THE JURISPRUDENTIAL CONTRIBUTIONS OF CRIMES AGAINST HUMANITY THE EVOLUTION OF THE NEXUS REQUIREMENT JOHN CERONE THE ICTR TO THE LEGAL DEFINITION OF

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1 THE JURISPRUDENTIAL CONTRIBUTIONS OF THE ICTR TO THE LEGAL DEFINITION OF CRIMES AGAINST HUMANITY THE EVOLUTION OF THE NEXUS REQUIREMENT JOHN CERONE INTRODUCTION The ICTR has made a number of significant contributions in the jurisprudential development of international criminal law. Among its most significant has been the ICTR s contribution to the evolution of the notion of Crimes Against Humanity and the necessary link between individual crimes and the broader attack that raises such crimes to the level of international regulation. I. THE ORIGINS OF THE LEGAL NOTION OF CRIMES AGAINST HUMANITY While the term crimes against humanity is not new, its legal meaning has evolved only recently. At the turn of the twentieth century, the term could be used to express moral condemnation, but was otherwise devoid of legal content. It was not until the adoption of the 1945 London Agreement, establishing the International Military Tribunal (IMT) at Nuremberg, that the international community authoritatively articulated a legal definition for this category of crimes. Conscious of the innovative nature of their undertaking, and paying heed to the principle of legality, 1 the drafters of the IMT Charter drew upon a number of pre-existing legal concepts that provided, in some sense, a legal foundation for this development. Professor John Cerone is Director of the Center for International Law & Policy at the New England School of Law. He has previously served as a legal advisor to the International Criminal Tribunal for Rwanda. 1. Whether the Tribunal in fact complied with the principle of legality is a matter of some controversy. 191

2 192 NEW ENG. J. OF INT L & COMP. L. [Vol. 14:2 A. The Laws of Humanity The idea of laws or principles of humanity first appeared in a multilateral treaty in the preamble to the Hague Convention on the Laws and Customs of War on Land. 2 This language, proposed by the eminent jurist and Russian delegate to the Hague Peace Conference of 1899 F. F. de Martens, was intended to serve as a gap-filler, invoking natural law to provide residual protection against acts that were not expressly prohibited by the operative text. The Martens Clause provides: Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience. 3 Essentially, the Clause reverses the normal presumption that what is not prohibited is permitted. Lord Wright, Chairman of the United Nations War Crimes Commission, considered the clause the embodiment of the fundamental principles underlying the laws and customs of war, for the provisions of the Convention left many war crimes to the governing effect of that sovereign clause which... does really in a few words state the whole animating and motivating principle of the law of war. 4 However, it was not until the wholesale slaughters of the First World War that these terms began to acquire independent legal significance. But even at that point, there was no consensus as to their legal content. B. Crimes Against Humanity Before Nuremberg The phrase crimes against humanity appeared, in its earliest modern construction, in a 1915 declaration from the British, French, and Russian governments to the Sublime Porte threatening criminal prosecution for the Ottoman mass executions of Armenians. Foreshadowing ideas developed in the London Agreement that created the International Military Tribunal at Nuremberg, the governments threatened to hold personally responsible 2. Convention With Respect to the Laws and Customs of War on Land (Hague IV), pmbl., Oct. 18, 1907, 36 Stat. 2277, 1 Bevans Id. 4. UNITED NATIONS WAR CRIMES COMMISSION, 15 LAW REPORTS OF TRIALS OF WAR CRIMINALS, xiii (Hein 1997) (1949).

