Analysis of anomaly detection performance

63

in the crime‘s historiography. It has remained a mutant crime defying legal precision.²⁷⁷ For example, enforced disappearance was included as a crime against humanity, by some international instruments, while others did not.²⁷⁸

A major distinction between crimes against humanity and genocide is that the former need not target a specific group, but a civilian population in general. They are also different from war crimes insofar as the criminal conduct may be directed not only towards the opposing belligerent‘s civilian population, but also against the perpetrator's own population. Furthermore, in contrast to war crimes against individuals, they must be widespread or demonstrate a systematic character.²⁷⁹ The law of crimes against humanity was initially created to fill certain gaps in the law of war crimes, but many parameters were left undefined, until the contours became more clearly shaped by the Statute of the ICC.

64

is enclosed in the France, Great Britain and Russia Joint Declaration of 1915, which warned the Ottoman authorities of responsibility for ‗crimes against humanity and civilization‘ for the massacre of Armenians and of personal responsibility.²⁸¹ In the Declaration on German Atrocities (Moscow Declaration) 1943, the Allies had proclaimed that those ‗whose offences have no particular geographical localization…will be punished by the joint decision of the Allies‘.²⁸²

The allied governments in World War I signed the Treaty of Sevres,²⁸³ which would have required the Ottoman Empire to assist in the apprehension and prosecution of the perpetrators of the Armenian genocide. International prosecutions of the crimes did not take place because the treaty was not ratified.²⁸⁴ After the Second World War, the Allied powers convened the London Conference of 28^th June to 8^th August 1945 to draft the Charter of the IMT Nuremberg. To give effect to the Moscow Declaration and the London Agreement of 8^th August 1945, the tribunal was established for the trial and punishment of the major war criminals of the European Axis countries. The tribunal had powers to try not only war crimes, but also crimes against humanity.

It is because they were first clearly articulated in the aftermath of the WWII that Muftai asserted that the concept of crimes against humanity was introduced by the Charter of the Nuremberg Tribunal in 1945.²⁸⁵

281 See the United Nations War Crimes Commission, History of the United Nations War Crimes Commission and the Development of the Laws of War (London, 1948).

282 The Moscow Declaration of 30^th October 1943 ‗Concerning Responsibility of Hitlerites for Committed Atrocities‘.

283 Articles 228 and 230, Treaty of Peace Between The Allied and Associated Powers and Turkey, Signed at Sevres, 10^th August 1920.

284 C C Jalloh, ‗What Makes A Crime Against Humanity a Crime Against Humanity‘ (2013) Vol. 28. No. 2.

AM. U. Int’L L. Rev, 392.

285 R Muftau, ‗Crimes against Humanity in International Law‘, Ph D Dissertation submitted to the Post- Graduate School, Ahmadu Bello University, Zaria, in partial fulfillment of the requirements for the award of the Degree of Doctor of Philosophy (PhD) of Ahmadu Bello University, Zaria 2006, p. 76.

65

The context of war crimes did not include crimes committed by a government against its own citizens, but against those of other belligerents. The Germans had perpetrated acts of barbarity not prohibited by orthodox international law. The laws of warfare only proscribed violations involving the adversary or the enemy populations, whereas the Germans had also carried out inhuman acts for political or racial reasons against their own citizens; Jews, trade union members, social democrats, communists, gypsies, gays, members of the church, as well as others not covered by the laws of warfare.²⁸⁶ Article 6 of the Nuremberg Charter defined crimes against humanity as: murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of, or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the law of the country where perpetrated.

The definition points to the following issues: firstly, the reference to ‗any civilian population‘ included the aggressor‘s own population; secondly, crimes against humanity could be committed only in the context of an armed conflict;²⁸⁷and thirdly, the allusion to ‗population‘

created a requirement of scale, but the exact threshold was neither defined by the Charter nor in the Nuremberg judgment.²⁸⁸ An analogous rendition is contained in the Charter of the IMT Tokyo.²⁸⁹ Yet, the differences between these two definitions call for some remarks. In defining

286 Cassese, op cit, p. 103.

287 By Article 6 of the Nuremberg Charter, the Tribunal had jurisdiction over (a) crimes against peace; (b) war crimes; and (c) crimes against humanity.

