King’s College London – The Dickson Poon School of Law; King’s College London
June 1, 2000
International and Comparative Law Quarterly, Vol. 49, pp. 578-598, 2000
King’s College London – The Dickson Poon School of Law; King’s College London
June 1, 2000
International and Comparative Law Quarterly, Vol. 49, pp. 578-598, 2000
Date of document: 27 November 2006
Filed on behalf of the Plaintiff by:
61-63 Carrington Street
Adelaide South Austrlia 5000
Ph: (08) 8237 0584
Mobile: 0415 668 732
Fax: (08) 8237 0555
Date and time of filing or transmission: 27 November 2006
I, MICHAEL ANDREW HOURIGAN Lawyer of 61-63 Carrington Street Adelaide 5000 in the State of South Australia Solicitor MAKE OATH AND SAY as follows:
1 I am a qualified legal practitioner in the State of South Australia. I was also a former police detective before completing a law degree in 1995 after which time I took up a post as a Crown Prosecutor with the Director of Public Prosecutions (D.P.P. Adelaide).
2 In April, 1996 I left the D.P.P. in Adelaide and took up a position as an investigator with the International Criminal Tribunal for Rwanda.
3 Soon after my arrival in Rwanda I was put made a team leader in charge of a team consisting of about 20 members and the team was to be known as ‘the National Team’.
4 I was directed by Judge Richard Goldstone (the then Chief Prosecutor) and Judge Honoré Rakotomana (the then ICTR Prosecutor) and Mr. Alphonse Breau (the then Director of Investigations) to focus my teams investigations on the following matters:-
4.1. investigate the criminal conduct of Colonel Theoneste Bagosora and then locate and arrest him;
4.2. investigate the criminal conduct of Colonel Anatole Nsengiyumva and then locate and arrest him;
4.3. Investigate the murder of thousands of Rwandan elite in the first days of the genocide by the Rwandan Presidential.
4.4. identify the person(s) responsible for the fatal rocket attack on 6 April 1994 killing President Habyarimana and all others on board;
5 Together with my investigators we conducted investigations into these matters throughout the next year. During the course of 1996 I was called upon to brief Judge Goldstone and then his replacement Judge Louise Arbour and other senior prosecutors on the progress of our investigations into Bagosora, Nsengiyumva, the Presidential Guard and the rocket attack upon President Habyarimana’s aircraft.
6 At no time did Judge Goldstone, Judge Arbour or any other member of the ICTR ever indicate to me that our investigations into the downing of the President Habyrimana’s aircraft were outside the ICTR mandate. On the contrary, it was made clear to me that our investigations into the rocket attack upon the President’s aircraft was an act of international terrorism which clearly fell within the ICTR statute Article 4 Violations of Article 3 common to the Geneva Conventions:-
Article 4: Violations of Article 3 common to the Geneva Conventions and of Additional Protocol II
The International Tribunal for Rwanda shall have the power to prosecute persons committing or ordering to be committed serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977. These violations shall include, but shall not be limited to:
a) Violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;
d) Acts of terrorism;
7 I am pleased to say that the National Team was successful and we achieved the following results:-
7.1. Located, arrested and charged Colonel Theoneste Bagosora with Genocide and Crimes Against Humanity;
7.2. Located, arrested and charged Colonel Anatole Nsengiyumva Genocide and Crimes Against Humanity;
7.3. Gathered evidence against senior members of the Presidential Guard in relation to the killing of key Rwandan citizens, including but not limited to, UNAMIR-protected VIPS Justice Joseph Kavaruganda, (President of the Constitutional Court) and Vice President Lando Ndasingwa (the head of the Parti liberal);
7.4. In late January or early February 1997 members of the National Team were approached by three (3) informants (either former or serving member of the R.P.F.) claiming direct involvement in the 1994 fatal rocket attack upon the President’s aircraft. Their evidence specifically implicated the direct involvement of President Paul Kagame, members of his administration and military. The informants also advised that the Kagame administration was actively involved in covert operations aimed at murdering high profile expatriate Rwandans – once such murder was the death of Seth Sedashonga in Nairobi.
8 With respect to the highly sensitive information from the three informants regarding the plane crash I immediately informed my Commander Jim Lyons. My Director Mr. Alphonse Breau was out of the country and I arranged for him to be told by telephone.
9 The information from the sources was very detailed and seemed very credible. I was very concerned about the sensitivity of the information and arranged for an urgent ‘secure’ telephone call to Judge Arbour.
10 Commander Jim Lyons and I attended at the US Embassy in Kigali and I made a call to Judge Arbour at the US Embassy in the Hague using an encrypted (‘secure’) STU III telephone. I informed Judge Arbour in considerable detail about the information implicating President Kagame. She was excited by the break through and advised me that the information corroborated some other information she had just learnt from Alison Des Forge the week before. At no time did she suggest that our investigations were improper. On the contrary, I would describe her mood as upbeat and excited that at last we were making significant progress into the events surrounding the plane crash.
11 Judge Arbour was concerned about the safety of the informants and my men. I advised her that the informants’ identities had been kept secure and if she so directed me I would arrange for my investigators involved in the plane crash to leave Rwanda. She directed that my investigators should leave and I agreed to have them travel from the country on suitable inquiries inNairobi. As for me I declined to leave Rwanda and advised her that I wanted to stay with my team and assist them complete other important investigations. She consented to this but asked me to keep in touch with her while she considered what to do with this sensitive information.
12 During the next week I was directed by senior members of the UN in Kigali that I was required to travel to the ICTY in the Hague in order to meet with Judge Arbour and brief on her on our investigations in the rocket attack upon President Habyarimana’s aircraft.
13 Some days later I was approached at the ICTR headquarters in Kigali by Mr. Michael Hall, UN Deputy Security (NY). He advised me that I would be flying to Arusha the next day on the ICTR aircraft and from there board an international KLM flight to Amsterdam. Mr. Hall asked me to give him any information that I had on air crash and he would convey it to the airport in a UN diplomatic pouch. I then gave Mr. Hall a single floppy disc containing a memorandum I had prepared for Judge Arbour.
14 The next day Mr. Hall conveyed me to the Kigali airport where I checked in for the UN flight. There Mr. Hall and I were told that the flight was overbooked and that I could not to Arusha. Mr. Hall became agitated and told the UN flight officer that the UN Secretary General Mr. Kofi Annan had personally ordered my attendance in Arusha for an international connection the next day. As a consequence I was given a seat on the UN flight and flew to Arusha.
15 The next day I flew to the Hague and over-knighted in a hotel near the ICTY.
16 The following morning I met with Mr. Al Breau and briefed him on the information concerning the plane crash. Together we discussed forming a special ICTR investigations unit based outside of Kigali to investigate the plane crash.
17 Following breakfast Mr. Breau and I attended at the ICTY and met with Judge Arbour. Also present was Mr. Mohammed Othman, Acting ICTR Prosecutor.
18 I briefed Judge Arbour on the informants and their information regarding the involvement of President Kagame and members of the RPF in the downing of President Habyrimana’s aircraft.
19 I presented her with a copy of a memo I had prepared entitled ‘Secret National Team Inquiry – Internal Memorandum’ and this document which is undated is attached to this statement. This document detailed the information provided by the three informants.
20 To my surprise Judge Arbour was aggressive and questioned me about the source of the information regarding the informants and the quality and potential reliability of their information. I advised her that the information was given to me by members from my team – the National Team. Those members were Amadou Deme and Peter Dnistriansky. I advised her that I held both investigators in the highest regard. I did say that I was not able to provide any advice as to the reliability of their information as it had not been tested. However, I did suggest that it was very detailed and this is itself meant that it could be subjected to considerable forensic examination.
21 Mr. Al Breau also expressed his strong view that both Amadou Deme and Peter Dnistrianksy were highly effective and reliable men.
22 Judge Arbour then advised me that the National Team investigation was at an end because in her view it was not in our mandate. She suggested that the ICTR’s mandate only extended to events within the genocide, which in her view began ‘after’ the plane crash.
23 I was astounded at this statement. I pointed to the temporal mandate of the ICTR being 1 January 1994 until 31 December 1994 and this clearly covered the time of the plane crash. I also addressed the ‘terrorism’ and ‘murder’ provisions of the ICTR statute.
24 More particularly I also told her that this was the first time she had ever suggested that this was outside the ICTR mandate. I reminded her that I had personally briefed her before about our investigations into the plane crash and that she had never ever expressed a view that this matter should be part of an ICTR inquiry.
25 I expressed my strong view to her that these Rwandan informants were courageous and were deserving of our protection. I cautioned her that the UN had a history of abandoning informants in Rwanda and I specifically reminded her of the UN’s abandonment of Jean Pierre Turatsinze in 1994.
26 Judge then became hostile and asked me if I was challenging her authority to direct to end our investigations into the plane crash.
27 I told her that I was not questioning her authority only her judgement. I informed her that I was her servant and I would obey her direction.
28 Judge Arbour then asked me if the memo that I had prepared for her was the only copy. I told her that it was and she said she was pleased to hear that and placed in her office filing cabinet.
29 She then asked me to leave the room.
30 I was extremely concerned at Judge Arbour’s decision and felt that it was wrong both in law and policy.
31 I returned to Kigali and a short time later resigned from the ICTR.
32 After my resignation from the ICTR I was offered a position as an investigator with the UN’s Office of Internal Oversight Services (OIOS) in New York. Soon after taking up my appointment I was asked to provide OIOS investigators investigating corruption within the ICTR with a statement re my service in Rwanda for the ICTR.
33 On 1 August 1997 I prepared an internal memorandum detailing various issues which I felt lay behind some of the difficulties with the ICTR. A copy of this memorandum is attached here.
34 The OIOS leadership were not at all interested in the memorandum and they expressed their concern at some of the contents of the document implicating the Secretary General in some of the serious events inRwandain1994.
35 I completed six months with OIOS and resigned.
36 I feel that unknown persons from within the UN leadership and possibly elsewhere pressured Judge Arbour to end the National Team’s investigations into the shooting down of President Habyarimana.
37 Following my resignation my National Team was dismembered – the National Team investigations into the plane crash were brought to an end.
38 I have suffered at the hands of Judge Arbour and the UN because my career with the ICTR was brought to an untimely and ignominious end. I was proud of serving with the ICTR but I felt that I could not work for Judge Arbour when, in my view, she acted for personal reasons against the interests of the ICTR, the UN and world community which we served.
39 I know the facts deposed to herein to be true of my own knowledge, information and belief except where otherwise plainly appears.
To a crowded courtroom on the late afternoon of November 25, presiding Judge Lamin Mohd Yunus announced the verdict by an international panel of seven jurists:
“The Tribunal is satisfied, beyond reasonable doubt, that the first defendant, (General) Amos Yaron, is guilty of crimes against humanity and genocide, and the second defendant, the State of Israel, is guilty of genocide.”
The landmark ruling against Israel for its genocide against the Palestinian people rendered by the Kuala Lumpur War Crimes Tribunal is significant for several reasons:
– In contrast to other non-official courts of conscience on Palestinian rights, for example, the Russell Tribunal on Palestine (New York 2012), the prosecution in Kuala Lumpur took a step beyond war crimes and crimes against humanity to the higher and broader charge of genocide.
– The decision was rendered during the ongoing commission of the alleged crime by the defendant, rather than after the fact as in earlier genocide cases.
– Instead of limiting its ruling to individuals who ordered genocidal actions, the jurists also charged the state as a defendant.
– As a consequence, this case breaks the tradition of immunity of nation-states from criminal prosecution under international law.
– The decision introduces a legal basis for international action to protect minorities from genocide as a lawful alternative to the current response of so-called humanitarian intervention, invasion, occupation and regime change, which have often been as illegitimate and more destructive, and in some cases as genocidal as the original violation being punished.
The Kuala Lumpur Tribunal based its momentous decision on the 1948 Genocide Convention, which prohibits and punishes the killing, causing of harm and deliberate infliction of conditions of life calculated to bring about the physical destruction of a group of people, targeted for their ethnicity, religion or race. In instances of genocide, these criminal acts are done with the specific intent of destroying as a part or in whole of the targeted group, as in this plight the Palestinian people.
The defendants, Gen. Yaron and the Israeli State , through its representatives, refused to accept the Tribunal summons and appear in court.
Prominent Israeli legal scholars also refused invitations to serve as defense counsel. The Tribunal therefore appointed an Amicus Curae (defense counsel, referred to by the Latin term for “friends of the court”), including attorneys Jason Kay Kit Leon, Larissa Cadd, Dr. Rohimi Shapiee and Matthew Witbrodt, to defend the accused. Even absent Israeli participation, the defense proved to be forceful and often made heated remarks in Israel’s defense, especially during the cross-examinations of expert witnesses.
Why Not New York , London , Paris or Berlin
One point to note is that the sponsoring Kuala Lumpur Commission on War Crimes and its associated international Tribunal is unrelated to Malaysia and its legal system, aside from the participation of some Malaysian jurists and citizens in its proceedings. Malaysian laws are in many areas quite different from and sometimes in diametric opposition to the legal opinions of the international Tribunal. The independence of this “court of conscience” allows an approach to international law unconstrained by local norms, but this also means that the Tribunal lacks an enforcement capability.
That the first-ever Tribunal to prosecute Israel for genocide was initiated in Southeast Asia offers some indication of the continuing sensitivity within the traditional “center” of international law, Western Europe and North America, toward the circumstances behind Israel’s creation.
The Kuala Lumpur proceedings are bound to raise controversy and discomfort, especially among a reluctant West, since the historical motive behind creating a modern Jewish state in 1948 was largely a response to the abandonment of European Jewry to the pogroms and extermination program of the Third Reich, which in its early stages went unopposed by Western governments and prominent opinion leaders in the Atlantic community.
The courage to finally confront Israel after nearly seven decades of eviction and merciless brutality against the Palestinian people was summoned not by the Atlantic community but in faraway Southeast Asia , where a law case could be pursued with critical distance, logical dispassion and an absence of historical complicity. In short, an evidence-based fair trial found Israel to be guilty of genocide.
Why then was Israel singled out by the Kuala Lumpur War Crimes Commission on genocide charges before its Tribunal, when many other states have gone unpunished? Chief prosecutor Gurdial Singh explained:
“Other settler states, for example Australia, have offered compensation and apologized for the dispossession and harm to their indigenous populations, while Israel remains unapologetic and continues its campaign of destruction against Palestinians and to make their conditions unlivable inside and outside its borders.”
In contrast with previous special courts involving genocide charges, this Tribunal left the time frame of events open-ended, by starting just before the creation of the State of Israel until the present and, presumably, into the future until Israel ceases its expansionist campaign against the Palestinians and offers instead justice and reconciliation. By comparison in prior cases invoking the Genocide Convention, including those against former Yugoslavia, Rwanda, Cambodia and Sierra Leone, the mass killings of civilians were perpetrated within a short time-frame by political leaders of the then-governing regime or by a major political faction.
The Kuala Lumpur Tribunal asserted that the modern Jewish state, in contrast to other cases, had since even before its inception pursued a genocidal program as a consistent feature and indeed a foundation of state policy. Therefore, genocide in the Israeli case cannot be solely attributed as the isolated action of a leader, political party or elected government but remains the responsibility of the state itself.
Genocide as Response
The specific intent of Israeli state policy, since even before the founding of Israel, was discussed in a live-video transmission by expert witness Ilan Pappe, an Israeli historian at University of Exeter in the UK and the director of the European Centre for Palestine Studies. His research has revealed that a planning group of top-ranking Jewish military leaders in the Haganah militia, led by David Ben Gurion (who later became Israel’s first prime minister) devised an ethnic-cleansing program to rid the future Israel of its Arab predecessors. Called Plan Dalet (the letter “D” indicating the fourth plan of a colonialist agenda) was to be activated as soon as the British suspended the Palestine Mandate.
With the declaration of Israeli statehood in 1948, a coordinated armed campaign by Israeli military forces and paramilitary units against hundreds of Palestinian urban neighborhoods and rural villages led to the flight of an estimated 700,000 refugees from Palestine and parts of neighboring Trans-Jordan, including Jerusalem . Although the Israeli intent was intended to intimidate the Palestinians into relocating outside the borders, but before long village populations that refused to flee were mass murdered.
The forcible deportation of indigenous inhabitants from their homes and land was a criminal act of ethnic cleansing, Pappe said. That policy, however, soon metamorphosed into a systematic campaign to destroy Palestinians, that is, genocide. Under cross-examination by defense team, the historian explained, that as an Israeli citizen and son of Jewish refugees who escaped Nazi-ruled Germany , it is morally, ethically and historically inconsistent to condemn the genocide against Jews while endorsing a new one against Palestinians.
Cumulative Record of Crimes
The Israeli record of massacres, extrajudicial killings and daily harassment of Palestinian comprises a continuum of criminal behavior over the past 67 years. Given the overwhelming evidence, the prosecution team therefore decided to focus on key cases, which were extensively reported in the news media and/or were subject of investigations. These included:
– the September 1982 massacre of Palestinians, mainly women and children, at the Sabra and Shatilla refugee camps in a southwest district of Beirut, Lebanon;
– lethal firing of teargas canisters and “rubber” bullets by Israeli Defense Forces that resulted in the deaths of unarmed civilians during the Intifada campaigns and subsequent protests; and
– intensive and indiscriminate aerial bombing and artillery shelling of civilian quarters in the Gaza Strip in 2008.
Among the witnesses who testified in person or via video transmission included:
– a former university student who was shot without warning at a peaceful protest by an Israeli sniper firing a fragmentary bullet that caused extensive and permanent damage to his internal organs;
– a Christian resident of the West Bank who was repeatedly imprisoned and tortured on grounds of subversion;
– a female resident of Nablus who suffered mental anxiety due to her imprisonment and subsequent social ostracism; and
– two men from the Al Sammouni clan of Gaza, which lost 21 family members, mainly children and women, in an Israeli commando raid on their home.
