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The denial of humanitarian assistance as a crime under international law

Published online by Cambridge University Press:  19 April 2010

Christa Rottensteiner
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International Review of the Red Cross , Volume 81 , Issue 835 , September 1999 , pp. 555 - 582
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Copyright © International Committee of the Red Cross 1999

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References

1 See, e.g., Plattner, Denise, “Assistance to the civilian population: The development and present state of international humanitarian law”, IRRC, No. 288, May-June 1992, pp. 249–263;Google ScholarUNESCO (eds), Le droit à I'assistance humanitaire, Actes du Colloque international organisè par UNESCO, Paris, 1995;Google ScholarEuropean Commission (eds), Law in Humanitarian Crises, Volume II, Brussels/Luxembourg, 1995.Google Scholar

2 See also the statement in the Nicaragua Judgment of the International Court of Justice: Military and Paramilitary Activities In and Against Nicaragua, I.C.J. Reports 1986, paras 97 and 242–243.

3 Geneva Convention relative to the Treatment of Prisoners of War (Third Geneva Convention), Arts 26–32 and 72–75; Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), Arts 23,55–63 and 108–111.

4 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Arts 69–71 and 81 (on activities of the ICRC).

5 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Arts 5.i(b) and (c) and 18.2.

6 Art. 3 common to the four Geneva Conventions; Protocol I, Art. 70.1. Activities of the ICRC are also mentioned in Arts 9/9/9/10 of the Conventions.

7 First Geneva Convention, Art. 27; Protocol I, Arts 64,70.1 and 81.1; Protocol 11, Art. 18.2.

8 Protocol I, Art. 70.1; Protocol II, Art. 18.2.

9 Y. Sandoz, C. Swinarski, B. Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC, Geneva, 1987. On Protocol II, Art. 18.2, see para. 4885, p. 1479, and on Protocol I, Art. 70.1, see para. 2808, p. 820.

10 For international armed conflicts, see Fourth Geneva Convention, Arts 59–61 and 108; Protocol I, Art. 70.2 and 70.3.

11 First Geneva Convention, Art. 27; Fourth Geneva Convention, Arts 59–63,108 and 109; Protocol I, Arts 64 and 70.3.

12 See the provisions on “grave breaches” of the Geneva Conventions, Arts 50/51/130/147. Also: Statutes of the Nuremberg Tribunal, Art. 6(b); Statutes of the two ad hoc Tribunals: ICTY, Arts 2 and 3, and ICTR, Art. 4; and ICC Statute, Art. 8.

13 See Geneva Conventions, Arts 49/50/129/146, which speak only of acts committed by “persons”. Also: Statutes of the Nuremberg Tribunal, Art. 6, and of the Tokyo Tribunal, Art. 5; Statutes of the ICTY, Arts 6 and 7, and the ICTR, Arts 5 and 6; and Statute of the ICC, Art. 25.

14 ICTY, Prosecutor v. Dusko Tadic a.k.a. “Duie”: Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, Case No. IT-94–1-AR72, para. 70. See Art. 2 common to the Geneva Conventions, Protocol I, Art. 1.4, and Protocol II, Art. 1.

15 ICTY, Prosecutor v. Dusko Tadic a.k.a “Duie”: Opinion and judgment, 7 May 1997, Case No. IT-94–1-AR72, para. 573 (emphasis added).

16 Art. 3.1. common to the Geneva Conventions. Fundamental guarantees are also included in Protocol II, Art. 4.

17 See Protocol I, Art. 51.3, and Protocol II, Art. 13.3. The fact that civilians may include those who at one time bore arms was confirmed, inter alia, in the Vukovar decision of the ICTY: The Prosecutor v. Mrksic, Radic, Sljavancanin and Dokmanovic: Rule 61 Decision, 3 April 1996, IT9513R61, para. 29.

18 The first time that the criminality of such violations was asserted by an international tribunal was the Decision on the Appeal on Jurisdiction in the Tadic case, op. cit. (note 14). Further evidence in support of that view is given by the Statute of the ICTR, which confers Jurisdiction on the Court with respect to serious violations of common Art. 3 and Protocol II, Art. 4, and by the Statute of the ICC, Art. 8.2(c) and (e).

