Elements Annex, December 1999, Women's Caucus

Strengthening Advocacy in Women's Human Rights and International Justice

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WOMEN'S CAUCUS ADVOCACY
IN ICC NEGOTIATIONS

Recommendations & Commentary for Elements Annex Part I

Submitted to the November 29 � December 17, 1999
Preparatory Commission for the International Criminal Court

Summary of Recommendations:
I. Statement of Gender Integration.

The Elements Annex should contain a statement that recognizes that crimes of sexual violence may be charged both as sexual violence crimes and as genocide, other war crimes and other crimes against humanity, when the requisite elements of those crimes are met.

II. War crimes of employing poisonous and other prohibited weapons.

The Elements should not impose requirements that the prohibited weapons be specifically designed to cause death, nor that lack of knowledge of a weapon�s impermissibility need be shown.

III. With respect to crimes against humanity, the Rome Statute�s definitions should be followed.

The Elements of the chapeau to crimes against humanity and of the crimes of extermination, enslavement, torture and persecution should not deviate from their definitions under article 7(1) and 7(2) of the Rome Statute.

Gender Integration

The Elements Annex should contain a statement that recognizes that crimes of sexual violence may be charged both as sexual violence crimes and as genocide, other war crimes and other crimes against humanity

Commentary:
A general statement regarding the need to integrate sexual violence crimes into the other crimes would ensure that violence which occurs mostly to women be treated with the same seriousness as crimes which happen to both men and women. This approach is required by the principle, codified in article 21(3) of the Rome Statute, against gender-based discrimination in the application and interpretation of law and with the principle of non-discrimination against women in various human rights and humanitarian treaties, including the Universal Declaration of Human Rights and the Convention on the Elimination of All Forms of Discrimination against Women and the Geneva Conventions.¹
The principle against gender discrimination 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.
A clear statement that sexual and gender violence must be treated as other offenses is required to acknowledge the critically important jurisprudence of the Court as well as to give effect to the �also constituting� language in 8(2)(b)(xxii) and 8(2)(e)(vi) of the war crimes section in the statute. The negotiating history makes clear that the overarching purpose of that language was not to operate as a threshold of severity, but to ensure that sexual violence would not be treated exclusively as a separate category of offense.²
This, in turn, reflects the jurisprudence of the ICTY and ICTR, where acts of sexual violence have been charged and/or adjudged as constituting one or more of the enumerated grave breaches of humanitarian law. For example, in Tadic, sexual violence was charged as willful killing and torture, though not proven causally as willful killing. Rape also has been charged and recognized as torture by the ICTY Trial Chamber in the cases of Furundzija and Delalic. The Foca indictments which have been confirmed by the Trial Chamber charge rape and sexual violence as torture and enslavement.³ 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.⁴
While the inclusion of rape and other forms of sexual violence within the Court�s jurisdiction was a crucial step toward ending the historic trivialization of violence against women, it is also essential to have an explicit direction to integrate crimes of sexual and gender violence in the prosecution of the other crimes where they meet the elements thereof. Otherwise, sexual violence might not be included when the charges of torture and other general violations are drawn.
Moreover, where the elements of sexual crimes differ from those of the non-explicitly sexual crimes, this might affect whether a conviction is obtained. For example, the ICTY in Furundzija convicted the defendant as a co-perpetrator to rape as torture but only as an aider and abettor to rape as a crime against humanity. For these reasons, the failure to treat sexual violence as the actus reus of other grave crimes would also risk that sexual violence be treated, once again, as less important than the non-sex-specific crimes.
War Crimes

Article 8(2)(b)(xvii) and (xviii): Employing Poisons or Asphyxiating, Poisonous or Other Like Methods.
The crimes of employing poisons or asphyxiating, poisonous or other like methods should not be limited to those �specifically designed to cause death,� and lack of knowledge of a weapon�s impermissibility is not a proper element or defense.

Commentary:
After intense negotiation in Rome, the Court was given jurisdiction over these weapons only in international armed conflict. Under international law, the illegality of such weapons does not depend upon whether they cause death, as suggested in the US Proposal, and the addition of this criteria is not consistent with the Rome Statute. Earlier Conventions do not contain such limitations, but are generic like the Rome Statute.⁵ Specifically, the 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons defines �toxic� chemicals as �[a]ny chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals.� Likewise, the Convention prohibits �[m]unitions and devices, specifically designed to cause death or other harm through the toxic properties of those toxic chemicals.�⁶ (italics supplied).
Additionally, it would be inappropriate to require that the accused was aware of the weapon�s prohibited status. This kind of mistake of law is not a defence under the Rome Statute and should not be intruded here through the elements� annex. Awareness of the nature of the weapon satisfies the mental element of the crime under article 32(2) of the Rome statute.
Crimes Against Humanity

The chapeau to crimes against humanity and the elements of the crimes of extermination, enslavement, torture and persecution should not deviate from their definitions under article 7(1) and 7(2) of the Rome Statute.

