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EUROPEAN CENTER FOR CONSITUTIONAL AND HUMAN RIGHTS e.V. _ ZOSSENER STR. 55-58 AUFGANG D 10961 BERLIN, GERMANY _ PHONE FAX MAIL WEB +49.(030).40 04 85 90 +49.(030).40 04 85 92 INFO@ECCHR.EU WWW.ECCHR.EU

ECCHR Amicus Curiae

Crimes Against Humanity

Berlin, September 2010

TABLE OF CONTENT

INTRODUCTION ...................................................................................................................... 1 a) Presentation ....................................................................................................................... 1 b) Importance of the Current Process in the Field of International Human Rights .............. 2 SECTION 1: CRIMES AGAINST HUMANITY ...................................................................... 3 a) An Overview ....................................................................................................................... 3 b) Development ...................................................................................................................... 3 Control Council Law No. 10 .............................................................................................. 5 Conventions and Resolutions ............................................................................................. 5 The International Criminal Tribunal for the Former Yugoslavia (ICTY) .......................... 7 The International Criminal Tribunal for Rwanda (ICTR) .................................................. 7 The International Criminal Court (ICC)............................................................................. 8 c) Elements of crime ............................................................................................................... 9
c.1) Objective elements ............................................................................................................... 9 c.2) Subjective element ............................................................................................................. 13

d) National Legislation......................................................................................................... 15 SECTION 2: DIFFERENCES BETWEEN ORDINARY CRIMES AND CRIMES AGAINST HUMANITY ............................................................................................................................ 15 SECTION 3: DIFFERENCES BETWEEN CRIMES AGAINST HUMANITY AND GENOCIDE ............................................................................................................................. 17 SECTION 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 .................................................................. 24 b) No prescription for crimes against humanity .................................................................. 26 c) The crimes committed in Argentina during the dictatorship qualify as crimes against humanity ............................................................................................................................... 27 SECTION 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), 12 August 1949, entry into force on 21 October 1950 United Nations, Treaty Series, Vol. 75 No. 971, p. 85

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Convention Relative to the Protection of Prisoners of War (3rd Geneva Convention), 12 August 1949, entry into force on 21 October 1950 United Nations, Treaty Series, Vol. 75 No. 972, p. 135 Convention Relative to the Protection of Civilian Persons in Time of War (4th Geneva Convention), 12 August 1949, entry into force on 21 October 1950 United Nations, Treaty Series, Vol. 75 No. 973, p. 287 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 United Nations, Treaty Series, Vol. 78 No. 1021, p. 278 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 United Nations, Treaty Series, Vol. 754 No. 10823, p. 73

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International Covenant on Civil and Political Rights 16 December 1966, entry into force on 23 March 1976 United Nations, Treaty Series, Vol. 999 No. 14668, p. 171 International Convention on the Suppression and Punishment of the Crime of Apartheid, 30 November 1973, entry into force on 18 July 1976 United Nations, Treaty Series, Vol. 1015 No. 14861, p. 243 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, entry into force on 26 June 1987 United Nations, Treaty Series, Vol. 1465 No. 24841, p. 85 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 Judgment of 4 September 1998 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 Judgment of 10 December 1998 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 Judgment of 14 December 1999 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 Judgment of 26 September 2006 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 Criminals 13 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 Mankind Titles 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.) YEARBOOKS AND JOURNALS

Documents on the Laws of War, 2nd edition (1989)

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

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)

<http://www.icwc.de/fileadmin/media/IMTFEC.pdf> 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-profit human 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 dictatorship between 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 attack on 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, they must form a part of a widespread or systematic practice.2 Third, crimes against humanity are punishable regardless whether or not the situation constitutes an armed conflict. Fourth, victims may be civilians or others who do not take part in armed hostilities.

b) Development

1 2

Cassese, A. International Criminal Law 2nd Ed. (2008), pgs. 98-99. The concepts widespread and systematic will we explained in Section 3 of this report. However it can be noted that widespread practice 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 political group. Page 3

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 acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.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 of humanity and the 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

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 under the 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. 1907 Hague 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 1st Add. Prot., Preamble of the 2nd Add. 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 for International Peace, Division of International Law, Pamphlet No. 32, Annex. Page 4

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 in connection 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

See Cassese, supra note 1, at 103. 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 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid establishes in its Article 1 that the crime of apartheid constitutes a crime against humanity.15

Eventually, the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment provides 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 Mankind Titles and texts of articles adopted by the Drafting Committee: Parts One and Two, YbILC 1991 II 2, at 94. Page 6

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:


19

Art. 2 of the Draft 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. Page 7

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. 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;

2.

