An Appraisal Of The Development Of Legal Framework Of Crimes Against Humanity In International Law

AN APPRAISAL OF THE DEVELOPMENT OF LEGAL FRAMEWORK OF CRIMES AGAINST HUMANITY IN INTERNATIONAL LAW

CHAPTER ONE
GENERAL INTRODUCTION

1.1 Background of the Study
The first forty years after the Nuremberg Trial was a period of slow progress in developing international criminal law. There is no doubt that international criminal law has developed as a distinct field of study in recent years. Indeed if international criminal law is defined as the prosecution of individuals for ‗international crimes‘ such as war crimes or Crimes Against Humanity then there was no such law for most of the twentieth century. On the eve of the twentieth century attempts to regulate warfare in The Hague Conference of 1899, and again in 1907, were constrained by notions of State sovereignty. As the Nuremberg judges pointed out the following in 1946, ‗The Hague Convention nowhere designates such practices (methods of waging war) as criminal, nor is any sentence prescribed, nor any mention made of a court to try and punish offenders.‘
The Nuremberg trials established that all of humanity would be guarded by an international legal shield and that even a Head of State would be held criminally responsible and punished for aggression and Crimes Against Humanity. The right of humanitarian intervention to put a stop to Crimes Against Humanity – even by a sovereign against his own citizens-gradually emerged from the Nuremberg principles affirmed by the United Nations.
The awareness of the inadequacy of the law and the willingness to do something to enforce such new principles was slow in coming. The failure of the international community to develop binding norms of international criminal law was glaringly illustrated by the slow pace of various UN committees charged in 1946 with drafting both a code of crimes against the peace and security of mankind and the statutes for an international criminal court.
While the law limped lamely along, international crimes flourished. The horrors of the twentieth century are many. Acts of mass violence have taken place in so many countries and on so many occasions it is hard to comprehend. According to some estimates, nearly 170 million civilians have been subjected to genocide, war crimes and Crimes Against Humanity during the past century. The World Wars led the world community to pledge that ―never again‖ would anything similar occur. But the shocking acts of the Nazis were not isolated incidents, which we have since consigned to history. Hundreds of thousands and in some cases millions of people have been murdered in, among others, Russia, Cambodia, Vietnam, Sierra Leone, Chile, the
Philippines, the Congo, Bangladesh, Uganda, Iraq, Indonesia, East Timor, El Salvador, Burundi, Argentina, Somalia, Chad, Yugoslavia and Rwanda in the second half of the past century. But what is possibly even sadder is that the International Community have witnessed these massacres passively without been proactive. The result is that in almost every case in history, the person responsible for carrying out these atrocities is not punished despite the existence of the constitutive international instruments and the judicial institutions (such as International Criminal
Court) and ad hoc tribunals such as the International Tribunal for Former Yugoslavia and International Tribunal for Rwanda.
Not until the world was shocked by the ethnic cleansing in the former Yugoslavia and the genocide in Rwanda could the UN, no longer paralyzed by the Cold War, take action. Nations that had been unwilling to intervene to block the carnage now recognized that some action was essential. For the first time since Nuremberg, a new international criminal tribunal was quickly put in place on an ad hoc basis by the UN Security Council. Under the impetus of shocked public demand, it became possible for the UN Secretariat to draft the statutes for the International Criminal Tribunal for Yugoslavia in about 8 weeks – the same time it had taken to agree upon the Charter to the International Military Tribunal at Nuremberg. The ICTY began functioning in
1994. It led to the speedy creation of a similar ad hoc tribunal to deal with genocide and Crimes Against Humanity in Rwanda.
Up until the present the international community has been very reluctant to enforce international criminal law. It has only been done a couple of times in history, without doubt due to the specific circumstances and the political climate at the time. The idea of establishing a permanent international criminal court is not new though. Attempts in that direction were taken as nearly as the end of World War I, but the international community never reached agreement on the matter.
The ICC‘s predecessors are primarily the Nuremberg and the Tokyo Tribunals created by the victorious Allies after World War II. These tribunals have been accused of being unfair and merely institutions for ―victor‘s justice,‖ but nevertheless they did lay the groundwork for modern international criminal law. They were the first tribunals where violators of international law were held responsible for their crimes. They also recognized individual accountability and rejected historically used defenses based on state sovereignty. These principles of international law recognized in the Nuremberg Charter and Judgments were later affirmed in a resolution by the UN General Assembly.
The International Law Commission (ILC), a body of distinguished legal experts acting at the request of the General Assembly, completed its draft statute for a permanent international criminal court in 1994. In 1996, the ILC finally completed its draft code of crimes against the peace and security of mankind. This new momentum reflected widespread agreement that an international criminal court, with fair trial for the accused, should be created as an essential component of a just world order under law.
After years of work and struggle, the promise of an International Criminal Court with jurisdiction to try genocide, war crimes and Crimes Against Humanity has become a reality. In 1998, the statute of the Court was approved in Rome and it entered into force on the first of July of 2002, after achieving 60 ratifications . Now, only a few years after ratifications/accessions has risen from 60 to 120.5 The Court holds a promise of putting an end to the impunity that reigns today for human rights violators and bringing us a more just and more humane world.
No record exists of how the term ―crimes against humanity‖ came to be chosen by the framers of the Nuremberg Charter. The term was selected by Justice Robert Jackson of the US
Supreme Court, Chief Prosecutor at Nuremberg and the Head of the American delegation to the London Conference of US (the three constituting those that frame the Charter).
In 1915, the French, British, and Russian governments had denounced Turkey‘s Armenian genocide as ‗crimes against civilization and humanity‘, and the same phrase appeared in a 1919 proposal to conduct trials of the Turkish perpetrators. But the United States objected at that time that the so-called ―laws of humanity‖ had no specific content, and the proposal to try the Turks was scuttled. The phrase ―crimes against humanity‖ has acquired enormous resonance in the legal and moral imaginations of the post-World War II. It suggests, in at least two distinct ways, the enormity of these offences. First, the phrase ―crimes against humanity‖ suggests offences that aggrieve not only the victims and their own communities, but all human beings, regardless of their community. Second, the phrase suggests that these offences cut deep, violating the core humanity that we all share and that distinguishes us from other natural being .
The term ―crimes against humanity first appeared in positive international law in Article 6(c) of the Charter of the International Military Tribunal (IMT), in 1946, which defined crimes against humanity as a constellation of prohibited acts committed against a civilian population.
The Charter further defined crimes against humanity as ―murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. The category of crimes against humanity was added to the Charter because it was feared that under the traditional formulation of war crimes, many of the defining acts of the Nazis would go unpunished? The crimes against humanity count in the
Nuremberg. The crimes against humanity charge confirmed that citizen‘s are under the
protection of international law even when they are victimized by their compatriots .
Furthermore, the criminality of such acts ―whether or not in violation of the domestic law of the country where perpetrated established the supremacy of international law over municipal law in this way, the prohibition of crimes against humanity at Nuremberg had the potential to irretrievably pierce the trope of sovereignty ―a rule of international law which provides that no state shall intervene in the territorial and personal sphere of validity of another national legal order10.
The definition of crimes against humanity in the Charter of the International Military Tribunal contained a curious limiting principle the Nuremberg Tribunal could assert jurisdiction only over those crimes against humanity committed ‗before or during the war‘ and ‗in execution of or in connection with any crime within the jurisdiction of the Tribunal‖, i.e., war crimes or crimes against the peace . This formulation became known as the ―war nexus‖, and it is apparent that the Charter‘s drafters and the Nuremberg Tribunal itself considered the war nexus necessary to justify the extension of international jurisdiction into what would otherwise be acts within the domestic jurisdiction of a state.
Against the above backdrop, therefore, a statement of problem is hereby established in relation to the wider nature of the meaning of the phrase ―Crimes against humanity‖ and the extents of their compatibility with various national constitution (with particular reference to Nigeria) having regard to the fact that even the definition offered by Art. 7 of the Rome Statute of the International Criminal Court (ICC Statute) contains loose concepts such as a ‗widespread or systematic attack directed against any civilian population‘ and a ‗State or organizational policy to commit such attack‘. The meaning of these terms is far from clear in international law. Whilst the ad hoc Tribunals created by the Security Council (the CTY and the ICTR) have recently pronounced upon the crime‘s meaning in the context of their own statutory definitions and factual situations, there is no authoritative case law of the ICC assigning the offence a clear technical meaning, and the various statutes defining it – the Nuremberg Charter, the Tokyo Charter, Allied Control Council Law No. 10, the ICTY Statute, ICTR Statute, the ICC Statute, the Statutes of the hybrid Tribunals of Sierra Leone, East Timor, Kosov and Cambodia-along with the international law Commission, all define it differently. Hence, the term‘s ‗correct meaning‘ under international law remains elusive. This has prompted many wide and varied claims as to what amounts to a crime against humanity. For example, Kate Reynolds in respect of Australia‘s policy of mandatory detention of asylum seekers stated that ‗Our government is engaged in a continuing crime against humanity. It is indeed, this state of confusing levels of the law on one hand and its different interpretation by the tribunals and court on the other hand that generates the writers interest in this field of research with the objective of identifying the reasons for such differences in international law and also to proffer solution to the existing practice by suggesting among others that the domestication of the Rome Statute within the state national legislation will be an essential way forward as it will serve as a customary rule of uniform understanding.
1.2 Statement of the Problem
Crimes against humanity were conceived to fill the gap in international criminal law, the formation of the idea arose from the need to justify the prosecution of atrocities and end the horrific international offences in order to protect the largest number of victims. Crimes against humanity comprised of two categories of specific Punishable behaviour, the first, such as murder, extermination, enslavement, and inhumane acts, correspond generally to crimes under virtually all domestic criminal law systems, and cover such offences as killing, assault, rape, and kidnapping or forcible confinement. The second, persecutions on discriminatory grounds, run afoul of antidiscrimination laws in many countries but fall short of criminal behaviour. What elevates these acts to crimes against humanity, as held by the courts, is their commission as part of a widespread or systematic Attack on a civilian population, although this is not stated explicitly in the Nuremberg Tribunals definitions; Atrocities and offences, including but not limited to murder, extermination, enslavement deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.
On this note therefore, the statement of problem of this institution starts from the manner in which the understanding of the phrase is couched statutorily by Article 7 of the ICC. The implication of this is that the court is face with the inherent problems of adjudicating crimes against humanity, the principle of legality and individual culpability. The rationale behind the principle of legality can be defined as ―the requirement of specificity and the prohibition of ambiguity in criminal legislation‖, noting that ‗without the satisfaction of these principles no criminalization process can be accomplished and recognized‘. However, the International Military Tribunal placed a higher value on substantive justice than strict legality. The London Charter asserted that ―it is the expression of international law existing at the time of its creation‖, declaring preexisting custom, further defined in Article 38 of the Statute of the International
Court of Justice on ―the general principles of law recognized by civilized nations‖.
Another worrisome issue is the practical difficulties in bringing perpetrators to trial. The problem was two-sided: ―First, the collective nature of most crimes under its jurisdiction.
Second, proving the responsibility of individuals for acts they had not directly committed‖.14 However, the notion that an individual can be held accountable for international criminal offences grounded the Tribunal‘s concept of international criminal law. Accordingly, the London
Charter emphasized ―individual responsibility‖ for crimes against humanity. Under the Charter, individuals, not collective bodies like governments or militaries, were held accountable for criminal offences. Members of the International Military Tribunal in 1946, proclaimed that ―crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced. Nigeria‘s situation is in respect of possible war crimes in the conflicts in North Central region, particularly in Jos, Boko Haram, kidnapping and bombing that has been on the rise. Nigeria ratified the Rome Statute on 27 September 2001, but has not incorporated it into its domestic law, so as to recognize and prosecute the Statute crimes namely: Genocide, war crimes and crime against humanity.
Of all the above mention incidences, Boko Haram insurgency leads more to the commission of crime against humanity. Boko Haram is group created by Late Yusuf and it‘s known for its disturbance of peace throughout the nation and the world all over.
The group Jama‘atu Ahlu-Sunnah lidda‘Awati wal Jihad. Know the world over as Boko Haram, is an extremist Islamic sect in Nigeria that has created havoc across the north of the country and in the capital, Abuja.16 As defined by U.S Institute of Peace violent attacks on government offices, the United Nations, and churches threaten to destabilize the country. A range of conflicting narratives has grown up around Boko Haram, and the group‘s origins, motivations and future plans remain a matter of debate. This report addresses the questions stemming from these narratives and suggests how the group can be contained. The report is based on the authors‘ extensive research and reporting on Boko Haram. In March 2011, he conducted an interview with a senior member of the group in the city of Maiduguri, Nigeria , the center of Boko Haram‘s area of influence. The report also draws on interviews with Nigeria journalists who have covered the group (and who asked to remain anonymous in this report) and on information provided to the author by other researchers working on Boko Haram.
In relation to Boko Haram insurgency in Nigeria, it was rightfully observed thus:
Undoubtedly, the Boko Haram insurgency essentially endangers public safety, security and peace; retards economic growth and development; undermines the state and democracy; constitutes crime against public order, crimes against humanity and terrorism. Above all, it violates the fundamental human rights to life, human dignity, liberty and freedom of religion, conscience and thought etc.

Boko Haram insurgence is however, the major security threat facing the Nigerian government and her citizenry since 2009 to date, with the coming of the Gen. Muhammad Buhari‘s regime on May 29, 2015, the Nigerian populace taught Boko Haram regime was over, but rather they gained further momentum. The continued resilience of Boko Haram under the Buhari regime- at a time when the soldiers battling them are believed to be well motivated and well-equipped-call for a re-thinking of some of our earlier notions about the sect.19
On, the continued resilience of the terrorist sect negates some of the conspiracy theories that for long helped to undermine any concerted action against the group. For instance, among the prevailing conspiracy theories was that the group was being sponsored by eminent Northern politicians to make the country ―ungovernable‖ for former President Jonathan because he is a Christian and from a minority ethnic group in the South. Buhari had been accused under this theory of being one of the sponsors of Boko Haram and the only evidence often adduced by the accusers was that he was ‗nominated‘ by the sect as a negotiator when the Jonathan administration was exploring the option of dialogue with the group. If this ‗theory‘ is correct, Buhari‘s victory over Jonathan in the last election would have mellowed the group. But it hasn‘t.
The Federal Government of Nigeria in July 2014 set up a Committee on Victims Support Fund (CVSF) for victims of Boko Haram atrocities throughout Nigeria under the chairmanship of Lt. Gen. Theophilus Yakubu Danjuma (Rtd). The CVSF through the help of the Nigerian government raised about N80 billion naira during a presidential fund raising event on Thursday 31 July 2014. The Committee through the help of the Nigerian government plans to raise $500 million dollars in the next 12 months. The National Cyber-Security and Communications Integration Center (NCICC) commends the efforts of the government in setting up the CVSF and fighting insurgency in the country as several Nigerians have become victims of the international crimes committed by Boko Haram elements in very large numbers. However, the NCICC believes that an important issue has been totally ignored by the government in setting up this committee which should be addressed as soon as possible22.
The NCICC recalls that on 17th July 2012, the Federal Government submitted the Crimes Against Humanity, War Crimes, Genocide and Related Offences Bill, 2012 (Rome Statute Bill) that will domesticate the Rome Statute of the International Criminal Court of the National Assembly. Nigeria ratified the Rome Statute treaty in 2001 and attempted twice without success to incorporate the provisions of the treaty into our national law.
The Rome Statute Bill among other things provides for the punishment of those responsible for international crimes in Nigeria and cooperation between Nigeria and the
International Criminal Court to ensure the effective prosecution of criminals either in Nigeria or the Hague, Netherlands. The conflict between Nigerian forces and Boko Haram insurgents is currently a non-international armed conflict and therefore the provisions of the Rome Statute covers the crimes committed during the conflict. Most importantly, the Rome Statute Bill provides for a Special Victims Trust Fund (SVTF) to assist victims, families of victims and survivors of international crimes in Nigeria .
The NCICC believes that the Rome Statute Bill offers a holistic approach to the fight against impunity in Nigeria. It addresses crimes committed by both Boko Haram members and Nigerian security forces that may have gone beyond the established rules of engagement in their conduct during the counter insurgency activities.
However, Nigeria is currently a non-permanent member of UN Security Council, and a key player in the Africa region in promoting international peace and security as well as justice. It is against this background that this research is conducted noting with concern the continuation in some parts of the world, and specifically Nigeria the persistent violations of international humanitarian law and international human rights law and; to find out whether the domestication of Rome Statute would aid the government‘s effort to prevent and control crimes against humanity in particular, and generally war crimes and genocide in Nigeria.
1.3 Literature Review
Several materials have been written on the crime against humanity at different stages in the development of international jurisprudence. The literature of some of these notable writers considered relevant to this field of research are considered below, starting with a conceptual discourse on the conceptual foundation of crimes against humanity.
The field of international criminal law is a continuously evolving and challenging area of study. The broader notion of crimes against humanity is as old as humanity itself. However, the present status has evolved mainly throughout the twentieth century, greatly influenced by the Nuremberg Trials, which tried war crimes, crimes against humanity and genocide. The latest development was the consensus in defining Crimes against Humanity during the ICC Diplomatic Conference of 1998, which can be considered as a milestone for the international community in the fight against human rights violations.
Crimes against humanity encompass attacks and violations on a wide range of civilian populations, which can be committed in times of peace and do not result necessarily in the physical extermination of the victims. In contrast, the term ―genocide‖ is narrower, and ―war crimes‖ can only be committed during an armed conflict. Currently, the most comprehensive, though ambiguous, definition of crimes against humanity can be found in the Rome Statute of the International Criminal Court. The Court restricts itself to the most serious crimes of international concern, as it declares in its articles, presenting at the same time some basic maxims of the legal science including the principles of nullumcrimen, nullapoena sine lege, the prohibition of ex post facto criminal laws and its derivative of the non-retroactive application of criminal law.
When regulating against crimes, suggests that the protected value is the essential humanness, which is carried by each and every person. Even though Kant and natural theorists would perceive humanness as human dignity, a crime against humanness negates the very being in the world as a human, obliterating or attempting to greatly devalue the person qua human. The crimes that could fall under international criminal law are broader than the ones regulated by the 5th Article of the ICC Statute, with those committing war crimes, crimes against humanity and genocide being sui generis criminals.
Crimes against humanity have the peculiarity also that they are mainly perceived as crimes of obedience, taking place under the explicit instructions and strategic plans of the authorities involved, or otherwise under their tolerance. In the aspect of jurisdiction, the mens rea and the existence of a widespread attack are sufficient to distinguish crimes against humanity from ordinary crimes.35 These requirements upgrade some types of crimes to crimes against humanity, and not a crime prosecutable under domestic criminal law. Thus, the expression ―laws‖ or ―principles of humanity‖ embodies the idea that some transcendental humanitarian principles exist beyond conventional law that are not subject to any form of violation.
In addition to the International treaties dealing with the broad notion of crimes against humanity various regional treaties have contributed to the evolution of the term ; this facilitated the process of recognizing which crimes are international, a particularly important procedure as it symbolises their recognition as jus cogens. The threshold is the ergaomnes obligation of states which gives them the right to proceed against the perpetrator of these crimes.
International crimes have the abnormality that they are not examined often, and their codification process is much more difficult than in national criminal systems. Usually the interpreters of crimes against humanity have been the International Tribunals and the prosecutors during recent years. Crimes against humanity are therefore offences against humankind and injuries to humanness. Their gravity qualifies the perpetrators hostishumani generis, offending fundamental values not adequately defended in internal legal systems, urging international intervention.
It is sometimes stated that the term ―crimes against humanity‖ is based upon natural law concepts. Reports of forbidden forms of crimes date back to Herodotus, who mentioned certain conduct as prohibited in the fifth century BC. St. Augustine and St. Thomas Aquinas also set philosophical premises in order to distinguish a just from an unjust war. Xenophon reports the earliest precedent for modern international criminal law when describing the process for treating the Athenian prisoners captured by the Spartan commander, Lysander.
The very essence of ―humanitas‖ can be traced to the landmark concept in Greek philosophy of ―philanthropia‖ and the Roman concept of ―ethos‖ . Plato explored punitive theory with a focus on the purpose of punishment in works like Gorgias, Protagoras and
Nomoi (―Laws‖). The union between theory and practice was further explored by Aristotle and Theophrastus. Aristotle, for instance, proposed an international institution that would give the same amount of justice either in Rome or in Athens. The philosophical approach to crime and punishment is also exemplified by Cicero, in ―De Legibus‖ (―On the Laws‖) and ―De
Officiis‖ (―On Duties‖), and Seneca, in ―De Clementia‖ (―On Clemency‖) and ―De Ira‖ (―On Anger‖).
Early scholars include Grotius (with De lure Belli Ac Pacis – On the Law of war and peace), Vitoria, Ayala, Belli, Gentili and Vattel who, in accordance with a number of judicial decisions and opinions, make reference to concepts very similar to crimes against humanity. Vattel in 1757 characterised certain crimes as being a crime against humankind in general. Even though these contributions are extremely important in tracing the evolution of the term, they did not refer to the present form of crimes against humanity, but more to the philosophy underlying its notion.
The first ad hoc International Criminal Court was established in 1474 to judge Peter von Hagenbach for crimes committed during the siege of the town of Breisach. These proceedings have also been extensively cited in the literature as the first international criminal trial for what nowadays could be called crimes against humanity. In 1649, at the trial of Charles I in England, the Solicitor General John Cooke relied on natural law and the works of Bracton to say that a King always remains under God and the law. Also, scholars have suggested the creation of an international criminal court in the early stages of modern history, such as the proposal made by Gustav Moynier in 1872.
Many claims exist concerning the coining of the phrase ―crimes against humanity.‖ The French revolutionary Maximilien Robespiere, for instance, described the deposed King Louis XVI as a criminal ―envers l‘ humanite‖ (criminal against humanity). Almost a century later, on September 15, 1890, a minister –George Washington Williams- wrote a letter to the US Secretary of State, characterising the actions of King Leopold of Belgium in the Congo as crimes against humanity. The Unitarian minister, Theodore Parker, used the term in a flamboyant sermon rendered in his hometown of Boston in the context of abolitionist politics in 1854. Crimes against humanity however emerged from expressions such as ―the laws of humanity‖, which are traced back to the 1860s; an example is the St. Petersburg Declaration of 1868 which was proclaimed to limit the use of explosive or incendiary projectiles described as ―contrary to the laws of humanity‖.
Finally, Marten‘s Clause appeared in the preamble to the 1899 Hague Convention II and the 1907 Hague Convention IV and in many key international humanitarian law treaties onwards.
It is considered as the earliest identifiable legal foundation for crimes against humanity. In sum, the Clause states that ―populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience‖.
On 24 May 1915, the major winners of the World War I–Russia, French and
Britain–protested against Turkey‘s massacres of Armenians, as ―crimes against humanity‖ with extended responsibility to all members of the Ottoman government. However, this did not conclude in a judicial enforcement of crimes against humanity, due to the obstacles raised by some countries.
After World War I, the Treaty of Versailles summarized its results, with the creation of a tribunal to bring the former Emperor of Germany to trial. Tallat Pasha was considered to be the architect of the Armenian Genocide, and was convicted by a domestic
Turkish court for acts ―against humanity and civilization‖. This decision also signified the complete refusal of natural law and the domination of positivism, representing territoriality, sovereign immunity and non- interference in a foreign nation‘s affairs.
The allies tried to prosecute Turkish officials, with the accusation of ―deportations and massacres‖ against the Armenians. Turkey did not ratify the treaty of Sevres, signed on August 10, 1920, which mentioned the obligation to surrender the perpetrators of the Armenians‘ persecutions, and was eventually replaced by the Treaty of Lausanne of July 24, 1923, which included amnesty for offences committed between 1914 and 1922. This decision was largely political, as the victors were worried that a possible prosecution of criminals could rebound on their states where they systematically mistreated minorities.
Olugua, B.C, in his article entitled ―Domestication and Implementation of the Rome Statute of the International Criminal Court‖ vividly examined the conceptual section of the crime against humanity in relation to its interpretation and application and obligations of state parties for the purpose of domestication under the Rome Statute of the International Criminal Court. In this regard, the work of Olugua is found to be a good literature to this dissertation as it gives a general understanding to the theme of this research thereby considered useful in the introductory aspect of the work and other aspects relating domestication by state parties.
Luban, D., in his article entitled, ―A Theory of Crime against Humanity‖ examined the development of crime against humanity in International Law through international criminal tribunals (for recalling example the Nuremberg Tribunal of 1946). In this regard, Luban also postulated the conceptualization of the crime against humanity in a similar manner like Olugua but he adopted a different theoretical approach by recalling the efforts of tribunals in the fight against humanity even before the arrival of the International Criminal Court. In the light of this therefore, Luban‘s work (just like the work of Olugua) is considered relevant to introduction aspect of this dissertation for the purposes of general interest ending of the crime against humanity and its development in international jurisprudence.
Roger, C., in his book entitled, ―Prosecuting International Crimes: Selectivity and the International Criminal Law Regime‖ examine the prosecution of international crimes as an obligation in international order noting the fact that crimes against international law are committed by individuals and it is only by punishing those individuals that the provisions of international law could be enforced. Further, on the basis of selectivity and the international criminal law regime, attention must be given to crimes against humanity as a serious grade of international crime to be address. In this regard therefore, the work of Roger is captivating on the pence sanctions for those who commit the crimes against humanity as one of the objectives of the Rome Statute of the International Criminal Court which is certain to this dissertation.
Ladan in his book entailed: ―Materials and Cases on Public International‖ made an
overview of the Rome Statute of the International Criminal Court in relation to the obligations of state parties and issues in domestic implementation in Nigeria. On that note, generally Ladan concluded that the approach taken in Rome Statute reflects the fact that crimes against humanity are often committed against civilians in the absence of hostilities and that the seriousness of the crime is not affected by whether it is committed in peace or war time; or that the perpetrators have a discriminatory intent when committing a crime against humanity. Such crimes include enslavement, persecution, enforced disappearance, genocide and war crimes. Further, Ladan, considered the obligations of member states under the Rome Statue and general issue in domestic implementation of Rome Statute in Nigeria in relation to domestication process under the 1999
CFRN as amended. On this general note therefore, Ladan‘s work is considered relevant as it touches several aspects of this dissertation.
Bassiouni, M.C., in his article entitled: ―Crimes against Humanity in International Law‖ discussed, the meaning, nature and development of crime against humanity and he indicated measures needed to eradicate the commission, the crime against humanity in the international order by creating obligations on states procedures for the enforcement of the decision of the ICC.
Sadat L.N., The article demonstrates the central importance of Crimes Against Humanity
(CAH) prosecutions at the ad hoc international criminal tribunals and in the International
Criminal Court (ICC). It represents the first comprehensive and empirical assessment of what CAH charges accomplish as a matter of observable practice. This empirical analysis informs the construction of a new theory of CAH in modern international criminal law. The Article analyzes the early jurisprudence of the ICC and challenges the conventional wisdom that CAH must be interpreted unduly restrictively, with reference to Nuremberg in mind. Instead, CAH at the world‘s first permanent international criminal court must emerge from the shadow of Nuremberg — as the framers of the Statute intended it to do — and continue to develop as a contemporary response to widespread or systematic human rights violations against civilian populations.
Opinions in the Court‘s early case law unduly restricting the scope and application of CAH or proposing a return to the Nuremberg paradigm may have the effect of limiting the effectiveness of CAH charges at the ICC. This could render CAH at the ICC, like genocide at the ICTY, impotent not only as a basis for the post hoc punishment of offenders, but in terms of prevention and deterrence. The Article critiques this jurisprudence with a view towards developing a theory of CAH at the ICC that not only respects State sovereignty, but implements its mandate to prevent and punish ―unimaginable atrocities that deeply shock the conscience of humanity.‖
Heller K.J., in this article, the Rome Statute of the International Criminal Court is both inspiring and frustrating. On the one hand, by providing detailed definitions of the core international crimes, the possible modes of participation in those crimes, and the permissible grounds for excluding criminal responsibility, the Statute represents the international community’s most ambitious attempt to create a general and special part of international criminal law. On the other hand, most of the drafters of the Statute were diplomats who had no practical criminal law experience of any kind, much less academic expertise in international criminal law or comparative criminal law. As a result, the Rome Statute’s substantive provisions are often confusing, contradictory, and of uncertain application – an “unsystematic conglomeration from a variety of legal traditions,” as one scholar has memorably put it.
However, this research unlike the work of the authors considered is restrictively concerned on the measures needed for domestication in Nigeria and means of its practical implementation vis-à-vis the adequacy or otherwise of the current constitutive instruments on the subject matter in the country.
1.4 Scope of the Study
The study seeks to cover the development of the international legal framework in combating crimes against humanity from the end of the II world war in 1945 to the coming into force and implementation of Rome Statute of International Criminal Court. The scope of this study is limited to the analysis of the international legal foundation for the crimes against humanity and a review of issues, challenges and prospects in domestic implementation of Rome
Statute provisions relating to crimes against humanity in Nigeria.
1.5 Objectives of the Study
The objective of this research is to appraise the evolution of the legal framework of crime against humanity in International law with a view to:
a. Providing a conceptual discourse and definitional analysis of the crimes against humanity.
b. Examining the nature and scope of the international and regional instruments on the concept of crime against humanity by understanding the modern contours of the term crime against humanity.
c. Identifying possible challenges in the domestic implementation of the law of crimes against humanity in Nigeria.
1.6 Significance of the Study
The significance of this study is that it serve as an additional literature to the existing ones in creating awareness for the promotion of a better understanding of the crime against humanity and thus contribute to the prevention of such crimes by bringing to justice those who commit such crimes in Nigeria. By so doing, the public will be better informed and it will in turn contribute to guaranteeing lasting respect for and the enforcement of human rights and justice in Nigeria.
In addition, this dissertation will go along way to create awareness between legislators, policy makers, the judiciary, legal practitioners, students, relevant stakeholders and the general public at large on the need for the domestication of the Rome Statute by accelerating the draft
2012 Bill on the domestication of the Rome Statute of the ICC.
1.7 Research Methodology
Doctrinal approaches is to be adopted for this research.
The doctrinal approach involve the use of library based materials, and analysis of cases and statutory provisions such as books, journals, newspapers and documents such as the ICC statute which Nigeria is a signatory.
However, a comparative analysis of legal systems with a view to discovering the
similarities and differences of the two or more legal regimes being compared, and to aid in better understanding of a particular national or international legal regime wil be undertaken. Comparative analysis of domestic implementation of international law of crimes against humanity in selected Jurisdictions like the former Yugoslavia, Rwanda and Sierra Leone.
1.8 Organizational Layout
This research work is structured into five chapters as follows:
Chapter one examines the general introduction of the dissertation. Therein, the limits of the research and other formal introductory concepts of the research are defined for example, aims and objectives, justification of the research/study, literature review and etcetera. In other word, it focuses on research questions that this study is set out to answer on the concepts of crimes against humanity, its domestication in Nigeria, possible challenges in various constitutions of nations with particular reference to Nigeria.
Chapter two deals with the theoretical basis for the understanding of the concept of crime, right from the word go of human existence to the develop idea of public understanding of the meaning of crime.
Chapter three deals with the evolutionary concept of international criminal law and justice system relating to crimes against humanity.
Chapter four examines the Legal Framework on the Constitutive elements of Crimes against Humanity in International Law and also further examined the Domestic implementation of the international law of crimes against Humanity: Lessons from selected jurisdictions for Nigeria.
Chapter five makes an overview of the work in general by considering summary, findings on the research work and recommendations to the findings that have been made.
CHAPTER TWO
THE GENERAL THEORY OF CRIME
2.1 Introduction
This chapter seeks to analysis the theoretical basis for the understanding of the concept of crime right from the word go of human existence to the develop idea of public understanding of the meaning of crime. The study of this theoretical framework include analyzing jurisprudential theories that see crime as a consequence of development processes or stages, an occupation or the state one moves into and out of, or the consequences of positive learning by always malleable individuals—all suggest the desirability or necessity of following individuals over time. Other theories see crime as a consequence of relatively stable characteristics of people and the predictable situations and opportunities they experience. These theories do not presume that major changes in criminal activity are associated with entry into or exit from roles, institutions, or organizations. Such theories are therefore adequately tested at any point in the life course, the particular point selected by reference to expected distributions of the important variables. Accordingly, across settings, epochs, and types of data, involvement in crime rises steadily in middle adolescence, peaks at early adulthood, and then declines sharply thereafter. The age– crime curve was theorized to be invariant—that is, it could not be explained by other phenomena. In sum, all these are related to the criminality of human beings in several typology and consequences of the understanding of the meaning of the concept of crime as discussed below in this chapter
2.2 Meaning of the Concept Crime
The concept of crime involves the idea of a public as opposed to a private wrong with the consequent intervention between the criminal and injured party by an agency representing the community as whole. Crime is thus the international commission of an act deemed socially harmful; or dangerous and the reason for making any given act a crime is the public injury that would result from its frequent participation. The society therefore takes steps for its preventation by prescribing specific punishments for each crime.
i. The word ‗crime‘ is of origin viz; ‗Crimean‘ which means ‗charge‘ or‗ offence‘
Crime is a social fact. ii. The Waverly Encyclopedia defines it as, ―An act forbidden by law and for performing which the perpetrator is liable to punishment‖.3 iii. James Anthony Froude (1818-94) wrote, ―Crime is not punished as offence against God, but as prejudicial to society‖. iv. Sir John Hare (1844 – 1921) Explains, ―Crimes sometimes shock us too much: Vices always too little‖.
v. Dr. Gillian J.L. points out, ―More important is the feeling of danger to ourselves and our property than the criminal–induces‖. vi. Mr. Justin Millar contends that the crime is the commission or omission of act which the law forbids or commands under pain of punishment to be imposed by the State. vii. Watermark Says that customs and laws are based on moral ideas and that ‗crimes‘ are such modes of behavior as are regarded by society as crimes.8 viii. According to Adler, ‗Crime‘ is merely, ―an instance of behavior prohibited by
criminal law‖.9
ix. According to the Italian school of criminologists, crime is abnormal in so for as it is atavistic or pathological in its nature.
x. Halsbury defines crime as, ―an unlawful act or default, which is an offence against the public and which renders the perpetrator of the act or default liable to legal punishment‖.
xi. Sellin, T. regards crime as a deviation from or breach of, a conduct norm. This deviation or breach is punished by society by means of its sanction. But punishment is not only the criterion of value. Religion, art, education and other sociological agencies also reveal value. According to this definition, crime is an act in violation of the law an the criminal is a person who does an act in violation of the law.
xii. The concise Encyclopedia of crime and criminals, has defined ‗crime‘ thus: ―A crime is an act or default which prejudices the interests of the community and is forbidden by law under pain of punishment. It is an offence against the State, as contrasted with loot or a civil wrong, which is a violation of a right of an individual and which does not lead to punishment‖. xiii. Crime in international context-―crime is complex, multidimensional event that occurs when the law, offender on target (refers to a person in personal crime and or object in property) converge in time and place (such as a street, corner, address, building or street segment)‖.

