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WOMEN'S CAUCUS ADVOCACY
IN ICC NEGOTIATIONS

Suggestions for the Elements Annex (Part II)

 Grave Breaches: The Torture Cluster

Submitted to the 16-26 February 1999
Preparatory Committee for the International Criminal Court

The Women’s Caucus wishes to bring four recommendations to the attention of the PrepCom with respect to the elements of grave breaches, and particularly of torture, as identified in the papers presented by the United States and Switzerland and Hungary. While some of these concerns are particular to the definitions of torture proposed by various delegations, some, such as the imposition of specific or subjective intent requirements, reflect more general errors in approach

Recommendations:

I. Sexual violence should be charged both as sexual violence crimes and as other enumerated grave breaches—e.g. willful killing, torture, inhuman treatment and biological experimentation – when the requisite elements of the enumerated grave breaches are met.

II. The nexus between the “time” or “context” of armed conflict and the crime(s) at issue must be consistent with customary international law which does not demand a more particularized relation to military operations or hostilities.

III. Official involvement—whether by order or by acquiescence—is not an element of torture under humanitarian law.

IV. The articulation of illustrative purposes of torture in the Convention Against Torture and in the customary international law was not intended and should not be converted into an element requiring subjective intent or motive on the part of the accused.

Commentary:

I. The Elements Annex should state explicitly the principle that sexual violence should be charged both as sexual violence crimes and as other enumerated grave breaches—e.g. willful killing, torture, inhuman treatment and biological experimentation – when the requisite elements of the enumerated grave breaches are met.

As a general matter, the Elements Annex must state, as recognized in customary international law, that acts of sexual and gender violence should be charged both as sexual violence crimes under articles (8(2)(b()(xxii) and 8(2)(e)(vi) and under the relevant crimes against the person identified in 8(2)(a). As stated in the Celibici judgement, “whenever rape and other forms of sexual violence meet the aforementioned criteria of torture, then they shall constitute torture, in the same manner as any other acts that meet this criteria.” (para. 496).

This approach is required by the prohibition, contained in article 21(3) of the Rome statute, on gender-based discrimination in the application and interpretation of law; the express provisions of art also require it. 8 of the statute and supported by a wealth of customary international law.

The principle against gender discrimination contained in art. 21(3) of the statute, requires, for example, that rape and other forms of sexual violence be prosecuted as torture just as are other forms of torture, such as beatings, electric prods or psychological forms of abuse. Otherwise, sexual violence risks not being understood as among the most egregious of offenses. The "also constituting" language of arts. 8(2)(b)(xxii) and 8(2)(e)(vi), which recognizes explicitly that sexual violence also constitutes grave breaches and serious violations of humanitarian law and was included in the statute to make the need for gender integration clear.

Moreover, in the ICTY and ICTR, acts of sexual violence have been charged and/or adjudged as constituting one or more of the enumerated grave breaches of humanitarian law, e.g. torture, willful killing, enslavement, inhuman treatment etc. See, e.g., references in the ICRC Non-Paper regarding rape and sexual assault as torture (ICRC pp. 18-21); inhuman treatment (ICRC pp. 26). Thus, in Tadic, sexual violence was charged as willful killing and torture, though not proven causally as willful killing. Rape has been charged and recognized as torture by the ICTY. See, e.g., Furundzija and Celebici decisions of ICTY and the confirmed FOCA indictment. The historic Akayesu decision of ICTR recognized crimes of sexual and reproductive violence as constituent acts of genocide and forced nudity and sexual entertainment as inhumane acts under crimes against humanity. The Women’s Caucus has cited other precedents for the treatment of rape as torture in the UN, Inter-American and European human rights system, in our war crimes submissions to the PrepComs (see particularly, Dec. l997).

While the inclusion of rape and other forms of sexual violence as among the gravest crimes within the Court’s jurisdiction was a crucial step toward ending the historic trivialization of such experiences, it is also essential to have an explicit direction to integrate crimes of sexual and gender violence in the prosecution of the grave breaches and serious violations where they meet the criteria thereof in order to avoid their marginalization. Otherwise, sexual violence might not be included when the charges of torture and other general violations are drawn and, thereby, treated once again as less important.

