1 Chapter 5 Combatants as victims of crimes against humanity Suitable quote required Combatants run the risk of being injured, or ultimately losing their life, during an armed conflict: it is part and parcel of their job description and, as I have explained, international law accepts this reality. Of course, not all deaths of combatants are lawful under international law, combatants can also become the victims of atrocities. Traditionally, most atrocities against combatants have been prosecuted as war crimes. However, not all crimes against combatants can fall into this category, for example crimes committed by the combatant’s own state against them, 1 or crimes committed out with the context of an armed conflict. The concept of crimes against humanity was originally developed to encompass atrocities which could not fall into the category of war crimes. Most definitions of the crime 2 require that there be an attack directed against any civilian population, and because of that, it has been unclear as to whether or not combatants could be victims of crimes against humanity. In this chapter I shall examine the historical background of crimes against humanity and examine how different definitions of crimes against humanity have developed. I shall then explore how courts and tribunals have applied the various definitions of the crime in cases were combatants were victims. 1 Prosecutor v Sesay et al (SCSL-04-15-T) 2 March 2009 para 1451, where the Trial Chamber stated “The Chamber is of the opinion that the law of armed conflict does not protect members of armed groups from acts of violence against them by their own forces”. 2 There are several different definitions of crimes against humanity: Bassiouni cites twelve different international definitions, see Bassiouni, Cherif M., Crimes against Humanity: The Case for a Specialised Convention; 9 Wash. U. Global Stud. L. Rev. 575 at FN 44. Also see Badar, Mohamed Elewa; From the Nuremberg Charter to the Rome Statute: Defining the Elements of Crimes against Humanity ; 5 San. Diego Int’l L.J. 73 2004
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1
Chapter 5
Combatants as victims of crimes against humanity
Suitable quote required
Combatants run the risk of being injured, or ultimately losing their life, during an armed
conflict: it is part and parcel of their job description and, as I have explained, international law
accepts this reality.
Of course, not all deaths of combatants are lawful under international law, combatants can
also become the victims of atrocities. Traditionally, most atrocities against combatants have
been prosecuted as war crimes. However, not all crimes against combatants can fall into this
category, for example crimes committed by the combatant’s own state against them,1 or
crimes committed out with the context of an armed conflict.
The concept of crimes against humanity was originally developed to encompass atrocities
which could not fall into the category of war crimes. Most definitions of the crime2 require
that there be an attack directed against any civilian population, and because of that, it has
been unclear as to whether or not combatants could be victims of crimes against humanity.
In this chapter I shall examine the historical background of crimes against humanity and
examine how different definitions of crimes against humanity have developed. I shall then
explore how courts and tribunals have applied the various definitions of the crime in cases
were combatants were victims.
1 Prosecutor v Sesay et al (SCSL-04-15-T) 2 March 2009 para 1451, where the Trial Chamber stated “The
Chamber is of the opinion that the law of armed conflict does not protect members of armed groups from acts of
violence against them by their own forces”.
2 There are several different definitions of crimes against humanity: Bassiouni cites twelve different
international definitions, see Bassiouni, Cherif M., Crimes against Humanity: The Case for a Specialised
Convention; 9 Wash. U. Global Stud. L. Rev. 575 at FN 44. Also see Badar, Mohamed Elewa; From the
Nuremberg Charter to the Rome Statute: Defining the Elements of Crimes against Humanity; 5 San. Diego Int’l
L.J. 73 2004
2
5.1 The origins of crimes against humanity
The idea that there are ‘laws of humanity’ has been with us since time immemorial.3
According to Schabas, “the notion of crimes against humanity was in wide circulation from at
least the middle of the eighteenth century”.4 His view is that the author of the expression
may have been Voltaire,5 and has unearthed several examples of the use of the phrase during
the eighteenth and nineteenth centuries.6 It was not until the early twentieth century that
reference was made to the concept in an official document when, in 1915, the term appeared
in a Declaration issued by the British, French and Russian Governments following the killing
of the Armenians by the Turks in the Ottoman empire, which referred to “new crimes of
Turkey against humanity and civilisation”.7
In the aftermath of the First World War, a Commission was set up to inquire into the
violations of international law committed by Germany and its allies during the war. Their
final Report stated that the war had been carried out:
3 See Cassese, A, Crimes against Humanity: Comments on Some Problematical Aspects in Cassese, A; The
Human Dimension of International Law, Selected Papers; Oxford University Press; 2008, p 457. An example of
the use of the phrase in a legal text can be found in the Martens Clause, which originally appeared in the
Convention with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning the
Laws and Customs of War on Land, 29 July 1899, which states: ‘the High Contracting Parties think it right to
declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under
the protection and empire of the principles of international law, as they result from the usages established
between civilized nations, from the laws of humanity, and the requirements of the public conscience.’ Also see
the St Petersburg Declaration 1868 and the Hague Convention of 1907. However, see Schwelb, Egon; Crimes
against Humanity; 23 Brit. Y. B. Int’l L. 178 (1946) at p 180 who writes that “in older international
documents…the expressions ‘humanity’, ‘laws of humanity’, ‘dictates of humanity’ were used in a non-technical
sense and certainly not with the intention of indicating a set of norms different from the ‘laws and customs of
war’”.