xiv. Crime in Indian context-―Crime is a activity that involves breaking the law and
enforcements. xv. Meaning of crime in oxford dictionary-―an offence against an individual or the state
which is punishable by law.‖16 xvi. Crime-―An act committed or omitted in violation of law for bidding or commanding.‖ xvii. Gwyenn Nettle: – Clearly remarks ―Crime is work not added‖. To fully appreciate the import of this remark it is necessary to recognize that the term crime is also part of the scheme of classification. It constitutes a category of events that contains within it numerous subcategories. At the same time the category of crime is itself a
subcategory of a larger set of events.‖ xviii. Crime is phenomenon in human societies, according to Sociologist- Pris and
Durkheim, ―Criminality proceeds from the very nature of humanity itself, it is not transcendent but immanent.‖ Durkheim emphasized the point further when he says ―Crime is normal in human societies because the fundamental condition of social organization logically imply it‖.‖ A society exempt from crime would require a standardization of the moral concepts of all individuals, which is neither possible nor desirable‖.19 xix. Garofalo‘s ―natural‖ definition : crime is an immoral and harmful act that is regarded as criminal by public opinion because it is an ―injury to so much of the moral sense as
is represented by one or the other of the elementary altruistic sentiments of probity
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and pity. Moreover, the injury must wound these sentiments not in their superior and finer degrees, but in the average measure in which they are possessed by a community – a measure which is indispensable for the application of the individual to society‖. xx. Crime: activities that involve breaking the law. xxi. Crime, the intentional commission of an act usually deemed socially harmfully of dangerous and specifically defined, prohibited, and punishable under the criminal law. xxii. Conceptions of crime very so widely from culture to culture and change with time to such an extent that it is extremely difficult to name any specific act universally regarded as criminal.
Crime
i) Law An act that subjects the doer to legal punishment; the commission or omission of an act specifically forbidden or enjoined by public law.
ii) Any grave offense against morality or social older wickedness iniquity, see synonyms under ABOMINATION, offense.
Taking the foregoing together, a jurist defines crime as ―an act or omission, sinful or nonsinful, which a society or a study has of thought fit to punish or otherwise deal with under its laws for the time being in force. The different acts and or omissions so punishable under the law are known as ―Crimes‖.‖
In this modern age, sociologists have expanded that crime happens in the social structure only. They don‘t agree that a human being happens to be a criminal by birth. They also analytically put forth many social factors which induce human beings towards criminality by going against the system of social control.26
2.2.1 Causes of Crime
Criminologists have proved certain reasons leading to crime. According to them there are two groups of factors leading to crime
1) Ordinary factors.
2) Specific factors.
1. Ordinary Factors:
These factors affect the whole of the society. Further these ordinary factors are divided into four secondary factors. Those are 1) Geographical. 2) Sociological. 3) Physiological. 4)
Atmospheric.
i. Geographical Factors:
In the evolution of society the geographical elements play an important role. This has been accepted by historian‘s torsions and sociologists. A supporter of the school of geographical thinker‘s tradition, Mr. Huntington states that a child born in winter usually becomes less intelligent. Some of such children become criminals. The geographical elements affect the emotions and behavior of an individual. Many of the French, Italian and German criminologists have tried to show the relation between the features of geographical elements and the proportion of crimes. Mr. Lombroso has also prepared a calendar showing the occurrence of crimes in specific months of the year. According to him, child murders are proportionally more in the
period from January to April. In July, murders and total attacks are found to increase. Human

26
needs change according to the changes in seasons. e.g. in winter in the European countries, the primary (basic) needs increase and if there are obstacles in satisfying their needs, the individuals have a tendency to criminal acts.
―By geographical factors, we mean those factors which are connected with physical environment. The geographical setting governs the form of society. Due to geographical differences we find different types of culture and civilization in different geographical regions. The composition of population is closely connected with geographical conditions. Similarly deit, habbits and social organization always develop in accordance to geographical conditions. Therefore whenever there is any change in the geographical setting there is also change in society.‖
ii. Sociological Factors:
The number of crimes increases or decreases depending upon how far a society or a community is organized or divided. In a social group where migration, cultural differences, changes in the population and political instability prevail; there a conflict arises regarding the abatement of social rules. iii. Physiological Factors:
As a living being, man‘s physique, heredity and the functions of body glands are taken into consideration. In the opinion of Lombroso (a crime specialist) there is abnormality in the body and mind of a criminal right from his birth. Hence he becomes a criminallator in his life. A man of oppressive and bad tempered mentality becomes a criminal. Broadly speaking, an individual inherits some of the organic properties from the parents. We call these as hereditary qualities. This inherited behavioral property is mainly responsible for the criminal attitude.
Hereditary weakness and criminal attitude convert a man into a criminal. Mr. Dugdale, an American criminologist says that the life style of every human being is affected largely by the hereditary qualities. Hence, the consequent circumstances of hereditary qualities cause the future generations to be criminal minded continuously.
Some psychologists say that criminal behavior has its roots in the psychological set up of an individual. During the gradual psychological development of an individual some mental weaknesses take shape. These weaknesses become the causes of criminal behavior. Mental instability and criminality are closely related. Some psychiatrists have tried to correlate criminality with the abnormality in the nerves. Disappointment, conflict, feeling of criminality, mental shocks etc. one related with the human mental activities and they become responsible for the criminal behavior. Sociologists, Psychologists and Psychiatrists have deeply studied of human behavior. These stimuli are created from eternal circumstances.31
a. Circumstantial Elements
These are related with the criminality of human beings. The following circumstantial elements may be considered.
i) Family Circumstances
The family is looked upon as a powerful cause of forming good or bad personality developments. The very important task of a family is to socialize an individual and to impart social rules and to develop the individual culturally, so that the individual becomes a responsible citizen. But, under certain circumstance this family responsibility fails and the members of the family tend to become criminals.32

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ii) A Ruined Family
If in a family, the father and the mother are divorced, or dead, or living separately then such a family is in the ruins. The children of a such a family turn towards criminality. This has been proved from various researches conducted so far.
iii. The Size of the Family
A big or a small family is respectively denoted by the number of members in the family. More members make a big family and fewer members make a small family. Usually in a big family there will be difficulties regarding food and management. In such large families, generally children are neglected and such neglected children tend to become criminals. In these matters there have not been researcher showing a definite relation of criminality with the size of the family. Still, in the urban areas, children in the big families generally turn to criminal behavior. iv. Serial Placement among Brothers in a Family
Research has been conducted to show the probability of criminality of a brother by his servility among his brothers. Some criminologists of New York have conducted research in 1930 to give the aforesaid conclusions. Generally the brother in the 2nd place of servility tends to become a criminal. The last but one child does not generally have a criminal behavior. The youngest child may turn to criminal behavior as compare with the elder brothers.
v. Discontentedness in the Family
If the inter-relation between parents and children are not complacent, or instead of love, binding, sympathy, loyalty, c-operation belief, dedication there are conflict, alienation, disbelief, selfishness, unreasonable behavior, rivalry in the family then the members of the family especially the children behave in a dissatisfactory manner. From this, the criminal attitude
arises.35
vi. Fallen Family
If the responsible person or persons of a family are involved in drinking, extramarital relations, polygamy and criminality, the atmosphere in the family is not moralistic and such a family is known as a fallen family. In such a family, criminality of individuals or specially children is very probable. Such a family is unable to impart civilized life or behavior.
vii. Absence of Orderliness in the Family:
The most important duty of the family guardians is to be attentive towards the socially acceptable behavior of individuals and children in the family. They don‘t find time as they are involved in their own duties. Further, they don‘t have desire or they are ignorant and they have undue or over belief in their children. Whatever be the case, if the guardians don‘t care for the proper behavior of the children, then they will certainly turn towards criminal behavior.
viii. There is a proverb that “A man is recognized by the company he keeps”.36
This companionship and crime may be inter-related and that can be studied as under:
1. Two or more people in company commit crime
2. Innocent people may probably fall into the company of criminals.
3. During the period of imprisonment, a criminal comes in contact with senior criminals from whom the tricks to commit criminal acts are learnt.

3635 Ibid
In the beginning stage of criminal behavior, the criminal company lays the foundation of criminal behavior. As a result, an individual develops criminal behavior as his profession. Seeking for the techniques of crime and growth of mental attitude are the fruits of bad company. ix Living in disorganized company, in congestion and having immoral behavior in a heterogeneous community develop due to cinema. Disorganization breeds crime. Further, in the fast growing cities the increasing population is taken to be one of the prime factors in criminal activities.
x. Disorganized living under congested conditions, having immoral behavior with the movies to affect the behavior, the causes arise to result in criminal acts. That is to say, that the disorganized communities breed crime. Secondly, the increasing population in the urban areas is supposed to cause criminal behavior. Crimes occur more in thickly populated areas than in thinner populations of cities. Parents can‘t control the children who have to wander on roads. Such children take to criminal acts. Even, homes of too much congestion are sending to be the causes of crime. In the congested homes it is hard to keep up morality and orderly behavior. Those children, who spend their time on roads in playing, become victims of neglect by the elders and such children turn to criminal behavior. Such pockets of immoral behavior in communities are said to be responsible for the criminal act. The best examples are houses of cheaper and lower level entertainment and centers of betting games. These convert under age children into immoral acts. The established criminals frequently visit such centers of immoral behavior and here only the companions are naturally selected or here only the criminal

professions are started. The society doesn‘t accept these centers which breed immorality in the individuals.
xi. The Movies
The cinema houses have become the centers of breeding criminal behavior in children of smaller age. The movies instigate sexual behavior, and getting the advantage of darkness in the theater/theatre the ignorant children are drawn towards sexual acts. Many children commit theft to visit the cinema.
The easily susceplical week minds are criminally aroused by seeing the criminal scenes which easily impress the week minds. Sex appeals, adventurous inclinations may be stimulated or created. The viewer may be inspired to initiate what he or she saw on the screen. The remedy however lies in efficient censorship of films and their shows. The parents are also equally responsible in keeping vigilance over such shows and keep away their wards. The sexy erotic dance programmes and criminal pictures should be carefully and tactfully avoided. xii. Financial Conditions
Monitory conditions are taken to be crime breeding reasons in three ways. 1) Difference in social status due to monitory conditions cause criminal acts and the extent of such effect can be studied. Besides, the effects of various professions on criminal behavior can also be studied. Mr. Bonger, a Dutch criminologist says that the atmospheric elements are more responsible for criminal activity. He further says that the criminal activity is abundant in a disorganized society. In societies in which the important regulations are broken, the criminal activity forms a firm background.
However in many disorganized societies, individuals are found to stay free from criminal activities. And in well organized societies, some individuals may turn to criminal behavior. It is but obvious that the criminality is more probable in the disorganized societies, than the organized societies.
None can deny that for want of money and crime may be committed. Economic depressions along with poverty have tremendous influence in causation and commission of crime. The crime may be committed to achieve dishonest possession. In the process of acquisition, crime is the least thought off. If there is scope to make compensation to the aggrieved party while dealing with offender, the cases of dishonest acquisition may decrease to a great extent.
However, economic depression is lead to criminality every where and the percentage is more if the persons involved are of infirm character or weak will power. Of course, poverty it self is not necessarily a crime causing factor but there are other factors that commute to criminality. Hundreds of poor persons are there in many lauds and they are not at all crime minded; on the other hand there can be hundreds of wealthy persons who are acutely avaricious and therefore do not hesitate in indulging with criminal dealings where money is concerned. Among the educated white-collared people, there are offenders who have high positions and status in society and the multiple factor theory can apply to determine the true factors in the causation of crimes. As a side issue of unemployment, poverty plays a major role. Both unemployment and poverty are major social problems which cause sickness, either individually or communally and therefore there can be family and community disorganization. The poor have such a low income that it is very difficult foot them to manage hand to mouth. Further they have responsibilities of education, clothing, medical care and much more responsibilities. Due to the negative way of life, they are discouraged and may take recourse to improper functioning leading to delinquency and criminal behavior. In the undeveloped, backward countries where people are suffering from hunger and other wants have no other go than to tread criminal attitude of life. However, we can not say that all the, percent population is criminal, though poverty prevails in majority.
The depression in the economy of society gives rise to criminal acts and we find that unemployment also is a factor in the criminality of the people. In a capitalistic organization there can be crimes of property management and purchase. What we need to know is the correct interpretation of criminal factors. Do men steal because they are hungry? Similarly, do girls enter prostitution because they need? It is true that some men steal because they of their families are in need. Similarly, some girls take recourse to prostitution because of utter necessity. Unemployment and consequently distress doubtlessly put an individual under strain which is impossible for them to bear. Of course some people are there who in their deepest distress do not commit crime and virtuous girls do not fall a prey to prostitution though they are under heavy strain. So in most cases, economic factor affect indirectly rather than directly. Need becomes a circumstances under which certain people respond by antisocial conduct and act.
xiii. Social Factors
Conduct in life of a person is practically determined by the society in which be lives. Therefore, social conditions affect. The conduct of a person, just as the economic conditions affect it is evident that personality develops in the social environment. If these environments are of such a nature as to bring out the person inherent qualities which are already adapted to the present social life. A person begins to inhibit the present social characteristics by his antisocial conduct when we are under the impression that the person is behaving as per norms of the
society.
Anti-social conduct and we must know that such changes are due to the stimulation of circumstance in the society in which the person lives. The social factors which surround an individual can be classified broadly as under:
The home
The recreational agencies
The school
The community
Traditions, customs and beliefs
Frequently, social conditions within these areas are inimical to the development of a socially desirable personality‘s conduct. The mutual relations between parents and their children are extremely significant. Very strict or too lenient treatment parental discord in handling the children or favoritism over one or the other of the children have been closely observed by scholars to find they play a very important part in creating a criminal of a child. It is in the home that most of the behavior patterns are effectively set and therefore, better or worse children tern the values and attitudes which find expression in meeting the tests of later life by which they may be branded as virtuous or criminal.
ix Regional Variance
The proportionate frequency of criminality and the types of crime change depending upon the region or division of place. The main causal factor of criminal behavior is the structural variety in community. e.g. the judicial and social definitions are different from state to state. The
view point of the public towards crime or criminal behavior is different. There are different laws in different areas and they are implemented to control the behavior going against lawful life of a community. The traditional life of communities too tries to curb the criminal behavior. The queer minded persons are of various types depending upon the territorial difference. Even the types of crime are different in different communities of different areas. To illustrate, the border areas of a country may be considered. If groups of advanced class of people have entered the border area, the tendency to breach of law is upper most. The only reason is that there is no established administration of social or political community. Along the political border area there are frequent smuggling crimes. Normally the defense forces on both sides of the border are insufficient and this factor helps criminal‘s activities. Always there will be people who take advantage of
insufficient military forces on the border and they conduct criminal activities.
In cities we find more crimes and child criminals also occur abundantly. Because of the unstable management of communities, the expected moralistic behavior is not extant everywhere. In the deep inner parts of a corporation however the proportion of crime per head decreases. Hence, regional difference shows variant proportion of crime. It is interesting to note that in areas where there is abundance of finance, facilities and conveniences, we find more criminal behavior. Where as in areas affected by natural calamities, scarcity and epidemics, we do find crime but in lesser proportion.
Class, age, sex, race etc. affect the criminal behavior. For example, the difference of status in a community initiates criminal behavior, and such people come under legal procedures. As these people grow in age, their attitude towards criminality recedes. The criminal attitude is found more in men then in women. Again the reason is that different communities have different views towards women. Generally, the disciplinary control over women is stricter. Further,
women have limitations by nature over there physical conditions. They need protection; they are generally called as the weaker sex. Racial or national influence is found on criminality. Especially, in a heterogeneous society these qualities become. In a Nation, the outsiders are given the status of minority and they are looked upon differently regarding criminality.
These minority people have different problems to face. Thus, class, age, sex and race have their own impact over criminality and they are important in view of study.
xi Child employment and crime
The employment of children is looked upon as a cheaper labor, but it deprives the child from the ever necessary socializing influence and the loving company of their own family group and the schooling. Such child employment robs the child of its healthy growth in an environment congenial to it formation. The child may have to spend his childhood in contact with mal adjustment and dissatisfaction which is drudgery for him. The child is denied his rights to healthy growth and education. By curbing the child‘s physical growth and maintenance of good health and making him to work monotonously without proper education definitely make the child desire less for progress and he becomes a misfit in life.
xii. Population and Crime
The population of the world is becoming double every thirty five years, adding 70 million people every year. As a corollary cities are getting over crowded and ugly. Naturally this causes breeding of crime and disease. Unrestricted increase of industrial population is leading the breakdown the barrios of society. Hence the population explosion is a dilemma. We can compare the crime rate along with the growing population. Overcrowding definitely causes social, moral and mental problems.
Modern scientific investigations have revealed how even rats and cats degenerate in a crowded living condition. Thus, the population increase and urbanization have together caused serious problems in establishing healthy urban units and there is now a challenge to healthy human existence because of prostitution, hurting rioting, thefts looting decoity etc.
xiii. Unemployment
Unemployment and poverty are two major evils of society causing serious situations in personal, family and community disorganization. However, there are not new in the community. They are there since the down of civilization. One method or the other was devised to help those suffering from poverty, dependence and unemployed. So long as such needs of the society were possible to be controlled by easier means. But since the technological advancement, industrial revolution and new concepts of democracy, the problem unemployment has assumed new dimension. Poverty and richness are relative terms, because poverty in a society is determined by the mode of living and customs. That is, poverty is relative to the scale of living in a given group or country. One way of measuring poverty or richness in a country is the level of easily availability of goods and services necessary for consumption in a particular year. If there are handles or in capabilities due to incapacity of the individuals, adverse physical environments hindering economic factors defects in social organization then they are attributed to poverty.
This factor is found every where in all the countries. If the countries are industrially advanced, then the unemployment is of industry nature and the causes are relative to industrial training and specialization. However, the nature of unemployment differs from country to country depending upon the fields of industries the countries have. There can be seasonal unemployment, temporary unemployment, voluntary unemployment, cyclic unemployment, unemployment due to want funds, equipment etc. There can be involuntary unemployment also.
xiv Literacy
Literacy is defined as the ability to read and write with understanding if any language as per the senses of India. Literacy is human right a tool of empowerment as well as heart of basic education.
Literacy is to train individual for social life. It is safe character and formation of good habits. Literacy is one of the important indicators of social development. Literacy is human right a tool, empowerment and means for social and human development. Literacy always plays an important role to develop any society. Social morality and human values are depend upon
literacy.
2.3 Types of Crimes
All crimes are not similar. There are many types of different crimes. In some crimes, only one individual is involved and in some other crimes there are many persons who are organized for the purpose of crime. There are such bands of criminals working at the national level and even there are bands of criminals whose field of crime is international. It is not only the males to be criminals but there are females and children also in criminal acts. So, in order to classify crime we have to consider the personality of the criminal, his purpose and the type of his crime. Mr. Sutherland, a criminologist, considers the seriousness of crimes and divides crime broadly categories viz: 1) Ordinary types of crime, 2) serious types of crime.
Mr. Bojore , another expert, classifies crimes into four main types depending upon their purpose or objective viz:
1) Monetary crimes: Crimes done to get money. E.g. Theft, decoity, fraud, forgery, and contraband currency,
2) Sexual crimes: Rapes, homosexualities,
3) Political crimes: Espionage (international), treachery, treason,
4) Miscellaneous crimes: Crimes other than the above three types e.g. quarrels, fights, kidnapping or addiction to narcotics.
Also the crimes are classified on the basis of their antisocial or anti personal aspects as follows:
i) Murderous crimes
It is the prime need of an individual or community to be safe. Any behavior bringing this safety into danger may be called as murderous crime e.g. thrashing, enforcing starvation, causing physical, injuries, inducing some to suicide, victimizing, attempting to murder. ii) Crimes against moveable or immoveable possessions
Whether an individual or a community, the property or possessions are important. The basic human needs are food, shelter and clothing on which human welfare, establishment and safety depend. Naturally every community approves the legal ownership of possessions by individuals. Hence, theft, looting, fraud, forgery are crimes regarding possessions. Every human being has the right to protect the possessions. So, getting back the possessions from the criminals and punishing them were considered as personal issues. This tradition is even now found to exist among savage natives. But, this system is not practicable for all the persons and hence not effective always. On the other hand, vengeance and conflict arise and the peace and administration of the community are endangered. Therefore, crime against possessions is considered as logically coming under criminality. Individual or social welfare depends upon the peaceful running of family. Therefore, any behavior brining the family in danger is positively considered as crime e.g. Negligence of the parents regarding the care taking of their wards, breaking the traditional social concepts of marriages, having many husbands or many wives, extramarital relations, neglecting the helpless old. iii. Crimes against moral values
The every organization of each community is based on certain morals and breach of this moral faith by misbehavior is considered as crime. In various communities there are family relations, marital relations are governed by certain moral rules. Going against these rules is condemned. Publicly displaying the nudity and showing openly the love or body, attractions are definitely moral crimes. Lying, tempting for extramarital relation, Dee it, inducing for drug addiction or betting etc are also moral crimes. iv. Crimes against public peace and order
For the welfare and peaceful life, safety of the people in community is essential. Almost all the communities are alert in keeping their constituent institutes active and therefore they are attentive regarding safety and order within the community. Any behavior against there is considered as crime. Any political party‘s government basically considers safety and order in the community and any anti-communistic behavior is treated as political crime.

