Article 5 and Customary International Law

287. The same conclusion is reached if Article 5 is construed in light of the principle whereby, in case of doubt and whenever the contrary is not apparent from the text of a statutory or treaty provision, such a provision must be interpreted in light of, and in conformity with, customary international law. In the case of the Statute, it must be presumed that the Security Council, where it did not explicitly or implicitly depart from general rules of international law, intended to remain within the confines of such rules.

288. A careful perusal of the relevant practice shows that a discriminatory intent is not required by customary international law for all crimes against humanity.

289. First of all, the basic international instrument on the matter, namely, the London Agreement of 8 August 1945, clearly allows for crimes against humanity which may be unaccompanied by such intent. Article 6 (c) of that Agreement envisages two categories of crimes. One of them is that of “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population”, hence a category for which no discriminatory intent is required, while the other category (“persecutions on political, racial, or religious grounds”) is patently based on a discriminatory intent. An identical provision can be found in the Statute of the Tokyo International Tribunal (Article 5 (c)).³⁴⁸ Similar language can also be found in Control Council Law No. 10 (Article II (1) (c)).³⁴⁹

290. The letter of these provisions is clear and indisputable. Consequently, had customary international law developed to restrict the scope of those treaty provisions which are at the very origin of the customary process, uncontroverted evidence would be needed. In other words, both judicial practice and possibly evidence of consistent State practice, including national legislation, would be necessary to show that customary law has deviated from treaty law by adopting a narrower notion of crimes against humanity. Such judicial and other practice is lacking. Indeed, the relevant case-law points in the contrary direction.

348 Article 5 (c) of the Statute of the International Military Tribunal for the Far East provides:

“Crimes against Humanity: Namely, murder, extermination, enslavement, deportation, and other inhumane acts committed before or during the war, or persecutions on political or racial grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.”

349 Article II (1) (c ) of Control Council Law No. 10 provides:

“Crimes against Humanity: Atrocities and offences, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any

Generally speaking, customary international law has gradually expanded the notion of crimes against humanity laid down in the London Agreement. With specific reference to the question at issue, it should be noted that, except for a very few isolated cases such as Finta,³⁵⁰ national jurisprudence³⁵¹ includes many cases where courts found that in the

civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.”

350 The Supreme Court of Canada held that:

“[W]ith respect to crimes against humanity the additional element is that the inhumane acts were based on discrimination against or the persecution of an identifiable group of people.” (R. v. F inta, [1994]

1 SCR 701, at p. 813, majority judgement delivered by Cory J.).

351 In this regard, mention can be made of some further cases: Ahlbrecht, decided by the Dutch Special Court of Cassation on 11 April 1949 (Nederlandse Jurisprudentie, 1949, no. 425, pp. 747-751); J. and R., decision of the German Supreme Court for the British Zone, judgement dated 16 November 1948, S. StS 65/48 in Entscheidungen des Obersten Gerichtshofes für die Britische Zone, vol. I, pp. 167-171; Enigster, decided by the District Court of Tel A viv. As the District Court of Tel A viv rightly stressed in the Enigster case, some crimes against humanity do not require a persecutory intent. In its Decision of 4 January 1952, the court stated the following:

“ As to crimes against humanity, we have no hesitation in rejecting the argument of the Defence that any of the acts detailed in the definition of crime against humanity have to be performed with an intention to persecute the victim on national, religious or political grounds. It is clear that this condition only applies when the constituent element of the crime is persecution itself. The legislator found it necessary to separate persecution from the other types of action by a semi-colon and to precede the word ‘persecution’ with the words ‘and also‘, thus clearly establishing that persecution stands by itself, and that it alone is subject to that condition.” (18 International Law Reports 1951, p. 541).

It should be noted, however, that the Court was clearly wrong as far as the question of the famous semi-colon was concerned; it is well known that in actual fact the Protocol of 6 October 1945 replaced the semi-colon with a colon. (For the text of the Protocol see Trials of War Criminals Before the Nuernberg Military Tribunals under Control Council Law No. 10, vol. I, pp. X VI-XIX).

Reference can also be made to some cases decided by the German Supreme Court for the British Zone. The Appeals Chamber will briefly mention three of them: R., P. et al. and H.

