The International Criminal Court should have jurisdiction over the most serious crimes of concern to the international community. In this document we will focus on two critical aspects of the subject matter jurisdiction of the Court which have given rise to considerable controversy in the course of debate during the Preparatory Committee. These are firstly the scope of the Court's jurisdiction over war crimes, in particular those committed in the context of non-international armed conflicts, and secondly the definition of crimes against humanity.
Part 1: WAR CRIMES
Summary of Section A, Part 1.
The recommendations and comments in this section comprise four parts. In (a) we set out the principles which should frame the negotiations around the scope of the Court's jurisdiction over war crimes. Contained in (b) is the list of war crimes which should be included, at a minimum, within that jurisdiction, for both international and non-international conflicts. Comments on the importance of including these basic crimes, and on the current text of the statute before the Diplomatic Conference, follow the recommendations. In (c) we recommend that the Court should have jurisdiction over other crimes that may come to form part of customary international law in the future, and in (d) we make recommendations on the options relating to a possible threshold limiting the Court's jurisdiction to crimes committed pursuant to a plan or policy, or on a massive scale.
The Structure of the War Crimes section of the draft statute
The part of Article 5 of the current draft statute which deals with the definition of war crimes is divided into four sections: section A, grave breaches, section B, other war crimes committed in international conflict, section C, violations of Common Article 3 of the Geneva Conventions, and section D, other war crimes committed in non-international armed conflicts. The division of international and non-international conflicts mirrors the distinction enshrined in humanitarian treaty law. This distinction, which exists as a result of the historical context from which thetreaties emerged, is becoming increasingly blurred as humanitarian law develops.1 The statute, in creating an institution for the future, should reflect this trend and establish the Court's jurisdiction over serious war crimes, in line with the list in Section A, Part 1 (b) of this document, whether committed in internal or international conflicts.
The statute should ensure that the Court has jurisdiction over serious war crimes, irrespective of whether they were committed in internal or international conflicts. Since the end of the Second World War, the vast majority of armed conflicts have been non-international.2 It is in the course of such conflicts that some of the gravest violations of human rights and humanitarian law have occurred. The Court's very relevance in the contemporary world will hinge in large part on its ability to reflect this reality. The scope of the Court's jurisdiction over war crimes, and in particular its ability to prosecute those responsible for serious crimes in internal armed conflicts, is therefore critical to its impact and credibility.3
There should not be differential standards of criminal responsibility, and corresponding differential protection of victims, for the same conduct on the basis of the nature of the armed conflicts in which it was carried out.4 This principle isreinforced by the factual difficulty that often arises in determining whether a conflict is international or non-international for the purposes of making such a legal distinction.5
Although the express duty to prosecute under the Geneva Conventions arises only with respect to grave breaches in international conflicts,6 international law has developed to the point where it is now established that individuals are criminally responsible for serious violations of humanitarian law committed in internal conflicts.7 This is clearly set out in the decision of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the case of Prosecutor v. Tadic.8 The approach of the tribunal is also reflected in United Nations Security Council resolutions in recent years which, in addition to categorizing civil wars as mattersof international concern and threats to international peace,9 have specifically called for those who violate humanitarian law in these contexts to be held accountable.10 Moreover, recent legal developments serve to bolster the view that there is increasing recognition that fundamental humanitarian standards apply in internal, as in international, conflicts.11
Decisions as to the scope of the Court's jurisdiction should be governed by the fundamental legal principles underlying humanitarian law. Regard should be had to the three fundamental dimensions of humanitarian law, identified by the Appeals Chamber of the ICTY in the Tadic case as giving rise to criminal liability in both internal as well as international conflicts: (I) serious violations of Common Article 3 to the Geneva Conventions;12 (ii) serious violations of general norms on theprotection of victims of internal armed conflict; and (iii) breaches of norms regarding methods and means of warfare.13
The first of these, Common Article 3 of the Geneva Conventions, embodies the "elementary considerations of humanity" that constitute the most basic rule of customary international law in all forms of armed conflict.14 The second, the principle of protection of victims of internal conflicts, is reflected in many provisions of Protocol II Additional to the Geneva Conventions,15 which "can now be regarded as declaratory of existing rules or as having crystallized emerging rules of customary international law."16 Thirdly, "breaches of certain fundamental principles and rules regarding methods and means of warfare"17 also reflect the norm of humane treatment that underlies the universally accepted proposition thatthe means of warfare cannot be unlimited.18 This aspect of humanitarian law prohibits inherently indiscriminate means of combat, and requires that the damage inflicted by means of combat or operations must be proportionate to legitimate military objectives.
The principle of humanity, therefore, underlies these three aspects of humanitarian law and is a principle so fundamental that it governs internal and international conflicts alike, even in the absence of specific legislation.19 As such it should be the guiding standard in the determination of the crimes to come within the Court's jurisdiction. The International Criminal Tribunal for the Former Yugoslavia has held that "the broad logic of humanitarian law," sets out "elementary considerations of humanity" that are "widely recognized as the mandatory minimum for conduct in armed conflicts of any kind."20
In the words of one well-respected humanitarian law scholar, "no self-respecting state would challenge the applicability of such principles [of humanity] in internal conflicts."21 In this spirit we urge delegates to ensure that the Court is empowered to end impunity for the perpetrators of the crimes set out in the list at the following section of this commentary, irrespective of the nature of the conflict in which they were committed.
Much of the debate on war crimes during Preparatory Committee sessions focused on the controversial question of the scope of customary international law. The mandate of the Diplomatic Conference is not directed at the codification of crimes that have attained the status of customary international law;22 trying to mold the Court's statute around a consensus as to the current state of customary international law is both unnecessary and counterproductive. Rather, the International Criminal Court is designed to address the most serious international crimes where national jurisdictions fail to do so. Delegates should use principles derived from customary international law as guidance in deciding what are the most serious international crimes,23 but not as a limiting factor to justify excluding serious crimes from the Court's jurisdiction. The lack of consensus as to what constitutes customary international law should not be invoked as an excuse to preclude the Court's jurisdiction over grave crimes, many of which are either prohibited by the terms of widely ratified treaties, or by the fundamental principle of humanity. This principle is itself an undisputed cornerstone of the customary international law of armed conflicts.
Similarly, while established treaty language should of course be taken into account in the elaboration of the war crimes section of the statute, delegations should notbe restricted by the exact structure and wording of existing treaties.24 Rather, for a complete view of the current state of international law, account should be taken of fundamental principles25 and emerging jurisprudence,26 which may not be apparent from the text of existing treaties. The process underway is itself an historic treaty drafting exercise which should ensure that the Court has broad jurisdiction over serious war crimes.
LIST OF BASIC CRIMES WHICH SHOULD COME WITHIN THE JURISDICTION OF THE COURT FOR INTERNATIONAL OR NON-INTERNATIONAL CONFLICTS
The Court should have jurisdiction over the crimes set out in the following list whether perpetrated in international or internal armed conflict. The crimes listed below are based on existing humanitarian law, reflecting the three groups of principles and rules of customary international law described by the InternationalCriminal Tribunal for the Former Yugoslavia and referred to above.27 We have indicated, in relation to each of these crimes, whether it is currently included in the draft statute, and therefore whether the recommendation is to insert or retain existing provisions. Several crimes included in this list, clearly covered by these fundamental principles of humanity, were omitted from the text prior to the December Preparatory Committee.28 The inclusion of these serious crimes, committed so frequently in internal armed conflicts, is considered fundamental.
While the following list does not purport to be exhaustive of the crimes to come within the jurisdiction of the Court, it is intended to represent the crimes whose inclusion Human Rights Watch considers indispensable to a credible International Criminal Court.
· Recommendation 1: Include as a crime violence against the life, health, physical or mental well-being of persons taking no direct part in hostilities.
Comment: The prohibition of violence against the life and person of those taking no direct part in hostilities is contained in Common Article 3(1)(a) of the Geneva Conventions, as expanded by Article 75(2)(a) of Protocol I and Article 4(2)(a) of Protocol II to include violence to the "health, physical or mental well-being of persons." The provisions on grave breaches of the Geneva Conventions contain a prohibition on "wilful killing" and "wilfully causing great suffering or serious injury to body or health."
The current text's inclusion of such acts as crimes within the Court's jurisdiction, in current sections A29 and C30 of Article 5 of the statute, should be supported.
· Recommendation 2: Include as a crime torture, cruel, inhuman or degrading treatment and punishment, and outrages upon personal dignity.
Comment: This recommendation is based in the "cruel treatment and torture," "outrages upon personal dignity" and "humiliating and degrading treatment" prohibitions of common Article 3(1) of the Geneva Conventions, and of Article 75(2) of Protocol I and Article 4(2) of Protocol II, and the provision of the Geneva Conventions which establishes "torture or inhuman treatment" as a grave breach of the Conventions.
The draft statute includes, in sections A(b) and C(a), provisions covering the carrying out of such acts.
· Recommendation 3: Include as a crime medical experimentation or physical mutilation.
