Crimes Against Humanity — Part II: 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 II

In the previous post I introduced the question raised by Judge Bohlander, the International Co-Investigating Judge for the ECCC, in his call for submissions: “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” for the purposes of crimes against humanity.  After setting out the context and relevance for posing this question, I provided a brief synopsis of the submissions.

In this post, I will deal the overarching arguments put forward by the amici and International Co-Prosecutor (“ICP”) in submitting 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. I will do so by answering the questions that emerge from their arguments, which I listed in the previous post.

  1. In customary international law, is the term “civilian population” 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”?

Answer: no and no.

Crimes against humanity were created to protect civilians who were not protected by the laws of war from attacks against them by their own state. The origins of crimes against humanity reflect the desire to protect civilian populations regardless of nationality, not to criminalize any violent conduct which is not considered a war crime.1Complete 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.   The scope of crimes against humanity cannot simply be broadened to fill a perceived gap in international humanitarian law, though many of the amici attempted to make such arguments. Where the law ought to be and where the law actually was between 1975 and 1979 are separate matters.

Some amici argued that the principle of legality would not be violated if the definition of civilian population was expanded for policy or moral reasons to include soldiers targeted by their own state.2Amicus Curiae Brief in Cases 003 And 004 – Professor Ben Saul, 19 May 2016, D191/3, (“Saul, D191/3”), paras. 20, 22; Amicus Curiae Brief for Cases 003 and 004 – Ido Rosenzweig, 23 May 2016, D191/7, (“Rosenzweig, D191/7”), p. 4, para. 3, p. 5, para. 2, p. 6, para. 4; 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, (“Williams & Grey, D191/11”), paras. 21-22; 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, para. 8 (“Baltimore”); 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 (“QUB, D191/13”), para. 18. Some amici argued that the “civilian population” requirement 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.3 Saul, D191/3, para. 20; Amicus Curiae Brief for Cases 003 and 004 – TRIAL (Track Impunity Always), 19 May 2016, D191/5 (“TRIAL, D191/5”), paras. 21-22; Rosenzweig, D191/7, p. 3, 4, 6; Amicus Curiae Brief for Cases 003 and 004 – Professor Nicholas Tsagourias, 17 May 2016, D191/9 (“Tsagourias, D191/9”), paras. 20-21; Amicus Curiae Brief for Cases 003 and 004 – Oliver Windridge, D191/10, 23 May 2016, (“Windridge, D191/10”), paras. 5, 8, 21; Williams & Grey, D191/11, para. 20.  These policy-driven arguments may express admirable sentiments but they are not grounded in or supported by credible legal authority – at least none that is reflective of the state of the law during the relevant period of 1975-1979.

The amicus brief from TRIAL cites authority which, when carefully examined, does not support its claimed assertion. TRIAL cites Antonio Cassese to support its argument that including a state’s own soldiers within the meaning of “civilian population” is consistent with the original logic behind crimes against humanity.4TRIAL, D191/5, para. 22, n. 35.  Cassese – who was not above asserting legal propositions without citing relevant authority and then later citing his own decisions as evidence of customary international law – does not support this argument. Quite the opposite. Cassese says that the rationale for the limited scope of crimes against humanity in the Charter of the International Military Tribunal (“IMT Charter”) is that:

[E]nemy 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.5Antonio Cassese, The Human Dimension of International Law, Selected Papers 466 (2008) (emphasis added).

Ben Saul argued that the purpose of the law on crimes against humanity was to cover the protection gap in international humanitarian law at the time, and that a broader interpretation of civilian population accords with this purpose.6Saul, D191/3, para. 20. Ido Rosenzweig agreed that this is the purpose of crimes against humanity, and argued that “it seems morally inconceivable” that attacks by a state against its own combatants would not be covered by crimes against humanity.7Rosenzweig, D191/7, p. 5, para. 3. TRIAL, Nicholas Tsagourias, and Sarah Williams and Rosemary Grey also noted that a broader interpretation of the term civilian was in line with the object and purpose of crimes against humanity.8TRIAL, D191/5, paras. 21-22; Tsagourias, D191/9, paras. 20-21; Williams & Grey, D191/11, para. 20.

The amici who argued this point effectively argued that because a broad interpretation of civilian population seems to accord with the underlying purpose of crimes against humanity, the principle of legality is not violated by defining a “civilian population” as including a population of soldiers. But why the need to divine intent as to the contours of what constitutes a “civilian population” under crimes against humanity? If an overly broad definition was the intent, then why was this intent not expressed clearly?

There is no protection gap or lacuna in the law for a state’s own soldiers.  A state’s own forces are protected under national military laws and, depending on the circumstances, could also be protected under genocide or other international humanitarian law instruments. The definitions of crimes against humanity in the IMT Charter and subsequent instruments, limiting the scope of crimes against humanity to “civilian populations,” demonstrate that states wanted to retain the ability to deal internally with their own forces.

Take, for example, Additional Protocol II of the Geneva Conventions (“AP II”), which applies during non-international armed conflicts between a State Party’s armed forces and dissident armed forces or other organized armed groups that, under responsible command, exercise such territorial control that they can carry out sustained, concerted military operations and implement AP II.9Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, 8 June 1977, 1125 UNTS 609 (“AP II”), Art. 1(1). Article 3(1) of AP II states that AP II shall not be invoked to “affect[] the sovereignty of a State or the responsibility of the government, by all legitimate means, to maintain or re-establish law and order in the State or to defend the national unity and territorial integrity of the State.” The International Committee of the Red Cross’s (“ICRC”) 1987 Commentary on AP II explains that Article 3(1) does not affect “the right of States to take appropriate measures for maintaining or restoring law and order, defending their national unity and territorial integrity.”10International Committee of the Red Cross (“ICRC”), Commentary to Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, Art. 3, para. 4500, 1987, also noting that Article 3(1) reaffirms the principle of the inviolability of the national sovereignty of states.

Why this qualification?  Because states recognized that there may be situations where they might need to attack dissident armed forces, as recently seen in Turkey during the attempted coup d’état.  Rather than prohibiting a state from attacking its own soldiers in such a situation, specific provisions were put in place to regulate such conduct. States’ interests in retaining their sovereignty and regulating their militaries internally demonstrate that they would not have intended crimes against humanity to include attacks against a state’s own soldiers.

The various arguments put forward by the amici on this question are flawed and incorrect. Policy and moral concerns about unprotected soldiers cannot expand applicable customary international law at the expense of the principle of legality.

