Putting Peacetime First: Crimes Against Humanity and the Civilian Population Requirement

• Citation: Vol. 31 No. 2
• Publication year: 2017

Putting Peacetime First: Crimes Against Humanity and the Civilian Population Requirement

Leila Nadya Sadat

PUTTING PEACETIME FIRST: CRIMES AGAINST HUMANITY AND THE CIVILIAN POPULATION REQUIREMENT

Leila Nadya Sadat^*

ABSTRACT

Unlike the ad hoc international criminal tribunals, the International Criminal Court (ICC) may often exercise its jurisdiction in peacetime as well as during armed conflict. Article 7 of the Rome Statute, on Crimes Against Humanity, reflects this development, but does not address how to resolve the interpretive difficulties that flow from it, particularly as regards the requirement that the crime requires an attack directed against a "civilian" population. This Article analyzes Article 7's "civilian population" requirement, and argues it should be understood from the perspective of peacetime, rather than as an outgrowth of international humanitarian law (IHL). It is the first comprehensive and systematic treatment of this issue. The Article rejects ICC Chambers' reliance upon Article 50 of Protocol I as the relevant test and instead proposes a three-part inquiry to establish whether or not an individual or population is "civilian" in character: first, the situation is evaluated depending on whether it involves crimes committed during or outside of armed conflict; second, if the crimes have been committed during an armed conflict, IHL (applicable in NIAC or IAC) should apply to a limited degree as a lex specialis to assist with the determination; finally, the specific situation of the victims must be considered and not just their formal status.

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INTRODUCTION.............................................................................................199

I. THE INTERPRETATION OF THE CIVILIAN POPULATION REQUIREMENT BY THE AD HOC INTERNATIONAL CRIMINAL TRIBUNALS.......................213

A. The Civilian Population Requirement in Armed Conflict......... 214

1. The Narrowing Interpretations of the International Criminal Tribunals for the former Yugoslavia and the Special Court for Sierra Leone ....................................................................... 214

a. The International Criminal Tribunal for the former Yugoslavia ................................................................... 214
b. The Special Court for Sierra Leone ............................. 222

2. Broader but Less Influential: The Jurisprudence of the Rwanda Tribunal and the Extraordinary Chambers in the Courts of Cambodia ........................................................................... 224

a. The International Criminal Tribunal for Rwanda ....... 224
b. The Extraordinary Chambers in the Courts of Cambodia .................................................................... 226

B. The Civilian Population Requirement in Peacetime ................ 229

II. THE INTERPRETATION OF THE CIVILIAN POPULATION REQUIREMENT BY THE ICC .............................................................................................230

A. The Early Jurisprudence of the Court ...................................... 230
B. Seven Canons of ICC Treaty Interpretation ............................. 233
C. Interpreting Article 7 of the Rome Statute................................ 234

1. A Textual and Contextual Analysis of Article 7 (Canon 1) 234
2. Object and Purpose of the ICC Statute (Canon 2) ............. 236
3. The Travaux Préparatories of the Rome Statute (Canon 3)............................................................................ 238
4. Article 21(1)(b) Sources: Treaties, Customary International Law, and General Principles (Canon 4) ............................ 243

a. Treaties ........................................................................ 243

i. Development of the Law Prior to 1949 ................. 243
ii. The Geneva Conventions of 1949 ......................... 245
iii. The Adoption of Additional Protocol I.................. 247
iv. The Failed Attempt to Define "Civilian Population" in Additional Protocol II........................................... 249

b. Customary International Law ...................................... 250
c. General Principles of Law ........................................... 257

5. Construing the Provision with the Objective of Protecting the Rights of the Accused and Ensuring That the Application of the

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Statute Is Consistent with Internationally Recognized Human Rights (Canon 5) ................................................................ 259
6. Enhancing Judicial Efficiency and the Effectiveness of the ICC Trial System without Comprising the Values Expressed in Canon 4 (Canon 6) ............................................................. 261
7. Enhancing the Expressive and Normative Function of International Criminal Law by Rendering It Transparent and Comprehensible and Reducing Opportunities for Fragmentation (Canon 7)................................................... 262

