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Beyond State Crimes: Non-State Entities and Crimes against Humanity

Published online by Cambridge University Press:  06 November 2014

TILMAN RODENHÄUSER
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Abstract

Recent cases before the ICC raise the question of on behalf of which entities crimes against humanity can be committed. Interpreting the ‘organizational policy’ requirement in its context, this article argues that in principle crimes against humanity can be committed pursuant to or in furtherance of a policy of any organization that has the capacity to orchestrate a widespread or systematic attack against a civilian population. It is shown that this does not broaden the scope of the crime indefinitely but that concrete requirements defining such entities are found in the contextual elements of crimes against humanity.

Keywords

armed groupscrimes against humanityKenya casenon-state actorsorganizational policy

Information

Type
HAGUE INTERNATIONAL TRIBUNALS: International Criminal Courts and Tribunals
Information
Leiden Journal of International Law , Volume 27 , Issue 4 , December 2014 , pp. 913 - 928
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2014 

1. Introduction

Originally, crimes against humanity (‘CAH’) connoted state crimes, and for more than four decades, charges of CAH were only filed for crimes committed on behalf of Nazi Germany. Atrocities during the last two decades, however, showed that in practice widespread or systematic crimes are not only committed on behalf of states but also on behalf of non-state entities. This is clearly reflected in the case law of the International Criminal Tribunal for the Former Yugoslavia, the Special Court for Sierra Leone, and, most notably, in the jurisprudence of the International Criminal Court.Footnote 1 The progressive broadening of the material scope of CAH raises the question of what characteristics the non-state entity behind CAH must possess, namely whether it must be state-like, an entity with de facto territorial authority, or, in principle, be any non-state entity.Footnote 2

This question became particularly important in the cases accusing inter alia Kenyan president Kenyatta and vice-president Ruto of CAH committed during post-election violence in Kenya in 2007–8. When the former ICC Prosecutor Moreno Ocampo requested permission to start investigations into the alleged crimes, it was upon Pre-Trial Chamber II to examine what the ‘outer limits of crimes against humanity’ are.Footnote 3 The Pre-Trial Chamber concluded that CAH could be committed pursuant to a policy by a non-state entity that has ‘the capability to perform acts which infringe on basic human values’.Footnote 4 This arguably broad definition of which entities can adopt a policy under Article 7(2)(a) of the ICC Statute divided the Pre-Trial Chamber, sparked controversial discussions among scholars,Footnote 5 and was not followed by Trial Chamber II in its recent judgment in the case of Germain Katanga.

This article analyses recent ICC jurisprudence and argues that under the ICC Statute CAH can be committed pursuant to or in furtherance of a policy of any non-state entity that has the capacity to orchestrate crimes that factually amount to a widespread or systematic attack against a civilian population. The next part of this article bases this argument on a theoretical assessment on whether non-state entities that are not state-like can commit what is generally understood as CAH. The following part examines what the Yugoslavia and Sierra Leone tribunals required from armed groups to be considered able to commit CAH. The final part first analyses how ICC jurisprudence approached this question, and second establishes concrete requirements that non-state groups must fulfil to qualify as an organization behind CAH under the ICC Statute.

2. A theoretical account of the ability of non-state entities to harm humanity

The term ‘crimes against humanity’ evokes the feeling that crimes are committed which are more serious than other crimes, meaning crimes that affect and concern all human beings. But why should the crime of murder be more serious when committed as a CAH than when committed as a crime under domestic law? If there is something commonly called ‘humanity’, why should humanity be harmed more by one murder than by another one? The difficulty in distinguishing CAH from crimes under domestic law and from human rights violations lies in the very concept of CAH: under its different definitions, CAH consist of underlying criminal acts, such as murder, and a particular context in which these acts are committed.Footnote 6 Non-state actors can certainly commit most of the underlying criminal acts. Thus, the essential question is under what circumstances crimes committed by non-state actors can amount to crimes that harm humanity?

Different accounts exist of what constitutes CAH and thereby harms humanity, ranging from characterizing CAH as particularly inhumane human rights violations that ‘deny their victims the status of human being’,Footnote 7 over crimes that harm the interests of humankind as a collective entity,Footnote 8 to CAH as group crimes that are committed both against groups and by groups. For the purpose of this article, the approach that CAH are group crimes is particularly interesting as it discusses the nature of alleged perpetrators. It has been suggested that not any group can commit CAH but that harm to humanity is only caused if a governing entity turns against its subjects. For example, David Luban argued that CAH occur if states or state-like entities turn against groups under their control and thereby invert their role and pervert their raison d’être. In his words, ‘the leitmotif binding together all the legal features [of CAH] is that of politics gone horribly wrong’.Footnote 9 Richard Vernon considers CAH ‘an abuse of state power involving a systematic inversion of the jurisdictional resources of the state’.Footnote 10 In addition, Larry May emphasizes that in such situations the prosecution of the alleged crimes under national jurisdiction is unlikely.Footnote 11

2.1. Crimes against humanity as large-scale crimes against individuals deprived of protection

The approaches suggested by these three distinguished scholars propose that when large-scale crimes are committed it is the societal context – allegedly the state involvement – that turns ordinary crimes into crimes against humanity. The idea that the governing entity inverts its protective responsibility and becomes the perpetrator of crimes against its subjects normally restricts the scope of perpetrators of CAH to states or state-like entities. This author accepts the assumption that CAH are crimes not committed by isolated individuals but crimes committed on behalf of groups. However, it is submitted here that in situations where large-scale group crimes occur the decisive question should be not whether these crimes are committed on behalf of a governing entity. The distinctive characteristic of CAH should rather be that large-scale human rights violations against a population are committed in circumstances where the victims are deprived of any prospect of protection by territorial authorities.

