1. Introduction
Crimes against humanity occur when certain offences are committed in a specific context, namely a widespread or systematic attack against a ‘civilian population’. For example, murder in and of itself does not amount to a crime against humanity. Only when murder is committed as part of a widespread or systematic attack against a ‘civilian population’ does international criminal law elevate it to a crime against humanity. One question arising from this legal construction is whether both the underlying offence and the context must target ‘civilians’ for a crime against humanity to occur. Assume, for instance, that prisoners of war are murdered as part of an attack against an otherwise predominantly civilian population. Do those murders amount to crimes against humanity? On the one hand, logic would have it that they do not, because, strictly speaking they are not part of the attack against the ‘civilian’ population. On the other hand, prisoners of war and other combatants placed hors de combat are likely to be just as vulnerable as civilians during such an attack. It may therefore appear unjust to deny persons hors de combat the protection that the prohibition against crimes against humanity offers simply because they do not qualify formally as ‘civilians’.
The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) recently addressed this issue and the related question of how to define the term ‘civilian’ in its judgment in the case Prosecutor v. Milan Martić.Footnote 1 Its holding settles these matters as far as the ICTY is concerned. However, both issues are likely to reappear before the International Criminal Court (ICC), which has yet to decide on them. This paper describes the ICTY Appeals Chamber's holding in Martić and offers some reflections on its applicability before the ICC. Section 2 provides a background to the holding by briefly analysing the origins of the term ‘crimes against humanity’. In section 3 the holding itself and the reasoning behind it are set out in some detail. Section 4 examines the compatibility between Martić and the relevant provisions of the ICC along with related international jurisprudence, and highlights four issues arising from the Martić holding which the ICC may find useful to consider. Finally, a concluding remark is proffered in section 5.
2. The origins of ‘crimes against humanity’
The earliest mention of ‘crimes against humanity’ as a label for a category of international crimes is found in a joint declaration by France, the United Kingdom, and Russia of 28 May 1915, wherein the three governments denounced the Ottoman government's massacre of Armenians in Turkey as constituting ‘crimes against civilization and humanity’, for which personal responsibility would attach.Footnote 2 However, although recommended by a war crimes commission established after the First World War, the 1919 Treaty of Versailles did not include such a crime because one representative objected that the juridical content of ‘the laws of humanity’ was too vague.Footnote 3
At the end of the Second World War, the Holocaust and the other atrocities committed by the Nazi regime again raised the issue of crimes committed by a state against its own citizens. It was apparent that the classic definition of war crimes did not cover these acts, but at the same time it was clear that they could not go unpunished.Footnote 4 Indeed, most national criminal systems criminalized similar acts.Footnote 5 The 1945 Nuremburg CharterFootnote 6 filled this gap in the laws of war by including ‘crimes against humanity’ in Article 6(c), defined as
murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
By requiring that the enumerated acts be committed against ‘any’ civilian population, the drafters of the Nuremberg Charter thus solved the problem of crimes committed by a state against its own population. Crimes against humanity under the Nuremberg Charter also required a nexus to an armed conflict, as evidenced by the words ‘in execution of or in connection with any crime within the jurisdiction of the Tribunal’ – that is, crimes against peace and war crimes. Arguably, this link was inserted in order to connect the novelty, as it were, of criminalizing the enumerated acts when committed against a state's own population to its original normative source, namely the laws of war.Footnote 7
With the exception of the Tokyo Charter,Footnote 8 the nexus requirement gradually disappeared in subsequent definitions of crimes against humanity,Footnote 9 whereas the element ‘any civilian population’ remained. For instance, the definition of crimes against humanity in Article 2(c) of Law No. 10 issued in 1945 by the Control Council established by the Allied Powers to govern occupied Germany, modelled on Article 6(c) of the Nuremberg Charter, required that the underlying acts be committed against ‘any civilian population’, but not that they be linked to an armed conflict.Footnote 10 Relying partly on this definition, a 1950 report of the International Law Commission (ILC) considered that the nexus to an armed conflict was no longer required.Footnote 11 Subsequent formulations of crimes against humanity by the ILC,Footnote 12 some domestic legislation,Footnote 13 international treaties,Footnote 14 and post-Second World War case lawFootnote 15 did not include a nexus to an armed conflict. At present, there is a rule of customary international law that crimes against humanity do not require a connection to armed conflict.Footnote 16
In this sense the UN Security Council defined crimes against humanity more narrowly than necessary under customary international law,Footnote 17 by including such a requirement when adopting the ICTY Statute in 1993.Footnote 18 Article 5, entitled ‘Crimes against Humanity’, reads:
The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population:
(a) murder;
(b) extermination;
(c) enslavement;
(d) deportation;
(e) imprisonment;
(f) torture;
(g) rape;
(h) persecutions on political, racial and religious grounds;
(i) other inhumane acts.
Consonant with the Nuremberg Charter, this definition includes the chapeau element ‘any civilian population’. Although not explicit in Article 5 of the ICTY Statute, the ICTY has interpreted the expression ‘directed against any civilian population’ as requiring ‘that the acts be undertaken on a widespread or systematic basis’.Footnote 19
The definitions of crimes against humanity in the statutes of other international or internationalized tribunals similarly include the element ‘any civilian population’ in their chapeau.Footnote 20 In particular, Article 7 of the Rome Statute of the International Criminal Court (ICC)Footnote 21 provides, in the relevant parts:
1. For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: . . .
2. For the purpose of paragraph 1:
(a) ‘Attack against any civilian population’ means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population . . .
In sum, the contemporary notion of crimes against humanity has disengaged its legal provenance – the laws of war – to the extent that it no longer requires a nexus to an armed conflict. At the same time, the notion retains a firm connection with its original purpose of protecting civilians, by requiring an attack against a ‘civilian population’. For present purposes this conclusion raises two questions. First, whether the notion of crimes against humanity has moved so far away from the laws of war that this body of law is ineffective in interpreting its elements, in particular the term ‘civilian’. Second, whether the notion is so attached to its original purpose of protecting civilians that it excludes from the group of potential victims persons hors de combat. The next section examines how these matters were addressed in the Martić case.
