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Organizing Rebellion Symposium: Context or Abstract? A victim-centric approach to understanding key elements of crimes against humanity

September 20, 2019

Adejoké Babington-Ashaye is a former investigator at the ICC, an expert with the Wayamo Foundation on national justice and accountability measures for international crimes, a Fellow at the Harvard Law School and Senior Counsel at the World Bank. Her contribution is written in her personal capacity and the views contained herein do not necessarily reflect those of these affiliations.

What merit lies in the strict adoption of a statist approach to crimes against humanity? According to Rodenhäuser, very little. In Part III of this important book, Rodenhäuser tackles the state or organizational policy requirement of crimes against humanity under the Rome Statute, notably the capability of a non-state actor to commit an attack. His in-depth analysis of the different non-state actors reveals two broad categories. On one hand, there are non-state actors engaged as parties to an armed conflict with the capacity to attack military or civilian targets. This group is considered to have the requisite degree of organization to commit an attack against a civilian population. The second broad category contains non-state entities that are not party to an armed conflict. Their organization and, by extension, capability to commit an attack meeting the definition of crimes against humanity, seems less obvious. Some, such as Judge Kaul in this Dissenting Opinion, have argued that the historic development of crimes against humanity suggests an interpretation that limits the commission of such crimes to a state or an “entity which may act like a State or has quasi-State abilities.” Others, such as Hansen, have roundly criticized a statist approach as being “based on a Eurocentric understanding of mass violence where only the state (or entities that resemble a state) is seen as capable of adopting and implementing policies to conduct such violence.”

Drawing from the Kenya situation before the ICC, Rodenhäuser rightly suggests that a contextual interpretation, instead of an abstract and history-based “state-like” approach, is more useful. A contextual interpretation would take into consideration the fact that, like Werle and Jessberger contend, “the crucial factor is not the internal structure of the group, but its potential, in terms of both personnel and physical capacity, to commit a widespread or systematic attack on a civilian population.” To Rodenhäuser, if the goal of international criminal justice is to “address heinous crimes that shock humanity’s conscience,” then there is no merit in excluding acts that meet all other elements of crimes against humanity on the sole basis that these acts were not committed by states or state-like entities. I could not agree more. For those engaged in the practice of international criminal law, this is a critical point. Such a restriction would not only cause unwarranted obstacles to international criminal justice, it would also preclude the ability of international criminal law to respond to the ever-growing variety of entities capable of committing mass atrocities. And, realistically, should victims be denied justice on an international scale merely because the entity responsible for the attacks did not control a territory or possess other “state-like” qualities?

Rodenhäuser also presents a carefully written and detailed analysis of the development of crimes against humanity as a category of international crimes. From the Nuremberg Trials to the international criminal tribunals and hybrid courts, the reader is taken on a journey towards a deeper understanding of the definition of crimes against humanity. This journey culminates with the codification of crimes against humanity in the Rome Statute and the interpretations adopted by the International Criminal Court. Throughout, Rodenhäuser reveals the struggle between a contextual and abstract interpretation noting that too much of a contextual interpretation has been termed by some as “victim- focused teleological reasoning.” However, the need for an unashamedly victim-centric approach to key elements of crimes against humanity is evident in the very definition of this category of crimes. Such an approach is rooted in the wording, context, and object and purpose of Article 7 of the Rome Statute and the preamble to the entire treaty. As Rodenhäuser correctly observes, adopting a contextual approach to interpretation leaves sufficient flexibility to “address a broad variety of situations and actors in order to end impunity for unimaginable atrocities.”

It is for this reason that the introduction of a “societal context” element to crimes against humanity was somewhat surprising. In expanding the concept of crimes against humanity to non-state entities, Rodenhäuser notes that “[d]iscussion so far has shown that in addition to being large-scale crimes targeting populations, CAH are distinguished from ordinary crimes by the societal context in which they occur.” (Emphasis added).  He posits that the study undertaken “has shown that crimes harming humanity are best understood as heinous human rights violations targeted at a victim group or population in a societal context in which victims are deprived of effective protection by the governing authority.” In that sense, crimes against humanity “signify large-scale crimes committed in accordance with a group policy and taking place in a societal context in which the territorial state is either actively or passively involved in the crime, or unable to prevent or halt it.” According to Rodenhäuser,

With regard to the societal context of CAH, at least two scenarios are conceivable. On the one hand, perpetrators would either need to constitute themselves as the governing authority, or be capable of co-opting the governing authority, in order to enable the commission of large-scale crimes and avoid prosecution. On the other hand, irrespective of the non-state entity’s capacity, CAH can also be committed if the state is simply unable to fulfil its pro­tective obligations towards the victim population. While the former case requires a certain political power on the part of the non-state entity, in the latter case it is the incapacity of the state that enables the commission of the crime. The territorial state would need to be dysfunctional to the extent that it is unable to prevent or to halt the crimes.

