4. RESULTADOS Y ANÁLISIS
4.2. Entrevistas a autoridades y personalidades de Latacunga
Crimes against humanity are serious criminal acts committed during peacetime as well as
during armed conflict.43 They consist of a widespread or systematic attack against a specific
Khmer Rouge leaders. See Schabas WA Genocide in International Law: The Crime of Crimes 2 ed (Cambridge University Press Cambridge (UK) 2009) 138-139.
38
Ratner SR, Abrams JS & Bischoff JL Accountability for Human Rights Atrocities in International Law 3rd ed. (OUP New York 2009) 320-322.
39
Ibid.
40
The analysis of the genocide convention makes it clear that isolated sexual offences against members of different ethnic groups or religions cannot be defined as acts of genocide, even where the perpetrators believe that their conduct will destroy the women in whole or in part, and intend the destruction that takes place on a psychological level as well. As to what constitutes the destruction of a group, the ICTR in the Akayesu case held, among other things, that rape may constitute an act of genocide by preventing births in the group when the person raped refuses subsequently to procreate or is forced to bear the children of the enemy, and, in the same way, members of a group can be led, through threats or trauma, not to procreate. See Prosecutor v. Jean-Paul Akayesu, Case No. ICTR-96-4-T (2 September 1998) para [508]. Akayesu referred also to physical and mental harm as act of genocide which rape actually meets. See para [113].
41
Paust JJ et al. International Criminal Law: Cases and Materials (Carolina Academic Press Durham 2007) No. 772.
42
Du Plessis M & Peté S op cit (n 35) 10.
43
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civilian population.44 Paust has noted that ‘defining crimes against humanity presented one of
the most difficult challenges at Rome, for no accepted definition existed, either as a matter of
treaty or customary international law.’45
According to Gaeta, the absence of a definition is understand-able as, before this category of crimes came into legal existence, atrocities by state authorities against their own nationals were considered a sovereign matter of no concern to
third states.46 In fact crimes against humanity were unheard of prior to the two World Wars.
In order to extend the protection that the laws of war reserve to persons affected by an armed conflict, therefore, it became necessary to criminalise atrocities committed by a State against
its own nationals.47 Crimes against humanity were, therefore, linked to the situation of war
that prevailed.48 The prevailing situation of crimes against humanity will often involve the
havoc of civil strife,49 though of key importance is that the Rome Statute of the ICC50
indicates that such crimes may occur in peacetime since the chapeau element51 does not
44
Human Rights Watch World Report 2010 (Human Rights Watch 2010) 31.
45
Paust JJ et al. International Criminal Law: Cases and Materials (Carolina Academic Press Durham 2007) No. 767.
46
Gaeta P ‘International Criminalisation of Prohibited Conduct’ in Cassese A (ed) The Oxford Companion to International Criminal Justice (OUP New York 2009) 63-73, 66.
47
Akhavan P ‘Reconciling Crimes Against Humanity with the Laws of War: Human Rights, Armed Conflict, and the Limits of Progressive Jurisprudence’ 2008 (6) Journal of International Criminal Justice 21-37; Ratner SR, Abrams JS & Bischoff JL Accountability for Human Rights Atrocities in International Law 2d ed. (OUP Oxford 2001) 10.
48
Ibid.
49
Osiel M Making Sense of Mass Atrocity (Cambridge University Press New York 2009) vii.
50
Rome Statute of the International Criminal Court 17 July 1998 (Entry into force 2 July 2002) - 2187 U.N.T.S. 38544.