For example, the Center for International and Comparative Law at the University of Baltimore School of Law (“Baltimore”) correctly notes that soldiers are distinct from civilians “in every consideration of international law,” but then fails to cite any authority whatsoever for its claim that the magnitude and severity of the alleged crimes should for policy reasons overcome this established distinction.11Baltimore, D191/12, para. 8. Saul similarly fails to substantiate his argument that a wide definition of “civilian population” does not violate the principle of legality and was foreseeable in 1975-1979.12Saul, D191/3, para. 22.

Policy and morality neither trump the law nor substitute for it when the law’s application does not achieve a desired result. This is echoed by Justice Geoffrey Robertson who fittingly observed:

[I]t is precisely when the acts are abhorrent and deeply shocking that the principle of legality must be most stringently applied, to ensure that a defendant is not convicted out of disgust rather than evidence, or of a non-existent crime. Nullem [sic] crimen may not be a household phrase, but it serves as some protection against the lynch mob.13Prosecutor v. Norman, SCSL-2004-14-AR72(E), Decision on Preliminary Motion Based on Lack of Jurisdiction (Child Recruitment), 31 May 2004, Dissenting Opinion of Justice Robertson, para. 12. See id., paras. 9 (“abhorrence alone does not make that conduct a crime in international law”), 14 (the principle of legality is fundamental and “is the reason we are ruled by law and not by police”).

Some of the amici similarly argued that interpreting “civilian population” as excluding a state’s own soldiers would lead to an absurd result.14Saul, D191/3, paras. 3(d), 21; Tsagourias, D191/9, para. 22. For example, Tsagourias argued that excluding a state’s own soldiers from the term “civilian population” would lead to an absurd situation where widespread and systematic attacks on soldiers in peacetime would not constitute crimes against humanity but similar attacks on others would amount to crimes against humanity – but cited no authority whatsoever to support this claim.15Tsagourias, D191/9, paras. 20-22. Hardly convincing.

It is not as if any crimes resulting from such unlawful attacks would go unpunished. It is not a zero sum game. There are domestic laws that cover such crimes, and depending on the factual predicate resulting in the crimes, they could fall within the ambit of war crimes. The absurdity to me seems to be the irresistible impulse of some academics to stretch and contort the law in the proverbial Procrustean bed for the sake of expanding or reading into clearly defined crimes. The absurdity is this impulse to contort the law so that no matter what the law is, it can be flexibly interpreted to be more inclusive. The absurdity to me is this impulse to turn every crime into a crime against humanity because somehow it may have greater caché.

For instance, let’s look at Saul’s attempt to argue that excluding military personnel from the term “civilian” in peacetime would lead to “absurd results” and should be avoided. To back this up he gives the example of police forces commonly being armed and allowed to use force during peacetime, but who are nonetheless still regarded as civilians.16Saul, D191/3, para. 21. He relies on the KAING Guek Eav alias “Duch” case (“Duch”), to support his argument, but does so inaccurately.17Id. Although Duch noted a general presumption that armed law enforcement agencies are “civilians” under international humanitarian law, it also adopted the ordinary meaning of “civilian,” holding that members of armed forces are not civilians simply because they are not armed or not engaged in combat.18Case of KAING Guek Eav, 001/18-07-2007-ECCC/TC, Judgement, 26 July 2010, E188, para. 304. See also Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, Case 002/01 Judgement, 7 August 2014, E313, paras. 185-86. Furthermore, Duch made no mention of how police forces should be regarded outside of conflict, or how this might relate to how soldiers are treated outside of conflict, which is precisely what Saul is relying on this case to prove.

It is not absurd to make a distinction between a state’s soldiers and a state’s civilians. It is not absurd to consider that states prefer to regulate their conduct toward their own soldiers internally rather than through international criminal law. Soldiers are distinct from civilians for a variety of reasons, but especially because of their functions in civil society. This distinction is eloquently described by the European Court of Human Rights (“ECtHR”) Judges Philip O’Donoghue and Helga Pederson:

There is a clear distinction in our opinion between the obligation of citizens at large to obey the law and the special position of military personnel to obey the disciplinary code which is a vital and integral constituent of the force of which they are members.… [T]here is an elementary factor which should be looked at in the structure and character of a military establishment in any country which is party to the Convention. This factor is the disciplinary code, the maintenance of which is vital to the very continued existence of an armed force, and quite different from any other body or association which purports to exercise a measure of discipline over its members.19Engel and Others v. The Netherlands, no. 5100/71, 5101/71, 5102/71, 5354/72, 5370/72, 8 June 1976, Series A no. 22, Joint Separate Opinion of Judges O’Donoghue and Pedersen. See also id., Judgment, para. 54.

Williams and Grey argued that recognizing soldiers targeted by their own state as “civilians” is consistent with customary international law as it was in 1975. Although Williams and Grey accepted that there is an absence of decisive authorities on this issue, they dispose of this minor inconvenience by arguing that this just means the issue has not yet arisen for determination.20Drs. Williams and Grey, D191/11, paras. 21-22. Nonsense. An absence of decisive authorities reflects an absence of state practice and opinio juris, not simply that the issue “has not arisen for determination.”

The pertinent question is the customary status of crimes against humanity between 1975 and 1979. All relevant international instruments from that period – including, contrary to TRIAL’s inaccurate assertion,21TRIAL, D191/5, para. 22. the 1954 Draft Code of Offences22Article 2(11) of the 1954 Draft Code of Offences, defining crimes against humanity, includes the words (emphasis added): “committed against any civilian population….” – require a civilian population. There is no inkling of state practice or opinio juris from 1975-79 which demonstrates that crimes against humanity encompassed attacks directed against a population of soldiers.

2.  Are soldiers distinct from civilians in peacetime?

Answer: yes.

While soldiers retain the duties of citizens when they join the armed forces, this does not mean they are subject to the same criminal laws as civilians or that there is no distinction between soldiers and civilians in peacetime. The inapplicability of international humanitarian law in peacetime does not mean that in peacetime no other body of law distinguishes soldiers from civilians or that no distinction exists between the ordinary meanings of “soldier” and “civilian”.

A number of the amici and the ICP argued that there is no legal distinction between soldiers and civilians in peacetime because there are no combatants, the exigencies underlying the principle of distinction in international humanitarian law do not apply, and soldiers are subject to the same protections and laws as civilians.23Saul, 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 & Grey, D191/11, paras. 19-20; 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, paras. 5, 6 (hereinafter “ICP Response, D191/1”).

Joanna Nicholson claims that while there might be a societal distinction between soldiers and civilians there is no legal distinction between them in peacetime. She cites no authority for this assertion, but acknowledged that there are some “legal implications” of being a member of the military, noting as an example the ECtHR holding that the European Convention of Human Rights (“ECHR”) may be applied differently to members of the armed forces and civilians in peacetime.24Nicholson, D191/8, p. 1, para. 3. The argument that the ECHR’s different application to soldiers and civilians is merely a “legal implication” and not a “legal distinction” is unconvincing. It sounds less like a reasoned legal argument and more like an exercise in creative semantics.