23

Statute of the International Criminal Tribunal for Rwanda, Art. 3, annexed to S/RES/955 (1994). Page 8

[]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 25

Rome Statute of the International Criminal Court, UNTS Vol. 2187 p. 3, entry into force 1 July 2002. 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 widespread and 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 of widespread or systematic attack. 29 ICTR, Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, 2 September 1998, para. 580. Page 9

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

The systematic 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.

30

Inter-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). Page 10

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 any level 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. Page 11

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 of attack 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 noncombatants 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 and population.

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

36

Elements of Crimes, ICC-ASP/1/3(part II-B), p. 5 available at www.icccpi.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 17th 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 g z p k . 41 See supra note 20, McAuliffe deGuzman, 335 at 361. Page 12

civilian required some clarifications. For example, the ICTY in its Kupreskic Judgment stated the justification of a wide definition of civilians:
the presence of those actively involved in the conflict should not prevent the characterization of a population 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 of population in its explanatory note on the elements of crime. Thus instead of introducing new criteria, the term population 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 crime against 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 43 44 45

ICTY, Prosecutor v. Kupreskic, Jan. 14th 2000, Case No. IT-95-16-T. See Prosecutor v. Akayesu, supra note 29, at 6.4. See McAuliffe deGuzman, supra note 20, 335 at 364. See Cassese, supra note 1, at 114. Page 13

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

46

Art. 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 k w g . 47 Emphasis added. 48 Robinson, D g g H R , 93 AJIL 1999, 43 at 52. 49 See McAuliffe deGuzman, supra note 20, p. 389. Page 14

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 prevent and 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 United Nations General Assembly called upon States to enact the necessary laws.51 Today, 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 the Condition 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 Summit Outcome 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. Page 15

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 the consideration of the individual act as a part of a widespread or systematic attack 59 which constitutes an egregious assault on human dignity, on the very notion of humaneness.60

54 55

Ibid, 621 at 624. 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. Page 16

SECTION 3: DIFFERENCES BETWEEN CRIMES AGAINST HUMANITY AND GENOCIDE 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 work Axis 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

61

Supreme 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 NonApplicability 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 GovernmentProposals 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. Page 17

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 65

Resolution 96 (1) of the U.N of 11th of December 1946 The Crime of Genocide. 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 See McAuliffe 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 the Rome Statue, July 17th 1998. Page 18

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 binding on 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 its Akayesu judgment:
512. Based on the Nottebohm decision rendered by the International Court of Justice, the
72 73

See Cassese, supra note 1, at 144. 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. Page 19

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 common language 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 economic groups. The plain wording rather indicates that the catalog of the groups is exhaustive not
76

illustrative.

In any case, such stable and permanent 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 Jelisic judgment, 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 the Rutaganda case,

75 76 77 78

ICTR, Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, 2 Sep. 1998, paras. 512-5. See Akhavan, supra note 70, pp. 989-999. See Prosecutor v. Akayesu, supra note 29, para. 511. ICTR, Prosecutor v. Rutaganda, Case No. ICTR-96-3, Judgment, 6 Dec. 1999, para. 57. Page 20

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 80 81 82

ICTY, Prosecutor v. Goran Jelisic, Case No. IT-95-10, 14 Dec 1999, para. 69. ICTR, Prosecutor v. Musema (Trial Chamber), 27 of January 2000, ICTR-96-13-A, para 164. See ICTR, Prosecutor v. Rutaganda, supra note 78, para. 59. See ICTR, Prosecutor v. Akayesu, supra note 29, para. 498, 517-522. Page 21

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, through the 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 Krstic judgement, 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

83 84 85

Ibid., para. 523. ICTY, Prosecutor v. Zoran Kupreskic, et al., ICTY IT-95-16-T, January, 14th 2000, para. 636. ICTY, Prosecutor v. Momcilo Krajisnik, IT-00-39-T, Trial Chamber, 27 September 2006, para 858. Page 22

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. Page 23

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 of nullum crimen, nulla poena sine lege, which requires the prior existence of a criminal law that can punish behaviors, i.e. the nonretroactivity of criminal law, established both nationally87 and internationally.88

87 88

Articles 18 and 19 of the Argentinean Constitution. Since 1946 all the proceedings for crimes of international law before domestic courts reject the argumentation consisting on the use of ex post 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 the International Commission of Jurists in July 2001, No. 62-63, Geneva: 2001, pp. 31-32. It is also to note the Page 24

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 the principle 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 and pursue 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 19 th April 2005, ratified by the Spanish Supreme Court 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/ privacin ilegtima 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, Case BRUSA, 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 Supreme Court on PRIEBKE, Erich s/ solicitud de extradicin Case N 16.063/94 etc. Page 25

b) No prescription for crimes against humanity

There is no prescription for crimes against humanity. This statement has been repeated since 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 are defined 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 case Arancibia 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 11 th 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 . . Page 26

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 regulating the 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
98

