A/hrc/25/crp. 1 Distr.: Restricted

1545 ^ Prosecutor v. Kunarac et al, IT-96-23& IT-96-23/1-A [ICTY Appeals Chamber], Judgment of 12 June 2002, para. 86; Prosecutor v. Blagojevic IT-02-60-T [ICTY Trial Chamber], Judgment of 17 January 2005, para. 543.

1546 ^ Prosecutor v. Akayesu, ICTR–96–4–T [ICTR Trial Chamber], Judgment of 2 Sept 1998, para. 580. (2 September 1998); see also Prosecutor v. Musema, Judgment, No. ICTR–96–13–T, para. 204. (27 January 2000); Prosecutor v. William Sameoi Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Case No. ICC-01/09-01/11, Decision on the Confirmation of the Charges Pursuant to article 61(7)(a) and (b) of the Rome Statute, 23 January 2012, para. 176.

1547 ^ Prosecutor v. Musema, ICTR–96–13–T [ICTR Trial Chamber], Judgment of 27 January 2000, para. 204.

1548 ^ See Prosecutor v. Blaškic, Judgment, No. IT–95–14, Judgment of 3 March 2002, para. 204; Prosecutor v. Dordevic, ICTY Trial Chamber, paras. 1262 – 1380; Prosecutor v. Dario Kordic & Mario Cerkez, IT-95-14/2-A [ICTY Appeals Chamber], Judgment of 17 December 2004, paras. 98 & 179; Prosecutor v. Katanga, Decision on the Confirmation of Charges, ICC-01/04-01/07 [ICTY Pre-Trial Chamber I], Decision of 30 September 2008, para. 397.

1549 ^ See in particular section IV.E.3.

1550 ^ See also Prosecutor v. Kordic et al, IT-95-14/2-T [ICTY Trial chamber], Judgment of 26 February 2001, para. 302.

1551 ^ See Prosecutor v. Krnojelac, IT-97-25-A, [ICTY Trial Chamber], Judgment of 15 March 2002, para. ; Paul De Hert and others, eds., Code of International Criminal Law and Procedure (Uitgeverij Larcier, 2013), p. 39; Fernandez and Parcreau, Statut de Rome de la Cour Pénale Internationale, p. 432.

1552 ^ See also Robert Cryer and others, An Introduction to International Criminal Law and Procedure, 2nd ed. (Cambridge University Press, 2010), p. 251; Fernandez and Parcreau, Statut de Rome de la Cour Pénale Internationale, p. 432; Prosecutor v. Krnojelac, IT-97-25-T [ICTY Trial Chamber], Judgment of 15 March 2002, para. 122.

1553 ^ See Rome Statute, article 7(2)(i). The definition builds on international human rights law, but is somewhat narrower in demanding a specific intent to deprive inmates for a prolonged period of time of the protection of the law. On the recognition of conduct amounting to enforced disappearance as an inhumane act under customary international law since Nuremberg, see section V.G.

1554 ^ Rome Statute, article 7 (2). See also Prosecutor v. Popovic et al, IT-05-88-T [ICTY Trial Chamber,] Judgment of 10 June 2010, para. 800; Prosecutor v. Munyakazi, ICTR-97-36A-T [ICTR Trial Chamber], Judgment of 5 July 2010, para. 506.

1555 ^ Prosecutor v. Ntagerura, ICTR-99-46-T [ICTR Trial Chamber], Judgment of 25 February 2004, para. 701.

1556 ^ Prosecutor v. Kayishema, ICTR-95-1 [ICTR Trial Chamber], Judgment of 21 May 1999, para. 146.

1557 ^ See Prosecutor v. Lukic, IT-98-32/1-T [ICTY Trial Chamber], Judgment of 20 July 2009, para. 938.