Article 7(1) � The Chapeau
Recommendation: The Rome Statute�s definition of the threshold required to establish a crime against humanity should be adopted without limitation in the Elements Annex.
Commentary:
The threshold for crimes against humanity was one of the most intensely negotiated items in Rome. In a number of respects, it sets a higher threshold than that required under customary international law. Proposals, particularly that of the United States,⁷ designed to further limit this threshold should be rejected. For example:
Widespread or systematic attack: The clear disjunctive approach of the customary law is already compromised by the definition of attack in art. 7(2) and there should be no further definition of these terms in the Elements Annex. The US proposal that �widespread� be defined as �massive in nature and directed against a large number of persons. . .[and as] exclud[ing] isolated offenses� must be rejected. US Paper Terminology note 24. The term �massive� is vague and colloquial when applied to non-physical matters (or things which do not have a mass). Rather, the Court should be left to determine whether the violence occurs on a sufficient scale, which may differ, depending, for example, on the size of the population affected.
In addition, the term �systematic� should not be further encumbered in the Annex. �Systematic� connotes a process of organization: but it does not require either a formal or �preconceived� plan, as the US Paper suggests.⁸ Rather, as the ICTY has said, the �policy need not be formalized and can be deduced from the way in which the acts occur.�⁹ As to the criteria of both widespread and systematic, the proposed exclusion of isolated offenses is also inappropriate. US Paper, Terminology notes. 21 and 24. It ignores that one planned attack may do widespread harm.
Finally, the work �attack� is more than amply defined in article 7(2)(a). It should not be limited by such terms as �directly intended to harm or cause harm.� The �force or compulsion language� is also unnecessary, confusing, and limits the scope of coercive circumstances and conduct recognized in relation to the enumerated crimes. See, US Paper, Terminology note 2.
Knowledge of the Attack. It is likewise unnecessary to further define the element of knowledge required by the chapeau. The Rome Statute makes clear that knowledge �means awareness that a circumstance exists or a consequence will occur in the ordinary course.� Art. 30(3). The ad hoc Tribunals have developed jurisprudence on this point, making clear that awareness of the circumstances or consequence can be actual or constructive, whereby proof of willful blindness permits an inference of the requisite awareness.¹⁰ To require that each individual know the plan or details of the larger attack would limit responsibility for crimes against humanity only to those involved in planning or in command or superior positions, contrary to international law and the Rome Statute.
Article 7(1)(B) - Extermination
Recommendation: Extermination should be defined pursuant to Article 7(2)(b) to "include[] the intentional infliction of conditions of life, inter alia, the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population."
Commentary:
Article 7(2)(b) of the Rome Statute defines extermination. Nonetheless, the US paper urges that the elements exclude the statutory definition and be limited to instances where the accused acted intentionally to kill or cause the death of a part of a population. The statutory term �destruction,� however, is not even limited to physical destruction (as in genocide) nor to the act of killing, but must be interpreted on a case by case basis to include any attack or acts which threatens the continued existence or integrity of any group. Extermination explicitly includes deprivations that inflict serious health- and life-threatening conditions as well as those which threaten the continuity of the part of the population affected, such as causing the dispersion of a population, which has been identified as genocidal where the genocidal intent is shown.¹¹ And, as the Akayesu judgment established as to genocide, the crime of extermination can be proved by the use of rape for the purposes of bringing about the destruction of a part of the population.
It is important to retain, as the Rome Statute does, the uniqueness of the crime of extermination. On the one hand, under the Rome Statute, the crime of extermination is distinct from genocide in that it does not require the targeting of a population to be based on nationality, race, ethnicity or religion; it does not limit the actus reus to those which are likely to cause the physical destruction of the group, and extermination does not require the specific intent that is unique to genocide.¹² On the other hand, extermination is distinct from murder as a crime against humanity. Although systematic or widespread acts which kill or cause death can be charged as extermination, to limit extermination to such acts would essentially render the crime against humanity of extermination redundant of the crime against humanity of murder. The Rome definition carefully and clearly negates this possibility.
