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National Surveys:

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Australia

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Canada

France

Germany

India

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Executive Summary

International Crimes

Category I: Crimes Against Humanity

Category II: Forced Labor/Enslavement

Category III: War Crimes Part I

Category III: War Crimes Part II

Category IV: Torture

Category V: Genocide

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Business and International Crimes

Crimes against Humanity

A. Overview
B. Cases Involving Economic Actors and Crimes Against Humanity
C. Crimes against Humanity Defined
D. Elements of Enumerated Crimes

A. Overview

At present, the only cases that have been brought against business entities for alleged involvement in crimes against humanity are civil lawsuits that have been brought in the United States pursuant to the federal Alien Tort Claims Act (ATCA). The majority of these lawsuits involve multinational corporations that are involved with natural resource extraction in various conflict zones around the globe. These corporations often have contractual relationships (e.g. joint ventures) with government entities.

The government entities or their security forces are often alleged to have committed acts of violence that amount to crimes against humanity. The business entities are allegedly implicated not as direct perpetrators but rather as accomplices. One notable exception is the case brought against Del Monte produce, in which the company is alleged to have committed a crime against humanity through its own direct spraying of pesticides on a civilian population.

B. Cases Involving Economic Actors and Crimes Against Humanity

Some case information and summaries from the International Labor Rights Fund's project on Corporate Labor Rights Abuses. See:

http://www.laborrights.org/projects/corporate/ATCA%20summaries.htm

1. Roe, et. al. v. Unocal Corporation, et. al.
Doe, et al. v. Unocal Corporation, et al.
Case No. 00-56603; 00-56628 (9th Cir. 2002)

Summary: Plaintiffs are a group of Burmese citizens who were forced to perform labor for the benefit of the Yadana Gas Pipeline Project, in which Unocal was a joint venture partner with the military government. Several of the Doe Plaintiffs also claim they suffered abuses that included sexual assaults by military officials hired to provide “security” to the pipeline project, dislocation from their homes, and murder.

Crimes Alleged: Plaintiffs allege death of family members, assaults, rapes, forced labor, and the loss of their homes and property at the hands of Burmese military force, the State Law and Order Restoration Council (SLORC). [For plaintiffs' full factual allegations see Complaint available at http://www.earthrights.org/unocal/fedcomplaint.shtml.] On several occasions SLORC soldiers allegedly entered area villages to either force relocation of the residents or to recruit individuals into serving as "porters" for the performance of various menial tasks. Witnesses reported instances of arrest, beating, or execution of villagers refusing to participate in the forced labor program. The SLORC also allegedly beat and executed individuals who were unwilling or physically unable to perform the assigned tasks. Retribution and intimidation by the SLORC officials allegedly extended to the families of potential or acting forced laborers and included acts of physical violence, theft, and even rape. The plaintiffs allege that the conduct of the SLORC officials and their association with the defendants' business activities amounted to the following violations of international and national law:

• Violation of Racketeer Influenced and Corrupt Organizations (RICO) Act

• Forced Labor

• Crimes Against Humanity: killing, rape and other torture, beatings, and other assaults.

• Torture

• Violence Against Women

• Arbitrary Arrest and Detention

• Cruel, Inhuman, or Degrading Treatment

• Torts: Wrongful death, battery, false imprisonment, assault, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence per se, negligent hiring, negligent supervision.

• Violation of California Business & Professions Code § 17200

Status: In August 31, 2000, Judge Ronald S. Lew granted Unocal’s motion for summary judgment dismissing all claims despite evidence that Unocal knowingly benefited from slave labor. The Ninth Circuit Court of Appeals ultimately reversed and remanded this decision on September 18, 2002. It found that plaintiffs proffered evidence that Unocal and its co-venturers knowingly participated in using forced labor and committing other human rights violations by providing financial and material support to the military security forces, and that these acts were sufficient to constitute “aiding and abetting” under both international and domestic law.

On February 12, 2003, the Ninth Circuit vacated the September 18, 2002 decision of the three-judge panel that reversed the District Court’s decision granting Unocal summary judgment, and granted an en banc review. A hearing before this panel is scheduled for June 18, 2003. On a parallel track, plaintiffs’ state law case filed in L.A. Superior Court is expected to go to trial in October 2003. Plaintiffs re-filed their state law tort claims following the District’s Court’s dismissal, and State Court Judge Victoria Chaney subsequently found that there was sufficient evidence for a trial on a theory of vicarious liability under state law.

