Editor’s Note: This post was written by Edain Jamison and was submitted, by her, to LOACBlog.com for publication. It has been posted here in its original format without any editing, deletions, subtractions, or additions from the original version that was sent to us. We hope you enjoy it.

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by Edain Jamison [*]
Guest Columnist
March 9, 2017

The International Criminal Court (ICC) and other international tribunals, have recently expanded the definition of eligible victims of war crimes and crimes against humanity. In February 2017, the pre-trial chamber of the Extraordinary Chambers in the Courts of Cambodia (ECCC) , stated that an attack by a state or regime on it’s own forces “could amount to an attack against civilian population….unless the armed forces were allied with or support to an opposing side in an armed conflict.”^[1]

The Co-Investigating Judges called for submissions from both parties and amici curiae from outside bodies to decide on whether an attack against own armed forces could amount to a crime against humanity (CAH) for the purposes of Article 5 of the ECCC Law during the period of 1975-1979.The judges decided in favour of the prosecution, and besides all the definitions of a “civilian” given by international law; the courts found that an attack on armed forces can amount to a Crime Against Humanity. While the case is concerned with a certain time period, there may also be a change in case law. This piece will not analyse the facts of the case, but more the principles of law and reasoning from the judges, and will conclude that the judgment and reasoning are sound and proportionate to International Criminal Law (ICL).

While the ECCC has been heavily criticised for being one of the most daunting challenges to international criminal law,^[2] the recent case has clarified some factors on legal terminology and the significance of crimes against humanity. Surprisingly, the decision does not follow many of its predecessors cases in other hybrid tribunals. Perhaps the reasoning is the result of the ECCC concluding the bulk of its cases or rather than fixate on terminology and be indecisive on which laws are appropriate, the case is a step forward in providing adequate justice.

Crimes Against Humanity- Elements versus Definitions

After a heavy dissection of the amici curiae, the judges sided with the view that an attack on a state or regime’s own armed forces may amount to an attack directed against a civilian population. While other views disagreed, somewhat or mildly, the second notable viewpoint; “Only when the underlying crime is persecution can an attack on state or organisation’s own armed forces amount to an attack on a civilian population”^[3] would have sufficed in concluding the case, as it leads to a similar result. While the judgment can be considered case sensitive, the co-investigating judges may have set a broad interpretation for other chambers.

One of the main discussions of the case concerned the act of CAH versus civilian population definition. In particular what tends to be an on-going struggle of what has more importance, the elements of the crime (widespread and systematic)^[4], or do the persons fit the definition? The prosecution and parts of the amicus brief put forward that, not to include state’s own armed forces as targets of an attack under CAH would lead to an “absurd or problematic result of a lack of any legal protection for then under international criminal law.”^[5] Yet those opposing this stated that there are other laws in place to protect armed forces such as human rights law and prohibition on genocide.^[6] However if such laws are in place for armed forces, then why do citizens need additional laws afforded to them such as CAH? Surely other ICL mechanisms can apply to citizens if that is the case. According to Pierre Marie Dupuyin, when analysing an International Criminal Tribunal for the former Yugoslavia (ICTY) case,^[7] the Courts had not previously established that a state is capable of committing a crime, on the basis of an interpretation of Article I of the Genocide Convention^[8]. Even after the case, the judges “stepped away at the very last hurdle and refused to conclude in favour of the international criminal responsibility of the state.”^[9] Seemingly, judges are better equipped to deal with CAH convictions from the flow of case law from the ICC and tribunals of ICL.

The judges correctly go back to the origins of Nuremberg and reference the International Military Tribunal. By acknowledging a range of cases from the beginning, the judges give us a rather intriguing insight of which argument has more significance; the crime or the ‘civilian’ terminology. They acknowledge in these early cases that the judges did not analyse in depth the meaning of civilian population, they repeatedly highlighted the “consistent”, “systematic”, and “planned” characteristics of the inhumane system of persecution and other crimes perpetrated on a vast scale by the Nazi regime.^[10] They also referenced other cases tried under CCL10 and these cases provided no explicit analysis of the civilian population requirement.^[11] References to cases such as P and Other case^[12] where the judges state they “cannot believe that actions among soldiers cannot represent CAH” when they belong “to the system and the massive number of crimes committed in the Nazi rule.”^[13]