288 R Cryer et al, An Introduction to International Criminal Law and Procedure (Cambridge: Cambridge University Press, 2007) p. 188.

289 IMT FE Tokyo Charter, Article 5 (c): Crimes against humanity: namely, murder, extermination,

enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political or racial grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all

66

crimes against humanity, the Tokyo Charter listed the class of person to be held responsible, and it did not include ‗persecution‘ subject to religious grounds. Secondly, the Nazi crimes against the Jews lacked an Asian equivalent.²⁹⁰ Significantly, Article II (2) (a) of the Allied Control Council Law No. 10 of 20^th December 1945 included rape, torture, imprisonment as inhumane acts, but expurgated the war nexus,²⁹¹ and thereby, reinstated the customary international law descriptive characterization of the crime.

Comparably, the Genocide Convention of 1948 which criminalizes a type of crime against humanity does not require the armed conflict connective.²⁹² The 1968 Convention on Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity exempted crimes against humanity whether committed in time of war or in time of peace from statutory limitations.²⁹³ Article 5 of the ICTY Statute defined the contextual threshold of crimes against humanity as when committed in armed conflict, whether international or internal in character, and directed against any civilian population.²⁹⁴

It is worthy to bear in mind however, that the jurisdictional limitation of the ICTY does not reflect the current state of international customary law which does not require a nexus

acts performed by any person in execution of such plan‖ By Article 5, the crimes within the jurisdiction of the court are: (a) crimes against peace; (b) conventional war crimes; and (c) crimes against humanity.

290 ‗Tokyo Charter‘. < https://www.en.m.wikipedia.org/wiki/Tokyo_Charter > accessed on 10 January 2015.

291 That is atrocities or offenses, including but not limited to murder, extermination, enslavement,

deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated. See Control Council Law No. 10, 20 Dec. 1945, 3 Official Gazette Control Council for Germany 50 (1946), Reprinted in 1 Trials of War Criminals before the Nuremberg Military Tribunals under Control Council Law No. 10 at xvi (1949).

292 Hwang, art cit, p. 487.

293 Article I (b) of the 1968 Convention on Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity.

294 Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, U.N.

Doc S/25704 at 36, annex (1993) and S/25704/Add.1 (1993), adopted by Security Council on 25^th May 1993, U.N Doc. S/RES/827 (1993).

67

between crimes against humanity and an armed conflict.²⁹⁵ In contrast to the ICTY Statute, the ICTR Statute eliminates the armed conflict requirement; replaces it with the need for a widespread or systematic attack; and establishes the discriminatory grounds. Thus, Article 3 of the Statute of the ICTR describes the context of crimes against humanity as ‗when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds,‘ and thereby demands the discriminatory animus.²⁹⁶ Article 2 of the Statute of the Special Court for Sierra Leone dispenses with the armed conflict and discriminatory nexuses, but requires discrimination for only persecution as a crime against humanity.²⁹⁷ The trend has been followed by the national prosecution of the crime. The armed conflict and discriminatory nexuses were dispensed with by Article 12 of the Law of the Supreme Iraqi Criminal Tribunal.²⁹⁸

The war nexus limited the scope of the prohibition against crimes against humanity by excluding comparable inhumane acts committed in peacetime.²⁹⁹ The ICTY and the ICTR were established by the United Nations Security Council to punish mass atrocity crimes committed in the former Yugoslavia and in Rwanda.³⁰⁰ The armed conflict nexus has been discarded by Article 7 of the Statute of the ICC. Like the ICC provision, the definition of crimes against

295 V J Proulx, ‗Rethinking the Jurisdiction of the International Criminal Court in Post-September 11^th Era:

Should Acts of Terrorism Qualify as Crimes Against Humanity?‘ (2004) Vol. 19. AM. U. Int’L L. Rev, 1056.

