The Evolving Notion of Persecution in the Law and Jurisprudence of International Crime Tribunals

Abstract

During the twentieth century the crime of persecution raised complex legal questions, in particular within the framework of international criminal law. First, the 1914-1918 Holocaust of the Armenians in the Ottoman Empire led to the drafting of Article 230 of the Treaty of Sèvres, which provided for the prosecution of responsible individuals that never took place in practice. Later on, the International Military Tribunal (IMT) of Nuremberg, in parallel with national tribunals, tried the 1933-1945 persecutions perpetrated in Europe by the Axis Powers, especially against Jews, Slavs, Russians, Gypsies, Jehovah's Witnesses, homosexuals, disabled persons and political activists, namely socialists and communists. In 1991, the outburst in Yugoslavia generated tensions among the Serbian, Croatian, Bosnian, Albanian and Muslim ethnic groups, which led to the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1993. The Rwandan genocide of the Tutsi minority and the moderated Hutu group perpetrated by the Hutu majority gave rise to the International Criminal Tribunal for Rwanda (ICTR) in 1994. The latest development is the establishment of the International Criminal Court (ICC), whose 1998 Statute includes the crime of persecution. The present study analyses persecution through the lens of the law and jurisprudence of the Nuremberg Tribunal, the ICTY, the ICTR and the ICC, and thus adopts a case-law approach, whereas it touches only in part upon customary law. The purpose is to provide a specific focus and to concentrate on the rules of the statutes establishing criminal tribunals under international law, as well as on the way in which they are interpreted and applied by international courts. In this light, the investigation tackles the major challenges ahead for international judicial bodies, in particular the ICC, when faced with charges of persecution.