ecchr amicus crimes against humanity en final

8/2/2019 ECCHR Amicus Crimes Against Humanity en FINAL

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ECCHR Amicus Curiae

Crimes Against Humanity

Berlin, September 2010

_

EUROPEAN CENTER FORCONSITUTIONAL AND

HUMAN RIGHTS e.V._

ZOSSENER STR. 55-58AUFGANG D10961 BERLIN, GERMANY_

PHONE +49.(030).40 04 85 90FAX +49.(030).40 04 85 92MAIL [email protected] WWW.ECCHR.EU


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TABLE OF CONTENT

INTRODUCTION ...................................................................................................................... 1a) Presentation ....................................................................................................................... 1b) Importance of the Current Process in the Field of International Human Rights .............. 2

SECTION 1: CRIMES AGAINST HUMANITY ...................................................................... 3a) An Overview....................................................................................................................... 3b) Development...................................................................................................................... 3

Control Council Law No. 10 .............................................................................................. 5Conventions and Resolutions ............................................................................................. 5The International Criminal Tribunal for the Former Yugoslavia (ICTY) .......................... 7The International Criminal Tribunal for Rwanda (ICTR) .................................................. 7The International Criminal Court (ICC) ............................................................................. 8

c) Elements of crime ............................................................................................................... 9c.1) Objective elements ............................................................................................................... 9c.2) Subjective element ............................................................................................................. 13

d) National Legislation......................................................................................................... 15SECTION 2: DIFFERENCES BETWEEN ORDINARY CRIMES AND CRIMES AGAINST

HUMANITY ............................................................................................................................ 15SECTION 3: DIFFERENCES BETWEEN CRIMES AGAINST HUMANITY AND

GENOCIDE ............................................................................................................................. 17SECTION 4: CRIMES AGAINST HUMANITY IN ARGENTINA ...................................... 24

a) Crimes against humanity were already proscribed by international law before they were

committed during the dictatorship in Argentina .................................................................. 24b) No prescription for crimes against humanity .................................................................. 26c) The crimes committed in Argentina during the dictatorship qualify as crimes against

humanity ............................................................................................................................... 27SECTION 5: CONCLUSION .................................................................................................. 29


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INDEX OF AUTHORITIES

TREATIES AND CONVENTIONS

Convention with Respect to the Laws and Customs of War on Land

(Hague IV)

18 October 1907, entry into force on 26 January 1910

Scott, James Brown (ed.), The Hague Conventions and Declarations of

1899 and 1907(1915), p. 100

Charter of the International Military Tribunal, annexed to London

Agreement of 8 August 1945, entry into force on 8 August 1945

Reprinted in: Trials of War Criminals before the Nurnberg Military

Tribunals under Control Council Law No. 10 (1946-1949), Vol. 15

Procedure, Practice and Administration, U.S. Government Printing Office,

p. 10

Convention for the Amelioration of the Condition of the Wounded and

Sick in Armed Forces in the Field(1st

Geneva Convention),

12 August 1949, entry into force on 21 October 1950

United Nations, Treaty Series, Vol. 75 No. 970, p. 31

Convention for the amelioration of the condition of the wounded, sick and

shipwrecked members of the armed forces at sea (2nd

Geneva

Convention),




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Convention Relative to the Protection of Prisoners of War (3rd

Geneva

Convention),



Convention Relative to the Protection of Civilian Persons in Time of War

(4th

Geneva Convention),



Additional Protocols to the Geneva Conventions of 12 August 1949, and

Relating to the Protection of Victims of International Armed Conflicts,

1st

Additional Protocol

8 June 1977, entry into force on 7 December 1978

Vol. 1125 No. 17512, p. 3

2nd

Additional Protocol

8 June 1977, entry into force on 7 December 1978

Vol. 1125 No. 17513, p. 546

Convention on the Prevention and Punishment of the Crime of Genocide ,

9 December 1948, entry into force on 12 January 1951


Convention on the Non-Applicability of Statutory Limitations to War

Crimes and Crimes against Humanity,

26 November 1968, entry into force on 11 November 1970



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International Covenant on Civil and Political Rights

16 December 1966, entry into force on 23 March 1976


International Convention on the Suppression and Punishment of the

Crime of Apartheid,

30 November 1973, entry into force on 18 July 1976


Convention against Torture and Other Cruel, Inhuman or DegradingTreatment or Punishment,

10 December 1984, entry into force on 26 June 1987


Rome Statute of the International Criminal Court,

17 July 1998, entry into force 1 July 2002

United Nations, Treaty Series, Vol. 2187 No. 38544, p.3

CASES

INTERNATIONAL MILITARY TRIBUNAL IN NUREMBERG

Trial of the Major War Criminals, International Military Tribunal in

Nuremberg,

American Journal of International Law

Vol. 41 (1947), p. 172

INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA


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Prosecutor v. Kayishema

Judgment of the Appeals Chamber of 1 June 2001

Case No. ICTR-95-1

Prosecutor v. Musema

Judgment of the Trial Chamber of 27 January 2000

Case No. ICTR-96-13-A

Prosecutor v. Rutaganda

Judgment of 6 December 1999

Case No. ICTR-96-3

Prosecutor v. Akayesu

Judgment of 2 September 1998

Case No. ICTR-96-4-T

Prosecutor v. Kambanda


Case No. ICTR-97-23

INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA

Prosecutor v. Dusko Tadic

Judgment of 15 July 1999

Case No. IT-94-1-A


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Prosecutor v. Tihomir Blaskic

Judgment of the Trial Chamber of 3 March 2000

Case No. IT-95-14-T

Prosecutor v. Krsti

Judgment of 2 Aug 2001

Case No. IT-98-33-T

Prosecutor v. Furundzija


Case No. IT-95 -171/1-T

Prosecutor v. Momcilo Krajisnik

Judgment of the Trial Chamber of 27 September 2006

Case No. IT-00-39-T

Prosecutor v. Goran Jelisic


Case No. IT-95-10

Prosecutor v. Zoran Kupreskic et al.

Judgment of 14 January 2000

Case No. IT-95-16-T

Prosecutor v. Erdemovic

Judgment of 29 November 1996

Case No. IT-96-22-T


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INTER-AMERICAN COURT OF HUMAN RIGHTS

Almonacid Arellano vs. Chile


Serie C. No 154

NATIONAL COURTS

Supreme Court of Israel

Attorney General of Israel v. Eichmann

Judgment of 29 May 1962

International Law Reports, Vol. 36

Supreme Court of Argentina

Judgment No. 24/08/2004

Case N 259

UNITED NATIONS DOCUMENTS

SECURITY COUNCIL RESOLUTIONS


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Security Council Resolution 808 (1993)

On Establishment of an International Tribunal for the Prosecution of

Persons Responsible for Violations of International Humanitarian Law

Committed in the Territory of the Former Yugoslavia

22 February 1993

UN Doc. S/RES/808 (1993)

Security Council Resolution 955 (1994)

On Establishment of an International Tribunal for Rwanda and Adoption

of the Statute of the Tribunal

8 November 1994

UN Doc. S/RES/955 (1994)

GENERAL ASSEMBLY RESOLUTIONS

General Assembly Resolution 3(I)

Extradition and Punishment of War Criminals13 February 1946

UN Doc. A/PV.31

General Assembly Resolution 177(II)

Formulation of the Principles Recognized in the Charter of the

Nuremberg Tribunal and in the Judgment of the Tribunal

21 November 1947

General Assembly Resolution 95(I)

Affirmation of the Principles of International Law Recognized by the

Charter of the Nuremberg Tribunal

11 December 1946

UN Doc. A/64/Add.1 (1946)


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General Assembly Resolution 60/1

2005 World Summit Outcome

24 October 2005

UN Doc. A/RES/60/1

OTHER UNITED NATIONS DOCUMENTS

THIAM,DOUDOU (Special Rapporteur)

Fourth Report on the Draft Code of Offences against Peace and Security

of Mankind, (1986/88)

Yearbook of the International Law Commission (1986), Vol. II part 1

UN Doc. A/CN.4/SER.A/1986/Add.l (Part 1), p. 53-86

Report of the Ad Hoc Committee on the Establishment of an International

Criminal Court

1 January 1995

UN Doc. A/50/22(SUPP)

Report of the International Law Commission on the Work of its 48th

Session 6 May-26 July 1996

1 January 1996

UN Doc. A/51/10(SUPP)

International Law Commission

Draft Code of Crimes against the Peace and Security of MankindTitles

and texts of articles adopted by the Drafting Committee: Parts One and

Two

Yearbook of the International Law Commission (1991), Vol. II Part 2

UN Doc. A/CN.4/SER.A/1991/Add.l (Part 2), p. 79-105


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International Law Commission

Draft Code of Crimes against the Peace and Security of Mankind(1996)

Yearbook of the International Law Commission (1996), Vol. II Part 2

UN Doc. A/CN.4/SER.A/1996/Add.l (Part. 2), p. 15-56

LITERATURE

BOOKS

CASSESE,ANTONIO International Criminal Law,

2nd

edition (2008)

ROBERTS,ADAM/GUELFF,

RICHARD (eds.)

