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Preparatory Commission for the International Criminal Court: the Elements of War Crimes

Published online by Cambridge University Press:  27 April 2010

Knut Dörmann
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Résumé

L'auteur présente et analyse les résultats des travaux de la Commission préparatoire de la Cour pénale internationale chargée d'élaborer les éléments des crimes de guerre qui compléteront les dispositions du Statut de Rome. Dans une première partie, il examine plusieurs questions à propos des relations existant entre la définition des différents crimes et les principes généraux de droit pénal. Il analyse ensuite les éléments des crimes dérivés des infractions graves aux Conventions de Genève et au Protocole additionnel I, et les violations de l'article 3 commun à ces Conventions. Il relève que la Commission préparatoire a été confrontée au défi de refléter corredement le droit international humanitaire existant. L'auteur conclut avec quelques réflexions sur la valeur des résultats obtenus.

Type
Research Article
Information
International Review of the Red Cross , Volume 82 , Issue 839: Humanitaire action and prevention/Action humanitaire et prévention , September 2000 , pp. 771 - 796
Copyright
Copyright © International Committee of the Red Cross 2000

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References

1 See UN General Assembly Resolution 53/105 of 8 December 1998 and Resolution F adopted by the United Nations Diplomatic Conference on the Establishment of an International Criminal Court on 17 July 1998.

2 The text, which is the basis for this article, is contained in: PCNICC/2000/WGEC/L1 and Corr.1, PCNICC/2000/WGEC/L.1/Add.2 and Corr.1.

3 Dörmann/Kreß, “Verfahrens- und Beweisregeln sowie Verbrechenselemente zum Römischen Statut des Internationalen Strafgerichtshofs: Eine Zwischenbilanz”, Humanitäres Völkerrecht-lnformationsschriften, No. 4,1999, p. 303.

4 PCNICC/1999/WGEC/INF.1, PCNICC/1999/WGEC/INF.2, PCNICC/i999/WGEC/INF.2/Add.i, PCNICC/i999/WGEC/INF.2/Add.2, PCNICC/i999/WGEC/INF.2/Add.3.

5 See report reproduced in PCNICC/2000/ WGEC/INF.1*.

6 “As used in these Elements, the term ‘perpetrator’ is neutral as to guilt or inno-cence. The elements, including the appropri-ate mental elements, apply, mutatis mutan-dis, to all those whose criminal responsibility permay fall under articles 25 and 28 of the Statute.” See para. 8 of the general introduction, PCNICC/2000/WGEC/L.1 and corr.

7 Art. 30 reads as follows: “ 1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.

2. For the purposes of this article, a person has intent where:

(a) In relation to conduct, that person means to engage in the conduct;

(b) In relation to a consequence, that permay son means to cause that consequence or is aware that it will occur in the ordinary course of events.

3. For the purposes of this article, ‘knowlwise edge’ means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. ‘Know’ and “knowingly’ shall be construed accordingly.”

8 The Prosecutor v. Tihomir Blaskic, ICTY Trial Chamber, Judgement, IT-95–14-T, para. 152.

9 See below in more detail.

10 The Prosecutor v. Dusko Tadic, ICTY Appeals Chamber, Decision on the defence motion for interlocutory appeal on jurisdiction, 2 October 1995, IT-94–1-AR72, para. 70.

11 Ibid., para. 68.

12 The Prosecutor v. Dusko Tadic, ICTY Trial Chamber, Judgement, 7 May 1997, IT-94–1-T, para. 572 (emphasis added). See also Jones, , The Practice of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, 2nd edition, Ardsley, NY, 2000, p. 51.Google Scholar

13 The original proposal on the mental ele- perpetrament read as follows: “The accused was circumaware offhe factual circumstances that established the existence of an armed conflict” (emphasis added). The definite article was dropped in order to indicate that the perpetrament tor needs only to know some factual circum stances, but definitely not all the factual circumstances that would permit a judge to conclude that an armed conflict was going on.

14 Given that Art. 8(2) (a) (iv) deals not with crimes committed against protected persons, but against protected property, the elements read as follows: “Such property was protected under one or more of the Geneva Conventions of 1949. The perpetrator was aware of the factual circumstances that established that protected status.”

15 The Prosecutor v. Dusko Tadic, ICTY Appeals Chamber, Judgement, 15 July 1999, IT-94–1-A, para. 166.

16 Ibid.

17 Ibid., para. 168.

18 PCNICC/2000/WGEC/RT.2/Corr.3.

19 The Prosecutor v. Zejnil Delalic and others, ICTY Trial Chamber, Judgement, 16 November 1998, IT-96–21-T, para. 459.

20 Ibid., and para. 494: “(i) There must be an act or omission that causes severe pain or suffering, whether mental or physical, (ii) which is inflicted intentionally, (iii) and for such purposes as obtaining information or a confession from the victim, or a third person, punishing the victim for an act conhe or she or a third person has committed, intimidating or coercing the victim or a third person, or for any reason based on discrimination of any kind, (iv) and such act or omission being committed by, or at the instigation of, or with the consent or acquiescence of, an official or other person acting in an official capacity.”

