Crimes against humanity

Unlike genocide and war crimes, crimes against humanity have not been addressed through a comparable global treaty requiring states to prevent and punish such crimes. The International Law Commission has recently stated that

“a global convention on crimes against humanity appears to be a key missing piece in the current framework of international humanitarian law, international criminal law, and international human rights law”.⁴⁹⁰ The objective of the International Law Commission is to draft articles for what would become a Convention on the Prevention and Punishment of Crimes against Humanity (Crimes against Humanity Convention).⁴⁹¹

484 See ICJ, Case concerning the application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 26 February 2007,

§ 442.

485 See Ben-Naftali, ‘The Obligations to Prevent and to Punish Genocide (Art. I and Art. VI)’, in P. Gaeta (ed.), The Genocide Convention: A Commentary (Oxford: Oxford University Press, 2009) 27-57, at 49.

486 Steven, ‘Genocide and the Duty to Extradite or Prosecute: Why the United States is in Breach of Its International Obligations?’, 39 Virginia Journal of International Law (1999) 425-466, at 461.

487 See for instance Roth, ‘The Extradition of Génocidaires’, in Gaeta (ed.), The UN Genocide Convention:

A Commentary (Oxford: Oxford University Press, 2009) 278-309, at 49.

488 See Ben-Naftali, supra note 484, at 49.

489 See infra Subsection C. N 157 ff.

490 ‘Annexe B: Crimes against humanity’, in Report of the International Law Commission, Sixty-fifth session, General Assembly Official Records Sixty-eighth session, Supplement No. 10 (A/68/10), 6 May-7 June and 8 July-9 August 2013, at 140 ff, § 3.

491 Ibid.

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While there is yet to be a specific convention dealing with crimes against humanity, this crime was already contained in 11 relevant instruments from 1945 to 1998.⁴⁹² It was originally established in Article 6(c) of the Charter of the International Military Tribunal at Nuremberg. In its Resolution 95(I), the UN General Assembly affirmed the principles of international law recognized by the Nuremberg Charter and judgment. Principle VI codifies crimes against humanity.⁴⁹³ In addition, the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, adopted by the General Assembly in 1968, called upon states to criminalize nationally “crimes against humanity” as defined in the Nuremberg Charter and to set aside statutory limitations on prosecuting the crime. However, this Convention focused on statutory limitations and does not expressly oblige a State party to exert jurisdiction over crimes against humanity.⁴⁹⁴

Five years later, in 1973, the General Assembly adopted the Principles of International Cooperation in the Detection, Arrest, Extradition, and Punishment of Persons Guilty of War Crimes and Crimes Against Humanity, which provide that “crimes against humanity, wherever they are committed, shall be subject to investigation and the persons against whom there is evidence that they have committed such crimes shall be subject to tracing, arrest, trial and, if found guilty, to punishment”.⁴⁹⁵ The Principles thus establish a duty to prosecute.

Furthermore, the Draft Code of Crimes against Peace and Security of Mankind adopted by the International Law Commission in 1996 includes crimes against humanity.⁴⁹⁶ The Draft Code contains an obligation for states to try or extradite any individual found on their territory who is alleged to have committed a crime against humanity.⁴⁹⁷ These two instruments – although not binding upon

492 Bassiouni, Introduction to International Criminal Law, (2^nd ed., Leiden/Boston: Martinus Nijhoff Publishers, 2013), at 157.

493 Crimes against humanity are defined as “murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime.”

494 ‘Annexe B: Crimes against humanity’, in Report of the International Law Commission, Sixty-fifth session, General Assembly Official Records Sixty-eighth session, Supplement No. 10 (A/68/10), 6 May-7 June and 8 July-9 August 2013, at 141.

495 General Assembly, Principles of International Cooperation in the Detection, Arrest, Extradition, and Punishment of Persons Guilty of War Crimes and Crimes Against Humanity, 28th session, 3074 (XXVIII), 3 December 1973.

496 The crimes of rape and torture were added to the list of crimes.

497 See Art. 9 of the Draft Code.

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states – contribute to establishing the customary nature of universal jurisdiction over crimes against humanity.⁴⁹⁸

Crimes against humanity were later incorporated into the ICTY and ICTR Statutes, as well as in the statutes of the Special Court for Sierra Leone and the ECCC. They finally acquired an authoritative definition with the adoption of the ICC Statute.⁴⁹⁹ It is widely recognized that a rule of customary international law has emerged allowing the exercise of universal jurisdiction over crimes against humanity. Indeed, it is undisputed among scholars that the exercise of universal jurisdiction over crimes against humanity is permitted under customary international law.⁵⁰⁰ In this respect, one can point to the numerous pieces of legislation, which embody this principle, as well as the successful prosecution before national courts of perpetrators of crimes against humanity, which we will come back to in Part III. In addition, the idea that crimes against humanity are subject to universal jurisdiction has attracted very broad support from international judicial authorities.⁵⁰¹

The question that arises is whether there exists an international obligation on states to establish and exercise universal jurisdiction over crimes against humanity. According to some scholars, there is little evidence of a universal repression obligation under the lex lata.⁵⁰² The International Law Commission in its report provides that one of the key elements in a convention on crimes against humanity would be to require the parties to criminalize the offence in their national legislation, not just with respect to acts on its territory or by its nationals, but also with respect to acts committed abroad by non-nationals who then turn up in that State party’s territory”.⁵⁰³ This issue will be discussed below

498 Naqvi, Impediments to Exercising Jurisidiction over International Crimes (The Hague: T.M.C. Asser Press, 2009), at 43.