Comment: Carrying out biological experiments is expressly included as one of the forms of inhuman treatment constituting a grave breach of the Geneva Conventions. It is also addressed in Article 11 of Protocol 1, which prohibits "physical mutilations," "medical or scientific experiments," and "removal of tissue or organ for transplantation" of persons deprived of liberty, even with their consent, unless those acts are justified by the state of health of the person and are consistent with generally accepted medical standards. In the light of the fundamental nature of this crime, and the horrifying frequency with which experimentation was committed during the Second World War, it should be retained within the crimes over which the Court has jurisdiction.
The draft statute includes, in sections A(b), B(h) and D(j), provisions covering the carrying out of such acts.
· Recommendation 4: Include as a distinct category rape, sexual slavery, enforced prostitution, and other sexual or gender-based violence, which may concurrently constitute other applicable crimes provided that the constituent elements of those crimes are present.
Comment: In light of their status in international law and their frequent commission in situations of armed conflict, the ICC statute should include rape, sexual slavery, enforced prostitution, and other sexual or gender violence as a distinct category of war crimes. It is well established that these crimes can constitute grave breaches31 and other serious violations of the laws and customs of war in both international and internal armed conflicts.32 The 1949 Geneva Conventions and the Additional Protocols thereto explicitly condemn rape, enforced prostitution, and acts of indecent assault as violations of international humanitarian law. Moreover, additional Protocol II expressly prohibits rape,enforced prostitution,33 and slavery34 in internal armed conflicts. Similarly, the International Criminal Tribunal for Rwanda (ICTR) statute incorporates rape, enforced prostitution and other forms of indecent assault within the tribunal's jurisdiction, categorizing them as violations of Common Article 3 to the Geneva Conventions and of Protocol II.35
The recognition of rape, sexual slavery, enforced prostitution, and other sexual or gender violence as an explicit category of war crimes should not preclude the prosecution of these acts as additional offences when the elements of such offences are satisfied.36 The commission of rape and other acts of sexual violence can arise in various circumstances and advance several objectives including, inter alia, "ethnic cleansing"; intimidation, humiliation or punishment; or the demonstration of soldiers' domination over civilians.37 Accordingly, acts of sexual violence can potentially constitute multiple offenses prohibited by the laws and customs of war, such as violence to life; torture or inhuman treatment; wilfully causing great suffering or serious injury to body or health; enslavement; and outrages upon personal dignity. Failure to specify that rape and other crimes of sexual violence can constitute a range of war crimes runs the risk that such crimes will not be appropriately charged.
Given their grave physical and psychological consequences, it is important to distinguish crimes of sexual violence from the category of offenses against personal dignity.38 Characterizing acts of rape, sexual slavery, enforced prostitution, and other sexual or gender violence exclusively as attacks on honor or outrages against personal dignity fails to take into account all the dimensions of such crimes and has frequently allowed for their relatively lenient treatment under the law.
The current text of the statute, at Article (p)bis of section B and Article (e)bis in section D,39 provides for crimes of sexual and gender violence to be a separate category of war crimes. Such a specific category should be retained in the final text of the statute, for both internal and international armed conflicts. The wording of (e)bis and (p)bis should make clear that these crimes may concurrently constitute grave breaches or violations of Article 3 and be prosecuted as such. Human Rights Watch favors the express inclusion of rape, sexual slavery,40 enforced prostitution,forced pregnancy (meaning the confinement or restriction of liberty of a woman impregnated as a result of rape with the intent that the pregnancy proceed to term), sexual mutilation, and forced sterilization and "other sexual or gender-based violence" within this category, to ensure inclusion of the full spectrum of relevant crimes.
· Recommendation 5: Include as a crime the taking of hostages
Comment: Hostage-taking is prohibited by common Article 3(1)(b) of the Geneva Conventions, Article 75(2)(c) of Protocol I, and Article 4(2)(c) of Protocol II, and customary international law.
The current text before the Diplomatic Conference supports the inclusion of this crime which appears, without square brackets, in both parts A(h) and C(c) of Article 5 of the draft statute.
· Recommendation 6: Include as a crime slavery and the slave trade in all their forms.
Comment: Article 4(2)(f) of Protocol II expressly prohibits "slavery and the slave trade in all their forms." The importance of protecting persons from being subject to slavery is reflected in the wide array of human rights instruments, which enshrine freedom from the slavery as a fundamental non-derogable right, applicable in time of war or peace.41 The prohibition of slavery is considered jus cogens.
The reference to slavery which appears in "Option II" at the end of part D, relating to non-international conflicts, should be retained. We do, however, express our concern over the omission of slavery from the sections dealing with internationalconflicts, where it would be equally applicable. We therefore urge its retention in part D and insertion in part B.
· Recommendation 7: Include as a crime attacks against the civilian population as such, or individual civilians.
Comment: The protection of the civilian population, in international and internal conflicts, is a fundamental objective of humanitarian law. "Making the civilian population the object of attack" is a grave breach of Protocol I, as set out in Article 85(3) of that protocol. Article 13 of Protocol II specifically states that the civilian population shall "not be the object of attack." Art 51(2) of Protocol I echoes this prohibition.
Delegations are urged to ensure that the ICC has jurisdiction over this most basic crime.
In parts B(a) and D(a), the second option of each article would have this most basic crime deleted from those within the jurisdiction of the Court. Prohibiting direct attacks against the civilian population is one of the most fundamental prohibitions of humanitarian law; as such, the first option of part D(a) and part B(a), which provides for the retention of this crime, should be insisted upon.
· Recommendation 8: Include as a crime attacks against civilian objects.
Comment: Attacks against civilian objects, being attacks against "all objects which are not military objects," are prohibited by Article 52(1) of Protocol I. It is a basic principle of humanitarian law that civilian and military objectives shall be distinguished, and attacks affecting the civilian population not justified by military necessity shall not be carried out.
The crime included in part B(a)bis should be reflected in part D.
· Recommendation 9: Include as a crime carrying out of attacks which may cause incidental loss of life or injury to civilians or damage to civilians objects, which would be excessive in relation to the concrete and direct military advantage anticipated.
Comment: Article 57(2) of Protocol 1 obliges parties to "refrain from deciding to launch any attack which may be expected to cause incidental loss of life, injury tocivilians, damage to civilian objects, or a combination thereof which would be excessive in relation to the concrete and direct military advantage anticipated."
There is a duty to protect the civilian population, enshrined in international humanitarian instruments.42 This involves not simply not directing attacks against civilians but also protecting them from the injurious affect of attacks against military objectives but which result in severe civilian losses, disproportionate to the direct military advantage which prompted the attack. Exposing civilians to grave danger by launching attacks which may cause incidental loss or injury is a violation of principle of humanity.
We note that Option II of part D includes "intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects ... or widespread or severe damage to the natural environment," reflecting the comparable provision in part B(b). The addition of this provision which, together with the other articles in Option II, represents a significant improvement in the text, should be supported. The language should however, in line with Article 57(2), cover wilful (including reckless) carrying out of such attacks which may cause incidental loss of life etc, rather than only those attacks "intentionally" carried out "in the knowledge" of the losses or damage that would ensue.
· Recommendation 10: Include as a crime the launching of an indiscriminate attack affecting civilians or civilian objects in the knowledge of the excessive loss of life, injury to civilians or damage to civilian objects that would result from the attack.
Comment: Article 85(3)(b) of Protocol I lists "launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects..." as one of the acts which, when committed wilfully and causing death or serious injury, constitute a grave breach of Protocol I. Knowingly exposing civilians to grave danger by launching indiscriminate attacks is a flagrant violation of the duty to protect the civilian population, in clear contravention of the principle of humanity.
Indiscriminate attacks which expose the population to serious risk are grave crimes, and should be included within the Court's jurisdiction whether committed in international or non-international conflict.
· Recommendation 11: Include as a crime attacks against works or installations containing dangerous forces, where such an attack may cause the release of dangerous forces and consequent severe losses among the civilian population, which would be excessive in relation to the concrete and direct military advantage anticipated.
Comment: Article 56(1) of Protocol I and Article 15 of Protocol II expressly prohibit "attacks against installations containing dangerous forces even where the objects are military objectives, if such attack may cause severe losses among the civilian population" (emphasis added). Moreover, Article 85(3) of Protocol I provides that such attacks carried out in the knowledge of the excessive loss of life, injury or damage is a grave breach of that Protocol.
The principles applicable to the protection of civilians from being the object of attack or affected by indiscriminate attacks, and arguments set out in those contexts above, apply equally to these attacks, which by their nature expose the civilian population to very serious danger.
Option II of part D contains a comparable provision to that in part B(b)bis Option 1, and the retention of this crime in both types of conflict situation should be supported. The language should however, in line with Article 57(2), cover the wilful carrying out of such attacks which may cause the relevant loss, injury or damage, rather than only those "intentionally" carried out "in the knowledge" of the losses or damage that would ensue.
· Recommendation 12: Include as a crime the use of weapons, projectiles and material and methods of warfare of a nature to cause excessive injury or unnecessary suffering, or which are inherently indiscriminate.
Comment: The infliction of unnecessary suffering is clearly prohibited by the principles of humanity.43 The 1907 Hague Regulations on Land Warfare in Article23(e) established a categorical prohibition on the employment of "arms, projectiles or material calculated to cause unnecessary suffering." This principle is repeated with slight variation in Article 35(2) of Protocol I to the Geneva Conventions: "It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering." The jurisdiction of the ICC should, in this respect, reflect that of the International Criminal Tribunal for the Former Yugoslavia, which has explicit jurisdiction over the "employment of poisonous or other weapons calculated to cause unnecessary suffering."
