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
Date Written: August 16, 2016
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: Suggested Citation