Readers of this blog will know that I am not an enthusiast for expansive approaches to crimes against humanity. I have written on several occasions criticising the very broad interpretation given to crimes against humanity by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia when it said that no plan or policy was required as an element of the crime. The concern was that without such an element, a range of acts committed by gangsters, motorcycle gangs, serial killers and the like would be encompassed within the definition. Proponents of a broad interpretation want to use it to include terrorists. And recently, I wrote about the attempts to label the recent terrorist killings by an insane individual as crimes against humanity.
Certainly, according to the definition adopted by judges at the International Criminal Tribunal for the former Yugoslavia, the recent riots in London would meet the terms of crimes against humanity.
At the International Criminal Court, things are slightly different. There, article 7(2)(a) of the Rome Statute requires that crimes against humanity be perpetrated as part of a 'state or organizational policy'. Academics such as Cherif Bassiouni have argued - correctly, to my mind - that the word 'organizational' must be read in its context. It is not a general invitation to include any form of organized criminal activity. Rather, the organization in question must be either part of the state or 'state-like', in the sense of association with an entity that behaves like a state, that controls territory, etc. But fans of the broad approach argue that the term 'organizational' means that the Statute is not confined to acts perpetrated by a State or state-like entity. They want the Rome Statute to be as extensive as the case law of the Yugoslavia Tribunal.
The first serious interpretation of this provision by the International Criminal Court has arisen in the Kenya situation. It deals with post-electoral violence. In the initial decision authorising the investigation, Judge Hans-Peter Kaul wrote a very compelling dissenting opinion in which he insisted that such acts did not belong within the scope of crimes against humanity. He referred to the historical origins of the term crimes against humanity, and the need for the term to be focussed on the state.
But Judge Kaul was overruled by the majority, which leaned towards the more expansive view. At the extreme, this takes crimes against humanity to mean all organized acts that are not random. Ultimately, the gangs and serial killers fall within the net.
And that would mean that those involved in the London riots are also perpetrators of crimes against humanity. There may be some distinctions between the post-electoral violence in Kenya and the London riots, but they are nuances, matters of degree. One cannot draw a bright line between them.
It will be argued that in any event the British justice system is dealing very aggressively with the London violence, and that as a result the crimes would not be subject to prosecution on the basis of complementarity. The British justice system is 'willing and able' to bring those responsible to justice.
But here we encounter another problem with the way the Rome Statute is being applied. The judges at the International Criminal Court have tended to an analysis whereby it is not adequate that perpetrators be tried for any crime in order for complementarity to be addressed. The theory is that they must be tried for the precise crimes under the Rome Statute. Otherwise, the terms of the Statute are not respected and the case is admissible. In the first case, Lubanga, the accused was being prosecuted for serious crimes in the Congo, but he was not being prosecuted for recruiting child soldiers. As a result, the Court said the case was admissible.
Are any of the teenage hoodlums in London being prosecuted for crimes against humanity? Is Britain failing in its duty to adequately describe the nature of the crimes - and thereby deprive victims of the justice they are entitled to - by labeling the acts using ordinary criminal classifications, such as assault, mischief, theft, arson, vandalism and so on?
And what about the gravity threshold? Again, the analysis of the Prosecutor is so nebulous as to make it a flexible tool capable of describing virtually anything as sufficiently serious (or not). No doubt he will answer that the London riots are nut sufficiently serious to meet the gravity threshold.
This would make a good exam question. 'Explain why, in light of the case law of the International Criminal Court, the teenage (over 18) perpetrators involved in the August 2011 riots in London, should not be charged by the Court for crimes against humanity.'
Of course we all know that riots in Nairobi and riots in London are not the same thing. Should anyone be surprised that so many Africans think the Court is focusing its attention unfairly on their continent.