– a Palestinian physician who conducted studies on the psychological trauma inflicted, particularly on children, as result of constant intimidation, massive violence and state terror during and following the second Intifada;
– Expert witness Paola Manduca, an Italian chemist and toxicologist, who found extreme levels of toxic contamination of the soil and water across the Gaza Strip caused by Israeli weapons made of heavy metals and cancer-causing compounds.
Professor Pappe said that the mass killing of defenseless civilians trapped without avenues of escape within a cordon or enclosure is clear evidence of genocidal policy, as happened inside the Beirut refugee camps surrounded by Israeli tanks and hostile Phalangist militiamen and inside Gaza cities that are ringed by a wall-fence.
For the Beirut atrocity, Israeli Defense Force commander General Amos Yaron was charged in absentia for crimes against humanity and genocide. Among the witnesses who testified in person on the Camps Sabra and Shatilla events were:
– Chahira Abouardini, a widow whose husband and three children were murdered by Israeli-allied militiamen at Camp Shatilla, provided a graphic account of the carnage, describing piles of bullet-riddled bodies and, in one case, of a pregnant women whose belly had been slit open and with her dead unborn child left on top of her corpse. She recounted how refugees were rounded up from their homes and lined against walls for summary execution by automatic weapons fire.-
– Dr. Ang Swee Chai, a London-based Singaporean surgeon and medical volunteer at the time at a hospital run by the Palestinian Red Crescent Society, with the aid of the International Committee of the Red Cross, testified that another Beirut hospital had been bombed by Israeli jets, all Palestinian facilities including schools and hospitals were deliberately destroyed by artillery barrages and explosive charges, and ambulances were intercepted and their drivers shot dead. She stated that an Israeli observation post positioned in the 7-storey Kuwaiti Embassy, located on a hilltop, had an unobstructed view of the refugee camp, indicating that the Israeli forces were directing a joint operation to exterminate the refugees left behind under the international plan to withdraw the PLO from Lebanon . In her forensic investigation of the bullet wound that injured a male nurse at her hospital, Dr. Ang determined that the sniper fire had come from the Israeli-occupied Embassy building
Considering the Israeli checkpoints on roads and its vantage points, Brigadier General Amos Yaron as field commander of the Beirut incursion and occupation, had effective control over the camps. His close liaison with the local militia leader meant that Yaron had condoned the 36-hour rampage by militiamen, which led to an estimated 3,500 civilian deaths. No orders were issued to prevent the one-sided violence, prosecutor Aziz Rahman argued before the Tribunal. A 1983 special commission report, under its chairman Nobel Laureate Sean MacBride, concluded that Israel had “complicity in genocide”. Research findings gathered since then indicate that Yaron was not merely complicit but held personal responsibility for the massacre.
A point contested by the Amicus Curae defense team was that then Israeli Defense Minister Ariel Sharon, an official of superior rank, should have been prosecuted instead of Gen. Yaron. (The prosecution had earlier declined to serve notice on Sharon, who has been in a coma for many years and is unable to testify in hisown defense. Moreover, Yaron had wide sway of authority as field commander in a battle zone outside the borders of Israel .) Prosecutor Gurdial Singh pointed out that Israel not only failed to file criminal charges against Yaron and his subordinates but subsequently awarded and repeatedly promoted the general and his circle. Yaron was therefore found guilty as accused.
Responsibility of the State
International law has traditionally taken for granted the immunity of states from prosecution by a court in another country. There are several reasons for immunity of states, even for high crimes such as genocide and serious violations of various humanitarian codes.
– International law and the treaty system are based on the principle of equality among states, which are parties to and enforcers of international agreements. The criminal conviction of a state for serious crimes would automatically weigh against the accused party, thereby causing an imbalance in relations and introducing unfairness to the international system.
-The sovereignty of states is a fundamental protection against aggression or undue interference by a foreign state or alliance of nation-states.
– As argued by defense counsel Matthew Witbrodt, prosecution of and penalties imposed on a state would result in collective punishment of all of its citizens. (Since the Treaty of Versailles that ended World War I, the international community has tried to avoid forms of collective punishment, including heavy war reparations.)
On the other side of the coin, total immunity for the state can encourage violations of international law by dictatorial, racist and/or bigoted regimes. The absence of legal challenge by foreign courts therefore leaves few legitimate means to pressure the offending state. The more “peaceful” methods include economic sanctions, which can be interpreted as a type of collective punishment against a victimized citizenry.
With no legal recourse to counter mass atrocities, other states then must launch interventions through extralegal and often illegal strategies of covert warfare, proxy insurgencies or biased peacekeeping operations. The subsequent invasion and occupation by self-appointed saviors can be more harmful to the people, and to the principles of law, than the original violations of the offending regime.
Thus, quoting its opinion upon the verdict, a “reason the Tribunal wishes to reject the doctrine of absolute state immunity from prosecution in matters of genocide, war crimes and crimes against humanity is that the existing international law on war and peace, and humanitarianism, is being enforced in a grossly inequitable manner. Small, weak nations, mostly in Africa and Asia , are periodically subjected to devastating sanctions, military interventions and regime changes. At the same time, unbearable atrocities and brutalities are inflicted on the military weak nations of Latin America, Africa and Asia by powerful nations in the North Atlantic and their allies go unscrutinized and unpunished.”
The alternative to the law of the jungle applied by self-appointed unilateral powers or coalitions of the willing is the reform of international law to balance sovereignty with the responsibility of the state for high crimes such as genocide.
In its opinion on the ruling, the Tribunal therefore offered a rational method for limiting sovereignty in cases of gross crimes: “Where there is a conflict between two principles of law, the one hierarchically higher in importance should prevail. To our mind, the international law doctrine against impleading (suing) a foreign state, being lower than that that of the prohibition against genocide, resulted in the charge against the State of Israel.”
The Tribunal did not spell out how a genocide ruling can be enforced or provide a model for a reconstitution of state. Presumably and theoretically, the general effect of genocide-based restrictions on sovereignty would be to dissuade and deter state administrations from perpetrating mass atrocities with impunity. Under a legal standard for common action to stop genocide, a preventive intervention could then proceed under accepted rules of engagement and with safeguards against unwarranted violence by peacekeepers. When an inherently extreme policy in embedded in the constitution or state regulations, a lawfully grounded international authority could then abolish that state structure and reconstitute a legitimate state subject to a referendum. A legal process for constitutional change is far preferable to the current method of arbitrary regime change favorable to the interests of and politically subservient to an occupation authority. This remains hypothetical, showing only that the international community is yet to seriously consider the alternative to the present unlawful model.
Restriction of state sovereignty, as the Tribunal noted, is a new and evolving trend in international law. The U.S. permits its citizens to file lawsuits in federal court against states that harbor terrorists, and although this is covered under tort law, such cases inherently restrict the sovereignty of foreign countries. The European Union has also constrained the sovereignty of member states. Under the 1978 State Immunity Act, the British privy council ruled that vessels owned by foreign governments are subject to the same liability laws as commercial vessels.
As argued by the Tribunal panel in their opinion, “We find it rather mind-boggling when some courts can consider commercial disputes as a reason for not allowing a state to be shielded by the state immunity principle and yet strenuously protect such a state in cases of genocide or other war crimes. Human lives cannot be less important than financial gain.”
The vigorous and often well-founded arguments by the Amicus Curae team in defense of Israel were constructive criticism that greatly helped to focus the Tribunal on the complexities of international law. In heated courtroom debate, defense counsel Jason Kay Kit Leon opined that “the elephant in the room” was Palestinian terrorism against Israeli civilians, for instance, the launching of unguided rockets at settlements, and that Israeli forces have acted in self-defense. The thrust of his claim was based on “In Defense of Israel” by Harvard law scholar and attorney Alan Dershowitz.
The jurists, however, accepted the prosecution argument. “It is our finding that much of the Palestinian-generated violence is not on Israel’s own territory, but from and on Israeli-occupied Palestinian land. Much of the violence perpetrated by Palestinians in a reaction to the brutalities of the vicious racism and genocide that is a tragic feature of Palestinian life.”
The opinion went further, by stating: “We also hold that the force of the IDF is excessive, totally disproportionate and a violation of international humanitarian law. The methods used are unspeakably inhumane and amount to war crimes.”
Earlier disputes within the Commission had led to a two-month adjournment of trial proceedings due to harsh and sometimes bitter accusations between participants. In the conflicted process, several judges recused themselves or were absent due to schedule conflicts and one prominent prosecutor resigned in protest of suspected tampering of the judicial panel. These controversies fortunately served to clarify rather than muddy the legal issues and court procedures, resulting in stronger arguments on both sides. Taking Israel to task is never an easy proposition.
Thereby, a stunning precedent in international law was achieved with the Tribunal’s unanimous decision to charge a state for the high crime of genocide. The arguments and verdict against the State of Israel will undoubted be a hotly debated test case for legal scholars over years to come. Since its Charter does not allow an appeal process, the case of “The Kuala Lumpur War Crimes Commission Against the State of Israel” will stand as the nub of controversy for human-rights law and the principle of sovereignty for nation-states.
While citing several precedents, the strongest argument for implication of the state is outlined in the 2007 genocide case of Bosnia and Herzegovina v. Yugoslavia , which covered the Sebrenica massacre of Bosnian Muslms by Serb-dominated federal armed forces. As Canadian jurist John Philpot, who earlier served on the Rwanda Tribunal, pointed out following the reading of the verdict “Bosnia/Herzegovina clearly laid out the culpability of the state and thus served as the precedent for our judgment against Israel .”
According to the Bosnia/Herzogovina ruling, “Genocide is a international crime entailing national and international responsibility on the part of individuals and states” and “if an organ of the state, or a person or group whose acts are legally attributable to the state, commits any of the acts proscribed by Article 3 of the (Genocide) Convention, the international responsibility of that state is incurred.
A point to note: The Rwanda and Yugoslavia genocide cases, are considered by some legal experts to be flawed by the underlying covert and illegal factor of great-power interference. These cases were cited infrequently and judiciously by the Kuala Lumpur Tribunal, which exercised proper case in selection of appropriate passages, while relying on a much wider range of legal precedents in regard to liability of the state.
Critique: Going Beyond Reparations
Until this genocide ruling by the Kuala Lumpur Tribunal, offending states and their foreign sponsors have evaded responsibility while the entire burden of guilt has been placed on the individual agents of weak nation-states. Under the Tribunal ruling, both the core state apparatus – including the executive office, military command, intelligence agencies, supportive ministries and, in many cases, the judiciary and police – bear as much and, in some cases, more criminal responsibility for genocide as individual leaders or military officers.
Yet that is still insufficient when the primary responsibility should rest on powerful sponsor states that move from supporting the offending regime toward punishing its rebellious hubris. The nexus of powerful and ruthless states and global elites, with their machinery for war-making and arms production, creates the political state of siege, the economic strangulation and the covert weapons trade that prompt weaker states to perpetrate genocide.
Barely addressed in just one paragraph of the Tribunal opinion is the reality that powerful states oppose any dilution of their absolute state immunity with the unspoken objective of preserving their war-making powers. The dominant Atlantic allies have cited genocide solely as a pretext to expand their global domain though invasions under a broad and vague “responsibility to protect” principle and have imposed new constitutions on defeated adversaries authored by foreign legal scholars while guised as the ideals of domestic political revolutions. Meanwhile, their own genocidal state structures, centered in the national-security structure and military command, categorically reject any international controls over extralegal interventions operated under the cover of humanitarian operations.
Also, in limiting its call for remedial action to reparations from Israel , the Tribunal wasted a precious opportunity to demand full justice for the Palestinian nation. What is realistically required is an international peacekeeping force to guarantee the withdrawal of the Israeli miltary and police force from Palestinian territory until a domestic law-enforcement and security force can take over; the elimination of wall-fences, checkpoints and other barriers to the free movement of citizens; the return of occupied land in Palestine; financial restitution for the loss of lands and property inside the boundaries of Israel; and an official apology for the countless crimes committed.
Furthermore, the continuity of genocide perpetrated by the core state structure and abetted by the complicity of much of the Israeli population demands that the offending state must be reorganized under a new constitution free of religious bias and racial discrimination to ensure legal norms that prevent a repetition of genocide. This objective should require an international occupation of Israel in event that powerful elements in Israeli society refuse to comply with international law. Israel should be spared the violence unleashed against the Third Reich, but stern justice and strong rule of law are nonetheless required in situations of ideological conformity based on the goals of genocide.
Courage and Wisdom
Whatever its few shortcomings, the Kuala Lumpur Tribunal demonstrated immense courage, foresight and wisdom in leveling the long-overdue charge of genocide against the State of Israel. The Tribunal correctly framed genocide in the context of international law rather than merely as a localized violation. The verdict along with the sophisticated judicial opinion provides an important initiative toward deterring the great powers from promoting and exploiting genocides among weaker nations and victimized peoples.
The Tribunal verdict raised not only a legal challenge to supporters of the Zionist cause in the United States and Europe but also appealed to universal moral principles in the tradition of high-minded rhetoric. “Much as we condemn violence and pray for peace, it must be stated that no power on Earth can douse the flame of freedom from the human spirit. As long as there is suppression, there will always be people prepared to die on their feet rather than live on their knees.”
The precedent-setting decision by the Kuala Lumpur Tribunal is a giant step forward not only for dispossessed Palestinians but also for humanity as a whole.
Author: Yoichi Shimatsu, an East and Southeast Asia focused journalist, is former editor of The Japan Times Weekly in Tokyo.
How the U.S. Intentionally Destroyed Iraq’s Water Supply
by Thomas J. Nagy*
The primary document, “Iraq Water Treatment Vulnerabilities,” is dated January 22, 1991. It spells out how sanctions will prevent Iraq from supplying clean water to its citizens.
“Iraq depends on importing specialized equipment and some chemicals to purify its water supply, most of which is heavily mineralized and frequently brackish to saline,” the document states. “With no domestic sources of both water treatment replacement parts and some essential chemicals, Iraq will continue attempts to circumvent United Nations Sanctions to import these vital commodities. Failing to secure supplies will result in a shortage of pure drinking water for much of the population. This could lead to increased incidences, if not epidemics, of disease.”
The document goes into great technical detail about the sources and quality of Iraq’s water supply. The quality of untreated water “generally is poor,” and drinking such water “could result in diarrhea,” the document says. It notes that Iraq’s rivers “contain biological materials, pollutants, and are laden with bacteria. Unless the water is purified with chlorine, epidemics of such diseases as cholera, hepatitis, and typhoid could occur.”
The document notes that the importation of chlorine “has been embargoed” by sanctions. “Recent reports indicate the chlorine supply is critically low.”
Food and medicine will also be affected, the document states. “Food processing, electronic, and, particularly, pharmaceutical plants require extremely pure water that is free from biological contaminants,” it says.
The document addresses possible Iraqi countermeasures to obtain drinkable water despite sanctions.
“Iraq conceivably could truck water from the mountain reservoirs to urban areas. But the capability to gain significant quantities is extremely limited,” the document states. “The amount of pipe on hand and the lack of pumping stations would limit laying pipelines to these reservoirs. Moreover, without chlorine purification, the water still would contain biological pollutants. Some affluent Iraqis could obtain their own minimally adequate supply of good quality water from Northern Iraqi sources. If boiled, the water could be safely consumed. Poorer Iraqis and industries requiring large quantities of pure water would not be able to meet their needs.”
The document also discounted the possibility of Iraqis using rainwater. “Precipitation occurs in Iraq during the winter and spring, but it falls primarily in the northern mountains,” it says. “Sporadic rains, sometimes heavy, fall over the lower plains. But Iraq could not rely on rain to provide adequate pure water.”
As an alternative, “Iraq could try convincing the United Nations or individual countries to exempt water treatment supplies from sanctions for humanitarian reasons,” the document says. “It probably also is attempting to purchase supplies by using some sympathetic countries as fronts. If such attempts fail, Iraqi alternatives are not adequate for their national requirements.”
In cold language, the document spells out what is in store: “Iraq will suffer increasing shortages of purified water because of the lack of required chemicals and desalination membranes. Incidences of disease, including possible epidemics, will become probable unless the population were careful to boil water.”
The document gives a timetable for the destruction of Iraq’s water supplies. “Iraq’s overall water treatment capability will suffer a slow decline, rather than a precipitous halt,” it says. “Although Iraq is already experiencing a loss of water treatment capability, it probably will take at least six months (to June 1991) before the system is fully degraded.”
This document, which was partially declassified but unpublicized in 1995, can be found on the Pentagon’s web site at www.gulflink.osd.mil. (I disclosed this document last fall. But the news media showed little interest in it. The only reporters I know of who wrote lengthy stories on it were Felicity Arbuthnot in the Sunday Herald of Scotland, who broke the story, and Charlie Reese of the Orlando Sentinel, who did a follow-up.)
Recently, I have come across other DIA documents that confirm the Pentagon’s monitoring of the degradation of Iraq’s water supply. These documents have not been publicized until now.
The first one in this batch is called “Disease Information,” and is also dated January 22, 1991. At the top, it says, “Subject: Effects of Bombing on Disease Occurrence in Baghdad.” The analysis is blunt: “Increased incidence of diseases will be attributable to degradation of normal preventive medicine, waste disposal, water purification/distribution, electricity, and decreased ability to control disease outbreaks. Any urban area in Iraq that has received infrastructure damage will have similar problems.”
The document proceeds to itemize the likely outbreaks. It mentions “acute diarrhea” brought on by bacteria such as E. coli, shigella, and salmonella, or by protozoa such as giardia, which will affect “particularly children,” or by rotavirus, which will also affect “particularly children,” a phrase it puts in parentheses. And it cites the possibilities of typhoid and cholera outbreaks.
The document warns that the Iraqi government may “blame the United States for public health problems created by the military conflict.”
The second DIA document, “Disease Outbreaks in Iraq,” is dated February 21, 1990, but the year is clearly a typo and should be 1991. It states: “Conditions are favorable for communicable disease outbreaks, particularly in major urban areas affected by coalition bombing.” It adds: “Infectious disease prevalence in major Iraqi urban areas targeted by coalition bombing (Baghdad, Basrah) undoubtedly has increased since the beginning of Desert Storm. . . . Current public health problems are attributable to the reduction of normal preventive medicine, waste disposal, water purification and distribution, electricity, and the decreased ability to control disease outbreaks.”