3. The Martić holding
The Appeals Chamber in Martić partly upheld and partly overturned the relevant impugned findings of the trial chamber. The Appeals Chamber essentially concluded that although persons hors de combat cannot be considered ‘civilians’, they can nonetheless be victims of crimes against humanity. Sub-sections 3.1 and 3.2 set out the trial chamber's and the Appeals Chamber's reasoning in turn.
3.1. The trial chamber's reasoning
The accused, Milan Martić, was charged with murder, extermination, deportation, imprisonment, torture, persecution, and other inhumane acts (including forcible transfer) as crimes against humanity under Article 5 of the ICTY Statute.Footnote 22 Addressing the law on Article 5, the trial chamber first noted that ‘the status of the victim as civilian’ is one of the elements which characterize a crime against humanity.Footnote 23 As to the definition of the term ‘civilian’, it noted the ICTY Appeals Chamber's holding in Blaškić that the provisions of Article 50 of Additional Protocol IFootnote 24 ‘may largely be viewed as reflecting customary law’.Footnote 25 Article 50 of Additional Protocol I defines ‘civilian’ as follows:
A civilian is any person who does not belong to one of the categories of persons referred to in Article 4 A (1), (2), (3) and (6) of the Third Convention[Footnote 26] and in Article 43 of this Protocol. In case of doubt whether a person is a civilian, that person shall be considered to be a civilian.Footnote 27
The trial chamber found that this definition also applies ‘when determining . . . the status of victims under Article 5 of the [ICTY] Statute’.Footnote 28
The trial chamber continued by analysing what it considered to be an inconsistency in the ICTY Appeals Chamber's jurisprudence on whether persons hors de combat can be considered ‘civilian’. It noted that, while the Appeals Chamber in Blaškić and in Galić excluded the possibility that members of the armed forces and organized resistance groups, even when placed hors de combat, can claim civilian status, in Kordić and Čerkez the Appeals Chamber appeared to have considered that the term ‘civilian’ does cover persons hors de combat.Footnote 29 The trial chamber endorsed the approach taken in Blaškić and Galić – which narrowly defined the term ‘civilian’ – as being in keeping with the definition of that term in Article 50 of Additional Protocol I.Footnote 30 It also found that the application of Article 5 of the Statute to persons hors de combat would impermissibly blur the principle of distinction between civilians and combatants.Footnote 31
The trial chamber concluded that, under Article 5 of the ICTY Statute, the prosecution must prove beyond reasonable doubt that the victim of the alleged offence was a civilian in accordance with Article 50 of Additional Protocol I, and that persons hors de combat do not constitute civilians for this purpose.Footnote 32
3.2. The Appeals Chamber's reasoning
The Prosecution advanced a twofold appeal against the trial chamber's finding that persons hors de combat cannot constitute victims of crimes against humanity. First, it posited that the expression ‘civilian population’ (or ‘civilians’) under Article 5 of the ICTY Statute should not be limited to its meaning under international humanitarian law (that is, individuals who are not members of the armed forces),Footnote 33 but should also include other categories of persons, in particular persons hors de combat. Second, the prosecution argued that, in any event, the requirement that the crimes be ‘directed against any civilian population’Footnote 34 does not necessarily entail that each single victim of the crimes must be civilian.Footnote 35 The Appeals Chamber addressed these two legal questions separately, in the order they were presented.
3.2.1. Definition of ‘civilian’
At the outset, the Appeals Chamber recalled its holding in Blaškić that armed forces and other combatants (militias, volunteer corps, and members of organized resistance groups) cannot claim civilian status.Footnote 36 This holding had arisen in the context of determining the scope of the term ‘civilian population’ in Article 5 of the ICTY Statute. The Appeals Chamber reasoned in Blaškić that
Read together, Article 50 of Additional Protocol I [which largely reflects customary lawFootnote 37] and Article 4A of the Third Geneva Convention establish that members of the armed forces, and members of militias or volunteer corps forming part of such armed forces, cannot claim civilian status. Neither can members of organized resistance groups, provided that they are commanded by a person responsible for his subordinates, that they have a fixed distinctive sign recognizable at a distance, that they carry arms openly, and that they conduct their operations in accordance with the laws and customs of war.Footnote 38
The Appeals Chamber concluded in Blaškić that the victim's status under these articles, and not his or her specific situation at the moment the crime was committed, controls whether the victim is ‘civilian’.Footnote 39 The prosecution in Martić argued that the Kordić and Čerkez Appeal Judgement departed from Blaškić by finding that persons hors de combat ‘were without a doubt . . . “civilians” in the sense of Article 5 of the Statute’.Footnote 40 The Martić Appeals Chamber disagreed, on the basis that Kordić and Čerkez neither provided any reasoning for an expansive interpretation of the term ‘civilian’ nor addressed the prior Blaškić holding on the matter.Footnote 41 In fact, Kordić and Čerkez followed Blaškić on the relevant law.Footnote 42 In addition, the Appeals Chamber in Galić also excluded persons hors de combat from the definition of ‘civilian’.Footnote 43
Having analysed the ICTY's jurisprudence on the issue, the Appeals Chamber turned to the prosecution's assertion that the definition of ‘civilian’ enshrined in Article 50 of Additional Protocol I, which is part of international humanitarian law, is not applicable to the distinctive context of crimes against humanity.Footnote 44 At the outset, the Appeals Chamber considered that the term ‘civilian’ must be interpreted according to the natural and ordinary meaning in the context in which it occurs, taking into account its object and purpose.Footnote 45 It observed that the definition of ‘civilian’ found in Article 50 of Additional Protocol I accords with the ordinary meaning of the term ‘civilian’ in English, and civil in French, as persons who are not members of the armed forces.Footnote 46
That said, the Appeals Chamber acknowledged that certain terms have been defined differently in international humanitarian law and in the context of crimes against humanity. However, it considered that ‘the fundamental character of the notion of civilian in international humanitarian law and international criminal law militates against giving it differing meanings’ under Article 3 (violations of the laws or customs of war) and Article 5 (crimes against humanity) of the ICTY Statute.Footnote 47 Such definitional consistency, it continued, ‘also accords with the historical development of crimes against humanity, intended as they were to fill the gap left by the provisions pertaining to crimes against peace and war crimes in the [Nuremberg] Charter’.Footnote 48