19 1996 Draft Code of Crimes against the Peace and Security of Mankind, Report of the International Law Commission on the work of its forty-eighth session 6 May-26 July 1996,51 UN GAOR Supp. (No. 10), UN Doc. A/51/10, p. 96.

20 Murder in internal armed conflicts is recognized as a war crime in, inter alia, the Statutes of the ICTR, Art. 4(a), and of the ICC, Art. 8.2(c)(i), as well as in the jurisprudence of the ICTY and the ICTR.

21 Geneva Conventions, Arts 50/51/130/147.

22 Art. 3.l(a) common to the Geneva Conventions and Protocol II, Art. 4.2(a).

23 ICTY, The Prosecutor v. Zejnil Delalic, Zdravko Mucic a.k.a. “Pavo”, Hazim Delic, Esad Landzo a.k.a. “Zenga”, Judgment, 16 November 1998, Case No. IT-96–21-T, para. 422.

24 See, e.g., Paper prepared by the ICRC on Article 8, paragraph 2(0), of the Rome Statute of the ICC, Preparatory Commission for the ICC, 19 February 1999, PCNICC/1999/WGEC/INF.1 (with references to case law).

25 See, e.g., Delalic Judgment, op. cit. (note 23), para. 424, and ICTR, The Prosecutor v. Jean Paul Akayesu, Judgment, 2 September 1998, Case No. ICTR-96–4-T, para. 589 (considering murder as a crime against humanity).

26 Pictet, Jean S. (ed.), Commentary, IV, Geneva Convention relative to the Protection of Civilian Persons in Time of War, ICRC, Geneva, 1958, ad Art. 147, p. 597.Google Scholar

27 “Nazi and Nazi Collaborators (Punishment) Law, 5710/1950, Section I (b)”, in Lauterpacht, E. (ed.), International Law Reports, Vol. 36, Butterworths, London, 1968, p. 7CrossRefGoogle Scholar.

28 Wolfrum, Rüdiger, “Enforcement of international humanitarian law”, in Fleck, Dieter (ed.), Handbook of Humanitarian Law in Armed Conflict, Oxford University Press, 1995, p. 532Google Scholar.

29 See, e.g., ICRC Commentary on Protocol I, op. cit. (note 9), Art. 85, para. 3474, p. 994.

30 Delalic Judgment, op. cit. (note 23), para.439.

31 ICRC Commentary on the Fourth Geneva Convention, op. cit. (note 26), Art. 147, p. 597.

32 ICTY, The Prosecutor v. Dragan Nikolic, a.k.a. “lenkl” Nikolic, Indictment, 4 November 1994, Case No. IT-94–2; ICTY, The Prosecutor v. Milorad Krnojelac, a.k.a. “Mico”, Indictment, 6 June 1997, Case No. IT-97–25-I; Delalic Judgment, op. cit. (note 23).

33 See, e.g., the various Reports by the Special Rapporteur of the Commission on Human Rights for the Former Yugoslavia, in particular: Sixth periodic report on the situation of human rights in the territory of the former Yugoslavia, submitted by Mr Tadeusz Mazowiecki, Special Rapporteur of the Commission on Human Rights, pursuant to paragraph 32 of Commission resolution 1993/7 of 23 February 1993. UN Doc. E/CN.4/1994/110 (21 February 1994), Chapter 1.1.: Human rights issues arising from interference with humanitarian aid, pp. 12–14.

34 See, e.g., Delalic Judgment, op. cit. note 23), para. 443.

35 The fact that torture also constitutes a war crime in non-international armed conflicts is recognized, inter alia, in the Statutes of the ICTR, Art. 4(a), and of the ICC, Art. 8.2(c)(0, as well as in the jurisprudence of the ICTY and the ICTR.

36 1984 Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. Art. 1(2) of this Convention contemplates that the term “torture” may have broader application under other international instruments.