Finally, contrary to the claim in the US proposal, a siege or an embargo would not be a justifiable defense when it creates a condition of life that threatens to bring about the destruction of a part of the population, such as through starvation. Lawful use of the tactic of embargo to coerce a desired act or policy change is not only narrowly limited under international law; an embargo is not lawful if it imposes conditions, such as the deprivation of food or medicine on a population.
Article 7(1)(C) - Enslavement
Recommendation: The definition of enslavement in the Rome Statute should constitute the elements of the crime of enslavement in the Elements Annex.
Commentary:
Article 7.2(c) of the Rome Statute defines �enslavement� as �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 in persons, in particular women and children.�
This definition captures the essential elements of enslavement under international law and should be adhered to in the Elements Annex. The Rome Statute�s definition is based on the essential indicia of slavery, as set forth in article 1 of the Slavery Convention: �the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.� Slavery takes many forms and involves a broad range of practices. The Elements Annex should not limit the crime of enslavement by singling out a limited set of practices such as purchasing, selling or confinement as suggested in the US paper and partially adopted in the war crimes text as to sexual slavery.
i) The elements of enslavement must include slavery-like practices.
Under international law, the crime of enslavement encompasses a range of slavery-like conditions; it is not restricted to a particular form or mechanism of enslavement such as purchasing or selling a person; it does not require confinement or similar loss of liberty; and it does not preclude any compensation to the victim. Rather, the hallmark of slavery is the loss of right to control the use of one�s body or the loss of autonomy or ownership over one�s body. Since the exercise of ownership takes many different forms, it is best to adopt the generic definition of enslavement in the Rome Statute and leave it for the Court to apply that definition consistent with international law.
In its pre-trial brief in Prosecutor v. Dragoljub Kunarac, the ICTY Prosecutor likewise emphasises �that the essence of slavery�is the subjugation of an individual to the powers of ownership of another.� At the same time, the brief identifies a list of factors which may occur in slave-like conditions as �descriptive rather than definitional.�¹³ The factors listed there, none of which is an essential criteria of slavery, include: control of movement, control of physical environment, psychological control, measures taken to prevent or deter escape, force, threat of force or coercion, duration, assertion of exclusivity, subjection to cruel treatment or abuse, control of sexuality, forced labour, and ability to buy or sell. The multiple ways that enslavement can be imposed need not be detailed in the statute. Identifying such forms of enslavement risks foreclosing the prosecution of other forms recognised by international law as well as of newer forms of control (cyber and otherwise). While neither ad hoc Tribunal has had the opportunity to issue a judgement on enslavement, the ICTY decisions confirming the FOCA and Kunarac indictments of sexual enslavement, discussed below, reflect a similarly broad understanding of the circumstances that create enslavement.
Enslavement includes a broad range of involuntary forms of labour, including forced sexual and domestic labour. Forced labour is one significant aspect of enslavement, which itself takes many forms. It is not limited to situations of purchase and sale, but can be imposed through physical, psychological as well as economic coercion. Enslavement includes the exercise of ownership over a person through both non-sexual and sexual labour or sexual violence.¹⁴ It also includes forced wage as well as non-wage labour., including forced domestic labour..
The Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery (hereinafter Supplementary Slavery Convention) identifies additional forms of enslavement.¹⁵ For example, debt bondage, which does not involve purchase or sale or confinement is defined as: �the status or condition arising from a pledge by a debtor of his personal services or those of a person under his control as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt, or the length and nature of those services are not respectively limited and defined.�¹⁶
Forced marriage and child labour have also long been recognised forms of enslavement under international law. Article 1 of the Supplementary Slavery Convention prohibits the following slave-like institutions and practices:
(c) Any institution or practice whereby:
(i) A woman, without the right to refuse, is promised or given in marriage on payment of a consideration in money or in kind to her parents, guardian, family or any other person or group; or
(ii) The husband of a woman, his family, or his clan, has the right to transfer her to another person for value received or otherwise; or
(iii) A woman on the death of her husband is liable to be inherited by another person;
(d) Any institution or practice whereby a child or young person under the age of 18 years, is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour.

