Origin of Crime Against Humanity and Definition

Present legal instruments have not convened an international conference to sign a treaty on crimes against humanity to ensure its consensual definition. Despite this, most publicists of international law trace the sources of its origin. Some scholars limit its origin to the racial setting in which the civilian population of European Armenians experienced systematic murder, extermination, imprisonment and deportation by the Ottoman Empire in 1915 (Douglas Reference Douglas1976), neglecting consideration of the systematic murder, extermination and enslavement of the African civilian population in the present Democratic Republic of Congo by Leopold II of Belgium. ^{Footnote 12}

The exclusion of the European institutions to condemn and recognize the mistreatment of the African civilian population that has experienced conditions similar to the crime against humanity ^{Footnote 13} constitutes a denial of the Africans from justice of apology in favour of the European Armenians. However, from this juncture, the united notion of crime against humanity emanated, evolved and developed under international customary law. Next to this recognition of the crimes against humanity, the Statutes of the International Criminal Court (ICC), the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda create bona fide legal jurisdictions to the crimes against humanity.

Indeed, the definition of the crime against humanity by the ICC triggers the latest consensus among the States Parties in the international legal system. Article 7 of the ICC lists specific acts that may constitute a “crime against humanity”. It defines it as “means any of the following acts, when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack” involving murder; extermination; enslavement; deportation or forcible transfer of population; imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; torture; and rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity.

The definition of war crimes is important to establish its conformity or discrepancy to the report of the AU Commission of Inquiry on South Sudan with limited scope.

Definition of War Crimes

For Rousseau ([1895] Reference Rousseau1762), “Man was born free, and everywhere he is in chains.” It is bona fide that a human being is born free and remains free; however, the chains of his or her freedom spring or emanate from the compliance with freedom itself. Freedom is an interdependent, interrelated and indivisible right with the freedom of others. Article 5 of the Vienna Declaration and Programme of Action defines that “All human rights are universal, indivisible, and interdependent and interrelated” ^{Footnote 14} everywhere at any time in the same manner.

The universal compliance and adherence of sane and natural persons to Article 5 of the Vienna definition of human rights chains the individuals’ freedom to exercise their freedoms of war, fight and violence against belligerents within the limited scope of the customs of warfare. Recognition of human sanctity and dignity in customs of warfare is a global agenda without a provision in international law that attempts to eradicate or diminish it, but it is a general practice accepted as law by the civilized political, social and economic communities.

Article 38(1)(b) of the International Court of Justice conforms to the significance of the customs in addressing and resolving disputes notwithstanding; Article 38(1)(c) expressly upholds the necessity of customs to exhibit general principles of law recognized by the civilized nations. The term “civilized nations” is controversial, but it depends on the nations’ experiences that constitute best the civilized nations from uncivilized nations.

Taking no notice and reckon to the customs of warfare in war generates the classification of such nation(s) as an uncivilized nation(s) with subsequent war crimes, which dictate punishment. ^{Footnote 15} Article 8(2) of the ICC Statute offers a collective definition from the Geneva Conventions; nonetheless, since the violence in South Sudan is not of international armed conflict but national, it excludes other definitions and takes the relevant definition to it as a national conflict, and particularly for the ICC Statute (International Criminal Court 2011:6–7), “war crimes” means:

1. (i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

2. (ii) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;

3. (iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;

4. (iv) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;

5. (v) Pillaging a town or place, even when taken by assault;

6. (vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, (b), enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions;

7. (vii) Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities;

8. (viii) Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand;

9. (ix) Killing or wounding treacherously a combatant adversary;

10. (x) Declaring that no quarter will be given;

11. (xi) Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;

12. (xii) Destroying or seizing the property of an adversary unless the necessities imperatively demand such destruction or seizure of the conflict;

13. (xiii) Employing poison or poisoned weapons;

14. (xiv) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;

15. (xv) Employing bullets which expand or flatten in the human body, such as bullets with a hard envelope which does not cover the core or is pierced with incisions.

Definition and Commission Report

It is significant to contrast the definition of crimes against humanity with a report of the AU Commission. The AU Commission of Inquiry on South Sudan (2014:212) reports that it “heard and received reports from witnesses and survivors of rape, gang rape, murder, killing, sexual assault, torture, and cruel, inhuman and degrading treatment as well as abductions, sexual slavery, disappearances and targeting of foreign women”. The AU Commission of Inquiry on South Sudan (2014:212) concludes that it is uneasy to “verify these allegations”. For Kostenko and Rudin (Reference Kostenko and Rudin2018), criminal law has many outstanding issues and conflicting opinions concerning the procedural order of evidence verification.

