex loci commissii. As a consequence, the feature of a ‘widespread or systematic attack directed against any civilian population’ is not an aggravating circumstance in respect of the material facts of the case that define the wrong of the act (Unrecht) or the offender's blameworthiness (Schuld), but a jurisdictional element which is a mere precondition for prosecution only.

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1 See W. Beulke, Strafprozessrecht (2006), 4; C. Roxin, Strafrecht – Allgemeiner Teil Band I (1997), 908.

2 It seems fair to state that the basic distinction applied in Prosecutor v. Tadić, Judgement, Case No. IT-94-1-A, 15.7.1999, para. 249 (‘The Prosecution is . . . correct in asserting that the armed conflict requirement [in Article 5 of the Statute] is a jurisdictional element, not a substantive element of the mens rea of crimes against humanity’) has not triggered considerable doctrinal debate.

3 G. P. Fletcher, Basic Concepts of Criminal Law (1998), 77.

4 See Prosecutor v. Limaj et al., Judgement, Case No. IT-03-66-T, 30.11.2005, para. 190; Prosecutor v. Kordić and Čerkez, Judgement, Case No. IT-95-14/2-A, 17.12.2004, para. 100; Prosecutor v. Tadić, Judgement, Case No. IT-94-1-A, 15.7.1999, para. 271.

5 International Criminal Court, Elements of Crimes, UN Doc.PCNICC/2000/1/Add.2 (2000), Art. 7: ‘The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack against a civilian population’.

6 C. Kreß and F. Lattanzi (eds.), The Rome Statute and Domestic Legal Orders, Vol. I, General Aspects and Constitutional Issues (2000); C. Kreß et al. (eds.), The Rome Statute and Domestic Legal Orders, Vol. II, Constitutional Issues, Cooperation and Enforcement (2005).

7 A. Zimmermann, ‘Implementing the Statute of the International Criminal Court: The German Example’, in L. C. Vorah et al. (eds.), Men's Inhumanity to Men – Essays on International Law (2003), 977.

8 (2002) 1 Bundesgesetzblatt 2254. I 2002, 2254.

9 M. Bohlander, The German Criminal Code: A Modern English Translation (2008).

10 M. Bohlander, Principles of German Criminal Law (2009), 180. For a more detailed account see W. Kargl, ‘Zum Grundtatbestand der Tötungsdelikte’, (2003) Juristische Zeitung 1141.

11 A translation into German was appended to the draft law submitted by the federal government in relation to the Rome Statute of the International Criminal Court of 17 July 1998 (ICC-Statute Law), BT-Drs. 14/2682 of 14.2.2000.

12 Instructive as to the legal situation prior to the entry into effect of the ICLC is R. Rissing-van Saan, ‘The German Federal Supreme Court and the Prosecution of International Crimes Committed in the Former Yugoslavia’, (2005) Journal of International Criminal Justice 381, at 383.

13 As in S. R. Lüder and T. Vormbaum (eds.), Materialien zum Völkerstrafgesetzbuch – Dokumentation des Gesetzgebungsverfahrens (2002), 3 ff.

14 Bundesrats-Drucksache, 29/02 vom 18.1.2002, 43 f.

15 The ICC Statute, Art. 7(2)(a) reads: ‘For the purpose of paragraph 1 “Attack directed against any civilian population” means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.’

16 Bundesrats-Drucksache, 14/8524 v. 13.3.2002, 20.

17 H. von Hebel and D. Robinson, ‘Crimes within the Jurisdiction of the Court’, in R. S. Lee (ed.), The International Criminal Court – The Making of the Rome Statute (1999), 79 at 94.

