Abstract
In a vulnerable planet devastated by more and more frequent natural disasters and anthropogenic catastrophes the international community is called on to meet a new challenge task: to provide efficient responses to humanitarian crises. This Chapter seeks to identify the role that international criminal law could play within the emerging corpus juris referred to as International Disaster Response Law. A criminally-oriented perspective explores the extent to which denial, refusal, or diversion of humanitarian assistance to disaster-affected populations falls within in existing definitions of unlawful acts punishable as crimes against humanity. Hypothetically, where an inappropriate response policy results in the massive loss of life rather than massive violations of fundamental rights, may reasonable be argued that crimes against humanity were committed. Such a theoretical conclusion also underlines potential deterrent effects usually attributed to criminalization, such as preventing heinous crimes from being perpetrated even in catastrophic situations.
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Notes
- 1.
Hugo Grotius, on the law of war and peace, translated from the original Latin De jure belli ac pacis, 2001, Batoche Books, Kitchener, Ontario, 247.
- 2.
See supra Chap. 1 by de Guttry in this volume, providing the definition of disaster and humanitarian assistance.
- 3.
1998 Rome Statute of the International Criminal Court.
- 4.
Amnesty International 2008b, 1.
- 5.
Human Rights Watch 2009, 223, estimating 84,000 dead and 53,000 missing.
- 6.
Ibid, 224.
- 7.
Amnesty International 2008a, 1.
- 8.
- 9.
See Kouchner 2008.
- 10.
See Parsons 2008.
- 11.
See Maddox 2008.
- 12.
- 13.
Kambanda, (ICTR-97-23-S), Judgment and Sentence, 4 September 1998, para 16.
- 14.
Schabas 2010, 91, for an analysis of the historical origins of the crime of genocide and its actus reus criteria.
- 15.
1998 Convention on the Prevention and Punishment of the Crime of Genocide.
- 16.
The Statutes of the ICTR (Article 2) and the International Criminal Tribunal for former Yugoslavia (Article 4) authoritatively endorsed the same provision.
- 17.
Pursuant to Article 9 RS, the Elements of Crimes were adopted by the ASP in 2002, Doc. ICC-ASP/1/3.
- 18.
Article 6 (a)(3) RS, Doc. ICC-ASP/1/3.
- 19.
Ibid., n. 2.
- 20.
See also Schabas 2010, 95, for a discussion of the quantitative dimension of genocide and its relationship with the mental element: a significant number of victims, rectius, the number of group members, the perpetrator intended to destroy could be taken into account as proof of such a genocidal element.
- 21.
Article 6(a)(3), Doc. ICC-ASP/1/3: ‘Notwithstanding the normal requirement for a mental element provided for in Article 30, and recognizing that knowledge of the circumstances will usually be addressed in proving genocidal intent, the appropriate requirement, if any, for a mental element regarding this circumstance will need to be decided by the Court on a case-by-case basis’.
- 22.
The Prosecutor v. Radovan Karadzic and Ratko Mladic (ICTY IT-95-5-R61 and IT-95-18-R61), Review of Indictment pursuant to Rule 61, 11 July 1996, para 94.
- 23.
- 24.
See supra Chap. 11 by Venturini in this volume, exploring the relationship between disasters and international humanitarian law principles.
- 25.
- 26.
See infra 18.4.
- 27.
See Evans 2008.
- 28.
See Thakur 2008.
- 29.
Rottensteiner 1999 quotes a refugee from Kosovo. The author explores potential prosecutions under international criminal law for denial of humanitarian assistance. Natural disasters are explicitly excluded from this analysis.
- 30.
The first time this criminal category was formally used was to label the atrocious massacres committed by the Turkish government against Armenians. See Schabas 2010, 98–100, for historical remarks on dealing with crimes against humanity through legal instruments.
- 31.
Preamble to the RS and Article 5 RS, ‘The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole’.
- 32.
These words are preceded by the expression ‘for the purpose of the Statute’. As suggested by a cross-reading (Articles 10 and 22), by this premise, drafters intend to identify a definition only applicable before the Court.
- 33.
Article 5.
- 34.
Article 3.
- 35.
Prosecutor v. Dusko Tadic a.k.a. ‘Dule’ (ICTY IT-94-1-AR72), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para 140.
- 36.
Hall 2008, comparing different threshold requirements set out in several legal instruments which were adopted before the Court’s Statute. A lengthy and detailed analysis is devoted to the nexus with armed conflict and to discriminatory grounds. In particular, the practice of the ad hoc tribunals has shed light on these issues from a customary standpoint: their jurisprudence leans towards the definition chosen by the drafters at the Rome Conference.
- 37.
Article 7(2)(a) RS.
- 38.
The so-called nullum crimen sine lege principle prohibits interpretation by analogy in malam partem (Article 22 RS).
- 39.
Tadić, supra n. 35, Opinion and Judgment, 7 May 1997, para 656, confirms a disjunctive approach.