Catherine Drummond, Philippa Webb and Dapo Akande engage in an interesting deductive analysis of the definition of “civilian” in an attempt to prove that members of the armed forces can form a “civilian population” for the purposes of crimes against humanity during times of peace.25Drummond et al., D191/4, paras. 18-19. They begin by noting the ECCC’s definition of “civilians” as “all persons who are not members of the armed forces or otherwise recognised as combatants” and that the ECCC in Case 001 and Case 002/01 confirmed that this definition is consistent with Article 50 of Additional Protocol I (“AP I”).26Drummond et al., D191/4, para. 18, citing Case of KAING Guek Eav, 001/18-07-2007-ECCC/TC, Judgement, 26 July 2010, E188, para. 304, and Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, Case 002/01 Judgement, 7 August 2014, E313, para. 185. See also Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 8 June 1977 (“AP I”). Article 50 outlines a negative definition of “civilian” with reference to armed forces and combatants belonging to “a party to the conflict.” Drummond et al. argue that this contextual connection to “a party to the conflict” is important for the negative definition of “civilian” and that, although the ECCC did not mention “a party to the conflict” in its definition of “civilian,” it did intend its definition to be consistent with Article 50; thus, the qualifier applies to the ECCC definition. They argue that the categories of “civilian” and “combatant” only exist in opposition to each other primarily for targeting purposes. They conclude that, by definition, in peacetime there is no conflict, thus there are no “parties to the conflict.” By applying the negative definition of “civilian,” all persons in peacetime, including soldiers, qualify as “civilians” for the purpose of crimes against humanity.

As convincing as this argument may appear at first, it actually only proves that the international humanitarian law principle of distinction does not apply in peacetime, not that there is no other legal distinction between soldiers and civilians which might apply instead. That the ECCC confirmed that its definition of “civilian” is “consistent” with Article 50 is not a reason to read additional qualifiers into the definition.  Such a conclusion goes beyond the ECCC’s findings. The argument transplants international humanitarian rules into non-conflict situations without acknowledging that such rules only apply in armed conflict.  While it is undoubtedly a creative attempt, it is unconvincing and unsound.

Saul took a different approach than Drummond et al., but reached the same conclusion that soldiers targeted by their own state can form a “civilian population” for the purposes of crimes against humanity. Saul argued that the reference to “civilian population,” defined by international humanitarian law, was necessary when crimes against humanity were first devised due to the requirement of a nexus with armed conflict.27Saul, D191/3, para. 7. Saul noted that the ECCC Trial Chamber and Judge Bohlander have determined that the nexus requirement was no longer part of the customary international law definition of crimes against humanity by 1975.28Id., para. 8, citing Case of KAING Guek Eav, 001/18-07-2007-ECCC/TC, Judgment, 28 July 2010, paras. 209-92. See also Case of MEAS Muth, 003/07-09-2009-ECCC/OCIJ, Decision on MEAS Muth’s Request for Clarification Concerning Crimes against Humanity and the Nexus with Armed Conflict, 5 April 2016, D87/2/1.7/1. I find Judge Bohlander’s determination wanting – a matter which I will discuss in detail in a future blog post series.  Also, the ECCC Pre-Trial Chamber disagrees with the Trial Chamber and considers that the nexus requirement had not definitively been severed by 1975,29Case of NUON Chea et al., 002-D427/3/15, ECCC Decision on Appeals by NUON Chea and IENG Thirith Against the Closing Order, 15 February 2011, para. 144. but this is not the time to get into this topic – a subject worth a post or two of its own.

According to Saul, once one accepts that the nexus requirement is severed, the term “civilian” then takes on a different meaning if attacks forming the basis of crimes against humanity occur outside of armed conflict. By extension, since international humanitarian law does not apply in peacetime its definition of “civilian” cannot be applied in peacetime.30Saul, D191/3, paras. 8-14. Saul concedes that the ECCC and the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) have continued to use the international humanitarian law definition of “civilian” even without the nexus requirement, but he contends that this is because the specific facts at these tribunals involved an armed conflict and thus necessitated reference to international humanitarian law. Saul does not present any authority for his claim that the international criminal tribunals apply the definition of “civilian” based purely on the direct connection to an armed conflict.31Id., paras. 13-14.

This is where Saul’s argument gets creative. If we accept for a moment the argument that the definition of “civilian population” derived from international humanitarian law does not apply outside of armed conflict, then of course we would need to determine the applicable definition of “civilian population” in peacetime. Saul suggests that the ordinary meaning of “civilian population” is ambiguous and has multiple potential meanings.32Id., para. 17. According to Saul, “civilian” might be narrowly defined to mean all non-military persons33Id., citing Oxford English Dictionary, online subscription. or as excluding members of the military, police, or firefighting forces.34Id., citing Merriam Webster Dictionary, online subscription.

Saul then puts forward a somewhat more peculiar suggestion: that there is a wider interpretation of “civilian population” in common usage to mean “the inhabitants of a country or area.”35Id., para. 18. On this basis Saul argues that in peacetime soldiers are inseparable from the general population, so for the purposes of crimes against humanity must be considered part of the “civilian population.” Oliver Windridge (currently a Legal Officer with the ICTY/Mechanism for International Criminal Tribunals (“MICT”) Appeals Chamber) similarly argued, without any authority, that a “civilian population” can include soldiers, as it does with other professions such as teachers or doctors.36Windridge, D191/10, para. 16.

Saul also noted the discussions during the drafting of the Rome Statute that the term “civilian population” might be vague, unnecessary, and confusing.37Saul, D191/3, para. 19.  What Saul conveniently does not mention is that the “civilian population” requirement was retained in the Rome Statute because the delegations agreed that the issue was complex and still evolving and that it was better “to avoid significantly changing the existing definition of these crimes.”38Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vol. I, UN Doc. A/51/22, 1996, para. 86. See also Darryl Robinson, The Elements of Crimes Against Humanity in The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence 78 (Roy S. Lee ed., 2001 Transnational Publishers).

The reasoning of these arguments is nothing short of absurd. Saul and Windridge seek to apply the definition of a “population,” i.e. “the whole number of people or inhabitants in a country or region,”39Merriam-Webster Dictionary. to crimes against humanity, not a “civilian” population. The ordinary meaning of “civilian population” is unambiguous in peacetime or war; it plainly means a non-military population. If the man on the street can give you this “ordinary meaning,” is it really necessary to keep searching for ambiguity? No, unless the ordinary meaning does not get you to where you would like to go – which is beyond where the law was from 1975-1979.