3 2008] JURISPRUDENTIAL CONTRIBUTIONS OF THE ICTR 193 for these crimes the Ottoman leadership. The declaration condemned, in particular, these new crimes of Turkey against humanity and civilization. 5 At the end of World War I, Britain attempted to follow through and create a war crimes tribunal at Constantinople. The Treaty of Sèvres, the peace agreement for the Ottoman Empire, directly dealt with prosecuting war criminals. Sèvres included a provision addressing prosecution of Turks responsible for the mass executions of Armenians, presaging the London Charter s crimes against humanity provision. However, Sèvres was never ratified, and instead was replaced by the Treaty of Lausanne, which omitted the original provision and further, included an amnesty for all Turkish military and political actions. The victorious nations of World War I also attempted to institute an international criminal tribunal for the German war criminals. Created at the Paris Peace Conference to inquire into and report on allegations of breaches of the laws and customs of war, the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties (the Paris Commission ) ended in disagreement over the inclusion of crimes against humanity. The Paris Commission Report charged that individuals, including high government officers, would be held criminally responsible for committing offenses against the laws of humanity. A majority on the Paris Commission concluded that the Central powers illegitimately instigated and executed the war in violation of the elementary laws of humanity. 6 Harkening back to the language of the declaration of intent from May of 1915, this phrase attracted the principle thrust of the American dissent. The American representatives refused to accept that all offenses under this description were legally (as opposed to morally) justiciable. 7 Raising a nullum crimen sine lege objection, the Americans rejected the idea that inhuman acts could attract legal punishment if such acts were consistent with the laws and customs of war. 8 Further, the Americans challenged the basing of criminality on the laws or principles of humanity because such principles varied by arbiter, time, place, and circumstance, and therefore could not be adjudicated fairly. 9 Due 5. H.R. Res. 596, 106th Cong. (1999). 6. Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, reprinted in 14 AM. J. INT L L. 95, 115 (1920). 7. Memorandum of Reservations Presented by the Representatives of the United States to the Report of the Commission on Responsibilities, reprinted in 14 AM. J. INT L L. 127, 139 (1920). 8. Id. at Id. It continued: There is no fixed and universal standard of humanity. The law of

4 194 NEW ENG. J. OF INT L & COMP. L. [Vol. 14:2 to this irreconcilable divide, the Treaty of Versailles contained no reference to crimes against humanity. C. The International Military Tribunal at Nuremberg The drafters of the London Agreement and its annexed Charter of the International Military Tribunal (IMT) at Nuremberg understood the innovative nature of this undertaking. Not only were they consolidating the principle of individual criminal responsibility for certain serious violations of international law, but they were also eroding to a substantial degree the non-intervention principle. While the concept that international law took cognizance of Crimes Against Peace and War Crimes was not novel, the same could not be said for Crimes Against Humanity, a phrase which until that point still lacked any definite legal content. The inclusion of Crimes Against Peace and War Crimes was not particularly controversial, as each entailed a substantial transnational dimension, either the use of armed force by one state against another or abuses committed by someone acting on behalf of one state against the citizen of another. This transnational dimension placed these acts within the traditional inter-state framework of international law. However, the inclusion of Crimes Against Humanity, which comprised certain inhumane acts committed in the course of an attack against any civilian population, was a watershed event in international law. By making clear that such crimes could be committed even within a single state, the drafters broke new ground. Nonetheless, the drafters expressed a degree of caution by including a nexus requirement. Crimes Against Humanity could only be prosecuted if they were committed in execution of or in connection with any [other] crime within the jurisdiction of the Tribunal. 10 Thus, there had to be a connection to a traditional inter-state violation for the Tribunal to exercise jurisdiction over this newly defined humanity, or the principle of humanity, is much like equity, whereof John Selden, as wise and cautious as he was learned, aptly said: Equity is a roguish thing. For Law we have a measure, know what to trust to; Equity is according to the conscience of him that is Chancellor, and as that is larger or narrower, so is Equity. Tis all one as if they should make the standard for the measure we call a foot a Chancellor s foot; what an uncertain measure would this be! One Chancellor has a long foot, another a short foot, a third an indifferent foot. Tis the same thing in the Chancellor s conscience. Id. at Charter of the International Military Tribunal art. 6(c), annexed to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, 82 U.N.T.S. 280.

5 2008] JURISPRUDENTIAL CONTRIBUTIONS OF THE ICTR 195 category of crimes. II. THE EVOLUTION OF THE LEGAL DEFINITION OF CRIMES AGAINST HUMANITY THROUGH THE WORK OF THE ICTR The creation of the ICTR was similarly revolutionary. For the first time, the United Nations Security Council established a Tribunal in response to atrocities committed in a conflict that was regarded as internal in nature. While the Security Council had created the Yugoslav Tribunal a year earlier, some of the constituent Republics of the former Yugoslavia had by that time become independent, rendering that conflict international. As a Tribunal created in the context of an internal conflict, all of the crimes within the Rwanda Tribunal s subject matter jurisdiction were capable of being committed in a purely internal conflict. Thus, the ICTR s definition of Crimes Against Humanity did not contain a nexus requirement in the sense of the IMT s nexus requirement. However, the ICTR definition of Crimes Against Humanity retains another sort of nexus requirement. For an individual crime to constitute a Crime Against Humanity, the individual crime must be committed as part of a broader attack against a civilian population. This nexus requirement between the individual crime and the broader attack is now accepted as an element for all Crimes Against Humanity as defined by each of the international and hybrid criminal courts. Indeed, it is this nexus requirement that distinguishes Crimes Against Humanity from ordinary crimes, just as War Crimes are distinguished from ordinary crimes by virtue of their connection to an armed conflict and genocidal acts are distinguished from ordinary crimes by the special intent required for their commission (i.e. the intent to destroy a racial, ethnical, national, or religious group in whole or in part). A. The ICTR Statute Article 3 of the ICTR Statute sets forth its definition for Crimes Against Humanity: The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation;