- 40.
Prosecutor v. Kunarac et al. (ICTY IT-96-23-A), Judgment, Appeals Chamber, 12 June 2002, para 94.
- 41.
Ibid., para 91.
- 42.
The ICC Statute is the first legal instrument to formalize the policy element. Bassiouni 2011, 40–42, highlights that even the extension of crimes against humanity to non-State actors, such as paramilitary groups, still imposes a policy element. Indeed, it is the requirement which distinguishes crimes against humanity from common crimes, which are punishable under domestic criminal law (e.g., organized crime and transnational organized crime groups). Such a policy condition seems to be implicitly contained in the broader contextual element, i.e., ‘widespread or systematic attack’, so that the specification mentioned by Article 7(2) RS may even be redundant. In conclusion, the author deems it useful to specify that the expression ‘organizational policy’ does not refer to the policy of a non-State actors’ organization. Contra, more recently, the Pre-Trial Chamber II of the ICC addressed the issue in its decision on the authorization to open an investigation into the situation in the Republic of Kenya (31 March 2010), concluding that ‘The Chamber finds that had the drafters of the Statute intended to exclude non-State actors from the term "organization", they would not have included this term in Article 7(2)(a) of the Statute. The Chamber thus determines that organizations not linked to a State may, for the purposes of the Statute, elaborate and carry out a policy to commit an attack against a civilian population’.
- 43.
The ICTY has held that that practice ‘overwhelmingly supports the contention that no such requirement [a policy or plan] exists under customary international law’, Kunarac, Prosecutor v. Kunarac et al. (ICTY IT-96-23-A), Judgment, Appeals Chamber, 12 June 2002, para 287. But Bassiouni, ibid., 41, argues that the ICTY Appeals Chambers in the Kunarac case mistakenly denied the customary nature of the policy requirement.
- 44.
Katanga and Ngudjolo Chui (ICC-01/04-01/07-717), Pre-Trial Chamber I, Decision on the confirmation of charges, para 396.
- 45.
See Ford 2010, 260.
- 46.
Ibid.
- 47.
See, inter alia, Kunarac, supra n. 43, para 99.
- 48.
Article 7(2) Elements of Crimes.
- 49.
Kunarac, supra n. 43, para 103.
- 50.
Ford 2010, 261, assesses the Junta’s awareness of the attack in the aftermath of Cyclone Nargis. Despite intense international pressure, the government of Myanmar did deny the gravity of an ongoing humanitarian crisis.
- 51.
See supra Sect. 18.2.
- 52.
See, inter alia, Akayesu (ICTR-96-4-T), Judgment, 2 September 1998, para 589, referring to murder; Prosecutor v. Kayishema (ICTR 95-1-T), Judgment, Trial Chamber, para 147, referring to extermination.
- 53.
Ibid., Akayesu.
- 54.
See Akayesu, supra n. 52, para 591. See also para 592, in which the Chamber identified ‘the essential elements of extermination as the following: (1) the accused or his subordinate participated in the killing of certain named or described persons; (2) the act or omission was unlawful and intentional; (3) the unlawful act or omission must be part of a widespread or systematic attack; (4) the attack must be against the civilian population; (5) the attack must be on discriminatory grounds, namely: national, political, ethnic, racial, or religious grounds’.
- 55.
Prosecutor v. Rutaganira (ICTR 95-1C-T), Judgment, Trial Chamber, 14 March 2005, para 68, elaborating on the circumstances under which the accused can be held responsible for extermination committed by indirect participation in the commission of the crime.
- 56.
Article 7(2)(b) RS.
- 57.
Footnote 4, Article 6(c) Elements of crimes.
- 58.
See, inter alia, Kayishema, supra n. 52, para 144.
- 59.
Article 7(2)(d) RS. It is important to highlight that the crime against humanity of forcible transfer of population is coupled with the crime of deportation. Although, the Statute does not provide any distinguishing element, human rights instruments have largely clarified their legal nature. Indeed, the former prohibits compulsory internal displacement, whereas the latter prohibits transnational removal of population. However, the Statute of the ICTY and the ICTR do not list the crime of forced transfer of population among crimes against humanity. However, their jurisprudence has included acts of forced displacement under the definitions of, persecution, other inhumane acts or war crimes.
- 60.
Footnote n. 13, Article 7(1)(d) Elements of Crimes.
- 61.
Footnote n. 12, Article 7(1)(d) Elements of Crimes.
- 62.
Article 7(1)(h) RS.
- 63.
Tadic, supra n. 34, para 697.
- 64.
Article 7(1)(h).
- 65.
Ibid.
- 66.
Article 7(1)(k) RS.
- 67.
Footnote n. 30, Article 7(1)(k), clarifying that ‘it is understood that “character” refers to the nature and gravity of the act’.
- 68.
Article 7(1)(k) RS.
- 69.
