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Monday, October 7, 2013

Important Notice: Spreading the Jam moving to WordPress

Dear Readers, after over four years (already) with blogger, I've decided to make the somewhat messy move to Wordpress.

I therefore invite you to access Spreading the Jam at the brand new site: (Yes, I also got a domain name).

I invite you to update your RSS feed, for those who use some RSS reader.

This site will continue running for a few days, and then I'm going to try and do some redirect from here to wordpress. Apparently, it's not straightforward, but I hope I don't lose too many of you along the way!

See you all soon on Spreading the Jam. 

Thursday, October 3, 2013

Draft Statute for Syria War Crimes Tribunal: A first commentary on a disappointing effort

Cross posted on Invisible College

Today, a prestigious group of experts publicly “unveiled” a draft statute for a Syrian Tribunal. The list of contributors is quite impressive, including leading scholars in the field (Scharf, Bassiouni, Schabas, Newton), former international Prosecutors (Crane, Desmond da Silva, Goldstone) and such prestigious personalities as David Scheffer (whose influence is obvious from the expression "atrocity crimes" in the proposed name of the tribunal) and Patricia Wild.

The text of the draft statute, including commentary, was made available to interested readers, and warrants some commentary of itself.

CAVEAT: It should be noted that the following commentary is based on a publicly available version of the text that is dated 27 August 2013. I have not been able to find any new version that might have been unveiled this morning. Should there be any new version which might include any changes relating to the points I discuss below, I’d be happy to amend my views accordingly.

  • On the context of the setting up of the Tribunal

From a technical perspective, the draft statute seems to only consider and prefers the option of domestic enactment of the law (Introduction and footnote 1). This has been a debated issue for all hybrid tribunals, which have been set up through a diversity of mechanisms (Treaty for Sierra Leone, UN Territorial Administration regulations for East Timor and Kosovo, UNSC Resolution for Lebanon, Treaty and national legislation for Cambodia, Provisional authority then national law for Iraq). Technically, this should lead to different situations in terms of relationship with national authorities and application of international law, but generally, these issues have tended to be ignored by all hybrid courts in favor of a common “we’re just different” approach. The current draft is no different, as there seems to be no notable impact on the language used in discussing the tribunal framework, other than the suggestions to "import" domestic procedural provisions (see below).

More generally, the introduction to the draft statute illustrates the form of illusionary neutrality of some promoters of international criminal law by suggesting on the one hand that all sides of the conflict would be prosecuted, but suggesting that the tribunal would be set up “presumably following a change of regime”. This is problematic because it seems to suggest that international justice mechanisms are compatible with political transitions. I’m not entirely sure that is true, or at least believe that this assumption needs to be questioned. Calling for accountability on all sides of the conflict might be a nice slogan, but it then leads to the question of who will then be in charge, given the fact that there is probably no one in this kind of situation with clean hands? I raised the same question a few years ago on Ivory Coast and have since then gotten my answer: only one side of the conflict is effectively being prosecuted, whether in Ivory Coast or at the ICC. The same would undoubtedly happen here, to a more or less big extent.

This in turn raises the question of adopting a more comprehensive approach to justice and peace-building that does not impose pre-conceived models of international justice on a given situation, as suggested by Carsten Stahn over at EJIL Tallk!.

  • On the relationship with the ICC

Discussions on the setting up of accountability mechanisms for Syria generally present things in a binary way. It’s either the ICC, or a special tribunal for Syria. Interestingly the draft statute considers that the two are not mutually exclusive. Indeed, in discussing the proposed personal jurisdiction of the tribunal, it mentions the fact that Syria could join the ICC and give retroactive jurisdiction to cover the civil war, but concludes that “the ICC traditionally takes jurisdiction over only a handful of highest level defendants, so there would still be a need for the Syria Tribunal to prosecute the next level of culpable civilian and military leaders” (footnote 4). 

This hypothetical scenario would be interesting in relation to how complementarity would work when a hybrid tribunal is involved, given that Article 17 only explicitly considers the situation where a “state” is exercising jurisdiction as a trigger for complementarity.