Documents on the Laws of War,

2nd

edition (1989)

YEARBOOKS AND JOURNALS

AKHAVAN, PAYAM The Crime of Genocide in the ICTR

Jurisprudence,

Journal of International Criminal Justice,

Vol. 3 (2005), p. 989-1005

MCAULIFFE DEGUZMAN,

MARGARET

The Road from Rome The Developing

Law of Crimes against Humanity,

Human Rights Quarterly,

Vol. 22 (2000), p. 335-403


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ROBINSON,DARRYL Dg g H

the Rome Conference,

American Journal of International Law,

Vol. 93 (1999), p. 43-57

SCHWELB, Egon Crimes against Humanity,

British Year Book of International Law

Vol. 23 (1946), p. 178-226

WALD,PATRICIA M. Genocide and Crimes against Humanity,Washington University Global Studies

Law Review,

Vol. 6 (2007), p. 621-633

MISCELLANEOUS

International Military Tribunal for the Far East Charter,

available at (last reviewed 26 March 2010)

Trials of War Criminals before the Nuremberg Military Tribunals under

Control Council Law No. 10 (1946-1949), Vol. 15 Procedure, Practice and

Administration,

U.S. Government Printing Office


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INTRODUCTION

The European Center for Constitutional and Human Rights e.V. (ECCHR), based in

Berlin, Germany, along with Professor Theo van Boven of the University of Maastricht,

respectfully submit to the Court to be completed in Spanish version the present amicus curiae

brief regarding case to be completed in Spanish version.

a) Presentation

The European Center for Constitutional and Human Rights is an independent non-profithuman rights organization registered in the municipality of Berlin-Charlottenburg. ECCHR

works with a team of international lawyers and internationally recognized experts inter alia,

Theo van Boven (University of Maastricht), Florian Jeberger (Humboldt University of

Berlin), Annemie Schaus (Free University of Brussels), and Peter Weiss (Center for

Constitutional Rights - CCR) on its Advisory Board, in addition to Michael Ratner (CCR),

Lotte Leicht (Human Rights Watch) among others on its Board of Directors. ECCHR is

devoted to protect individual persons as well as groups whose human rights have been

violated or are at risk of being violated by state or private agents.

Through its Secretary General, Wolfgang Kaleck, ECCHR took part, along with other

lawyers, in the criminal proceedings before German courts concerning the Argentine military

dictatorship.

Co-signer Theo van Boven is an Honorary Professor of International Law at the

European Law Department at Maastricht University. From December 2001 to December

2004, he was the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment. Previously, from 1977 to 1982, he served as Director of Human

Rights of the United Nations. His firmness and determination in the fight against the

violations of human rights committed in Argentina were remarkable. Under his mandate a

working group was created devoted to elaborate a report about the forced abductions in the

country. His defence of human rights in Argentina led to his UN contract being terminated in

1982 due to pressures from Argentina's de facto Government. He took part as a Member of the

Sub-Commission of Human Rights and the UN Committee on the Elimination of Racism and

Discrimination. Theo van Boven was also a Registrar at the International Criminal Tribunal

for the former Yugoslavia (ICTY) and the Head of the Netherlands Delegation to the Rome

Conference. Nowadays he is a Member of the International Commission of Jurists and

Member of the Board of the International Movement Against All Forms of Discrimination and


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Racism. In November 2009 he was given a doctorate honoris causa from the University of

Buenos Aires as well as the Orden del Libertador San Martn by the Argentine Government,

due to his defence of human rights in the country.

Accordingly, ECCHR finds it appropriate to consider the submission as amicus curiae,

in order to describe from the perspective of international criminal law, relevant patterns in the

determination of the violation of human rights systematically committed in Argentina during

the military repression, and to qualify them as crimes against humanity.

b) Importance of the Current Process in the Field of International Human Rights

The seriousness of the crimes committed by military and security forces in Argentina

from 1976 1983 has damaged the entire international community. For that reason, several

criminal complaints were submitted before domestic European courts under the principles of

active and passive personality as well as universal jurisdiction, after the entry into force of the

impunity laws in Argentina (the de Obediencia Debida and Punto Final statutes).

This amicus brief is submitted in order to confirm Argentinas obligation under

international law to prosecute and punish the perpetrators of severe human rights violations.Furthermore, the crimes orchestrated and committed by the Argentine military must be treated

as crimes against humanity.

Pursuant to this argument, Section 1 of the present report we will refer to crimes

against humanity beginning with its definition, concept, and its international development.

Next, an analysis of the objective and subjective elements of the crime are explored. The

report concludes with a brief consideration of crimes against humanity under domestic

national legislations.

Section 2 introduces the differences between common offences and crimes against

humanity, highlighting the importance of considering heinous and serious crimes committed

against the international community, as crimes against humanity and not merely as common

crimes.

Section 3 refers to the differences between genocide and crimes against humanity

through an examination and comparison of their respective elements.


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Finally, Sections 4 and 5 focus on the specific case of Argentina, explaining why the

violations of human rights committed by the military during the Argentine dictatorshipbetween 1976 and 1983, may qualify as crimes against humanity.

SECTION 1: CRIMES AGAINST HUMANITY

a) An Overview

Crimes against humanity form a category under both general international law and

international criminal law as well as a part of several national legislations.

Crimes against humanity encompass a variety of actions that are characterized by

certain features:1

First, the acts must be particularly odious offences, presenting a serious attackon human dignity or a grave humiliation or degradation of one or more human

beings.

Second, these actions may not constitute isolated or sporadic events. Rather, theymust form a part of a widespread or systematic practice.

2

Third, crimes against humanity are punishable regardless whether or not thesituation constitutes an armed conflict.

Fourth, victims may be civilians or others who do not take part in armedhostilities.

b) Development

1Cassese, A.International Criminal Law 2

ndEd. (2008), pgs. 98-99.

2 The concepts widespreadand systematic will we explained in Section 3 of this report. However it can

be noted that widespreadpractice means that the single crime has to be an a repetition of similar crimes or part

of a string of similar crimes. Systematic practice is fulfilled if the single crime is a manifestation of a plan created

or inspired by State authorities, leading officials of a de-facto state-like organization, or of an organized politicalgroup.


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The concept of crimes against humanity was for the first time legally defined in Article

6(c) of the 1945 Nuremberg Charter as:

namely, murder, extermination, enslavement, deportation, and other inhumane actscommitted 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.3

However, its legal recognition occured much earlier. The St. Petersburg Declaration of

1868 refers to actions contrary to the laws of humanity regarding the use of explosive

projectiles.4

The so-called Martens Clause, incorporated in the preamble of the 1899 Hague

Convention respecting the laws and customs of war and land, refers to laws ofhumanity andthe requirements of the public conscience.5 It was subsequently included in many

humanitarian law instruments.6

In 1915, the Declaration of France, Great Britain and Russia

facing the massacres by the Ottoman Empire of Armenians in Turkey was the first instance

when specific actions were condemned as those new crimes of Turkey against humanity and

civilization, and it included the call for individual accountability. 7 In 1919, the Paris Peace

Conference Commission specified these crimes as, inter alia, murder, systematic terrorism

and torture.8

3 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and

Charter of the International Military Tribunal, London 8 August 1945. Art. 6(c).4 Declaration Renouncing the Use, in Time of War, of Explosive Projectiles under 400 Grammes Weight,

reprinted in Roberts/Guelff (eds.),Documents on the Laws of War, 2nd

edition (1989), 30 at 31.5 Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to

declare that in cases not included in the Regulations adopted by them, populations and belligerents remain underthe protection and empire of the principles of international law, as they result from the usages established

between civilized nations, from the laws of humanity and the requirements of the public conscience.