In situations where the state is either unwilling or unable to halt or prosecute large-scale human rights violations committed by non-state actors, the victims are left at the mercy of perpetrators and the governing entity is not fulfilling its protective responsibility towards individuals under its jurisdiction. From the point of view of a human being it is not important who commits the crimes at stake. The decisive fact is that large-scale crimes are committed and the victims are left without any protection at the national level. This understanding of CAH does not completely negate the role of the state or a state-like entity in the commission of the crime: the commission of mass atrocities amounting to CAH is only possible if the governing entity either violates or is unable to fulfil its obligation to protect the rights of individuals under its jurisdiction.Footnote 12

2.2. The capacity of non-state entities to commit crimes against humanity

The suggested scope of potential perpetrators of CAH raises the question whether the category of non-state entities on whose behalf CAH can be committed is restricted by certain criteria? This question suggests a two-pronged analysis of non-state entities’ capacity to commit CAH: first, do these entities have the capacity to orchestrate large-scale and grave crimes or human rights violations? And second, to what extent is the non-state entity's capacity relevant to find that the state is unwilling or unable to prevent or to halt the crimes? It has been suggested that entities behind CAH must have state-like resources at their disposal to sustain the crime, that they must dispose of the institutional capacity of declaring certain acts right or wrong, and that they must exercise territorial control ‘to immobilize a group and also to deny it external help’.Footnote 13 In addition, CAH should be committed by organized groups operating according to a policyFootnote 14 and such entities should be able to evade prosecution of their members.Footnote 15

It is undisputed that in principle members of non-state entities can commit most severe acts of violence or persecution, and can direct such attacks against groups or populations.Footnote 16 Similarly, non-state entities can develop group dynamics and forms of leadership under which these groups determine for their members what is right and what is wrong, and morally exclude victims from their group.Footnote 17 It is also questionable whether territorial control is a condition sine qua non for the commission of CAH. The immobilization of people is not necessarily an element of CAH but large-scale crimes can also be committed against people who are in principle able to flee. The flight of potential victims can even be one aim of CAH.Footnote 18 The denial of external help could be relevant for the commission of CAH but does not restrict it to crimes by state actors: if the state is not able to protect its citizens against large-scale crimes or does not call for external assistance, the victims of the crime are equally trapped in their home territory and denied any external protection as if the state committed the crimes itself.Footnote 19 As a result, while many of these possible characteristics of perpetrators of CAH suggest that normally agents of states or state-like entities commit these crimes, they do not exclude that these crimes are orchestrated by other non-state entities.

The second question is whether such non-state groups must possess certain powers vis-à-vis the state in which they operate. Luban suggested that perpetrators of CAH should be ‘politically organized groups acting under colour of policy’.Footnote 20 This suggests first that CAH can be committed by organizations acting under a policy, meaning that the individual perpetrator does not commit CAH on his or her own account but the crime is mediated by a systematic or widespread attack orchestrated by an organized entity. This condition can, in principle, be fulfilled by organizations that are not state-like. Second, Haque finds that ‘politically organized groups’ can commit CAH because it is particularly unlikely that the state delivers justice is such cases.Footnote 21 For Haque, ‘[p]olitically organized groups are appropriate targets for international law because they [. . .] are uniquely capable of co-opting the state to either assist or ignore group violence.’Footnote 22 For him, the decisive criterion appears to be that the state is unwilling to halt the group's crimes or to administer justice, either because it acquiesces to the crime or the organized group is powerful enough to co-opt the state. Yet, even if the ability to escape state justice was a necessary characteristic of groups capable of committing CAH, this would not limit the scope of perpetrators to political or state-like groups.Footnote 23

2.3. Minimum requirements for groups able to commit crimes against humanity

Crimes against humanity are not isolated or random crimes committed by individuals on their own account but crimes committed by individuals as part of an attack instigated by an entity. This entity must be sufficiently organized and equipped to orchestrate large-scale crimes against a group or population, which requires the entity to dispose of sufficient resources and infrastructure. Arguably, the commission of such large-scale crimes necessitates the existence of a preconceived plan or policy to facilitate collective action. In addition, CAH require a particular societal context where the territorial state, if not actively involved in the crimes, must at least be unwilling or unable to prevent or halt them. This would require two different elements: either the non-state perpetrator of CAH is capable of co-opting the state in order to enable its crimes and to evade prosecution. Or, irrespective of the non-state entity's capacity the state is simply unable or unwilling to fulfil its protective obligations towards the victims of the crimes. While the former case requires a certain political power on behalf of the non-state entity, in the latter case it is the incapacity of the state that enables the commission of the crime.

This theoretical understanding of CAH goes slightly beyond other philosophical approaches presented by scholars, but it is by far not new. Already in 1948, a United States Military Tribunal stated in the Einsatzgruppen case that

Crimes against humanity are acts committed in the course of wholesale and systematic violation of life and liberty.. . . They can only come within the purview of this basic code of humanity because the state involved, owing to indifference, impotency or complicity, has been unable or has refused to halt the crimes and punish the criminals.Footnote 24

3. The progressive broadening of the scope of crimes against humanity under international law

In different cases involving charges of CAH after the Second World War, national courts emphasized the importance of state involvement in CAH.Footnote 25 In contrast, in its attempt to codify international crimes under international law, the International Law Commission did not restrict CAH to crimes committed on behalf of states. It included certain criminal acts as CAH when ‘directed by a Government or by any organization or group’.Footnote 26 Against this background, when confronted with crimes allegedly committed on behalf of non-state entities, the ICTY emphasized that ‘the traditional conception was, in fact, not only that a policy must be present but that the policy must be that of a State, as it was the case in Nazi Germany’.Footnote 27 Recognizing that customary international law can change over time, the tribunal went on to explain:

[T]he law in relation to crimes against humanity has developed to take into account forces which, although not those of the legitimate government, have de facto control over, or are able to move freely within, defined territory.Footnote 28

Accordingly, corresponding with the fact that nothing in the ICTY statute suggested state involvement as a legal element of CAH, the tribunal made clear that international law did no longer require the involvement of a de jure state in the commission of CAH. Taking into account the wording of its statute, the object and purpose of the criminalization of CAH in times of changing characteristics of atrocities in the 1990s, and, most importantly, previous findings of the ILC with regard to CAH under customary international law, the tribunal correctly found that such crimes can also be committed on behalf of non-state entities.