  • On some procedural aspects of the proposed tribunal

There are a number of open questions in the draft statute on the procedural framework of the proposed tribunal, which revisit traditional debates of the past few years, such as the issue of whether defendants can represent themselves, whether victims should be allowed to participate, whether trials in absentia should be authorized and the existence of an investigative judge. These questions bring in a number of cross-cutting considerations, from the past practice of other international tribunals to the need to give due consideration to Syrian legal traditions.

I feel the suggested flexibility in this respect welcome. I personally think that trials in absentia if obviously not ideal, should be a judicial policy option and I appreciate the fact that the document very clearly acknowledges, even if not referring directly to the ICC, that victim participation has revealed itself to be a problem (footnote 18):
Allowing victims and their counsel to participate in trials may present a myriad of logistical and legal challenges for this new court. This is particularly true in an extremely volatile and dangerous environment as exists, and will continue to exist, in Syria. The focus for the new court should be on ensuring that victims have a meaningful and constructive way to address the court in the post-trial stage of the proceedings and obtain restitution when feasible. Further, defendants will potentially be deprived of the right to an expeditious trial when victims participate. The cases heard by the new court will be extraordinarily complex, necessitating lengthy trials. Victim participation lengthens the trials even further, often presenting repetitious questioning of witnesses and additional filings for the court to address and decide upon, and for the defense to spend time refuting. Regarding equality of arms, victim participation and the ability of victims “to lead and challenge evidence” can create procedural disadvantage for the defense. When victims have the ability to lead evidence, allocation of the burden of proof becomes murky and defendants have a greater burden to contend with all of the additional information presented against them by victim participants. Although Syria has civil party participation in its courts, for the reasons stated above, the experts believe that a different approach may be more desirable for this Tribunal. 
I perfectly agree with this statement and hope that any final statute would mirror this feeling. However, I wonder if, in prevision of a more than likely outcry from victim-orientied human rights organisations, the drafters should not have more explicitely laid out a detailed alternative where, even if victims could participate, the level and manner of such participation would be strictly delineated to avoid the ad hoc unpredictable approach at the ICC which ends up, in most cases, being detrimental to the rights of the defense.

  • On the applicable law of the proposed tribunal

Before going into more detail, just a word on what I think is one of most disturbing comments in the draft statute (footnote 30):
The crimes in this Statute are defined as they are in the Rome Statute establishing the  International Criminal Court. The crimes in the Rome Statute are further defined in an  instrument known as the “Elements of Crimes,” on which the Syrian Delegation joined  consensus in Rome. According to Article 15 of the International Covenant on Civil and Political Rights, a treaty that Syria has ratified, international crimes are lawfully  punishable even where there is no domestic law criminalizing them at the time of their  commission. International crimes, including those defined in the Rome Statute, are not subject to the prohibition on ex post facto application of criminal law
I think the authors make a vastly exaggerated reading of Article 15 of the ICCPR which states that:
“2. Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.”
For me, this provision was a kind of ex post facto saving clause for the Nuremberg trials and should be used with care. In this sense, this provision does not say that ex post facto application of international criminal law is never a problem, it just applies a more flexible (if debatable) definition of what does not constitute ex post facto criminalization. Second of all, it remains to be seen whether all crimes within the ICC statutes fall within the ambit of Article 15 of the ICCPR, which is far from clear.

More generally, I am always amazed at the carelessness with which some international criminal lawyers approach the fundamental issue of the principle of legality. I’ve argued against this elsewhere and think that there are in fact very few (if any) valid reasons to apply a less stringent approach to the principle of legality to international crimes and in international criminal courts than in any domestic system.

Moving on to the actual applicable law, on the face of it, there is nothing that notable in the draft statute, which seems to import definitions from the Rome Statute in relation to genocide, crimes against humanity and war crimes. One omission did strike me: in the provision on war crimes, the drafters did not reproduce Article 8(2)(f) of the Rome Statute on the minimum threshold of what constitutes an armed conflict as opposed to internal disturbances. This might not in fact make any difference in practice, as the judges of the tribunal would still be able to discuss this dimension, but I think it shows, once again, the ideological bias of the authors in trying to remove any obstacle for the march forward of ICL.

  • On the modes of liability of the proposed tribunal

Nowhere is this ideological bias more apparent than in the modes of liability. Indeed, while the draft seems to mostly adopt the ICC modes of liability, there are a couple of notable differences.

