Preparatory Commission for the International Criminal Court Working Group on Elements of Crimes New York 16-26 February

26 July-12 August 29 November-17 December 1999

Commentary submitted by Switzerland on Article 7 of the Statute of the International Criminal Court

Introductory notes: - The purpose of this commentary is to facilitate the debate of the Preparatory Commission on crimes against humanity. - This commentary contains a compilation of the relevant case law of the ad hoc-Tribunals for the former Yugoslavia and Rwanda, references to relevant treaty law and Charters of other international Tribunals, excerpts of the 1996 ILC Report on the Draft Code of Crimes Against the Peace and the Security of Mankind, citations of relevant literature as well as comments on selected issues. - Please note that bold parts in the judgements or other texts cited are added in order to emphasize the relevant criteria.

-----------------------------------------------------------------------Article 7 of the Statute of the International Criminal Court

Article 7 (1) (chapeau): For the purpose of this Statute, "crime against humanity" means any of the following acts whencommitted as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.

Preliminary remark: The Statute itself contains detailed provisions on the jurisdiction of the Court over crimes against humanity. Article 7 (1) establishes the threshold that the crimes against humanity have to be "committed as part of a widespread or systematic attack directed against any civilian population". Article 7 (2) (a) defines the notion of "attack" as a "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". As far as war crimes in Article 8 are concerned, the wording of the Statute is poorer with regard to the jurisdiction of the Court. Therefore it was necessary to introduce there as a first jurisdictional element that "[t]he conduct took place in the context of and was associated with an international armed conflict". For consistency reasons it is suggested to introduce also for the elements of each crime against humanity a first jurisdictional element, stressing the scale or the organization of the attack, as well as the policy within the specific crimes have to occur in order to amount to a crime against humanity. These elements stem directly from the Statute. As the Statute

is precise enough in this regard, any additional elements are either unnecessary or are not allowed if they altered the Statute. Therefore the inclusion of elements that, for example, the crimes need to take place during an armed conflict (see in this regard the chapeau of crimes against humanity under the jurisdiction of the ICTY) or that they have to be committed on discriminatory grounds (see in this regard the chapeau of crimes against humanity under the jurisdiction of the ICTR) would not be permissible (under the ICC Statute this is only the case for the crime of persecution).

The concept of "attack" Treaty law

- ICC Statute

Article 7 (2) (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. Case law - ICTR, Trial Chamber I, The Prosecutor v. Jean-Paul Akayesu, ICTR96-4-T, Judgement of 2 September 1998: "581. The concept of 'attack' may be defined as a unlawful act of the kind enumerated in Article 3(a) to (I) of the Statute, like murder, extermination, enslavement etc. An attack may also be non violent in nature, like imposing a system of apartheid, which is declared a crime against humanity in Article 1 of the Apartheid Convention of 1973, or exerting pressure on the population to act in a particular manner, may

come under the purview of an attack, if orchestrated on a massive scale or in a systematic manner." - ICTR, Trial Chamber II, The Prosecutor v. Clment Kayishema and Obed Ruzindana, ICTR-95-1-T, Judgement of 21 May 1999: "122. (...) The attack is the event in which the enumerated crimes must form part. Indeed, within a single attack, there may exist a combination of the enumerated crimes, for example murder, rape and deportation."

"As part of" an attack (Nexus between specific crimes and attack) Case law - ICTR, Trial Chamber II, The Prosecutor v. Clment Kayishema and Obed Ruzindana, ICTR-95-1-T, Judgement of 21 May 1999: "122. The enumerated crimes must be committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds (...)" - ICTY, Appeals Chamber, The Prosecutor v. Dusko Tadic, IT-94-1-A, Judgement of 15 July 1999: "271. The Trial Chamber correctly recognised that crimes which are unrelated to widespread or systematic attacks on a civilian population should not be prosecuted as crimes against humanity. Crimes against humanity are crimes of a special nature to which a greater degree of moral turpitude attaches than to an ordinary crime. Thus to convict an accused of crimes against humanity, it must be proved that the crimes were related to the attack on a civilian population (occurring during an armed conflict) and that the accused knew that his crimes were so related."

"Widespread or systematic" attack Case law - ICTR, Trial Chamber I, The Prosecutor v. Jean-Paul Akayesu, ICTR96-4-T, Judgement of 2 September 1998: "579. The Chamber considers that it is a prerequisite that the act must be committed as part of a widespread or systematic attack and not just a

random act of violence. The act can be part of a widespread or systematic attack and need not be a part of both. (...) 580. The concept of widespread' may be defined as massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims. The concept of systematic' may be defined as thoroughly organised and following a regular pattern on the basis of a common policy involving substantial public or private resources. There is no requirement that this policy must be adopted formally as the policy of a state. There must however be some kind of preconceived plan or policy. (...)" - ICTR, Trial Chamber II, The Prosecutor v. Clment Kayishema and Obed Ruzindana, ICTR-95-1-T, Judgement of 21 May 1999: 123. The attack must contain one of the alternative conditions of being widespread or systematic. (...) A widespread attack is one that is directed against a multiplicity of victims.27 A systematic attack means an attack carried out pursuant to a preconceived policy or plan. Either of these conditions will serve to exclude isolated or random inhumane acts (...)".28 ____________________________________________ 27 The ILC Draft Code of Crimes explained "large scale" (the term used in place of 'widespread') to mean acts that are "directed against a multiplicity of victims." Article 18, para. 4 of commentary. 28 The ILC Draft Code of Crimes defines systematic as "meaning pursuant to a preconceived plan or policy. The implementation of this plan or policy could result in the repeated or continuous commission of inhumane acts. The thrust of this requirement is to exclude random acts that were not committed as part of a broader plan or policy." Article 18, para. 3 of commentary." - ICTY, Trial Chamber II, The Prosecutor v. Dusko Tadic, IT-94-1-T, Judgement of 7 May 1997: "648. It is therefore the desire to exclude isolated or random acts from the notion of crimes against humanity that led to the inclusion of the requirement that the acts must be directed against a civilian "population", and either a finding of widespreadness, which refers to the number of victims, or systematicity, indicating that a pattern or

methodical plan is evident, fulfils this requirement. As explained by the commentary to the I.L.C. Draft Code: (3) The opening clause of this definition establishes the two general conditions which must be met for one of the prohibited acts to qualify as a crime against humanity covered by the present Code. The first condition requires that the act was "committed in a systematic manner or on a large scale". This first condition consists of two alternative requirements. . . Consequently, an act could constitute a crime against humanity if either of these conditions is met. The commentary to the I.L.C. Draft Code further explains these requirements and their origins. It states: The first alternative requires that the inhumane acts be committed in a systematic manner meaning pursuant to a preconceived plan or policy. The implementation of this plan or policy could result in the repeated or continuous commission of inhumane acts. The thrust of this requirement is to exclude a random act that was not committed as part of a broader plan or policy. The Nrnberg Charter did not include such a requirement. None the less the Nrnberg Tribunal emphasized that the inhumane acts were committed as part of the policy of terror and were "in many cases . . . organized and systematic" in considering whether such acts constituted crimes against humanity. (4) The second alternative requires that the inhumane acts be committed on a large scale meaning that the acts are directed against a multiplicity of victims. This requirement excludes an isolated inhumane act committed by a perpetrator acting on his own initiative and directed against a single victim. The Nrnberg Charter did not include this second requirement either. None the less the Nrnberg Tribunal further emphasized that the policy of terror was "certainly carried out on a vast scale" in its consideration of inhumane acts as possible crimes against humanity. . . . The term "large scale" in the present text . . . is sufficiently broad to cover various situations involving multiplicity of victims, for example, as a result of the cumulative effect of a series of inhumane acts or the singular effect of an inhumane act of extraordinary magnitude148.

649. A related issue is whether a single act by a perpetrator can constitute a crime against humanity. A tangential issue, not at issue before this Trial Chamber, is whether a single act in and of itself can constitute a crime against humanity. This issue has been the subject of intense debate, with the jurisprudence immediately following the Second World War being mixed. The American tribunals generally supported the proposition that a massive nature was required149, while the tribunals in the British Zone came to the opposite conclusion, finding that the mass element was not essential to the definition, in respect of either the number of acts or the number of victims and that "what counted was not the mass aspect, but the link between the act and the cruel and barbarous political system, specifically, the Nazi regime"150. Clearly, a single act by a perpetrator taken within the context of a widespread or systematic attack against a civilian population entails individual criminal responsibility and an individual perpetrator need not commit numerous offences to be held liable. Although it is correct that isolated, random acts should not be included in the definition of crimes against humanity, that is the purpose of requiring that the acts be directed against a civilian population and thus "[e]ven an isolated act can constitute a crime against humanity if it is the product of a political system based on terror or persecution"151. The decision of Trial Chamber I of the International Tribunal in the Vukovar Hospital Decision is a recent recognition of the fact that a single act by a perpetrator can constitute a crime against humanity. In that decision the Trial Chamber stated: 30. Crimes against humanity are to be distinguished from war crimes against individuals. In particular, they must be widespread or demonstrate a systematic character. However, as long as there is a link with the widespread or systematic attack against a civilian population, a single act could qualify as a crime against humanity. As such, an individual committing a crime against a single victim or a limited number of victims might be recognized as guilty of a crime against humanity if his acts were part of the specific context identified above152. ____________________________________________

148 I.L.C. Draft Code, 94-95, supra. 149 See the Trial of Josef Altsttter and Others ("Justice case"), Vol. VI, Law Reports of Trials of War Criminals (U.N. War Crimes Commission London, 1949) ("Law Reports") 79-80 and see the Trial of Fredrich Flick and Five Others ("Flick case"), Vol. IX, Law Reports, 51, in which isolated cases of atrocities and persecution were held to be excluded from the definition of crimes against humanity. 150 Report of I.L.C. Special Rapporteur D. Thiam, Ybk I.L.C. 1986, Vol. II, I.L.C. A/CN.4/466 ("Report of the Special Rapporteur"), para. 93, referring to the conclusion of Henri Meyrowitz. 151 Henri Meyrowitz quoted in Report of Special Rapporteur, para. 89, supra. 152 Vukovar Hospital Decision, para. 30, supra."