3.  Does international humanitarian law support the notion that a state’s own soldiers can be a “civilian population”?

Answer: no.

This question stems from some amici’s erroneous assertions that protected status under international humanitarian law equates to protection under crimes against humanity rules. This is a misconception of the law. Crimes against humanity provisions require an attack to be directed against a “civilian population,” not a “non-combatant population” or a “protected population.” The relevant question is not whether international humanitarian law permits targeting soldiers who do not directly participate in hostilities, but whether international criminal law permits treating soldiers as a civilian population. That soldiers may under certain circumstances be considered non-combatants, and be entitled to certain protections under international humanitarian law, is not equivalent to soldiers being civilians.

For example, TRIAL asserted that the Hague Regulations recognize the possibility that soldiers might not be considered combatants.40TRIAL, D191/5, para. 12. This may indeed be true, but it is ultimately irrelevant to the question posed by Judge Bohlander. TRIAL further argued that a state’s soldiers cannot be targeted when they do not directly participate in hostilities against their own state because in international humanitarian law civilians cannot be targeted when they do not directly participate in hostilities.41Id., paras. 14-15. TRIAL also argued that since civilians are protected persons when interned, the nationality requirement regarding such persons can be interpreted to mean that they may merely hold a different allegiance toward the detaining state, and therefore soldiers may enjoy the protection of civilians for the purposes of crimes against humanity.42Id., paras. 14, 16. These contentions are a misconception and misapplication of international humanitarian law principles.  The logic is fallacious and the arguments irrelevant. International humanitarian law rules have no bearing on the interpretation of crimes against humanity; neither do they address the basis on which soldiers may be protected persons.

Tsagourias argued that the principle of distinction in international humanitarian law only applies between civilians and enemy combatants; a soldier who is not part of the enemy population is a civilian.43Tsagourias, D191/9, para. 23. This is incorrect. The principle of distinction applies so that at all times during an armed conflict every person is either a legitimate military target or a protected person.44Nils Melzer, The Principle of Distinction Between Civilians and Combatants, in The Oxford Handbook Of International Law In Armed Conflict 296-97 (Andrew Clapham & Paola Gaeta, eds., Oxford University Press 2014). These categories are mutually exclusive and do not make a further distinction between “enemy combatants” and civilians, contrary to Tsagourias’s assertions.

Baltimore argued that Common Article 3 of the Geneva Conventions requires humane treatment for persons who have laid down their arms, concluding that even if a state’s own soldiers are not civilians, they should be protected as persons hors de combat once they have laid down their arms.45Baltimore, D191/12, para. 10. TRIAL similarly argued that unless soldiers act hostilely toward their own state, they should be considered persons hors de combat vis-à-vis their state.46TRIAL, D191/5, paras. 18-20. These arguments are inaccurate.

There are various protections available to soldiers under the Geneva Conventions. A soldier who lays down his arms, is wounded, detained, or becomes sick during a conflict is still protected under Articles 3, 12, and 13(1) of the First Geneva Convention. This protection might exist in relation to the soldier’s own state as well as an opposing state.47Commentary to the First Geneva Convention (2016), Section D, para. 1. The Third Geneva Convention protects prisoners of war (combatants who have fallen into enemy hands).48Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Art. 4. The Fourth Geneva Convention protects persons (not soldiers) who are not protected by the other Geneva Conventions and who are in the hands of a Party or Occupying Power of which they are not nationals.49Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Art. 4.

The recent ICTY Prlić et al. case dealt precisely with the issue of a state’s treatment of members of its own forces. This case illustrated that while it is recognized that a state’s own soldiers might require protection under international humanitarian law, they still are not considered to constitute part of a civilian population for the purposes of crimes against humanity. The ICTY Trial Chamber considered the application of Grave Breaches of the Geneva Conventions and crimes against humanity arising from the treatment of Muslim members of the Croatian Defence Council (“HVO”) (the official military body of the Croatian Community of Herceg-Bosna, consisting of both Croatian and Muslim soldiers) by non-Muslim members of the HVO. The Trial Chamber determined that the Muslim HVO members could be considered “protected persons” for the purposes of the Fourth Geneva Convention (as persons who have “fallen into the hands of a party to the conflict of which they were not nationals”) using allegiance rather than nationality to determine the Muslim HVO soldiers’ status.50Prosecutor v. Prlić et al., IT-04-74-T, Judgement, 29 May 2013, Vol. 3, Ch. 5, paras. 607-11. In extending protection to the soldiers under the Grave Breaches regime, the Trial Chamber found that the soldiers’ status as soldiers did not change and still required the targeted population to be civilian for the purposes of crimes against humanity.51Id., paras. 647-48.

The Prlić case is consistent with statutes and jurisprudence maintaining that the distinction between soldier and civilian remains relevant, even when evaluating attacks against a state’s own soldiers rather than an enemy population. Contrary to the arguments made by Tsagourias and Baltimore, it is clear that while a state’s soldiers may be protected under the Geneva Conventions, this protection does not indicate they may constitute a civilian population under crimes against humanity.

4.  Does the term “civilian” serve a functional purpose and is there support for the “legitimate target” interpretation of crimes against humanity?

Answer: no.

Similar to the previous question, this question also relates to the application and interpretation of the principle of distinction in relation to targeting.  Some amici argued that the term “civilian” serves a functional purpose in international humanitarian law, which enables a legal distinction between lawful and unlawful targets in armed conflict. The amici argued that those who are not involved in a conflict or who are targeted for reasons unconnected to a conflict are illegitimate targets and by extension must be considered part of the “civilian population” for the purpose of crimes against humanity.52Amicus Curiae Brief of Professors Robinson, De Guzman, Jalloh and Cryer on Crimes Against Humanity for Cases 003 and 004, 17 May 2016, D191/6 (“Robinson et al., D191/6”), paras. 4-21; Rosenzweig, D191/7, p. 5, para. 3, p. 4, para. 1; Williams & Grey, D191/11, paras. 6, 16-17; Baltimore, D191/12, paras. 4- 5. This argument is flawed as it is based on a misleading assumption that international humanitarian law principles can be wholly imported into crimes against humanity. Crimes against humanity must be directed against a “civilian population,” not merely against illegitimate targets under international humanitarian law. There is no support for using the legitimate target or functional approach found in the jurisprudence, as the cases relied on by the amici dealt with distinct, unrelated issues and never analyzed the meaning of “civilian population.”