This document lists the “most likely diseases during next sixty-ninety days (descending order): diarrheal diseases (particularly children); acute respiratory illnesses (colds and influenza); typhoid; hepatitis A (particularly children); measles, diphtheria, and pertussis (particularly children); meningitis, including meningococcal (particularly children); cholera (possible, but less likely).”
Like the previous document, this one warns that the Iraqi government might “propagandize increases of endemic diseases.”
The third document in this series, “Medical Problems in Iraq,” is dated March 15, 1991. It says: “Communicable diseases in Baghdad are more widespread than usually observed during this time of the year and are linked to the poor sanitary conditions (contaminated water supplies and improper sewage disposal) resulting from the war. According to a United Nations Children’s Fund (UNICEF)/World Health Organization report, the quantity of potable water is less than 5 percent of the original supply, there are no operational water and sewage treatment plants, and the reported incidence of diarrhea is four times above normal levels. Additionally, respiratory infections are on the rise. Children particularly have been affected by these diseases.”
Perhaps to put a gloss on things, the document states, “There are indications that the situation is improving and that the population is coping with the degraded conditions.” But it adds: “Conditions in Baghdad remain favorable for communicable disease outbreaks.”
The fourth document, “Status of Disease at Refugee Camps,” is dated May 1991. The summary says, “Cholera and measles have emerged at refugee camps. Further infectious diseases will spread due to inadequate water treatment and poor sanitation.”
The reason for this outbreak is clearly stated again. “The main causes of infectious diseases, particularly diarrhea, dysentery, and upper respiratory problems, are poor sanitation and unclean water. These diseases primarily afflict the old and young children.”
The fifth document, “Health Conditions in Iraq, June 1991,” is still heavily censored. All I can make out is that the DIA sent a source “to assess health conditions and determine the most critical medical needs of Iraq. Source observed that Iraqi medical system was in considerable disarray, medical facilities had been extensively looted, and almost all medicines were in critically short supply.”
In one refugee camp, the document says, “at least 80 percent of the population” has diarrhea. At this same camp, named Cukurca, “cholera, hepatitis type B, and measles have broken out.”
The protein deficiency disease kwashiorkor was observed in Iraq “for the first time,” the document adds. “Gastroenteritis was killing children. . . . In the south, 80 percent of the deaths were children (with the exception of Al Amarah, where 60 percent of deaths were children).”
The final document is “Iraq: Assessment of Current Health Threats and Capabilities,” and it is dated November 15, 1991. This one has a distinct damage-control feel to it. Here is how it begins: “Restoration of Iraq’s public health services and shortages of major medical materiel remain dominant international concerns. Both issues apparently are being exploited by Saddam Hussein in an effort to keep public opinion firmly against the U.S. and its Coalition allies and to direct blame away from the Iraqi government.”
It minimizes the extent of the damage. “Although current countrywide infectious disease incidence in Iraq is higher than it was before the Gulf War, it is not at the catastrophic levels that some groups predicted. The Iraqi regime will continue to exploit disease incidence data for its own political purposes.”
And it places the blame squarely on Saddam Hussein. “Iraq’s medical supply shortages are the result of the central government’s stockpiling, selective distribution, and exploitation of domestic and international relief medical resources.” It adds: “Resumption of public health programs . . . depends completely on the Iraqi government.”
As these documents illustrate, the United States knew sanctions had the capacity to devastate the water treatment system of Iraq. It knew what the consequences would be: increased outbreaks of disease and high rates of child mortality. And it was more concerned about the public relations nightmare for Washington than the actual nightmare that the sanctions created for innocent Iraqis.
The Geneva Convention is absolutely clear. In a 1979 protocol relating to the “protection of victims of international armed conflicts,” Article 54, it states: “It is prohibited to attack, destroy, remove, or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, crops, livestock, drinking water installations and supplies, and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive.”
But that is precisely what the U.S. government did, with malice aforethought. It “destroyed, removed, or rendered useless” Iraq’s “drinking water installations and supplies.” The sanctions, imposed for a decade largely at the insistence of the United States, constitute a violation of the Geneva Convention. They amount to a systematic effort to, in the DIA’s own words, “fully degrade” Iraq’s water sources.
At a House hearing on June 7, Representative Cynthia McKinney, Democrat of Georgia, referred to the document “Iraq Water Treatment Vulnerabilities” and said: “Attacking the Iraqi public drinking water supply flagrantly targets civilians and is a violation of the Geneva Convention and of the fundamental laws of civilized nations.”
Over the last decade, Washington extended the toll by continuing to withhold approval for Iraq to import the few chemicals and items of equipment it needed in order to clean up its water supply.
Last summer, Representative Tony Hall, Democrat of Ohio, wrote to then-Secretary of State Madeleine Albright “about the profound effects of the increasing deterioration of Iraq’s water supply and sanitation systems on its children’s health.” Hall wrote, “The prime killer of children under five years of age–diarrheal diseases–has reached epidemic proportions, and they now strike four times more often than they did in 1990. . . . Holds on contracts for the water and sanitation sector are a prime reason for the increases in sickness and death. Of the eighteen contracts, all but one hold was placed by the U.S. government. The contracts are for purification chemicals, chlorinators, chemical dosing pumps, water tankers, and other equipment. . . . I urge you to weigh your decision against the disease and death that are the unavoidable result of not having safe drinking water and minimum levels of sanitation.”
For more than ten years, the United States has deliberately pursued a policy of destroying the water treatment system of Iraq, knowing full well the cost in Iraqi lives. The United Nations has estimated that more than 500,000 Iraqi children have died as a result of sanctions, and that 5,000 Iraqi children continue to die every month for this reason.
No one can say that the United States didn’t know what it was doing.
* Thomas J. Nagy teaches at the School of Business and Public Management at George Washington University.
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IRAQ WATER TREATMMENT VULNERABILITIES (U) Filename:511rept.91 DTG: 221900Z JAN 91 FM: DIA WASHINGTON DC VIA: NMIST NET TO: CENTCOM INFO: CENTAF UK STRIKE COMMAND MARCENT 18 ABC NAVCENT SOCCENT 7TH CORPS ANKARA SUBJECT: IRAQ WATER TREATMMENT VULNERABILITIES (U) AS OF 18 JAN 91 KEY JUDGMENTS. 1. IRAO DEPENDS ON IMPORTING-SPECIALIZED EQUIPMENT-AND SOME CHEMICALS TO PURIFY ITS WATER SUPPLY, MOST OF WHICH IS HEAVILY MINERALIZED AND FREQUENTLY BRACKISH TO SALINE. 2. WITH NO DOMESTIC SOURCES OF BOTH WATER TREATMENT REPLACEMENT PARTS AND SOME ESSENTIAL CHEMICALS, IRAO WILL CONTINUE ATTEMPTS TO CIRCUMVENT UNITED NATIONS SANCTIONS TO IMPORT THESE VITAL COMMODITIES. 3. FAILING TO SECURE SUPPLIES WILL RESULT IN A SHORTAGE OF PURE DRINKING WATER FOR MUCH OF THE POPULATION. THIS COULD LEAD TO INCREASED INCIDENCES, IF NOT EPIDEMICS, OF DISEASE AND TO CERTAIN PURE-WATER-DEPENDENT INDUSTRIES BECOMING INCAPACITATED, INCLUDING PETRO CHEMICALS, FERTILIZERS, PETROLEUM REFINING, ELECTRONICS,PHARMACEUTICALS, FOOD PROCESSING, TEXTILES, CONCRETE CONSTRUCTION,AND THERMAL POWERPLANTS. 4. IRAQ'S OVERALL WATER TREATMENT CAPABILITY WILL SUFFER A SLOW DECLINE, RATHER THAN A PRECIPITOUS HALT, AS DWINDLING SUPPLIES AND CANNIBALIZED PARTS ARE CONCENTRATED AT HIGHER PRIORITY LOCATIONS. ALTHOUGH IRAQ IS ALREADY EXPERIENCING A LOSS OF WATERTREATMENT CAPABILITY, IT PROBABLY WILL TAKE AT LEAST SIX MONTHS (TO JUNE 1991) BEFORE THE SYSTEM IS FULLY DEGRADED. 5. UNLESS WATER TREATMENT SUPPLIES ARE EXEMPTED FROM THE UNSANCTIONS FOR HUMANITARIAN REASONS, NO ADEQUATE SOLUTION EXISTS FOR IRAQ'S WATER PURIFICATION DILEMMA, SINCE NO SUITABLE ALTERNATIVES,INCLUDING LOOTING SUPPLIES FROM KUWAIT, SUFFICIENTLY MEET IRAQI NEEDS.) 6. IRAQI WATER QUALITY. SURFACE WATER FROM THE TIGRIS AND EUPHRATES RIVER SYSTEM SUPPLIES ABOUT HALF OF IRAQ'S LAND AREA,INCLUDING URBAN AREAS AND THEIR ASSOCIATED INDUSTRIES. IRAQ'S REMAINING AREA, PRIMARILY RURAL, RELIES ON GROUND WATER FROM WELLS.THE QUALITY OF UNTREATED WATER THROUGHOUT THE COUNTRY VARIES WIDELY BUT GENERALLY IS POOR. HEAVY MINERALIZATION, SUSPENDED SOLIDS AND,FREQUENTLY, HIGH SALINITY CHARACTERIZE IRAQ'S WATER SUPPLY.ALTHoUGH IRAQ HAS MADE A CONSIDERABLE EFFORT TO SUPPLY PURE WATER TO ITS POPULATION, THE WATER TREATMENT SYSTEM WAS UNRELIABLE EVEN BEFORE THE UNITED NATIONS SANCTIONS SALINITY CHARACTERIZE IRAO'S WATER SUPPLY.ALTHOUGH IRAQ HAS MADE A CONSIDERABLE EFFORT TO SUPPLY PURE WATER TO ITS POPULATION, THE WATER TREATMENT SYSTEM WAS UNRELIABLE EVEN BEFORE THE UNITED NATIONS SANCTIONS WERE IMPOSED. MOST IRAOIS PREFER TO DRINK IMPORTED BOTTLED WATER. 7. THE MINERALS IN THE WATER INCLUDE CONCENTRATIONS OF CARBONATES, SULPHATES, CHLORIDES, AND, IN SOME LOCATIONS, NITRATES.DRINKING HEAVILY MINERALIZED WATER COULD RESULT IN DIARRHEA AND,OVER THE LONG TERM, STONES FORMING WITHIN THE BODY. FOR INDUSTRIAL APPLICATIONS, PIPES AND OTHER EOUIPMENT WOULD SCALE (BECOME ENCRUSTED), EVENTUALLY CAUSING PLANTS TO SHUT DOWN. SCALING IN BOILERS WOULD CAUSE EXPLOSIONS IF NOT PREVENTED OR REMOVED. 8. MUCH OF IRAO'S GROUND WATER SUPPLIES ARE BRACKISH TO SALINE. THE,LARGE RESERVOIRS NEAR BAGHDAD--THE THARTHAR, - . HABBANIYAH, AND AL MILH LAKES--ARE SALINE. SINCE THESE LAKES SERVE AS CATCH BASINS FOR FLOODS ON THE TIGRIS AND EUPHRATES RIVERS, THE IRAOIS MUST REDUCE THE WATER VOLUME IN-THE LAKES DURING THE LOW-WATER SEASON. EVAPARATlON DURING THE SUMMER - ACCOMPLISHES THIS IMPART. SINCE REDUCING THE WATER VOLUME IN THE LAKES ONLY INCREASES SALINITY, THE IRAQIS FLUSH THE LAKES BY DIVERTING FRESH WATER FROM UP STREAM ON THE TIGRIS AND EUPHRATES. THE FLOW IS DISCHARGED FURTHER DOWNSTREAM TO AVOID FILLING THE BASINS. SINCE THE DISCHARGE OCCURS WHERE THE RIVERS ENTER THE MESOPOTAMIAN PLAIN, THE DISCHARGE INCREASES THE NATURAL SALINITY OF THE WATERS DOWNSTREAM, AFFECTING IRRIGATED AGRICULTURAL LANDS IRAQ SPECIALIZES IN - SALINE-RESISTANT CROPS SUCH AS BARLEr AND DATES) AND URBAN AREAS, INCLUDING BAGHDAD.THE KARKH WATER TREATMENT PROJECT FOR WESTERN BAGHDAD HAS AN IN TAKE POINT ABOUT 40 KILOMETERS NORTH OF BAGHDAD, UPSTREAM FROM WHERE LAKE THARTHAR DISCHARGES INTO THE TIGRIS. WATER BELOW THE DISCHARGE POINT REQUIRES DESALINIZATION. 9. AT BASRAH, THE SHATT AL ARAB TENDS TO BE SALINE UNDER CONDITIONS OF LOW-RIVER WATER VOLUMES AND DEPENDING ON TIDE AND WIND DIRECTIONS. NORMALLY, THE SHATT AL ARAB AT BASRAH HAS A SALINITY OF 1,500 TO 2,000 PARTS PER MILLION (PPM). SALINITY HAS BEEN INCREASING OVER THE LAST 5 YEARS, AND IN THE FALL 1989, THE SALINITY HAD REACHED 6,000 TO 7,000 PPM, HIGHER THAN EXISTING DESALINIZATION SYSTEMS COULD HANDLE. (OCEAN SEAWATER IS ABOUT 36,000 PPM OF DISSOLVED SALTS; THE PERSIAN GULF IS APPROXIMATELY 42,000 PPM.BRACKISH WATER IS A MINIMUM OF 1,000 PPM. THE WORLD HEALTH ORGANIZATION STANDARD FOR HUMAN CONSUMPTION IS 500 PPM OR LESS.GROUND WATER IN IRAO'S LOWER MESOPOTAMIAN BASIN RANGES FROM 5,000 TO 60,000 PPM, WITH SOME LOCATIONS REACHING 80,000). SALINE WATER IS UNFIT FOR DRINKING AND CORRODES INDUSTRIAL PIPES OR OTHER EXPOSED EQUIPMENT. 10. (U) SUSPENDED SOLIDS, PRIMARILY SILT, IN THE TIGRIS AND EUPHRATES RIVER SYSTEM INCREASE WITH WATER VOLUME. UNLESS REMOVED FROM THE WATER, THESE PARTICLES WOULD CLOG PIPES AND FILTERS AND WOULD REQUIRE STRAINING BEFORE CONSUMPTION BY END USERS. 11. IRAQ'S RIVERS ALSO CONTAIN BIOLOGICAL MATERIALS,POLLUTANTS, AND ARE LADEN WITH BACTERIA. UNLESS THE WATER IS PURIFIED WITH CHLORINE EPIDEMICS OF SUCH DISEASES AS CHOLERA,HEPATITIS, AND TYPHOID COULD OCCUR.) 12. WATER TREATMENT REGIMES. WATER TREATMENT IS SPECIFIC TO THE IMPURITIES OF THE WATER TREATED AND TO THE APPLICATION FOR WHICH THE WATER WILL BE USED. THE BASIC PROCESS REQUIRES CLARIFICATION (REMOVING SUSPENDED SOLIDS), FILTRATION, AND, FOR DRINKING AND SOME INDUSTRIAL USES, PURIFICATION. IN IRAQ, THE PROCESS ALSO INCLUDES DESALINATING AND WATER SOFTENING. 13. CLARIFICATION REQUIRES ADDING FLOCCULANTS AND COAGULANTS TO THE WATER. THE IRAOIS USE ALUMINUM SULPHATE ALTHOUGH IRON SULPHATES ARE ACCEPTABLE TO BIND THE SUSPENDED SOLIDS INTO CLUMPS FOR SETTLING. IF NOT REMOVED, THE SEDIMENTS, OR SLUDGE, WOULD CLOG THE FILTRATION SYSTEM (PROBABLY SAND) AND SHUT DOWN THE WATER PURIFICATION PLANT UNTIL THE CLOGS WERE REMOVED. ALUMINUM SULPHATE SUPPLY LEVELS ARE KNOWN TO BE CRITICALLY LOW, SINCE IRAQ TRIED AND FAILED TO OBTAIN PRECURSOR CHEMICALS FROM JORDAN FOR ITS MANUFACTURE. 