Crimes Against Humanity in the former Yugoslavia

1
Crimes Against Humanity in the former Yugoslavia

• B. Don Taylor III
• Associate Legal Officer
• Trial Chamber II, ICTY
• 17 May 2007

2
ARTICLE 5

• The International Tribunal shall have the power
  to prosecute persons responsible for 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.

3
General Elements of Article 5

• 1) There must be an attack
• 2) Acts of the perpetrator must be part of the
  attack
• 3) The attack must be directed against a civilian
  population
• 4) The attack must be widespread or systematic
• 5) Knowledge of the perpetrator
• of the wider context in which the acts occur, and
• that the acts are part of the attack
• Limaj Trial Judgment, 30 November 2005, para. 181

4
Armed Conflict

• A jurisdictional requirement for the
  applicability of Article 5 is the existence of an
  armed conflict.
• Stakic Trial Judgment, 31 July 2003, para. 618
• Contrast ICTR Statute, Article 3
• Rome Statute, Article 7
• SCSL Statute, Article 2
• Custom, Tadic Appeal, para. 251

5
Armed Conflict, cont.

• International or internal
• A resort to armed force between States or
  protracted armed violence between governmental
  authorities and organised armed groups or between
  such groups within a State.
• Brdanin Trial Judgment, 1 September 2004, para.
  122

6
Armed Conflict, cont.

• Geographical and temporal link between the acts
  of the Accused and the armed conflict
• Proof of a nexus between the acts and the armed
  conflict is not required the only nexus required
  is between the acts and the attack on the
  civilian population
• Limaj Trial Judgment, 30 November 2005, para.
  180

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Element 1 Attack

• A course of conduct involving the commission
  of acts of violence.
• Blagojevic and Jokic Trial Judgment, 17
  January 2005, para. 543
• Attack and Armed Conflict are distinct and
  separate notions the attack may or may not be
  part of the armed conflict the attack may
  precede, outlast, or continue during the armed
  conflict
• Galic Trial Judgment, 5 December 2003, para.
  141

8
Attack, cont.

• The Attack is not limited to the use of armed
  force, but encompasses any mistreatment of the
  civilian population
• Kunarac Appeal Judgment, 12 June 2002, para. 86
• The evidence need only demonstrate a course of
  conduct directed against the civilian population
  that indicates a widespread or systematic reach
• Limaj Trial Judgment, 30 November 2005, para.
  194

9
Attack, cont.

• Irrelevant whether the other side also committed
  atrocities against its opponents civilian
  population irrelevant who started the
  hostilities
• Each attack against the other sides civilian
  population would be equally illegitimate and
  crimes committed as part of such an attack could,
  all other conditions being met, amount to crimes
  against humanity.
• Brdanin Trial Judgment, 1 September 2004, para.
  131

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Element 2 Part of the attack

• Must be a nexus between the acts of the Accused
  and the attack on the civilian population no
  nexus required between acts and armed conflict
• Crimes may not be isolated acts must be
  objectively part of the attack excludes single,
  random or limited acts

11
Part of the attack, cont.

• The acts need not be committed in the midst, or
  at the height of the attack
• A crime committed several months after, or
  several kilometres away from the main attack
  could still, if sufficiently connected otherwise,
  be part of that attack.
• Brdanin Trial Judgment, 1 September 2004, para.
  132

12
Element 3 Attack directed against a civilian
population

• Directed against
• A civilian population must be the primary
  object of the attack
• Factors considered
• The means and methods used in the attack
• The status of the victims
• The number of the victims
• The discriminatory nature of the attack
• The nature of the crimes committed in its course
• The resistance to the assailants at the time
• The extent to which the attacking force attempted
  to comply with the precautionary requirements of
  the laws of war
• Blaskic Appeal Judgment, 29 July 2004, para. 106

13
Attack directed against a civilian population,
cont.

• What is a civilian population?
• Provisions of Additional Protocol I, Article 50
  may largely be viewed as reflecting customary
  law.
• Kordic and Cerkez Appeal Judgment, 17 Dec.
  2004, para. 97
• Civilians are persons not taking part in
  hostilities, including members of armed forces
  who have laid down their arms and those placed
  hors de combat by sickness, wounds, detention or
  any other cause.
• Blagojevic and Jokic Trial Judgment, 17 Jan.
  2005, para. 544

