Recommendations
and Commentary
for the Elements of Crimes
(Based on the Rolling Text PCNICC/L.5/Rev.1/Add.2) Submitted to the
Preparatory Commission for the International Criminal Court March 13 – 31,
2000)
SUMMARY OF RECOMMENDATIONS
Chapeau Issues The Need for a General Statement of Gender Integration: A
general statement must be included in the Elements of Crimes stating that sexual
violence should be charged as other crimes where the acts of sexual violence
meet the elements of those other crimes. Gender crimes must not be held hostage
to the compromise on the chapeau: Agreement on the formulations of the
gender-specific crimes should not be predicated on the compromise regarding the
chapeau, as suggested in footnote 12. Gender issues should not be used as a pawn
for agreement on other issues.
“Actively promote or encourage”: The language in the crimes against
humanity chapeau which requires that the State or organization “actively
promote or encourage” the criminal conduct in question would impermissibly
limit the statutory jurisdiction of the Court and must be eliminated.
Specific Crimes
Murder: The elements of murder should use the term “killed or caused
death” so as not to exclude situations in which death results from an
intentional omission.
Extermination: The language in the rolling text that the accused “intended
the conduct to be part of such mass killing” calls for specific intent, which
is unauthorized by the statute. Neither death nor mass killing are required.
Enslavement: The definition in article 7(2)(c) is sufficient to form the
elements of the crime. Any modifications are unwarranted.
Sexual Slavery: The elements of sexual slavery in the rolling text which
emphasizes “purchasing, selling, lending or bartering” and similar
deprivations of liberty would exclude many situations of sexual slavery. The
elements of sexual slavery in the rolling text must therefore be modified to
de-emphasize the commercial exchange element.
Forced pregnancy: The rolling text is correct and should be maintained.
Enforced sterilization: The footnote in the rolling text which excludes
birth control measures from this crime deprives the crime of all meaning and
should be deleted. Genuine consent should be substituted by or explained as
requiring “informed and voluntary consent.”
Persecution: The proposal in footnote 21 that the fundamental rights be
universally recognized diverges from the Rome language, further narrows the
crime from current international law, and should be rejected
Torture: The elements of torture under war crimes should not contain any
purposes. Alternatively, the purposes clause should include “or any reason
based on discrimination of any kind.”
Introduction
The commitment of states affirmed at the PrepCom sessions not to rewrite the
Rome statute is undermined by an attempt to elaborate upon definitions currently
contained in the statute, or to include commentary on points best left to the
Court. The definitions and one illustration contained in article 7(2) regarding
crimes against humanity should not be renegotiated but only restyled as
elements. The proposed elements of some of the sexual violence crimes—sexual
slavery, enforced sterilization and other sexual violence—are not consistent
with the Statute or with customary law and must be reformulated.
General Chapeau to All Elements
The Need for a General Statement of Gender Integration A general statement
must be included in the Elements of Crimes stating that sexual violence should
be charged as other crimes within the jurisdiction of the Court, such as
torture, mutilation, and inhuman treatment, where the acts of sexual violence
meet the elements of those crimes. This would ensure that sexual violence, which
occurs mostly to women, is treated with the same seriousness as crimes which are
inflicted on both men and women. This approach is required by the principle
against gender-based discrimination in the application and interpretation of
law, codified in article 21(3) of the Rome Statute, and based on various human
rights and humanitarian treaties.[1] If sexual violence is not charged as the
other crimes which it also constitutes, this will marginalize the prosecution of
sexual violence, ignore important aspects of the harm suffered, and deny women
equal application of the law.
Moreover, the language “also constituting a grave breach of the Geneva
Conventions” found in article 8(2)(b)(xxii) at the end of the enumerated
sexual violence crimes was included in order to signal that these crimes can
also be charged as grave breaches.[2] We note the important language in the
commentary to the genocide elements which states that rape and sexual violence
may constitute genocide in the same way as any other act, provided that the
criteria of the crime of genocide are met.[3] This principle should be extended
to both war crimes and crimes against humanity under the ICC. [4]
In addition, it should be revised to make clear that rape and sexual violence
may constitute and, in such case, should be charged as the other crimes.