Understandably, the Appeals Chamber did not refer to the requirement in Article 5 of the ICTY Statute that there be a nexus to an armed conflict for these statements,Footnote 49 since that requirement renders the definition of crimes against humanity in Article 5 narrower than necessary under customary international law.Footnote 50 Instead, for its position that ‘civilian’ should not be given different meanings under Articles 3 and 5 of the ICTY Statute, the Appeals Chamber relied on ICTY case law.Footnote 51 In Kunarac et al. and Blaškić, the Appeals Chamber had held that where crimes against humanity are committed in the course of an armed conflict ‘the laws of war provide a benchmark against which the Chamber may assess the nature of the attack and the legality of the acts committed in its midst’.Footnote 52 In a similar vein, the Krnojelac and Galić trial chambers had stated that the laws of war ‘play an important part in the assessment of the legality of the acts committed in the course of an armed conflict and whether a civilian population may be said to have been targeted as such’.Footnote 53 The Appeals Chamber further noted the ICRC Commentary's call for ‘a rigorous and clear definition of the notion of civilian’.Footnote 54
For its statement that crimes against humanity were intended to ‘fill the gap’ in the laws of war, the Appeals Chamber relied on texts by distinguished academics, a case decided under Control Council Law No. 10, and the 1948 Report by the United Nations War Crimes Commission. This last stated,
The notion of crimes against humanity, as it evolved in the Commission, was based upon the opinion that many offences committed by the enemy could not technically be regarded as war crimes stricto sensu on account of one of several elements, which were of a different nature. . . . It was felt that, but for the fact that the victims were technically enemy nationals, such persecutions were otherwise in every respect similar to war crimes.Footnote 55
The Appeals Chamber also addressed the argument that the definition of ‘civilian’ in Article 50 of Additional Protocol I, which applies in international armed conflicts, is not directly transferable to non-international conflicts. It noted that according to the ICRC Commentary, Article 13 of Additional Protocol IIFootnote 56 – which applies in non-international conflicts – corresponds with Article 50 of Additional Protocol I. Therefore, it held, ‘civilians’ in the context of non-international armed conflicts can be defined as those persons who do not belong to the armed forces, militias, or volunteer corps forming part of such armed forces, organized resistance groups, or a levée en masse.Footnote 57 The Appeals Chamber thus appears to have considered that the definition of ‘civilian’ is essentially similar in international and non-international conflicts.Footnote 58
In conclusion, the Appeals Chamber held that
the definition of civilian contained in Article 50 of Additional Protocol I reflects the definition of civilian for the purpose of applying Article 5 of the Statute and . . . the Trial Chamber did not err in finding that the term civilian in that context did not include persons hors de combat. Footnote 59
This holding is confined to the definition of the term ‘civilian’ under Article 5 of the ICTY Statute. The only place where that term appears in Article 5 is in the chapeau requirement that the underlying acts be part of a widespread or systematic attack against any ‘civilian’ population; Article 5 is silent on the required status, if any, of the victims of those acts. As such, merely defining ‘civilian’ does not necessarily answer the question of whether the individual victims of crimes against humanity must be civilians, or whether persons hors de combat can also be considered victims of crimes against humanity.Footnote 60 The Appeals Chamber's findings on this question are presented in the next section.
3.2.2. Individual victims
Martić's defence argued that the reference to ‘civilians’ in Article 5 of the ICTY Statute should be considered as meaning that both the chapeau requirement of a widespread or systematic attack and the individual crimes listed in that provision must target civilians.Footnote 61 The Appeals Chamber commenced its analysis by recalling that its previous jurisprudence on the chapeau requirement ‘attack directed against a civilian population’ did not imply that the acts within such an attack must be committed against civilians only.Footnote 62 It was therefore misleading for the trial chamber to rely on jurisprudence relating to the category of persons who may be the object of the attack under the chapeau requirement in order to exclude persons hors de combat from the category of persons who may be victims of the individual acts within that attack.Footnote 63 The Appeals Chamber further considered that the drafters of the ICTY Statute did not intend to exclude persons hors de combat from the purview of victims of Article 5 of the ICTY Statute. The preparatory works of the ICTY expressly referred to Common Article 3 of the Geneva Conventions (which covers persons hors de combat), and to the fact that Article 4 of Additional Protocol II addresses ‘fundamental guarantees’ and protects ‘all persons who do not take a direct part or who have ceased to take part in hostilities’.Footnote 64 The Appeals Chamber concluded that there is nothing in the text of Article 5 of the ICTY Statute or its previous jurisprudence that requires individual victims of crimes against humanity to be civilians.Footnote 65
The Appeals Chamber went on to note that this approach had been followed, albeit implicitly, in ICTY case law and that of the International Criminal Tribunal for Rwanda (ICTR). It considered that previous cases had not distinguished between victims of crimes against humanity as being ‘civilians’ or ‘persons hors de combat’ under international humanitarian law. Instead, victims of crimes against humanity had been generally discussed simply as ‘persons’, ‘people’, or ‘individuals’.Footnote 66
Importantly, the Appeals Chamber found this approach to reflect customary international law.Footnote 67 It noted that Article 6(c) of the Nuremberg Charter and Article 2(c) of Control Council Law No. 10 required that crimes against humanity be committed ‘against any civilian population’, but that subsequent practice established that the victims of crimes against humanity were not restricted to ‘civilians’.Footnote 68 In particular, the Appeals Chamber referred to the High Command case before the United States Military Tribunal,Footnote 69 cases of the Supreme Court in the British Occupied zone,Footnote 70 and the recent French cases of Barbie and Touvier.Footnote 71 As for the last two, the Appeals Chamber cited parts of the opinion of the Cour de cassation (chambre criminelle) which showed that the victims’ membership of the Resistance, and thereby their potential status as combatants, did not negate their status as victims of crimes against humanity.Footnote 72 Moreover, whereas post-Second World War case law generally considered war crimes and crimes against humanity together, when it did distinguish between the two, it was not on the basis of the victims’ status but on the element of scale or organization involved in crimes against humanity.Footnote 73 In this regard, the Appeals Chamber provided the following quote from the Justice case:
