PERSECUTION AS A CRIME AGAINST HUMANITY IN THE ROME STATUTE- A CRITICAL STUDY 1. INTRODUCTION THE SCOPE OF THIS PAPER Article 7 of the Rome Statute for the International Criminal Court (hereafter referred to as ICC) recognizes persecution as a crime against humanity. Article 7 defines ‘crimes against humanity’ as: “any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” The statutory provision identifies 11 enumerated acts which can amount to crimes against humanity. Pursuant to Article 7(1)(h) these include: “persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender…, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph (Article 7) or any crime within the jurisdiction of the Court.” In addition, Article 7(2)(g) of the Rome Statute defines persecution as: “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.” This is the first time the crime of persecution has been defined in an international instrument. The difficulty with the definition is that it is not clear. The drafters appear to have left some unanswered questions which the writer will attempt to address in this thesis. For example, how does one determine the severity of deprivation? By what means could deprivation be carried out – physical, mental, or emotional? What are fundamental rights? On what other grounds than those stipulated in Article 7(1)(h) of the Rome Statute can the crime of persecution be committed? What does the phrase ‘by reason of the identity of the group or collectivity’ mean? What factors determine or distinguish a group or collectivity? See questions raised by Cherif M. Bassiouni in Cherif M. Bassiouni, Crimes Against Humanity in International Criminal Law (2nd ed) (The Hague: Kluwer Law International, 1999) at 330. In addition to the Rome Statute provisions pertaining to persecution, there are also the Elements of the crime of persecution. Delegates who attended the 1998 Rome Statute Deliberations, commonly referred to as the Rome Conference, were in agreement that it was necessary for a Preparatory Commission to draft the Elements of Crimes for the Crimes recognized by Rome Statute: genocide, crimes against humanity and war crimes. Knut Domann, with contributions by Louise Doswald-Beck and Robert Kolb, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary (Cambridge: Cambridge University Press, 2003) at 1-2, 8. There are 6 Elements that constitute the crime of persecution; these are stipulated in Article 7(1)(h) of the Elements of Crimes. They are: Element 1 The perpetrator severely deprived, contrary to international law, “This requirement is without prejudice to paragraph 6 of the General Introduction to the Elements of Crimes.” one or more persons of fundamental rights. Element 2 The perpetrator targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such. Element 3 Such targeting was based on political, racial, national, ethnic, cultural, religious, gender…, or other grounds that are universally recognised as impermissible under international law. Element 4 The conduct was committed in connection with any act referred to in Article 7, Paragraph 1, of the Statute or any crime within the jurisdiction of the Court. “It is understood that no additional mental element is necessary for this element other than that inherent in element 6.” Element 5 The conduct was committed as part of a widespread or systematic attack directed against a civilian population. Element 6 The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. The aim of this paper is to analyze of the technical definitions of persecution found in these two significant international instruments, that is, the Rome Statute and the Elements of Crimes. The ordinary meaning of the term ‘persecution’ differs from the technical meaning established in the Rome Statute and the Elements of Crimes. For example, Cherif M.Bassiouni, referring to definitions found in dictionaries from around the world, compiled the following definition of the terms ‘persecute’ or ‘persecution’: State action or policy leading to the infliction upon an individual of harassment, torment, oppression, or discriminatory measures, designed to or likely to produce physical or mental suffering or economic harm, because of the victim’s beliefs, views, or membership in a given identifiable group (religious, social, ethnic, linguistic etc.), or simply because the perpetrator sought to single out a given category of victims for reasons peculiar to the perpetrator. Cherif M. Bassiouni, Crimes Against Humanity in International Criminal Law (2nd ed) (The Hague: Kluwer Law International, 1999) at 327. Bassiouni relied on: Arabic, Danish, Dutch, English, French, German, Greek, Hungarian, Italian, Japanese, Norwegian, Polish, Portuguese, Romanian, Russian, Spanish, Swedish, and Turkish sources. This definition of crimes of persecution was discussed in great detail in Prosecutor v. Dusko Tadić, Case No. IT-94-1, ICTY Opinion and Judgment, 7 May 1997 paragraph 695. The Tribunal commended Bassiouni’s attempts to fill what the Tribunal referred to as