Chapeau to Crimes against Humanity
Gender crimes must not be held hostage to the compromise on the chapeau
Agreement on the formulations of the gender-specific crimes should not be
predicated on the compromise regarding the chapeau, as suggested in footnote 12
of the Elements rolling text. Gender issues should not be used as a pawn for
agreement on other issues. The proposal contained in PCNICC/1999/WGEC/DP.39 to
exclude crimes committed by husbands against wives, parents against children,
and other crimes relating to family matters is a blatant violation of
international law and of the Rome statute. It discriminates against women
contrary to article 21(3) of the statute by trying to exclude from the
jurisdiction of the Court those crimes which affect women exclusively and
disproportionately. International law condemns crimes of sexual violence and
gender persecution of the magnitude of those recognized in article 7 of the ICC
statute, whether or not they relate to family, culture or religion. The
unanimously approved Declaration on the Elimination of Violence against Women
affirms:
“States should condemn violence against women and should not invoke any
custom, tradition or religious consideration to avoid their obligations with
respect to its elimination. States should pursue by all appropriate means and
without delay a policy of eliminating violence against women.”[5]
The principle that family, religion or culture does not justify such violence
has also been expressed by the Committee on the Elimination of All Forms of
Discrimination Against Women in their interpretation of the Convention.[6]
Moreover, racial crimes, such as violence or persecution of persons in
interracial or inter-ethnic marriage, could not be excluded from the ICC’s
jurisdiction for such reasons.[7] To create such an exception in the Statute
would fly in the face of the corpus of international law recognizing crimes of
this dimension as jus cogens and, therefore, peremptory and non-derogable.
International law requiring states to eliminate slavery and slave-like practices
applies explicitly to familial situations.[8] In addition, the Convention on the
Rights of the Child requires states to protect children from harm at the hands
of their parents.[9]
Accordingly, any exclusion of the crimes recognized in article 7(1) because they
occur in the family or are based on tradition, culture or religion is not a
justifiable bargaining position deserving accommodation. The Rome statute is a
hard-won and historic landmark codifying the evolution of customary law
regarding sexual violence and gender violence. By standing firm, delegates were
successful in including these crimes in the statute and thereby ending the
discriminatory treatment of crimes against women. These negotiations of the
Elements of Crimes must not undo this indispensable and long-overdue
achievement.
To make any exception—direct or indirect-- for gender crimes that meet the
criteria of article 7 would convert the Rome Statute from an historic and
principled instrument of gender justice into an instrument of discrimination.
Crimes such as rape, sexual slavery, enforced prostitution, forced pregnancy,
forced sterilization and other sexual violence along with gender persecution are
egregious crimes, constituting jus cogens violations which should not be
used as a bargaining tool. The ICC’s jurisdiction over these non-derogable
crimes cannot not be compromised in order to achieve a negotiated settlement in
the ICC PrepCom. “Actively promote or encourage” such conduct The proposed
statement in the chapeau to the crimes against humanity elements which requires
that the State or organization “actively promote or encourage” the criminal
conduct in question would greatly limit the statutory jurisdiction of the Court
and threatens to improperly limit its effectiveness.
The “actively promote or encourage” language should be eliminated and the
Court should be allowed to decide which types of conduct satisfy the statutory
threshold requirements for crimes against humanity. The ICTY Trial Chamber in
the case of Prosecutor v. Kupreskic et al, examined international and national
case law to determine “the question of whether the offence …may be committed
by individuals not acting in an official capacity, and in [such] case, whether
the offence must be approved of or at least condoned or countenanced by a
governmental body for it to amount to a crime against humanity.”
The Chamber concluded that the case law showed that the acts must “have been
at least tolerated by a State, Government or entity”.[10] The Chamber did not
state that active involvement was required. The Trial Chamber’s ruling in the
Akayesu case further underscores the problematic nature of the chapeau language.
When dealing with the issue of individual culpability, the Trial Chamber ruled
that the failure of Akayesu to oppose the killings and rapes that occurred in
his commune constituted tacit encouragement. Akayesu was present when the crimes
were being committed and even said to the perpetrators “Never ask me again
what a Tutsi woman tastes like”.[11] Clearly, these acts constituted more than
the minimum for culpability since presence at the crime is not a requirement for
criminal liability.