14. CHLORINATION NORMALY IS ACCOMPLISHED DURING SEVERAL STAGES OF PURIFICATION, INCLUDING THE INITAL TREATMENT STAGE TO PREVENT THE EQUIPMENT FROM LIMING AND TO KILL PATHOGENS JUST PRIOR TO STORING THE FULLY TREATED WATER. THE CHLORINE USED IN MOST PLANTS IS EITHER SODIUM HYPOCHLORITE, A LIOUID, OR CALCIUM HYPOCHLORITE, A POWDER. IF THEY ARE EQUIPPED WITH INJECTORS, LOW-CAPACITY PLANTS CAN USE CHLORINE GAS DIRECTLY. IRAO'S PLANT IN FALLUJA AND THE PC-I PETROCHEMICAL PLANT AT BASRAH PRODUCE SODIUM HYPOCHLORITE AND, AS A BY-PRODUCT, CAUSTIC SODA, WHICH IS USED TO ADJUST THE PH OF WATER SUPPLIES. NORMALLY, BOTH LOCATIONS PRODUCE RELATIVELY SMALL QUANTITIES OF CHLORINE FOR INDUSTRIAL AND SOME MUNICIPAL USE; CHLORINE FOR MUNICIPAL SUPPLIES ALSO IS IMPORTED.RECENT REPORTS INDICATE THE CHLORINE SUPPLY IS CRITICALLY LOW. ITS IMPORTATION HAS BEEN EMBARGOED, AND BOTH MAIN PRODUCTION PLANTS EITHER HAD BEEN SHUT DOWN FOR A TIME OR HAVE BEEN PRODUCING MINIMAL OUTPUTS BECAUSE OF THE LACK OF IMPORTED CHEMICALS AND THE INABILITY TO REPLACE PARTS. PREVIOUSLY WHEN SUPPLIES WERE LOW, THE IRAQI SHAVE STOPPED CHLORINATING THE DRINKING WATER, BUT ONLY FOR SHORT PERIODS. TO RETARD ALGAE GROWTH, WHICH COULD CLOG PIPES, COPPER SULPHATE NORMALLY IS ADDED TO THE WATER. BUT THIS PRACTICE HAS NOT BEEN VERIFIED IN IRAO, AND SUPPLIES OF COPPER SULPHATE ARE UNKNOWN.SULFURIC ACID TYPICALLY IS ADDED AS WELL, BUT IRAQ PROBABLY CAN PRODUCE SUFFICIENT SUPPLIES. 15. IRAQ APPARENTLY USES LIME, AT LEAST AT THE NEW KARKH TREATMENT PLANT, TO SOFTEN WATER. THE LIME PRECIPITATES COLLOIDAL CARBONATE IMPURITIES FROM THE WATER. SODA ASH AND ZEOLITES ALSO NORMALLY ARE USED TO REMOVE NONCARBONATE MINERAL IMPURITIES, BUT THEIR USE IN IRAO HAS NOT BEEN DETERMINED. LOCAL COMPANIES SELL BOTTLED SOFT WATER IN IRAO, SUGGESTING THAT MUNICIPAL WATER SYSTEMS DO NOT NORMALLY SOFTEN WATER. IRAQ SHOULD HAVE NO SHORTAGES OF LIME. HOWEVER, THE LACK OF SOFTENING CHEMICALS REPORTEDLY HAS INCAPACITATED THE BOTTLED SOFT-WATER INDUSTRY. 16. BETWEEN 1982 AND 1990, SOME IRAOI INDUSTRIES INSTALLED REVERSIBLE ION EXCHANGE ELECTRODIALYSIS MEMBRANE SYSTEMS, OBTAINED FROM AN AMERICAN SOURCE, TO SOFTEN AND DESALINATE WATER. THE MEMBRANES LAST 5 TO 7 YEARS AND DO NOT REQUIRE CHEMICAL PRETREATMENT OF THE WATER. THEY NORMALLY SERVE SMALLER VOLUME REQUIREMENTS.HOWEVER, A MAJOR OIL REFINERY, AL DAURA IN BAGHDAD, INSTALLED THIS SYSTEM IN 1985, AND IT PRODUCES 24,000 CUBIC METERS OF PURIFIED WATER PER DAY. 17. ABOUT ONE QUARTER OF ALL IRAOI WATER SUPPLIED FOR INDUSTRIAL AND HUMAN CONSUMPTION REQUIRES DESALINIZATION. IRAO RELIES ALMOST EXCLUSIVELY ON ION EXCHANGE OR REVERSE OSMOSIS SYSTEMS RATHER THAN MULTISTAGE FLASH UNITS. ION EXCHANGE AND REVERSE OSMOSIS MEMBRANES ARE SPECIFIC TO THE TYPE OF EQUIPMENT OF WHICH THEY ARE A COMPONENT, AS ARE THE CHEMICALS REOUIRED. PREVIOUS IRAQI USE OF SUBSTITUTES HAS NOT BEEN SATISFACTORY. IRAO REPORTEDLY DEPENDS ON IMPORTED MEMBRANES AND IMPORTS CHEMICALS FROM SEVERAL SOURCES. IRAQ HAD NOT COMPLETED THE MAJOR PURCHASE AND DELIVERY OF SPARE MEMBRANES BEFORE INVADING KUWAIT. ATTEMPTS TO PROCURE MEMBRANES SINCE THE UN SANCTIONS WERE IMPOSED HAVE FAILED. SINCE THE ATTEMPT TO IMPORT MEMBRANES CORRESPONED TO THEIR NORMAL REPLACEMENT PERIOD, IRAQ APPARENTLY DID NOT STOCKPILE ABUNDANT SPACE MEMBRANES OR CHEMICALS AND PROBABLY HAD NO MORE THAN A 2-MONTH SUPPLY PRIOR TO THE INVASION. 18. POLYAMIDE MEMBRANES WHICH IRAO USES IN SOME DESALINIZATION EOUIPMENT, DETERIORATE WHEN EXPOSED TO CHLORINE IONS.PRIOR TO PASSING THROUGH THE MEMBRANE, WAT-ER IS TREATED WITH SODIUM METABISULPHITE TO REMOVE THE CHLORINE USED IN PRETREATMENT. THE CHLORINE THEN IS RE-STORED FOR LATER PURIFICATION. THE STATUS OF SODIUM METABISULPHITE SUPPLIES IS NOT KNOWN, BUT SUPPLIES PROBABLY ARE DWINDLING, WHICH WILL ESCALATE FAILURES OF THIS MEMBRANE TYPE.IRAO ALSO USES CELLULOSE ACETATE MEMBRANES (AN OLD TECHNOLOGY),WHICH HAVE AN EXCEPTIONALLY SHORT LIFE AND ARE SUSCEPTIBLE TO BIOLOGICAL CONTAMINATION. IRAO REPORTEDLY CAN MANUFACTURE CELLULOSE MEMBRANES, BUT THE AVAILABILITY OF PRECURSOR STOCKS IS PROBABLY LOW.IRAQ HAD BEEN ACOUIRING REVERSE ELECTRODIALYSIS ION EXCHANGE MEMBRANES PRIOR TO THE UN SANCTIONS. HOWEVER, MOST SYSTEMS USE REVERSE OSMOSIS OR UNIDIRECTIONAL ELECTRODIALYSIS, WHICH, UNLIKE REVERSE ELECTRODIALYSIS MEMBRANES, REOUIRE CHEMICALS TO MAKE THEM WORK.) 19. INDUSTRIAL WATER TREATMENT. INDUSTRIES REQUIRE TREATED WATER, AND THE TYPE OF TREATMENT DEPENDS ON THE APPLICATION. NORMALLY, SOFTENING AND DESALINIZATION ARE REOUIRED TO PREVENT PIPE SAND EOUIPMENT FROM CORRODING OR SCALING. IN THE PETRO CHEMICAL INDUSTRY, WATER USED FOR COOLING IS PARTIALLY TREATED TO PREVENT SCALING. WATER USED IN THERMAL POWERPLANTS OR REFINERIES TO PRODUCE STEAM MUST BE PURE TO PREVENT BOTH CORROSION AND SCALING.OTHERWISE, LOSS OF CAPABILITY COULD OCCUR WITHIN 2 MONTHS. IN ADDITION, FOOD PROCESSING, ELECTRONIC, AND, PARTICULARLY,PHARMACEUTICAL PLANTS REOUIRE EXTREMELY PURE WATER THAT IS FREE FROM BIOLOGICAL CONTAMINANTS. LARGE INDUSTRIAL PLANTS, INCLUDING PETROCHEMICAL, REFINING, AND FERTILIZER PLANTS, COLLOCATE THEIR WATER TREATMENT FACILITIES. TURNKEY CONTRACTORS BUILT THESE FACILITIES, AND THE PARTS ARE SPECIFIC TO EACH SYSTEM, WHICH COMPLICATES THEIR REPLACEMENT. THE IRAOIS COULD NOT MANUFACTURE DUPLICATES AND THEIR IMPORTATION IS EMBARGOED.) 20. IRAQI ALTERNATIVES. IRAQ COULD TRY CONVINCING THE UNITED NATIONS OR INDIVIDUAL COUNTRIES TO EXEMPT WATER TREATMENT SUPPLIES FROM SANCTIONS FOR HUMANITARIAN REASONS. IT PROBABLY ALSO IS ATTEMPTING TO PURCHASE SUPPLIES BY USING SOME SYMPATHETIC COUNTRIES AS FRONTS. IF SUCH ATTEMPTS FAIL, IRAQI ALTERNATIVES ARE NOT ADEOUATE FOR THEIR NATIONAL REOUIREMENTS. 21. VARIOUS IRAOI INDUSTRIES HAVE WATER TREATMENT CHEMICAL SAND EQUIPMENT ON HAND, IF THEY HAVE NOT ALREADY BEEN CONSUMED OR BROKEN. IRAO POSSIBLY COULD CANNIBALIZE PARTS OR ENTIRE SYSTEMS FROM LOWER TO HIGHER PRIORITY PLANTS, AS WELL AS DIVERT CHEMICALS,SUCH AS CHLORINE. HOWEVER, THIS CAPABILITY WOULD BE LIMITED AND TEMPORARY. IRAQ PREVIOUSLY HAD ACQUIRED SEVERAL HUNDRED CONTAINERIZED REVERSE OSMOSIS MODULES FOR ' LOCALIZED USE THAT COULD BE RELOCATED. WITHOUT CHEMICALS AND REPLACEMENT MEMBRANES, THESE UNITS WHERE EVENTUALLY WOULD BECOME USELESS. HOWEVER, CONSOLIDATING CHEMICALS OR CANNIBALIZING PARTS AND MOVING UNITS WHERE NECESSARY COULD SUSTAIN SOME PURIFICATION OPERATIONS INDUSTRIAL PLANTS THAT ARE INOPERABLE FOR REASONS-OTHER THAN THE LACK OF WATER TREATMENT SUPPLIES COULD PROCESS WATER FOR MUNICIPAL NEEDS OR POSSIBLY RELOCATE THEIR PURIFICATION EOUIPMENT. 22. THE DIFFERENCE IN WATER TREATMENT SYSTEMS LIMITS THE BENEFITS TO IRAQ OF PLUNDERING KUWAIT'S WATER TREATMENT CHEMICALS. THE KUWAITIS RELY PRIMARILY ON DESALINATING SEAWATER, AND THEIR WATER NEEDS ARE CONSIDERABLY SMALLER THAN IRAQ'S. IRAQ COULD NOT USE CHEMICALS INTENDED FOR KUWAITI WATER TREATMENT SYSTEMS, EXCEPT FOR LIMITED QUANTITIES OF CHLORINE. ATTEMPTS TO CIRCUMVENT THE SANCTIONS TO OBTAIN WATER TREATMENT CHEMICALS SUGGEST THAT ANY USEFUL SUPPLIES FROM KUWAIT ALREADY HAVE BEEN LOOTED AND USED. 23. IRAO HAS INSTALLED A PIPELINE FROM THE DOHA DESALINIZATION PLANT IN KUWAIT THAT CONNECTS WITH DISTRIBUTION PIPES AT A WATERTREATMENT PLANT NEAR BASRAH. THIS SOURCE OF PURE WATER APPARENTLY HAS ENABLED THE PC-I PETROCHEMICAL PLANT TO OPERATE AND TO PRODUCE CHLORINE BY ELECTROLYSIS OF KUWAITI WATER MIXED WITH PURE SODIUM CHLORIDE. AT LEAST SOME OF THIS CHLORINE PROBABLY IS USED FOR MUNICIPAL WATER PURIFICATION, BUT THE OUANTITY PRODUCED WOULD BE INADEOUATE FOR NATIONAL REOUIREMENTS. MOREOVER, SOME OF THE CHLORINE PROBABLY IS USED AT THE PC-I PLANT TO MAKE POLYVINYL CHLORIDES TO CREATE THE PLASTIC SHEETS USED IN AGRICULTURAL PRODUCTION. THE USE OF KUWAITI WATER PROBABLY WILL NOT LAST LONG SINCE THE DOHA PLANT USES THE MULTISTAGE FLASH DESALINIZATION PROCESS, WHICH REOUIRES ACID DOSING OR THE ADDITION OF POLYMERS TO PREVENT SCALING OF THE HEAT EXCHANGES. THE UN SANCTIONS MAY PREVENT RESUPPLY OF THESE CHEMICALS. INTENSIVE MAINTENANCE ALSO IS REOUIRED TO KEEP THE UNITS OPERATING, AND THAT PROBABLY WOULD REOUIRE THE SERVICES OF TRAINED KUWAITI EMPLOYEES SINCE IRAQ HAS LITTLE EXPERIENCE WITH MULTISTAGE FLASH UNITS. 24. IRAQ'S BEST SOURCES OF QUALITY WATER ARE IN THE MOUNTAINS OF THE NORTH AND NORTHEAST, WHERE MINERALIZATION AND SALINITY ARE WITHIN ACCEPTABLE LIMITS. FOR THE SHORT TERM, IRAO CONCEIVABLY COULD TRUCK WATER FROM THE MOUNTAIN RESERVOIRS TO URBAN AREAS. BUT THE CAPABILITY TO GAIN SIGNIFICANT QUANTITIES IS EXTREMELY LIMITED. THE AMOUNT OF PIPE ON HAND AND THE LACK OF PUMPING STATIONS WOULD LIMIT LAYING PIPELINES TO THESE RESERVOIRS. MOREOVER, WITHOUT CHLORINE PURIFICATION, THE WATER STILL WOULD CONTAIN BIOLOGICAL POLLUTANTS. SOME AFFLUENT IRAQIS COULD OBTAIN THEIR OWN MINIMALLY ADEQUATE SUPPLY OF GOOD OUALITY WATER FROM NORTHERN IRAOI SOURCES.IF BOILED, THE WATER COULD BE SAFELY CONSUMED. POORER IRAQIS AND INDUSTRIES REQUIRING LARGE OUANTITIES OF PURE WATER WOULD NOT BE ABLE TO MEET THEIR NEEDS. 25. PRECIPITATION OCCURS IN IRAQ DURING THE WINTER AND SPRING,BUT IT FALLS PRIMARILY IN THE NORTHERN MOUNTAINS. SPORADIC RAINS,SOMETIMES HEAVY , FALL OVER THE LOWER PLAINS. BUT IRAQ COULD NOT RELY ON RAIN TO PROVIDE ADEQUATE PURE WATER. 26. THE SALINE OR ALKALINE CONTENT-OF GROUND WATER IN MOST LOCATIONS WOULD CONSTRAIN DRILLING WELLS IN THE MESOPOTAMIAN PLAIN TO OBTAIN PURER WATER MOREOVER, MUCH OF THE POPULATION USES SEPTIC TANKS, AND THE UNDERLYING GEOLOGY AND TOPOGRAPHY WOULD CONTAMINATE WELLS IN MANY LOCATIONS.))OUTLOOK) 27. IRAQ WILL SUFFER INCREASING SHORTAGES OF PURIFIED WATER BECAUSE OF THE LACK OF REOUIRED CHEMICALS AND DESALINIZATION MEMBRANES. INCIDENCES OF DISEASE, INCLUDING POSSIBLE EPIDEMICS,WILL BECOME PROBABLE UNLESS THE POPULATION WERE CAREFUL TO BOIL WATER BEFORE CONSUMPTION, PARTICULARLY SINCE THE SEWAGE TREATMENT SYSTEM, NEVER A HIGH PRIORITY, WILL SUFFER THE SAME LOSS OF CAPABILITY WITH THE LACK OF CHLORINE. LOCALLY PRODUCED FOOD AND MEDICINE COULD BE CONTAMINATED. LACK OF COAGULATION CHEMICALS WILL CAUSE PERIODIC SHUTDOWNS OF TREATMENT PLANTS FOR UNCLOGGING AND CLEANING FILTERS, CAUSING INTERRUPTIONS OF WATER SUPPLIES. AS DESALINIZATION EQUIPMENT BECOMES INOPERABLE, SALINE WATER SOURCES WILL BECOME INCREASINGLY UNUSABLE. TEMPORARY OR PERMANENT SHUT DOWNS OF INDUSTRIAL PLANTS THAT RELY ON TREATED WATER WILL MULTIPLY.CANNIBALIZING LOWER PRIORITY OPERATIONS WILL ACCELERATE THE TREND. 28. THE ENTIRE IRAOI WATER TREATMENT SYSTEM WILL NOT COLLAPSE PRECIPITOUSLY, BUT ITS CAPABILITIES WILL DECLINE STEADILY AS DWINDLING SUPPLIES INCREASINGLY ARE DIVERTED TO HIGHER PRIORITY SITES WITH COMPATIBLE EQUIPMENT. KARKH, IRAO'S LARGEST WATERTREATMENT PLANT (AND ONE OF THE WORLD'S LARGEST), WAS DESIGNED TO STORE 30 DAYS OF SUPPLIES ON SITE. THE QUANTITY OF SUPPLIES, IF ANY, NORMALLY STOCKPILED IN CENTRALIZED WAREHOUSES BEFORE SHIPMENT TO TREATMENT PLANTS IS UNKNOWN, BUT A 6 MONTH TO I YEAR SUPPLY OF CHEMICALS IS THE NORMAL INDUSTRIAL PRACTICE. HOWEVER, CURRENT IRAQI EFFORTS TO OBTAIN CHEMICALS AND MEMBRANES AND THE INSTALLATION OF A PIPELINE TO OBTAIN PURE KUWAITI WATER SUGGEST THAT THERE WAS NOT ADEOUATE STOCKPILING PRIOR TO THE INVASION OF KUWAIT. SOME CHEMICALS ARE DEPLETED OR ARE NEARING DEPLETION, AND OLDER MEMBRANES ARE NOT BEING REPLACED ON SCHEDULE. CONSEOUENTLY, IRAQ PROBABLY IS USING UNTREATED OR PARTIALLY TREATED WATER IN SOME LOCATIONS. FULL DEGRADATION OF THE WATER TREATMENT SYSTEM PROBABLY WILL TAKE AT LEAST ANOTHER 6 MONTHS. [ (b)(2) ]
United States’ Foreseeability, Awareness and Knowledge of the Consequences of the Sanctions Against Iraq
In order to determine to which extent individual leaders who imposed and maintained economic sanctions against Iraq can be held responsible for the adverse consequences of their acts, including massive child mortality, it is important to determine the extent to which these persons had been aware of the foreseeable consequences of their decisions and informed about such consequences as the sanctions unfolded. The question of knowledge (or awareness) is an important element in determining the existence or absence of a culpable intent, particularly when an actor denies having intended the adverse consequences of his acts. A general, though rebuttable, presumption in law is that a person intends the foreseeable consequences of his acts. As will be seen below, the US administration possessed adequate data to predict the adverse consequences of the sanctions on Iraq before they were imposed, was informed of the consequences as they unfolded, and was kept informed on these consequences all along the sanctions’ period. Not only was the US administration aware of these consequences, but it was determined to cause severe hardships in Iraq, as a means to force the compliance of the Iraqi government with the will of the U.S. administration, as reflected in Security Council resolutions. The question whether other governments shared the U.S. administration’s foreseeability, awareness and knowledge of the consequences of the Iraq sanctions – and the same intent to cause hardships – will not be dealt with in the present study.