14
Attack directed against a civilian population,
cont.

• Targeted population must be predominantly
  civilian
• May qualify even if non-civilians are among the
  population look at number of soldiers and
  whether they are on leave
• Definition should be liberally construed / Burden
  of proof rests on Prosecution

15
Element 4 Widespread or Systematic Attack

• Applies only to the attack, not to the individual
  acts of the Accused
• Widespread
• Look at the scale of the attack and the number of
  targeted persons
• Kordic and Cerkez Appeal Judgment, 17 Dec. 2004,
  para. 94
• May be the cumulative effect of a series of
  inhumane acts or the singular effect of an
  inhumane act of extraordinary magnitude
• Blagojevic and Jokic Trial Judgment, 17 Jan.
  2005, para. 545

16
Widespread or Systematic, cont.

• Systematic
• Refers to the organized nature of the acts of
  violence and the improbability of their random
  occurrence.
• Patterns of crimes, in the sense of the
  non-accidental repetition of similar criminal
  conduct on a regular basis, are a common
  expression of such systematic occurrence
• Kordic and Cerkez Appeal Judgment, 17 Dec. 2004,
  para. 94

17
Widespread or Systematic Individual Acts of the
Accused

• All other conditions being met, a single or
  limited number of acts on the Accuseds part
  would qualify as a crime against humanity, unless
  those acts may be said to be isolated or random.
• Deronjic Appeal Judgment, 20 July 2005, para. 109

18
Widespread or Systematic No Plan or Policy
Required

• The existence of a plan or policy is not an
  element of a crime against humanity either under
  Article 5 or Custom
• May be evidentially relevant
• Evidence of a policy or plan is an important
  indication that the acts in question are not
  merely the workings acting pursuant to haphazard
  or individual design, but instead have a level of
  organizational coherence and support of a
  magnitude sufficient to elevate them into the
  realm of crimes against humanity.
• Limaj Trial Judgment, 30 November 2005, para. 212

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Element 5 Knowledge

• The Accused must possess the necessary mens rea,
  which includes
• the intent to commit the underlying offence or
  offences charged
• the knowledge that there is an attack against the
  civilian population and
• the knowledge that his acts comprise part of that
  attack.
• Blagojevic Trial Judgment, 17 Jan. 2005, para. 548

20
Knowledge, cont.

• It is not necessary to prove
• that the Accused knew the details of the attack
  or
• that the Accused shared the motive, intent or
  purpose of those involved in the attack or
• that the Accused approved of the context in which
  his acts occurred or
• that the Accused intended his acts to be directed
  against the targeted population rather than
  merely against his victim.

21
Knowledge, cont.

• Motives are irrelevant, thus a crime against
  humanity may be committed for purely personal
  reasons
• The personal motive of the perpetrator of the
  crime of genocide may be, for example, to obtain
  personal economic benefits, or political
  advantage or some form of power. The existence of
  a personal motive does not preclude the
  perpetrator from also having the specific intent
  to commit genocide this distinction between
  intent and motive must also be applied to the
  other crimes laid down in the Statute.
• Krnojelac Appeal Judgment, 17 Sept. 2003, para.
  102

22
The Underlying Acts

• (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
Persecutions

• An act or omission which
• 1. discriminates in fact and which denies or
  infringes upon a fundamental right laid down in
  international customary or treaty law (the actus
  reus) and
• 2. was carried out deliberately with the
  intention to discriminate on one of the listed
  grounds specifically race, religion or politics
  (the mens rea).
• Deronjic Appeal Judgment, 20 July 2005, para. 109

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Infringing a Fundamental Right

• Wide variety of rights
• Acts listed in Article 5
• Murder, Extermination, Deportation etc.
• Acts listed in the Statute
• Article 2 Grave Breaches, Article 3 War Crimes
• Acts not listed in the Statute
• Acts not listed in Article 5 must be of equal
  gravity to those listed gross or blatant denials
  of fundamental rights considered in their
  context and with consideration of their
  cumulative effect