According to this precedent, however, failing to prevent crimes, being present
at the commission of the crimes, or making statements encouraging such crimes
would constitute only “tacit” encouragement and would not meet the standard
of active encouragement contained in the rolling text. This case gives some
guidance regarding how a Court might categorize the state policy element upon
which the jurisdiction of the ICC depends. It illustrates how requiring
“active” encouragement or promotion is likely to exclude state or
organizational policies to commit crimes against humanity that are clearly
condemned by international law. Under international humanitarian and human
rights law, acquiescence, consent or tolerance gives rise to culpability for the
egregious types of crimes before the ICC.
The Convention against Torture defines torture as any act by which severe pain
or suffering is inflicted on a person “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”.[12] This
definition was followed by the ICTR Trial Chamber in the case of Akayesu.[13]
The same applies to the crime of enforced disappearance of persons. The UN
Declaration on the Protection of All Persons from Enforced Disappearances also
recognizes that “State or State authorities which organize, acquiesce in or
tolerate” enforced disappearances are liable.[14] All these instruments and
the customary jus cogens norms they reflect show the clear principle in
international law recognizing state liability for acquiescing to or tolerating
crimes committed by private individuals.[15]
This principle applies with fullest force when these crimes meet the criteria of
crimes against humanity. Accordingly the failure to discharge that
responsibility unquestionably meets the jurisdictional element for crimes
against humanity. Similarly, as a matter of conventional and customary law,
States are required to criminalize and enforce laws against a broad range of
slave-like conditions, including, as previously discussed, those occurring in
the family.[16] The failure to take any action to do so constitutes a policy
decision to not fulfill this international obligation. States or organizations
often accomplish their tyranny by relying on the criminal actions of
individuals. In domestic criminal law, acquiescence to the actions of others
constitutes complicity to a crime under criminal law. Similarly, failure to
punish or prevent certain conduct can constitute a state plan or policy to
commit crimes against humanity.[17] The ICC elements must not create an
incentive for such conduct by setting a standard requiring more active
involvement in the criminal conduct.
Finally, there is no principled reason why acquiescence or toleration should
constitute an attack in the case of enslavement, disappearances or torture and
not in the case of rape, sexual slavery or the other crimes against women and
children. Preventive and punitive measures are no less necessary or required by
international law in the case of rape than in the case of forced disappearances
or torture. The crimes before the Court are based on non-derogable rights and
are of an egregious dimension. Tolerating or acquiescing to their commission on
a widespread basis properly amounts to a policy to commit the attack. For this
reason, “actively promote or encourage” should not be included in the
chapeau.
SPECIFIC CRIMES
Murder (Articles 7(1)(a) and 8(2)(c)(i)). The requirement that the
accused “killed” one or more persons risks excluding situations in which
death results from an intentional omission. It is preferable to import the term
in Footnote 3 and say “killed or caused death”.
Extermination (Article 7(1)(b)). Unlike the crime of genocide,
extermination does not require a specific intent. The third element-- that the
accused “intended the conduct to be part of such mass killing”-- calls for
specific and not general intent. This is unauthorized by the statute and should
be removed. It is also unacceptable to attempt to confine the Rome Statute by
making death an indispensable element of extermination. The term
“extermination” is not limited to killing. Exterminate is defined as “1.
to drive out or away, to expel; 2…to annihilate, to root out”.[18] Indeed, a
group may be eliminated by preventing them from procreating, by forcing them out
of a territory, or by otherwise threatening their capacity to survive as a
group.
Enslavement (Article 7(1)(c)) Article 7(2)(c). of the Rome statute states
that “enslavement means the exercise of any or all of the powers attaching to
the right of ownership over a person and includes the exercise of such power in
the course of trafficking.” The proposed elements unduly limit the crime by
listing illustrative acts of a commercial nature which do not encompass most of
the crimes involved in trafficking or the slave trade, such as deceiving,
coercing, harboring, transporting, etc. Moreover, it threatens to exclude
slavery-like conditions such as debt bondage, forced marriage and child labor
which do not require purchase or sale, etc.
These are recognized as slavery-like conditions and are prohibited under the
Supplementary Convention on the Abolition of Slavery, the Slave Trade and
Institutions and Practices Similar to Slavery and customary international law.