This danger can be averted by a clear statement that acts of sexual and gender violence or persecution must be considered in the charging of genocide, killing, torture, as well as other war crimes and crimes against humanity against the person

We note the US Elements paper suggests this idea in the commentary to war crimes. However, this point is an overarching one, applicable to crimes against humanity and genocide as well and should be more clearly and strongly stated in a preface to all crimes.

II. War crimes are specified crimes occurring in the context of war.

The Women’s Caucus is concerned that the elements annex not limit the applicability of the statute to crimes occurring “in time of war.” The fact that the context in which these crimes occur qualifies as an internal or international armed conflict is sufficient to transform acts against the civilian population and other protected persons, otherwise common crimes, into war crimes. Thus, we support the Hungary/Switzerland proposal in this regard.

To the contrary, the US proposal sets a higher and unworkable threshold. Phrases like “in direct association with the conduct of military operations arising from a total or partial military occupation or from hostilities. . .”requires that the association be direct and limits the eligible context to military occupation and hostilities. The “direct association” requirement is described as “closely related to the hostilities” and, later, “associated with a military operation.”

This is not only generally inconsistent with customary international law; it could also rule out prosecution of crimes of sexual violence understood historically and by the Rome statute to be a significant problem in time of war. The statute and the Geneva Conventions and Protocols are concerned not only about rape and other forms of sexual violence used as an instrument of war; they establish an absolute prohibition on sexual violence against civilians or enemy soldiers hors du combat, whether this violence is inflicted systematically or by soldiers taking advantage of the situation to brutally and often indelibly mark their victory on women.

III. Official involvement is not an element of torture under humanitarian law.

As a general principle, and as applied by the Nuremburg Tribunal, humanitarian law requires that every person associated with a belligerent in war—whether a state or non-state actor—is bound to respect the guarantees of humanitarian law. Thus, an individual can violate the fundamental guarantees irrespective of whether his/her action is ordered, instigated, permitted or tolerated by the state or non-state belligerent to whom they are accountable. This applies to all war crimes, including the crimes of torture and cruel, inhuman treatment.

By contrast, under human rights law, the concept of torture requires some involvement of the state. The state involvement requirement is characteristic of human rights violations and one of the over-arching differences between human rights and humanitarian law for which the threshold requirement is the existence of armed conflict.

Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) requires state involvement. It provides that the requisite pain and suffering becomes torture “when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” This state involvement requirement is broadly stated and encompasses the failure to investigate, punish and prevent torture. But even this broadened concept of state/official involvement should not limit the general principle of humanitarian law that holds each person responsible for any act of torture whatsoever.

The hallmark of humanitarian law is the individual responsibility of the soldier or actor on the ground. This was made clear in the ICRC Commentaries to Protocol II, published after the adoption of the CAT. The 1987 Commentary refers to the adoption in l984 of the CAT and states:

The most widespread form of torture is practised by public officials for the purpose of obtaining confessions, but torture in[sic:s] not only condemned as a judicial institution; the act of torture is reprehensible in itself, regardless of its perpetrator, and cannot be justified in any circumstances.

Footnote 22 to this Commentary explains1:

The Convention refers to torture or other punishments inflicted by a public official or any other person acting on official orders, but Art. 1, [sec. 2 of the CAT], which defines its scope of application, also provides that that article is without prejudice to any other international instrument or any national law which contains or might contain provisions with a broader scope.

Accordingly, it is inappropriate to encumber the Rome statute with requirements of either state or official responsibility. Even if one considered non-state belligerents to be “officials,” the term still implies some kind of hierarchical approval or acquiescence, which is not an element of the crime when, committed in time of war.

