Crimes Against Humanity – Part I: Is an attack by a state or organization against members of its own armed forces an attack directed against a civilian population amounting to a crime against humanity?

Part I 

A few months ago, 19 April 2016 to be exact, Michael Bohlander, the International Co-Investigating Judge for the Extraordinary Chambers in the Courts of Cambodia (“ECCC”) issued a call for submissions by the Office of the Co-Prosecutors (“OCP”), the Defence in Cases 003 and 004, and qualified amici curiae.  Querying whether there was a lacuna in defining who may form a “civilian population” for the purpose of crimes against humanity, Judge Bohlander asked:

whether, under customary international law applicable between 1975 and 1979 [the temporal jurisdiction of the ECCC], an attack by a state or organisation against members of its own armed forces may amount to an attack directed at a civilian population.1Case of MEAS Muth, 003/07-09-2009-ECCC/OCIJ, Call for Submissions by the Parties in Cases 003 and 004 and Call for Amicus Curiae Briefs, 19 April 2016, D191 (“Call for Submissions”), para. 3.

ECCC International Co-Investigating Judge Michael Bohlander
ECCC International Co-Investigating Judge Michael Bohlander

In this series I will deal with this question and the arguments and conclusions reached by those who answered Judge Bohlander’s call for submissions.2This series of posts is based on the submissions made on behalf of MEAS Muth in Case 003: Case of MEAS Muth, 003/07-09-2009-ECCC/OCIJ, MEAS Muth’s Submission on the Question of Whether Under Customary International law in 1975-1979 an Attack by a State or Organization Against its own Armed Forces Could Amount to an Attack Directed Against a Civilian Population for Purposes of Article 5 of the Establishment Law, 19 May 2016, D191/2; Case of MEAS Muth, 003/07-09-2009-ECCC/OCIJ, MEAS Muth’s Combined Response to Amici Curiae Submissions on the Question of Whether Under Customary International Law in 1975-1979 an Attack by a State or Organization Against its Own Armed Forces Could Amount to an Attack Directed Against a Civilian Population for Purposes of Article 5 of the Establishment Law, 11 July 2016, D191/17. I am grateful for the outstanding assistance of the entire Meas Muth Defence team. Special thanks also to Legal Interns on the Prlić Defence Team at the ICTY for their assistance with the submissions and this series of posts.  In this post I will set the stage and provide a brief synopsis of the submissions, identifying the overarching arguments made, and comparing and contrasting the positions taken. 

The ECCC

For those unfamiliar with the ECCC, some context may be useful.