The report of the Special Rapporteur on Systematic Rape, Sexual Slavery and Slavery-like Practices during Armed Conflict reflects a comprehensive treatment of the forms and law relating to slavery-like conditions imposed on women in war. The Report emphasises that practices such as the detention of women in "rape camps" or "comfort stations"; forced temporary "marriages;" domestic servitude and other practices involving the treatment of women as chattel, are both in fact and in law forms of slavery and, as such, violations of the peremptory norm prohibiting slavery.¹⁷
Enslavement does not require confinement. Situations of enslavement, including sexual slavery, occur without confinement. In debt bondage, it is the unsatisfiable debt together with the absence of economic alternatives and/or the fear of sanction or capture for not continuing to work that operates as effectively as confinement to maintain a person in slavery. Likewise, in the context of sexual slavery, a threat of harm to oneself or others often operates to coerce submission without the necessity of confinement. The Foca Indictment provides an example of a situation where the victim or victims had apparent freedom to move around, yet were still enslaved. The indictment charges that women were held in a house, subjected to repeated rapes and forced to perform domestic labour.¹⁸ Notwithstanding that they had a key and were not guarded, they could not escape the enslaving conditions and the Chamber confirmed the charge of enslavement.
Sexual as well as forced labour may also occur where a person lives at home but submits to a slave-like condition to avoid another harm. Some Rwandese women acquiesced to forced temporary marriage and sexual slavery largely to enable their children to survive the genocide. Some were locked up or confined in the traditional sense. Others stayed to protect themselves or their family members from harm threatened by their so-called �husband� should they try to escape. Still others who were �free� to leave could not because of the risk of harm or death from third parties committing genocide.
Enslavement does not require a sale or exchange or an equivalent trade in persons. As noted above, many forms of enslavement recognised by the Supplementary Slavery Convention do not require a sale or exchange; rather the assumption of ownership or conditions such as through coercion, threat or debt bondage are sufficient when they create a situation of ownership. Likewise, the Special Rapporteur on Systematic Rape, Sexual Slavery and Slavery-like Practices During Armed Conflict, recognises that the exchange of money or something of value is not a necessary element of the crime of enslavement.¹⁹ Thus the US proposed elements, as well as the war crimes rolling text, in emphasising purchase or sale or equivalent exchange, or deprivation of liberty in the sense of freedom of movement harks back to a narrower, outdated understanding of enslavement. It ignores that the crime of enslavement is accomplished when a power of ownership is exercised as a result of force, coercion, threat, deceit, abuse of authority, etc. For example, in the Kunarac case, the ICTY Trial Chamber confirmed the following charge of enslavement where no purchase or sale was involved:
During the entire period of her detention at this house, [the witness] was subjected to repeated rapes. In addition to being repeatedly raped, the witness was beaten. She also had to clean the house and obey each order given to her by the accused and his subordinates. [The witness] was treated as the personal property of Dragoljub Kunarac and his unit.²⁰

