State policy as an element of international crimes.

• Author: Schabas, William A.
• Position: Symposium on Redefining International Criminal Law

1. INTRODUCTION

   "Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced," reads the judgment of the International Military Tribunal. (1) This off-cited phrase expresses a vital idea, but it may also have contributed to some misconception about the nature of international crimes. The Nuremberg court made the statement in answer to the charge that the Nazi leaders were not responsible for war crimes because they were acting in the interests of the German State. Where the famous pronouncement about abstract entities may mislead is in suggesting that the State's role is irrelevant or even secondary to the discussion about crimes against international law.

   Article VI of the Charter of the International Military Tribunal defined the subject-matter jurisdiction of the court. (2) In three distinct paragraphs, it listed the core offenses, namely crimes against peace, war crimes, and crimes against humanity. (3) Here, too, an important element is often overlooked. Article VI begins with a preambular paragraph stating that the offenders must have been "acting in the interests of the European Axis countries." (4) This implies a gloss on the statement that "crimes against international law are committed by men," to the extent that the "men" must be acting in the interest of a State. Even summary perusal of the judgment issued in 1946 makes it clear just how central to the prosecution was the policy of the Nazi state.

   In recent years, case law has tended to play down the role of State policy in international crimes. In the first genocide prosecution to come to judgment before the International Criminal Tribunal for the former Yugoslavia (ICTY), the Trial Chamber held that a State plan or policy was not an element of the crime of genocide, and that the offense could be committed by an individual acting alone, without any State involvement. (5) A few years later, the Appeals Chamber of the ICTY reached essentially the same conclusion with respect to crimes against humanity. (6) Underpinning this development in the law may be a concern that the requirement of a State policy as an element of such crimes will make prosecution of so-called non-State actors more difficult.

   In practice, however, there have been few if any cases before the international tribunals involving entrepreneurial villains who have exploited a situation of conflict in order to advance their own perverse personal agendas. Essentially all prosecutions have involved offenders acting on behalf of a State and in accordance with a State policy, or those acting on behalf of an organization that was State-like in its attempts to exercise control over territory and seize political power, such as the Republika Srpska. Indeed, in 2005, an expert commission of inquiry mandated by the U.N. Security Council to investigate whether genocide was being committed in Darfur answered the question "whether or not acts of genocide have occurred" (7) not by examining the acts of individual offenders, but by concluding "that the Government of Sudan has not pursued a policy of genocide." (8)

   Other factors within the evolving discipline of international criminal law also argue for revival of the role of State policy as an element of international crimes. The Rome Statute of the International Criminal Court (9) and the Elements of Crimes (10) that complements its interpretation suggest a role for State policy that is Somewhat enhanced by comparison with the case law of the ad hoc Tribunals. In addition, with the growing focus on "gravity" as a test to distinguish cases that are deserving of the attention of international tribunals, a State policy requirement may prove useful in the determination of whether genocide has occurred. When the important doctrine of "joint criminal enterprise" is applied to so-called big cases, the State policy element becomes decisive. Joint criminal enterprise is the expression used in international criminal law to describe what is better known to national criminal justice systems as common purpose complicity. Perhaps of greatest interest, a requirement of a State policy for certain international crimes, notably genocide and crimes against humanity, facilitates reconciling perspectives on individual criminal responsibility with those of State responsibility.

2. THE DEBATE AND THE AUTHORITIES

   The Office of the Prosecutor of the ICTY was very cautious in charging the crime of genocide with respect to atrocities committed during the 1992-1995 war in Bosnia and Herzegovina. Indeed, it appears that there was considerable difference of opinion on the matter within the Office itself as to whether genocide was the appropriate legal term to characterize what was widely described as "ethnic cleansing." (11) However, a few indictments included genocide charges, and one of these came to trial in 1999. It involved a severely disturbed Serb racist, Goran Jelisic, who, over a two-week period, was the principal executioner in the Luka camp, in northwest Bosnia. He was shown to have systematically killed Muslim inmates as well as some Croats. The victims comprised essentially all of the Muslim community leaders. Jelisic was charged with genocide as both an accomplice and as a principal perpetrator, as well as with crimes against humanity. He agreed to plead guilty to crimes against humanity, but the Prosecutor was not satisfied and insisted that trial proceed on the genocide count.