296 However, it is important to note the ruling of the Appeals Chamber of the ICTR in Prosecutor v Akayesu, Case No. ICTR-96-4-A, 1^st June 2001, paras. 447-469: that the Trial Chamber had committed an error of law in finding that intent to discriminate on national, political, ethnic, racial or religious grounds was an essential element of crimes against humanity. ‗Article 3…does not require that all crimes against

humanity…be committed with a discriminatory intent‘. The Appeals Chamber ruled that Article 3 restricts the jurisdiction of the Tribunal to crimes against humanity committed in a specific situation, that is, ‗as part of a widespread or systematic attack against any civilian population‘ on discriminatory grounds.

297 Article 2, Statute of the Special Court for Sierra Leone: ‗The Special Court shall have the power to prosecute persons who committed the following crimes as part of a widespread or systematic attack against any civilian population…‘

298 Article 12, Law of the Supreme Iraqi Criminal Tribunal, No. 10 of 2005.

299 B V Schaack, ‗The Definition of Crimes Against Humanity: Resolving the Incoherence‘ (1999) 37 Colum.

J. Transnat’L L, p 793.

300 SC res. 955, UN SCOR 49^th sess., 3453^rd mtg, U.N. Doc. S/Res/955 (1994); 33 ILM 1598 (1994).

68

humanity in the amended Statute of the African Court of Justice and Human Rights has dispensed with the armed conflict requirement.³⁰¹ Today, it is certain that the legal definition of crimes against humanity no longer requires a nexus to armed conflict.³⁰²

The researcher states here that he is not unwary of the lingering debate over the question whether the Nuremberg Charter had created a new crime or merely exhumed one from the bowels of customary international law. The opinions of some law writers on this issue appear nebulous. The view of Cassese is that:

In all probability the IMT applied new law, or substantially new law, when it found some defendants guilty of crimes against humanity alone or of these crimes in conjunction with others. However, this was not in breach of a general norm strictly prohibiting retroactive criminal law…Immediately after the Second World War, the nullum crimen sine lege principle could be regarded as a moral maxim destined to yield to superior exigencies whenever it would have been contrary to justice not to hold persons accountable for appalling atrocities. The strict legal prohibition of ex post facto law had not yet found expression in international law;

301 Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights, adopted on 27^th June 2014, Article 28 C: 1. For the purposes of this Statute, ‗crime against humanity‘

means any of the following acts when committed as part of a widespread or systematic attack or enterprise directed against any civilian population, with knowledge of the attack or enterprise….‘

302 R C Slye, ‗Apartheid as a Crime Against Humanity: A Submission to the South African Truth and Reconciliation Commission‘ (1999) Vol. 20. Michigan Journal of International Law, p. 275.

69

nor did it constitute a general principle of law universally accepted by all states.³⁰³

Nevertheless, the researcher would align himself with the stance of Jallor that customary international law ‗arguably recognized some crimes against humanity, though not explicitly called as such, while also leaving the substantive content of the crimes unclear‘,³⁰⁴ or to that of Lippman who asserted that crimes against humanity are ‗rooted in transcendent humanitarian principles‘ suggested in the Hague Convention.³⁰⁵

In United States v Wilhelm List & Ors, the U.S Military Tribunal Nuremberg concluded that preexisting international law has declared the acts constituting the crimes herein charged and included in Control Council Law No. 10 to be unlawful, both under the conventional law and the practices and usages of land warfare that had ripened into recognized customs which belligerents were bound to obey.³⁰⁶ It should be noted that murder becomes no less murder because it is directed against a whole race rather than a single person.³⁰⁷ A crime of this magnitude must not be condoned; and its perpetrators should not be allowed to assert ignorance of the turpitude of their misdeeds. The probable consequence of the uncertainty on the status of the crime at that time was that the Nuremberg Judgment tended to blur discussion of crimes against humanity and war crimes and provided very little guidance on the particular elements of the crime.