v. Crimes against Public Health
These crimes include the activities of interference or hindrance in 1) irradiation of the epidemics, 2) vaccination of immunizing lus, 3) selling of adulterated food, 4) selling of unauthorized medicines. vi. Crimes regarding Natural Resources
Just as the personal belongings and property are valuable, the natural resources are also very valuable to the community. The resources like, rivers, oceans, forests, mines, birds, cattle and other beasts and also human population are considered as the national property. Any behavior engaged in destroying the above items is considered as crime against national resources.
Considering the criminals in their social status, Mr. Sutherland gives two kinds of criminals.
1. Criminals of low status:
2. White collared criminals.
Individuals of low status in society may involve themselves in criminal activities. The reasons are obvious. Financial scarcity, the favourable crime provoking surroundings, ignorance, illiteracy, uncultured life etc. induce criminality.
White collared people have better financial conditions. They are well-bred and well educated having good company. Such persons take the disadvantage of their position and commit crimes. Such people are called as white collared criminals. During their professional life these respectable and high class people do commit crimes. Unnecessary, but the increasing unnatural needs and greediness make these people to manhandle the powers vested in them and thus they become white collared criminals.
Officers, clerks, professors, teachers, judges, doctors, M.P.S., M.L.A‘s, ministers, public workers, police, advocates etc are relatively enjoying social status and are respectable. Their duties carry responsibility. In order to carry out their duties they are vested with some authority. But many such people misuse their authoritative powers for their selfish motives. Consequently, the work carried out by such people is not properly done. That means, they commit the crime of not carrying out property their duties. Further more, they convert illegal acts into legal acts. So such people commit double crime at a time. E.g. Loans to be sanctioned to the needy are not sanctioned.
There might be a person applying for loan for his selfish purposes, and to get the loan sanctioned, he may bribe the loan sanctioning officer. Such examples are experienced more and more in the present days. The persons involved in such crimes are highly educated and managing higher positions. Therefore, they are looked upon with faith because these persons are generally well versed with the legal aspects. They know the loopholes and they have an established relation with higher authorities and politicians. Hence the crimes do not come up or they are suppressed and the involved persons are ready to escape from the crime accusation. Such criminals of the white collared class get a lot of easy money which is in turn utilized for more luxury like drinking, betting, buying costly furniture and gold ornaments and spending their time in super hotels.
These persons involve their money in anonymous investments to get more money. And this surplus money is used again to capture higher positions by bribing. The main aim is to earn more money by corruption. The persons concerned in higher promotions are kept pleased by bribing. The white collared people convert illegal operations into legal affairs by bribing and committing fraud. In addition, such criminal minded people support and help smuggling, corruption, misusing the authority, distributing false licenses or certificates and avoiding income tax or any legal tax. In this way the white collared criminals amass enormous amount of money which is utilized for their luxurious living. Such person doesn‘t have the social conscience, and there is no effective law to stop these persons, who always keep abusing the powers made available to them. These may be taken as the main reasons of white collared crimes.
vii. Other Relevant Category of Criminality Pattern in India
These categories are also relevant to other jurisdiction in International law. These represent different circumstances in criminal behavior patterns as follows.
a) Hooliganism
Under Indian Penal Code, Rule No. 146, the hooliganism is mentioned. It is considered as a crime of the disturbance of public peace, when an illegal or unlawful mob is formed and force is used, then the hooliganism crime is committed. Generally, the common objective of the mob is attained either individually or jointly by using force. In such an incident, every person in the mob is considered as a criminal.
b) Kidnapping
This crime includes the corporal torturing of human beings. There are two types of kidnapping.61

1) Kidnapping of minors
When any person kidnaps a try under 16 years and a girl under 18 years of age without the consent of parents or a person who induces elopement by some temptation, then this crime is said to be committed.
2) Kidnapping by using force
When a person kidnaps another person by using force, by compelling, by deceit or by tempting then this crime is said to be committed.
c) Murdering
Killing somebody intentionally comes under the crime of murdering. If the person committing the act knows that it so imminently dangerous that it must, in all probability cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
d) Deception
When a person causes another person to part with or hand over anything or article to a third person, or if a person induces by compulsion another person to consent for the possession of a thing or article by a third person, then the act of deception occurs.
e) Imitation
Contriving to imitate and prepare a similar from an original thing or copying out the original the crime of imitation takes place. Using false currency, coins or forged documents come under this crime. The main intention is to deceive.
f) Theft by house breaking
If there is illegal trespassing in a house for the purpose of theft, this crime occurs.64
g) Theft
If some article or possession of a person is stolen without the knowledge or permission of the owner, then this crime is committed.
h) Looting with the employment of force or beating
When there is an effort to steal and if during the actual operation of theft is a person is injured in the fight or expires, or if a person is intimidated illegally of death or refection and if then the theft is done, this act comes under looting. Thus, looting is stealing or using violence. i) Decoity
When five or more men come together and try to steal or to loot, this activity comes under decoity.
j) Dowry death
Where the death of a women is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her mairrage and it is shown that soon before her death she was subjected to currently or harrashment by her husband or any relative of her husband for , or in connection with, any demand of dowry, such death shall be called ―dowry death‖.
k) Rape
Man is said to commit ―Rape‖ who except in the case hereinafter excepted has sexual intercourse with a women under circumstances.69

l) Hurt
Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt, in this wise causing hurt is a crime that may even result in to murder.
The foregoing clearly shows the jurisprudential issues involved in the understanding of the concept of crime as a diverse concept with various theoretical framework which automatically includes among others, crimes against humanity which is the major concern of this dissertation.
CHAPTER THREE
EVOLUTION OF LAW OF CRIMES AGAINST HUMANITY
3.1 Introduction
Crimes against humanity, as defined by the Rome Statute of the International Criminal Court Explanatory Memorandum, “are particularly odious offenses in that they constitute a serious attack on human dignity or grave humiliation or a degradation of human beings.” They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. Murder; extermination; torture; rape; political, racial, or religious persecution; and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. Isolated inhumane acts of this nature may constitute grave infringements of human rights, or depending on the circumstances war crimes, but are not classified as crimes against humanity.
3.2 Historical Development of the Concept of Crimes against Humanity
In 1860 the American National Republican Convention included in their electoral platform, on which Abraham Lincoln ran for President, the following statement: “… We brand the recent re-opening of the African slave trade, under the cover of our national flag, aided by perversions of judicial power, as a crime against humanity”. In 1890, George Washington
Williams used the phrase to describe the treatment of Africans in the Congo Free State under King Leopold II of Belgium. Another very significant early use of the phrase “crimes against humanity” came during the I World War when, on May 24, 1915, the Allies, Britain, France, and the Russian Empire, jointly issued a statement explicitly announcing, for the first time, the commission of a “crime against humanity” in response to the Armenian Genocide and warned of personal responsibility for members of the Ottoman Government and their agents.4 At the conclusion of the war, an international war crimes commission recommended the creation of a tribunal to try “violations of the laws of humanity”. However, the US representative objected to references to “law of humanity” as being imprecise and insufficiently developed at that time and the concept was not pursued.
3.2.1 Nuremberg trials
In the aftermath of the II World War, the London Charter of the International Military
Tribunal was the decree that set down the laws and procedures by which the post-War Nuremberg trials were to be conducted. The drafters of this document were faced with the problem of how to respond to the Holocaust and grave crimes committed by the Nazi regime. A traditional understanding of war crimes gave no provision for crimes committed by a power on its own citizens. Therefore, Article 6 of the Charter was drafted to include not only traditional war crimes and crimes against peace, but in paragraph 6 (c) Crimes Against Humanity, defined
as:
Murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

In the Judgment of the International Military Tribunal for the Trial of German Major War
Criminals it was also stated:
The Tribunal therefore cannot make a general declaration that the acts before 1939 were crimes against humanity within the meaning of the Charter, but from the beginning of the war in 1939 war crimes were committed on a vast scale, which were also crimes against humanity; and insofar as the inhumane acts charged in the Indictment, and committed after the beginning of the war, did not constitute war crimes, they were all committed in execution of, or in connection with, the aggressive war, and therefore constituted crimes against humanity.

3.2.2 Tokyo trials
The International Military Tribunal for the Far East (IMTFE), also known as the Tokyo
Trial, was convened to try the leaders of the Empire of Japan for three types of crimes: “Class A” (crimes against peace), “Class B” (war crimes), and “Class C” (crimes against humanity), committed during the II World War.
The legal basis for the trial was established by the Charter of the International Military Tribunal for the Far East (CIMTFE) that was proclaimed on 19 January 1946. The tribunal convened on May 3, 1946, and was adjourned on November 12, 1948.
A panel of eleven judges presided over the IMTFE, one each from victorious Allied powers (United States, Republic of China, Soviet Union, United Kingdom, the Netherlands, Provisional Government of the French Republic, Australia, New Zealand, Canada, British India, and the Philippines).
In the Tokyo Trial, Crimes against Humanity (Class C) was not applied for any suspect. Prosecutions related to the Nanking Massacre were categorised as infringements upon the Laws of War.
War crimes charges against more junior personnel were dealt with separately, in other cities throughout Far East Asia, such as the Nanjing War Crimes Tribunal and the Khabarovsk
War Crimes Trials.
3.2.3 Apartheid
The systematic persecution of one racial group by another, such as occurred during the
South African apartheid government, was recognized as a crime against humanity by the United Nations General Assembly in 1976. The Charter of the United Nations (Article 13, 14, 15) makes actions of the General Assembly advisory to the Security Council. In regard to apartheid in particular, the UN General Assembly has not made any findings, nor have apartheid-related trials for crimes against humanity been conducted.
3.2.4 United Nations
The United Nations has been primarily responsible for the prosecution of crimes against humanity since it was chartered in 1948. The International Criminal Court (ICC) was organized by the Rome Statute and the UN has delegated several crimes against humanity cases to the ICC.13 Because these cases were referred to the ICC by the UN, the ICC has broad authority and jurisdiction for these cases. The ICC acting without a UN referral lacks the broad jurisdiction to
prosecute crimes against humanity, and cannot prosecute many cases, particularly if they occur outside of ICC-member nations. The most recent 2005 UN referral to the ICC of Darfur resulted in an indictment of Sudanese President Omar al-Bashir for genocide, crimes against humanity and war crimes in 2008. The first person to be handed over to the ICC was Thomas Lubanga. He was convicted on 14 March 2012 and on 10 July 2012 was sentenced to 14 years imprisonment, pending appeal. The ICC is still seeking Joseph Kony. When the ICC President reported to the UN regarding its progress handling these crimes against humanity case, Judge Phillipe Kirsch said “The Court does not have the power to arrest these persons. That is the responsibility of States and other actors. Without arrests, there can be no trials. The UN has not referred any further crimes against humanity cases to the ICC since March 2005.
A report on the 2008-9 Gaza War by Richard Goldstone accused Palestinian and Israeli forces of possibly committing a crime against humanity. In 2011, Goldstone said that he no longer believed that Israeli forces had targeted civilians or committed a crime against humanity.
a. UN Security Council
UN Security Council Resolution 1674, adopted by the United Nations Security Council on 28 April 2006, “reaffirms the provisions of paragraphs 138 and 139 of the 2005 World
Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity”. The resolution commits the Council to action to protect civilians in armed conflict.
In 2008 the U.N. Security Council adopted resolution 1820, which noted that ―rape and other forms of sexual violence can constitute war crimes, crimes against humanity or a constitutive act with respect to genocide‖.
b. International Criminal Court
In 2002, the International Criminal Court (ICC) was established in The Hague (Netherlands) and the Rome Statute provides for the ICC to have jurisdiction over genocide, crimes against humanity and war crimes. The definition of what is a “crime against humanity” for ICC proceedings has significantly broadened from its original legal definition or that used by the UN, and Article 7 of the treaty stated that:
For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

3.2.5 Council of Europe
The Committee of Ministers of the Council of Europe on 30 April 2002 issued a recommendation to the member states, on the protection of women against violence. In the section “Additional measures concerning violence in conflict and post-conflict situations”, states in paragraph 69 that member states should: “penalize rape, sexual slavery, forced pregnancy, enforced sterilization or any other form of sexual violence of comparable gravity as an intolerable violation of human rights, as crimes against humanity and, when committed in the context of an armed conflict, as war crimes;”
In the Explanatory Memorandum on this recommendation when considering paragraph
69:
Reference should be made to the Statute of the International Criminal Tribunal adopted in Rome in July 1998. Article 7 of the Statute defines rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence of comparable gravity, as crimes against humanity. Furthermore, Article 8 of the Statute defines rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence as a serious breach of the
Geneva Conventions and as war crimes.

3.3 Crimes Against Humanity under the Rome Statute of the ICC
The chapeau of Article 7, paragraph 1 of the ICC Statute confirms that, “for the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” The important features of this chapeau are:
1. The absence of a requirement of a nexus to armed conflict
2. The absence of a requirement of a discriminatory motive
3. The “wide- spread or systematic attack” criterion, and
4. The element of mens rea.
The above are discussed as follows:
3.3.1 Nexus to Armed Conflict: A minority of delegations participating in the Rome Conference strongly felt that crimes against humanity could be committed only in the context of an armed conflict. However, the majority of delegations believed that such a limitation would have rendered crimes against humanity largely redundant, as they would have been subsumed in most cases within the definition of “war crimes.” In the view of the majority, such a restriction would have been inconsistent with post-Nuremberg developments, as observed in statements of the International Law Commission (ILC), the ICTY and other commentators and reflected in instruments addressing specific crimes against humanity, such as the Genocide Convention and the Apartheid Convention.
One of the most important features of the definition in the ICC statute is that it makes no reference to a nexus to armed conflict, affirming that crimes against humanity can occur not only during armed conflict but also during times of peace or civil strife. This outcome was essential to the practical effectiveness of the ICC in responding to large- scale atrocities committed by governments against their own populations.
3.3.2 Discriminatory Motive: Another difficult issue in the negotiations was whether the definition should require a discriminatory motive, i.e., that the crime be committed on national, political, ethnic, racial or religious grounds. All participants agreed that the specific crime of persecution required a discriminatory motive (as discrimination is the essence of the crime of persecution), but the majority maintained that not all crimes against humanity required a discriminatory motive. While the Nuremberg Charter could be construed as requiring a discriminatory motive for all crimes against humanity, that interpretation has been generally rejected and the dominant view is that the discriminatory motive is relevant only to the crime of persecution. Nevertheless, such a requirement did appear in the ICTR Statute, and, although the ICTY Statute contains no such requirement, it was also applied by the ICTY in the Tadic opinion and judgment because of statements by members of the Security Council and a reference in the report in which the Secretary-General submitted the ICTY Statute. In adopting this approach, however, ICTY Trial Chamber II expressly observed that the requirement does not appear to be supported by the relevant international instruments, such as the Nuremberg and Tokyo Charters, the Allied Control Council Law No. 10, the Genocide Convention, the Apartheid Convention and the ILC draft Code of Crimes.
The negotiations in Rome produced agreement that a discriminatory motive is not an element required for all crimes against humanity. This approach avoids the imposition of an onerous and unnecessary burden on the prosecution. Moreover, the requirement of a discriminatory motive, particularly when coupled with a closed list of prohibited grounds, could have resulted in the inadvertent exclusion of some very serious crimes against humanity.
3.3.3 Widespread or Systematic Attack: It was agreed by all participants at the Rome Conference that not every inhumane act amounts to a “crime against humanity,” and that a stringent threshold test is required. Delegations readily adopted two terms familiar from Tribunal jurisprudence and other sources, namely, the qualifiers “widespread” and “systematic.” The term “widespread” requires large-scale action involving a substantial number of victims, whereas the term “systematic” requires a high degree of orchestration and methodical planning.
The most controversial and difficult issue in the negotiations on the definition of “crimes against humanity” was whether these qualifiers should be disjunctive (i.e., widespread or systematic) or conjunctive (i.e., widespread and systematic). During the negotiations, a contingent composed predominantly of members of the “like-minded group” argued that a disjunctive test had already been established in existing authorities. For example, the ICTR Statute requires that the inhumane acts be committed “as part of a widespread or systematic attack against any civilian population.”
On the other hand, another sizable contingent, including some permanent members of the Security Council and many delegations from the Arab Group and the Asian Group, pointed out that, as a practical matter, a disjunctive test would be over inclusive. For example, a legitimate question was raised whether the “widespread” commission of crimes should be sufficient, since a spontaneous wave of widespread, but completely unrelated crimes does not constitute a “crime against humanity” under existing authorities.
Fortunately, a solution was found to overcome this seemingly irreconcilable divide, as it was successfully argued that the legitimate concerns about a disjunctive test were already addressed within the concept of an “attack directed against any civilian population,” as will be explained in the following paragraphs. The contingent favoring the conjunctive test was willing to accept this argument but wanted the understanding spelled out in the statute. Thus was born subparagraph 2(a) of Article 7, which defines an “attack directed against any civilian population” as “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.” Subparagraph 2(a) draws upon various authorities to meet the legitimate concerns raised, by affirming that an “attack directed against any civilian population” involves some degree of scale, as well as a policy element, as is discussed below.
The plain meaning of the term “attack directed against any civilian population” implies some element of scale. This understanding is confirmed by the early authorities, such as the 1948 report of the UN War Crimes Commission. More recently, the ICTY held that the term “‘directed against any civilian population’ ensures that what is to be alleged will not be one particular act but, instead, a course of conduct.”35 Likewise, in the Tadic opinion and judgment, the ICTY held that the term “population” “is intended to imply crimes of a collective nature and thus exclude single or isolated acts.”36 This is now reflected in the requirement in subparagraph 2(a) of “a course of conduct involving the multiple commission of acts referred to in paragraph
1.‖
Two points must be emphasized here. The first is that this test does not reintroduce the “widespread” criterion as a mandatory requirement in all cases. “Widespread” is a high- threshold test, requiring a substantial number of victims and “massive, frequent, large- scale action,” whereas the term “course of conduct” and the reference to multiple acts were regarded as presenting a lower threshold. The second point is that it need not be proven that the accused personally committed multiple offenses; an accused is criminally liable for a single inhumane act (e.g., murder), provided that the act was committed as part of the broader attack.
The plain meaning of the phrase “attack directed against any civilian population” also implies an element of planning or direction (the “policy element”). The compromise reached in Rome was made possible by the explicit recognition of this element. Many observers would have preferred not to recognize the policy element explicitly, for fear of making prosecution more difficult, but the applicability of the policy element is supported by the bulk of authority since
Nuremberg. The drafting history of the Nuremberg Charter and the pronouncements of the Nuremberg Tribunal underscore the focus on the “policy of atrocities and persecutions against
civilian populations,” also described as a “policy of terror” and a “policy of persecution, repression and murder of civilians.” In addition, the jurisprudence of subsequent military tribunals reveals that a policy element was a requisite for crimes against humanity.
This policy element has subsequently been reflected in the work of the ILC, the decisions of the ICTY and the writings of jurists. The ILC draft Code of Crimes requires that all crimes against humanity must be “instigated or directed by a Government or by any organization or group.”43 The ILC noted that it is this direction or instigation that “gives the act its great dimension and makes it a crime against humanity.” The ICTY, when interpreting the phrase “directed against any civilian population,” confirmed that “there must be some form of a governmental, organizational or group policy to commit these acts.” Virginia Morris and Michael Scharf, in the Insider’s Guide to the International Criminal Tribunal for the Former
Yugoslavia, observe that the phrase “directed against any civilian population” requires a
“systematic plan or general policy.” M. Cherif Bassiouni, in his leading text on the subject, Crimes against Humanity in International Criminal Law, notes that the policy element is “the essential characteristic of ‘crimes against humanity,”‘ giving these otherwise domestic crimes the requisite “international element.”47
The policy element of crimes against humanity is also affirmed by decisions of national courts. For example, the French Cour de Cassation in the Barbie and Touvier cases required that the criminal acts be affiliated with or accomplished in the name of “a state practicing a policy of ideological hegemony.” The Netherlands Hoge Raad in the Menten case held that “the concept of ‘crimes against humanity’ also requires . .. that the crimes in question form part of a system based on terror or constitute a link in a consciously pursued policy directed against particular groups of peoples.” Likewise, the Supreme Court of Canada in the Finta case held that “[w] hat distinguishes a crime against humanity from any other criminal offence under the Canadian Criminal Code is that the cruel and terrible actions which are essential elements of the offence were undertaken in pursuance of a policy of discrimination or persecution of an identifiable group or race.”
Thus, there is ample authority recognizing the policy element of crimes against humanity. Some commentators have persuasively argued against the policy element that has appeared in previous authorities, and in particular the supposed requirement of an “official policy of discrimination.” Fortunately, the ICC definition overcomes many of these objections, as it is more inclusive than some of the authorities just noted. First, Article 7 does not require a discriminatory policy and, second, Article 7 does not require an official (i.e., state) policy. The first point was addressed above in the discussion on “discriminatory motive,” but the second warrants specific comment here.
As the ICTY has correctly noted, in the past “the traditional conception was, in fact, not only that a policy must be present but that the policy must be that of a State.” Today, however, the dominant view among commentators is that customary international law has evolved in such a way that reference only to a state policy would be too restrictive. Nevertheless, some degree of organization is still required. For example, the ICTY has affirmed that crimes against humanity “need not be related to a policy established at a State level, in the conventional sense of the term,” but “they cannot be the work of isolated individuals alone.” The Tadic opinion and judgment acknowledges that the entity behind the policy could be an organization with de facto control over territory, and leaves open the possibility that other organizations might meet the test as well. To reflect these developments, the delegations at the Rome Conference made reference to a state or organizational policy.55
It must be emphasized that recognition of the policy element does not reintroduce the “systematic” criterion as a mandatory requirement in all cases. The term “systematic” requires a very high degree of organization or orchestration, and has been interpreted by the ICTR as meaning “thoroughly organized and following a regular pattern on the basis of a common policy involving substantial public or private resources.” In contrast, the term “policy” is much more flexible; for example, in the Tadic opinion and judgment, the ICTY noted that a policy need not be formalized. Thus, it is likely that, for example, proof of radio broadcasts advocating mass murder would be adequate proof of a “policy.” In addition, the Tadic opinion and judgment suggests that the existence of a policy can in some circumstances reasonably be deduced from the manner in which the acts take place.
i. Clarifying the Term “Any Civilian Population”: The phrase “any civilian population” in the chapeau of Article 7, paragraph 1, and subparagraph 2(a) deserves specific comment. First, the term “any” confirms the well- established principle that the civilians need not be nationals of a foreign power; all civilians are protected. The term “civilian” excludes attacks against armed forces, although there is jurisprudence moderating this point. The term “population” reflects the collective nature of the object of the attack, as was discussed above.
The test resulting from paragraph 1 and subparagraph 2(a) of Article 7 reflects a middle ground between a conjunctive test (widespread and systematic), which was clearly too restrictive, and an unqualified disjunctive test (widespread or systematic), which was considered too expensive. The text adopts the previously recognized threshold test of a “widespread or systematic” attack, but defines “attack,” on the basis of relevant authorities, to alleviate concerns about an unqualified disjunctive test.
As a result, the prosecution must establish an “attack directed against any civilian population,” which involves multiple acts and a policy element (a conjunctive but low threshold test), and show that this attack was either widespread or systematic (higher threshold but disjunctive alternatives). If the prosecutor chooses to prove the “wide- spread” element, the concern about completely unrelated acts is addressed, because of the policy element. If the prosecutor chooses to prove the “systematic” element, some element of scale must still be shown before ICC jurisdiction is warranted, because a course of conduct involving multiple crimes is required.
3.3.4 The Mental Element of the Crime against Humanity: Mens rea
The definition in the ICC statute confirms that the accused, while not necessarily responsible for the overarching attack against the civilian population, must at least be aware of the attack. Some observers had suggested that such knowledge should not be required. On this view, the existence of the attack against a civilian population would simply be a jurisdictional hurdle; once this hurdle is overcome, an accused could be convicted of a crime against humanity even if unaware of the overall attack. However, in the view of this author, the approach taken at the Rome Conference is more consistent with fundamental principles of criminal law. The obligation of the prosecution to prove all elements of crimes, including the mental elements, has been described as the “golden thread” of criminal law. The connection to a widespread or systematic attack is the essential and central element that raises an “ordinary” crime to one of the most serious crimes known to humanity. To convict a person of this most serious international crime, if the person was truly unaware of this essential and central element, would violate the principle actus non facit reum nisi mens sit rea. Moreover, the obligation to prove all mental elements does not impose an inappropriate burden on the prosecution. Given the inescapable notoriety of any widespread or systematic attack against a civilian population, it is difficult to imagine a situation where a person could commit a murder (for example) as part of such an attack while credibly claiming to have been completely unaware of that attack.65 If such a case were to occur, however, the accused would have the mens rea for murder, but not for the far more serious charge of a “crime against humanity.”66
3.4 The Enumerated Acts of the Crime
The chapeau of Article 7 sets out the conditions in which the enumerated acts are elevated from ordinary crimes to “crimes against humanity.” The acts enumerated in subparagraphs 1(a) to (k) of Article 7 are murder, extermination, enslavement, deportation, imprisonment, torture, rape, persecution, enforced disappearance, apartheid and other inhumane acts.67 For most of the enumerated acts, several delegations insisted on additional provisions that clarify these terms. The clarifications in paragraph 2 of Article 7 are drawn from various sources.68