37 Detalic Judgment, op. cit. (note 23), para. 459; ICTY, The Prosecutor v. Furundzija, Judgment, 10 December 1998, Case No. IT-95–17/1-PT, para. 160; Akayesu Judgment, op. cit. (note 25), para. 593. There exists, however, some controversy as to whether the specific purpose and an official capacity or connivance are still necessary for the crime of torture. The definition of torture as a crime against humanity in the ICC Statute eliminated these two requirements (Art. 7.2(e)), and the current discussions between States on the elements of war crimes under the Statute of the ICC give an indication that at least the “official” requirement may be eliminated from the definition. See Discussion paper proposed by the Coordinator of the Preparatory Commission for the ICC, Working Group on Elements of Crimes, 25 February 1999, PCNICC/1999/WGEC/RT.2, p. 2.

38 This was confirmed in the Delatic Judgment, op. cit. (note 23), para. 470.

39 Ibid., para. 473.

40 Ibid.

41 Ibid., para. 468.

42 Report of the Special Rapporteur, Mr P. Kooijmans, appointed pursuant to the Commission on Human Rights, UN Doc. Res. 1995/33, E/CN.4/1986/15, 19 February 1986, para. 119.

43 Delalic Judgment, op. cit. (note 23), para. 442.

44 “Wilfully causing great suffering or serious injury to body or health” was defined by the ICTY as “an act or omission that is intentional, being an act which, judged objectively, is deliberate and not accidental, which causes serious mental or physical suffering or injury. It covers those acts that do not meet the purposive requirements for the offence of torture, although clearly all acts constituting torture could also fall within the ambit of this offence.” Furundzija Judgment, op. cit. (note 37), para. 511. See also Delalic Judgment, op. cit. (note 23), para. 442.

45 See, e.g., ICRC Commentary on the Fourth Geneva Convention, op. cit. (note 26), ad Art. 147, p. 599; Delalic Judgment, op. cit. (note 23), para. 509.

46 Ibid. See also Furundzija Judgment, op. cit.note 37), paras 542–544.

47 Delalic Judgment, op. cit. (note 23), para. 1119.

48 Common Art. 3.1(c), Protocol I, Art. 75.2(b), and Protocol II, Art. 4.2(e).

49 ICTR Statute, Art. 4(e), ICC Statute, Art. 8(2)(b)(xxi) and (c)(ii). See also 1996 ILC Draft Code of Crimes, op. cit. (note 19), Art. 20(c) and (f).

50 ICRC Commentary on Protocol I, op. cit. (note 9), ad Art. 54, para. 2089, p. 653. “The term ‘starvation’ means the action of subjecting people to famine, i.e., extreme and general scarcity of food.” ICRC Commentary on Protocol II, op. cit. (note 9), ad Art. 14, para. 4791, p. 1456.

51 Tadic Appeal on Jurisdiction, op. cit. (note 14), para. 128. The ICRC Commentary on the Conventions states that the list of grave breaches is not to be taken as exhaustive and that criminality may extend beyond grave breaches in any case. Op. cit. (note 26), ad Art. 50, p. 371.

52 ICC Statute, Art. 8.2(b)(xxv).

53 Protocol 11, Art. 14.

54 Art. 10 of the ICC Statute: “Nothing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.”

55 Deliberate impeding of the delivery of food and medical supplies to the civilian population in internal armed conflicts was condemned as a violation of humanitarian law by the Security Council on many occasions. It was also stressed that “those who commit or order the commission of such acts will be held individually responsible in respect of such acts” (S/RES/794 (1992), para. 5, on Somalia). See also S/RES/787 (1992), para. 7, on Bosnia-Herzegovina. With regard to Bosnian enclaves, the President of the Security Council declared that “the deliberate impeding of the delivery of food and humanitarian relief essential for the survival of the civilian population constitutes a violation of the Geneva Convention of 1949 and the Council is committed to ensuring that individuals responsible for such acts are brought to justice” (S/25334, 25 February 1993). Furthermore, the General Assembly and an Independent Commission of Experts called for those responsible for the impediment of humanitarian assistance in Sudan and starvation in Rwanda, respectively, to be “brought to justice” (UNGA res. 52/140 (1997) para. 2; Interim Report of the Commission of experts on the evidence of grave violations of international humanitarian law in Rwanda, S/1994/1125, paras 107 and 150).