Likewise, while trafficking may involve a purchase or sale or equivalent exchange to obtain a person, this is not a necessary element. People can be recruited, deceived or coerced into into being trafficked. Again, it is a hide-bound view of slavery, which ignores the Supplementary Slavery Convention as well as the developments in customary international law, to make the purchase or sale of a person a necessary element.
Enslavement is not negated by compensation to the victim. Payment or other benefit received for labour does not preclude the crime of either enslavement or sexual slavery.²¹ Debt bondage usually involves some form of compensation even if inadequate. Forced labour can be paid labour. Rather, it is the loss of ownership rights to one�s self that makes forced labour slavery, even if one is given some money or other compensation. Again, the US proposal that the labour be �without compensation� would exclude many situations considered slavery under international law and should be rejected as an element of enslavement.
The erroneous notion that enslavement is incompatible with compensation would also exclude all schemes of forced prostitution where the victim receives some degree of compensation. This would be a serious retrogression given the recognition that forced prostitution has been a stigmatising euphemism�suggesting immorality and a greater degree of voluntarism--. This has obscured the fact that most situations of enforced prostitution constitute a form of sexual enslavement as well as exacerbated the suffering of women who have felt stigmatised by the appellation prostitutes.
Accordingly, it is important that the elements of enslavement not preclude situations currently recognised as slavery or slave-like practices under international law by including restrictive elements such as confinement, the exchange of money or value to obtain the person, or non-compensation to the victim. The essential elements of enslavement are already articulated in article 7(2)(c) of the Rome Statute. To avoid either narrowing the crime improperly or encumbering the Elements Annex unnecessarily with extensive detail, the elements of enslavement should reiterate the definition contained in article 7(2) in the Rome Statute
ii) The elements of enslavement must encompass all acts in the chain of slave trading and trafficking.
According to the 1926 Slavery Convention, slave trade includes all the stages involved in the capture, acquisition or disposal of a person, including every act of trade or transport in slaves.�²² In addition, since the definition of enslavement in the Rome Statute explicitly includes exercising ownership in the course of trafficking, it follows that the elements of enslavement must capture the full range of different acts involved in process of enslaving a person.
The crime of trafficking is currently being defined by the Committee on the Elaboration of a Convention against Transnational Organised Crime in Vienna for a draft Protocol to Prevent, Suppress and Punish Trafficking in Persons. The Women�s Caucus believes that the exercise of defining trafficking is best left to this Committee working on the draft Protocol since it has time and expertise, not available to the ICC Preparatory Commission, to perform this task. Thus, it is preferable that no definition of trafficking be included in the ICC Elements of Crime in order to avoid the possibility of different definitions in different international treaties.
At the same time, it is essential that this PrepCom take care not to define enslavement in the Elements Annex so as to exclude central aspects of trafficking. As suggested above, the crime of trafficking includes recruitment, kidnapping, force, fraud, deception or coercion and is not limited to purchase or sale. In a position paper on the draft Protocol, the Special Rapporteur on Violence against Women recommends that the trafficking definition encompass all persons involved in the trafficking chain, including the person at the beginning of the chain, who provides or sells the trafficked person, and the person at the end of the chain, who receives or purchases the trafficked person, holds the trafficked person in forced labour, or profits from that labour.²³
For all these reasons, it is preferable to include only the language of the Rome Statute��the exercise of such power in the course of trafficking�-- in the Elements Annex in order to embrace the full range of the conduct through which the perpetrators of this crime subject women, men and children to enslavement. In the alternative, if an illustrative list is preferred, it must include some of the more common methods of trafficking, in addition to purchase or sale, such as recruitment, deception, and coercion for this purpose.
Article 7(1)(F) - Torture
Recommendation: The elements of torture should not include any purposes, or in the alternative, such specified purposes should include �discrimination of any kind�
Commentary:
The principle that article 7(2) establishes the intended elements of crimes applies as well to torture as a crime against humanity even though the elements differ from the war crimes rolling text. According to two chief negotiators of crimes against humanity, the Diplomatic Conference intentionally did not identify purposes for which severe pain or suffering is committed in the definition of torture in article 7(2)(e).²⁴ The definition in article 7(1)(e) thus differs from the definition found in the Torture Convention and in the war crimes rolling text in that it does not require proof of certain purposes for which the severe pain or suffering was committed. The decision of the Diplomatic Conference must be respected here. And, it makes sense to omit any mention of purposes. The listing of purposes in the Torture Convention was never intended to be exclusive and, at least in the context of crimes against humanity, the Court should unquestionably be able to treat as torture �random, purposeless or merely sadistic infliction of severe pain or suffering.�²⁵
International law contains two approaches to defining torture. The UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) defines torture through requiring a showing of one of a non-exclusive but illustrative list of purposes. Another approach is found in the human rights conventions and interpretations which prohibit torture without either any delineation of purposes or with an unlimited one.²⁶ Likewise, the Geneva Conventions do not define torture in terms of purposes. The ICRC Commentary defines torture as �cover[ing] all forms of physical and mental torture and refers to the evolving human rights law approach, making clear that this definition does not limit the concept of torture under humanitarian law.²⁷
In our view, it is unnecessary and improperly restrictive in the context of the ICC to define or illustrate the purposes of torture. First, the elaboration of the purposes that would render violence torture was done for particular historical reasons. Prior to the UN Declaration on the Protection of all Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter Torture Declaration)²⁸ and UNCAT which followed, torture was understood as limited to the use of violence to extract confessions or break the will in the context of interrogation. The evolving recognition that the purpose of torture was not the prisoner�s information but his or her dignity and integrity, encouraged the articulation of purposes to ensure that the crime had the appropriate breadth.²⁹ Today, it is unnecessary to list the purposes for which torture is committed because the concept of torture both under humanitarian and human rights law is no longer so restricted.
Second, and most importantly, the Rome Statute chose to define torture through the unifying and essential element found in all the sources of international law-- the severity of the mental or physical suffering inflicted by torture. The definition in article 7(2)(e) of the Rome Statute should be adopted by the PrepCom. It is not only unnecessary but unwarranted to add to the statutory definition. With respect to the definition of torture in the war crimes rolling text, the Women�s Caucus recommends conforming that text to the approach advocated here by eliminating the list of purposes. In the event, however, that the list of purposes remain as an element in the war crimes definition of torture, it must be revised to reflect the leading conventional definition of torture�s purposes which include discrimination as a purpose.
Specifically, the rolling text for war crimes lists all the purposes contained in the UNCAT, except the final one: �or any reason based on discrimination.� The significance of this purpose is underscored by the fact that it was consciously added to the definition during the drafting of the UNCAT and, thereby, expanded the list of purposes articulated in its predecessor, the Torture Declaration.³⁰
The inclusion of discrimination as a purpose is particularly significant to the Women�s Caucus as it is to other identifiable groups which are subjected to torture because of their status. While rape and other forms of sexual violence are used for all the purposes articulated in the UNCAT, discrimination is, by definition, one of their purposes. For example, the ICTR identifies rape as a form of torture in the Akayesu judgment:

Like torture, rape is used for such purposes as intimidation, degrading, humiliation, discrimination, punishment, control or destruction of a person. Like torture, rape is a violation of personal dignity�.³¹ [emphasis added]

In the Delalic case, the Trial Chamber found that the rapes were inflicted upon two female victims because they were women and that this constituted a prohibited purpose for the offence of torture.³² In its Report on violations in Haiti, the Inter-American Commission on Human Rights, in explaining how sexual violence serves many of the delineated purposes of torture, interpreted the phrase �for any other purpose� in the Inter-American CAT to include the purpose of discrimination:

Rape and the threat of rape against women also qualifies as torture in that it represents a brutal expression of discrimination against them as women. From the testimonies and expert opinions provided in the documentation to the Commission, it is clear that in the experience of torture victims, rape and sexual abuse are forms of torture which produce some of the most severe and long-lasting traumatic effects.�³³

Thus, the elements of torture under war crimes should be revised preferably to conform to the definition found under article 7(2) of the statute, and, in the alternative, to include the purpose of discrimination among the elements of torture.
Article 7(1)(H) - Persecution
Recommendation: The definition of persecution in the Rome statute should form the elements of persecution in the Elements Annex.
Commentary
Persecution is also among those crimes already defined in the Rome Statute.³⁴ Consistent with the requirement that the elements should embody the Rome Statute and not diverge from it, the elements of persecution should follow the definition found in the statute, which is already narrower than the meaning of persecution in customary 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 discriminatorily targeted against an identifiable group, amount to a crime against humanity. For example, the Nuremberg Tribunal discussed the crime of persecution as starting with a series of discriminatory laws eliminating the Jews from the civil service, the professions, and economic life, and progressing to more intense forms of persecution such as segregating Jews into ghettos, confiscating Jewish property, prohibiting inter-marriage; and denying Jews the right to vote or to hold public office.³⁵
Subsequently, the International Law Commission defined persecution as acts which �seek to subject individuals or groups of individuals to a kind of life in which enjoyment of some of their basic rights is repeatedly or constantly denied.�³⁶ Persecution is also contained in article 18(e) of the Draft Code of Crimes (1996). Commentary (11) to the article states that the inhumane act of persecution may take many forms with its common characteristic being the denial of the human rights and fundamental freedoms to which every individual is entitled without distinction.
More recently, in the decision of The Prosecutor v. Tadic, the Trial Chamber describes the elements of persecution as the occurrence of a persecutory act or omission and a discriminatory basis for that act or omission on one of the listed grounds. The persecutory act must be intended to cause, and result in, an infringement on an individual's enjoyment of a basic or fundamental right. The Trial Chamber affirmed that the notion of persecutory act provides broad coverage including acts mentioned elsewhere in the ICTY Statute as well as acts which, although not in and of themselves inhumane, are considered inhumane because they are committed on discriminatory grounds.³⁷
Thus, the definition of persecution under the Rome Statute is narrower than customary international law. For example, article 7(2)(g) requires that the deprivation itself be a �severe deprivation of fundamental rights contrary to international law� and article 7(1)(g) requires a connection to an act under article 7 or crime under the statute. For this reason, it is particularly imperative that the elements of persecution not place further limits on recognizing acts of persecution as a crime under the ICC.
The U.S. proposal for elements of persecution diverges in two significant respects from the wording and intent of the Rome Statute. Firstly, the U.S. proposal requires that there be a deprivation of �life or other fundamental rights universally recognized under international law.,� instead of the Rome language �contrary to international law.� Universal recognition is not a requirement of the statute with regard to the rights protected, but is used as to the grounds of persecution. There is no basis for adding this new, potentially limiting, phrase as an element of the crime of persecution.