Lesser war criminals were tried by military tribunals or national courts set up by the Allies under Control Council Law No. 10 in their various zones of occupation. Crimes against humanity had also appeared in some other international law instruments. Post-WW II

303 Cassese, op cit, pp. 106-107.

304 Jallor, art cit, p. 392.

305 M Lippman, ‗Crimes Against Humanity‘ (1997) Vol. 17. No. 2 B. C. Third World L. J. 172.

306 ‗The Hostages Trial‘. Trial of Wilhelm List and Others, United States Military Tribunal, Nuremberg, 8^th July 1947 – 19^th February 1948, pp. 53-54.

307 United States v von Leeb (1949), 11 Trials of War Criminals Before the Nuremberg Military Tribunals at 497, cited in T Meron, ‗International Criminalization of Internal Atrocities‘ (1995) 89 American Journal of International Law, 567.

70

jurisprudence and case law from the mixed international tribunals have also illuminated the crimes. Crimes against humanity were included by the ILC in the Draft Code of Crimes Against the Peace and Security of Mankind,³⁰⁸ as well as affirmed in several United Nations General Assembly Resolutions.³⁰⁹ The Draft Code too abandoned the armed conflict link. Like the Control Council No. 10 Law, the ICC Statute includes sexual offences: sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, sexual violence, enforced disappearance, deportation or forcible transfer of population, and the crime of apartheid.³¹⁰

The Statute of the ICC has discarded the armed conflict nexus, and the discriminatory animus except for the crime of persecution. The framework of the large scale or systematic pattern in the context of which a given criminal conduct is committed is the constitutive element of crimes against humanity.³¹¹ Taiwo has articulated the view that the jurisprudence of crimes against humanity is a result of developments in international humanitarian law over the last half of the 20^th century with the central aim of protecting civilian populations from grievous harm.³¹² 3.3 The Contextual Elements of Crimes against Humanity

The contextual element of crimes against humanity exactly corresponds to the circumstances in which they are committed.³¹³ By Article 7 of the Statute of the ICC, crimes against humanity are constituted by: (a) the enumerated acts (b) committed as part of a widespread or systematic (c) attack directed against a civilian population, (d) with knowledge of the attack and (e) pursuant to or in furtherance of a State or organizational policy to commit such attack. The actus reus of a

308 Draft Code of Crimes against the Peace and Security of Mankind 1996. The chapeau to Article 18 provided that a crime against humanity means any of the following acts, when committed in a systematic manner or on a large scale and instigated or directed by a Government or by any organization or group.

309 For example, United Nations Security Council Resolution 1820, S/RES/1820 19^th June 2008.

310 Article 7 ICC Statute.

311 M Frulli, ‗Are Crimes against Humanity More Serious than War Crimes?‘ (2001) Vol. 2. No. 2. European Journal of International Law, 334.

312 L O Taiwo, ‗International Criminal Court: The United States and the Fight Against Impunity,‘ (2007 – 2009) Vols. 2 and 3. Journal of Private and Comparative Law, 37.

313 Frulli, art cit, p. 334.

71

crime against humanity consists of an attack that is inhumane in nature and character, causing great suffering, or serious injury to body or mental or physical health, committed on a widespread basis against a civilian population.³¹⁴

To actuate the jurisdiction of the ICC, there must be (i) an attack; (ii) a nexus between the specific crimes and the attack; (iii) the attack must be committed against any civilian population;

and (iv) the attack must be committed on a widespread or systematic basis. From the wording of Article 7 (1) of the ICC Statute, a differentiation is made between a required macro-criminal context eo ipso- the chapeau; and a micro-criminal participation in the crime by the perpetrator.

The larger context is codified as ‗widespread or systematic attack directed against any civilian population‘. The micro-criminal participation is codified through the phrase ‗any of the following acts‘ followed by a catalogue of offences. The notion ‗committed as part of…with knowledge of the attack‘ was incorporated to serve as a nexus between the macro - and micro-criminal sections of crimes against humanity.³¹⁵ It is necessary for the prosecution of crimes against humanity that the attack should be ‗widespread or systematic‘.