The issue of what minimum requirements an entity behind CAH must fulfil came up prominently in the Limaj et al. case with regard to crimes allegedly committed by members of the Kosovo Liberation Army (KLA). At the time when the alleged crimes were committed the KLA was an armed resistance group that had operated underground and was only beginning to mount an open insurgency.Footnote 29 In contrast to the situations previously examined by the ICTY, the KLA was not the effective territorial authority but could best be characterized as a guerrilla force ‘with extremely limited resources, personnel and organization’.Footnote 30 The ICTY emphasized that states are the ideal perpetrators of CAH because they are the ‘organised authority within a given territory’, have sufficient ‘organisational and military capabilities’, and the ability ‘to mobilise and direct military and civilian power’ as well as to ‘marshal the resources to launch an attack’.Footnote 31 These criteria can be summarized in two essential requirements: first, the group must be sufficiently organized to orchestrate a widespread or systematic attack; and second, it must have the material resources and capacity to do so.Footnote 32 When the ICTY applied these indicative criteria to the alleged crimes, it did not refer to de jure characteristics of a group or organization or their legal status but to the group's de facto structure and capacity. This suggests that if a non-state entity is able to acquire enough resources to orchestrate crimes of sufficient scale and an internal structure or degree of organization that enables it to commit a pattern of crimes that are more than isolated acts of individuals, this group can be considered as a possible entity behind CAH.Footnote 33

Like the ICTY, the Special Court for Sierra Leone (SCSL) was also confronted with large-scale crimes allegedly committed by members of non-state parties to an armed conflict. In the Brima et al. case, the accused were members of the Armed Forces Revolutionary Council (AFRC), a non-state armed group that temporarily exercised governmental powers in Sierra Leone but was later ousted from power. Footnote 34 After losing power the AFRC was a non-state entity and ‘faced with the challenge of more limited resources and poorer organisational capacity’.Footnote 35 During this time, AFRC troops moved through the territory of Sierra Leone but did no longer resemble a state army. According to the SCSL, ‘organization and control remained minimal’.Footnote 36 Still, crimes committed during this period were found beyond reasonable doubt to be widespread and systematic, and the SCSL established that even at that time the AFRC was able to implement policies or plans to attack civilians.Footnote 37 The SCSL did not explicitly require control over territory to find an entity able to instigate CAH. For the SCSL, the decisive requirements were that the armed groups had the capacity to commit widespread or systematic crimes, and that the attacks were directed against a civilian population.Footnote 38

As a result, in the light of alleged atrocities committed by members of non-state armed groups both tribunals concluded first that under customary international law CAH can be committed on behalf of non-state entities. Second, instead of inferring from the origins of CAH that entities behind the crimes must be state-like, the tribunals – by reference to the wording of their respective statutes as well as customary international law – applied a capacity-oriented approach in order to respond to atrocities ‘in the modern age’.Footnote 39 As will be shown in the following part, this approach finds further support in the jurisprudence of the ICC.

4. Organizations under article 7(2)(a) of the icc statute: a question of capacity

Article 7(2)(a) of the ICC Statute requires that CAH be committed pursuant to or in furtherance of a state or organizational policy. There is agreement in ICC jurisprudence that such policy must not be that of a de jure state but can also be the policy of a non-state entity.Footnote 40 At present, cases of alleged CAH committed on behalf of different non-state entities are pending before the Court.Footnote 41 While in most cases non-state organizations behind alleged CAH were at the same time parties to a non-international armed conflict, this was not the case during post-election violence in Kenya in 2007/2008. In conflict situations, the ‘organizational policy’ question was rather uncontroversial, and different Pre-Trial Chambers found that ‘a policy may be made either by groups of persons who govern a specific territory or by any organisation with the capability to commit a widespread or systematic attack against a civilian population’.Footnote 42 As will be discussed below, this capacity-oriented approach was followed and further elaborated in the ICC's first judgment concerning CAH rendered in the Katanga case.

The question that divided Pre-Trial Chamber II in the case concerning post-election violence in Kenya was which characteristics non-state groups must possess to fall under Article 7(2)(a) of the ICC Statute. The majority of Pre-Trial Chamber II found that

[w]hereas some have argued that only State-like organizations may qualify, the Chamber opines that the formal nature of a group and the level of its organization should not be the defining criterion. Instead, as others have convincingly put forward, a distinction should be drawn on whether a group has the capability to perform acts which infringe on basic human values.Footnote 43

This finding suggests a fairly low threshold of organization under Article 7(2)(a) of the ICC Statute. As it is clear that an ‘organization’ under this provision refers to a non-state entity, the chamber was right in emphasizing that the formal nature of the entity does not matter. Non-state entities that are involved in large-scale violence are normally established outside state-structures and take very different forms. Thus, requiring a certain ‘formal nature’ of such groups would arbitrarily restrict the scope of this provision.

In his dissent, Judge Kaul criticized the lowered requirement advanced by the majority arguing that if unspecified it expands ‘the concept of crimes against humanity to any infringement of human rights’.Footnote 44 The criticism points in the right direction by emphasizing that CAH are not merely human right violations.Footnote 45 Yet, even a broad definition of organizations under Article 7(2)(a) of the ICC Statute would not have the feared result: it does not relieve the Court from examining whether the other elements of CAH have been met. In this respect, a low organizational threshold would not necessarily dilute the concept of CAH or open it for any criminal act. As Judge Kaul rightly emphasized, under Article 7(2)(a) of the ICC Statute ‘the private entity must have the means and resources available to reach the gravity of systemic injustice in which parts of the civilian population find themselves’.Footnote 46 This systemic injustice is, however, encapsulated in the contextual elements of CAH under Article 7 of the ICC Statute.