Secondly, the U.S. proposal also requires that the acts be committed �in conjunction with another offence within the subject-matter of the present Statute�. This differs substantially from the Rome Statute, which states that the acts must be carried out only �in connection with any act referred to in this paragraph (i.e. art. 7(1)) or any crime within the jurisdiction of the Court.³⁸ This means that for the acts listed under article 7, the connective acts do not have to satisfy the threshold for crimes against humanity; rather, it is sufficient to prove the commission of one of the acts listed in the subsection. The connection required by the statute is already a departure from the customary international law as it has evolved since Nuremberg.³⁹ The connection sought by U.S. proposal would reintroduce a significant new criteria to the statute which would nullify the independent crime of persecution and be contrary to the clear intent of the Rome Diplomatic Conference.
¹ UDHR, 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 next to final proposed language was �also amounting to a grave breach of (or serious violation of article 3 common to) the Geneva Conventions. � (italics added). This was changed to �also constituting precisely to emphasize the multiple possibilities of charging rape and other forms of sexual violence.
³ 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 (Gagovich) Indictment of the ICTY (26 June 1995), Counts 56-59.
⁴ Prosecutor v. Akayesu, ICTR, ICTR-96-4-T, 2 September 1998, paras 505-509, 516, 594,597, and 688.
⁵ See, e.g., Article 23(a) of the Regulations annexed to the Convention respecting the Laws and Customs of War on Land l907, and the Protocol for Prohibition of the Use of Asphyxiating, Poisonous of Other Gases and of Bacteriological Methods of Warfare (Geneva l925), in L. Friedman, The Laws of War: A Documentary History (1972) pp. 204, 207.
⁶ Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction , 29 April 1997, Articles II(2) and I(1)(b).
⁷ See Crimes against Humanity in PCNICC/1999/DP.4/Add.1 (hereinafter US Paper].
⁸ Terminology, note 2.
⁹ Prosecutor v. Dusko Tadic, Judgment, 7 May 1997, para. 653.
¹⁰ See Tadic Judgment, paras. 657, 658 and Tadic Appeal decision, 15 July 1999, para. 248.
¹¹ The Akayesu Judgment interpreted "deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part" in relation to genocide broadly, stating that it included "inter alia, subjecting a group of people to a subsistence diet, systematic expulsion from homes and the reduction of essential medical services below minimum requirement.", para. 505.
¹² According to the Akayesu Judgment, the specific intent required for genocide is limited to that crime: "Genocide is distinct from other crimes inasmuch as it embodies a special intent or dolus specialis." (Para 498).
¹³ Pre-Trial Brief at 37 and 42, respectively.
¹⁴ For example, sexual and reproductive violence was a routine aspect of African American slavery, both to produce more property in children and as part of the sexual service or labour demanded by the slaveowner and his family members. Sex work has been recognised by the International Labour Organisation as a form of labour. The Sex Sector: The economic and social bases of prostitution in Southeast Asia, ed. By Lin Lean Lim (ILO 1998).
¹⁵ Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 30 April 1957
¹⁶ Id, article 1(a).
¹⁷ E/CN.4/Sub.2/1998/13 para. 8 and 30.
¹⁸ Foca (Gagovic) Indictment, (26 June 1995), Counts 56-59. The indictment included the following facts under the charge of enslavement:
10.2 In contrast to Partizan Sports Hall, the detainees at Karaman's house had sufficient food. They were not guarded or locked inside the house. The detainees even had a key they could use to lock the door and prevent soldiers, not belonging to Pero Elez's group, from entering. The detainees were also given the telephone number of the Miljevina motel, and were told that they should call this number if any soldier without authorisation tried to enter the house. When the women did call this number, either RADOVAN STANKOVIC or Pero Elez would come to prevent other persons from entering the house. Although the detainees were not guarded, they could not escape. They had nowhere to go as they were surrounded by Serbs, both soldiers and civilians.
10.4 During the entire period of their detention at Karaman's house,FWS-75, FWS-87 and the other female detainees were subjected to repeated rapes and sexual assaults at night. All the perpetrators were Serb soldiers who belonged to Pero Elez's group. Among the soldiers who frequently raped FWS-75 and FWS-87 (vaginal and anal penetration) was RADOVAN STANKOVIC.

