Statement of Facts
Ms. Mazet is the founder, owner, and CEO of Anonpal, a social media platform operating in the Republic of Molis, which is a UN member and is a party to the International Criminal Court. Cermar is a neighboring republic to Molis, which is also a UN member but not a party to the International Criminal Court. Cermar was ruled by a military junta led mainly by the Rappeter community, with ethnic tensions being an ongoing issue for the country.
The Rappeter community experienced resentment and distrust on the part of the majority population. Since Cermar became a democracy in 2017, the ethnic tensions increased significantly. Human Rights Worldwide documented numerous cases of murders, sexual assaults, and forced disappearances. The organization found that around 40% of the Rappeter population has been forcibly displaced out of their homes.
Anonpal, managed by Ms. Mazet, was found to the attacks on the Rappeter community through an intense and coordinated campaign. The social media platform disseminated messages of hate, propaganda, false news, and conspiracy theories. Ms. Mazet rejected any accusations regarding her role in spreading misinformation and hate propaganda.
The ICC Prosecutor called for the opening of a preliminary investigation into the case concerning Cermar for crimes against humanity, which have been alleged, including murder, forcible transfer of population, rape, enforced disappearance of persons, and persecution. Ms. Mazet was summoned in court based on the claim that there existed enough evidence to suggest that she was responsible for crimes against humanity.
Statement of Issues
The challenge for the prosecution in the presented case is to establish points regarding the following issues:
- Showing that there are reasonable grounds to believe that Ms. Mazet has criminal responsibility for committing crimes against humanity of persecution under Article 25(3)(a) of the Rome Statute for indirect perpetration;
- Showing that there are reasonable grounds for believing that Ms. Mazet is criminally culpable of aiding and abetting crimes against humanity, namely, murder, rape, enforced disappearances, and forcible population transfer under article 25(3)(c) of the Rome Statute.
Crimes against humanity are associated with certain acts purposefully committed as a part of a widespread and consistent attack directed at any civilian in the time of war or peace (United Nations, 2012). The law that governs the prosecution of such crimes has been mainly developed through the development and integration of customary international law. An international convention has not codified such crimes; however, there are currently international efforts for establishing a treaty under the Crimes Against Humanity Initiative. The account of the legal notion of crimes against humanity developed since the Nuremberg trials after the end of World War II, when the global community made a decision to prosecute political and military leaders for crimes they committed against their subjects.
The 1998 Rome Statute that enabled the establishment of the International Criminal Court (Rome Statute) is the current document reflecting the most recent consensus within the international community regarding this matter. Crimes against humanity are seen as violent acts of similar nature and character that cause significant injury or suffering to the physical and/or mental health and well-being of the population. According to Article 7(1) of the Rome Statute, “a crime against humanity does not necessarily have to occur during the war” (International Criminal Court, 2011). It has physical, contextual, and psychological elements, which describe the nature of the crime (International Criminal Court, 2011). Specifically, a physical element implies commissioning any of the acts such as “murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment, torture, grave forms of sexual violence, persecution, enforced disappearance, apartheid crime, as well as other inhumane acts” (Renzo, 2012, p. 444). The contextual element of crime implies that it should be committed within a systematic framework as directed to any civilian population. The psychological element of the crime is concerned with knowledge of the violent act.
The contextual component of crimes against humanity entails either violence of wide scope in relation to a large number of victims over a vast geographical area or a methodic or systematic kind of ongoing violence. In order for the crime to have a contextual element, it should be committed within the lines of a policy, either state or organizational, to commit such a crime. An important distinction in the case of the crimes against humanity is that there is no specific necessity for showing that there has been a specific intent to commit a crime that targets humanity. Instead, it is enough to prove a simple intent for committing any of the acts enumerated prior, except the crime of persecution that calls for the additional intent of discrimination. The perpetrator must also be found to have the knowledge of the attack against the population of civilians and understand that their actions are part of such an attack.
In order for an individual to be proven guilty of crimes that target humanity, they need to be aware that their victims belong to a group that is being targeted by the wider attack (Renzo, 2012). Such crimes are considered particularly odious because they are not sporadic or isolated occurrences; instead, they a component of a policy of widespread and systematic crimes that target the members of a certain group (Renzo, 2012). Furthermore, the international aspect of crimes against humanity should not be overlooked because they are considered so severe that they cannot be left unpunished when domestic courts are ineffective at prosecuting them.