1558 ^ Prosecutor v. Lukic, IT-98-32/1-T [ICTY Trial Chamber], Judgment of 20 July 2009, para. 939. See also M. Cherif Bassiouni, Crimes against Humanity : Historical Evolution and Contemporary Application (Cambridge, Cambridge University Press, 2011), p. 369; Elias Davidsson, "Economic Oppression as an International Wrong or as Crime against Humanity", Netherlands Quarterly of Human Rights, vol. 23, No. 2 (2005), p. 195; Antonio Cassese, “Crimes against Humanity”, in Antonio Cassese, Paola Gaeta, and John R.W.D. Jones, eds., The Rome Statute of the International Criminal Court: A Commentary, p. 365; Albin Eser, “Mental Elements-Mistake of Fact and Mistake of Law”, in Cassesse, Gaeta and Jones, eds., The Rome Statute of the International Criminal Court, p. 917. Prosecutor v. Kayishema, ICTR-95-1-T, ICTR Trial Chamber, Judgment of 21 May 1999, para. 144 even finds that recklessness or negligence are sufficient, but this appear to go beyond the accepted state of customary international law or, for that matter, the explicit wording of the Rome Statute. Some authors have argued that the fact that living conditions must be “calculated” to destroy part of the population indicates the mental requirement of a specific objective. See Christopher K. Hall, “ article 7: Crimes against Humanity” in Otto Triffterer and Kai Ambos, Commentary on the Rome Statute of the International Criminal Code (2008), at article 7, para. 95; Evelyne Schmid, “Violations of Economic, Social and Cultural Rights in International and Transnational Criminal Law”, PhD dissertation, Graduate Institute of International and Development Studies, 2012, p. 111. The term “calculated”, however, can also be understood as the perpetrator making the calculated assessment that the infliction of the particular conditions of life will in the ordinary course of events result in mass killing, even though this might not by the perpetrator’s subjective purpose.

1559 ^ See above, section IV.E.3.

1560 ^ Seoul Public Hearing, 21 August 2013, afternoon (00:16:40).

1561 ^ Elements of Crimes, Assembly of States Parties to the Rome Statute of the International Criminal Court, 1st Sess., Sept. 3–10, 2002, article 7 (1) (a); M. Cherif Bassiouni, Crimes against Humanity: Historical Evolution and Contemporary Application, p. 365.

1562 ^ See Rome Statute, article 30. See also Prosecutor v. Katanaga ICC-01/04-01/07 [ICC Pre-Trial Chamber I], Decision on the Confirmation of Charges of 30 September 2008, para. 423. International customary law, as defined by the ICTY and ICTR, also indicates that intentionally causing serious injury in reckless disregard of the risk for human life can amount to murder. See Prosecutor v. Mucic et al, IT-96-21-T [ICTY Trial Chamber], Judgment of 16 Nov 1998, para. 439; Prosecutor v. Akayesu, ICTR-96-4-T [ICTR Trial Chamber], Judgment of 2 Sept 1998, para. 589.

1563 ^ Rome Statute, article 7 (2) (c); Prosecutor v. Kunarac et al, IT-96-23/IT-96-23/1, ICTY Trial Chamber, Judgment of 22 February 2001, para. 539; Prosecutor v. Kunarac, Kovac and Vukovic, IT-96-23-A, 12 June 2002, ICTY Appeals Chamber, para. 117; Prosecutor v Taylor, SCSL-03-01-T, SCSL Trial Chamber, Judgment of 18 May 2012, para. 446.

1564 ^ See Elements of Crimes, Assembly of States Parties to the Rome Statute of the International Criminal Court, 1st Sess., Sept. 3–10, 2002, article 7 (2) (c), footnote 10; Prosecutor v. Kunarac et al, IT-96-23/IT-96-23/1 [ICTY Trial Chamber], Judgment of 22 February 2001, para. 541; Prosecutor v. Kunarac et al, IT-96-23-A, 12 June 2002, ICTY Appeals Chamber, para. 117; Prosecutor v. Taylor, SCSL-03-1-T [SCSL Trial Chamber], Judgment of 26 April 2012, para. 448.

1565 ^ See Prosecutor v. Kunarac et al, IT-96-23-A [ICTY Appeals Chamber], Judgment of 12 June 2002, para. 119; Prosecutor v. Kunarac et al, IT-96-23/IT-96-23/1 [ICTY Trial Chamber], Judgment of 22 February 2001, paras. 542 and 543; Prosecutor v. Taylor, SCSL-03-1-T [SCSL Trial Chamber], Judgment of 26 April 2012, para. 447.

1566 ^ Seoul Public Hearing, 20 August 2013, afternoon.

1567 ^ See Rome Statute, article 2 (e).

1568 ^ Prosecutor v. Kunarac et al, IT-96-23-A, 12 June 2002, ICTY Appeals Chamber, para. 117.