The ECCC is an extraordinary chamber within the existing Cambodian court structure.  It was established with the cooperation of the United Nations (“UN”) to try senior leaders of the Democratic Kampuchea and those who were alleged to be most responsible for international crimes (genocide, crimes against humanity, and grave breaches of the 1949 Geneva Conventions)3This series of posts is based on the submissions made on behalf of MEAS Muth in Case 003: Case of MEAS Muth, 003/07-09-2009-ECCC/OCIJ, MEAS Muth’s Submission on the Question of Whether Under Customary International law in 1975-1979 an Attack by a State or Organization Against its own Armed Forces Could Amount to an Attack Directed Against a Civilian Population for Purposes of Article 5 of the Establishment Law, 19 May 2016, D191/2; Case of MEAS Muth, 003/07-09-2009-ECCC/OCIJ, MEAS Muth’s Combined Response to Amici Curiae Submissions on the Question of Whether Under Customary International Law in 1975-1979 an Attack by a State or Organization Against its Own Armed Forces Could Amount to an Attack Directed Against a Civilian Population for Purposes of Article 5 of the Establishment Law, 11 July 2016, D191/17. I am grateful for the outstanding assistance of the entire Meas Muth Defence team. Special thanks also to Legal Interns on the Prlić Defence Team at the ICTY for their assistance with the submissions and this series of posts. and national crimes committed in Cambodia during the period from 17 April 1975 to 6 January 1979.  These dates are by no means arbitrary when considering the events in and around Cambodia prior and subsequent to the period when Cambodia was under the Democratic Kampuchea regime.4See Report of the Group of Experts for Cambodia Established Pursuant to General Assembly Resolution 52/135, UN Doc. No. A/53/850 and S/1999/231, Annex, 18 February 1999, paras. 13-41, providing historical background and describing the activities of the Khmer Rouge.  In establishing the ECCC, to avoid such pesky legal issues as the carpet-bombing of Cambodia by the US military5“Khmer Rouge were born out of the inferno that American policy did much to create” and that Sihanouk’s “collaboration with both powers [the United States and North Vietnam]…was intended to save his people by confining the conflict to the border regions. It was American policy that engulfed the nation in war.”  William Shawcross, Sideshow: Kissinger, Nixon, and the Destruction of Cambodia, 396 (New York: Washington Square press, 1979). For a more nuanced, if not opposite view, see Craig Etcheson, The Rise and Demise of Democratic Kampuchea 95-103 (Westview Pr 1984), criticizing Shawcross’s conclusions regarding the US policy and military operations in Cambodia. (talk about crimes against humanity), or the UN’s support of the Khmer Rouge regime after its fall6In 1979, at the 34th Session of the UN General Assembly, representatives of the People’s Republic of Kampuchea and Democratic Kampuchea both claimed the right to represent the country. The UN Credentials Committee decided to recognize Democratic Kampuchea by a vote of six to three. Accordingly, representatives of Democratic Kampuchea were allowed to be seated in the General Assembly. See Yearbook of the United Nations 1979, Part 1, Section 1, Chapter 11, Report of the Credentials Committee, pp. 291-296. (so much for the UN’s moral imperative), it was decided that the temporal jurisdiction for the ECCC should be the date when Phnom Penh fell to the Khmer Rouge and the date when the Khmer Rouge regime abandoned Phnom Penh as it made its way to the Thai border.7For more on the ECCC’s negotiation history, see David Scheffer, The Extraordinary Chambers in the Courts of Cambodia, in International Criminal Law: Vol. III International Enforcement (Cherif M. Bassiouni ed., Nijhoff 2008), p. 239; Thomas Hammarberg, How the Khmer Rouge tribunal was agreed: discussions between the Cambodian government and the UN, in Searching for the Truth 2001, available at http://www.d.dccam.org/Tribunal/Analysis/How_Khmer_Rouge_Tribunal.htm.   Situational justice.

The ECCC was established through an Agreement between the Cambodian government and the UN.8Agreement 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 (“Agreement”), 6 June 2003, preamble.  Article 12(2) of the Agreement explicitly provides that the ECCC shall exercise its jurisdiction in accordance with international standards of justice, fairness and due process of law, as set out in Articles 14 and 15 of the International Covenant on Civil and Political Rights (“ICCPR”).  Article 15 embodies the principle of legality, requiring that “[n]o one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed.”  The Agreement is implemented “through” the Establishment Law,9Article 12(2) of the Agreement provides that “[t]he present Agreement shall be implemented in Cambodia through the Law on the Establishment of the Extraordinary Chambers as adopted and amended.” intended to put into practice the ECCC’s subject matter, temporal, and personal jurisdiction: “to bring to trial senior leaders of the Democratic Kampuchea and those who were most responsible for the crimes and serious violations of Cambodian penal law, international humanitarian law and custom, and international conventions recognized by Cambodia.”10Establishment Law, Art. 1.

The question

With this context in mind, Judge Bohlander’s question concerns the principle of legality: what constituted a “civilian population” under Article 5 of the Establishment Law (defining crimes against humanity) during the period of 1975-1979?

The question is relevant to Cases 003 and 004 because some of the suspects under investigation are charged with crimes against humanity relating to alleged internal military purges. This includes my client, Mr. MEAS Muth, who is charged with various crimes against humanity, including murder, extermination, enslavement, imprisonment, torture, and persecution, allegedly committed while he held positions in the Revolutionary Army of Kampuchea and the Democratic Kampuchea Navy.11Statement of the International Co-Investigating Judge regarding Case 003, 14 December 2015, available at: https://www.eccc.gov.kh/sites/default/files/media/ECCC%20PR%2014%20Dec%202015%20En.pdf.