Convention with respect to the laws of war on land(Hague II), 29 July 1899.6 E.g. 1907Hague Convention (IV) Respecting the Laws and Customs of War on Land, Preamble, para.

8; Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field(1st Geneva Convention), 1949, UNTS Vol. 75 p. 31, Art. 63; Convention for the Amelioration of the Condition

of the Wounded and Sick and Shipwrecked Members of Armed Forces at Sea (2nd Geneva Convention), 1949,

UNTS Vol. 75 p. 85, Art. 62; Convention Relative to the Protection of Prisoners of War (3rd Geneva

Convention), 1949, UNTS Vol. 75 p. 135, Art. 142; Convention Relative to the Protection of Civilian Persons in

Time of War(4th Geneva Convention), 1949, UNTS Vol. 75 p. 287, Art. 158;Additional Protocols to the Geneva

Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts , Art.1(2) of the 1

stAdd. Prot., Preamble of the 2

ndAdd. Prot.

7 Declaration of France, Great Britain and Russia, quoted in SCHWELB, Crimes against Humanity, 23

BYBIL (1946), 178 at 181.8

Commission of the Responsibility of the Authors of the War and on Enforcement of Penalties, Report

Presented to the Preliminary Peace Conference, Mar. 1919, Conference of Paris, Carnegie Endowment forInternational Peace, Division of International Law, Pamphlet No. 32, Annex.


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After the Second World War, the Allies had to acknowledge that some of the most

inhumane atrocities perpetrated by Germany were not prohibited by traditional international

law.9

The contemporary law only prohibited acts involving adversaries and enemy

populations, whereas the Germans had also turned against their own population. As a result,

the aforementioned Article 6(c) of the Charter of the International Military Tribunal was

adopted. Still, the application was limited to acts committed [] in execution of or in

connection with any crime within the jurisdiction of the Tribunal, referencing Article 6(a)

and (b), crimes against peace and war crimes. Additionally, the Tokyo Tribunal Charter and

several peace treaties embodied the prohibition of crimes against humanity.10

Several significant legal instruments and standards were issued after the Second World

War. This marked a significant progress in international law, leading to the creation of the

International Criminal Tribunals for Former Yugoslavia and Rwanda with their respective

Statutes, as well as the International Criminal Court and its Rome Statute.

Control Council Law No. 10

The Control Council Law No. 10 (CCL No. 10) was enacted in 1945 to provide a

uniform legal basis in which to prosecute war criminals in Germany. It included the acts of

imprisonment, torture and rape. Furthermore, it abandoned the limitation to acts committed inconnection with war crimes or crimes against peace. The CCL No. 10 defined crimes against

humanity as:

Atrocities and offences, including but not limited to murder, extermination, enslavement,

deportation, imprisonment, torture, rape, or other inhumane acts committed against any

civilian population, or persecutions on political, racial or religious grounds whether or not in

violation of the domestic laws of the country where perpetrated.

Conventions and Resolutions

In 1946, the United Nations General Assembly called upon all governments to extradite

and punish the perpetrators of war crimes, as well as crimes against peace and humanity.11

This marks the beginning of the customary norm of crimes against humanity.12

Thereafter, a

9 See Cassese, supra note 1, at 103.10 International Military Tribunal for the Far East Charter, Art. 5(c); Peace Treaty with Italy, Art. 45;

with Romania, Art. 6; with Bulgaria, Art. 5.11

UN Doc. A/PV.31, GA Res. 3(I) of 13 February 1946.12 See Cassese,supra note 1, at 107.


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resolution affirming the principles of international law recognized by the Charter of the

International Military Tribunal (IMT)13

was adopted.

The 1968 Convention on the non-applicability of statutory limitations to war crimes and

crimes against humanity of the United Nations General Assembly is especially important in

respect of its application to [c]rimes against humanity whether committed in time of war or

in time of peace as they are defined in the Nuremberg Charter. 14

The 1973International Convention on the Suppression and Punishment of the Crime of

Apartheidestablishes in its Article 1 that the crime of apartheid constitutes a crime againsthumanity.15

Eventually, the 1984 Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishmentprovides for universal jurisdiction over torture, one of

the main underlying offences of crimes against humanity.16

Work of the International Law Commission

In 1947, the United Nations General Assembly entrusted the International Law

Commission (ILC) with the preparation of a draft code of offences against the peace and the

security of mankind.17

The ILC prepared three draft codes. The first was adopted in 1954, but

the work of the ILC stopped due to the Cold War. In 1981, the ILC was again entrusted by the

General Assembly and the outcome was the second provisional draft code, completed in

1991.18

The third and last draft code was adopted in 1996 (1996 ILC Draft Code)and

recognized that crimes against the peace and security of mankind are crimes under

13 Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg

Tribunal, adopted 11 December 1946, GA Res. 95(I), at 188, UN Doc. A/64/Add.1 (1946).14 Convention on the non-applicability of statutory limitations to war crimes and crimes against

humanity, UNTS Vol. 754 p. 73, Art. 1(b).15 International Convention on the Suppression and Punishment of the Crime of Apartheid, UNTS Vol.

1015 p. 243, Art. 1.16

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, UNTS

Vol. 1465 p. 85.17 Formulation of the Principles Recognized in the Charter of the Nuremberg Tribunal and in the

Judgment of the Tribunal, GA Res. 177(II), 22 November 1947.18

Draft Code of Crimes against the Peace and Security of MankindTitles and texts of articles adoptedby the Drafting Committee: Parts One and Two, YbILC 1991 II 2, at 94.


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international law, and therefore punishable as such whether or not they are punishable under

national law.19

The International Criminal Tribunal for the Former Yugoslavia (ICTY)

Crimes against humanity are defined in Article 5 of the Statute of the International

Criminal Tribunal for the Former Yugoslavia and require a nexus to an armed conflict, which

fell short of the development in international law. Notwithstanding, the discriminatory intent

was only required for the specific case of persecution. Hence, it can be stated that the

definition refers to two different kinds of elements, and those contained in the first paragraph

of the definition form the so-called chapeau of crimes against humanity, as distinguished

from the enumerated acts below.20

The definition of crimes against humanity is as follows:

the following crimes when committed in armed conflict, whether international or internal in

character, and directed against any civilian population:

(a) murder;

(b) extermination;

(c) enslavement;

(d) deportation;

(e) imprisonment;

(f) torture;

(g) rape;

(h) persecutions on political, racial and religious grounds;(i) other inhumane acts.21

The International Criminal Tribunal for Rwanda (ICTR)

The Statute of the ICTR, created on 8 November 1994, is partially progressive, since the

link with an armed conflict is replaced with the requirement of a widespread or systematic

attack against any civilian population. In contrast, the inclusion of discriminatory grounds in

the chapeau requirements was a significant regression in the development of the definition.22

Under the ICTR-Statute, not only persecution, but rather all enumerated acts have to be

committed on political, ethnic, racial or religious grounds.

The ICTR-Statute states:

19Art. 2 of theDraft Code of Crimes against the Peace and Security of Mankind(1996), YbILC 1996 II

2, at 15.20 McAuliffe deGuzman,The Road from Rome The Developing Law of Crimes against Humanity , 22

HRQ (2000), 335 at 337 n. 5.21

Statute of the International Criminal Tribunal for the former Yugoslavia , Art. 5, annexed to S/RES/808

(1993).22 See supra McAuliffe deGuzman, note 20, 335 at 351.


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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;

(e) Imprisonment;

(f) Torture;

(g) Rape;

(h) Persecutions on political, racial and religious grounds;

(i) Other inhumane acts.23

The International Criminal Court (ICC)

During the development of the international tribunals, the ILC continued its work on a

draft statute for a permanent International Criminal Court that ultimately led to the Rome

Statute of the International Criminal Court adopted on 17 July 1998. Article 7 of the Rome

Statute refers to crimes against humanity and contains the following definition:

1. For the purpose of this Statute, crime against humanity means any of the following

acts when committed as part of a widespread or systematic attack directed against

any civilian population, with knowledge of the attack:

(a) Murder;

(b) Extermination;

(c) Enslavement;

(d) Deportation or forcible transfer of population;

(e) Imprisonment or other severe deprivation of physical liberty in violating

fundamental rules of international law;

(f) Torture;

(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced

sterilization, or any other form of sexual violence of comparable gravity;

(h) Persecution against any identifiable group or collectivity on political, racial,

national, ethnic, cultural, religious, gender as defined in paragraph 3, or

other grounds that are universally recognized as impermissible under

international law, in connection with any act referred to in this paragraph or

any crime within the jurisdiction of the Court;(i) Enforced disappearance of persons;

(j) The crime of apartheid;

(k) Other inhumane acts of a similar character intentionally causing great

suffering, or serious injury to body or to mental or physical health.