Interestingly there seems to be an evolution of case law, where quite a number of significant changes have occurred. Out with the old, in with the new perhaps? The judges note that other trial chambers of ECCC have interpreted “civilian population requirement consistently with majority view in ad hoc tribunals.”^[14] They refer to Blaskic Appeals chamber at ICTY which found members of armed forces, militias etc. cannot be considered civilians for the civilian population requirement, even when hors de combat.^[15] From the broad interpretation to the narrow, the judges in Blaskic justify their reasoning by reference to Article 50 of the Geneva Conventions (GC) on the definition of the civilian population.^[16] Yet in contrast to this, when drafting the GC, International Committee of the Red Cross (ICRC) advocated “as wide as possible a definition” of civilians justified “by the purpose intended, namely, general protection against effects of hostilities.”^[17]

There has been a shift in the importance of ‘civilian population’, perhaps this ongoing confusion is aggravated by the laws in place which provide the definition of ‘civilian population,’ and these laws may not be suitable for all ICL cases. While others argue; “customary international law must provide a residual basis for the interpretation and application of crimes against humanity at the ICC”^[18] we must not deviate from the intentions of the Rome Statute and earlier case law. The judges are correct in using the rationale from the origins of the Nuremberg trials, “exempting one’s own soldiers from the protection of CAH based on an overly restrictive interpretation of its terminology, which is what the Defence are in essence promoting, is not such an acceptable argument.”^[19]

Are other principles and laws aggravated by this reasoning?

The case law leaning towards the importance of ‘civilian definition’ tends to focus on different sections of international law for justifications. Why is there tendency to pick and choose which law is appropriate? Is fairness achieved through variety? Again this great focus on terminology and definitions has perhaps blinded the courts in grasping the essence of the crime.

Article 21 (b) of the Rome Statue activates the use of using other laws in ICL cases, it states, “the court shall apply…where appropriate, applicable treaties and the principles and rules of international law, including the established principles of the international law of armed conflict.”^[20] In previous cases, and with the current defence of this case, heavily emphasis has put on the International Humanitarian Law (IHL), article 50 of GC in particular, for their justification. However the judges appropriately disregarded this by stating, “specific situation criterion, rather than the IHL criterion must be applied. Therefore a broader definition of civilian population, that of the entire population of a certain country, must be adopted.”^[21] The judges rely on Article 5 of ECCC law, and Article 7 of the Rome statute^[22] as they illustrate the ‘specific situation’ and allow for a broad interpretation, whereas international humanitarian law limits interpretation, which is not desired or appropriate in this case. Hansdeep Singh indicates that, “there is no formal recognition of non-civilians (or soldiers hors de combat) as individual victims of crimes against humanity.^[23]” While there is no formal recognition, the judges correctly decided armed forces do qualify to prevent frustrating the law on CAH.

The defence also refers to the principle of legality and in dubio pro reo, which require that any doubt or ambiguity in the interpretation of there term civilian should be resolved in favour of the charged persons.^[24] However, surely applying these principles would obstruct the law on CAH, as the elements have already been satisfied in the instant case. Ben Saul correctly points out that a broad interpretation would not violate legality under Cambodian or international law because the principles do not prohibit the ECCC from interpreting and clarifying the law.^[25] Perhaps the issue with these principles lay with ICL in general. Darryl Robinson states that the ICC as a whole applies, “a teleological approach that maximises victim protection means that there is never an ambiguity left for strict construction to resolve, because all ambiguities have already been resolved against the accused,”^[26] and argues that “the rule faced by the accused is closer to in dubio contra reo.” While this may be a sound counter argument in criticising the ICC’s use of principles, it would be unjust in the instant case. The accused committed the elements of the crimes, the instant case’s ambiguity was simply whether a CAH can apply to armed forces, resolving it in the favour of the armed forces does not disadvantage the accused or infringe upon the accused’s Fair Trial Rights^[27]. Therefore it is correct to conclude these principles should lay dormant until it is absolutely necessary for their intervention, which may be in the rarest of cases where the ambiguity should be resolved on the elements of a crime, rather than who qualifies as a civilian.

Onwards and Upwards

Through variations of case law, many legal principles read together can contradict and confuse the courts. The difficulty the courts face is how to use such principles, and coherently apply them to the facts, without aggravating other pieces of law. Principles like dubio pro reo are not suitable to all cases, or the law in question. The judges in this case were correct in disregarding it’s use as it was not suitable to the facts. Article 21 should only be used in cases where the elements of the crime are in question.

As the judges correctly pointed out, IHL is not entirely gospel in this instant case and it’s extended usage aggravates the law on CAH. The judges have struck a proportionate balance of the law by determining that greater significance must be afforded to the specific situation criterion of CAH. In terms of the significance of legal terminology over the elements of the crime, the judges followed back to the origins of Nuremberg trials to find a more proportionate approach, one of which should be acknowledged in future cases of ICL.

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