The collectivist nature of crimes against humanity is at odds with the common understanding of human rights as those rights, the role of which is to protect the dignity of each human being. The point of acknowledging that specific rights have the status of human rights is to vindicate the idea “that individual enjoyment of these rights should not be affected by states’ failure to protect them and enforce them” (Hazenberg, 2016, p. 480). Therefore, the value of the contextual component within the notion of crimes against humanity is ensuring that only when someone is tortured or murdered within the background of a broader attack on the group, of which they are a part, can the global community intervene to punish the crime, in case if domestic courts are incapable of doing so. If a crime is concerned with targeting individuals that are not members of a wider community under attack, there are no legal grounds for the intervention of the international court.
Cases of Crimes Against Humanity
The Prosecutor v. Bosco Ntaganda. In July 2019, International Criminal Court Chamber VI found Bosco Ntaganda guilty of eighteen counts of crimes against humanity and war crimes that took place in Ituri, Democratic Republic of Congo, between 2002 and 2003 (International Criminal Court, 2020). The defendant was found to be guilty of enlisting and conscripting individuals under the age of fifteen as well as employing them as active participants in armed activities.
The Prosecutor v. Alfred Yekatom and Patrice-Edouard Ngaïssona. The cases of the two defendants were joined for their allegedly responsible crimes against humanity in different locations in the Central African Republic between 2013 and 2014 (International Criminal Court, 2020). The crimes against humanity charge included murder and attempted murder, the forcible population transfer, the limitation of physical liberty, persecution, further inhumane acts, and more. The case is currently at the trial stage (International Criminal Court, 2020).
The Prosecutor v. William Samoei Ruto and Joshua Arap Sang. In April 2016, the Trial Chamber V(A) made the decision that the charges against the defendants were to be terminated. The charges against William Samoei Ruto included three “crimes against humanity, such as murder, deportation or forcible transfer of population, and persecution” (International Criminal Court, 2020). Joshua Arap Sang was charged with the same counts of crimes against humanity committed during the 2007-2008 post-election violence in Kenya. However, Judges declined, confirming the charges as mentioned earlier.
As suggested by the International Criminal Court (2020), prosecuting and convicting defendants charged with crimes against humanity is challenging because specific criteria for eligibility must be met. Matanga (2009) supported the claim by stating that there is currently scantly detailed scholarly evidence that has been documented regarding the activities of the ICC. To a large extent, the creation of the courts represents a point of institutionalizing the international system of justice regarding crimes against humanity and war-related crimes As of now, there is lacking legislative framework to facilitate the optimum functioning of the ICC as well as the capacity of the court to balance out the competing interests of peace and justice when pursuing its core activities.
Summary of Arguments
Considering the evidence available in the case of Ms. Mazet alongside the international law background regarding crimes against humanity, there are no reasonable grounds for believing that she is criminally culpable for crimes against humanity of persecution under Article 25(3)(a) of the Rome Statute, indirect co-perpetration) or aiding and abetting crimes against humanity of murder, forcible population transfer, forced disappearances, or rape under Article 35(3)(c).
Arguments Advanced
Article 25(3)(a) of the Rome Statute is concerned with co-perpetration. Based on the provisions of the Statute, a person is considered criminally culpable and liable to punish a crime. The indirect perpetrator, in this context, is the master-mind of the individual in the background; therefore, they act as an agent that is not responsible for crimes against humanity specifically. The mode of liability under Article 25(3)(a) must include the following three components:
- Establishing the existence of a relationship that the indirect perpetrator can impose their dominant will over the direct perpetrator, thus ensuring that a crime is being committed. Within the Application, the indirect perpetrator is alleged to be responsible for the crime committed by another group or organization, with the institution being organized based on the provisions of the hierarchy.
- The indirect perpetrator must have sufficient authority within an organization, thus having the final say about the adoption and implementation of the practices and policies at issue.
- The indirect perpetrator must be aware of their unique role within the organization and actively use it to further the crimes being charged.
