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Last modified on: 01.11.2013
This section provides a series of definitions of various international crimes and an in-depth review of various issues of international criminal law.
The concept of ‘genocide’ first appeared in 1944 to designate the extermination of Jews and Romani people committed during the Second World War, which had been described as a “crime without a name”, by Winston Churchill. The term had been invented by the Polish jurist Raphaël Lemkin to designate mass crimes committed by Germany under the Nazi regime and by Ottoman Empire against Armenians in 1915. The word itself has Greek and Latin roots – ‘génos’ means race, taken from the Greek, and ‘cide’ is ‘to kill’ in Latin. Although missing from the 1945 London Agreement, the term is used in the indictment of the Nuremberg trials to better define the crimes committed by the Nazi regime. The ultimate recognition came with the adoption in 1948 of the Convention on the Prevention and Punishment of the Crime of Genocide by the U.N. which separated it from traditional crimes committed in times of conflict.
Article 2 of the Convention defines the crime of genocide as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
- Killing members of the group;
- Causing serious bodily or mental harm to members of the group;
- Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
- Imposing measures intended to prevent births within the group;
- Forcibly transferring children of the group to another group”.
The definition provides three key elements to qualify genocide: a material element, an intentional element, and the notion of group.
With reference to the material element, the definition given by the 1948 Convention and reaffirmed by article 6 of the Rome Statute of the International Criminal Court, targets five types of acts as constitutive of genocide.
The case law specified this notion. According to the case law of the ICTR Akayesu (ICTR, Chamber I, Akayesu, 2.09.1998, §589), three criteria must be combined :
- The victim is dead;
- The death resultes from an illegal act or from an illegal omission of the accused or from his subordinate;
- At the time of the commission of the murder, the accused or his subordinate were inhabited by the intention to kill the victim or to carry grave infringement in his physical integrity, knowing that this infringement could entail the death and it was indifferent to him that the death of the victim results from it or not.
- damages to physical and mental integrity (like acts of torture, inhuman or degrading treatments, rapes, sexual violence to death threats,... The infringement of the mental integrity supposes a change of mental faculties)
- forced submission of a group to conditions of life leading to its physical destruction in whole or in part (It is all the measures to subject the members of the group to inhuman living conditions, having or not entailed the death, as work camps or concentration camps)
- measures aiming to avoid births within the group (like forced sterilization, forced separation of men from women, legal obstructions to marriages,…)
- forced transfer of children from a group to another (these measures aim at preventing the group to rebirth in future generations).
As far as the psychological element is concerned, genocide requires a double intent: besides the intent to carry out the material act, such act must be committed with the specific intent to destroy a protected group in whole or in part.
Such intention can be inferred from statements, texts, speeches, acts of the criminal, but not from the death toll and the extent of the destruction.
The destruction has to aim " a group as such ", it means that it is the group which must be aimed and the crimes must have been committed against the victims because of their membership to a group. For instance, the UN Commission of Inquiry on Darfur excluded the existence of a State policy of genocide in the area, despite the huge massacre of people, since the aim of the army was to gain control of the territory, rather than to target a group as such.
It is not necessary to prove that the defendant intended to eradicate the whole group. For example the genocide of Srebrenica, recognized among others by the ICTY and the ICJ, was perpetrated against the “partial” group of battle age Bosnian males living in Srebrenica. There is no quantitative criteria, even if the number of victims is a good indications.
The third key element for the definition of genocide is the notion of “group”. Article 2 lists the group targeted by the crime of genocide as national, ethnical, racial or religious groups. The first definitions included other types of groups, such as political and cultural ones. These classes of groups were neither retained by States during the adoption of the 1948 Convention nor by the ICC Statute in 1998.
The judgement in the Akayesu case (§ 512 and following) also gives precisions as to the different types of groups:
- 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”;
- Ethnic group is “a group whose members share a common language or culture”;
- Racial group is based on “the hereditary physical traits often identified with a geographical region, irrespective of linguistic, cultural, national or religious factors”;
- Religious group “is one whose members share the same religion, denomination or mode of worship”.
Furthermore, a feature of the crime of genocide is that associated crimes are also punishable too, namely conspiracy, direct and public incitement, attempt and complicity.
According to the Convention, member states must not only refrain from committing acts of genocide but must also ban, prosecute and punish them. States must either prosecute or extradite any person whom they suspect of participating in an act of genocide. The prohibition of the genocide is an absolute standard of the international law (jus cogens). Consequently, States are obliged to punish the authors of a genocide without taking into account the political or diplomatic immunities.