definitional vacuum. Also, in discussions held at the International Law Commission (hereafter referred to as ILC) for the 1991 Draft Code of Offences Against the Peace and Security of Mankind (hereafter referred to as Draft Codes), the observation was made that the non-legal dictionary term ‘to persecute’ is: “to annoy with persistent or urgent approaches, to pester.” See, discussion in Prosecutor v. Kupreškić et al, Case No. IT-95-16, ICTY Trial Judgment, 14 January 2000, paragraph 569. There is no doubt that the term persecution in the context of crimes against humanity carries a different meaning. Of particular concern here, is the simple fact that crimes against humanity are offences of extreme gravity; they are not in any way trivial crimes. Prosecutor v. Kupreškić et al, Case No. IT-95-16, ICTY Trial Judgment, 14 January 2000, paragraph 569. The crime of persecution is a serious offence, the punishment of which “on account of its distinctive features, has been found to justify a more severe penalty.” Prosecutor v. Banović, Case No. IT-02-65/1-S, ICTY Trial Judgment, 28 October 2003, paragraph 91, Prosecutor v. Blaškić, Case No. IT-95-14, ICTY Trial Judgment, 3 March 2004 paragraph785; Prosecutor v. Todorovic, Case No. IT-95-9/1-S, Sentencing Judgment, 31st July 2001, paragraph 113;Therefore, the argument could be made, and rightly so, that in the context of a criminal trial it would be inapplicable to adopt a simple definition for the crime of persecution such as the non-legal definition discussed at the ILC. Supra Note 7 THE ROME STATUTE AND THE ELEMENTS OF CRIMES Article 9(1) of the Rome Statute discusses the general relationship between the Rome Statute and the Elements of Crimes. According to this provision the purpose of the Elements is “to assist the Court in the interpretation and application of articles 6, 7, and 8.” In addition, Article 9(3) of the Rome Statute states that “the Elements of Crimes and the amendments thereto shall be consistent with this Statute.” Paragraph 1 of the General Introduction to the Elements of Crimes stipulates that “pursuant to article 9, the following Elements of Crimes shall assist the Court in the interpretation and application of the provisions of the Statute, including article 21 and the general principles set out in Part 3, are applicable to the Elements of Crimes.” The argument could be made, that as long as the Elements of Crimes do not contradict the Rome Statute, the two international instruments carry equal significance at the ICC. Article 21(1)(a) of the Rome Statute stipulates that “the Court shall apply: in the first place, this Statute, Elements of Crimes and its Rules of Procedure and Evidence” (emphasis added). However, the provisions articulated in Article 9(1) and Article 9(3) of the Rome Statute indicate that the Rome Statute is the primary instrument, and the Elements of Crimes assist in the interpretation and application of articles 6, 7, and 8 only as long as the Elements are consistent with the Statute. For example, Element 1 of the Elements of the crime of persecution, compared to Article 7(2)(g) of the Rome Statute, does not expressly state that the deprivation of the fundamental rights should be intentional. A requirement for intention is inferred from the Rome Statute provisions. 2. TRACING THE DEVELOPMENT OF INTERNATIONAL PROVISIONS PERTAINING TO THE CRIME AGAINST HUMANITY OF PERSECUTION The previous chapter briefly outlined what the crime of persecution is and what role it plays in International Criminal Law. In this chapter, the writer will discuss in greater detail the progressive development of the crime against humanity of persecution. In order to illustrate this, the writer will trace the historic development of international provisions pertaining to crimes against humanity spanning from as early as 1868 to international instruments created as recently as 2003. To understand how the crime of persecution developed, one needs to be aware of how persecution originated as a crime against humanity. Crimes against humanity are amongst the most serious crimes of concern to the international community. The phrase ‘crimes against humanity’ has come to acquire particular legal and moral significance. David Luban, “A Theory of Crimes Against Humanity” (Winter, 2004), 29, Yale Journal of International Law, 85 at 86. A crime against humanity, simply described is, “a crime against ‘humaneness’ that offends certain general principles of law which becomes the concern of the international community. It has repercussions beyond international frontiers or exceeds in magnitude or savagery any limits tolerated by modern civilization.” Egon Schwelb, “Crimes Against Humanity” (1946) 23 British Yearbook of International Law 178 at 195-7. Also discussed in Kriangsak Kittichaisaree, International Criminal Law (New York: Oxford University Press, 2001). PRELIMINARY HISTORIC REFERENCES TO THE CONCEPT OF CRIMES AGAINST HUMANITY AND THE CRIME OF PERSECUTION The concept of crimes against humanity, criticized by Darryl