W. J. Fenrick Crimes in combat: the relationship between crimes against humanity and war crimes. Guest Lecture Series of the Office of the Prosecutor W. J. Fenrick1 “Crimes in combat: the relationship between crimes against humanity and war crimes” 5 March 2004 The Hague 1 Senior Legal Adviser, ICTY-OTP. These remarks are made by the author in his personal capacity and do not necessarily reflect the views of the ICTY-OTP or the United Nations. Guest Lecture Series of the Office of the Prosecutor. © ICC-OTP and individual authors 2004. 1 W. J. Fenrick Crimes in combat: the relationship between crimes against humanity and war crimes. The way in which international tribunals address crimes committed in combat will have a substantial impact on perceptions of the tribunals by national foreign ministries and defence departments and may also have a substantial impact on the development of international humanitarian law (IHL) as well as the development of international criminal law. The ICC may, of course, simply adopt the approach taken by most tribunals in the past, including those which adjudicated the post World War II war crimes cases, and ignore offences committed in combat. Defensible arguments can be made that prosecutors can and must choose which cases to prosecute from an abundance of atrocities and that it is preferable to choose cases involving clear cut crimes and generally agreed morally wrong acts. I have taken part in one conference in which a respected speaker suggested that crimes committed in combat such as unlawful attacks should be regarded as non-justiciable because they would be too difficult to prosecute. If, however, the ICC–OTP does decide to prosecute for crimes committed in combat, it must develop the ability to present an honest and accurate picture of what happened during combat and the ability to assist the court to differentiate between lawful and unlawful acts in circumstances where both might result in death, injury and destruction. Unfortunately, war is a brutal business. Until it is abolished, one must accept that the purpose of the body of law which purports to regulate combat is to limit human suffering, not to eliminate it. Indeed, legal arguments which purport to eliminate violence in armed conflict may result in undermining the applicable law and rendering it ineffective. For example, arguing that any civilian casualties are too many civilian casualties no matter how important the military objective being attacked would be counterproductive as such a standard, no matter how desirable in the abstract, would not be viable in military operations at the present time. I would suggest that a defensible and realistic objective for international prosecutors handling combat related cases is to stretch the legal envelope, to pursue legal standards slightly in advance of state practice. It is not to rip the end off the envelope in pursuit of combat standards which turn all persons who fight wars, even those from law-sensitive states acting in good faith, into criminals. My reflections on the legal relationship between crimes against humanity and war crimes occurring in a combat context and on how we have learned, and continue to learn, to handle combat related issues in the ICTY–OTP may be of assistance to you as you begin to grapple with similar issues before the ICC. My reflections will focus in particular on the war crime of unlawful attacks on civilians and the crime against humanity of persecution. War crimes The concept of a war crime has been a part of international law for many centuries. In brief, war crimes are: (a) one of a list of acts generally prohibited by treaty but occasionally prohibited by customary law, and (b) committed during an armed conflict. Some of these acts are prohibited in international conflicts alone, some in internal conflicts alone and some in all conflicts. The prohibited acts must be committed (c) by a perpetrator linked to one side of the conflict, and (d) against a victim who is neutral or linked to the other side of the conflict. The body of treaty and customary law which provides the legal underpinnings for the war crimes concept and which is referred to variously as the law of war, the law of armed conflict, and IHL is quite voluminous. The standard compilation of relevant treaty texts, Schindler & Toman, The Laws of Armed Conflicts, includes over 1000 pages in its 3rd edition of 1988. Guest Lecture Series of the Office of the Prosecutor. © ICC-OTP and individual authors 2004. 