4 Schabas, William; Unimaginable Atrocities: Justice Politics and Rights at the War Crimes Tribunals; Oxford
University Press; 2012; p 51
5 Schabas, supra *** p 51 referring to Voltaire, A Philosophical Dictionary: From the French of M. De Voltaire;
1793, repr., London: W. Dugale 1843, p 293
6 Schabas, supra ***, p 51 – 53. Also see Moir, Lindsay, Crimes against Humanity in Historical Perspective, 3
N.Z. Y.B. Int’l L. 101 (2006) at p 102- 107 who states ‘There may well have been a recognition of crimes under
international law, and of what are now perceived as human rights, but it is inconceivable that Grotius, Vattel, et
al were asserting the same category of offences as was prosecuted at Nuremberg’ (p 107).
7 See Cassese, supra ***, p 458, Badar, supra ***, p 77- 79; Bassiouni *** (62 in 1999 ed); Schabas, supra ***
p 30
3
by the Central Empires together with their allies, Turkey and Bulgaria, by barbarous or
illegitimate methods in violation of the established laws and customs of war and the
elementary laws of humanity. (emphasis added)
and further that
all persons belonging to enemy countries …who have been guilty of offences against
the laws and customs of war, or the laws of humanity, are liable to criminal prosecution8
(emphasis added)
However, the American members of the Commission disagreed and wrote a dissenting report
focussing on the Commission’s use of the phrase ‘laws of humanity’, arguing that the phrase
meant nothing since there were no such laws.9 They stated:
war was and is by its very nature inhuman, but acts consistent with the laws and
customs of war, although these acts are inhuman, are nevertheless not the object of
punishment by a court of justice.10
As a result of this disagreement, no reference was made to crimes against humanity in the
Treaties of Versailles.11
However, in the Treaty of Sèvres, which concerned the massacre of
the Armenians by the Turks, and to which America was not a party, Turkey undertook to hand
over those who were responsible for the massacres to the Allies for prosecution. 12
Although
the term ‘crime against humanity’ was not used, it was, as Schwelb writes, an early example
of reference to the crime, as:
8 Carnegie endowment for International Peace, Pamphlet No 32, Violation of the Laws and Customs of War:
Reports of Majority and Dissenting Reports of Japanese Members of the Commission of Responsibilities for the
Conference of Paris, 1919 and see Schwelb, supra *** p 180 – 181 and Matas, David; Prosecuting Crimes
against Humanity: The Lessons of World War I: 13 Fordam Int’l L. J. 86 1989 – 1990 p 86 – 92. Also see
United Nations War Crimes Commission, History of the United Nations War Crimes Commission and the
Development of the Laws of War, London; HMSO; 1948; p 21 - 52
9 Matas, supra *** p 89 - 90
10 Quoted in Schwelb, supra *** p 181 - 182
11 Schwelb, supra *** p 182
12 Article 226, Treaty of Sèvres, 1920
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it was intended to bring to justice persons who, during the war, had committed on
Turkish territory crimes against persons of Turkish citizenship though of Armenian or
Greek race, a clear example of ‘crimes against humanity’ as understood in the 1945
London Charter.13
The Treaty was not ratified and never came into force, and so, ultimately, nothing came of the
undertaking.
