November 11, 2011

VI. Crimes against Humanity

Human Rights Watch believes that the nature and scale of abuses committed by the Syrian security forces across the country, and in Homs Governorate, indicate that crimes including murder, torture, unlawful imprisonment, and enforced disappearances, amounting to crimes against humanity, have been committed.[146]The similarities in the apparent unlawful killings, including evidence of security forces shooting at protesters without any warning in repeated instances, arbitrary detention, enforced disappearances, and torture, indicate the existence of a widespread or systematic attack against the civilian population, which has the backing of the state.[147]

Unlike war crimes, crimes against humanity can also be committed during times of peace, if they are part of a widespread or systematic attack against a civilian population.[148]

For individuals to be found culpable of crimes against humanity, they must have had knowledge of the crime.[149] That is, perpetrators must have been aware that their actions formed part of the widespread or systematic attack against the civilian population.[150] While perpetrators need not be identified with a policy or plan underlying crimes against humanity, they must at least have knowingly participated in the policy or plan.[151]

Individuals accused of crimes against humanity cannot avail themselves of the defense of following superior orders.[152] At the same time those in a position of military or other command can be held criminal responsible for failing to prevent crimes against humanity by those under their command, or to submit the matter for prosecution when they knew or should have known about the crimes.[153] Because crimes against humanity are considered crimes of universal jurisdiction, all states are responsible for bringing to justice those responsible. International jurisprudence and standards establish that persons responsible for crimes against humanity, as well as other serious violations of human rights, should not be granted amnesty for those crimes.

Syria has signed, although not ratified, the Rome Statute and so is obliged to refrain from acts that would ‘defeat the object and purpose of [the] treaty’. [154] In light of its findings that serious human rights violations amounting to crimes against humanity have occurred in Homs and in other parts of Syria, and the lack of accountability for such crimes in Syria, Human Rights Watch supports the call by the High Commission for Human Rights for a referral to the International Criminal Court (ICC).Human Rights Watch believes that in the current situation the ICC is the forum most capable of effectively investigating and prosecuting those bearing most responsibility for any crimes committed and offering accountability to the Syrian people. In the absence of the government of Syria ratifying the Rome statute, or accepting the jurisdiction of the court through a declaration under article 12.3 of the Rome Statute, the Court requires a referral by the Security Council to be seized of the matter. However in the event of continued stalemate at the Security Council, Human Rights Watch recalls that crimes against humanity may also be subject to universal jurisdiction, and urges other countries to consider the exercise of universal jurisdiction for crimes committed in Syria.

 

[146] Article 7 of the Rome Statute of the International Criminal Court defines crimes against humanity as certain serious crimes, including murder, torture, and other inhumane acts, committed as part of a widespread or systematic attack against a civilian population.

[147]The Rome Statute of the International Criminal Court defines an “attack against a civilian population” as “a course of conduct involving the multiple commission of [acts such as murder or other possible crimes against humanity] against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack”, Rome Statute, Article 7 (2) (a).

[148] The attacks underlying the commission of crimes against humanity must be widespread or systematic. It need not be both, See Prosecutor v. DuskoTadic, ICTY, Case No. IT-94-1-T, Opinion and Judgment (Trial Chamber), May 7, 1997, para. 646 (“it is now well established that…the acts…can…occur on either a widespread basis or in a systematic manner. Either one of these is sufficient to exclude isolated or random acts.”). “Widespread” refers to the scale of the acts or number of victims.Akayesu defined widespread as “massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims,”Prosecutor v. Akayesu, ICTR, Case No. ICTR-96-4-T, Judgement (Trial Chamber I), September 2, 1998, para. 579; see also Prosecutor v. Kordic and Cerkez, ICTY, Case No. IT-92-14/2, Judgement (Trial Chamber III), February 26, 2001, para.179; Prosecutor v. Kayishema and Ruzindana, ICTR, Case No.ICTR-95-1-T, Judgement (Trial Chamber II), May 21, 1999, para. 123. A “systematic” attack indicates “a pattern or methodical plan.” Prosecutor v. DuskoTadic, ICTY, Case No. IT-94-1-T, Opinion and Judgment (Trial Chamber), May 7, 1997, para. 648. In Prosecutor v. Kunarac, Kovac and Vokovic the Appeals Chamber stated that “patterns of crimes—that is the non-accidental repetition of similar criminal conduct on a regular basis—are a common expression of [a] systematic occurrence.”Prosecutor v. Kunarac, Kovac and Vokovic, ICTY, Case No. IT-96-23 and IT-96-23-1A, Judgement (Appeals Chamber), June 12, 2002, para. 94.

[149] See Prosecutor v. Kupreskic et al., ICTY, Case No. IT-95-16, Judgement (Trial Chamber), January 14, 2000, para. 556.

[150] See Prosecutor v. Kupreskic et al., ICTY, Case No. IT-95-16, Judgement (Trial Chamber), January 14, 2000, para. 556: “[T]he requisite mensrea for crimes against humanity appears to be comprised by (1) the intent to commit the underlying offence, combined with (2) knowledge of the broader context in which that offence occurs.” See also Prosecutor v. DuskoTadic, ICTY, Case No. IT-94-1, Judgement (Appeals Chamber), July 15, 1999, para.271; Prosecutor v. Kayishema and Ruzindana, ICTR, Case No. ICTR-95-1-T, Judgement (Trial Chamber II), May 21, 1999, paras. 133-134.

[151] See Prosecutor v. Blaskic, ICTY, Case No. IT-95-14-T, Judgement (Trial Chamber), March 3, 2000, para. 257. Blaskic (paras. 258-259) listed factors from which could be inferred knowledge of the context: (a) the historical and political circumstances in which the acts of violence occurred; (b) the functions of the accused when the crimes were committed; (c) his responsibilities within the political or military hierarchy; (d) the direct and indirect relationship between the political and military hierarchy; (e) the scope and gravity of the acts perpetrated; and (f) the nature of the crimes committed and the degree to which they are common knowledge.

[152] Rome Statute, Article 33.

[153] Rome Statute, Article 28.

[154] See Article 18 of the Vienna Convention on the Law of Treaties, 1969, United Nations, Treaty Series, vol. 1155, p. 331, acceded to by Syria in 1970. Syria signed the Rome Statute on November 29, 2000.