18 Art. 6(c) of the IMT Charter as amended by Protocol of 6 October 1945 reads, ‘Crimes against humanity: namely, 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.’ The English text of Art. 6(c) as signed on 8 August 1945 originally contained a semi-colon after the word ‘war’, which was arguably of great significance, since it would have required a more expansive application of the charter (cf. M. C. Bassiouni, Crimes against Humanity in International Criminal Law (1999), 25 et seq.). The origin of the semi-colon is mysterious and has drawn a lot of scholarly attention, though it appears that it was just a mechanical mistake (see R. S. Clark, ‘Crimes against Humanity at Nuremberg’, in G. Ginsburgs and V. N. Kudriavtsev (eds.), The Nuremberg Trial and International Law (1990), 177 at 192).

19 The progress of the deliberations concerning the Charter is recounted in the report of US chief negotiator Jackson (US Department of State, Division of Publications, Report of Robert H. Jackson US Representative to the International Conference on Military Trials London 1945, 1949).

20 T. Taylor, The Anatomy of the Nuremberg Trials (1992).

21 In the course of the discussions on 29 June 1945, Sir David Maxwell Fyfe, who was to become UK deputy chief prosecutor, accordingly referred to the corresponding group of crimes as a ‘violation of municipal law and domestic law’.

22 This point of view is also the basis for the critical appraisal of H. Donnedieu de Vabres, ‘Le procès de Nuremberg’, (1947) Revue de science criminelle et de droit pénal comparé 182.

23 The following day (24 July 1945), whether any such nexus might in fact exist and be provable was the subject of a short discussion between Maxwell Fyfe and Professor Gros, the representative of the French negotiating delegation. The concerns raised quite rightly by Gros were brushed aside by Maxwell Fyfe.

24 On that occasion Jackson said that the term had been suggested to him by an outstanding jurist. According to M. Koskenniemi, ‘Hersch Lauterpacht and the Development of International Criminal Law’, (2004) Journal of International Criminal Justice 810, at 811, it was the jurist Hersch Lauterpacht (1897–1960).

25 See the judgment of 1 October 1946, in Nuremberg Trial of German War Criminals, 1946.

26 UK proceedings were a further exception, being carried out pursuant to a Royal Order.

27 Order No. 47 of the Military Government of 30 August 1946 (Amtsblatt der Militärregierung Deutschland, Britisches Kontrollgebiet, Nr. 13, 306 = JMBl NRW 1947, 50).

28 Ordinance No. 154 of the Military Government of 1 June 1950 (Amtsblatt der Alliierten Hohen-Kommission, 443).

29 The general authorization granted in the British as well as in the French zone was already withdrawn by the end of August 1951, so that convictions pursuant to CCL 10 by courts in the Federal Republic of Germany were no longer possible. The law itself was not repealed in the Federal Republic until the First Law for the Repeal of Occupation Law of 30 May 1956 (BGBl. I, 437). In the German Democratic Republic it was annulled by a decision of the Council of State of the Soviet Union concerning the dissolution of the High Allied Commission of the Soviet Union in Germany of 20 September 1955.

30 H. von Weber, ‘Das Verbrechen gegen die Menschlichkeit in der Rechtsprechung’, (1949) Monatsschrift für Deutsches Recht 263. See also Oberster Gerichtshaf für die Britische Zone (OGH), Urt. vom 20.5.1948 – StS 3/48 = OGHSt 1, 11.

31 G. Radbruch, ‘Zur Diskussion über die Verbrechen gegen die Menschlichkeit’, (1947) Schweizerische Juristen Zeitung 131, at 133.

32 Cf. H. von Hodenberg, ‘Humanitätsverbrechen und ihre Bestrafung’, (1947) Schweizerische Juristen Zeitung 113.

33 Weber, supra note 30; Deutsches Recht 261; K.-A. Storz, Die Rechtsprechung des Obersten Gerichtshofs für die Britische Zone in Strafsachen (1969), 6.