Under Article 25(3)(a), indirect perpetration is concerned with a scenario of a ‘perpetrator behind a perpetrator,’ in which a direct perpetrator is being manipulated or exploited by an indirect perpetrator to commit the crime while remaining fully responsible for the crime. To prove that Ms. Mazet is liable for indirect perpetration, it should be established that the set of coordinated campaigns on Anonpal was knowingly initiated by her. However, considering the anonymity of the posts being published online regarding hate propaganda, conspiracy theories, and false news against the community of Rappeter, the identity of posters is unknown. Given that Ms. Mazet refused to shut down the posting of inflammatory information, the considerations of freedom of speech must be included. While the suspected individual is the leader of the organization spreading hate propaganda and fake news that fuel violent acts against the Rappeter people, it is necessary to show that she had a relationship with direct perpetrators and used her authority as a means to encourage criminal acts. Based on the case information being presented currently, there is no link between Ms. Mazel and any groups and individuals committing systematic attacks against the Rappeter. Given the principle of hierarchy implied in Article 25(3)(a), Ms. Mazel’s authority at Anonpal should have been significant enough for her to encourage crimes against humanity committed by other parties on her behalf. As of now, no evidence of the strength of her authority is present.
Article 25(3)(c) offers provisions for the accessorial mode of liability in which a person is individually held criminally responsible when they commission or facilitate crime, aid, abet, or assist in commissioning or the attempted commission of the crime. The standard of purpose plays a vital role in classifying aiding and abetting crime as it denotes awareness. Regardless of the motive, if the assessor provides help with the knowledge that their assistance would result in the commission of the crime, there is enough evidence to hold them liable. However, a limitation of such an understanding of purpose is that it would include a large number of people who could have had full knowledge of the core crime but have either no direct personal interest or are carrying out their legitimate business activities, as in the case of Ms. Mazet.
The standard of intent should also be considered as it entails that the accessory in aiding and abetting crime must have intentionally aided to facilitate the crime committed by the principal perpetrator. An important aspect of this is that the accessory must not only have the knowledge that the provided assistance would lead to a crime but should also lead the assistance the same with the intent of assisting the principal. Again, the interpretation of purpose bears some issues. For instance, it requires two intents, one under Article 25(3)(c) and one under Article 30 of the Statute that applies by default, which bears no necessity, as it blurs the distinction between an accessory and the principal considering that the former has no control over crime’s commissioning while the latter has (“Rome Statute of the International Criminal Court,” 2002). Besides, the additional intent requirement is highly restrictive because it excludes the liability of persons assisting the principal out of any vested or financial interest. Considering the evidence available in the case of Ms. Mazet, the standards of purpose and intent are not applicable to her as it is not possible to show that she had knowledge that her assistance would lead to the commission of the crime or that they intentionally aided to facilitate the crime committed by the main perpetrator.
Indirect-co-perpetration is a complicated notion, which makes it challenging to find Ms. Mazet criminally culpable for the charge. An individual bears no control over the person through whom the crimes would be committed. Although, if they are together with another person, the one who controls the person used as an instrument, the crime can be attributed to them based on mutual attribution (“Rome Statute of the International Criminal Court,” 2002). As applied to the case of Ms. Mazet, there is no substantial evidence to show that she used another individual or group as an instrument to commit crimes against humanity, despite the fact that the social media platform run by her was spreading hate propaganda and messages directly targeting the Rappeter community. Free expression on social media platforms is being managed and censored by the organizations’ owners as the latter see fit. The choice of Ms. Mazet not to censor or ban unfavorable speech and hate messages against the Rappeter community shows her approach toward freedom of speech and nothing else. There is no proven connection between her and the direct perpetrators of crimes against humanity. Moreover, it cannot be proven that Ms. Mazet had knowledge that her acts would lead to violent acts committed by other individuals in direct opposition with the Rappeter people. Therefore, it is unreasonable to believe that Ms. Mazet can be prosecuted for crimes against humanity of persecution (indirect co-perpetration) and aiding and abetting crimes against humanity associated with murder, the forcible population transfer, rape, and enforced disappearances.
References
Hazenberg, J. (2016). Transnational corporations and human rights duties: Perfect and imperfect. Human Rights Review, 14, 479-500.
International Criminal Court. (2011). Elements of crimes. Web.
International Criminal Court. (2020). The court today. Web.
Matanga, F. (2009). The challenges facing the International Criminal Court in prosecuting cases of genocide, crimes against humanity and war crimes. Africa Insight, 39(2), 1-10.
Renzo, M. (2012). Crimes against humanity and the limits of international criminal law. Law and Philosophy, 31, 443-476.
Rome Statute of the International Criminal Court. (2002). Web.
United Nations. (2012). Crimes against humanity. Web.