What remains unanswered in the discipline of international criminal law is how to ensure consensus on the verification procedures for criminal allegations. Article 51(1) of the ICC Statute conditions that the rules of procedure and evidence shall enter into force upon adoption by a two-thirds majority of the Assembly of States Parties members. The reservation from some States’ Parties from rules of procedure and evidence in criminal law emanates from conflicting interests. For instance, the war in South Sudan is not ideological violence but from the divided ethnic groups, the Dinka and the Nuer. Under ethnic war, it makes it difficult to obtain trustful, creditable and reliable testimonies from witnesses in courts.

In Africa, ethnicity plays a significant role, negatively or positively. The negative part comes from the violence between two warring ethnic groups. For instance, Human Rights Watch (2008) reported that in Kenya, an ethnic Kalenjin councillor addressed a rally in the town of Soi and promulgated that, if elected, he would “remove the roots” of the local Kikuyu ethnic group from the area “so there would be only one tribe there”. Post-elections 2007, many Kikuyu were killed but accused and charged William Ruto, the current President of Kenya.

In case law, the Trial Chamber of the ICC terminated the case of two defendants, William Samoei Ruto and Joshua Arap Sang. The Chamber, concluding that in consideration of the requests of Mr Ruto and Mr Sang that the Chamber finds that there is “no case to answer”, dismissed the charges against both the accused and entered a judgment of acquittal. The Chamber also considered the opposing submissions of the prosecutor and the legal representative of the victims and received further submissions during the hearings held from 12 to 15 January 2016. Based on the evidence and arguments submitted to the Chamber, Presiding Judge Chile Eboe-Osuji and Judge Robert Fremr, the majority agreed that the charges would be vacated and the accused would be discharged immediately. ^{Footnote 16}

The decision of the Trial Chamber of acquittal implies that there is no trustful, reliable and credible evidence from submissions of the legal representative of the victims, which relies very much and mostly on the account and narratives of present witnesses in the authoritative court.

Trust, Reliability and Credibility in Criminal Law

Criminal law places judges in a dilemma of trust, credibility and reliability regarding the witnesses during their testimonies in front of them in competent courts of authoritative regimes. Theoretically, witnesses in accountability or punishment often may have none of the three rudimentary traits comprising trust, credibility and reliability to receive facts from them.

In criminal law, trust is not limited to property, but it embodies the responsibility of a person in society as an identical person trusted with the authority to act in compliance with the law and report trusted information about the conduct of other individual natural persons(s) that contravene(s) the unlawful act by law. It refers to the trust of individuals, governments and international bodies to the facts and data or information from them. Fact is a social, cultural, political, economic and civil property entrusted upon individuals by law to hold and develop for the benefit of the people, regardless of religious, ethnic, national, racial, colour, language, tribe, region and gender backgrounds.

Credibility, however, refers to information free of probability and tenability but offers and furnishes plausible facts of substantial documentary evidence to the local, national and international governmental systems. Giannelli (Reference Giannelli1978) observes that, in most criminal trials, guilt and innocence are easily established when the jury decides which witnesses provide credibility and which do not. Reliability refers to an informative source with consistent evidence free of uncertainty but worthy of fact(s) for investigation and ends with truth. ^{Footnote 17}

The presence of probability from the information and the reports received from witnesses of war events persuades the AU Commission of Inquiry on South Sudan (2014:212) to conclude that it is difficult to “verify these allegations” which may constitute crimes against humanity and war crimes in the national armed conflict between the rebels and the government.

Article 15 of the International Criminal Statute (International Criminal Court 2011:9) stresses the significance of reliable information to the Prosecutor of the ICC. It states, “The Prosecutor shall analyse the seriousness of the information received. For this purpose, he or she may seek additional information from States, organs of the United Nations, intergovernmental or non-governmental organizations, or other reliable sources that he or she deems appropriate.”

Suspicion of the credibility and reliability of the reports obtained from witnesses creates two categorical legal camps for the South Sudanese nationals; first, the camp for the advocates of amnesty ^{Footnote 18} and second, the camp for advocates of accountability. ^{Footnote 19} The former urges amnesty for the perpetrators that admit criminal guilt of violation of international humanitarian law, and the latter requests the indictment of the suspects and their punishment as perpetrators of criminal offences in an authoritative judicial court(s) with jurisdiction to try crimes against humanity and war crimes. The advocates argue that international criminal law denies amnesty, but it imposes indictment and punishment on the guilty persons.

The advocates of amnesty provide pseudo remedies in contrast to the reports of the international crimes embodying the crimes against humanity and war crimes in South Sudan. International criminal law does not offer amnesty for crimes against humanity or war crimes. This is illustrated by two cases.

