IDENTIFYING THE SECOND VERSION OF THE AR DESIGN PRINCIPLES

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connection with any act referred to in Article 7 (1), no additional mental element is required except the objective test of ‗widespreadness‘ or ‗systematicity.⁴⁹⁰

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murder will be surreptitious, with the corpse disposed of to escape discovery; so that the person apparently vanishes. The perpetrator has deniability, as nobody provides evidence of the victim‘s death.⁴⁹⁵ Two major kinds of conduct are implicated: deprivation of liberty and withholding of information. The criminal prohibition of enforced disappearance protects the interests of family members in knowing the fate of the missing person and provides retribution for the harm inflicted upon these secondary victims.⁴⁹⁶

The crime of enforced disappearance of persons gained global prominence when Adolf Hitler on 7^th December 1941 issued ‗Nacht und Nebel Erlass‘ (the Night and Fog Decree). Its purpose was to seize persons in Nazi occupied territories that were ‗endangering German security‘ and make them vanish without a trace. No information was given to victim‘s families as to their fate, even when, as often occurred, it was merely a question of the place of burial in the

―Reich‘.⁴⁹⁷ Enforced disappearances were later used as ‗a systematic policy of State repression‘

starting in Guatemala and Brazil in the 1960s and 1970s. They came to be practiced extensively throughout Latin America in the 1970s and 1980s, affecting tens of thousands of people.

Governments would routinely abduct people, hold them in clandestine prisons, subject them to torture and often execute them without trial. The bodies were frequently hidden or destroyed to eliminate any material evidence of the crime and to ensure the impunity of those responsible.⁴⁹⁸

The ICC Elements acknowledge that given the complex nature of this crime, its commission will normally involve more than one perpetrator as part of a common criminal

495 ‗Forced Disappearance‘. < https://www.en.m.wikipedia.org/wiki/Forced_disappearance > accessed on 10^th April 2015.

496 B Finucane, ‗Enforced Disappearance as a Crime under International Law; A Neglected Origin in the Laws of War‘ (2010) Vol. 35. The Yale Journal of International Law, 173.

497 D Vitkauskaitė-Meurice, and J Žilinskas (2010), ‗The Concept of Enforced Disappearances in International Law‘ (2010) 2 (120) Jurisprudence,197-198.

498 K Anderson, ‗How Effective is the International Convention for the Protection of All Persons from Enforced Disappearance Likely to be Holding Individuals Criminally Responsible for Acts of Enforced Disappearance?‘ Vol. 17. (2006) Melbourne Journal of International Law, 245.

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purpose.⁴⁹⁹ The Elements recognize that the crime may be committed by the perpetrator (a) arresting, detaining, or abducting one or more persons; or (b) by refusing to acknowledge the arrest, detention or abduction, or to give information on the fate or whereabouts of such person or persons.⁵⁰⁰ Enforced disappearance may be committed with State complicity or simply by political organizations. This is consistent with the fundamental proposition that crimes against humanity may be committed by non-State actors.⁵⁰¹ It is an innovation peculiar to the ICC Statute as it has no precedent in the UN Declaration or the Inter-American Convention. The crime of enforced disappearance under Article 7 of the Rome Statute is a complex offence. It has been called an ‗octopus crime‘ as well as a ‗permanent crime‘. Several persons could be prosecuted at different stages of the disappearance even though some of them may or may not be aware of the acts committed by others in the chain of events.⁵⁰²

3.4.10 Apartheid

Two treaties: the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity 1968,⁵⁰³ and the Convention on the Suppression and Punishment of the Crime of Apartheid 1973,⁵⁰⁴ had recognized apartheid as a crime, long before the adoption of the ICC Statute. Professor Shaw has argued that the Convention on the Suppression and Punishment of the Crime of Apartheid 1973, declares apartheid to be an international crime involving direct individual responsibility.⁵⁰⁵ Apartheid was a system of racial segregation in South Africa enforced by the ruling National Party governments from 1948 to 1994, through legislation. Under apartheid, the rights, associations, and movements of the majority black

499 See footnote 23, ICC Elements of Crimes.

500 ICC Elements, Article 7 (1) (i) (1) (a) and (b).

501 Cryer et al, op cit, p. 217.

502 D Vitkauskaitė-Meurice and J Žilinskas, art cit, p. 205.

503 Article 1 (b).

504 Preamble, para. 5.

505 M Shaw, International Law (4^th edn, Cambridge: Cambridge University Press, 1997) p.69.

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inhabitants and other ethnic groups were curtailed and Afrikaner minority rule was maintained.⁵⁰⁶ Most of the acts prohibited by the Apartheid Convention are contained in Article 7 of the ICC Statute.⁵⁰⁷

Apartheid is criminalized by Article 7 (1) (j) of the ICC Statute. Article 7 (2) (h) defines apartheid as inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime. The definition in the ICC Statute was extended to cover not only the situation which had prevailed in South Africa, but similar situations which may arise in future.

The requirement of ‗similar character‘ invariably covers acts of identical character. In this

506 ‗Apartheid‘. < https://www.en.m.wikipedia.org/wiki/Apartheid > accessed on 11^th April 2015.

507 Article II of the Apartheid Convention provides as follows: For the purpose of the present

Convention, the term ‗the crime of Apartheid,‘ which shall include similar policies and practices of racial segregation and discrimination as practiced in southern Africa, shall apply to the following inhuman acts committed for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them:

(a) denial to a member or members of a racial group or groups of the right to life and liberty of person:

(i) by murder of members of a racial group or groups;

(ii) by the infliction upon the members of a racial group or groups of serious bodily or mental harm, by the infringement of their freedom or dignity, or by subjecting them to torture or to cruel, inhuman or degrading treatment or punishment;

(iii) by arbitrary arrest and illegal imprisonment of the members of a racial group or groups;

(b) deliberate imposition on a racial group or groups of living conditions calculated to cause its or their physical destruction in whole or in part;

(c) any legislative measures and other measures calculated to prevent a racial group or groups from participation in the political, social, economic and cultural life of the country and the deliberate creation of conditions preventing the full development of such a group or groups, in particular by denying to members of a racial group or groups basic human rights and freedoms, including the right to work, the right to form recognized trade unions, the right to education, the right to leave and to return to their country, the right to a nationality, the right to freedom of movement and residence, the right to freedom of opinion and expression, and the right to freedom of peaceful assembly and association;

(d) any measures, including legislative measures, designed to divide the population along racial lines by the creation of separate reserves and ghettos for the members of a racial group or groups, the prohibition of mixed marriages among members of various racial groups, the expropriation of landed property belonging to a racial group or groups or to members thereof;

(e) exploitation of the labour of the members of a racial group or groups, in particular by submitting them to forced labour;

(f) Persecution of organizations and persons, by depriving them of fundamental rights and freedoms, because they oppose apartheid.

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context, ‗character‘ refers to the nature and gravity of the act,⁵⁰⁸ and that the ‗inhumane act‘ had been committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group.⁵⁰⁹ Furthermore, the perpetrator must have intended to maintain such regime by his conduct.⁵¹⁰