2. Wiwa v. Royal Dutch Petroleum Co., et. al.,
Case No.96 CIV 8386 (KMW) (S.D.N.Y. 2002)

Summary: This lawsuit alleges that the Royal Dutch/Shell oil group was complicit in human rights abuses in Nigeria. The particular abuses alleged are the November 10, 1995 hangings of environmental and community leaders Ken Saro-Wiwa and John Kpuinen, the torture and detention of Owens Wiwa, and the shooting of a woman who was peacefully protesting the bulldozing of her crops in preparation for a Shell pipeline by Nigerian troops called in by Shell. The complaint alleges that these abuses were intended to suppress the Ogoni people's peaceful opposition to defendants' long history of environmental damage and human rights abuses in the Ogoni region.

Crimes Alleged: Plaintiffs allege that the Nigerian government repeatedly detained and tortured Ken Saro-Wiwa and John Kpuinen, and the two were eventually hung by special tribunal, allegedly in violation of international standards of due process. Owens Wiwa was also detained and tortured. In addition, the complaint alleges that a woman protestor was beaten and shot at as she peacefully demonstrated against the bulldozing of her crops in preparation for a Shell pipeline. The plaintiff’s complaint alleges that the Nigerian government committed the following violations:

• Summary execution: two activists falsely accused and hanged by a special tribunal, allegedly in violation of international standards of due process.

• Crimes Against Humanity: namely, willful killing, torture and arbitrary arrest and detention, and other inhumane acts.

• Torture: torture and beatings of activists.

• Cruel, Inhuman, or Degrading Treatment

• Arbitrary Arrest and Detention: arrest and detention of activists.

• Violation of the Rights to Life, Liberty and Security of Person and Peaceful Assembly and Association: beating and shooting of female protestor; arrest, detention, and execution of activist.

• Torts: Wrongful death, assault and battery, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence

• Violations of the Racketeer Influenced and Corrupt Organizations Act
  

Status: In 1998, the U.S. District dismissed the case on forum non conveniens grounds. On appeal, the Second Circuit rejected defendants’ attempt to return the case to Nigeria or England, finding that Congressional intent as expressed in the Torture Victims Protection Act (TVPA) was to allow the types of human rights violations raised by plaintiffs to be heard in U.S. courts. The case was then remanded back to the District Court for further proceedings with regard to the remaining issues raised in defendants' motion to dismiss.

On February 28, 2002, the district court denied the motions to dismiss on virtually all of the plaintiff’s claims. Judge Wood's opinion found that the plaintiff’s allegations met the requirements for claims under the ATCA, in that the actions of Royal Dutch/Shell and Anderson constituted participation in crimes against humanity, torture, summary execution, arbitrary detention, cruel, inhuman, and degrading treatment, and other violations of international law. The case is now in discovery with a pending trial date of Fall 2003.

3. The Presbyterian Church of Sudan, et. al. v. Talisman Energy, Inc.,
Case No. 01CV9882 (S.D.N.Y. 2001)

Summary: In this class action suit, plaintiffs allege that the military of northern Sudan has engaged in a war of genocide against the southern non-Muslim population of Sudan, and that the Sudanese government has used revenues generated from oil reserves in southern Sudan to construct an arms industry and purchase arms for its war of genocide. The plaintiffs allege that Talisman Energy, Inc. aided and abetted in or, alternatively, facilitated and conspired in alleged ethnic cleansing by northern Sudanese forces against the southern Christians.

Crimes Alleged: The Sudanese government’s “ethnic cleansing” campaign against its southern non-Muslim population involved the destruction of thousands of villages and residences, many of which were destroyed by helicopter gunships and military aircraft, as well as the capture, enslavement, and killing of a substantial number of civilians. These activities also resulted in the displacement of hundreds of thousands of civilians. The plaintiffs allege that the Sudanese government’s “ethnic cleansing” activities resulted in the following violations:

• Extrajudicial killing

• Forcible Displacement (war crime)

• Military Bombings and Assaults on Civilian Targets (war crime)

• Confiscation and Destruction of Property (war crime)

• Kidnapping

• Rape

• Enslavement

• Torture

• Genocide

Status: The complaint was filed in the U.S. District Court for the Southern District of New York on November 8, 2001. The defendant subsequently filed a motion to dismiss which the court denied on March 19, 2002. The case is now expected to proceed to discovery.

