FINDING THE JUSTIFICATIONS FOR PIERCING SOVEREIGNTY:
TRYING CRIMES AGAINST HUMANITY COMMITTED BY NON-STATE ACTORS BEFORE THE INTERNATIONAL CRIMINAL COURT
A thesis submitted for the degree of
LLM in International Criminal Law
University of Amsterdam Law School Amsterdam, The Netherlands
27 July 2018
By Jindan-Karena Kaur Mann Supervisor: Prof. Dr. H. G. van der Wilt
ABSTRACT
This paper examines the contextual element of crimes against humanity as defined by the Rome Statute, that the attack underlying the commission of crimes against humanity must be committed pursuant to a State or organizational policy. It explores the justifications of this requirement, including that it protects against the inclusion of random or isolated acts and that it justifies an incursion into State sovereignty, which is an inevitable effect of trying crimes internationally. Although this paper agrees with the International Criminal Court that the policy can be carried out by non-State entities, it argues that in order to justify the piercing of sovereignty when non-State perpetrators are involved, it must be shown that the State was unwilling or unable to try the crimes themselves.
Crimes against humanity is one of the core international crimes, capturing some of the most horrific conduct and enabling the international community to end impunity for mass atrocity crimes committed against innocent civilians. It is characterized by its chapeau requirements, which provide the context in which crimes against humanity can be committed. However, over the course of history there has been little consistency in the chapeau and even with the creation of the International Criminal Court (ICC) uncertainties in the definition persist.1
One of the elements in the chapeau and the topic of the present paper is the requirement that crimes against humanity be committed as part of an attack that is pursuant to a State or organizational policy. This chapeau element is intended to internationalize the crime in two
1 This is in large part due to the fact that international criminal tribunals were often created in response to a specific
scenario and to capture limited jurisdiction. Göran Sluiter, ‘“Chapeau Elements” of Crimes Against Humanity in the Jurisprudence of the UN Ad Hoc Tribunal’ in Forging a Convention for Crimes Against Humanity (Cambridge University Press, 2011), p. 108; Matt Halling, ‘Push the Envelope – Watch It Bend: Removing the Policy Requirement and Extending Crimes against Humanity’, 23 Leiden Journal of International Law 827 (2010), p. 831.
ways: by providing criteria to distinguish crimes against humanity from ordinary crimes, and by justifying the incursion into State sovereignty when allowing the crime to be tried at an international level. This paper will explore whether crimes against humanity as defined by the Rome Statute of the ICC fulfill these criteria, particularly in light of non-State perpetrators of crimes. In order to provide clarity, the conclusions will be applied to a factual scenario in which crimes against humanity are being perpetrated by non-State actors, particularly supra-national gangs in Central America who are responsible for widespread attacks against civilians as part of their criminal activities. Although achieving clarity on the chapeau elements of crimes against humanity is desirable beyond the context of the ICC, this paper focuses on the formulation of the law as provided in the Rome Statute. That being said, the wider implications of the ICC interpretation should not be underestimated, as it may influence domestic law definitions or even a possible new convention on crimes against humanity, and is considered a strong indicator of customary international law.2
This paper will proceed first by considering a unique characteristic of international criminal law, namely that it supersedes State sovereignty when it elevates crimes to the international sphere, and will consider the consequences of this phenomenon. In Part II, it will turn to an explanation of the development of the chapeau for crimes against humanity over time, culminating with the definition as found in the Rome Statute. It will present the case of The
Situation in Kenya, in which the court grappled with the contours of the organizational policy
requirement, and in doing so, had to face fundamental questions concerning what justifies classifying a crime as international. As Sadat has observed, ‘couched in the legalese of the opinion in the Kenya case is nothing less than a struggle for the soul of the court.’3 Part III and IV will focus on the policy requirement, answering first whether is succeeds in its objective to distinguish international crimes from ordinary crimes, and then whether the classification of the entity behind the policy is of any importance. Having concluded that non-State actors are able to commit crimes against humanity pursuant to the Rome Statute, Part V questions whether, in the case of non-State perpetrators, perhaps a heightened justification must exist in order to pierce State sovereignty and try crimes internationally. The final two sections will apply the discussion
2 See Sean Murphy, ‘Toward a Convention on Crimes against Humanity?’, 7 La Revue des droits de l’homme 1
(2015), p. 3.
3
Leila N. Sadat, ‘Emerging from the Shadow of Nuremberg: Crimes Against Humanity in the Modern Age’,
to a factual scenario of the widespread crimes committed by Central American gangs in order to better illustrate the arguments made, and conclude that if the State is unable or unwilling to prevent crimes within its jurisdiction, as is the case in the example of Central American gangs, then the international community is justified in its intervention.
I. JUSTIFYING PIERCING SOVEREIGNTY FOR INTERNATIONAL CRIMES
In order for crimes to be considered international, they must reckon with certain characteristics that justify elevating them into the international domain. For war crimes and genocide, their definitions are based in international treaties,4 and ‘concern incursions into the sovereign sphere of another state’5 either because they apply to situations of armed conflict6 or because they represent a fundamental assault on all of humanity in the effort to destroy a part of it.
For crimes against humanity, however, the international justifications are not as obvious. The chapeau requirements of crimes against humanity are broadly considered to provide elements that internationalize them by offering criteria that distinguish them from ordinary crimes.7 Drawing a clear line between common crimes that belong in the domain of the sovereign State, as opposed to international crimes that can be tried universally (including before the ICC) is a crucial exercise. The right to conduct criminal prosecutions rests traditionally within the domain of the State and trying international crimes infringes upon sovereignty in the following ways.8 International crimes are subject to universal jurisdiction9 and thus classifying a crime as a crime against humanity allows it to be prosecuted anywhere, including before international tribunals and even in domestic courts that choose to exercise jurisdiction regardless
4 See e.g. ICRC, Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 75 UNTS 287
(1949); UN General Assembly, Convention on the Prevention and Punishment of the Crime of Genocide, 78 UNTS 277 (1948); International Conferences (The Hague), Hague Convention (IV) Respecting the Laws and Customs of War on Land and Its Annex: Regulations Concerning the Laws and Customs of War on Land (1907).
5 Kai Ambos and Steffen Wirth, ‘The Current Law a Crimes Against Humanity: an analysis of UNTAET Regulation
15/2000’, 13 Criminal Law Forum 1 (2002), p. 7.
6 International armed conflicts are clearly a matter of international concern. Moreover, a strong argument can be
made that most modern non-international armed conflicts also have cross-border effects, including the support of foreign governments, the residual effects of refugee flows or the generalized regional instability resulting from them.
