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This page intentionally left blank INTERNATIONAL CRIMINAL LAW PRACTITIONER LIBRARY Volume II of the International Criminal Law Practitioner Library series focuses on the core categories of international crimes: crimes against humanity, genocide, and war crimes. The authors present a comprehensive and critical review of the law on the elements of these crimes and their underlying offences, and examine how they interact with the forms of responsibility discussed in Volume I. They also consider the effect of the focus in early ICTY and ICTR proceedings on relatively low-level accused for the development of legal definitions that are sometimes ill-suited for leadership cases, where the accused had little or no physical involvement in the crimes. The book’s main focus is the jurisprudence of the ad hoc Tribunals, but the approaches of the ICC and the various hybrid tribunals are also given significant attention. The relevant jurisprudence up to 1 December 2007 has been surveyed, making this a highly useful and timely work. gideon boas, a former Senior Legal Officer at the ICTY, is a Senior Lecturer in Law at Monash University Law Faculty and an international law consultant. james l. bischoff, a former Associate Legal Officer at the ICTY, is an AttorneyAdviser in the Office of the Legal Adviser of the United States Department of State. natalie l. reid, a former Associate Legal Officer at the ICTY, is an Associate with Debevoise & Plimpton LLP, New York. ELEMENTS OF CRIMES UNDER INTERNATIONAL LAW International Criminal Law Practitioner Library Series VOLUME II GIDEON BOAS JAMES L. BISCHOFF NATALIE L. REID The views expressed in this book are those of the authors alone. They do not necessarily reflect the views or official positions of the International Criminal Tribunal for the former Yugoslavia, the United Nations in general, the United States Department of State, or the United States government. CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521878302 © Gideon Boas, James L. Bischoff and Natalie L. Reid 2008 This publication is in copyright. Subject to statutory exception and to the provision of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published in print format 2009 ISBN-13 978-0-511-48094-2 eBook (NetLibrary) ISBN-13 978-0-521-87830-2 hardback Cambridge University Press has no responsibility for the persistence or accuracy of urls for external or third-party internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate. Contents Foreword Table of Authorities 1 An overview of crimes under international law 1.1 Legal sources for definitions of crimes under international law 1.2 Structure of crimes under international law 2 Crimes against humanity 2.1 Evolution of crimes against humanity 2.1.1 Development through the Second World War 2.1.2 Post-Second World War development 2.1.3 Developments through the ad hoc Tribunals and beyond 2.2 Elements of crimes against humanity 2.2.1 Requirements unique to the ad hoc tribunals 2.2.1.1 ICTY: armed conflict as a jurisdictional requirement 2.2.1.2 ICTR: discriminatory basis as a jurisdictional requirement 2.2.2 General requirements 2.2.2.1 Preliminary question: whose conduct and mental state may satisfy the contextual general requirements? 2.2.2.2 The attack requirement 2.2.2.3 The targeting requirement 2.2.2.3.1 The definition of a ‘civilian’ 2.2.2.3.2 The definition of a ‘civilian population’ 2.2.2.3.3 The meaning of ‘directed against’ v page xv xviii 1 5 9 14 18 18 22 26 31 32 32 33 35 35 41 42 43 49 50 vi Contents 2.2.2.4 The ‘widespread or systematic’ requirement 2.2.2.5 The first contextual requirement: the underlying offence as part of the attack 2.2.2.6 The second contextual requirement: the knowledge that the offence is part of the attack 2.2.3 Underlying offences 2.2.3.1 Murder 2.2.3.2 Extermination 2.2.3.3 Enslavement 2.2.3.4 Deportation 2.2.3.4.1 The displacement of persons was caused by expulsion or other coercive acts 2.2.3.4.2 The persons displaced were lawfully present in the area 2.2.3.4.3 The displacement occurred without grounds permitted under international law 2.2.3.4.4 Is intent that the removal be permanent an element of forcible displacement? 