The policy element Case law - ICTR, Trial Chamber II, The Prosecutor v. Clment Kayishema and Obed Ruzindana, ICTR-95-1-T, Judgement of 21 May 1999: "124. For an act of mass victimisation to be a crime against humanity, it must include a policy element. Either of the requirements of widespread or systematic are enough to exclude acts not committed as part of a broader policy or plan. Additionally, the requirement that the attack must be committed against a "civilian population" inevitably demands some kind of plan and, the discriminatory element of the attack is, by its very nature, only possible as a consequence of a policy. 125. Who or what must instigate the policy? Arguably, customary international law requires a showing that crimes against humanity are committed pursuant to an action or policy of a State. However, it is clear that the ICTR Statute does not demand the involvement of a State. Guidance on this issue may be gained from the ILC who, in the Draft Code of Crimes, stated that crimes against humanity are inhumane acts "instigated or directed by a Government or by any organisation or group."29 The ILC explains that this requirement was intended to exclude the situation in which an individual commits an inhumane act

whilst acting on his own initiative pursuant to his own criminal plan in the absence of any encouragement or direction from either a Government or a group or an organisationSThe instigation or direction of a Government or any group, which may or may not be affiliated with a Government, gives the act its great dimension and makes it a crime against humanity imputable to private persons or agents of the State.30 126. The Trial Chamber concurs with the above view and finds that the Tribunal's jurisdiction covers both State and non-State actors. As Prefect, Kayishema was a State actor. As a businessman Ruzindana was a non-State actor. To have jurisdiction over either of the accused, the Chamber must be satisfied that their actions were instigated or directed by a Government or by any organisation or group. ____________________________________________ 29 ILC Draft Code of Crimes Article 18. 30 ILC Draft Code of Crimes Art. 18 para. 5 of commentary." - ICTY, Trial Chamber II, The Prosecutor v. Dusko Tadic, IT-94-1-T, Judgement of 7 May 1997: "655. (...) The I.L.C. Draft Code is more explicit in this regard. It contains the requirement that in order to constitute a crime againsthumanity the enumerated acts must be "instigated or directed by a Government or by any organization or group". The commentary clarifies that by stating: This alternative is intended to exclude the situation in which an individual commits an inhumane act while acting on his own initiative pursuant to his own criminal plan in the absence of any encouragement or direction from either a Government or a group or organization. This type of isolated criminal conduct on the part of a single individual would not constitute a crime against humanity. . . . The instigation or direction of a Government or any organization or group, which may or may not be affiliated with a Government, gives the act its great dimension and makes it a crime against humanity imputable to private persons or agents of a State165. Thus, according to the International Law Commission, the acts do not even have to be directed or instigated by a group in permanent control of territory. It is important to keep in mind that the 1996 version of the

I.L.C. Draft Code contains the final text of the article on crimes against humanity adopted by the International Law Commission166, which was established pursuant to General Assembly resolution 174 (II) and whose members are elected by the General Assembly. Importantly, the commentary to the draft articles of the Draft Code prepared by the International Law Commission in 1991, which were transmitted to Governments for their comments and observations, acknowledges that non-State actors are also possible perpetrators of crimes against humanity. It states that [i]t is important to point out that the draft article does not confine possible perpetrators of the crimes [crimes against humanity] to public officials or representatives alone . . . the article does not rule out the possibility that private individuals with de facto power or organized in criminal gangs or groups might also commit the kind of systematic or mass violations of human rights covered by the article; in that case, their acts would come under the draft Code167". ____________________________________________ 165 I.L.C. Draft Code, 94, supra 166 Id., 13 167 I.L.C. 1991 Report, 266"

Attack against the "civilian population" - Concept of "civilian" Case law - ICTR, Trial Chamber I, The Prosecutor v. Jean-Paul Akayesu, ICTR96-4-T, Judgement of 2 September 1998: "582. The Chamber considers that an act must be directed against the civilian population if it is to constitute a crime against humanity. Members of the civilian population are people who are not taking any active part in the hostilities, including members of the armed forces who laid down their arms and those persons placed hors de combat by sickness, wounds, detention or any other cause. 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.147

____________________________________________ 146 Note that this definition assimilates the definition of "civilian" to the categories of person protected by Common Article 3 of the Geneva Conventions; an assimilation which would not appear to be problematic. Note also that the ICTY Vukovar Rule 61 Decision, of 3 April 1996, recognised that crimes against humanity could be committed where the victims were captured members of a resistance movement who at one time had borne arms, who would thus qualify as persons placed hors de combat by detention. 147 Protocol Additional to the Geneva Convention of 12 August 1949, and relating to the Protection of Victims of International Armed Conflict; Article 50." - ICTR, Trial Chamber II, The Prosecutor v. Clment Kayishema and Obed Ruzindana, ICTR-95-1-T, Judgement of 21 May 1999: "127. Traditionally, legal definitions of 'civilian' or 'civilian population' have been discussed within the context of armed conflict. However, under the Statute, crimes against humanity may be committed inside or outside the context of an armed conflict. Therefore, the term civilian must be understood within the context of war as well as relative peace. The Trial Chamber considers that a wide definition of civilian is applicable and, in the context of the situation of Kibuye Prefecture where there was no armed conflict, includes all persons except those who have the duty to maintain public order and have the legitimate means to exercise force. Non-civilians would include, for example, members of the FAR, the RPF, the police and the Gendarmerie Nationale. 128. With regard to the targeting of any civilian population, the Trial Chamber concurs with the finding in the Tadic decision that the targeted population must be predominantly civilian in nature but the presence of certain non-civilians in their midst does not change the character of that population.31 ____________________________________________ 31 Tadic Judgement, at para 638." - ICTY, Trial Chamber II, The Prosecutor v. Dusko Tadic, IT-94-1-T, Judgement of 7 May 1997:

"635. The requirement in Article 5 that the enumerated acts be "directed against any civilian population" contains several elements. The inclusion of the word "any" makes it clear that crimes against humanity can be committed against civilians of the same nationality as the perpetrator or those who are stateless, as well as those of a different nationality." "638. (...) [I]t is clear that the targeted population must be of a predominantly civilian nature. The presence of certain non-civilians in their midst does not change the character of the population.(...) 639. The second aspect, determining which individual of the targeted population qualify as civilians for purposes of crimes against humanity, is not, however, quite as clear. Common Article 3, the language of which reflects "elementary considerations of humanity" which are "applicable under customary international law to any armed conflict"121, provides that in an armed conflict "not of an international character" Contracting States are obliged "as a minimum" to comply with the following: "Persons taking no active part in the 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, shall in all circumstances be treated humanely . . . ." Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims in International Armed Conflicts (Protocol I) (...) defines civilians by the exclusion of prisoners of war and armed forces, considering a person a civilian in case of doubt. However, this definition of civilians contained in Common Article 3 is not immediately applicable to crimes against humanity because it is a part of the laws or customs of war and can only be applied by analogy. The same applies to the definition contained in Protocol I and the Commentary, Geneva Convention IV, on the treatment of civilians, both of which advocate a broad interpretation of the term "civilian". They, and particularly Common Article 3, do, however, provide guidance in answering the most difficult question: specifically, whether acts taken against an individual who cannot be considered a traditional "non-combatant" because he is actively involved in the conduct of hostilities by membership in some form of resistance group

can nevertheless constitute crimes against humanity if they are committed in furtherance or as part of an attack directed against a civilian population. ____________________________________________ 121 Appeals Chamber Decision, para. 102; see also Nicaragua case, para. 218, supra." Attack against the "civilian population" - Concept of "population" Case law - ICTY, Trial Chamber II, The Prosecutor v. Dusko Tadic, IT-94-1-T, Judgement of 7 May 1997: "644. The requirement in Article 5 of the Statute that the prohibited acts must be directed against a civilian "population" does not mean that the entire population of a given State or territory must be victimised by these acts in order for the acts to constitute a crime against humanity. Instead the "population" element is intended to imply crimes of a collective nature and thus exclude single or isolated acts which, although possibly constituting war crimes or crimes against national penal legislation, do not rise to the level of crimes against humanity138. As explained by this Trial Chamber in its Decision on the Form of the Indictment, the inclusion in Article 5 of the requirement that the acts "be 'directed against any civilian population' ensures that what is to be alleged will not be one particular act but, instead, a course of conduct."(...) The purpose of this requirement was clearly articulated by the United Nations War Crimes Commission when it wrote that: Isolated offences did not fall within the notion of crimes against humanity. As a rule systematic mass action, particularly if it was authoritative, was necessary to transform a common crime, punishable only under municipal law, into a crime against humanity, which thus became also the concern of international law. Only crimes which either by their magnitude and savagery or by their large number or by the fact that a similar pattern was applied at different times and places, endangered the international community or shocked the conscience of mankind, warranted intervention by States other than that on whose territory the crimes had been committed, or whose subjects had become their victims140.