25
Article 5 Acts

• Murder, Article 5(a)
• Extermination, Article 5(b)
• Torture, Article 5(f)
• Rape, Article 5(g)

26
Article 5 Acts, cont.

• Deportation, Article 5(d) and Forcible Transfer /
  Displacement, Article 5(i)
• Displacements within a state or across
  national borders, for reasons not permitted under
  international law, are crimes punishable under
  customary international law. Blagojevic Trial
  Judgment, 17 Jan. 2005, para. 595
• When committed on discriminatory grounds both
  acts may qualify as a form of Persecution as a
  crime against humanity

27
Article 5 Acts, cont.

• Imprisonment, Article 5(e) / Unlawful detention
  or confinement
• Arbitrary deprivation of liberty coupled with
  intent or knowledge that the deprivation is
  arbitrary to be a form of Persecution, must be
  coupled with discrimination
• Cruel and inhumane treatment, Article 5(i)
• Serious mental or physical suffering or injury
  or a serious attack on human dignity
• Case by case consideration of all factual
  circumstances

28
Acts of equal gravity

• Destruction or looting of property
• Depends on the nature and extent of the
  destruction / Severity of the impact
• Cumulative effect may be to render a people
  homeless and with no means of economic support
• Destruction or damage to institutions dedicated
  to
• Religion, Charity, Education, Arts and Sciences,
  Historic monuments

29
Acts of equal gravity, cont.

• Unlawful arrest
• When considered in context, together with
  unlawful detention. Simic Trial Chamber, 17 Oct.
  2003, para. 60, 62.
• Harassment, humiliation, degradation, and
  psychological abuse
• The camps Omarska, Keraterm, Trnopolje

30
Acts of equal gravity, cont.

• Physical violence
• Treatment not amounting to torture, e.g.
  overcrowded conditions, deprivation of food and
  water, exposure to extreme temperatures, random
  beatings to instill terror. Stakic Trial
  Judgment, 31 July 2003, paras. 752-753.
• Sexual assault
• All serious abuses of a sexual nature short
  of rape inflicted upon the integrity of a person
  by means of coercion, threat of force or
  intimidation in a way that is humiliating and
  degrading to the victims dignity. Stakic Trial
  Judgment, 31 July 2003, para. 757.

31
Acts of equal gravity, cont.

• Terrorizing the civilian population
• Blagojevic Trial Judgment, 17 Jan. 2005, paras.
  589-592.
• Targeting civilians or civilian objects /
  Indiscriminate attacks
• Blaskic Appeal Judgment, 29 July 2004, para. 159.
• Forced labor / Enslavement, Article 5(c)
• Simic Trial Chamber, 17 Oct. 2003, paras. 85, 93.

32
Acts of equal gravity, cont.

• Employment, freedom of movement, proper medical
  care, proper judicial process
• Cumulative effect
• Brdanin Appeal Judgment, 3 April 2007, paras.
  290-297
• Issuance of discriminatory orders, policies,
  decisions, or other regulations
• Case by case analysis cumulative effect
• Simic Trial Chamber, 17 Oct. 2003, para. 58.

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Acts NOT of equal gravity

• Forcible takeover / coup detat
• Simic Trial Chamber, 17 Oct. 2003, paras. 55-56.
• Excluding, dismissing or removing particular
  groups from the government
• Encouraging and promoting hatred on political
  grounds
• Kordic and Cerkez Trial Judgment, 26 Feb. 2001,
  paras. 208-210.

34
Discriminatory Intent

• Political, racial, or religious grounds
• Dolus specialis, thus, higher than for other
  crimes against humanity, lower than for genocide.
  Kupreskic Trial Chamber, 14 Jan. 2000, para. 636.
• Who qualifies as a victim?
• The targeted group may also include persons
  defined by the perpetrator as belonging to the
  victim group due to their close affiliations or
  sympathies for the victim group.
• Naletilic and Martinovic Trial Chamber, 31 Mar.
  2003, para. 636.

35

• ICTY Cases
• www.un.org/icty/cases-e/index-e.htm
• B. Don Taylor III
• taylorb_at_un.org
• bdontaylor_at_yahoo.com
• 31 (0)70 512-5153