The Conventions preclude all forms of reducing a person to a slave-like
condition, including acquiring or delivering a person for or inducing a person
to accept a condition of enslavement.[19] Most importantly, the proposal alters
the terms of the Rome Statute. The definition in article 7(2)(c) is sufficient
to form the elements of the crime. The exercise of a power of ownership is the
essence of enslavement and constitutes an already high standard. Any
modifications are unwarranted.
Gender Crimes (Articles 7(1)(g), 8(2)(b)(xxii) and 8(2)(e)(vi))
Sexual Slavery. The elements of sexual slavery in the rolling text which
emphasizes “purchasing, selling, lending or bartering” and similar
deprivations of liberty could lead the ICC to interpret the statute in a way
which would exclude many situations of sexual slavery. The truncated list all
involve some form of commercial exchange. However, neither slavery nor sexual
slavery depend upon a purchase or sale type transaction or upon general control
over the victim. The essence of sexual slavery is the exercise of a power of
ownership involving control over the victim’s sexuality. The elements for
sexual slavery also threaten, once again, to relegate certain forms of sexual
slavery to enforced prostitution.
The addition of sexual slavery to the enumerated crimes under the Rome statute
was designed to codify the evolution in customary law of recognizing certain
situations as slavery. For example, the situation of the so-called “comfort
women” to the Japanese army during the Second World War was incorrectly
labeled as enforced prostitution. They were not prostitutes. They were
kidnapped, coerced and deceived into sexual slavery.[20] Significantly, these
crimes were not prosecuted before the Tokyo Tribunal notwithstanding that it is
one of the most brutal examples of systematic sexual violence in the history of
humankind. This illustrates the importance of not reinstating the diminishment
of sexual slavery. We must not revoke the important achievement in the Rome
statute through the elements of crime. If the elements of sexual slavery
continue to emphasize the commercial exchange element, situations of sexual
slavery which do not contain such an exchange, such as situations similar to the
“comfort women” experience, could be inappropriately relegated to enforced
prostitution.
The elements of sexual slavery in the rolling text must therefore be modified to
de-emphasize the commercial exchange element.
Enforced sterilization. The footnote in the rolling text which states
that the deprivation of biological reproductive capacity does not include birth
control measures must be rejected. “Birth-control” is a broad term capturing
many forms of contraception, including sterilization.[21] Since sterilization is
a form of birth-control, the footnote deprives the crime of enforced
sterilization of all meaning. The element of “depriving a person of
reproductive capacity” adequately states the crime. Sterilization involves the
act or process of depriving a person of the ability to produce offspring.[22] A
person is not deprived of reproductive capacity or ability where he or she can
stop using a contraceptive measure such as birth-control pills and reverse its
impact at will. Use of birth-control measures in this way would not qualify as a
deprivation of reproductive capacity for the purposes of this crime under the
statute.
For the same reason, it is impermissible to exclude birth-control measures
aiming at controlling the growth rate of a nation’s population, as proposed in
PCNICC/1999/WGEC/DP.45.[23] It is also necessary to change or, at least, further
explain the term “genuine” consent. This is not a term used in international
medical practice and could be read to exclude the international legal and
ethical principle that consent must be “voluntary and informed”. [24] We
recommend that the term “genuine” be changed to “voluntary and informed”
consent or that the latter terms be included in the list of conditions
precluding consent that is presently in footnote 19. Otherwise, there is the
danger that enforced sterilization involving deception and even coercion will
not be a crime under the statute.
Forced Pregnancy. There should be no deviation from the definition of
forced pregnancy in article 7(2)(f) of the Rome statute. In particular, it is
important to avoid adding a specific intent requirement for elements of the
crime which are not contained in the Rome statute definition.[25] The definition
in the statute requires that there be a specific intent only regarding the act
of confinement, and not for the other elements of the crime. The current rolling
text is correct and should not be changed. In particular, delegates should
reject any proposals which seeks to import a specific intent for any other
element of this crime.
Sexual Violence. The crime of sexual violence should not be restricted to
those of a gravity comparable to offences in article 7(1), subparagraph (g), as
currently done in the rolling text. Rather, it should be comparable to all the
offences under the statute or at least all offenses in article 7(1). The
proposed limitation to paragraph. 7(1)(g) would mean that sexual violence
comparable in gravity to grave breaches or serious violations—which do
constitute war crimes-- would not also constitute a crime against humanity. The
current elements would also narrow the crime from its current application under
international law.