A determination that armed forces could constitute a “civilian population” for the purposes of crimes against humanity under customary international law from 1975-1979 could have a significant impact on cases at the ECCC. This may also be one of those serendipitous moments when a judge seeks to put his or her imprint on the development or articulation of international criminal law.  Judicious.

The ECCC Law

Under Article 5 of the Establishment Law:

Crimes against humanity, which have no statute of limitations, are any acts committed as part of a widespread or systematic attack directed against any civilian population, on national, political, ethnical, racial or religious grounds….12Emphasis added.

Curiously, when reciting Article 5 in his call for submissions, Judge Bohlander inserted the adjective “primarily (crimes against humanity “must have been committed, inter alia, as part of a widespread or systematic attack primarily directed against ‘any civilian population’”),13Call for Submissions, para. 1. which is not part of the definition applicable to the ECCC.  The adjective “primarilyis found in the jurisprudence of the International Tribunal for the Former Yugoslavia (“ICTY”),14See Prosecutor v. Kunarac, IT-96-23 & IT-96-23/1-A, Judgement, 12 June 2002, para. 92, holding that the phrase “directed against” in the ICTY’s definition of crimes against humanity, requires that the civilian population must be the “primary rather than an incidental target of the attack.” but this jurisprudence does not automatically apply at the ECCC, nor can it be used to inject by judicial fiat terms or qualifications into the definitions of the crimes set out in the Establishment Law.

As I have noted, the ECCC is a domestic court established within the existing court structure of the national legal system of Cambodia. The ECCC Pre-Trial Chamber confirmed that “[f]or all practical and legal purposes, the ECCC is, and operates as, an independent entity within the Cambodian court structure….”15See Case of KAING Guek Eav, 001/18-07-2007-ECCC/OCIJ (PTC01), Decision on Appeal Against Provisional Detention Order of KAING Guek Eav alias “Duch”, C5/45 3 December 2007, para. 19.

Customary international law and the case law of other tribunals cannot be directly applied in Cambodian courts, because Cambodia adheres to a dualist system (which recognizes that international and national legal systems are two essentially different legal systems, with different spheres of action) in its approach to implementing international law in its domestic legal order.16See Michael Kirby, The Growing Rapprochement between International Law and National Law, in Legal Visions of the 21st Century: Essays in honour of Judge Christopher 333 (Anghie & Sturgess eds., 1998), describing the difference between dualist and monist systems. See UN Doc. CERD/C/292/Add.2, 5 May 1997, para. 19, where the Committee on the Elimination of Racial Discrimination referred to eight conventions ratified by Cambodia and stated that they were not to be directly invoked before Cambodian courts or administrative authorities. See also Suzannah Linton, Putting Cambodia’s Extraordinary Chambers into Context, 11 Sing. Y.B. Int’l L.195, 203-204 (2007), where Linton states that the Cambodian government has a preference for dualism. Moreover, there is nothing in the Agreement or Establishment Law requiring ECCC judges to follow the jurisprudence or rules of procedure of international or internationalized tribunals (in contrast to the Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, signed on 16 January 2002, which explicitly provides that its jurisprudence may be “linked” to that of the international tribunals).

Jurisprudence from other international criminal tribunals, such as the ICTY, is not binding on the ECCC, nor is it binding in other Cambodian domestic courts. The jurisprudence and rules of procedure of international and internationalized tribunals can only be used for guidance in interpreting relevant provisions of international law and procedure at the ECCC, when there is a gap, uncertainty, or inconsistency in existing procedures.

As such, the chapeau requirements of crimes against humanity cannot be extended at the ECCC to encompass an attack that is only “primarily” directed against a civilian population or directed against a non-civilian population comprised of soldiers, simply because that is a requirement at the ICTY.  The attack must be wholly directed against a civilian population. Under applicable customary international law, crimes against humanity require attacks against a civilian population. Article 5 of the Establishment Law recognizes and applies this, and Judge Bohlander’s insertion of the adjective “primarily” impermissibly alters the definition as set out in Article 5.