Following this disagreement among members of the Pre-Trial Chamber, scholars have advanced different characterizations of ‘organizations’ under Article 7(2)(a) of the ICC Statute. Commending Judge Kaul for his admittedly elaborate dissent, Kress supported Judge Kaul's conclusion that under contemporary international law CAH cannot be committed by any organization but an entity behind CAH must be state-like.Footnote 47 Likewise, Schabas argues that international law criminalizes certain acts committed on behalf of states and state-like entities but not by any non-state actor whose conduct is adequately dealt with at the national level.Footnote 48 In contrast, Robinson suggested that ‘some organized entity directing, instigating or encouraging crimes’ qualifies as an organization under the ICC Statute,Footnote 49 and Sadat cautioned that a narrow state-like construction of organizations under Article 7(2)(a) of the ICC Statute would ignore the development of international criminal law since Nuremberg.Footnote 50

Aligning rather with Robinson and Sadat, this author argues that an interpretation of the organization requirement under Article 7(2)(a) of the ICC Statute in accordance with established rules on treaty interpretation, as well as with regard to customary international law as established by the ICTY and SCSL, proposes that a non-state organization under Article 7 of the ICC Statute must not be state-like.Footnote 51 This is particularly the case when no concrete requirements specifying what it means to be ‘state-like’ under international law are provided.Footnote 52 The ‘organizational policy’ requirement should not be defined in the abstract. Rather, as the ordinary meaning of ‘organization’ is fairly broad,Footnote 53 specific requirements can be derived from its context and in the light of the object and purpose of the Rome Statute.Footnote 54 Read in its context, an organization must have sufficient capacity to orchestrate a widespread or systematic attack against a civilian population. Thus, the required degree of organization should be based on a functional assessment of what is required to meet the other contextual requirements of CAH under Article 7 of the ICC Statute.

This approach was taken by the Trial Chamber in the Katanga case. Interpreting the meaning of ‘organization’ under Article 7(2)(a) ICC Statute, the chamber did not refer to the indicative lists of characteristics of non-state groups that were proposed by the majority of Pre-Trial Chamber II and Judge Kaul in the Kenya case.Footnote 55 Instead, following a contextual interpretation of the term ‘organization’, the chamber found that

the link of the term organization to the very existence of the attack, and not to the systematic or widespread character of it, supposes that the organization disposes of sufficient resources, means and capacities to allow the realization of a course of conduct or an operation involving the multiple commission of acts referred to in Article 7(2)(a) ICC Statute.Footnote 56

In this respect, the chamber emphasized the ability of the organization to actively promote or encourage an attack.Footnote 57 At the same time, the chamber emphasized that neither the Statute nor the Elements of Crime require a centralized structure or hierarchy,Footnote 58 and that the widespread or systematic character of the attack does not require state-like characteristics.Footnote 59 Thus, the chamber did not refer to an abstract criterion of being ‘state-like’ or a list of criteria with no apparent basis in Article 7 of the ICC Statute for determining what an organization under Article 7(2)(a) of the ICC Statute is. Instead, by interpreting the organizational requirement in its context, the chamber found that it is the capacity – meaning the means, resources, and co-ordination capabilities – of the group that are decisive.Footnote 60

4.1. The required degree of organization as deduced from the contextual elements of CAH

Following this capacity-oriented understanding of the term ‘organization’, specific criteria that qualify a non-state entity as an organization can be deduced from the very definition of CAH under the Rome Statute. In the Katanga case, the chamber only emphasized the need for sufficient capacity to orchestrate an attack as defined in Article 7(2)(a) of the ICC Statute. However, as this attack must inevitably be either widespread or systematic, it might be helpful to deduce specific requirements form the entirety of contextual elements of CAH under Article 7 of the ICC Statute. Hence, this part examines what the ICC Statute requires for a crime to constitute a ‘widespread’ or ‘systematic’ ‘attack directed against any civilian population’, the latter understood as a ‘course of conduct involving the multiple commission of acts. . . pursuant to or in furtherance of a. . . policy’. In turn, this will help pointing out which minimum capacity a non-state entity is required to have in order to qualify as an ‘organization’.

4.1.1. ‘Attack directed against any civilian population’

Article 7(2)(a) of the ICC Statute defines an attack directed against any civilian population as a ‘course of conduct involving the multiple commission of acts referred to in paragraph 1. . . pursuant to or in furtherance of a State or organizational policy to commit such attack’. This definition contains two elements, one referring to the magnitude of the crimes and one to the policy and the entity behind the crimes. The requirement of a course of conduct has been interpreted as referring to a ‘campaign or operation’, and can normally be established by proving that the underlying crimes in Article 7(1)(a)–(k) of the ICC Statute have been perpetrated.Footnote 61 A ‘campaign or operation’ implies necessarily an element of scale,Footnote 62 which distinguishes such attack from isolated crimes. Thus, the understanding of attack as spelled out in the ICC Statute requires groups to be able to orchestrate a campaign or operation that involves the multiple commissions of crimes, which follows an organizational policy.

4.1.2. ‘Pursuant to or in furtherance of a. . . policy’

Article 7 of the ICC Statue provides for the first international definition of CAH which explicitly requires a ‘State or organizational policy’ as a legal element of the crime. While different views exist on whether a policy is a legal element of CAH under customary international law, for the purpose of this article – and with regard to the fact that states explicitly included this element in the ICC Statute – the policy requirement is considered a legal element of CAH.Footnote 63 The wording of Article 7(2)(a) of the ICC Statute clarifies that a policy cannot be any policy but must be one ‘to commit such attack’.Footnote 64 The policy behind the crimes interlinks the crimes that form part of the attack, guides the individual criminal acts, and thereby distinguishes CAH from ordinary crimes.Footnote 65 In addition, the policy behind the crimes ‘essentially refers to the fact that the state or organization intends to carry out an attack against a civilian population’,Footnote 66 and thereby also links the attack with the entity behind it.