The jurisprudence of the Tribunals recognizes that there are degrees of sexual
violence which may involve no touching at all. For example, the existing
jurisprudence recognizes forced nudity as the crime against humanity of inhumane
acts.[26] However, under the current elements, forced nudity may be read out of
sexual violence because it may not be considered comparable to the other sexual
violence crimes in paragraph 7(1)(g). Persecution (Article 7(1)(h)) The proposal
in footnote 21 that the fundamental rights be qualified as being universally
recognized diverges from the Rome language and is a further retreat from current
international law. Persecution has, since Nuremberg, been understood to involve
acts which may not be violent or even severe standing alone, but, when taken
together and in light of the fact that they are targeted against a particular
group, amount to a crime against humanity.[27]
For example, the persecution of the Jews under Nazi Germany involved a
progression of violation of rights, starting with the deprivation of rights of
citizenship and economic and property rights, and then leading to arrest and
confinement in concentration camps, torture, deportations, slave labor and
finally murder.[28] It was not necessary that the rights infringed at the
earlier stages of the persecution were “universally recognized” or even that
they were fundamental violations of international law. Rather, persecution was
proven by showing deprivation of rights accorded under national law. It is
sufficient that there be consensus among states that the rights are fundamental.
The ICTY Trial Chamber in the Kupreskic case defined persecution as the
gross or blatant denial, on discriminatory grounds, of a fundamental right, laid
down in international customary or treaty law, reaching the same level of
gravity as the other acts prohibited in Article 5.[29]
The Trial Chamber further noted that the definition of persecution under the
Rome Statute is narrower than customary international law because it requires a
connection to an act under article 7 or crime under the statute.[30] Given the
limits already built into the definition of persecution under the Rome statute,
it is particularly imperative that the elements of persecution not further limit
it. Finally, it is important to note that human rights need not be universally
recognized for them to be universal, fundamental or even jus cogens. If
it were, this would lead to the ludicrous outcome that violation of rights would
not be condemned until all violators agreed.[31] The international condemnation
of apartheid showed that universal recognition is not necessary.
Enforced Disappearances (Article 7(1)(i)). The elements of enforced
disappearances in the rolling text require that the same accused person commit
the different stages of the crime. The nature of the crime of enforced
disappearances is such that many actors are involved. It is unrealistic to
expect that one person would be involved at all the different stages. Thus, the
elements of enforced disappearances should be changed to reflect the nature of
the crime.
Torture (Articles 8(2)(a)(ii) and 8(2)(c)(i)). The definition of torture
under war crimes should be revised to conform to the definition in the crimes
against humanity rolling text. In particular, no purposes should be listed as an
element of torture. This would be consistent with other international legal
instruments. For example, the language in the UN Convention against Torture and
the Inter-American Convention to Prevent and Punish Torture makes clear that the
purposes listed therein are illustrative only and are not exhaustive.[32] In the
event that the purposes are to be articulated in the war crimes definition, the
purposes clause should include “or any reason based on discrimination of any
kind” as found in the Torture Convention.
The purpose of discrimination was consciously added to the definition during the
drafting of the Convention to expand those articulated in the Declaration on the
Protection of all Persons from Being Subjected to Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment. This demonstrates the importance
of discrimination as a purpose.[33] In addition, the Trial Chamber of the ICTY
in the case of The Prosecutor v. Delalic et al found that rapes charged
as torture in that case were inflicted upon two female victims because they were
women. The Chamber stated, “this represents a form of discrimination which
constitutes a prohibited purpose for the offence of torture”.[34] The
Inter-American Commission on Human Rights has also recognized that “[r]ape and
the threat of rape against women also qualifies as torture in that it represents
a brutal expression of discrimination against them as women.”[35] [1] Universal
Declaration of Human Rights, art. 2, CEDAW, articles 2 and 15. See also the International
Convention on Civil and Political Rights, articles 2, 3, 14, and 26; Fourth
Geneva Convention, article 3(1), 27, Protocol I, art 75, Protocol II, art.
