About the author(s):
I want to thank the editors of the symposium for the opportunity to comment on Dr. Tilman Rodenhäuser’s book. Organizing Rebellion, which covers three neighbouring, but distinct fields of international law, is a comprehensive, well-researched, nuanced piece of scholarship which is firmly grounded in practice and reality. Tilman’s work has greatly enriched my thinking and writing about crimes against humanity. In this piece, my comments will therefore also focus mainly on the parts of the book dedicated to non-state armed groups and the law of crimes against humanity. The more critical remarks made in this post are meant to stir debate and reflection and should therefore not be read in any way as tempering my appreciation of Tilman’s impressive work.
There is much to be commended in the part of the book on the law of crimes against humanity. I am especially convinced by the conceptual considerations on crimes against humanity (pp. 219-228), in which Tilman provides a real-life and practical justification for crimes against humanity which is devoid of any metaphysical contemplations about the notion of “humanity”. The involvement of the state is pivotal in his theory, as evidenced by his statement that “(…) the territorial state is either actively or passively involved in the crime, or unable to prevent it”. Other scholars provide further theoretical grounding for his conception of crimes against humanity. In particular, van der Wilt has justified crimes against humanity in the following way: “The oppression by the state of its own population- or its impotence to shield the population against oppression by other powerful groups- bereaves that people of a vital capacity and simultaneously arouses the concern of all humanity, because the essential destruction of political realm reflects upon all of us.” In the same vein, in his normative account on crimes against humanity, Larry May justifies international criminal liability on the grounds that “a state sacrifices its sovereign authority over criminal law when it deprives its subjects of physical security or subsistence, or is unable or unwilling to protect its subjects from harms to security or subsistence.” Indeed, the total perversion of the fundamental concept of the state resonates with all of us universally and can therefore be considered as being against the interests of humanity as a whole. By elaborating his enforcement theory, Alexander Greenawalt accurately points out that the fact that ICL is concerned with “offenses whose very commission is associated with failures of domestic sovereignty, either because of state inability to prosecute or because of illegitimate state reluctance to prosecute” is “built into the definitions of each of its offenses.” More specifically with regards to crimes against humanity, Greenawalt holds that “(w)here state policy guides the commission of atrocities, the enforcement challenge is obvious: the state’s involvement casts immediate doubt on the state’s willingness to pursue justice in good faith”, while “widespread or systematic attacks that are committed pursuant to a nonstate organizational policy” are “(…) associated with extraordinary state inability to enforce its criminal law against the wrongdoers, most likely because the state has lost effective control over portions of its territory.”
I also find Tilman’s interpretation of the “organizational” notion within the policy requirement under Article 7(2)(a) ICC Statute, which determines the extent to which non-state actors come under the purview of the law of crimes against humanity, in general thoughtful and methodologically sound (see pp. 252-262). Tilman carefully constructs a definition of the organizational notion by looking, inter alia, at the ordinary meaning as well as the context in which the notion is embedded, both in the ICC Statute and in the Elements of Crimes. Moreover, he rightly refrains to rely on a teleological interpretation which would deduce any meaning of “organization” from the ICC Statute’s broad objectives as spelled out in the Preamble to the Statute. One point of concern however is the lack of engagement with the imperatives of the legality principle under Article 22 ICC Statute, which aims to protect the interests of certainty and predictability when judges interpret a certain provision. Perhaps Tilman could elaborate further about whether he is of the opinion that his capacity-oriented interpretation fulfills the prerequisites of the legality principle and, more generally, how the principle should be operationalized when interpreting contextual elements such as the “organizational” notion.
Tilman’s elaborations on how an organization might be specifically involved in the commission of a policy to commit crimes against humanity by analyzing the Elements of Crimes as well as the attribution of acts of individuals to the collective entity behind crimes against humanity constitute very important efforts to clarify the still elusive law of crimes against humanity (see pp. 262-268 and 304-311). In addition, Tilman identifies important avenues for further research which are prompted by “contemporary realities such as international terrorism”. Indeed, the crimes against humanity which have been prosecuted to date involved crimes committed on a certain geographically bound territory. However, nowadays, and arguably increasingly in the future, many non-state actors reject the system built around State sovereignty and territorial integrity. As the example of Islamic State and its “franchises” or “provinces” in Africa and Asia show, the violence some non-State actors commit largely follows from the desire to impose their ideology and values globally. The phenomenon of lone wolf attacks demonstrates that the augmented digitalization and mobility that characterize today’s world increases the cross-border ability of non-State actors to implement their criminal policies by directing, inspiring or enabling individuals to carry out attacks against civilians anywhere in the world. In this regard, it becomes indeed important to reflect on “whether a widespread attack against a civilian population committed by individuals in one state, which is inspired by the policy of an organization primarily based, can amount to a CAH”.