Humanitarian law requires that attacks should only be against legitimate military objectives. The employment of weapons which by their inherently indiscriminate nature are incapable of being directed against specific targets should also come within the jurisdiction of the Court, as proposed in Option 3 of part B(o) of Article 5 of the draft statute.
This crime should be included within the jurisdiction of the Court whether committed in international or non-international conflicts. The statute should not exhaustively enumerate the prohibited weapons, as represented (currently under part B(o) of Article 5) as Option 1 or the first part of Option 4. Rather, a definition such as that in Option 3,44 or the second part of Option 4,45 which allows the Court the necessary flexibility to accommodate new weapons systems that may develop in the future and changes in the relevant law,46 should be supported.
· Recommendation 13: Include as a crime pillage and the extensive and wanton destruction of property not justified by military necessity.
Comment: The "wanton destruction of cities, towns or villages, or devastation not justified by military necessity" and the "plunder of public or private property" are two of the five categories of violations of laws and customs of war specified in Article 3 of the ICTY. These crimes should come within the jurisdiction of the ICC. This conduct constitutes a grave breach of the Geneva Conventions.47 The Security Council has condemned "the burning of houses, looting of property, and killings of civilians" as "serious violations of international humanitarian law and of human rights."48 Delegates should support the proposals to include pillage, as prohibited in Article 4(2)(g) of Protocol II, and extensive destruction of property.
Accordingly, the inclusion of this crime in parts B(n) and D(b) should be supported.
· Recommendation 14: Include as a crime attacks directed against historic monuments, works of art or places of worship that constitute part of the cultural or spiritual heritage of people.
Comment: The protection of cultural property is a fundamental rule of international humanitarian law and one which the Appeals Chamber of the ICTY in the Tadic case described as having attained the status of customary international law.49 Article 16 of Protocol II contains an express prohibition on directing hostilities against any such objects and using them in support of the military effort. Delegates should support the inclusion in parts B(g) and D(c) of the crime of targeting of such property as a crime whether committed in internal or international conflict.
· Recommendation 15: Include starvation of civilians as a crime.
Comment: Article 14 of Protocol II and Article 54 of Protocol I expressly provide that "starvation as a method of combat is prohibited." To this end, they prohibit parties to a conflict from attacking, destroying, removing or rendering useless, for that purpose, objects indispensable to the survival of the civilian population. The fundamental principle of humanity, set out in the context of attacking or exposing to danger the civilian population, is unquestionably applicable to the starvation of that population.
Starvation appears in part B(s), with respect to international conflicts, without brackets, and in part D, as an option (II). Starvation should be criminalized in either type of conflict and, accordingly, delegates should retain Option II in part D.
· Recommendation 16: Include as a crime attacks against non-defended localities and demilitarized zones.
Comment: Articles 59 and 60 of Protocol I attacks against non-defended localities and the extension of military operations into demilitarized zones, respectively. Furthermore, the "attack or bombardment by whatever means of undefended towns, villages, dwellings or buildings" is specified as one of the crimes within the jurisdiction of the International Criminal Tribunal for the Former Yugoslavia. These are clearly not legitimate military objectives, and the attack of such targets is prohibited by the requirement to protect the civilian population and not to commit violence or attacks against persons taking no active part in hostilities, embodied in Common Article 3 and the principle of humanity.
This crime is not included in the current text with respect to non-international armed conflicts and should be inserted.
· Recommendation 17: Include as a crime attacks against buildings, materials, medical units, transport and personnel entitled to use, inconformity with international humanitarian law, the distinctive emblem of the red cross or red crescent.
Comment: Article 12 of Protocol II to the Geneva Conventions states that the distinctive emblem shall be "respected in all circumstances," and Article 38 of Protocol I that "it is prohibited to make improper use of the distinctive emblem."
Comparable provisions in the statute at parts B(r) and D(b) should be retained.
· Recommendation 18: Include as a crime forcing or compelling persons under the age of eighteen to participate in hostilities.
Comment: The current text of the statute, at Article (t) of part B and Article (f) of part C, appropriately provides for crimes involving the participation of children under the age of fifteen in armed conflict. However, the options presented fail to recognize the clear emergence of higher standards which seek to exclude children under the age of eighteen from participation in hostilities.50
One of the most alarming trends in contemporary armed conflicts is the reliance on children as soldiers.51 Children are often sought because they are uniquelysusceptible to psychological and physical manipulation.52 In hostilities, their inexperience and immaturity make children particularly vulnerable to trauma, injury, and death.
While the Convention on the Rights of the Child and Protocols I and II to the Geneva Conventions set the minimum age for children's participation in armed conflict at fifteen years,53 this age is widely acknowledged to be too low and is inconsistent with other international standards. The age at which an individual is liable to be conscripted for military service is eighteen years or higher for nearly all states; the same is true for voting age, the age of political majority,54 and international standards prohibiting the application of the death penalty to persons under the age of eighteen.55 Finally, an international consensus is emerging towards establishing eighteen as the age below which persons may neither be recruited nor allowed to participate in hostilities.56
While recruiting under-eighteens or allowing them to participate in hostilities may not be a sufficiently serious violation of international standards to warrant its inclusion as a crime before this Court, forcing or compelling under-eighteens to participate in hostilities should be included as a war crime.57
Forced participation in hostilities would cover children's forced performance of support functions linked to combat such as scouting, manning check points, serving as porters or messengers connected to front line activities, and other activities that expose children to the risks of harm associated with combat. Forced participation in hostilities may also involve forced participation in acts of extreme violence against others, sometimes directed against a child's own family members andcommunity, to break the ties to the community and desensitize the child to death and bloodshed.58
In order to end the gross exploitation and abuse of children in armed conflict, it is essential that at least this most extreme form of children's participation in armed conflict, their forced participation in hostilities, be defined as a war crime for all children, not just those under fifteen years of age.
· Recommendation 19: Include as a crime the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
Comment: The prohibition on passing sentences in these circumstances is contained in common Article 3(1)(d) of the Geneva Conventions. Article 6 of Protocol II also sets out in some detail "the essential guarantees of independence and impartiality," embodying the right to a fair hearing,59 as does Article 75(4) of Protocol I. Delegates should support the current inclusion of these crimes in sections A and C of the current text without square brackets.
· Recommendation 20: Include as a crime the imposition of collective punishments.
Comment: Collective punishments are expressly prohibited by Article 75(2)(d) of Protocol I and Article 4(2)(b) of Protocol II. They violate the principle of personal responsibility.
Human Rights Watch is concerned by the non-inclusion of this crime in the current draft in respect of either international nor non-international conflicts.60 We therefore urge delegates to include the imposition of collective punishments within the Court's jurisdiction for international and non-international conflicts.
· Recommendation 21: Include as a crime wilfully causing widespread, severe damage to the natural environment.
Comment: Article 35(3) of Protocol I provides that "it is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment." Article 55 of Protocol I expands upon this prohibition and also states that "care shall be taken in warfare to protect the natural environment against widespread, long term and severe damage." This principle has been codified in substantial detail in other international instruments, testifying to the importance attached by the international community to long-term damage to the environment.61
· Recommendation 22: Include as a crime terrorism of the civilian population.
Comment: In addition to attacks against the civilian population as such, or individual civilians, the ICC should have jurisdiction over acts of terrorism within the context of war crimes. Geneva Convention IV states that "all measures of intimidation or of terrorism are prohibited."62 This is confirmed for non-international conflicts by Article 4(2)(d) of Protocol II. Furthermore, Article 4(d)of the statute of the International Tribunal for Rwanda gives that Tribunal jurisdiction over acts of terrorism.
This crime should be inserted in the war crimes section of the draft statute.
· Recommendation 23: Include as a crime declaring that there will be no survivors, either by express or implicit means.
Comment: Article 4 of Protocol II, dealing with the "fundamental guarantees," provides expressly that "it is prohibited to declare that there shall be no survivors," as does Article 40 of Protocol I. Delegates should support the inclusion of the crime of declaring that there shall be no survivors in the current text of the statute at part B(j) and B(I).
· Recommendation 24: Include as a crime the forced movement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand.
Comment: Displacement causes maximum disruption to the lives of the civilian population and can have the effect of exposing it to great risk, in contravention of the clear obligation to protect the civilian population from dangers arising from military operations. The fundamental nature of the right not to be forcibly moved within a country, or from one country to another, is reflected in the plethora of Security Council Resolutions63 in recent years testifying to the importance the international community attributes to the voluntary return of refugees and displaced persons.
This crime should be included within the jurisdiction of the ICC. In the context of part B(f) relating to international conflicts, there is an option to have no such provision. At part B(g) it appears unbracketed. We urge the retention of this crime in respect of both classes of conflict, as it embodies a fundamental protection of the civilian population. We further support the wording of B(g) which provides that the only military reasons which might justify displacement of the civilian population are those deemed "imperative"so as to limit the otherwise potentiallywide-ranging military reasons which might be invoked for civilian displacement. This reflects the wording of Article 17 of Protocol II.