56 ICRC Commentary on Protocol I, op. cit. (note 9), Art. 54, para. 2090, p. 653.

57 “Moreover, if it turned out to be impossible to send sufficient aid for that part of the population of a besieged or encircled area that is particularly weak, the principle of the prohibition of starvation should henceforth dictate the evacuation of such persons.” ICRC Commentary on Protocol I, op. cit. (note 9), ad Art. 54.1, para. 2096, p. 654.

58 ICRC Commentary on the Fourth Geneva Convention, op. cit. (note 26), ad Art. 33, p. 225.

59 ICRC Commentary on Protocol II, op. cit. (note 9), ad Art. 4.2, para. 4536, p. 1374.

60 Art.4(b).

61 Art.22.2(a);Art.20(f)(ii).

62 See, e.g., Statutes of the ICTY, Art. 5, of the ICTR, Art. 3, and of the ICC, Art. 7.1 and 7.2(a). See also the 1996 ILC Draft Code of Crimes, op. cit. (note 19), Art. 18, and the jurisprudence of the ICTY and the ICTR.

63 Although required in the Nuremberg Charter, such a connection to an armed conflict is now no longer considered to be necessary. The ICTR and ICC Statutes do not stipulate such a requirement. It was, however, reintroduced in the ICTY Statute, but the ICTY Appeal Chamber confirmed in the Tadic case that the crime had been defined more narrowly than necessary:”(…) customary international law no longer requires any nexus between crimes against humanity and armed conflict (…)”. (Tadic Appeal on Jurisdiction, op. cit. (note 14), para. 78). Regarding discriminatory intent, there still exists some controversy around the issue whether an offender must have a reason linked to some character trait of the victim, and in particular, whether this ground for commission is relevant to all crimes against humanity or only to the category of persecutions. Although the Trial Chamber in the Tadic case adopted the requirement of discriminatory intent for all crimes against humanity, it confirmed that this was not necessary under customary international law (paras 652 and 716). Furthermore, the majority of States decided that murder and other crimes are so grave that the ground for commission is irrelevant and excluded this requirement from the ICC Statute.

64 See, e.g., 1996 ILC Draft Code of Crimes, sysop. cit. (note 19), pp. 94–95. The International Law Commission used the term “large scale” instead of “widespread” to clarify that a territorial extension of acts is not necessarily needed.

65 Ibid., p. 94. The wording “against any civilian population” included in most definitions of crimes against humanity has sometimes been interpreted as demanding systematic and wide- spread action. However, the decision in the Tadic case stipulated that”(…) it is now well established that the requirement that the acts be directed against a civilian “population” can be fulfilled if the acts occur either on a widespread basis or in a systematic manner. Either one of these is sufficient to exclude isolated or random acts”. Tadic Judgment, op. cit. (note 15), para. 653. Furthermore, the ICC Statute includes the customary formulation “widespread or systematic” in its Article 7(1).

66 Public Prosecutor v. Menten, Netherlands, International Law Reports, op. cit. (note 27), Vol. 75, pp. 362–363.

67 1996 ILC Draft Code of Crimes, op. cit. (note 19), Art. 18. Neither the ICTY nor the ICTR Statute make any reference to governmental policy. The Trial Chamber of the ICTY confirmed that a State policy is no longer required (Tadic Judgment, op. cit. (note 15), para. 654). Furthermore, States recently adopted the wording “pursuant to or in furtherance of a State or organizational policy” for Art. 7.2(a) of the Statute of the ICC.

68 Tadic Judgment, op. cit. (note 15), para. 653.

69 While personal motives for acts resulting in assistance not reaching needy persons may be present, they should not, however, be the sole motivation for the act. See, e.g., Tadic Judgment, ibid., para. 658, where several German cases arising from the Second World War are mentioned.

70 Paust, Jordan, “Threats to accountability after Nuremberg: Crimes against humanity, leader responsibility and national fora”, New York Law School Journal of Human Rights, Vol. 12, 1995, p. 60.Google Scholar

71 Vukovar Decision, op. cit. (note 17), para. 30. This was confirmed in the Tadic judgment, op. cit. (note 15), para. 649.