Crimes of genocide can be prosecuted before national or international courts. The 1948 Convention already planned for the creation of an international criminal court to judge individuals charged with genocide. However, it was not until 2002 that the International Criminal Court opened its doors. At the political level, the Convention authorizes any competent body, including the United Nations Security Council, to implement measures to prevent and repress acts of genocide. The member States can refer any conflicts on the interpretation, application or execution of the Convention to the International Court of Justice.
Today, thanks in particular to the growth of humanitarian legal principles and the Rome Statute of the International Criminal Court, many states now recognize that they ought to prosecute crimes of genocide more effectively, by closing legislative gaps in their own jurisdiction and seeking out alleged offenders, wherever they may be found.
International legal sources
Convention on the prevention and punishment of the crime of genocide, 9 December 1948
Art. 6 of the Rome Statute of the International Criminal Court, 17 July 1998
Art. 4 of the Statute of the International Criminal Tribunal for the former Yugoslavia, 25 May 1993
Art. 2 of the Statute of the International Criminal Tribunal for Rwanda, 8 November 1994
Access the many proceedings pending before national or international jurisdictions for genocide (search by category “genocide”) through Trial Watch.
“Genocide in international law: The crime of crime”, by William A. Schabas.
Crimes against humanity+
Crimes against humanity
Although the phrase “crimes against humanity” was already mentioned in a diplomatic note in 1915 in relation to the Armenian mass killings in the Ottoman Empire, it only appeared in its legal and conceptual form in the 1945 Nuremberg Charter, that provided a definition in Article 6(c).
The Nuremberg proceedings set up the basis of the modern approach to crimes against humanity: the notion encompassed a set of particularly serious offences, such as murder, extermination, enslavement, deportation, or persecutions, when committed against civilians, regardless of their nationality.
Under the Nuremberg definition of crimes against humanity, a link with a war was necessary. This requirement was first softened, to include contexts of internal armed conflicts, in the Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY, Art. 5) and subsequently disappeared in the Statute of the International Criminal Tribunal for Rwanda (ICTR, Art. 3) and the Rome Statute of the International Criminal Court (ICC, Art. 7).
The Statutes of the ICTR and the ICC replaced the nexus with the armed conflict with a new element, which was already mentioned in the jurisprudence of the ICTY and in other documents: in order to qualify as crimes against humanity, the acts have to be committed as part of “a widespread or systematic attack”. This element has the effect of excluding isolated or random acts. However, a single act committed in the context of a widespread or systematic attack can qualify as a crime against humanity. What matters is that the perpetrator is aware of the context of abuses. Although crimes against humanity have often been committed as part of state policies, due to the structured organisation and scope of the abuses, they can also be perpetrated by any group such as paramilitary forces, guerrilla movements and terrorist organisations.
An important development has been the recognition of rape as one of the acts constituting a crime against humanity (Art. 5(g) of the ICTY Statute and Article 3 of the ICTR Statute). This recognition was subsequently extended to other forms of sexual violence in the Rome Statute (Art. 7(g), see below). Article 7 of the Rome Statute establishes a non-exhaustive list of acts that can amount to crimes against humanity when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
d. Deportation or forcible transfer of population;
e. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
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, 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.
According to the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, crimes against humanity, whether committed in time of war or in time of peace, and as defined in the Nuremberg Charter, cannot be subject to statutory limitations (Art. 1). Under the Rome Statute, it is explicitly stated that the crimes within the jurisdiction of the Court are not subject to any statute of limitations (Art. 29).
International legal sources
Article 7 of the Rome Statute of the International Criminal Court, 17 July 1998
Article 5 of the Statute of the International Criminal Tribunal for the former Yugoslavia, 25 May 1993
Article 3 of the Statute of the International Criminal Tribunal for Rwanda, 8 November 1994
Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, 26 November 1968
TRIAL WATCH offers easy access to numerous criminal proceedings that took place (or are taking place) in national or international courts for crimes against humanity (search by category « crimes against humanity »)
Geoffrey Robertson, « Crimes Against Humanity: The Struggle for Global Justice »
War crimes are serious infringements to laws of war. Broadly, the international norms regulating war are codified in the four Geneva Conventions of 1949 and their two additional protocols of 1977, and are defined as international humanitarian law (IHL).
