1. Introduction
This article considers to what extent an attack against members of the armed forces can be a crime against humanity (CAH). It specifically analyzes this issue within the context of the crimes perpetrated by the Khmer Rouge, a communist regime who held power in Cambodia from April 1975 to January 1979, and were responsible for the deaths of an estimated 1.7 million people.Footnote 1 For the last decade, the ECCC has been attempting to hold former Khmer Rouge cadres accountable for their crimes, and has thus far found three individuals guilty of CAH, amongst other offences.Footnote 2 The inspiration for this article came from a call for amicus curiae briefs issued in April 2016 by the ECCC's Office of the Co-Investigating Judges (OCIJ), the organ responsible for the investigations, identification of crimes and collection of evidence.Footnote 3 Drafted by the International Co-Investigating Judge Michael Bohlander, the call sought guidance on a specific legal question: whether, under customary international law applicable between 1975 and 1979, an attack by a state or organization against members of its own armed forces may amount to an attack directed against a civilian population for the purpose of constituting a crime against humanity under Article 5 of the ECCC Law. Under Article 5, CAH are any acts committed as part of a widespread or systematic attack directed against any civilian population, on national, political, ethnical, racial or religious grounds. The ECCC has previously found that while a ‘civilian population’ need not be entirely made up of civilians, members of the armed forces are not considered ‘civilians’, even if they are hors de combat.Footnote 4
However, as explained by Judge Bohlander in the amicus call:
It seems that an argument could be made that . . . the entire distinction between combatants and civilians might only make sense if we are talking about combatants and civilians of the enemy population . . . One could further argue that it would a) seem beyond dispute that a regime which in peace times tried to cleanse its own armed forces of, for example, all soldiers holding a particular ethnicity or faith, would under international customary law be engaging in a variety of crimes against humanity, because the victims’ combatant quality merely because they are soldiers would be entirely irrelevant in this context, and that b) there is no reason to think otherwise if such a campaign happened in the course of or otherwise connected to an armed conflict.Footnote 5
The factual context to this legal problem is contained within Cases 003Footnote 6 (Meas Muth case) and 004Footnote 7 (Ao An and Yim Tith case) at the ECCC. It appears that the legal issue identified by the OCIJ has arisen in the context of attempting to prosecute a number of accused for internal purges perpetrated against Khmer Rouge cadres during the regime. As noted by the OCIJ, the issue of what effect the presence of soldiers or combatants among a target group has on the interpretation of ‘civilian population’ for the purposes of identifying a CAH becomes a vital legal issue when regimes target their own soldiers. The situation is complicated further by the need to ascertain customary international law at the time of the crimes, thus requiring particular consideration of jurisprudence prior to 1975–1979.
The authors were involved in the submission of an amicus on this issue. At the request of the OCIJ, the submission did not apply its legal findings to the specific context of the ECCC, but explored the issue as an abstract question of law. In this article, we wish to put forward some thoughts on the possible legal approaches open to the OCIJ, applying our legal analysis to the specific factual context. The issue of whether attacks against soldiers and combatants may constitute CAH is not only of importance to the ECCC. As noted by the OCIJ, it does not appear that any of the other contemporary international criminal tribunals, such as the International Tribunals for Rwanda (ICTR) and the ICTY, or the ICC, have specifically addressed this particular question.Footnote 8 Thus, the ECCC has the opportunity to contribute significantly to the development of international criminal law. An in-depth analysis of this area of law is therefore particularly timely.
We will first provide some factual background by exploring the phenomenon of internal purges during the Khmer Rouge era and outlining some of the crimes allegedly perpetrated by the accused in Cases 003 and 004. We will then explore the creation of CAH, which emerged as a way of addressing what was later described as the ‘protection gap’ between genocide and war crimes.Footnote 9 We then examine the customary international law applicable between 1975 and 1979. We argue that the law at this time permitted members of the armed forces to be considered civilians for the purposes of CAH, and that the OCIJ would be justified in adopting such an approach. We then analyze recent developments in contemporary international criminal tribunals. While these developments are outside the period under discussion they may provide guidance, as the language of Article 5 of the ECCC Statute reflects contemporary formulations of CAH. We argue that while international criminal law continues to acknowledge that attacks against members of the armed forces may amount to CAH, recent jurisprudence has adopted a restrictive approach which goes against the spirit in which the crime was created, and reopens the ‘protection gap’. We argue that not only is a less restrictive interpretation justified by our analysis of the law at the relevant time, it is also appropriate in light of the spirit in which CAH was created. Thus, the OCIJ has the opportunity to both clarify the law and oppose this restrictive interpretation.