It 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 for crimes 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/ and http://apdhlaplata.org.ar/Fundamentos%20VW%20chico.pdf). Nevertheless some scholars and authors, among them Margarita K. O'Donnell consider that those cases contain a troubling and discordant definition of genocide that has the potential to undermine the integrity of current genocide jurisprudence. According to O'Donnell, taking into account that neither Etchecolatz nor Von Wernich were actually charged with or convicted of genocide but the court merely used the label as a description of the Argentine Dirty War, the court was able to satisfy the victims' desire that the genocide label be used while stopping short of convicting defendants for violating the Convention, see also Margarita K. O'Donnell, New Dirty War Judgements in Argentina: National Courts and Domestic Prosecutions of International Human Rights Violations. New York University Law Review, Vol. 84:333, April 2009, p. 367. 99 This concept was defined by the Spanish National Court in its Judgment of 19 April 2005 in the Scilingo case Proven Facts II, First. As those who, due to their thinking, activities, relations or political affiliation are apparently incompatible with their political and social project. Page 27

the Article 7(2) of the Rome Statute, in order to perpetrate the attack. In this case, as has been noted, the acts committed by the military during the dictatorship were part of a political plan designed by the de facto government. 3) The attack must be targeted against civilians. The systematic plan called Proceso de Reorganizacin Nacional was devoted to remove every element of society that could be subversive, and therefore, contrary to the wills established by the military's hierarchy. Thus, the subject of the attack was not a specific group, or a group of people sharing similar characteristics, but rather the whole population of Argentina at that time, regardless of religion, race, ethnicity or nationality. One could question whether the victims of the military repression could be considered as a national group, and therefore treat the crimes as genocide. In UN High Commissioner for Human Rights report on the prevention of genocide, a national group is defined as those people who share a same national origin which is a specific traditional culture, language and lifestyle in a country.100 The victims of the Argentine military came from different cultures, lifestyles and even nations, so one cannot support this analysis. One could consider that the Argentines belonged to a political group because, even if they had different ideologies and political points of view, they shared a common political idea: opposition to the dictatorship. This consideration, nevertheless, does not change the ultimate view that the inclusion of social and political groups in the Convention against Genocide was expressly disallowed, not only at the writing but also subsequently due to the consideration that social and political groups lack fixed and stable characteristics. It is worth noting that the de facto Junta President, Jorge Rafael Videla, claimed in Montevideo that in Argentina in order to reach the security of the country all the necessary people will have to die.101 This supports the idea that the victims were not a specific group, but rather all civilians who were considered subversives were within this group. 4) Finally, the mental element of a criminal perpetrator must be considered when evaluating crimes against humanity. Accordingly, the Rome Statute, as has already been explained, requires that the perpetrator have knowledge that the act that committed is a part of a systematic and general plan. It is inplausible that the commanders were unaware that their
100

A/HRC/10/25, prevention of genocide - report of the United Nations High Commissioner for Human Rights (March 9, 2009). 101 Declared by Jorge Rafael Videla the 24th October 1975 in the XI Conference of American Army. Page 28

acts were part of a systematic and general attack against the civilians, since the orders were created by the higher hierarchy and went down the chain of command until their execution. Therefore, the members of the military were not only aware of the illegality of their actions, but they also were fully aware that these acts were part of an attack, and a consequence of a plan or policy orchestrated by the government against civilians. It must be noted that the crimes committed in Argentina by the military during the dictatorship are not genocide, since the required mens rea does not exists. The specific intent of the perpetrator to destroy a national, ethnical, religious or racial group must be proven. In the present case, the intentional element cannot be proved, therefore the crimes committed cannot be considered genocide under international law and instead qualify as crimes against humanity.

SECTION 5: CONCLUSION Before Second World War, the international community realized the significance of distinguishing common crimes from the heinous and atrocious offences committed against humanity as a whole. At that time, the legal concept of crimes against humanity was performed, in particular by its definition in the Article 6 (c) of the 1945 Nuremberg Charter. As previously discussed, the main difference between common crimes and crimes against humanity lies in the degree of affectation. Since the former are committed against an individual, the latter have international relevance inasmuch as the victim is humanity as a whole. Consequently, as crimes against humanity have a greater degree of turpitude, they merit a specific treatment to stigmatize that criminal conduct. The massive violations of human rights during the military dictatorship in Argentina amount to breaches of international law. By its scale and gravity these crimes affect not only the victims, but the international community as a whole. To respect the severe and systematic character of the acts committed in the dictatorship, prosecution not only of ordinary crimes under domestic law, but also of crimes under international law, is essential to address these acts in an appropriate way and manner. Because national court decisions will shape

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international law, the normative implications of Argentine decisions are significant.102

102

M.K. ODonnell, New Dirty War Judgements in Argentina: National Courts and Domestic Prosecutions of International Human Rights Violations. New York University Law Review, Vol. 84:333, April 2009, p. 369. Page 30

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