War crimes were effectively prosecuted for the first time in the aftermaths of the Second World War, when International Criminal Tribunals were established in Nuremberg and Tokyo. Afterwards, war crimes have been occasionally prosecuted by national Courts, as in the case of William Calley, held responsible for the massacre of My Lai in Vietnam. In the '90s, the repression of war crimes developed with the establishment of International Criminal Tribunals for Ex-Yugoslavia (ICTY) and Rwanda (ICTR), and with the creation of the International Criminal Court (ICC) with the Rome Statute entered into force in 2002.
To configure a war crime, entailing individual responsibility for the perpetrator, the rule of IHL violated must protect important values and the consequences for the victims must be grave and serious. The link between the conduct and the armed conflict (which since the ICTY Tadic case, can be both international and not international) must be proved.
Article 8 of the ICC Statute lists the conducts constituting war crimes. Among them, those constituting “grave breaches” to the 1949 Geneva Conventions entail the obligation of all States to prosecute them. These acts are:
(i) Wilful killing;
(ii) Torture or inhuman treatment, including biological experiments;
(iii) Wilfully causing great suffering, or serious injury to body or health;
(iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
(v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;
(vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;
(vii) Unlawful deportation or transfer or unlawful confinement;
(viii) Taking of hostages.
War crimes can be perpetrated by both civilian and combatants against their enemies, again both civilian and combatants. However, war crimes cannot be committed against their own militaries and their own civilian population.
War crimes are imprescriptibles before international jurisdiction (see for instance art. 29 of the ICC Statute) as well as before many national jurisdiction, according to international treaties such as the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity.
The emerging principle of Universal Jurisdiction allows all States to prosecute war crimes before their national Courts, independently from the nationality of the perpetrator and the victim and the territory where the war crimes were committed.
International Legal Sources
1949 Geneva Convention and 1977 Additional Protocols
Art. 8 of the ICC Statute
Art. 2 and 3 of the ICTY Statute
http://www.icrc.org/ihl.nsf/FULL/555?OpenDocumentArt. 4 of the ICTR Statute
Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, 26 November 1968.
TRIAL WATCH offers easy access to numerous criminal proceedings that took place (or are taking place) in national or international courts for war crimes (search by category « war crimes »).
A crime of aggression occurs when a state uses armed force against another state, as prohibited by art. 2.4 of the UN Charter, which states:
“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”.
However, the use of force does not amount to a crime of aggression:
- in cases of individual or collective self-defence (authorized by Art. 51 of the UN Charter) ; or
- when it has been authorized by the Security Council in order to maintain or restore international peace and security (Art. 42 of the UN Charter).
Aggression was already prohibited in international law before the Second World War, constituting an international wrongful act entailing state responsibility. It was first regarded as an international crime involving individual criminal liability in the Charter of the International Military Tribunal at Nuremberg in 1945 (Art. 6(a)), in which it is defined as “crime against peace”.
The problem with the concept of aggression rests within its definition. In 1974, the UN General Assembly finally adopted a definition of aggression in its Resolution 3314 (XXIX): it is “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations” (Art. 1). Article 3 provides that the following acts, amongst others, regardless of a declaration of war, shall qualify as acts of aggression:
- The invasion or attack by the armed forces of a State of the territory of another State;
- Bombardment by the armed forces of a State of the territory of another State;
- The action of a State in allowing its territory to be used by another State for perpetrating an act of aggression against a third State;
- The sending by a State of armed bands or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above.
However, it is mentioned that the list of acts enumerated in the Resolution is not exhaustive, thus leaving the Security Council with a broad area of discretion in characterizing other acts as aggression (Article 4, in conjunction with Article 39).
The Rome Statute of the International Criminal Court has not proven more useful in delineating the concept of aggression. Although Article 5 gives the Court jurisdiction over such a crime, the exercise of this jurisdiction can only take place once a provision defining the crime of aggression is adopted through an amendment of the Statute (Article 5(2)). The adoption of a definition by the Assembly of State Parties (ASP) may take place at the 2010 Review Conference. A Special Working Group on the Crime of Aggression was established in 2002 by the ASP to continue discussions on the definition, elements and jurisdictional conditions of this crime.
During the Review Conference of the Rome Statute, which took place in Kampala (Uganda) from 30 May to 11 June 2010, the States present adopted amendments to the Statute of the International Criminal Court (ICC) and, in particular, a definition of the crime of aggression, as well as the conditions by which it may be referred to the ICC. In 1998, when the Rome Statute was adopted, the crime of aggression had been included in Art. 5 of the Statute as coming under the jurisdiction of the Court, but neither the crime, nor its conditions of application were defined, thus nullifying its impact. It was therefore planned that a review conference would take place seven years after the Statute had entered into force to examine modifications to it (Art. 123 of the Statute). In the intervening period, a working group charged with preparing a text to be presented during the Review Conference worked for several years on an acceptable solution.