The jurisprudence of the ad hoc tribunals has applied similar provisions contained in their Statutes. See, e.g., Prosecutor v. Milosevic (ITCY IT-02-54-T), Decision on Motion for Judgment of Acquittal, Trial Chamber, 16 June 2004, para 52, determining that the crime of forcible transfer ‘could have been covered in the reference to “other inhumane acts”’.
- 70.
- 71.
For a more detailed definition of the meaning of great suffering and serious injury to body or to mental and physical health, see, inter alia, Prosecutor v. Delalic (also known as the Celibici Trail Chamber Judgment, ICTY IT-96-21-T ), Judgment, Trial Chamber, 16 November 1996, paras 442 and 552.
- 72.
See Barber 2009, assessing the aftermath of Cyclone Nargis, the author admits that severe restrictions on humanitarian aid might satisfy the similarity test. On the other hand, this does not appear to be the case in the Myanmar’s situation.
- 73.
Article 30 RS States: ‘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.
For the purposes of this article, a person has intent where:
-
(a)
In relation to conduct, that person means to engage in the conduct;
-
(b)
In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.
For the purposes of this article, ‘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’.
-
(a)
- 74.
See Pisani 2004, for a detailed taxonomic description.
- 75.
See, e.g., genocidal intent (Article 6).
- 76.
See supra footnote 1.
- 77.
- 78.
See Barber 2009.
- 79.
See Jackson 2010, 1–3; see also Leo Lewis, supra footnote 11, ‘By Friday the US had four planes and 23 helicopters ready in Thailand. One was allowed to drop aid yesterday and two were planned for today. The US Navy plans to have three ships in international waters off the Burmese coast today. It has 4,000 Marines on standby in Thailand. Two Indian Navy vessels docked in Rangoon last week. Despite a meeting in Burma, none of the UN's “critical” relief staff waiting in Bangkok had received visas yesterday’.
- 80.
See Barber 2009, acknowledging, in principle, that impeding humanitarian might fall under the species ‘other inhumane acts’, belonging to the broader genus ‘crimes against humanity’. Nevertheless, the author argues that the Myanmar’s regime imposed a partial, not total, restriction on relief aid, so that this conduct did not fulfill the required gravity.
- 81.
For a more detailed analysis of physical elements of specific acts, see supra Sect. 18.3.2.
- 82.
See Ford 2010.
- 83.
See, e.g., Amnesty International 2008b, 3, ‘On 20 May the government announced that the rescue phase of the cyclone response had ended and the reconstruction phase had begun. Since then, the government has stepped up its efforts to remove cyclone survivors from their temporary shelters and return them forcibly to their homes, in many cases in areas that are uninhabitable. The authorities have targeted emergency shelters in schools and monasteries, as both were used as polling stations for the delayed May constitutional referendum, and because the school term began on 2 June.
- 84.
See Ford 2010.
- 85.
- 86.
See Chap. 10 by Costas Trascasas in this volume.
- 87.
See G.A. Res. 60/1, U.N. Doc. A/RES/60/1, 2005 World Summit Outcome, 24 October 2005, para 139: ‘The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the R2P populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out’.
- 88.
See supra Sect. 18.3.
- 89.
See Schabas 2010, 58.
- 90.
See Permanent Court of International Justice, France v. Turkey, Judgment, 7 September 1927.
- 91.
In December 2010 the UN Security Council has decided to establish the so-called ‘International Residual Mechanism for Criminal Tribunals’, in order to complete the functional work of the ICTY and the ICTR (‘completion strategy’). See UN Doc. S/RES/1966 (2010), 22 December 2010.
- 92.
Hybrid tribunals are characterized by both national and international staff, to ensure independence and impartiality, but, in the meanwhile, proximity to victims. See, inter alia, Werle 2009, 115.
- 93.
Ibid, 5, for a historical insight into primordial steps.
- 94.
Article 11(1) RS>.
- 95.
Schabas 2010, 67, asserting that such declarations can be retroactive.
- 96.
Article 13(1)(b) RS: ‘A situation in which one or more of such crimes appears to have been committed is referred to the Prosecutor by the Security Council acting under Chapter VII of the Charter of the United Nations’.
- 97.
The Security Council, recalling the R2P principle, referred the situation to the ICC to open an investigation into the situation in Libya, since crimes against humanity were allegedly being committed. Further recalling responsibility of the Libyan authorities to protect the Libyan population, the Security Council Resolution 1973 (2011) established a ban on all flights in the Libyan airspace. See UN Doc. S/RES/1970 (2011), 26 February 2011, para 4.
- 98.
Ramesh Thakur, supra footnote 28.
- 99.
See Amnesty International 2008b, 1, determining that in late may, the government of Myanmar granted a limited number of entry visas to foreign humanitarian employees.
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Russo, F. (2012). Disasters Through the Lens of International Criminal Law. In: de Guttry, A., Gestri, M., Venturini, G. (eds) International Disaster Response Law. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-882-8_18
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