2. For the purpose of paragraph 1:

(a) 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;

23 Statute of the International Criminal Tribunal for Rwanda , Art. 3, annexed to S/RES/955 (1994).


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[]24

c) Elements of crime

A special reference to the chapeau elements is important for two reasons:The first is to

satisfy the principle of legality, since a weak definition of the crime can allow the perpetrator

to claim a violation of due process. The second is so that once the chapeau elements are well

defined, the existence of the mens rea requirement may be considered.25

c.1) Objective elements

The objective elements raise the offences to the category of crimes against humanity,

and not only for domestic crimes, since they are attacks addressed to the humanity as a whole,

but rather also for isolated violations of the rights of particular individuals.26

In this vein, the

ICTY in the Erdemovic case expressed:

Crimes against humanity are serious acts of violence which harm human beings by striking what is most

essential to them: their life, liberty, physical welfare, health, and or dignity. []But crimes against

humanity also transcend the individual because when the individual is assaulted, humanity comes under

attack and is negated.27

Accordingly, the relevant terms are: widespread, systematic and attack directed against

any civilian population.28

The widespread element refers to the number of victims and has been defined by the

ICTR in Akayesu as massive, frequent, large scale action, carried out collectively with

considerable seriousness and directed against a multiplicity of victims.29

24 Rome Statute of the International Criminal Court, UNTS Vol. 2187 p. 3, entry into force 1 July 2002.

25 See supra McAuliffe deGuzman, note 20 at page 361.26

Ibid.27

International Tribunal for the FormerYugoslavia, Prosecutor v. Erdemovic IT-96-22-T, 29 November

1996, para 28.28 It is important to note that the requirement widespreadand the requirement systematic are alternative. It

is sufficient to satisfy one of them to consider the alleged existence of a crime against humanity. Thus it will not

be necessary the concurrence of both of them, hence the drafting ofwidespreador systematic attack.29 ICTR, Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, 2 September 1998, para. 580.


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Furthermore, it is not required that the accused personally perpetrate multiple offences.

InAlmonacid Arellano vs. Chile, the Inter-American Court of Human Rights emphasized a

single illegal act as those mentioned above, committed within the described background,

would suffice for a crime against humanity to arise.30

According to the ILC, widespread meant committed on a large scale against a

multiplicity of victims. Therefore, conduct involving the multiple commissions of acts should

exclude single and isolated acts.31

Thesystematic character of an attack refers to the existence of a policy or plan, which

means that the attack may not be spontaneous, but rather previously planned. The Special

Rapporteur of the ILC stated in 1989 that:

On occasion, an inhuman act committed against a single person may also constitute a crime against

humanity if it is part of a system, or is carried out according to a plan, or has a repetitive nature which

leaves no doubt as to the intentions of the author.32

Moreover, a 1996 ILC Draft Code explained the meaning of systematic as committed

according to a plan or politics preconceived since the attack would be instigated or directed

by a government or by any organization or group. As a consequence of the implementation of

such a plan, repeated or continuous commission of inhumane acts could occur.33

Accordingly,

the ILC interpreted the widespread or systematic requirement of as either pursuant to a

preconceived plan or policy (systematic) or on a large scale against a multiplicity of

victims (widespread).34

Hence the policy requirement was required in systematic, but not in

widespread.

30Inter-American Court of Human Rights,Almonacid Arellano vs. Chile,26 September 2006, Serie C. No

154, para 96.31 Draft Code of Crimes Against the Peace and Security of Mankind, Report of the International Law

Commission, UN GAOR, 51st Sess., Supp. No. 10, 1 32, at 9, UN Doc. A/51/10 (1996).32

Seventh Report about the Draft Code of Crimes against Peace and Security of Mankind of the Special

Rapporteur of the U.N, Mr. Doudou Thiam. (41 th Session of the International Law Commission 1989)

A/CN.4/419 & Corr. 1, para. 88.33

Report of the ILC on the work of its 48th session, 6 May 26 July 1996, supplement no. 10 (A/51/10),

p. 94. This definition is in keeping with the preceding work of the ILC and, in particular, that of its 43rd session

which created the offense of Systematic or mass violations of human rights under Article 21 and which stated

that the systematic characteristic related to a constant practice or to a methodical plan to carry out [...] violations

of human rights (emphasis added) (1991 ILC Report, p. 266). 34 Ibid. art. 18 comm. (5).


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The ILC highlighted the existence of a state or organization action or policy due to the

extreme difficulty for a single individual acting alone to commit crimes against humanity

[] since the instigation or direction of a Government or any organization or group gives

the act its great dimension and makes it a crime against humanity imputable to private persons

or agents of a State.

The ICTY, for its part, defined systematic as follows:

203. The systematic character refers to four elements which for the purposes of this case

may be expressed as follows:

- the existence of a political objective, a plan pursuant to which the attack is

perpetrated or an ideology, in the broad sense of the word, that is, to destroy,

persecute or weaken a community

- the perpetration of a criminal act on a very large scale against a group of civilians

or the repeated and continuous commission of inhumane acts linked to one another;

- the preparation and use of significant public or private resources, whether military

or other;

- the implication of high-level political and/or military authorities in the definition

and establishment of the methodical plan.

204. This plan, however, need not necessarily be declared expressly or even stated clearly

and precisely. It may be surmised from the occurrence of a series of events, inter alia:

- the general historical circumstances and the overall political background against

which the criminal acts are set;

- the establishment and implementation of autonomous political structures at anylevel of authority in a given territory;

- the general content of a political programme, as it appears in the writings and

speeches of its authors;

- media propaganda;

- the establishment and implementation of autonomous military structures;

- the mobilization of armed forces;

- temporally and geographically repeated and co-ordinates military offensives;

- links between the military hierarchy and the political structure and its political

programme;

- alterations to the ethnic composition of populations;

- discriminatory measures, whether administrative or other (banking restrictions,laissez-passer,)

- the scale of the acts of violence perpetrated in particular, murders and other

physical acts of violence, rape, arbitrary imprisonment, deportations and expulsions

or the destruction of non-military property, in particular, sacral sites.35

In 2002, the Assembly of States Parties to the Rome Statute of the International

Criminal Court adopted an explanatory note on the elements of crimes. It clarified:

The acts need not constitute a military attack. It is understood that policy to commit such

35 ICTY, Prosecutor v. Tihomir Blaskic, Case No. IT-95-14-T, Judgment, 3 March 2000, paras. 203-4.


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attack requires that the State or organization actively promote or encourage such an attack

against a civilian population.36

[...]

A policy which has a civilian population as the object of the attack would be implemented by

State or organizational action. Such a policy may, in exceptional circumstances, be

implemented by a deliberate failure to take action, which is consciously aimed at

encouraging such attack. The existence of such a policy cannot be inferred solely from the

absence of governmental or organizational action.37

Consequently, the definition of crimes against humanity appears to have evolved so as

to disallow the requirement of a state or group plan as an element of crime, and it apparently

merely requires a course of action, guiding principle, or procedure associated with some

entity apart from the individual perpetrator.38

The requirement ofattack directed against any civilian population has been included in

all codifications of the crimes against humanity39

definition until the development of Article

7.2.a of the Rome Statute. This Article requires that: 1) the acts must be targeted against non-

combatants and 2) there must be a large number of victims.40

It is therefore important to

clarify the meanings of each of the following terms: any, civilians andpopulation.

First, any highlights that the civilian needs not to be a national or a foreigner. Although

Article 3 of the ICTR Statute included national, political, ethnic, racial or religious grounds,

no international legal instrument defining crimes against humanity requires a discriminatory

motive or ground. Hence, the term any civilian population allows the possibility of

considering both national and foreign population as a target for attacks.