In a Decision of 27 July 1948 (S. StS 19/48), the court pronounced on the case of R. In 1944, a member of the NSD AP (the German National Socialist Worker’s Party) and the NSK K (National Socialist Motor V ehicle Corps) had denounced another member of the NSD AP and of the SA (Stormtroopers) for insulting the leadership of NSD AP; as a result of this denunciation the victim had been brought to trial three times and eventually sentenced to death. (The sentence had not been carried out because the Russians had occupied Germany in the interim). The Court held that the denunciation could constitute a crime against humanity if it could be proved that the agent had intended to hand over the victim to the “uncontrollable power structure of the [Nazi] party and State”, knowing that as a consequence of his denunciation the victim was likely to be caught in an arbitrary and violent system (Entscheidungen des Obersten Gerichtshofes für die Britische Zone, vol. I, pp. 45-49 at p. 47).

In a Decision of 7 December 1948 (S. StS 111/48), in the P. et al. case, the same court gave a very liberal interpretation to the notion of crimes against humanity as laid down in Control Council Law No. 10, extending it among other things to inhumane acts committed against members of the military. During the night after Germany’s partial capitulation (5 May 1945) four German marines had tried to escape from Denmark back to Germany. The next day they were caught by Danes and delivered to German troops, who court-martialled and sentenced three of them to death for desertion; on the very day of the general capitulation of Germany, i.e. 10 May 1945, the three were executed. The German Supreme Court found that the five members of the court-martial were guilty of complicity in a crime against humanity. A ccording to the Supreme Court, the glaring discrepancy between the offence and the punishment constituted a clear manifestation of the Nazis’ brutal and intimidatory system of justice, which denied the very essence of humanity in blind reference to the allegedly superior exigencies of the Nazi State; there was “an intolerable degradation of the victim[s] to mere means for the pursuit of a goal, hence the depersonalisation and reification of human beings.” (Entscheidungen des Obersten Gerichtshofes für die Britische Zone, ibid., vol. I, pp. 217-229 at p. 220). Consequently, by

circumstances of the case crimes against humanity did not necessarily consist of persecutory or discriminatory actions.

291. It is interesting to note that the necessity for discriminatory intent was considered but eventually rejected by the International Law Commission in its Draft Code of Offences Against the Peace and Security of Mankind.³⁵² Similarly, while the inclusion of a discriminatory intent was mooted in the Preparatory Committee on the Establishment of an International Criminal Court (PrepCom),³⁵³ Article 7 of the Rome Statute embodied the drafters’ rejection of discriminatory intent.³⁵⁴

292. This warrants the conclusion that customary international law, as it results from the gradual development of international instruments and national case-law into general rules, does not presuppose a discriminatory or persecutory intent for all crimes against humanity.

sentencing the marines to death the members of the court-martial had inflicted an injury upon humanity as a whole.

The same broad interpretation of Control Council Law No. 10 may be found, finally, in a Decision of 18 October 1949 (S. StS 309/49) in the H. case (Entscheidungen des Obersten Gerichtshofes für die Britische Zone, vol. II, pp. 231-246). There, the court dealt with a case where a German judge had presided over two trials by a naval court-martial (Bordkriegsgericht) against two officers of the German Navy, a submarine commander, charged in 1944 with criticising Hitler, and the other a lieutenant-commander of the German naval forces, charged in 1944 with procuring two foreign identity cards for himself and his wife. The Judge had voted for sentencing both officers to death (the first had been executed, while the sentence against the second had been commuted by Hitler to 10 years’ imprisonment). The Supreme Court held that the Judge could be found guilty of crimes against humanity even if he had not acted for political reasons, to the extent that his action was deliberately taken in connection with the Nazi system of violence and terror (Entscheidungen des Obersten Gerichtshofes für die Britische Zone, ibid., vol. II, pp. 233, 238).

352 See for instance IL C 1996 Draft Code of Offences Against the Peace and Security of Mankind, Report of the International Law Commission on the work of its 48^th session May 6-July 26, 1996, U N G A OR 51^st sess., supp. no. 10 (A/51/10), pp. 93-94.

353 While some delegates argued that a conviction for crimes against humanity required proof that the defendant was motivated by a discriminatory animus, others argued that “the inclusion of such a criterion would complicate the task of the Prosecution by significantly increasing its burden of proof in requiring evidence of this subjective element.” These delegates further argued that crimes against humanity could be committed against other groups, including intellectuals, social, cultural or political groups, and that such an element was not required under customary international law as evidenced by the Yugoslav Tribunal’s Statute.

(See Summary of the Proceedings of the Preparatory Committee During the Period March 25-April 12, 1996, U.N. Doc. A/A C.249/1 (May 7, 1996), pp. 16-17).

354 Article 7(1) of the Rome Statute provides: “For the purposes of this Statute, ‘crime against humanity’

means 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: (a) murder […].” Article 7(1) of the Statute of the International Criminal Court thus articulates a definition of crimes against humanity based solely upon the interplay between the mens rea of the defendant and the existence of a widespread or systematic attack directed against a civilian population.