Tuesday, 26 July 2011

Crimes Against Humanity in Norway?

There are news reports that prosecutors in Norway are contemplating prosecuting Anders Behring Breivik, who was responsible for the bombing and mass murder that took place a few days ago, for crimes against humanity.
Norway's own domestic legislation may be sufficiently large that such acts are covered. To the extent that it is drawn from international law sources, the issue will be the source.
If the Norwegian legislation follows the text of the Rome Statute, it would seem unlikely that the recent atrocities fit within the definition. Not only does article 7 of the Rome Statute require that the crimes be part of a 'widespread or systematic attack on a civilian population', the attack must be 'pursuant to a state or organizational plan or policy'.
It might be argued that Breivik was acting pursuant to the plan of some organization. That, in turn, raises the issue of the nature of the organization. Last year, a Pre-Trial Chamber of the International Criminal Court divided on this issue. The majority interpreted the concept broadly enough so that it could encompass the post-electoral violence in Kenya. In dissent, Judge Hans-Peter Kaul reviewed the historical sources and held that the 'organization' in question must be affiliated with a State or State-like entity.
If the Norwegian legislation departs from the text of the Rome Statute and has no reference to State or organizational policy, the issue will remain as to whether the State or organizational plan or policy is a requirement that is implied within the general notion of crimes against humanity. The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia has said that it is not. See Kunarac, para. 98, fn. 114.
But the discussion of this issue by the Appeals Chamber in Kunarac is decidedly unsatisfactory. It lists several sources that it says support such a conclusion. But on examination, these sources do not bear out the interpretation given by the Appeals Chamber. For example there is an inaccurate reference to the International Law Commission report of 1954. The Appeals Chamber said it provided support for the exclusion of a policy component. In fact, after lengthy consideration, the Commission decided to include such an element. The Chamber also invokes an Australian precedent. But the Australian precedent does nothing more than cite an academic journal article published in 1946 that apparently explains the fallacy of a judgment issued in 1948. I don't know how that could happen.
In my opinion, the better view is that crimes against humanity under general international law should be applied in a manner consistent with the Rome Statute, rather than in the broader approach taken by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia. In other words, unless the Norwegian legislation expressly rejects the policy element, which seems unlikely, then Norway's judges should read this into the definition.
Such a result  is likely to disappoint some, who will be excited at the idea that an insane, neo-fascist terrorist is being prosecuted for crimes against humanity. And I'll not be surprised if someone writes me in the next day or two asking if it might be genocide. After all, the perpetrator seems to have been intending to destroy his political opponents. Last week, in Buenos Aires, I heard a judge explain that genocide was really meant to encompass political groups as well as national, ethnic, racial and religious groups, and for that reason he had issued a ruling that condemned torturers in the Argentinian military for genocide. As a fallback argument, weren't all of the victims Norwegian? So he was trying to destroy a national group 'in part'.
But as explained above, rather than search for technical literal interpretations that generate extravagant results, we are better to interpret the definitions of international crimes in their context, and with an eye to their origins. Above all, we should consider the purpose of international criminalization. 
A good test in this respect is to question whether there will be impunity. When crimes are committed as a result of state policy, generally there is impunity, and for obvious reasons, unless there has been a change in regime. Of course, crimes like those perpetrated in Norway will certainly not go unpunished. There will be no need for universal jurisdiction, or international tribunals, or truth commissions, or labels like jus cogens and erga omnes, or joint criminal enterprise or co-perpetrationThey are multiple murders and I am sure that the perpetrator will go to jail for a very long time. Unless of course he is deemed to be insane, which is not entirely improbable. In that case, he'll be put in secure confinement until he has recovered. Justice will be done, and without the need for international law. My advice to the Norwegian prosecutor would be to stick to the ordinary criminal code, which has everything that is needed to deal with this tragic situation.

Thanks to Evelyne Schmid.


mihai martoiu ticu said...

At least International Law gets in the news.

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Mark said...

A quick browse through the National Implementing Legislation Database (available via the ICC website) reveals that Norway's legislation includes a "widespread or systematic attack against a civilian population" requirement, although it does not explicitly make reference to "State or organisational policy" (Penal Code, ch 16, s102). But there is no explicit rejection of the latter.

Excluding the possibility of Norwegian courts reading the "policy" element into the definition, it does seem feasible that prosecution may occur under this heading (given especially the extensive premeditation, the broader goal of the massacre and the suggestion of additional "cells"), however much the crime was not designed for such circumstances. Bassiouni suggests, in his seminal book on the topic, that going down such a route will lead to the "serious problem" of
trivilialising the very notion of crimes against humanity.