It is not the isolated crime by a private German individual which is condemned, nor is it the isolated crime perpetrated by the German Reich through its officers against a private individual. It is significant that the enactment employs the words ‘against any civilian population’ instead of ‘against any civilian individual.’ The provision is directed against offenses and inhumane acts and persecutions on political, racial, or religious grounds systematically organized and conducted by or with the approval of government.Footnote 74
The Appeals Chamber also quoted from the commentaries to this case:
[I]t is clear that war crimes may also constitute crimes against humanity; the same offences may amount to both types of crime. If war crimes are shown to have been committed in a widespread, systematic manner, on political, racial or religious grounds, they may amount also to crimes against humanity.Footnote 75
The Appeals Chamber concluded that a person hors de combat may be the victim of crimes against humanity, all other conditions being met.Footnote 76 It was further satisfied that such crimes against persons hors de combat attracted individual criminal responsibility under customary international law at the relevant time and that, therefore, the principle of nullum crimen sine lege is not violated.Footnote 77
3.3. Conclusion
The Appeals Chamber's holding in Martić is twofold. First, it stipulates that the term ‘civilian’ is to be defined under the customary international law formulation of that term contained in Article 50 of Additional Protocol I for purposes of applying crimes against humanity under the ICTY Statute. As a result, persons hors de combat cannot be considered ‘civilians’. This part of the holding is based on ICTY jurisprudence, the ordinary meaning of the word ‘civilian’, its fundamental character in international humanitarian and international criminal law, the undesirability of giving it different meanings in the context of war crimes and crimes against humanity, and the historical purpose of crimes against humanity to fill a gap in the laws of war.
Second, the Martić holding states that customary international law does not require the individual victims of crimes against humanity under the ICTY Statute to be civilians as defined; persons hors de combat can also be victims of such crimes. Here, the holding relies on the jurisprudence and the preparatory works of the ICTY, the fact that neither the ICTY nor post-Second World War jurisprudence has distinguished between victims of crimes against humanity on the basis of whether or not they were ‘civilians’, and other case law indicating that even potential combatants can be victims of crimes against humanity.
The following section examines these conclusions in the context of the ICC.
4. Martić and the ICC
Crimes against humanity are defined in Article 7 of the Rome Statute, which has been set out above.Footnote 78 It mirrors the requirement under Article 5 of the ICTY StatuteFootnote 79 that the underlying acts must be part of a widespread or systematic attack directed against ‘any civilian population’. Also, both formulations are silent on the required status, if any, of the victims.Footnote 80 Thus the issues which arose from Article 5 of the ICTY Statute in Martić may also arise from Article 7 of the Rome Statute. Given that crimes against humanity are charged in proceedings related to all situations (and in all but two of the casesFootnote 81) presently before the ICC,Footnote 82 these issues are likely to come before the Court. In keeping with previous practice, the ICC will most probably look to the jurisprudence of the ICTY when they do.Footnote 83
The subsections below offer some observations related to the ICC's prospective considerations in this regard. Subsection 4.1 examines, as a preliminary issue, whether the Martić holding is compatible with the Rome Statute and related legal authorities, with a view to determining whether it is open to the ICC to adopt the holding. Subsection 4.2 analyses other relevant international criminal jurisprudence which the ICC will want to consider alongside Martić. Finally, subsection 4.3 examines four issues which may be of particular interest for the ICC's consideration of the Martić holding, and subsection 4.4 provides a conclusion.
4.1. Compatibility between Martić and the Rome Statute
Neither the Rome Statute nor the Elements of Crimes, adopted to assist the ICC in interpreting the Statute,Footnote 84 provide a definition of the term ‘civilian’.Footnote 85 These legal instruments also do not expressly state whether the victims of the enumerated crimes against humanity must be civilians. Article 7(2)(a) of the Rome Statute could possibly be read to imply such a requirement,Footnote 86 but it is more likely that it merely specifies what kind of acts can constitute an ‘attack’.Footnote 87 Moreover, and in contrast to the listed elements of war crimes, the Elements of Crimes refer to the victims simply as ‘persons’.Footnote 88 Pursuant to the basic rule of interpretation that the lawmakers intended to give some effect to each of the words used in a legal provision,Footnote 89 there is thus an argument to be made that, in line with Martić, Article 7 of the Rome Statute does not require the victims to be civilians.
However, this position is not unequivocally borne out by the preparatory works of the Rome Statute. During the negotiations on the Rome Statute, the term ‘any civilian population’ was deliberately left undefined, as most delegations ‘quickly agreed that this was too complex a subject and evolving area in the law, better left to resolution in case law’.Footnote 90 To be sure, some delegations preferred to simply refer to ‘any population’ rather than ‘any civilian population’.Footnote 91 Others, relying on the Barbie case and the Tadić Trial Judgement, pointed out that ‘the term has been judicially interpreted in a flexible manner, so that combatants do not necessarily lose all protection’.Footnote 92 Nonetheless, the term ‘any civilian population’ was in the end maintained as a compromise, as it was considered to be consistent with customary international law.Footnote 93 Accordingly, the only uniform intention of the drafters of the Rome Statute regarding the definition of the term ‘civilian’ and the status of the victims that can be established with any certainty is that these issues were to be left for determination by the Court's case law.
To date, two pre-trial chambers have arguably had occasion to address these issues, namely Pre-Trial Chamber I in its Katanga and Chui Decision on Confirmation of Charges and Pre-Trial Chamber II in its Bemba Decision on Confirmation of Charges.Footnote 94 In the Katanga and Chui decision, rendered shortly before the Martić Appeal Judgement, Pre-Trial Chamber I noted the lack of a statutory definition of the term ‘any civilian population’Footnote 95 and observed a statement in the Tadić Trial Judgement that ‘the definition of a “civilian” population and the implications of the term “population”, require further examination’.Footnote 96 For its part, the Tadić trial chamber did not consider that victims of crimes against humanity must be civilians.Footnote 97 The Katanga and Chui Pre-Trial Chamber chose to remain silent on the matter.