65 As noted above, a single inhumane act (for example, a murder) by the accused can suffice to establish a crime against humanity, provided that the requirements of the chapeau are met. See op. cit.
66 A similar conclusion was reached by the Supreme Court of Canada in the Finta case, following a review of relevant jurisprudence:
These cases make it clear that in order to constitute a crime against humanity. . . there must be an element of subjective knowledge on the part of the accused of the factual conditions which render the actions a crime against humanity.
… The mental element of a crime against humanity must involve an awareness of the facts or circumstances which would bring the acts within the definition of a crimes against humanity.
Regina v. Finta, [1994] 1 S.C.R. 701, 819. The same approach was adopted by the ICTY in the Tadic Opinion and Judgment, op.cit paras. 658-59, 36 ILM at 946.
67 Murder, extermination, enslavement, deportation, persecution and other inhumane acts appeared in the Nuremberg and Tokyo Charters. Rape, imprisonment and torture were added in Control Council Law No. 10 to form a list that has been accepted as reflecting customary international law; that same list appears in the ICTY and ICTR Statutes.
68For example, the Prosecutor v. Akayesu, op. cit; United Nations War Crimes Commission Report, op. cit.
3.4.1 Murder
The term “murder” was considered to be sufficiently understood by reference to the applicable sources of law, and therefore not to require additional clarification. To preclude an inappropriately restrictive interpretation of the term “imprisonment,” sub- paragraph 1(e) includes reference to “other severe deprivation of physical liberty.” Paragraph 2 provides further clarification of the provisions on extermination, enslavement, deportation and torture. The classical reference to “rape” was expanded and clarified in subparagraph 1 (g), which refers to “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity.” This provision confirms that these acts, which have persisted in history, are inhumane acts encompassed within the definition of crimes against humanity.
The definition of persecution, the recognition of enforced disappearance and apartheid, and the definition of “other inhumane acts” are of particular interest in the evolution of crimes against humanity and deserve more detailed comment.
3.4.2 Persecution
Persecution is the “intentional and severe deprivation of fundamental rights contrary to international law” against “any identifiable group or collectivity” on prohibited discriminatory grounds. Although the crime of persecution is recognized in the major precedents (the Nuremberg and Tokyo Charters and the ICTY and ICTR Statutes), it was not defined, and many delegations were deeply concerned about the inclusion of this crime for fear that any discriminatory practices could be characterized as “crimes against humanity” by an activist court. All delegations agreed that the court’s jurisdiction relates to serious violations of international criminal law, not international human rights law. To address the concerns raised about this crime, it was emphasized that, while discrimination may not be criminal, extreme forms amounting to deliberate persecution clearly are criminal. It was eventually agreed that the recognition of “persecution” as a crime was justified by the deliberate severity of the violations, the intentional discrimination on prohibited grounds, and the connection with other enumerated
acts.
The Nuremberg Charter and the ICTY and ICTR Statutes include persecution on “political, racial or religious grounds.” As delegations wished to take into account the evolution of international norms, the ICC statute builds on these precedents by adding national, ethnic and gender grounds, which were drawn from the definition in the ICTR Statute.
While many delegations would have preferred an open-ended list of grounds, this approach was strongly resisted on the basis that it would be too imprecise and would violate the principle of legality, since the statute would be an instrument of criminal law and not a declaratory human rights instrument. A compromise was eventually reached by including an open-ended, but very high-threshold provision, which refers to “other grounds that are universally recognized as impermissible under international law.”80 Thus, if any other prohibited grounds of discrimination become clearly established in international law, they can automatically be incorporated without amending the statute. Universal recognition, however, is a very high threshold; consequently, amendment of the statute to reflect future developments remains a
possibility.
Another difficult issue at the Rome negotiations was whether the crime of persecution could be committed only in the context of other crimes; i.e., whether a connection to another crime was a prerequisite for “persecution.” Under the Nuremberg Charter, persecution was only justiciable where a connection was established between the persecution and other crimes in that instrument. This “connection” requirement appeared again in the Tokyo Charter but not in subsequent instruments, such as Control Council Law No. 10, or more recently, the ICTY and ICTR Statutes. Nevertheless, many delegations strongly felt that such a connection was a necessary element of the crime of persecution, because of the vague and potentially elastic nature of this crime and the need to ensure an appropriate focus on its criminal nature. This position was not without merit; as Bassiouni has noted, “there is no crime known by the label ‘persecution’ in the world’s major criminal justice systems, nor is there an international instrument that criminalizes it,” and therefore “a reasonable nexus between the discriminatory policy and existing international crimes is needed.”
Other delegations were concerned that a requirement of a connection to other crimes would mean that persecution would be only an auxiliary offense, to be used as an additional charge or aggravating factor but never as a crime in itself.
The compromise reached at the Rome Conference was to require a connection between persecution and any other crime within the jurisdiction of the ICC or any act referred to in paragraph 1 (i.e., other inhumane acts). This latter phrase ensures that persecution will not be merely an auxiliary offense or aggravating factor. It is not necessary to demonstrate that the “connected” inhumane acts were committed on a widespread or systematic basis; it will suffice to show a connection between the persecution and any instance of murder, torture, rape or other inhumane act, which need not amount to a crime against humanity in its own right. While it could be argued that such a connection was no longer required in customary international law, its inclusion helped emphasize the criminal nature of persecution and bolstered support for inclusion of the crime. In practical terms, the requirement should not prove unduly restrictive, as a quick review of historical acts of persecution shows that persecution is inevitably accompanied by such inhumane acts.
3.4.3 Enforced Disappearance and Apartheid
The delegations participating in the Rome Conference agreed that the purpose of the deliberations on the definition of crimes was to identify existing customary international law and not to progressively develop the law. It was also agreed that this approach did not necessitate the reproduction of the list of inhumane acts that appeared in the Nuremberg Charter fifty years ago. Every formulation since Nuremberg has concluded its list of enumerated inhumane acts with the general phrase “other inhumane acts.” Many delegations pressed for specific acknowledgment of particular inhumane acts that have been of special concern to the international community. While such references could have been placed in the final subparagraph (“other inhumane acts,” discussed below), delegates chose to include these references in separate subparagraphs.
Delegations were able to agree that the crime of apartheid was an inhumane act that resembled the other enumerated acts in character and gravity, and that warranted a specific reference, particularly as it had been identified as a crime against humanity in international instruments. Likewise, delegations agreed that enforced disappearance, also previously identified as a crime against humanity in international instruments, is a specific acknowledgment of the prevalence of the crime .
The view that enforced disappearance clearly co nstitutes an “inhumane act” that would have fallen within previous definitions of crimes against humanity (all of which included “other inhumane acts”) is bolstered by the fact that the Nuremberg Tribunal found that the Nazi practice of enforced disappearance constituted a crime against humanity as follows88:
On 7 December 1941 Hitler issued the directive since known as the “Nacht und Nebel Erlass” (Night and Fog decree), under which persons who committed offenses against the Reich …were to be taken secretly to Germany …. After these civilians arrived in Germany, no word of them was permitted to reach the country from which they came, or their relatives; even in cases when they died awaiting trial the families were not informed, the purpose being to create anxiety in the minds of the family of the arrested person. Hitler’s purpose in issuing this decree was stated by the Defendant Keitel in a covering letter, dated 12 December 1941, to be “Efficient and enduring intimidation can only be achieved either by capital punishment or by measures by which the relatives of the criminal and the population do not know the fate of the criminal.”

3.4.4 Other Inhumane Acts
As the final heading, “other inhumane acts,” appeared in the major precedents (including the
Nuremberg Charter, the Tokyo Charter, Control Council Law No. 10, and the ICTY and ICTR Statutes), many delegations felt strongly that this provision must be preserved. Other delegations raised grave concerns about its imprecise and open-ended nature, which was considered inappropriate in a criminal law instrument. This argument was not without merit. Indeed, there is no crime by that label under other sources of international or national law, which further deprives the term of precision and juridical pedigree.
The solution was to agree to include this final heading but to provide a clarifying threshold, specifying that the acts must be of a character similar to that of the other enumerated acts and must intentionally cause great suffering or serious injury to mental or physical health. Unlawful human experimentation and particularly violent assaults were two possibilities considered likely to fall within this heading.
3.5 The Influence of Nuremberg Conception of Crimes Against Humanity on the Development of International Criminal Law
The Nuremberg Principles and the conception of Crimes Against Humanity did not only affect the formation of International War Crimes Tribunals. Its impact caused several effects beyond creating a mere term to be used in military tribunals and political purposes. One of these effects was the United Nations Resolution 96 (1), drawn up on the 11th of December 1946, stating that ―…genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilized world.‖ Deriving from the Nuremberg concept of Crimes Against Humanity, and the crimes perpetrated by the Nazis in their total war, this declaration was finally embodied two years later in the Convention on the Prevention and Punishment of the Crime of Genocide of 1948. This convention criminalized genocide and related activities in the international sphere, and the convention itself is heavily influenced by many of the Nuremberg principles. It also extended this crime against humanity beyond periods of war and the specific scenario of the Second World War. The Genocide Convention was not, per se, a major advancement in the upholding of international human rights, especially considering its provision in Articles V and VI, which provide that states should regulate their legal systems accordingly to criminalize such acts in the domestic sphere, and that those found guilty of the crime of genocide should be tried in the courts of the country where the acts were committed in absence of a competent international tribunal with consented jurisdiction over the matter, and many academics have shown to be quite skeptical about its practical possibilities. However, on the theoretical arena the Convention Against Genocide is a development from the precepts set in Nuremberg, in such a sudden and ad hoc manner, especially where codification of Crimes Against Humanity is concerned. The Convention takes the main aspect of these crimes, extirpates it from a broad definition, and narrows it down into one separate and codified principle. Genocide as defined in Articles II and III practically cover all those measures taken by the Nazis during their persecution and brutal extermination of certain social, religious and cultural groups: those same atrocities which the members of the Court dubbed as Crimes Against Humanity took concrete form in this Convention.
In 1948 the United Nations issued the Universal Declaration of Human Rights, the first legal document to recognize such rights as binding, and creating the notion of Human Rights as we understand it today. The influence which Nuremberg and to a certain extent the Tokyo trials had upon the formulation and conception of such a declaration cannot be understated. Nuremberg had for the first time in international law traced a definite distinction between jus ad bello a doctrine concerned exclusively on the conduct in warfare, and jus ad bellum, which concerns itself with the justice or legality of the waging of war. By introducing the new principles of Crimes Against Peace and Crimes Against Humanity, Nuremberg effectively fathered a globalized concern towards certain attitudes in war and, by extension, for the rights of all human beings suffering the effects of certain modes of violence. This supposed impact on the Universal Declaration has been backed up by the fact that some academics have stated that the UN Charter itself was almost a product of Nuremberg and the issues raised before, during and after the Trial.
3.6 Evolutionary Development of the Distinctive Elements of the Notions of Crimes Against Humanity and Genocide: The Jurisprudence of ICTY and ICTR
Although it is among the major international crimes, “crimes against humanity” remains undefined in legal scholarship and authoritative commentary. As it will be examined in detail below, unlike the crime of genocide, the definition of the crimes against humanity varies from one statute to another. The history of the development of these crimes may be an explanation for this uncertainty. Martens Clause of the Hague Convention of 1907 was the first time that laws of humanity were recognized in conventional international law. Then, following the World War II, from 26 June to 8 August 1945, a conference was held by victorious allied powers in London in order to draft the Charter of the International Military Tribunal (Hereinafter IMT), to punish Nazi atrocities. Also known as the Nuremberg Charter The IMT Charter defined crimes against humanity as: ―murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.‖
The second international instrument including a provision of crimes against humanity was Control Council Law No. 10 (CCL No. 10) of 1945, the major importance of which is the abolition of the war nexus requirement that meant the acts be connected with war to be punishable. CCL No. 10 defined crimes against humanity as: ―atrocities or offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.‖
Since the Nuremberg Charter and CCL No 10, a significant number of instruments that include various definitions of crimes against humanity have been adopted. But 1948
Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter Genocide Convention) is definitely the most important one among others.
More recently, the statutes of the International Criminal Tribunal for the Former
Yugoslavia (hereinafter ICTY) and International Criminal Tribunal for Rwanda (hereinafter ICTR) emerged after serious offences, representing important provisions on the constitutive elements of the crime against humanity on the International Criminal law. However the differences between the statutes of these two caused uncertainties within the international community about the elements of crimes against humanity, the definitions of crimes against humanity under these statutes reflect major developments in international law since the Nuremberg Trials.
Unlike the crime of genocide , this category of crimes did not have a specific international convention. But it was again, included within Rome Statute of the International Criminal Court (hereinafter referred as Rome Statute) which was adopted on 17 July 1998. The definition of crimes against humanity was criticised as too narrow by some NGOs.
3.6.1 Notion of Genocide
Genocide term was coined in legal terminology in 1944, by Raphael Lemkin in his book
‗Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposal for
Redress‘ that was written about Nazi crimes in Europe during World War II.
Being within the context of crimes against humanity, genocide as a term in international law instruments first appeared in the judgment of several cases dealt with under Control Council Law No. 10 , beginning with Justice Case. In this judgment, genocide was described as “the prime illustration of a crime against humanity”. It should be remembered that, at that time, the crime of genocide was, and, in contrast to the Genocide Convention, crimes against humanity could only be committed in association with an international armed conflict104.
Genocide, including the intentional killing, destruction, or extermination of groups or members of a group as such, was first assessed to be purely a sub-category of crimes against humanity‖ .The solid definition of genocide is the one set forth in the Genocide Convention in 1948, which defines genocide as one of five types of acts committed with the special intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such. By means of this Convention, genocide acquired independent importance as a specific crime. The context of genocide in 1948 Genocide Convention was narrower than both that of crimes against humanity and than context of genocide expressed by Lemkin.107 However, clarifying the conception of crime of genocide, Articles II and III of the Genocide Convention were reproduced in a verbatim form in Article 4 of ICTY Statute and Article 2 of ICTR Statute.
Under Article 4 of the ICTY, genocide refers to any criminal activity aiming to destroy, in whole or in part, a particular human group, as such, by certain means. Those are two elements of the special intent requirement of genocide: (1) the act or acts must target a national, ethnical, racial or religious group; (2) the act or acts must seek to destroy all or part of that group‖108.
Under Article 2 of ICTR Statute, the Chamber of ICTR concluded that a crime has to be if any of the acts listed under Article 2(2) of the ICTR Statute was committed and, if only this act was committed with the specific intent to destroy a specifically targeted national, ethnical, racial or religious group, , in whole or in part. For this reason, an act in order to be punished under
‗genocide‘ provisions must contain both the prohibited underlying act and the specific genocidal intent (dolus specialis).109
The crime of genocide is considered to be the most serious and most aggravated type of crime against humanity, and ―the crime of crimes‖ among other international crimes.110
3.6.2 Distinction Between Genocide and Crimes Against Humanity
Generally, a principal distinction between Genocide and crimes against humanity is that genocide deals with a particular group which could be ethnic, racial, national or religious group,

of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.
Article III: The following acts shall be punishable: (a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; (e) Complicity in genocide.
107Schabas, William A., An Introduction to the International Criminal Court, p.36
108ICTY, Krstic, (Trial Chamber), August 2, 2001, para.550; see also: ICTY, Krstic, (Trial Chamber), August 2, 2001, para.580 and ICTY, Jelisic, (Trial Chamber), December 14, 1999, para.62.
109Prosecutor v. Bagilishema, Case No.ICTR-95-1-A-T (Trial Chamber), June 7, 2001, para.55.
110Schabas, William A., An Introduction to the International Criminal Court, p.37
while crime against humanity is an offence perpetrated on any individual generally without any distinction as to whether or not it relates to a particular group. Other distinctions are categorized and discussed below:
1. Perpetrators of Crimes
The prosecution must established the following beyond reasonable doubt in order to succeed a conviction on offenders on persons charged for the offence of crimes against humanity.
a. Mens Rea
Specific “intent to destroy‖ is the most important and outstanding difference between genocide and crimes against humanity. This is the intent to destroy a national, ethnical, racial or religious group, in whole or in part. Since generally, the acts of genocide also form crimes against humanity, genocide is often considered a sub-set of crimes against humanity.
In the case of Kupreskic , the Trial Chamber held that both persecution and genocide crimes are perpetrated against people who belong to a particular group and who are targeted because of being a member of that group. Discriminative approach (on listed grounds) is the common factor for both categories. If an individual had the intention to destroy a group (in whole or in part) just aiming to obtain their land or removing them from that territory, this would not amount to genocide, since “the complete disregard shown for this particular group would not be sufficient to make the intended mass destruction genocidal”.
Jelisic Appeal Judgment was an important standing point to separate genocide from persecution. In this case, the Appeal Chamber of ICTY held that the genocide intent is a specific intent which should be separate from and go beyond the discriminatory intent and the genocidal intent is more specific than the discriminatory intent which is included within the crime of persecution. Proof of a plan to destroy the target group which was selected on certain discriminatory grounds should make it easier to prove the genocidal intent.
Whereas In the crime of persecution, the discriminatory intent may take many inhuman forms, while in genocide it must strictly be accompanied by the specific intent (dolus specialis) for genocide, that is, to destroy in whole or in part a specific group. For persecution, this discriminatory intent can emerge as ill treatment, harassment , bringing about great suffering or injury to the target person or group on religious, political, racial or other such grounds. This is the element what makes persecution to a dolus specialis degree among other crimes against humanity but this dolus specialis doesn‘t reach the ―special intent to destroy‖ a group as a whole
or in part.
Actus reus for persecution in the ICTY Statute does not require a link to crimes enumerated in the Statute, but on the other hand, its definition may encompass crimes not listed in the Statute because of its broad concept. However, there must be undoubtedly defined limits on the extension of the persecution type crimes. Mens rea for persecution is higher than other crimes within the ambit of crimes against humanity, but lower than genocide.
Crime of persecution ‗derives its unique character from the requirement of a specific discriminatory intent‘ . And in various cases,119 it was emphasized that this discriminatory intent can show itself in many different forms of denial or infringement on a fundamental right laid down in international customary or treaty law. These infringements can be commitment of other underlying offences as murder, rape, serious bodily assault, expulsion from the area,
torture, etc.
So, as they are only the genocidal acts to be ‗committed with intent to destroy‘ under ICTY and ICTR statutes, the distinction between genocide and persecution as for mens rea is that, the perpetrator “of genocide must intend to destroy all or part of a protected group, while the perpetrator of a crime against humanity need not have such intent and persecution can be seen in many other forms of inhuman and discriminatory intent other than intent to destroy.
b. Actus Reus as a Part of Widespread or Systematic Attack
Whereas the ICTY Statute does not require a link between crimes against humanity and that the acts which form the crimes against humanity be ―committed as part of a widespread or systematic attack‖, it is clearly mentioned in the Statutes of the ICTR and ICC as a requirement.
Here, ‗widespread‘ refers to the scale of the offences or quantity of victims . Provided that it is a part of broader widespread series of acts, even a single attack may amount to a crime against humanity. A ―systematic‖ attack refers to ―a pattern or methodical plan.‖ but this plan is not required be formally adopted as a policy of the state125.
The perpetrator who is acting as an agent of a systematic attack is not required to anticipate all the results of his misconduct. Being aware of the ‗risk‘ that his act might lead him to serious consequences is enough for him to be a perpetrator of a crime against humanity.
This perpetrator can be an individual acting in his private capacity provided that his acts find support from a general state policy. But if the state officials commit this offence acting in a private capacity, there must be some sort of explicit or implicit approval or endorsement of the state authorities or at least this offence must fit clearly within such a policy. So, similar to genocide, the jurisprudence of ad hoc tribunals clarified that crimes against humanity can be committed by state authorities and their agents, as well as by nonstate entities.
Whereas, for genocide, the punishable acts don‘t have to be part of a widespread or systematic attack or a part of a general and organized plan. In Jelisic Case, Appeals Chamber concluded that, ―the existence of a plan or a policy is not a legal ingredient of crime. However, in the context of proving specific intent, the existence of a plan or policy may become an important factor in most cases.”
Consequently, what is important for the crime of genocide is the intent to destroy “in whole or in part”. So, the intent to destroy is not sufficient, but intent must be destroying a large number of members of the target group. The actual number of the victims is not important but where the number of victims reaches to a significant level, it can be an important evidence of genocidal intent to destroy the members of the group ―in whole or in part‖. Although it is sufficient to prove that the perpetrator committed the crime of persecution, depriving the victims severely of fundamental rights, regardless from the actual number of victims, the intention to do so needs to be proven for genocide.131
This means, in contrast to crimes against humanity, the size of the attack of which the offence is part is not important for genocide. Instead of being a part of a ‗widespread or systematic attack‘, the subject group to specific intent is required to be large in number.132
c. War Nexus
For the offence of genocide, it‘s not required that the acts take place during an armed conflict or ‘widespread or systematic attack against a civilian population.’ ―An act of genocide could be planned or committed on a large scale, or committed as an individual undertaking.”133 On the other hand, under ICTY Statute, crimes against humanity and persecution in particular must be committed during armed conflict whether international or internal in character.
However, differentiating from ICTY, there‘s not a requirement of nexus to an armed conflict for persecution under ICTR and Article 7 of the Rome Statute.134
Although crimes against humanity were required to be associated with other crimes135 within the jurisdiction of Nuremberg Trials, following the initial Nuremberg trial, Control
Council Law No.13610 (CCL 10) concluded that the ―war nexus requirement” was excluded from
the definition of crimes against humanity.
On its face, the ICTY statute requires a connection between crimes against humanity and armed conflict, which is not itself a crime under the statute; marking a progress over the

131Cassese, Antonio, International Criminal Law, p. 107
132Bantekas, Ilias & Nash, Susan, International Criminal Law, p.392
133Short, Jonathan M.H., Sexual Violence as Genocide: The Developing Law of the International Criminal
Tribunals and the International Criminal Court, Michigan Journal of Race and Law, Spring 2003, p. 3; see also Guenael
Mettraux, Crimes Against Humanity in the Jurisprudence of the International Criminal Tribunals for the
Former Yugoslavia and for Rwanda, 43 Harv. Int’l L.J. 237, 295-96 (2002)
134Bantekas, Ilias& Nash, Susan, International Criminal Law, p.384-385
135These are war crimes and crimes against humanity
136Control Council Law No. 10, 20 Dec. 1945, 3 Official Gazette Control Council for Germany 50 (1946),
reprinted in 1 Trials of War Criminals before the Nuremberg Military Tribunals Under Control Council Law No.10 at xvi (1949)
Nuremberg Charter by clearly removing the requirement of connection to another crime under international law. However, it was not clear how to interpret “committed in armed conflict.” On this point, following the declaration of ICTR without insistence upon this nexus, the ICTY Appeal Chamber solved this problem in 1995 Tadic Case. This jurisdictional decision of 1995 was the first major judgment of the ICTY. In this case, the ICTY went well beyond the
Nuremberg precedents by declaring that “crimes against humanity could be committed in peace time”. Furthermore, nexus was described to be „obsolescent‟ and abandoned as ‗there is no logical or legal basis for this requirement‘. This was the abolition of war nexus requirement. Since then, the nexus with armed conflict set out in Article 5 of the Statute has been described to be ‗purely jurisdictional‘.
2. Victims of Crimes
Victims of crimes are discussed in the following categories.
a. Group as a Subject to Discrimination
Under the Statute of ICTY, “crimes against humanity may be committed against ‗any individual‟. The definition of crimes against humanity under the ICTY Statute clarifies that discriminatory intent is required only for persecution type crimes.139 The same situation is preserved in ICC Statute (Article 7). On the other hand, under the ICTR Statute, not only persecution, but all underlying crimes must be committed on discriminatory grounds in order to qualify as crimes against humanity.
Bearing the specific intent distinction in mind, genocide and crime of persecution can only be committed against individuals who belong to specifically protected groups on the grounds of their identifiable properties.
But, as for the ICTY Statute, crimes against humanity may be committed against ‗any individual‟, whereas genocide can only be committed against individuals who belong to specifically protected groups characterized by their national, ethnical, racial, or religious identity.
b. Context of Discriminatory Grounds
In its essence, genocide was recognized as a crime of ―universal jurisdiction‖ since its declaration by General Assembly of United Nations in 1946, following Nuremberg Trials. This position made it sufficient to be prosecuted by the courts other than those where the offence was committed. So, narrowing the mental and material elements of this crime has been the price to pay.142 And in Statutes of ICTY and ICTR, being verbatim reproductions from Articles II and III of the 1948 Genocide Convention, the intent to destruction must be directed at one of the listed groups. These are: ‗national, ethnical, racial and religious‘ grounds. As its reason was mentioned above, this limited scope of discriminatory grounds for genocide has been criticized during the drafting discussions of Genocide Convention and Rome Statute as well.
And as a reflection of reaction to this strict narrowing of the scope, the Trial Chamber in
Akayesu case stated that the four groups protected by the convention share a ―common criterion,‖ namely, ―that membership in such groups would seem to be normally not challengeable by its members, who belong to it automatically, by birth, in a continuous and often irremediable manner.‖ So, the Chamber went far beyond the text of the ICTR Statute as it didn‘t contain such requirements as ―permanent‖ and ―stable‖. The Tutsi were alleged to constitute a
stable and permanent group and were acknowledged as such by all.‖
Assessed to be ―puzzling words‖ by Schabas, „as such‟ in the text of genocide was interpreted by the Chamber of the ICTR to mean that the act must be committed against an individual only because of the reason the individual was a member of a specific group, so that the victim is the group itself, not merely the individual himself.147 So, these words don‘t affect the exhaustive scope of genocide.
Whereas, as for the crime of persecution, the ICC Statute covered more discriminatory grounds as: ‗political, racial, national, ethnic, cultural, religious, gender, and other grounds that are universally recognised as impermissible under international law‘.148 The ‗other inhuman acts‘ in Rome Statute leaves the door open to evolutionary developments in international law. In view of ICTY, these other inhuman acts provide crimes against humanity with the flexibility to cover severe deprivation of fundamental rights which were not specified in this definition such as forcible transfer of civilian groups, sexual exploitation and enforced disappearances of persons.
As additional criteria to those of genocide, there are political, cultural, gender and ‗other‘ grounds under ICC Statute but under ICTY and ICTR Statutes, the scope is narrower than ICC definition of persecution. These are: ‗political, racial and religious‘ grounds.
Under provisions of all Statutes, persecution contains the ‗political‘ ground different from genocide. And as for genocide, a similar term; ‗cultural genocide‘ can be assessed as an important indicator of physical genocide.
c. Victims as Civilian or Combatant
Stemming from its unique definition, crimes of genocide can be committed against any individual, whether civilian or combatant. As for crime of persecution, at first sight, the texts of both ICTY and ICTR Statutes seem to require that, victim of this crime may only be ‗civilian population‘ who have been attacked on discriminatory grounds due to their race, religion or political tendencies. This ‗civilian population‘ requirement was preserved under Rome Statute as the same. Due to this textual approach, it is alleged by some authors that genocide may be committed against any individual, whether civilian or military personnel, while crimes against humanity “may only be committed against ‘civilians. But, according to Cassese:
Persecutions embrace actions that may not be prohibited by national legal systems. …such actions may take the form of acts other than murder, extermination, enslavement, or deportation. Furthermore, since no mention is made of the possible victims of persecutions, or rather, as it is not specified that such persecutions should target ‗any civilian population‘, the inference is warranted not only any civilian group but also members of armed forces may be the victims of this class of crimes.