Darryl Robinson, Margaret deGuzman, Charles Jalloh, and Robert Cryer relied on other academics’ interpretations of a number of post-World War II cases from the German Supreme Court in the British Occupied Zone53R Case, StS 19/48, Decisions in Criminal Cases of the Supreme Court for the British Zone, Vol. 1, 27 July 1948, 46-48; H Case, StS 309/49, Decisions in Criminal Cases of the Supreme Court for the British Zone, Vol. 2, 18 October 1949, 233; P and Others, StS 111/48, Decisions in Criminal Cases of the Supreme Court for the British Zone, Vol. 1, 7 December 1948, 228. in support of the legitimate target approach.54Robinson et al., D191/6, paras. 9-14. These cases will be analyzed in more detail below, but, for now, it is worth noting that these cases only decided that soldiers could be victims of crimes against humanity: they did not analyze or interpret the meaning of the “civilian population” requirement.

Robinson et al. referred to Kai Ambos and Steffen Wirth’s, and Antonio Cassese’s respective reviews of the post-World War II cases, agreeing with the conclusion that these cases support the legitimate target approach.55Robinson et al., D191/6, paras. 9-10, citing Kai Ambos & Steffen Wirth, The Current Law of Crimes Against Humanity: An Analysis of UNTAET Regulation 15/2000, 13 Crim. L. Forum 1, 85 (2002); Cassese’s International Criminal Law 101-03 (Cassese et al. eds., 3rd ed., Oxford University Press 2013). Robinson et al. appear to have considered a few national cases as authority establishing the legitimate target approach as the correct interpretation in customary international law – however they ignore other national cases which take a much narrower interpretation, such as the Pilz case56In re Pilz, Special Court of Cassation, 5 July 1950. and the Neddermeier case.57Neddermeier, 10 March 1949, Court of Appeal in Control commission courts: court of appeal reports criminal cases 1949. What makes these few German cases such reliable and ironclad authority, while Pilz and Neddermeier are ignored?  Nothing.

Robinson et al. continued by arguing that the ad hoc tribunals initially followed the legitimate target approach but have since “abruptly departed” from it without justification.58Robinson et al., D191/6, paras. 18-21. This is patently incorrect. Robinson et al. relied on a number of International Criminal Tribunal for Rwanda (“ICTR”) and ICTY Trial Chamber decisions in determining that the legitimate target approach was followed. For example, they argued that the Akayesu Trial Chamber defined a “civilian population” expansively59Prosecutor v. Akayesu, ICTR-96-4-T, Judgment, 1 June 2001, para. 582, defining “civilian population” as “people who are not taking any active part in the hostilities, including members of the armed forces who laid down their arms and those persons placed hors de combat by sickness, wounds, detention or any other cause.” – however, they neglect to mention that the Trial Chamber was not faced with the question of whether a state’s own soldiers could form a civilian population, nor was the definition of this term considered on appeal.

Similarly, contrary to what Robinson et al. argued, the Tadić Trial Chamber did not determine that soldiers could form a “civilian population” – rather that soldiers could be victims of crimes against humanity.60Prosecutor v. Tadić, IT-94-1-T, Judgement, 7 May 1997, para. 643. In Jelisić, the ICTY Trial Chamber determined that persons hors de combat could be a civilian population.61Prosecutor v. Jelisić, IT-95-10-T, Judgement, 14 December 1999, para. 54. However, the Appeals Chamber later reassessed this and held that persons hors de combat are not part of the civilian population.62Prosecutor v. Blaškić, IT-95-14-A, Judgement, 29 July 2004, paras. 103-16; Prosecutor v. Galić, IT-98-29-A, Judgement, 30 November 2006, para. 144; Prosecutor v. Martić, IT-95-11-A, Judgement, 8 October 2008, paras. 291-314; Prosecutor v. Mrkšić, IT-95-13/1-A, Judgement, 5 May 2009, paras. 20-33. Contrary to Robinson et al.’s claim, the Appeals Chamber did not simply “copy” AP I’s definition of “civilian”;63Robinson et al., D191/6, para. 18. it was keenly aware of its obligation to ascertain applicable customary international law.64Prosecutor v. Blaškić, IT-95-14-A, Judgement, 29 July 2004, para. 110. The Appeals Chamber considered the ICRC Commentary, which implicitly recognized a distinction between civilian and soldier: “A civilian who is incorporated in an armed organization … becomes a member of the military….”65Id., para. 114.

Robinson et al. then misinterpreted the Blaškić Appeals Chamber’s finding that “If [a victim] is indeed a member of an armed organisation, the fact that he is not armed or in combat at the time of the commission of crimes, does not accord him civilian status.”66Robinson et al., D191/6, para. 20, citing Prosecutor v. Blaškić, IT-95-14-A, Judgement, 29 July 2004, para. 114. Robinson et al. appear to consider this finding to mean that members of armed organisations are not afforded any protections, even if they are persons hors de combat, prisoners of war, or attacked by their own state. This is simply incorrect. As I have already stated, this is not a zero sum game. That members of armed forces are not granted civilian status does not preclude them from being protected by international humanitarian law. The Blaškić Appeals Chamber appreciated this distinction, while Robinson et al. do not.

Williams and Grey make a similarly unconvincing argument in favor of the functional approach to defining “civilian.” They argued that the Prlić Trial Chamber’s extension of international humanitarian law protections to soldiers detained by their own forces is consistent with the functional approach.67Williams & Grey, D191/11, paras. 10-15. However, this is misleading and without basis. As discussed above, the Prlić Trial Chamber may have extended international humanitarian law protections to such detainees; nevertheless, it still held that crimes against humanity required an attack directed against a civilian population – it did not afford the detainees protections as a “civilian population.” The Prlić case does not support the argument that soldiers targeted for their perceived allegiance to another party should be considered a civilian population.

5.  Does international human rights law alter the meaning of “civilian population” in relation to crimes against humanity?

Answer: no.

Some amici argued that international human rights law supports an interpretation of “civilian population” which includes a state’s own soldiers.68TRIAL, D191/5, paras. 1-10; Williams & Grey, D191/11, para. 20; Baltimore, D191/12, paras. 12-16.  This argument is incorrect. International human rights law is a distinct legal regime from international criminal law. These separate bodies of law cannot be conflated.69Prosecutor v. Kunarac, IT-96-23-T & IT-96-23/1-T, Judgement, 22 February 2001, paras. 468-71. For example, in the Kunarac case, the ICTY Trial Chamber explained that when determining the customary definition of torture, it cannot simply adopt the definition under international human rights law, because of structural differences in the different bodies of law. The Trial Chamber needed to consider, inter alia, that the role and position of the state as an actor are different in international human rights law and international humanitarian law.70Id., para. 470(ii).