2 W. J. Fenrick Crimes in combat: the relationship between crimes against humanity and war crimes. Some enumerated war crimes are listed in Art. 2 and 3 of the ICTY Statute. In addition, we at the ICTY can prosecute for unenumerated war crimes under Art. 3 of the ICTY Statute provided certain tests set out in paras 94 and 143 of the Tadić Jurisdiction Appeal are met, in particular: (a) the violation must constitute an infringement of a rule of international humanitarian law, (b) the rule must be customary in nature or, if the rule has a treaty law basis, the treaty must be binding on the parties at the time of the incident and the rule must not conflict with a peremptory norm of international law, (c) the violation must be "serious", that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve important consequences for the victim, and (d) the violation of the rule must entail, under customary or treaty law, the individual criminal responsibility of the person breaching the rule. Under the ICC Statute, of course, all punishable war crimes are explicitly enumerated in Art. 8. There is no provision for the prosecution of unenumerated offences. The ICC Statute differentiates between war crimes committed in international conflicts and in what would appear to be two types of internal conflicts, a Common Article 3 conflict (Art. 8(2) (c)&(d)), and an Additional Protocol II conflict as modified by the Tadić Jurisdiction Appeal (Art. 8(2) (e)&(f)). There appears to be no room for arguing before the ICC, as we do before the ICTY, that certain war crimes apply to all armed conflicts, regardless of classification. One interesting feature of the ICC Statute is Art. 8(1) which specifies that the court has jurisdiction in respect of war crimes "in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes". Certainly, plan, policy, and scale are not elements of war crimes under customary law. The killing of a single prisoner of war or the solitary rape of a woman in occupied territory is a war crime. Presumably, plan, policy, and scale are factors to be taken into account by the Prosecutor in determining whether or not to commence investigations against particular potential accused. Speaking for myself alone, I must also observe that some of the war crimes enumerated in the ICC Statute appear to be defined in an unnecessarily narrow fashion. For example, the unlawful attack provisions all refer to "intentionally" launching or directing attacks. We at the ICTY use "wilful" as our mental element as that is the language of the Additional Protocols and "wilful" incorporates both intention and a high degree of recklessness. One might query how a chamber of the ICC would respond to a defence argument that the accused may have attacked civilians but he didn't intend to do so, he was merely too busy fighting a war to devote any resources to determining where civilians were located. Crimes against humanity The concept of a crime against humanity is much more recent. Basically, it is a twentieth century development and its first application in a criminal setting, precipitated by the mistreatment by Germany and its allies of their own nationals or the nationals of their co- belligerents, is in the post World War II war crimes cases. In brief, under customary law, a crime against humanity is: (a) one of a list of prohibited acts, (b) committed as part of a widespread or systematic attack, (c) pursuant to or in furtherance of a state or organizational policy, (d) directed against any civilian population, (e) with knowledge of the attack. There is no requirement for the existence of an armed conflict. "Civilian" clearly excludes combatants but it should otherwise be given a very broad definition, including, for example, hospital patients and resistance fighters who have laid down their arms (Prosecutor v. Tadić, Case No. IT 94-1-T (ICTY Trial Chamber Opinion and Judgment 7 May 1997, paras. 639-43). There is no treaty devoted exclusively to crimes against humanity unless one regards genocide as an aggravated form of crime against humanity. Guest Lecture Series of the Office of the Prosecutor. © ICC-OTP and individual authors 2004. 3 W. J. Fenrick Crimes in combat: the relationship between crimes against humanity and war crimes. The entire body of treaty law devoted to crimes against humanity, excluding genocide, would take up fewer than ten pages of the text of the normal law review. The ICTY Statute addresses crimes against humanity in Art. 5. Under the ICTY Statute, as opposed to customary law, crimes against humanity must be committed "in armed conflict, whether international or internal in character". The ICC Statute is the first relatively widely ratified treaty text which, in its Art. 7, provides a relatively comprehensive definition of crimes against humanity, and of the different modalities by which such crimes may be committed. The ICC has jurisdiction over crimes again humanity committed in peace or war. Art. 7(2)(a) defines " attack directed against any civilian population" as "a course of conduct involving the multiple commission of acts referred I to in paragraph 1 (that is, the enumerated prohibited acts) against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack." Attack, for crimes against humanity purposes, is not the same thing as an attack in a combat context involving the use of force to seize or defend a position.