499 See Kamminga, supra note 473, at 940-974.

500 See Kamminga, supra note 472, at 940-974; P. Akhavan, ‘The Universal Repression of Crimes Against Humanity before National Jurisdictions: The Need for a Treaty-Based Obligation to Prosecute’, in Sadat (ed.), Forging a Convention for Crimes against Humanity (Cambridge: Cambridge University Press, 2011), at 29; M. Hlávková, ‘Prosecution of High-Ranking State Officials for Crimes Under International Law before Domestic Courts on the Basis of the Universal Jurisdiction Principle’, Diploma Thesis (2009/2010), at 42.

501 ICJ, Arrest Warrant, Individual opinions by Judge Koroma (para. 9), Judge ad hoc Van der Wyngaert (para. 59) and the Joint Separate Opinion (para. 65); ICTY, Prosecutor v. Tadic; Prosecutor v.

Ntuyahaga; Polyukhovitch v. The Commonwealth; Bouterse case.

502 Akhavan, ‘The Universal Repression of Crimes Against Humanity before National Jurisdictions: The Need for a Treaty-Based Obligation to Prosecute’, in Sadat (ed.), Forging a Convention for Crimes against Humanity (Cambridge: Cambridge University Press, 2011), at 29.

503 ‘Annexe B: Crimes against humanity’, in Report of the International Law Commission, Sixty-fifth session, General Assembly Official Records Sixty-eighth session, Supplement No. 10 (A/68/10), 6 May-7 June and 8 July-9 August 2013, at 140 ff.

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in the section dedicated to the duty to prosecute core international crimes under the universality principle.⁵⁰⁴

4. Torture

Torture was first criminalized at the international level as a war crime and a crime against humanity.⁵⁰⁵ It was explicitly listed as a grave breach in the 1949 Geneva Conventions and subjected to universal repression.⁵⁰⁶ Although the ICTR and the ICTY as well as the ICC Statute include torture as a form of a crime against humanity and a war crime, they do not include the crime of torture as a discrete crime subject to their jurisdiction. Two hybrid tribunals – the Extraordinary Chambers in Cambodia⁵⁰⁷ and the Special Panels in East Timor – do however have jurisdiction over torture per se.⁵⁰⁸ In addition, all the international and regional human rights instruments, namely the ICCPR,⁵⁰⁹ the ECHR,⁵¹⁰ the ACHR,⁵¹¹ as well as by the African Charter of Human and People’s Rights,⁵¹² prohibit torture.

The Convention Against Torture, which was adopted in 1984 and entered into force on 26 June 1987, imposes an express duty on state parties⁵¹³ to ensure that all acts of torture are offences under [their] criminal law.⁵¹⁴ Article 5(2) of the Torture Convention requires state parties to establish jurisdiction over offences “in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him”. Article 6 then goes on to provide that if the circumstances so warrant, any state party in whose territory the suspect is present “shall take him into custody or take other legal measures to ensure his presence”.

Article 7(1) of the Torture Convention provides that “The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution”. It has been said that the language used in this provision is “weak” because it admits that charges can be submitted but

504 See infra subsection IV N 192 ff.

505 Naqvi, supra note 497, at 60.

506 Ibid.

507 See Art. 3 of the Law on the Establishment of the ECCC.

508 Naqvi, supra note 497, at 62.

509 Art. 7 ICCPR.

510 Art. 3 ECHR.

511 Art. 5(2) ACHR.

512 Art. 5 of the African Charter.

513 146 states are party to the Convention.

514 Art. 4 of the Torture Convention.

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ultimately dismissed.⁵¹⁵ Indeed the obligation contained in Article 7 is not to prosecute but to “submit the case” to the competent authorities. In countries which have the so-called “principle of opportunity”, the authorities could then decide whether to prosecute the offence or not.⁵¹⁶

The Torture Convention also limits the obligation to exercise universal jurisdiction to cases where the alleged offender is found on the territory under the state’s jurisdiction. In this sense, the obligation under the Torture Convention is narrower than that contained in the Geneva Conventions; the latter includes a duty to search for persons even when they are situated outside the territories of state parties (so-called “universal jurisdiction in absentia”)⁵¹⁷. Of course, this does not mean that universal jurisdiction is only permitted if the alleged offender is present on state territory. Rather, it means that the treaty obliges states to exercise universal jurisdiction only if the offender is present on their territory. Indeed, it can be argued that it does not make much sense to impose a duty on all state parties to investigate and prosecute any suspect of torture everywhere in the world. It is however generally recognized that all states are authorized to investigate and prosecute an alleged torturer in his absence, irrespective of where the acts were perpetrated and of the author’s or victim’s nationality.⁵¹⁸

In its 2000 Report on universal jurisdiction, the International Law Commission recalled that “torture not amounting to a crime against humanity is a crime subject to universal jurisdiction pursuant to the UN Convention against Torture”.⁵¹⁹ It further considered that states not party to the Convention against Torture are entitled, but not obliged, to exercise universal jurisdiction in respect of torture on the basis of customary international law.⁵²⁰

With regard to international decisions, in 1998, the ICTY Trial Chamber in the case Delalić and others held that the prohibition on torture was a rule of international customary law as well as a “norm of jus cogens”.⁵²¹ Later that year, in the Furundžija case, it expressly stated that “every State is entitled to

515 E. Kontorovich, ‘The Inefficiency of Universal Jurisdiction’,University of Illinois Law Review (2008) 389-418, at 409.