Necessarily, the ‘State or organizational policy’ element requires that the organization behind the crime has the capacity to develop and promulgate a policy. Yet, such policy must not be formally adopted but can be inferred from different factors surrounding the commission of the crimes.Footnote 67 Guidance on the meaning of ‘policy’ can be found in the ordinary meaning of the term and its distinction from a ‘plan’, which normally underlies a systematic attack: whereas a plan is ‘a detailed proposal for doing or achieving something’, a policy is ‘a course or principle of action adopted or proposed by an organization or individual’.Footnote 68 Accordingly, while a policy normally aims broadly at eliminating, persecuting, or weakening a certain community, the systematic nature of the attack is found in repeated and planned action implemented against a civilian population.Footnote 69 This distinction is clearly reflected in case law.Footnote 70

The capacity required for adopting a policy that provides broader guidance for the crimes in question is rather low. It requires leadership – although not at the highest level of a state or organization – that develops and promulgates some broader guidelines, or a framework, that actively promotes, encourages, and provides general directions for the attack.Footnote 71 As explained in the Elements of Crimes, ‘[i]t is understood that “policy to commit such attack” requires that the State or organization actively promote or encourage such an attack against a civilian population’.Footnote 72 This understanding of ‘policy’ does not demand that the organization must meticulously plan the attack and direct it itself. In a footnote, the Elements of Crimes even provide that ‘such a policy may, in exceptional circumstances, be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack.’Footnote 73 Yet, it seems logical that a deliberate failure to take action can only amount to a policy behind CAH if the entity adopting this policy would otherwise have the responsibility to protect the victims.Footnote 74

The Elements of Crimes also state that normally a policy to commit an attack would be ‘implemented by State or organizational action’.Footnote 75 Following this requirement of active engagement of the entity behind the crime, different Pre-Trial Chambers found that one element of a state or organizational policy is that ‘the attack must be thoroughly organised and follow a regular pattern’.Footnote 76 If the policy requirement was understood in this way, however, it came very close to the requirement that an attack must be systematic. This understanding of a policy behind CAH was rejected by the chamber in the Katanga case, and indeed it would effectively vitiate the alternative requirement of a widespread or systematic attack.Footnote 77 Therefore, the better view is – in accordance with the Elements of Crimes – that a state or organization needs to have the capacity to first develop a policy and then implement it by actively promoting or encouraging the envisaged attack.Footnote 78 It does not require that the organization is able to implement the attack in a systematic manner, meaning that it commands the crimes to ensure they all follow a similar pattern.

Following this line of argument, ‘State or organizational action’ required for the implementation of the policy can consist merely of the active promotion and encouragement of the crimes. Yet, given the explicit link between the policy and the attack, this would presuppose that the promotion and encouragement of the crimes sufficed to realize an attack against a civilian population consisting of a course of conduct involving multiple crimes. While this possibility cannot be excluded, given that an attack consists of multiple crimes that are directed against a population, the implementation of a policy will normally require more than only the active promotion and encouragement of the crimes. In most cases the organization is required to have sufficient ‘resources, means, and capacity’ to realize such course of conduct.Footnote 79 This includes mechanisms to coordinate such an attack, which is also evident in that an attack must be ‘directed’ against a population that is targeted on the basis of a particular feature and does not consist of a randomly selected group of individuals. In sum, the organization must normally have the capacity to promulgate an ideology against the victim population, provide logistics – including weapons – for the commission of the crimes, and engage in the organization of the attack.Footnote 80

4.1.3 ‘Widespread or systematic’

In cases where the mere promulgation of a policy sufficed to orchestrate a widespread or systematic attack against a population, the widespread or systematic nature of the crimes would not require any further characteristics from the entity behind the crimes. However, as the implementation of a policy normally consists in action taken by the organization behind the crimes, the widespread or systematic character of the crimes does provide further indications on the required capacity of the entity behind them. According to ICC jurisprudence, ‘the adjective “widespread” connotes the large-scale nature of the attack and the number of targeted persons, whereas the adjective “systematic” refers to the organised nature of the acts of violence and the improbability of their random occurrence’.Footnote 81

In order to commit a widespread crime, an organization must first of all have the capability to cause large-scale human suffering, which is regularly proven by reference to the number of victims.Footnote 82 Launching a widespread attack requires the weapons, manpower, and other logistics to commit these crimes.Footnote 83 This capacity is uncontroversial with regard to parties to an armed conflict but is more difficult to establish when considering crimes by other non-state organizations. In the Ruto et al. case concerning post-election violence in Kenya, the Pre-Trial Chamber established the capability to commit a widespread crime by examining the ‘amount of capital, guns, crude weapons and manpower’ as well as other logistics available to the perpetrators.Footnote 84

The existence of a plan to commit the crimes normally evidences the systematic character of CAH, meaning that the acts follow a preconceived pattern. This means that in order to commit systematic crimes, an organization behind CAH must have, at a minimum, the capacity to coordinate crimes that follow a regular pattern.Footnote 85 When parties to an armed conflict allegedly commit CAH, the systematic character of the crimes can be evinced, for example, in the application of military tactics.Footnote 86 Outside armed conflict, in order to commit a systematic crime the organization behind the criminal acts must still, at a minimum, have a degree of organization in which the actual perpetrators of the underlying crimes follow the plan or strategy preconceived by the organization.Footnote 87

5. Conclusion

In order to be characterized as an ‘organization’ able to orchestrate crimes against humanity under Article 7 of the ICC Statute, a non-state entity should, at a minimum: (a) consist of a number of people; (b) pursue a common purpose; (c) have the ability to develop and promulgate a policy suitable to direct an attack against a particular victim population, which provides guidance to perpetrators and interlinks the committed crimes; (d) this policy must be sufficient to orchestrate the attack against a civilian population, which normally requires that the entity behind the policy disposes of sufficient weapons, manpower, other logistics, and means of co-ordination. In addition, except in cases where the mere promulgation of a policy suffices to instigate a widespread attack, the organization must: (e) have sufficient capacity to commit crimes on a significant scale, or (f) have the capacity to plan and organize an attack as well as the internal structure to ensure the concise execution of a policy. None of the criteria, or the reasoning behind them, justifies a strict limitation of organizations behind CAH to narrowly defined state-like entities. Today, atrocities are regularly committed in situations of inter-ethnic conflict where state authorities are either effectively non-existent or unable to protect their citizens. Excluding widespread or systematic atrocities from the scope of CAH solely because the entity behind them was not hierarchically organized in a state-like manner would defy the Rome Statute's objectives, and to some extent deny reality in many parts of the world.Footnote 88

References

1 Crimes adjudicated before the International Criminal Tribunal for Rwanda, in contrast, concerned crimes committed pursuant to or in furtherance of a policy by the Rwandan government. Consequently, jurisprudence of the ICTR will not be examined in this article, even though the ICTR made some relevant statements. See particularly Prosecutor v. Kayishema et al., Judgment, Case No. ICTR-95-1-T, T.CH. II, 21 May 1999, at para. 126.