Judicial musings

In his call for submissions, Judge Bohlander mused on the theoretical implications of his question. Whether he was tipping his hand as to what he has predetermined the answer to this question to be, or whether he was merely providing judicial hints in the fine German judicial tradition,17Robert W. Emerson, Judges as Guardian Angels: The German Practice of Hints and Feedback, 48 Vand. J. Transnat’l L., 707, 722 (2015). is anyone’s guess.  In Judge Bohlander’s words:

The Trial Chamber, in line with the jurisprudence of the other ad hoc Tribunals, has clarified that members of an armed organisation, even if hors de combat, do not qualify as ‘civilians’ for the purpose of Article 5….18Call for Submissions, para. 2.

[T]his principle was enunciated in relation to members of armies or armed groups, other than those belonging to the state or organisation which carries out the attack, in other words, of the enemy population.19Id.

[A]n argument could be made that the previous discussion about the interpretation of the concept may from the very beginning have overlooked a rather banal logical policy aspect, which is that the entire distinction between combatants and civilians might only make sense if we are talking about combatants and civilians of the enemy population.20Id., para. 5.

[I]t would a) seem beyond dispute that a regime which in peace times tried to cleanse its own armed forces of, for example, all soldiers holding a particular ethnicity or faith, would be engaging in crimes against humanity, because the victims’ combatant quality merely because they are soldiers would be entirely irrelevant in this context, and that b) there is no reason to think otherwise if such a campaign happened in the course of or otherwise connected to an armed conflict.21Id.

These musings were certainly useful in focusing the submissions.  They do, however, seem to telegraph Judge Bohlander’s position on the question.

Synopsis

The call for submissions raises a number of interesting and complex questions that go to the core of crimes against humanity and international humanitarian law.

Crimes against humanity developed as “an extension of war crimes,”22M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law 48 (2d ed. 1999). crystallizing as a separate category of offenses from war crimes after World War II.  The intended purpose was to allow justice for civilians who were attacked by their own states or who could not be deemed to be under enemy occupation, closing a gap in the laws of war and protecting civilians from their own states.23Complete History of the United Nations War Crimes Commission and the Development of the Laws of War, compiled by the United Nations War Crimes Commission (His Majesty’s Stationery Office, London, 1948), Ch. 8, p. 174-75.

Specific to the question, the Defence was unanimous in submitting that a state’s own armed forces do not form a “civilian population” for the purposes of crimes against humanity.24See Case of Yim Tith and Ao An, 004/07-09-2009-ECCCIOCIJ, Yim Tith’s Submission on the Interpretation of the Term ‘Civilian Population’ for the Purposes of Article 5 of the Establishment Law, 19 May 2016; Ao An’s Submission on Whether an Attack by a State or Organisation Against Members of its Own armed Forces Could Qualify as a Crime Against Humanity Under Customary International Law in 1975-1979, 19 May 2016. Here is why: a. customary international law has always distinguished between soldiers and civilians, requiring crimes against humanity to be directed against a civilian population; b. no state practice or opinio juris indicates that the distinction between a soldier and a civilian only applies to enemy populations, or only during times of war; and c. the jurisprudence indicates that this distinction is relevant even in peacetime and when evaluating attacks by a state against its own soldiers. There is a caveat: in individual instances, non-civilians can be victims of crimes against humanity, where they were part of an attack on civilians as the primary target.