2. Purges and persecution under the Khmer Rouge
The Khmer Rouge purges undoubtedly constituted a significant source of death and suffering during the regime.Footnote 10 Former cadres have spoken of Pol Pot's plan to address ‘betrayal’ within the party,Footnote 11 and to ‘smash’ those who were seen as ‘impure’.Footnote 12 The result was a massive wave of internal purges that led to the deaths of thousands of cadres.Footnote 13 The violence accelerated throughout the regime, as the Khmer Rouge ‘purged and re-purged itself’.Footnote 14 It appears that the standard purge process was to send trusted cadres into an area and systematically arrest and execute local officials,Footnote 15 while the Khmer Rouge leaders publicly denounced the victims as enemies.Footnote 16 Many were sent to the infamous S-21 security centre, where, of the 14,000 individuals murdered, it is estimated that more than 1,000 were Khmer Rouge soldiers.Footnote 17
In his call for amicus submissions, the International CIJ spoke of ‘a regime which . . . tried to cleanse its own armed forces of, for example, all soldiers holding a particular ethnicity or faith’.Footnote 18 This may be interpreted as a reference to the strong discriminatory nature of many of the purges, and to the broader discriminatory policies that the Khmer Rouge directed against ethnic and religious groups such as the Khmer Krom,Footnote 19 the Cham Muslims,Footnote 20 Buddhists,Footnote 21 and the ethnic Vietnamese.Footnote 22 The regime singled these groups out for extermination, as it pursued its goal of creating a completely homogenous society.Footnote 23 It is therefore likely that the CIJ was referring to the Khmer Rouge's violent attempts to purge the Party of members whom it deemed undesirable because of their ethnic, political or religious backgrounds, as well as those who demonstrated an alleged lack of ideological commitment.
The accused in Cases 003 and 004 face a number of charges of CAH,Footnote 24 and the OCIJ has identified purges in Case 004, and crimes perpetrated against members of Khmer Rouge Divisions in Case 003, as being part of its investigations.Footnote 25 Indeed, two of the largest purges appear to fall within the scope of Cases 003 and 004.Footnote 26 In the context of Case 003, it is alleged by Heder and Tittemore and others that in April 1975 the accused, Meas Muth, became secretary of a section of Cambodia known as Division 164,Footnote 27 where he used his authority to bring about a purge, executing some, and sending others to the S-21 security centre in Phnom Penh.Footnote 28 The charges against him reflect these allegations, as they include CAH perpetrated at various security centres, in a number of worksites, and against members of Divisions 164, 502, 117, and 310.Footnote 29 In the context of Case 004, the accused, Ao An, is alleged to have held the position of Deputy Secretary of the Central Zone in 1977, where approximately 150,000 people were executed.Footnote 30 He allegedly purged the Zone of those he declared ‘disloyal’ for failing to meet the goals set by the regime, arresting and murdering virtually all officials and their families.Footnote 31 Amongst the charges against him are allegations of persecution on political and religious grounds, including crimes against Khmer Rouge cadres and their families.Footnote 32 The accused, Im Chaem, allegedly became Secretary of Preah Net Preah district in Banteay Meanchey province during the 1977 Khmer Rouge purge of the Northwest Zone, where she reportedly oversaw five camps and prisons where nearly 50,000 people died.Footnote 33 The charges against her include allegations of persecution on political grounds.Footnote 34 Finally, the accused, Yim Tith, initially held the position of Secretary of Kirivong in the Southwest Zone, later becoming Deputy Secretary of the Northwest Zone, where he ‘had knowledge of, ordered and possibly directly participated in the torture and mutilation of prisoners’.Footnote 35 The charges against him specifically include, ‘persecution against the so-called “17 April people”, “East Zone Evacuees”, Northwest Zone cadres, their families and subordinates, as well as the Khmer Krom and Vietnamese’.Footnote 36
Having outlined the factual background to the OCIJ's query, we now turn to the law applicable at the time of the Khmer Rouge, in order to consider whether there is support for classifying crimes perpetrated against members of the armed forces as CAH. The following sections will consider the initial purpose behind the creation of the offence of CAH, before considering who has been historically considered as constituting a victim of such crimes. Case law will be used to demonstrate that while CAH are often defined as being perpetrated against ‘civilians’, this has historically been interpreted broadly, allowing members of the armed forces to be victims of CAH perpetrated by their own state.
3. Defining crimes against humanity
One of the primary purposes behind the conception of CAH was the protection of the human rights of all people within a state against widespread or systematic brutality committed by governments or other organizations.Footnote 37 From the earliest attempts to define crime ‘against the laws of humanity’ following the First World War, through to the first codifications of CAH in the aftermath of the Second World War, it is evident that the legislation was designed to protect the human rights of all individuals.Footnote 38 The concept of CAH was initially linked to international humanitarian law,Footnote 39 an area of law that has historically drawn a distinction between civilians and combatants,Footnote 40 but has also sought to ensure that individuals’ rights are protected during conflict. While the absolute protection of civilians during conflict must be balanced against military necessity – which may justify an otherwise unlawful act against the civilian population or a civilian object – an attempt to narrow ‘protection gaps’ is nonetheless evident in international humanitarian law.Footnote 41 The Fourth Geneva Convention, for instance, focuses on the notion of protected persons, providing that:
Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.Footnote 42
While Article 4 provides that those afforded special protection under the other Geneva Conventions, ‘shall not be considered as protected persons within the meaning of the present Convention’,Footnote 43 the 1958 Commentary to the Geneva Conventions provides that ‘if, for some reason, prisoner of war status – to take one example – were denied to them, they would become protected persons’.Footnote 44 As such, the concept of protected persons is residual in nature, demonstrating an intention to narrow the ‘protection gap’.