· Recommendation 25: Include the crime of perfidy.
Comment: The commission of perfidy involves inviting the confidence of adversaries by feigning protected status, for example by purporting to be a civilian or non-combatant, wounded or sick person, or bearing a sign, emblems or uniform of the U.N. or other non-parties to conflict, or by use of flag of truce or surrender.64 To do so inevitably undermines the force of humanitarian law and ultimately jeopardizes the protection it seeks to afford to these categories of persons. Delegations should therefore support the inclusion of this crime within the Court's jurisdiction, currently excluded in respect of both international or non-international conflicts.
· Recommendation 26: Include utilizing the presence of a civilian or other protected person to render certain points, areas, or military forces which otherwise would be legitimate military objectives, immune from military operations.
Comment: The principles underlying the criminality of perfidy apply also to the use of civilians and other protected groups as human shields. It is an abuse of the principles of humanitarian law for military gain, and as such ultimately undermines the ability of that body of law to afford the relevant groups the necessary protection. In exposing noncombatants to attacks, it is prohibited by the most basic principles of the laws of war.
Delegations should therefore supports the inclusion of this crime within the Court's jurisdiction, as in part B(q) in respect of international conflicts.65 However, that since the principle that the civilian population be protected is equally applicable in non-international conflict, this crime should extend to this type of conflict also.
OTHER CRIMES UNDER CUSTOMARY INTERNATIONAL LAW
· Recommendation: Insert a sub-section indicating that nothing in the enumeration of war crimes in Article 5 should prevent the Court from exercising jurisdiction with respect to other crimes which have attained the status of customary international law.66
Comment: The Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia stated in the Tadic case the following:
"[T]hree Member States of the Council, namely France, the United States and the United Kingdom, expressly stated that Article 3 of the statute also covers obligations stemming from agreements in force between the conflicting parties, that is Article 3 common to the Geneva Conventions and the two additional Protocols... In other words, Article 3 [of the Tribunal's statute] functions as a residual clause designed to ensure that no serious violation of international humanitarian law is taken away from the jurisdiction of the International Tribunal. [It] aims to make such jurisdiction watertight and inescapable ....Thus, if correctly interpreted, Article 3 fully realizes the primary purpose of the establishment of the International Tribunal, that is, not to leave unpunished any person guilty of any such serious violation, whatever the context within which it may have been committed.67
A similar provision should be included for the ICC. The provision should, of course, extend only to customary international law that exists at the time of the commission of the crime in question, and as such would not raise any questions as to the retroactivity. Moreover, this would ensure the flexibility that the Court will need to respond to the emergence of new crimes and the development of customary international law in the future.
· Recommendation: The Court's jurisdiction over war crimes should not be restricted to crimes committed as part of a systematic plan orpolicy, or as part of the large-scale commission of such crimes.68 The first of the three options, which would limit the Court's jurisdiction to crimes committed in this context, should be deleted. While either the second or third option is acceptable, the third is preferable.
Comment: The proposition that the ICC should try only egregious violations of humanitarian law should be supported. We suggest that this is reflected in the statement of the preamble which makes clear that the Court "is intended to exercise jurisdiction only over the most serious crimes of concern to the international community as a whole." We support the ability of the prosecutor to prioritize and to chose to pursue the more serious over the less serious crimes, and the duty of the Court to take into account the gravity of the crime in determining sentence.69 The existence of a plan or policy, and the massive nature of crimes, would undoubtedly be factors relevant to such determinations.
However, we oppose restricting the Court's jurisdiction to crimes committed in these circumstances. To say a crime is "egregious" is not synonymous with saying it was committed on a massive scale or in the context of a plan or policy: there are circumstances in which certain terrible acts of torture or mutilation, for example, carried out other than pursuant to a "policy," would nonetheless constitute very serious crimes.
It should be borne in mind in this context that the ICC will not prosecute states, but individuals. As such, the existence of a "plan or policy" is, in our view, an inappropriate prerequisite to the Court's assuming jurisdiction and rendering individual justice. There is no justification to assert that no forum should be available to try individuals who carry out atrocities of their own volition, as opposed to those who carry out the same acts pursuant to orders to do so.70
Even in cases where there was in fact such a plan or policy, it may not be possible in the particular case to obtain sufficient evidence to prove its existence. The Court must not be prevented from investigating and prosecuting serious crimes where there is clear evidence of their commission but insufficient evidence as to the plan or policy which lay behind their execution.
The language of the first option, restricting jurisdiction to acts "committed as part of a systematic plan or policy or part of a large-scale commission of such crimes," is borrowed virtually wholesale from the definition of crimes against humanity.71 There is no legal support for imposing this additional element of proof in the case of war crimes.72 Setting the threshold at such a high level will result in a definition of such crimes that is substantially narrower than that contained in the definitions of grave breaches of the Geneva Conventions of 1949 and the terms of Common Article 3 to the Conventions. As a result, if this language were to be adopted for the ICC, the Court's jurisdiction would fall short of covering even those violations for which humanitarian law prescribes an express duty to punish.73
The third option, which provides for no threshold, should be supported. The statute currently provides for the prosecutor to take into account the gravity of the alleged offense in determining whether a prosecution is in the interests of justice.74 Wesupport this, and believe that the existence of a plan or policy would be a factor in such a determination. For this reason, while the second option is entirely acceptable in terms of its substantive effect, we consider it unnecessary. The second option closely shadows the first, with the critical difference that the Court shall have jurisdiction "in particular"-- and not exclusively -- in respect of crimes committed as part of a plan or policy. The reference to the Court having jurisdiction "in particular" where such a plan or policy exists strikes us as peculiar: the court has jurisdiction or it does not. Clearly, it may decide whether or not to exercise that jurisdiction, for example on the basis of the interests of justice, in any particular case. However, subject to the observation that the provision appears superfluous and slightly confusing, we have no strong objection to either Options two or three.
Part 2: CRIMES AGAINST HUMANITY
THE CHAPEAU TO THE DEFINITION
· Recommendation: Delete the option in the chapeau that would require a nexus between crimes against humanity and the existence of armed conflict.
Comment: It is now well established in international law that crimes against humanity can be committed in time of war or peace. While Article 6(c) of the Nuremberg Charter clearly envisaged crimes against humanity within the jurisdiction of the Nuremberg Tribunals as applying only to acts committed in connection with World War Two, such a nexus has been consistently rejected subsequent to Nuremberg.75
The special rapporteur on the Draft Code of Crimes against the Peace and Security of Mankind, stated in 1989 that crimes against humanity are "separate from_ war crimes_ [N]ot only the 1954 Draft but even conventions which have entered into force (on genocide and apartheid) no longer link that concept to a state of war."76 Most recently, the work of the ad hoc tribunals for both the former Yugoslavia as well as Rwanda has confirmed that the nexus requirement has become obsolete.77 Security Council Resolution 808, establishing the International Criminal Tribunal for the Former Yugoslavia (ICTY), contains the observation that crimes against humanity are directed against a civilian population and "are prohibited regardless of whether they are committed in an armed conflict, international or internal in character."78 The Appellate Chamber of the ICTY in the Prosecutor v. Tadic case invoked customary international law when it stated quite clearly that "customary international law no longer requires any nexus between crimes against humanity and armed conflict_"79
It should be noted that while the Nuremberg Charter required that crimes against humanity be committed "before or during war [emphasis added]," the current draft contains the formulation "in armed conflict [emphasis added]." The retention of this provision in Article 5 would establish a position even more restrictive than that at the time of Nuremberg. This would constitute a seriously retrograde step in international law, entirely inconsistent with developments in international law.
Moreover, and most importantly, such a link would mean that even the gravest of crimes, when committed outside the context of armed conflict, would continue to go unpunished. The gravity of the crimes included within the definition of crimes against humanity demands prosecution of the perpetrators, whatever the context inwhich these crimes occur. Delegates are therefore urged to ensure that this limitation does not remain in the statute.
· Recommendation: The chapeau to the definition of crimes against humanity should refer to those enumerated acts committed in connection with a widespread or systematic (as opposed to widespread and systematic) attack on any civilian population. Delete the requirement that the crimes be committed "on a massive scale."
Comment: Crimes against humanity are among the gravest crimes of concern to the international community as a whole. As such, there can be little argument that the definition should not cover isolated or minor crimes.80 However, to require that crimes against humanity be committed as part of both a widespread and systematic attack imposes too high a threshold and is inconsistent with existing international standards. The same applies to the words "on a massive scale" currently in square brackets in the chapeau, which should be deleted. The requirement that the enumerated acts be committed as part of a widespread or systematic attack is consistent with the state of current international law.
The ICTY stated in the Prosecutor v. Tadic judgment that "it is now well established that the requirement that the acts be directed against a civilian `population' can be fulfilled if the acts occur on either a widespread basis or in a systematic manner."81 It has gone on to note that "as long as there is a link with the widespread or systematic attack against a civilian population, a single act could qualify as a crime against humanity."82
The same approach was taken by the International Law Commission's special rapporteur in the seventh report on the Draft Code of Crimes Against the Peace and Security of Mankind, where he observed that acts constituting crimes against humanity must be either mass violations or individual acts which are "part of a system or plan."83
· Recommendation: The chapeau should not include any reference to the specific grounds on which crimes against humanity are committed.