2 See, for example, Schabas, W., ‘State Policy as an Element of International Crimes’, (2007) 98 Journal of Criminal Law and Criminology 963Google Scholar; M. C. Bassiouni, The Legislative History of the International Criminal Court, (2005); Ambos, K. and Wirth, S., ‘The Current Law of Crimes Against Humanity: An Analysis of UNTAET Regulation 152000’, (2002) 13 Criminal Law Forum 1CrossRefGoogle Scholar.

3 Kress, C., ‘On the Outer Limits of Crimes Against Humanity: The Concept of Organization Within the Policy Requirement: Some Reflections on the March 2010 ICC Kenya Decision’, (2010) 23 LJIL 855CrossRefGoogle Scholar.

4 Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ICC-01/09, Pre-T. Ch. II, 31 March 2010, at para. 90.

5 Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya (Judge Kaul, Dissenting Opinion), ICC-01/09, Pre-T. Ch. II, 31 March 2010; D. Robinson, ‘Essence of Crimes against Humanity Raised by Challenges at ICC’, (2011) EJILTalk!, available at <www.ejiltalk.org/essence-of-crimes-against-humanity-raised-by-challenges-at-acc>; Werle, G. and Burghardt, B., ‘Do Crimes Against Humanity Require the Participation of a State or a “State-like” Organization?’, (2012) 10 Journal of International Criminal Justice 1151CrossRefGoogle Scholar; See Kress, supra note 3; Jalloh, C. C., ‘Situation in the Republic of Kenya’, (2011) 105 AJIL 540CrossRefGoogle Scholar; Hansen, T. O., ‘The Policy Requirement in Crimes against Humanity: Lessons from and for the Case of Kenya’, (2011) 43 George Washington International Law Review 1Google Scholar; Sadat, L. N., ‘Crimes Against Humanity in the Modern Age’, (2012) 107 AJIL 334CrossRefGoogle Scholar; Jalloh, C. C., ‘What Makes Crimes Against Humanity Crimes Against Humanity?’, (2013) 28 AJIL 334Google Scholar.

6 See, e.g., Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, UN Doc. S/25704 (1993), at Art. 5; Statute of the International Criminal Tribunal for Rwanda, UN Doc. S/Res/955 (1994), at Art. 3; Rome Statute of the International Criminal Court, UN Doc. A/CONF. 183/9; 37 ILM 1002 (1998), at Art 7.

7 Renzo, M., ‘Crimes Against Humanity and the Limits of International Criminal Law’, (2012) 31 Law and Philosophy 443, at 448CrossRefGoogle Scholar.

8 See, e.g., H. Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil, (1994), at 269.

9 Luban, D., ‘A Theory of Crimes Against Humanity’, (2004) 29 Georgetown Law Faculty Publications and Other Works 85, at 109, 117Google Scholar.

10 Vernon, R., ‘What is Crime Against Humanity?’, (2002) 10 Journal of Political Philosophy 231, at 242CrossRefGoogle Scholar.

11 L. May, Crimes Against Humanity: A Normative Account (2005), at 88.

12 Ibid., at 92. This broader approach to potential perpetrators of CAH finds some support in May's normative account of CAH. He finds that for acts to amount to crimes against humanity ‘there is a third option (not properly part of the international harm principle) that can be met if the state whose subject allegedly committed the crime is either too weak to prosecute or ineffectual in doing so.’ Unfortunately, May explicitly excludes this aspect from his analysis and does not elaborate further on it.

13 See Vernon, supra note 10, at 243.

14 See Luban, supra note 9, at 108.

15 See May, supra note 11, at 88.

16 For example, in Sierra Leone members of the Armed Forces Revolutionary Council committed grave crimes with relatively limited resources and with no effective territorial control or state-like infrastructure. Prosecutor v. Brima et al., Judgment, Case No. SCSL-04–16-T, T. Ch., 20 June 2007, at paras. 226, 238.

17 On a study on group behaviour in armed groups see J. J. Frésard, Croix-Rouge, The Roots of Behaviour in War: A Survey of the Literature (2004), at 46–86. See also Kleffner, J. K., ‘The Collective Accountability of Organized Armed Groups for System Crimes’, in Nollkaemper, A. and van der Wilt, H. (eds.), System Criminality in International Law (2009), 238 at 244–5CrossRefGoogle Scholar.

18 See, e.g., United Nations Secretary General, Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, Pursuant to Security Council Resolution 1564 of 18 September 2004, (2005), at paras. 633–8.

19 As much as the principle of non-intervention protects victims of state violence against external intervention it will protect victims of non-state violence against external intervention unless the state invites a third party to intervene or the UN Security Council authorizes intervention.

20 See Luban, supra note 9, at 108.

21 Haque, A. A., ‘Group Violence and Group Vengeance: Toward a Retributivist Theory of International Criminal Law’, (2005) 9 Buffalo Criminal Law Review 273, at 303–4CrossRefGoogle Scholar.

22 Ibid., at 304.

23 See also Fisher, K. J., ‘The Distinct Character of International Crime: Theorizing the Domain’, (2009) 8 Contemporary Political Theory 44, at 60CrossRefGoogle Scholar.

24 The United States of America v. Otto Ohlendorf, et al. (Einsatzgruppen Case), United States Military Tribunal, Judgment, 10 April 1948, at 498 (emphasis added).