34 Storz, supra note 34, at 18.

35 See Weber, supra note 30; OGH, Judgment of 22.6.1948 – StS 5/48 = OGHSt 1, 19; Judgment of 20 July 1948 – StS 34/48.

36 See OGH, Judgment of 20 May 1948 – StS 3/48 = OGHSt 1, 11; Judgment of 25 May 1948 – StS 1/48 = OGHSt 1,6; Judgment of 22 June 1948 – StS 5/48 = OGHSt 1, 19; Judgment of 10 August 1949 – StS 36/48; Judgment of 18 October 1949 – StS 309/49 = OGHSt 2, 231.

37 According to the jurisprudence of the Oberstes Gerichtshof (Judgment of 25 January 1949 – StS 81/48 = OGHSt 1, 264), even crimes committed prior to 30 January 1933 were considered to be crimes against humanity under Art. II(1)(c) CCL 10.

38 United Nations War Crimes Commission, Law Reports of Trials of War Criminals, IX (1949), 1 (24). Insofar as the US military tribunals took a neutral or diverging view in the decisions Prosecutor v. Altstötter et al. (ibid., VI (1948), 1) and Prosecutor v. Ohlendorf et al. (‘Einsatzgruppen-Judgment’), this may be disregarded, as in neither case were crimes committed before 1939 prosecuted.

39 Instructive here is G. O. Mueller and E. M. Wise, International Criminal Law (1965), 369: ‘It is not clear to what extent this count was more than ancillary to the other charges of war crimes, and it is still arguable whether international law has come to recognize crimes against human status as a distinct offence.

40 ‘Report of the International Law Commission to the General Assembly’, (1950) Yearbook of the International Law Commission, II, 374.

41 ‘Draft Code of Offences against the Peace and Security of Mankind’, (1951) Yearbook of the International Law Commission, II, 133.

42 Ibid., at 149.

43 ‘Report of the International Law Commission to the General Assembly’, (1954) Yearbook of the International Law Commission, II, 150.

44 A proposal along those lines had already been submitted by the government of Yugoslavia. See J. Spiropoulos, Special Rapporteur, Third Report Relating to a Draft Code of Offences against the Peace and Security of Mankind by J. Spiropoulos, UN Doc. A/CN.4/85 (1954), 118.

45 (1954) Yearbook of the International Law Commission, I, 133.

46 Ibid., at 136.

47 Ibid., at 142. The proposal was supported by, inter alia, Lauterpacht.

48 Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc. S/25704 (1993), para. 29.

49 D. Thiam, Fourth Report on the Draft Code of Offences against the Peace and Security of Mankind, UN Doc. A/CN.4/398 (1986), 63; D. Thiam, Seventh Report on the Draft Code of Crimes against the Peace and Security of Mankind, UN Doc. A/CN.4/419 (1989), 81.

50 Report of the International Law Commission on the Work of its Forty-Third Session (29 April–19 July 1991 (UN Doc. A/46/10), (1991) Yearbook of the International Law Commission, II/2, 1 at 79 ff.

51 Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94-1-AR72, 2 October 1995, para. 141.

52 Prosecutor v. Tadić, Judgement, Case No. IT-94-1-A, 15 July 1999, para. 249.

53 See Prosecutor v. Tadić, Judgement, Case No. IT-94-1-A, 15 July 1999, para. 251; Prosecutor v. Kunarac et al., Judgement, Case No. IT-96-23-T & IT-96-23/1-T, 22 February 2001, para. 413.

54 Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94-1-AR72, 2 October 1995, para. 141.

55 Cf. Prosecutor v. Tadić, Opinion and Judgement, Case No. IT-94-1-T, 7 May 1997, paras. 644 ff.; Prosecutor v. Blaškić, Judgement, Case No. IT-95-14-T, 3 March 2000, paras. 198, 202.

56 Report of the International Law Commission on the Work of Its Forty-Seventh Session, UN Doc. A/50/10 (1995), 25 n. 53.

57 Report of the International Law Commission on the Work of Its Forty-Eight Session, UN Doc. A/51/10 (1996), 47.

58 Germany's International Criminal Law Code, however, has not adopted such a restriction, deeming it not to correspond to the present state of international customary law. See G. Werle and F. Jeßberger, ‘Das Völkerstrafgesetzbuch’, (2002) Juristischen Zeitung 731.