But I note that in your post you mention the main rationale behind "international criminalisation" to be impunity. Here that is simply not at issue as we are not talking about international law, or international procedure. The basis of invoking "crimes against humanity" becomes, rather, the seriousness of what has been done, and the complex, calculated design and purpose of the attacks.

Although probably falling short of the Rome Statute's "State or organisational plan or policy", is there any scope for a broader definition at a purely domestic (specifically Norwegian) level, thereby allowing for a longer sentence? Arguably this approach would leave crimes against humanity's stricter definition intact as an international crime, triggering (where appropriate) the jurisdiction of the ICC. Or would this threaten to subvert the definition of the term across all jurisdictions - national and international?

Of course, this is probably all academic (and I mean that in a good way!) as Breivik will in all likelihood be adjudged insane.

Evelyne said...

I tend to think that the acts in Norway should not be qualified as crimes against humanity. I agree that such a qualification seems unnecessary and removed from the origins of crimes against humanity as crimes that need international involvement to be effectively addressed (because the state itself, or at least a state-like entity, is involved in their commission). Gladly, there is no doubt that the Norwegian judicial system will be able to deal with the accused. The higher maximum sentence for CAH alone does in my view not justify a departure from the ordinary domestic crimes even where (as MC suggests) it is technically possible to interpret the Norwegian legislation not to have a policy requirement for CAH. In any event, an interesting development.

On the insanity issue: I am very sceptical that it is so obvious that Breivik will be adjudged insane. His gruesome acts are so outrageous that they are, indeed, insane in the colloquial sense of the term. But that doesn't mean the perpetrator will necessarily be deemed insane in the medical sense of the term. Of course, it will be up to psychiatrist experts to examine that question, but at this stage, it is too easy and dangerous for "Europe" to conclude that the perpetrator was simply insane; relegating the debate about his political motivations and his connections to a wider rhetoric and network to a secondary role.

Mark said...

ES - yes, I tend to agree with you on the insanity point; it's not the conclusion I would reach based on the meticulousness planning of the massacre, etc and it would not bode well based on a policy point of view. In any case, as you say, it is not for us to judge, and I'm sure people will have their own opinions whatever happens.

Mark Klamberg said...

MC makes an adequate observation that the policy element is absent in the Norwegian legislation on crimes against humanity.

I have also read the prepatory works on the abovementioned legislation and it does not mention the policy element at all.

Ann-Ida Ostensen said...

I recently researched the policy requirement in crimes against humanity which led me to your blog. I believe it is not so clear-cut whether Breivik should be charged with crimes against humanity. I want to explain something about the Norwegian penal code on this specific matter. As pointed out by some others here in the comment field, the implementation of crimes against humanity in the Norwegian penal code does not include the "policy" requirement. It is true that the international crimes provisions are in general based on the definitions given by the Rome Statute, but it was taken a decision to deviate from the Rome statute on this point.

According to the Norwegian Prepatory Work (Ot.prp. nr. 8, 2007-2008) it was sent out as a question on hearing to relevant bodies in Norway whether the provision should include the "policy" requirement or not. After hearing the different views, the lawmakers decided to leave it out because they believed the policy requirement in the Rome statute does not express international customary law and is only included in the Rome statute as a result of a diplomatic compromise. (this can of course be questioned if is correct understanding of customary international law, but nevertheless this was the lawmaker’s interpretation). They referred to ICTY and ICTR statutes which does not include this element and the case-law which specifically has rejected the requirement and decided that in the instances where the Rome Statute has a more narrow interpretation of the international crimes, Norway wants to follow the more wide interpretation.

When it was a specific consideration by Norwegian law makers in implementing crimes against humanity in our penal code to leave out the policy requirement, do you still think that this requirement should pose an obstacle to charge Breivik for crimes against humanity? It has a clear advantage to get a judgment on crimes against humanity, since it has a range of sentencing up to 30 years instead of the usual 21 years maximum for murder. Besides, it also gives a better classification of the crime, since it is the most horrible and shocking crime in Norwegian history in peace time and judging by the international attention as well, Breivik’s crimes “deeply shock the conscience of humanity” and fit in the category of “the most serious crimes”.

Best Regards,
Ann-Ida Ostensen
Norwegian Law student and LL.M in Public International Law.

Daphne said...

I believe the submission in the Kunerac case was concerned whether the requirement of "pursuant to State or Organizational policy" should stand in prosecution of a crime committed before the Rome Statute had come into force. Provided the objectives of the Rome Statute is to prosecute crimes shocking the conscience of human, crimes of international concerns, and the express requirement for state or organizational participation, this element stands firm, and cannot be shaken in any court in the future.