72 Tadic judgment, op. cit. (note 15), para. 657.

73 Ibid.

74 Ibid.

75 1996 ILC Draft Code of Crimes,op.cit. (note 19), p. 97.

76 Art.7.2(b).

77 Art.7.2(e).

78 Akayesu Judgment, op. cit. (note 25), para. 593. See also the definitions of torture as a war crime in the Delalic and Furundzija judgments, note 37.

79 See Art. 10 of the ICC Statute.

80 See Bassiouni, M. Cherif, Crimes against Humanity in International Criminal Law, Nijhoff Publishers, Dordrecht, 1992, p. 318Google Scholar.

81 Art. 7.2(g).

82 Art. 7.1(h).

83 See, e.g., Tadic judgment, op. cit. (note 15), para. 711.

84 Even though the ICTY Statute contains the conjunctive “and” (Art. s(h) mentions “persecutions on political, racial and religious grounds”), the Trial Chamber ruled that the discriminatory bases should be read independently of each other. Tadic Judgment, op. cit. (note 15), para. 713.

85 Ibid., para. 697. The last draft of the ICC Statute before the Rome Conference included the options that all crimes had to be based on discriminatory grounds, and that persecutions had to be committed in connection with other crimes within the jurisdiction of the Court. Unfortunately, instead of excluding both possibilities as not in conformity with customary international law, a consensus was found that kept a link to other crimes or acts: “Persecution (…) in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court”. ICC Statute Art. 7.1(h). However, this will in practice not make a big difference, as in most cases there will be a link to another act.

86 Ibid., para. 699.

87 The Trial Chamber referred to several cases of the Nuremberg Tribunal. See Tadic Judgment, op. cit. (note 15), para. 707.

88 Art. 7.1(k).

89 The Charter and Judgement of the Nurnberg Tribunal: History and Analysis, Memorandum submitted by the Secretary-General, UN Sales No. 1949.V.7,1949, p. 67.

90 Nikolic Indictment, op. cit. (note 32), para. 24.1. See also other cases cited in note 32.

91 The Advisory Opinion of the I.C.J. on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, of 28 May 1951, confirmed that the prohibition of genocide is part of customary international law. I.CJ. Reports 1951, p. 12.

92 Convention on the Prevention and Punishment of the Crime of Genocide, of 9 December 1948, Art. 2.

93 Arts 4/2/6 respectively.

94 Akayesu Judgment, op. cit. (note 25), para. 512.

95 Ibid., paras 513–515.

96 See Art. 3(c) of the Genocide Convention.

97 ICTY, The Prosecutorv. Radovan Karadzic and Ratko Mladic: Review of Indictment pursuant to Rule 61, 11 July 1996, Cases No. IT-95–5-R61 and No. IT-95–18-R61, para. 94.

98 Akayesu Judgment, op. cit. (note 25), para. 523.

99 Ibid., para. 502.

100 Ibid., para. 504.

101 Eichmann case, International Law Reports, op. cit. (note 27), p. 238 (emphasis added).

102 Ibid., pp. 235–236.

103 Akayesu Judgment, op. cit. (note 25), para. 506.

104 Robinson, Nehemiah, The Genocide Convention: A Commentary, Institute of Jewish Affairs, New York, 1960, pp. 63–64Google Scholar.

105 The ICC Statute includes a threshold for war crimes in its Art. 8.1. “The Court shall have jurisdiction in respect of war crimes in particular when committed as a part of a plan or policy or as part of a large-scale commission of such crimes”. This should, however, not introduce a new threshold for war crimes but should be interpreted as advice to the Prosecutor to concentrate on the most serious crimes.

106 ICC Statute, Art. 124. This article permits State to declare that it does not accept the jurisdiction of the Court for a period of seven years with respect to war crimes when they are alleged have been committed by its nationals or on its territory. Still, following the principle of universal jurisdiction, States are already under an obligation to prosecute or extradite perpetrators regardless of their nationality or where the crime was committed.

107 Art. 33.1.

108 In the case of Somalia, for example, the Security Council demanded a cease-fire throughout the whole country in order to “promote the process of relief distribution”. SC res. 794 (1992), 3 December 1992, para. 1.