In a later judgement, the ICTY described some specific elements that pertain to torture as “considered from the specific viewpoint of international criminal law relating to armed conflicts”. Thus, the Trial Chamber considers that the elements of torture in an armed conflict require that torture: “(i) consists of the infliction by act or omission of severe pain or suffering, whether physical or mental; in addition (ii) this act or omission must be intentional; (iii) it must aim at obtaining information or a confession, or at punishing, intimidating, constihumiliating or coercing the victim or a third person; or at discriminating, on any ground, against the victim or a third person; (iv) it must be linked to an armed conflict; (v) at least one of the persons involved in the torture process must be a public official or must at any rate act in a non-private capacity, e.g. as a de facto organ of a State or any otherauthority-wielding entity.”

The Prosecutor v. Furundzija, ICTY Trial Chamber, Judgement, 10 December 1998, IT-95–17/1-T, para. 162.

21 The ICTY held in this regard: “The use of the words ‘for such purposes’ in the customary definition of torture [the definition contained in the Torture Convention], indicates that the various listed purposes do not constitute an exhaustive list, and should be regarded as merely representative”, loc. cit. (note 19), para. 470. However, the ICTR seemed to suggest an exhaustive list by formulating “for one or more of the following purposes”. The Prosecutor v. Jean Paul Akayesu, ICTR Trial Chamber, Judgement, ICTR-96–4, para. 594. In the Musema Judgement it defined torture along the lines of the Torture Convention with a non-exhaustive list. The Prosecutor v. Alfred Musema, ICTR Trial Chamber, Judgement, ICTR-96–13, para. 285.

22 Loc. cit. (note 19), para. 471.

23 With respect to the addition of the purpose “humiliating” under (iii), the ICTY held in the above-mentioned judgement that it is “warranted by the general spirit of international humanitarian law; the primary purpose of this body of law is to safeguard human dignity. The proposition is also supported by some general provisions of such international treaties as the Geneva Conventions and Additional Protocols, which consistently aim at protecting persons not taking part, or no longer taking part, in the hostilities from ‘outrages upon personal dignity’. The notion of humiliation is, in any event, close to the notion of intimidation, which is explicitly referred to in the Torture Convention's definition of torture.” Loc. cit. (note 20), para. 163.

24 Loc. cit. (note 19), para. 473.

25 Loc. cit. (note 19), para. 544 and loc. cit. (note 8), para. 155.

26 The relevant element reads as follows: “The perpetrator deported or transferred one or more persons to another State or to another location” (emphasis added). See in this regard commentary to Art. 85, Sandoz/Swinarski/Zimmerman (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC, Geneva, 1987, No. 3502, p. 1,000, especially note 28.

27 Loc. cit. (note 19), para. 580.

28 Ibid., para. 581.

29 Ibid., para. 582.

30 Ibid., para. 583.

31 Emphasis added. – In the Blaskic case the ICTY has been less specific and defined the crime in the following terms: “Within the meaning of Article 2 of the Statute, civilian hostages are persons unlawfully deprived of their freedom, often arbitrarily and sometimes under threat of death. However… detention may be lawful in some circumstances, inter alia to protect civilians or when security reasons so impel. The Prosecution must establish that, at the time of the supposed detention, the allegedly censurable act was perpetrated in order to obtain a concession or gain an advantage.” Loc. cit. (note 8), para. 158.

32 The ICTY concluded – with regard to any difference between the notions of “wilful killing” in the context of an international armed conflict on the one hand, and “murder” in the context of a non-international armed conflict on the other – that there “can be no line drawn between ‘wilful killing’ and ‘murder’ which affect their content”, loc. cit. (note 19), paras 422 and 423. According to the Tribunal, “cruel treatment constitutes an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, which causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity. As such, it carries an equivalent meaning and therefore the same residual function for the purpose of common article 3 of the Statute, as inhuman treatment does in relation to grave breaches of the Geneva Conventions”, ibid., para. 552. Concerning any difference between the notion of “torture” in the context of an international armed conflict on the one hand, and in the context of a non-international armed conflict on the other, the ICTY concluded that “[t]he characteristics of the offence of torture under common article 3 and under the ‘grave breaches’ provisions of the Geneva Conventions, do not differ”, ibid., para. 443. As to the taking of hostages in an international armed conflict the ICTY held: “Les elements de cette infraction sont similaires à ceux de l'article 3 b) des Conventions de Geneve qui sont couverts par l'article 3 du Statut”, loc. cit. (note 8), para. 158.

33 PCNICC/1999/WGEC/DP.10.