1569 ^ See Prosecutor v. Kaing Guek Eav (Duch), Case 001/18-07-2007/ECCC/Tc [Extraordinary Chambers of the Courts of Cambodia, Trial Chamber], Judgment of 26 July 2010, para. 372. The court found that conditions of detention amounted to inhumane acts that included shackling and chaining, blindfolding and handcuffing when being moved outside the cells, severe beatings and corporal punishments, detention in overly small or overcrowded cells, lack of adequate food, hygiene and medical care. See also Prosecutor v. Kvocka et al, IT-98-30/1-T [ICTY Trial Chamber], Judgment of 2 November 2001, paras. 190 & 1991, affirmed by Prosecutor v. Kvocka et al, IT-98-30/1-A [ICTY Appeals Chamber], Judgment of 28 February 2005], paras. 324-325. The ICTY considered that the conditions prevailing in internment camp amounted to crimes against humanity: “gross overcrowding in small rooms without ventilation, requiring the detainees to beg for water, and forcing them to relieve bodily functions in their clothes… constant berating, demoralizing, and threatening of detainees, including the guards’ coercive demands for money from detainees, and the housing of detainees in lice-infected and cramped facilities.”

1570 ^ See also Rome Statute, article 7 (1) (g).

1571 ^ Taking advantage of coercive circumstances as a factor giving rise to rape has been recognized by the jurisprudence of the ICTY Appeals Chamber and the official interpretation of rape under the Rome Statute. See Prosecutor v. Kunarac et al, IT-96-23& IT-96-23/1-A [ICTY Appeals Chamber], 12 June 2002, para. 129 [finding that the lack of consent on the part of victim characteristic of rape also exists where the perpetrator is “taking advantage of coercive circumstances without relying on physical force”]. See also Elements of Crime, Assembly of States Parties to the Rome Statute of the International Criminal Court, 1st Sess., Sept. 3–10, 2002, article 7(1)(g)-1, article 8(2)(b)(xxii)-1, article 8 (2) (e) (vi)-1.

1572 ^ The Nuremberg Judgment and the ICTY recognized forced abortion as a crime against humanity. See also Judgment of the International Military Tribunal, I The Trial of German Major War Criminals, Proceedings of the International Military Tribunal sitting at Nuremberg, Germany 2 (1946), p. 471 [considering the imposition of forced abortions on female forced labourers in coming to the conclusions that the Leadership Corps of the Nazi Party was a criminal organization implicated in crimes against humanity]. See also Prosecutor v. Kvocka et al, IT-98-30/1-T [ICTY Trial Chamber], Judgment of 2 November 2001, note 343; Prosecutor v. Greifelt et al [“The RuSHA Case”]. V Trials of War Criminals before the Nuremberg Military Tribunals, October 1946-April 1949 153 (1949) [ “The RuSHA Case”] pp. 109 ff., 160-61. See also Valeria Oosterveld, “Gender-based crimes against humanity” in Leila Nadya Sadat, Forging a Convention on Crimes against Humanity, pp. 98-99 [noting the similarity between forced sterilization, which is a specified crime against humanity under the Rome Statute, and forced abortion].

1573 ^ International criminal jurisprudence has long recognized that rape can entail torture. See Prosecutor v. Delalic et al, IT-96-21-T [ICTY Trial Chamber], paras. 475 ff; Prosecutor v. Furundzija, IT-95-17/1-T [ICTY Trial Chamber], Judgment of 10 December 1998, para. 164; Prosecutor v. Akayesu, ICTR–96–4–T [ICTR Trial Chamber], Judgment of 2 Sept 1998, para. 687. Forced abortion as an act of torture has been recognized by successive Special Rapporteurs on Torture and other Cruel, Inhuman and Degrading Treatment. See A/HRC/22/53 (2013), para. 48; A/HRC/7/3 (2008), para. 69. See also Human Rights Committee, General Comment No. 28, CCPR/C/21/Rev.1/Add.10 (2000), para. 11.

1574 ^ Rome Statute, article 7(2). See also Prosecutor v. Krnojelac, ICTY-97-25-A [ICTY Appeals Chamber], Judgement of 17 September 2003, para. 185; Prosecutor v. Nahimana et al, ICTR-99-52-A [ICTR Appeals Chamber], Judgment of 28 November, para. 985.

1575 ^ Rome Statute, article 7(2). Prosecutor v. Kvočka et al., IT-98-30/1-T [ICTY Trial Chamber], Judgement of 2 November 2001, para. 186.

