Amicus Brief of Professors Robinson, De Guzman, Jalloh and Cryer on Crimes Against Humanity (Cases 003 and 004)

11 Pages Posted: 18 Jul 2016 Last revised: 17 Oct 2017

See all articles by Darryl Robinson

Darryl Robinson

Queen's University - Faculty of Law

Margaret M. deGuzman

Temple University - James E. Beasley School of Law

Charles Chernor Jalloh

Florida International University College of Law

Robert Cryer

University of Nottingham

Date Written: August 16, 2016

Abstract

This amicus brief was submitted before the Extraordinary Chambers in the Courts of Cambodia, on the issue of whether large-scale atrocities directed against members of a state or organization’s own armed forces can constitute crimes against humanity. We argue that they do. There are two views on the interpretation of “civilian” in crimes against humanity. One may be called the “status-based” view, which excludes ipso facto all members of any armed force, including prisoners of war. The other may be called the “legitimate target” view, which only excludes attacks against lawful targets, ie. combatants of hostile parties to conflict. The “status-based” view arose in thinly-reasoned cases, lacks a rationale, and would arbitrarily deprive persons of the protection of international criminal law because of their occupation. The “legitimate target” view properly reflects the principle of distinction, harmonizes crimes against humanity with humanitarian law, and fits with precedent including post-World War II cases. While early ICTY cases followed the traditional “legitimate target” view, more recent ICTY cases departed without adequate analysis. The Amici encourage the ECCC to adhere to the original dichotomy (the “legitimate target” approach).

Keywords: crimes against humanity, civilian population, combatant, civilian

JEL Classification: K33

Suggested Citation

Robinson, Darryl and deGuzman, Margaret M. and Jalloh, Charles Chernor and Cryer, Robert, Amicus Brief of Professors Robinson, De Guzman, Jalloh and Cryer on Crimes Against Humanity (Cases 003 and 004) (August 16, 2016). Temple University Legal Studies Research Paper No. 2016-40; Florida International University Legal Studies Research Paper No. 17-04. Available at SSRN: https://ssrn.com/abstract=2789036 or http://dx.doi.org/10.2139/ssrn.2789036

Darryl Robinson (Contact Author)

Queen's University - Faculty of Law ( email )

Macdonald Hall
Kingston, Ontario K7L 3N6 K7L3N6
Canada

Margaret M. DeGuzman

Temple University - James E. Beasley School of Law ( email )

1719 N. Broad Street
Philadelphia, PA 19122
United States

Charles Chernor Jalloh

Florida International University College of Law ( email )

11200 SW 8th Street
RDB Hall 1097
Miami, FL 33199
United States

HOME PAGE: http://www.law.fiu.edu

Robert Cryer

University of Nottingham ( email )

School of Law
University Park
Nottingham NG7 2RD
United Kingdom
+44 115 9515703 (Phone)
+44 115 9515696 (Fax)

HOME PAGE: http://www.nottingham.ac.uk/~llzwww/law/brains/biog.php

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