The Pre-Trial Chamber then turned to the evidence presented on the chapeau requirement ‘attack directed against any civilian population’. The relevant charges concerned an alleged attack by the Forces de résistance patriotique en Ituri and the Front des nationalistes et intégrationnistes on the village of Bogoro, in Ituri district in the Democratic Republic of the Congo. The Pre-Trial Chamber found substantial grounds to believeFootnote 98inter alia that there was a military camp of the Union des patriotes Congolais in Bogoro, but that ‘the attack was not only directed against the military target but also against the predominantly Hema civilian population of the village’.Footnote 99 This finding evokes the possibility that some of the victims of the underlying offences during this attack may not have been civilians.
However, the Pre-Trial Chamber did not clarify whether this was the case and what the legal ramifications might be if not all the victims were civilians. Indeed, both its legal and factual findings on the underlying acts (murder, sexual slavery, rape, and other inhumane acts) are ambiguous as far as the status of the victims is concerned. As to the murder charges, it held that the actus reus is met where the perpetrator causes the death of one or more ‘persons’.Footnote 100 This is consistent with the Elements of Crimes, which, as noted, also merely refers to ‘persons’ as victims of crimes against humanity, and in line with the Pre-Trial Chamber's own reference to Tadić. Yet, subsequently, the Pre-Trial Chamber found that the objective element of murder as a crime against humanity is fulfilled where the accused caused ‘the death of civilians as part of the widespread or systematic attack’.Footnote 101 On the facts before it, the Pre-Trial Chamber found substantial grounds to believe that murder as a crime against humanity was committed against ‘civilians’.Footnote 102 With respect to the underlying offences of sexual slaveryFootnote 103 and rape,Footnote 104 the Pre-Trial Chamber made neither legal nor factual findings as to whether the victims had to be, or were, civilians. Regarding other inhumane acts as crimes against humanity, it made no legal findings as to the required status of the victims,Footnote 105 but, on the facts, spoke of the victims as ‘civilians’.Footnote 106
Pre-Trial Chamber II's decision in Bemba was rendered after the Martić Appeal Judgement. Similarly to the Katanga and Chui decision, it noted that the Rome Statute does not define the terms ‘civilian’ or ‘civilian population’.Footnote 107 However, relying inter alia on Article 50 of Additional Protocol I, the Pre-Trial Chamber held that ‘according to the well-established principle of international humanitarian law, ‘[t]he civilian population . . . comprises all persons who are civilians as opposed to members of armed forces and other legitimate combatants’.Footnote 108 Although the Pre-Trial Chamber did not explicitly endorse the Martić holding on the matter, it thus reached the same conclusion, namely that the term ‘civilian’ for purposes of crimes against humanity is defined in accordance with Article 50 of Additional Protocol I.
The Bemba decision did not, however, clarify the issue of the required status of the victims. Like the Katanga and Chui decision, the Pre-Trial Chamber's factual findings on the chapeau appear to have recognized that the alleged victims might not have been exclusively civilians,Footnote 109 and its factual findings on the particular underlying acts charged are equivocal on the matter.Footnote 110 This allows for the possibility that some of the victims might have been combatants or hors de combat. However, once again, the Court's findings on the legal elements of both the chapeau Footnote 111 and the underlying offencesFootnote 112 failed to pronounce on whether these potential victims were excluded from the ambit of crimes against humanity, and whether it is required that victims of crimes against humanity be civilians.
It is not immediately clear from their decisions why the Pre-Trial Chambers chose not to pronounce on the required status of the victims. In particular, given Pre-Trial Chamber I's own observation that the term ‘civilian’ needed clarification and the fact that the prosecution does not consistently allege that the victims of crimes against humanity are civilians,Footnote 113 a decision on this issue would have been expected not least to enable the accused to prepare their defence.
In sum, it can be concluded that the two issues addressed by the ICTY Appeals Chamber's holding in Martić are not regulated by the Rome Statute or the Elements of Crimes. One pre-trial decision has arrived at the same conclusion as Martić regarding the definition of the term ‘civilian’, but otherwise the ICC's jurisprudence has not addressed the issues. At the same time, the Martić holding does not appear to be incompatible with these legal authorities. It would thus be open to the ICC to adopt the Martić holding. In considering whether it should do so, it is useful to examine briefly other international jurisprudence related to the matters decided in Martić.