TRIAL’s argument that in armed conflict international human rights law is a lex specialis prevailing over international humanitarian law is an absurd application of the lex specialis principle.71TRIAL, D191/5, para. 7. The International Court of Justice has already made it perfectly clear that in times of war the applicable lex specialis is international humanitarian law.72Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, para. 25. Even setting this glaring flaw aside, it is not appropriate to interpret crimes against humanity through the lens of international human rights law.

International human rights law generally imposes obligations on states; international criminal law imposes liability on individuals. International human rights law conventions (e.g., the International Covenant on Civil and Political Rights, the Universal Declaration of Human Rights, and the Convention Against Torture (“CAT”)) do not criminalize crimes against humanity – and they cannot be used to expand the scope of penal provisions or customary international criminal law. Take, for instance, Articles 4 and 5 of the CAT. These Articles require states to take measures to establish jurisdiction over and punish torture as a violation of criminal law, but do not provide for individual criminal liability. In any event, not every international human rights law violation is an international criminal law violation. As Salif Nimaga puts it:

[A]lmost every international crime is a violation of fundamental human rights, but not every violation of human rights entails direct criminal responsibility. The reason for this is that human rights create obligations primarily upon States, and it is up to them to decide how to ensure respect of these obligations by their own agents.73Salif Nimaga, The International Criminal Law Regime and International Human Rights Law: Theoretical and Empirical Explorations, in Ethics and Human Rights in a Globalized World 104-05 (2009).

To retroactively expand a criminal provision to cover a violation of international human rights law would conflict with the principle of nullum crimen sine lege.74See ICCPR, Art. 15. All persons, including soldiers, might be subject to the same international human rights law protections, but this does not mean that attacks against soldiers can be crimes against humanity in international criminal law.

6.  Are “persecution-type” crimes against humanity exempt from the “civilian population” requirement?

Answer: no.

This idea originally arose because of the structure of Article 6(c) in the IMT Charter, which separated persecution from other crimes against humanity by a semi-colon and the disjunctive “or.” The provision reads:

Crimes Against Humanity: namely, 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.

Some amici interpreted persecution as being distinct from other crimes against humanity in that it does not require an attack against a civilian population.75Drummond et al., D191/4, paras. 1(a)(ii), 11-17; QUB, D191/13, paras. 3-9.  As a prominent scholar, Egon Schwelb, writing in 1946, explained, in the Berlin Protocol the semi-colon was replaced with a comma to align the English and French versions of the IMT Charter with the Russian version. This replacement extended the nexus requirement to all crimes against humanity, rather than only “persecution-type” crimes, and made dividing crimes against humanity into murder-type crimes and persecution-type crimes unsustainable.76Egon Schwelb, Crimes against Humanity, 23 Brit. Y.B. Int’l L. 178, 190, 194-95 (1946). See also International Law Commission, Memorandum of the UN Secretary-General, The Charter and Judgement of the Nürnberg Tribunal: History and Analysis, UN Doc. A/CN.4/5, 1949, p. 65-66.

There is no evidence that the drafters of Article 6(c) intended to give persecution different chapeau requirements than other crimes against humanity. In fact, to interpret the provision as such would lead to an absurd result. Were crimes against humanity to apply only to a civilian population where murder, extermination, enslavement, deportation, or other inhumane acts occurred, but to any population where persecutions occurred, fewer people would end up being protected from more serious crimes (e.g., extermination) than from a less serious crime (persecution).77Egon Schwelb, Crimes against Humanity, 23 Brit. Y.B. Int’l L. 178, 190 (1946). Drummond et al. note the UN War Crimes Commission’s indication that persecution requires a civilian population. Drummond et al., D191/4, para. 13.

Drummond et al. relied on the 1948 Genocide Convention and the 1973 Apartheid Convention, which concern particular forms of persecution but do not require a targeted “civilian population.”78Drummond et al., D191/4, paras. 12-13.  However, the Genocide Convention and Apartheid Convention are specialized conventions; there is no evidence that they were intended to alter the customary definition of crimes against humanity. Drummond et al. also relied on the ICTY Trial Chamber’s statement in Kupreškić that, “under customary international law in the case of persecution, the victims of crimes against humanity need not necessarily be civilians; they may also include military personnel.”79Id., para. 13, citing Prosecutor v. Kupreškić et al., IT-95-16-T, Trial Judgement, 14 January 2000, para. 568 (emphasis added). While this statement appears to make a distinction between persecution and other crimes against humanity, it actually only concludes that the victims of persecution need not necessarily be civilians – something that is entirely undisputed with regard to all crimes against humanity. Furthermore, contrary to Drummond et al.’s contention,80Drummond et al., D191/4, para. 14. although the ECCC’s Supreme Court Chamber has noted the idea of separation of persecution and other crimes against humanity, it did not conclude that the applicable customary definition of persecution has different chapeau elements than other crimes against humanity.81Case of KAING Guek Eav, 001/18-07-2007-ECCC/SC, Appeal Judgement, 3 February 2012, F28 (“Duch Appeal Judgement”), para. 233.

Queen’s University Belfast also argued this point, citing international conventions, ICTY jurisprudence, and domestic jurisprudence to support their arguments.82QUB, D191/13, paras. 3-8. As I have already outlined, the jurisprudence clearly indicates only that soldiers can be victims of persecution, not that they can form a “civilian population” in relation to persecution.83QUB, D191/13, para. 7, also cites a resolution from the 1947 Conference for the Unification of Penal Law. This resolution, drafted by academics and not adopted by States, proposed a definition of murder. It has no bearing on whether persecution requires an attack against a civilian population.

Article 5 of the Establishment Law requires an attack against a civilian population as a chapeau element for all crimes against humanity.84As acknowledged by QUB, D191/13, para. 9. Drummond et al. argued that since “there appears to be no justification for or conscious intention to exclude” persecution against Cambodia’s own soldiers from the ECCC’s jurisdiction, Article 5 may be “an attempt to retroactively, and impermissibly, alter the [customary] definition of crimes against humanity.”85Drummond et al., D191/4, paras. 15-16.  This is a stretch. The Cambodian government agreed to define crimes against humanity as defined in the Rome Statute,86Agreement 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, Art. 9. which incorporates customary international law.  Even assuming there ever were a distinction between persecution and other crimes against humanity, the Establishment Law does not recognize one, nor does current customary international law. Where a binding law is subsequently changed to a more favorable law by which the court also is bound, the more lenient law will apply.87ICCPR, Art. 15. See also Prosecutor v. Deronjić, IT-02-61-A, Judgement, 20 July 2005, para. 97.

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?

Answer: no.