First of all, the provision on aiding and abetting is changed from the ICC Statute. While the Rome Statute reads as follows (Article 25(3)(c)):
For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;
The draft statute removes the “for the purpose of facilitating the commission of such a crime” part. There is a footnote that is very explicit on the reason for that:
This revision avoids the problem that has surfaced in recent ICTY cases, that have interpreted “for the purpose of facilitating the commission of such a crime” as a substantial restriction.
In other words, the drafters do not like Perisic, which they see as a “problem” and want to make sure that it does not have a future. Whatever one thinks of the “specific direction” question, I think this way of using the statute for a Syria tribunal to push forward ideological agendas is slightly dishonest. It is not for this group of individuals to decide what is a “problem”, nor do they actually explain why it is a problem. Modes of liability, by definition, set “substantial restrictions” on what kind of conduct leads to responsibility and what kind of conduct does not. This cannot be a reason in itself to change the wording of the Rome Statute on this point.  Finally, this is a live current debate in international criminal law today, which cannot be just brushed aside casually by removing words from a statute.

I also note that such "choice" does not extend to other modes of liability, despite strong discussions and debates. For example, Article 25(3)(a) of the Rome Statute, which was interpreted in a rather novel way by the judges to create the much contested new mode of "indirect co-perpretation", is imported without further commentary or clarification. This is probably due to the fact that it is not a "problem" because it expands individual responsibility, rather than create a "substantial restriction" on it...

The same holds true of the draft provision on superior responsibility, which removes the different mens rea thresholds contained in Article 28 of the Rome Statute between military commanders and civilian leaders. In essence, while at the ICC, they is no negligence mens rea for civilians, the draft statute has the same low threshold for both civilians and commanders. And the document does not even acknowledge this difference, or suggest a choice for the authority that would ultimately decide on the creation of the tribunal.

This is particularly dishonest in the present case, given that earlier in the document, the drafters refer to Syria being part of the consensus in Rome to justify importing the ICC crimes, only to ignore this aspect now in relation to the modes of liability.

UPDATE: I have deleted the paragraph on the "legal burden of proof".

  • Conclusions

I’m not convinced by this draft. I would expect such accumulation of expertise to produce something more convincing and less sloppy (see for example, the “general principals of criminal law”, or the inclusion of the witness protection provision under the heading of "rights of the accused"…). 

I also think that the attempts at pushing forward ideological agendas, particularly in relation to modes of liability is disturbing, in their systematic desire to make convictions more likely. This is possibly due to the fact that former prosecutors of international criminal tribunals appear so prominently in the list of contributors.

What this illustrates is more broadly what for me is a somewhat disturbing conflation between academia, policy, and legal and political activism. Indeed, this is not just a random academic exercise. The group of people that presented this draft are powerful and listened to academics and professionals in the field of international criminal law. With this, I think should come a responsibility to caution and a clear commitment to intellectual honesty in their assessment of the law, especially in delineating the law as it is and the law how they would prefer it to be. In other words, and to be clear, the drafters of the statute are perfectly free to propose any text they want, but they should be crystal clear on the fact that they are making normative claims in relation to debated issues in international criminal law today, rather than pretend that things are settled.

This “positivist” plea is not merely conceptual, it is (some would say ironically) a moral imperative. Indeed, such practice means that those who do it would no longer be justified in taking the moral high ground when others, such as government officials, for example, twist international law into authorizing torture or allowing the invasion of other countries without security council approval. This might appear as an extreme comparison, but what’s the difference between the two, other than the allegedly better intentions of some? And we all know where the road paved with good intentions generally lead us…

Thursday, September 26, 2013

Taylor Judgment: a "victory for justice"?

Following the confirmation of the 50 year sentence of Charles Taylor, there is a tone of celebration from a number of human rights organisations. One expression that has struck me as problematic is that of this verdict being a "victory for justice", as seen for example in this tweet by Human Rights Watch executive director:
On a certain level, I of course understand what he means. This verdict is seen as vindication for some of the victims of the Sierra Leone conflict and in this sense constitutes "justice". However, I think that the expression is disturbing in what it says on the state of mind of those who use it.