5.2 The framing of the first definition of Crimes against Humanity
It was not until the aftermath of the Second World War that the first definition of the crime
was formulated.14
The problem facing the Allied Powers was that the Nazis had committed
atrocities against their own people and it was understood that:
crimes committed by Germans against Germans, however reprehensible, are in a
different category from war crimes and cannot be dealt with under the same
procedure.15
Bassiouni writes:
These crimes were unimaginably horrific to the international community. The law was,
therefore, lagging behind the facts, and ultimately, the facts drove the law.16
The first definition is found in Article 6(c) of the Charter of the International Military
Tribunal for the Trial of the Major War Criminals, appended to the London Agreement of 8
August 1945 (hereafter the ‘London Charter’). Bassiouni explains that during the drafting
process:
as they reviewed the facts, it was clear that certain atrocities did not fall within the
traditional meaning of “war crimes”. In the course of their deliberations they
13
Schwelb, supra *** p 182
14 For a summary of the developments leading up to the drafting of the London Charter, see Schwelb, supra ***
p 183 - 188
15 Schwelb, supra *** p 186 quoting Richard Law, then Minister of State in the House of Commons on 31
January 1945 (Hansard, House of Commons, 31 January 1945)
16 Bassiouni, supra ***(2011) p 724
5
gradually came to the realisation that a third separate category was needed, and by
July 1945, they settled for the heading ‘crimes against humanity 17
5.2.1 Article 6 (c) of the London Charter
Section 6(c) of the London Charter defines crimes against humanity as:
murder, extermination, enslavement, deportation, and other inhumane acts
committed against any civilian population, before or during the war, or
persecutions on political, racial or religious 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.
Thus, in this first definition of the crime, the acts must be ‘committed against any civilian
population’. However, it is important to recall that it was necessary to include a crime of
crimes against humanity in the London Charter for a specific reason: in order to include
crimes committed by the Nazi regime against its own civilians, which could not constitute war
crimes. The drafters of the London Charter would have assumed that atrocities committed
against combatants would have taken place within the context of the war itself, an
international armed conflict, where more well-established war crimes laws would cover
criminal acts perpetrated against combatants. As Cassese writes:
The rationale for this relatively limited scope of Article 6(c) is that enemy combatants
were already protected by the traditional laws of warfare, while it was deemed unlikely
that a belligerent might commit atrocities against its own servicemen or those of allied
countries. In any event, such atrocities, if any, would come under the jurisdiction of the
courts-martial of the country concerned; in other words they would fall under the
province of national legislation.18
The framing of Article 6(c) in this way led to some disagreement regarding how the article
should be interpreted. The International Law Commission observed that it prohibited two
17
Bassiouni, M. Cherif; Crimes Against Humanity in International Criminal Law; Kluer Law International, 2nd
revised edition, 1999 p 17. For a discussion of whether crimes against humanity constituted ex post facto law
see Moir, supra ***, p 117 - 123
18 Cassese, supra *** p 466
6
different categories of crimes.19
The first included crimes of murder, extermination,
enslavement, deportation, and other inhumane acts which have been committed against any
civilian population (‘murder type’ crimes against humanity); while the second included
persecutions on political, racial or religious grounds (‘persecution type’ crimes against
humanity).
Some have argued that this meant that combatants could not be the victims of ‘murder type’
crimes against humanity, since they had to be directed against ‘any civilian population’, but
could be victims of ‘persecution type’ crimes against humanity, which did not have this
requirement.20
Schwelb argues that such a distinction would “not lead to satisfactory
results”,21
as
It would be difficult to understand the rationale of a provision under which the number
of persons afforded protection against a less serious crime (persecution) would be larger
than that of potential victims protected against the graver offences of the murder type.22
Others believed that combatants could not be victims of crimes against humanity at all- the
UN War Crimes Commission, for example, when comparing the London Charter, the Tokyo
Charter23
and Control Council Law No 10, concurred that there were two different types of
crimes against humanity, and that offences against members of the armed forces were
probably outside murder type crimes against humanity, which had to be committed against the
civilian population, and were probably also outside the scope of persecution type.24
Let us now turn to the handful of cases from post-World War II jurisprudence which
considered whether combatant victims could be victims of crimes against humanity.