Most of the amici and ICP relied on a few post-World War II decisions to support their assertions that the decisions demonstrate that soldiers can form part of the civilian population for the purposes of crimes against humanity.88Saul, D191/3, para. 4; Drummond et al., D191/4, paras. 4, 8; TRIAL, D191/5, para. 20; Tsagourias, D191/9, para. 24; Windridge, D191/10, para. 9; QUB, D191/13, para. 11; ICP Response, D191/1, para. 8. Specifically, they cite three German cases (R Case, P and Others Case, and H Case) from the Supreme Court of Germany in the British Occupied Zone (“Supreme Court”). These cases did not consider the interpretation of the expression “civilian population.” They examined individual instances of soldiers being victims of crimes against humanity, which is a distinct issue and is not determinative of whether soldiers can form a civilian population.

Aside from that, since these decisions are not widely published or readily available in languages other than German, the amici cite English summaries in academic books and articles. As I pointed in the previous post, one should not rely on summaries, instead of the actual cases which would include the case’s facts, issue, holding, reasoning, and dicta.

A closer look at the original decisions shows that the Supreme Court did not interpret the expression “civilian population” or whether soldiers form part of it. These decisions focus on mens rea and the Nazi system, pursuant to a desire to criminalize the brutality of the regime.

R Case

In R Case, the issue before the Supreme Court was the mens rea of crimes against humanity in case of denunciations, and whether a criminal offence under the Article II(1)(c) of Control Council Law No. 10 can be described as a misdemeanor.

The R Case originated from an incident in March 1944 when the accused (a non-commissioned officer and a member of National Socialised Motorised Corps (“NSKK”)) reprimanded a member of the Nazi stormtroops (referred to as “W.” in the case) for insulting the National Socialist German Workers’ Party (“NSDAP”) leadership.  The accused wrote a report to the District Leader of the NSDAP,89R Case, 27 July 1948, Decisions in Criminal Cases of the Supreme Court for the British Zone, Vol. 1 (W de Gruyter, Berlin, 1949), 45, at 46. which resulted in several trials and a death sentence. The death penalty was not ultimately executed due to the Russian occupation. Based on this incident, the court of first instance sentenced the accused to a fine of 6,000 Reichsmarks for a misdemeanor against humanity or alternatively to 60 days in prison.

The accused appealed this decision, claiming insufficient findings regarding the mens rea of the crime. The Supreme Court agreed that the “appeal of this decision rightfully claims insufficient findings regarding the internal (subjective) side of the crime.”90Id., at 46-47.  The Supreme Court stated that in cases of denunciations, it is necessary to establish that “the offensive behaviour of the perpetrator occurred consciously and willingly, … and furthermore, that the perpetrator, through his actions, wanted to deliver the victim to forces that do not observe the rule of law or that at least he accepted that.”91Id. The Supreme Court stated that although the court of first instance established that the accused wanted “‘to politically harm party member W.’ … this only meets the mens rea requirements if it is supposed to mean that the accused delivered the witness [W.] to the uncontrollable power mechanism of the party and the state, and at least with the conditional intent that he would be treated arbitrarily.”92Id.   The Supreme Court further observed that if the accused’s aim was to “compromise his position within the NSDAP or its organisations, then the requirements of mens rea in keeping with the Article II(1)(c) of Control Council Law No. 10 are not met.”93Id.

The Supreme Court found the appealed judgment “not tenable,” further stating that “[t]he criminal division will have to establish more details about the subjective elements of the crime and further investigate whether and to what extent the actions of the accused could violate German criminal law.”94Id.   The Supreme Court also upheld the prosecutor’s appeal that the offence under Article II(1)(c) of Control Council Law No. 10 should have been characterized as a felony crime, and not as a misdemeanor.95Id., at 45, 47-48.

In coming to its decision, the Supreme Court did not consider the victim’s status as a non-commissioned officer or the definition of the expression “civilian population.” This decision does not support the assertion that the Supreme Court accepted that a state’s own military may comprise part of a “civilian population.”

H Case

In the H Case, the Supreme Court discussed the issue whether Article II(1)(c) of Control Council Law No. 10 applies ex post facto, and whether the sentencing activities of the accused (a chief judge) could constitute crimes against humanity.96H Case, StS 309/49, Decisions in Criminal Cases of the Supreme Court for the British Zone, Vol. 2, 18 October 1949, 233.

The accused (“H”) participated in two military sentencing procedures as the chief judge. In the first case, a German submarine commander (referred to as “K” in the case) criticized Hitler before his crew and removed a photo of the former. In the second case, a German navy commander (referred to as “G” in the case) bought two French identification cards to presumably flee with his wife at a later stage. In both cases, H imposed a death sentence.

The Supreme Court agreed with the Jury Court (court of the lower instance) that the prohibition of ex post facto laws was not violated. The Supreme Court reasoned that retroactive punishment is unjust when the action, at the time of its commission, falls foul not only of a positive rule of criminal law, but also of natural law. The Supreme Court agreed with the Jury Court that crimes against humanity are crimes prohibited by natural law. The Supreme Court thus concluded “that as long as we are dealing with the crimes committed by Germans against Germans, we should oppose the view of the Control Council Law no. 10 referring to moral and international law with a so-called positivist view.”97Id.

The Supreme Court further discussed the mens rea of crimes against humanity, stating that “[t]he elements of a crime against humanity are present if the perpetrator violated a person’s human right in a manner that affects the foundations of human co-existence through his conscious and intentional offensive behaviour connected to the national socialist rule of violence and despotism.”98Id., at 233. Although the Supreme Court agreed with the Jury Court that the accused’s actions represent criminal harm in the sense of Control Council Law No. 10, it stressed the fact that the accused is not ipso facto guilty of a crime against humanity. The Supreme Court reasoned that “the elements of that crime are only present if the vote of the accused in favor of the death sentence was, to his knowledge, connected to the national socialist rule of violence and despotism.”99Id., at 241.

Considering the lack of a detailed examination of the accused’s motivations to determine whether or not they fulfill the mens rea requirements and other legally incorrect considerations, the Supreme Court repealed the judgement and sent the case back to the Jury Court for further investigation.100Id., at, 242-46.

This decision is of no assistance because the Supreme Court did not consider the status of the two officers or whether the acts at issue occurred as part of an attack directed against a civilian population. It does not support the assertion that soldiers can form a civilian population for the purposes of crimes against humanity.

P and Others

In P and Others, the Supreme Court dealt with the issue of whether the accused (criminal judges) committed a crime against humanity through their judgment-rendering actions.