Thus the emphasis is not on the individual victim but rather on the collective, the individual being victimised not because of his individual attributes but rather because of his membership of a targeted civilian population. This has been interpreted to mean, as elaborated below, that the acts must occur on a widespread or systematic basis, that there must be some form of a governmental, organizational or group policy to commit these acts and that the perpetrator must know of the context within which his actions are taken, as well as the requirement imported by the Secretary-General and members of the Security Council that the actions be taken on discriminatory grounds. ____________________________________________ 138 See Schwelb, 191; supra; see also Memorandum of the SecretaryGeneral on The Charter and Judgement of the Nrnberg Tribunal; History and Analysis, 67 (U.N. Publication, Sales No. 1949, V. 7). 140 War Crimes Commission, 179, supra."

Mental Element - Knowledge Case law - ICTR, Trial Chamber II, The Prosecutor v. Clment Kayishema and Obed Ruzindana, ICTR-95-1-T, Judgement of 21 May 1999: "133. The perpetrator must knowingly commit crimes against humanity in the sense that he must understand the overall context of his act. The Defence for Ruzindana submitted that to be guilty of crimes against humanity the perpetrator must know that there is an attack on a civilian population and that his act is part of the attack. 34 This issue has been addressed by the ICTY where it was stated that the accused must have acted with knowledge of the broader context of the attack;35 a view which conforms to the wording of the Statute of the International Criminal Court (ICC) Article 7. 134. The Trial Chamber agrees with the Defence. Part of what transforms an individual's act(s) into a crime against humanity is the inclusion of the act within a greater dimension of criminal conduct; therefore an accused should be aware of this greater dimension in order to be culpable thereof. Accordingly, actual or constructive knowledge of

the broader context of the attack, meaning that the accused must know that his act(s) is part of a widespread or systematic attack on a civilian population and pursuant to some kind of policy or plan, is necessary to satisfy the requisite mens rea element of the accused. ____________________________________________ 34 Closing Arguments at p. 26. 35 Tadic Judgement, at para. 656, "therefore in addition to the intent to commit the underlying offence the perpetrator must know ofthe broader context in which his acts occur." - ICTY, Trial Chamber II, The Prosecutor v. Dusko Tadic, IT-94-1-T, Judgement of 7 May 1997: "656. As discussed above in relation to the nexus, the act must not be unrelated to the armed conflict. This contains two aspects. First, it is the occurrence of the act within the context of a widespread or systematic attack on a civilian population that makes the act a crime against humanity as opposed to simply a war crime or crime against national penal legislation, thus adding an additional element, and therefore in addition to the intent to commit the underlying offence the perpetrator must know of the broader context in which his act occurs. Secondly, the act must not be taken for purely personal reasons unrelated to the armed conflict. 657. Regarding the first aspect, the knowledge by the accused of the wider context in which his act occurs, the approach taken by the majority in R. v. Finta169 in Canada is instructive. In that case the majority decided that "[t]he mental element required to be proven to constitute a crime against humanity is that the accused was aware of or wilfully blind to facts or circumstances which would bring his or her acts within crimes against humanity. However, it would not be necessary to establish that the accused knew that his actions were inhumane."170 While knowledge is thus required, it is examined on an objective level and factually can be implied from the circumstances. Several cases arising under German penal law following the Second World War are relevant in this regard. In a case decided by the Spruchgericht at Stade, Germany, the accused, who had been stationed near the concentration camp at Buchenwald, was assumed to have known that numerous

persons were deprived of their liberty there on political grounds171. In addition, it is not necessary that the perpetrator has knowledge of exactly what will happen to the victims and several German cases stressed the fact that denunciations, without more, constitute crimes against humanity172. One case in particular is relevant. In that case two accused in 1944 informed the police that the director of the company for which they both worked had criticised Hitler. After the denouncement the director was arrested, temporarily released and then arrested again and brought to a concentration camp. Both of the accused were acquitted due to a lack of "mens rea" as they had not had either a concrete idea of the consequences of their action or an "abominable attitude". However, the Obersten Gerichthofes ("OGH") remanded the case to the trial court, finding that a crime against humanity does not require either a concrete idea of the consequences or an "abominable attitude"173 ____________________________________________ 169 R. v. Finta, [1994] 1 R.C.S., 701. 170 Id. 171 Case No 38, Annual Digest and Reports of Public International Law Cases for the Year 1947, 100-101 (Butterworth & Co., London 1951). 172 See, e.g., Vol. I Entscheidungen des Obersten Gerichtshofes Fr Die Britische Zone in Strafsachen, case 2, 6-10; case 4, 19-25; case 23, 9195; case 25, 105-110; case 31, 122-126; case 34, 141-143. 173 Id. at case 16, 60-62." - ICTY, Appeals Chamber, The Prosecutor v. Dusko Tadic, IT-94-1-A, Judgement of 15 July 1999: "271. (...) Thus to convict an accused of crimes against humanity, it must be proved that the crimes were related to the attack on a civilian population (occurring during an armed conflict) and that the accused knew that his crimes were so related.

Mental element - Discriminatory intent (not necessary for every crime against humanity) Case law

- ICTY, Appeals Chamber, The Prosecutor v. Dusko Tadic, IT-94-1-A, Judgement of 15 July 1999: "291. It is interesting to note that the necessity for discriminatory intent was considered but eventually rejected by the International Law Commission in its Draft Code of Offences Against the Peace and Security of Mankind.352 Similarly, while the inclusion of a discriminatory intent was mooted in the Preparatory Committee on the Establishment of an International Criminal Court (PrepCom),353 Article 7 of the Rome Statute embodied the drafters' rejection of discriminatory intent.354 292. This warrants the conclusion that customary international law, as it results from the gradual development of international instruments and national case-law into general rules, does not presuppose a discriminatory or persecutory intent for all crimes against humanity. ____________________________________________ 352 See for instance ILC 1996 Draft Code of Offences Against the Peace and Security of Mankind, Report of the International Law Commission on the work of its 48th session May 6-July 26, 1996, UNGAOR 51st sess., supp. no. 10 (A/51/10), pp. 93-94. 353 While some delegates argued that a conviction for crimes against humanity required proof that the defendant was motivated by a discriminatory animus, others argued that "the inclusion of such a criterion would complicate the task of the Prosecution by significantly increasing its burden of proof in requiring evidence of this subjective element." These delegates further argued that crimes against humanity could be committed against other groups, including intellectuals, social, cultural or political groups, and that such an element was not required under customary international law as evidenced by the Yugoslav Tribunal's Statute. (See Summary of the Proceedings of the Preparatory Committee During the Period March 25-April 12, 1996, U.N. Doc. A/AC.249/1 (May 7, 1996), pp. 16-17). 354 Article 7(1) of the Rome Statute provides: "For the purposes 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 [ ... ] ." Article 7(1) of the Statute of the International Criminal Court thus articulates a definition of crimes against humanity based solely upon the interplay between the mens rea of the defendant and the existence of a widespread or systematic attack directed against a civilian population." "305. The Prosecution was correct in submitting that the Trial Chamber erred in finding that all crimes against humanity require a discriminatory intent. Such an intent is an indispensable legal ingredient of the offence only with regard to those crimes for which this is expressly required, that is, for Article 5 (h), concerning various types of persecution.

