Genocide, complicity in genocide and international v. domestic jurisdiction: Reflections on the van Anraat case

Journal of International Criminal Justice

Volumn 4, Issue 2, 2006, Pages 239-257

  van der Wilt, Harmen G ^a  

^a UNIVERSITY OF AMSTERDAM   (Netherlands)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 33744473353     PISSN: 14781387     EISSN: 14781395     Source Type: Journal    
DOI: 10.1093/jicj/mql014     Document Type: Article

References (77)

1. District Court, 23 December 2005, LJN: AU8685. Text of the judgment is available in Dutch at http://www.rechtspraak.nl (visited 18 February 2006).
2. English background information on the whole affair is available at http://www.guardian.co.uk/story/0,1401158,00 (visited 18 February 2006).
3. (a) Killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group and (e) forcibly transferring children of the group to another group.
4. Compare for instance the ILC in the 1996 Draft Code of Crimes against the Peace and Security of Mankind: Titles and Texts of Articles on the Draft Code of Crimes Against the Peace and Security of Mankind, UN Doc. A/51/10, Comment 5 to Art. 17:'(...) a general intent to commit one of the enumerated acts combined with a general awareness of the probable consequences of such an act with respect to the immediate victim or victims is not sufficient for the crime of genocide. The definition of this crime requires a particular state of mind or a specific intent with respect to the overall consequences of the prohibited acts'. Compare also Judgement, Jelisić (IT-95-10-A), Appeals Chamber, 5 July 2001, §46 (hereinafter Jelisić Appeals Chamber): 'the specific intent requires that the perpetrator seeks to achieve the destruction, in whole or in part, of a national, ethnical, racial or religious group, as such'.
5. See for instance: Judgment, Krstić (IT-98-33-T), Trial Chamber I, 2 August 2001, §561.
6. M. Lippman, 'The Drafting of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide', 3 Boston University International Law Journal (1985), at 41.
7. Jelisić Appeals Chamber, at §49 and Judgment, Kayishema and Ruzindana (ICTR-95-1-A), Appeals Chamber, 1 June 2001, §161.
8. A.K.A. Greenawalt, 'Rethinking Genocidal Intent: The Case for a Knowledge-Based Interpretation', 99 Columbia Law Review (1999), at 2281.
9. Although a Trial Chamber of the ICTY deemed the case of the 'lone génocidaire' theoretically possible: See Judgement, Jelisić (IT-95-10-T), Trial Chamber I, 14 December 1999, §§ 100, 101.
10. Mindful of the conceptual gap between 'specific intent' and actus reus, Triffterer argues that mens rea only refers to underlying crime, while special intent is rather an extra subjective requirement, having no correspondent actus reus as a pendant, O. Triffterer, 'Genocide, its Particular Intent to Destroy in Whole or in Part the Group as Such', 14 Leiden Journal of International Law (2001), 399, at 400. The problem with this approach is that it departs from basic criminal law notions to infer mental attitudes - whether one likes to call them mens rea or not - from visible conduct.
11. As is well known, the joint criminal enterprise or common purpose doctrine has been revitalized by the Appeals Chamber of the ICTY in the Tadić case (Judgement, Tadić (IT-94-1-A), Appeals Chamber, 15 July 1999, §§ 172-237) and has been further elaborated in ensuing jurisprudence of the ad hoc Tribunals.
12. In the same vein, see C. Kress, 'The Darfur Report and Genocidal Intent', 3 Journal of International Criminal Justice (JICJ)(2005), at 575.
13. Greenawalt, supra note 8, at 2288.
14. A. Gil Gil, 'Die Tatbestände der Verbrechen gegen die Menschligkeit und des Völkermord im Römischen Statut des Internationalen Strafgerichtshofs', 112 Zeitschrift für die Gesamte Strafrechtswissenschaft (2000), at 395
15. H. Vest, Genozid durch organisatorische Machtsapparäte (Baden-Baden: Nomos Verlagsgesellschaft, 2002),at 104
16. Kress, supra note 12 (2005), at 576, 577.
17. Kress, supra note 12, at 576, note 58. Kress' own definition of individual genocidal intent reads 'knowledge of the individual perpetrator of the existence of a campaign, harbouring the collective goal to destroy a protected group' (emphasis added).