Robinson for its lack of order, has developed under customary international law in a manner best described as haphazard. Darryl Robinson, “Developments in International Criminal Law: Defining ‘Crimes Against Humanity’ at the Rome Conference”, (1999), 93 American Journal of International Law, 43 at 44. Crimes against humanity, as they are known today, emerged from expressions like ‘the laws of humanity’ which can be traced back as early as the 1860’s. Ibid For example, the St. Petersburg Declaration of 1868 was proclaimed to limit the use of explosive or incendiary projectiles which were described as: “contrary to the laws of humanity.” Declaration renouncing the use, in time of war, of projectiles under 400 grammes weight, reprinted in: A. Roberts and R. Guelff (eds), Documents on the Laws of War 30, 31 (2nd ed. 1989). This spirit of safeguarding humanity was reflected by the enthusiasm of the Parties’ to the Declaration who were eager to reconcile the laws of humanity with those of war. This was evidenced by the Parties’ agreement to draft even more instruments in the future which would maintain these principles. Ibid Again, we see reference to the concept of laws of humanity at the First Hague Peace Conference of 1899. The Conference adopted the Martens Clause which was later included as part of the preamble to the Hague Convention (IV) of 1907. It referred to “the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and from the dictates of the public conscience.” 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land, preamble paragraph 8, Miscellaneous, No. 6 (1908), Cmd. 4175, at 46. See commentary from Rodney Dixon, “Introduction/General Remarks: Crimes Against Humanity” in Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article (Baden-Baden: Nomos, 1999) at 121. Also, discussion in Cherif M. Bassiouni, “From Versailles to Rwanda in Seventy-Five Years: The Need to Establish a Permanent International Criminal Court” (1997) 10, Harvard Human Rights Journal, 11 at 16. In later years, the Joint Declaration of France, Great Britain, and Russia, issued on May 1915, denounced the massacre of Armenians in Turkey by the Ottoman Empire. The Declaration described the massacres as crimes against humanity and civilization. See generally: United Nations War Crimes Commission, (1948) History of the Nations War Crimes Commission and the Development of the Laws of War, 35. The Declaration called for the highest levels of accountability with clear indications that the Turkish Government and its agents would be held responsible for their actions. The Armenian Memorandum Presented by the Greek Delegation to the Commission of Fifteen on 14 March 1919. Quoted in Egon Schwelb, “Crimes Against Humanity”, (1946), 23, British Yearbook of International Law, 178 at 181. This was the first time that not only did the idea of crimes against humanity become a crime, but those who perpetrated the crimes, it was felt, were to be held responsible. It is also interesting to note that these massacres were initially referred to as acts of persecution. Egon Schwelb, “Crimes Against Humanity” (1946) 23 British Yearbook of International Law 178 at 181 Pursuant to Article 21(1)(b) of the Rome Statute, the ICC shall apply “principles and rules of international law.” It may be noted that the delegates at the Rome Conference referred to case law from the International Criminal Tribunal for the former Yugoslavia (hereafter referred to as ICTY) to assist in drafting the provisions of the Rome Statute. Customary international law on persecution can be derived from the various international instruments that have prohibited crimes of persecution and judgments relating to these instruments. A significant number of Tribunals and Special Courts have been established since the Second World War. Created between 1993 and 2003, they include: the International Criminal Tribunal for Rwanda (hereafter referred to as ICTR), the ICTY, Panels of Judges with Exclusive Jurisdiction over Serious Criminal Offences Established within the East Timor District Courts (hereafter referred to as Panels of Judges), the Special Court for Sierra Leone (hereafter referred to as SCSL), Extraordinary Chambers within the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea (hereafter referred to as ECCC), and the Iraqi Special Tribunal for the Prosecution of Crimes Against Humanity (hereafter referred to as IST). Prior to 1993, there were only two ad hoc Tribunals. These were created between 1945 and 1946: the International Military Tribunal (hereafter referred to as IMT) and the International Military Tribunal for the Far East (hereafter referred to as IMTFE). Customary international law emerging from the ad hoc Tribunals would be relevant to the ICC as it may be applicable to some problems of interpretation in the Rome Statute and the Elements of Crimes. As will be seen throughout this thesis, many of the terms used in the Rome Statute and the Elements of the crime of persecution are quite similar, and in some instances identical, to those used by the ad hoc Tribunals. For example, the provisions pertaining to the crime of persecution established in East Timor Regulation 2000/15 are identical to the Rome Statute provisions. Therefore, the East Timor case Joni Marques et al Prosecutor v. Joni Marques et al, Case No. 09/2000, Trial Judgment, Special Panel for Serious Crimes, East Timorese Transitional Administration, Dili District Court, 11 December 2001, hereafter referred to as the Los Palos case. was the first case to ‘test’ the Rome Statute definition of persecution. 