6 196 NEW ENG. J. OF INT L & COMP. L. [Vol. 14:2 (e) Imprisonment; (f) Torture; (g) Rape; (h) Persecutions on political, racial and religious grounds; (i) Other inhumane acts. 11 This definition comprises contextual elements, set forth in the chapeau, followed by a list of enumerated acts. The ICTR Statute requires that each act must be part of an attack that is widespread or systematic, directed against a civilian population, and based on certain discriminatory grounds. This definition entailed a number of innovative features. It expressly set forth for the first time the requirement that the attack be widespread or systematic. While this requirement had previously been recognized in the jurisprudence of the IMT, it was not expressly included in the IMT Charter or the ICTY Statute. Also, unlike the ICTY Statute, the definition in the ICTR Statute contains no requirement that the crimes be committed during an armed conflict. 12 However, as noted above, the Statute retains a nexus requirement of sorts. While it is no longer necessary to show a link to an inter-state violation of international law or the existence of armed conflict, it is necessary to show that one of the enumerated acts was committed as part of a broader attack against a civilian population. B. Jurisprudential Contributions of the Rwanda Tribunal The jurisprudential contributions of the Trial and Appeals Chambers of the Rwanda Tribunal are too numerous to survey in the present article. However, a few of its most significant contributions to the legal notion of crimes against humanity are set forth herein. The chapeau language of Article 3 encompasses a complex array of composite contextual elements, including the establishment of an attack, the nature of that attack, and the nexus between the attack and an individual perpetrator s act. There is a great deal of overlap among them, both conceptually and in terms of the facts that would be required to prove each. The jurisprudence of the ICTR has helped to clarify the definition by 11. Statute of the International Criminal Tribunal for Rwanda, S.C. Res. 955, Annex art. 3, U.N. Doc. S/RES/955/Annex (Nov. 8, 1994). 12. At the same time, the ICTR Statute does include a new jurisdictional element that the attack be discriminatory. However, the Tribunal has made clear that this element is purely jurisdictional and is not part of the definition of Crimes Against Humanity under customary international law.

7 2008] JURISPRUDENTIAL CONTRIBUTIONS OF THE ICTR 197 parsing out these distinct components. 1. Definition of Attack While the definition of an attack remains fairly nebulous, the ICTR has provided some important guidance. For example, the Akayesu Trial Chamber indicated: The concept of attack may be defined as a unlawful act of the kind enumerated in Article 3(a) to (I) of the Statute, like murder, extermination, enslavement etc. An attack may also be non violent in nature, like imposing a system of apartheid, which is declared a crime against humanity in Article 1 of the Apartheid Convention of 1973, or exerting pressure on the population to act in a particular manner, may come under the purview of an attack, if orchestrated on a massive scale or in a systematic manner. 13 The Chamber s conception of an attack embodies the notion of acting purposefully to the detriment of the interests or well-being of a civilian population. The ICTR has also confirmed that an attack does not necessarily require the use of armed force; it could involve other forms of inhumane mistreatment of the civilian population Widespread or Systematic Under ICTY and ICTR jurisprudence, widespread has been interpreted to include both a large number of acts spread across time or geography, as well as a single or limited number of acts committed on a large scale. 15 For the ICTR, systematic generally refers to the organized 13. Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Judgment, 581 (Sept. 2, 1998). 14. See Prosecutor v. Semanza, Case No. ICTR T, Judgment and Sentence, 327 (May 15, 2003). See also Prosecutor v. Stakić, Case No. IT T, Judgment, 623 (July 31, 2003) (clarifying the difference between an attack and armed conflict: an attack can precede, outlast, or continue during the armed conflict, but it need not be part of it and is not limited to the use of armed force; it encompasses any mistreatment of the civilian population ). 15. See Akayesu, ICTR 96-4-T, Judgment, 580 ( The concept of widespread may be defined as massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims. ). See also Prosecutor v. Tadić, Case No. IT-94-1-T, Opinion and Judgment, 648 (May 7, 1999); Prosecutor v. Kunarac, Case No. IT-96-23/1-A, Appeals Chamber Judgment, 94 (June 12, 2002); Prosecutor v. Kajelijeli, Case No. ICTR 98-44A-T, Judgment and Sentence, 871 (Dec. 1, 2003).