First, Tomoyuki Yamashita, formerly Commanding General of the Fourteenth Army Group of the Imperial Japanese Army in the Philippine Islands, was arraigned before a United States Military Commission and charged with unlawfully disregarding and failing to discharge his duty as Commander in complete charge of the affairs to control the acts of members of his command by permitting them to commit “war crimes”. The essence of the case for the prosecution was that the accused knew or must have known of the acts of his soldiers and permitted the systematic, widespread crimes committed in the Philippines by troops under his command, which included murder, plunder, devastation, rape, lack of provision for prisoners of war and shooting of guerrillas without trial, and/or that he did not take the steps required of him by international law to find out the state of discipline maintained by his men and the conditions prevailing in the prisoner-of-war and civilian internee camps, under his command in Philippine territorial and sovereign islands. ^{Footnote 20}

Second, the defence team of Dominic Ongwen, former Commander of the Ugandan Lord’s Resistance Army, raised concerns about Ongwen’s mental health as well as his fitness to stand trial, insanity under Article 31(1)(a) of the Rome Statute (a first at the ICC) (International Criminal Court 2011:16), mitigation in sentencing based on diminished mental capacity, duress (also a first), and the cumulative effects of mental health and duress. These defence claims could not provide trustworthy, reliable and credible legal data to remedy the accused from these international crimes. Referring to the case, the Prosecutor v. Ongwen, the ICC charged Dominic Ongwen with 70 counts of war crimes and crimes against humanity allegedly committed in northern Uganda. ^{Footnote 21} The ICC concluded that the allegation of the Prosecutor carried substantial evidence and definitive proof that Dominic Ongwen was in command of the Lord’s Resistance Army by the second half of 2005, and then he would face criminal accountability for the command responsibility ^{Footnote 22} in the charges of war crimes ^{Footnote 23} and crimes against humanity, ^{Footnote 24} without reference to the provision of amnesty to him.

Case Law and Rule 159

International criminal law denies amnesty and compels the punishment of the perpetrators of crimes against humanity and war crimes. In case law, Tiu Tojin v. Guatemala, the Inter-American Court of Human Rights declared that the State must investigate the facts that gave rise to the violations in this case and identify, prosecute and, where appropriate, punish those responsible for criminal offences. In the other category, amnesty comes from Rule 159 of the international humanitarian law, which coerces the authorities in power to grant amnesty after the cessation of hostilities. It is a conditional amnesty for persons not participating in a non-international armed conflict or those deprived of liberty.

Rule 159 exempts the suspects and sentenced person(s) for crimes against humanity and other international crimes from amnesty. Punishment represents an international and standardized obligation for serious crimes, but amnesty to a suspect represents oblivion of crimes. Amnesty originates from the Greek word amnesia, meaning forgetfulness (Plate Reference Plate2016). The authority in charge of the State enacts it as a decree prescribing official forgetfulness for one or more categories of criminal and civil offences and rescinds any penal consequences (Valarezo Reference Valarezo2019).

This definition indicates that the provision of amnesty from the resolution of the Transitional Justice Conference in Juba, South Sudan, to the perpetrators of the alleged international crimes that admit the commission of crimes against humanity and war crimes during the war in 2013 onward (Radio Tamazuj Reference Tamazuj2023) is in contradiction with the obligation of international criminal law. ^{Footnote 25} It represents forgetfulness to the reports of the AU Commission of Inquiry on South Sudan that accuses the Government of South Sudan in charge of affairs in Juba and rebels in control of the cities of Bor, Malakal and Bentiu and grave violations of international humanitarian law were committed against the civilian population and hors de combat.

AU Commission Report

In its long and comprehensive report, the AU Commission of Inquiry on South Sudan (2014:223–4) reported the following acts of international concern that cannot be left unpunished:

It is worth underlining that those responsible for recruiting and conscribing a child in a guerrilla movement or any military combat must face justice rather than amnesty. Conscription of an innocent child that does not comprehend the objective(s) of war is in contravention of the international law obligation that dictates nations to protect a child. Article 27(1) of the UN Convention on the Rights of the Child urges that “States Parties recognize the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development”. ^{Footnote 26} Conscription and enticement of a child into military conduct does not require amnesty. It constitutes mental, spiritual, moral and social persecution of a child, which most competent international criminal tribunals punish.