Second, the civilian-criterion distinguishes crimes against humanity from permissible

military conduct.41

Under the law of war certain acts are allowed that would constitute crimes

against humanity if they were perpetrated against civilians, e.g. widespread or systematic

detention or killing of adversary forces. Nevertheless, there were incidents when the term

36Elements of Crimes, ICC-ASP/1/3(part II-B), p. 5 available at www.icc-

cpi.int/menus/icc/legal%20texts%20and%20tools/official%20journal/elements%20of%20crimes.37

Id, at n. 6. p. 120.38

See McAuliffe deGuzman,supra note 20, para. 335-374.39 See IMT Charter art. 6(c ); CCL No. 10, art II(1) ( c ); ICTY Statute, art. 5; ICTR Statute, art. 3.40 Article 7.2.a) of the Rome Statute of 17 th of July 1998. A/CON.183/9: ourse of conduct involving

the multiple commission of acts referred to in paragraph 1 against any civilian population pursuant to or in

S gz p k.41 See supra note 20, McAuliffe deGuzman, 335 at 361.


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civilian required some clarifications. For example, the ICTY in its Kupreskic Judgment stated

the justification of a wide definition ofcivilians:

the presence of those actively involved in the conflict should not prevent the characterizati on of apopulation as civilian and those actively involved in a resistance movement can qualify as victims of

crimes against humanity.42

The ICTR Akayesu decision followed that of the ICTY, stating that where there are

certain individuals within the civilian population who do not come within the definition of

civilians, this does not deprive the population of its civilian character.43

Although the term civilian bears a broad meaning, it clearly excludes enemy combatants

from the definition.

Regarding population, some commentators have argued that it is just another way of

formulating the widespread or systematic requirement. Others have stated, however, that the

term requires an attack directed against a defined group or segment of society. In fact, such an

interpretation would reintroduce the criterion of discriminatory grounds or intent into the

chapeau, however this was disallowed at the Rome Conference. Consequently, discriminatory

grounds are only required for the crime of persecution under Article 7(1)(h) of the Rome

Statute. Despite the ambiguity, the Assembly of States Parties did not elaborate further on the

meaning ofpopulation in its explanatory note on the elements of crime . Thus instead of

introducing new criteria, the termpopulation should be regarded as a clarification on the scale

of the crime, which is committed against a large number of victims.44

c.2) Subjective element

Two subjective or mental elements are required in order to treat an offence as a crimeagainst humanity. First, the mens rea related to the specific act (e.g. murder, rape, torture,

etc.); and second, the awareness of the existence of a widespread or systematic practice.45

42 ICTY, Prosecutor v. Kupreskic, Jan. 14th 2000, Case No. IT-95-16-T.43

See Prosecutor v. Akayesu, supra note 29, at 6.4.44

See McAuliffe deGuzman, supra note 20, 335 at 364.45 See Cassese, supra note 1, at 114.


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The mens rea related to the specific act must be read according to Article 30 of the

Rome Statute, under which the perpetrator will be criminally responsible and liable for

punishment only if he or she has the intent to commit the specific act.46

Alternatively, Article 7(1) refers to another mental element applicable to the chapeau

elements of the crime, and explicitly refers to a standard of knowledge when committed as

part of a widespread or systematic attack directed against any civilian population, with the

knowledge of the attack.47

In this sense, it is important to note that the mere knowledge of

the attack would be sufficient, given that a specific intent to participate in the attack is not

required. Hence, Article 7(1) now clarifies that a perpetrator must at minimum be aware of a

systematic or widespread attack.

The inclusion of the mens rea requirement was based on two reasons. First, the

connection with a systematic or widespread attack is the distinguishing criterion that raises an

ordinary crime to a crime against humanity. Second, to convict a person of such a serious

crime, anyone who was completely unaware of the widespread of systematic attack would

violate the principle of actus non facit reum nisi mens sit rea.48

It is not required that the

perpetrator has the specific intent to contribute to the systematic or widespread attack; the

perpetrator must acknowledge the connection between his act and the broader attack, but need

not realize that the attack itself is the result of a policy.

Furthermore, it is important to establish that, under customary international law, the

mens rea of crimes against humanity has always been a knowledge standard rather than a

specific intent requirement. In this regard, the Supreme Court of the British Zone in the CCL

No. 10 stated that the motive of a crime against humanity is irrelevant to incrimination. It

can be of an entirely private nature; it can be an immoral motive or a moral one as well as:

The objective connection with the Nazi regime of terror and the knowledge of this connections does not

imply that the perpetrator had the will or the awareness of supporting that regime. The Court has not

required that the agent identify himself with the Nazi system; that his personal intention was to attack,

through the victim, the race, religion or political opinion persecuted by the Nazis.49

46Art. 30 Rome Statute rwise provided, a person shall be criminally responsible and liable

for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with

kwg.47

Emphasis added.48

Robinson,Dg g H R , 93 AJIL 1999, 43 at 52.49 SeeMcAuliffe deGuzman, supra note 20, p. 389.


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Therefore, in order to confirm the liability for the commission of crimes against

humanity, the specific intent of the perpetrator need not have contributed to a widespread or

systematic attack against civilians. Moreover, the personal motives are not relevant in these

cases inasmuch as the only mens rea required is the knowledge of the nexus between the

perpetrators individual act and a widespread or systematic attack against civilian population.

d) National Legislation

International conventions regarding torture or war crimes oblige states to preventand to

prosecute these crimes and in respect of crimes against humanity, to implement the respective

rules into national law50

where no such statute exists. International bodies like the UnitedNations General Assembly called upon States to enact the necessary laws.

51Today, crimes

against humanity are liable to prosecution under the domestic law of a considerable number of

states whose national laws correspond to the Rome Statute.52

SECTION 2: DIFFERENCES BETWEEN ORDINARY CRIMES AND CRIMES

AGAINST HUMANITY

In contrast to ordinary national crimes, the origin of crimes under international law is

primarily through customary law or treaties.53

50

E.g.Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,UNTS Vol. 1465 p. 85, Art. 2(1), 5(1), 7(1) Convention(I) for the Amelioration of the Condition of the Wounded

and Sick in Armed Forces in the Field. Geneva, 12 August 1949; Convention (II) for the Amelioration of theCondition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949;

Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949; Convention (IV)

relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949 and Protocols I, II of 8

June 1977 relating to the Protection of Victims of International Armed Conflicts (I), Non-International Armed

Conflicts (II) and III of 8 December 2005, relative to the Adoption of an Additional Distinctive Emblem.51

UN Doc A/RES/60/1, 2005 World Summit Outcome, paras. 138-9. In the 2005 the World SummitOutcome the General Assembly adverted to the responsibility of every single State to protect its population from

crimes against humanity.52 The following States have implemented and ratified the Rome Statute: inter alia Argentina, Armenia,

Australia, Belgium, Canada, Costa Rica, Cyprus, Estonia, Georgia, Germany, Lithuania, Mali, Malta, Moldova,

The Netherlands, Nicaragua, Niger, Panama, Portugal, Rwanda, Senegal, Spain, South Africa, Uruguay.53 Wald, Patricia, Genocide and Crimes against Humanity, 6 WUGSLR (2007), 621.


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As a prominent international law violation, crimes against humanity were thought to be

so odious that their commission was not only an assault on the victims, but an offense against

all humanity.54

As the ICTY stated [c]rimes against humanity are crimes of a special nature

to which a greater degree of moral turpitude attaches than to an ordinary crime.55 They

further noted that [b]ecause of their heinousness and magnitude [crimes against humanity]

constitute an egregious attack on human dignity, on the very notion of humaneness.56

Bearing this in mind, the question often arises as to why it is important to punish an

international crime in addition to (or instead of) punishing the act as an ordinary crime under

domestic law. The ICTY considered the international and national precedents relating to

crimes against humanity when it sentenced a perpetrator for the first time, and concluded that

beside the concept of deterrence [o]ne of the purposes of punishment for a crime against

humanity lies precisely in stigmatizing criminal conduct which has infringed a value

fundamental not merely to a given society, but to humanity as a whole.57

The Court sees

public reprobation and stigmatization by the international community, which would thereby

express its indignation over heinous crimes and denounce the perpetrators, as one of the

essential functions of a prison sentence for a crime against humanity. In addition, thwarting

impunity even to a limited extent would contribute to appeasement and give the chance to the

people who were sorely afflicted to mourn those among them who had been unjustly killed.58

Both domestic crimes and crimes against humanity involve injury to fundamental rights,

but the distinction between them is the degree of affectation of such crimes. In domestic

crimes, the perpetrator commits a crime against an individual victim; therefore there is no

international significance since it is not committed as a part of a widespread or systematic

attack against a civilian population. Crimes against humanity are, however, committed against

the humanity as a whole. Despite noting the possibility for a single act to be considered as a

crime against humanity, it must be noted that this act must be a part of a widespread or

systematic attack against civilians. Thus, the main difference between domestic crimes and

crimes against humanity does not lie in the nature of each individual act, but rather in theconsideration of the individual act as a part of a widespread or systematic attack

59which

constitutes an egregious assault on human dignity, on the very notion of humaneness.60

54Ibid, 621 at 624.

