The Practical Guide to Humanitarian Law

« Calling things by the wrong name adds to the affliction of the world. » Albert Camus.

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Persecution

Definitions

While the notion of persecution is often mentioned in international conventions, it was only recently given a legal definition, in the Statute of the International Criminal Court (ICC) that was adopted on 17 July 1998 and entered into force on 1 July 2002. The ICC Statute defines persecution as “the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity” (Art. 7.2.g of ICC Statute).

The Statute of the ICC establishes that gender may be a ground for fearing persecution. It includes “persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender . . . or other grounds that are universally recognized as impermissible under international law” as a crime against humanity (Art. 7.1.h of ICC Statute).

The ICC has jurisdiction over individuals accused of genocide, war crimes, and crimes against humanity, after certain preconditions have been met.

Freedom from persecution is vital to the well-being of individuals in society and to their enjoyment of the rights to which they are entitled. Under international law, persecution is a crime against humanity. This was clearly established under the jurisdiction of the international military tribunals of Nuremberg and Tokyo and was reaffirmed most recently in the ICC Statute. ▸ International Criminal CourtWar crimes/Crimes against humanity

Persecution is one of the main reasons that individuals flee their country of origin. It is recognized by the 1951 Convention Relating to the Status of Refugees (Refugee Convention) as the principal justification for qualifying an individual as a refugee. This Convention—as well as the 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa, adopted by the Organization of African Unity—defines a refugee as “every person who, owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country” (Art. 1 of both Conventions). ▸ Refugees

Fear of persecution is not only a valid reason for fleeing a country and requesting asylum in another, it is also the basis of the principle of non-refoulement, whereby States may not, under any circumstances, expel or return a person by force to a State where he or she fears persecution (cited in most conventions relating to the issue of refugees and in GCIV Art. 45). ▸ AsylumRefoulement (forced return) and expulsion

Since individuals are persecuted because of their membership in a specific group, behavior that reflects adverse discrimination is often considered an important indication of the risk of such persecution. Other much clearer indications include threats or attempts against the life of individuals—in particular violence to their person, extermination, torture, and other forms of ill treatment. The UNHCR recently expressly added rape to the list of crimes that can constitute an element of persecution and that thus permit the recognition of refugee status as foreseen by the Refugee Convention. The ICC Statute reaffirms that gender is a reason for fearing persecution (see the next section on sanctions). ▸ DiscriminationIll treatmentRapeTorture

Sanctions

In general, individuals who commit acts of persecution are subject to the penal sanctions foreseen for both violations of international humanitarian law and human rights violations. These are explained under ▸ Individual recoursePenal sanctions in humanitarian lawWar crimes/Crimes against humanity .

The International Criminal Court has jurisdiction, under certain conditions, over persecutions committed by those accused of genocide, war crimes and crimes against humanity. The two ad hoc International Criminal Tribunals for the Former Yugoslavia and Rwanda may also prosecute individuals who commit acts of persecution, enumerated in the list of crimes against humanity (Art. 5.h of ICTY Statute, Art. 3.h of ICTR Statute).

AsylumDiscriminationHuman rightsIll treatmentInternational Criminal CourtInternational Criminal TribunalsRapeRefoulement (forced return) and expulsionRefugeesTortureWar crimes/Crimes against humanityWell-being

Jurisprudence

  1. Definition

In the Vasiljevic Case (29 November 2002), the ICTY Trial Chamber considered that the act or omission constituting the crime of persecution may assume various forms, and there is no comprehensive list of what acts can amount to persecution (para. 246). In the Kvocka et al. Case (2 November 2001), the Trial Chambers of the ICTY found that the following acts may constitute persecution when committed with the requisite discriminatory intent: imprisonment; unlawful detention of civilians or infringement upon individual freedom; murder; deportation or forcible transfer; “seizure, collection, segregation and forced transfer of civilians to camps”; comprehensive destruction of homes and property; the destruction of towns, villages, and other public or private property and the plunder of property; attacks upon cities, towns, and villages; trench-digging and the use of hostages and human shields; the destruction and damage of religious or educational institutions; and sexual violence (para. 186).

In the Kordic and Cerkez Case (26 February 2001), the Trial Chambers of the ICTY explained that the perpetrator must have acted with discriminatory intent on the political, racial, and religious grounds, according to the definition of persecution (para. 212).

In the Tuta and Stela Case (31 March 2003), the Trial Chamber of the ICTY considered that the crime of persecution has been analyzed in various previous judgments of the Tribunal. The following elements must be proven to establish that persecution as a crime against humanity has been committed: (1) The perpetrator commits a discriminatory act or omission. (2) The act or omission denies or infringes upon a fundamental right laid down in international customary or treaty law. (3) The perpetrator carries out the act or omission with the intent to discriminate on racial, religious, or political grounds. (4) The general requirements for a crime against humanity pursuant to Article 5 of the Statute are met (para. 634).

In the Simic Case (28 November 2006), the Appeals Chamber of the ICTY held that underlying acts could amount to persecutions only when this is determined that those acts have met the criteria (see above) and attained the level of gravity equal to the crimes listed in Article 5 of the Statute (crimes against humanity).

  1. Persecution Is Broader Than Incitement

In the Nahimana et al. Case (3 December 2003, para. 1078), the ICTR Trial Chamber held that “persecution is broader than direct and public incitement, including advocacy of ethnic hatred in other forms.”

  1. Not Every Act of Persecution Is of the Same Gravity

In the Nahimana et al. Case (28 November 2007, paras. 987), the ICTR Appeals Chamber held that not every act of persecution needs to be of same gravity as other crimes against humanity, but must be cumulatively of the same gravity. Moreover, the Chamber held that hate speech could constitute an act of persecution (para. 986). It further found that the discriminatory intent was required for acts of persecution (para. 985). This mens rea may be inferred from circumstantial evidence, such as the nature of the attack and the circumstances surrounding it ( Bagosora et al. Case , 18 December 2008, para. 2208). See also Bagosora et al. Case (18 December 2008, para. 2208) and Bikindi Case (2 December 2008, para. 435).

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