7 See e.g. Ambos and Wirth, pp. 3-4. 8
Ambos and Wirth, pp. 3-4; Robert Cryer, ‘International Criminal Law vs State Sovereignty: Another Round?’, 16(5) The European Journal of International Law 979 (2005).
of their personal or territorial connection to the crime. Yet the exercise of universal jurisdiction has the potential to strip a State of its core right: the monopoly over the legitimate use of force, including the authority to prosecute and punish crimes and deprive persons of their liberty if they are convicted, is a defining characteristic of the modern nation-State.10 The right to exercise power over individuals is rooted in the social contract that citizens form with their sovereign, in which certain natural rights, including the right to engage in acts that constitute criminal behavior, are forfeited in exchange for security and protection.11 This relationship between the individual and the State, which grants the State the right to imprison its constituents, does not exist between the individual and the international domain at large and thus a further justification is needed before the international community is entitled to claim a right to use force against individuals by prosecuting, convicting and imprisoning them.
Beyond depriving States of a right that is considered firmly within their sovereign domain, the prosecution of international crimes also impacts sovereignty in more concrete ways by overriding certain domestic law provisions. For example, most immunities and amnesties have been deemed inapplicable in relation to international crimes,12 and statutes of limitations do not apply.13
Because the right to criminally prosecute traditionally rests in the exclusive domain of the State, compelling justifications must exist in order to allow interference by the international community through the classification of an act as an international crime.14 This will be discussed in further detail in section V, but it is worth highlighting here that there exist other important
10
See Thomas Hobbes, 1588-1679, Leviathan (Baltimore: Penguin Books, 1968); Max Weber, Politics as a
Vocation (Minneapolis: Fortress Press, 1965).
11 See Larry May, Crimes Against Humanity: A Normative Account (Cambridge University Press, 2005), pp. 8, 11;
see also Hobbes; John Locke, David Hume and Jean-Jacques Rousseau, Social Contract: Essays by Locke, Hume, and Rousseau, 1ed (Oxford University Press, 1960).
12 Prosecutor v. Charles Ghankay Taylor, SCSL-2003-01-I, Decision on Immunity from Jurisdiction (31 May
2004); Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic Of The Congo v. Belgium) [The
Yerodia Case], Merits, International Court of Justice (14 February 2002); Regina v. Bartle and Commissioner of Police, Ex parte Pinochet, U.K. House of Lords, 2 W.L.R. 827, 38 LLM. 581 (1999); see also Yasmin Naqvi,
‘Amnesty for war crimes: Defining the limits of international recognition’, 851 International Review of the Red
Cross 583 (2003); Diba Majzub, ‘Peace or Justice? Amnesties and the International Criminal Court’, 3 Melbourne
Journal of International Law (2002).
13
UN General Assembly, Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, A/RES/2391 (1968).
14 See May, pp. 8 (recognizing that it is hard to justify the prosecution of crimes against humanity because of the
interference with sovereignty, as ‘it involves the prosecution of a State’s subjects by a legal authority that sits, in effect, as a higher authority than the State, and thereby seemingly infringes directly on the sovereignty of a State.’), 11 (stating that we must begin with a ‘general presumption in favor of sovereignty.’).
reasons to respect sovereignty when implementing international law. The success of most international judicial procedures, including the ICC, relies on mutual respect between States and the mechanisms enforcing international law. Furthermore, as argued by Geras, States are best able to protect human rights when they are able to exercise their full scope of sovereign powers, as ‘there is no other or safer route to the mutual protection of human beings than through their living together in self-determining political communities.’15
II. THE DEVELOPMENT OF CRIMES AGAINST HUMANITY: FROM NUREMBERG TO THE ICC
Given the potential implications on a State’s sovereign right to prosecute crimes within its own territory, a crime should not be classified as international unless it meets a certain threshold that in some way justifies infringing upon sovereignty. When examining the contextual elements required by crimes against humanity, it is apparent that although past iterations have sought to include some sort of justification since the crime’s inception at the Nuremberg Trials in the wake of World War II, the exact contours of the chapeau have changed over time.
The Charter of the International Military Tribunal at Nuremberg defined crimes against humanity as a series of acts occurring ‘in execution of or in connection with’ another crime under the court’s jurisdiction, namely war crimes or crimes against peace, and this nexus was thought to provide the rationale for why the victorious Allied powers could try crimes against humanity as international crimes.16
While the nexus allowed prosecutors to defend the international status of crimes against humanity during the Nuremberg Trials, it was quickly abandoned17 and then replaced with the requirement that the crimes be tied to the State. For example, the 1954 Draft Code of Offences Against the Peace and Security of Mankind eliminated the connection to another crime, but
15 Norman Geras, Crimes Against Humanity: Birth of a concept (Manchester and New York: Manchester University
Press, 2011), p. 78.
16 Charter of the International Military Tribunal - Annex to the Agreement for the prosecution and punishment of the
major war criminals of the European Axis (1945), Art. 6(c).
17 By the time Control Council Law 10 was enacted a few months later, the nexus requirement was removed. Allied
Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity, Dec. 20, 1945, Official Gazette of the Control Council for Germany, No. 3, Berlin (1946), Art II(1)(c). Although the reason for dropping the nexus requirement is unclear, the fact that CCL10 cases were tried in domestic jurisdictions that had some connection to the crimes before them supports the idea that no international justifications was needed here. However, the 1951 Draft Code of Offences Against the Peace and Security of Mankind, which was intended represent international law, also moved away from requiring a nexus. Draft Code of Offences Against the Peace and Security of Mankind, U.N. GAOR, 6th Sess. (1951).
substituted this removal with the requirement that inhumane acts be committed ‘by the authorities of a State or by private individuals acting at the instigation or with the toleration of such authorities.’18
Over the course of the following four decades, the Cold War froze further development of the definition,19 until 1996 when the International Law Commission (ILC) completed a Draft Code defining crimes against humanity as crimes ‘committed in a systematic manner or on a large scale and instigated or directed by a Government or by any organization or group.’20 The 1996 Draft Code explicitly clarified that crimes committed in a systematic manner meant that they were pursuant to a preconceived plan or policy,21 and that those committed on a large scale must be instigated or directed by a Government or by any organization or group. The ILC explained that the inclusion of the ‘instigation or direction’ requirement:
… is intended to exclude the situation in which an individual commits an inhumane act while acting on his own initiative pursuant to his own criminal plan in the absence of any encouragement or direction from either a Government or a group or organization. This type of isolated criminal conduct on the part of a single individual would not constitute a crime against humanity…. The instigation or direction of a Government or any organization or group, which may or may not be affiliated with a Government, gives the act its great dimension and makes it a crime against humanity imputable to private persons or agents of a State.22
Based on the ILC’s commentary, while it apparently considered the widespread and systematic manner of the crimes to be an important component of crimes against humanity, without a separate requirement to tie together a series of widespread events, isolated or random criminal acts would be erroneously included in the definition of crimes against humanity, leading to an unacceptable expansion of the definition.