4(1); and the Beijing Platform for Action. [2] The integration of sexual
violence in the prosecution of the other grave breaches has been the practice of
the ICTY and ICTR. Acts of sexual violence have been adjudged as constituting
torture in Tadic, Furundzija and Delalic, and charged as torture
and enslavement in the Foca indictments, and as wilful killing in Tadic. Prosecutor
v. Furundzija, ICTY, IT-95-17/1-T 10, 10 December 1998, para. 176; Prosecutor
v. Delalic et al, (Case No. IT-96-21-T), 16 November 1998, paras. 941 and
963, Foca (Gagovic) Indictment of the ICTY (26 June 1995), Counts 56-59.
The historic Akayesu decision of the ICTR adjudged crimes of sexual and
reproductive violence as constituent acts of genocide and forced nudity and
sexual entertainment as inhumane acts under crimes against humanity at the same
time as it recognized rape as a form of torture. Prosecutor v. Akayesu,
ICTR, ICTR-96-4-T, 2 September 1998, paras 505-509, 516, 594,597, and 688. [3]
Article 6, para. 3 in PCNICC/1999/L.5/Rev.1/Add.2, p.5. [4] We note a proposal
which contains this principle in the Proposal submitted by Canada and Germany in
PCNICC/WGEC/DP.36 which should be taken up at this PrepCom session. [5] UN Doc.
A/RES/48/104, 20 December 1993, article 4. See also The Vienna Declaration
and Programme for Action, approved by the World Conference on Human Rights,
which states: “Gender-based violence and all forms of sexual harassment and
exploitation, including those resulting from cultural prejudice and
international trafficking, are incompatible with the dignity and worth of the
human person, and must be eliminated.” UN Doc. A/CONF.157/23 , 12 July 1993,
para. 18. More generally, para. 5 states: While the significance of…various
historical, cultural and religious background must be borne in mind, it is the
duty of States, regardless of their political, economic, and cultural systems,
to promote and protect all human rights and fundamental freedoms.” [6] See
Recommendation 19. [7] The Convention on the Elimination of All Forms of
Racial Discrimination prohibits all discrimination in relation to “the
right to marriage and choice of spouse.” 660 U.N.T.S. 195, entered into force,
4 January l969, arts. 2,4, and 5(d)(iv). Restrictions on “intermarriage”
were explicitly condemned b y the Apartheid Convention. See International
Convention on the Suppression of the Crime of Apartheid, 1015 U.N.T.S. 244,
entered into force July 18, l976, art. 2(d). [8] Slavery Convention, 60
L.N.T.S. 253, entered into force Mar. 9, l927, arts. 2 and 6 (“states must
bring about the complete abolition of slavery in all its forms…”) and Supplementary
Slavery Convention on the Abolition of Slavery, the Slave Trade and Institutions
and Practices Similar to Slavery, 266 U.N.T.S. 3, entered into force Apr.
30, l957, prohibits enslavement practices within the family, such as forced
marriage, exploitation of child labor, and child marriages. Arts. 1 and 2. [9] Convention
on the Rights of the Child requires measures “to protect the child from
all forms of physical or mental violence, injury or abuse, …maltreatment or
exploitation, including sexual abuse, while in the care of parent(s), legal
guardians(s),….” U.N. Doc. A/Res44/49 (1980),, art. 19. See also Declaration
on the Elimination of All Forms of Intolerance and of Discrimination Based on
Religion and Belief, U.N. Doc. A/36/51 (1981) (art 5(5): “Practices of a
religion or beliefs in which a child is brought up must not be injurious to
his[/her] mental health or…full development….” [10] para. 552. See also
para. 555 in which the Chamber states: “
The available case-law seems to indicate that in these cases some sort of
explicit or implicit approval or endorsement by State or governmental
authorities is required, or else that it is necessary for the offence to be
clearly encouraged by a general governmental policy or to clearly fit within
such a policy.” [11] Prosecutor v. Akayesu, pt 7.8. [12] Convention
against Torture, art. 1. [13] The Trial Chamber stated: “Like torture,
rape is a violation of personal dignity, and rape in fact constitutes torture
when inflicted by or at the instigation of or with the consent or
acquiescence of a public official or others person acting in an official
capacity.” [emphasis added], para. 597-8. [14] G.A. Res. 47/133, 47 U.N. GAOR
Supp. (No. 49) at 207, U.N. Doc. A/47/49 (1992), 18 December 1992, article 5.