19
Report of the International Law Commission, U.N.GAOR, 5th
Sess., Supp. No. 12 UN Doc A/1316 (1950) at
para 120
20 See for example Cassese, supra ***, p 465 - 471
21 Schwelb, supra *** p 190
22 Schwelb, supra *** p 190
23 International Military Tribunal for the Far East Charter, 19 January 1946
24 History of the United Nations War Crimes Commission, supra *** p 193 - 194 and see Bassiouni, (bk) ***, p
36
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5.3 Post World War II Jurisprudence
The Nuremberg Tribunal did not have occasion to consider whether combatants could be
victims of crimes against humanity under Article 6(c) of the London Charter. It was, rather,
in the courts administered by the Allies where the matter arose. These courts were not
applying Article 6(c), which applied solely to the Nuremberg Tribunal, however the
definitions of the crime which they applied were based on the definition given in the London
Charter, and contained a requirement that the crime be ‘committed against any civilian
population’.25
In P et al,26
dating from 1948, the Supreme Court of Germany in the British Occupied Zone,
applying Article II (1) (c) of Control Council Law No. 10,27
considered whether the treatment
of four German marines who had been captured trying to escape from Denmark back to
Germany on the eve of German capitulation, constituted a crime against humanity. Three
were sentenced to death for desertion by a German court-martial, and were duly executed. It
was held that the members of the court martial were guilty of crimes against humanity, since
the sentence was overly excessive for the supposed crime, and the Court held it to be a
25
There were some important differences between the different definitions of crimes against humanity and the
definition contained in Article 6(c): Article II (c) of Control Council Law No. 10, for example, removed the
requirement for there to be a connection with crimes against peace or war crimes, see Bassiouni supra (bk
CvH)**, p 32 - 37, however all of the definitions have a similar requirement that the acts be ‘committed against
any civilian population’.
26 P and Others, 7 December 1948, Entscheidungen des Obersten Gerichtshofes für die Britische Zone in
Strafsachen, St S 111/48 cited in Cassese, supra *** p 468 – 469; Also see H. Singh, Critique of the Mrkšić Trial
Chamber (ICTY) Judgment: A Re-evaluation on whether soldiers hors de combat are entitled to recognition as
victims of crimes against humanity, The Law and Practice of International Courts and Tribunals 8 (2009) p 257-
258
27 Article II (1) (c) of Control Council Law No. 10 states:
Each of the following acts is recognized as a crime…….
a) Crimes against Humanity. Atrocities and offenses, including but not limited to murder, extermination,
enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian
population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic
laws of the country where perpetrated.
8
manifestation of the Nazi’s brutal regime. In relation to the wording of Article II (1)(c), the
court observed:
whoever notes the expressly emphasised illustrative character of the instances and
classes of instances mentioned there, cannot come to the conclusion that action between
soldiers may not constitute crimes against humanity.28
In the case of H, from 1949, the same court considered the actions of a German judge who
had presided in cases against two officers in the German navy: one had been accused of
criticising Hitler, whilst the other was accused of procuring foreign identity cards for
himself and his wife. The Judge initially sentenced both to death. He was found guilty of
crimes against humanity, in that his actions were held to have been part of the system of
Nazi brutality.29
In the US Occupied Zone, in the case of RuSHA, count one of the charges against the
defendants included crimes against humanity against prisoners of war.30
The Court found the
acts to constitute crimes against humanity.31
The possible distinction between case combatants as victims of ‘murder-type’ crimes against
humanity, and combatants as victims of ‘persecution-type’ crimes against humanity was an
issue for the Dutch Special Court of Cassation, in the case of Pilz.32
The Court considered
whether a soldier of the occupying German army, who was Dutch by birth, could be a victim
of crimes against humanity. A doctor within the German army was accused of ordering, or
allowing, a subordinate to shoot and wound the soldier and thereafter refusing to give him
medical assistance, thereby allowing him to die. The court held that the offence could not be
28
Ibid, at 228 – 229, quoted in Cassese supra *** p 469 CHECK QUOTE
29 H.; 18 October 1949; Entscheidungen des Obersten Gerichtshofes für die Britische Zone in Strafsachen; St S
309/49. cited in Cassese, supra ***, p 469 and Singh, supra ***, p 258 - 259
30 Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No. 10, Vol. 4
Washington DC.: US G:P:O: 1950; p 5 available at
http://www.loc.gov/rr/frd/Military_Law/pdf/NT_Indictments.pdf#page=162 and see Singh, supra *** p 259
31 Ibid, p 152- 153
32 Pilz; Nederlandse Jurisprudentie; 1950; No. 681 at 1210 – 1211 and International Law Reports; 1950; 391 –