   Examining the evidence at the close of the prosecution's case, the Trial Chamber, with Judge Claude Jorda presiding, concluded that the prosecution had not proven the existence of any organized plan or policy of a State or similar entity to destroy in whole or in part the Bosnian Moslems. Therefore, the Trial Chamber opined that Jelisic could in no way be an accomplice to genocide, because genocide was never committed by others. That is, there was insufficient evidence of the perpetration of genocide in Bosnia in the sense of some planned or organized attack on the Muslim population. (12) After dismissing the charge of aiding and abetting in genocide, the Trial Chamber turned to whether or not Jelisic might have committed genocide acting alone, as the principal perpetrator rather than as an accomplice. The Trial Chamber said this was "theoretically possible," namely that an individual, acting alone, could commit the crime--a kind of Lee Harvey Oswald of genocide. In the end, Jelisic was also acquitted as a principal perpetrator. The Trial Chamber's approach, developed as obiter dictum in a manner more appropriate for psychiatry than criminal law, now stands as authority for the entirely speculative and hypothetical proposition that genocide may be committed without any requirement of an organized plan or policy of a State or similar entity. (13) The position of the Trial Chamber was confirmed on appeal:

   The Appeals Chamber is of the opinion that the existence of a plan or policy is not a legal ingredient of the crime. However, in the context of proving specific intent, the existence of a plan or policy may become an important factor in most cases. The evidence may be consistent with the existence of a plan or policy, or may even show such existence, and the existence of a plan or policy may facilitate proof of the crime. (14) These views, however, have not proven to be of any significance in any subsequent prosecutions for genocide at the ICTY. For instance, although two cases at the ICTY have led to findings that genocide took place, no convictions for the crime followed. Of particular concern here is that neither case involved any debate about whether isolated individuals can commit genocide. In the first case, General Krstic, after initially being convicted of genocide by the Trial Chamber, (15) was acquitted of the charge by the Appeals Chamber. However, he was found guilty of aiding and abetting the genocide perpetrated at Srebenica in 1995 under the direction of General Ratko Mladic. (16) Colonel Blagojevic, another Mladic subordinate, was also convicted of complicity in genocide by the Trial Chamber, (17) but the ruling was overturned on appeal. (18)

   In Krstic, the factual developments are discussed under the heading "A Plan to Execute the Bosnian Muslim Men of Srebrenica." The Srebrenica enclave, in eastern Bosnia, was of immense strategic importance to the Bosnian Serbs. Elimination of Muslim population in the area would have allowed the geographic connection of two large areas that each had a Serbian majority. Over the course of a few days in mid-July 1995, Serbian military units summarily executed 7,000 Muslim men and adolescent boys. The Trial Chamber concluded that, "following the take over of Srebrenica in July 1995, the Bosnian Serbs devised and implemented a plan to execute as many as possible of the military aged Bosnian Muslim men present in the enclave." (19) The central issue, in terms of the guilt of General Krstic, was whether or not he had knowledge of the plan. As the Trial Chamber found:

   The plan to execute the Bosnian Muslim men may not have been of his own making, but it was carried out within the zone of responsibility of the Drina Corps. Furthermore Drina Corps resources were utilised to assist with the executions from 14 July 1995 onwards. By virtue of his position as Drina Corps Commander, [General Krstic] must have known about this. (20) Although noting the finding of the Appeals Chamber in Jelisic that a plan was not a required element of the crime of genocide, the Trial Chamber did not consider this significant given its finding that the killings were indeed planned. (21) In the second Srebrenica case to come to judgment, Blagojevic, the Appeals Chamber quashed a conviction for complicity to commit genocide essentially because the accused did not know of the mass executions and therefore could not have known of the...