X. DECLARATION OF JUDGE LAL CHAND VOHRAH

THE RELATIVE SERIOUSNESS OF
CRIMES AGAINST HUMANITY VIS-À-VIS WAR CRIMES

1. I am in full agreement with the findings of the Judgement and its disposition except for the determination made in paragraph 243.¹ As much as I appreciate the cold logic of the Tadic Sentencing Appeals Judgement drawing no distinction between crimes against humanity and war crimes,² I have the following observations to make.

2. When I sat as a member of the Appeals Chamber in the Erdemovic case, I was part of the majority that agreed with the original Sentencing Judgement in Tadic.³ Erdemovic, in extending the view expressed in Tadic, held that all things being equal, crimes against humanity are intrinsically more serious than war crimes, and this distinction should ordinarily be reflected in the sentencing.⁴ I still subscribe to that view despite recent jurisprudence, including that advanced in the present Judgement, that stipulates an opposing view. Hence this Declaration to reinforce and develop my previous position on this issue.

3. In the post World War II trial at Nuremberg, there was no apparent distinction between the seriousness of a war crime and a crime against humanity in the Judgement of the International Military Tribunal, largely because these two crimes were considered jointly, not separately, in the Judgement. However, there was something of a distinction between crimes against peace - which was referred to as "the supreme crime" - and the other crimes within the jurisdiction of the Tribunal. The IMT Judgement stated: "The charges in the Indictment that the defendants planned and waged aggressive wars are charges of the utmost gravity. War is essentially an evil thing. Its consequences are not confined to the belligerent States alone, but affect the whole world. To initiate a war of aggression, therefore, is not only an international crime; it is the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole."⁵ Although all things were not equal, and some persons found guilty by the Tribunal played a greater role in perpetrating or responsibility for crimes than others and the sentences appropriately reflected this role, as a general rule, most persons convicted by the IMT of crimes against peace were sentenced to death by hanging or life imprisonment, and thus attracted a harsher sentence than those convicted solely of war crimes and crimes against humanity.⁶

4. As noted by Judge Cassese, "one cannot say that a certain class of international crimes encompasses facts that are more serious than those prohibited under a different criminal provision. In abstracto all international crimes are serious offences and no hierarchy of gravity may a priori be established between them."⁷ However, he goes on to emphasize that it is an entirely different matter when all things are equal, as the issue then becomes "whether the very same fact imputed to an accused, if characterised as a war crime, may be regarded as more or less serious than if it is instead defined as a crime against humanity."⁸

5. While all crimes cannot be placed on a continuum of seriousness or within a hierarchy of gravity, there are certain crimes that will always be regarded as the worst crimes it is possible to commit, and these include genocide and crimes against humanity. These crimes are considered the "crime of crimes"⁹ primarily because they are committed against a group as such or are committed generally against a large number of people, and often committed on discriminatory grounds. Indeed, if the majority's view that war crimes and crimes against humanity are prima facie indistinguishable as to inherent gravity, that principle would seemingly apply to there also being no hierarchical difference between war crimes and crimes against peace or between war crimes and genocide. I find this position to be inherently flawed, as it fails to take into account inter alia the broader nature of the crimes or the different interests the prohibitions of the crimes are intended to protect.

6. Naturally, a Chamber must look at the individual circumstances of each case and the convicted person's degree of culpability in determining a sentence, and in many circumstances when all things are not equal, a war crime might warrant a heavier penalty than a crime against humanity or genocide. For example, a war crime of wilful killing would likely warrant a heavier penalty than an unsuccessful attempt to commit genocide, and a war crime of torture might warrant a longer sentence than an inhumane act constituting a crime against humanity. It is important to re-emphasize that in such instances, all things are not equal. When all things are equal - for the same act, a person is convicted of torture as a war crime or is convicted of a torture as a crime against humanity - although the injury to the individual tortured may be the same, the injury to society would necessarily be greater if a crime against humanity has occurred. This extended injury should ordinarily be reflected in the sentence.