Crimes against humanity emerged as a distinct category of crime in order to continue narrowing this protection gap, by protecting individuals from extreme harm that fell outside the definitions of war crimes and genocide.Footnote 45 Specifically this category of crime can be used to try individual perpetrators for acts that: form part of a widespread or systematic attack on civilians both within, or outside of, an armed conflict, a state commits against its own people,Footnote 46 and do not fit the technical and narrow requirements of genocide.Footnote 47 CAH's subsequent development has been influenced by international human rights law, which was designed, in part, to protect individuals in their relationships with states.Footnote 48 While the definition of CAH has undergone many revisions, one of the foremost scholars in international criminal law, Cassese, suggests that definitions of CAH have the following common features:Footnote 49
They are particularly odious offences . . . they are not isolated or sporadic events, but are part of a governmental policy, or of a widespread or systematic practice of atrocities tolerated, condoned, or acquiesced in by a government or a de facto authority . . . they are prohibited . . . regardless of whether they are perpetrated in time of war or peace [, and] . . . the victims may be civilians.
When determining the applicability of the ‘crimes against humanity’ label to crimes perpetrated against Khmer Rouge cadres, it is the last element, defining ‘victimhood’ and ‘civilians’, that is the most important, and which will be particularly considered in the following sections.
3.1. The ‘civilian’ requirement
Following the First World War, France, Britain, and Russia issued a Joint Declaration on 24 May 1915, condemning ‘those new crimes of Turkey against humanity and civilisation’, and pronouncing that the Allied governments, ‘will hold personally responsible these crimes all members of the Ottoman government and those of their agents who are implicated in such massacres’.Footnote 50 The Paris Peace Conference in 1919 resulted in the establishment of a Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties (Commission), whose report presented evidence of violations ‘against the law and customs of war and of the laws of humanity’.Footnote 51 This report essentially proposed a new category of international crime ‘against the laws of humanity’ that could be applied to the attacks committed by Turkey on its own nationals in its own territories. Specifically, the Commission pointed to the mass killings of Armenians within the Ottoman Empire.Footnote 52 In addition, the Commission explored the issue of the targeting of Armenians within the Ottoman Army, acts that included disarming Armenian soldiers, transferring them to labour brigades, and subjecting many to eventual execution.Footnote 53 Although the report was adopted unanimously, its recommendations to establish a further commission of inquiry as well as an international tribunal for war crimes were not carried out.Footnote 54 Nonetheless, the report marked an important shift in the realm of international law: it solidified some of the foundational conceptions informing the creation of CAH; it highlighted the issue of defining victimhood, notably including members of the armed forces within this definition; and it served as a precedent for Article 6 of the Nuremberg Charter.Footnote 55 Furthermore, according to Wexler, it also implied that minority groups would have protection from their own government through international law, established individual criminal responsibility for violations of the ‘laws of humanity’, and recognized their independence from war crimes.Footnote 56 Thus, an analysis of the very conception of CAH demonstrates that members of the armed forces were not excluded from constituting victims, and that members of minority groups were intended to receive protection against persecution by state actors.
Subsequent definitions have varied in their approach towards the definition of CAH, and the inclusion or otherwise of a ‘civilian’ requirement. CAH first appeared in positive international law in 1945, when it was defined in Article 6 of the Nuremberg Charter.Footnote 57 The Nuremberg CharterFootnote 58 and the subsequent Control Council Law No.10, Footnote 59 both define CAH as:
murder, extermination enslavement, deportation, imprisonment, torture, rape or other inhuman acts committed against any civilian population or persecution on political, racial or religious grounds, whether or not in violation of the domestic laws of the country where perpetrated.
This definition gives rise to two categories of CAH: (i) acts against civilian populations; and (ii) persecution on political, racial, or religious grounds. Whilst the first category within this definition clearly contains reference only to ‘civilian’ populations, the second category contains no such exclusions. As explained by Cassese:
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 that not only any civilian group but also members of the armed forces may be the victims of this class of crimes.Footnote 60
Support for a primary focus on persecution, rather than on the status of the victim, can be found in the work of jurists in the aftermath of the Second World War. For example, at the 1947 Conference for the Unification of Penal Law, discussions around CAH focused predominantly on the existence of persecution. Its Resolution, drafted by some of the ‘best jurists in the world’,Footnote 61 proposed a definition of CAH that removed the concept of ‘civilians’, and instead specified that:
Any manslaughter, or act which can bring about death, committed in peace time as in war time, against individuals or groups of individuals, because of their race, nationality, religion or opinions, constitutes a crime against humanity and must be punished as murder.Footnote 62
While the Nuremberg Charter's two-category definition continued to be utilized, for example, in the International Law Commission's (ILC) 1950 Nuremberg Principles and the 1968 Convention on the Non-Applicability of Statutory Limitations,Footnote 63 in 1954 the ILC released its Draft Code of Offences against the Peace and Security of Mankind, defining CAH as:
Inhuman acts such as murder, extermination, enslavement, deportation or persecutions, committed against any civilian population on social, political, racial, religious or cultural grounds . . . Footnote 64
This definition is significantly closer to that used by the ECCC, and merges the two categories of CAH together, entrenching the civilian requirement into incidences of persecution. Certainly, the drafting process demonstrated a state practice to include a ‘civilian’ requirement.Footnote 65 However, these sources illustrate that prior to 1975 differing approaches existed with regards to the inclusion of a civilian requirement in cases of persecution. Furthermore, the creation of these legal instruments included relatively little consideration of the definition of a ‘civilian’, or whether combatants could be victims.Footnote 66 It is therefore worth considering how case law interpreted the ‘civilian’ requirement.