4.2. Related jurisprudence
Some of the earliest decisions at the ICTY are consonant with the Martić holding, inasmuch as they held that persons hors de combat may be victims of crimes against humanity.Footnote 114 Later trial judgments found that the definition of ‘civilian’ for purposes of crimes against humanity ought to be broadly defined to include all persons who do not take active part in hostilities.Footnote 115 Yet many of these decisions appear to have confused the chapeau requirement of a ‘civilian population’ with whether the individual victims of the underlying acts must be civilians. In addition, the pertinent passages are interspersed with other findings as to whether the presence of non-civilians within a population divests it of its civilian character. These decisions therefore do not provide clear guidance on the two distinct issues addressed by the Martić holding. As for the definition of ‘civilian’, it should be noted that the ICTY Appeals Chamber has consistently held that it is controlled by Article 50 of Additional Protocol I, and therefore excludes persons hors de combat.Footnote 116
The Mrkšić et al. Trial Judgement analysed the definition of ‘civilian’ and the required status of the individual victims separately. Here, the vast majority of the victims had been involved in hostilities and therefore could not possibly be considered to be civilians.Footnote 117 Although rendered before the Martić Appeal Judgement, the Mrkšić et al. trial chamber reached the same conclusion on the definition of the term ‘civilian’, holding that Article 50 of Additional Protocol I controls the term and that, therefore, it excludes persons hors de combat.Footnote 118 However, like the Martić trial chamber, the Mrkšić et al. trial chamber (seemingly contrary to its own previous decisionFootnote 119) found that the victims of crimes against humanity must be civilians.Footnote 120 The Appeals Chamber rendered its judgment in Mrkšić after the Martić Appeal Judgement. Largely based on the latter, the Appeals Chamber affirmed its definition of the term ‘civilian’Footnote 121 and overturned the trial chamber's finding that the victims must be civilians.Footnote 122 However, the Appeals Chamber acknowledged that the status of the victims as civilians may nonetheless be relevant in assessing whether the chapeau element that a civilian population be the primary target of an attack is met on the facts.Footnote 123
In the recent judgment in Milutinović et al., the trial chamber noted that Article 5 of the ICTY Statute is narrower than customary international law, as it requires a nexus to an armed conflict. Therefore the trial chamber did not consider itself ‘limited by the definition of civilian status in international humanitarian law’, but deemed ‘that body of law [to] provide useful guidelines for defining the victims of a crime against humanity’.Footnote 124 It went on to find that, in order to give full effect to the object and purpose of the prohibition against crimes against humanity, ‘it is necessary to adopt a broad definition of the key terms that extends as much protection as possible’.Footnote 125 The trial chamber concluded by defining ‘civilian’ in accordance with Article 50 of Additional Protocol I, and referred to the Martić holding that persons hors de combat may be victims of crimes against humanity.Footnote 126 It should be noted that the Milutinović et al. trial chamber was bound by the Martić holding.Footnote 127
The ICTR trial chamber in the Bagosora et al. case cited both parts of the Martić holding in its recent judgment. Although it did not explicitly say whether it adopted the holding in its entirety, nothing indicates that the trial chamber disapproved of it.Footnote 128 However, drawing on Common Article 3 to the Geneva Conventions, a number of previous ICTR trial judgments have found that ‘civilian’ for purposes of crimes against humanity should be defined as including persons hors de combat.Footnote 129 Such an approach is, as noted, contrary to the Martić holding. Neither this issue nor that of the victims’ status appears to have come to the point before the ICTR Appeals Chamber, perhaps because the particular factual context related to the jurisdiction of the ICTR does not entail much doubt as to whether a civilian population was targeted and whether the individual victims were in fact civilians.Footnote 130 It remains to be seen whether the ICTR Appeals Chamber will have occasion to pronounce on these matters in Bagosora et al.
At the Special Court for Sierra Leone (SCSL), the trial chamber in the case Brima et al. endorsed ICTY jurisprudence that persons hors de combat cannot be considered ‘civilians’ for purposes of determining a ‘civilian population’. This distinction is particularly important, the trial chamber held, in a case were the prosecution alleges that crimes against humanity were committed in a situation of armed conflict.Footnote 131 Similarly, in the case Fofana and Kondewa the trial chamber relied on the Blaškić Appeal Judgement to hold that under customary international law the term ‘civilian population’ includes all of those persons who are not members of the armed forces or otherwise recognized as combatants.Footnote 132 The Brima et al. and Fofana and Kondewa trial chambers did not pronounce on the required status, if any, of the individual victims. The aforementioned holdings by the Brima et al. trial chamber do not appear to have been at issue on appeal,Footnote 133 but the Appeals Chamber in Fofana and Kondewa considered ‘that Article 50 of Additional Protocol I is a useful tool in determining a “civilian population”’ for purposes of crimes against humanity.Footnote 134 Subsequently, the trial chamber in the Sesay et al. case has held that persons hors de combat do not fall within the customary international law definition of ‘civilian population’.Footnote 135 Concurring with Martić, it further held that ‘where a person hors de combat is the victim of an act which objectively forms part of a broader attack directed against a civilian population, this may amount to a crime against humanity’.Footnote 136 The Sesay et al. Trial Judgement is currently under appeal.
The Extraordinary Chambers in the Courts of Cambodia has not yet ruled on either of the two issues. They could arguably have been addressed by the pre-trial chamber, sitting as an appellate chamber, in the case against Kaing Guek Eav (alias ‘Duch’). The chamber compared the underlying acts of crimes against humanity and grave breaches of the Geneva Conventions with the corresponding offences under domestic law. However, in so doing the pre-trial chamber expressly left aside ‘the contextual elements of crimes against humanity and grave breaches of the Geneva Conventions’.Footnote 137 As a result, although its decision does not appear to have required the victims of crimes against humanity to be civilians,Footnote 138 it is of limited use for present purposes.
In the light of the foregoing, the following conclusions can be drawn as to international criminal jurisprudence insofar as it has pronounced on the two issues addressed by the Martić holding. Regarding the term ‘civilian’, the jurisprudence of both the ICTY and the SCSL defines it according to Article 50 of Additional Protocol I, thereby excluding persons hors de combat from the ambit of the term. As previously noted, this approach has also been followed by one pre-trial chamber of the ICC. The ICTR, on the other hand, largely appears to define ‘civilian’ to include persons hors de combat, although the matter has never been authoritatively addressed by the ICTR Appeals Chamber, and a recent trial judgment indicates a move away from previous jurisprudence toward the Martić holding. As for the required status of the victims of crimes against humanity, the ICTY jurisprudence prior to Martić, with the exception of the Mrkšić et al. Trial Judgement, indicates that the victims need not be civilians, and can also include persons hors de combat. The one judgment of the SCSL that has addressed this issue so far takes the same approach and a recent ICTR judgment appears to agree with it.
In conclusion, the vast majority of international criminal jurisprudence supports the Martić holding that the term ‘civilian’ excludes persons hors de combat for purposes of crimes against humanity. However, to a lesser extent, the Martić holding that the victims of crimes against humanity can include persons hors de combat also finds support in the case law of international criminal tribunals, and only one trial judgment directly contradicts it.Footnote 139
4.3. Suggested considerations
At the heart of the Martić holding lies a vivid distinction between (i) the group of persons targeted by the attack in which the underlying offences occur; and (ii) the group of persons targeted by the underlying offences themselves. The determination of the former group is curtailed by the definition of ‘civilian’ under international humanitarian law, whereas the determination of the latter group is not so limited. As a result, the two groups need not be identical.