55 ICTY, Prosecutor v. Tadic, Case No. IT-94-1-A, Judgment, 15 July 1999, para. 271.56 ICTY, Prosecutor v. Erdemovic, Case No. IT-96-22-A, Joint Separate Opinion of Judge McDonald and

Judge Vohrah, 7 Oct. 1997, para. 21.57 See, Prosecutor v Erdemovic., Case No. IT-96-22-A, Judgment 29 Nov 1998, para. 64.58 Ibid., para. 65.59

Judgement Case Brusa, TOF (Oral Federal Court) Santa Fe, 15 Feb. 2010.60 See Prosecutor. v. Erdemovic, supra note 27.


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SECTION 3: DIFFERENCES BETWEEN CRIMES AGAINST HUMANITY ANDGENOCIDE

Genocide is a crime under international law because it infringes universal moral values

and humanitarian principles.61 It is recognized in international treaty law62

as well as in

customary international law.

The Nuremberg trials marked the first time that defendants were charged for the

commission of crimes against humanity, a category which was designed to cover those crimes

committed by the German government against its own civilians, especially Jews and other

groups. The crime of genocide, however, was not included in the charter of the Nuremberg

Tribunal. It was not until after World War II the development of the crime of genocide began

with the adoption of the Genocide Convention in 1948.

Nevertheless, years before the beginning of the Second World War, Raphal Lemkin, in

1933 during the V. International Conference for the Unification of Criminal Law held in

Madrid, first introduced what he considered the racist politics of national-socialism, and

discussed two new crimes which he thought should be included in criminal law. Specifically,

he described the crime of barbarity, consisting of oppressive and destructive actions directed

against individuals as members of a national, religious or racial group, and he also mentioned

the crime of vandalism, conceived as the vandal destruction of artistic and cultural goods.

Lemkin, in his workAxis Rule in Occupied Europe: Laws of Occupation-Analysis of

Government-Proposals for Redress, stated as follows:

The new regards require new definitions. We refer as genocide the destruction of a nation or ethnic

group [...] The genocide has two laps: one is the destruction of the national identity of the oppressed

group; the other is the imposition of the oppressive group's identity.63

61Supreme Court of Israel, Judgement of 29 of May 1962, Attorney General of Israel v. Eichmann,

reproduced in International Law Reports, Vol. 36, p. 297 .62

Convention on the Prevention and Punishment of the Crime of Genocide; Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity ( art.1); Statute of the ICTY

(art.4); Statute of the ICTR (art.2); Rome Statute of the International Criminal Court (art.6).63 Lemkin, Raphal, Axis Rule in Occupied Europe: Laws of Occupation-Analysis of Government-

Proposals for Redress, Carnegie Endowment for International Peace, New Jersey, 2005, p. 91. Original

Publication Washington D.C., Carnegie Endowment for International Peace, Division of International Law,1944.


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After the Second World War, the term genocide emerged. Resolution 96 (1) of 11th

December 1946 of the UN's General Assembly stated that genocideresults in great losses

to humanityand is contrary to moral law and to the spirit and aims of the United Nations.64

Later, it was codified as a specific and autonomous crime through the adoption of the

Genocide Convention.65

Nevertheless, the crime of genocide could be regarded as a subset of crimes against

humanity, since the latter often overlaps the former,66

although it developed into a category of

crimes per se that included its own specific objective and subjective elements.67

On a

normative level, the crime of genocide is often mentioned as the crime of crimes, carrying

the heaviest stigma in the popular and in the diplomatic world.68

However, it was later

clarified that there is no legal hierarchy between war crimes, crimes against humanity and

genocide.69

Since they share common features, such as murder or rape, and similar scenarios

are possible under each definition, there is at least in abstracto no justification for an

anticipated hierarchy.70

In the Convention on the Prevention and Punishment of the Crime of Genocide as well

as in the Article 6 of the Rome Statute, the crime is described as follows:

any of the following acts committed with intent to destroy,in whole or in part, a national, ethnical, racial or religious group, as such:

(a) Killing members of the group;

(b) Causing serious bodily or mental harm to members of the group;

(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical

destruction in whole or in part;

(d) Imposing measures intended to prevent births within the group;

(e) Forcibly transferring children of the group to another group.71

Accordingly, crimes against humanity and genocide have similar elements. They

frighten the common sense of humanity, as they constitute attacks on the most fundamental

64 Resolution 96 (1) of the U.N of 11 thof December 1946 The Crime of Genocide.65

Convention on the Prevention and Punishment of the Crime of Genocide , adopted and open to

signatures and ratification by the General Assembly on its Resolution 260 A (III), of 9 December 1948. Entered

into force on 12 of January 1951 according to the article XIII.66 SeeMcAuliffe deGuzman,supra note 20, 621 at 625.67

Cassese,International Criminal Law, 2nd

edition (2008), at 144.68

ICTR, Prosecutor v. Kambanda, Case No. ICTR-97-23, Judgment, 4 Sep. 1998, para. 16; cf. Wald,

Genocide and Crimes against Humanity, 6 WUGSLR (2007), 621 at 629.69 ICTR, Prosecutor v. Kayishema, Case No. ICTR-95-1, Judgment of the AC, 1 Jun. 2001, para. 367.70

Akhavan, The Crime of Genocide in the ICTR Jurisprudence, 3 JICJ (2005), 989 at 997-8.71

Art. 2 Convention on the Prevention and Punishment of the Crime of Genocide , December, 9th

1948;and art. 6 of theRome Statue, July 17th 1998.


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aspects of human dignity. They are always part of a broad context and even though it is not

required, their commission usually involves state authorities.72

However, we can find the

main distinctions between both crimes not only in the objectives elements but also in the

subjective elements.

Regarding the objective elements, genocide requires the commission of one of the acts

specially encoded in the list, meaning that commission of any other act, such as slavery or

imprisonment, cannot be considered as genocide, but as a crime against humanity.

Furthermore, these acts must be committed against a national, ethnical, racial or religious

group. It is therefore important to note that the political groups were excluded on purpose in

the definition of Genocide Convention. This exclusion was sustained by the international

practice, as established by the Statutes of the International Criminal Tribunals for Former

Yugoslavia and Rwanda.73

The Ad Hoc Committee for the Establishment of an International

Criminal Court suggested a broadening of the definition of genocide in order to include social

and political groups. This suggestion was directly rejected since the cases in which the acts

are targeted against social or political groups are already covered by the definition of crimes

against humanity. Thus, it is stated as follows:

61. There was a suggestion to expand the definition of the crime of genocide contained in the

Convention to encompass social and political groups. This suggestion was supported by some

delegations who felt that any gap in the definition should be filled. However, other delegations

expressed opposition to amending the definition contained in the Convention, which was bindingon all States as a matter of customary law and which had been incorporated in the implementing

legislation of the numerous States parties to the Convention. The view was expressed that the

amendment of existing conventions was beyond the scope of the present exercise. Concern was

also expressed that providing for different definitions of the crime of genocide in the Convention

and in the statute could result in the International Court of Justice and the international criminal

court rendering conflicting decisions with respect to the same situation under the two respective

instruments. It was suggested that acts such as murder that could qualify as genocide when

committed against one of the groups referred to in the Convention could also constitute crimes

against humanity when committed against members of other groups, including social or political

groups.74

Difficulties arise through the lacking definition of the term group in the Convention and

its silence on the four specific groups. The ICTR gave concise definitions of the particular

groups in itsAkayesujudgment:

512. Based on the Nottebohm decision rendered by the International Court of Justice, the

72 See Cassese, supra note 1, at 144.73 Lozada, Martin. Genocidio o Crmenes de lesa humanidad? Published by Le Monde Diplomatique, El

Dipl, January 2008.74

Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, 1. Jan. 1995,UN Doc. A/50/22(SUPP), para. 61.