2.2.3.4.5 Additional element for deportation 2.2.3.5 Imprisonment 2.2.3.6 Torture 2.2.3.6.1 The severity requirement 2.2.3.6.2 The prohibited purpose requirement 2.2.3.7 Rape 2.2.3.8 Persecution on political, racial, and religious grounds 2.2.3.8.1 Specific requirements for persecution as a crime against humanity The equal gravity requirement The requirement of discrimination ‘in fact’ The discriminatory intent requirement 51 53 54 56 57 60 65 68 69 70 71 72 73 75 78 80 83 84 88 89 90 91 94 Contents 2.2.3.8.2 Underlying offences qualifying as persecution as a crime against humanity 2.2.3.9 Other inhumane acts 2.2.3.9.1 Specific requirements for inhumane acts as crimes against humanity The suffering or attack on dignity requirement The similar gravity requirement The requirement of direct or indirect intent 2.2.3.9.2 Underlying offences qualifying as inhumane acts as crimes against humanity 2.3 Crimes against humanity in the International Criminal Court and Internationalised Tribunals 2.3.1 The International Criminal Court 2.3.1.1 The Rome Statute 2.3.1.2 The elements of crimes 2.3.2 The Internationalised Tribunals 2.3.2.1 Special Court for Sierra Leone (SCSL) 2.3.2.2 East Timor: Special Panels for Serious Crimes (SPSC) 2.3.2.3 The Extraordinary Chambers in the Courts of Cambodia (ECCC) 2.3.2.4 Supreme Iraqi Criminal Tribunal (SICT) (also known as the Iraqi High Tribunal (IHT)) 3 Genocide 3.1 Evolution of genocide as an international crime 3.1.1 Development through the Second World War 3.1.2 Post-Second World War development 3.1.3 Developments in the ad hoc Tribunals and beyond 3.2 Elements of genocide 3.2.1 General requirements 3.2.1.1 Preliminary question: who must have the genocidal intent? 3.2.1.2 Genocidal intent 3.2.1.2.1 Specific intent 3.2.1.2.2 Material destruction vii 97 99 99 100 101 102 102 104 104 104 110 115 115 120 128 132 138 144 144 146 153 154 156 157 159 160 164 viii Contents 3.2.1.2.3 Definitions of the protected group and the targeted group 3.2.1.3 Requirement of actual membership in the group? 3.2.2 Underlying offences 3.2.2.1 Killing 3.2.2.1.1 Physical elements 3.2.2.1.2 Mental element 3.2.2.2 Causing serious bodily or mental harm 3.2.2.2.1 Physical elements 3.2.2.2.2 Mental element 3.2.2.3 Deliberate infliction of eventually destructive conditions of life 3.2.2.3.1 Examples of qualifying conduct 3.2.2.3.2 Mental element? 3.2.2.4 Prevention of births 3.2.2.4.1 Examples of qualifying conduct 3.2.2.4.2 Mental element? 3.2.2.5 Forcible transfer of children 3.2.2.5.1 Mental element? 3.3 Elements of conspiracy to commit genocide 3.4 Elements of direct and public incitement to commit genocide 3.5 Elements of attempt to commit genocide 3.6 Genocide in The International Criminal Court and Internationalised Tribunals 3.6.1 The International Criminal Court 3.6.1.1 The Rome Statute 3.6.1.2 The Elements of Crimes 3.6.2 The Internationalised Tribunals 3.6.2.1 Special Court for Sierra Leone (SCSL) 3.6.2.2 East Timor: Special Panels for Serious Crimes (SPSC) 3.6.2.3 The Extraordinary Chambers in the Courts of Cambodia (ECCC) 3.6.2.4 Supreme Iraqi Criminal Tribunal (SICT) (also known as the Iraqi High Tribunal (IHT)) 4 War crimes 4.1 Evolution of war crimes 4.1.1 Ancient to modern conceptions of war crimes 168 173 176 178 178 178 181 181 183 183 183 186 186 186 187 187 188 188 191 197 198 198 198 201 206 206 206 207 210 213 219 219