1. Knowledge as a mental element in criminal law
2. The applicability of the notion of foreseeability, awareness and knowledge to the imposition of economic sanctions against Iraq
(a) Foreknowledge: The period before the imposition of the Iraq sanctions
(b) Members of Congress knew what consequences could be expected from the sanctions on Iraq
(c) The U.S. administration was informed on the consequences of the Iraq sanctions during the entire sanctions period
(d) U.S. leaders acknowledged the causality between the sanctions and the humanitarian situation in Iraq
3. Concluding observations
For the entire article, open attachment below
State policy as an element of international crimes
“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.
II. 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 plan. (22)
Thus, the Srebrenica prosecutions to date have not involved any debate about whether isolated individuals can commit genocide. The Trial Chambers and the Appeals Chamber have concluded that the mass killings of Bosnian men were part of an “execution plan” formulated by a State or state-like entity. (23) All of the other genocide prosecutions at the International Criminal Tribunal for the former Yugoslavia (ICTY) have led to acquittals or abandonment of the charge of genocide. At the International Criminal Tribunal for Rwanda (ICTR), the issue has never even arisen. All knowledgeable observers understand that the Rwandan genocide involved a plan or policy emanating from the State or, at the very least, from a powerful clique within it.
Nevertheless, the evidence in the Srebrenica cases also shows that the execution plan was a last-minute, improvised business, devised by General Mladic and his close collaborators on or about July 11-12, 1995. As such, the Prosecutor apparently did not seriously attempt to establish the existence of a plan prior to that date, one that was part of an overall genocidal strategy of the Bosnian Serb leadership. (24) Thus, the evidence in the Srebrenica trials has not tended to suggest a genocidal plan going beyond the vision of the local military leadership. Nothing produced in the Milosevic trial or in proceedings before the International Court of Justice in the Application by Bosnia and Herzegovina against Serbia and Montenegro supports the suggestion that the Srebrenica massacre was organized, planned, and coordinated, in its so-called genocidal dimension, at a higher level, or that it responded to the imperatives of a strategic plan. Rather, it has been presented as a perverse local variant on the Serbian ethnic cleansing campaign. As the International Court of Justice has confirmed, the ethnic cleansing program in general is not recognized as being genocidal. (25) Therefore, establishing that the Srebrenica massacre was organized at the local level and that it was not simply a random act does not necessarily respond to a requirement that genocide be committed pursuant to a State policy. Imposing such a criterion would therefore compel a reassessment of the allegedly genocidal nature of the crimes committed at Srebrenica in July 1995.
Unfortunately, the ICTY Appeals Chamber extended its approach on the State policy issue–the existence of a plan or policy is not a legal ingredient of the crime–from genocide to encompass crimes against humanity. (26) Indeed, it referred to its ruling on this point in Jelisic in support. (27) In Jelisic, the ICTY had relied on a literal reading of the definition of the crime. The text of the definition contains no explicit requirement of a plan or policy. Similarly, with respect to crimes against humanity, the text of the Statute contains no explicit requirement of a plan or policy. On the other hand, the Appeals Chamber noted that there had been a significant debate on the matter in the case law and the academic literature. Astonishingly, however, the discussion of this important point was confined to a footnote in the judgment of the Appeals Chamber! (28) When the authorities cited in the reference are scrutinized, it is not at all apparent how many of them assist in the conclusion that a State plan or policy is not an element of crimes against humanity.
Generally speaking, the ICTY’s very summary discussion of the issue of a State plan or policy with respect to both crimes against humanity and genocide has an air of the superficial. The result reached–that a State plan or policy is not a required element–appears to be a results-oriented political decision rather than a profound analysis of the history of the two crimes or of their theoretical underpinnings. The ICTY also appears to have ignored the drafting histories of the crimes as well as subsequent developments such as the work of the International Law Commission.
The ICTY’s determination that no State plan or policy is required for crimes against humanity has proven to be more significant than in the case of genocide. For example, the Kunarac case involved the detention of women civilians in appalling conditions and their regular mistreatment, including rape. These were crimes committed by members of an organized paramilitary group, but they were not necessarily attributable to a State plan or policy. Kunarac was convicted of crimes against humanity. Expanding the concept of crimes against humanity by eliminating any requirement of a State plan or policy was therefore of considerable legal significance. (29)
To be certain, the Appeals chamber has not denied the relevance of a plan or policy in the commission of genocide and crimes against humanity. For example, in Krstic the Chamber wrote:
While the existence of such a plan may help to establish that the accused possessed the requisite genocidal intent, it remains only evidence supporting the inference of intent, and does not become a legal ingredient of the offence. Similarly, the Appeals Chamber has rejected the argument that the legal elements of crimes against humanity (which include extermination) require a proof of the existence of a plan or policy to commit these crimes. The presence of such a plan or policy may be important evidence that the attack against a civilian population was widespread or systematic, but it is not a legal element of a crime against humanity. (30)
Eliminating the State plan or policy element from crimes against humanity has the potential to make the concept applicable to a wide range of criminal acts that go beyond those that are merely random or isolated. 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. This was certainly not what was intended by the U.N. War Crimes Commission, the London Conference, and the International Military Tribunal when the category of crimes against humanity first received legal definition at the conclusion of the Second World War.
The first codification of crimes against humanity, in Article VI(c) of the Charter of the International Military Tribunal, does not explicitly establish a State plan or policy as an element of crimes against humanity. Presumably it is for this reason that the Appeals Chamber of the ICTY cited Article VI(c) as its first authority for the proposition that there is no State plan or policy element in customary international law. (31) However, as mentioned above, the introductory paragraph or chapeau of Article VI of the Charter of the International Military Tribunal specifies that accused persons must have been “acting in the interests of the European Axis countries, whether as individuals or as members of organizations.” Moreover, the so-called nexus that requires that crimes against humanity be committed “in connection with any crime within the jurisdiction of the Tribunal” had the effect of linking them to crimes which are themselves associated with a State plan or policy, namely war crimes and crimes against peace. Probably the possibility that crimes against humanity might apply to what are today called non-State actors crossed the minds of those who drafted the Charter of the International Military Tribunal.
It is of course true that Nazi propagandist Julius Streicher was convicted of crimes against humanity by the International Military Tribunal despite the conclusion that “the evidence fails to establish his connection with the conspiracy or common plan to wage aggressive war as that conspiracy has been elsewhere defined in this Judgment.” (32) Streicher was a gauleiter, or regional party leader, a position of some importance in the Nazi regime. Moreover, his crimes consisted essentially of being a propagandist for Nazi policy. It seems to be reading a lot into the judgment to assert, as did the ICTY Appeals Chamber in Kunarac, that his conviction is authority for the view that there is no State plan or policy element with respect to crimes against humanity.
Another example given by the Kunarac Appeals Chamber is that of Baldur von Schirach. Since the 1920s, von Schirach had been leader of the Hitler Youth. (33) During the war, he was Gauleiter, Reichs Governor, and Reichs Defense Commissioner for Vienna. (34) The Nuremberg Tribunal convicted von Schirach of crimes against humanity for atrocities committed during the Nazi occupation of Austria. (35) The convictions of these Nazi figures at Nuremberg may support the position that a perpetrator of crimes against humanity need not be an “insider” in the plan. However, it cannot buttress the argument that crimes against humanity do not require the existence of a plan, something of which there was no shortage in Nazi Germany.
The International Military Tribunal never directly addressed the issue of whether a plan or policy was an element of the international crimes being prosecuted. The reason is obvious: the Nazi plan and policy to wage aggressive war and to exterminate the Jews of Europe underpinned the entire case. Why would the Tribunal ever have even spoken to the issue, under the circumstances? For the same reasons, the Israel v. Eichmann case (36)–another source upon which the Kunarac Appeals Chamber relied-seems flimsy authority indeed for the suggestion that there is no plan or policy element to crimes against humanity. The Eichmann court’s entire judgment is based upon evidence of the Nazi plan or policy. The Israeli judges concluded that Eichmann had known of the “secret of the plan for extermination” since mid-1941. (37) He was acquitted of genocide for acts committed prior to that date. (38)
Much of the reasoning of the Kunarac Appeals Chamber relies upon the literal text of the definitions of crimes against humanity and genocide set out in the ICTY Statute, where there is no explicit reference to a State plan or policy. Yet the same can be said of the “widespread or systematic” language that the Kunarac Appeals Chamber has contended is the defining contextual element of crimes against humanity. The Nuremberg Judgment used the words “widespread” and “systematic” on many occasions, but in a general sense, applicable to all of the Nazi atrocities and not as in any way a definitional element of crimes against humanity. (39) In Eichmann, the word “widespread” appeared only once (“The Accused also headed a widespread establishment of officials”) (40) and “systematic” was not used at all. If the failure of the Kunarac Appeals Chamber to find the plan or policy element in Nuremberg and Eichmann is an argument for dismissing its relevance at customary international law, can’t the same thing be said about “widespread or systematic”?
An important and rather glaring oversight in the Appeals Chamber’s analysis in the famous footnote in Kunarac on this important issue is Article 7(2)(a) of the Rome Statute, which states that crimes against humanity must be committed in the course of an “attack directed against any civilian population” that is “pursuant to or in furtherance of a State or organizational policy to commit such attack.” (41) The Appeals Chamber has not hesitated to invoke the Rome Statute as authority for customary international law when the Statute’s text corresponds to the Chamber’s own views on a particular point. In Tadic, for example, when it was first enunciating the theory of joint criminal enterprise, the ICTY Appeals Chamber pointed to Article 25(3)(d) of the Rome Statute as important evidence of the opinio juris of States and, therefore, of customary law. (42) Of course, Article 7(2)(a) of the Rome Statute leaves room for interpretation, but there can be no doubt that it imposes some kind of contextual element involving a policy. At the very least, the suggestion in the Rome Statute that crimes against humanity have this policy requirement should have been addressed in any reasonably thorough analysis of the question.
Another noteworthy oversight in the Kunarac Appeals Chamber’s discussion of the question is the Chamber’s failure to mention some of the significant national decisions dealing with crimes against humanity. It cited three Canadian cases from lower courts, but did not mention what was at the time the leading case on crimes against humanity of the Supreme Court of Canada, Regina v. Finta. The ICTY Appeals Chamber had earlier referred to the Finta ruling in Tadie, a case where its own views coincided with those expressed by the Canadian Supreme Court. (43) On the State policy issue, however, Finta was not helpful to the Appeals Chamber, and it was simply ignored. In Finta, the majority of the Supreme Court of Canada said that “‘state action or policy’ was a prerequisite legal element of crimes against humanity.” (44) Similarly, in applying the French Code penal, (45) French cases have taken this as requiring a State plan or policy which requires evidence that crimes against humanity were “organised in the pursuit of a concerted plan against a group of a civil population.” (46)
Among the authorities listed by the Kunarae Appeals Chamber to support its position that there is no policy element is the Report of the Secretary-General to the Security Council on the draft ICTY Statute. The footnote in Kunarae cites paragraphs 47 and 48 of that Report as proof of the “overwhelming support” of the contention that there is no State plan or policy requirement under customary international law. The text of the cited paragraphs reads:
47. Crimes against humanity were first recognized in the Charter and Judgement of the Nurnberg Tribunal, as well as in Law No. 10 of the Control Council for Germany. Crimes against humanity are aimed at any civilian population and are prohibited regardless of whether they are committed in an armed conflict, international or internal in character.
48. Crimes against humanity refer to inhumane acts of a very serious nature, such as wilful killing, torture or rape, committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds. In the conflict in the territory of the former Yugoslavia, such inhumane acts have taken the form of so-called “ethnic cleansing” and widespread and systematic rape and other forms of sexual assault, including enforced prostitution. (47)
Do these two relatively laconic paragraphs really provide “overwhelming support” for the Kunarac Appeals Chamber’s position?
The footnote in Kunarac also refers to the 1954 draft Code of Offences Against the Peace and Security of Mankind developed by the International Law Commission as an authority supporting its view that there is no State plan or policy element. The contrary would actually appear to be the case. The 1954 draft of the Commission’s definition of crimes against humanity reads as follows: “Inhuman acts such as murder, extermination, enslavement, deportation or persecution, committed against any civilian population on social, political, racial, religious or cultural grounds by the authorities of a State or by private individuals acting at the instigation or with the toleration of such authorities.” (48) Members of the Commission had been attempting to reformulate the Nuremberg definition of crimes against humanity so as to eliminate the requirement of a connection with armed conflict. They voted to eliminate this nexus, but initially put nothing in its place. (49) At the next day’s meeting, after a night of reflection, the members of the Commission realized that without the contextual element of armed conflict they had made it difficult to distinguish between crimes against humanity and ordinary crimes. They decided to reconsider their earlier decision, (50) and subsequently voted to add the words “[i]nhuman acts by the authorities of a State or by private individuals acting under the instigation or toleration of the authorities against any civilian population.” (51) The Report of the International Law Commission concluded:
[I]n order not to characterize any inhuman act committed by a private individual as an international crime, it was found necessary to provide that such an act constitutes an international crime only if committed by the private individual at the instigation or with the toleration of the authorities of a State. (52)
The International Law Commission did not revisit the draft code for nearly thirty years. In the 1980s, it went through a decade of often extravagant attempts at progressive codification before, at one point, deciding to abandon the classification of crimes against humanity altogether. (53) Basically, the Commission reformulated crimes against humanity as an umbrella concept addressing gross or systematic violations of human fights. The issue of State policy was rarely discussed during this period, although to the extent that the Commission had focused on human rights violations, it can be said that State involvement may have been viewed as a sine qua non.
When it produced the final version of the Code of Crimes Against the Peace and Security of Mankind in 1996, the International Law Commission dramatically revised its earlier drafts, and declared that the purpose of the threshold in crimes against humanity is to exclude “a random act” or “an isolated inhumane act.” (54) Although the Commentary did not explicitly mention non-State actors or provide any examples to assist in understanding its views, it said that “[t]he instigation or direction of a Government or any organization or group, which may or may not be affiliated with a Government, gives the act its great dimension and makes it a crime against humanity imputable to private persons or agents of a State.” (55) The Commission supported this proposition by citing the Nuremberg judgment, specifically the convictions of Streicher and von Schirach. The rationale of the Tribunal seems to have been that they were acquitted of crimes against peace because they were not Nazi insiders. However, even if Streicher and von Schirach were non-State actors in that they were not part of Hitler’s inner circle, their acts were not random or isolated precisely because they were part of the Nazi plan or policy to persecute minorities, as has already been noted earlier in this Article.
III. GENOCIDE: SPECIFIC INTENT OR POLICY?
With respect to genocide, it is self-evident that nothing in the text of the definition of genocide explicitly identifies the existence of a State plan or policy as an element of the crime of genocide. Genocide was originally defined in Article II of the 1948 Genocide Convention, but an essentially identical provision appears in such modern instruments as the ICTY Statute, (56) the ICTR Statute, (57) and the Rome Statute. (58) During the drafting of the Genocide Convention in 1948, proposals to include an explicit requirement that genocide be planned by a government were rejected. (59) Nevertheless, while theoretical exceptions cannot be ruled out, it is nearly impossible to imagine genocide that is not planned and organized either by the State itself or a State-like entity, or by some clique associated with it. Raphael Lemkin, the scholar who first proposed the concept of genocide in his book Axis Rule in Occupied Europe, spoke regularly of a plan as if this was a sine qua non for the crime of genocide. (60) In the case of Prosecutor v. Kayishema, the ICTR Trial Chamber wrote: “[A]lthough a specific plan to destroy does not constitute an element of genocide, it would appear that it is not easy to carry out a genocide without a plan or organization.” (61) Furthermore, the Chamber said that “the existence of such a plan would be strong evidence of the specific intent requirement for the crime of genocide.” (62)
The 1996 Commentary of the International Law Commission on its draft Code of Crimes Against the Peace and Security of Mankind seemed to recognize that a State plan or policy was central to the crime of genocide:
The extent of knowledge of the details of a plan or a policy to carry out the crime of genocide would vary depending on the position of the perpetrator in the governmental hierarchy or the military command structure. This does not mean that a subordinate who actually carries out the plan or policy cannot be held responsible for the crime of genocide simply because he did not possess the same degree of information concerning the overall plan or policy as his superiors. The definition of the crime of genocide requires a degree of knowledge of the ultimate objective of the criminal conduct rather than knowledge of every detail of a comprehensive plan or policy of genocide. (63)
The Elements of Crimes, adopted by the Assembly of States Parties of the International Criminal Court in September 2002, includes the following element of the crime of genocide: “The conduct took place in the context of a manifest pattern of similar conduct directed against that group or was conduct that could itself effect such destruction.” (64) The Elements eschews the words plan or policy in favor of requiring a “manifest pattern of similar conduct,” but any difference between the two expressions would appear to be largely semantic. Surprisingly, the ICTY Appeals Chamber did not even consider, in either Jelisic or Kunarac, this rather compelling evidence of opinio juris for the presence of a State policy component with respect to genocide and, by analogy, crimes against humanity. (65)
IV. BLURRING STATE RESPONSIBILITY AND INDIVIDUAL CRIMINAL LIABILITY
Good evidence as to why a State policy is so important to any determination of the crime of genocide appears in the Report of the Commission of Inquiry on Darfur, set up in late 2004 at the behest of the U.N. Security Council and chaired by the distinguished international legal scholar Antonio Cassese. Answering the Security Council’s question of “whether or not acts of genocide have occulted,” (66) the Darfur Commission said “that the Government of Sudan has not pursued a policy of genocide.” (67) Explaining its position, the Commission said:
However, one crucial element appears to be missing, at leas as far as the central Government authorities are concerned: genocidal intent. Generally speaking the policy of attacking, killing and forcibly displacing members of some tribes does not evince a specific intent to annihilate, in whole or in part, a group distinguished on racial, ethnic, national or religious grounds. Rather, it would seem that those who planned and organized attacks on villages pursued the intent to drive the victims from their homes, primarily for purposes of counter-insurgency warfare. (68)
The Darfur Commission did not challenge the case law of the ICTY Appeals Chamber, and did not exclude the possibility that an individual acting alone might have committed genocidal acts. (69) In practice, it attempted to answer the U.N. Security Council’s question, whether acts of genocide were committed in Darfur, by looking for evidence of a policy devised by the Sudanese State. A similar phenomenon appears in the February 2007 judgment of the International Court of Justice (ICJ) on the claim filed by Bosnia and Herzegovina against Serbia and Montenegro pursuant to Article 9 of the Convention on the Prevention and Punishment of the Crime of Genocide, in which the ICJ discussed whether or not the policy of Serbia and its Bosnian allies was one of ethnic cleansing or of genocide. (70)
Both the Darfur Commission and the ICJ looked at genocide through a lens that included State responsibility within its scope. If either actually accepted the theory that genocide does not require a State plan or policy and that it can be committed by a lone perpetrator, they would have looked for evidence that a single individual whose acts were attributable to Sudan or to Serbia had killed a member of a targeted group with the intent to destroy it in whole or in part. The Darfur Commission interpreted the request of the U.N. Security Council that it “determine also whether or not acts of genocide have occurred” to mean whether or not Sudan had a plan or policy to commit such acts. The International Court of Justice reasoned along the same lines.