Cassese alleges it is clear from Article 6(c) the victims of persecution don‘t have to be civilians; they may be military personnel as well. This approach was confirmed implicitly by the
Dutch Special Court of Cassation in Pilz and by French courts in Barbie and Touvier. CHAPTER FOUR
LEGAL FRAMEWORK FOR ON THE CONSTITUTIVE ELEMENTS OF CRIMES
AGAINST HUMANITY

4.1 Introduction
Genocide and war crimes have been codified in treaties, whereas Crimes Against Humanity (CAH) have evolved under customary international law. Crimes against humanity were first charged under the Nuremberg Tribunal Charter. The definition of CAH was set out in the Charter and the Nuremburg judgement. The UN General Assembly endorsed the concept of CAH in 1946. The content of crimes against humanity has evolved since World War II through the jurisprudence of the ICTY, ICTR and ICC.
It is noteworthy to mention here that the current constitutive elements of crimes against humanity in international law and the process of multilateral negotiation necessitated a more precise and regulative approach of the understanding of concept in international practice. This arguably served to strengthen the definition and the basis for individual criminal responsibility for these acts. Article 7 of the ICC statute sets forth a modernized and clarified definition of crimes against humanity as a basis for sound international criminal prosecution at all times.
4.2 Analysis of the Constitutive Elements of Crimes Against Humanity
A crime against humanity is committed when:
(a) The accused commits a prohibited act;
(b) That is part of: an ―attack‖; which is ―widespread or systematic‖ and ―directed against any civilian population‖;
(c) And when there is a link or ―nexus‖ between the acts of the accused and the attack.
The ICTY Statute requires that the attack be committed in the context of an armed conflict, and the ICTR Statute requires that the attack have a discriminatory element. Neither of these elements are required by the definition of crimes against humanity under customary international law. However, the following additional elements are required to go along with the commission of the crime against humanity:
i. Contextual Elements
A crime against humanity involves the commission of certain prohibited acts committed as part of a widespread or systematic attack directed against a civilian population. When committed within this context, what would have been an ―ordinary‖ domestic crime, such as murder, becomes a crime against humanity.
ii. An Attack
A person commits a crime against humanity when he or she commits a prohibited act that forms part of an attack.
Factors to consider when determining whether an ―attack‖ against a civilian population has taken place include: Were there discriminatory measures imposed by the relevant authority? Was there an authoritarian takeover of the region where the crimes occurred? Did the new authority in fact establish ―governmental‖ structures? Did summary arrests, detention, torture, rape, sexual violence or other crimes take place? Did massive transfers of civilians to camps take place? Was the ―enemy population‖ removed from the area?
The concepts ―attack‖ and ―military attack‖ differ. A crime against humanity can occur when there is no armed conflict. Thus, an attack is not limited to the conduct of armed hostilities or use of armed force. CAH can include mistreatment of a civilian population. The attack could also precede, outlast or continue during an armed conflict, without necessarily being part of it.9 The attack does not need to involve the military or violent force.
ICTY and ICTR jurisprudence, and the Rome Statute, provide that there must be at least
―multiple‖ victims or acts to be considered an attack directed against a civilian population. The
acts can be of the same type or different.
At the ICC, an attack is ―a campaign or operation carried out against the civilian population‖.
iii. Directed Against any Civilian Population
―Directed against‖ requires that the civilian population must be the primary target of the attack, not just an incidental target. Thus, the primary object of the attack is ―any civilian population‖.15
―Any‖ highlights the fact that CAH can be committed against both enemy nationals and crimes by a state‘ own subjects.16
―Civilian‖ refers to non-combatants.
―Population‖ refers to a larger body of victims and crimes of a collective nature. It is not required that an entire population of an area be targeted. It is enough to show that a certain number of individuals were targeted in the course of the attack, or that individuals were targeted in such a way that demonstrates that the attack was in fact directed against a civilian
―population‖, rather than against a small and randomly selected number of individuals.
Factors to determine whether the attack was directed against a civilian population include:
a) The means and methods used in the course of the attack;
b) The number of victims;
c) The status of the victims;
d) The discriminatory nature of the attack;
e) The nature of the crimes committed in the course of the attack;
f) The resistance to the assailants at the time; and
g) The extent to which the attacking force may be said to have complied or attempted to comply with the precautionary requirements of the laws of war.19
The ultimate objective—such as restoring democracy—of a fighting force can be no justification for attacking a civilian population. Rules of IHL apply equally to both sides of a conflict, irrespective of who is the ―aggressor‖, and the absolute prohibition under international customary and treaty law on targeting the civilian population precludes military necessity or any other purpose as a justification.
At the ICC, ―civilian population‖ refers to people who are civilians, and not members of armed forces or other legitimate combatants. The civilian population must be the primary target of the attack, not a secondary victim. iv. Relationship Between any Civilian Population and Military Targets
Since the primary object of the attack must be any civilian population, attacks that are directed primarily at military targets are excluded. To determine whether an attack was aimed at civilian or military targets, the court may consider whether or not the relevant party complied with the laws of war (this does not mean that targeting civilians is lawful when justified by military necessity—there is an absolute prohibition on targeting civilians under international law ).
For example, in the Mr. Ksiccase at the ICTY, crimes were directed against a group of people based on their perceived involvement in the armed forces and therefore were treated differently than the civilian population. The facts of this case involved wounded combatants being selected for execution and killed. These crimes were not crimes against humanity, however, even though they were committed just two days after the perpetrators had participated in a major attack on civilians in the same region. Since the perpetrators acted with the understanding that their victims were members of the armed forces, they did not intend for their acts to form part of the attack on the civilian population and therefore no nexus existed.
v. Relationship Between any Civilian Population and Combatants
Members of the civilian population are people who are not taking any active part in the hostilities. The presence within that population of some individuals who do not come within the definition of civilians does not deprive the population of its civilian character. ―Civilian population‖ describes the overall character of the population. A population is still considered ―civilian‖ even if there are armed police or isolated soldiers in the group. The population must be ―predominantly‖ civilian.
The presence within a population of members of resistance groups, or former combatants who have laid down their arms, and of other non-civilians does not alter the civilian character of that population, as long as the population is ―predominantly civilian‖.
In order to determine whether the presence of soldiers or other non-civilians within a civilian population deprives the population of its ―predominantly civilian‖ character, the number of soldiers or non-civilians, as well as whether they are on leave, may be considered.
Who are non-civilians? Article 50 of Additional Protocol I to the Geneva Conventions (AP I) contains a definition of civilians and civilian populations; its provisions ―may largely be viewed as reflecting customary law‖29 and are used to determine who is a civilian and the civilian character of populations for the purposes of CAH.
Persons placed hors de combat remain members of the armed forces of a party to a conflict and are not civilians. Members of the armed forces, and members of militias or volunteer corps forming part of such armed forces, cannot claim civilian status, even when not armed or in combat. Further, members of other militias and members of other volunteer corps (other than those forming part of the armed forces, mentioned above), including organised resistance groups cannot claim civilian status, provided that: they belong to a party of the conflict; they are commanded by a person responsible for his subordinates; they have a fixed distinctive sign recognisable at a distance; they carry arms openly; and they conduct their operations in accordance with the laws and customs of war.
However, non-civilians, such as persons placed hors de combat, can still be the victims of an act amounting to a CAH if all other necessary conditions are met and in particular the act in question is part of a widespread or systematic attack against any civilian population. In other words, there is no requirement nor is it an element of CAH that each victim of the underlying crimes be a civilian.
vi. Widespread or Systematic
―Widespread or systematic‖ describes the character of the attack, particularly its scale. ―Widespread‖ refers to the large-scale nature of an attack, primarily reflected in the number of victims. There is no set number of victims that makes an attack ―widespread‖. ―Widespread‖ may include a massive, frequent, large-scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims.
―Systematic‖ refers to the organised nature of the acts of violence and the recurrence of similar criminal conduct on a regular basis. It involves ―a pattern or methodical plan‖ that is ―thoroughly organized and following a regular pattern‖.
The requirement that the attack is ―widespread‖ or ―systematic‖ is disjunctive: only one must be proven. So a crime against humanity could be committed as part of a large-scale attack against a civilian population resulting in many deaths, or as part of regular and methodical violence or crimes with fewer victims.
Only the attack as a whole, not the accuser‘s acts, must be widespread or systematic. In other words, the separate underlying prohibited acts do not need to be widespread or systematic (i.e. there is no requirement that the murders must be widespread or systematic under a charge of murder as a crime against humanity), as long as the prohibited acts form part of an attack that is widespread or systematic.
Factors to consider when determining whether an attack is ―widespread or systematic‖ include the: number of criminal acts; existence of criminal patterns; logistics and resources involved; number of victims; existence of public statements related to the attacks; existence of a plan or policy targeting the civilian population; means and methods used in the attack; foreseeability of the criminal occurrences; involvement of political or military authorities; temporally and geographically repeated and coordinated military operations leading to same result; alteration of ethnic, religious, racial or political composition of overall population; establishment of new political or military structures in region; and adoption of various discriminatory procedures.39 vii. Policy and Organizational Requirement
Before the ICTY, it has been held that as a matter of customary law that it is not required to show that the attack was carried out as part of a policy or plan.40 The existence of a policy or plan can be relevant to establish that the attack was widespread or systematic, or directed against a civilian population.41
However, at the ICC, the attack must be committed ―pursuant to or in furtherance of a State or organizational policy to commit such attack‖, and requires that ―the State or organization actively promote or encourage such an attack against a civilian population‖.42 It is not required that the policy be adopted by the highest level of the state; policies adopted by regional or local state organs could be sufficient.43
By a majority, a Pre-Trial Chamber at the ICC has held that non-state organisations can, for the purposes of Article 7(2) of the Rome Statute, devise and carry out a policy to attack a

39Semanza, Op.cit, pp.268-269; Kunarac et al., Op.cit, p.98; Galic, Op.cit, p.147; Bradanin, Op.cit, p.137; GoranJelisic, Case No.
IT-95-10T, Trial Judgement, 14 Dec. 1999, p.53.
40Kunarac et al., Op.cit, p.98; Blaskic, Op.cit, p.100.
41Kunarac et al., Op.cit, p.98; Blaskic, Op.cit, p.100; But see Situation in the Republic of Kenya, Case No. ICC-01/09-01/1,
Decision Requesting Observations on the Place of the Proceedings for the Purposes of the Confirmation of Charges Hearing, Pre-
Trial Chamber II, 06 March, 2011; William Samoei Ruto et al., Case No. ICC-01/09-01/11, Dissenting Opinion by Judge Hans-
Peter Kaul to Pre-Trial Chamber II’s ―Decision on the Prosecutor’s Application for Summons to Appear for William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang‖, 15 March, 2011.
42Rome Statute, Art.7(2), ICC Elements of Crimes (n 85), Introduction to Art. 7.
43Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute, p.89 (fn 81), citing Tihomir Blaškic, Case No. IT-95-14-T, Trial Judgement, 3 March 2000, p.205.
civilian population. The following elements may be considered to determine, on a case-by-case basis, whether a group qualifies as an organisation under Article 7(2) as follows:
i. Whether the group is under a responsible command, or has an established hierarchy; ii. Whether the group possesses, in fact, the means to carry out a widespread or systematic attack against a civilian population; iii. Whether the group exercises control over part of the territory of a state; iv. Whether the group has criminal activities against the civilian population as a primary purpose;
v. Whether the group articulates, explicitly or implicitly, an intention to attack a civilian population; and vi. Whether the group is part of a larger group, which fulfils some or all of the above mentioned criteria.
One trial panel at the Court of BiH has held that Article 172(2)(a) of the BiH Criminal Code required that an attack be committed ―pursuant to or in furtherance of a State or organizational policy to commit such attack.45 However, another trial panel noted that there is no requirement that the acts of the accused were supported by any form of ―policy‖ or ―plan‖ at the ICTY or in customary international law. viii. Nexus
The acts of the accused must be ―part of‖-and not simply coincide with-the widespread or systematic attack directed against a civilian population.47 Except for extermination, the underlying offence need not be carried out against multiple victims in order to constitute a CAH. Thus an act directed against a limited number of victims, or even against a single victim, may suffice, provided it forms part of a widespread or systematic attack against a civilian population.
The nexus requirement has two elements the prosecution must prove:
i. The commission of an act that, by its very nature or consequences, is liable to have the effect of furthering the attack. ii. Knowledge on the part of the accused that there is an attack on the civilian population and that his act is part of the attack.
Factors to determine whether a prohibited act of an accused forms ―part of‖ an attack include: the characteristics; aims; nature, and consequences of the act; The similarity between the accuser‘s act and the other acts forming the attack; The time and place of the acts, and how they relate to the attack; and in particular; How the acts relate to the attack or further any policy underlying the attack.
The accuser‘s act must be related to the attack. A crime which is committed before, after or away from the main attack against the civilian population could still, if sufficiently connected, be part of that attack.
The prohibited act must not, however, be an isolated act. An act would be regarded as an isolated act when it is so far removed from the attack that, having considered the context and circumstances in which it was committed, it cannot reasonably be said to have been part of the attack.
The acts of the accused need not be the same as other acts committed during the attack. For example, if an attack results in killings, and a person commits sexual violence as part of the attack, the person is guilty of a CAH of sexual violence, when the necessary contextual elements and nexus are satisfied.
ix. Mens Rea and Knowledge of the Attack
In addition to the intent to commit the underlying crime (such as murder, persecution, torture), an accused must know of the broader context in which his actions occur, and more particularly, he must:
(a) know of the attack directed against the civilian population, and
(b) know that his criminal act comprises part of that attack or at least take the risk that his acts are part of that attack.
An absence of such knowledge may suggest an ordinary crime or, depending on the circumstances, a war crime. Usually, a crime against humanity will be committed in the context of an attack that is well known, and an accused could not credibly deny knowing about the attack. Thus, knowledge can be proven by drawing inferences from relevant facts and circumstances.
The mens rea relates to knowledge of the context, not motive. A CAH may be committed for purely personal reasons. The accused need not share the purpose or goal behind the attack:
It is irrelevant whether the accused intended his acts to be directed against the targeted population or merely against his victim. It is the attack, not the acts of the accused, which must be directed against the target population and the accused need only know that his acts are part thereof. At most, evidence that he committed the acts for purely personal reasons could be indicative of a rebuttable presumption that he was not aware that his acts were part of that attack.

x. Mens Rea in Relation to Discriminatory Grounds
The ICTY Appeals Chamber has ruled that discrimination is not a requirement for CAH in general—only in the case of persecution. The ICTR Statute requires that CAH be committed because of discriminatory grounds. However, the ICTR Appeals Chamber has held that the discriminatory grounds restriction in the ICTR Statute applies only to that court and is not a requirement in customary international law. xi. Prohibited Underlying Acts or Underlying Overview
The ICTY and ICTR Statutes prohibit the following underlying offences that can constitute CAH: Murder; Extermination; Enslavement; Deportation; Imprisonment; Torture; Rape; Persecutions on political, racial and religious grounds; and Other inhumane acts.
The ICC has also incorporated the following acts under crimes against humanity: Sexual slavery; Enforced prostitution; Forced pregnancy; Other sexual violence; Enforced disappearance; and Apartheid.
Any of these acts can be a crime against humanity if it is part of the overall attack on civilians. If it is committed on a very large scale, such as using biological weapons against a civilian population, it could by itself be considered the attack.
The underlying acts do not have to be the same as the other acts committed during the attack. A person who rapes a woman during a forceful takeover of power could be guilty of the crime against humanity of sexual violence.
Some of the prohibited acts have special mental requirements, but in general, the perpetrator must have committed the act with intent and knowledge of the relevant circumstances.
xii. Murder
―Murder‖ is unlawfully and intentionally causing the death of a human being.
Mens rea– the perpetrator intends to kill, or intends to inflict grievous bodily harm likely to cause death but is reckless as to whether death ensues. The appeals chamber has recognised that the mens rea includes both direct and indirect forms of intention.
It is not required to recover the body to prove beyond a reasonable doubt that a person was murdered. The fact of a victim‘s death can be inferred circumstantially from other evidence. One Trial Chamber also stated that circumstantial evidence is sufficient as long as ―the only reasonable inference is that the victim is dead as a result of the acts or omissions of the accused‖.
The elements of ―murder‖ as a crime against humanity are the same as ―willful killing‖ as a war crime.
xiii. Extermination
The elements of the crime of extermination are:
(a) the killing of persons on a massive scale (actus reus); and
(b) the accuser‘s intent, by his acts or omissions of either: killing on a large scale; or the subjection of a widespread number of people; or the systematic subjection of a number of people;
(c) to conditions of living that would lead to their deaths (mens rea). xiv. Massive Scale: Difference Between Extermination and Murder
Extermination is murder on a massive scale. A person who murders someone within the context of mass killing can be guilty of extermination. The ICTR appeals chamber has held that ―extermination‖ differs from murder in that it requires an element of mass destruction, which is not required for murder‖.
The term ―mass‖, which can mean ―large-scale‖, does not suggest a minimum number of killings but should be determined on a case-by-case basis using a common sense approach.75 Extermination must also be collective, and not just directed towards singled out individuals (except, unlike in genocide, the accused does not need to intend to destroy a group or part of a group).
The ―mass‖ element means that evidence of the actus reus of extermination can be established through an accumulation of separate and unrelated incidents, or on an aggregated basis. It is not required to precisely describe victims or designate victims by name. xv. Actus Reus of Extermination; Indirect or Remote Participation and Single Killing
Being involved in directly killing a person can constitute extermination. However, so can other acts or omissions. Any indirect act or omission, or cumulative acts or omissions, which directly or indirectly cause the death of the targeted group of individuals, can also constitute extermination.
The accused‘s involvement in the killings can be remote or indirect participation. Often persons with authority are therefore charged with extermination. In those cases, the accused, either because of their position or authority, could decide the fate of or had control over a large number of people. However, it is not required that the prosecution prove that the person had de facto control. Also, it is important to remember that others—persons who do not have authority or control—can also be charged with extermination.82
Extermination also includes the creation of conditions of life that are calculated to cause the destruction of part of the population. That means the accused created circumstances that ultimately caused mass death, such as imprisoning a large number of people and withholding the necessities of life, food and medicine.
There is inconsistent case law on whether responsibility for a single or small or limited number of killings is sufficient for a finding of extermination. ICTY and ICTR trial chambers have held that ―responsibility for a single or a limited number of killings is insufficient‖. In other cases, they have held that a perpetrator may be guilty of extermination if he kills, or creates the conditions of life that kills a single person, as long as he is aware that his act or omission 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. A ―killing event‖ exists when the killings have close proximity in time and space.
For example, if numerous officers fire into a crowd killing everyone, and Officer X is a poor shot and kills only a single person, whereas Officer Y kills sixteen people, both will be guilty of extermination because they participated in the mass killing and were both aware that their actions formed part of the mass killing event.
At the ICC, it seems that a single killing would be sufficient.
Mens Rea
As stated by the ICTY:
The mens rea standard for extermination is the same as the mens rea required for murder as a crime against humanity with the difference that ‗extermination can be said to be murder on a massive scale‘. The prosecution is thus required to prove beyond reasonable doubt that the accused had the intention to kill persons on a massive scale or to create conditions of life that led to the death of a large number of people. The mens rea standard required for extermination does not include a threshold of negligence or gross negligence: the accused‘s act or omission must be done with intention or recklessness (doluseventualis).

a. No Need to Prove Plan or Policy
No proof is required of the existence of a plan or policy to commit extermination or that the killings were tolerated by the state. The existence of such a plan or policy, or the existence of state tolerance, may be important evidence that the attack was widespread or systematic. If the accused had knowledge that his action is part of a vast murderous enterprise in which a larger number of individuals are systematically marked for killing or killed, it will be taken as evidence tending to prove the accused‘s knowledge that his act was part of a widespread or systematic attack against a civilian population. However, knowledge of a vast scheme of collective murder is not an element required for extermination as a crime against humanity.93
b. Enslavement/Slavery
The definition of enslavement is based in part on the 1956 Slavery Convention.
The elements of enslavement are:
1) The exercise of any or all of the powers attaching to the right of ownership over a person
(actus reus), and
2) The intentional exercise of said powers (mens rea).
The ICTY has held that the elements of enslavement as a crime against humanity are the same as the elements of slavery as a violation of the laws or customs of war.95

c. Relationship Between Accused and Victim
The nature of the relationship between the accused and victim is key to enslavement. Factors to be considered in determining the nature of the relationship include: control of someone‘s movement; control of the physical environment; psychological control; measures taken to prevent or deter escape; force; threat of force or coercion; assertion of exclusivity; subjection to cruel treatment and abuse; control of sexuality; control of forced labour; and duration of that control.
It is usually insufficient just to show that a person was held in captivity. There must be another indication of enslavement, such as exploitation, forced labour, sex, prostitution or human trafficking.
d. Duration Not an Element
The duration of enslavement is not an element of the crime, but can be evidence that a person was enslaved.
e. Torture or Ill-Treatment not Elements
The following passage about slavery equally applies to enslavement:
Slavery may exist even without torture. Slaves may be well fed, well clothed, and comfortably housed, but they are still slaves if without lawful process they are deprived of their freedom by forceful restraint. Even if all other elements which often accompany slavery, such as ill-treatment, starvation, or beatings, were not present or ignored, the fact of compulsory uncompensated labour would still constitute slavery. Involuntary servitude, even if tempered by humane treatment, is still slavery.

f. Lack of Consent not an Element
Lack of consent is not an element of enslavement. However, it can be evidence of whether enslavement was committed. Lack of resistance does not mean a person consented. Circumstances that make it impossible to express consent may be sufficient to presume the absence of consent.
g. Sexual Slavery
Sexual slavery is not listed as a separate underlying crime at the ICTY and ICTR, but it is at the ICC and the SCSL. At the ICTY/ICTR, it is dealt with under enslavement.
At the ICTY and ICTR, corroboration is not legally required; corroborative testimony only speaks to weight. In terms of the intentional exercise of a power to the right of ownership, it is not required to prove that the accused intended to detain the victims under constant control for a prolonged period of time in order to use them for sexual acts.
h. Forced Labour
Forced labour can constitute enslavement, and is a factor that can be considered when determining whether enslavement was committed. The facts must establish that the victims had no real choice about whether they would work. However, this evidence must be objective that is the victims‘ perception that they were forced to work is not sufficient to establish lack of consent.
i. Deportation
The elements of deportation are:
i. forced displacement of persons by expulsion or other forms of coercion from the area in which they are lawfully present, across a de jure state border or, in certain circumstances, a de facto border, contrary to international law (actus reus); ii. with the intent to do so (mens rea).
It is not required that the perpetrator intended to displace the individuals permanently.
There is no requirement that a minimum number of persons are deported or displaced.
Moreover, the return of victims does not impact the perpetrator‘s criminal responsibility.
j. Difference Between Deportation and Forcible Transfer
The offence of deportation is provided for in the ICTY Statute, whereas forcible transfer is prosecuted through ―other inhumane acts‖.
Both ―deportation‖ and ―forcible transfer‖ consist of the forced displacement of individuals from the area in which they are lawfully present without grounds permitted under international law. The protected interests underlying the prohibition against deportation and forcible transfer are the same: the right of victims to stay in their home and community and the right not to be deprived of their property by being forcibly displaced to another location.
The distinction between the actus reus of ―deportation‖ and ―forcible transfer‖ is the destination of displacement. The appeals chamber has found that under customary international law, deportation consists of the forced displacement of individuals beyond internationally recognized state borders. In contrast, forcible transfer may consist of forced displacement within state borders. When displacement occurs across a state border it is punishable as the CAH of deportation; when displacement occurs within a state border it is punishable as CAH of other inhumane acts through forcible transfer. In the case of De Jure vs De Facto Borders. ICTY held:
The default principle under customary international law with respect to the nature of the border is that there must be expulsion across a de jure border to another country […] . Customary international law also recognises that displacement from ―occupied territory‖, as expressly set out in Article 49 of Geneva Convention IV and as recognised by numerous UN Security Council resolutions is also sufficient to amount to deportation […] . Under certain circumstances displacement across a de facto border may be sufficient to amount to deportation. In general, the question of whether a particular de facto border is sufficient for the purposes of the crime of deportation should be examined on a case by case basis in light of customary international law.