25 See, e.g., Regina v. Finta, Ontario Court of Appeal, Canada, Judgment, 24 March 1994; Fédération Nationale des Déportés et Internés Résistantes et Patriotes and Others v. Barbie, French Court de Cassation, Judgment, 20 December 1985.

26 International Law Commission, Draft Code of Crimes against the Peace and Security of Mankind (with commentary) (1996), at Art. 18. See also International Law Commission, Draft Code of Crimes against the Peace and Security of Mankind (with commentary) (1991), at Art. 21.

27 Prosecutor v. Tadić, Judgment, Case No. IT-94–1-T, T Ch., 7 May 1997, at para. 654.

28 Ibid.

29 Prosecutor v. Limaj et al., Judgment, Case No. IT-06–66-T, T Ch., 30 November 2005, at paras. 45–52.

30 Ibid., at para. 191.

31 Ibid.

32 This categorization serves the aim of structuring the requirements for groups to commit CAH. It is not strict, and the two criteria reinforce each other. See Prosecutor v. Blaskic, Judgment, Case No. IT-95–14-T, T. Ch., 3 March 2000, at para. 203.

33 Note that in the Limaj case the accused were not found guilty because the alleged attacks were not directed against a civilian population.

34 See Brima, supra note 16, at paras. 225–7.

35 Ibid., at para. 226.

36 Ibid., at paras. 176–7.

37 Two examples of such policies were ‘Operation Pay Yourself’ and ‘Operation Spare No Soul’, both brutally attacking the civilian population. Ibid., at para. 238.

38 Ibid., at paras. 210–26.

39 This term is borrowed from the recent article by Leila Sadat, supra note 5.

40 See, inter alia, Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Jugement rendu en application de l’article 74 du Statut, ICC-01/04–01/07, Trial Chamber II, 7 Mars 2014, at para. 1117; Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Decision on the confirmation of charges, ICC-01/04–01/07, Pre-Trial Ch. I, 30 November 2008, at para. 396; Kenya, supra note 4, at para. 90.

41 For a profound empirical research on cases of CAH before international tribunals including summaries of facts and main findings, see Sadat, supra note 5.

42 Katanga and Ngudjolo Chui, supra note 40, at para. 396; See also Prosecutor v. Jean-Pierre Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05–01/08, Pre-Trial Ch. II, 15 June 2009, at para. 81; Situation in the Republic of Cote d’Ivoire, Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of an Investigation into the Situation in the Republic of Côte d’Ivoire, ICC-02/11, T. Ch.III, 3 October 2011, at para. 99.

43 Kenya, supra note 4, at para. 90 (emphasis added). In support of this view, the PTC cites an article by Di Fillipo in which he argues that ‘the associative element, and its inherently aggravating effect, could eventually be satisfied by purely private criminal organizations, thus not finding sufficient reasons for distinguishing the gravity of patterns of conduct directed by “territorial” entities or by private groups, given the latter's acquired capacity to infringe basic human values’. In fn. 84 the PTC also refers to other scholars in support of their interpretation, and in para. 91 to the ILC Draft Code of Crimes of 1991.

44 Kenya (Judge Kaul, Dissenting Opinion), supra note 5, at para. 53.

45 Cf. Blaskic, supra note 32, at para. 198; See also A. Cassese, International Criminal Law (2008), at 100; Triffterer, O. (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (2008), at 168Google Scholar; M. M. deGuzman, ‘The Road from Rome: The Developing Law of Crimes against Humanity’, (2000) 22 Human Rights Quarterly 335, at 339.

46 See Kenya (Judge Kaul, Dissenting Opinion), supra note 5, at para. 66.

47 See Kress, supra note 3, at 873.

48 See Schabas, Unimaginable Atrocities: Justice, Politics, and Rights at the War Crimes Tribunals (2012), at 150.

49 Robinson, supra note 5.

50 Sadat, supra note 5, at 377.

51 A detailed interpretation of Art. 7(2)(a) of the ICC Statute proving that it is not restricted to state-like entities is beyond the scope of this article. Such interpretations are provided, for example, by Werle and Burghardt, supra note 5; or Sadat, supra note 5, and by the ICC in Katanga, supra note 40, at paras. 1,117–23. The aim of this article is to go one step further and provide specific requirements that non-state entities must show to qualify as organizations under article Art. 7(2)(a) of the Rome Statute.

52 A list of indicators which are aimed to restrict organizations under Art. 7(2)(a) of the ICC Statute to state-like entities has been presented by Judge Kaul. It is, however, difficult to see why these suggested criteria necessarily assimilate non-state organizations to states; See Kenya (Judge Kaul, Dissenting Opinion), supra note 5, at para. 51.

53 See Katanga, supra note 40, at para. 1119.

54 These rules of treaty interpretation form part of customary international law. See 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 of 26 February 2007, [2007] ICJ Rep. 43, at 160.

55 See Kenya, supra note 4, at para. 93; See Kenya (Judge Kaul, Dissenting Opinion), supra note 5, at para. 51. Unfortunately, neither of them provided clear indications why a certain criterion was included. For example, instead of providing legal or conceptual arguments, the majority based its list on doctrine and Additional Protocol II to the Geneva Convention. Kress criticized a number of these criteria on the ground that they ‘do not appear to flow naturally from the general “capability criterion”’. Kress, supra note 3, at 857–8.

56 See Katanga, supra note 40, at para. 1,119 (translation by the author).

57 Ibid.

58 Ibid., at para. 1,118.

59 Ibid., at para. 1,120.

60 Ibid., at paras. 1,119–20; The Chamber made also clear that this interpretation is also in line with an interpretation of the organization requirement in the light of the object and purpose of the ICC. Statute; Ibid., at para. 1,122.

61 See Bemba, supra note 42, at para. 75. This understanding follows the Elements of Crimes, Preparatory Commission for the International Criminal Court, Elements of Crimes, PCNICC/2000/1/Add.2 (2000), at 5.