Both institutions attempted to apply the definition of genocide found in Article II of the 1948 Genocide Convention, which describes genocide as one of five punishable acts, including killing “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” These words distinguish genocide from garden-variety killing. Judgments of the international criminal tribunals are replete with declarations that the defining element of genocide is this “specific intent” or “special intent” or, for continental jurists, its dolus specialis. (71) The Darfur Commission described the requirement as follows:
[A]n aggravated criminal intention or dolus specialis: it implies that the perpetrator consciously desired the prohibited acts he committed to result in the destruction, in whole or in part, of the group as such, and knew that his acts would destroy in whole or in part, the group as such. (72)
The Darfur Commission actually associated the notion of policy with that of specific intent: “Generally speaking the policy of attacking, killing and forcibly displacing members of some tribes does not evince a specific intent to annihilate, in whole or in part, a group distinguished on racial, ethnic, national or religious grounds.” (73)
For the International Court of Justice, the acts must be committed “with the necessary specific intent (dolus specialis), that is to say, with a view to the destruction of the group, as distinct from its removal from the region.” (74) The ICJ concluded “that it has been conclusively established that the massive killings of members of the protected group were committed with the specific intent (dolus specialis) on the part of the perpetrators to destroy, in whole or in part, the group as such.” (75) Note that the Court referred to “the perpetrators” in a collective sense. The judgment includes a particularly interesting discussion of specific intent in the context of the Srebrenica massacre:
The issue of intent has been illuminated by the [Krstic] Trial Chamber. In its findings, it was convinced of the existence of intent by the evidence placed before it. Under the heading “A Plan to Execute the Bosnian Muslim Men of Srebrenica,” the Chamber “finds that, following the takeover 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”…. (76)
As can be seen, in effect the ICJ analyzes specific intent in terms of the existence of a plan, but in criminal law, this is not such a straightforward matter. Several individuals may participate in a common plan, but this does not necessarily mean that they all share the same specific intent.
In the Bosnia case, the Applicant was responsible for some of the blurring of the distinction between specific intent and a State plan or policy. The Court noted:
[T]his argument of the Applicant moves from the intent of the individual perpetrators of the alleged acts of genocide complained of, to the intent of higher authority, whether within the VRS or the Republika Srpska, or at the level of the Government of the Respondent itself. In the absence of an official statement of aims reflecting such an intent, the Applicant contends that the specific intent (dolus specialis) of those directing the course of events is clear from the consistency of practices, particularly in the camps, showing that the pattern was of acts committed “within an organized institutional framework.” (77)
In effect, Bosnia was arguing that the specific intent to commit genocide could be shown by a pattern of acts perpetrated “within an organized institutional framework.” The ICJ considered evidence of official statements by Bosnian Serb officials, but observed:
The Applicant’s argument does not come to terms with the fact that an essential motive of much of the Bosnian Serb leadership[,] to create a larger Serb State, by a war of conquest if necessary[,] did not necessarily require the destruction of the Bosnian Muslims and other communities, but their expulsion. (78)
Here the Court added yet another ingredient to the discussion: the question of motive. Again, policy is the better term to describe what was being considered. Conflating specific intent and plan or policy, the Court concluded: “The dolus specialis, the specific intent to destroy the group in whole or in part, has to be convincingly shown by reference to particular circumstances, unless a general plan to that end can be convincingly demonstrated to exist.” (79) Moreover, “[T]he Applicant has not established the existence of that intent on the part of the Respondent, either on the basis of a concerted plan, or on the basis that the events reviewed above reveal a consistent pattern of conduct which could only point to the existence of such intent.” (80)
Neither the Darfur Commission nor the ICJ was looking for the specific intent of individual offenders. Rather, they were looking for the specific intent of a State, like Sudan, or a State-like entity, like the Bosnian Serbs. States, however, do not have specific intent. Individuals have specific intent. States have policy. The term specific intent is used to describe the inquiry, but its real subject is State policy. It seems plausible, indeed, likely, that in a campaign of ethnic cleansing carried out at the instigation of a State on a large scale, there will be individual perpetrators who are so driven by racist hatred that they will seek the physical extermination of the victimized group. In other words, acts whose purpose is not genocidal may be perpetrated by groups of individuals, some of whom have genocidal intent. Obviously, when asked whether “acts of genocide been committed,” bodies like the Darfur Commission and the ICJ do not pursue their search for these marginal individuals. Rather, they look to the policy.
An important legal difficulty here concerns the relationship between State responsibility and individual criminal liability. The Darfur Commission and the International Court of Justice appear to address this through the fiction that a State can have a specific intent. It might be more productive to reverse this logic. Instead of a mechanistic and unsatisfying attempt to impose concepts that belong to individual liability on the behavior of a State, it would be better to take the State policy as the starting point and attempt to relate this to individual guilt. Following this approach, the first issue to be resolved in a determination as to whether genocide is being committed is whether there exists a State policy. If the answer is affirmative, then the inquiry shifts to the individual, with the central question being not the individual’s intent, but rather the individual’s knowledge of the policy. Individual intent arises, in any event, because the specific acts of genocide, such as killing, have their own mental element, but as far as the plan or policy is concerned, knowledge is the key to criminality.
One important difficulty that this approach helps to resolve is the potential for different results in terms of State responsibility and individual criminal liability, but it also assists in addressing another problem that has perplexed judges at the international tribunals, that of complicity in genocide. They have addressed complicity by convicting those who assist in perpetrating the crime to the extent that the accused knows the intent of the perpetrator. (81) Again, it is not really very realistic to expect an individual to know the intent of another, especially when it is specific intent that is being considered. Even courts will only deduce the intent from the behavior of the perpetrator. The inquiry seems much more logical and efficient when the question to be posed is whether the accomplice had knowledge of the policy. General Krstic was convicted of complicity because the Appeals Chamber believed that he knew of the policy being pursued by General Mladic, not because it believed he had read Mladic’s mind and knew of his “specific intent.
Admittedly, this amounts to a radical rethinking of the definition of genocide. It involves reading in to the definition adopted in the 1948 Genocide Convention an element that is, at best, only there by implication. There is nothing inadmissible about this, from the standpoint of treaty interpretation. It may not be justified with reference to the travaux preparatoires, but as Judge Shahabuddeen of the ICTY Appeals Chamber noted in his dissenting opinion in Krstic, excessive reliance should not be placed on drafting history. (82) Confirming the importance of a State plan or policy as an element of the crime of genocide has many advantages in terms of coherence and judicial policy.
The same is, of course, true of crimes against humanity. In a recent judgment dealing with crimes against humanity, the Supreme Court of Canada, which a decade earlier had affirmed that State policy was an element of crimes against humanity, (83) took note of recent developments in international case law: “It seems that there is currently no requirement in customary international law that a policy underlie the attack, though we do not discount the possibility that customary international law may evolve over time so as to incorporate a policy requirement.” (84)
V. STATE OR “ORGANIZATIONAL” POLICY
An important objection to such an interpretation of genocide, and crimes against humanity, is the exclusion of non-State actors. This problem can be adequately addressed by a broad construction of the concept of State policy so as to apply to State-like actors as well as States in the formal sense. Bodies like the Republika SrpSka, the FARC, the Palestinian Authority, and perhaps the government of Taiwan would be addressed in this manner, but not organizations like the Hell’s Angels or the mafia.
Even outside the context of customary international law, this issue will arise in the interpretation of Article 7(2)(a) of the Rome Statute, with its reference to a “State or organizational policy” as a contextual requirement for crimes against humanity. Dictionary definitions consider an organization to comprise any organized group of people, such as a club, society, trade union, or business. Surely the drafters of the Rome Statute did not intend for Article 7 to have such a broad scope, given that all previous case law concerning crimes against humanity, and all evidence of national prosecutions for crimes against humanity, had concerned State-supported atrocities. If they really meant to include any type of organization, such as a highly theoretical “organization” of two people, why did they put these words in at all? The biggest problem for the proponents of the broad view is their inability to explain how the term organization is to be qualified.
In his recent three-volume work, The Legislative History of the International Criminal Court, one of the leading experts on crimes against humanity, Professor M. Cherif Bassiouni, argues:
Contrary to what some advocates advance, Article 7 does not bring a new development to crimes against humanity, namely its applicability to non-state actors. If that were the case, the mafia, for example, could be charged with such crimes before the ICC, and that is clearly neither the letter nor the spirit of Article 7. The question arose after 9/11 as to whether a group such as al-Qaeda, which operates on a worldwide basis and is capable of inflicting significant harm in more than one state, falls within this category. In this author’s opinion, such a group does not qualify for inclusion within the meaning of crimes against humanity as defined in Article 7, and for that matter, under any definition of that crime up to Article 6(c) of the IMT, notwithstanding the international dangers that it poses…. The text [of article 7(2)] clearly refers to state policy, and the words “organisational policy” do not refer to the policy of an organisation, but the policy of a state. It does not refer to non-state actors …. (85)
Professor Bassiouni may be pitching this a little too high because his approach excludes the State-like actors. As I understand his view, the term organization is meant to encompass bodies within a State such as the Gestapo and the SS.
At a time when the ICTY Prosecutor appeared to consider that State policy was an essential element of crimes against humanity, she took the view that it need not be confined to State policy, but that it could also be that of a State-like body. Here is how the argument was explained in 1997, in Tactic:
An additional issue concerns the nature of the entity behind the policy. The traditional conception was, in fact, not only that a policy must be present but that the policy must be that of a State, as was the case in Nazi Germany. The prevailing opinion was, as explained by one commentator, that crimes against humanity, as crimes of a collective nature, require a State policy “because their commission requires the use of the state’s institutions, personnel and resources in order to commit, or refrain from preventing the commission of, the specified crimes described in Article 6(c) [of the Numberg Charter]”. While this may have been the case during the Second World War, and thus the jurisprudence followed by courts adjudicating charges of crimes against humanity based on events alleged to have occurred during this period, this is no longer the case. As the first international tribunal to consider charges of crimes against humanity alleged to have occurred after the Second World War, the International Tribunal is not bound by past doctrine but must apply customary international law as it stood at the time of the offences. In this regard the law in relation to crimes against humanity has developed to take into account forces which, although not those of the legitimate government, have de facto control over, or are able to move freely within, defined territory. The Prosecution in its pre-trial brief argues that under international law crimes against humanity can be committed on behalf of entities exercising de facto control over a particular territory but without international recognition or formal status of a “de jure” state, or by a terrorist group or organization. The Defence does not challenge this assertion, which conforms with recent statements regarding crimes against humanity. (86)
Returning to the origins of the concept at Nuremberg, it seems clear that the rationale for recognition of crimes against humanity was to punish crimes that were either authorized by Nazi law or tolerated by the authorities. Isn’t that why Article VI(c) of the Charter of the International Military Tribunal concludes with the words “whether or not in violation of the domestic law of the court where perpetrated….”? (87) Over the decades, a principal rationale for prosecuting crimes against humanity as such has been the fact that such atrocities generally escape prosecution in the State that normally exercises jurisdiction, under the territorial or active personality principles, because of the State’s own involvement or acquiescence. International atrocity crimes, (88) and crimes against humanity in particular, were created so that such acts could be punished elsewhere, and therefore so that impunity could be addressed effectively.
We do not, by and large, have the same problem of impunity with respect to non-State actors. Most States are both willing and able to prosecute the terrorist groups, rebels, mafias, motorcycle gangs, and serial killers who operate within their own borders. At best, international law is mainly of assistance here in the area of mutual legal assistance. For example, there is little real utility in defining terrorism as an international crime because, as a general rule, the States where the crimes are actually committed are willing and able to prosecute. Usually, they have difficulty apprehending the offenders. However, this problem is addressed through international cooperation rather than by defining the acts as international crimes so that they may be subject to universal jurisdiction or by establishing international tribunals for their prosecution.
VI. JOINT CRIMINAL ENTERPRISE, “LARGE-SCALE CRIMES,” AND STATE PLAN OR POLICY
Although not identified as such in the statutes of the ad hoc Tribunals, judges have developed a potent theoretical model of accomplice liability known as joint criminal enterprise. Describing the concept, the ICTY Appeals Chamber explained that “international criminal responsibility embraces actions perpetrated by a collectivity of persons in furtherance of a common criminal design.” (89) The idea is similar to well-known concepts of common purpose complicity in domestic legal systems. According to the recent authorities, the approach is rooted in customary international law, as evidenced with reference to post-Second World War prosecutions, (90) to Article 25(3)(d) of the Rome Statute, and to the provision on which it is based, Article 2(3)(c) of the International Convention for the Suppression of Terrorist Bombings. (91)
In the Tadic Judgment, the ICTY Appeals Chamber noted that often “collective criminality” will involve situations where all co-defendants, acting pursuant to a common design, possess the same criminal intention. There are, however, instances:
W]here one of the perpetrators commits an act which, while outside the common design, was nevertheless a natural and foreseeable consequence of the effecting of that common purpose. An example of this would be a common, shared intention on the part of a group to forcibly remove members of one ethnicity from their town, village or region (to effect “ethnic cleansing”) with the consequence that, in the course of doing so, one or more of the victims is shot and killed. While murder may not have been explicitly acknowledged to be part of the common design, it was nevertheless foreseeable that the forcible removal of civilians at gunpoint might well result in the deaths of one or more of those civilians. Criminal responsibility may be imputed to all participants within the common enterprise where the risk of death occurring was both a predictable consequence of the execution of the common design and the accused was either reckless or indifferent to that risk. (92)
The Appeals Chamber has described this concept as the “extended” form of joint criminal enterprise liability. (93)
Tadic found authority for three categories of joint criminal enterprise liability. The first category involves cases where all co-defendants, acting pursuant to a common design, possess the same criminal intention. (94) The second category is similar to the first category, with the common purpose being applied “to instances where the offences charged were alleged to have been committed by members of military or administrative units such as those running concentration camps.” (95) In both the first and second categories, the participant must have the criminal intent to commit the actual crime. Only in the third extended category is it required that the act be merely a foreseeable consequence of affecting the common purpose, which is an essentially objective standard of knowledge. In other words, the third category allows the conviction of an individual who did not actually intend for the crime to be committed or have actual knowledge that his or her accomplices would commit it.
The doctrine of joint criminal enterprise was first enunciated in a case involving a low-level offender who had joined associates in a raid on a village as part of a campaign of ethnic cleansing. Dusko Tadic was acquitted by the Trial Chamber of five murders committed by his associates in Jaskici because it had not been proven that he had personally intended them, (96) but the verdict was overturned and a conviction entered by the Appeals Chamber on the basis of the joint criminal enterprise theory. (97) The context of this prosecution, which was in many ways characteristic of many early prosecutions involving offenders whose place in the criminal hierarchy was insignificant, colored the legal descriptions of the joint criminal enterprise concept. The paradigm for joint criminal enterprise was a gang of bank robbers, not the Nazi party.
The joint criminal enterprise theory was obviously of great potential in leadership cases. It had not been alleged in the first indictment of Slobodan Milosevic, (98) issued several weeks before the Tadic Judgment, but the Prosecutor later amended the allegations to charge:
[P]articipation in a joint criminal enterprise as a co-perpetrator. The purpose of this joint criminal enterprise was, inter alia, the expulsion of a substantial portion of the Kosovo Albanian population from the territory of the province of Kosovo in an effort to ensure continued Serbian control over the province. To fulfil[l] this criminal purpose, each of the accused, acting individually or in concert with each other and with others known and unknown, significantly contributed to the joint criminal enterprise using the de jure and de facto powers available to him. (99)
Nevertheless, the application of joint criminal enterprise to leadership cases remained untested until the verdict in the case of one of the most prominent of the Bosnian Serbs, Radoslav Brdanin, in September 2004. (100) Amongst other responsibilities, he had served as president of the Crisis Group of the Autonomous Region of Krajina. Relying upon earlier formulations by the Appeals Chamber, the Trial Chamber concluded that the joint criminal enterprise theory was inapplicable, and held that the primary perpetrator of the criminal act must be a member of the joint criminal enterprise. (101) The consequence was to confine the doctrine to small groups and to exclude its relevance to large scale criminal plans in which the primary perpetrator may even be ignorant of the overall intentions of the leaders and organizers.