However, when crimes against humanity finally returned to be heard before an international tribunal at the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) in the early 2000s, the ad hoc
18 Draft Code of Offences Against the Peace and Security of Mankind, U.N. GAOR, 9th Sess., Supp. No. 9 (1954). 19
Phylilis Hwang, ‘Defining Crimes Against Humanity in the Rome Statute of the International Criminal Court’, 22
Fordham International Law Journal 457 (1998), p. 465.
20 Report of the International Law Commission, U.N. GAOR, 48t Sess., Supp. No. 10, (1996) (‘1996 ILC Draft
Code’).
21
1996 ILC Draft Code, Art. 18, para. 3.
tribunals concluded that a widespread and systematic attack was sufficient to justify its status as an international crime, and that the existence of a plan or policy was not a legal element of the definition of crimes against humanity.23 Nonetheless, concern about excluding ‘isolated or random’ acts was still important, as clarified by the Appeals Chamber in Blaskic, which stated that such acts would not form part of the widespread attack.24
The ICC departed from the ad hoc tribunals’ approach. Article 7 of the Rome Statute defines crimes against humanity as the commission of an enumerated criminal act ‘when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack,’ and article 7(2)(a) clarifies that the attack ‘means a course of conduct involving the multiple commission of acts… against any civilian population, pursuant to
or in furtherance of a State or organizational policy to commit such attack.’25
The inclusion of a policy element in Article 7(2)(a), which was not required by either the ICTY or the ICTR,26 was not without controversy.27 While some argue that it is a necessary element to distinguish crimes against humanity from ordinary crimes,28 its addition during the drafting process motivated considerable pushback, for example by the delegate from the Congo who opposed it on the grounds that it ‘in no way reflected contemporary realities or international
23 Ferdinand Nahimana et al. v. The Prosecutor, ICTR-99-52-A, Judgement (28 November 2007), para. 922
(holding that it is well established that the existence of a plan or policy is not a legal element of crimes against humanity); Laurent Semanza v. The Prosecutor, ICTR-97-20-A, Judgement (20 May 2005), para. 269; Prosecutor v.
Tihomir Blaskic, IT-95-14-A, Judgement (29 July 2004), para. 120; Prosecutor v. Dragoljub Kunarac, et al.,
IT-96-23 & IT-96-IT-96-23/1-A, Judgement (12 June 2002), para. 98 (relying on an extensive review of state practice to find that ‘[t]here was nothing in the Statute or in customary international… which required proof of the existence of a plan or policy’); but see Prosecutor v. Dusko Tadic, IT-94-1-T, Opinion and Judgment (7 May 1997), para. 653 (noting that traditionally there was some sort of policy requirement which served to distinguish crimes against humanity from ordinary crimes, and that this policy can be deduced from the fact that acts occurred on a widespread and systematic basis.).
24
Blaskic Appeals Judgment, para. 101.
25
UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010) (1998), Article 7. Emphasis added.
26 See supra, note 23. 27
The Hon. David Hunt, ‘The International Criminal Court High Hopes, “Creative Ambiguity” and an Unfortunate Mistrust in International Judges’, 2 Journal of International Criminal Justice 56 (2004), pp. 64-65; Guenael Mettraux, ‘Crimes against Humanity in the Jurisprudence of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda’, 43 Harvard International Law Journal 237 (2002), p. 270-79; Leila Nadya Sadat,
International Criminal Court and the Transformation of International Law: Justice for the New Millenium (New
York: Transnational Publishers, 2002), p. 261. It was originally proposed as a compromise for those who wanted the ‘widespread’ and ‘systematic’ prongs of the attack requirement to be cumulative rather than disjunctive. Hwang, p. 498.
28
See e.g. William Schabas, The Rome Statute of the International Criminal Court: A Commentary (Oxford University Press, 2010, p. 152; M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law, 2ed (The Hague: Kluwer Law International, 1999), pp. 244-245.
law,’29
as well as the delegates from Costa Rica and Switzerland, who observed that it may be too hard to establish.30 Ultimately however, the policy requirement was included as a mechanism to tie together separate incidents of an attack and thus screen out isolated or random events that do not constitute international crimes.31
Likely as a result of the controversy surrounding its inclusion, the policy element was not clearly defined by the drafters of the Rome Statute, and the Elements of the Crimes provides only that ‘[a] policy which has a civilian population as the object of the attack would be implemented by State or organizational action.’32
Moreover, despite the imperative to understand what should constitute an entity capable of carrying out the required policy, the drafters neglected entirely to define ‘organizational’.33
Thus, what constituted an organization within the meaning of Article 7(2)(a) was left to the court. It first grappled with the issue in the Katanga Decision on the Confirmation of the
Charges, in which is succinctly held without much fanfare that the policy behind the attack ‘may
be made either by groups of persons who govern a specific territory or by any organization with the capability to commit a widespread or systematic attack against a civilian population.’34
This holding was upheld the following year in the Bemba Decision on the Confirmation of the
Charges.35
In 2009, the ICC began hearing arguments on whether to open an investigation into alleged crimes against humanity committed in the context of post-election violence in 2007 and 2008 in Kenya. Here, it became immediately apparent that one of the crucial jurisdictional hurdles the Prosecutor would need to overcome was to convince the court that the organization behind a policy to commit an attack could be defined broadly, and could include the types of
29 UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome,
15 June-17 July 1998, Official Records, Summary of Record of the Plenary Meetings and of the Meetings of the Committee of the Whole (1998). Jamaica and Sri Lanka also opposed the policy element. (pp. 287-88, 328).
30 Hwang, p. 498.
31 Christopher Roberts, ‘On the Definition Of Crimes Against Humanity and Other Widespread or Systematic
Human Rights Violations’, 20(1) University of Pennsylvania Journal of Law and Social Change 1 (2017), pp. 19-20.
32 ICC Elements of the Crimes, footnote 6.
33 See e.g. The Prosecutor v. Germain Katanga, ICC-01/04-01-07, Judgment pursuant to article 74 of the Statute (7
March 2014), para. 1117; Sadat, ‘Emerging from the Shadow of Nuremberg’, p. 43; Kenya Decision on Authorization to Investigate, para. 84; William A. Schabas, ‘Punishment of Non-State Actors in Non-International Armed Conflict’, 26(4) Fordham International Law 907 (2002), p. 928.
34 The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, ICC-01/04-01-07, Decision on the confirmation
of charges (30 September 2008), 396. This was upheld at trial. Katanga Trial Judgment, paras. 1117-1122.