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Chamber holds that a national group is defined as a collection of people who are perceived to

share a legal bond based on common citizenship, coupled with reciprocity of rights and

duties.

513. An ethnic group is generally defined as a group whose members share a commonlanguage or culture.

514. The conventional definition of racial group is based on the hereditary physical traits

often identified with a geographical region, irrespective of linguistic, cultural, national or

religious factors.

515. The religious group is one whose members share the same religion, denomination or

mode of worship.75

We can state that the inclusion of the term group was made in order to consider

groups with stable characteristics, that is to say, permanently constitute [] to the exclusion

of mobile groups to which the individual voluntarily joins, such as political or economicgroups. The plain wording rather indicates that the catalog of the groups is exhaustive not

illustrative.76

In any case, such stable andpermanent groups are understood as to be

constituted in a permanent fashion [], with the exclusion of the more "mobile" groups which one joins

through individual voluntary commitment, such as political and economic groups. [] [M]embership in

such groups would seem to be normally not challengeable by its members, who belong to it automatically,

by birth, in a continuous and often irremediable manner.77

In the Rutaganda judgment, the court required that certain groups, such as political or

economic groups, must be excluded.

Thus, the ICTR recognized the lack of a precise

definition of national group, so it established one to determine the commission of genocide.

In order to consider the existence of a national group the concrete political, social and

cultural context must be perceived, stating that some groups like political or social groups

had already been specifically excluded in the travaux prparatoires of the Convention against

Genocide, since these groups were considered not stable.78

The ICTY also defined group in the Jelisicjudgment, and stated that the drafters of

the Convention against genocide attempted to limit the scope of the Convention to stable

groups [... ] to which individuals belong outside their own desires. As in theRutaganda case,

75 ICTR, Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, 2 Sep. 1998, paras. 512-5.76

See Akhavan, supra note 70, pp. 989-999.77

See Prosecutor v. Akayesu, supra note 29, para. 511.78 ICTR, Prosecutor v. Rutaganda, Case No. ICTR-96-3, Judgment, 6 Dec. 1999, para. 57.


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the ICTY concluded that the political groups were intentionally excluded from the definition

of genocide.79

The Convention of Genocide and international jurisprudence not only require that the

object of the prohibited acts be a national, ethnical, racial or religious group, but it also

mandates the existence of a subjective element. Regarding this element, the mens rea means a

two-pronged specific intention requirement.

First, the perpetrator of a genocide must have the intention to commit the actus reus,

that is to say, the intention of committing the punishable acts, such as killing members of a

group or imposing measures intended to prevent births within a group. But the actor must

commit these acts with intent to destroy, in whole or in part, a national, ethnical, racial or

religious group, as such. Therefore, this intention must be on the one hand, discriminatory,

since the choice of victims is made not according to their personal characteristics, but

according to their membership in a group. Alternatively, the intention must be destructive,

since the author must clearly expect the result to destroy [this group] in a whole or in part. 80

This requirement has been analyzed by the international tribunals on several occasions.

In the Rutaganda judgment the ICTR states that the genocide differs from other crimes

because it requires a dolus specialis, a specific intention [] which requires that the

perpetrator clearly seeks to produce the act charged. The Court noted that the dolus specialis

of genocide means the intention of destroying in a whole or in part, a national, ethnical, racial

or religious group.81

In the Akayesu judgment, the Court noted three specific elements of the

intention requirement of genocide:

(i) the intention to destroy a group

(ii) the intention to destroy a group in a whole or in a part

(iii) the intention to destroy a group identified by nationality,

race, religion or ethnicity.82

79 ICTY, Prosecutor v. Goran Jelisic, Case No. IT-95-10, 14 Dec 1999, para. 69.80

ICTR, Prosecutor v. Musema (Trial Chamber), 27 of January 2000, ICTR-96-13-A, para 164.81

See ICTR, Prosecutor v. Rutaganda,supra note 78, para. 59.82 See ICTR, Prosecutor v. Akayesu,supra note 29, para. 498, 517-522.


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The Chamber considered that on the issue of determining the offender's specific

intent, the Chamber considers that intent is a mental factor which is difficult, even impossible,

to determine. [] This is the reason why, in the absence of a confession from the accused, his

intent can be inferred from a certain number of presumptions of fact. Thereafter, the Court

elaborates on how to deduce those inferences:

The Chamber considers that it is possible to deduce the genocidal intent inherent in a

particular act charged from the general context of the perpetration of other culpable acts

systematically directed against that same group, whether these acts were committed by the

same offender or by others. Other factors, such as the scale of atrocities committed, their

general nature, in a region or a country, or furthermore, the fact of deliberately and

systematically targeting victims on account of their membership of a particular group, while

excluding the members of other groups, can enable the Chamber to infer the genocidal intent

of a particular act.83

Moreover, the ICTY, in its Kupreskic judgment, stated the importance of the intent to

discriminate, which constitutes an attack against people for their racial, ethnic, religious or

national characteristics, as well as the intent to destroy the group the victims belong to, in a

whole or in a part.84

In Krajisnik, the Court considered that genocide requires the proof not only of the intent

to commit the actus reus, but also the specific genocidal intent of the actor.

85

Hence, throughthe commission of the prohibited acts, the perpetrator aims to destroy totally or partially a

national, ethnical, racial or religious group.

For this reason, Momcilo Krajisnik was acquitted of committing genocide as well as of

complicity in genocide, since, though the actus reus was proved, the Court found no

conclusive evidence to prove the genocidal mens rea. Therefore, he was charged with crimes

again humanity.

Finally, in the Krsticjudgement, the ICTY noted:

The intent to destroy a group as such, in whole or in part, presupposes that the victims were chosen by

reason of their membership in the group whose destruction was sought. Mere knowledge of the victims

83Ibid., para. 523.

84

ICTY, Prosecutor v. Zoran Kupreskic, et al., ICTY IT-95-16-T, January, 14th

2000, para. 636.85 ICTY, Prosecutor v. Momcilo Krajisnik, IT-00-39-T, Trial Chamber, 27 September 2006, para 858.


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membership in a distinct group on the part of the perpetrators is not sufficient to establish an intention to

destroy the group as such.86

Accordingly, the following considerations can be noted: Both genocide and crimes

against humanity are particularly serious and heinous international crimes in which human

dignity is so damaged that humanity as a whole is the victim.

Both offences are part of international law, treaty law as well as customary law, and the

prohibition of their commission is a ius cogens norm, making it mandatory for all States. As a

result, a hierarchical order of severity cannot be established.

As has been noted, genocide and crimes against humanity are similar, since they share

common origins, notwithstanding that their evolution has developed in parallel. Thus,

genocide and crimes against humanity cannot be confused inasmuch as they have different

elements. Regarding the objective elements, the Convention on the Prevention and

Punishment of Genocide, as well as Article 6 of the Rome Statute, include a list of prohibited

acts that lead to genocide if they are committed in a specific context. These acts differ from

those established as crimes against humanity by Article 7 of the Rome Statute as well as by

the Statutes of the ad hoc International Tribunals for the Former Yugoslavia and for Rwanda.

Furthermore, the acts committed in order to consider a crime against humanity, must be part

of a systematic and general attack.

It is also important to state that genocide must be committed against a group

distinguished by its national, racial, religious and ethnical characteristics. However, the

crimes against humanity are targeted against civilians, so there is no discrimination in terms

of belonging to one of the groups mentioned above. The pursuit for political reasons it is

already considered as a crime against humanity, therefore there is no need to design a new

offense, since those actions are subsumed within crimes against humanity.

Concerning the mental element, in order to commit genocide the genocidal intent of the

perpetrator must be proven, thus the intent to destroy a specific group totally or partially must

be shown. This intent is not required when considering the commission of crimes against

humanity, where the mens rea of the perpetrator consists on the knowledge that the actions

are part of a general and systematic attack.

86 ICTY, Prosecutor v. Radislav Krstic, ICTY IT-98-33-PT, Trial Chamber, 2 August 2001, para. 561.


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SECTION 4: CRIMES AGAINST HUMANITY IN ARGENTINA

On the 24 of March 1976, after a coup d'tat, a military dictatorship was installed in

Argentina, headed by the Junta Military. This dictatorship ruled for more than seven years,

until December 1983. As a result, a plan and policy was established throughout the country in

order to impose a so-called Christian and occidental way of life. These policies were known

as the Proceso de Reorganizacin Nacional (National Reorganization Process) and the

Lucha contra la subversin (Fight against subversion), and the country was divided in five

zones, all controlled by the military.

