Abhimanyu George Jain is a graduate of the National Law School of India University (NLSIU), Bangalore, India where he developed a strong interest in public international law. In this post, Abhimanyu shares with us his thoughts on the expansion of the use of “crimes against humanity” in the context of the Anders Breivik case and the possibility of prosecuting the Pope.
(Ab)using International Law: Over-Extending the use of Crimes Against Humanity
Exhorting his generals to all sorts of depravities against the people of Poland, Adolf Hitler, once famously said, “who…speaks today of the annihilation of the Armenians?”
Fortunately for us, we live today in a world where we do “speak of the Armenians”. Today we talk in real terms of the possibility and desirability of prescribing and enforcing individual responsibility for the most shocking human acts; we talk of engineering the reunification of shattered societies into organic wholes through transitional justice.
As with any other developing skill and ability, however, familiarity breeds contempt, and contempt, misuse. The misuse I speak of is the inappropriate stretching of the concepts of international criminal law to situations and actions where they have no real role. In particular, I refer to two recent proposals concerning the application of crimes against humanity as defined under the Rome Statute – the first, in the case of Mr. Anders Behring Breivik, the Norwegian militant extremist; the second, in the case of he Vatican, as recently suggested by the Centre for Constitutional Rights (CCR). To be clear from the outset, neither of these proposals has even a reasonable chance of success. They do, however, represent the thoughts and actions of some academics and practitioners, and represent to some extent current understandings of these concepts.
I shall first briefly discuss these proposals, and then explain my grouse against them.
In the case of Mr. Breivik, news reports have suggested that Norwegian prosecutors were contemplating charging him with crimes against humanity for his recent militant actions. For certain obvious reasons, chiefly, the complete inapplicability of the international concept of crimes against humanity, this proposal was abandoned. First, the international concept of crimes against humanity as defined in Art. 7 of the Rome Statute of the ICC requires a ‘widespread or systematic attack’, which these attacks were not. Second, Art. 7 requires the perpetrator to be acting pursuant to an ‘organisational plan or policy’, which again was not the case. For an excellent analysis of this proposal, see William Schabas’ blog post, here.
The third concerns the not particularly novel suggestion that Vatican officials be tried under international criminal law for their role in covering up instances of sexual abuse by Catholic priests. In the latest such attempt, the CCR, acting on behalf of the Survivors’ Network of those Abused by Priests (SNAP), has requested the ICC’s Prosecutor to exercise his propriu motu authority under Art. 15 of the Rome against high-level officials at the Vatican. Again, this does not meet the definitional requirements of crimes against humanity. Post facto concealment, while definitely deplorable, does not meet the requirement of being ‘an attack directed against any civilian population’, ‘pursuant to or in furtherance of a State or organizational policy to commit such attack’. It seems quite clear that there is a definite requirement of overt involvement and control. This very basic objection is supplemented by reasonable questions concerning the authority of the ICC over the Vatican, a non-State entity which is not party to the Rome Statute. For an excellent analysis of the legal infirmities of this move, see Dov Jacobs’ blog post, here.
It might reasonably be asked: so what if it is a stretch? Reasonably, is it such a problem if these concepts are being adopted to the extent that efforts are being made to extend their application to other situations? Doesn’t this in some way represent an incorporation of international legal norms into municipal legal practice and everyday legal concerns, and, to that extent, an internalisation of international law?
This is undoubtedly true. The increasing popularity and acceptance of these concepts and their meaning is definitely desirable. But beyond this superficial gain, I have three major problems.
The first is trivial, but a valid legal concern nonetheless. This relates to the distortion of the contents of these concepts, and the subsequently flawed process of legal characterisation. In other words, these legal concepts don’t fit here, and their forced extension is no more than an incorrect application of the law. Many heinous, depraved acts have been committed in each of these instances. But the legal concepts proposed to be applied in response just don’t fit. Mr. Breivik and the Pope have not committed crimes against humanity. The application of these legal concepts to these incidents is incorrect as a matter of legal classification.
International crimes do not, per se, identify new crimes. Rape as a war crime or a crime against humanity or as part of a genocidal campaign is no different from rape in municipal law. It is still rape (subject of course to variations in legal definitions across jurisdictions, and assuming, not unreasonably, the presence of a common core of elements to the crime of rape across jurisdictions). It is in its perpetration in the course of an armed conflict and on a large scale, or in an organised manner and on a large scale, or as part of a campaign to obliterate the existence of a particular group, that rape acquires the hues of an international crime. In very plain terms, international crimes are ordinary crimes but at a much more heinous level. This is the rationale underlying international crimes – crimes so heinous that their effect resonates across borders, and against which all of mankind has an interest in acting.
International crimes were deliberately intended and created to cater to only the apex of the pyramid that comprises undesirable human activity. For ordinary crimes, there are ordinary, domestic laws. For extraordinary crimes, there are extraordinary international laws.
In this context, the stretching of these international concepts to cover undesirable domestic acts dilutes the gravity and the ‘shock value’ associated with these concepts. This ‘shock value’ is important, because often responses to real situations of this sort require concerted international action. Diluting the gravity of these concepts dilutes the possibility of such action. This is the real problem with this indiscriminate usage, not the incorrect application per se (setting aside formalistic legal concerns). At the end of the day, Mr. Breiviks’s actions demand justice just as much as the Bosnian genocide. The problem is that Mr. Breivik can be brought to justice in any one of several ways. But there are only limited international tools to redress the Bosnian genocide. The ‘shock value’ of these international tools should be preserved for international situations; it should not be abused to generate publicity for other crimes.
My third problem concerns the obfuscation of these concepts. As I have already mentioned, the utility of these concepts lies to a great extent in their ability to instigate concerted international action. Their indiscriminate misuse in any and every situation can only cloud these concepts; it should further be noted here that these concepts, as a necessary function of international law in general, are already complex and pulled in multiple directions by the requirements of adherence to state practice. For as prominent a concept as ‘crimes against humanity’, it is still possible to identify differences in the Rome Statute of the ICC and the Statute of the ICTY. It is, in my opinion, undesirable to add to this confusion through the uninhibited and activist modification of these international concepts.
In summing up, I would not advocate the undue restriction of these international law concepts. They must be allowed to serve their intended purpose, and they must be allowed to grow beyond that as well. For an example of a very sound extension of the concept of ‘crimes against humanity’ to the Somalian famine, see this post on this blog, or this interesting suggestion to borrow from transitional justice mechanisms in framing a response to the recent London riots. Such extension must, however, respect the contents of these concepts, their intended purpose, and their scope for fulfilling those purposes.