On the night from 5 to 6 May 1945 (on the eve of German capitulation), four members of the German marines attempted to escape their unit and cross the nearby Danish-German border to reach their homeland.101P 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, at 218. They were captured, brought back to their unit, and tried for desertion. Three of them were sentenced to death by a German court-martial and duly executed.102Id.

Five accused (four judges and a representative of the prosecution) were subsequently charged with crimes against humanity for their participation in the court-martial proceedings, and two other officials were charged for crimes against humanity for influencing the supreme judge to uphold and execute the death sentences.103Id.    The court of first instance (the Jury Court) convicted the presiding judge and one of the officials who were influencing the supreme judge, while acquitting the rest of the accused. The two accused who were convicted appealed to the Supreme Court on the ground of violations of material criminal law.

In response to the arguments of the two accused, the Supreme Court explicitly stated that their acts “clearly [do] not represent ‘an act against civilian population’ in a sense of Art. 1 of the Allied Control Council Act 10 II.”104Id., at 228. The Court nevertheless found the accused guilty of the crimes against humanity because the excessive death penalty for the three soldiers accused of desertion was a manifestation of a system of despotism and violence, endorsed by the Nazi’s regime:

An accused who was jointly responsible for the killing of a marine is thus guilty of a crime against humanity if he knew or considered possible and approved of the death penalty… although it was not justified in the slightest … and this happened for the sake of deterrence as a principle and in keeping with the diabolic system of the time.105Id., at 224.

The Supreme Court stated that “[a]n isolated one-time excessive act would not be a crime against humanity according to the legal definition of the term.” Nevertheless, it further stated that “the criminal offence in question can belong to the system and the massive number of crimes committed during the Nazi rule.”106Id., at 228. In finding that “even acts of aggression within the German Armed Forces can be crimes against humanity,” the Supreme Court considered the “[i]n humane content of a terrorist punishment or disciplinary action within the German Armed Forces.”107Id., at 217.

The decision in P and Others Case was a result of the desire to criminalize the actions of the Nazi regime, and particularly the control of the justice system, with the Supreme Court holding that “[t]he Nazi control of the justice system could have triggered crimes against humanity committed in accordance with the rules governing judicial process.”108Id.  The Supreme Court did not discuss the soldiers’ status and whether they form part of the civilian population. This case is of no assistance in determining the customary definition of a “civilian population” under crimes against humanity.

The three decisions outlined above illustrate only that soldiers may be victims of crimes against humanity. As few amici recognized, while soldiers may be victims of crimes against humanity, this is a distinct question and is not determinative of whether soldiers can be a civilian population.109Drummond et al., D191/4, paras. 3-4; Nicholson, D191/8, p. 2-6.  Moreover, this position was rejected by the Dutch Special Court of Cassation in Pilz110In re Pilz, Special Court of Cassation, 5 July 1950 (“Pilz”). and the British Court of Appeals sitting in Germany in Neddermeier.111Neddermeier, 10 March 1949, Court of Appeal in Control commission courts: court of appeal reports criminal cases 1949 (“Neddermeier”).

Pilz and Neddermeier

In Pilz and Neddermeier, the British and Dutch appellate courts explicitly considered the meaning of “civilian population,” rejecting the suggestion that soldiers could be included within the definition.

In Pilz, the accused was a doctor who refused to let his subordinates provide medical assistance to a wounded soldier, who died as a result.112Pilz, at 1209-10. The wounded person happened to be a Dutch national but a member of the German armed forces. On appeal, one of the issues (aside from jurisdiction) before the Dutch Special Court of Cassation was whether the charges brought against the accused constituted a war crime or a crime against humanity.

The Special Court of Cassation reasoned that, since “the victim was not part of the civilian population in occupied territory” and the acts committed were not part of a system of persecution based on political beliefs, race or religion,” the acts of the accused did not constitute crimes against humanity.113Id., at 1210-11.

In Neddermeier, the British Court of Appeals sitting in Germany adopted the same approach when dealing with the issue whether prisoners of war can be victims of crimes against humanity.  In this case, the court of first instance convicted the appellant of crimes against humanity for mistreatment of Polish workers, who entered Germany as prisoners of war but subsequently renounced their status by signing agreements under duress.114Neddermeier, at 58.  On appeal, the prosecutor argued, inter alia, that the court of first instance properly convicted the accused of crimes against humanity because although the Polish workers were originally prisoners of war, the agreements renouncing their status “were not void, and as they were being treated by the [accused] and others as civilians.”115Id., at 60. The British Court of Appeals found that “the persons who were alleged to have been ill-treated were all prisoners-of-war, and not civilians.” The British Court of Appeals decided to substitute the accused’s conviction for crimes against humanity with war crimes.116Id.

The issue whether members of the armed forces can be victims of crimes against humanity was also considered in 1985 in Barbie.  In Barbie, the French Cour de cassation (the Court of Cassation, the highest instance court) decided whether members of the French resistance could be included in a group of victims of crimes against humanity allegedly committed by the accused.117Cour de Cassation, Chambre Criminelle [French Supreme Court, Criminal Chamber], 20 December 1985, No. de Pourvoi 85-95166).   The Chambre d’accusation (the investigating chamber) ordered that the indictment be drafted for crimes against humanity, but only for crimes committed against the civilian Jewish population.

On appeal, the Cour de cassation considered that:

[T]he judgment under appeal states that the “heinous” crimes committed systematically or collectively against persons who were members or could have been members of the Resistance were presented, by those in whose name they were perpetrated, as justified politically by the national socialist ideology. Neither the driving force which motivated the victims, nor their possible membership of the Resistance, excludes the possibility that the accused acted with the element of intent necessary for the commission of crimes against humanity. In pronouncing as it did and excluding from the category of crimes against humanity all the acts imputed to the accused committed against members or possible members of the Resistance, the Chambre d’accusation misconstrued the meaning and scope of the provisions listed in these grounds of appeal.118Id.

As with the jurisprudence emanating from the Supreme Court of Germany in the British Occupied Zone, discussed above, this judgment did not explicitly consider the definition of expression “civilian population.” Instead, the Cour de cassation was dealing with the members of an enemy population and focused on the intent of the accused, rather than the nature of the victims’ status.

The post-World War II jurisprudence is insufficient to constitute a clear practice extending the expression “civilian population” to include members of armed forces. They generally lack detailed legal reasoning and also come from an extremely limited number of jurisdictions, far too few to demonstrate the widespread and consistent state practice and opinio juris necessary for customary international law.


In the next and final post I will unpack the rationale behind crimes against humanity, discuss its origins, address the definition of the expression “civilian population” in the jurisprudence of the international and internationalized tribunals, and will argue that there is no protection gap in case of a state’s attack against members of its own armed forces.

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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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