1576 ^ The Rome Statute introduced gender-based persecution as a crime against humanity, which was not yet included in the statutes of the ICTY and ICTR. In the opinion of the Commission, this norm is crystalizing into customary international law.

1577 ^ See section VI.A.

1578 ^ See section IV.E.3.

1579 ^ See section IV.E.4.

1580 ^ See also section V.B.1 (c).

1581 ^ For details, see section IV.E.5 b).

1582 ^ See also section V.B.1 (f).

1583 ^ See also section V.B.1 (g).

1584 ^ See section IV.E.4.

1585 ^ See Rome Statute, article 7 (2) (d). See also Prosecutor v Krajisnik, IT-00-39-A [ICTY Appeals Chamber], Judgment of 17 March 2009, paras. 304 & 305. Forcible transfer is distinguished from the crime of deportation only by the fact that victims are not moved across an international border. See Prosecutor v Krstic, IT-98-33-T [ICTY Trial Chamber], Judgment of 2 August 2001, para. 521.

1586 ^ For details, see section IV.C.1 a) (i).

1587 ^ See DPRK Constitution articles 8 and 162. DPRK Code of Criminal Procedure, article 2. For a more detailed discussion of the political function of the criminal justice system, see section III.5.

1588 ^ See section IV.E.4.

1589 ^ For details, see in particular section IV.A.

1590 ^ See section V.B and V.C for the additional crimes against humanity that religious believers and others considered to have engaged in subversive behaviour experience in political prison camps and other prisons.

1591 ^ The abusive application of the death penalty in violation of international law can also amount to a crime against humanity, even if its imposition is technically in line with relevant national laws. See United States of America v. Alstötter et al. [The Nuremberg Justice Case] 3 T.W.C. 1 (1948), at 1155. In that case, the court found that a defendant incurred criminal responsibility for extermination and persecution based on death penalties he handed down.

1592 ^ For details, see section IV.C.2.

1593 ^ See Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, A/HRC/14/24/Add.6 (2010), para. 32.

1594 ^ See section V.C.1 (g).

1595 ^ Forced nudity has been recognized as an inhumane act that can give rise to crimes against humanity also by the ICTR and ICTY. See Prosecutor v. Akayesu, ICTR–96–4–T [ICTR Trial Chamber], Judgment of 2 Sept 1998, paras. 688 & 697 [specifically finding that forcing victims to undress and perform exercises while fully nude in a public setting amounts to an inhumane act]. See also Prosecutor v. Kunarac et al, IT-96-23/IT-96-23/1 [ICTY Trial Chamber], Judgment of 22 February 2001, paras. 766-774; Prosecutor v. Kvocka et al, IT-98-30/1-T [ICTY Trial Chamber], Judgment of 2 November 2001, para. 190. Sexual molestation has been recognized as an inhumane act involving sexual violence by Prosecutor v. Kvocka et al, IT-98-30/1-T [ICTY Trial Chamber], Judgment of 2 November 2001, para. 180.

1596 ^ DPRK Code of Criminal Procedure, article 143.

1597 ^ See World Medical Association, “Statement on Body Searches of Prisoners, adopted by the 45th World Medical Assembly held in Budapest, Hungary”, October 1993. Available from http://www.wma.net/en/30publications/10policies/b5. See also Committee against Torture, CAT/C/HKG/CO/4, para. 10.

1598 ^ See Elements of Crime, Assembly of States Parties to the Rome Statute of the International Criminal Court, 1st Session, Sept. 3–10, 2002, article 7(1)(g)-1, para. 1. See also Prosecutor v, Furundzija,. IT-95-17/1-T [ICTY Trial Chamber] Judgment of 10 December 1998, para. 185; Prosecutor v. Seasay et al, Case No. SCSL-04-15-T [SCSL Trial Chamber, Judgment of 2 March 2009, para. 145; Prosecutor v Akeyesu , paras. 688 and 686, where the ICTR specifically finds that thrusting a piece of wood into a woman’s vagina constitutes rape.

1599 ^ For details, see section IV.F.1. g).

1600 ^ For a definition of enforced disappearance see section V.B.1 (b).

1601 ^ For details, see section IV.D.