Comment: The Nuremberg Charter and Control Council Law No.10, drafted by the Allies immediately subsequent to the Nuremberg Charter and under which the Nuremberg Trials were conducted, divides crimes against humanity into two categories: inhumane acts and persecution.84 Motive is relevant only to the latter,85 on the basis that "[c]ertain acts are so heinous and destructive of a person's humanity that they per se are crimes. Others are crimes because the perpetrator acts against the victim based on political, racial or religious grounds and attacks humanity through some of the most basic groups into which it is organized."86
The omission of any specified motive from the definition of crimes against humanity would be consistent with the statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY) which makes grounds for commission relevant only in the case of persecutions, not for any of the enumerated inhumane acts which also constitute crimes against humanity.87 Commentators have noted that by making this distinction, the Security Council "thus seems to have assumed that customary international law made motive for the non-persecution offenses irrelevant beyond any doubt."88 Likewise, the 1996 International Law Commission Draft Code eliminates the motive requirement for crimes against humanity generally.89
SPECIFIC ACTS CONSTITUTING CRIMES AGAINST HUMANITY
· Recommendation: Include enforced disappearance of persons within the jurisdiction of the court.
Comment: That enforced disappearances constitute crimes against humanity has been recognized by the Organization of American States,90 the United Nations General Assembly,91 the European Parliament,92 as well as in national legislation.93
Human Rights Watch is concerned by the footnote to the current text, which expresses uncertainty as to the inclusion of this particular crime against humanity. Reports prepared by this organization attest to the frequency with which "disappearances" have been carried out in recent decades and the profound gravity of the crime, in terms both of the impact on the victim directly and society more broadly. We urge delegates to ensure its inclusion as a crime against humanity within the jurisdiction of the Court.
Section 1(h) of the current draft reads:
"persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural or religious [or gender] [or other similar] grounds [and in connection with other crimes within the jurisdiction of the court]."
A footnote after the word "grounds" reads "This also includes, for example, social, economic, and mental or physical disability grounds."
· Recommendation 1:
(a) Retain persecution as a separate sub-category of crimes against humanity
(b) delete the reference to "in connection with other crimes within jurisdiction of the Court."
(a) Persecution is defined by the ICTY, in the case of the Prosecutor v. Dusko Tadic as "some form of discrimination that is intended to be and results in an infringement of an individual's fundamental rights. However, it is the discrimination itself, resulting in the grave violation of human rights, that constitutes the crime."94 As such it is a serious crime, distinct in nature from the other acts enumerated in Article 5 under the heading "Crimes Against Humanity."
That persecution constitutes a crime against humanity has been well established in international law since crimes against humanity were first defined in the Nuremberg Charter. The Nuremberg Charter,95 Control Council Law No. 10,96 the Tokyo Charter,97 and the statutes of the International Criminal Tribunal for the Former Yugoslavia (ICTY)98 and the International Criminal Tribunal for Rwanda (ICTR),99 all define crimes against humanity as including persecution as a separate subcategory of such crimes.
To remove persecution from the definition of crimes against humanity would constitute a retrograde step, as would the inclusion of language setting out specific grounds on which crimes against humanity are committed. The nota bene to the proposed chapeau states that if the provision relating to the grounds on which crimes against humanity must be committed is included in the chapeau, the text of sub-paragraph 1(h) should be reconsidered. Persecution should remain on the list of enumerated acts.
(b) Human Rights Watch believes that the requirement that persecution be committed "in connection with other crimes within the jurisdiction of the Court" should be removed. In practice, persecution will often be accompanied by the commission of other inhumane acts, or coupled with the commission of other crimes within the Court's jurisdiction. This is not, however, a requirement for persecution to constitute a crime against humanity.
While Article 6 of the Nuremberg Charter clearly did envisage that persecution would be committed "in execution of or in connection with any crime within the jurisdiction of the Tribunal," international law has developed since Nuremberg to reject that connection. Indeed in Control Council Law No. 10, drafted by the Allies immediately subsequent to the Nuremberg Charter, the above wording was absent and the necessary connection with the commission of other crimes disappeared.100 Delinking other inhumane acts from persecution is supported by the ICTY in the parts of the Tadic judgment cited above101 and by the case of Fédération Nationale des Deportés et Résistants Internes et Patriotes and Others v. Barbie.102 In the Barbie case, the court stated that: "it is not necessary to have a separate act of aninhumane nature to constitute persecution; the discrimination itself makes the act inhumane."103
Any attempt to link persecution to other crimes in this way distorts the notion of persecution. Limiting the Court's jurisdiction over persecution to circumstances where other crimes have been committed would render meaningless subparagraph (h). Its effect would be to remove the prosecution of persecution per se--a fundamental and long established crime against humanity--from the Court's jurisdiction.
· Recommendation 2: If the grounds for persecution are set out in the statute, gender should be included as one such ground.
Comment: In recent years, there has been increasing legal recognition that gender often constitutes a ground on which persecution is carried out. The ICC, as a forward looking institution charged with prosecuting crimes against humanity in the modern world, should reflect this reality and the corresponding legal developments.
It is in the area of refugee law that the concept of persecution based on gender has been most developed.104 This was recognized by the Platform for Action and the Beijing Declaration which emerged from the Fourth World Conference on Womenconvened in Beijing in September 1995 which, in the "Women in Armed Conflict" section, expressly raised the issue of gender-based persecution in the context of refugee law.105
The Executive Committee of the United Nations High Commissioner for Refugees (hereinafter the UNHCR Executive Committee) has, in a long series of other "conclusions," reinforced the growing trend towards the recognition of gender as one of the bases of persecution. Among those conclusions it has stated that: "In accordance with the principle that women's rights are human rights, these guidelines should recognize as refugees women whose claim to refugee status is based upon well-founded fear of persecution for reasons enumerated in the 1951 Convention and 1967 Protocol, including persecution through sexual violence or other gender-related persecution."106
The Convention Relating to the Status of Refugees,107 on which the UNHCR Executive Committee based many of its conclusions, does not itself expressly include gender as a basis for persecution. This is perhaps unsurprising since the convention was drawn up in 1951, however the persecution of "particular social groups" which are included within the convention has been interpreted as covering persecution based on gender.108 In this respect, the UNHCR Executive Committee has "[r]ecognized that States, in the exercise of their sovereignty, are free to adopt the interpretation that women asylum-seekers who face harsh or inhuman treatmentdue to their having transgressed the social mores of the society in which they live may be considered as a `particular social group' within the meaning of Article 1 (A) (2) of the 1951 Refugee Convention."109
The proposal to include persecution on "other similar grounds" in the current text carries a footnote after the word "grounds" which states that this includes, among others, "social" grounds. In light of the aforementioned Executive Committee conclusions, this may incorporate persecution against women. We believe that this does not, however, undermine the importance of an express reference to gender persecution, to reflect developments in this area and to recognize the reality and the gravity of persecution on the grounds of gender.
Persecution on other grounds
· Recommendation: The definition of persecution should set out in the broadest possible terms the grounds on which persecution might be committed. These grounds should include those specified in the current draft110 but also sexual orientation, economic grounds, or disability, for example. Finally, the inclusion of a general category covering other grounds not specified in the list, should be strongly supported by delegations.
Comment: Given the gravity of the crime of persecution, Human Rights Watch believes that the list of grounds of discrimination should be drawn broadly while setting out examples of such groups that have historically suffered persecutions. History indicates that groups have been persecuted for a wide range of reasons, going beyond those specified in the current definition of persecution. During the atrocities of the Second World War, for example, people were subjected to extreme forms of persecution, with devastating effects, on the grounds of sexual orientation, property ownership, or disability. This reality should be reflected in the text of the statute. While we note that the footnote to the relevant article states that "other similar grounds" is intended to cover social, economic, mental or physical disability, these categories merit specific reference in the statute. Sexualorientation, which is not reflected anywhere in the current draft, is among those criteria that require incorporation.
A general category referring to "other grounds" would ensure that no group which is singled out and subject to persecution is excluded from the scope of the definition. One commentator has offered a definition of persecution which highlights that persecution may occur "simply because the perpetrator sought to single out a given category of victims for reasons peculiar to the perpetrator."111 As such the statute should not seek to list exhaustively all possible categories of victims a perpetrator may identify for the purposes of persecution.
We therefore urge that the reference to other grounds be retained, subject to the deletion of the term "similar," which could result in an unacceptably restrictive definition.
1 See the United Nations "Minimum Humanitarian Standards: analytical report of the Secretary-General submitted pursuant to Commission on Human Rights resolution 1997/21," E/CN.4/1998/87, adopted by the United Nations Commission on Human Rights (Resolution 1998/29).
2 Para.18 of U.N. "Minimum humanitarian standards."
3 In 1995, according to the Stockholm Institute for Peace Research (SIPRI), all of the major armed conflicts around the world were internal. This fact remained unchanged from 1994. SIPRI Yearbook, (1996), p.15.
4 Human Rights Watch in principle would support the creation of one list of crimes, without distinction as to the nature of the conflict within which the crimes are committed. What is essential, however, is that the crimes contained in Section A, Part 1 (b) of this document are included as a minimum, with respect to internal as well as international conflicts, for the reasons explained below.
