FOLLOWING the genocidal killings in the former Yugoslavia and Rwanda in 1993 and 1994, the international tribunals established to investigate and prosecute the persons responsible for the egregious crimes committed in the two countries have significantly impacted the development of international criminal law. The International Tribunal for the Former Yugoslavia [ICTY] and the International Criminal Tribunal for Rwanda [ICTR] are mandated to prosecute three categories of crimes, namely; genocide, crimes against humanity and war crimes. In addition to the two tribunals, the Rome Statute of the International Criminal Court (ICC) grants the court jurisdiction over four groups of crimes, which it refers to as the most serious crimes of concern to the international community as a whole: the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. The ICC Statute defines each of these crimes except for aggression: itprovides that the court will not exercise its jurisdiction over the crime of aggression until such time as the states parties agree on a definition of the crime and set out the conditions under which it may be prosecuted.The jurisprudence generated in the course of the work of the tribunals has expectedly stimulated much discourse amongst scholars and jurists on the future of international criminal law. This article attempts the more modest undertaking of selecting one of the three categories of offencescrimes against humanity - and examining the case law of the tribunals to find out how the various offences have been defined. From the ensuing brief analysis, the reader is able to fully understand what constitutes a crime against humanity as opposed to an ordinary crime, irrespective of its nature or gravity.As stated above, the second category of offences over which the ICTR, ICTY and the ICC have jurisdiction is crimes against humanity. The Rome Statute of the ICC and the Statutes of the ICTR and ICTY provide slightly different definitions as to what constitutes a crime against humanity. In practical terms, however, the three definitions serve the same lofty objective of seeking to deter the commission of the crimes nominated in that category.All three Statutes provide that certain proscribed acts committed under clearly defined circumstances constitute crimes against humanity. In the Statutes of the ICTR and ICTY, the nominated acts are: murder; extermination; enslavement; deportation; imprisonment; torture; rape; persecutions on political, racial, and religious grounds. The Rome Statute of the ICC, in addition to these acts, includes the crime of apartheid and the enforced disappearance of persons. Articles 7(1)(3) of the Rome Statute also elaborate the types of acts that constitute crimes against humanity. For example, while the ICTY and ICTR Statutes use the term rape without further elaboration, the Rome Statute refers to rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparative gravity.As regards the requirement that the proscribed acts constituting a crime against humanity take place under certain defined circumstances, Article 5 of the ICTY Statute stipulates that the outlined acts be committed in armed conflict, whether international or internal in character, and directed against any civilian population. Article 3 of the ICTR Statute, by contrast, defines a crime against humanity as an act committed as part of a widespread or systematic attack directed against any civilian population on national, political, ethnic, racial, or religious grounds. The ICTR definition is more in line with article 7(1) of the Rome statute, which requires that a crime against humanity be committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. It is instructive however, that the Appeals Chamber of the ICTY in the case of Prosecutor v Dusco Tadic has brought its jurisprudence at par with that of the ICTR and ICC by holding that the ICTY Statutes prerequisite is above and beyond the requirements of customary international law. Thus, it is now well settled that customary international law does not require the existence of an armed conflict for an act to be a crime against humanity.The JurisprudenceArticle 3 of the ICTR Statute prescribes that the tribunal shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds:Murder;Extermination;Enslavement;Deportation;Imprisonment;Torture;Rape;Persecution on political, racial, and religious grounds;Other inhumane acts.In the early cases of the Prosecutor v. Akayesu and Prosecutor v. Rutaganda the judges held that the offences falling within the ambit of crimes against humanity may be broadly broken down into four essential elements, namely;the actus reus must be committed as part of a widespread or systematic attackthe actus reus must be committed against the civilian population;the actus reus of persecution as a crime against humanity must be committed on one or more discriminatory grounds, namely; political, racial and religious grounds;the actus reus must be inhumane in nature and character, causing great suffering, or serious injury to body or to mental or physical health.(a) The actus reus must be committed as part of a widespread or systematic attack .Following the reasoning in Akayesu and Kayishema judgments, the Trial Chamber in Prosecutor v Musema concurred that the actus reus cannot be a random inhumane act but one committed as part of an attack and with regards to the nature of the attack the Trial Chamber noted that customary international law requires that the attack be either of a widespread or systematic nature and need not be both. The prosecution need only satisfy one of these requirements even if in practice the requirements overlap in that the widespread nature of the attack could itself be evidence of its systematic character. Concurrently, the perpetrator of an act falling within the framework of crimes against humanity must have actual or constructive knowledge of the broader context of the attack, meaning that the accused must know that his act[s] is part of a widespread or systematic attack on a civilian population and pursuant to some kind or policy or planAn attack is widespread if it is massive, frequent, large scale, or carried out collectively with considerable seriousness and directed against a multiplicity of victims. Although the scale, number of victims, and multiplicity of acts could occur throughout a territory or region, the element of widespread does not depend on establishing any requisite geographic range. An attack is systematic if it is organized and following a regular pattern on the basis of a common policy involving substantial public or private resources. There is no requirement that the crime itself be widespread or systematic; a single act could constitute a crime against humanity if it occurred within the context of a widespread or systematic attack. However, the crimes committed must be related to the attack and the accused must have actual or constructive knowledge that the offence(s) were so related.