3. ANALYSIS OF LEADING JUDGMENTS THAT SHAPED THE CUSTOMARY LAW OF PERSECUTION IN THE POST- NUREMBERG ERA FÉDÉRATION NATIONALE DES DÉPORTÉS ET INTERNÉS RÉSISTANTS AT PATRIOTES AND OTHERS V. BARBIE During the wartime occupation of France, the Accused, Klaus Barbie, was the Head of the Gestapo in Lyons from the period November 1942 to August 1944. Although he left France at the end of the war and sought refuge in Bolivia, he was extradited back to France in 1983. He was later convicted of 340 counts of the 17 charges of crimes against humanity and sentenced to life imprisonment. Fédération Nationale des Déportés et Internés Résistants at Patriotes and Others v. Barbie, Judgment of the Court of Cassation of 20 December, 78 International Law Reports, 125 (1985) discussed in Antonio Cassese, “Crimes Against Humanity”, in Antonio Cassese et al (eds), The Rome Statute of the International Criminal Court: A Commentary, vol 1 (Oxford: Oxford University Press, 2002) see discussion at footnote 26 page 362. See also discussion in Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Trial Judgement, 2 September 1998, paragraphs 569-570. In the 1985 judgment, later confirmed on Appeal, On Appeal, the Court of Cassation in its 1988 Judgment further explained that “… deportation or extermination of the civilian population during the war, or persecutions on political, racial or religious grounds, constituted not a distinct offence or an aggravating circumstance but rather an essential element of the crime against humanity, consisting of the fact that the acts charged were performed in a systematic manner in the name of the State practicing by those means a policy of ideological supremacy. See Fédération Nationale des Déportés et Internés Résistants at Patriotes and Others v. Barbie, Judgment of the Court of Cassation of 3 June 1988, 78 International Law Reports, at 332 and 336. Also discussed in Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Trial Judgement, 2 September 1998, paragraph 570. For in depth analysis of the case see Leila Sadat Wexler, “Interpretation of the Nuremberg Principles by the French Court of Cassation: From Touvier to Barbie and Back Again”, (1994), 32, Columbia Journal of Transnational Law, 289. the Court defined crimes against humanity with reference to Article 6(c) of the Nuremberg Charter. It held crimes against humanity were: …… inhumane acts and persecution committed in a systematic manner in the name of a State practicing a policy of ideological supremacy, not only against persons by reason of their membership of a racial or religious community, but also against the opponents of that policy, whatever the form of their opposition. Supra n.21 at p.137 ATTORNEY GENERAL OF ISRAEL V. ADOLF EICHMANN Adolf Eichmann was the former Head of Jewish Affairs in the Office of the Reich Security. In Attorney General of Israel v. Adolf Eichmann, the Accused was convicted and sentenced to death by the District Court for persecuting Jews, Gypsies, and Slaves by way of murder, extermination, enslavement, starvation, and deportation. The Supreme Court later upheld the District Court decision. Attorney General of Israel v. Adolf Eichmann, Case No. 40/61, District Court of Jerusalem, discussed in Prosecutor v. Kupreškić et al, Case No. IT-95-16, ICTY Trial Judgment, 14 January 2000, paragraph 602. See also Matthew Lippman, “Crimes Against Humanity” (Spring, 1997), 17, Boston College Third World Law Journal, 171 at 240. Eichmann was charged pursuant to the Israeli Nazi and Nazi Collaborators (Punishment) Law. It is interesting to note that this provision incorporated Nuremberg Charter provisions on crimes against humanity. Matthew Lippman, “Crimes Against Humanity”, (Spring, 1997), 17, Boston College Third World Law Journal, 171 at 240. The Supreme Court held that “it was proved with unchallengeable certainty that he [Eichmann] took his place not only among those who were active, but also those who activated the implementation of the ‘Final Solution’, the total extermination of the Jews of Europe. The appellant was no petty killer in this undertaking, but took a leading part and had a central and decisive role.” Attorney General of the Government of Israel v. Adolf Eichmann, 36, International Law Reports, 277 Supreme Court, 1962, at 340 discussed in Matthew Lippman, “Crimes Against Humanity”, (Spring, 1997), 17, Boston College Third World Law Journal 171 at 240. See also general discussion in Micaela Frulli, “Are Crimes Against Humanity More Serious than War Crimes?”, (2001), 12(2), European Journal of International Law 329 at 348-349. The Court therefore, found Eichmann guilty of the persecution of Jews on national, racial, religious and political grounds. Attorney General of the Government of Israel v. Adolf Eichmann, 36, International Law Reports, 277 Supreme Court, 1962, at 340 discussed in Prosecutor v. Kupreškić et al, Case No. IT-95-16, ICTY Trial Judgment, 14th January, 2000, paragraph 602. 