4. Exploring the boundaries of ‘civilian’
Definitions of ‘victims’ and ‘civilians’ were not the focus of many cases prior to 1975. Within its judgments, the Nuremberg Tribunal failed to make a distinction between the two categories of CAH and neglected to address the term ‘civilian population’; thus, failing to advance the conceptualization of victimhood.Footnote 67 Fortunately, subsequent trials have tackled these issues, in particular, two judgments delivered in the French courts. These judgments provide evidence in support of Cassese's conclusion that in a situation where the state is engaging in inhumane acts and persecution on political, racial, or religious grounds, there is no requirement that the victims be civilians.Footnote 68 This is important in the context of CAH before the ECCC, as Article 5 of the ECCC Law defines CAH as crimes perpetrated on ‘national, political, ethnical, racial or religious grounds’.
The French Cour de Cassation issued one of the most important judgments on the definition of ‘victims’ during the trial of Klaus Barbie. A major question raised during the Barbie Trial was, ‘whether this specific crime can be applied to any individual victim, or is it reserved only for those victims who are not fighting in the war?’.Footnote 69 Initially, the Investigating Judge and Grand Jury of the Appeals Court argued that the victims’ status as members of the Resistance prevented them from being victims of CAH. However, the Cour de Cassation quashed this judgment, finding that, ‘members of the resistance could be victims of crimes against humanity as long as the necessary intent for crimes against humanity was present’.Footnote 70 Thus, the Barbie case reinforced the distinction between the two categories of CAH, reaffirming that when a state engages in persecutions on political, racial, or religious grounds, there is no requirement that the victims be civilian. As stated by the Cour de Cassation:
it is the intention of the perpetrator of the crimes and not the quality or motives of the victims that determine the nature of the persecution committed . . . neither the victims’ motives nor their classification as combatants could exclude the guilty intent giving rise to Crimes against Humanity which shall be prosecuted . . . Crimes against Humanity include inhumane acts and persecutions committed in a systematic manner against people belonging to a particular race or religious community in the name of the State which is carrying out its policy of ideological hegemony . . . including inhumane acts and persecutions committed against adversaries of this policy, no matter what form this opposition may take.Footnote 71
The Cour de Cassation followed this line of reasoning in relation to the crimes committed against members of the Resistance, including Lise Lesevre and Professor Marcel Gompel. The Court found that Barbie had arrested, tortured, and sent Lesevre to a concentration camp. It concluded that:
[w]hen Barbie has tortured, or had others torture, members of the Resistance in order to obtain information of a military nature, he has committed war crimes, but when Barbie had Resistance members deported to concentration camps, where they were tortured and exterminated, he acted as a participant in the National Security policy of ideological hegemony.Footnote 72
Thus, the Court affirmed that an individual's membership in an armed group was irrelevant, what was important was the establishment of the perpetrator's intention while engaging in acts of persecution. Gompel was another member of the Resistance who Barbie had arrested and tortured. The original court held that because it was:
not clear whether Professor Gompel has been arrested in his capacity as a Jew or in his capacity as a member of the Resistance, Barbie would benefit from the doubt and could not be charged with this offense, as it had prescribed.Footnote 73
However, the Cour de Cassation took the opposite approach, stating that:
in excluding from the definition of crimes against humanity the acts imputed to the defendant that could have been committed against persons belonging to or that could have been part of the Resistance, whereas the opinion states that these “atrocious” crimes, of which the persons who were systematically or collectively the victims, were presented, by those in whose name they were perpetrated, as being politically justified by the national-socialist [Nazi] ideology, and whereas neither the mental intent of the victims, nor the possibility that they were combatants, could exclude the existence, on the defendant's part, of the mental intent required for the infraction pursued, the Indicting Chamber has misunderstood the scope and meaning of the law.Footnote 74
Thus, the Court emphasized the intent of the perpetrator, rather than the status of the victim. While the Touvier case did not delve into as much depth when considering the issue of victimhood, the Court did come to a similar conclusion. The Cour d'Appel de Paris found that:
Jews and members of the Resistance persecuted in a systematic manner in the name of a state practising a policy of ideological supremacy, the former by reason of their membership of a racial or religious community, the latter by reason of their opposition to that policy, can equally be the victims of crimes against humanity.Footnote 75
It is clear from the Barbie and Touvier cases that members of the armed forces, including the Resistance, were to be included within the second category of CAH. According to these judgments, the status of the victims as members of the armed forces was irrelevant, the intention of the perpetrator and the context of the crimes were what was important. This appears to be in keeping with the original spirit in which CAH were established: as a means of ensuring protection of the human rights of all people within a state against widespread or systematic brutality committed by governments or other organizations.Footnote 76
Thus, an analysis of the law and legal opinion in relation to CAH prior to the Khmer Rouge regime of 1975–1979 supports the conclusion that in a situation where the state is engaging in inhumane acts and persecution on political, racial, or religious grounds, there is no requirement that the victims be civilians.Footnote 77 As concluded by Cassese:
Plainly, in times of peace military personnel too may become the objects of crimes against humanity at the hands of their own authorities. By the same token, in times of armed hostilities, there is no longer any reason for excluding servicemen, whether or not hors de combat (wounded, sick, or prisoners of war), from protection against crimes against humanity (chiefly persecution), whether committed by their own authorities, by allied forces, or by the enemy.Footnote 78
As noted above, Article 5 of the ECCC law requires CAH to have been perpetrated on ‘national, political, ethnical, racial or religious grounds’, thus incorporating an implied reference to persecution. Unlike the formulations used in these courts, Article 5 does not separate crimes against civilians and the crime of persecution. However, we argue that the above approach should nonetheless guide the ECCC in its application of Article 5; as we explore below, the addition of the civilian requirement should not be used to limit the applicability of CAH through persecution.