Among the criminal counts in case law regarding the former President of Liberia, Charles Ghankay Taylor are the recruitment, conscription or enlisting children under 15 years into armed forces or groups or using them to participate in military hostilities actively. ^{Footnote 27} Furthermore, the protection of a child from the possible risk of persecution as an obligatory pursuit appears in case law that compels the Court in the United Kingdom to admit an appeal against the deportation of a minor or a child with the anonymous name JA from the United Kingdom to Nigeria. ^{Footnote 28}

For the prevalence of justice, instead of its miscarriage, the Government of South Sudan must refrain from the mobilization of the advocates for amnesty that deny indictment and punishment of the suspects that might have committed international crimes in Bentiu, Juba, Malakal, Bor, Akobo Pibor and other sites within South Sudan in a competent court.

In his message, which denies amnesty implicitly, the UN High Commissioner for Human Rights (UNHCR) Representative, Volker Türk, presented a paper titled “Conference on Sustaining Momentum for Transitional Justice in South Sudan” to the organized government conference under the title, Conference for Transitional Justice in South Sudan. Türk cautioned and urged the international community and the South Sudanese nationals to heed and take into account accountability of the perpetrators of the international crimes in South Sudan. For him, accountability of the suspected perpetrators of crimes against humanity, war crimes and other criminal offences of an international nature deters most of the multitude of challenges that continue to plague and haunt the people of South Sudan, such as unceasing armed violence, shrinking civic and political space and pervasive and entrenched impunity (UNHCR 2023).

Impunity and Law

Theoretically, non-compliance of the executive pillar in a nation-State with the constitutional provisions is common conduct universally. ^{Footnote 29} The same constitution notwithstanding provides a victim with a right to file a lawsuit impugning the executive authority in the judiciary. ^{Footnote 30} Moreover, the judicial review issues an injunction that protects the constitutional provisions from the infringement of the executive organ. ^{Footnote 31} The authority that ignores compliance with constitutional and international obligations and the necessity of the judicial review of its acts represents impunity. The advocates of amnesty in South Sudan for the perpetrators of international crimes such as crimes against humanity and war crimes represent impunity.

Jok (Reference Jok2023) defines the conduct of impunity in public institutions as an act that a superior authority in national institutions applies in a working relationship against the subordinate(s) in denial of their constitutional rights, which aid in achieving the administration of justice. It refers to denying a victim’s right to justice and redressing their complaints within the limited scope of the constitutional obligations and judicial review in law. Its adoption in national institutions may generate possible crimes of genocide, crimes against humanity and war crimes. In case law testimony in the Courtroom of The Hague, the last former Prime Minister of former Yugoslavia, Ante Markovic, accused President Slobodan Milosevic of impunity. ^{Footnote 32}

Complementarity and South Sudan Constitutional Law

The absence of unified legal mechanisms from the Government of South Sudan in power to prosecute the suspects as perpetrators of the international crimes in the South Sudan civil war of December 2013 is a woeful and distressing factor in protecting humanity in the country. Notwithstanding, the resolution of the South Sudan Council of Ministers on 29 January 2021 about establishing the Hybrid Court for South Sudan indicates that serious crimes of concern to the international community were committed in the civil war of December 2013.

Tabling and contemplating on the case of establishing a criminal tribunal in the Council of Ministers for the punishment of the perpetrators of crimes against humanity and war crimes and issuing a resolution for its establishment are a bona fide referential and potential victory of the universal criminal justice system. “Barbarians” ^{Footnote 43} and villains that violate the law will be prosecuted domestically but in an independent criminal court.

Expressively, the fact that the Government of South Sudan can admit establishing an independent criminal tribunal body to investigate and prosecute those responsible for the commission of crimes against humanity and war crimes represents paving the way for a legal mechanism. It legally conforms to Article 1 of the ICC Statute (International Criminal Court 2011:2), defined as “complementary to national criminal jurisdictions”; nevertheless, its establishment in South Sudan generates a conflict of laws. McClean and Ruiz Abou-Nigm (Reference McClean and Ruiz Abou-Nigm2016) define conflict of laws as the presence of part of the legal system, with cases manifesting cross-border elements in nature and carrying legal facts of universal and international norms.

There are emasculating and irreconcilable provisions between the ICC Statute and the current South Sudan Constitution of 2011, revised 2021, and consequently interdicts or debars the application of the complementarity and, automatically, the hypothesis becomes incongruous, pseudo and irrelevant. First, Article 1 of the Rome Statute stresses conditionally that the ICC shall be complementary to national jurisdictions, but the provisions of its Statute govern the jurisdiction and functioning of the court (McClean and Ruiz Abou-Nigm Reference McClean and Ruiz Abou-Nigm2016). South Sudan is not Party to 123 States Parties to the Rome Statute of the ICC (International Criminal Court 2023); so that it adopts its provisions in legal accountability against the alleged individual South Sudanese soldiers for international crimes, neither its current Constitution of 2011 nor that revised after the Peace Agreement on the Resolution of the Conflict, 2021, bestows provisions which conform to the ICC.