Unsurprisingly, the International Co-Prosecutor (“ICP”) and the amici, save for one,25Case of MEAS Muth, 003/07-09-2009-ECCC/OCIJ, Brief of Dr. Joanna Nicholson as Amicus Curiae in Support of neither party, 13 May 2016, D191/8, (“Nicholson, D191/8”). came down on the side hinted by Judge Bohlander: under customary international law applicable before 1975, a state or organization’s own armed forces can constitute a civilian population for the purposes of crimes against humanity.26See Case of MEAS Muth, 003/07-09-2009-ECCC/OCIJ, International Co-Prosecutor’s Response to the Co-Investigating Judge’s Call for Submissions Regarding Crimes Against Humanity, 19 May 2016, D191/1, (“ICP Response”); Amicus Curiae Brief in Cases 003 And 004 – Professor Ben Saul, 19 May 2016, D191/3, paras. 4-6 (“Saul, D191/3”); Amicus Curiae Brief For Cases 003 And 004 – Catherine Drummond, Philippa Webb and Dapo Akande, 19 May 2016, D191/4, paras. 3-10 (“Drummond et al., D191/4”) Unlike others, Drummond et al. brief acknowledged that soldiers cannot form a civilian population in times of armed conflict; Amicus Curiae Brief for Cases 003 and 004 – TRIAL (Track Impunity Always), 19 May 2016, D191/5, para. 21 (“TRIAL, D191/5”); Amicus Curiae Brief of Professors Robinson, De Guzman, Jalloh and Cryer on Crimes Against Humanity for Cases 003 and 004, 17 May 2016, D191/6, paras. 22-23 (“Robinson et al. D191/6”); Amicus Curiae Brief for Cases 003 and 004 – Ido Rosenzweig, 23 May 2016, D191/7, para. 1 of p. 4 and last para. of p. 6 (“Rosenzweig, D191/7”); Amicus Curiae Brief for Cases 003 and 004 – Professor Nicholas Tsagourias, 17 May 2016, D191/9, paras. 18-24 (“Tsagourias, D191/9”); Amicus Curiae Brief for Cases 003 and 004 – Oliver Windridge, 23 May 2016, D191/10, paras. 19-21 (“Windridge, D191/10”); Amicus Curiae Brief Filed by Drs. Williams and Grey in Response to Call for Amicus Curiae Briefs in Cases 003 and 004 Dated 19 April 2016, 19 April (sic) 2016, D191/11, paras. 16, 20, 25 (“Williams and Grey, D191/11”); Amicus Brief filed by the Center for International and Comparative Law, University of Baltimore School of Law on the Legality of Targeting Members of One’s Own Military, 18 May 2016, D191/12, paras. 21-22 (“Baltimore, D191/12”); Queen’s University Belfast Human Rights Centre Response to the ECCC Office of the Co-Investigating Judges’ ‘Call for Submissions by the Parties in Cases 003 and 004 and Call for Amicus Curiae Briefs’, 12 May 2016, D191/13, paras. 10-11, 16, 18 (“QUB, D191/13”).

The ICP’s general thesis was that the principle of distinction was only intended to regulate interactions between opposing forces, and the rationale behind this principle cannot apply to a state’s own forces, which are not lawful targets under international humanitarian law.27ICP Response, paras. 5-6.

The amici argued in a variety of ways that the law should protect a state’s own forces. As we will see in the next post, when not relying on moral and policy arguments, the amici either misapplied international humanitarian law or resorted to absurd interpretations and applications of the law on crimes against humanity.

Here is the gist of the amici arguments:

  • Expanding the definition of “civilian population” for policy or moral reasons to include soldiers targeted by their own state would not violate the principle of legality.28Saul, D191/3, paras. 20, 22; Rosenzweig, D191/7, p. 4, para. 3, p. 5, para. 2, p. 6, para. 4; Williams and Grey, D191/11, paras. 21-22; Baltimore, D191/12, para. 8; QUB, D191/13, para.
  • The term “civilian population” must be interpreted expansively because the purpose of creating crimes against humanity was to plug gaps, such that any violation not covered by the laws of war would be covered by crimes against humanity.29Saul, D191/3, para. 20; TRIAL, D191/5, paras. 21-22; Rosenzweig, D191/7, p. 3, 4, 6; Tsagourias, D191/9, paras. 20-21; Windridge, D191/10, paras. 5, 8, 21; Williams and Grey, D191/11, para. 20.
  • There is no legal distinction between soldiers and civilians in peacetime because there are no combatants, the exigencies underlying the principle of distinction do not apply, and soldiers are subject to the same protections and laws as civilians.30Saul, D191/3, paras. 7-14; Drummond et al., D191/4, paras. 18-19; Nicholson, D191/8, p. 1, para. 3; Tsagourias, D191/9, paras. 18-19; Windridge, D191/10, para. 16; Williams and Grey, D191/11, paras. 19-20.
  • The provisions in international humanitarian law against targeting protected persons also protect soldiers from being targeted by their own state.31TRIAL, D191/5, paras. 12, 14-16; Tsagourias, D191/9, para. 23; Baltimore, D191/12, para. 10.
  • The term “civilian” serves a functional purpose in international humanitarian law, enabling a legal distinction between lawful and unlawful targets in armed conflict, and those not involved in a conflict or targeted for reasons unconnected to a conflict are illegitimate targets and must be considered part of the civilian population.32Robinson et al., D191/6, paras. 4-21; Rosenzweig, D191/7, p. 5, para. 3, p. 4, para. 1; Williams and Grey, D191/11, paras. 6, 16-17; Baltimore, D191/12, paras. 4-5.
  • International human rights law supports interpreting “civilian population” as including a state’s own soldiers.33TRIAL, D191/5, paras. 1-10; Williams and Grey, D191/11, para. 20; Baltimore, D191/12, paras. 12-16.
  • Persecution is distinct from other crimes against humanity in that it does not require an attack against a civilian population.34Drummond et al., D191/4, paras. 1(a)(ii), 11-17; QUB, D191/13, paras. 3-9.

Most of the amici relied heavily on three post-World War II cases (P and Others, R Case, and H Case),35P and Others, 7 December 1948, Decisions in Criminal Cases of the Supreme Court for the British Zone, Vol. 1 (W de Gruyter, Berlin, 1949), 217-229; R Case, 27 July 1948, Decisions in Criminal Cases of the Supreme Court for the British Zone, Vol. 1 (W de Gruyter, Berlin, 1949), 45-49; H Case, 18 October 1949, Decisions in Criminal Cases of the Supreme Court for the British Zone, Vol. 2 (W de Gruyter, Berlin, 1949), 231-246. which, to my knowledge, have not been officially translated into English as yet and for which full case reports are not widely available or accessible. More to the point, these cases do not address the specific question posed by Judge Bohlander. They did not consider the interpretation of “civilian population” or whether soldiers could form a civilian population, rather they examined individual instances of soldiers as victims of crimes against humanity. These isolated cases are not representative of customary international law.

There is an interesting aside to these cases that is worth a slight divergence, especially when many of the amici seem to have relied on summaries because the original cases were not available in English. It is hard for me to fathom that one would rely on what a case purports to say (facts, issue, decision and rationale, and dicta), without having the entire text in one’s working language.  Hard also to fathom that Defence counsel should not have access to the cases in one of the official working languages of the Court, especially when the judge is fluent in the language of some of the original decisions, and when, for obvious reasons, the judge is assuredly going to discuss and maybe even rely on these cases.