7. In addition, in my view, it appears to be inherently incompatible for the Chamber to hold that as a general rule, crimes involving death are more serious than crimes not involving death, while at the same time holding that there is no hierarchy of crimes, all things being equal.¹⁰ Some crimes are considered worse than death, such as breaking a person's spirit, torturing a person physically while permitting that person to live thereafter in constant pain or humiliation, or destroying a person mentally, which may each be more destructive in the long term than outright execution. There is in my view an irreconcilable contradiction in holding on the one hand that all things being equal there is no inherent distinction between war crimes and crimes against humanity, including in the imposition of sentences, yet holding on the other hand that crimes resulting in death deserve more severe punishment than crimes not resulting in death.

8. Genocide is committed with the intent to destroy more than an individual, but an individual as part of a protected group as such; crimes against humanity are committed through means of a widespread or systematic attack against a civilian population; war crimes are crimes committed with a nexus to an armed conflict. If acts constituting genocide or crimes against humanity are committed in the context of and with a nexus to an armed conflict, and thus also constitute war crimes, then for it to be held that the additional elements required for constituting genocide or crimes against humanity and the fact that a broader society is affected by such crimes do not deserve to be reflected in the sentence of a person convicted of these crimes, amounts to a failure to take into consideration the exceptionally egregious nature of genocide and crimes against humanity. While this statement is not intended to minimize the heinousness of war crimes, it is intended to reflect the broader context of and additional elements required to prove crimes against humanity and genocide. If all things being equal war crimes are not considered more serious and not penalized more harshly, a prosecutor would not go to the trouble to prove the additional elements required to establish genocide and crimes against humanity. There is undoubtedly a greater stigma attached to a conviction for genocide or crimes against humanity as opposed to a war crime. As has been reflected in several judgements, genocide was committed in Rwanda. To infer that this crime is not necessarily more serious than a war crime undermines the integrity of the convictions of genocide and crimes against humanity in the Tribunals and the gravity of the enormous harm caused by the Rwandan genocide during which nearly one million people were slaughtered.

9. In the Kambanda case before the ICTR, the Trial Chamber noted that the Statute did not rank the various crimes within the jurisdiction of the Tribunal or the sentences to be imposed and therefore, theoretically, there was no distinction between the crimes. However, it then emphasized that in imposing the sentence, the Trial Chamber should take into account "such factors as the gravity of the offence."¹¹ The Chamber went on to insist: "The Chamber has no doubt that despite the gravity of the violations of Article 3 common to the Geneva Conventions and of the Additional Protocol II thereto, they are considered as lesser crimes than genocide or crimes against humanity."¹² Although it had no difficulty in holding that war crimes were not as serious as genocide and crimes against humanity, the Chamber found it "more difficult . . . to rank genocide and crimes against humanity in terms of their respective gravity."¹³ It opined that "genocide constitutes the crime of crimes, which must be taken into account when deciding the sentence."¹⁴ Picking out genocide and crimes against humanity as the most serious crimes, the Kambanda Trial Chamber determined that "precisely on account of their extreme gravity, crimes against humanity and genocide must be punished appropriately."¹⁵

10. As Blaskic recognized, the Kambanda Trial Chamber considered war crimes as "crimes of a lesser seriousness" in relation to genocide and crimes against humanity, and noted that this view was followed in subsequent cases, which thereby established a "genuine hierarchy of crimes and this has been used in determining sentences" in the ICTR.¹⁶ After reviewing the case law of the ICTY in relation to establishing a hierarchy of crimes at the sentencing phase, including the differing opinions on the issue set down in the Tadic and Erdemovic cases, the Blaskic Chamber stated that "it appears that the case-law of the Tribunal is not fixed. The Trial Chamber will therefore confine itself to assessing seriousness based on the circumstances of the case."¹⁷

11. For the reasons cited above and in my previous decisions, and those articulated by Judge Cassese in Tadic,¹⁸ I find myself still of the view that when all things are equal, a person convicted of a crime against humanity commits a more serious crime than a person convicted of a war crime and ordinarily this additional gravity requires that the person convicted of a crime against humanity should receive a longer sentence than a person convicted of the same act as a war crime. This view would naturally include genocide which, also considered a crime against humanity, is similarly inherently more serious than a war crime; all things being equal, it should be recognized and punished as such. This should not be taken to support the Appellant's argument in the present case that his sentence for war crimes should be reduced. If the Appellant had been charged with and convicted of a crime against humanity for the same acts, all things being equal, my view is simply that a conviction for crimes against humanity should warrant a higher sentence than a conviction for war crimes.

Done in English and French, the English text being authoritative.