Mental element - Motive (irrelevance of personal motives) Case law - ICTY, Appeals Chamber, The Prosecutor v. Dusko Tadic, IT-94-1-A, Judgement of 15 July 1999: "270. The conclusion is therefore warranted that the relevant case-law and the spirit of international rules concerning crimes against humanity make it clear that under customary law, "purely personal motives" do not acquire any relevance for establishing whether or not a crime against humanity has been perpetrated." "272. (...) Consequently, in the opinion of the Appeals Chamber, the requirement that an act must not have been carried out for the purely personal motives of the perpetrator does not form part of the prerequisites necessary for conduct to fall within the definition of a crime against humanity under Article 5 of the Tribunal's Statute." Article 7 (1) (a): Murder

Murder as a crime against humanity under charters, laws and statutes of international tribunals

- Article 6 (c) Charter of the International Military Tribunal of Nuremberg - Article 2 (1) (c) Control Council Law No. 10 - Article 5 (a) ICTY Statute - Article 3 (a) ICTR Statute Case law - ICTR, Trial Chamber I, The Prosecutor v. Jean-Paul Akayesu, ICTR96-4-T, Judgement of 2 September 1998: "587. The Chamber considers that murder is a crime against humanity, pursuant to Article 3 (a) of the Statute. The International Law Commission discussed the inhumane act of murder in the context of the definition of crimes against humanity and concluded that the crime of murder is clearly understood and defined in the national law of every state and therefore there is no need to further explain this prohibited act. 588. The Chamber notes that article 3(a) of the English version of the Statute refers to "Murder", whilst the French version of the Statute refers to "Assassinat". Customary International Law dictates that it is the act of "Murder" that constitutes a crime against humanity and not "Assassinat". There are therefore sufficient reasons to assume that the French version of the Statute suffers from an error in translation. 589. The Chamber defines murder as the unlawful, intentional killing of a human being. The requisite elements of murder are: 1. the victim is dead; 2. the death resulted from an unlawful act or omission of the accused or a subordinate; 3. at the time of the killing the accused or a subordinate had the intention to kill or inflict grievous bodily harm on the deceased having known that such bodily harm is likely to cause the victim's death, and is reckless whether death ensures or not." - ICTR, Trial Chamber II, The Prosecutor v. Clment Kayishema and Obed Ruzindana, ICTR-95-1-T, Judgement of 21 May 1999: "138. (...) Although it may be argued that, under customary international law, it is murder rather than assassinat that constitutes the crime against humanity (a position asserted by the Chamber in the Akayesu

Judgement), this court is bound by the wording of the ICTR Statute in particular. It is the ICTR Statute that reflects the intention of the international community for the purposes of trying those charged with violations of international law in Rwanda. Furthermore, the ICTR and ICTY Statutes did not reflect customary international law at the time of drafting. This is evident by the inclusion of the need for an armed conflict in the ICTY Statute and the inclusion of the requirement that the crimes be committed with discriminatory intent in the ICTR Statute. Accordingly, it may be presumed that the drafters intended to use assassinat alongside murder. Indeed, by using assassinat in French, the drafters may have intended that only the higher standards of mens rea for murder will suffice. 139. If in doubt, a matter of interpretation should be decided in favour of the accused; in this case, the inclusion of premeditation is favourable to the accused. The Chamber finds, therefore, that murder and assassinat should be considered together in order to ascertain the standard of mens rea intended by the drafters and demanded by the ICTR Statute. When murder is considered along with assassinat the Chamber finds that the standard of mens rea required is intentional and premeditated killing. The result is premeditated when the actor formulated his intent to kill after a cool moment of reflection. The result is intended when it is the actor's purpose, or the actor is aware that it will occur in the ordinary course of events. 140. The accused is guilty of murder if the accused, engaging in conduct which is unlawful: 1. causes the death of another; 2. by a premeditated act or omission; 3. intending to kill any person or, 4. intending to cause grievous bodily harm to any person." Comment: Content of the mens rea There is a difference between the English versions of ICTY and ICTR Statutes which both use the term "murder," whilst the French versions of the Statutes use the term "assassinat". The interpretation by Trial

Chamber II of the ICTR on Article 3(a) of the Statute contradicts the judgement of the Trial Chamber I in the Akayesu case. This differentiation with regard to the ICTR Statute is not of primary relevance for the ICC Statute, as both the English and the French versions of the Statute use in Article 7 (1) (a) the term "murder" or "meurtre". However, it could be inferred from the conclusions of the ICTR that, as the ICC Statute mentions only the term "murder", this crime could be committed without premeditation. However, article 7 of the ICC Statute has also to be read in the context of article 30 of the ICC Statute, which states that "[u]nless otherwise 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 intent and knowledge." With regard to this question, the forthcoming Trifterer Commentary on the ICC Statute states: "However, article 7 must be interpreted in the light of the somewhat confusing and circular definitions of intent and knowledge in article 30. Article 30 para. 1 states that "[u]nless otherwise provided", the material elements of the crime must be "committed with intent and knowledge". In relation to conduct, the accused has intent under article 30 para. 2 (a) where "that person means to engage in the conduct". Therefore, a person would have the necessary intent to commit murder where the person meant to kill the victim or inflict serious bodily harm on the victim. In relation to a consequence, the accused has intent under article 30 para. 2 (b) where "that person means to cause that consequence or is aware that it will occur in the ordinary course of events". A person has knowledge under article 30 para. 3 where there is "awareness that a circumstance exists or a consequence will occur in the ordinary course of events". Therefore, a person would have intent if the person meant to kill or inflict grievous bodily harm or was aware that the actions would lead to death in the ordinary course of events. It is less clear, but still possible, that if the accused was aware that the actions would be likely to lead to death in the ordinary course of events that the accused would be responsible for murder. Since knowledge includes awareness that a circumstance exists, that circumstance could be the likelihood that death

would ensue as a result of the actions rather than the certainty that death would occur. There would be then no need to show that the person was reckless whether the death occurred or not, only that the person intentionally inflicted grievous bodily harm knowing that in such circumstances death would be likely to occur." Intent to cause grievous bodily harm The ICTR states that the accused must not have in every case the intent to kill a person. It suffices that he intended to cause grievous bodily harm, having known that such bodily harm is likely to cause the victim's death, and is reckless whether death ensures or not. This concept is, for example, described in Cherif Bassiouni's book, Crimes Against Humanity in International Criminal law, 2nd edition, p. 301: "The customary practice of states (...) reveals that murder is not intended to mean only those specific intentional killings without lawful justification. Instead, state practice views murder in its largo senso meaning as including the creation of life-endangering conditions likely to result in death according to reasonable human experience".

Article 7 (1) (b): Extermination

Extermination as a crime against humanity under charters, laws and statutes of international tribunals - Article 6 (c) Charter of the International Military Tribunal of Nuremberg - Article 2 (1) (c) Control Council Law No. 10 - Article 5 (b) ICTY Statute - Article 3 (b) ICTR Statute Treaty law - ICC Statute

Article 7 (2) (b): "Extermination" includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population. Case law - ICTR, Trial Chamber I, The Prosecutor v. Jean-Paul Akayesu, ICTR96-4-T, Judgement of 2 September 1998: "591. The Chamber considers that extermination is a crime against humanity, pursuant to Article 3 (c) of the Statute. Extermination is a crime which by its very nature is directed against a group of individuals. Extermination differs from murder in that it requires an element of mass destruction which is not required for murder." - ICTR, Trial Chamber II, The Prosecutor v. Clment Kayishema and Obed Ruzindana, ICTR-95-1-T, Judgement of 21 May 1999 "142. The crime of extermination was not specifically defined in the Statute or the Nuremberg Charter. Indeed, there is very little jurisprudence relating to the essential elements of extermination. In the Akayesu Judgement, Chamber I considered that extermination is a crime that by its very nature is directed against a group of individuals and differs from murder in that it requires an element of mass destruction that is not required for murder. The Prosecution asserted that there is no need for a defined number of people to die for the killing to rise to an act of extermination; it is determined on a case-by-case basis even though there is the need for a numerical requirement. Notably, Akayesu was found guilty of extermination for ordering the killing of sixteen people. The Chamber agrees that the difference between murder and extermination is the scale; extermination can be said to be murder on a massive scale. The Defence did not address the numerical question but argues that "the essence of extermination lies in the fact that it is an indiscriminate elimination." "144. Having considered the above, the Chamber defines the requisite elements of extermination: The actor participates in the mass killing of others or in the creation of conditions of life that lead to the mass killing of others, through

his act(s) or omission(s); having intended the killing, or being reckless, or grossly negligent as to whether the killing would result and; being aware that his act(s) or omission(s) forms part of a mass killing event; where, his act(s) or omission(s) forms part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds. 145. The term "mass", which may be understood to mean 'large scale,' does not command a numerical imperative but may be determined on a case-by-case basis using a common sense approach. The actor need not act with a specific individual(s) in mind. 146. The act(s) or omission(s) may be done with intention, recklessness, or gross negligence. The 'creation of conditions of life that lead to mass killing' is the institution of circumstances that ultimately causes the mass death of others. For example: Imprisoning a large number of people and withholding the necessities of life which results in mass death; introducing a deadly virus into a population and preventing medical care which results in mass death. Extermination includes not only the implementation of mass killing or the creation of conditions of life that leads to mass killing, but also the planning thereof. In this event, the Prosecutor must prove a nexus between the planning and the actual killing. 147. An actor may be guilty of extermination if he kills, or creates the conditions of life that kills, a single person providing the actor is aware that his act(s) or omission(s) forms part of a mass killing event. For a single killing to form part of extermination, the killing must actually form part of a mass killing event. An 'event' exists when the (mass) killings have close proximity in time and place." - ICTY: No judgements. However, the indictments of 25 November 1995 against Radovan Karadzic and Ratko Mladic and of 2 November 1998 against Radislav Krstic include extermination. Article 7 (1) (c): Enslavement