Indeed, technically, if you trust the legal system, a conviction is no more a "victory for justice" than an acquittal would be. It is the system that must be seen as just, irrespective of the particular outcome in a given case. If we do not accept that acquittals are an option, then there is no point in pretending to want a system of international criminal justice, with a strong protection of the rights of the defense. We might as well reintroduce summary executions, which, I'm sure would satisfy some victims just as much.

On the substance, I'm not entirely sure how much of a "victory for justice" it is, when you see the systematic violations of the rights of the defense in international criminal proceedings. The acts that are being prosecuted are the most heinous crimes that affect the "conscience of humanity", and the highest standards of evidence should be imposed, rather than the lowest ones, as is sometimes the case.

Attachment to these high standards of justice in the respect of the rights of the defense should be the first concern of all people involved in this field, because it is at the heart of the international criminal justice project. Without a fair trial, there cannot be, on the long run, any victory for justice.

First thoughts on the Taylor Appeal Judgment: Sentence upheld and Perisic blasted

As I logged on to the livestream of the SCSL this morning at 10.30, there was a song playing on a loop with the most extraordinary lyrics: "i just can't stand to see you go, i don't understand where we went wrong" (it's a song by Bonnie James called Happy Home). For a second I thought this was a subliminal way for the Court to announce an acquittal... But it turned out not to be the case, as the Appeals Chamber of the Special Court for Sierra Leone has confirmed the 50 year sentence against Charles Taylor. Having followed the reading out of the summary, there is mostly nothing very surprising about the Appeals Judgment. They confirm that crimes against the civilian population were committed by the RUF-AFRC and that Taylor had some role in the events. There are a few points that deserve some comments in my view, until we actually get the judgement.

First of all, the AC discussed the question of evidence. It essentially approved of the Trial Chamber's approach to evidence, specifically rejecting the claim from the defense that uncorroborated hearsay evidence as a sole basis for conviction should not be allowed. I find that quite appalling frankly, but thus is the nature of the international criminal procedure. 

Of course, everybody was waiting for the discussion on aiding and abetting after the Perisic appeal judgement at the ICTY on the question of "specific direction". As discussed by Manuel Ventura here, there could have been an impact on the Taylor appeal judgement. It turns out that there wasn't because the Appeals Chamber upheld the Trial Judgment on the fact that you need a "substantial contribution" to the crime for the actus reus of aiding and abetting to be constituted, and that knowledge is sufficient mens rea. The Appeals Chamber seems to have gone out of its way to not just ignore Perisic, but actually blast it. In a separate development of the summary, the judge said that the AC was not convinced by the Perisic judgment which "does not contain a clear and detailed analysis". I'm not sure I see the point of doing that. This little ego contest between international judges has no place in what is arguably one of the most important judgements in ICL. The SCSL is not bound by ICTY case law. If you're not going to use it, just don't use it. Judges should keep this kind of ultimately irrelevant discussion for the cafeterias of their respective tribunals, the problem being of course, that they wouldn't get as much attention if they did... In any case, given the historically low quality of legal reasoning in the SCSL case law, if I were a supporter of the Perisic approach, I would be happy for the SCSL to disagree with me, rather than the opposite...

While we're on modes of liability, I found the way the judge discussed the distinction between the various modes (ordering, planning, instigating, aiding and abetting...) indicative of a certain sloppiness in the way these modes have been approached. Indeed, in rejecting the Prosecution ground of appeal relating to the fact that Taylor was not found guilty under ordering and instigating, the AC found that aiding and abetting and planning were more "fitting" in relation to the conduct of Taylor. However, it's not a question of more "fitting" or not, it's a question of satisfying a legal definition or not. The mode of liability should not depend on the judges' impression of the narrative of the case. It should depend on whether the Prosecutor has proven beyond reasonable doubt that certain necessary criteria are met.

The AC also addressed the question raised by alternate Judge Sow at the end of the Trial Judgment on whether there were adequate deliberations. The judges, taking the opportunity to remind the world that Sow should never have spoken, found that there had in fact been adequate deliberations. I also seem to have understood that the defense claimed that the absence of Sow's name on the cover page of the Trial Judgment is a violation of the rights of the defense... Not their strongest point.