______________________________
Judge Lal Chand Vohrah

Dated this twenty-first day of July 2000
At The Hague,
The Netherlands

[SEAL OF THE TRIBUNAL]

1 Furundzija Judgement, para. 243, stating "The Appeals Chamber will follow its decision in the Tadic Sentencing Appeals Judgment on the question of relative gravity as between crimes against humanity and war crimes."
2 Prosecutor v. Dusko Tadic, Judgement in Sentencing Appeals, Case No. IT-94-1-A and IT-94-1-Abis, App. Ch., 26 January 2000, at para. 69.
3 Prosecutor v. Dusko Tadic, Sentencing Judgment, Case No. IT-94-1-T, T. Ch. II, 14 July 1997, para. 73 ("A prohibited act committed as part of a crime against humanity . . . is, all else being equal, a more serious offence than an ordinary war crime. This follows from the requirement that crimes against humanity be committed on a widespread or systematic scale, the quantity of the crimes having a qualitative impact on the nature of the offence which is seen as a crime against more than just the victims themselves but against humanity as a whole.")
4 See Prosecutor v. Drazen Erdemovic, Judgement, Joint Separate Opinion of Judge McDonald and Judge Vohrah, Case No. IT-96-22-A, App. Ch., 7 October 1997, para. 20 ("[A]ll things being equal, a punishable offence, if charged and proven as a crime against humanity, is more serious and should ordinarily entail a heavier penalty than if it were proceeded upon on the basis that it were a war crime." [emphasis in original]).
5 1 Trial of the Major War Criminals before the International Military Tribunal, Nurenberg, 14 November 1945 - 1 October 1946, Judgement (1947) at p.186 [emphasis added].
6 More precisely, of the 19 persons found guilty by the IMT, twelve were sentenced to death. Of these twelve, seven were convicted of Counts I and II for Common Plan or Conspiracy to commit a crime against peace (Count 1) or Crimes against Peace (Count II); thus only five received a death sentence when convicted solely for War Crimes (Count III) and/or Crimes against Humanity (Count IV). Of the twelve persons convicted of Counts I or II, seven were given a death sentence, three were sentenced to life imprisonment, and two received a term of 10 years' or 15 years' imprisonment; of the 12 persons convicted of crimes including Count II, seven received sentences of death, three received life sentences, and two received a term of years (thus, there is no major discrepancy between sentencing on Counts I and II, although only 8 were convicted of both).
7 Prosecutor v. Dusko Tadic, Judgement in Sentencing Appeals, Separate Opinion of Judge Cassese, Case No. IT-94-1-A and IT-94-1-Abis, App. Ch., 26 January 2000, para. 7.
8 Ibid. at para. 10 [emphasis in original].
9 See discussion in Prosecutor v. Jean Kambanda, Judgement and Sentence, Case No. ICTR-97-23-S, T.Ch. I, 4 September 1998, at paras. 10-33, and as highlighted in this Declaration, infra. Also note that in the debates on Security Council Resolution 955, establishing the ICTR, the representative of Rwanda referred to genocide as "the crime of crimes." See UN Doc. S/PV.3453, 8 November 1994.s
10 See Legal Findings in Ground Five of the present Judgement.
11 Prosecutor v. Jean Kambanda, Judgement and Sentence, Case No. ICTR-97-23-S, T.Ch. I, 4 September 1998, at paras. 12-13. The Chamber also recalled that in determination of sentences, it had to take into account a number of factors, pursuant to the Statute and Rules, such as "gravity of the offence, the individual circumstances of the accused, [and] the existence of any aggravating or mitigating circumstances". Ibid., para. 29.
12 Ibid., para. 14.
13 Ibid.
14 Ibid., para. 16. The Chamber also referred to genocide and crimes against humanity as crimes "which are particularly revolting to the collective conscience alone". Ibid., para. 33. See also para. 14, stating that genocide and crimes against humanity "are crimes which particularly shock the collective conscience."
15 Ibid., para. 17.
16 Prosecutor v. Tihomir Blaskic, Judgement, Case No. IT-95-14-T, T. Ch. I, 3 March 2000, at para. 800.
17 Ibid., paras. 801-802.
18 Tadic, Judgement in Sentencing Appeals, Separate Opinion of Judge Cassese, supra note 7.