The first subsection below concerns the legal inconsistency which flows from this distinction, and attempts to discern whether any feasible alternatives exist that would avoid the inconsistency. The remaining subsections examine three legal questions related to the fact that the group of victims is not restricted to ‘civilians’, and offers some observations in relation thereto which may be particularly relevant to the ICC.
The issues treated here transpire where international humanitarian law and the provisions on crimes against humanity apply concurrently – that is, in times of armed conflict. The analysis focuses on consequences which arise out of the holding, and, as such, does not question the legal basis on which it was reached, in particular the state of customary international law.
4.3.1. Legal inconsistency and alternative approaches to solving it
The distinction in Martić leads to a legal inconsistency between the provisions controlling the determination of the group of persons targeted by the attack envisaged in the chapeau and those applicable to the group of potential victims of the underlying acts of crimes against humanity. Such inconsistency could have been avoided by applying Article 50 of Additional Protocol I to the definition of both groups. Both the attack and the underlying acts would thus have to target ‘civilians’ as defined in Article 50 of Additional Protocol I. This approach finds support in the original rationale behind crimes against humanity, which was to ‘fill a gap’ in the laws of war pertaining to civilians. If this rationale, as the Martić Appeals Chamber found, justifies determining the group of persons targeted by the attack according to the definition of ‘civilian’ in international humanitarian law, it ought also to justify defining the group of victims within the context of that attack in accordance with the same provision. A consistent use of the rationale would have been to define both groups under the same rule, namely Article 50 of Additional Protocol I.Footnote 140 This would moreover accord with the principle of distinction between civilians and combatants under international humanitarian law.
However, such an approach would be incompatible with the rule of customary international law that the group of potential victims of crimes against humanity is not restricted to civilians.Footnote 141 As noted above, that rule was advocated by certain delegations during the negotiation of the Rome Statute.Footnote 142 As such, there is much to say for Martić insofar as it did not define the victims under Article 50 of Additional Protocol I.
Another way to avoid the legal inconsistency, yet without infringing the aforementioned customary rule, would be to define both the term ‘civilian’ in the chapeau and the status of the victims in accordance with Common Article 3 to the Geneva Conventions.Footnote 143 Common Article 3 reads, in relevant parts,
Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause . . .
However, as this approach would allow persons hors de combat to be considered ‘civilians’ under the chapeau, it conflicts with the customary international law definition of ‘civilian’ in Article 50 of Additional Protocol I, which excludes persons hors de combat from being ‘civilians’. In addition, the approach allows for a situation wherein the population targeted by the attack consists entirely of persons hors de combat. This is not an implausible scenario, assuming that the ICC adopts the standard under which a ‘systematic’ attack refers to ‘the organized nature of the acts of violence and the improbability of their random occurrence’.Footnote 144 For instance, a number of prisoner of war camps and/or military hospitals could conceivably be targeted in such a manner. Coupled with the fact that in such a situation the individual victims would most probably also be exclusively persons hors de combat, this approach could potentially divest crimes against humanity of any link to civilians at all. It is doubtful whether the customary rule allowing non-civilians to be victims of crimes against humanity reaches that far, as evidenced by the fact that the statutes and the jurisprudence of current international criminal tribunals all require that at least the chapeau be linked to civilians.Footnote 145
In sum, the legal inconsistency in Martić between the provisions controlling the group of persons encompassed by the chapeau and those controlling the group of potential victims appears to be a necessary consequence of formulating crimes against humanity within the boundaries of customary international law: if the term ‘civilian’ in the chapeau is understood to include persons hors de combat, the formulation would be too broad; if the group of victims is limited to ‘civilians’ under Article 50 of Additional Protocol I, the formulation would be too narrow.
This state of the law raises three issues in particular which result from the fact that the group of victims is not restricted to ‘civilians’.
4.3.2. Added protection for prisoners of war
The first issue stems from the fact that Martić includes prisoners of war in the group of potential victims of crimes against humanity. This entails a potential conflict between the provisions on the underlying acts of crimes against humanity and the rules of international humanitarian law concerning prisoners of war, inasmuch as some of the underlying acts constituting crimes against humanity may be permissible under international humanitarian law if committed against prisoners of war.Footnote 146 Thus, while forcible displacement is an underlying act of crimes against humanity,Footnote 147 Article 46 of Geneva Convention III specifically allows for the transfer of prisoners of war. Similarly, as to the underlying act of imprisonment,Footnote 148 the arrest of prisoners of war is lawful under international humanitarian law.Footnote 149 As a result, the Martić approach arguably affords prisoners of war greater protection than they would otherwise be accorded by international humanitarian law if chance would have it that their transfer or detention occurs as part of an attack against a civilian population.
The Rome Statute provides a potential solution to this problem, in that Articles 7(2)(d) and 7(1)(e), respectively, require that forced displacement must take place ‘without grounds permitted under international law’ and that imprisonment must be ‘in violation of fundamental rules of international law’. If the ICC agreed that persons hors de combat can be victims of crimes against humanity, it ought to clarify whether these two provisions provide a legal basis for rejecting charges of crimes against humanity based on acts which would be permissible under rules of international humanitarian law, in particular those related to prisoners of war. In this regard it may build on ICTY jurisprudence holding that international humanitarian law ‘plays an important role’ and constitutes ‘a benchmark’ in assessing the legality of the underlying acts of crimes against humanity.Footnote 150
4.3.3. Definition of the group of potential victims
The second issue concerns the definition of the group of potential victims. Martić did not embark on the issue, but one interpretation is that it limited the group to ‘civilians’ as defined pursuant to Article 50 of Additional Protocol IFootnote 151 and ‘persons hors de combat’ as defined under Common Article 3.Footnote 152 If this interpretation holds, two preliminary points related to procedural fairness should be made. First, the accused in a given case should be put on notice of whether the prosecution claims that the victims were ‘civilians’ under Article 50 of Additional Protocol I, or persons hors de combat under Common Article 3, or both. This is so because a determination of ‘civilian’ status under Article 50 of Additional Protocol I does not necessarily take into account the victim's situation at the time of the commission of the crime,Footnote 153 whereas establishing whether a person is hors de combat under Common Article 3 very much depends on the victim's activity at the time of the crime.Footnote 154 As a result, the defence's strategy (whether or not to rely on the victim's activity in challenging his or her status as a victim) will differ depending on which provision the prosecution relies on. Second, care should be taken not to transpose the presumption in Article 50 of Additional Protocol I that ‘[i]n case of doubt whether a person is a civilian, that person shall be considered to be a civilian’ into a criminal law context. Where the criminal responsibility of an individual turns on whether the victim was civilian, the onus is on the prosecution to establish the civilian status of the victim beyond reasonable doubt.Footnote 155
Turning to the substance of the interpretation that the Martić holding is limited to ‘civilians’ and ‘persons hors de combat’, an immediate reflection is that the wording of Common Article 3 appears to allow for two different definitions of the term ‘persons hors de combat’. On the one hand, there is an argument that the clause ‘members of the armed forces . . . placed hors de combat by sickness, wounds, detention, or any other cause’ in Common Article 3Footnote 156 suggests that persons hors de combat constitute a distinct sub-category within the broader group of persons ‘taking no active part in hostilities’. On the other hand, it may be argued that a ‘person hors de combat’ is anyone who, under the terms of Common Article 3, takes ‘no active part in hostilities’. If that is the case, new definitional issues arise as to the meaning of the term ‘taking no active part in hostilities’.Footnote 157 For instance, there is a question of whether a member of the armed forces who is on leave from active duty could be considered as taking no active part in hostilities and therefore become a victim of crimes against humanity.