With that in mind, and in keeping with the professional and ethical due diligence obligations expected of the Co-Lawyers representing Mr. MEAS Muth,36Defence Counsel are required to act with due diligence to safeguard their clients’ interests. In Tadić, the ICTY Appeals Chamber stated that: “[t]he requirement of due diligence includes the appropriate use of all mechanisms of protection and compulsion available under the Statute and the Rules of the International Tribunal to bring evidence on behalf of an accused before the Trial Chamber.” Prosecutor v. Tadić, IT-94-1, Decision on Appellant’s Motion for the Extension of the Time-Limit and Admission of Additional Evidence, 15 October 1998, para. 47. The Appeals Chamber in Krstić added that Defence Counsel must also bring “any difficulties in relation to obtaining evidence on behalf of the accused . . . to the attention of the Trial Chamber.” Prosecutor v. Krstić, IT-98-33-A, Decision on Application for Subpoenas, 1 July 2003 (Krstić Decision), paras. 5, 9-14. Black’s Law Dictionary defines due diligence as “[t]he diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or to discharge an obligation.” Black’s Law Dictionary 468 (7th ed. 1999). we requested Judge Bohlander to issue an order to obtain accurate English translations of the complete decisions (three German cases – R Case, P and Others, and H Case – and one Dutch case – In re Pilz), in order to fully examine the discussion of the facts, the court’s reasoning and rationale, as well as the relevance of the cases to the question presented in the call for submissions.37Request that the Office of the Co-Investigating Judges obtain English translations of three German decisions from the Supreme Court of the British Occupied Zone and one Dutch decision from the Special Court of Cassation, D191/16, 3 June 2016. Judge Bohlander refused this request, stating that the Defence is “not entitled to receive English translations of all documents referred in briefs under either the laws of Cambodia or the Internal Rules of the ECCC.”38Order on Request to Obtain English Translations of Three German Decisions and One Dutch Decision, D191/16/1, 21 June 2016, paras. 7, 21. Though “sympathetic,” Judge Bohlander was not able to find a basis for the right to obtain the translation of the documents requested, observing that his reviewed sources provide for a right to translation of essential/relevant documents only.39Id., paras. 7-14, citing, inter alia, Hill and Hill v. Spain, UNHRC, 526/1993, 2 April 1997, para. 14.2; ECtHR cases: X v. Austria, no. 19010/07, Judgement, 29 May 1975, p. 70; Kamasinski v. Austria, no. 9783/82, 19 December 1989, paras. 74, 79; Luedicke, Belkacem and Koҫ v. Germany, no. 6210/73; 6877/75; 7132/75, 28 November 1978, para. 48.  He also noted that the ECCC’s Interpretation and Translation Unit (“ITU”) has the ability to provide translations, if requested. Without an order from the Judge, the ITU refused to translate the decisions, so we did what was expected of us and had the cases translated.

Suffice it to say, having the cases translated in the words of American Poet Laureate of Vermont Robert Frost, has made all the difference;40Robert Frost, The Road Not Taken, 1915, last stanza. these cases provide no reasoning, no credible authority, no basis for claiming that they represent customary international law. Astonishing.  We will see these cases in more detail in the following post, but at least for those interested in reviewing them in English, the translations are linked.

Refreshingly, Nicholson did not succumb to the urge to embrace policy and obfuscation as a substitute for cold legal analysis and reasoning.  She was the only amicus to explicitly acknowledge that the post-World War II cases only establish that soldiers can be victims of crimes against humanity.41Nicholson, D191/8, p. 5-6. She concluded that between 1975 and 1979 customary international law had not crystallized to consider soldiers, including persons hors de combat, as a “civilian population” for the purposes of crimes against humanity, during armed conflict.42Id., p. 5. She confirmed that this is the current position of customary international law in a subsequent blog post on the topic.

Though the amici addressed Judge Bohlander’s question in a broadly similar fashion, there are some distinct nuances between them that are worth exploring.  In dealing with the overarching arguments from the amici and ICP briefs, a series of questions emerge:

  1. Should the term “civilian population” be given a broad interpretation to include members of a state’s own armed forces? And would excluding soldiers from the definition of “civilian population” lead to an “absurd result”?
  2. Are soldiers distinct from civilians in peacetime?
  3. Does international humanitarian law support the notion that a state’s own soldiers can be a “civilian population”?
  4. Does the term “civilian” serve a functional purpose and is there support for the “legitimate target” interpretation of crimes against humanity?
  5. Does international human rights law alter the meaning of “civilian population” in relation to crimes against humanity?
  6. Are “persecution-type” crimes against humanity exempt from the “civilian population” requirement?
  7. Are the post-World War II cases reliable authority for the conclusion that soldiers can form a “civilian population” for the purposes of crimes against humanity?

In the next post I will address these questions and drill down on the arguments and conclusions of the amici and the ICP for claiming – wrongly in my opinion – that under customary international law between 1975 and 1979, a state or organization’s own armed forces can constitute a civilian population for the purposes of crimes against humanity.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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