51
By chapeau element must be understood a specific requirement that must be met or otherwise it must be considered that the crimes are not proved. The concept ‘chapeau’ is widely used in international law, especially international criminal law, even when applied by domestic courts. With respect to war crimes in the Rome Statute (Article 8), it means all war crimes do not fall within the jurisdiction of the ICC, which deals only with the gravest of those crimes. Some other crimes, therefore, that exist in customary international law or those of Geneva Conventions not incorporated in the Rome Statute are still war crimes but not of ICC competence. For general and other use of the concept ‘chapeau’ in international legal discourse, see Report of the International Law Commission on the work of its forty-eighth session, Yearbook of the International Law Commission (UN. Doc. A/CN.4/SER. A/1996/Add. l (Part 2)); Stahn C ‘Complementarity, Amnesties and Alternative Forms of Justice: Some Interpretative Guidelines for the International Criminal Court’ 2005 (3) Journal of International Criminal Justice 695-720, 713; Jia BB ‘The Doctrine of Command Responsibility in International Law 2004(3) Chinese JIL 1-42, 30-31; Akhavan P op cit (n 47) 29; Cullen A ‘The Definition of Non-International Armed Conflict in the Rome Statute of the International Criminal Court: An Analysis of the Threshold of Application Contained in Article 8(2)(f)’ 2008 (12) Journal of Conflict & Security Law 419–445, 424 et passim; Beruto GL (ed) International Humanitarian Law Human Rights and Peace Operations, 31st Round Table on Current Problems of International Humanitarian Law Sanremo, 4-6 September 2008 (The International Institute of Humanitarian Law In collaboration with the International Committee of the Red Cross); Cryer R ‘The Definitions of International Crimes in the Al Bashir Arrest Warrant Decision’ 2009 (7) JICJ 283-296, 289; Akhavan P ‘The Crime of Genocide in the ICTR Jurisprudence’2005(3) JICJ 989-1006, 992; Hildering A ‘International criminal responsibility for abuse of power?’ 2007 (3) ISYP Journal on Science and World Affairs 15-28; Darcy S ‘Prosecuting the War Crime of Collective Punishment: Is It Time to Amend the Rome Statute?’ 2010(8) JICJ 29-51, 46; Huisman W and van Sliedregt E ‘Rogue Traders: Dutch Businessmen, International Crimes and Corporate Complicity’ 2010(8) JICJ 803-828, 808; van den Herik L ‘A Quest for Jurisdiction and an
138
require a nexus between this category of crimes and an armed conflict.52 Article 7 of the
Rome Statute of the ICC codified the existing customary law of crimes against humanity. The
elements of a crime against humanity are the following:53
(a) One of the prohibited acts listed in paragraph 1 of the article; (b) Committed as part of a widespread or systematic attack;
(c) Pursuant to or in furtherance of a state or organisational policy54; (d) Directed against any civilian population; and
(e) With knowledge of the attack.
It is obvious from the definition of a crime against humanity that this category of crime encompasses acts that are inhumane in nature and character, that cause great suffering or
serious injury to body or to mental or physical health.55 Such acts are committed as part of a
widespread or systematic attack against members of the civilian population, on one or more
discriminatory grounds, namely, national, political, ethnic, racial, or religious grounds.56 Acts
not proven to fulfil such features cannot be considered as crimes against humanity.57
Clarifying the term ‘attack’, the ICC Statute refers to the multiple commissions of acts referred to in Article 7(1) of the Statute and stresses the pursuance to a state or organisational
policy.58 It must, however, be borne in mind that the requirement that the attack must have a
widespread or systematic nature does not mean that a crime against humanity cannot be perpetrated by an individual who commits only one or two of the designated acts (murder, extermination, torture, rape, political, racial, or religious persecution, and other inhumane acts), or who engages in only one such offence against only one or a few civilians. What is important to note is that as long as the individual’s act or acts are part of a consistent pattern
Appropriate Definition of Crime Mpambara before the Dutch Courts’ 2009(7) JICJ 1117-1132,1123. Article 7 of the Rome Statute of the International Criminal Court lists acts that constitute crimes against humanity when committed as part of a widespread or systematic attack directed against any civilian population.
52
Paust JJ et al. International Criminal Law: Cases and Materials (Carolina Academic Press Durham 2007) No. 767; Quénivet NNR Sexual Offenses in Armed Conflict & International Law (Transnational Publishers New York 2005)113. See also Seibert-Fohr A Prosecuting Serious Human Rights Violations (OUP Oxford 2009) 3.
53
Rome Statute -Addendum: Finalized Draft Text of the Elements of Crimes (U.N. Doc. PCNICC/2000/INF/3/Add.2 (6 July 2000).
54
Article 7 (2) (a) ICC Statute.
55
Article 7(1) (k) of the Rome Statute.
56
Articles 7(1) (h) of the Rome Statute.