k. Deportation and Forcible Transport must be Unlawful
Deportation and forcible transfer occur when the displacement of the civilian population is unlawful. So, lawful deportations of aliens present in the territory of a state will not qualify.
Further, Geneva Convention IV Article 49 and AP II Article 17 allow total or partial evacuation of the population if their security or imperative military reasons so demand. However, Article 49 specifies that such evacuees must be transferred back to their homes as soon as hostilities in the area have ceased. Failing that, such evacuation may amount to the CAH of deportation or forcible transfer.
Although displacement for humanitarian reasons is justifiable in certain situations, it is not justifiable where the humanitarian crisis that caused the displacement is itself the result of the accused‘s own unlawful activity.
Assistance by humanitarian groups does not make the displacement lawful.
l. Proof of Coercion
For deportation and forcible transfer, the displacement must take place under coercion. The essential element in establishing coercion is that the displacement must be involuntary in nature, where the persons concerned had no real choice.
Genuine choice cannot be inferred from the fact that consent was expressed or a request to leave was made where the circumstances deprive the consent of any value. An apparent consent induced by force or threat of force should not be considered to be real consent. For example, fleeing in order to escape persecution or targeted violence is not a genuine choice.
A lack of genuine choice may be inferred from, inter alia, threatening and intimidating acts that are calculated to deprive the civilian population of exercising its free will. These acts can include the shelling of civilian objects; the burning of civilian property; and the commission of the crime or threat to commit other crimes, including threats of a sexual nature. These crimes must be ―calculated to terrify the population and make them flee the area with no hope of return‖.

m. Imprisonment
Imprisonment as a CAH should be understood as arbitrary imprisonment, that is, the deprivation of liberty of the individual without due process of law, as part of a widespread or systematic attack directed against a civilian population. The elements of the underlying offence of imprisonment as a CAH are the same as the elements of unlawful confinement as a war crime.
The elements of imprisonment are:
1) an individual is deprived of his liberty;
2) the deprivation of liberty is imposed arbitrarily, meaning, no legal basis can be invoked to justify the deprivation of liberty;
3) the act or omission by which the individual is deprived of his physical liberty is performed by the accused or person(s) for whom the accused bears criminal
responsibility; and
4) the accused has intent to deprive the individual arbitrarily of his physical liberty or has reasonable knowledge that his act or omission is likely to cause arbitrary deprivation of physical liberty.
The Rome Statute includes the term ―or other severe deprivation of physical liberty‖ as part of the CAH of imprisonment to demonstrate that house arrest and other forms could constitute imprisonment.126
The deprivation must be arbitrary. There are many forms of lawful arrest that would not qualify, such as: lawful arrest and detention; conviction following trial; lawful deportation or extradition; quarantine; assigned residence during armed conflict; internment on security grounds during armed conflict; and or internment of prisoners of war.
The ICTY has held that the deprivation of liberty must be without due process of law,128 and the ICC Statute says that it must be ―in violation of fundamental rules of international law‖. However, it is recognised that small procedural errors would not be sufficient to constitute imprisonment. The ICC will evaluate the ―gravity of conduct‖ that was in violation of fundamental rules of international law, and the ICTY jurisprudence states that detention is arbitrary when ―there is no legal basis […] to justify [it] ‖.
n. Torture
Torture, as defined in Article 1 of the 1984 Torture Convention (CAT), is prohibited by both conventional and customary international law and constitutes a norm of jus cogens. The
ICL definition is based on, but is not the same as, the CAT definition.
o. Elements
Various ICTY and ICTR judgements have considered torture as grave breaches of the
Geneva Conventions, violations of the laws or customs of war (a separate category in the ICTY Statute) and as CAH. Except at the ICC, the definition of torture remains the same regardless of the category of atrocity crime it is charged as.
The elements of torture are:
(a) The infliction, by act or omission, of severe pain or suffering, whether physical or mental;
(b) The act or omission must be intentional; and
(c) 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.
p. Severe Pain or Suffering
The seriousness of the pain or suffering sets torture apart from other forms of mistreatment.
In assessing the seriousness of any mistreatment, the objective severity of the harm inflicted must be considered, including the nature, purpose and consistency of the acts committed.
Relevant subjective criteria for assessing the gravity of the harm include: the physical or mental condition of the victim; the effect of the treatment; the victim‘s age, sex, state of health; or the victim‘s position of inferiority.
Permanent injury is not a requirement for torture and evidence of the suffering need not be visible after the commission of the crime.
q. Prohibited Purpose
Under customary international law it is not settled whether torture as a CAH requires the act to be committed with a specific purpose.139 The ICTY and ICTR require the purpose element.
Indeed, ICTY and ICTR jurisprudence considers the purpose element as the distinguishing feature of torture as opposed to inhumane treatment.
The CAT definition requires that the act be committed with a specific purpose, such as obtaining information or a confession from the victim or a third person, punishing the victim for an act the victim or a third person has committed or is suspected of having committed, or intimidating or coercing the victim or a third person, or for any reason based on discrimination of any kind. This is not an exhaustive list.
Moreover, the prohibited purpose does not need to be the only reason for the torture, but it must be part of the motive. If one prohibited purpose is fulfilled by the conduct, it is immaterial if the conduct was also intended to achieve another purpose (even of a sexual
nature).
The ICC Elements of Crimes requires the ―purpose‖ element with respect to torture as a war crime but not as a crime against humanity.143
r. Official Sanction not an Element of Torture in ICL
Article 1 of the CAT requires that torture be committed ―with the consent or acquiescence of a public official or other person acting in an official capacity‖. This constitutes customary international law in so far as states and their conduct are concerned. It is based on human rights law, and the idea that human rights are violated by states or government.
However, outside the CAT framework, there is no public official requirement under customary international law relating to the criminal responsibility of an individual for torture.
There is no requirement that the perpetrator is a public official, or that torture was committed in the presence of an official. The ICC does not require a link between an official and the act of torture. It is the nature of the act that matters, not the perpetrator‘s relationship to the state.
s. Custody and Control (ICC)
At the ICC, there is an additional requirement that the victim be in the ―custody and control‖ of the perpetrator.146
4.3 Acts Constituting Torture, and Rape and Sexual Abuse as Torture
Both acts or omissions can constitute torture. Omissions may provide the requisite material element, provided that the mental or physical suffering caused meets the required level of severity and that the omission was intentional and not, when judged objectively, accidental.
The following acts have been found to constitute torture: beatings; extraction of nails, teeth, etc.; burns; electric shocks; suspension; suffocation; exposure to excessive light or noise; administration of drugs in detention or psychiatric institutions; prolonged denial of rest or sleep; prolonged denial of food; prolonged denial of sufficient hygiene; prolonged denial of medical assistance; total isolation and sensory deprivation; being kept in constant uncertainty in terms of space and time; threats to torture; the killing of relatives; total abandonment; simulated executions; being held incommunicado; rape; sexual aggression; rubbing of a knife against a woman‘s inner thighs and stomach, coupled with a threat to insert the knife into her vagina; being paraded naked in humiliating circumstances; and being forced to watch someone being sexually assaulted.
Acts of torture embrace 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.
Some acts per se establish the requisite level of suffering to qualify as torture. Rape is such an act. Severe pain or suffering can thus be said to be established once rape has been proved, since the act of rape necessarily implies such pain or suffering; sexual violence necessarily gives rise to severe pain or suffering, whether physical or mental, and in this way justifies its characterisationas an act of torture. It should be noted that other acts of sexual violence can be charged as either persecution or other inhuman acts.
a. Rape
The actus reus of the crime of rape at the ICTY is:
a) the sexual penetration, however slight: of the vagina or anus of the victim by the penis of the perpetrator or any other object used by the perpetrator or; of the mouth of the victim by the penis of the perpetrator,153
b) without the consent of the victim.
At the ICTY, the mens rea is the intention to effect this sexual penetration, and the knowledge that it occurs without the consent of the victim.155
The ICC Elements of Crimes defines the crime of rape is defined as:
a) The perpetrator invaded the body of a person by conduct resulting in penetration, however slight: of any part of the body of the victim or of the perpetrator with a sexual organ, or; of the anal or genital opening of the victim with any object or any other part of the body.
b) By force, or
c) By threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent.157
The mens rea is controlled by Article 30 of the Rome Statute. This means the perpetrator must have acted with intent and knowledge—the perpetrator must have intended to penetrate the victim‘s body, and was aware that the penetration was by force or threat of force. However, nothing in the Elements or Statutes indicates that the perpetrator needed to have any knowledge regarding the consent of the victim.
The definition of the conduct is more gender-neutral and broad than at the ICTY.
However, the ―coercion‖ requirement could be more complicated to prove than the simpler requirement of lack of consent. Notably, the ICC RPE includes rules of evidence related to consent, so it is possible that the ICC judges could conclude that the Elements of Crimes do not reflect a correct reading of the Rome Statute.
The same definition of rape applies as a crime against humanity and as a war crime.
Consent must be given voluntarily, as the result of the victim‘s free will, assessed in the context
of the surrounding circumstances.
Force or threat of force may be relevant to demonstrate a clear lack of consent. While force or threat of force provides clear evidence of non-consent, it is not an element per se of the crime of rape at the ICTY. A narrow focus on force or threat of force could permit perpetrators to evade liability for sexual activity to which the other party had not consented by taking advantage of coercive circumstances without relying on physical force.
b. No Need to Prove Resistance
There is no requirement that the victim provide continuous resistance in order to provide adequate notice to the perpetrator that the sexual activity is non-consensual. However, evidence of resistance could support a finding that the sexual penetration occurred without the consent of the victim and that the perpetrator knew that it occurred without consent.
c. Persecutions on Political, Racial and Religious Grounds
Persecution is defined as an act or omission which: discriminates in fact and which denies or infringes upon a fundamental right laid down in international customary or treaty law (actus reus); and was carried out deliberately with the intention to discriminate on one of the listed grounds (mens rea).
At the ICTY and ICTR, grounds for discrimination can be political, racial or religious. In addition to these, the Rome Statute includes national, ethical, cultural, or gender or ―other grounds that are universally recognized as impermissible under international law‖.
Although persecution often refers to a series of acts, at the ICTY a single act may be sufficient, as long as this act or omission discriminates in fact and was carried out deliberately with the intention to discriminate on one of the listed grounds. However, the Rome Statute requires that the persecution be committed in connection with at least another crime against humanity or crime within the jurisdiction of the ICC.
d. Discriminatory Intent
The crime of persecution derives its unique character from the requirement of a specific discriminatory intent. It is insufficient for the accused to be aware that he is in fact acting in a discriminatory way; he must consciously intend to discriminate on one of the listed bases.
e. Discriminatory Nature of the Act
A discriminatory act exists where a person is targeted on the basis of religious, political or racial considerations, i.e. for his membership in a certain victim group that is targeted by the perpetrator. It is not necessary that the victim belong to the group targeted by the perpetrator.167 However, it must be established that the act did in fact discriminate against the person based on one of these grounds.
f. Acts Amounting to Persecution
Persecution as a CAH can encompass various forms of conduct. Acts amounting to persecution may include any of the acts listed as CAH. However, they can also include other acts which rise to the same level of gravity or seriousness, when committed with discriminatory intent, including other crimes listed in the ICTY statute as well as acts which are not necessarily crimes in and of themselves. This approach is to be distinguished from that taken at in the Rome Statute, which requires a nexus with another crime within the jurisdiction of the
ICC.
Acts which have been found to amount to persecution include:
(a) Deportation, forcible transfer or displacement;
(b) Destruction of property, including religious buildings;
(c) Attacks in which civilians are targeted, as well as indiscriminate attacks on cities, towns, and villages;
(d) Detention of civilians who were killed, used as human shields, beaten, subjected to overcrowding, physical or psychological abuse and intimidation, inhumane treatment or deprived of adequate food and water;
(e) Humiliating and degrading treatment;
(f) Any sexual assault falling short of rape, embracing all serious abuses of a sexual nature;171
(g) Denial of fundamental rights such as the rights to employment, freedom of movement, proper judicial process and proper medical care;
(h) Violations of human dignity such as harassment, humiliation and psychological abuses
(i) Hate speech, on the basis that it violates the right to human dignity and the right to security; and
(j) Forced labour, excluding work (even if forced) required or permitted in the ordinary course of lawful detention, but including forced labour assignments which require civilians to take part in military operations or which result in exposing civilians to dangerous or humiliating conditions amounting to cruel and inhumane treatment.
At the ICTY, acts of persecution, considered separately or together, must reach the level of gravity of other crimes against humanity. In determining whether this threshold is met, acts should not be considered in isolation but should be examined in their context and with consideration of their cumulative effect. Separately or combined, the acts must amount to persecution, though it is not required that each alleged underlying act be regarded as a violation of international law. Conversely, the mere fact that an infringement of rights was committed with discriminatory intent does not mean it is grave enough to be considered persecution. It is not clear whether the ICC will adopt this same approach or whether the Rome Statute requirements of ―severe‖ deprivation and a connection to other crimes will be interpreted
differently.
g. No Requirement of Discriminatory Policy
There is no requirement that a discriminatory policy exists or that, in the event that such a policy is shown to have existed, the accused needs to have taken part in the formulation of such discriminatory policy or practice.176
h. Other Inhumane Acts
The ICTY Appeals Chamber stated that ICTY Statute Article 5(i), covering other inhumane acts, was ―deliberately designed as a residual category, as it was felt undesirable for this category to be exhaustively enumerated. An exhaustive categorization would merely create opportunities for evasion of the letter of the prohibition‖. Other inhumane acts include those crimes against humanity that are not otherwise specified in the ICTY and ICTR Statutes, but are of comparable seriousness.
The elements of other inhumane acts are:
(a) The occurrence of an act or omission of similar seriousness to the other enumerated acts;
(b) The act or omission caused serious mental or physical suffering or injury or constituted a serious attack on human dignity; and
(c) The act or omission was performed deliberately by the accused or person(s) for whose acts and omissions he bears criminal responsibility.
In the Rome Statute, there is a threshold that other inhuman acts must: be of similar character to other prohibited acts; and cause great suffering or serious injury to body or to mental or physical health.
Examples of other inhumane acts are:
a) Sexual violence (which is not limited to physical invasion of the body and may include acts which do not involve penetration or even physical contact, e.g. forced undressing of women in coercive and humiliating circumstances);
b) Forced undressing of women and marching them in public;
c) Beatings; and
d) Forcible transfer, that is the forced displacement of civilians which may occur within a state border; this displacement need not be permanent.
Some of these examples, recognised by the ICTY as ―other inhumane acts‖, have been specifically defined by the ICC as crimes against humanity.
i. Assessing Seriousness
In order to assess the seriousness of an inhumane act or omission, consideration must be given to all the factual circumstances of the case. These may include the nature of the act or omission, the context in which it occurred, the personal circumstances of the victim including age, sex, and health, and the physical, mental, and moral effects of the act or omission upon the victim.
j. Mens Rea
The offender must intend to inflict inhumane acts. At the time of the act or omission, the offender had the intention to inflict serious physical or mental suffering or to commit a serious attack upon the human dignity of the victim, or knew that his act or omission was likely to cause serious physical or mental suffering or a serious attack upon human dignity. It is not required that the accused considered his actions ―inhumane‖.
k. Sexual Slavery
Sexual slavery is not a separate crime at the ICTY and ICTR, although cases that could qualify as sexual slavery have been tried under charges of enslavement. Sexual slavery, although a separate crime, is a form of enslavement. The first element of sexual slavery is therefore the same as enslavement, and the second element reflects the sexual component of the crime:
a) The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty.
b) The perpetrator caused such person or persons to engage in one or more acts of a sexual nature.
Sexual slavery encompasses human trafficking. The drafters of the Rome Statute noted that sexual slavery could involve more than one perpetrator as part of a common criminal purpose. It was also noted that the deprivation of liberty could also include forced labour.
Sexual slavery could also include forced marriages. The Court of BiH has referred to the Rome Statute in articulating a definition of sexual slavery.
l. Enforced Prostitution
The Geneva Conventions included enforced prostitution as an attack on a woman‘s honour (GC IV 1949) or as an outrage upon personal dignity (AP I). In the Rome Statute, it was included as a separate crime. The elements of enforced prostitution are:
a) The perpetrator caused one or more persons to engage in one or more acts of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such
person‘s or persons‘ incapacity to give genuine consent.
b) The perpetrator or another person obtained or expected to obtain pecuniary or other advantage in exchange for or in connection with the acts of a sexual nature.
m. Forced Pregnancy
Forced pregnancy is a crime against humanity in the Rome Statute. It was also recognised in the Vienna Declaration and Programme of Action and the Beijing Declaration and Platform for Action.
To convict a person of forced pregnancy, the prosecutor must prove that the perpetrator confined one or more women forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. The law does not affect national laws relating to pregnancy and abortion, but reflects cases where captors have impregnated women and held them until it was too late to have an abortion.
n. Enforced Sterilization
No treaty before the Rome Statute recognised enforced sterilization as a crime against humanity and war crime. The ICC Elements of Crimes defines the crime as:
a) The perpetrator deprived one or more persons of biological reproductive capacity.
b) The conduct was neither justified by the medical or hospital treatment of the person or persons concerned nor carried out with their genuine consent.

The drafters to the Rome Statute did not mean to include non-permanent birth-control methods within the definition of this crime. They also recognised that genuine consent is not given when the victim has been deceived.
o. Sexual Violence
When considering crimes against humanity, an ICTY trial chamber has recognised that ―‘sexual assault‘ falls within various provisions safeguarding physical integrity (…)‖ and could also constitute an ―outrage upon personal dignity‖, which the chamber considered ―a violation of a fundamental right‖. The chamber also noted that ―sexual assault offences may reach the requirement of gravity equal to that of other crimes against humanity enumerated in Article 5 of the (ICTY) Statute‖.198
The chamber found that the elements of sexual assault as a form of persecution as a crime against humanity are:
a) The physical perpetrator commits an act of a sexual nature on another, including requiring that person to perform such an act.
b) That act infringes the victims‘ physical integrity or amounts to an outrage to the victim‘s personal dignity.
c) The victim does not consent to the act.
d) The physical perpetrator intentionally commits the act.
e) The physical perpetrator is aware that the act occurred without the consent of the victim.
―Other sexual violence of comparable gravity‖ is a crime against humanity in the Rome Statute. The ICC defines the crime as:
(1) The perpetrator committed an act of a sexual nature against one or more persons or caused such person or persons to engage in an act of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person‘s or persons‘ incapacity to give genuine consent.
(2) Such conduct was of a gravity comparable to the other offences in article 7, paragraph 1
(g), of the Statute.
(3) The perpetrator was aware of the factual circumstances that established the gravity of the conduct.
p. Enforced Disappearance
Enforced disappearance has been recognized as a crime against humanity in several international declarations and conventions. ICC definition of Enforced Disappearance is understood under the following factors:
1. The perpetrator:
(a) Arrested, detained or abducted one or more persons; or
(b) Refused to acknowledge the arrest, detention or abduction, or to give information on the fate or whereabouts of such person or persons.
2. (a) Such arrest, detention or abduction was followed or accompanied by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of such person or persons; or
(b) Such refusal was preceded or accompanied by that deprivation of freedom.
3. The perpetrator was aware that:
(a) Such arrest, detention or abduction would be followed in the ordinary course of events by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of such person or persons; or
(b) Such refusal was preceded or accompanied by that deprivation of freedom.
4. Such arrest, detention or abduction was carried out by, or with the authorization, support or acquiescence of, a State or a political organization.
5. Such refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of such person or persons was carried out by, or with the authorization or support of, such State or political organization.
6. The perpetrator intended to remove such person or persons from the protection of the law for a prolonged period of time.
The ICC definition does not require that the perpetrator be involved in both detaining and refusing information about the victim. A person can be guilty of enforced disappearance if they either detained a person, knowing it was likely that there would be no acknowledgment or information provided, or if they refused acknowledge a detention or provide information about it, knowing that a detention had likely taken place.
The underlying act of detention can include maintaining a detention that has already taken place, which could have been lawful. If the perpetrator maintains a detention in these circumstances, the perpetrator would have to know that the refusal to acknowledge or give information about the arrest had already taken place.
q. Apartheid
The Rome Statute also includes apartheid as a crime against humanity. Although apartheid has long been recognised as a crime against humanity, the ICC definition broadened the crime to include situations beyond that which occurred in South Africa. ICC Definition of Apartheid
1. The perpetrator committed an inhumane act against one or more persons.
2. Such act was an act referred to in article 7, paragraph 1, of the Statute, or was an act of a character similar to any of those acts.
3. The perpetrator was aware of the factual circumstances that established the character of the
act.
4. The conduct was committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups.
5. The perpetrator intended to maintain such regime by that conduct.
―Inhumane acts‖ in the context of apartheid can include murder, torture, arbitrary detention, persecution, conditions calculated to cause the destruction of a group or legislative measures to prevent a group‘s participation in politics, society, or economic and cultural activities, etc. At the ICC, apartheid is a specific intent crime, requiring that the perpetrator intend to maintain a regime of systematic oppression through the commission of inhumane acts.
War crimes and CAH may overlap. For example, a mass killing of civilians can be both a war crime and CAH. The main differences between a war crime and CAH include:
1. War crimes require a nexus to an armed conflict, whereas a CAH do not (despite CAH often being committed during armed conflicts), but CAH require an attack on civilian populations;
2. War crimes focus on the protection of certain protected groups, including enemy nationals, whereas CAH protect victims regardless of nationality of affiliation to the conflict; and
3. War crimes regulate conduct on the battlefield and military objectives, whereas CAH regulate actions against civilian populations.
4.4 Differences between the ICC Rome Statute, ICTY and ICTR Statutes on Crimes Against Humanity, Genocide and War Crimes
The drafters of the Rome Statute believed that the definitions of crimes over which the ICC would exercise Jurisdiction would reflect existing international norms. For this reason, they looked to existing relevant treaties and customary international law when developing the definitions of crimes. The most relevant treaties were the Four Geneva Conventions of 1949 and their Additional Protocols of 1977, the Torture Convention, the Genocide Convention, the Statutes of the International Criminal Tribunals for the former Yugoslavia and Rwanda and other conventions dealing with specific crimes such as enslavement and apartheid. In some cases, the definitions of crimes adopted in the Rome Statute reflect a conservative interpretation of the law established by these conventions and forming part of customary international law. In other cases, they reflect a more expansive interpretation of international law in 1998 when the Rome Statute was negotiated. This part of the thesis describes some of the more significant differences in definitions of international crimes as follows:
i. Crimes against humanity
Unlike the Nuremberg Charter, no nexus to an armed conflict is required for crimes against humanity under the Rome Statute. This is an important and positive development in international law and domestic crimes against humanity laws should not include such a nexus. The approach taken in the Rome Statute reflects the fact that crimes against humanity are often committed against civilians in the absence of hostilities and that the seriousness of the crime is not affected by whether it is committed in peace or war time.
In another positive development, the Rome Statute definition, unlike the definition in the Nuremberg Charter and the Statute of the International Criminal Tribunal for Rwanda (ICTR), does not require that the perpetrator have a discriminatory intent when committing a crime against humanity. This means that the attack against civilians that is the crime against humanity need not be committed against a particular group sharing certain characteristics such as nationality or religion.
ii. Torture
Under the Torture Convention, the definition of ―torture‖ requires that the act of torture be committed for a purpose, for example obtaining a confession or as a punishment. It also requires that the torture be committed ―by or at the instigation of or with the consent or acquiescence of a public official or a person acting in an official capacity.‖ The Rome Statute definitions of torture, whether as a crime against humanity or a war crime, does not require either of these conditions to be met. The Rome Statute clearly includes torture when committed by persons with no connection to the state. Furthermore, there is no requirement that torture be committed for a purpose. For example, article 7(2)(e), defining torture as a crime against humanity, covers acts that are purposeless or merely sadistic.
The Rome Statute definitions of torture, better reflects the reality that torture is committed frequently by people who are not ―officials‖ and who may have no purpose in torturing someone than to inflict severe pain and suffering. States parties implementing these crimes into their law should follow the Rome Statute definition.
iii. Enslavement
The definition of enslavement in the Rome Statute builds on the 1926 Slavery Convention definition. However, article 7(2)(c) of the Rome Statute adds an element not present in the Slavery Convention definition. The Rome Statute defines enslavement as ―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.‖ The explicit reference to trafficking in women and children reflects developments in international law since the Slavery Convention was adopted. In particular, it reflects the growing number of women and children who are trafficked and the international community‘s attempts to stop this crime.
iv. Persecution
Article 6(c) of the Nuremberg Charter included the crime of persecution, defining it by reference to certain grounds on which persons could be persecuted (i.e. political, racial or religious). Those grounds reflected the basis for persecution that occurred in the Second World War and which the Nuremberg trials were to address. The Rome Statute definition in article 7(1)(b) provides that persecution can be committed ―against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender or other grounds universally recognized as impermissible under international law.‖ This expanded list of grounds for persecution better reflects the pattern that persecution has taken since the end of the Second World War. It is appropriate that States that incorporate this crime against humanity into their domestic law include a non-exhaustive list of grounds for which persons may be persecuted. Article 7 (1)(h) also provides that, for the purposes of the ICC, persecution must occur in connection with an act referred to in article 7(1) or any crime within the Jurisdiction of the ICC. Importantly, this language differs from the Nuremberg and Tokyo Charters. Those Charters required that persecution be committed in connection with another crime within their respective Tribunal‘s Jurisdiction. The Rome statute provides an alternative. Persecution must occur either in connection with another crime within the Jurisdiction of the ICC or in connection with any act referred to in article 7(1). This article sets out all the acts that could amount to a crime against humanity for the purposes of the ICC. This means that persecution in connection with a single act of, say, torture may fall within the Rome Statute definition even if the single act of torture would not itself amount to a crime against humanity.
v. Enforced disappearance
There are two major differences between the definition of enforced disappearance in article 7(2) (i) of the Rome Statute and those found in other international instruments. The first is that the Rome Statute definition provides that, in addition to states, political organizations should be held responsible for the crime of enforced disappearance. Until the adoption of the Rome Statute, enforced disappearances could only be committed by states or with their approval or acquiescence. Secondly, the Rome Statute definition adds the concept of detention for a
―prolonged‖ period of time to distinguish enforced disappearance form other unlawful deprivations of liberty.
Article 7(2) (i) defines the crimes against humanity of enforced disappearance as:
The arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of , a State or a political organisation, followed by a refusal to acknowledge the 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.