It is worth noting that post-Second World War jurisprudence also featured a liberal interpretation of the term ‘civilians’ outside the context of persecution. For example, in the case of R. (StS 19/48),Footnote 79 the Supreme Court for the British Occupied Zone found that denouncing a non-commissioned officer in uniform could constitute CAH, as long as it could be demonstrated that the agent's intention was to hand over the victim to the ‘uncontrollable power structure of the party and State’, knowing that, as a consequence, the victim was likely to be caught up in an arbitrary and violent system.Footnote 80 Similarly, in P. and others, five members of a Court Martial were found guilty of complicity in a CAH for their role in executing three German marines who tried to escape from Denmark following Germany's partial capitulation. The Court noted that actions between soldiers could constitute CAH, if it could be shown that the ‘action at issue can belong to the criminal system and criminal tendency of the Nazi era’.Footnote 81 In the H. case, the same Court found that a judge who had sentenced to death two officers of the German Navy could be held guilty of CAH to the extent that his action was undertaken deliberately in connection with the Nazi system of violence and terror.Footnote 82
From this analysis, it can be seen that customary international law at the time of the Khmer Rouge crimes incorporated a broad conception of who could be a victim of a CAH. The status of victims has been repeatedly found to be irrelevant, where the crimes were perpetrated in the context of states practising hegemonic political ideologies enforced through arbitrary and violent systems. There is therefore a strong case in support of the International CIJ's supposition that a regime which, during an armed conflict, tried to cleanse its own armed forces of all soldiers holding a particular ethnicity or faith, would under international customary law be engaging in a variety of CAH, because the victims’ combatant quality merely because they are soldiers would be entirely irrelevant in this context.
Such an approach is also in keeping with the spirit of international humanitarian law. As noted above, one of the goals of this area of law has historically been to protect those rendered vulnerable during conflict. For example, while Article 50 of the 1977 Additional Protocol IFootnote 83 excludes members of the armed forces from being considered a ‘civilian’,Footnote 84 Commentary on the Protocols notes that: ‘In protecting civilians against the dangers of war, the important aspect is not so much their nationality as the inoffensive character of the persons to be spared and the situation in which they find themselves.’Footnote 85 Thus, while international humanitarian law has traditionally explicitly excluded members of the armed forces from its definition of ‘civilian’, it nonetheless recognizes the importance of protecting individuals who find themselves in a situation of vulnerability. The development of CAH reflects the desire to protect vulnerable individuals who fall outside the remit of international humanitarian law. Indeed, the need for the law to recognize and protect vulnerability is a theme that consistently runs through our analysis.
The following section explores the boundaries of civilian in the jurisprudence of the ICTY, ICTY and ICC. Due to the principle of non-retroactivity, the jurisprudence of these contemporary courts have no direct applicability to the status of customary international law between 1975 and 1979. Furthermore, contemporary tribunals have adopted varying definitions of CAH, and Bassiouni has opined that the tribunals developed their specific definitions to reflect their specific contexts and were not intended for future application.Footnote 86 Nonetheless, these tribunals have considered the appropriate definition of the term ‘civilian’, and have in some instances used similar formulations of CAH to that utilized by the ECCC. As such, they can provide guidance on possible interpretations of CAH, the term ‘civilian’, and the possibility of armed forces being victims of CAH perpetrated by state actors. It will be demonstrated below that while nothing in this jurisprudence explicitly excludes members of the armed forces from being victims of CAH, a more restrictive interpretation of ‘civilian’ has emerged, which the ECCC has the opportunity to counter in its own work.
5. Crimes against humanity in contemporary tribunals
The ECCC definition of CAH is an almost verbatim repetition of Article 3 of the Statute of the ICTR, which contains a list of crimes that constitute CAH when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds.Footnote 87 A particularly significant development is that the two categories of CAH identified under customary international law – acts against a civilian population and persecution on national, political, ethnic, racial or religious grounds – have been collapsed into one category under Article 3. Due to its similarities to the ECCC's formulation, the ICTR's jurisprudence is of particular interest as an example of how courts have interpreted such provisions, which will be returned to below.
In contrast, the ICTY and ICC have abandoned the discriminatory element of CAH – although persecution is included as a specific underlying crime – while retaining the notion of ‘civilians’ as victims. Article 5 of the Statute of the ICTY contains a list of crimes that, when committed in armed conflict, whether international or internal in character, and directed against any civilian population, constitute CAH.Footnote 88 Ultimately, this definition is regressive in nature, as it revives the original ‘Nuremberg’ nexus with armed conflict.Footnote 89 However, the court has subsequently found that, ‘customary international law may not require a connection between CAH and any conflict at all’.Footnote 90 Consequently, the ICTY has held that Article 5 only requires that the acts are committed within an armed conflict, for the purposes of jurisdiction, and that, ‘the nexus which is required is between the accused's acts and the attack on the civilian population’.Footnote 91 Article 7 of the Statute of the ICC provides an extended list of crimes that may constitute CAH when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.Footnote 92 During the negotiations for the Rome Statute, the inclusion of a civilian requirement proved controversial with some delegations preferring the wording ‘any population’ as opposed to ‘any civilian population’. In the end, the latter term was agreed upon as it was held to be consistent with customary international law; however, those against such wording were comforted by the fact that case law existed to support a flexible interpretation of the term ‘civilian’, such as the Barbie case discussed earlier.Footnote 93 While the exclusion of a discriminatory element renders the jurisprudence of these courts less persuasive in the context of the ECCC, they still contain useful guidance on the interpretation of the term ‘civilian’.