Finally, he asserts that “there is no need for international criminal justice if a non-state organization commits a widespread crime against a civilian population in a state in which functioning law enforcement structures effectively respond to and subsequently prosecute the crimes.”

I fully agree with Rodenhäuser that international intervention as envisioned in the Rome Statute is unwarranted where domestic law enforcement structures function and the state has demonstrated a willingness and ability to address the crimes by itself. This is the essence of the principle of complementarity. However, I wonder if the inclusion of the “societal context” to the elements of what distinguishes a crime against humanity from “ordinary crimes,” would result in a limitation of the scope of crimes against humanity. This may possibly achieve a different end than Rodenhäuser might have intended. Rodenhäuser seems to acknowledge this since he adds that while “this conceptual understanding of CAH is not fully embraced in the crime’s legal definition, it can provide important guidance in borderline questions.” Perhaps, and perhaps not.

It is questionable whether the societal context in which the crimes occur is, or should ever be, a determining factor for when certain crimes are considered crimes against humanity. Furthermore, the ability of a state or governing authority to effectively protect a civilian population should not be a determining factor of whether the heinous human rights violations which occurred are understood as “crimes harming humanity.” If crimes meet the legal requirements of crimes against humanity under the Rome Statute, is that not sufficient? Should these crimes not be considered crimes against humanity even if they occur in a societal context where a functioning criminal justice system exists? To me, there is a difference between the characterization of the crimes per the legal definition under international law and the response mechanism – international or national – that is adopted to address these crimes. To require an element of dysfunction or state collusion in conceptualizing the types of crimes that amount to crimes against humanity appears to conflate the characterization of the crimes with the elements required to trigger international criminal justice intervention. Illustratively, to many, the intentional killing of thousands of civilians in the United States on 11 September 2001 amounted to crimes against humanity because the requisite elements of this international crime were arguably met. The fact that the 9/11 attacks are dually labelled terrorism and have been predominately addressed through domestic proceedings would not erase the characterization of these attacks as crimes against humanity. The United States did not need to be viewed as a failed or dysfunctional state for humanity to also be harmed by the attacks which occurred that day. Thus, it is not the societal context in which victims of mass atrocities find themselves that determines whether humanity has also been harmed by the occurrence of these crimes. The international community is always affected whenever mass atrocities occur regardless of where they occur, or the societal contexts in which the occur. And so, it is suggested that humanity is harmed whenever, per the legal definition of crimes against humanity, a widespread or systematic attack is directed against a civilian population pursuant to, or in furtherance of, a state or organizational policy, regardless of the societal context in which the victims find themselves. How humanity responds is a different matter, and this is where, as noted above, I agree with Rodenhäuser. If the societal context in which these crimes have occurred is such that the state is able to conduct effective national investigations and prosecutions (on behalf of humanity), then international criminal justice intervention is not necessary. However, the adoption of a non-international justice response does not change the characterization of the crimes which have occurred, and we must be careful not to conflate the characterization with the response. In other words, the societal context in which the crimes occur, in my view, should not be a distinguishing factor between crimes against humanity and “ordinary crimes.”  

These observations do not detract from Rodenhäuser’s extraordinary achievement in compiling a comprehensive review of the responsibility of non-state armed groups under international criminal law and setting out general conclusions which can assist the investigation and prosecution of atrocity crimes. He clearly notes that territorial control is not a prerequisite for an organization to develop and promulgate a policy underlying crimes against humanity. Furthermore, as Rodenhäuser writes, “states have not included the crimes’ history as a source of law in the ICC Statute.” Therefore, the characteristics of the collective entities behind these crimes should be derived from the crime’s definition not an abstract historical viewpoint. This approach to interpretation is critical to ensuring international criminal law is not shielded from changing realities.

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