59 With regard to the crime of genocide see Kirsch, S., ‘The Two Notions of Genocide: Distinguishing Macro Phenomena and Individual Misconduct’, (2009) 42 (3)Creighton Law Review (forthcoming).

60 It may well be that in the ICC Statute the crime of aggression may be formulated as a leadership crime. See the proposals by the chairman contained in the Discussion Paper, ICC/ASP/5/SWGCA/2, 16 January 2007, 3, in respect of the perpetrators: ‘For the purpose of the present Statute, a person commits a “crime of aggression” when, being in a position to effectively exercise control over or to direct the political or military action of a State . . .’.

61 F. de Menthon, in Nuremberg Trial of German War Criminals.

62 G. Werle, Principles of International Criminal Law (2005), 220.

64 Cf. A. Ashworth, Principles of Criminal Law (2003), 28; H. L. A. Hart, Punishment and Responsibility (1968), 220: ‘Normally in criminal law the minimum condition required for punishment is that the person to be punished should himself have done what the law forbids, at least as so far as outward conduct is concerned.’ See also D. Robinson, ‘The Identity Crisis of International Criminal Law’, (2008) 21 LJIL 925, at 950 and passim.

65 That is, jurisdiction to prescribe and jurisdiction to adjudicate which operate in the sphere of the foreign state.

66 Internationally recognized as such are, for instance, the territoriality principle, the flag principle, and the active and passive personality principle.

67 The wording in the second recital of the Preamble of the ICC Statute.

68 The wording in the fourth recital of the Preamble of the ICC Statute.

69 No such connection exists therefore pursuant to the definition in Art. 1(2) of the Second Additional Protocol of 8 June 1977 to the Geneva Convention of 12 August 1949, concerning the protection of victims of non-international armed conflicts in cases of internal disturbances and tensions, such as riots and isolated and sporadic acts of violence.

70 For more details, see S. Kirsch, Der Begehungszusammenhang der Verbrechen gegen die Menschlichkeit (2009).

71 See H. von Hebel, ‘The Making of the Elements of Crimes’, in R. S. Lee (ed.), The International Criminal Court – Elements of Crimes and Rules of Procedure and Evidence (2001), 8.

72 See supra, note 2.

73 H. Jäger, Makrokriminalität – Studien zur Kriminologie kollektiver Gewalt (1989), at 132.

74 Critical in this respect also are W. Schabas, ‘“Mens Rea” and the International Criminal Tribunal for the Former Yugoslavia’, (2003) New England Law Review 1015, at 1034; G. P. Fletcher and D. Ohlin, ‘Reclaiming Fundamental Principles of Criminal Law in the Darfur Case’, (2005) Journal of International Criminal Justice 539, at 548; A. Bogdan, ‘Individual Criminal Responsibility in the Execution of a “Joint Criminal Enterprise” in the Jurisprudence of the ad hoc International Tribunal for the Former Yugoslavia’, (2006) International Criminal Law Review, 63, at 63; and K. Ambos, ‘Joint Criminal Enterprise and Command Responsibility’, (2007) Journal of International Criminal Justice 159, at 159.

* Dr. jur. (Goethe-Universität, Frankfurt am Main) Rechtsanwalt, Fachanwalt für Strafrecht, and lecturer at Philipps-Universität, Marburg. The line of reasoning contained in this article is based on S. Kirsch, ‘Zweierlei Unrecht – Zum Begehungszusammenhang der Verbrechen gegen die Menschlichkeit’, in R. Michalke, W. Köberer, J. Pauly, and S. Kirsch (eds.), Festschrift für Rainer Hamm (2008), 269. For a more elaborate analysis see also S. Kirsch, Der Begehungszusammenhang der Verbrechen gegen die Menschlichkeit (2009).

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