35
The Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo (15 June 2008) (‘Bemba Decision on the Confirmation of the Charges’), para. 81.
groups that were involved in the violence in Kenya, namely non-State actors. The Prosecutor argued that attacks were being ‘conducted primarily by members of organized groups associated with the main political parties,’ and that these groups fulfilled the criteria required by Article 7(2)(a).36
This time, the decision was not unanimous. While the majority followed the reasoning of
Katanga, including that non-State entities could commit crimes against humanity, Judge Kaul
issued a well-reasoned dissent, arguing that the organization behind the policy must have some State-like characteristics in order to justify classifying its acts as crimes against humanity.37
For the first time before the ICC there was divergence around what constituted an organization, thus the majority opinion elaborated on the Pre-Trial Chambers’ previous holdings. Relying on jurisprudence of the ICTY and the work of the ILC, it proclaimed that the defining criterion of an organization was ‘whether a group has the capability to perform acts which infringe on basic human values.’38
In doing so, it explicitly considered that ‘organizational’ applies to non-State actors, reasoning that if the drafters had intended to exclude them, they would not have included that term alongside ‘State’. 39
It also provided a number of considerations to be applied on a case-by-case basis to determine whether an entity could qualify as an organization under the Rome Statute, including whether the group is under responsible command or exhibits an established hierarchy; has the means to carry out a widespread or systematic attack; exercises control over territory; holds criminal activities against a civilian population as its primary purpose; or, is part of a larger group which fills most of these criteria.40
Judge Kaul’s dissent provides a comprehensive counter-argument based on the principles of treaty interpretation, the ordinary meaning of the Rome Statute, and the historical derivation of crimes against humanity,41 which led him to conclude that the ICC does not have jurisdiction over the situation and that the crimes committed in post-election Kenya could only be appropriately prosecuted in a different forum.42 Although he conceded that the drafters intended
36 Situation in the Republic of Kenya, Request for authorisation of an investigation pursuant to Article 15, ICC-01/09
(26 November 2009), paras. 77, 80.
37 Kenya Decision on Authorization to Investigate, Dissent. 38
Kenya Decision on Authorization to Investigate, Dissent, para. 87, 90, 91.
39 Kenya Decision on Authorization to Investigate, Dissent, para. 92. 40 Kenya Decision on Authorization to Investigate, Dissent, para. 93. 41
See Sadat, ‘Emerging from the Shadow of Nuremberg’, p. 76.
42
Kenya Decision on Authorization to Investigate, Dissent, para. 93. See also his dissent in Ruto, in which he stated that the crimes should be prosecuted domestically due to the lack of the ICC’s jurisdiction (The Prosecutor v.
for the organizational requirement to include non-State actors, he argued that the meaning of ‘organizational’ must be understood in juxtaposition with the term ‘State’, and thus requires some sort of State-like characteristic or quasi-State abilities, including:
a) a collectivity of persons; (b) which was established and acts for a common purpose; (c) over a prolonged period of time; (d) which is under responsible command or adopted a certain degree of hierarchical structure, including, as a minimum, some kind of policy level; (e) with the capacity to impose the policy on its members and to sanction them; and (f) which has the capacity and means available to attack any civilian population on a large scale.43
Groups that do not rise to this level, including ‘groups of organized crime, a mob, groups of (armed) civilians or criminal gangs’, would not meet this threshold and would fall outside the jurisdiction of the ICC.44
Judge Kaul supported his position by recalling that the purpose of the policy element is to distinguish crimes against humanity from ‘other common crimes which are to be prosecuted at the national level only.’45
He argued that the majority’s broad definition weakened this distinction and led to the ‘banalization’ of crimes against humanity.46
Judge Kaul further bolstered his position through teleological considerations; based on a historical survey of crimes against humanity trials, he concluded that the object and purpose of crimes against humanity is to protect ‘the international community against the extremely grave threat emanating’ from State-driven policies such as the Nazi’s Final Solutions, the Khmer Rouge’s killing fields in Cambodia, or the Rwandan genocidal campaign against the Tutsis.47
III. THE CHAPEAU ELEMENTS AND KEEPING OUT ORDINARY CRIMES
As described above, one of the primary ways to ensure that crimes against humanity are international in nature is to examine whether they are part of a wider attack as opposed to random or isolated events. Random or isolated acts by their nature are exactly the types of crimes
William Samoei Ruto et al., ICC-01/09-01/11, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a)
and (b) of the Rome Statute, Dissent of Judge Kaul (23 January 2012), paras. 52, 59-60).
43 Kenya Decision on Authorization to Investigate, Dissent, para. 51. 44 Kenya Decision on Authorization to Investigate, Dissent, para. 52. 45
Kenya Decision on Authorization to Investigate, Dissent, para. 54.
46
Kenya Decision on Authorization to Investigate, Dissent, para. 54.
that domestic jurisdictions should have exclusive domain over, and thus raising them to the level of international crimes would constitute a fundamental violation of the sovereign State’s right to prosecute its own crimes.
There is considerable debate over whether requiring crimes to be committed pursuant to a widespread or systematic attack is sufficient to protect against the inclusion of isolated and random events. On the one hand, scholars such as Schabas argue that a connection to a widespread or systematic attack is not enough to distinguish an international crime from an ordinary crime, positing that under the definition provided by the ICTY, nothing would prevent the prosecution of ‘serial killers, mafias, motorcycle gangs, and small terrorist bands.’48
He argues that a policy driven by a State or State-like entity is necessary in order to ensure that the scope of crimes against humanity remains justifiably international.49
On the other hand, Mettraux offers an in-depth review of State practice,50 and concludes that pursuant to customary international law, there is no policy requirement, and that the existence of a policy has been erroneously attributed status as a separate element either because of confusion with what is required to prove the existence of a widespread or systematic attack, or merely because States or organizational entities with concerted policies have historically been involved in the commission of crimes against humanity.51 Critics of the policy element also argue that it results in excluding acts that should be included.52
Robinson provides a middle-ground approach to the policy element by arguing that it is a distinct legal element, but that its threshold is low because its purpose is only to ensure that the acts making up an attack are actually related. He reasons that the policy requirement is a necessary legal element that does effectively screen out unconnected ordinary crimes. He argues that crimes against humanity need some ‘minimal degree of both scale and collectivity before we can sensibly say that there was an ‘attack’ on a civilian population,’ and ‘where there is no
48
William A. Schabas, ‘State Policy as an Element of International Crimes’, 98(3) Journal of Criminal Law and
Criminology 953 (2008), p. 960.
49 Schabas, ‘State Policy as an Element of International Crimes’, p. 960.
50 Reviewing the same sources that were provided for support in the Kunarac case conclusion that the existence of a
policy is not a separate legal element.