5 One example was the conflict in Vietnam, which had some of the characteristics of international armed conflict and some of civil war. See R.R. Baxter and Thomas Buergenthal, Legal Aspects of the Geneva Protocol of 1925: the Control of Chemical and Biological Weapons, (1971), p.18. A more obvious recent example is the conflict in the former Yugoslavia, which generated extensive legal dispute, both before the International Tribunal for the Former Yugoslavia in the Tadic case, and before the International Court of Justice, concerning the nature of the conflict and the standards which should therefore apply.
6 "Grave breaches" are defined in the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forced in the Field (Geneva Convention I), Aug. 12, 1949, Chapter IX, Article 50; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Geneva Convention II), August 12, 1949, Chapter VIII, Article 51; Convention Relative to the Treatment of Prisoners of War (Geneva Convention III), August 12, 1949, Chapter VI, Article 130; Convention Relative to the Protection of Civilian Persons in Times of War (Geneva Convention IV), August 12, 1949, Part IV, Article 147. (Collectively, the "Geneva Conventions"). Additional grave breaches to Protocol I are defined in Articles 11(4) and 85 of that treaty. Article 85 states that "the provisions of the [Geneva] Conventions relating to the repression of breaches and grave breaches, supplemented by this Section, shall apply to the repression of breaches and grave breaches of this Protocol."
7 The scope and sources of this responsibility, particularly in internal conflicts, are discussed below.
8 "Prosecutor v. Dusko Tadic, a/k/a "Dule" Decision on Interlocutory Appeal, IT-94-1-AR72, October 2, 1995," cited in International Legal Materials, vol.35, no.1, (1996) p.71, hereinafter Tadic.
9 See Security Council Resolution 864 (1993), concerning the Angolan conflict; Security Council Resolution 788 (1992) concerning the Liberian conflict; Security Council Resolution 733 (1992) concerning Somalia; Security Council Resolution 841 (1993) concerning Haiti; Security Council Resolution (1997) concerning the coup in Sierra Leone.
10 The Security Council expressly called for individuals to be held accountable for humanitarian law violations in two situations of clearly internal conflict: Security Council Resolution 1072 (1996) on Burundi, and Security Council Resolution 814 (1993) on Somalia. In the former it "recall[ed] that all persons who commit or authorize the commission of serious violations of international humanitarian law are individually responsible for such violations and should be held accountable." Similarly, in relation to Somalia, the Council "[r]eiterate[d] its demand that all Somali parties, including movements and factions, immediately cease and desist from all breaches of international humanitarian law, and reaffirm[ed] that those responsible for such acts were to be held individually accountable...." It also issued such a call in Bosnia at a time when the "international" dimension to the conflict was virtually non-existent, Security Council Resolution 941 (1994).
11 See, for example, resolution 1998/29 of the United Nations Commission on Human Rights on minimum humanitarian standards (cited above) and its call for a subsequent submission of a report setting out the "Fundamental standards of humanity" at its fifty-fifth session.
12 Article 3 of the statute of the International Criminal Tribunal for the former Yugoslavia provides as follows:
The International Tribunal shall have the power to prosecute persons violating thelaws or customs of war. Such violations shall include, but not be limited to:
(a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;
(b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings;
(d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science;
(e) plunder of public or private property.
13 Tadic. The Appeals Chamber concluded, having considered relevant opinio juris and the internal logic of humanitarian norms, that "all of these factors confirm that customary international law imposes criminal liability for serious violations of Common Article 3, as supplemented by other general principles and rules on the protection of victims of internal armed conflict, and for breaching certain fundamental principles and rules regarding means of combat in civil strife."
14 Both the ICJ and the ICTY have affirmed the view that Common Article 3 states a rule of customary international law. See also Nicaragua v. United States, and Tadic, Decision on Interlocutory Appeal.
15 Hereinafter "Protocol II".
18 This principle was set out in the 1907 Hague Regulations Respecting the Laws and Customs of War on Land, Article 22; the regulations are widely acknowledged to constitute customary international law. Protocol I Additional to the Geneva Conventions [hereinafter "Protocol I"] also states the principle at Article 35(1): "In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited."
19 The preamble to Protocol II provides that "in cases not covered by the law in force, the human person remains under the protection of the principles of humanity and the dictates of the public conscience." The foundation of this principle is the Martens Clause, set out in the preambles to the 1899 and 1907 Hague Conventions on the Laws and Customs of War on Land, and it has since been expressed in Article 1 of Protocol I and in the preamble to the Conventional Weapons Convention.
21 Theodore Meron, Human Rights and Humanitarian Norms as Customary International Law (London: Clarendon Press, 1989), p.74.
22 The resolution establishing the Preparatory Committee stated that it should "draft texts, with a view to preparing a widely acceptable consolidated text of a convention for an international criminal court as a next step towards consideration by a conference of plenipotentiaries." General Assembly Resolution 50/46. The Preparatory Committee's mandate, as affirmed in paragraph 368 of its report, includes dealing with "definition and elements of crimes" and "principles of criminal law and penalties." As stated by the Jamaican delegate during the February 1997 Preparatory Committee, in neither text is there any reference to customary international law or the need to remain within its confines in defining the crimes to come under the Court's jurisdiction.
23 In so far customary international law is used to guide such decisions, a progressive approach to the scope of this body of law is encouraged, as exemplified by the jurisprudence of the ICTY referred to below, which considered a broad range of state practice and opinio juris-- in reaching the view of customary international law set out in the "Fundamental Legal Principles" section above.
24 The ICTY in Tadic reiterated the conclusions of the Nuremberg Tribunal that "a finding of individual criminal responsibility is not barred by the absence of treaty provisions on punishment of breaches."
25 In the Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States), the International Court of Justice ("ICJ") stated that the obligation to ensure respect for the minimum standards of Common Article 3 of the Geneva Conventions derived "from the general principles of humanitarian law to which the Conventions merely give expression," ICJ, vol.14, June 27, 1986. One such principle is that of "humanity," applicable in international or non-international conflict, referred to by the ICJ in both the Nicaragua v. United States case, and in the Corfu Channel case, Merits, I.C.J. Reports 1949, p.22; para.215.
26 The judgment in the Tadic case, for example, provides important guidance as to how fundamental rules of humanitarian law are being interpreted in the contemporary context, which itself contributes to the evolution of that body of law. Furthermore, the sources of international law, as set out at Article 38 of the statute of the International Court of Justice, include "international conventions ... international custom ... the general principles of law accepted by civilized nations... judicial decisions and teachings of the most highly qualified publicists."
27 That is, (I) serious violations of Common Article 3; (ii) serious violations of general principles and rules on the protection of victims of internal armed conflict; and (iii) breaches of certain fundamental principles and rules regarding methods and means of warfare, as discussed at Section A, Part 1(b), Recommendation 4 of this document.
28 Four of these crimes have now been included as Option II to section D, namely starvation of civilians, intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or the environment, attacks against installations containing dangerous forces if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population, and slavery. These crimes must be retained, and Option II incorporated into the body of the text.
29 This section deals with grave breaches.
30 This section deals with violations of Common Article 3.
31 If the present structure of the section is retained, distinguishing grave breaches from other war crimes, this should be reflected in part A of Article 5.
32 The International Committee of the Red Cross (ICRC) has indicated that the grave breach of "wilfully causing great suffering or serious injury to body or health" encompasses rape and that the grave breach of "inhuman treatment" should be interpreted in the context of Article 27 of the Geneva Conventions and its specific prohibition against rape. The Commission of Experts established by the Security Council to examine human rights violations committed in the former Yugoslavia has also recognized that grave breaches include rape and other sexual assaults because they constitute "torture or inhuman treatment" and fall within those acts "wilfully causing great suffering or serious injury to body or health." In Indictment of Gagovic & Others, Case No. IT-96-23-I (June 26, 1996), the ICTY indicted eight Serbian officials, charging their acts of rape of fourteen Muslim women as grave breaches of the Geneva Conventions and as violations of the laws and customs of war.
Furthermore, the United States, among other states, has definitively classified rape as a grave breach or war crime under customary international law and the Geneva Conventions. The following international jurisprudence and authorities have recognized rape as a form of torture: the International Criminal Tribunals for the former Yugoslavia and Rwanda; the Inter-American Commission on Human Rights; the U.N. Declaration on the Elimination of Violence Against Women; the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women; the U.N. Rapporteur on Torture; and the U.N. Rapporteur on Violence Against Women, Its Causes and Consequences.
33 Article 2(e).
34 Article 2(f).
35 Article 4(e), ICTR Statute, reprinted in U.N. Doc. SC/5932.
36 This approach is followed by the International Criminal Tribunals for the former Yugoslavia and Rwanda, which has charged rape and other acts of sexual violence as one or more of the following crimes: grave breaches (torture and wilfully causing great suffering or serious injury to body or health); violation of the laws and customs of war (torture and outrages upon personal dignity); and crimes against humanity (rape, enslavement, torture, and other inhumane acts).