18. Kress, supra note 12, at 577.
19. The ICTR held that 'although a specific plan to destroy does not constitute an element of genocide, it would be difficult to commit genocide without such a plan or organization'. See Judgement, Kayishema and Ruzindana (ICTR-95-1-T), Trial Chamber, 21 May 1999, §94.
20. I therefore fiercely disagree with H. Vest who deems this possible, H. Vest, 'Humanitätsverbrechen, Herausforderung für das Individualstrafrecht?' 113 Zeitschrift für die Gesammte Strafrechtswissenschaft (2001), at 486.
21. Report of the International Commission of Inquiry on Darfur to the Secretary General; pursuant to SC Res. 1564, 18 September 2004, Annex to Letter dated 31 January 2005 from the Secretary-General addressed to the President of the Security Council. S/2005/60, 1 February 2005, §518.
22. W. Schabas, Genocide in International Law (Cambridge: Cambridge University Press, 2000), at 221: 'The better view (...) is that a person prosecuted for genocide as an accomplice must have the special intent required by Article II of the Convention, and is culpable even if the principal offender lacks the genocidal intent'.
23. N.H.B. Jørgensen, 'The definition of genocide: Joining the dots in the light of recent practice', 1 International Criminal Law Review (2001), at 309: 'The difficulty with genocide is that it tends to be committed along a chain of command. At the top of the chain, the point at which the planning, instigating and directing occurs, the special intent is most evident. But those who plan may not be involved in the commission of a basic act. In contrast, at the bottom of the chain, the point at which the basic acts are committed, it may be difficult to infer special intent'.
24. Judgment, Akayesu (ICTR-96-4-T), Trial Chamber I, 2 September 1998, § 540 (hereinafter Akayesu).
25. Akayesu, §541.
26. Akayesu, §545.
27. Akayesu, §547.
28. W. Schabas commentary on Akayesu, in A. Klip and G. Sluiter (eds), Annotated Leading Cases of International Criminal Tribunals, Vol. 2: The International Criniinal for Rwanda 1994-1999 (Antwerp-Groningen-Oxford-Vienna: Intersentia, 2001), at 548.
29. C. Eboe-Osuji, '"Complicity in Genocide" versus "Aiding and Abetting Genocide": Construing the Difference in the ICTR and ICTY Statutes', 3 JICJ (2005) 56-81.
30. Eboe Osuji, supra note 26, at 79.
31. Eboe Osuji, supra note 26, at 81.
32. The ICTR trial chamber in Bagileshema determined that 'knowledge of the principal's specific intent equally suffices as the mens rea for "aiding and abetting" and complicity in genocide'. Judgment, Bagilishema (ICTR-96-13-T), Trial Chamber I, 7 June 2001, §36 and § 71. In the same vein: Judgment, Semanza (ICTR-97-20-T), Trial Chamber III, 15 May 2003, §388 (hereinafter Semanza) and Judgment, Tadić (IT-94-1-A), Appeals Chamber, 15 July 1999, §229.
33. See also: L. van den Herik and E. van Sliedregt, 'Ten Years Later, the Rwanda Tribunal still Faces Legal Complexities: Some Comments on the Vagueness of the Indictment, Complicity in Genocide, and the Nexus Requirement for War Crimes', 17 Leiden Journal of International Law (2004) 544-551.
34. Judgment, Krstić (IT-98-33-A), Appeals Chamber, 19 April 2004, § 142 (hereinafter Krstić).
35. Krstić, §140.
36. Schabas, supra note 25, at 549: 'The problem with this analysis is that the accomplice who knows of the principal offender's intent and who assists or encourages must necessarily share the genocidal intent'.
37. Semanza, at §388: 'The accused (an accomplice) need not necessarily share the mens rea of the principal perpetrator; the accused must be aware, however, of the essential elements of the principal's crime including the mens rea'.
38. Akayesu, at §541: 'However, if an accused knowingly aided and abetted in the commission of such a murder while he knew or had reason to know that the principal was acting with genocidal intent, the accused would be an accomplice to genocide' (emphasis added). The passage is copied verbatim in Judgment, Musema (ICTR-96-13-T), Trial Chamber I, 27 January 2000, §182. The 'had reason to know' criterion features in the mens rea standard of command responsibility in the Statutes of the ICTY and the ICTR and includes dolus eventualis.