51
Mettraux, p. 270; see also Charles Chernor Jalloh, ‘What Makes a Crime Against Humanity in Crime a Crime Against Humanity’, 28(2) American University of International Law Review 381 (2013), p. 414 (asserting that the widespread or systematic attack component was always more important, and was the ‘core justification of the internationality’ of crimes against humanity.); Sluiter, p. 126 (observing that in Tadic, a widespread or systematic attack was enough to form the threshold excluding isolated and random acts.).
collectivity (ie. coincidental, haphazard crimes), then there is no crimes against humanity.53 He suggests that the policy element as defined in the Rome Statute Article 7(2)(a) provides the ‘in
limine test, screening out context that lack the minimum necessary scale and collectivity,’ and
that once those are established through the existence of a State or organizational policy, then a higher degree of either scale (widespread) or selectivity (systematic) must be considered.54
Robinson’s approach is compelling, as it provides a way to exclude random events from being tried as crimes against humanity in a way that a widespread attack requirement alone would not, while at the same time not posing an insurmountable obstacle against the inclusion of certain grave acts within the gambit of crimes against humanity. Furthermore, while it clarifies the purpose of the policy requirement, his understanding is still in line with foregoing jurisprudence, even that of the ICTY.55
IV. THE ENTITY BEHIND THE POLICY
Whether the existence of a policy is a distinct legal requirement in crimes against humanity is only one part of the overall question of whether a State or organizational policy element justifies the piercing of sovereignty. Scholars also widely debate the nature of the entity behind the policy, with some arguing that any organization suffices, and others claiming that it must be a State, or at least a State-like entity. As discussed above, this was the crux of the argument in the Kenya Decision, in which the majority opted for the former option and Judge Kaul dissented because of his support with the later position.
A review of arguments on both sides reveal that overall, the majority position is the more persuasive one. Those maintaining that the entity must be a State or State-like, including Schabas, Bassiouni, and Judge Kaul, rely on historical reasoning to support their position, arguing that because Nazi crimes tried at Nuremberg and other past incidents of crimes against humanity were perpetrated by State actors, this is a limiting factor in the legal definition.56 This
53 Darryl Robinson, ‘The Draft Convention on Crimes Against Humanity: What to do with the Definition?’ in On
the Draft Crimes Against Humanity Convention, Morten Bergsmo, ed. (Forum for International Criminal and
Humanitarian Law, 2014), pp. 17-18 (italics in original).
54 Robinson, p. 18.
55 See Blaskic Appeals Judgment, para. 101 (that isolated and random acts would not form part of the widespread
attack.).
56
Kenya Decision on Authorization to Investigate, Dissent, paras. 59-63; Schabas, ‘State Policy as an Element of International Crimes’, pp. 972-974; M. Cherif Bassiouni, The Legislative History of the International Criminal
approach has been criticized, including by Sadat, who argues that ‘using Nuremberg as the modern referent for crimes against humanity today ignores the mutation and evolution of atrocity crimes in nearly 70 years since the IMT’s judgment was pronounced.’57
Roberts also provides a number of apt criticisms to the historical-teleological approach, including that it ‘fails to account for the development of the notion of crimes against humanity over the course of its history,’ which makes it incapable of accounting for potential new forms of mass violations, and that it is overly Western-centric, ‘privileging the World War II model of state-orchestrated harm over the hazier situations in which state and non-state actor violence may overlap and intermingle.’58
The State-entity-only argument is also often couched in the belief that only States are able to carry out the types of widespread and systematic attacks that result in crimes against humanity.59 Schabas goes further, arguing that the mere fact that crimes against humanity are committed on behalf of the State contributes to their gravity, because it ‘corresponds to the classic impunity paradigm: individuals acting on behalf of the State that shelters them from its own courts.’60 However, a number of scholars have pushed back againts this notion, arguing that non-State actors are becoming more capable of perpetrating mass atrocity crimes, especially in weak States, and that there exists no convincing reason to exclude them from the definition.61
Court: Introduction, analysis, and integrated text of the statute, elements of crimes and rules of procedure and evidence (New York: Transnational Publishers, 2005), pp. 1151-152;; see also Bassiouni, Crimes Against Humanity in International Criminal Law, pp. 243-81.
57 Sadat, Emerging from the Shadows of Nuremberg, p. 86-87; see also Mettraux, p. 282. 58 Roberts, p. 13.
59 See e.g. James Meernik, ‘Justice, Power and Peace: Conflicting Interests and the Apprehension of ICC Suspects’
in Realities of International Criminal Justice, Dawn L. Rothe, James Meernik and Thordis Ingadottir, eds. (Leiden: Martinus Nijhoff Publishers, 2013), p. 185 (arguing that States have power and monopoly over violence, and thus crimes against humanity should be limited to them); Adam Jones and Nicholas A. Robins, ‘Introduction’ in
Genocides by the Oppressed: Subaltern Genocide in Theory and Practice (Indiana University Press, 2009), p. 3
(stating that non-State actors are likely to face prosecution and thus should be precluded from crimes against humanity); Schabas, ‘State Policy as an Element of International Crimes’, p. 954; Bassiouni, Crimes Against
Humanity in International Criminal Law, pp. 9-14 (arguing that when crimes are committed pursuant to a state
policy, then they are likely to produce large-scale victimization).
60 William A. Schabas, ‘Complementarity in Practice: some uncomplimentary thoughts’, 19:5 Criminal Law Forum
33 (2007), p. 30.
61 Clare Frances Moran, ‘Beyond the State: The Future of International Criminal Law’, International Criminal
Database Brief 7 (2014), p. 1 (suggesting that there is a shift toward prosecuting those who are guilty of mass
atrocities, regardless of whether they are State actors or not); Roberts, p. 15 (arguing that non-state actors are capable of committing as much harm as a State.); Robinson, pp. 514-15 (stating that ‘it is now clear that crimes against humanity may be committed by non-state actors.’); Jalloh, p. 438 (stating that ‘[widening] the scope of crimes against humanity to consciously include non-State actors is the most appropriate course for the ICC to take in the future.’); Halling, p. 38 (pointing out that the majority of self-referrals before the ICC relating to crimes against humanity involve non-State actors.).
While the argument presented by Judge Kaul—that a policy by non-State actors demonstrating some ‘State-like characteristics’ could represent the entity behind an attack— appears on first glance to strike a balance between those who say crimes against humanity must have State perpetrators and those who disagree, upon further examination it is clear that this test for finding ‘State-like’ is onerous and illogical, and creates arbitrary distinctions between groups for no compelling reason. This observation will be further explored in Section VII, when considering the application of crimes against humanity to the crimes committed by Central American gangs. As established above, the purpose of the State or organizational policy is to preclude random or isolated events from being tried as crimes against humanity. The classification of State or non-State has little or no bearing on whether the conduct making up an attack is indeed linked within one common attack or a random event. The fact that non-State actors are becoming increasingly powerful and able to engage in grave crimes with far reaching international consequences, all within the context of weakening States and rising impunity, underscores how unimportant the classification of the entity behind the policy actually is.