In this regard, the US proposal, which does not mention official involvement, is correct and should be followed. The Hungarian/Swiss proposal (element 2) errs, however, in requiring official involvement as to the grave breach of torture. Both the Hungarian/Swiss and the ICRC appear to follow the erroneous importation into humanitarian law of an official/state involvement requirement by the ICTY and ICTR. See ICRC Non-Paper at pp. 21-22.2 This is an understandable error for a Court constantly plowing new ground. In the context of the Tribunals, this error can be brought to the attention of the Tribunals and revised in future cases. It should not, however, be adopted by the Elements Annex, lest the basic principle of individual responsibility in humanitarian law be confused and undermined.3

IV. Torture does not require proof of malicious or subject intent or specific purpose as a subjective element.

To prove the crime of torture, it is sufficient to show that the accused acted intentionally to inflict severe physical or mental pain or suffering. Intention is established when the accused is shown to have acted voluntarily in a context where it is certain or highly probable that his/her acts will cause such pain or suffering. It is not required that the accused specifically intended to commit torture nor did so with malicious intent. The Elements Annex should avoid language that appears to impose a specific intent requirement. It is inconsistent with the international legal understanding of intentional conduct. See ICRC Informal Paper on Subject Criminal Elements. Here also, reference to the negotiation of the Torture Convention is illuminating. The US proposal for article 1 defined torture as “any act by which extremely severe pain or suffering, whether physical or mental, is deliberately and maliciously inflicted upon a person…” The drafters rejected the demand for malicious intent.4  

Moreover, neither humanitarian nor human rights law requires proof that the accused had a subjective purpose such as those named in the CAT-- to obtain information or a confession, punish, intimidate or discriminate. To read the “purposes” language into humanitarian law, once again, confuses the two legal systems. On this point, the US proposal, which does not enumerate purposes, is the better one. With respect to the Convention Against Torture as well, the identification of purposes was not intended to impose a subjective intent requirement or element, but rather to describe some of the objective circumstances in which violence can be considered to be torture. 

Prior to the Declaration against Torture, approved by the UNGA in l975, and the Convention, torture had a very narrow meaning. It referred to judicial torture used to extract information or confessions from a prisoner or suspect. The instruments codified the evolving understanding that the extraction of information was not a necessary component of the infliction of torture and that, where torture involved interrogation, the interrogation was more a means to intimidate or destroy the personality rather than a goal in itself. In other words, to the torturer, the idea that a person might have endangered another through providing information under torture was often more important than the information itself. 

Thus the enumeration of purposes was needed at that time to ensure that the norm against torture encompassed a broader range of circumstances than simply the setting of interrogation. It was not intended as a subjective intent requirement. Nor is the enumeration of purpose necessary to distinguish torture from cruel, inhuman and degrading treatment or punishment. Rather, the distinction, accepted in the Convention and in other human rights contexts (e.g. the Human Rights Committee, the European Court and the Special Rapporteurs on Torture) is in the severity of the harm inflicted. The fact that it is not a bright line distinction—as all acknowledge—is precisely why it should be left to the discretion of the Court, considering the standard in regard to the testimony and evidence before it. Beyond that, the drafters of the Convention made explicit that the list of purposes in the Convention is not an exclusive one, but simply illustrative. This is contained in prefacing the list of purposes by the words “such as.” The Hungarian/Swiss proposal errs in omitting this critical qualifier and, more fundamentally, in stating these objective circumstantial considerations as a subjective intent requirement.

1 Claude Pilloud et al., Commentary on the Additional Protocols of 8 June l977 to the Geneva Conventions of 12 August 1949 (Yves Sandoz, Christophe Swinarski & Bruno Zimmerman, eds.) ICRC (Martinus Nijhoff l987) at pp.1373-74.
2 By contrast, the US Court of Appeals in Kadic v. Karadzic, cited in the ICRC commentary (p. 21) correctly ruled that torture “when not perpetrated in the course of genocide or war crimes—are proscribed by international law only when committed by state officials or under color of law.” That civil case for damages involved claims based on torture both as a war crime and as an act by an alleged de facto state. The Karadzic Court recognized clearly that in regard to war crimes, there is no requirement of official involvement, approval or acquiescence. Indeed, the Hungarian/Swiss proposal is consistent with international humanitarian law in not imposing any official involvment requirement on willful killing, inhuman treatment and biological experiments; the same is true for torture.
3 We note also that with respect to crimes against humanity in non-armed conflict situation, official involvement requirements for torture are also inappropriate in light of the Rome statute and customary international law upon which it is based. There, the threshold that distinguishes torture as a crime from torture as a violation of the statute is provided by the threshold for crimes against humanity contained in the chapeau.
 4 See Burgers & Danelius, The United Nations Convention against Torture: A Handbook on the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Martinus Nijhoff) at pp. 41.