57
Du Plessis M & Peté S‘Who Guards the Guards? The ICC and Serious Crimes Committed by United Nations Peacekeepers in Africa’ 2004 (13) African Security Review 5-17, 10.
58
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of offences by a number of persons linked to that offender, he or she may be properly charged
with crimes against humanity.59
In striving towards understanding whether these crimes can be committed by peacekeepers, and whether their criminal acts can qualify as crimes against humanity, it is important to try to
analyse briefly some of the elements mentioned above, especially the chapeau element.
For an act to qualify as a crime against humanity, the act must have been committed as part
of a widespread or systematic attack.60 This means that the conduct targets a multiplicity of
victims but also the existence of some kind of preconceived plan or policy by government, an
organisation or a group whose members execute the plan or policy.61 The victim of the crime
is understood as a group62– a civilian population independently of the particular members
who directly bear the brunt.63 The group becomes the victim of acts flowing from an
organised group of perpetrators. When the Rome Statute requires the existence of acts pursuant to, or in furtherance of, a state or organisational policy, it means that, even though
executors are individuals, the crime is perpetrated by a collective, by a group (with a State or
organisational element).64
As has been shown in the study of the alleged crimes by peacekeepers in the domestic law, most of their misconduct consists of sexual crimes, although they may be found guilty of other crimes as well, such as assault or killing. The question is whether these crimes can
59
Zwanenburg M ‘The Statute for an International Criminal Court and the United States: Peacekeepers under Fire’ 1999(10) EJIL 124-143, 135, footnote 61 where it is pointed out that the investigations against peacekeepers (for instance the investigation into the behaviour of Italian peacekeeping troops in Somalia) routinely underline the isolated nature of peacekeepers’ criminal conduct.
60
Akhavan P op cit (n 47) 24-25.
61
See commentary on Article 18 of the Draft Code of Crimes against the Peace and Security of Mankind: Report of the International Law Commission on the work of its forty-eighth session (6 May-26 July 1996)Yearbook of the International Law Commission 1996 vol. II (part two) U.N. Doc. A/CN.4/SER.A/1996/Add.l (Part. 2). In the Rome Statute this contextual element is not insisted upon, certainly to differentiate from genocide and to ensure that not any multiplicity of victims would entail a charge for crime against humanity. Thus, ‘Instead of insisting upon a State plan or policy, the contextual element for crimes against humanity comes to depend solely on their “widespread or systematic” nature, but this has the potential to make crimes against humanity applicable to serial killers, mafias, motorcycle gangs, and small terrorist bands.’ See Schabas WA ‘State Policy as an Element of International Crimes’ 2008 (98) The Journal Of Criminal Law & Criminology 953-982, 960.
62
The notion of group victims should not lead to confusing crimes against humanity with acts of genocide. Whereas the former necessitate a large-scale or systematic pattern, the latter necessitate a special intent to destroy a protected group. See Seibert-Fohr A Prosecuting Serious Human Rights Violations (OUP Oxford 2009) 293.
63
Osiel M op cit (n 49) 5.
64
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constitute crimes against humanity.65 To explain the scope of the widespread and systematic
element of the crime, Quénivet writes that for a given act, such as rape, to qualify as a crime
against humanity, it should be committed or approved of by the government [or a de facto or
organisational authority] and be of a mass, widespread and/or systematic nature.66 She
effectively explains ‘widespread’ to mean criminal acts directed against a multiplicity of victims and ‘systematic’ to mean that the same criminal acts are performed pursuant to a
preconceived plan or policy of the state or of the organisation.67
The requirement of policy is not an element per se of the crime, but highly relevant to
establishing the materiality of the crime.68 It is evidentially relevant, especially in regard to
rape as a crime against humanity.69 If rape is perpetrated in a certain context of crimes against
humanity, however, for instance ‘ethnic cleansing’ pursuant to a plan or policy, then the
requirement is met accordingly in respect of rape.70 The lack of such a policy or contextual
element may imply that the act is treated as an ‘ordinary’ crime. In the Akayesu case it was
stressed that this policy must not necessarily be adopted formally as the policy of a state.
There must, however, be some kind of preconceived plan or policy.71 This will obviously not
hold true for peacekeepers.
