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The Lesser of Two Evils! Genocide, Persecution and Cumulative Convictions at the International Criminal Court

Pal, Sunil (2008)
Department of Law
Abstract
This paper seeks to assess the legality of multiple convictions of different offences based on the same set of facts at the International Criminal Court, in particular genocide and persecution as a crime against humanity. The situations in which these crimes ordinarily take place are such that one is rarely dealing with a single offence, but a multitude of offences. The events that took place during the fall of the town of Srebrenica during the Bosnian war are such an example. Out of that one event where some seven thousand Bosnian Muslim men and boys were massacred, a number of offences arose. Murder, extermination, persecution (the victims were targeted based on their religion) as crimes against humanity had been committed. As had... (More)
This paper seeks to assess the legality of multiple convictions of different offences based on the same set of facts at the International Criminal Court, in particular genocide and persecution as a crime against humanity. The situations in which these crimes ordinarily take place are such that one is rarely dealing with a single offence, but a multitude of offences. The events that took place during the fall of the town of Srebrenica during the Bosnian war are such an example. Out of that one event where some seven thousand Bosnian Muslim men and boys were massacred, a number of offences arose. Murder, extermination, persecution (the victims were targeted based on their religion) as crimes against humanity had been committed. As had genocide, as the perpetrators necessarily had the intention to ethnically cleanse Srebrenica, if not the region, if not Bosnia of its Muslim population. There is an innate need for accountability where these offences are committed. One of the reasons the ad hoc Tribunals for the Former Yugoslavia and Rwanda were created was to bring some reconciliation to the victims of the conflicts that took place there, that reconciliation can only be achieved when the totality of ones conduct is recorded. Outside of any moral responsibility, however, where the facts of an incident satisfy the elements of more than one offence, there is no reason why the prosecutor may not pursue a conviction for all those crimes. Providing the most recent interpretation of the offences involved, the case law of the ad hoc Tribunals for the Former Yugoslavia and Rwanda offer a unique body of law in which to work with and are effectively the only real authority on the issue. The International Criminal Court has yet to issue a decision and the Nuremberg Court Judgement (as well as the case law of the domestic courts trying international crimes perpetrated during the Second World War), where established principles of international criminal law were first formulated and articulated, is somewhat dated given the current formulation of genocide and crimes against humanity. One should however, be mindful of the status of such judgements in international law. The decisions of the ad hoc Tribunals are not binding precedents. The ad hoc Tribunals are not bound by each other's judgements, nor is the International Criminal Court under any obligation to follow them. The International Criminal Court is a brand new court with its own mandate and is not bound by either the decisions or principles established by other courts. The decisions of the ad hoc Tribunals may however have some influential value. Article 21(2) of the Rome Statute says that the International Criminal Court can use case law, be it international or national as a means of interpretation, albeit subsidiary to the Rome Statute and customary law. The Statutes of the ad hoc Tribunals and the Rome Statute of the International Criminal Court repeat verbatim the definition of genocide that appears in the 1948 Genocide Convention. Genocide is defined as ''the intention to destroy a national, ethnic, racial or religious group, in whole or part.'' The three Statutes differ in their definition of persecution as crime against humanity. For instance, the Statute of the Yugoslav Tribunal states that crimes against humanity must be committed 'within the context of an armed conflict'&semic whereas the Rwandan Tribunal states that they must be committed on discriminatory grounds. Under the Rome Statute, crimes against humanity constitute 'a widespread and systematic attack, on a civilian population where the perpetrator has knowledge of context in which attack takes place'. In addition persecution requires proof of the following: 'an Intention to discriminate on 'political, racial, national, ethnic, religious, gender or other grounds' and that the persecutory act was 'perpetrated in connection with another crime under the statute'. The ad hoc Tribunals have dealt with the issue of cumulative convictions on numerous occasions, but have yet to issue convictions for genocide and persecution as a crime against humanity based on the same set of facts. Three tests have emerged from the jurisprudence of the ad hoc Tribunals, two from the Yugoslav Tribunal, the Kupreskic and Celebici test and one from the Rwandan Tribunal, the Akayesu test. Of the three tests, the Celebici test has emerged as the favourite. It is the only one to be cited by both Tribunals and the one cited most frequently and in the most recent judgements of both Tribunals. As a result it has become an authority on the issue. According to the Celebici test multiple convictions based on the same set of facts are permissible if each offence concerned has a materially distinct element, not contained in the other. An element would be materially distinct if it required proof of a fact