8 198 NEW ENG. J. OF INT L & COMP. L. [Vol. 14:2 or planned nature of the attack. 16 The attack can be planned or organized by any organization or group and is not limited to State or military bodies. 17 Proof of a specific policy is not required to meet either criterion Definition of Civilian Population The ICTY and ICTR Statutes and jurisprudence state that the attack must be committed against any civilian population. The Tribunals have recognized further that the presence of combatants within a population does not necessarily deprive it of its civilian character. 19 Nonetheless, the targeted population must remain predominantly civilian in nature to fall within the definition of Crimes Against Humanity. 20 The population requirement entails the notion that enough people must be targeted to show that the attack was directed against a population as opposed to limited and randomly selected individuals. 21 However, the ICTY and ICTR have held that a population need not be the entire population of a state, city, or town. Rather, population... is intended to imply crimes of a collective nature for the purpose of excluding crimes not of sufficient gravity to fall within the categorization of crimes against humanity Discrimination Requirement According to the ICTR Statute, as interpreted by the Tribunal, discriminatory grounds are necessary to establish jurisdiction for all of the crimes against humanity set forth therein. 23 However, the Tribunal has 16. See Akayesu, ICTR 96-4-T, Judgment, 173, 580; see Kajelijeli, ICTR 98-44A-T, Judgment and Sentence, Prosecutor v. Bagilishema, Case No. ICTR 95-1A-T, Judgment, 78 (June 7, 2001) 18. Semanza v. Prosecutor, Case No. ICTR A, Appeals Chamber Judgment, 269 (May 20, 2005); Kunarac IT-96-23/1-A, Judgment, 89, 98; see Kajelijeli, ICTR 98-44A-T, Judgment and Sentence, 872; Prosecutor v. Blaškić, Case No. IT A, Appeals Chamber Judgment, 100 (July 29, 2004). 19. See Tadić, IT-94-1-T, Opinion and Judgment, 638; Prosecutor v. Blaškić, Case No. IT T, Judgment, 209 (Mar. 3, 2000) (for clarification, see Blaškić, IT A, Judgment, ); Prosecutor v. Kupreskic, Case No. IT T, Judgment 568 (Jan. 14, 2000); Akayesu, ICTR 96-4-T, Judgment, n See Akayesu ICTR 96-4-T, Judgment, 575 (citing Prosecutor v. Mrkšić, Case No. IT R61, Rule 61 Decision of 3 April 1996 (Apr. 3, 1996)). 21. Prosecutor v. Stakić, Case No. IT A, Judgment, 247 (Mar. 22, 2006). 22. See Tadić, IT-94-1-T, Opinion and Judgment, 644; see also Prosecutor v. Bagilishema, Case No. ICTR 95-1A-T, Judgment, 80 (June 7, 2001). 23. It should be noted that the ICTR has recognized that this discriminatory element is a jurisdictional requirement specific to the ICTR and not a reflection of customary

9 2008] JURISPRUDENTIAL CONTRIBUTIONS OF THE ICTR 199 made clear that this discrimination requirement goes to the character of the attack, and not to the specific act of the individual perpetrator. Thus, it is not necessary that the victim be a member of the group at which the attack is directed, so long as the act furthers or was intended to further a discriminatory attack Nexus Between the Act and the Attack Both the ICTR and ICTY have interpreted their statutes to require a nexus between the act and the attack. 25 Again, it is this nexus to a broader attack that elevates an otherwise ordinary crime to the level of international regulation. There was initially a great deal of wrangling over the question of whether it was necessary to prove the existence of a policy for the purpose of establishing an attack, that the attack was widespread or systematic, or for tying the individual act into the broader attack. Indeed, early cases at both Tribunals seemed to indicate that such a policy was required. 26 However, as noted above, the ICTR Appeals Chamber has since made clear that a policy is not a required element for proving Crimes Against Humanity. 27 At the same time, the ICTR has provided guidance as to what sort of nexus is required. For example, the Semanza Trial Chamber held that while the act does not need to be committed at the same time or place as the attack, or share the same features, it must, on some essential level, form part of the attack. 28 It must share some relation, temporal or geographical, to the attack. To meet this requirement, the act does not have to be committed against the same population as the broader attack of which it is a part. 29 Rather, the requirement is met if the act is closely related to the international law. See Akayesu, ICTR 96-4-T, Judgment, See Prosecutor v. Semanza, Case No. ICTR T, Judgment and Sentence, 331 (May 15, 2003). 25. See id. 330; Tadić, IT-94-1-A, Judgment, See, e.g., Prosecutor v. Kayishema, Case No. ICTR 95-1-T, Judgment, 133 (May 21, 1999); Tadić, IT-94-1-T, Opinion and Judgment, Semanza v. Prosecutor, Case No. ICTR A, Appeals Chamber Judgment, 269 (May 20, 2005). 28. Semanza, ICTR T, Judgment and Sentence, 326 ( Although the act need not be committed at the same time and place as the attack or share all of the features of the attack, it must, by its characteristics, aims, nature, or consequence objectively form part of the discriminatory attack. ); cf. Tadić, IT-94-1-A, Judgment, See Semanza, ICTR T, Judgment and Sentence, 330 (Although the act does not have to be committed against the same population, if it is committed against the same population, that characteristic may be used to demonstrate the nexus between