CONCLUSION.................................................................................................263

Introduction

The establishment of the International Criminal Court (ICC) in 1998 worked an "uneasy revolution" in international law.¹ Although resting on the experience of the Nuremberg, Tokyo, and ad hoc international criminal tribunals,² the ICC, being both permanent and created outside the United Nations (U.N.) system—but in relationship to it—is different in nature and kind than prior international criminal tribunals. Most significantly, perhaps, is the Court's ability to exercise jurisdiction over situations taking place early in an "atrocity cascade"—that is, in peacetime prior to the onset of war.³

In some ways, this should not be surprising. International criminal law instruments are generally "peacetime" conventions,⁴ and the discipline as a whole is fundamentally concerned with the cooperation of States in the investigation and prosecution of international and transnational crimes.⁵ Yet because only a handful of international crimes have ever been made justiciable before international courts and tribunals, and these have generally been adjudicated in the context of war, there has been an understandable and growing tendency to assume international criminal law is part of the laws of war, functioning as a kind of subspecies of international humanitarian law (IHL).

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This assumption is demonstrably incorrect. Even amongst the three crimes currently justiciable before the International Criminal Court—genocide, war crimes, and crimes against humanity⁶ —two are applicable in peacetime, during which IHL does not apply.⁷ The genocide convention of 1948 envisages the possibility of genocide being committed in war or in peace in Article 1 of the text,⁸ but genocidal intent is so difficult to establish that it has been rendered relatively ineffective as a tool of prevention and punishment.⁹ Not so, however, for crimes against humanity.

Although prior to the adoption of the Rome Statute, it was not clear whether crimes against humanity could be committed in peacetime, or whether a nexus to armed conflict was required,¹⁰ this doubt was eliminated by the negotiators of the Rome Statute, with startling results: As of 2013, thirty percent of the cases brought at the ICC were "crimes against humanity only" cases, because no "armed conflict" was in play regarding either the particular crimes at issue or the situation more generally.¹¹ This is in opposition to 1-2% of the cases brought at the ad hoc international tribunals.¹² This means that the ICC can truly—and to a significant degree—exercise its jurisdiction in peacetime. This is new, and has important juridical and normative consequences.

As a legal matter, the fact that crimes against humanity law applies in peacetime suggests that the legal framework surrounding this crime needs a divorce—or at least a legal separation—from international humanitarian law. Although Article 7(1) of the Rome Statute defines crimes against humanity as the commission of certain acts when "committed as part of a widespread or

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systematic attack directed against a civilian population,"¹³ IHL provisions about when it is lawful (or not) to attack "civilians" would appear both inapplicable and confusing during peacetime, during which time every person is a "civilian." This Article is the first comprehensive effort to address this conceptual and juridical problem, proposing an autonomous meaning for the term "civilian population" in Article 7 that is both supported by and consistent with existing customary and conventional international law.

Scholars have long debated the meaning and utility of the "civilian population" requirement.¹⁴ Many have observed the difficulties of merely "transposing" IHL notions onto Article 7,¹⁵ offering instead a human rights-centered approach,¹⁶ which would be explicitly linked to human rights law and its protections, which grant positive rights to all individuals regardless of status or circumstances.¹⁷ Others have hypothesized that the "'civilian' reference serves a rational purpose, which is simply to exclude military actions against legitimate military objectives in accordance with international humanitarian

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law."¹⁸ Some of the early judgments of the ad hoc international criminal tribunals recognized this possibility, such as the Separate Opinion of Judges McDonald and Vohrah in Erdemovic, which opined that "crimes against humanity . . . constitute egregious attacks on human dignity [and] consequently affect . . . each and every member of mankind,"¹⁹ regardless of their circumstance.

As a normative matter, the question arises, what is peacetime? Although there are many possible definitions of peace,²⁰ for purposes of this Article, "peacetime" is defined in the negative—as the absence of war, or to put it another way, as the paradigm governing national and international relations in the absence of armed conflict.²¹ The traditional approach of public international law...