Following long discussions, the Review Conference reached an agreement allowing the definition of the crime of aggression to be added to Article 8 bis, paragraph 1 of the Statute, establishing the crime “as the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations”. An act of aggression is itself defined in Article 8 bis, paragraph 2 as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations”. An exhaustive list of acts of aggression is set out in (a) to (g) of Article 8 bis, paragraph 2, including for example:
- The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof (a);
- Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State (b);
- The blockade of the ports or coasts of a State by the armed forces of another State (c);
- An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State (d).
The Review Conference also set the conditions allowing the International Criminal Court to exercise its jurisdiction in the case of a crime of aggression, the conditions for which shall henceforth be provided for in Articles 15 bis and 15 ter of the Statute. The prosecution of a crime of aggression is regulated a little differently from the other crimes. The ICC may indeed exercise its jurisdiction if:
- the UN Security Council refers a matter to the ICC Prosecutor (Art. 15 ter)
- a Member State refers a situation to the Prosecutor (Art. 15 bis)
- the Prosecutor opens an investigation (proprio motu) (Art. 15 bis).
However, unlike the other crimes, the Court will only have jurisdiction in the last two cases:
- after the Prosecutor has ascertained whether the Security Council has made a determination of the existence of an act of aggression by the State involved (Article 15 bis, paragraph 6 and under Article 39 of the UN Charter) or, if the Security Council does not reach such a determination, at the earliest six months after the Prosecutor has notified the UN Secretary-General of the judicial proceedings begun before the Court (Article 15 bis, paragraph 8);
- when the situation concerns an act of aggression committed between States Parties (as the Court does not have jurisdiction for a crime of aggression committed by nationals of a Non-State Party or on its territory: Article 15 bis, paragraph 5); and
- provided that the Pre-Trial Division of the Court has authorized the commencement of the investigation.
Furthermore, in accordance with the conditions for the entering into force of these amendments, the Court will only be able to exercise its jurisdiction over a crime of aggression once a year has passed since 30 States Parties have ratified or accepted the amendments; but in all instances not before a decision is taken after 1 January 2017 by the majority of States Parties as is required for the adoption of an amendment to the Statute, the final barrier which certain States, not keen to see the Court exercise its jurisdiction over the crime of aggression, succeeded in laying down at the end of the Conference.
Furthermore, each State Party will be able to declare their non-acceptance of the jurisdiction of the Court for the crime of aggression by lodging a declaration to this effect with the Registrar (Art.15 bis, paragraph.4).
International legal sources
Article 5(2) of the Rome Statute of the International Criminal Court, 17 July 1998
United Nations General Assembly Resolution 3314 (XXIX), 14 December 1974
Article 2(4) of the United Nations Charter, 26 June 1945
Review conference resolution 6, 11 June 2010
Website of the Coalition for the International Criminal Court
TRIAL Watch offers easy access to numerous criminal proceedings that took place (or are taking place) in national or international courts for crimes of aggression (search by category « aggression »).
Special Working Group on the Crime of Aggression of the International Criminal Court
Although the absolute prohibition of torture has been enshrined in several international human rights instruments since the 1948 Universal Declaration of Human Rights, the European Convention on Human Rights or the International Covenant on Civil and Political Rights, the main reference is the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the UN General Assembly on 10 December 1984. For the first time, the torture was defined in an international legally binding instrument and recognized as an international crime.
The article 1 of this Convention gives a precise definition, which involves the following elements:
- Severe pain or suffering, whether physical or mental;
- Intentionally inflicted on a person;
- Obtaining from him or a third person information or a confession;
- Punishing him for an act he or a third person has committed or is suspected of having committed;
- Intimidating or coercing him or a third person; or
- For any reason based on discrimination of any kind;
- When such pain or suffering is inflicted by, or at the instigation of, or with the consent or acquiescence of a public official;
- And which does not arise only from lawful sanction.
It must be noted that the distinction between torture and other cruel, inhuman or degrading treatments that do not amount to torture is far from clear-cut and has been interpreted differently by various international jurisdictions.