Another interpretation of the Martić holding is that anyone, whether defined as a ‘civilian’ or as a ‘person hors de combat’,Footnote 158 who takes ‘no active part in hostilities’ within the meaning of Common Article 3 is eligible for status as a victim of crimes against humanity. Indeed, the Appeals Chamber relied on jurisprudence referring to the victims simply as ‘persons’, ‘people’, or ‘individuals’.Footnote 159 Importantly, it found that this approach ‘reflects customary international law’.Footnote 160 It further relied on Common Article 3 and Article 4 of Additional Protocol II,Footnote 161 neither of which, it may be argued, is confined to persons hors de combat and civilians, but rather include all ‘persons taking no active [or direct] part in hostilities’.Footnote 162 Under this interpretation, it would be irrelevant for purposes of determining victim status whether the victim was ‘civilian’ or ‘hors de combat’. All that would matter is that the victim did not take active part in hostilities.
In sum, if the ICC adopted the Martić holding, interests of legal certaintyFootnote 163 call for it to make the scope of the group of potential victims abundantly clear. In particular, the Court should explicitly clarify whether the group is confined to civilians as defined in Article 50 of Additional Protocol I and persons hors de combat as defined in Common Article 3, or whether anyone ‘taking no active part in hostilities’ can be a victim of crimes against humanity. In either instance, the Court might consider elaborating on the meaning of the term ‘persons taking no active [or direct] part in the hostilities’.Footnote 164
4.3.4. Situations where no victims are civilians
Lastly, the ICC should consider that the Martić holding allows a conviction for crimes against humanity even if none of the victims is civilian. The situation has arisen wherein an attack against a civilian population is shown, but all the individual victims of the underlying acts as charged in the indictment are persons hors de combat.Footnote 165 Allowing a conviction for crimes against humanity in such a case flies in the face of the ICTY Appeals Chamber's holding that ‘the status of the victim as civilian’ is one of the elements which ‘characterise[s] a crime against humanity’.Footnote 166
A straightforward answer to this issue is that the above-mentioned situation is an unavoidable result of the rule of customary international law that persons hors de combat can be victims of crimes against humanity. In that sense, the law on crimes against humanity protects not only civilians but also persons hors de combat. But if that is so, one wonders why all contemporary formulations of crimes against humanity require in their chapeau that the underlying acts form part of an attack against a ‘civilian population’. It seems illogical for a criminal provision ostensibly to protect one group of persons (civilians) in its chapeau, but criminalize acts committed against both that group and another group of people (persons hors de combat) through the underlying offences.Footnote 167 If indeed that other group is also protected, this ought to be reflected in all relevant parts of the provision, including the chapeau.Footnote 168 Taking the customary rule allowing persons hors de combat to be victims of crimes against humanity seriously would therefore mean deleting the word ‘civilian’ from the chapeau of crimes against humanity. As noted, this was the position of some delegations during the negotiations of the Rome Statute. However, the word was retained because customary international law mandated its place in the definition of crimes against humanity.Footnote 169 It will be interesting to see how the ICC would reconcile these issues were it to adopt the Martić holding.
4.4. Conclusion
The Martić holding offers a compromise between the customary rule that victims of crimes against humanity need not be civilians, and crimes against humanity's origin which mandates that international humanitarian law control the definition of ‘civilian’ in the chapeau. This solution comes at the price of internal inconsistency in the formulation of crimes against humanity. However, the alternatives which could avoid the inconsistency – applying either Article 50 of Additional Protocol I or Common Article 3 to both the chapeau and the status of the victims of crimes against humanity – are either too restrictive or too broad in comparison with customary international law. As such, the Martić approach is a viable middle way which, despite its internal inconsistency, at least reflects contemporary customary international law. If the ICC were to adopt this approach, it would be well advised to clarify the precise scope of the category of persons who can be victims of crimes against humanity. It should also explain the legal relationship between the provisions protecting prisoners of war under international humanitarian law and the provisions on the underlying offences of crimes against humanity.
5. Concluding remark
The two issues addressed in Martić are of fundamental importance to the notion of crimes against humanity, and they are likely to affect all but two of the cases currently pending before the ICC. As such, the Court should seize the earliest opportunity to resolve them expeditiously, as this would materially advance the proceedings.Footnote 170 Indeed, the parties are entitled to know the legal confines within which they are to prepare their cases from the outset of the proceedings, lest they suffer serious prejudice which, if those confines are not spelled out until a late stage of the proceedings, may only be remedied by a retrial.Footnote 171 Additionally, it cannot be excluded that a clarification of the required status of the victims could potentially affect the determination of whether a person qualifies as a ‘victim’ so as to be eligible to participate in court proceedings and to claim reparations before the ICC.Footnote 172