516 See Part III, Chapter 4 dedicated to the initiation of universal jurisdiction proceedings.

517 International Law Commission, Final Report on the Exercise of Universal Jurisdiction, at 8.

518 See Cassese et al., Cassese’s International Law (3rd ed., Oxford: Oxford University Press, 2013), at 134.

519 International Law Commission, Final Report on the Exercise of Universal Jurisdiction, at 4-5.

520 Ibid., at 8.

521 ICTY, Trial Chamber, Judgement, Prosecutor v. Delalić and others (IT-96-21-T), 16 November 1998,

§ 156.

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investigate, prosecute and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction”.⁵²²

The landmark ICJ judgment in the Belgium v. Senegal case⁵²³ contributed to reinforce universal jurisdiction over torture and international crimes.⁵²⁴ The Court provided that state parties to the Convention “have a common interest to ensure, in view of their shared values, that acts of torture are prevented and that, if they occur, their authors do not enjoy impunity”. It recalled that “the obligations of a State party to conduct a preliminary inquiry into the facts and to submit the case to its competent authorities for prosecution are triggered by the presence of the alleged offender in its territory, regardless of the nationality of the offender or the victims, or of the place where the alleged offences occurred”. The Court defined these obligations as “erga omnes partes in the sense that each State party has an interest in compliance with them in any given case”.⁵²⁵

The Court found Senegal in breach of the obligation, pursuant to Article 6 § 2 of states on whose territory a person alleged to have committed acts of torture is present, to “make a preliminary inquiry into the facts”.⁵²⁶ The Court noted that the “obligation to establish the universal jurisdiction of its courts over the crime of torture is a necessary condition for enabling a preliminary inquiry”.⁵²⁷ The Court also found Senegal in breach of its obligations pursuant to Article 7 § 1 of the Convention. It stated that this article requires the state concerned to submit the case to its competent authorities for the purpose of prosecution, irrespective of the existence of a prior request for the extradition of the suspect.⁵²⁸ In other words, states must consider the prosecution of torture as an obligation, including on the basis of universality, and extradition as an option.

Regrettably, the judgment does not answer the question of whether Belgium had jurisdiction to issue the warrant.

With regard to Article 5 § 2 of the Convention against Torture, which requires a state party to the Convention to “take such measures as may be

522 Ibid.

523 ICJ, Judgement, Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), 20 July 2012.

524 Andenas and Weatherall, ‘International Court of Justice: Questions Relating to the Obligation to Extradite or Prosecute (Belgium v Senegal) Judgment of 20 July 2012’, 62 International and Comparative Law Quarterly (2013) 753-769.

525 For comments on this judgement, see G. Buys, ‘Belgium v. Senegal: The International Court of Justice Affirms the Obligation to Prosecute or Extradite Hissène Habré Under the Convention Against Torture’, in ASIL Insights (11 September 2012), available online at www.asil.org/insights.

526 ICJ, Judgment, Questions relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), 20 July 2012, § 88.

527 Ibid., § 74.

528 Ibid., § 94.

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necessary to establish its jurisdiction” over acts of torture when the alleged offender is “present in any territory under its jurisdiction”, the Court found that it lacked jurisdiction because Senegal had complied with its obligations under Article 5 by the time the application was filed.⁵²⁹

It is generally agreed that States, which are not parties to the Convention against Torture, have the right – if not the obligation – to prosecute persons suspected of torture that are present in their territory.⁵³⁰

5. Concluding remarks

The treaty basis for universal jurisdiction prosecution of core crimes clearly has gaps and weaknesses. There is no special convention on crimes against humanity;⁵³¹ the Genocide Convention does not explicitly establish universal jurisdiction and the ICC Statute does not clearly require or authorize state parties to establish universal jurisdiction over crimes under the jurisdiction of the Court.⁵³² Even the text of the Geneva Conventions is not entirely clear about establishing universal jurisdiction over war crimes. This is regrettable because it generates legal uncertainty.

However, it is today generally accepted that these four crimes are subject to universal jurisdiction under customary international law. In other words, the establishment and exercise by states of universal jurisdiction over these crimes is fully authorized by customary international law. Consequently, if a state establishes and/or exercises universal jurisdiction over these crimes, it does not infringe the principle of non-interference. The question that remains concerns the existence of a duty of states to establish and exercise universal jurisdiction over these four crimes.

IV. The duty to prosecute core international crimes