According to the 1984 Convention, all State Parties must ensure that all acts of torture are offences under their national criminal law, and have the obligation to prosecute or extradite any alleged torturer who is present in their territory, regardless of the nationality of the perpetrator or the state in which the crime was committed. In this sense, the Convention expressly affirms universal jurisdiction over the crime of torture, on the basis of which several trials have taken place before national courts.
Nevertheless, none of the international criminal tribunals or courts have jurisdiction over torture as a discrete crime. Hence, under the statutes of these tribunals, torture can only be prosecuted if it falls within the category of war crimes (i.e. is committed during an armed conflict) or crimes against humanity (i.e. is part of a widespread or systematic attack directed against a civilian population).
The Rome Statute of the International Criminal Court defines the crime against humanity of torture as « the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanction » (Art. 7(2)(e)).
Contrary to the definition of the Convention of 1984, the conditions holding to the purpose and the necessity that a public agent is involved are not any more required.
The Rome Statute provides no definition of torture as a war crime (Art. 8), neither do the Geneva Conventions of 12 August 1949, on which the provisions on torture as a war crime contained in the Rome Statute are based (Art. 8(2)(a)(ii) and 8(2)(c)(i)). Nevertheless, the Elements of Crimes, which provide for a closer definition, do however take up the notion of purpose (Art. 8(2)(a)(ii)(I)(2)), under words similar to those found in the 1984 Convention.
The prohibition of torture is absolute although the international texts do not provide a clear definition of torture. Hence, the prohibition of torture falls under peremptory international law (jus cogens), which has to be respected at all times without exception.
International legal sources
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984
http://www2.ohchr.org/english/law/cat.htmArticles 7(1)(f) and 8(2)(a)(ii) and 8(2)(c)(i) of the Rome Statute of the International Criminal Court, 17 July 1998
Articles 7(1)(f) and 8(2)(a)(ii)(I) and 8(2)(c)(i)(4) of the Elements of Crimes of the Rome Statute of the International Criminal Court, 17 July 1998
Geneva Conventions, 12 August 1949, and their Additional Protocols I and II, 8 June 1977
- Trial Watch offers easy access to numerous criminal proceedings that took place (or are taking place) in national or international courts for torture (search by category «torture»).
- «In truth the leitmotiv – the prohibition of torture and other forms of ill-treatment in international humanitarian law» by Cordula Droege, IRRC, Vol. 89, Nr. 867, September 2007, 515-541.
The practice of enforced disappearances emerged during World War II, reaching dramatic proportions under Latin American military dictatorships since the 1960s. Revealingly, the definition of the concept was developed in the Velasquez Rodriguez Judgment of the Inter-American Court of Human Rights in 1988, in which it was found that enforced disappearances infringed on the right to life, the right to humane treatment and the right to personal liberty.
The main components of the definition of the concept elaborated in Velasquez Rodriguez can be found in the International Convention for the Protection of All Persons from Enforced Disappearance (adopted by the United Nations General Assembly on 20 December 2006, but not yet entered into force due to insufficient number of ratifications).
According to Article 2 of the Convention, enforced disappearances are composed of three elements:
- An arrest, detention, abduction or any other deprivation of liberty;
- Committed by agents of the State or by persons or groups acting with the authorization, support or acquiescence of the State;
- Followed by a refusal to acknowledge the deprivation of liberty or by a concealment of the fate or whereabouts of the disappeared person, who is hence outside the protection of the law.
The Convention imposes on state parties the duty to investigate cases of enforced disappearance (Art. 3), to make this practice an offence under their national criminal law (Art. 4) and to abstain from extraditing persons to states where there are substantial grounds for believing that they would be in danger of being subjected to enforced disappearance (Art. 16). It also imposes on state parties the duty to prosecute or extradite any person allegedly responsible for enforced disappearance who is present on its territory, regardless of their nationality or the place where the crime was committed (Art.9(2)).
The Convention also provides that the widespread or systematic practice of enforced disappearance qualifies as a crime against humanity. Under the Rome Statute of the International Criminal Court, this offence indeed constitutes one of the acts listed in Article 7, which enumerates all the acts that can amount to crimes against humanity provided that they are committed as part of a widespread or systematic attack directed against any civilian population and with knowledge of the attack.
The definition of enforced disappearance given by Article (7)(2)(i) of the Rome Statute is almost identical to the one found in the 2006 Convention, with the exception that the crime must be committed by (or with the authorization, support or acquiescence of) a state or a political organization. In addition, it is necessary that the author of the crime had the intent to remove the victim from the protection of the law for a prolonged period of time.