Enslavement as a crime against humanity under charters, laws and statutes of international tribunals - Article 6 (c) Charter of the International Military Tribunal of Nuremberg - Article 2 (1) (c) Control Council Law No. 10 - Article 5 (c) ICTY Statute - Article 3 (c) ICTR Statute Treaty law - ICC Statute Article 7 (2) (c): "Enslavement" means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children. - Convention to Suppress the Slave Trade and Slavery (25 September 1926) and Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (7 September 1956): Article 1: Slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised. - Convention concerning Forced or Compulsory Labour (28 June 1930): Article 2: 1. For the purposes of this Convention the term "forced or compulsory labour" shall mean all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily. 2. Nevertheless, for the purposes of this Convention, the term "forced or compulsory labour" shall not include-- (a) any work or service exacted in virtue of compulsory military service laws for work of a purely military character; (b) any work or service which forms part of the normal civic obligations of the citizens of a fully self-governing country; (c) any work or service exacted from any person as a consequence of a conviction in a court of law, provided that the said work or service is carried out under the supervision and control of a public authority and that the said person is not hired to or placed at the disposal of private

individuals, companies or associations; (d) any work or service exacted in cases of emergency, that is to say, in the event of war or of a calamity or threatened calamity, such as fire, flood, famine, earthquake, violent epidemic or epizootic diseases, invasion by animal, insect or vegetable pests, and in general any circumstance that would endanger the existence or the well-being of the whole or part of the population; (e) minor communal services of a kind which, being performed by the members of the community in the direct interest of the said community, can therefore be considered as normal civic obligations incumbent upon the members of the community, provided that the members of the community or their direct representatives shall have the right to be consulted in regard to the need for such services. - Convention concerning the Abolition of Forced Labour (25 June 1957) Case law - ICTR: No Judgements - ICTY: No Judgements. However, the indictments of 26 June 1996 against Radomir Kovac, Radovan Stankovic and Dragoljub Kunarac ("Foca-case" - IT-96-23) include enslavement: "10.6 In addition to the rapes and other sexual assaults, all the female detainees were forced to work for the Serb soldiers, washing uniforms, cooking and cleaning the house. FWS-87 was taken three times from Karaman's house to other buildings inMiljevina. On these occasions, she was forced to clean rooms in the buildings, cook for the soldiers and paint the window-frames. On one of the three occasions, when she was taken out with another woman, two Montenegrin soldiers sexually assaulted both women. 10.7 At Karaman's house, the detainees constantly feared for their lives. If any woman refused to obey orders, she would be beaten. Soldiers often told the women that they would be killed after the soldiers were finished with them because they knew too much. FWS-87 felt suicidal during the entire time of her detention in Karaman's house. 10.8 By the foregoing acts and omissions, RADOVAN STANKOVIC committed: Count 56: A CRIME AGAINST HUMANITY punishable under Article 5 (c) (enslavement) of the Statute of the Tribunal"

Article 7 (1) (d): Deportation or forcible transfer of population

Deportation as a crime against humanity under charters, laws and statutes of international tribunals - Article 6 (c) Charter of the International Military Tribunal of Nuremberg - Article 2 (1) (c) Control Council Law No. 10 - Article 5 (d) ICTY Statute - Article 3 (d) ICTR Statute Treaty law - ICC Statute Article 7 (2) (d): "Deportation or forcible transfer of population" means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law. Case law - ICTR: No Judgements - ICTY: No Judgements. However, the indictments of 21 July 1995 (amended on 25 August and 12 December 1998 against Blagoje Simic, Miroslav Tadic, Stevan Todorovic and Simo Zaric (IT-95-9) include deportation and forcible transfer. The indicments of 24 May 1999 against Slobodan Milosevic, Milan Milutinovic, Dragoljub Ojdanic, Vlajko Stojiljkovic and Nikola Sainovic (IT-99-37) include deportation and forcible expulsion: "35. The unlawful deportation and forcible transfer of thousands of Kosovo Albanians from their homes in Kosovo involved well-planned and co-ordinated efforts by the leaders of the FRY and Serbia, and forces of the FRY and Serbia, all acting in concert. Actions similar in nature took place during the wars in Croatia and Bosnia and

Herzegovina between 1991 and 1995. During those wars, Serbian military, paramilitary and police forces forcibly expelled and deported non-Serbs in Croatia and Bosnia and Herzegovina from areas under Serbian control utilising the same method of operations as have been used in Kosovo in 1999: heavy shelling and armed attacks on villages; widespread killings; destruction of non-Serbian residential areas and cultural and religious sites; and forced transfer and deportation of nonSerbian populations."

Article 7 (1) (e): Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law

Imprisonment as a crime against humanity under charters, laws and statutes of international tribunals - Article 2 (1) (c) Control Council Law No. 10 - Article 5 (e) ICTY Statute - Article 3 (e) ICTR Statute Case law - ICTR: No Judgements - ICTY: No Judgements. However, the amended indictments of 30 September 1998 against Dario Kordic and Mario Cerkez include imprisonment. In The Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Landzo, ICTY IT-96-21-T, Judgement of 16 November 1998, Trial Chamber II of the ICTY addressed the issue of unlawful confinement of civilians in the context of armed conflict. Article 7 (1) (f): Torture

Torture as a crime against humanity under charters, laws and statutes of international tribunals - Article 2 (1) (c) Control Council Law No. 10 - Article 5 (f) ICTY Statute - Article 3 (f) ICTR Statute Treaty law - ICC Statute Article 7 (2) (e): "Torture" means 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 sanctions. - Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (10 December 1984) Article 1: For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as 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, or 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 or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. Case law - ICTR, Trial Chamber I, The Prosecutor v. Jean-Paul Akayesu, ICTR96-4-T, Judgement of 2 September 1998: Trial Chamber I defines the crime of torture according to Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: "594. The Chamber defines the essential elements of torture as:

(i) The perpetrator must intentionally inflict severe physical or mental pain or suffering upon the victim for one or more of the following purposes: (a) to obtain information or a confession from the victim or a third person; (b) to punish the victim or a third person for an act committed or suspected of having been committed by either of them; (c) for the purpose of intimidating or coercing the victim or the third person; (d) for any reason based on discrimination of any kind. (ii) The perpetrator was himself an official, or acted at the instigation of, or with the consent or acquiescence of, an official or person acting in an official capacity." - ICTY, Trial Chamber II, The Prosecutor v. Zejnil Delalic, Zdravko Mucic, Hazim Delic and Esad Landzo, ICTY IT-96-21-T, Judgement of 16 November 1998: "452. There can be no doubt that torture is prohibited by both conventional and customary international law. In addition to the proscriptions of international humanitarian law, which are pleaded in the Indictment, there are also a number of international human rights instruments that express the prohibition." "454. Based on the foregoing, it can be said that the prohibition on torture is a norm of customary law. It further constitutes a norm of jus cogens,(...) as has been confirmed by the United Nations Special Rapporteur for Torture.470 It should additionally benoted that the prohibition contained in the aforementioned international instruments is absolute and non-derogable in any circumstances.471" "470. Another critical element of the offence of torture is the presence of a prohibited purpose. As previously stated, the list of such prohibited purposes in the Torture Convention expands upon those enumerated in the Declaration on Torture by adding "discrimination of any kind". The use of the words "for such purposes" in the customary definition of torture, indicate that the various listed purposes do not constitute an exhaustive list, and should be regarded as merely representative. Further, there is no requirement that the conduct must be solely

perpetrated for a prohibited purpose. Thus, in order for this requirement to be met, the prohibited purpose must simply be part of the motivation behind the conduct and need not be the predominating or sole purpose." ____________________________________________ 470 See Report of the Special Rapporteur, para. 3. 471 See e.g. Art. 2(2) Torture Convention; Art. 15(2) European Convention; Art. 4(2) ICCPR; Art. 27(2) American Convention on Human Rights; Art. 5 Inter-American Convention." - ICTY, Trial Chamber II, The Prosecutor v. Anto Furundzija, ICTY IT95-17/1-T, Judgement of 10 December 1998: "160. (...) However, attention should be drawn to the fact that article 1 of the Convention explicitly provides that the definition contained therein is "for the purposes of this Convention". It thus seems to limit the purport and contents of that definition to the Convention solely. An extra-conventional effect may however be produced to the extent that the definition at issue codifies, or contributes to developing or crystallising customary international law. Trial Chamber II of the International Tribunal has rightly noted in Delalic that indeed the definition of torture contained in the 1984 Torture Convention is broader than, and includes, that laid down in the 1975 Declaration of the United Nations General Assembly and in the 1985 Inter-American Convention, and has hence concluded that that definition "thus reflects a consensus which the Trial Chamber considers to be representative of customary international law".176 This Trial Chamber shares such conclusion, although on legal grounds that it shall briefly set out. First of all, there is no gainsaying that the definition laid down in the Torture Convention, although deliberately limited to the Convention, must be regarded as authoritative, inter alia, because it spells out all the necessary elements implicit in international rules on the matter. Secondly, this definition to a very large extent coincides with that contained in the United Nations Declaration on Torture of 9 December 1975, hereafter "Torture Declaration".177 It should be noted that this Declaration was adopted by the General Assembly by consensus. This fact shows that no member State of the United Nations had any objection to such definition. In other words, all the members of the