These contemporary formulations of CAH are a regression from customary international law and are troubling, as they potentially leave soldiers and combatants unprotected. Consequently, the question of how courts should interpret the phrase ‘any civilian population’ becomes of significant practical importance. Contemporary tribunals have considered this question in two parts: firstly, which individuals fall within the definition of ‘civilian’ and, secondly, what are the necessary characteristics of the population under attack.
5.1. From civilian to hors de combat
While the term ‘civilian’ is primarily understood as referring to non-combatants, case law from the ICTR has adopted a broad interpretation of the term civilian, which incorporates hors de combat.Footnote 94 In Akayesu it was held to include, ‘people who are not taking any active part in the hostilities, including members of the armed forces who laid down their arms and those persons placed hors de combat by sickness, wounds, detention or any other cause’.Footnote 95 Furthermore, the Kayishema case provided a negative definition of civilian in the context of relative peace: ‘all persons except those who have the duty to maintain public order and have the legitimate means to exercise force’.Footnote 96 On the face of it, this latter interpretation could be viewed as regressive in nature as it excludes, for example, members of the police or peacekeeping forces as potential victims. However, the interpretation of civilian as including hors de combat enables these individuals to claim victim status. This was evidenced in the military cases; when ten Belgian peacekeepers were beaten and executed by the Rwandan army after being captured, it was held that it did not matter that one of them had obtained a weapon to use in self-defence before they were killed. The fact of a weapon did not change their vulnerable status and the attack against them forming part of a larger CAH.Footnote 97 Moreover, the peacekeepers were held to be protected persons because their ‘mandate “did not include combat”’, indicating that they ‘were disarmed before they were killed’.Footnote 98 Thus, the focus was on their heightened vulnerability rather than their formal status. We would argue that the ECCC should follow this approach: Khmer Rouge cadres subjected to purges would be in a position of heightened vulnerability, with their formal status having little relevance to their victimhood. Such an approach is also in keeping with that of customary international law post-Second World War.
Early jurisprudence from the ICTY similarly recognized the need to adopt a ‘wide definition of civilian population’.Footnote 99 In Kupreskic, the ICTY juxtaposed the protection afforded to civilians as opposed to combatants under Article 5 of its Statute:
It would seem that a wide definition of “civilian” and “population” is intended. This is warranted first of all by the object and purpose of the general principles and rules of humanitarian law, in particular by the rules prohibiting crimes against humanity. The latter are intended to safeguard basic human values by banning atrocities directed against human dignity. One fails to see why only civilians and not also combatants should be protected by these rules (in particular by the rule prohibiting persecution), given that these rules may be held to possess a broader humanitarian scope and purpose than those prohibiting war crimes.Footnote 100
According to Ambos and Wirth, Kupreskic represents a human rights-based understanding of CAH, as ‘not only the human rights of civilians but also those of soldiers can be violated’.Footnote 101 Building on this expansive approach, Blaškić delimited two categories of people who could qualify as civilians for the purposes of CAH. The first category included:
members of resistance movements and former combatants – regardless of whether they . . . wore uniform or not – but who were no longer taking part in hostilities when the crimes were perpetrated because they had either left the army or were no longer bearing arms or . . . had been placed hors de combat . . . .
The second category was to be determined by the ‘specific situation of the victim at the moment the crimes were committed, rather than his status’.Footnote 102
It is clear from the above analysis that there has been continued recognition within contemporary courts that soldiers, combatants, and those who have the legitimate means to exercise force can be victims of CAH where they are placed hors de combat: effectively demobilized and in a state of vulnerability. From what we know of the Cambodian context, the cadres were detained in security centres, suggesting that they were disarmed; thus, they were hors de combat and qualify as ‘civilians’ for the purpose of establishing CAH, so long as the discriminatory motive required under Article 5 of the ECCC Statute is proven. Indeed, the Khmer Rouge based its purges on the ethnicity, political or religious background of the soldiers as well as their lack of ideological commitment.