V. SOVEREIGNTY AND THE NON-STATE ACTOR
The existence of a policy, regardless of the entity behind it, is an established legal element for crimes against humanity before the ICC.62 As laid out in the prior section, this element is useful to draw the line between ordinary domestic crimes and international crimes. This distinction is necessary because only international crimes justify the piercing of sovereignty.
That being said, establishing the existence of a policy element does not in and of itself provide sufficient justification for stripping a State of it sovereign domain over the perpetration of certain crimes when non-State actors are implicated. Therefore, this paper now returns to the question of State sovereignty, in order to reconcile the infringement of sovereignty with the conduct of non-State actors.
In the case of State actors committing crimes, the justifications for international intervention are apparent, particularly because the State has control over the conduct that results in the piercing of sovereignty and thus is able to decide whether to engage in behavior that will
ultimately lead to international intervention. Furthermore, it was States committing crimes against their own people and subsequently not holding themselves responsible that first sparked efforts by the international community to try Nazi crimes at Nuremberg, regardless of the sovereignty implications.
However, now that it has been established that a non-State entity can be behind the policy to carry out an attack within the meaning of Article 7(2)(a), a stronger defense is warranted to justify why the international community can essentially ‘swoop in’ and try these criminal offenses. In order to find the rationale, it is helpful to look at the justifications for piercing sovereignty in the first place.
Jalloh points out that ‘it is not entirely clear what is the distinguishing characteristic or feature of a crime against humanity that moves it from the realm of domestic to the international, such that its commission would attract the interest and condemnation of the international community as a whole.’63 While there are a number of existing justifications for breaking through the sovereign boundary to try international crimes, two overarching themes can be identified: the first set of arguments focuses on the word ‘humanity’ and suggests that the impact crimes against humanity have on either our humanness or on humankind as a whole warrant the piercing of sovereignty; the second category of justifications makes the case that the cross-border implications on international peace and security trigger international concern and justify intervention.
A number of scholars argue that the justification for crimes against humanity lies in its name, and that when crimes are committed ‘against humanity’ they become international crimes.64 The term ‘humanity’ has been interpreted as referring either to the quality of being human, or the aggregation of all human beings, the former meaning that ‘the defining feature of these offenses is the value they injure, namely humanness,’ and thus the prosecution of crimes against humanity is justified because it is a ‘crime against the human status, or against the very
63 Jalloh, p. 385.
64 See e.g. Jalloh; Sadat, ‘Emerging from the Shadows of Nuremberg’; Geoffrey Robertson QC, Crimes Against
Humanity: The Struggle for Global Justice, 4ed (London: Penguin Press, 2012; Massimo Renzo, ‘Crimes Against
Humanity and the Limits of International Criminal Law, 31 Law and Philosophy 443 (2012); Claus Kress, ‘On the Outer Limits of Crimes against Humanity: The Concept of Organization within the Policy Requirement: Some Reflections on the March 2010 ICC Kenya Decision’, 23 Leiden Journal of International Law 855 (2010); May; David Luban, ‘A Theory of Crimes Against Humanity’, 29 Yale Journal of International Law 85 (2004); Ambos and Wirth; Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality if Evil (New York: Viking Press, 1964; see also Katanga Trial Judgment, para. 112.
nature of mankind,’65
and the later understanding focusing on the fact that in the perpetration of crimes against humanity, all human beings are somehow harmed, because ‘the very fact that a fellow human being would conceive and commit them diminishes every member of the human race.’66 In either case, the argument runs that the international prosecution of crimes against humanity is justified by the fact that crimes against humanity harm humanity in some fundamental way, and that this harm, whether against our humanness or against humankind as a whole, triggers the right of the international community to intervene. This was the logic underpinning the Erdemovic case’s discussion of crimes against humanity before the ICTY, in which the court proclaimed:
Crimes against humanity are serious acts of violence which harm human beings by striking what is most essential to them: their life, liberty, physical welfare, health, and or dignity. They are inhumane acts that by their extent and gravity go beyond the limits tolerable to the international community, which must perforce demand their punishment. But crimes against humanity also transcend the individual because when the individual is assaulted, humanity comes under attack and is negated. It is therefore the concept of humanity as victim which essentially characterizes crimes against humanity.67
The preamble to the Rome Statute, on the other hand, highlights the importance of prosecuting crimes which ‘threaten the peace, security and the well-being of the world,’ and the far-reaching effects of mass atrocities, including cross-border impacts such as those caused by refugee flows or regional instability, have been cited as core justifications for trying international crimes.68 Some argue that because widespread human rights violations upset and destabilize the international order, they become ‘a concern of the world’s legal systems.’69 For example, it has
65
Luban, p. 87; Arendt, p. 268 (internal quotations omitted); see also Renzo, p. 451; Geras, p. 52 (explaining that the French Chief Prosecutor at Nuremberg argued that crimes against humanity destroy a person’s humanity, and are thus a crime against their status or condition of being human).
66
Robertson, p. 220. Arendt also argues that crimes against humanity harm all of humanity, defining crimes against humanity as a discriminatory act against a particular group, which denies humanity the human diversity that we are entitled to. Arendt, p. 269. This point of view is not entirely convincing because it rests on the idea that crimes against humanity require some level of discrimination.
67 The Prosecutor v. Drazen Erdemovic, IT-96-22-T, Sentencing Judgement (29 November 1996), para. 28. The
majority in the Kenya Decision also followed this line of thinking, as it ‘essentially, albeit implicitly, rests on the following…argument: the ultimate goal of the international law on crimes against humanity, so the argument (if made explicit) would run, is to protect basic human values.’ Kress, p. 859; see also Katanga Trial Judgment, para. 112; Jalloh, p. 391; Sadat, ‘Emerging from the Shadows of Nuremberg’, p. 77; Ambos and Wirth, pp. 13-14.
68
Rome Statute, Preamble; see also Tadic; Bassiouni, p. 9.
been argued that when it can be shown that a crime is not purely a State matter, but rather that it ‘reach[es] across state boundaries… [then] international criminal jurisdiction can legitimately trump state sovereignty.’70
The above justifications both contribute in some way to the argument that the commission of crimes against humanity justifies the piercing of sovereignty.71 However, standing alone or even read in conjunction, neither provides a compelling answer to the question this paper seeks to answer: in the case of non-State actors perpetrating crimes against humanity, how can the infringement of sovereignty be justified?72
In order to find a satisfactory answer, this paper returns to considerations of the foundations of State sovereignty as introduced in section I of this paper. Drawing on the notion of the social contract and May’s security principle as presented in his book Crimes Against
Humanity: A Normative Account, the argument will be made that when a State is unable to grant
the level of security that it is responsible for providing as part of its social contract with its citizens, then international intervention is warranted. While the duty provide security is obviously violated when the State itself engages in attacks against civilians, it is also violated when States are unable to provide security by preventing such attacks. Drawing inspiration from the due diligence principle found in human rights law, it can be argued that regardless of their ability, States have to comply with certain obligations incumbent on nation-States, including to provide security to their citizens, and when they fail to do so then the international community has the right to intervene. While in human rights law this intervention is limited to pronouncements on their violation of applicable treaty provisions when they fail to investigate, prosecute and punish crimes, the heightened enforcement mechanisms in international criminal law result in the ability of international courts to intercede.