37 The special rapporteur on the situation of human rights in the Former Yugoslavia, of the Commission on Human Rights, Tadeusz Mazowiecki, highlighted the role of rape both as an attack on the individual victim and as a method of "ethnic cleansing" intended to humiliate, shame, degrade, and terrify the entire ethnic group. Tadeusz Mazowiecki, Report on the Situation of Human Rights in the Territory of the Former Yugoslavia, U.N. Doc. A/48/92-S/25341, (1993), Annex, p.57.
38 The Commission of Experts established to investigate human rights violations in the former Yugoslavia has considered rape and other forms of sexual assault, including sexual mutilation, to constitute crimes of violence of a sexual nature against the person. It further has noted the prohibition of sexual violence by international humanitarian law through its normative provisions which ban violence against the physical integrity of the person.
39 Article (p)bis of part B and (e)bis in part D, include the category of "rape, sexual slavery, enforced prostitution, enforced pregnancy, enforced sterilization, and any other form of sexual violence also constituting a serious violation of...." The texts then refer to a "grave breach of the Geneva Conventions" in Article (p)bis for international conflicts and "a violation of Article 3 common to the four Geneva Conventions" in Article (e)bis for internal conflicts.
40 Sexual slavery refers to the exercise of control over another person as chattel for the purpose of performing any sexual conduct whatsoever, whether for consideration or not. It is well-accepted that prohibitions against slavery and slave-related practices have achieved the status of customary international law and attained a jus cogens character from which no derogation is permitted, even in times of public emergency. Increasingly, international authorities have recognized that specific crimes of sexual violence can violate international norms against slavery. Moreover, the special rapporteur of the U.N. Sub-Commission on the Prevention of Discrimination and the Protection of Minorities ("U.N. Sub-Commission") released an updated report on slavery in 1982, identifying the following acts, among others, as slavery-like practices: the abuse of women as chattels; the sale of women; and dowry killings. Further, the Working Group on Slavery of the U.N. Sub-Commission classified trafficking in women and children for the purpose of exploitation of prostitution as a formof slavery. Similarly, the U.N. Commission on the Status of Women, as well as the Special Rapporteur on the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others, have recognized as a form of enslavement the trafficking of women and children for the purpose of sexual exploitation.
41 See for example the Convention on the Suppression of Slave Trade and Slavery, 1926; the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 1956; the Protocol amending the Slavery Convention, Convention on the Prevention of Traffic in Persons.
42 Article 13 of Protocol II and Article 51(1) of Protocol I establish that "the civilian population and individual civilians shall enjoy general protection against the dangers arising from military operations."
43 Theodore Meron, Human Rights and Humanitarian Norms as Customary International Law, has noted that the prohibition of "means and methods of warfare that cause unnecessary suffering can and should be regarded as [a] necessary and properderivation from the principle of humanity."
44 "The use of weapons, projectiles and material and methods of warfare of a nature to cause excessive injury or unnecessary suffering, or which are inherently indiscriminate."
45 Option 4 provides for "weapons, projectiles and material and methods of warfare of a nature to cause excessive injury or unnecessary suffering, or which are inherently indiscriminate, such as but not limited to...."
46 For example, blinding laser weapons were characterized by the ICRC as an "abhorrent new weapon." They were prohibited by the Protocol on Blinding Laser Weapons to the 1981 Conventional Weapons Convention, quoted in Carnahan & Robertson, "The Protocol on Blinding Laser Weapons," American Journal of International Law, vol.90, p.484. The ICC should be able to exercise jurisdiction over such weapons where they violate the aforementioned principles of international law.
47 Article 50, Chapter XI of the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forced in the Field (Geneva Convention I), August 12, 1949, includes the "extensive destruction of property...not justified by military necessity and carried out unlawfully and wantonly." See also Additional Protocol I, Article 85(2).
48 Note also Security Council Resolution 1019 (1995) which begins: "Deeply concerned at reports, including by UNCRO and United Nations humanitarian agencies, of serious violations of international humanitarian law and of human rights in the former sectors West, North, and South, in the Republic of Croatia, including burning of houses, looting of property, and killings of civilians...."
49 Setting out its understanding of "the emergence of international rules governing internal strife...," the Appellate Chamber stated that "some treaty rules have gradually become part of customary law. This holds true for common Article 3....but also applies to Article 19 of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954 and...to the core of Additional Protocol II of 1977." Tadic(1996), pp.62-67.
50 Among the existing options, all geared to age fifteen, we prefer Option 2 (and its footnote) over the others, with one strong qualification -- we urge that the word "actively" be removed from the option. The detailed footnote attached to the option clearly identifies the types of conduct that would be covered by the definition. Thus the inclusion of the qualifying word "actively" serves no purpose other than to confuse and weaken the text.
Option 2 of parts B and C proposes the following as a war crime: recruiting children under the age of fifteen years into armed forces (section C: or groups) or using them to participate actively in hostilities. The option is followed by a lengthy footnote elaborating on what "using" and "participate" in hostilities mean.
51 Throughout the world today, an estimated quarter of a million children under the age of eighteen may be serving in government armed forces or armed opposition groups. Rachel Brett and Margaret McCallin, Children: the Invisible Soldiers, (Sweden: Radda Barnen, 1996), p. 23.
52 See generally, "Report of Graca Machel, Expert of the Secretary-General of the United Nations, on the impact of armed conflict on children," A/51/306, paras.34-62, hereinafter "Machel Study".
53 Convention on the Rights of the Child, Article 38; Additional Protocol I to the Geneva Conventions of 1949, Article 77; and Additional Protocol II to the Geneva Conventions of 1949, Article 4(3).
54 Seven out of 185 states surveyed indicated a minimum conscription age below eighteen years. Guy Goodwin-Gill and Ilene Cohn, Child Soldiers: the Role of Children in Armed Conflicts, (USA: Clarendon Press, 1993), p.8; and ibid, p.197. Six of the 185 states surveyed indicated a voting age lower than eighteen years.
ILO Convention No.138 on Minimum Age also sets eighteen years as the minimum age for admission to employment that is hazardous to the health, safety or morals of young persons. The ILO has suggested that the terms of Convention No.138 may be applied as a corollary to the involvement of children in armed conflicts. See Brett and McCallin, Children: the Invisible Soldiers, p. 196.
55 Convention on the Rights of the Child, Art. 37(a); ICCPR, Article 6(5); Additional Protocol I to the Geneva Conventions, Article 77(5); Additional Protocol II to the Geneva Conventions, Article 6(4).
56 In 1994 the U.N. Commission on Human Rights convened a working group to draft an optional protocol to the Convention on the Rights of the Child, to raise the minimum age for participation in hostilities and recruitment from fifteen to eighteen. Much progress has been made towards achieving those goals. Already within the U.N. workinggroup, unanimous consensus has been reached on setting the minimum age for compulsory recruitment into government armed forces at eighteen.
A resolution of the 26th International Conference of the Red Cross and Red Crescent (Geneva, December 1995) supports the drafting of the optional protocol and recommended "that parties to conflict refrain from arming children under the age of 18 years and take every feasible step to ensure that children under the age of 18 years do not take part in hostilities." The resolution was adopted by consensus at a meeting open to all states parties to the Geneva Conventions and the Additional Protocols and to representatives of all national societies of the Red Cross and Red Crescent Movement. See Brett and McCallin, Children: the Invisible Soldiers, p. 194.
Article 22 of the African Charter on the Rights and Welfare of the Child already provides that state parties shall take all necessary measures to ensure that no child, defined as anyone below the age of eighteen, take part in hostilities and refrain from recruiting any child. OAU Doc. CAB/LEG/24.9/49 (1990).
57 The U.N. expert on the impact of armed conflict on children, Graca Machel, recommended that governments establish legal remedies and institutions that are sufficiently strong to tackle the practice of forced recruitment of children, and thereby also the forced participation of children in hostilities. See Machel Study, para.58. The International Criminal Court should play a critical role in this effort.
Included in the Cape Town Principles of Best Practice and in the Cape Town Plan of Action, drafted in 1997, was a proposal for the establishment of a permanent international criminal court with jurisdiction over the illegal recruitment of children. 1997 Symposium on the Prevention of Recruitment of Children in the Armed Forces and Demobilization and Social Reintegration of Child Soldiers in Africa.
58 There is evidence from Afghanistan, Mozambique, Colombia, and Nicaragua of child soldiers having been forced to commit atrocities against their families and communities, and in the case of Uganda, to participate in the killing of child recruits who offer resistance to their commanders. Machel Study, para.48; Human Rights Watch, The Scars of Death: Children Abducted by the Lord's Resistance Army in Uganda (New York: Human Rights Watch, 1997) pp. 17-18.
59 Article 6 reflects the terms of the non-derogable right to a fair trial contained in human rights conventions, such as Article 14 of the International Covenant on Civil and Political Rights.
60 Prior to the December 1997 Preparatory Committee this crime was included in the compilation of proposals with respect to international conflicts.
61 The 1977 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques; the 1982 World Charter for Nature; the Rio Declaration of the 1992 United Nations Conference on Environment and Development; U.N. General Assembly G.A. Res. 47/37 (1992).
62 Geneva Convention Relative to the Protection of Civilian Persons in Times of War (Geneva Convention IV), August 12, 1949, Article 33. See also Protocol I, Article 51(2), "acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited."