not required by the elements of the other offence. If this is not satisfied then the court can only convict under the more specific offence, the offence that has the materially distinct element. The test was devised by the Appeals Chamber in the Celebici case. In that case the accused were convicted of four pairs of double convictions handed down for the act. One pair was for wilful killing as a grave breach of the Geneva Conventions and murder as a violation of the laws or customs of war. Wilful killing as a grave breach of the Geneva Conventions consists of the following: (1) death of the victim&semic (2) the intention to cause death or serious bodily injury&semic and (3) which was committed against a protected person. Murder as a violation of laws or customs of war consists of: (a) death of the victim&semic (c) committed with the intention to cause death&semic and (c) against a person taking no active part in the hostilities. The Appeals Chamber found that the requirement that the victim be a protected person is a materially distinct element, as it was not required by the elements of murder. Furthermore 'protected person' includes yet goes beyond what is meant by a 'person taking no active part in hostilities'. The definition of murder under Article 3 does not contain an element requiring proof of a fact not required by the elements of wilful killing. Therefore the conviction under the more specific offence must be retained, in this case wilful killing as a grave breach of the Geneva Conventions. Should the International Criminal Court choose to follow the case law of the Tribunals, albeit as a subsidiary means of interpretation, it may choose to follow the Celebici test when faced with the issue of cumulative convictions, based on its popularity at the ad hoc Tribunals. On its face, genocide requires proof of fewer elements compared with persecution as a crime against humanity under the Rome Statute, but some of these elements may overlap. For example the intention to destroy a national, ethnic, racial or religious group is necessarily broader then an intention to discriminate under persecution and is therefore a distinct element. However, the requirement that the perpetrator of crimes against humanity is aware of the context in which attack takes place is a distinct element. Genocide may characteristically take place in a situation of mass mobilisation or organised pogroms and the perpetrator is aware of the context in which he commits the genocidal acts, but these are evidentiary matters and not strictly speaking facts which need proving in order to establish genocide. Thus knowledge of the general policy or plan in which one's act exists is a distinct element. One must also consider the additional elements under persecution as crime against humanity, but it is clear that persecution is composed of several materially distinct elements, which require proof of facts not required by genocide and vice versa. In conclusion it is possible for the ICC to convict an accused for both genocide and persecution. (Less)
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author
Pal, Sunil
supervisor
organization
year
type
H1 - Master's Degree (One Year)
subject
keywords
International Human Rights Law
language
English
id
1555267
date added to LUP
2010-03-08 15:23:10
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2010-03-08 15:23:10
@misc{1555267,
  abstract     = {This paper seeks to assess the legality of multiple convictions of different offences based on the same set of facts at the International Criminal Court, in particular genocide and persecution as a crime against humanity. The situations in which these crimes ordinarily take place are such that one is rarely dealing with a single offence, but a multitude of offences. The events that took place during the fall of the town of Srebrenica during the Bosnian war are such an example. Out of that one event where some seven thousand Bosnian Muslim men and boys were massacred, a number of offences arose. Murder, extermination, persecution (the victims were targeted based on their religion) as crimes against humanity had been committed. As had genocide, as the perpetrators necessarily had the intention to ethnically cleanse Srebrenica, if not the region, if not Bosnia of its Muslim population. There is an innate need for accountability where these offences are committed. One of the reasons the ad hoc Tribunals for the Former Yugoslavia and Rwanda were created was to bring some reconciliation to the victims of the conflicts that took place there, that reconciliation can only be achieved when the totality of ones conduct is recorded. Outside of any moral responsibility, however, where the facts of an incident satisfy the elements of more than one offence, there is no reason why the prosecutor may not pursue a conviction for all those crimes. Providing the most recent interpretation of the offences involved, the case law of the ad hoc Tribunals for the Former Yugoslavia and Rwanda offer a unique body of law in which to work with and are effectively the only real authority on the issue. The International Criminal Court has yet to issue a decision and the Nuremberg Court Judgement (as well as the case law of the domestic courts trying international crimes perpetrated during the Second World War), where established principles of international criminal law were first formulated and articulated, is somewhat dated given the current formulation of genocide and crimes against humanity. One should however, be mindful of the status of such judgements in international law. The decisions of the ad hoc Tribunals are not binding precedents. The ad hoc Tribunals are not bound by each other's judgements, nor is the International Criminal Court under any obligation to follow them. The