May’s security principle rests on the basic premise that when a State is unable to protect the people within its jurisdiction by granting them security, then it is no longer the sovereign over those people and the international community may intervene.73 Inspired by Hobbes, he
70 Andrew Altman and Christopher Heath Wellman, ‘A Defense of International Criminal Law’, 15 Ethics 35
(2004), p. 39.
71
See Geras.
72 Even when considered in conjunction with the fact that there are a number of ways to distinguish between
ordinary and international crimes, and thereby justify piercing sovereignty, including that: particular interests if the international community have been injured; the scale of the harm; the problem is incapable of solution by individual states.).
argues that security is the chief good that people expect from their sovereign and the reason they enter into a social contract with the State; if that is no longer provided, then the agreement that grants the sovereign State its status as such is broken, and people ‘revert back to a state of nature.’74 However, the existence of an international framework has in a sense replaced the state of nature, and ‘…this Hobbesian position leads to the idea that when the State attacks or fails to provide for the protection of the individual person, then that person can appeal to international entities for that protection.’75
May also provides clarity on what exactly would constitute a violation of the duty to provide security and thus result in the loss of status as a sovereign, limiting it to the violation of
jus cogens norms, or those types of crimes from which derogation is not permitted under any
circumstances.76 Thus, only international crimes such as crimes against humanity or genocide, and not other human derogable rights violations, would result in the type of State failure that would ultimately result in the piercing of sovereignty through international criminal trials.77
May’s security principle provides compelling support for why the international community may pierce sovereignty even when the perpetrator is a non-State actor. Although his research focuses on State perpetrators of crimes against humanity,78 when combined with the logic behind the due diligence principle in human rights, namely that States bear a responsibility to protect the human rights of their constituents regardless of whether the violator is a State or non-State actor, then the assignment of responsibilities onto the State and the subsequent consequences that arise out of the failure to uphold those responsibilities is justified. In essence, under the due diligence principle, States are held responsible for human rights violations committed by non-State actors if they fail to prevent, investigate, punish and provide compensation for human rights violations.79 Under the due diligence requirement, States must 74 May, p. 33. 75 May, p. 33. 76 May, pp. 24-25. 77 May, pp. 24-25.
78 May dismisses any discussion weak or non-existing State, stating only that crimes committed in that context are
‘justifiably prosecuted on an international scale.’ However, he does not provide a description of what constitutes a weak or non-existing State. This paper seeks to avoid oversimplifying the capacities of a State, as the determination of whether a State is able to respond to widespread crimes (which is a different question than what is asked under ICC complementarity relating to the ability to try international crimes) is not necessarily a straightforward analysis.
79 Rodríguez v. Honduras, Inter-American Court of Human Rights, (29 July 1988). Since
Velasquez-Rodriguez, the due diligence standard has widely accepted and broadly applied in evaluating States’ obligations
under international human rights, and has been used to argue State responsibility over a range of private actors, including transnational corporations and armed militia groups, as well as private citizens. See generally Opuz v.
take reasonable steps to prevent human rights violations, and employ all means available to carry out serious investigations of violations, identify the responsible parties, impose appropriate punishment and ensure compensation to the victim.80Under human rights law States are internationally accountable for their failure to protect human rights perpetrated by non-State actors and face the consequences that exist within that framework.81 Expanding on this, when jus
cogens norms are violated and the duty to grant security is thus breached, then the consequences
should be felt within the framework of international criminal law instead, including the loss of the State’s sovereign right over criminal procedures and the intervention of an international criminal procedure.
VI. THE MARAS OF THE NORTHERN TRIANGLE: A FACTUAL SCENARIO IN WHICH TO FRAME THE ARGUMENT
In order to pull the above discussions on Article 7(2)(a) of the Rome Statute and the applicability of crimes against humanity to non-State actors out of the abstract, it is useful to apply it to a factual scenario that illustrates how the organizational policy requirement protects against the inclusion of random or isolated crimes, yet does not fulfill the second purported purpose, namely to justify the piercing of sovereignty in the case of non-State perpetrators.
The example of Central American criminal gangs, commonly referred to as ‘maras’, is apt to illustrate the points made in this paper. First, the maras are engaged in crimes that are part of a widespread and systematic attack, and the underlying acts include those enumerated in Article 7(1) of the Rome Statute. Second, the maras are non-State actors. Third, the situation of mara-perpetrated violence is important to call attention to, because unlike most cases in which non-State groups are involved in international crimes, they are not acting within the context of armed conflict, thus holding them internationally accountable would rely entirely on the ability to secure a conviction for crimes against humanity.
Turkey, European Court of Human Rights (2009); Mastromatteo v. Italy, European Court of Human Rights (2002); Bevacqua and S. v. Bulgaria, European Court of Human Rights (2001); Costello-Roberts v. U.K., European Court of
Human Rights (1993).
80
Valle Jaramillo et al. v. Colombia, Inter-American Court of Human Rights (27 November 2008), para. 78;
Velasquez-Rodríguez v. Honduras, para. 174.
The Central American countries of Guatemala, Honduras and El Salvador, collectively referred to as the Northern Triangle, are in the midst of a humanitarian crisis provoked by organized criminal violence.82 The most active criminal groups are associated with two rival supra-national gangs, the Mara Salvatrucha 13 (MS-13) and Barrio 18.83 These maras originated in Los Angeles, United States, but spread to Central America as a result of mass exportations, in which almost 46,000 incarcerated Central Americans and another 160,000 undocumented immigrants were deported between 1998 and 2005, with 90% being sent to the Northern Triangle.84
The number of gang members in the Northern Triangle is estimated to be in the tens of thousands, if not more.85 The maras are organized hierarchically, operating at the local level and coordinated at the national and international levels. The lowest tier is the clica, which operates in and controls neighborhoods.86 Local factions often exclusively control small territories, in which they impose their own rules, provide security and charge renta (an extortion fee in exchange for security).87 The clicas are organized into programas, which in turn answer to the ranflas, or the national leadership of each country.88
The maras are organized and well-armed, including with assault rifles and military grade hardware.89 Researchers have observed a number of parallels between the Central American maras and non-State armed groups, including their ‘extensive distribution across territory,’ their large numbers, and their possession of weapons.90 While they were small and disorganized when first forming in Central America, the maras have gained in power and influence, mostly through the use of violence and extortion. As this power and influence has grown, their focus has broadened beyond criminal activity and into politics. As one expert observed, the maras are
82
Douglas Farah and Kathryn Babineau, ‘The Evolution of MS 13 in El Salvador and Honduras’, 7(1) PRISM 59 (2017), p. 9; David James Cantor, ‘As deadly as armed conflict? Gang violence and forced displacement in the Northern Triangle of Central America’, XXIII (34) Agenda Internacional 77 (2016), p. 79.