63 See, for example, Security Council Resolution 811 (1993), Security Council Resolution 941 (1994), Security Council Resolution 1001 (1995), Security Council Resolution 1036 (1996), and Security Council Resolution 1076 (1996).
64 Article 37 of Additional Protocol I.
65 See the proposal of the delegation of the United States.
66 Note that this recommendation should not be seen to imply that those crimes enumerated in the statute itself need have attained the status of customary international law, but only that this limitation be imposed on the flexibility of the Court to include within its jurisdiction crimes beyond those mentioned in Article 5.
67 Tadic, p.61.
68 See the proposal of the United States as incorporated in the consolidated text.
69 See in this respect the section of the full report in relation to Penalties.
70 As stated in the section of the full report, on "Defenses," superior orders should not serve to exonerate anyone from responsibility for crimes within the jurisdiction of the Court. Nor, however, do they create a greater degree of responsibility. It would, in our view, be absurd for the Court only to be able to exercise jurisdiction where a crime committed by individual soldiers was carried out pursuant to centralized plan or policy, but not if there were some different motivation.
71 The statute of the International Criminal Tribunal for Rwanda, for example, states at Article 3 that the tribunal has jurisdiction over crimes against humanity committed "as part of a widespread or systematic attack."
72 As Professor Theodore Meron has written: "Proof of systematic and deliberate planning... is not required to establish the violation of Common Article 3 or Additional Protocol II." See Theodore Meron, "International Criminalization of Internal Atrocities," American Journal of International Law (1989), pp.554-7.
73 The obligation to impose "effective penal sanctions" is established in the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forced in the Field, August 12, 1949, Chapter IX, Article 49; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, August 12, 1949, Chapter VIII, Article 50; Convention Relative to the Treatment of Prisoners of War, August 12, 1949, Chapter VI, Article 129; Convention Relative to the Protection of Civilian Persons in Times of War, August 12, 1949, Part IV, Article 146.
74 Article 54(2)([47(1 bis)](b)(ii)bis. This reflects the terminology in the preamble.
75 The Appellate Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY), in the Prosecutor v. Dusko Tadic case stated that the nexus between crimes against humanity and crimes against peace or war crimes was "peculiar to the jurisdiction of the Nuremberg Tribunal_ there is no logical or legal basis for this requirement and it has been abandoned in subsequent State practice with respect to crimes against humanity." (October 2, 1995) reprinted in International Legal Materials, vol.35, p.72 (1996). (Hereinafter, Tadic.)
76 "Draft Code of Crimes against the Peace and Security of Mankind Seventh Report ", II Yearbook of International Law, Comm'n 81, 86, U.N. Doc. A/CN.4/419/Add.1.
77 The statute for the Rwanda Tribunal makes no reference to the existence of an armed conflict as a prerequisite for the commission of such crimes.
78 Security Council Resolution 808 (1993), U.N. Doc. S/25704/Add.1 reprinted in International Legal Materials, vol.32, (1993), p.1173, established the statute of the International Criminal Tribunal for the Former Yugoslavia (hereinafter ICTY Statute).
79 Tadic, p.72.
80 See United States v. Josef Altstoetter, reprinted in III Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law, no.10 954, p.982 (1951) (hereinafter Justice) which stated that "isolated cases of atrocity or persecution whether committed by private individuals or governmental authority..." do not constitute crimes against humanity.
81 International Legal Materials, p.942.
82 Prosecutor v. Mile Msksic, Miroslav Radic, and Veselin Sljivancanin, "Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, Case No. IT-95-13-R61, T.Ch. I (3 Apr. 1996)" quoted in Tadic, International Legal Materials, vol.36,p.943.
83 "Draft Code of Crimes Against the Peace and Security of Mankind Seventh Report", Mr. Doudou Thiam, Special Rapporteur, (1989), II Year Book of International Law Commission, 81, pp.88-89, U.N. Doc. A/CN.4/419/Add.1
84 Control Council Law No.10, reprinted in VI Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law, No. 10, Article 6(c), XVIII, XIX (1952).
85 Jaons Ratner and Steven Abrams, The Criminalization of Atrocities in International Law, (1997), p. 61.
86 Ibid. This "basic groups" argument also provides further support for the contention that gender should be included as a category for purposes of defining persecution.
87 Article 5 of ICTY Statute, p.1173.
88 Ratner and Abrams, Criminalization of Atrocities, p.62 (quoting "Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808 (1993)", May 3, 1993, U.N. Doc. S/25704, p.9).
89 The Draft Code retains a motive requirement for "persecution" and "institutionalized discrimination" but not for crimes against humanity generally. (International Law Commission Report, (1996), pp.93-4, (Article 18).
90 Inter-American Convention on the Forced Disappearance of Persons, June 9, 1994, preamble para.6 and OAS General Assembly Resolution 666 (XIII-O/83).
91 Declaration on the Protection of All Persons from Enforced Disappearance, U.N. GA RES 47/133, adopted December 18, 1992.
92 Resolution 828/84, Parliamentary Assembly of the Council of Europe.
93 See 1992 French statute Nouveau Code Pénal, Articles 212-1 (Fr.), reprinted in Leila Sadat Wexler, "The Interpretation of the Nuremberg Principles by the French Court of Cassation: From Touvier to Barbie and Back Again," Columbia Journal of Transnational Law, vol. 32, (1994), p.380.
94 Tadic, p.941.
95 The Charter of the International Military Tribunal Annexed to the London Agreement, 8 August 1945; 8 UN Treaty Series 279; 59 Stat.1544, 8AS No.472. Reprinted in American Journal of International Law, vol.39, (1945), p.257.
96 Control Council Law No.10 defined crimes against humanity as "atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane 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."
97 Charter of the International Military Tribunal for the Far East, Tokyo, January 19, 1946, Article 5(c). Reprinted in B. Ferencz, Defining International Aggression, p.523.
98 Article 5(h) of the ICTY Statute.
99 Article 3(h) of the statute of the International Criminal Tribunal for Rwanda (hereinafter ICTR Statute), created by Security Council Resolution S/RES/955 (1994), adopted by the Security Council at its 3453rd meeting, on November 8, 1994.
100 Control Council Law No.10, 1952, art. 6(c). See also the Justice case (1951) which notes that while the Charter "defines crimes against humanity as inhumane acts, etc., committed `in execution of, or in connection with, any crime within the jurisdiction of the tribunal,'_ in C.C. 10 the words last quoted are deliberately omitted."
101 As set out above, the ICTY made clear that persecution as a crime against humanity is of a nature quite distinct from others: "it is the discrimination itself, resulting in the grave violation of human rights, that constitutes the crime." Tadic, 36 International Legal Materials, p.956.
102 Cour de Cassation, Criminal Chamber 1983-85, International Law Review, vol.78, (1988), p.124.
103 Cour de Cassation, ibid, p.143.
104 Most recently, a United Nations Expert Group Meeting, held in November 1997, concluded that "[a]lthough the term `gender-based persecution' does not appear within any of the legal instruments, it encompasses the forms of harm that are regularly suffered by women and girls everywhere and which are directed at them because of their sex" (para. 20). Furthermore, "as sexual violence in the context of armed conflict contravenes norms of international law, the expert group considered that it meets the definition of "persecution" in international refugee law... [and] recognized that severe discrimination and harassment, particularly, but not exclusively, in armed conflict or in an atmosphere of insecurity may constitute persecution". United Nations Division for the Advancement of Women: "Gender-based persecution - Report of the Expert Group Meeting," held in Toronto, Canada, November 9-12, 1997, EGM/GBP/1997/Report, pp. 40-1.
105 United Nations Department of Public Information, Platform for Action and Beijing Declaration (1996), p. 84.
106 Executive Committee, Conclusion No.77, "General Conclusion on International Protection," (1995). See also Executive Committee, Conclusion No.73, "Refugee Protection and Sexual Violence," (19XX) and Executive Committee, Conclusion No. 79, "General Conclusion on International Protection," (1996), Executive Committee, Conclusion No. 81, "General Conclusion on International Protection," (1997).
107 Convention relating to the Status of Refugees, (hereinafter Refugee Convention), 189 UN Treaty Series (1951), p.150.
108 Determination of refugee status in the convention is based on a finding that an applicant is seeking asylum based on a "well-founded fear of being persecuted for reasons of race, religion, nationality, membership in a particular social group, or political opinion ." Refugee Convention, ibid, Article I(A)(2).
109 UNHCR Executive Committee, Conclusion No.39, "Refugee Women and International Protection", (1985).
110 As mentioned earlier, the current draft refers to "political, racial, national, ethnic, cultural or religious, [or gender] [or other similar] grounds."
111 M. Cherif Bassiouni has defined persecution as: "State action or policy leading to the infliction upon an individual of harassment, torment, oppression, or discriminatory measures, designed to or likely to produce physical or mental suffering or economic harm, because of the victim's beliefs, views, or membership in a given identifiable group (religious, social, ethnic, linguistic etc.), or simply because the perpetrator sought to single out a given category of victims for reasons peculiar to the perpetrator." Crimes Against Humanity in International Criminal Law, (Netherlands: Martinus Nijhoff Publishers, 1992), p.317.
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