International Criminal Court is a brand new court with its own mandate and is not bound by either the decisions or principles established by other courts. The decisions of the ad hoc Tribunals may however have some influential value. Article 21(2) of the Rome Statute says that the International Criminal Court can use case law, be it international or national as a means of interpretation, albeit subsidiary to the Rome Statute and customary law. The Statutes of the ad hoc Tribunals and the Rome Statute of the International Criminal Court repeat verbatim the definition of genocide that appears in the 1948 Genocide Convention. Genocide is defined as ''the intention to destroy a national, ethnic, racial or religious group, in whole or part.'' The three Statutes differ in their definition of persecution as crime against humanity. For instance, the Statute of the Yugoslav Tribunal states that crimes against humanity must be committed 'within the context of an armed conflict'&semic whereas the Rwandan Tribunal states that they must be committed on discriminatory grounds. Under the Rome Statute, crimes against humanity constitute 'a widespread and systematic attack, on a civilian population where the perpetrator has knowledge of context in which attack takes place'. In addition persecution requires proof of the following: 'an Intention to discriminate on 'political, racial, national, ethnic, religious, gender or other grounds' and that the persecutory act was 'perpetrated in connection with another crime under the statute'. The ad hoc Tribunals have dealt with the issue of cumulative convictions on numerous occasions, but have yet to issue convictions for genocide and persecution as a crime against humanity based on the same set of facts. Three tests have emerged from the jurisprudence of the ad hoc Tribunals, two from the Yugoslav Tribunal, the Kupreskic and Celebici test and one from the Rwandan Tribunal, the Akayesu test. Of the three tests, the Celebici test has emerged as the favourite. It is the only one to be cited by both Tribunals and the one cited most frequently and in the most recent judgements of both Tribunals. As a result it has become an authority on the issue. According to the Celebici test multiple convictions based on the same set of facts are permissible if each offence concerned has a materially distinct element, not contained in the other. An element would be materially distinct if it required proof of a fact not required by the elements of the other offence. If this is not satisfied then the court can only convict under the more specific offence, the offence that has the materially distinct element. The test was devised by the Appeals Chamber in the Celebici case. In that case the accused were convicted of four pairs of double convictions handed down for the act. One pair was for wilful killing as a grave breach of the Geneva Conventions and murder as a violation of the laws or customs of war. Wilful killing as a grave breach of the Geneva Conventions consists of the following: (1) death of the victim&semic (2) the intention to cause death or serious bodily injury&semic and (3) which was committed against a protected person. Murder as a violation of laws or customs of war consists of: (a) death of the victim&semic (c) committed with the intention to cause death&semic and (c) against a person taking no active part in the hostilities. The Appeals Chamber found that the requirement that the victim be a protected person is a materially distinct element, as it was not required by the elements of murder. Furthermore 'protected person' includes yet goes beyond what is meant by a 'person taking no active part in hostilities'. The definition of murder under Article 3 does not contain an element requiring proof of a fact not required by the elements of wilful killing. Therefore the conviction under the more specific offence must be retained, in this case wilful killing as a grave breach of the Geneva Conventions. Should the International Criminal Court choose to follow the case law of the Tribunals, albeit as a subsidiary means of interpretation, it may choose to follow the Celebici test when faced with the issue of cumulative convictions, based on its popularity at the ad hoc Tribunals. On its face, genocide requires proof of fewer elements compared with persecution as a crime against humanity under the Rome Statute, but some of these elements may overlap. For example the intention to destroy a national, ethnic, racial or religious group is necessarily broader then an intention to discriminate under persecution and is therefore a distinct element. However, the requirement that the perpetrator of crimes against humanity is aware of the context in which attack takes place is a distinct element. Genocide may characteristically take place in a situation of mass mobilisation or organised pogroms and the perpetrator is aware of the context in which he commits the genocidal acts, but these are evidentiary matters and not strictly speaking facts which need proving in order to establish genocide. Thus knowledge of the general policy or plan in which one's act exists is a distinct element. One must also consider the additional elements under persecution as crime against humanity, but it is clear that persecution is composed of several materially distinct elements, which require proof of facts not required by genocide and vice versa. In conclusion it is possible for the ICC to convict an accused for both genocide and persecution.},
  author       = {Pal, Sunil},
  keyword      = {International Human Rights Law},
  language     = {eng},
  note         = {Student Paper},
  title        = {The Lesser of Two Evils! Genocide, Persecution and Cumulative Convictions at the International Criminal Court},
  year         = {2008},
}