United Nations concurred in and supported that definition. Thirdly, a substantially similar definition can be found in the Inter-American Convention.178 Fourthly, the same definition has been applied by the United Nations Special Rapporteur and is in line with the definition suggested or acted upon by such international bodies as the European Court of Human Rights 179 and the Human Rights Committee.180 161. The broad convergence of the aforementioned international instruments and international jurisprudence demonstrates that thereis now general acceptance of the main elements contained in the definition set out in article 1 of the Torture Convention. 162. The Trial Chamber considers however that while the definition referred to above applies to any instance of torture, whether in time of peace or of armed conflict, it is appropriate to identify or spell out some specific elements that pertain to torture as considered from the specific viewpoint of international criminal law relating to armed conflicts. The Trial Chamber considers that the elements of torture in an armed conflict require that torture: (i) consists of the infliction, by act or omission, of severe pain or suffering, whether physical or mental; in addition (ii) this act or omission must be intentional; (iii) it must aim at obtaining information or a confession, or at punishing, intimidating, humiliating or coercing the victim or a third person, or at discriminating, on any ground, against the victim or a third person; (iv) it must be linked to an armed conflict; (v) at least one of the persons involved in the torture process must be a public official or must at any rate act in a non-private capacity, e.g. as a de facto organ of a State or any other authority-wielding entity. As is apparent from this enumeration of criteria, the Trial Chamber considers that among the possible purposes of torture one must also include that of humiliating the victim. This proposition is warranted by the general spirit of international humanitarian law: the primary purpose of this body of law is to safeguard human dignity. The proposition is also supported by some general provisions of such important international treaties as the Geneva Conventions and

Additional Protocols, which consistently aim at protecting persons not taking part, or no longer taking part, in the hostilities from "outrages upon personal dignity".181 The notion of humiliation is, in any event close to the notion of intimidation, which is explicitly referred to in the Torture Convention's definition of torture. ____________________________________________ 176 Case No. IT-96-21-T, para. 459. 177 Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the United Nations General Assembly resolution 3452 (XXX) of 9 Dec. 1975. Art. 1(2) describes torture as "an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment." 178 Arts. 2 and 3. 179 The European Court of Human Rights found that torture is deliberate inhuman treatment causing very serious and cruel suffering(Ireland v. United Kingdom, Eur. Ct. H.R., Series A, No. 25, para. 167) (...). 180 The Human Rights Committee, in its General Comment on Art. 7 of the ICCPR, indicated that the distinction between prohibited forms of mistreatment depends on the kind, purpose and severity of the particular treatment. (Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI\GEN\1\Rev. 1 at 30 (1994)). 181 See e.g. Art. 3 (1)(c ) common to the Geneva Conventions, Art. 75 (2)(b) of Additional Protocol I and Art. 4 (2)(e) of Additional Protocol II."

Article 7 (1) (g): Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity

Article 7 (1) (g)-1: Rape

Rape as a crime against humanity under charters, laws and statutes of international tribunals - Article 2 (1) (c) Control Council Law No. 10 - Article 5 (g) ICTY Statute - Article 3 (g) ICTR Statute Case Law - ICTR, Trial Chamber I, The Prosecutor v. Jean-Paul Akayesu, ICTR96-4-T, Judgement of 2 September 1998: "596. Considering the extent to which rape constitute crimes against humanity, pursuant to Article 3(g) of the Statute, the Chamber must define rape, as there is no commonly accepted definition of this term in international law. While rape has been defined in certain national jurisdictions as non-consensual intercourse, variations on the act of rape may include acts which involve the insertion of objects and/or the use of bodily orifices not considered to be intrinsically sexual. 597. The Chamber considers that rape is a form of aggression and that the central elements of the crime of rape cannot be captured in a mechanical description of objects and body parts. The Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment does not catalogue specific acts in its definition of torture, focusing rather on the conceptual frame work of state sanctioned violence. This approach is more useful in international law. Like torture, rape is used for such purposes as intimidation, degradation, humiliation, discrimination, punishment, control or destruction of a person. Like torture, rape is a violation of personal dignity, and rape in fact constitutes torture when inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. 598. The Chamber defines rape as a physical invasion of a sexual nature, committed on a person under circumstances which are coercive. Sexual violence which includes rape, is considered to be any act of a sexual nature which is committed on a person under circumstances which are coercive."

- ICTY, Trial Chamber II, The Prosecutor v. Anto Furundzija, ICTY IT95-17/1-T, Judgement of 10 December 1998: "175. No definition of rape can be found in international law. However, some general indications can be discerned from the provisions of international treaties. In particular, attention must be drawn to the fact that there is prohibition of both rape and "any form of indecent assault" on women in article 27 of Geneva Convention IV, article 76(1) of Additional Protocol I and article 4(2)(e) of Additional Protocol II. The inference is warranted that international law, by specifically prohibiting rape as well as, in general terms, other forms of sexual abuse, regards rape as the most serious manifestation of sexual assault. This is, inter alia, confirmed by Article 5 of the International Tribunal's Statute, which explicitly provides for the prosecution of rape while it implicitly covers other less grave forms of serious sexual assault through Article 5(i) as "other inhuman acts". "185. Thus, the Trial Chamber finds that the following may be accepted as the objective elements of rape: (i) the sexual penetration, however slight: (a) of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator; or (b) of the mouth of the victim by the penis of the perpetrator; (ii) by coercion or force or threat of force against the victim or a third person."

Article 7 (1) (g)-2: Sexual slavery Case law - ICTR: No Judgements. - ICTY: No Judgements. However, the indictments of 26 June 1996 against Radomir Kovac, Radovan Stankovic and Dragoljub Kunarac ("Foca-case" - IT-96-23) include enslavement in connection with sexual assaults: "4.8. In this indictment, acts of forcible sexual penetration of a person, or forcing a person to sexually penetrate another are alleged. Sexual penetration includes penetration, however slight, of the vagina, anus or

oral cavity, by the penis. Sexual penetration of the vulva or anus is not limited to the penis. Such acts can constitute an element of a crime against humanity, (enslavement under Article 5(c), torture under Article 5(f), rape under Article 5(g)), violations of the laws and customs of war, (torture under Article 3 and Article 3(1)(a) of the Geneva Conventions) and a grave breach of the Geneva Conventions,( torture under Article 2 (b))." "10.1 (...) On 2 August 1992, DRAGOLJUB KUNARAC, in concert with Pero Elez, took FWS-75, FWS-87 and D. B. from the Montenegrin headquarters in Foca to the Miljevina Hotel because the women had spoken to journalists the day before about the living conditions in Partizan Sports Hall. Pero Elez ordered the detention of the three women in a house (...). RADOVAN STANKOVIC ran Karaman's house similar to a brothel. 10.2 In contrast to Partizan Sports Hall, the detainees at Karaman's house had sufficient food. They were not guarded or locked inside the house. The detainees even had a key they could use to lock the door and prevent soldiers, not belonging to Pero Elez's group, from entering (...). Although the detainees were not guarded, they could not escape. They had nowhere to go as they were surrounded by Serbs, both soldiers and civilians. 10.3 FWS-75 and FWS-87 were detained in Karaman's house between or about 3 August until or about 30 October 1992, together with 7 other women. Pero Elez treated the women as his personal property. 10.4 During the entire period of their detention at Karaman's house, FWS-75, FWS-87 and the other female detainees were subjected to repeated rapes and sexual assaults at night (...)." "10.8 By the foregoing acts and omissions, RADOVAN STANKOVIC committed: Count 56: A CRIME AGAINST HUMANITY punishable under Article 5 (c) (enslavement) of the Statute of the Tribunal."

Article 7 (1) (g)-3: Enforced prostitution Case law - ICTR: No Judgements

- ICTY: No Judgements

Article 7 (1) (g)-4: Forced pregnancy Treaty law - ICC Statute: Article 7 (2) (f): "Forced pregnancy" means the unlawful confinement, of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy. Case law - ICTR: No Judgements - ICTY: No Judgements

Article 7 (1) (g)-5: Enforced sterilization Case law - ICTR: No Judgements - ICTY: No Judgements

Article 7 (1) (g)-6: Any other form of sexual violence of comparable gravity Case law - ICTR, Trial Chamber I, The Prosecutor v. Jean-Paul Akayesu, ICTR96-4-T, Judgement of 2 September 1998: "688. The Tribunal considers sexual violence, which includes rape, as any act of a sexual nature which is committed on a person under circumstances which are coercive. Sexual violence is not limited to physical invasion of the human body and may include acts which do not involve penetration or even physical contact." - ICTY, Trial Chamber II, The Prosecutor v. Anto Furundzija, ICTY IT95-17/1-T, Judgement of 10 December 1998:

"186. As pointed out above, international criminal rules punish not only rape but also any serious sexual assault falling short of actualpenetration. It would seem that the prohibition embraces all serious abuses of a sexual nature inflicted upon the physical and moral integrity of a person by means of coercion, threat of force or intimidation in a way that is degrading and humiliating for the victim's dignity. As both these categories of acts are criminalised in international law, the distinction between them is one that is primarily material for the purposes of sentencing."

Article 7 (1) (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

Persecution as a crime against humanity under charters, laws and statutes of international tribunals - Article 6 (c) Charter of the International Military Tribunal of Nuremberg - Article 2 (1) (c) Control Council Law No. 10 - Article 5 (h) ICTY Statute - Article 3 (h) ICTR Statute Treaty law - ICC Statute Article 7 (2) (g): "Persecution" means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.