4. THE MENS REA REQUIRED FOR THE CRIME OF PERSECUTION In this chapter the writer will discuss the mens rea required to establish the crime of persecution. I. MENS REA PROVISIONS FOR ALL THE CRIMES THAT FALL WITHIN THE ICC’S JURISDICTION A. ROME STATUTE PROVISIONS AND NEGOTIATIONS AT THE ROME CONFERENCE The mental element for all crimes that fall within the ICC’s jurisdiction is established in Article 30 of the Rome Statute. According to Article 30(1) of the Rome Statute, “unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.” Article 30 is the first of its kind in any international instrument. Not only does it require ‘intent’ and ‘knowledge’, it also expressly defines the terms ‘intent’ and ‘knowledge’. Analysis of the numerous statutory instruments created prior to the Rome Statute reveals that although these instruments contained provisions which articulated the criminal responsibility of perpetrators, none of them ever actually defined the required Mens Rea. Leila Nadya Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millennium, International and Comparative Criminal Law Series (Ardsley: Transnational Publishers Inc., 2002) at 208. See for example Nuremberg and Tokyo Charters, CCL 10, ICTY and ICTR Statutes. The specific definitions for the terms ‘intent’ and ‘knowledge’ are established pursuant to Article 30(2) and (3) of the Statute. The terms are defined in the following manner: (2) A person has intent where: (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to consequences, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. (3) ‘Knowledge’ means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. ‘Know’ and ‘knowingly’ shall be construed accordingly. The distinction between the terms ‘intent’ and ‘knowledge’ is simple. ‘Intent’ refers to “the intent to commit the underlying offence.” Prosecutor v. Kupreškić et al, Case No. IT-95-16, ICTY Trial Judgment, 14 January 2000, paragraphs 556-557. It may be noted that the Trial Chamber analyses customary international law from the ICTY and ICTR to reach this distinction between the terms ‘intent’ and ‘knowledge’. ‘Knowledge’ refers to “knowledge of the broader context in which that offence occurs.” Prosecutor v. Kupreškić et al, Case No. IT-95-16, ICTY Trial Judgment, 14 January 2000,Article 30 of the Rome Statute addresses two aspects of the mens rea requirement. Firstly, the provision deals with the degree of the mens rea, that is, the required intensity of the intent or knowledge in the mind of the perpetrator. Secondly, the provision deals with the scope of the perpetrator’s intent or knowledge, that is, the analysis of the connection between the mens rea of the perpetrator and the material elements for the specific crime. Maria Kelt and Herman von Hebel, “General Principles of Criminal Law and the Elements of Crimes” in Roy S. Lee (ed), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Ardsley: Transnational Publishers Inc, 2001) at 28, 35. One criticism of the Article 30 provision, according to Leila Nadya Sadat, is that it is “narrow in scope”. Sadat argues that the consequence of the conveners at the Rome Conference adopting the phrase “unless otherwise provided” in Article 30(1) of the Statute, expressly excludes other forms of criminal culpability, such as negligence or recklessness. Leila Nadya Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millennium, International and Comparative Criminal Law Series (Ardsley: Transnational Publishers Inc., 2002) at 208-209. 5. THE EFFECT OF PROVISIONS OF THE ROME STATUTE AND THE ELEMENTS OF CRIMES ON PERSECUTION A. MENS REA FOR CRIMES OF PERSECUTION IN GENERAL All the provisions discussed above are applicable to crimes of persecution. In keeping with the provisions stipulated in paragraph 2 of the General Introduction, the mental elements for crimes of persecution are found in the mens rea requirements resulting from Article 30 of the Rome Statute. Georg Witschel and Weibke Rokert, “Article 7(1)(h) – Crime Against Humanity of Persecution” in Roy S. Lee (ed), The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Ardsley: Transnational Publishers Inc, 2001) at 97. B. THE ADDITIONAL REQUIREMENT OF A DISCRIMINATORY BASIS In addition to the provisions discussed above the crime of persecution has two further mental elements: (1) the discriminatory intent with which the crime is committed, and (2) the mental element found in Element 6 of Article 7(1)(h) of the Elements of Crimes, discussed further below. Persecution is distinct from all other crimes against humanity