The Appeals Chamber reversed the legal findings of the Trial Chamber, thereby holding that joint criminal enterprise was applicable not only to small cases but to large-scale criminal enterprises involving primary perpetrators or offenders who are personally outside of the common plan. Referring to two post-Second World War cases, the Appeals Chamber said it found strong support for the imposition of criminal liability upon an accused for participation in a common criminal purpose “where the conduct that comprises the criminal actus reus is perpetrated by persons who do not share the common purpose.” There is no requirement of proof “that there was an understanding or an agreement to commit that particular crime between the accused and the principal perpetrator of the crime.” (102)
One of the authorities relied upon by the Brdanin Appeals Chamber, a U.S. Military Tribunal decision known as the Justice Case, involved prosecution of leading judges, magistrates, and prosecutors for their role in implementing the racist and genocidal Nazi policy. (103) The Appeals Chamber cited one of the conclusions in the Justice Case: “The material facts which must be proved in any case are (1) the fact of the great pattern or plan of racial persecution and extermination; and (2) specific conduct of the individual defendant in furtherance of the plan. This is but an application of general concepts of criminal law.” (104) The Appeals Chamber relied heavily on the analysis of Judge lain Bonomy, who in his separate opinion in a preliminary ruling in Prosecutor v. Milutinovic the previous year had also analyzed the Justice Case:
The Military Tribunal appears to have imposed criminal responsibility on both accused for their participation in the common criminal plan although they did not perpetrate the actus reus of the crimes of which they were convicted; the actus reus was instead perpetrated by executioners simply carrying out the orders of the court. Nowhere did the Tribunal discuss the mental state of the executioners who carried out the death sentences imposed as a result of the actions of Lautz, Rothaug, and their fellow participants in the common plan, or whether such persons even had knowledge that the death sentences formed part of a plan to pervert the law for the purpose of exterminating Jews and other “undesirables.” (105)
The other post-Second World War case referred to by the Brdanin Appeals Chamber, and discussed by Judge Bonomy in his separate opinion, involved the SS Race and Resettlement Main Office, and is known as the RuSHA case. The RuSHA leaders were charged with participating in a “systematic program of genocide.” (106) As Judge Bonomy noted:
The Military Tribunal found that the Prosecution had established that there existed among Hitler, Himmler–the leader of the SS–and other Nazi officials a “two-fold objective of weakening and eventually destroying other nations while at the same time strengthening Germany, territorially and biologically, at the expense of conquered nations.” It found additionally that the leadership of RuSHA–and particularly the accused Hofmann and Hildebrandt–adhered to and enthusiastically participated in the execution of this “Germanisation” plan…. (107)
The Appeals Chamber concluded:
The Appeals Chamber notes that it is clear from the Military Tribunal’s discussion of the various aspects of the Germanization plan that Hofmann and Hildebrandt, as the leaders of RuSHA, worked closely and interactively with Himmler, Kaltenbrunner, and other high SS officials in planning the details of how the plan was to be executed, especially with respect to the abortions and abduction programmes. On the basis of their active participation in this plan and their knowledge of the activities carried out pursuant to it, both accused were held responsible for the conduct of the RuSHA agents who carried out the crimes, without any discussion of whether the principal perpetrators had knowledge that their actions formed part of the Germanization plan, or of whether an agreement existed between the accused and these agents. (108)
The Chamber also referred to two exceptions, both of them involving senior leaders, and noted that much of the early case law of the Tribunal dealt with small scale joint criminal enterprises and was not therefore good authority when broader schemes were concerned. (109)
This important development in the case law of the ICTY does not directly concern the issue of State plan or policy as an element of genocide or crimes against humanity. Nevertheless, the discussion by the Appeals Chamber, the separate opinion of Judge Bonomy, and the post-Second World War authorities all underscore the significance of State plan or policy in the prosecutions of leaders.
Article 17(1)(d) of the Rome Statute states that a case may be declared inadmissible where it “is not of sufficient gravity to justify further action by the Court.” The gravity criterion is part of the International Criminal Court’s broader admissibility test, its principal companion being the issue of complementarity. Many early commentators on admissibility treated the matter as essentially synonymous with complementarity, and largely neglected the issue of gravity. (110) An early decision of a Pre-Trial Chamber of the International Criminal Court (ICC) suggests that gravity is far more important than many had initially believed. Pre-Trial Chamber I noted that the gravity threshold was “in addition to the drafters’ careful selection of the crimes included in articles 6 through 8 of the Statute, a selection based on gravity and directed at confining the material jurisdiction of the Court to the most serious crimes of international concern.” (111) As a result, “the relevant conduct must present particular features which render it especially grave.” (112)
Pre-Trial Chamber I said that the gravity threshold was intended to ensure that the ICC pursued cases only against “the most senior leaders” in any given situation under investigation. (113) It said that this factor was comprised of three elements. The first is the position played by the accused person. The second factor is the role played by that person “when the State entities, organizations or armed groups to which they belong commit systematic or large-scale crimes.” The third factor is the role played by such State entities, organizations, or armed groups in the overall commission of crimes. According to the Chamber, because of the position such individuals play, they are also “the ones who can most effectively prevent or stop the commission of those crimes.” (114) The Chamber explained that the gravity threshold was “a key tool provided by the drafters to maximize the Court’s deterrent effect. As a result, the Chamber must conclude that any retributory effect of the activities of the Court must be subordinate to the higher purpose of prevention.” (115) The decision declared:
The Chamber holds that the following two features must be considered. First, the conduct which is the subject of a case must be either systematic (pattern of incidents) or large-scale. If isolated instances of criminal activity were sufficient, there would be no need to establish an additional gravity threshold beyond the gravity-drive selection of the crimes (which are defined by both contextual and specific elements) included within the material jurisdiction of the Court. Second, in assessing the gravity of the relevant conduct, due consideration must be given to the social alarm such conduct may have caused in the international community. (116)
The Pre-Trial Chamber further justified its emphasis on senior leaders with reference to current practice at the ad hoc U.N. international criminal tribunals. It noted Security Council Resolution 1534, which mandates the completion strategy of the ad hoc Tribunals. (117) Resolution 1534 calls for the Chamber to “concentrate on the most senior leaders suspected of being responsible.” (118) Reference was also made to Rule 28(A) of the Rules of Procedure and Evidence of the ICTY, which authorizes the Bureau to block the approval of indictments that do not meet the senior leaders’ standard, and to Rule 11 bis of the Rules of Procedure and Evidence, which establishes “the gravity of the crimes charged and the level of responsibility of the accused” as the standard to be imposed in transferring cases from the international to the national courts. (119) The Pre-Trial Chamber compared the ad hoc Tribunals, with their limited jurisdiction over one crisis situation, to the ICC, with its broad personal, temporal, and territorial jurisdiction. “In the Chamber’s view, it is in this context that one realizes the key role of the additional gravity threshold set out in article 17(1)(d) of the Statute in ensuring the effectiveness of the Court in carrying out its deterrent function and maximizing the deterrent effect of its activities,” the Pre-Trial Chamber concluded. (120)
The authorities on the gravity threshold do not specifically consider policy as a relevant factor. However, their emphasis upon leadership confirms the orientation that international criminal law is now taking. In assessing gravity, for the purpose of selection of cases, the State plan or policy element may prove to be increasingly useful. The existence of a State plan or policy may prove to be decisive in distinguishing the less significant cases from those that deserve to be addressed by international criminal tribunals.
Rulings of the ICTY Appeals Chamber declare that as a matter of customary international law a State policy is not an element of either genocide or crimes against humanity. Unfortunately, with respect to both genocide and crimes against humanity, the Appeals Chamber’s analysis is not particularly profound. In each case, the discussion is exceedingly brief and relies largely upon a literal reading of texts, coupled with a debatable interpretation of a relatively small number of authorities. The rulings suggest that they were driven more by results-oriented judicial policy, given the specifics of prosecutions in the former Yugoslavia, than by in-depth analysis of the legal authorities, the origins of the concepts, and the object and purpose of genocide and crimes against humanity.
The Appeals Chamber of the Tribunal has been extremely influential, and it has clarified many important issues in international criminal law. It does not, however, bind its successors, including the International Criminal Court. (121) Not only do the decisions concerning State plan or policy merit reconsideration, they cannot apply automatically to the Rome Statute and the Elements of Crimes adopted for its application because the provisions vary between each governing Statute. Both the Rome Statute and the Elements of Crimes suggest a role for State plan or policy in the context of prosecutions for genocide and crimes against humanity.
Two recent features of evolving practice in the area of international criminal law also argue for an enhanced role of the State policy. It is now established that the joint criminal enterprise theory applies to large-scale atrocity crimes. The early authorities from the Second World War cases are clear that these crimes will involve leaders who apply policies, even if those who actually carry them out are unwitting participants. There will be two components to establishing mens rea in these cases: Was there a policy? Did the perpetrator know of the policy and act with the intent to further it? The so-called gravity threshold is also of some relevance. As international criminal tribunals focus their attention on a limited number of offenders, they are being directed to leaders. In practice, prosecution of genocide cases will involve identifying a plan or policy and then prosecuting those most responsible for its implementation.
Probably the best argument for strengthening the policy requirement is its capacity to better articulate the relationship between State responsibility and individual criminal liability. The Nuremberg judgment was correct to insist that crimes are committed by individuals and not by abstract entities, but individual crimes committed in isolation from abstract entities are of little or no interest at the international level. Indeed, the existence of a State policy may be the best criterion in distinguishing between individual crimes that belong to national justice systems, and international crimes with their special rules and principles concerning jurisdiction, immunities, statutory limitations, and defenses.
Analysis of the State policy requirement also sheds light on the mens rea debate, especially with respect to genocide. For several years, there has been a preoccupation with identifying the so-called specific intent or dolus specialis of genocide. This is a concept transplanted from national justice systems where it is applied to ordinary crimes. The migration from one system to the other is not without difficulty, however, notably because genocide requires a system for its implementation. Prosecution of perpetrators of genocide would be much more straightforward if we abandoned the inquiry about specific intent in favor of a search for the policy. The individual who knows of the policy and intends to further it should be convicted of genocide. Anyone else can be tried for homicide by ordinary courts.
Concerns that requiring a State policy will leave a so-called impunity gap are misplaced. Most so-called non-State actors find themselves more than adequately challenged by various national justice systems. The needs in prosecution are not a broadening of the definitions of international crimes, but rather a strengthening of international judicial cooperation mechanisms so as to facilitate bringing offenders to book for “ordinary” crimes. Mainly, it is when perpetrators commit heinous acts precisely because they are acting on behalf of a State, and in pursuit of its policies that we require international justice to step in. Insisting that the policy be an element of the crime clarifies the reality of this special form of criminality and facilitates its distinction.
(1) France et. al. v. Goering et. al., 22 IMT 411, 466 (Int’l Mil. Trib. 1946).
(2) Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal, annex art. 6 (Aug. 8, 1945), 82 U.N.T.S. 279.
(5) Prosecutor v. Jelisic, Case No. IT-95-10-T, Judgement, [paragraph] 100 (Dec. 14, 1999), aff’d, Prosecutor v. Jelisie, Case No. IT-95-10-A, Judgement, [paragraph] 48 (July 5, 2001).
(6) Prosecutor v. Kunarae, Case No. IT-96-23/1-A, Judgement, [paragraph] 98 (June 12, 2002).
(7) S.C. Res. 1564, [paragraph] 12, U.N. Doe. S/RES/1564 (Sept. 18, 2004).
(8) Int’l Comm’n of Inquiry on Darfur, Report of the International Commission of Inquiry on Violations of International Humanitarian Law and Human Rights Law in Darfur, [paragraph] 518, U.N. Doc. S/2005/60 (Jan. 25, 2005) [hereinafter Darfur Report].
(9) Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90 [hereinafter Rome Statute].
(10) Preparatory Comm’n on the Establishment of an Int’l Crim. Ct., Addendum, Finalized Draft Text of the Elements of Crimes, U.N. Doc. PCNICC/2000/INF/3/Add.2 (July 6, 2000) [hereinafter Elements of Crimes].
(11) FLORENCE HARTMANN, PAIX ET CHATIMENT 124-32 (2007).
(12) Jelisic, Case No. IT-95-10-T, [paragraph] 98.
(13) Id. [paragraph] 100.
(14) Prosecutor v. Jelisic, Case No. IT-95-10-A, Judgement, [paragraph] 48 (July 5, 2001) (emphasis added). The Appeals Chamber’s dictum was followed in Prosecutor v. Sikirica. Case No. IT-95-8-T, Judgement on Defence Motions to Acquit, [paragraph] 62 (Sept. 3, 2001).
(15) Prosecutor v. Krstic, Case No. IT-98-33-T, Judgement, [paragraph] 687 (Aug. 2, 2001).
(16) Prosecutor v. Krstic, Case No. IT-98-33-A, Judgement, [paragraph] 40 (Apr. 19, 2004).
(17) Prosecutor v. Blagojevic, Case No. IT-02-60-T, Judgement, [paragraph] 797 (Jan. 17, 2005).
(18) Prosecutor v. Blagojevic, Case No. IT-02-60-A, Judgement, [paragraph] 135 (May 9, 2007).
(19) Krstic, Case No. IT-98-33-T, [paragraph] 87; see also id. [paragraph] 427.
(20) Id. [paragraph] 421; see also Krstic, Case No. IT-98-33-A, [paragraph] 238.
(21) Krstic, Case No. IT-98-33-T, [paragraph] 572.
(22) Blagojevic, Case No. IT-02-60-A, [paragraph][paragraph] 122-24.
(23) Krstic, Case No. IT-98-33-T, [paragraph] 361, 468; Krstic, Case No. IT-98-33-A, [paragraph] 61, 100.
(24) Krstic, Case No. IT-98-33-T, [paragraph] 360.
(25) Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.), 2007 I.C.J. 70 (Feb. 26).
(26) Prosecutor v. Kunarac, Case No. IT-96-23/1-A, Judgment, [paragraph] 98, n. 114 (June 12, 2002).
(28) The footnote in question reads:
There has been some debate in the jurisprudence of this Tribunal as to whether a policy or plan constitutes an element of the definition of crimes against humanity. The practice reviewed by the Appeals Chamber overwhelmingly supports the contention that no such requirement exists under customary international law. See, for instance, Article 6(c) of the Nuremberg Charter; Nuremberg Judgement, Trial of the Major War Criminals before the International Military Tribunal, Nuremberg, 14 November 1945–1 October 1945, in particular, pp 84, 254, 304 (Streicher) and 318-319 (von Schirach); Article II(l)(c) of Control Council Law No 10; In re Ahlbrecht, I.L.R. 16/1949, 396; Ivan Timofeyevich Polyukhovich v The Commonwealth of Australia and Anor, (1991) 172 CLR 501; Case FC 91/026; Attorney-General v Adolph Eichmann, District Court of Jerusalem, Criminal Case No. 40/61; Mugesera et al. v Minister of Citizenship and Immigration, IMM-5946-98, 10 May 2001, Federal Court of Canada, Trial Division; In re Trajkovic, District Court of Gjilan (Kosovo, Federal Republic of Yugoslavia), P Nr 68/2000, 6 March 2001; Moreno v Canada (Minister of Employment and Immigration), Federal Court of Canada, Court of Appeal, 1994 1 F.C. 298, 14 September 1993; Sivakumar v. Canada (Minister of Employment and Immigration), Federal Court of Canada, Court of Appeal, 1994 1 F.C. 433, 4 November 1993. See also Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), S/25704, 3 May 1993, paras 47-48; Yearbook of the International Law Commission (ILC), 1954, vol. II, 150; Report of the ILC on the work of its 43rd session, 29 April–19 July 1991, Supplement No 10 (UN Doe No A/46/10), 265-266; its 46th session, 2 May-22 July 1994, Supplement No 10 (UN Doc No A/49/10), 7576; its 47th session, 2 May-21 July 1995, 47, 49 and 50; its 48th session, 6 May–26 July 1996, Supplement No 10 (UN Doc No. A/51/10), 93 and 95-96. The Appeals Chamber reached the same conclusion in relation to the crime of genocide (Jelisic) Appeal Judgement, para 48. Some of the decisions which suggest that a plan or policy is required in law went, in that respect, clearly beyond the text of the statute to be applied (see e.g., Public Prosecutor v Menten, Supreme Court of the Netherlands, 13 January 1981, reprinted in 75 I.L.R. 331,362-363). Other references to a plan or policy which have sometimes been used to support this additional requirement in fact merely highlight the factual circumstances of the case at hand, rather than impose an independent constitutive element (see, e.g., Supreme Court of the British Zone, OGH br. Z., vol. I, 19). Finally, another decision, which has often been quoted in support of the plan or policy requirement, has been shown not to constitute an authoritative statement of customary international law (see In re Altstotter, I.L.R. 14/1947, 278 and 284 and comment thereupon in Ivan Timofeyevich Polyukhovich v. The Commonwealth of Australia and Anor, (1991) 172 CLR 501, pp 586-87).
(29) Kunarac, Case No. IT-96-23/1-A, [paragraph] 27-43.
(30) Prosecutor v. Krstic, Case No. IT-98-33-A, Judgement, [paragraph] 225 (Apr. 19, 2004) (internal citations omitted).
(31) Kunarac, Case No. IT-96-23/1-A, [paragraph] 98, n.114.
(32) France et. al. v. Goering et. al., 22 IMT 411,466 (Int’l Mil. Trib. 1946).
(33) Id. at 563-64.
(34) Id. at 564.
(35) Id. at 564-66.
(36) A.G. Israel v. Eiehmann, 36 I.L.R. 5 (JerDC 1968).
(37) Id. [paragraph] 235.
(39) France et. al. v. Goering et. al., 22 IMT 411, 467, 472, 474, 475, 477, 482, 484, 485, 491,494, 502, 504, 510, 514, 516, 537, 542, 543,547, 567, 575 (Int’l Mil. Trib. 1946).
(40) Eichmann, 36 I.L.R. 5, [paragraph] 231.
(41) Rome Statute, supra note 9.