As a part of this plan, crimes such as torture, illegal deprivation of freedom, kidnapping,

rapes, violation of habeas corpus, kidnapping of infants, murders etc. were generally and

systematically committed through the hierarchical command structure of the military. Due to

this structure, two questions arise: 1) Which offenses can be attributed to these behaviors, and

2) Should the offenses be considered common crimes, genocide or crimes against humanity?

Through an analysis of each element of crime it is clear that in order to achieve justice,

the acts committed by the military in Argentina must be considered as crimes against

humanity.

a) Crimes against humanity were already proscribed by international law before they were

committed during the dictatorship in Argentina

It is important to briefly analyze the principle ofnullum crimen, nulla poena sine lege,

which requires the prior existence of a criminal law that can punish behaviors, i.e. the non-

retroactivity of criminal law, established both nationally87 and internationally.88

87Articles 18 and 19 of the Argentinean Constitution.

88 Since 1946 all the proceedings for crimes of international law before domestic courts reject the

argumentation consisting on the use of expost facto laws. Thus, Israel prosecuted Adolf Eichmann I 1960,

France prosecuted Klaus Barbie in 1987 and Canada Imre Finta in 1989cited in Mattarollo, Rodolfo in

Jurisprudencia Argentina Reciente y Crmenes de lesa humanidad published in the Magazine for theInternational Commission of Jurists in July 2001, No. 62-63, Geneva: 2001, pp. 31-32. It is also to note the


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The acts committed by the military during the Argentine dictatorship were already

prohibited by international law prior to their commission. Therefore, there is no breach in theprinciple of legality. Accordingly, one can look to the opinion of the Special Rapporteur

Doudou Thiam [t]he word law must be understood in its broadest sense, which includes not

only conventional law, but also custom and the general principles of law.89

The international prohibition of crimes against humanity was already established by

international law before the commission of the crimes in Argentina, therefore the violation of

those common rights can be punished under international law. Concerning customary

international law, Argentina is part of the international treaties and covenants that ban andpursue the commission of these kinds of crimes.90 Furthermore, these treaties have become

national law and have constitutional supremacy. To that end, the Argentine Supreme Court

stated in the Poblete judgment that:

Even in the seventies, when the investigated facts were committed, international laws that

punished the disappearance of persons as a crime against humanity were included in the

national law. These rules revealed in several international instruments, regionally and

universally, were part of the national positive law in our country and were in force, not only

because Argentina has voluntarily participated in their creation, but also because according to

the international and national doctrine and jurisprudence, those rules were considered at the

time of the commission of the crimes, rules of ius cogens.91

Although the referred international treaties had been approved by Argentina after the

commission of the facts, it would not be an infringement of the principle of legality to

prosecute certain crimes, since treaties reaffirm an existing rule of ius cogens, which

recognizes its origin in international custom, existing long before the commission of the

referred facts.92

conviction of Adolfo Scilingo by the Spanish National Court on 19th

April 2005, ratified by the Spanish SupremeCourt the 1st October 2007.89

Fourth Report on the Draft Code of Offences against Peace and Security of Mankind, by the Special

Rapporteur Mr. Thiam (1986/88), YbILC 1986, Vol. II part 2, 53 at 70, para. 163.90

Universal Declaration of Human Rights; Inter-American Convention on Forced Disappearance of

Persons; Rome Statute.91

Judgment of the Argentinean Supreme Court, Case No. 17.768 Simon, Julio Hctor y otros s/ privacinilegtima de la libertad, etc of 14 of July 2005. Original in Spanish (free translation).92 Argentinian national case law: Judgement of 15 February 2010, TOF (Oral Federal Court) of Santa Fe,

CaseBRUSA, Victor Herms-COLOMBINI, Hctor Romeo- RAMOS CAMPAGNOLO, Eduardo Alberto y otros.

S/ Inf. art. 144 ter, 1st paragraph of the Law 14.616; arts. 144 bis incs. 1y 2 y 142 inc. 1 last paragraph of the

Law 23.077 and art. 55 of the C. P", (Expte. No03/08); Judgement of 2nd

November 1995 Argentinean SupremeCourt on PRIEBKE, Erich s/ solicitud de extradicin Case N 16.063/94 etc.


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b) No prescription for crimes against humanity

There is no prescription for crimes against humanity. This statement has been repeatedsince the Nuremberg Trials, and removes all time limitations placed on the investigation and

prosecution of international crimes. This idea is confirmed by treaties and covenants as well

as by international jurisprudence, and ultimately codified in the Rome Statute.93

The

Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes

Against Humanity adopted by the United Nations the 26 of November 1968 states as follows:

No statutory limitation shall apply to the following crimes, irrespective of the date of their

commission: []

( b ) Crimes against humanity whether committed in time of war or in time of peace as they aredefined in the Charter of the International Military Tribunal, Nrnberg, of 8 August 1945 and

confirmed by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 December 1946 of the General

Assembly of the United Nations, eviction by armed attack or occupation and inhuman acts

resulting from the policy of apartheid , and the crime of genocide as defined in the 1948

Convention on the Prevention and Punishment of the Crime of Genocide, even if such acts do not

constitute a violation of the domestic law of the country in which they were committed.94

In Furundzija the ICTY also addressed the issue of the tolling of torture crimes, stating

that the ban on statute of limitations is one of its consequences.95

In Argentina, the Supreme Court stated in the caseArancibia Clavel, that crimes against

humanity do not prescribe96

and considered that the crime of conspiracy committed to pursue

political opponents through murders, forced disappearance, torture, etc. constituted a crime

against humanity, consequently do not prescribe so there is no tolling of the criminal law.97

93 Article 29 states: The crimes within the jurisdiction of the Court shall not be subject to any statute of

limitations.94 Adopted and open to signatures to ratification and added by the General Assembly in its resolution 2391

(XXIII), of 26 of November 1968. Entered into force the 11th

of November 1970, according to the article VIII.Passed by the Republic of Argentina by the Law 24584. with constitutional hierarchy Law 25778.95

ICTY, Prosecutor v. Furundzija, IT-95 -171/1-T (10 of December 1998).96 Judgement of the Supreme Court of Argentina No. 24/08/2004 - "Arancibia Clavel, Enrique Lautaro s

homicidio calificado y asociacin ilcita y otros Case N 259.97

Rapallini, Liliana Etel,La doctrina de la Corte Suprema de Justicia de la Nacin en los delitos de lesa. .


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c) The crimes committed in Argentina during the dictatorship qualify as crimes against

humanity98

As has been stated, in order to qualify the crimes committed in Argentina as crimes

against humanity per the Rome Statute, an interpretive analysis of each of the elements must

be undertaken.

1) To start, there must be a prohibited conduct such as murder, torture, illegal deprivation of

freedom etc. The Argentine Truth Commission (CONADEP) investigated and assessed these

facts, which was confirmed by the National Courts.

2) Those actions must constitute an attack, part of a systematic and general plan.

It was extensively proven that the Junta Military, after obtaining control of the

government, designed and implemented a criminal and systematic plan of kidnapping, torture,

forced disappearance and physical removal of Argentines who were allegedly subversive.99

This plan was embodied in several laws and decrees such as the Secret Order of

February 1976, which included specific plans to forcefully assume political power and

implement a regime of generalized terror through massive torture and physical removal of

those who opposed the military's doctrine. The Order of Operations number 2/76 regulatingthe action of the military highlights this point. In the Annex 2 (Intelligence) of the military's

plan (volume 50) political, student, religious and worker organizations were considered active

or potential opposition. Finally, the Commander's Policy number 504/77 described the

offensive actions taken against subversive elements in 1977 and 1978.

It is also important to refer to the existence of a State or organization policy, included in

98It must be noted that the Federal Oral Criminal Tribunal No.1 of La Plata, in 2006 and 2007 convicted

former police commissioner Miguel Osvaldo Etchecolatz and former police chaplain Christian von Wernich forcrimes against humanity and stated in dicta that those crimes were committed in the context of genocide.

(Judgements available in: http://apdhlaplata.wordpress.com/2006/09/18/sentencia-etchecolatz/ andhttp://apdhlaplata.org.ar/Fundamentos%20VW%20chico.pdf). Nevertheless some scholars and authors, amon