10 200 NEW ENG. J. OF INT L & COMP. L. [Vol. 14:2 hostilities or is committed in conjunction with them. 30 Another dimension of this nexus is found in the mens rea requirement for Crimes Against Humanity. The necessary link with a widespread or systematic overarching attack is derived in part from the mental state of the perpetrator. This requirement was made express by the Bagilishema Trial Chamber: A mental factor specific to crimes against humanity is required to create the nexus between an underlying offence and the broader criminal context, thus transforming an ordinary crime into an attack on humanity itself.... [T]he Accused mentally must include his act within the greater dimension of criminal conduct. This means that the accused must know that his offence forms part of the broader attack. By making his criminal act part of the attack, the perpetrator necessarily participates in the broader attack. 31 To satisfy this mens rea element, the defendant must be aware of the attack that makes his or her act a crime against humanity. In practice, this means that the perpetrator must have knowledge of the attack, either actual or constructive, and some understanding of the relationship between his or her acts and the attack. 32 Further, even though the ICTR Statute contains a discrimination requirement, the ICTR has made clear that it is not necessary for the accused to have the discriminatory purpose that underlies the broader attack. The accused need only know that his act is part of the attack. 33 Thus, the requisite nexus between an act and an attack is partly the act and the attack). 30. See Semanza v. Prosecutor, Case No. ICTR A, Appeals Chamber Judgment, 369 (May 20, 2005). 31. Prosecutor v. Bagilishema, Case No. ICTR 95-1A-T, (June 7, 2001) (citations and paragraph numbers omitted). 32. Semanza, ICTR T, Judgment and Sentence, 332; Prosecutor v. Kayishema, Case No. ICTR 95-1-T, Judgment, (May 21, 1999) ( The perpetrator must knowingly commit crimes against humanity in the sense that he must understand the overall context of his act. ). Under ICTY jurisprudence, the requisite mens rea is satisfied if the perpetrator took the risk that his acts were part of the attack. Prosecutor v. Kunarac, Case No. IT-96-23/1-A, Appeals Chamber Judgment, 102 (June 12, 2002). The Appeals Chamber in Kunarac made clear that the perpetrator need not know the details of the attack. Id. 33. Prosecutor v. Akayesu, Case No. ICTR 96-4-A, Appeals Chamber Judgment, 467 (June 1, 2001).

11 2008] JURISPRUDENTIAL CONTRIBUTIONS OF THE ICTR 201 established by proving that some aspect of the attack, such as it being widespread or systematic, forms the circumstances around a certain act and makes that act part of that attack. While proving such an aspect may be assisted by demonstrating a policy, the existence of a policy is not required. In any event, all a prosecutor need ultimately prove in this regard is that given the context and circumstances of an act, the act cannot reasonably be seen as random or isolated. With respect to the mens rea, the nexus between an act and an attack is partly established through showing that the perpetrator had knowledge of the attack. It need not be proven, however, that by the time the accused committed the act at issue, he or she had made the legal determination that the attack was indeed a crime against humanity. CONCLUSION Among the ICTR s many contributions to the development of international criminal law has been its clarification of the definition of Crimes Against Humanity. In so doing, the ICTR has taken an amorphous concept and given it legal traction. This contribution is critically important in modern times given the level of violence that is perpetrated across the globe outside of the context of armed conflict. The world has seen massive attacks against civilians that would otherwise be unregulated by international criminal law because they do not rise to the level of armed conflict or are not perpetrated with genocidal intent. 34 By further elaborating the law applicable to Crimes Against Humanity, the ICTR has expanded the legal tools available to the international community for addressing such violence. 34. For example, massive attacks on political grounds by terrorist groups or other organized entities that are not met with organized resistance are left ungoverned by the law of armed conflict and the Genocide Convention.