(42) Prosecutor v. Tadic, Case No. IT-94-1-A, Judgement, [paragraph][paragraph] 222-23 (July 15, 1999).
(43) Id. [paragraph][paragraph] 266-67.
(44)  1 S.C.R. 701,823 (Can.).
(45) C. PEN. art. 212-1 (Fr.).
(46) Barbie, Cass. crim., Dec. 20, 1985, 1985 Bull. Crim., No. 407; Touvier, Cass. crim., Nov. 27, 1992, 1992 Bull. Crim., No. 394.
(47) Report of the Secretary-General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), [paragraph][paragraph] 47-48, delivered to the Security Council, U.N. DOE. S/25704 (May 3, 1993) (internal citations omitted).
(48) Draft Code of Offences Against the Peace and Security of Mankind art. 2, 2 Y.B. Int’l L. Comm’n 150, U.N. DOE. A/2693 (emphasis added).
(49) U.N. Doc. A/CN.4/SR.267, [paragraph] 59.
(50) U.N. Doc. A/CN.4/SR.268, [paragraph] 11.
(51) U.N. Doc. A/CN.4/SR.270, [paragraph] 36.
(52) Draft Code of Offences Against the Peace and Security of Mankind, supra note 48, [paragraph]50.
(53) Int’l Law Comm’n, Report of the International Law Commission to the General Assembly on the Work of Its Forty-Third Session, [paragraph] 176, U.N. Doe. A/46/10 (July 19, 1991).
(54) See, e.g., Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion and Judgement, [paragraph] 648 (May 7, 1997). The “random act” language has also been used in several judgments without acknowledgement to the International Law Commission. See, e.g., Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgement, [paragraph] 579 (Sept. 2, 1998); Prosecutor v. Blaskic, Case No. IT-95-14-A, Judgement, [paragraph] 202, n.376 (July 29, 2004); Prosecutor v. Erdemovic, Case No. IT-96-22-A, Joint Separate Opinion of Judge McDonald and Judge Vohrah, [paragraph] 22 (Oct. 7, 1997).
(55) Int’l Law Comm’n, Report of the International Law Commission to the General Assembly on the Work of Its Forty-Eighth Session, art. 18, [paragraph] 5, U.N. Doc. A/51/10 (1996) [hereinafter Forty-Eighth Session Report].
(56) Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, S.C. Res. 827, art. 4, U.N. Doc. S/RES/827 (May 25, 1993).
(57) Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighboring States, Between 1 Jan. 1994 and 31 Dec. 1994, Annex to S.C. Res. 955, U.N. Doc. S/RES/955 (Nov. 8, 1994).
58) Rome Statute, supra note 9, art. 6.
(59) U.N. ECOSOCOR, Report of the Ad Hoe Committee on Genocide, 4th mtg. at 3-6, U.N. Doc. E/AC.25/SR.4 (Apr. 15, 1948); see also Kadic v. Karadzic, 70 F.3d 232 (2d Cir. 1995), cert. denied, 518 U.S. 1005 (1996).
(60) RAPHAEL LEMKIN, AXIS RULE IN OCCUPIED EUROPE, ANALYSIS OF GOVERNMENT, PROPOSALS FOR REDRESS 79 (1944).
(61) Prosecutor v. Kayishema, Case No. ICTR 95-1-T, Judgement, [paragraph] 94 (May 21, 1999).
(62) Id. [paragraph] 276.
(63) Forty-Eighth Session Report, supra note 55, at 45.
(64) Preparatory Comm’n for the Int’l Crim. Ct., Report of the Preparatory Commission for the International Criminal Court, Addendum, Finalized Draft Text of the Elements of Crimes, U.N. Doe. PCNICC/2000/INF/3/Add.2 (July 6, 2000).
(65) In a subsequent judgment, the Appeals Chamber observed that the definition of genocide adopted in the Elements of Crimes “did not reflect customary law as it existed at the time Krstic committed his crimes.” Prosecutor v. Krstie, Case No. IT-98-33-A, Judgement, [paragraph] 224 (Apr. 19, 2004).
(66) S.C. Res. 1564, supra note 7, [paragraph]4.
(67) Darfur Report, supra note 8, [paragraph] 518, U.N. Doe. S/2005/60 (Jan. 25, 2005).
(69) Id. [paragraph] 520.
(70) Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn.& Herz. v. Serb. & Mont.), 2007 I.C.J. 70, [paragraph] 190 (Feb. 26).
(71) See e.g., Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgement, [paragraph][paragraph] 121,497, 498, 516, 539 (Sept. 2, 1998).
(72) Darfur Report, supra note 8, [paragraph] 491.
(73) Id. [paragraph] 4.
(74) Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. & Mont.), 2007 I.C.J. 70, [paragraph] 190 (Feb. 26).
(75) Id. [paragraph] 277.
(76) Id. [paragraph] 292.
(77) Id. [paragraph] 371.
(78) Id. [paragraph] 372.
(79) Id. [paragraph] 373.
(80) Id. [paragraph] 376.
(81) Prosecutor v. Blagojevie, Case No. IT-02-60-A, Judgement, [paragraph][paragraph] 119-24 (May 9, 2007).
(82) Prosecutor v. Krstic, Case No. IT-98-33-A, Partial Dissenting Opinion of Judge Shahabuddeen, [paragraph] 52 (Apr. 19, 2004).
(83) R. v. Finta,  1 S.C.R. 701,823 (Can.).
(84) Mugesera v. Canada,  2 S.C.R. 100, 2005 SCC 40, [paragraph] 158 (Can.).
(85) M. CHERIF BASSIOUNI, THE LEGISLATIVE HISTORY OF THE INTERNATIONAL CRIMINAL COURT: INTRODUCTION, ANALYSIS AND INTEGRATED TEXT VOL. I 151-152 (2005); see also M. CHERIF BASSIOUNI, CRIMES AGAINST HUMANITY 243-81 (2d. rev. ed., 1999).
(86) Prosecutor v. Tadic, Case No. IT-94-1-T, Judgement, [paragraph] 654 (May 7, 1997) (footnote omitted).
(87) Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal, annex art. 6 (Aug. 8, 1945), 82 U.N.T.S. 279.
(88) David Seheffer, The Merits of Unifying Terms: “Atrocity Crimes” and “Atrocity Law, “2 GENOCIDE STUD. & PREVENTION 91 (2007).
(89) Prosecutor v. Tadic, Case No. IT-94-1-A, Judgement, [paragraph] 193 (July 15, 1999).
(90) Id. [paragraph][paragraph] 195-220.
(91) Id. [paragraph][paragraph] 221-22. See also Prosecutor v. Kmojelac, Case No. IT-97-25-A, Judgement, [paragraph] 29 (Sept. 17, 2003); Prosecutor v. Milutinovie, Case No. IT-99-37-AR72, Decision on Draguljob Ojdanic’s Motion Challenging Jurisdiction–Joint Criminal Enterprise, [paragraph][paragraph] 19-20 (May 21, 2003).
(92) Tadic, Case No. IT-94-1-A, [paragraph] 204.
(93) Prosecutor v. Ntakirutimana, Case No. ICTR-96-10-A, Case No. ICTR-96-17-A, Judgement, [paragraph] 465 (Dec. 13, 2004).
(94) Tadic, Case No. IT-94-1-A, [paragraph] 196.
(95) Id. [paragraph] 202.
(96) Prosecutor v. Tadic, Case No. IT-94-1-T, Opinion and Judgement, [paragraph] 373 (May 7, 1997).
(97) Tadic, Case No. IT-94-1-A, [paragraph][paragraph] 233-34.
(98) Prosecutor v. Milosevic, Case No. IT-99-37-I, Decision on Review of Indictment and Application for Consequential Orders (May 24, 1999).
(99) Prosecutor v. Milosevic, Case No. IT-99-37-PT, Second Amended Indictment, [paragraph] 16 (Oct. 16, 2001).
(100) Prosecutor v. Brdanin, Case No. IT-99-36-T, Judgement, [paragraph][paragraph] 355-56 (Sept. 1, 2004).
(102) Prosecutor v. Brdanin, Case No. IT-99-36-A, Judgement, [paragraph] 394 (Apr. 3, 2007).
(103) United States of America v. Alstrtter, 14 I.L.R. 278 (U.S. Military Trib. 1948).
(104) Brdanin, Case No. IT-99-36-A, [paragraph] 397 (citing id. at 1063).
(105) Case No. IT-05-87-PT, Separate Opinion of Judge Iain Bonomy, [paragraph] 20 (Mar. 22, 2006).
(106) United States of America v. Greifelt, 4 TWC 1,609 (U.S. Military Trib. 1948).
(107) Milutinovic, Case No. IT-05-87-PT, [paragraph] 22.
(108) Brdanin, Case No. IT-99-36-A, Judgement, [paragraph] 403 (Apr. 3, 2007).
(109) Id. [paragraph] 408 (citing Prosecutor v. Krstic, Case No. IT-98-33-A, Judgement (Apr. 19, 2004) and Prosecutor v. Stakic, Case No. IT-97-24-A, Judgement (Mar. 22, 2006)).
(110) ANTONIO CASSESE ET AL., THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, A COMMENTARY 667-731, 1153-54, 1946 (Oxford Univ. Press 2002); Morten Bergsmo & Pieter Kruger, ‘Article 53’, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT 701, 708-09 (Baden Baden: Nomos, Otto Triffterer, ed., 1999); Eric David, La cour penale internationale, 313 RECEUIL DES COURS 248-51; Sharon A. Williams, ‘Article 17’, in COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT, supra, 383, 393.
(111) Prosecutor v. Lubanga, Case No. ICC-01/04-01/06-8, Decision on the Prosecutor’s Application for a Warrant of Arrest, [paragraph] 41 (Feb. 10, 2006).
(112) Id. [paragraph] 45.
(113) Id. [paragraph] 50.
(114) Id. [paragraph][paragraph] 51-53.
(116) Id. [paragraph]46.
(118) UN Doc. S/RES/1534 (2004).
(119) Lubanga, Case No. ICC-01/04-01/06-8, [paragraph][paragraph] 55-58 (Feb. 10, 2006).
(120) Id. [paragraph] 60.
(121) Prosecutor v. Lubanga, Case No. ICC-01/04-01/06, Decision Regarding the Practices Used to Prepare and Familiarise Witnesses for Giving Testimony at Trial, [paragraph][paragraph] 44-45 (Nov. 30, 2007).
WILLIAM A. SCHABAS, OC, MRIA, Professor of Human Rights Law, National University of Ireland, Galway and Director, Irish Centre for Human Rights; Global Legal Scholar, University of Warwick School of Law; Visiting Professor, Queen’s University Belfast School of Law; Visiting Professor, LUISS Guido Carli University, Rome (2008).
JURIST Commentary, December 23, 2008:
Rwanda: No Conspiracy, No Genocide Planning … No Genocide?
JURIST Guest Columnist Peter Erlinder <http://www.wmitchell.edu/academics/faculty/erlinder.asp>of William Mitchell College of Law and a Lead Defense Counsel at the International Criminal Tribunal for Rwanda (ICTR), says that if – as the ICTR recently ruled in the "Military I" trial – alleged "masterminds" Colonel Theoneste Bagosora and fellow top Rwandan military officers engaged in no conspiracy and no planning to kill ethnic civilians, the tragedy that engulfed Rwanda in 1994 may not properly be called a "genocide" at all… ——————————
The media reports of the December 18 judgment of Chamber-1 at the International Criminal Tribunal for Rwanda focused primarily on the convictions of three of four former top military leaders, who were the supposed "masterminds" of the Rwandan genocide. But, as those who have followed the ICTR closely know, convictions of members of the former Rwandan government and military are scarcely newsworthy.
Ever since former ICTR Chief Prosecutor Carla Del Ponte and ICTR Chief Investigative Prosecutor Michael Hourigan went public in 2007-8 exposing US-UK manipulations to grant *de facto* impunity to current Rwandan President Paul Kagame and his henchmen, between 1997 and the present, convictions of the vanquished in the Rwanda war are a given.
The real news was that ALL of the top Rwandan military officers, including the supposedly infamous Colonel Bagosora, were found not guilty of conspiracy or planning to commit genocide. And Gen. Gratien Kabiligi, a senior member of the general staff was acquitted of all charges! The others were found guilty of specific acts committed by subordinates, in specific places, at specific times – not an overall conspiracy to kill civilians, much less Rwandan-Tutsi civilians.
This raises the more profound question: if there was no conspiracy and no planning to kill ethnic civilians, can the tragedy that engulfed Rwanda properly be called "a genocide" at all? Or, was it closer to a case of civilians being caught up in war-time violence, like the Eastern Front in WWII, rather than the planned behind-the-lines killings in Nazi death camps? The ICTR judgment found the former.
The Court specifically found that the actions of Rwandan military leaders, both before any after the April 6, 1994 assassination of former Rwandan President Juvenal Habyarima, were consistent with war-time conditions and the massive chaos brought about by the four-year war of invasion from Uganda by Gen. Paul Kagame’s RPF army, which seized power in July 1994.
Although the Chamber did not specifically mention more recent events, it is worth noting that this is the same government that was named in a UN Security Council commissioned report on December 12, 2008 as having invaded the eastern Congo (with Uganda) in 1996 and again in 1998 and have occupied an area 15-times the size of Rwanda since that time. Similar UN Security Council reports in 2001, 2002 and 2003, make clear that Rwanda and Uganda’s economic rape of the eastern Congo, and the resulting 6 million-plus civilian deaths, have long been an "open secret.â
As Lead Defense Counsel for Major Aloys Ntabakuze, who was convicted of three specific crimes committed by troops without evidence they were acting under his authority, I would say the judgment was actually a victory. Our defense was based on previously suppressed contemporaneous UN and declassified US documents that showed Kagame’s RPF as the war-time aggressor, which was responsible for the assassination of the former President and for preventing military intervention to end the predicted civilian massacres.
The ICTR oral judgment specifically refers to this "alternative" explanation of the tragic events in Rwanda, as being a basis for rejecting the conspiracy and planning charges against the former military leaders. But the documents show more.
As early as May 17, 1994, UNHCR was receiving reports of massive civilian killings by Kagame’s RPF in the 1/3 of Rwanda they had occupied since April 22. Other documents from August, September and October 1994 describe a conscious attempt by UN and US government officials to "cover-up" reports of RPF killings, including memos to Secretary of State Warren Christopher. Apparently, US policy to create "impunity" for Kagame began nearly as soon as he took power.
Had the US "impunity policy" not been in place, Kagame might well have been prosecuted along with Military-1 defendants Bagosora and Nsengiumva, as ICTR Prosecutor Michael Hourigan recommended in early 1997. Kagame’s responsibility for the assassination of Habyarimana has been known to the ICTR Prosecutor since at least that time, if not early.
Had the US "impunity policy" not been in place, Kagame might well have spent the last decade awaiting trial at the ICTR, rather than getting rich from the resources of the Congo, and the blood of millions of Africans.
*Peter Erlinder is a professor at William Mitchell College of Law, St. Paul, MN. He is a past-President of the National Lawyers Guild, a Lead Defense Counsel-UN International Criminal Tribunal for Rwanda, and the President of the ICTR-ADAD (Association des Avocats de la Defense). E-mail <email@example.com>firstname.lastname@example.org*
U.N. Court Issues Ruling on Bosnia Genocide
By GRAHAM BOWLEY
Published: February 26, 2007
The International Court of Justice ruled today that Serbia had failed to prevent the 1995 massacre at Srebrenica during the Bosnian war, but cleared the country of direct intent to commit genocide.
The landmark case, brought by Bosnia against Serbia, was the first time the United Nation's highest court had dealt with a lawsuit in which one country charged another with genocide.
The court, based in The Hague, found that genocide did take place at Srebrenica, and gave a long list of atrocities throughout Bosnia which it said were carried out by Bosnian Serb fighters. But the court said it could not prove strict intent by the Serbian state, and therefore decided Serbia was not guilty of genocide.
"Serbia failed to prevent the genocide of Bosnian Muslims at Srebrenica," the court president, Rosalyn Higgins said.
The nuanced judgment is likely to be seized upon as a victory by Serbia, even though the court gave extensive and damning detail about the violence committed by Bosnian Serb troops. It was greeted with disappointment among Bosnian Muslims and human rights groups.
The practical effect of the ruling is to spare Serbia from being forced to pay heavy financial reparations that Bosnia was seeking over the massacre.
Groups like the Mothers of Srebrenica believe that the Serbian state was directly involved in the atrocities, and that direct evidence exists of Serbia's role in war crimes. "Shame on the people who reached such a verdict," Zinaida Mujic, a representative of Mothers of Srebrenica, told The Associated Press.
The court found that the Serbian state could have prevented the massacre, and had failed in its duty to prosecute those who had been responsible. It demanded that Serbia hand over Ratko Mladic, the general who oversaw the Bosnian Serb attack on Srebrenica, to the International Criminal Tribunal for the former Yugoslavia.
The panel of judges at the court had been deliberating on the case since May 2006, when nine weeks of hearings were completed.
Many thousands of people were killed in ethnically mixed Bosnia during three years of civil war from 1992 to 1995, with Bosnians of Croatian, Serbian and Muslim background fighting one another for full control of the sections of the country where they were the majority.
Although Serbia supported the Bosnian Serbs in the war, the court found that the Serbian state did not have effective control over the Bosnian Serb army and paramilitary units that carried out the massacres.
The massacres at Srebrenica "were committed with the specific intent to destroy in part the group of the Muslims of Bosnia-Herzegovina as such" and thus were "acts of genocide," the judgment said.
Following the court decision, the president of Serbia, Boris Tadic, urged the Serbian parliament today to condemn the massacre, the Reuters news agency reported. "For all of us, the very difficult part of the verdict is that Serbia did not do all it could to prevent genodice," Mr. Tadic told reporters, according to Reuters.
He said that the failure by Serbia to allow the accused perpetrators of the massacre to be extradited to face criminal charges could have serious political and economic repercussions for Serbia, which is seeking closer integration with the European Union.