¹⁹ 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, para. 45.
²⁰ No IT-96-23-I, Amended Indictment (19 August 1998), para. 9.2 (Counts 14-17).
²¹ Kelly Askin and Dorean Koenig, Women and International Human Rights Law, vol. 1, Transnational Publishers, p.85.
²² Slavery Convention, 25 September 1926, article 1(2).
²³ �Position paper on the draft Protocol to Prevent, Suppress and Punish Trafficking in Women and Children, submitted by the Special Rapporteur on Violence against Women�, A/AC.254/CRP.13, 20 May 1999, p.3-5.
²⁴ Herman von Hebel & Darryl Robinson, �Crimes within the Jurisdiction of the Court�, The International Criminal Court: The Making of the Rome Statute, ed. Roy Lee, p. 99.
²⁵ Machteld Boot, Rodney Dixon & Christopher Keith Hall, Commentary on the Rome Statute of the International Criminal Court, p. 48, Otto Triffterer ed. (1999).
²⁶ Article 7 of the International Covenant on Civil and Political Rights states that �[n]o one shall be subjected to torture, or to cruel, inhuman or degrading treatment or punishment.� General Comment 7 of the Human Rights Committee states that �[a]s appears from the terms of this article, the scope of protection required goes far beyond torture as normally understood.� The Committee also emphasized the breadth of torture: �It may not be necessary to draw sharp distinctions between various prohibited forms of treatment or punishment. These distinctions depend on the kind, purpose and severity of the particular treatment.� The Committee also noted that torture occurs not only in prisons, but also in medical and educational institutions. Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, Human Rights Committee, General Comment 7, U.N. Doc. HRI/GEN/1/Rev.2 (29 March 1996). The European Convention for the Protection of Human Rights and Fundamental Freedoms prohibits torture as simply �[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment.� The Inter-American Convention Against Torture does list purposes but includes �for any other purpose,� which indicates that it is essentially unlimited. Article 1 provides that torture is: �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. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish.� Inter-American Convention to Prevent and Punish Torture, O.A.S.T.S. No. 67 OEA/ser.A/42.
²⁷ See, e.g., ICRC, COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS (Sandoz, Swinarski, Zimmermann, eds.)(1987) paras. 4532-4533.
²⁸ G.A.Res. 3452 (XXX) (9 December l975).
²⁹ See General Comment 7 at n. 26, supra.
³⁰ Herman Burgers & Hans Danelius, THE UNITED NATIONS CONVENTION AGAINST TORTURE�A HANDBOOK ON THE CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT 43 (1988).
³¹ See Prosecutor v. Jean Paul Akayesu, ICTR-96-4-T, 2 September 1998, para. 597.
³² Delalic judgement, paras 941 and 963.
³³ See Organization of American States, Inter-American Commission on Human Rights, Report on the Situation of Human Rights in Haiti, para. 134, OEA/Ser.L/V/II.88, Doc. 10 rev., February 9, 1995).
³⁴ The Rome Statute defines persecution as �the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity� (art. 7(2)(g)).
³⁵ One Hundred and Eighty-Seventh Day: Friday, 7/26/1946: Morning Session: Part 4I, in Trial of Major War Criminals before the International Military Tribunal. Volume XIX. Proceedings. 7/19-29/1946 and Nineteenth Day, Thursday, 12/13/1945, Part 19, Volume III. Proceedings: 12/1/1945-12/14/1945. Nuremberg: IMT, 1945, pp. 522-24..
³⁶ Report of the International Law Commission on the Work of its Forty-third Session, (1991) G.A.O.R., 46th sess. Supp. No. 10, U.N. Doc. A/46/10 ("I.L.C. 1991 Report"), at 236, quoted in Prosecutor v. Tadic, 7 May 1997, para. 703.
³⁷ Id. at para. 715. . The Tadic decision cites the definitions proposed by M. Cherif Bassiouni: �State Action or Policy leading to the infliction upon an individual of harassment, torment, oppression, or discriminatory measures, designed to or likely to produce physical or mental suffering or economic harm, because of the victim�s beliefs, views, or membership in a given category of victims for reasons peculiar to the perpetrator.� It also cites the definition by M. Le Gunehec of the Cour de Cassation in the Barbie case: �above all these crimes offend the fundamental rights of mankind; the right to equality, without distinctions of race, colour or nationality, and the right to hold one�s own political and religious opinions. Such crimes not only inflict wounds or death, but are aggravated by the voluntary, deliberate and gratuitous violation of the dignity of all men and women: these are victimised only because they belong to a group other than that of their persecutors, or do not accept their dominion.� Tadic, para. 695-6.
³⁸ Article 7 (1)(h).
³⁹ Article 6 of the London Charter provided that persecution needed to be committed �in execution of or in connection with any crime within the jurisdiction of the Tribunal,� because it did not have antecedents in the laws and customs of war. Control Council Law No. 10 eliminated this language. Control Council Law No. 10, 1952, art. 6(c). The 1954 Draft Code of Offences Against the Peace and Security of {}Mankind likewise dropped this connection.