62 As Pre-Trial Chamber II explained in the Bemba case, an attack under Art. 7(2)(a) of the ICC Statute requires that ‘more than a few’ isolated crimes were committed; see Bemba, supra note 42, at para. 81. According to the ICTR, this element of scale is also found in the Bagilishema case where the Court found that ‘the ‘population’ element is intended to imply crimes of a collective nature and thus excludes single or isolated acts’. Prosecutor v. Bagilishema, Judgment, Case No: ICTR-95–1A-T, T. Ch., 7 June 2001, at para. 80; On the question of the scale of the attack, see also Robinson et al., Amicus Curiae Observations of Professors Robinson, deGuzman, Jalloh and Cryer, ICC-02/11–01/11, 9 October 2013, paras. 7–13.

63 A detailed analysis of the question whether a policy is indeed a legal element of CAH under customary international law goes beyond the scope of this article. The ‘policy question’ has been discussed in jurisprudence and doctrine, and the ad hoc tribunals finally dismissed the policy requirement from the legal definition of CAH under customary international law. Two important reference articles in doctrine are Schabas, W., ‘Crimes Against Humanity: The State Plan or Policy Element’, in Sadat, L. N. and Scharf, M. P. (eds.), The Theory and Practice of International Criminal Law: Essays in Honor of M. Cherif Bassiouni (2008), at 347CrossRefGoogle Scholar; Mettraux, G., ‘The Definition of Crimes against Humanity and the Question of a “Policy” Element’, in Sadat, L. N. (ed.), Forging a Convention for Crimes against Humanity (2011), at 142CrossRefGoogle Scholar; The most two most important references in jurisprudence are Tadić, supra note 28, at para. 653 and Prosecutor v. Kunarac et al., Judgment, Case No. IT-96–23 and IT-96–23/1-A, A. Ch., 12 June 2002, at para. 98. The ad hoc tribunals emphasized, however, that ‘[t]he existence of such a plan or policy may be important evidence that the attack against a civilian population was widespread or systematic’; See Prosecutor v. Mrksic et al., Judgment, Case No. IT-95–13/1-T, A Ch., 5 May 2009, at para. 225; Prosecutor v. Muhimana, Judgment, Case No. ICTR- 95–1B-T, T Ch., 28 April 2005, at para. 527.

64 As the Pre-Trial Chamber explained in the Ruto et al. case, a policy which ‘is merely political in nature and may not aim at committing an attack against the civilian population’ cannot be considered a policy under Art. 7(2)(a) of the ICC Statute. Prosecutor v. Ruto et al., Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-01/11, 23 January 2012, at para. 213.

65 See K. Ambos, ‘Crimes Against Humanity and the International Criminal Court’, in Sadat, L. N. (ed.), Forging a Convention for Crimes against Humanity (2011), 279 at 286CrossRefGoogle Scholar.

66 Katanga, supra note 40, at para. 1,108 (translation by the author).

67 See ibid., at para. 1109; See also Kenya, supra note 4, at 87; Kenya (Judge Kaul, Dissenting Opinion), supra note 5, at para. 41, both providing references to ICTY and ICTR case law. For a detailed analysis of this question, see Robinson et al., supra note 62, paras 17–36.

68 See Oxford Dictionaries Online <http://oxforddictionaries.com> (last visited 15 April 2014).

69 In the Katanga case, the Chamber points out that assimilating the policy and the systematic attack requirements would be contrary to the wording of the statute. See Katanga, supra note 40, at paras. 1,111–13.

70 See Prosecutor v. Bosco Ntaganda, Decision on the Prosecutor's Application under Article 58, ICC-01/04–02/06,Pre-T. Ch.II, July 2012, at paras 27 and 31. See also Ruto et al., supra note 64, at para. 179–81.

71 See Elements of Crimes, supra note 61, at 5; See also Ruto et al., supra note 64, at para. 210.

72 See Elements of Crimes, supra note 61, at 5, fn. 6.

73 Ibid. This unclear drafting of the Elements of Crimes was due to a diplomatic compromise; see W. Rückert and G. Witschel, ‘Genocide and Crimes Against Humanity in the Elements of Crimes’, in Fischer, H., Kress, C. and Lüder, S. R. (eds.), International and National Prosecution of Crimes Under International Law: Current Developments (2004), 59 at 73Google Scholar.

74 For a similar conclusion, see Ambos, supra note 65, at 285.

75 See Elements of Crimes, supra note 61, at 5, fn. 6 (emphasis added).

76 See Ntaganda, supra note 70, at para. 24.

77 See Katanga, supra note 40, at para. 1,107, 1,112; See also D. Robinson, ‘Crimes Against Humanity, Reflections on State Sovereignty, Legal Precision and the Dictates of the Public Conscience’, in Lattanzi, F. and Schabas, W. (eds.), Essays on the Rome Statute of the International Criminal Court (1999), at 139Google Scholar; Robinson et al., supra note 62, para. 35.

78 See Elements of Crimes, supra note 61, at 5; See also Katanga, supra note 40, at para. 1,119.

79 Ibid., at para. 1,119.

80 Ibid., at para. 1,109; Ruto et al., supra note 64, at para. 219.

81 The Prosecutor v. Germain Katanga, Decision on the evidence and information provided by the Prosecution for the issuance of a warrant of arrest for Germain Katanga, ICC-01/04–01/07, Pre-T. Ch. I, 5 November 2007, at para. 33. This definition has been taken up in subsequent decisions, see Katanga, supra note 40, at para. 1,123; See Kenya, supra note 4, at paras. 95–6.

82 See Kenya, supra note 4, at paras 129–34; Katanga and Ngudjolo Chui, supra note 40, at paras. 408–11; Ntaganda, supra note 70, at para. 30.

83 Ibid., at para. 26.

84 See Ruto et al., supra note 64, at para. 200.

85 In this respect, the pattern in which systematic CAH are committed must distinguish these crimes from an accumulation of individual crimes of a large group of persons.

86 See, e.g., Katanga, supra note 40, at paras. 1,157–62; See Ntaganda, supra note 70, at para. 31.

87 See Ruto et al., supra note 64, at para. 197.

88 See Hansen, supra note 5; Sadat, supra note 5; Robinson et al., supra note 62, at para. 34.