However, there has been a subsequent narrowing of the ICTY's approach to the term ‘civilian’ and a growing consensus that the term should be defined as provided in Article 50 of Additional Protocol I, meaning that members of armed forces and other armed groups would be excluded.Footnote 103 Moreover, it must be noted that the broad categorization of civilian put forward in Blaškić (see above) was subsequently overturned on Appeal. The Appeal Chamber held that members of the armed forces and members of organized resistance groups cannot claim civilian status and that the Trial Chamber had erred in holding the specific situation of the victim at the time of the crime was determinative of one's status.Footnote 104 In a further narrowing of the definition, the Mrkšić et al. appeal case held that the term civilian ‘does not include combatants or fighters hors de combat’.Footnote 105 The Chamber came to this conclusion despite acknowledging that it leaves a fundamental protection gap in the law:
It is important to observe that failing to consider atrocities against fighters hors de combat as crimes against humanity does not mean that these acts will go unpunished. If committed in the context of an armed conflict, they are likely to qualify as war crimes, as will be the situation in the typical case before the ICTY. If committed in peacetime, they will be punishable under national law. There may perhaps be a “protection gap” in those situations, as crimes of this nature would fall outside the jurisdiction of international criminal courts and national authorities may not always be willing to prosecute.Footnote 106
This narrowing of approach can be linked to the fact that the definition of CAH under Article 5 of the Statute of the ICTY requires that it take place within an armed conflict, and that the cases before the ICTY were concerned with the treatment of belligerent states’ citizens, whether civilians or armed troops. In the Martić case, the ICTY explained that it did not want to ‘blur the necessary distinction’ between civilians and the military, and between war crimes and CAH.Footnote 107
While the definition of CAH under the Statue of the ICC does not require the presence of an armed conflict and therefore applies in times of peace, the ICC has aligned itself with the narrow interpretation adopted at the ICTY.Footnote 108 This narrow approach has also been supported by Bartels, who believes that an expansive definition of civilian results in ‘problematic rulings’ that ‘qualify acts as crimes against humanity although they would be legitimate under IHL’.Footnote 109 Yet, our analysis has demonstrated that even humanitarian law recognizes the need to consider the vulnerability of the individual as opposed to their formal status. Moreover, Bartels’ view should be contrasted with that of Ambos and Wirth who argue that, as CAH can be committed in times of war and times of peace, the term ‘civilian’ should be interpreted broadly, ‘because it must cover all persons which are not protected by humanitarian law, especially in times of peace’.Footnote 110 Ambos and Wirth endorse the original interpretation of civilian as set out in Blaškić, providing that, ‘it meets the needs of comprehensive protection of human rights very well since everyone except an active combatant of a hostile armed force is in a “specific situation” requiring the protection of his or her human rights’.Footnote 111
In contrast to the ICTY Statute, there is no specific requirement within the ECCC's Statute that CAH be committed in the context of an armed conflict. War crimes and CAH, as defined in the ECCC Statute, are distinct. CAH are widespread and systematic in nature, require no link to a conflict, can be committed against the state's own citizens, and have discriminatory intent; whereas war crimes occur within the context of an armed conflict and typically involve the treatment of protected persons of the belligerent power. Furthermore, the factual context within which the ECCC operates, while involving an armed conflict, also involves crimes perpetrated by a state against its own nationals. Such victims would fall within the protection gap if too narrow an interpretation of CAH was pursued, as such crimes would not fall within the definition of war crimes. Thus, we would argue that the ECCC should avoid the trap of widening the protection gap and narrowing the reach of CAH in order to retain a distinction with war crimes.
The second part of the analysis adopted by contemporary tribunals explores the characteristics of the population under attack. The jurisprudence from all of the contemporary tribunals provide that the ‘targeted population must be of a predominantly civilian nature. The presence of certain non-civilians in their midst does not change the character of the population’.Footnote 112 In Katanga, the ICC held that, ‘the crime may be established even if the military operation also targeted a legitimate military objective. It is important, however, to establish that the primary object of the attack was the civilian population or individual civilians’.Footnote 113 While one could interpret the requirement that civilians must be the primary object of attack as overly restrictive, an expansive approach towards the interpretation of the term civilian would minimize this risk. Indeed, in situations such as that before the ECCC, where a regime targets its own armed forces, the distinction between combatants and civilians becomes less relevant, as does the overall composition of the targeted population. Rather, as argued by Luban, it should be ‘the use of political and military power to assault rather than protect the well-being of those over whom the perpetrators exercise de facto authority’ that is the crux of CAH.Footnote 114 Thus, a focus on the intent of the perpetrator is of greater significance than the formal status of those victimized.
6. Conclusion and recommendations
This article considered the question of whether, under customary international law applicable between 1975 and 1979, an attack by a state or organization against members of its own armed forces may amount to an attack directed against a civilian population, constituting a CAH under Article 5 of the ECCC Law. We considered this question in the context of specific allegations made against a number of individuals charged at the ECCC. We have argued that such an attack may constitute a CAH, demonstrating that customary international law applicable between 1975 and 1979 supports this approach.
We have demonstrated that CAH were initially designed to fill a protection gap left by war crimes and genocide, thereby ensuring protection of the human rights of all people within a state against widespread or systematic brutality committed by governments or other organizations. From the first attempts to define crime ‘against the laws of humanity’ following the First World War, through to the first codifications in the aftermath of the Second World War, it is evident that the intention was to protect the human rights of all individuals.Footnote 115 It is, therefore, already evident that the spirit of CAH would allow for state attacks against their own armed forces to be CAH. Support for this view can also be found in post-World War Two case-law. A complication arises, however, in that initial formulations of CAH were split into two categories: those involving persecution, and those involving attacks against civilians. Article 5 of the ECCC Law contains implicit reference to persecution through its reference to ‘national, political, ethnical, racial or religious grounds’. Furthermore, within the charges made against the accused in Cases 003 and 004 are a number of allegations of persecution: including crimes perpetrated on political and religious grounds against Khmer Rouge cadres and their families;Footnote 116 and ‘persecution against the so-called “17 April people”, “East Zone Evacuees”, Northwest Zone cadres, their families and subordinates, as well as the Khmer Krom and Vietnamese’.Footnote 117 Thus, it would appear that the jurisprudence relating to the crime of persecution is of particular relevance, implying that there should be no civilian requirement at all. However, the wording of Article 5 includes specific reference to a civilian population, and does not distinguish between the two categories identified in customary international law. Thus, the interpretation of ‘civilian’ remains a crucial element. While the ECCC found in its judgments in Cases 001 (Kaing Guek Eav case) and 002/01 (Nuon Chea and Khieu Samphan case) that a member of the armed forces could not be a civilian, even if hors de combat,Footnote 118 we believe our analysis of the relevant law at the time demonstrates that this is the incorrect approach.