vi. War Crimes
Article 8 of the Rome Statute gives the ICC Jurisdiction over war crimes when committed during international conflicts (articles 8(2)(a) and (b) and when committed during non-international armed conflicts (articles 8(2)(c) through (f).
Article 8(2)(a) of the Rome Statute, defines war crimes as grave breaches of the Geneva Conventions of 12 August 1949, namely any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention.‖ Eight acts are listed. These largely follow the provisions in the Geneva Conventions.
Article 8(2)(b) defines war crimes as ―other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts.‖ Twenty six acts are enumerated.
In most respects, the definitions of war crimes committed in international armed conflict in the Rome Statute are consistent with existing international law, in particular with the definitions in the four 1949 Geneva conventions, and the Hague Regulations.
War crimes committed in non-international armed conflicts are addressed in international law. Subparagraph 8(2)(c) follows common article 3 of the four Geneva Conventions.
Subparagraph 8(2)(e) draws on The Hague Regulations, the Geneva conventions, and Additional
Protocol II. Subparagraphs 8(2)(d) and (f) limit the scope of the ICC‘s Jurisdiction over acts committed in non-international conflicts. They exclude internal disturbances and tensions, riots, isolated and sporadic acts of violence and other acts of a similar nature.
The following explains some of the more important differences in the war crimes
definitions.
i. A showing of serious injury to body or health
Three of the crimes listed in article 8(2)(b) of the Rome Statute are found in article 85 (3) of Protocol I: Intentionally directing attacks against civilian objects (b) (ii); intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or wide spread and severe damage to the natural environment (b) (iv); and attacking or bombarding, by whatever means, town, villages etc (b) (v).
Article 85(3) of protocol I to the Geneva Conventions States that ―the following acts shall be regarded as grave breaches of this Protocol, when committed willfully, in violation of the relevant provisions of this Protocol, and causing death or serious injury to body or health.‖ By contrast, the Rome Statute does not explicitly require ―death, serious injury to body or health‖ in connection with these three crimes. States are urged to adopt the Rome Statute definition.
ii. Widespread and severe damage to the natural environment.
Article 8(2)(b)(iv) of the Rome Stature includes ―widespread, long-term and severe damage to the natural environment‖ in the list of acts defining the war crime of internationally launching an attack in the knowledge that such attack will cause incidental loss. This violation is not found in the Geneva Conventions or the Additional Protocols. Note however the article
8(2)(b) threshold that such damage must be ―clearly excessive‖ in relation to the overall military advantage anticipated.

iii. Indirect transfer of civilian population
Article 8(2)(b) (viii) defines the war crime of transferring civilian populations by an occupying power. The Rome Statute definition of this crime refers both to the direct and indirect transfer of civilian population and includes the transfer of its own civilian population into territory it occupies as well as the deportation or transfer of all parts of the civilian population of the occupied territory.
This crime is based on article 49 of the Fourth Geneva Convention, which is now recognised as a grave breach in article 85 (4)(a) of Additional Protocol I. However, the Rome Statute expands this prohibition to cover transfers of the occupying power‘s own civilian population into the territory it occupies. The additional prohibition against ―indirect‖ transfers in article 8(2)(b) (viii) is intended to make explicit that this crime includes the situation of an occupying power failing to take measures to prevent its civilian population from transferring itself into the territory it occupies.
iv) Attacks against UN peacekeepers
Article 8(2)(b)(iii) of the Rome Statute prohibits intentionally directing attacks against UN personnel involve in humanitarian or peacekeeping missions as long as they are entitled to protection given to civilians under international law of armed conflict. The Rome Statute is the first international treaty to include in a war crimes definition, explicit reference to international attacks against this particular group of people and their installations and property.
v. Crimes of Sexual Violence.
Under article 8(2)(b)(xxii) of the Rome Statute, ―committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2(f), enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva
Conventions‘ is a war crime when committed in international armed conflict.
Although none of these acts are ―new‖ crimes, the Rome Statute is the first treaty to contain such an extensive list of crimes of sexual violence. For example, article 4(e) of the
Statute of the ICTR prohibits ―rape, enforced prostitution, and any form of indecent assault.‖ Rape, forced prostitution, and indecent assault are prohibited under the Fourth Geneva Convention article 27, and Protocol 1, article 76 (1), but are not expressly listed as grave breaches. Article 32 of the Geneva Convention prohibits any ―measure of brutality whether applied by civilian or military agents.‖ Protocol II, article 4(2)(e), prohibits ―outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution, and any form of indecent assault‖. Article 4(2)(f) prohibits ―slavery and the slave trade in all their forms.‖ Rape was prosecuted as a war crime by the International Military Tribunal for the far East in the Tokyo trials.
The definition of war crimes of sexual violence committed in armed conflict not of an international nature is set out in article 8(2)(e)(vi). This provision contains the same list of acts as article 8(2)(b)(xxii), namely rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence.
This definition compares favourably with those found in other international conventions covering crimes of sexual violence committed in internal conflicts. For example, article 4(2)(e) of Additional Protocol II prohibits rape, enforced prostitution, and any form of indecent assault.
Article 4(2)(f) prohibits ―slavery and the slave trade in all their forms.‖ Article 4(e) of the statute of the ICTR prohibits ―rape, enforced prostitution, and any form of indecent assault. The list of acts is the same as in article 8(2)(b)(xxii) covering.‖ States parties are urged to ensure that their national laws criminalize every act listed in articles 8(2)(b)(xxii) and 8(2)(e)(vi) both as war crimes and as national crimes.
vi. Child Soldiers
Under articles 8(2)(b) (xxvi) and 8(2)(e)(vii), it is a crime to conscript or enlist children under the age of 15 years into the national armed forces or to use them to participate actively in hostilities. This is consistent with Protocols I and II additional to the Geneva Conventions and the UN Convention on the Rights of the Child, which set 15 as the minimum age for military recruitment and participation.
However, a stronger standard is established in the Optional Protocol to the convention on the Right of the Child on the involvement of children in armed conflict, which establishes 18 as the minimum age for participation in armed conflict, for compulsory recruitment or conscription and raises the minimum age for voluntary recruitment by governments from the current age of 15 years. The Protocol also prohibits any form of recruitment of children under the age of 18 by armed groups. States should adopt the standard in the optional protocol, not the Rome statute, and prohibit any recruitment of those less than 18 years, whether forced or voluntary.
4.5 Differences in the Contextual Requirement of Crime against Humanity (CAH)
The statutes of the international tribunals generally reflect CAH as they existed under customary international law. However, there are some differences in the contextual requirements for CAH in the Statutes of the various international tribunals, which are discussed in more detail below.
i. Articles 5 and 3 of the ICT Yugoslavia and Rwanda Statute
The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population: (a) murder; (b) extermination; (c) enslavement; (d) deportation;
(e) imprisonment; (f) torture; (g) rape; (h) persecutions on political, racial and religious grounds;
(i) other inhumane acts.
ii. Article 7 of the ICC Rome Statute
For the purpose of this Statute, ‗crime against humanity‘ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
This chapter deals with the general contextual elements that apply to all crimes against humanity. These are the essential elements which must be established before any particular act can constitute a crime against humanity.
The main contextual elements that are discussed in this chapter are:
i. The meaning of an ―attack‖ against the civilian population;
ii. The requirement of a nexus between the attack and the acts of the accused; iii. The definition of the civilian population; iv. The definition of the terms ―widespread‖ and ―systematic‖; and
v. The knowledge required on the part of the accused of such an attack.
4.6 Challenges in the Prosecution of Crimes Against Humanity in International Law
International law permits states to investigate and, if there is sufficient admissible evidence, to prosecute crime against humanity based on universal jurisdiction, regardless of where those crimes were committed, regardless of the nationality or location of the suspect or the victims and irrespective of any specific connection to the prosecuting state. One of the justifications for this rule of international law is that such crimes are crimes against the international community as a whole and, as such, each member of the international community has an inherent interest and responsibility to ensure that perpetrators of such crime do not evade justice or fail to provide reparations to the victims and their families .
Over the past decade however, there are cases in which persons suspected of the crime against humanity have escaped investigation and prosecution205. In fact, the commission of these crimes continue to plague nearly every corner of the globe. While this has demonstrated the urgent need to enforce such crimes vigorously, unfortunately, their effective prosecution remain elusive in spite of the important advances of the past twenty years, including the establishment of the International Criminal Court . The Writer has identified the following as challenges to the prosecution of crimes against humanity.

4.6.1 Challenges Related to international Jurisdiction
The universal jurisdiction rule applies to crimes against humanity, the problem however, is to determine when and on what terms these crimes should be prosecuted on the basis of universal jurisdiction . In some countries, treaties are automatically the law of the land and can be relied upon directly in domestic courts. In many others like Nigeria, however, treaties must be incorporated into domestic law in order for someone to rely on them in court. In those cases, a domestic legislature must adopt implementing legislation. Consequently, while the number of states that have expressly recognized crimes against humanity and war crimes in their domestic criminal law has increased exponentially in recent years, it is still the case that these provisions do not exist in all countries. Even in the many states where such domestic criminal laws do exist, not all have explicitly provided for universal jurisdiction prosecutions. This gap between international obligations, and what domestic law actually allows for, poses a significant challenge in the prosecution of crime against humanity .
The legal basis for exercising universal jurisdiction differs depending on whether the crime is set out in an international treaty or is part of customary international law. While most experts agree that customary international law allows for universal jurisdiction prosecutions of all crimes against humanity, it is not clear whether, in relation to states are obliged to prosecute such crimes . These uncertainties have real-life consequences, as the Pinochet case demonstrated. There, the British judges showed extreme reluctance to apply customary international law and seemed comfortable only when they were dealing with specific treaty provisions that had been incorporated into national law.
A closer look at the Pinochet case illustrates exactly how difficult it is to prosecute a case of crime against humanity based on the principle of universal jurisdiction. In this case, Spain charged that Pinochet had been responsible for the murder of Spanish citizens in Chile at the time when he was the Chilean President, and that he was responsible for systematic acts in Chile and other countries including murder, torture, disappearance, illegal detention and hostagetaking. On that basis, Spain asked the UK to arrest Pinochet, and to extradite him to Spain. Augusto Pinochet challenged his threatened extradition to Spain on the basis that he was immune from prosecution because he was a former head of state. State (or sovereign) immunity is a longrecognized legal rule that since all states are sovereign and equal, they are prevented from sitting in judgment on the acts of each other. The seven judges who heard the case in the House of Lords (the highest court in the UK) found that under the laws of the UK, a former head of state is immune from prosecution for official acts undertaken while serving as head of state, regardless of where the official acts occurred.
The judges then considered whether Pinochet was immune from prosecution for the acts of torture, conspiracy to commit torture, murder, and conspiracy to murder. They concluded that state immunity did apply to the charges of murder and conspiracy to commit murder. Apparently, the judges did not believe that murder was a crime of sufficient gravity to fall outside the usual rules by which immunity applies. At the same time, six of the seven judges held that state immunity did not apply to the allegations of torture and conspiracy to commit torture. They relied heavily on the UN Convention against Torture in deciding that Pinochet was not immune. In reaching that decision, the judges concluded that while the Convention against Torture does not explicitly refer to heads of state, heads of state were included within the definition of torture in Article 1 of the Convention which refers to a public official or other person acting in an official capacity. In addition to determining whether Pinochet was immune from prosecution, the House of Lords also had to decide whether the crimes alleged by Spain were subject to extradition under the laws of the UK. Under UK law, if extradition is sought for crimes committed outside the territory of the requesting state (extra-territorial crimes), then those crimes must also be punishable under the UK’s law when they occur outside its territory. In the House of Lords decision, the application of this rule took a surprising turn. The judges accepted Pinochet‘s argument that for this standard to be satisfied, the crimes at issue must have been crimes punishable in the UK at the time they occurred, not just at the time the extradition request was made. Under this standard, it was not enough that torture, murder, and hostage-taking were punishable under UK law even if they occurred outside the country at the time the arrest warrant was issued against Pinochet. Instead, the question became whether each of these offences (as well as conspiracy to commit both torture and murder) were recognised as extraterritorial crimes in the UK at the time the alleged offences occurred. Under UK law, torture became an extraterritorial offence on 29 September 1988, through an amendment to the UK law recognizes murder as an extra-territorial offence, but only if committed after 1 August 1978 in one of the states to which the provisions of the European Convention on the Suppression of Terrorism apply (which do not include Chile). Most of the charges contained in the Spanish arrest warrants were thus eliminated, including all torture charges pre-dating 29 September 1988, and all murder (and conspiracy to murder) charges pre-dating 1 August 1978. Both torture and murder charges relating to acts alleged in Spain survived, given that those crimes were not extra-territorial (they were alleged to have occurred in the country requesting extradition). The judges also threw out the charge of hostage-taking, based on Lord Hope‘s analysis that the acts alleged did not meet the definition of hostage-taking contained in the relevant UK law. The majority of the judges also found that torture is a crime under customary international law. In particular, they concluded that prohibition of torture amounts to a norm with special status (jus cogens) that takes precedence over treaties and customary international law generally. Yet, despite this finding, all the judges except one still found it necessary to rely on the Convention against Torture to conclude both that torture met the extradition standards of UK law and that Pinochet could not claim state immunity from the torture charges. In the end, the House of Lords found that Pinochet was subject to extradition and was not entitled to state immunity only with regard to the charges of torture and conspiracy to commit torture that occurred after 8 December 1988 (the date when the UK finally ratified the Convention against Torture). The actual extradition proceedings against Pinochet could then proceed and got underway in September 1999.
This case illustrates that immunity laws are in a confusing state in many countries. It seems that most states have not modified their existing laws on immunities to take account of the evolution of law towards a more restricted view of official immunity. Even when ratifying international treaties such as the Convention against Torture, which are predicated upon the responsibility of government officials for their criminal acts, states have not modified their laws to strip immunity for such acts. Thus, in cases involving current or former heads of state, immunity laws present a substantial obstacle to prosecutions based on universal jurisdiction.
4.6.2 High Burden of Proof
Crimes against humanity involves widespread and systematic‘ attacks ranging from murder and torture to acts of sexual slavery and rape on a civilian population. The Prosecutor therefore is required to prove that the underlying offences are committed as part of a widespread or systematic attack against a civilian population . The Prosecutor in addition to proving this is also expected to ascertain that the perpetrator has committed the attacks with the knowledge of the attack212. Under Article 30 (3) of the International Criminal Court Statute213, ―knowledge‖ means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. Hence, the Prosecutor is expected to prove that the defendant was aware of either the existence of the attack or its consequence. Particularly, he needs to prove that the defendant knew the conduct was part of or intended to be part of a widespread and systematic attack directed against a civilian population . The International Criminal Tribunal for Rwanda (ICTR) Statute requires that the widespread and systematic attacks directed against a civilian population must be on the national, ethnic, racial, political, and religious grounds215. Hence, an ICTR Prosecutor is expected to prove that the attacks are directed on a civilian population defined by either of the grounds cited above. This means that under the ICTR, attacks committed on a civilian population, who could not be identified as national, racial, ethnic, political or religious group are not be considered as Crimes against Humanity. Meanwhile, in other instruments such as the ICC statute, where crimes against humanity are defined as widespread and systematic attacks on any civilian population or as simply attacks on civilian population, the proof of the existence of widespread or systematic attack on such population, with the perpetrator‘s knowledge, is enough to say crimes against humanity is committed. In other words, the prosecutor needs to show that the victim is civilian and he is targeted as part of the systematic and widespread attack on a civilian population .
In addition to all these requirements of proof emanating from the legal requirements, there is also the context in which these crimes occur. Usually they occur within the context of massive scale conflicts either of an intra or inter-state nature. Often their Prosecution involves the indictment of many individuals. These factors coupled with the requirements of the proving the elements of the crimes pose a great challenge to a prosecutor. For example, in case of Genocide, the prosecutor needs to provide witnesses from different places of the country where such crimes are committed to show that intent to destroy a particular group exists by reason of speeches made by the group of perpetrators, the consistent targeting of a group believed to be a victim of the atrocities, the existence of the overall plan for the destruction of such group, the method employed in one area also is similar or identical with that used in other areas. To show all these facts before the Courts, the Prosecutor needs to call lots of witnesses, and needs to produce other evidences that are deemed to prove his case. This requires the prosecutor to dedicate his various resources and efforts in to each case. This fact also has its bearing on the speediness of the trial as more and more of witnesses are called to testify and more and more of time is taken hearing other evidence, then the trial might take long time to complete with a negative impact on the right of the accused to a speedy trial . This could be illustrated more when one sees the fact that during its sixteen years of its existence, the ICTR dispatched only 36 cases, while 8 cases are on appeal, 8 accused were acquitted, and another 22 still in progress . This number is doubt small in comparison to the domestic prosecutions where a good number of people were prosecuted . The reason for this discrepancy may not be unconnected to the fact that at the international court or tribunal, both the Prosecutors and the Courts are faced with a challenge in trying to balance the need to produce evidence against the accused and the right of the accused for a fair trial.
4.6.3 Challenges of Legitimacy for the ICC
The ICC was established as the first permanent international criminal tribunal charged with entertaining cases of the commission of Crimes against Humanity, Genocide, and War Crimes in the territory of the members or by their nationals. However, it faces a huge challenge of legitimacy resulting from the referral of the Darfur case via the UNSC and its subsequent indictment of the President of Sudan, Omar Hassen Al-Beshir . It managed to do this, through Art.13 (b)of the ICC Statute which allows the United Nations Security Council (UNSC) to refer a case to the court .
It would be recalled that after many efforts to take action following the conflict that has raged over the western Sudan territory of Darfur , the UNSC decided to set up a Commission of Inquiry on Darfur on 18 September, 2004 . In January 2005, the Commission came up with its report, which found that crimes were being committed in Darfur with the government involvement but there was ‗no evidence‘ to suggest that it was Genocide . The Commission also suggested that the Khartoum government was ‗unlikely‘ to bring the perpetrators before justice, so the UNSC should refer it to the International Criminal Court (ICC). The Commission emphasized that the ICC is the best option to prosecute the perpetrators and annexed evidence as well as a sealed list of persons accused of committing crimes and the reasons for them to be regarded as such .After considering the recommendation, the UNSC decided to refer the case to the ICC on 31March, 2005, with the cooperation of all member states of the UN in the work of the court , by a vote of 11-4 with the rest abstaining226.The ICC Prosecutor, Luis Moreno Ocampo acting under this Mandate, on 27 Feb, 2007,appliedfor a warrant to be issued on Ahmed
Muhammed Harun, a former Minister of State for the Interior of the Government of Sudan and Currently Minister for Humanitarian Affairs, and Ali Muhammed Ali Abdel-Rahman (Also known as Ali Kushayb) an alleged Militia leader .
The Sudanese government refused to cooperate with the Court and even refuse to recognize the court. Up on the application of the Prosecutor, ICC issued warrant against the
President Omar Hassan Al-Basher in March, 2009.In addition to the government officials, the Prosecutor also charged a JEM military commander, named Abu Garda for War crimes and crimes against humanity. Mr. Abu Garda was summoned to appear before the court, which he accepted and made a first appearance before the court. However, Pre-trial Chamber refused to confirm the charge on him228.The ICC‘s issuance of a warrant against the President of Sudan has also met opposition among the leaders of Africa. The leaders through the AU Assembly of Heads of States and Governments expressed their ―deep concern‖ at the application of the Prosecutor for the warrant of arrest of President Bashir and after the warrant is issued expressed their ―grave concern‖ on the impact the indictment might ensue difficulties on the peace process in various regions . They subsequently decided to suspend all cooperation with the court by citing Art.98 of the ICC statute .
In another case, while Israeli Defence Forces (IDF) repeatedly bombed the Gaza Strip in December 2009 and April 2014 as many as 4000 civilians including women and children perished . A UN report later found that war crimes were committed during these bombing campaigns232. The UNSC so far did nothing to present accountability to these crimes, and no effort was made particularly on its part to refer the case to the ICC based on Article 13(b) of the ICC Statute . The writer believes that the Gaza bombing campaigns and the subsequent reaction of the UNSC did not only challenge the legitimacy of the UNSC, but also poses a huge challenge to the prosecution of crime against humanity under international law as it deprives the ICC of the opportunity to hear such issues. Under the UN charter , the UNSC has been given not only the power to act on those situations that are deemed to be threats to the international Peace and Security but also the power to determine what constitutes a threat to international peace and security. As a political organ, it makes these decisions based on political considerations. A political organ is not expected to decide on legal issues purely on legal considerations; the political considerations outweigh, if not dominate it entirely. Moreover, the fact that out of the fifteen members of the Council Five of them has veto power (the so called P5) also indicates that their interests are always respected. They can protect their allies and move to punish those who do not serve their interests. Hence, the existence of such a system as one of its trigger mechanisms presents a massive challenge of legitimacy of the court as it could easily be considered as a tool of the P-5s rather than an independent international judicial body. This in turn presents a massive challenge of securing cooperation with states in arresting perpetrators wanted by the court and subsequent detention after sentencing.
4.6.4 Intimidation and Withdrawal of Witnesses
Apart from political challenges, another major challenge to the successful prosecution of crime against humanity is intimidation and withdrawal of witnesses. This was particularly the situation faced by the ICC by in the Kenyan cases. The withdrawal of these witnesses and their testimonies faces the Prosecutor with a major setback in the collection of evidence. Nevertheless, in her determination to pursue the Kenyan cases, the Prosecutor responded by compelling the attendance of the eight withdrawn witnesses in the Ruto case, through issuing a subpoena that was approved by Trial Chamber. In the case against President Kenyatta, where two key witnesses withdrew, the Prosecutor requested the adjournment of the trial date to provide her with more time to ―complete efforts to obtain additional evidence‖. The Trial Chamber decided to adjourn the trial until October 7, 2014, in order to give the Government of Kenya an opportunity to provide the Prosecution with access to certain records, and to provide the Prosecution with more time to collect sufficient evidence .
In taking action against those corruptly influencing witnesses, the Prosecutor requested Kenya to arrest Walter Barasa, who allegedly tried to bribe potential witnesses in the case against Mr. Ruto. These actions would make him criminally responsible for several offences against the administration of justice under Article 70 of the Rome Statute , in particular for corruptly influencing witnesses under Article 70(1) (c) . On May 14, 2014, Kenyan Principal High Court Judge Richard Mwongo ordered that an arrest warrant be issued against Mr. Barasa. However, the accused continues to attempt to block his extradition to the ICC by appealing the decision. As a result, on May 29, Kenya‘s Court of Appeal decided to suspend the arrest warrant . This incident is a clear case intimidation and unjust action of the prosecution against African leaders and as such Africans perceived the court to be sentimental and unfair to the Africans.
4.6.5 The Capacity to Entertain Many Cases at a Time
Unlike the ad hoc Tribunals, the ICC, which currently is composed of 114 member states , is required to initiate proceedings if either Crimes against Humanity, Genocide or War crimes or two or all of them occur within these 114 member states‘ territories or if these crimes are committed by their national(s) as per Art.12 of its Statute . It might happen that cases within the jurisdiction of the court could occur in many countries at a time. This creates a personnel, financial as well as logistical challenges for the work of the Court. Currently, the Court has 18 judges in three divisions with the Pre-trial division composing of two chambers of three judges each, the Trial chamber composing of eight judges and the appeals chamber consisting of the president of the court with four other judges .
The Office of the Prosecutor where it is made up of three divisions; the prosecutions, investigations and the jurisdiction, complementarities and cooperation divisions, headed by the deputy prosecutor and two other staff members . If there were to be many more cases, these personnel as well as other resources of the court may well be stretched. This will in turn impact the court‘s mission of ending impunity as it might be forced to cut back on some cases and forced to choose the high profile cases over ‗the less important‘ ones( as the high profile cases would give it high publicity and create the perception that it is performing).
4.6.6 The Challenge of Providing Adequate Funding for the Trials
The International Criminal Tribunal for Rwanda gets its funding from the UN‘s regular budget, while the Special Court gets its funding entirely from voluntary contributions of the international community and the ICC from the regular assessed contribution from member states and other voluntary contributions by the international community. The domestic tribunals, on the other hand, are funded mostly by their own governments from the regular budget of the governments . In practical terms, however, these funds may hardly be available for use or if they are, they are often inadequate for the activities to be carried out. For example, in case of the ICTR, the UN often cannot meet the required budget and for the Special Court, since the contribution is voluntary it is always difficult to get the contribution needed .
There might also be donor fatigue which makes states and international organizations alike to be reluctant. This problem could be even worse in the domestic trials as the domestic trials are marred by delays and violation of the Fair Trial Guarantees from which the international community tends to shy away rather than being associated with, let alone fund such trials. When the international community abandons them, the Countries being poor, the trials suffer a lot and the violations of the rights of fair trials also get worse as there will not be state appointed defence counsels, there will be fewer prosecutors and investigators, and no experts participating in the investigation, thus causing delays in the investigation and the subsequent trial. This is what has happened in Rwandan and Ethiopian cases . There is also the case of Hissene Habre, entertained by Senegal, in light if its agreement to prosecute Hissene Habre on behalf of Africa as per the decision of the AU Assembly of Heads of States and Governments with the assumption that the funding for the Trial will come from the voluntary contribution of member states and the international community especially the EU and AU member states. However, neither the EU nor the member states contributed to the budget of the trial which led the AU to pass its decision to call a donor conference. This also did not materialize which led the
Senegalese President to threaten to ‗hand Habre over to the AU‘ signaling his frustration with the process . Securing a regular and adequate funding is also another challenge to the success of prosecutions of crimes against Humanity and Genocide.
4.6.7 Lack of Uniform Legal Regime
Despite extensive debates surrounding the scope of the contextual element of crimes against humanity during the 1998 negotiations leading up to the formal establishment of the permanent International Criminal Court (ICC), the meaning of the so-called State or organizational policy requirement contained in Article 7(2)(a) of the Rome Statute remains unsettled over a decade later247. The origins of this ambiguity can be traced to its earliest legal use in the Nuremberg International Military Tribunal immediately after World War II, and the corresponding vagueness of its subsequent interpretation and uncertain status in customary international law . This lack of clarity has persisted throughout the more recent history of international criminal law. Part of the problem is that, unlike the crime of genocide, which has a widely accepted definition in the 1948 Genocide Convention, or war crimes, which are codified in the 1949 Geneva Conventions and their additional protocols, there is no single treaty addressing crimes against humanity . Thus, despite the centrality of the offense to modern world, the various definitions of the crime and its contextual and other elements have been developed and used in different national and international contexts over the years have made prosecution of crime against humanity very difficult .
A related problem here is that, although crimes against humanity are a core part of the Rome Statute, there appears to be a lack of conceptual consensus on what makes a crime against humanity a crime against humanity as opposed to a common offence under domestic law. The predominant view, at least in the ICC formulation of the crime, requires the commission of certain underlying prohibited acts such as murder or rape as part of a widespread or systematic attack directed against any civilian population. The multiple commissions of the impugned acts against civilians will give rise to crimes against humanity when carried out pursuant to, or in furtherance of, a State or organizational policy. But even the Rome Statute definition does not resolve the problem. For example, Professor Darryl Robinson has identified about four theories associated with the State or organizational policy requirement that serve as a key component of the ICC definition of the offense . The starting point is the plain textual requirement that there must be a State policy to commit the attacks. That said, he shows that some scholars argue that no policy element is required, while others insist that there must be a policy. Similarly, regarding the organizational aspect, some theorists claim that in the absence of a State policy there must be an organization, but only a ―State-like‖ organization having some type of policy would qualify. Finally, there is the even broader pro–human rights suggestion that crimes against humanity should encompass any entity with the capacity to carry out crimes against humanity . The latter category would presumably include some of the judges at the ICC who have advanced, in a seminal decision that will be discussed later, the so called Basic Human Values Test as the determinative criterion for the classification of a prohibited act as a crime against humanity. In Ethiopian Criminal code , for instance, crimes against humanity are not recognized as a crime. Ethiopia is the first country in Africa to ratify the 1948 Convention on the prevention and punishment of the crime of Genocide254. After ratifying it, it has included it under the 1957 Penal Code of the Empire of Ethiopia. Under this law , committing killings, bodily harm or serious injury to physical or mental health in any way whatsoever, or imposing measures to prevent the reproduction or the continued survival of the members of the group or their children, compulsively moving or dispersal of peoples or their children or placing them in conditions calculated to bring about their death or disappearance against national, ethnic, racial, religious or political group, whether in time of war or in time of peace, is considered as Genocide and is punishable with rigorous imprisonment of five up to life and exceptionally up to death. According to this same article, planning, organizing and engaging in the above illustrated acts results in the same kind of punishment.
However, this was later repealed in 2004 by the new Criminal Code of the Federal Democratic Republic of Ethiopia . With the exception of adding to the list of protected group,
―causing members of the group to disappear‖ to the list of underlying offences and shortening the default punishment to rigorous imprisonment of five to twenty five years and adding life imprisonment to the punishment of more serious cases, it largely retained the elements listed above . Unlike its 1957 counterpart, it does not mention Crimes against Humanity258.
On the other hand, in the case of ICTR crimes against humanity occur when the widespread and systematic attacks are directed on a civilian population on national, ethnic, racial, political and religious grounds. Moreover, there is also a difference with respect to the underlying offences included under the definition of crimes against humanity. Thus, despite its frequent invocation in contemporary legal and popular discourse, it is not entirely clear what is the distinguishing characteristic or feature of a crime against humanity that moves it from the realm of the domestic to the international, such that its commission would be easily identified and prosecuted. All these highlight the piece meal approach to the understanding of the crime. This kind of definitions undermines the conception of the crimes and the integrity of the international criminal justice system. It creates different understanding of what constitutes Crimes against Humanity and what does not, its eventual consequence being politically motivated prosecutions. This is so because governments could prosecute their opponents, either in their territories or outside it, by including some elements in the definition of either crimes against humanity or genocide just to settle political score. This is also another challenge for prosecuting crimes against humanity under international law.
4.6.8 The USA and the ICC
The United States of America, being the most powerful nation, has been actively participating in matters of international criminal justice since the days of Nuremberg and Tokyo
Trials. However, starting from the negotiation for the establishment of the Court it has been its most vocal opponent . It is one of the seven countries which voted against at the UN conference for the establishment of the court . The USA opposes primarily the Court‘s
assumption of jurisdiction based on territoriality principle, the power of the prosecutor to initiate proceedings by its own motion or (propio motu) powers and the court‘s power to decide on whether a state is unable or unwilling to prosecute .
The US believes that such powers will result in a politically motivated prosecutions against its armed forces stationed in other countries which are members of the court263. The US later removed its signature of the court that it signed during the last days of the Clinton
Administration and started to seek immunity agreements (later became known as BIAs or Bilateral Immunity Agreements ) with countries which are members or non-members of the court protecting its citizens from prosecutions that might arise in the territory of these countries . By 2006, the US had secured more than 100 of such BIAs out of which 46 were state parties to the ICC . In Africa alone it has managed to secure the agreement of 38 states out of 53 countries in total, out of which 24 are state parties267.
As per the American Service members‘ protection Act (ASPA), Countries who refuse to sign any such agreement will lose their military aid and other economic assistance . These measures suggest that the ICC has the USA as its most powerful enemy. This is a huge challenge for the court when it investigates cases in which there are serious crimes against humanity committed by Americans. Not prosecuting them would seriously jeopardize its legitimacy as a judicial organ and it could not proceed to prosecute them because the states would refuse to detain and transfer the persons wanted by the Court. This will seriously undermine its work.
CHAPTER FIVE
SUMMARY AND CONCLUSION
5.1 Summary
Chapter one discussed the general framework of the dissertation relating to the acts which constitute the crime against humanity and the justification of this research which was premised on the prevalence of the commission of the crime within the recent time. This general framework gave a comprehensive understanding of the topic by running through the objectives, statement of problem, literature review and research methodology as the principal bedrock of the research. Chapter two discussed the theoretical basis for the understanding of the concept of crime, right from the word go of human existence to the develop idea of public understanding of the meaning of crime. the chapter gives various definition of crime by different juris and the factors that led to the commission of crime.
Chapter three entitled, ―evolution of law crimes against humanity” discussed the evolution of the constitutive elements of the crime against humanity such as nexus to armed conflict, discriminatory motive, widespread or systematic attack, enforced disappearance and apartheid among others as requirements necessary to established the commission of the crime against humanity. Under this consideration, the provision of Article 7 of the ICC statute is a significant contribution to the understanding of crime against humanity, as it is the first instance of a definition of crimes against humanity developed by multilateral negotiations among 160 states. The result of the natural tension between delegations favoring either a maximalist or a minimalist approach is a definition that is relatively balanced: although it contains more detail and precision than previous definitions, it also does not backtrack on essential points. Of particular importance is the absence of any requirement of a nexus to armed conflict or of a discriminatory motive. The text preserves the disjunctive “widespread or systematic” threshold test, together with an elaboration of the concept of an “attack against any civilian population,” which is derived from relevant precedents. The explicit recognition of the policy element will be regretted by some observers, as it was not explicitly identified in previous instruments, but it is well supported by the jurisprudence of international and national tribunals and the relevant commentaries. The inclusion of enforced disappear are of particular concern to the international community. Relatively vague terms such as “persecution” and “other inhumane acts” are preserved by clarifying and circumscribing their scope.
Chapter four entitled ―legal framework on the constitutive elements of crimes against humanity” discussed the various constitutive elements of crimes against humanity in international law and the process of multilateral negotiation which necessitated a more precise and regulative approach than in previous instruments. This arguably served to strengthen the definition and the basis for individual criminal responsibility for these acts. Article 7 of the ICC statute sets forth a modernized and clarified definition of crimes against humanity as a basis for sound international criminal prosecution at all times.
The chapter also discussed the challenges of crimes against humanity in international law in relation to the practical approach of the theoretical framework by the use of relevant judicial authorities such as the Pinochet case, President Omar Hassen Al-Bashir‘s case among others. These challenges were considered on the grounds of jurisdiction, high burden of proof, legitimacy of the court (ICC), intimidation and withdrawal of witnesses, inadequate funding, lack of uniform legal regime among others.
Chapter five entitled ―summary and conclusion” which this segment is centered, gave the general concluding framework of the dissertation by identifying findings in relation to the statement of problem and objective of the research earlier noted in chapter one of the dissertation. In this wise, chapter five is concluded by preferring viable recommendations to addressing the findings made.
5.2 Findings
The findings of this dissertation are as follows:
i. Lack of Proper Enforcement Mechanism and Logistics in International Law
This challenge is due to the general weakness of international law where to certain extent states are reluctant in carryout the specific obligation of particular treaties such as the obligation created under the Rome Statute. In international law generally there are no logistic in place for the full implementation of the brenches of obligation of states and even where there the regime of international politics will not permit objectivity for sanctions and implementation. For example, enforcement mechanism against the Super Power (such as USA and Israel) in particular is very difficult compare to developing countries such as Nigeria, Kenya, Sierra Lone and Zimbabwe. It is for this political sentiment that the African countries have remarks that the International Criminal Court Prosecutor is unjust to the African Continent as shown in the preceding chapters ii. Lack of a Specific International Treaty on Crimes Against Humanity
On this issue, the study found that, although it is among the major international crimes,
‗Crimes Against Humanity‘ remains without a comprehensive definition and constitutive elements in a single/specific international convention/statute/covenant.
Unlike the crime of genocide and war crimes, the definition and constitutive elements of
‗crimes against humanity‘ in international law varies from one statute to another since the 1945
Charter of the International Military Tribunal to punish Nazi atrocities (also known as the Nuremberg Charter. This is evident from the differences between the Statutes of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR), that caused uncertainties within the international community and legal scholarship about the elements of crimes against humanity despite the fact that the definitions of the crimes under these two Statutes reflect major developments in international law since the Nuremberg Trials. But this category of crimes was a gain, included in the most recent treaty, the Rome Statute of the International Criminal Court, whose definition of crimes against humanity was criticized by some stakeholders as too narrow. Hence, the history of the development of this category of international crimes may be an explanation for this uncertainty.
iii. Outstanding Differences Between Crimes against Humanity and Genocide
The study also found that specific ―intent to destroy‖ is the most important and outstanding difference between genocide and crimes against humanity. The distinction as for mens rea is that, the perpetrator ‗of genocide must intend to destroy all or part of a protected group,‖ while the perpetrator of a crime against humanity need not have such intent, and persecution can be seen in many other forms of inhuman and discriminatory intent other than intent to destroy a national, ethnic, racial or religious group, in whole or in part.
Whereas the ICTY Statute does not require a link between crimes against humanity and that the acts which form the actus reus of the crimes against humanity be ―committed as per of a widespread or systematic attack‖, it is clearly mentioned in the Statutes of the ICTR and ICC as a requirement.6
Hence, in contrast to crimes against humanity, the size of the attack of which the offence is part is not important for genocide. Instead of being a part of a ―widespread or systematic attack‖, the subject/targeted group to specific ―intent to destroy‖ is required to be large in number. The actual number of the victims is not important but where the number of victims reaches a significant level, it can be an important evidence of genocidal intent to destroy a large number of members of the group ―in whole or in part‖.
Further, in contrast with the crime of genocide, under Article 5 of the ICTY Statute, crimes against humanity and persecution in particular must be committed during internal armed conflict (war). However, differentiating from ICTY, there is not a requirement of war nexus with the acts of attack against a civilian population for persecution as a crime against humanity under the ICTR Statute and Article 7 of the Rome Statute of the ICC. On this point, following the declaration of ICTR without insistence upon this war nexus, the ICTY Appeal Chamber solved this problem in the 1995 Tadic case. In this case, the ICTY went well beyond the Nuremberg precedents by declaring that ―crimes against humanity could be committed in peace time‖. Furthermore, the nexus was described to be ‗obsolescent‘ and abandoned as ‗there is no logical or legal basis for this requirement‘. This was the abolition of war nexus requirement. Since then, the nexus with armed conflict set up in Article 5 of the ICTY Statute has been described to be ‗purely jurisdictional‘.10
iv. The Broadened and Inconclusive Nature of Crimes against Humanity in International Law