4. Villeda, et. al. v. Fresh Del Monte Produce Inc., et al.
Case No. 01-CIV-3399 (S.D. Fla.2001)

Summary: Plaintiffs are eleven villagers from Aceh, Indonesia who allegedly suffered human rights violations including extrajudicial killing, torture, and crimes against humanity at the hands of Indonesian military. The plaintiffs allege the military officials were hired by Exxon Mobil to provide security for its natural gas facilities in Aceh. Plaintiffs allege that Exxon Mobil did so in the knowledge that these same troops had been responsible for massacres in East Timor, and would likely engage in massive human rights violations against the local population. Several of the plaintiffs further allege that they were tortured by the security forces inside the Exxon Mobil compound, in facilities provided by the company for the use of its security forces. Moreover, plaintiffs allege that all of the claims date from 2001, well after Exxon Mobil had specific knowledge of massive human rights violations by its hired security forces, and did nothing to change the practices.

Crimes Alleged: The plaintiffs allege that they were abducted and tortured by the “security forces.” Specifically, they claim they were forced at gunpoint to call off the work stoppage, resign from their union, and leave the area or face death from their abductors. The plaintiffs allege that the “security forces” committed the following violations during the abduction:

• Torture
  

• Cruel, Inhumane, and Degrading Treatment
  

• Unlawful detention
  

• Kidnapping
  

• Extrajudicial Killing
  

• Denial of Fundamental Rights to Associate and Organize
  

• Violation of Racketeer Influenced and Corrupt Organizations Act
  

• Torts & National Crimes: Battery, Assault, Arbitrary Arrest and Detention, False Imprisonment, Intentional Infliction of Emotional Distress, Negligent Infliction of Emotional Distress, Negligence Per Se, Aiding and Abetting

Status: Plaintiffs filed their complaint on August 2, 2001 in the U.S. District Court for the Southern District of Florida. On May 13, 2002, the defendants filed their motion to dismiss, to which plaintiffs filed their opposition on June 10, 2002. No hearing on the motion to dismiss has been set, but the court recently set a new trial date for August 25, 2003.

5. Bowoto, et. al. v. Chevron, et. al.
Case No. C99-2506 (N.D. Cal. 2000)

Summary: Plaintiffs are citizens of Nigeria who claim that Chevron Corporation, acting in concert with Nigeria’s military and police, committed systematic violations of human rights, including summary execution, torture, and cruel and inhuman and degrading treatment, to suppress peaceful protests about Chevron’s environmental practices. The complaint alleges violations in two separate incidents, the first involving a peaceful protest at the Chevron offshore drilling facility in Parabe, which was allegedly broken up in a violent confrontation, and the second involving an alleged attack on the villages of Opia and Ikenyan located near Chevron’s Oil operations. In August 2002, leave was granted to file a fourth amended complaint. Plaintiffs added Racketeer Influenced and Corrupt Organizations Act (RICO) claims and a claim under the California Business and Professions Code section 17200.

Crimes Alleged: As mentioned, the plaintiffs’ claims center on two separate incidents. In the first, helicopters fired on peaceful demonstration taking place on defendants’ oil platform, killing two protestors and seriously wounding two others. Following the incident, Nigerian police or military forces rounded up a number of the protestors, detained them in a commercial container, and subjected some of the detainees to torture. The second incident involved an attack by the Nigerian military on two villages. Shots were fired by helicopter, by boat, and by soldiers on the ground. The attack resulted in human death and injury and destruction of churches, religious shrines, and water wells. The attacking soldiers are alleged to have burned down homes, killed livestock, and destroyed canoes and fishing equipment belonging to the villagers. The plaintiffs claim that these incidents amounted to the following violations:

• Summary Execution

• Crimes Against Humanity

• Torture

• Cruel, Inhuman, or Degrading Treatment

• Violation of the Rights to Life, Liberty and Security of Person and Peaceful Assembly and Association

• Consistent Pattern Of Gross Violations Of Internationally Recognized Human Rights

• Violations of the Racketeer Influenced and Corrupt Organizations Act

• Torts: Wrongful Death, Battery, Assault, Intentional Infliction of Emotional Distress, Negligent Infliction of Emotional Distress, Negligence Per Se, Civil Conspiracy, Loss of Consortium

• Violation of California Business & Professions Code §17200

Status: Motions to dismiss on forum non conveniens grounds and for lack of subject matter jurisdiction were denied and the case is currently in discovery. With regards the additional 17200 and RICO claims, the court granted the defendants’ motion to dismiss the section 17200 claim and the wire fraud claims, but denied defendants’ motion to dismiss the remaining RICO claims finding a sufficient nexus to U.S. conduct.