(b) The actus reus must be committed against the civilian populationTo constitute a crime against humanity, the actus reus for any of the enumerated acts in Article 3 must be directed against the civilian population as opposed to any other segment. For purposes of crime against humanity, civilian population, is defined as people who were 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. However, the fact that there are individuals among the civilian population who themselves are not civilians does not deprive the population of its civilian character. The term population does not mean that the entire population of a given state or territory must be victimized by the acts, but only relates to the collective nature of the crimes, excluding isolated acts not rising to the level of crimes against humanity. It is the attack, not the acts of the accused, which must be directed against the target population and the accused need only know that his acts are part thereof.(c) The actus reus of persecution must be committed on one or more discriminatory grounds, namely; political, racial and religious groundsIn its trial judgment, the Trial Chamber in Akayesu on the basis of its reading of the ICTR and the ICTY Statutes had reasoned that all crimes against humanity committed against the civilian population required a discriminatory intent on national, political, ethnic, racial or religious grounds. On appeal, this holding was found to be erroneous by the Appeals Chamber. In its view the meaning to be collected from Article 3 of the statute is that even if the accused did not have a discriminatory intent when he committed the act charged against a particular victim, he nevertheless knew that his act could further a discriminatory attack against a civilian population; the attack could even be perpetrated by other persons and the accused could even object to it. As a result, where its is shown that the accused had knowledge of such objective nexus, the Prosecutor is under no obligation to go forward with a showing that the crime charged was committed against a particular victim with a discriminatory intent. The Appeals Chamber further reasoned that any interpretation of the chapeau of Article 3 of the Statute adding a requirement of discriminatory intent with respect to all crimes against humanity would likely render redundant the express mention of discriminatory intent in relation to persecutions as crime against humanity.The Enumerated ActsArticle 3 of the ICTR statute enumerates various acts constituting crimes against humanity, namely; murder, extermination, enslavement, deportation, imprisonment, torture, rape, persecution on political, racial and religious grounds, and other inhumane acts. The category of the acts that may constitute crimes against humanity is not exhaustive as any act which is inhumane in nature and character may be added provided the other essential elements are satisfied.MurderMurder in the jurisprudence of the ICTR and ICTY is defined as the unlawful intentional killing of a human being. The essential elements of murder as a crime against humanity are;the victim is dead;the death resulted from an unlawful act or omission of the accused or a subordinate;at the time of the killing the accused or a subordinate had the intention to kill or inflict grievous bodily harm on the deceased having known that such bodily harm is likely to cause the victims death, and is reckless as to whether or not death ensues;the victim was a member of the civilian population;the act or omission was part of a widespread or systematic attack on the civilian population.ExterminationIn Akayesu, the Trial Chamber held that the term attack used in the chapeau of Article 3, has been defined as an unlawful act of the kind enumerated in Article 3 of the Statute, but the attack may also be non-violent in nature, such as apartheid, or exerting pressure on the population to act in a particular manner, may come under the purview of an attack, if orchestrated on a massive scale or in a systematic manner. Extermination as a crime against humanity requires an element of mass destruction. However, a single killing can amount to extermination if the accused kills, or creates conditions of life that kill, a single person, providing that the accused is aware that his or her acts or omission form part of a mass killing event. A mass killing event involves killings in close proximity in time and space. The Trial Chamber in Prosecutor v Gacumbitsi held that the expression Large scale does not suggest a numerical minimum but is determined on case-by-case basis using a common sense approach. In its view, to establish the crime of extermination, it must be shown that the accused, through his acts or omissions or the acts of his co-perpetrators in the joint criminal enterprise:participated in the mass killing of others, or in the creation of conditions of life leading to the mass killing of others;intended the killings, or was reckless, or grossly negligent as to whether the killings would result; andwas aware that his acts or s formed part of a mass killing event.TortureTorture is a crime against humanity pursuant to Article 3(f) of the Statute. The crime of torture is governed by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Article 1 of the Convention defines torture as: ..any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity The essential elements of torture as formulated in Akayesu are :(i) The perpetrator must intentionally inflict severe physical or mental pain or suffering upon the victim for one or more of the following purposes:(a) to obtain information or a confession from the victim or a third person;(b) to punish the victim or a third person for an act committed or suspected of having been committed by either of them;(c) for the purpose of intimidating or coercing the victim or the third person;(d) for any reason based on discrimination of any kind.