In exploring the boundaries of the term ‘civilian’ in case law prior to 1975–1979, broad understandings of who may constitute a victim of CAH were evident in relation to both categories outlined above. In cases concerning persecution, such as Barbie Footnote 119 and Touvier,Footnote 120 it was demonstrated that the status of the victims as members of the armed forces was irrelevant, and that it was the intention of the perpetrator and the context of the crimes that were central to establishing CAH. Further, the cases of R. (StS 19/48),Footnote 121 P. and others,Footnote 122 and H.,Footnote 123 demonstrated that even in the absence of persecution, CAH could be perpetrated against soldiers in the context of state policies of violence and terror. Thus, customary international law applicable from 1975–1979 provides a strong case for holding that the purges carried out by the Khmer Rouge against its own armed forces can qualify as an attack against a ‘civilian population’ for the purposes of establishing CAH. We would support the analysis of Cassese, and the jurists at the 1947 Conference for the Unification of Penal Law, who advocated for a focus on persecution, rather than the status of victims, as being the crux of the criminality of CAH.Footnote 124 We acknowledged that international humanitarian law has traditionally excluded armed forces from the definition of ‘civilian’. However, we found that a broad definition of the term in the context of CAH was in keeping with international humanitarian law norms, which have sought to narrow the protection gap and protect those of ‘inoffensive character’, a characteristic not unique to those who benefit from formal civilian status.
We also looked for guidance within the statutes and jurisprudence of contemporary courts, while acknowledging that these courts have not specifically addressed the question of whether attacks against armed forces can constitute an attack against a civilian population, and recognizing their more limited relevance to the ECCC's analysis. We found that contemporary formulations of CAH have been inconsistent. While the ICTY and ICC have removed the requirement of persecution from their definitions, the ICTR has also collapsed the two categories into one, transposing the civilian requirement onto crimes of persecution. This merger arguably widens the protection gap in a way that is counter to the spirit in which the offence was created, as it risks leaving soldiers and combatants without protection under the law of CAH. However, an expansive interpretation of ‘civilian’ can counter this, and the ICTR has shown a willingness to include hors de combat within the category of ‘civilian’ in the Akayesu Footnote 125 case and the military cases. The ICTY has also occasionally adopted a broad interpretation, for example in Blaškić.Footnote 126 While this case was ultimately overruled on appeal, we have argued that the standard set in Blaškić is in keeping with a human rights-based approach to CAH. The Khmer Rouge's practice of purging appeared to involve arresting and sending to security centres those cadres who were deemed ‘undesirable’ whether due to their religion, ethnicity, or lack of ideological commitment. Such individuals would constitute hors de combat and therefore this jurisprudence legitimizes the OCIJ recognizing the purges of the Khmer Rouge cadres as CAH.
Unfortunately, the ICTY has shown a recent tendency to adopt a more restrictive interpretation of ‘civilian’, due to concerns over the blurring of lines between CAH and war crimes. However, we would agree with the statement of the ECCC International CIJ, who observed that ‘the entire distinction between combatants and civilians might only make sense if we are talking about combatants and civilians of the enemy population’.Footnote 127 In the context of the ECCC, what has occurred is a widespread attack on a population with discriminatory intent,Footnote 128 perpetrated by state actors against their own armed forces. As observed by the International CIJ, when a regime seeks to cleanse its own armed forces of soldiers holding a particular ethnicity or faith, the victims’ combatant quality would be entirely irrelevant.Footnote 129
The ECCC has an opportunity to provide clarity to a complex area of law, to contribute significantly to the development of international criminal law, and to counter the regression that has emerged in the contemporary jurisprudence. We suggest that the ECCC take a human rights approach, which recognizes vulnerability, rather than the official status of the victim, as being relevant in interpreting ‘civilian populations’ and gives priority to the intention of the perpetrator. Such an approach would narrow the protection gap, and ensure that widespread and systematic abuses of state power are appropriately criminalized as CAH. Criminalization of CAH arose to protect individuals left vulnerable to abuse by those in power.Footnote 130 Symbolically, these crimes penalize acts that shock the conscience of humanity due to their flagrant disregard for human spirit, life, integrity and dignity.Footnote 131 The OCIJ should adopt an interpretation of Article 5 that is in keeping with the overall purpose of international criminal law, international human rights law, and international humanitarian law, to protect the basic values of human dignity, regardless of the legal status of those entitled to such protection.Footnote 132 As such, the breadth of the ‘civilian population’ requirement should be considered a lower threshold to establish when construed against other elements of the crime.