It must be noted, therefore, that crimes committed by peacekeepers can rarely amount to crimes against humanity. Article 7 of the Rome Statute of the International Criminal Court lists the requirements needed to be met for each and every crime against humanity of sexual
violence:72
(1) the perpetrator committed an act of a sexual nature against one or more persons or caused such person or persons to engage in an act of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person’s or persons’ incapacity to give genuine consent;
65
Article 7(1) (g) of the ICC St.
66
Quénivet NNR Sexual Offenses in Armed Conflict & International Law (Transnational Publishers New York 2005) 129.
67
Ibid.
68
Ibid 133 and Prosecutor v. Kunarac, Kovac and Vukovic, ICTY, A.C., IT-96-23 and IT-96-23/1 (June 12, 2002) para [98].
69
Ibid.
70
Quénivet NNR Sexual Offenses in Armed Conflict & International Law (Transnational Publishers New York 2005) 136.
71
The Prosecutor v. Jean-Paul Akayesu, case No. ICTR-96-4-T (2 September 1998) para [580].
72
141
(2) Such conduct was of gravity comparable to other offences in article 7(1) (g);
(3) The perpetrator was aware of the factual circumstances that established the gravity of the conduct;
(4) The conduct was committed as part of a widespread or systematic attack directed against a civilian population; and
(5) The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.
The latter element will not be easily be established regarding peacekeepers because, for a conduct to meet such a requirement, a state or organizational involvement must be proved, or it must be established that the individual perpetrator acted in furtherance of a state or
organizational policy.73 It is difficult to believe that the UN, as an organization in command of
the UN forces, would devise a policy that would allow its forces to commit crimes against humanity. It is actually absurd to imagine that a State may send its troops on a peace mission and instruct them to commit offences, whether such offences amount to crimes against
humanity or not.74 As was noted with respect to the crime of genocide, therefore, criminal acts
by peacekeepers cannot be construed to be crimes against humanity owing to the lack of state
or organizational policy.75 The last possibility relating to core international crimes which
needs to be considered in true context is the category of war crimes.
73
See Elements of the Crimes, Introduction to Article 7 of the Rome Statute, ICC-ASP/1/3; Schabas WA ‘State policy as an Element of International Crimes’ 2008 (98) Journal of Criminal Law & Criminology 953-982, 965. See also O’Brien M National and International Criminal Jurisdiction over United Nations Peacekeeping Personnel for Gender-Based Crimes Against Women (unpublished doctoral thesis University of Nottingham, July 2010) 240 et seq.; Sweetser C Ensuring Accountability of Peacekeeping Personnel for Human Rights Violations (Center for Human Rights and Global Justice Working Paper No. 16) 2007, 6.
74
Du Plessis M & Peté S op cit (n 35) 11.
75
Under the Rome Statute provisions, for peacekeepers to be prosecuted they need to be found ‘to have been part of a concerted and organized effort to rape or otherwise sexually abuse the local population with the goal of harming the population as a whole.’ See Harrington AR Victims of Peace: Current Abuse Allegations against U.N. Peacekeepers and the Role of Law in Preventing them in the Future (The Berkeley Electronic Press Paper 630- 2005) 22, http://law.bepress.com/expresso/eps/630 [last accessed 26 October 2012]. Even if some allegations have been considered widespread (see Zeid Report A Comprehensive Strategy to Eliminate Future Sexual Exploitation and Abuse in United Nations Peacekeeping Operations (UN. Doc. A/59/710 of 24 March 2005) para 8, therefore, there is not a UN protocol or plan to perpetrate such crimes against the local populations in the mission areas (Harrington AR op cit (n 75) 22). For contra argument, see Hyde HJ United Nations Organization Mission in the Democratic Republic of Congo: A Case for Peacekeeping Reform (House of Representatives, Subcommittee on Africa Global Human Rights and International Operations- Committee on International Relations Washington DC March 1, 2005) 7: A summary of the report of the OIOS, released this past January, mentioned that interviews with women and girls in the Congo provided descriptions of some of the sexually explicit encounters with peacekeepers, which included sex in exchange for food or small amounts of money. This is terrible. This kind of behaviour is deplorable and morally reprehensible for the very people who are supposed to protect civilians – particularly women and children, the most vulnerable among us – actually to actually their responsibilities and become the actual perpetrators of crimes against humanity itself.
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