The study found on comparative analysis of the legal regimes that contextually, a crime
against humanity involves the commission of certain prohibited acts committed as part of a widespread or systematic attack against a civilian population. When committed in this context, what would have been an ―ordinary‖ domestic crime such as murder, becomes a crime against humanity.
Whilst the ICTY and ICTR Statutes prohibit the following underlying offences that can constitute Crimes Against Humanity: – Murder; Extermination; enslavement; Deportation; Imprisonment; Torture; Rape; Persecutions on political, racial and religious grounds; and other inhumane acts, the ICC Rome Statute has also incorporated the following acts under Crimes Against Humanity: – Sexual Slavery; Enforced prostitution; Forced pregnancy; other sexual violence; Enforced disappearance; and Apartheid.
Hence, any of these acts can be a crime against humanity of it is part of the overall attack on civilians. If it is committed on a very large scale, such as using biological weapons against a civilian population, it could by itself be considered the attack. The underlying acts do not have to be the same as the other acts committed during these attack. A person who rapes a woman during a forceful takeover of power could be guilty of the crime against humanity of sexual violence. Some of the prohibited acts constituting crimes against humanity have special mental requirements, but in general, the perpetrator must have committed the act with intent and knowledge of the relevant circumstances.
Further strikingly, found that the concepts of ―attack‖ and ―military attack‖ differ under international legal regimes. A crime against humanity can occur when there is no armed conflict. Thus, an attack is not limited to the conduct of armed conflict or use of armed force. Crimes Against Humanity can include mistreatment of a civilian population. The attack could also precede, outlast or continue during an armed conflict, without necessarily being part of it. The attack does not need to involve the military or violent force. Accordingly, ICTY and ICTR jurisprudence, and the Rome Statute, provide that there must be at least ―multiple‖ victims for acts to be considered an attack directed against a civilian population. The acts can be of the same type or different. At the ICC, an attack is a ―campaign or operation carried out against the civilian population.
The term ―directed against‖ requires that the civilian population must be the primary target of the attack, not just an incidental target. Thus, the primary object of the attack is ―any civilian population‖. At the ICC, the term ―civilian population‖ refers to people who are civilians, and not members of the armed forces or other legitimate combatants. The civilian population must be the primary target of the attack, not a secondary victim.
v. Lack of Municipal or Domestic Implementation Legislation of the Rome Statute of the ICC

In so far as Nigeria‘s obligations under the Rome Statute of the ICC are concerned, the biggest challenge remains the lack of implementing legislation that: – First, accommodates the definitions and constitutive elements of all the international crimes, particularly, crimes against humanity under the Rome Statute; second, clarifies all issues relating to the implementation of the complimentarity principle and cooperation scheme between Nigeria and the ICC; third, reconciles its obligations under the constitutional immunity clause and any other bilateral immunity agreement with its obligations under the Rome Statute; fourth, provides for procedural guarantees/safeguards to accused persons and protects victims and witnesses consistent with the requirements of the Rome Statute.
It is hard to imagine how Nigeria can effectively give meaning to both the complimentarity and cooperation principles under the Rome Statute without legislation that defines how this must be achieved. For example, as earlier highlighted in chapter 4, Nigeria‘s provisions on surrender of suspects under Extradition/Mutual Aid in Criminal Matters Act and Constitutional immunity clause do not allow room for Nigeria‘s effective cooperation with the ICC for the purposes of surrender of suspects as an obligation under the Rome Statute. It is important to note that nothing in Mutual Assistance in Criminal Matters Act can be interpreted to authorize the arrest or detention or extradition with a view to surrender any person/suspect to the ICC for any crime, because the legal assistance in criminal matters is rendered by Nigeria to the Commonwealth Countries listed in the schedule or in the Order made by the President in consultation with the Central Authority. The ICC is not listed thereunder and no provision is made for the processing of surrender or extradition requests from any international organization.
The above position highlights several difficulties that are likely to arise should there be an immediate need for Nigeria to honour a request to surrender a suspect to the ICC.
Further, strictly speaking, the crimes against humanity and genocide in the Rome Statute have not been domestically recognized as criminal offences under Nigerian law. This would mean that since the conduct for which surrender is sought is not criminal in Nigeria, co-operation would not necessarily be forthcoming. However, it must be pointed out here that Nigeria National Assembly passed the Bill of Crime Against Humanity, War Crimes, Genocide and related offences Bill in July 17, 2012 (at its second reading) , yet it has not move into the third reading to enable it become a law as at the time the National Assembly was dissolved with the coming in of the new administration in May 2015.
v. Over emphasis on Africa: The other criticism directed at the ICC by Africans is that the court has tended to focus almost exclusively on Africans and – more specifically-black Africans.
Worse atrocities in other countries have not featured prominently in the court‘s agenda. For example, American breaches of human rights during George Bush era which were not brought
before the court suggest that there are biases in the selection of countries and cases followed up by the court. A number of critics have expressed serious reservations about this practice, and voice fear about bias and the perception that the ICC is yet another instrument of foreign intervention in a long history of Western/Northern interference in African affairs. Even if various geographical pressures have simply made it easier for the prosecutor to begin investigations in Africa rather than elsewhere, commentators contend that this sends a negative signal about how the ICC may continue to work, and they maintain that the ICC cannot investigate African crises alone. However Proponents of the ICC raise a number of explanations for the Court‘s
concentration on Africa. First, each of the situations under investigation has been initiated upon referral by an African government or the UN Security Council. It is difficult to claim that the prosecutor is biased against Africa in his investigations if three of the four investigations were requested by the governments of those countries themselves. The prosecutor has also noted that he has begun his investigations because it is in Africa that the breaches of humanitarian law are most severe. Sexual assault, forced displacement and massacre are issues that are present on a massive scale in the countries under investigation. He said it was only natural that they should come under investigation first because the National legal systems are weak in Africa, so the complementarily principle has led to ICC jurisdiction in Africa faster than in some other states .
5.3 Recommendations
It is evident from the above findings that there is the need for the following measures to be taken in order to address the gaps and challenges identified above.
i. The need for the Improvement of Enforcement Mechanism and Logistics in International Law: Generally for international law to meet up with the expectation of specific treaties such as the one of Rome Statute and many others, it is pertinent that the international bodies responsible for the implementation of international law device specific models and logistics for implementing penal sanctions for breaches of State Obligations in the interest of international justice. For example, it is recommended that there should a strong Taskforce Committee at the international level which will have power to override the decision of Security Council because it is not everything that is done by Security Council that is correct yet they pose an immensurable to the goals of the International Community; This time around the goals of the ICC is an issues which must be observed and respected.
ii. Enactment of Specific International Treaty
In order to address the earlier pointed out differences in the contextual requirements for crimes against humanity contained in the Statutes of the International Criminal Tribunals, there is the need for a specific international treaty on crimes against humanity that will provide a comprehensive definition of crimes against humanity; and by so doing it will harmonize constitutive elements of each of the crimes against humanity and this will further promote greater certainty and uniformity in the development of the jurisprudence of the law of crimes against humanity.
The Convention on the Prevention and Punishment of the Crime of Genocide adopted by Resolution 260(111)A of the United Nations General Assembly on 9 December 1948, should serve as the model framework in terms of preambular paragraphs/rationale, structure and contents subject to the peculiarities of the nature and scope of the crimes against humanity in international law jurisprudence today.

iii. Domestic implementation of the Rome Statute of the ICC containing the crimes against humanity

Under the complimentary regime of the Rome Statute, Nigeria has primary responsibility to exercise its criminal jurisdiction over persons responsible for the crimes against humanity. Therefore, locally Nigeria must ensure that it has adequate legal framework to investigate, prosecute and try persons for those crimes and in particular that all offences and modes of criminal responsibility, established by the Rome Statute are part of domestic law and can be readily applied in national courts, and that adequate procedures are in place to conduct effective investigations and prosecutions and independent and fair trials on allegations of such crimes. Having draft implementing legislation in place can be equated to a serious manifestation of intent to comply with the Rome Statute. But the process of coming up with draft implementing legislation and finally passing it into law can be long and tedious and so it seems to be the case with Nigeria.
Hence, there is the urgent need for the Nigerian Government to take the final step and transform the draft into binding legislation before it can fully comply with its treaty obligations under the Rome Statute. This would also properly align Nigeria to cooperate with the International Criminal Court in line with the Statute while at the same time allowing the court to complement Nigeria‘ efforts towards eradicating the culture of impunity rooted in the perpetration of acts constituting crimes against humanity.
iv. Public Sensitization
As Nigeria contemplates the domestication of the Rome Statute it is important to realize that it is a process in which a deliberated attempt to involve all stakeholders must consciously be undertaken, especially having regard to the need to synchronize the subtleties of the Rome
Statute with domestic law. There is the obvious need of harnessing the full potential of Civil Society Organizations in the country. Civil Society‘s network across the federation ought to be utilized to ensure widespread sensitization and to galvanize a broad-based discussion over all issues pertaining to the Rome Statute and Nigeria. This would help confer legitimacy on the entire process of domestication. It is important to note that some of the animosity in Africa about the ICC may be as a result of a failure by civil society to generate awareness about the ICC and the need to pass domesticating legislation.
Civil Society Organizations have an essential role to play in raising public awareness of the rationale, contents and state obligations under the Statute. It is important to ensure that people who are potential victims of a ―systematic or widespread attack‖, know about the Statute and the ways in which it sets out to protect their rights. Equally organizations that advocate for their rights will also need to be aware of the Statute and its provisions, so that they can start using it to achieve their promotional and protective goals and objectives.
More generally, information about the Statute must be available to all people, organizations and institutions with any responsibility for preventing acts constituting crimes against humanity and protecting the rights of citizens against the culture of impunity.
Civil Society Organizations (CSOs) can therefore use a broad range of activities to help raise awareness of the Statute. Some examples are:
i) Translating key provisions of the Rome Statute into local languages; ii) Distributing the text of the Statute or relevant extracts to all stakeholders, in the form of leaflets, flyers, posters which provide simplified provisions of the Statute. iii) Promoting drama, quizzes and games to spread information about the Statute.
iv) Organizing workshops or training sessions about the Statute and state obligations for different target groups, media practitioners, politicians, local communities, interfaith groups etc.
CSOs can be actively involved in the above through collaboration with relevant government ministries, departments and agencies, as well as parliamentarians in organizing media forum, public hearing and stakeholders‘ Forum on the domestication process of the Statute.
It must be record that the purposes of international law is for the maintenance of international peace and security and to prevent all acts of aggression and threat to the peace which the jurisdiction of the court seeks to protect, therefore it is recommended that for an effective jurisdiction of the court every state must be answerable to the court. Otherwise, the international community will fail in the attainment of its purposes.
Further, the yardstick for the selection of cases for trial should be based on strict adherence to jurisdictional requirements of the court as spelt out by the statutes and by so doing political dimensions will be narrowed down. For example, before the appointment of the current prosecutor, more than 200 complaints had been registered, but the prosecutor has been able to dispose quickly of large quantities of unsubstantiated allegations, as a large percentage do not meet the jurisdictional requirements.
5.4 Conclusion
From the discussion in this chapter it must have emerged quite clearly that states must move beyond mere ratification and take concrete steps towards domestication of the Rome Statute if they have to properly fulfill their obligations under the Statute. The case for domestication of the Rome Statute, as was demonstrated earlier in the chapter, is highly compelling and flows, principally, from a state party‘s signature and/or ratification of the Statute. For all those states that have signed and/or ratified the Rome Statute domestication must come as a matter of course.
International crimes, particularly war crimes and Crimes Against Humanity, have been, regrettably, all too common. Ongoing violence and widespread civil unrest continue in numerous situations, those responsible for atrocities have rarely faced justice. With a substantially increased risk of further terrorist attacks in the aftermath of the September 11th terrorist attacks and the Bali bombings, the development of appropriate legislative and institutional responses to international crimes has acquired a new urgency.
For more than four decades after the establishment of the Nuremberg and Tokyo tribunals the enforcement of international criminal law remained an exclusively national responsibility and the report card is appalling. The abject failure of an exclusive reliance on national courts and legal processes to rein in impunity for the perpetration of atrocities is the single most compelling argument for an effective international criminal law regime. This is not to suggest that the international community needs an effective international regime to replace or supplant national courts and processes. Rather, the suggestion here is for an effective international supplement to national structures and processes – a multilateral institutional framework to hold some key individuals to account while simultaneously providing a catalyst for more effective national enforcement of international criminal law.
International criminal law is undergoing a rapid transformation. One of the most important events in this evolution was the coming into force of the Rome Statute of the
International Criminal Court (the ―ICC‖) on July 1, 2002. There is no doubt that the international community is entering a new era in which perpetrators of international crimes will no longer enjoy impunity.
The creation of the new international Criminal Court will prove a catalyst for states to take the national enforcement of international human rights law much more seriously than has hitherto been the case. Many states, recognizing the potential scope of the International Criminal
Court‘s jurisdiction – particularly in relation to the so-called ―principle of complementarity‖ – have already enacted broad-ranging criminal legislation to ensure that all the crimes within the Rome Statute are covered by domestic penal law. The overwhelming motivation for this unprecedented criminal law reform is to maximize the potential benefits of the principle of complementarity in the event of allegations against a State‘s own nationals.
The Rome Statute is one of the sources of international criminal law. The pre-existing sources on which the Statute was built not only include rules of international humanitarian law, and in particular those contained in the Geneva Conventions and their additional protocols, but also the rules and categories established under the Nuremberg and Tokyo War Tribunals – ―war crimes,‖ ―Crimes Against Humanity,‖ and the crime of ―aggression.‖ Another important source includes the experience gained from the ad hoc tribunals created by the UN Security Council – the International Criminal Tribunal for the former Yugoslavia and the International Criminal
Tribunal for Rwanda.

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