(ii) The perpetrator was himself an official, or acted at the instigation of, or with the consent or acquiescence of, an official or person acting in an official capacity.The Chamber further held that torture is a crime against humanity if the following further elements are satisfied:(a) Torture must be perpetrated as part of a widespread or systematic attack;(b) the attack must be against the civilian population;RapeThere is currently no statutory definition of rape in international criminal law. The Statutes of the ICTR, ICTY and ICC and other international Tribunals do not contain a definition of rape. Thus, faced with the task of defining rape as a crime against humanity in Akayesu, the Trial Chamber noted that while rape has been defined in certain national jurisdictions as non-consensual intercourse, variations on the acts of rape may include acts which involve insertions of objects or the use of bodily orifices not considered to be intrinsically sexual. Taking the view that the central objective of international law in criminalizing rape was to proscribe aggression of a sexual nature, the Chamber proceeded to define rape as; [] a physical invasion of a sexual nature, committed under circumstances which are coercive. Sexual violence, which includes rape, is considered to be any act of a sexual nature which is committed on a person under circumstances which are coercive.Articulating this definition the Chamber in more specific terms noted that the central elements of rape cannot be captured in a mechanical description of objects and parts and that the focus of the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment is on the conceptual frame work of sanctioned violence. The conceptual approach proposed in Akayesu was adopted by the Trial Chamber of the ICTY in Celebici and in subsequent ICTR cases of Musema and Niyitegeka.Just when it appeared that the definition of rape was settled on the basis of the Celebici adoption of the Akayesu approach, what may rightly be described as an alternative definition of rape emerged in the ICTY case of Furundzija which relied on a detailed description of objects and body parts. In its judgment, the Trial Chamber in Furundzija made an extensive survey of the state of the law national jurisdictions and noted:The Trial Chamber would emphasize at the outset, that a trend can be discerned in the national legislation of a number of states of broadening the definition of rape so that it now embraces acts that were previously classified as comparatively less serious offences, that is sexual or indecent assault. This trend shows that at the national level sates tend to take a stricter attitude towards serious forms of sexual assault; the stigma of rape now attaches to a growing category of sexual offences, provided of course they meet certain requirements, chiefly that of forced physical penetrationIn articulation this approach, the Trial Chamber further observed that most legal systems in the common and civil worlds consider rape to be the forcible sexual penetration of the human body by the penis or the forcible insertion of any other object into either the vagina or the anus. Nevertheless, after considering the approach of diverse States to the practice of forced oral penetration, the Chamber determined:that the forced penetration of the mouth by the male sexual organ constitutes a most humiliating and degrading attack upon human dignity. The essence of the whole corpus of international humanitarian law as well as human rights law lies in the protection of the human dignity of every person, whatever his or her gender. The general principle of respect for human dignity is the basic underpinning and indeed the very raison detre of international humanitarian law, indeed in modern times it has become of such paramount importance as to permeate the whole body of international law. This principle is intended to shield human beings from outrages upon their personal dignity, whether such outrages are carried out by unlawfully attacking the body or by humiliating and debasing the honour, self-respect or the mental wellbeing of a person. It is consonant with this principle that such an extremely serious sexual outrage as forced oral penetration should be classified.Having taken the above position, the judges in Furundzija laid down the following as the objective elements of rape..the sexual penetration however slight:.of the vagina or anus by the penis of the perpetrator or any other object used by the perpetrator; or.of the mouth of the victim by the penis of the perpetrator;by coercion or force or threat of force against the victim or a third person.Whatever the outcome of the debates engendered by these two definitions, it is clear that they are not mutually exclusive. The Akayesu definition may be taken as establishing a framework for judicial consideration of individual incidents of sexual violence and a determination, on a case by case basis, of whether such incidents constitute rape and therefore encompassing the definition proposed in Furundzija.Persecution as a Crime Against HumanityA review of all the indictments filed before the ICTR shows that only two of the accused that have so far appeared before the Trial Chambers were charged with the crime of persecution, the preponderance of charges being, genocide, murder and extermination as crimes against humanity. However, some ICTY Trial Chambers had on occasion pronounced on the elements of persecution as a crime against humanity noting that the crime has never been comprehensively defined. Neither international treaty law nor case law provides a comprehensive list of illegal acts encompassed by the charge of persecution, and persecution as such is not known in the worlds major criminal justice systems. It is nonetheless established in international humanitarian law that not all proscribed acts qualifies as persecution. As the National Military Tribunal noted in the Einsatzgruppen case:We do not refer to localized outbursts of hatred nor petty discriminations which unfortunately occur in the most civilized of states. When persecutions reach the scale of nation-wide campaigns designed to make life