because of the discriminatory basis by which the crime is committed. The victims are targeted by reason of their identity. The discriminatory grounds are found listed in Element 3 of the Elements Crimes and Article 7(1)(g) of the Rome Statute. They are: political, racial, national, ethnic, cultural, religious, gender… or other grounds universally recognized as impermissible under international law. Antonio Cassese, discussing the discriminatory nature of crimes of persecution, states “the element of persecution amounts to an aggravated criminal intent (dolus specialis, ‘dol spécial’)” (emphasis appears in the text). Cassese is of the view that in order to amount to crimes of persecution “the intent must be to subject a person or group to discrimination, ill-treatment, or harassment so as to bring about great suffering or injury to that person or group on religious, political or other such grounds.” Antonio Cassese, “Crimes Against Humanity” in Antonio Cassese et al (eds), The Rome Statute of the International Criminal Court: A Commentary, vol 1 (Oxford: Oxford University Press, 2002) at 364. C. WHAT MENS REA IS REQUIRED FOR ELEMENTS 1 – 6 OF ARTICLE 7(1)(H) OF THE ELEMENTS OF CRIMES? Article 7(2)(g) of the Rome Statute defines persecution as: “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.” Element 1 of Article 7(1)(h) of the Elements of Crimes, which parallels the wording in Article 7(2)(g) of the Rome Statute, states: “the perpetrator severely deprived, contrary to international law,one or more persons of fundamental rights.” One could argue that the intent requisite which appears in the Article 7(2)(g) definition of persecution must also be read into the Element 1 provision. As noted previously, the term ‘intent’ is defined in Article 30(2) of the Rome Statute. The perpetrator must intend to engage in the conduct, that is, the act of severely depriving, contrary to international law, one or more persons of their fundamental rights. Furthermore, the perpetrator must have meant to cause that consequence, that is, the severe deprivation of fundamental rights, or have been aware that such severe deprivation of fundamental rights would occur in the ordinary course of events. Element 2 of Article 7(1)(h) of the Elements of Crimes states: “the perpetrator targeted such person or persons by reason of the identity of the a group or collectivity or targeted the group or collectivity as such.” One could argue that the targeting of a group or collectivity requires the knowledge that a group or collectivity is being targeted by reason of their identity, referred to previously under the discussion of Antonio Cassese’s view regarding the discriminatory nature of crimes of persecution. The perpetrator must be aware that a circumstance exists or a consequence will occur in the ordinary course of events as a result of his targeting the group or collectivity. Arguably, the resulting consequence that flows from the perpetrator’s actions, referred to in Element 1 of the Elements of the crime of persecution, is the deprivation of fundamental rights contrary to international law. “This requirement is without prejudice to paragraph 6 of the General Introduction to the Elements of Crimes.” Element 3 of Article 7(1)(h) of the Elements of Crimes states: “Such targeting was based on political, racial, national, ethnic, cultural, religious, gender…, or other grounds that are universally recognized as impermissible under international law.” According to George Witschel and Weibke Rokert, it is clear that Element 3 does not require a specific mental element because this could be ascertained objectively from the facts and circumstances. Supra Note 33 However, it is this writer’s opinion that the perpetrator must have intended to discriminate against a group or collectivity on the grounds previously articulated above under the discussion of Antonio Cassese’s view regarding the discriminatory nature of crimes of persecution. The perpetrator must have intended to engage in conduct that was discriminatory, that is, discriminate against a specific group or collectivity. The perpetrator must have meant to cause the consequence or was aware that it would occur in the ordinary course of events, that is, discriminating against a group or collectivity would result in the deprivation of their fundamental rights contrary to international law. Element 4 of Article 7(1)(h) of the Elements of Crimes establishes the nexus requirement for crimes of persecution. Element 4 states: “the conduct was committed in connection with any act referred to in Article 7, Paragraph 1, of the Statute or any crime within the jurisdiction of the Court.” There are two issues to be considered regarding the mens rea surrounding Element 4. Firstly, there is a footnote to Element 4 which states: “it is understood that no additional mental element is necessary for this element other than that inherent in element 6.” Element 6, discussed in detail below, requires that the perpetrator has knowledge of the overall context