39. Compare, for instance, G. Werle and F. Jessberger, '"Unless Otherwise Provided": Art. 30 of the ICC Statute and the Mental Element of Crimes under International Criminal Law', 3 JICJ (2005), 53
40. and T. Weigend, 'The Harmonization of General Principles of Criminal Law: The Statutes and Jurisprudence of the ICTY, ICTR, and the ICC: An Overview', 19 Nouvelles etudes pénales (2004), 326-327: '(...) yet the only thing that these provisions (i.e. sections (2) and (3) of article 30) make clear is that the mere taking of a risk that a consequence will occur does not satisfy either the knowledge or intent requirement'.
41. D.K. Piragoff, in O. Triffterer (ed.) Commentary on the Rome Statute of the International Criminal Court (Baden-Baden: Nomos, 1999), Art. 30, marginal 22.
42. Judgment, Stakić (IT-97-24-T), Trial Chamber, 31 July 2003, at § 587: '(...) both a dolus directus and a dolus eventualis are sufficient to establish the crime of murder under article 3 of the ICTY Statute'.
43. E. van Sliedregt, The Criminal Responsibility of Individuals for Violations of International Humanitarian Law (The Hague: T.M.C. Asser Press, 2003), at 52.
44. Act implementing the Genocide Convention, 2 July 1964, Stb. (Official Journal) 1964, at 243.
45. For linguistic reasons I will use the term 'complicity', although aiding and abetting would more precisely capture the meaning of the concept.
46. Compare for a discussion on this issue, De Hullu, infra at 457 who argues that the intent of the instigator and the accomplice should cover the subjective elements of the crime, including the intent of the perpetrator, with G. Knigge, 'Het opzet van de deelnemer' ('The Intent of the Participator'), in M.S. Groenhuijsen and J.B.H.M. Simmelink (eds), Glijdende Schalen, Liber Amicorum J. de Hullu ('Flexible Scales, Liber Amicorum for J. de Hullu') (Nijmegen: Wolf Legal Publishers, 2003), 299 who denies this point of view.
47. S. Ct., 20 January 1998, NJ 1998, 426. A similar conclusion was reached in S. Ct. 10 September 2002, NJB, 11 October 2002, No. 129.
48. E. Denza, 'The Relationship between International and National Law', in M.D. Evans (ed.) International Law (Oxford/New York: Oxford University Press, 2003), at 415.
49. On this topic, see the interesting observations of W. Ferdinandusse, Direct Application of International Criminal Law in National Courts (The Hague: T.M.C. Asser Press, 2006), 132-136
50. and G. Werle, Principles of International Criminal Law (The Hague: T.M.C. Asser Press, 2005), 75-79.
51. Articles 26 and 27 of the Vienna Convention on the Law of Treaties.
52. Articles 1 and 17 of the Rome Statute.
53. For a useful survey, see Ferdinandusse, supra note 44, at 23-29.
54. Compare for a critical analysis K. Ambos and S. Wirth, 'Genocide and War Crimes in the Former Yugoslavia Before German Criminal Courts', in: H. Fischer et al. (eds), International and National Prosecution of Crimes under International Law: Current Developments (Berlin: Spitz, 2001), at 784-789. The German legislator has persisted in its 'error', by copying the provision literally in Art. 6 of the German Code on International Crimes.
55. Ferdinandusse, supra note 44, at 120.
56. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 39/46/Annex, 10 December 1984, UN.Doc. A/39/51, Art. 1(2): 'This article is without prejudice to any international instruments or national legislation which does or may contain provisions of wider application' (at 197).
57. S. Ct., 7 May 2004, In re Kesbir, §3.3.6 and 3.3.7.
58. As is well known, the position of war crimes in internal conflicts under international criminal law has, until recently, been quite elusive (ICTY, Decision on the Defence Motion on Jurisdiction, Tadić (IT-94-T), 10 August 1995, §§ 57-74). The absence of clear-cut provisions and standards at the international level may well explain the liberal approach of both legislators and courts in respect of the penalization of those war crimes in domestic law. A similar leniency towards over-inclusive domestic legislation is, however, not warranted in case of war crimes in international armed conflicts. Here the 'Crave Breaches-regime' of the Geneva Conventions is exclusive, as domestic extensions would expose foreign adversaries to a harsher regime than the one contemplated under international law. See also C. van den Wyngaert, Strafrecht, strafprocesrecht & internationaal strafrecht in hoofdlijnen ('Mainlines of Criminal Law, Criminal Procedural Law and International Criminal Law') (Anterwen: Maklu, 2003), at 661.