Case law - ICTR: No Judgements - ICTY, Trial Chamber II, The Prosecutor v. Dusko Tadic, IT-94-1-T, Judgement of 7 May 1997: Concept of persecution "697. From the above it is evident that what is necessary is some form of discrimination that is intended to be and results in an infringement of an individual's fundamental rights. Additionally, this discrimination must be on specific grounds, namely race, religion or politics. Because the "persecution type" is separate from the "murder type" of crimes against humanity it is not necessary to have a separate act of an inhumane nature to constitute persecution; the discrimination itself makes the act inhumane231. The commentary to the I.L.C. Draft Code speaks of a denial of human rights and fundamental freedoms to which individuals are entitled without distinction, and refers to articles of the Charter of the United Nations and the International Covenant on Civil and Political Rights which address the right to non-discrimination232. It also discusses the relationship between the crime of "persecution on political, racial, religious or ethnic grounds" and that of "institutionalized discrimination on racial, ethnic, or religious grounds involving the violation of fundamental human rights and freedoms and resulting in seriously disadvantaging a part of the population", noting that they both involve "the denial of the human rights and fundamental freedoms of individuals based on an unjustifiable discriminatory criterion", although in the case of the latter the discriminatory plan or policy must be institutionalised233. It is the violation of the right to equality in some serious fashion that infringes on the enjoyment of a basic or fundamental right that constitutes persecution, although the discrimination must be on one of the listed grounds to constitute persecution under the Statute. ____________________________________________ 231 See, e.g., the Barbie case, 143, supra. 232 I.L.C. Draft Code, 98, supra. 233 Id., 99."

- ICTY, Trial Chamber II, The Prosecutor v. Dusko Tadic, IT-94-1-T, Judgement of 7 May 1997: Nature of the persecutory acts "707. Thus, as illustrated by these findings and as the International Law Commission noted, persecution can take numerous forms, so long as the common element of discrimination in regard to the enjoyment of a basic or fundamental right is present, and persecution does not necessarily require a physical element. There is, however, a limit to the acts which can constitute persecution within the meaning of crimes against humanity. For example, in the Flick trial, the court determined that offences against industrial property could not constitute crimes against humanity, although it made a distinction between industrial property and the "dwellings, household furnishings and food supplies of persecuted people"262 and thus "left open the question whether such offences against personal property as would amount to an assault upon the health and life of a human being (such as the burning of his house or depriving him of his food supply or his paid employment) would not constitute a crime against humanity"263. The Rebuttal statement of the prosecution before the Nrnberg Tribunal has been interpreted to refer to economic deprivation of this more personal type264 and the finding of the Nrnberg Tribunal characterizing certain acts of economic discrimination as persecution support the conclusion that economic measures of a personal, as opposed to an industrial type, can constitute persecutory acts265. The finding in the Eichmann case also supports this conclusion. Count 6 of the indictment against Adolf Eichmann alleged persecution of Jews on national, racial, religious and political grounds and Count 7 concerned property.266 He was convicted of crimes against humanity (Counts 5 to 7) for his activities in the Emigration Centres, deportations and the "final solution". The plunder of property of those Jews who were forced to emigrate or who were deported was found to be a crime against humanity when committed "by means of terror or linked with other acts of violence as defined in the Law267, or when it was a result of those acts, so that it was part of a comprehensive process, as was the plunder by the Centres for Jewish Emigration of those who were deported and exterminated"268.

____________________________________________ 262 Id., 26. 263 Notes on the Flick Trial, id., 50. 264 British Command Paper, Cmd. 6964, 85, quoted in Notes on the Flick Trial, 51, supra. 265 See, e.g., the Nrnberg Tribunal's statements in the Leadership Corps of the Nazi Party case, Nrnberg Judgment, supra at 259; the Seyss-Inquart case, id., 328, 329; the Funk case, id., 305; the Frick case, id., 300; and the Goering case, id., 282. 266 Eichmann case, supra. 267 Nazi and Nazi Collaborators (Punishment) Law, 5710/1950. 268 Summary of Eichmann case, id. at 14. 708. In addition to economic measures a variety of other acts can constitute persecution if done with the requisite discriminatory intent. The Nrnberg Tribunal's decision regarding defendant Streicher is useful in considering the varying manifestations of persecutory acts. Streicher was convicted of crimes against humanity because through his speaking, writing and preaching hatred of the Jews he "infected the German mind with the virus of anti-Semitism, and incited the German people to active persecution" in Germany as well as elsewhere269. Thus his "incitement to murder and extermination at the time when Jews in the East were being killed under the most horrible conditions clearly constitutes persecution on political and racial grounds in connection with War Crimes as defined in the Charter and constitutes a Crime Against Humanity"270. 709. The Justice case, in which the accused were former German judges, prosecutors or officials in the Reich Ministry of Justice, is also relevant in regard to the variety of acts which can constitute persecution. The trial considered the legal aspects of the part played in furthering the persecution of Jews and Poles and other aspects of the Nazi policy by various of the accused acting in their official or judicial capacity271 but, it continued, "all of the laws to which we have referred could be and were applied in a discriminatory manner and in the case of many, the Ministry of Justice and the court enforced them by arbitrary and brutal

means, shocking the conscience of mankind and punishable here"272. (...). 710. The Eichmann case also discusses the variety of acts which constitute persecution. Noting that paragraph 4 of the Programme of the National Socialist Party declares that Jews cannot be citizens of the German state, since they do not belong to the German people and that paragraph 8 demands that all those who are not Germans and immigrated to Germany after 2 August 1914 leave Reich territory immediately274, the court stated that [w]ith the rise of Hitler to power, the persecution of Jews became official policy and assumed the quasi-legal form of laws and regulations published by the Government of the Reich in accordance with legislative powers delegated to it by the Reichstag on March 24, 1933 (Session 14, p. 71) and of direct acts of violence organised by the rgime against the persons and property of Jews . . . . The purpose of these acts carried out in the first stage was to deprive the Jews of citizen rights, to degrade them and strike fear into their hearts, to separate them from the rest of the inhabitants, to oust them from the economic and cultural life of the State and to close to them the sources of livelihood. These trends became sharper as the years went by, until the outbreak of the war. Even before German Jewry suffered its first general shock on April 1, 1933, when Jewish businesses were boycotted, the arrest of Jews and their dispatch to concentration camps had begun . . . . On November 7, 1938, Hirsch Grynschpan shot the Counsellor of the German Embassy in Paris, vom Rath. After this act, the wave of persecution swelled up against the Jews in Germany"275. Thus, the crime of persecution encompasses a variety of acts, including, inter alia, those of a physical, economic or judicial nature, that violate an individual's right to the equal enjoyment of his basic rights. ____________________________________________ 269 Nrnberg Judgment, 302, supra. 270 Id., 304. 271 Justice case, supra, 1; see also id., 51-52 (United States Military Tribunal applying Control Council Law No. 10 explained thatthere were

four types of laws the enforcement of which it would not normally regard as being illegal). 272 Id., 52. 274 Id., para. 56, referencing T/1403. 275 Id., paras. 56, 57." - ICTY, Trial Chamber II, The Prosecutor v. Dusko Tadic, IT-94-1-T, Judgement of 7 May 1997: Types of discriminatory grounds "711. There are no definitive grounds in customary international law on which persecution must be based and a variety of different grounds have been listed in international instruments. The grounds in the Statute are based on the Nrnberg Charter which included race, religion and politics as the three grounds, as did Control Council Law No. 10, both of which were drafted to address the European situation. In contrast the Tokyo Charter excluded religion as a basis for persecution, given its inapplicability to the Pacific theatre of operation while, alternatively, the Convention on the Prevention and Punishment of the Crime of Genocide276 contains the additional ground of ethnicity as do the 1991 and 1996 versions of the I.L.C. Draft Code, whereas the original 1954 Draft Code included culture as a basis for persecution277. The possible discriminatory bases which the International Tribunal is empowered to consider are limited by the Statute to persecutions undertaken on the basis of race, religion and politics. ____________________________________________ 276 Genocide Convention, supra. 277 I.L.C. Draft Code of Crimes against the Peace and Security of Mankind, Ybk ILC, 1954, Vol. II, 150-152, U.N. Doc. A/2673." Comment: Under the ICTY Statute, persecution itself constitutes a crime against humanity. Persecution does not require a separate act of an inhumane nature. Under the ICC Statute, however, there must be persecution either in connection with any act referred to in article 7 (1) or any other crime within the jurisdiction of the ICC. It is of importance to notice the

alternative in this reference: The notion "any act referred to in this paragraph" does not mean that this act itself must constitute a crime against humanity. Persecution can also be any conduct referred to in article 7 (1) which occurs on discriminatory grounds. In addition, persecution under the jurisdiction of the ICC does require a discriminatory ground, however, unlike persecution under the ICTY Statute, there is no definitive list of grounds. Article 7 (1) mentions "other grounds that are universally recognized as impermissible under international law" as possible intent for constituting a crime against humanity. In this regard, the forthcoming Trifterer Commentary on the ICC Statute explains: "The words "universally recognized" should be understood as "widely recognized," not within the meaning that all States have to recognize a particular ground as impermissible. The first interpretation would be most in accord with the overall purpose of the Rome Statute. Most of the distinctions enumerated in both the Universal Declaration and the ICCPR can be considered to fall within the scope of "other grounds that are universally recognized as impermissible under international law."

