By Haneen Shadeed
The Rome Statute of the International Criminal Court stipulates in Article 7, in order for an act to constitute a crime against humanity it must be part of a widespread or systematic attack. When looking into Art. 7(2)(a), it also stipulates that the aforementioned attack must be carried out in pursuance of a state or organisational policy. At first glance, one may perceive that the provision of systematicity and a pursuance of policy to be one and the same. That is, if the attack occurs at a number of times and is organised according to a certain pattern, we could render the existence of an authority carrying out these actions in order to achieve a perceived agenda.
Such a conclusion has been reached when we carefully study the jurisprudence of the International Criminal Tribunals of Rwanda and Yugoslavia, in addition to the International Criminal Court. The chambers of such tribunals and the ICC, at instances, accorded an attack’s pursuance of a policy to be characteristic of the systematic aspect of an attack. However, other cases have held separate stances on what might qualify an attack to be independently systematic.
For example, The Prosecutor in the Blaskić case when defining “systematic”, related it to the following of a plan or policy as it would “include the existence of a political objective[…]or an ideology,[in addition to] the implication of high level political and or military authority in the definition and establishment of the methodical plan” (at paragraphs 191 and 203). Whilst in the Kordić case, it was referred to as “a pattern or methodical plan” (at paragraph 174). What is worthy of noting is that the International Law Commission also associated systematicity with following a policy or plan.
Nevertheless, the associations made by the chambers of the ICC between systematicity and a pursuance of policy holds systematic at a higher threshold than the Statute may have intended for it to hold.
The logic upheld in the previous cases is that any systematic attack requires an extent of organisation and, as such, calls for the existence of an entity following a policy to implement it (See Ambos and Wirth, page 30). However, this is not the stance taken in all cases or situations at the ICC. As the Pre-Trial Chamber, in the Situation in the Republic of Kenya held, ‘systematic’ reflects an “organised nature of the acts of violence and the improbability of their random occurrence” and, accordingly, did not attach it to a policy (at paragraph 79). As was the chamber’s opinion in the Situation in the Democratic Republic of Congo, as it referred to systematic to entail a “pattern of incidents” (at paragraph 47).
An example of the coexistence of systematicity and a pursuance of state policy is in the Kenya case. At one end, local leaders and ODM supporters had planned to organise, facilitate and direct violence- the systematic aspect. At the other end, the planning was carried out through encouragement of the ODM and PNU (political organisations) and in turn reflected a furtherance of policy (see Situation in the Republic of Kenya above, at paragraph 83). More so, the PTC in the Bemba case opined that the systematic nature of an attack may be inferred and implicated through the state or organisation’s pursuance of a policy (at paragraph 33).
Furthermore, the content of the policy is to commit crimes against humanity. Taking this into consideration, a deliberate plan may be devised or organised for various purposes not pertaining specifically to committing crimes against humanity. Whilst also noting that the acts constituting an attack could be furthering a policy without them being systematic in essence; as multiple acts constituting an attack could take place in an extremely unorganized and random manner. This would not negate the existence of a policy but only demonstrates that the perpetrator may be of a reckless disposition and did not devise a manner through which they intended to further their agenda. Hence, a pursuance of policy manifests in the absence of systematicity.
Furthermore, it is important to note that Art. 7 of the Statute presents a disjunctive test to be applied to the attack. That is, the attack may either be widespread or systematic and is not obliged to subscribe to both characteristics. However, when taking into account previous jurisprudence in considering that the systematic characteristic entails an existence of a state or organisational policy, the need for the policy criterion in the Statute would be rendered void and its existence would not be justified.
However, if we do bear in mind that the systematic characteristic does equate to a pursuance of a policy, this would imply that any act or acts qualified as widespread would not need to meet the policy criterion- due to the disjunction presented between widespread and systematic. Consequently, this would mean that any attack that targets a large multiplicity of individuals would render it to be a crime against humanity and fall within the jurisdiction of the Court (see Bergsmo and Song). In turn, a multitude of ordinary crimes that have targeted a high scale of individuals would fall within the jurisdiction of the Court. Accordingly, the UN Commission of Experts notes that, “the ensuing upsurge in crimes […] does not qualify as crimes against humanity” (at paragraph 85).
However, this urges the question, if an attack targeting a plethora of individuals has not been organised, how can the policy of a state or organisation be reflected?
It is now established that an attack must either be widespread and in furtherance of a state or organisational policy or systematic and further such policy. Following this, proving the existence of systematicity would not hold much difficulty when a policy exists since the policy may imply such characteristics in the first place, much like the aforementioned Bemba case. As addressed by Ambos and Wirth, “the policy in the case of a systematic attack would be to provide at least certain guidance […] in order to coordinate the activities of the single perpetrators.” and, in accordance, would require active encouragement by the state or organisation (See Ambos and Wirth, at page 34).
However, proving a widespread attack pursuing a policy may be relatively more difficult. As such, it has been concluded that a toleration of committed acts without actively furthering them can reflect a state or organisational policy. As presented in the Kordić case, the chamber inferred that “a policy need not be formalized and can be deduced from the way in which the acts occur.” (Bergsmo and Song, at page 122). Therefore, when assimilating the provisions of systematicity and a preconceived policy as one, the disjunctive test would prove to be fruitless and void.
In light of the existence of the abovementioned literature, it shall be the Court’s duty to differentiate between an attack that is systematic and that which furthers a state or organisational policy; as it has been demonstrated, there is a possibility for each to present itself without the other.
[None of the views and opinions represented in this article are necessarily representative of the official views and opinions of Jus Cogens, or any institutes the author may be affiliated with.]