1602 ^ Rome Statute, article 7(2). See also Prosecutor v. Popovic et al, IT-05-88-T [ICTY Trial Chamber], Judgment of 10 June 2010, para. 800; Prosecutor v. Munyakazi, ICTR-97-36A-T [ICTR Trial Chamber], Judgment of 5 July 2010, para. 506.

1603 ^ Prosectuor Ntagerura et al, ICTR-99-46-T [ICTR Trial Chamber], Judgment of 25 February 2004, para. 701; Prosecutor v. Semanza, ICTR-97-20-T [ICTR Trial Chamber], Judgment of 15 May 2003, para. 340; Prosecutor v. Vasiljevic, IT-98-32-T [ICTY Trial Chamber], Judgment of 29 November 2002, paras. 227 & 232.

1604 ^ See above, section V.B.1 [Extermination].

1605 ^ See section III.

1606 ^ The exception constitutes the segment of the population kept in prison camps. See sections V.B and V.C.

1607 ^ See Report of the Secretary-General’s Panel of Experts on Accountability in Sri Lanka (2011), paras. 212 and 251. Available from http://www.un.org/News/dh/infocus/Sri_Lanka/POE_Report_Full.pdf. See also Christa Rottensteiner, “The denial of humanitarian assistance as a crime under international law”, International Review of the Red Cross, 1999. Available from http://www.icrc.org/eng/resources/documents/misc/57jq32.htm; Sigrun I. Skogly, “Crimes Against Humanity – Revisited: Is there a Role for Economic and Social Rights?”, The International Journal of Human Rights, vol. 5, No. 1 (2001), pp. 69-70.

1608 ^ For details, see section IV.D.3.

1609 ^ See section IV.D.6.

1610 ^ See sections IV.D.2 and IV.D.5.

1611 ^ See sections IV.C.2 and IV.D.4 d)

1612 ^ For the full quote of the speech see section IV.D.4 a).

1613 ^ For details, see section IV.D.4 c).

1614 ^ For the definition of murder under international criminal law, see section V.B.1 (d).

1615 ^ See section IV.E.5.

1616 ^ The abusive application of the death penalty in violation of international law can also amount to a crime against humanity, even if its imposition is technically in line with relevant national laws. See section V.D.4 (b).

1617 ^ See section IV.D.1 a) (i).

1618 ^ Prosecutor v. Kunarac et al, IT-96-23& IT-96-23/1-A [ICTY Appeals Chamber], Judgment of 12 June 2002, para. 86; Prosecutor v. Blagojevic, IT-02-60-T [ICTY Trial Chamber], Judgment of 17 January 2005, para. 543.

1619 ^ The requirement of a State or other organizational policy serves to ensure that crimes against humanity are limited to crimes that are “thoroughly organized and follow a regular pattern”, so as to exclude crimes that are isolated or haphazard. See also Prosecutor v. Katanga et al, ICC-01/04-01/07 [ICC Pre-Trial Chamber I], Decision on the Confirmation of Charges of 30 September 2008, para. 396. For this reason, State policies that are being set by senior decision-makers, without their full awareness and appreciation of their connection to the harm done on the ground, would not appear to provide a sufficient foundation for an attack directed against a civilian population. The Commission does therefore not agree with interpretations so extensive that they would also extend to reckless policies, as put forward e.g. by David Marcus, “Famine Crimes in International Law”, The American Journal of International Law, vol. 97, No. 245 (2003), pp. 247 & 273; David Butler, “Enforced Starvation : Exploring Individual Criminal Responsibility for State-Induced Famines”, Human Rights Law Commentary, vol. 3, University of Nottingham, 2007, p. 17. In this regard, Marcus, id., p. 272, also acknowledges that “the argument that a plan or policy to annihilate citizens through famine can be arrived at recklessly makes little sense”.

Other authors seem to favour a more restrictive interpretation than that advanced by the Commission, according to which only policies that target civilians, i.e. aim at causing starvation could amount to crimes against humanity. See Evelyne Schmid, “Violations of Economic, Social and Cultural Rights in International and Transnational Criminal Law”, p. 55. However, this interpretation would effectively introduce an element of criminal intent into the requirement of a State policy that is incongruent with and effectively narrows the established categories of criminal intent (dolus directus of the first and second degree) recognized under international criminal law and article 30 of the Rome Statute in particular. International Criminal Law, as also set out in the Rome Statute, demands that the attack must be pursuant to State policy. It does not require that the State policy must pursue the attack.

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