Statement by Helen Brady
My co-author Ryan Liss and I have written a chapter called “The Evolution of Persecution as a Crime against Humanity” in ‘Historical Origins of International Criminal Law: Volume 3’. The crime of persecution as a crime against humanity has been a very important crime in the modern courts and tribunals and explored in-depth in these courts. The ICTY in particular has an extensive case law on this crime – probably the crime which best capture the ethnic cleansing in the former Yugoslavia in the 1990’s. It has really been the flagship crime at that court, with over 70 people charged and more than 60 convictions. At the ICC, there has been increasing attention on this crime, with 14 people charged, including 5 in trial or about to be tried at the time of speaking. Its importance in the modern day work of the courts and tribunals gave us the impetus to examine it and its historical origins in more detail.
In its most common form, persecution criminalizes conduct whereby a perpetrator harms or infringes the human rights of another person because of the victim’s membership, association or identification with a group. The harm of the crime really goes to the heart of what it is to be human: attacking both a person’s individuality as well as his or her ability to associate or identify with others. As such, it can be considered a quintessential international crime. It is also unique because it has no counterpart in the war crimes regime and is largely unknown as a domestic crime in national criminal justice systems (save where ICC crimes are incorporated).
Our chapter tours the entire evolution of this crime: its earliest roots post-World War I; discussions to create the IMT at Nuremberg; the crime in the London and Tokyo Charters; the Nuremberg Judgment and Control Council Law No. 10 cases; national prosecutions in the Cold War period; and an in-depth look at its contemporary shape in the extensive case law of the modern international criminal courts and tribunals.
What struck us most was that the issues, aspirations and concerns foremost in the minds of the historical policy-makers, legislators, prosecutors and judges when addressing this crime were essentially the same as those driving their modern counterparts when dealing with it. In both contexts, the historical and the modern, there has been a persistent tension between (a) acknowledging that persecutory conduct is not just a concern for the State where the conduct occurred, but is of wider international concern; and, at the same time, (b) recognizing that it lies at the cusp of matters of national and international concern and needs some cabining to prevent it encroaching on what may better belong to the domestic domain.
So the history of this crime is really a story of efforts to delineate between discriminatory conduct of domestic concern, and that rising to the level of persecution as a crime of international concern. Over the years, the various requirements for the crime – nexus to armed conflict; threshold gravity; an association with a widespread or systematic attack against a civilian population, an organizational plan or policy or other crimes; who can be targeted and its discriminatory intent – reflect this attempt to draw an appropriate line between the domestic and international, while simultaneously ensuring the crime has enough mettle to address serious and mass discriminatory violations of human rights which are of international concern. History shows us that where and how to draw this line has not always been easy and straightforward. But we end on a positive note with the hope that future developments in relation to the crime will continue to ensure that persecution as a crime against humanity will remain an effective humanity-wide response to a humanity-wide concern.
It has been a pleasure to be part of this important and ambitious research project.