intolerable for, or to exterminate large groups of people, law dare not remain silent.Defining the scope of persecution, the Kupreskic Trial Chamber held that acts must reach a similar level of gravity as the other offences listed in Article 5 of the ICTY statute (similar to Article 3 ICTR Statute) in order to fall within the crime of persecution. In its definition of the actus reus of persecution, the Chamber set forth a four part test in which an act of persecution is constituted by:(1) a gross and blatant denial, (2) on discriminatory grounds, (3) of a fundamental right, laid down in international customary or treaty law, (4) reaching the same level of gravity as the other crimes against humanity enumerated in Article 5 of the ICTY Statute. In setting out these test the Kupreskic Chamber recognized that although the realm of human rights is dynamic and expansive, not very denial of a human right may constitute a crime against humanity. In Nahimana, the issue was whether hate speech can constitute the actus reus of persecution as a crime against humanity as found by the Trial Chamber. The Appellants contended that hate speech is not regarded as a crime against humanity under customary international law (except in the case of direct and public incitement to commit genocide), and to condemn the Appellants for such acts under the count of persecution would violate the principle of legality.The ICTR Appeals Chamber proceeding from the premise that not every act of discrimination will constitute the crime of persecution the judges however maintained that the underlying acts of persecution whether considered in isolation or in conjunction with other acts, must be of a gravity equal to the crimes listed under Article 3 of the Statute. The Chamber therefore took the view that hate speech targeting a population on the basis of ethnicity, or any other discriminatory ground, violates the right to respect for the dignity of the members of the targeted group as human beings and therefore constitutes actual discrimination Furthermore, in the view of the Chamber, speech inciting violence against a population on the basis of ethnicity, or any other discriminatory ground violates the right to security of the members of the targeted group. Ultimately, the Appeals Chamber found that the hate speeches in this instance were of a gravity equivalent to other crimes against humanity in that the speeches took place in the context of a massive campaign of persecution characterized by acts of violence directed at the Tutsi population and upheld the conviction of the Appellant for persecution.The Statute of the ICC on its part defines persecution as the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity but limits persecution to acts performed in connection with other crimes falling within its jurisdiction. In practice, however, the list of acts which may potentially be characterized as persecution is extensive in view of the broad range of crimes listed thereunder.As regards the mens rea of persecution the mental element of persecution consists of acting with discriminatory intent on the political, racial, and religious provided in the Statute of the ICTR and ICTY. This is consistent with the Tadic Appeal Judgment finding that a discriminatory intent is an indispensable legal ingredient of the offence only with regard to those crimes for which this is expressly required, that is for Article 5(h), concerning various types of persecution. Thus, the discriminatory intent required for the crime of persecution is different from the more general level of intent required for the other crimes against humanity when mere knowledge of the context of a widespread or systematic attack against a civilian population is sufficient. The Kupreskic Trial Judgment also notes that the elevated nature of the mens rea for persecution is higher than for ordinary crimes against humanity, although lower than for genocide.Other Inhumane ActsThe Statutes of the ICTR and ICTY provide no definition of the term other inhumane acts but lists in Article 3 (ICTR) and 5 (ICTY) eight enumerated acts that may constitute crimes against humanity. The enlisted acts are murder, extermination, enslavement, deportation, imprisonment, torture, rape and persecution on political, racial and religious grounds. This list of acts is not exhaustive and Article 3(i) of the ICTR Statute provides for Other inhumane Acts that may constitute crimes against humanity. The Statute of the ICC however defines other inhumane acts as:Other inhumane acts [are acts] of a similar character [ to the other specified enumerated acts] intentionally causing great suffering, or serious injury to body or to mental or physical health.In Musema the Trial Chamber found that an act or omission will fall within the ambit of Other inhumane Acts, as envisaged in Article 3(i) of the Statute, provided the nature and character of such act or omission is similar in nature, character, gravity and seriousness to the other acts, as enumerated in sub-articles (a) to (h) of Article 3. Further, the inhumane act or omission must:(a) Be directed against member(s) of the civilian population;(b) The perpetrator must have discriminated against the victim(s), on one or more of the enumerated discriminatory grounds;(c) The perpetrators act or omission must form part of a widespread or systematic attack and the perpetrator must have knowledge of this attack.The Trial Chambers of the ICTR are of the view that the perpetrators act(s) must be assessed on a case-by-case basis, with a view to establishing whether such act(s) fall within the ambit of Other inhumane Acts, as envisaged in Article3.ConclusionThe term crimes against humanity denotes a category of proscribed acts crimes in international criminal law. An ordinary crime does not become a crime against humanity on account of its gravity. The general requirements that elevate an act to a crime against humanity are stated in the Statutes of the ICTR, ICTY and the ICC. From the definition provided in these Statutes it can be easily deduced that crimes against humanity are different from ordinary crimes on account of the circumstances in which they are committed. The circumstances are stated in the Statutes of the international tribunals and ICC.Jegede serves in the UN Court in Tanzania
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