Tilman is moreover right to point out that an overemphasis on the interpretation of the organizational notion to distinguish crimes against humanity from ordinary crimes is unnecessary and overblown. I’m in full agreement with his argument that “(…) a broad interpretation of the entity behind CAH does not downgrade CAH, or equate it to human rights violations. Even if acts factually amounting to CAH could be committed pursuant to or in furtherance of a policy of a group with relatively limited capacities, CAH would still consist of a widespread or systematic course of conduct involving defined acts committed against a civilian population” (p.280). Indeed, in my view, in at least some scholarship on crimes against humanity, the policy element and the “organizational” requirement more in particular have incorrectly been portrayed as being the only indispensable element to delineate crimes against humanity from “ordinary” crimes or human rights violations. Apart from having to prove the different other contextual elements of crimes against humanity as spelled out by Tilman, a nexus between the individual act of the accused and the context of crimes against humanity, and this both in terms of actus reus and mens rea, needs to be shown. Proving all these different constitutive elements puts a heavy evidentiary burden on prosecutors charging crimes against humanity, and fears of ‘banalization’ of the concept of crimes against humanity are thus unwarranted.
One issue that I would have been keen to see Tilman analyse more deeply is the synergy and potential overlap between the possible human rights obligations of non-state entities, even those that do not possess control over a territory and a population, and non-state organizations accountable for a policy behind crimes against humanity. Tilman is entirely right when he is exercising caution to avoid conflation between the system of individual criminal responsibility that is international criminal law on the one hand and the system of collective responsibility that is international human rights law on the other hand. I fully subscribe to his statements that “(u)nder international criminal law, crimes against humanity do not apply to human rights violations as such-only if they are committed in particular contexts” and that the “(…) essential characteristic of crimes against humanity (…) would not be considered if a simple analogy between the criminalization of certain acts as international crimes and human rights obligations of armed groups were drawn” (p. 208). Nonetheless, in my view, the synergies between the two fields of law merit further exploration. While the law of crimes against humanity is indeed concerned with individual criminal responsibility, Tilman acknowledges that international crimes ‘‘are often caused by collective entities in which the individual authors of these acts are embedded’’ (p. 304). Moreover, when elaborating on which types of organizations can be behind a policy behind crimes against humanity through tolerating an attack against a civilian population, Tilman explicitly engages with international human rights law by stating that “(i)in international law, the obligation to protect individuals from crimes normally stems from human rights law. Consequently, the scope of entities behind a policy of tolerance would be limited to states and non-state organizations with quasi-governmental capacities having the obligation the obligation to protect human rights of individuals under their control” (p. 266). It might have been interesting if Tilman would have investigated the linkages between the collective responsibility of non-state entities for human rights violations and the need to establish a collective entity behind a policy as a contextual element behind crimes against humanity more explicitly and forcefully. After all, the proponents of the more restrictive “State-like” interpretation of the organizational notion rely on international human rights law to argue against a broad interpretation of the organizational notion. Claus Kress for instance asserts that “only once the obligation of an organization to respect international human rights can be clearly established under general international law can a human-rights-inspired teleological argument to include such organizations in the policy requirement of crimes against humanity become available.” It could have made his “capacity-based” interpretation of the organizational notion more cogent if Tilman would have engaged with Kress’ argument, especially since he seems to argue that all armed groups, including those not controlling territory and population, are bound by an obligation not to interfere with fundamental rights (pp. 206-207). An ECCC Pre-Trial Chamber has specified that “fundamental rights” consists of “the right to life, to be from torture, cruel, inhuman or degrading treatment or punishment, to liberty and security, to be treated with humanity and with respect for the inherent dignity of the human person when deprived of liberty and to a fair trial” (para. 118). As also noted by Tilman (p. 208), these fundamental rights consist broadly of prohibitions of the acts underlying crimes against humanity (p. 208). The capacity to respect most of the fundamental rights as enshrined as underlying acts under Article 7 of the Rome Statute should be rather low, as they consist merely of a negative obligation to refrain from violations. Only two specific underlying acts under Article 7, namely enforced disappearances and apartheid, clearly require something more than a negative obligation to refrain from violations, and thus a higher degree of capacity, as correctly acknowledged under pages 256-257 of the book. With regards to enforced disappearance as a crime against humanity, Kai Ambos very convincingly explains that the notion of “political organization” under Article 7(2)(i) ICC Statute can only refer to organizations that can grant access to the administration of justice or any effective legal remedy and that have a duty to inform about the whereabouts of the victims of a deprivation of liberty. He concedes that the notion of “organization” under Article 7(2)(i) should be understood “more narrow” and illustrates this by emphasising that a “state-like organization with territorial control which detains a person, transfers that person to ‘its’ territory and thereby impedes that person access to the administration of justice does not omit, but indeed commits, a crime of deprivation of liberty with the subsequent impediments of an access to justice.” As for apartheid, Tilman correctly asserts in my view that the requirement under Article 7(2)(h) ICC Statute that the inhumane acts are “committed in the context of an institutionalized regime of systematic oppression and domination” entails that an organization behind a crime against humanity of apartheid “would need to exercise quasi-governmental authority in a territory.” I would be eager to hear Tilman’s thoughts about the possible convergences between human rights obligations of non-state actors and policies of organizations behind crimes against humanity also with regards the other underlying acts of crimes against humanity under Article 7 of the Statute.