An attack is an unlawful act of the kind enumerated in Article 7 (1) of the ICC Statute.³¹⁶ Under Article 7 (3) of Introduction to the Elements of Crimes against Humanity adopted by the Preparatory Commission for the International Criminal Court, the acts comprising the attack need not constitute a military attack.³¹⁷ Therefore, it includes any mistreatment of the civilian

314 V Proulx, ‗Rethinking the Jurisdiction of the International Criminal Court in Post-September 11^th Era:

Should Acts of Terrorism Qualify as Crimes Against Humanity?‘ (2004) Vol. 19. No. 5. AM. U. Int’L L.

Rev, 1059-1060.

315 B Kuschnik, ‗Humaneness, Humankind, and Crimes Against Humanity‘ (2010) Vol. 2. Goettingen Journal of International Law, 519.

316 Under Article 2 (a) of the ICC Statute, ‗Attack directed against any civilian population‘ means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian

population, pursuant to or in furtherance of a State or organizational policy to commit such attack.‖

317 International Criminal Court, Elements of Crimes, U.N. Doc. PCNICC/2000/1/Add.2 (2000).

72

population.³¹⁸ The attack must be either widespread or systematic, and not necessarily both.³¹⁹ Nevertheless, some writers are of the view that the attack should entail a modest degree of scale and organization.³²⁰ ‗Widespread‘ indicates a massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims.³²¹ This requirement is satisfied if the attack has been executed on a large scale affecting many people or a multiplicity of victims.³²² In Prosecutor v Dusco Tadic, the Appeals Chamber of the ICTY acknowledged that crimes which are unrelated to widespread or systematic attacks on civilians should not be prosecuted as crimes against humanity.³²³ Nevertheless, a singular massive act of extraordinary magnitude; would be regarded as being widespread.³²⁴

In the lexicon, systematic suggests notions of method, routine, organization and regularity.³²⁵ Tribunal jurisprudence on the term is consistent with its lexical usage. In Prosecutor v Jean-Paul Akayesu, ‗systematic‘ was defined as thoroughly organized and following a regular pattern on the basis of a common policy involving substantial public or private resources.³²⁶ There is no requirement that the state must have formally adopted the policy. Nevertheless, there must have been in existence a preconceived plan or policy.³²⁷ Parameters like patterns, continuous commission; use of resources, planning, and political

318 Prosecutor v Vasiljevic, (ICTY Trial Chamber), 29^th November 2002, paras. 29, 30.

319 Prosecutor v Akayesu (ICTR, Trial Chamber) 2^nd September 1998, para. 579.

320 Cryer et al, op cit, p. 194

321 Prosecutor v Seromba, (ICTR Trial Chamber), 13^th December, 2006, para. 356.

322 Prosecutor v Kayishema and Ruzindana, (ICTR Trial Chamber), 21^st May 1999, para. 123.

323 Prosecutor v Dusko Tadic, (ICTY Appeals Chamber) IT-94-1-A, Judgment of 15^th July 1999.

324 Prosecutor v Kordic (ICTY Trial Chamber) 26^th February 2001, para. 176.

325 Holt School Dictionary of American English defines ‗systematic‘ as ‗arranged or carried on‘ according to a system; methodical. It defines ‗system‘ as ‗orderly method of doing things.‘ (New York: Holt, Rinehart and Winston Publishers, 1981) p. 824.

326 Akayesu, supra, para. 580.

327 Prosecutor v Musema, (ICTR Trial Chamber), 27^th January 2000, para. 204. The ILC Draft Code of Crimes defines systematic as meaning pursuant to a preconceived plan or policy. The implementation of this plan or policy could result in the repeated or continuous commission of inhumane acts. The thrust of this requirement is to exclude random acts that were not committed as part of a broader plan or policy. Article 18, para. 3 of Commentary.