[15] International law regarding state responsibility for violations of human
rights constituting crimes is instructive on this issue. The Inter-American
Court of Human Rights, in the case of Velasquez-Rodriguez, dealt with
state responsibility for the disappearance of Velasquez.
It recognized that an illegal act which is initially not directly imputable to a
State, for example, because it is the act of a private person, can lead to
international responsibility of the State if the state fails to prevent the
violation or to respond to it as required by their international obligations.
(1998), Ser. C, No.4, 9 Hum. Rts L. J. 212 (1988). [16] Supplementary Convention
on the Abolition of Slavery, arts. 1,2, and 6. [17] Bassiouni, Crimes Against
Humanity in International Criminal Law, p. 258. [18] Webster’s New
International Dictionary. [19] Supplementary Convention on the Abolition of
Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 30
April 1957, arts. 1 and 6. [20] Final report submitted by Ms. Gay McDougall,
Special Rapporteur on Systemic Rape, Sexual Slavery and Slavery-like practices
during armed conflict, 22 June 1998, UN Doc. E/CN.4/Sub.2/1998/13, see Appendix.
[21] The guidelines of the World Health Organization lists sterilization as a
form of contraception – the common term for birth-control in the reproductive
health field. [22] The New Shorter Oxford English Dictionary defines
“sterilize” as “to deprive of the ability to produce offspring”. [23]
Such a provision would contravene the right to make reproductive decisions
“freely and responsibly” and “free of discrimination, coercion and
violence as expressed in human rights documents.”
This right is based on the fundamental human rights to protection inter alia of
security of person, including physical and mental integrity, and liberty, and
the right to found a family recognized in the basic international and regional
instruments. See, International Conference on Population and Development, Cairo,
Egypt 5-13 September 1994, Programme of Action, A/Conf. 171/13 (18 October l994)
[hereinafter “ICPD”], para. 7.3. [24] Ibid., at paras. 7.3, 7.17. The
Programme explicitly precludes coercion, use of incentives and disincentives, or
the imposition of “demographic goals…in the form of targets or quotas for
the recruitment of clients.” Para. 7.12. [25] Some have proposed adding
language requiring that the woman be forcibly made pregnant with the intent to
affect the ethnic composition of any population or carrying out other grave
violations of international law. This is adding a specific intent requirement to
the act of forcibly making pregnant. [26] Prosecutor v. Akayesu, ICTR,
ICTR-96-4-T, 2 September 1998, para. 688. [27] Prosecutor v. Kupreskic et
al, IT-95-16, (14 January 2000), para. 615(e). [28] US v. Ernst von Weizsäcker
(the Ministries Case), NMT, Vol. XIV at p. 471, cited in Prosecutor v.
Kupreskic et al, ibid, para. 599. [29] Ibid, para. 621. [30] Ibid, para.
580. [31] The Beijing Declaration and Platform for Action reflects the
unqualified rejection of a strenuous effort, led by the Vatican, to limit
women’s rights to those which were “universally recognized.”
The Platform, however, reaffirms that women’s right are “an inalienable,
integral and indivisible part of universal human rights and fundamental
freedoms.” Beijing Declaration and the Platform for Action, General Assembly,
Report of the Fourth World Conference on Women, U.N. Doc. A/Conf.177/20 (1995),
Declaration, para. 9; Platform, paras. 2, 212. [32] Article 1 defines torture as
“any act by which sever pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him or a
third person information…” [emphasis added]. The Inter-American Convention
to Prevent and Punish Torture defines torture as “any act intentionally
performed whereby physical or mental pain or suffering is inflicted on a person
for purposes of criminal investigation, as a means of intimidation, as personal
punishment, as a preventive measure, as a penalty, or for any other purpose.”
[emphasis added], article 2. [33] Herman Burgers and Hans Danelius, The United
Nations Convention against Torture: A Handbook on the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, p. 118, ISBN
90-247-3609-9 (1988). [34] para. 941. [35] Report on the Situation of Human
Rights in Haiti, OEA/Ser.L/V/II.88, Doc.. 10 rev. 9(1995), para. 134.
|