Consider two particular instances of the inconsistency of the ICC Statute with the national Constitution of South Sudan. First, Article 3(1) of the South Sudan Constitution, 2011, revised in 2021, asserts the supremacy of the Constitution as a law of the land. ^{Footnote 44} In contrast, Article 21 of the ICC Statute attests to its supremacy in national laws. ^{Footnote 45} Second, Section 206 of the South Sudan Penal Code Act, 2008 prescribes the death penalty for the offences of murder ^{Footnote 46} in contradiction with Article 77 of the ICC Statute, which repudiates the death penalty and imposes imprisonment following the level of gravity of an offence committed (International Criminal Court 2011:38).

The general inconsistency of the South Sudan national Constitution with the principle of complementarity of international criminal law does not completely bar the adoption of complementarity in the jurisdiction of the criminal courts in South Sudan State. In cognizance of South Sudan customary law, it makes it possible for the Hybrid Court for South Sudan to complement the national penal laws of the Republic of South Sudan.

Hybrid Court and Customary Law Penal Code

Establishing the tribunal, the Hybrid Court for South Sudan, to punish the perpetrators of international crimes during the war is possible when such tribunal adopts three approaches as criminal remedies that reconcile international criminal law with African customary law. First, the application of the complementarity principle derives from the ICC Statute. ^{Footnote 47} International criminal law imposes imprisonment rather than the death penalty on the perpetrators of the concerned crimes to qualify the compatibility of the African customary law of blood compensation. ^{Footnote 48}

Section 6(2) of the South Sudan Penal Code Act, 2008 states, “In applying this Act, Courts may consider the existing customary laws and practices prevailing in the specific areas.” In cognizance to the African customary law embodying the Dinka and Nuer ethnic groups in South Sudan, it omits the application of capital punishment on the perpetrators of murder, massacre, homicide and manslaughter on the condition that a criminal court orders (a) killer(s) to pay a good number of cattle; oxen, cows (Evans-Pritchard Reference Evans-Pritchard1951) or money (MacCormack Reference MacCormack1973) ^{Footnote 49} as “blood compensation” to the victims of (a) killed person(s) (Dundas Reference Dundas1921; Gluckman Reference Gluckman1965:205, 215) ^{Footnote 50} in order to resume peace and security among themselves in the land (Kane Reference Kane2014). ^{Footnote 51} Also, Section 206 of the South Sudan Penal Code Act, 2008 states that whoever causes the death of another person – (a) intending to cause death; or (b) knowing that death would be probable and not only a likely consequence of the act or of any bodily injury which the act was intended to cause, commits the offence of murder, and upon conviction be sentenced to death or imprisonment for life provided that, if the nearest relatives of the deceased opt for customary blood compensation, the Court may award it in place of death, a sentence with imprisonment for a term not exceeding 10 years.

Second, the authoritative Criminal Courts in South Sudan omit capital punishment on the grounds that (a) killer(s) pay(s) blood compensation, a composition of cows and oxen, known in Nilotic customary law as apok among the Dinka and cot among the Nuer ethnic group to the victims of (a) killed person(s). The number of cattle for the blood compensation of (a) killed person(s) ranges from 10 among the Collo, 31 for the Dinka and 31 among the Nuer.

Third, the research recommends uniformity in paying 51 cattle as blood compensation to the victims of (a) killed person(s). Such payment changes both penalties of life imprisonment, which the international criminal law imposes on the perpetrators of international crimes and the death penalty, which the African criminal law imposes on the confirmed killer(s). Finally, the Hybrid Court, as a criminal tribunal, imposes 10-year terms of imprisonment on the confirmed perpetrators of international crimes, and then peace and security recycle in political, economic and social institutions in the sovereign territorial State of South Sudan.

Wilson (Reference Wilson2014) observes that the Dinka ethnic group in South Sudan values harmony and good social, economic, political and cultural relations. In their social tradition, violence is reserved mostly as a defensive weapon, a view consistent with the normative Dinka concept of their vocabulary term, cieng. For them, cieng “puts ‘human’ values like dignity and integrity, honour and respect, loyalty and piety, and the power of persuasiveness at its core”.

Essentially, the term cieng in Dinka involves many concepts. It fundamentally implies the recognition of and compliance with the Bill of Rights, right to life, right to freedom, right to liberty, right to dignity and right to non-discrimination in all social, economic and political conducts. Deng defines cieng as social standards for ideal human relations that promote peace and security among the Dinka ethnic community, region and international communities (Twining Reference Twining2013).