Finally, on sentencing, the Appeals Chamber found that the Trial Chamber had erred in considering that aiding and abetting should carry a lower sentence. The reasoning was a little circumvoluted, but it seemed to have several dimensions, 2 of them striking me as unconvincing. One of them is that the Statute does not distinguish the different levels of commission. That's true, but the statute does not distinguish much of anything. It does not contain Joint Criminal Entreprise, nor does it discuss the criteria for aiding and abetting, so it's not in my view a real argument. The second argument that struck me, is that creating a hierarchy between modes of liability would somewhat be unfair for the defense. I can't even start imagining how that argument works, so I'll just leave it at that.

More generally on sentencing, this confirms my impressions from the Trial Judgment: I really don't see the point of all those discussions on sentencing in international law, when all the practice shows that it is essentially a random guessing game. There is no indication of what crime or count carries what sentence, so we are left with a lump sum assessment that cannot be analyzed. For example, some municipalities were removed from the conviction in Taylor, without any impact on his sentence. I think this is probably contrary to the nulla poena sine lege principle, but in any case, we should stop commenting on sentencing criteria in the abstract until judges are required to specifically explain what sentence is given for what crime and what reduction or increase comes from mitigating and aggravating circumstances.

Possibly more to come when I see the actual judgment. Stay tuned...

Wednesday, September 18, 2013

Guest Post: The Use of Chemical Weapons is not a Crime against Humanity

By Catherine Harwood, Grotius Centre for International Legal Studies

The use of chemical weapons in Syria in August 2013 has generated widespread international outrage. International actors have condemned the use of chemical weapons and have employed the language of international criminal law to convey the severity of the violation. The UN Secretary-General stated that “[a]ny use of chemical weapons anywhere, by anybody, under any circumstances, would violate international law. Such a crime against humanity should result in serious consequences for the perpetrator.” Similar sentiments were expressed by the Bureau of the Parliamentary Assembly of the Council of Europe. US President Obama also labelled chemical weapons “a crime against humanity, and a violation of the laws of war”.  The use of chemical weapons is prohibited under both conventional and customary international law and may be prosecuted as a war crime. But does the prohibition extend to liability under international criminal law as a crime against humanity?

Many voices have called on the Security Council to refer Syria to the ICC.  Although practical prospects of referral remain doubtful, the ICC is in principle an appropriate institution to conduct international prosecutions regarding the situation in Syria. If a prosecution is initiated, many may expect to see the use of chemical weapons reflected in the charge sheet.  In light of this, the question whether the use of chemical weapons could amount to a crime against humanity is explored by reference to the Rome Statute. This inquiry explores the statements by the UN Secretary-General and others that any and all uses of chemical weapons amount to crimes against humanity.

  • The use of chemical weapons as a war crime

Despite the wide prohibition of the use of chemical weapons in international law, the Rome Statute does not expressly prohibit ‘chemical’ weapons.  However, several provisions indirectly prohibit their use in international and non-international armed conflicts. At first glance, article 8(2)(c)(xx), which prohibits the use of weapons “of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate”, appears most applicable. However, this provision only prohibits weapons listed in an annex to the Statute, which has never been created.  In addition, it only applies to international armed conflicts, which would exclude the conflict in Syria. 
The Rome Statute also prohibits the use of employing “poison or poisoned weapons” under articles 8(2)(b)(xvii) and 8(2)(e)(xiii); and “asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices” in articles 8(2)(b)(xviii) and 8(2)(e)(xiv). These broad provisions arguably include chemical weapons, but they have not yet been applied in practice. Some controversy surrounds the interpretation of these provisions, as noted by Dapo Akande and Bill Schabas, who both consider that the Statute can and should be read as prohibiting chemical weapons.
The use of chemical weapons could also be prosecuted when used in prohibited circumstances or when their use leads to prohibited results. The use of chemical weapons could be prosecuted where it amounts to an attack that is directed against civilians under arts. 8(2)(b)(i) and 8(2)(e)(i); or is an intentionally disproportionate attack under art. 8(2)(b)(iv).  Curiously, the  latter prohibition does not apply to non-international armed conflicts. Prosecutions could also result when the use of chemical weapons results in death or great suffering or injury to protected persons under the Geneva Conventions under arts. 8(2)(a)(i) and (iii) and 8(2)(c)(i). In short, both the use and consequences of chemical weapons may be prosecuted as war crimes. More extensive prohibition against their use would be possible if chemical agents were listed in the annex referred to in article (2)(c)(xx), and if this provision also applied to non-international armed conflicts.