of the widespread or systematic attack that is directed against any civilian population. Ibid Secondly, according to Kai Ambos and Steffen Wirth, this nexus requirement established for crimes of persecution pursuant to both the Rome Statute and East Timor Regulation 2000/15 is said to be a jurisdictional requirement. It must be borne in mind that Element 4 of Article 7(1)(h) of the Elements of Crimes parallels the wording found in Article 7(1)(h) of the Rome Statute. Furthermore, the provisions established in Section 5(1)(h) of the East Timor Regulation 2000/15 are identical to those found in Article 7(1)(h) of the Rome Statute. Thus, Ambos and Wirth argue that it is not necessary for the perpetrator to know about the nexus requirement. The requirement enables the court to exercise its jurisdiction to prosecute only those crimes of persecution “which are of an elevated objective dangerousness.” Kai Ambos and Steffen Wirth, “The Current Law on Crimes Against Humanity”, (2002), 13(1), Criminal Law Forum 1 at 72-74. According to paragraph 2 of the Introduction to the Elements for crimes against humanity the context for each crime against humanity is described in the last two elements of each crime. It follows, therefore, that Elements 5 and 6 of Article 7(1)(h) of the Elements of Crimes describe the context of crimes of persecution. In addition, paragraph 2 of the Introduction to the Elements for crimes against humanity stipulates that with regard to the last element, in this case Element 6, it is not necessary to show proof that the perpetrator knew “all characteristics of the attack or the precise details of the plan or policy of the State or organization.” The terms ‘intent’ and ‘knowledge’ which appear in Element 6 of Article 7(1)(h) of the Elements of Crimes are defined in Article 30(2) and (3) of the Rome Statute, discussed above. The Mens Rea provision found in Article 30 of the Rome Statute is, however, ambiguous when read in conjunction with Element 6 of Article 7(1)(h) of the Elements of Crimes and Article 7 of the Rome Statute. Firstly, the provision does not clearly state what the knowledge of the perpetrator is supposed to relate to. The perpetrator’s knowledge could relate to any of the following possibilities: “the existence of an attack against the civilian population? The nature of this attack (widespread or systematic)? Or, the political and ideological principles of the attack that render it systematic?” Kai Ambos, “Some Preliminary Reflections on the Mens Rea Requirements of the Crimes of the ICC Statute and of the Elements of Crimes” in Lal Chand Vohrah et al (eds), Man’s Inhumanity to Man: Essays on International Law in Honour of Antonio Cassese (The Hague: Kluwer Law International, 2003) at 27. Regarding these questions, it may be noted that Paragraph 2 of the Introduction to the Elements for crimes against humanity requires that the perpetrator had knowledge of the context of the attack, that is, the widespread or systematic nature of the attack directed against any civilian population. Secondly, there is some confusion when Article 30 of the Rome Statute is read together with the chapeau to Article 7 and the Article 7(2)(a) definition of ‘attack directed against any civilian population’. One is left wondering, for example, what exactly is the perpetrator required to know concerning the attack. Also, is the perpetrator required to know that the attack is pursuant to a state or organizational policy to commit such attack? Margaret McAuliffe deGuzman, “The Road from Rome: The Developing Law of Crimes Against Humanity”, (May 2000), 22(2), Human Rights Quarterly 335 at 379-380. Ultimately, the perpetrator does not need to be aware of the precise details of the policy. However, s/he must be aware of the overall context of the attack, that is, knowledge of their own role in the widespread or systematic attack directed against any civilian population. Ibid In any event, the perpetrator’s knowledge could be inferred from the facts and circumstances surrounding the perpetrator’s conduct. Paragraph 2 of the Introduction to the Elements for crimes against humanity. See also Cherif M Bassiouni, Crimes against Humanity in International Criminal Law (2nd rev edn) (The Hague: Kluwer Law International, 1999) at 264. The second limb of Element 6 of Article 7(1)(h) of the Elements of Crimes states that the perpetrator must have known “the conduct was part of or intended to be part of a widespread or systematic attack directed against a civilian population.” Why is it so important that the perpetrator has knowledge of the widespread or systematic attack directed against the civilian population? Simply because failure of such knowledge, be it actual or constructive, renders the crime an ordinary crime. Article 7(1) of the Rome Statute describes crimes against humanity as widespread or systematic attacks directed against any civilian population with knowledge of the attack. Thus, knowledge of the widespread or systematic nature of the attack directed against a civilian population is required in order to establish the perpetration of crimes against humanity. In addition, knowledge of the context of the widespread or systematic attack restricts the application of these international legal principles from ordinary isolated random acts or crime waves that do not amount to crimes against humanity. Kriangsak Kittichaisaree, International Criminal Law (Oxford: Oxford University Press, 2001), at 91,93. 