59. Compare Ambos and Wirth, supra note 48, at 786: '(...) the crime of Genocide is an international crime whose elements cannot be changed by one of the State Parties without affecting the legal consequences attached to the corresponding crime'.
60. See also J.K. Kleffner, 'The Impact of Complementarity on National Implementation of Substantive International Criminal Law', 1 JICJ (2003), at 100.
61. van Anraat case, §6.3.
62. Kleffner, supra note 53, at 100, note 67 and Ambos and Wirtz, supra note 48, at 786: 'In other words, if universal jurisdiction is attached to a certain crime as defined by international law, a change in the definition could also change the scope of jurisdiction attached to this crime'.
63. van Anraat case, §6.3.
64. As H. Kreicker has phrased it in a recent article: '(...) national courts have to take into account the interpretation of the elements of genocide that has been developed by the jurisprudence of the ICTY and ICTR and will be bound to accept the interpretation of the elements of genocide by the ICC'. (H. Kreicker, 'National Prosecution of Genocide from a Comparative Perspective', 5 International Criminal Law Review (2005), at 326, In the same vein, see Werle, supra note 44, at 80).
65. Obviously, this plea refers to the more general principle of consistent interpretation. Exhibiting the hierarchical supremacy of international law over national law, this principle assumes 'an international duty of national courts to interpret, within their constitutional mandates, national law in the light of international law': G. Betlem and A. Nollkaemper, 'Giving Effect to Public International Law and European Community Law before Domestic Courts. A Comparative Analysis of the Practice of Consistent Interpretation', 14 European Journal of International Law (2003), at 574.
66. A species of the lex mitior principle is incorporated in Art. 15(1), last sentence of the International Covenant on Civil and Political Rights: 'If, after the commission of an offence a change in the law provides for a more lenient sentence, the suspect shall reap the benefits of this change'.
67. According to Art. 93 of the Dutch Constitution. self-executing treaty provisions entail direct effect within the Dutch legal order after they have been properly published. Besides, such treaties take precedence over domestic acts and provisions (Art. 94, Dutch Constitution).
68. In the Bouterse case (S. Ct. 18 September 2001, NJ 2002, 559) the Dutch Supreme Court took the intention of the legislator as point of departure as well, in answering the question whether the provision on universal jurisdiction in the Dutch Act implementing the Torture Convention exceeded the concomitant provision in the UN Convention against Torture.
69. Explanatory Memorandum to the Code on International Crimes, Parliamentary Papers II, 2001-2002, 28 337, no. 3, at 5 (author's translation; hereinafter Explanatory Memorandum).
70. Explanatory Memorandum, at 27.
71. Explanatory Memorandum, at 29.
72. The District Court quotes the judgments of the Appeals Chamber in Krstić (IT-98-33-A), 19 April 2004, §144 and Ntakirutimana (ICTR-96-10-A) and (ICTR-96-17-A), 13 December 2004, §§ 500 and 501 to bolster its point of view. van Anraat case, §6.5.1.
73. The analogy between complicity and Art. 48 of the Dutch Penal Code is explicitly drawn in the Explanatory Memorandum (at 26).
74. In the Explanatory Memorandum, the legislator admits that there may be room for the application of the dolus eventualis standard under the Rome Statute (at 27), unfortunately drawing upon the rather tenuous opinion of Piragoff, supra note 36, that dolus eventualis comprises 'awareness that a consequence will occur in the ordinary course of events' (Art. 30(2)(b)).
75. van Anraat case, §6.5.1. For a similar point of view, see G. Mettraux, International Crimes and the Ad Hoc Tribunals (Oxford: Oxford University Press, 2005), at 212 and 259, who vehemently criticizes the adoption of the 'knowledge-standard' for complicity in genocide.
76. Tesch and Two Others (Zyklon B case), British Military Court, Hamburg, 1-8 March 1947, Case No. 9 UNWCC, VoL I, at 93-103.
77. A case in point are the current meddling of corporations in the conflict in the Great Lakes Region, compare H. Weiss, 'War and Peace in the Democratic Republic of the Congo', in 5 American Diplomacy (Summer 2000) available online at http://www.unc.edu/depts/diplomat/AD.Issues/amdipL16/ weiss/weiss.print1.html (visited 20 February 2006).