  • The use of chemical weapons as a crime against humanity

Under articles 7(1) and 7(2)(a) of the Rome Statute, crimes against humanity are prohibited acts listed in article 7(1) when committed in the context of a “widespread or systematic attack directed against any civilian population, with knowledge of the attack”,  “pursuant to or in furtherance of a State or organizational policy to commit such attack.” The Elements of Crimes provide that a relevant attack is a “course of conduct involving the multiple commission of acts referred to in [article 7(1)] against any civilian population […] The acts need not constitute a military attack. It is understood that ‘policy to commit such attack’ requires that the State or organization actively promote or encourage such an attack against a civilian population”.  ICC Pre-Trial Chamber II interpreted the contextual elements of crimes against humanity in the Bemba confirmation of charges decision. The PTC held that “[t]he commission of the acts referred to in article 7(1) of the Statute constitute the ‘attack’ itself” (para. 75). The attack must be either widespread or systematic. A widespread attack is “large-scale”; “over a large geographical area or an attack in a small geographical area directed against a large number of civilians” (para. 83). The civilian population “must be the primary object of the attack and not just an incidental victim of the attack” (para. 76). The state or organisational policy may be “made by groups of persons who govern a specific territory or by any organization with the capability to commit a widespread or systematic attack against a civilian population”. An attack that is “planned, directed or organized - as opposed to spontaneous or isolated acts of violence” (para. 81) is sufficient to satisfy this requirement.
The list of prohibited acts in article 7(1) strikes twice against the statement ‘the use of chemical weapons is a crime against humanity’: first, at the level of contextual elements; and secondly, in respect of the prohibited acts. An ‘attack’ is comprised of prohibited acts referred to in article 7(1); and only those acts listed in article 7(1) may amount to crimes against humanity. The use of chemical weapons is not listed in article 7(1). Rather,  potential consequences of the use of chemical weapons are relevant, such as murder (article 7(1)(a)) and “other inhumane acts of a similar character intentionally causing great suffering, or serious injury” (article 7(1)(k)).  Thus, the consequences of chemical weapons, not their use per se, could amount to an attack as well as the prohibited acts. Although the use of chemical weapons and their terrible consequences often go together, they are distinguishable.
Assuming that the use of chemical weapons results in prohibited acts listed in article 7(1), several other criteria must be met before these consequences may amount to crimes against humanity. The attack must be widespread or systematic. The civilian population must also be the primary object of the attack. This element may be difficult to prove in an armed conflict, as it might be argued that chemical weapons were intended to be used against combatants and that the civilian population was an incidental victim.  However, it could be contended that the indiscriminate nature of these weapons means that any use must be regarded as making the civilian population the primary object of attack, despite any military motive. The attack must also be pursuant to a state or organisational policy. There are many possible scenarios in which this criterion would not be met. Chemical weapons might be deployed in violation of military orders; used in an unplanned or unorganised way; or used without the organisation’s active encouragement. Thus, even if the ‘use of chemical weapons’ is interpreted widely to include the consequences of use, only those consequences that are planned and sufficiently serious may amount to crimes against humanity.

  • Concluding thoughts
The prohibition on the use of chemical weapons has more recognition as a war crime, rather than as a crime against humanity.  While the ‘mere’ use of chemical weapons can amount to a war crime, only the consequences of chemical weapons, not their use per se, may be crimes against humanity.  Why then is there such an emphasis in political rhetoric that any and all use of chemical weapons is a crime against humanity?  A cynic may suggest that the label ‘crime against humanity’ has more political currency than ‘war crime’, so that its use could encourage compliance and enforcement action. Whether or not the emphasis is strategic, what is clear is that international political actors, the media and the public are engaging with concepts of international criminal law in connection with the conflict in Syria. While there is arguably greater public awareness  of international criminal law as a result of this discourse, it would be ultimately detrimental if key legal concepts are confused.  While situations of mass atrocity may amount to crimes against humanity,  ‘crimes against humanity’ is not a byword for atrocity. In the interests of clarity, public education and with an eye to expectations of victims in any eventual prosecutions, concepts of international criminal law deserve more careful  treatment.