6. NEED FOR FORMULATING A CLEAR DEFINITION OF PERSECUTION IN THE FUTURE In conclusion, there are a number of reasons why the scope of the crime of persecution must be clearly defined in the future. Firstly, crimes of persecution should not be considered as a ‘catch-all’ crime. Claire de Than and Edwin Shorts, International Criminal Law and Human Rights (London: Sweet and Maxwell, 2003), paragraphs 5-021, 5-022 at 106-107. In the case of Prosecutor v. Simić et al the Trial Chamber reasoned that, “the principle of legality requires that the Prosecution must identify and prove the particular acts amounting to persecution rather than charge persecution in general.” Prosecutor v. Simić et al, Case No. IT-95-9-T, ICTY Trial Judgment, 17 October 2003, paragraph 50, which confirmed the Stakić judgment where the Trial Chamber held “in charging persecutions, the Prosecutor must plead with precision the particular acts amounting to persecutions.” Prosecutor v. Stakić, Case No. IT-97-24, ICTY Trial Judgment, 31 July 2003, paragraph 735. In addition, the Trial Chamber in Prosecutor v. Kupreškić et al was of the opinion that “in order for persecution to amount to a crime against humanity it is not enough to define a core assortment of acts and to leave peripheral acts in a state of uncertainty. There must be clearly defined limits on the types of acts which qualify as persecution” (emphasis appears in the Judgment). Prosecutor v. Kupreškić et al, Case No. IT-95-16, ICTY Trial Judgment, 14 January 2000, paragraph 618. Secondly, the crime of persecution must be articulated clearly so as to satisfy the cardinal principle of human rights law that a person cannot be tried, convicted and punished for conduct that was not criminal at the time the conduct was committed. Suzannah Linton, “Comments on the Draft Agreement Between the United Nations and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed during the Period of Democratic Kampuchea”, Searching for the Truth – Comment and Analysis, Special English Edition, April 2003, Documentation Centre of Cambodia (DC-Cam) at 37-38. Available at:www.dccam.org Thirdly, since the perpetrator’s knowledge of overall context of the attack can be inferred from the facts and circumstances of the situation and from the perpetrator’s conduct itself, it need not be mentioned separately under the elements of crimes. Express declaration may make it mandatory, but difficult, for the prosecution to prove. Fourthly, under the Rome Statute, the criteria that have been laid down, i.e.(i) nature of the attack-whether widespread and systematic (ii) whether in pursuance of a wider state or organizational policy to commit such attack (iii) knowledge of the overall context of the attack, need to be satisfied in totality. In all the precedents so far (ICTY, ICTR, IMT & IMTFE jurisprudence), satisfying anyone of the three requirements, has been held to be enough for conviction of the perpetrators. Fifthly, the nature of “Severe Deprivation of Fundamental Rights” under the elements of crimes should be clearly specified. For Instance, what are those fundamental rights, the deprivation of which might constitute the crime against humanity, of Persecution. Ideally, the deprivation of any basic fundamental right of any targeted group should be enough to convict the perpetrators. This would in turn, also ensure, that no serious violations of International Humanitarian Law are committed, in the process of targeting a particular group. Finally, it is noteworthy that, like the crime against humanity, of Genocide, under the Rome Statute, the basic requirement of Discriminatory Intent, is also required for persecution. It is submitted that for a crime like Persecution, in which even a small group of people may be targeted on the basis of their collective identity as a minority group, the liability incurred should be absolute and not conditional. If the prosecution has to prove the requirement of discriminatory intent, conviction might become much more difficult, as intention may not always be evident from the killing of a small number of people, who happen to constitute a negligible portion of the population of the State. Therefore, it is suggested that this requirement should be done away with and absolute liability should be sought to be imposed. If all the above suggestions are incorporated under the Rome Statute and Elements of Crimes, then, in terms of practical application, the definition of Persecution can be made much more concrete and the Prosecutor might find it much easier to secure conviction for persecution. PAGE 20