83
Cantor, p. 86; Dennis Rodgers and Robert Muggah, ‘Gangs as non-state armed groups: the Central American case’, 30(2) Contemporary Security Policy 301 (2009), p. 6.
84 Rodgers and Muggah, p. 6; see also Cantor, p. 86l, Thomas C. Bruneau, ‘Pandillas and Security in Central
America, 49(2) Latin American Research Review 152 (2014), p. 157-58.
85 Cantor, p 85. It is difficult to accurately count gang members, and the methodology between countries varies
widely. Bruneau, p. 158.
86 Farah and Babineau, p. 59. 87 Cantor, p. 85.
88
Farah and Babineau, p. 59.
89
Farah and Babineau, p. 63; Cantor, p. 86; Rodgers and Muggah, p. 7.
rising to the level of becoming ‘a credible alternative to the State.’91 Another expert argued that ‘it is now debatable whether the State still enjoys the monopoly over legitimate coercion.’92
Reports have surfaced that in recent years, maras are pursing deliberate strategies to improve their political standing among the people. In recent years, MS-13 in Honduras began carrying out significant State functions in areas where the national governments are absent; for example, in San Pedro Sula, they hold rudimentary ‘sentencing’ hearings to resolve disputes, provide parameter security to protect from outside gangs, and provide basic literacy and social programs, food programs, and employment opportunities.93 However, their use of extreme violence still continues, and those who express disagreement with them or fail to follow their demands risk death or severe injury.
Recent reports have shown that the Honduran MS-13 ranfla has shifted its strategy away from extortion and toward relying on other revenue generated by the drug trafficking trade.94 This change, which has been implemented down the line of command to the clica level, is a deliberate effort to win the hearts and minds of the people and thereby increase their political clout.95 Conversely, the Guatemalan and Salvadoran ranflas claim that they do not have enough alternative income in order to follow suit, although experts also speculate that in the Salvadoran context, internal fractures within the organization contribute to the group’s inability to smoothly implement such a drastic change in policy in El Salvador.96
When considering the crimes committed in the Northern Triangle within the framework of the acts constituting crimes against humanity pursuant to Article 7 of the Rome Statute, the most obvious is murder,97 although torture, rape, enforced prostitution and other crimes of sexual violence also occur. The homicide rates in the Northern Triangle soared over the past ten years, reaching numbers up to ten times of what is considered an epidemic.98 For example, Honduras’s
91 Farah and Babineau, p. 59.
92 Dr. Kevin Casas-Zamora, ‘The roots of Central America’s exodus’, written testimony in hearing on the ‘Ongoing
Migration from Central America: An Examination of FY2015 Apprehensions’ before the United States Senate Inter-American Commission on Human Rights, Situation of Human Rights in Honduras, OEA/Ser.L/V/II (2015), p. 8.
93 Farah and Babineau, pp. 65-66. 94 Farah and Babineau, pp. 67. 95
Farah and Babineau, p. 67.
96 Farah and Babineau, p. 67
97 See Rome Statute, article 7(1)(a); Elements of Crimes 98
The World Health Organizations has classified a murder rate exceeding 10 per 100,000 as an epidemic. United Nations Development Programme, Regional Human Development Report 2013-14: Citizen Security with a Human
murder rate over the past decade has consistently been one of the highest in the world, reaching 91.4 people per 100,000 in 2011,99 before dropping to 56.5 per 100,000 in 2016.100 In El Salvador, a truce between MS-13 and Barrio-18 in 2012 to 2014 resulted in a 40% decline of the homicide rate, 101 but after the truce was broken, it rose again sharply, reaching a record of 105.4 per 100,000 in 2015 before dropping slightly in 2016 to 82.3 per 100,000.102 In comparison to its neighbors, Guatemala’s homicide rate is the lowest, hovering at about 30 to 40 per 100,000 over the course of the past decade, which still represents three to four times the rate of a murder epidemic. These numbers are calculated on a national basis, and in particularly high crime areas murder rates may register up to triple the national average.103
Although homicide statistics do not necessarily paint a complete picture of violence, they can serve as a point of comparison to illustrate gravity.104 Researchers have concluded that violent death rates in the Northern Triangle are comparable to situations of internal armed conflict, and are second only to Syria, exceeding even countries with ongoing conflicts such as Iraq, Afghanistan and the Democratic Republic of Congo.105 In comparison to its bloody civil war in the 1980 in El Salvador, which saw an average of 16 deaths per day, El Salvador now experiences up to 18 deaths daily.106 The methods of killing are also gruesome; for example, the MS-13 hallmark of assassination is to decapitate and sever the limbs of its victims,107 and extreme brutality is often a way for them to influence their power discourse.108
A significant percentage of the murders are attributed to hired assassins, or sicarios, working for the maras.109 Generally, gang-related homicides encompass killings committed for a
99 UN Office of Drugs and Crimes, Intentional homicide count and rate per 100,000 population, by country/territory
(2000-2012) available at: https://www.unodc.org/gsh/en/data.html(accessed 24 May 2018).
100 UN Office of Drugs and Crimes, Intentional homicide victims (2012-2016), available at:
https://dataunodc.un.org/crime/intentional-homicide-victims (accessed 24 May 2018).
101
UN Office of Drugs and Crimes, Global Study on Homicide 2013, p. 45.
102
UN Office of Drugs and Crimes, Intentional homicide victims (2012-2016).
103 Smaller Salvadoran municipalities have recorded murder rates at about 300 per 100,000. San Pedro Sula, the
second largest city in Honduras, has a murder rate of 171.2 per 100,000 in 2014. Cantor, p. 81.
104
A UNODC study estimate that the global average intentional rate of homicide in 2012 was 6.2 per 100,000, a fraction of the rates seen in the Northern Triangle. UN Office of Drugs and Crimes, Global Study on Homicide
2013. It is important to note that there is no data on how many of the homicides gangs are directly responsible for.
Bruneau, p. 160.
105 Cantor, p. 82. 106
Cantor, p. 82.
107 Babineau and Farah, p. 69.
108 Anthony W. Fontes, Beyond the Maras: Violence and Survival in Urban Central America (Washington, DC:
Wilson Center Latin American Program, 2014), p. 12.
109
See e.g. Global Legal Research Center, Honduras Gang Violence (Washington, DC: The Library Of Congress, 2013), p. 2.