Article 7 (1) (i) ): Enforced disappearance of persons

Treaty law - ICC Statute Article 7 (2) (i): "Enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.

Case law - ICTR: No Judgements (The crime of humanity of "enforced disappearance" is not explicitly mentioned in the ICTR Statute. However, it cannot be excluded, that the Tribunal will consider this crime as "other inhumane act" in terms of the Statute) - ICTY: No Judgements (The crime of humanity of "enforced disappearance" is not explicitly mentioned in the ICTY Statute. However, it cannot be excluded, that the Tribunal will consider this crime as "other inhumane act" in terms of the Statute) Other Sources - GA Assembly Declaration 47/133 on the Protection of all Persons from Enforced Disappearances (18 December 1992): Preamble: Deeply concerned that in many countries, often in a persistent manner, enforced disappearances occur in the sense that persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government, or by organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of law. Article 1: 1. Any act of enforced disappearance is an offence to human dignity. It is condemned as a denial of the purposes of the Charter of the United Nations and as a grave and flagrant violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and reaffirmed and developed in international instruments in this field. 2. Any act of enforced disappearance places the persons subjected thereto outside the protection of the law and inflicts severe suffering on them and their families. It constitutes a violation of the rules of international law guaranteeing, inter alia, the right to recognition as a person before the law, the right to liberty and security of the person and

the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment. It also violates or constitutes a grave threat to the right to life."

Article 7 (1) (j): The crime of apartheid

Treaty Law - ICC Statute: Article 7 (2) (h): "The crime of apartheid" means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime. - International Convention on the Suppression and Punishment of the Crime of Apartheid (30 November 1973): Article II: For the purpose of the present Convention, the term "the crime of apartheid", which shall include similar policies and practices of racial segregation and discrimination as practised in southern Africa, shall apply to the following inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them: (a) Denial to a member or members of a racial group or groups of the right to life and liberty of person: (i) By murder of members of a racial group or groups; (ii) By the infliction upon the members of a racial group or groups of serious bodily or mental harm, by the infringement of their freedom or dignity, or by subjecting them to torture or to cruel, inhuman or degrading treatment or punishment; (iii) By arbitrary arrest and illegal imprisonment of the members of a racial group or groups;

(b) Deliberate imposition on a racial group or groups of living conditions calculated to cause its or their physical destruction in whole or in part; (c) Any legislative measures and other measures calculated to prevent a racial group or groups from participation in the political, social, economic and cultural life of the country and the deliberate creation of conditions preventing the full development of such a group or groups, in particular by denying to members of a racial group or groups basic human rights and freedoms, including the right to work, the right to form recognized trade unions, the right to education, the right to leave and to return to their country, the right to a nationality, the right to freedom of movement and residence, the right to freedom of opinion and expression, and the right to freedom of peaceful assembly and association; (d) Any measures, including legislative measures, designed to divide the population along racial lines by the creation of separate reserves and ghettos for the members of a racial group or groups, the prohibition of mixed marriages among members of various racial groups, the expropriation of landed property belonging to a racial group or groups or to members thereof; (e) Exploitation of the labour of the members of a racial group or groups, in particular by submitting them to forced labour; (f) Persecution of organizations and persons, by depriving them of fundamental rights and freedoms, because they oppose apartheid. Case law - ICTR: No Judgements - ICTY: No Judgements ILC 1996 Draft Code The ILC Draft Code includes in its list of crimes against humanity the crime of "institutionalized discrimination on racial, ethnic or religious grounds involving the violation of fundamental human rights and freedoms and resulting in seriously disadvantaging a part of the population" [Article 18 (f)]. According to the ILC's commentary,

"The fifth and sixth categories of prohibited acts consist of distinct and yet closely related criminal conduct which involves the denial of the human rights and fundamental freedoms of individuals based on an unjustifiable discriminatory criterion. Whereas both categories of prohibited acts must be committed in a systematic manner or on a large scale to constitute a crime against humanity under the present article, the sixth category of prohibited acts further requires that the discriminatory plan or policy has been institutionalized, for example, by the adoption of a series of legislative measures denying individuals who are members of a particular racial, ethnic of religious group of their human rights or freedoms. The prohibited act covered by the present subparagraph consists of three elements: a discriminatory act committed against individuals because of their membership in a racial, ethnic or religious group, which requires a degree of active participation; the denial of their human rights and fundamental freedoms, which requires sufficiently serious discrimination; and a consequential serious disadvantage to members of the group comprising a segment of the population. It is in fact the crime of apartheid under a more general denomination. Institutionalized discrimination was not included as a crime against humanity in the previous instruments. For this reason, the Commission decided to limit this crime to racial, ethnic or religious discrimination. The Commission noted that such racial discrimination was characterized as a crime against humanity in the Apartheid Convention (article I)."

Article 7 (1) (k): Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health

Other inhumane acts as a crime against humanity under charters, laws and statutes of international tribunals

- Article 6 (c) Charter of the International Military Tribunal of Nuremberg - Article 2 (1) (c) Control Council Law No. 10 - Article 5 (i) ICTY Statute - Article 3 (i) ICTR Statute Case law - ICTR, Trial Chamber II, The Prosecutor v. Clment Kayishema and Obed Ruzindana, ICTR-95-1-T, Judgement of 21 May 1999: "149. Since the Nuremberg Charter, the category 'other inhumane acts' has been maintained as a useful category for acts not specifically stated but which are of comparable gravity. The importance in maintaining such a category was elucidated by the ICRC when commenting on inhumane treatment contained in Article 3 of the Geneva Conventions, It is always dangerous to try to go into too much detail - especially in this domain. However much care were taken in establishing a list of all the various forms of infliction, one would never be able to catch up with the imagination of future torturers who wished to satisfy their bestial instincts; and the more specific and complete a list tries to be, the more restrictive it becomes. The form of wording adopted is flexible and, at the same time, precise.50 150. Other inhumane acts include those crimes against humanity that are not otherwise specified in Article 3 of the Statute, but are of comparable seriousness. The ICC Statute (Article 7(k)), provides greater detail than the ICTR Statute to the meaning of other inhumane acts: "other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health." The ILC commenting on Article 18 of its Draft Code of Crimes states The Commission recognized that it was impossible to establish an exhaustive list of the inhumane acts which may constitute crimes against humanity. First, this category of acts is intended to include only additional acts that are similar in gravity to those listed in the preceding subparagraphs. Second, the act must in fact cause injury to a human being in terms of physical or mental integrity, health or human dignity.

151. The Chamber notes the International Law Commission's commentary. In relation to the Statute, other inhumane acts include acts that are of similar gravity and seriousness to the enumerated acts of murder, extermination, enslavement, deportation, imprisonment, torture, rape, or persecution on political, racial and religious grounds. These will be acts or omissions that deliberately cause serious mental or physical suffering or injury or constitute a serious attack on human dignity. The Prosecution must prove a nexus between the inhumane act and the great suffering or serious injury to mental or physical health of the victim. The Chamber agrees with the Prosecution submission that the acts that rise to the level of inhumane acts should be determined on a case-by-case basis.51 ____________________________________________ 50 ICRC Commentary on the Geneva Conventions p. 54. 51 Prosecutor's Closing Brief, p. 37." - ICTY, Trial Chamber II, The Prosecutor v. Dusko Tadic, IT-94-1-T, Judgement of 7 May 1997: "728. Article 5 of the Statute has already been discussed in detail. Its enumeration of nine crimes which it proscribes when committed in armed conflict and directed against any civilian population suggests that, as a minimum, the last of these crimes, "other inhumane acts", must consist of acts inflicted upon a human being and must be of a serious nature. 729. This is confirmed by the terms of Article 18(k) of the I.L.C. Draft Code, which includes as crimes against humanity, "other inhumane acts which severely damage physical or mental integrity, health or human dignity, such as mutilation and severe bodily harm". In its commentary the International Law Commission notes that "the notion of other inhumane acts is circumscribed by two requirements. First, this category of acts is intended to include only additional acts that are similar in gravity to those listed in the preceding subparagraphs. Secondly, the act must in fact cause injury to a human being in terms of physical or mental integrity, health or human dignity." (...) Mutilation and other types of severe bodily harm are the two examples of such

"other inhumane acts" mentioned in Article 18(k) of the I.L.C. Draft Code. 730. The findings of fact about the acts of the accused relevant to this count are those concerning beatings and acts of violence referred to in dealing with Count 10. The Trial Chamber finds beyond reasonable doubt that those beatings and other acts of violence which were suffered by the six victims there named, who are Muslims, constitute inhumane acts and are crimes against humanity (...)". Comment In contrast to the Statutes of the ICTY and ICTR, the ICC Statute limits the scope of the crime of "other inhumane acts" to those acts by which the perpetrator caused great suffering, or serious injury to body or to mental or physical health. At first sight, one might argue that a violation of human dignity does not fall within the ambit of this crime. However, it cannot be excluded that also serious attacks on human dignity can be interpreted as causing great suffering, or serious injury to body or to mental or physical health.