6. Estate of Rodriguez, et al. v. Drummond Company, Inc., et al.,
Case No. CV-02-0665-W (N.D. Ala. 2002)

Summary: Plaintiffs are the surviving family members and union of three murdered trade union leaders. The case alleges that Drummond’s management in Colombia retained and authorized paramilitaries, as well as regular military personnel, to target union leaders for murder, and provided these death squads with financial and material support in order to rid the Drummond plant of the union. The complaint includes allegations that in the midst of collective bargaining negotiations, two of the union’s top leaders were pulled off a Drummond company bus by paramilitaries who said, in front of all of the workers on the bus, “These two have a problem with Drummond,” and then shot one of the union leaders in the head in front of the other workers. The other was found dead later that day after having been tortured. Seven months later, the union’s successor president was similarly pulled off a public bus after leaving work, and his body was found two days later showing signs of torture and bullet wounds in the head.

Crimes Alleged: Based on the facts stated above, the plaintiffs allege the following violations were committed by the paramilitaries:

• Extrajudicial Killing: The plaintiffs alleged two counts of extrajudicial killing, one under ATCA and the other under the TVPA.

• Denial of Fundamental Rights to Associate and Organize

• Wrongful Death

• Aiding and Abetting

Status: In an April 14, 2003 decision, the court dismissed the claims of the deceased’s family members on grounds that they failed to seek permission to proceed in the case anonymously. However, the court granted the plaintiffs thirty days to correct their procedural error by filing a Motion to Proceed Anonymously and an Amended Complaint. The union’s ATCA claims of extrajudicial killing and denial of the fundamental rights to associate and organize survived the motion to dismiss. The court dismissed the union’s wrongful death, aiding and abetting, and TVPA extrajudicial killing claims because of a lack of standing to bring such claims.

CASES THAT ARE PENDING—REVIEW OF MOTION TO DISMISS

7. Arias, et. al. v. DynCorp, et. al.,
Case No. 01-01908 (D.D.C. 2001)

Summary: Plaintiffs in this class action are victims who assert that DynCorp sprayed toxic herbicides over the area in which they live in Ecuador in order to kill cocaine and heroin crops believed to be growing there. Plaintiffs allege that the spraying caused a variety of medical problems including congenital birth defects, permanent skin irritations and blisters, and, in some cases, death. Plaintiffs also allege loss of their livelihoods as subsistence farmers by losing crops and livestock. Plaintiffs assert that DynCorp, a U.S. government contractor, had no authority to conduct aerial spraying in any part of Ecuador, and that by doing so, knowing that the indigenous farmers would be harmed, DynCorp is responsible under the ATCA for torture, crimes against humanity, and genocide, and under the TVPA for extrajudicial killing and torture.

Crimes Alleged: Plaintiffs allege the following violations.

• Torture: Plaintiffs claim that the defendant’s herbicide spraying amounted to torture as it caused them repeated and prolonged physical and mental pain and suffering.

• Crimes Against Humanity: Plaintiffs claim that repeated spraying over a period of months resulted in widespread and systematic pain and suffering of innocent, non-combatant civilians. Plaintiffs were placed in great fear for their lives and forced to suffer severe physical and psychological abuse and agony.

• Cultural Genocide: Plaintiffs allege that the spraying wiped out their subsistence crops, forcing many to flee their homes and farms. They claim this displacement from their ethnic homelands in the rain forest amounts to cultural genocide.

• Extrajudicial Killing: Plaintiffs allege that an infant child died because of exposure to toxic herbicide poisoning.

• Torts: Wrongful death, battery, assault, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence per se, negligent hiring, negligent supervision, conversion, trespass, negligent trespass, nuisance, nuisance per se, strict liability, negligence in the conduct of ultrahazardous activity, medical monitoring.

Status: The complaint was filed on September 11, 2001 in the U.S. District Court for the District of Columbia. A decision on DynCorp’s motion to dismiss is currently pending.

8. John Doe I, et. al. v. Exxon Mobil Corp., et. al.
Case No.: 01CV01357 (D.D.C. 2001)

Summary: Plaintiffs are eleven villagers from Aceh, Indonesia who allegedly suffered human rights violations including extrajudicial killing, torture, and crimes against humanity at the hands of Indonesian military hired by Exxon Mobil to provide security for its natural gas facilities in Aceh. Plaintiffs allege that Exxon Mobil did so knowing that these troops, the same troops responsible for the massacres in East Timor, would likely engage in massive human rights violations against the local population. Several of the plaintiffs further allege that they were tortured by the security forces inside the Exxon Mobil compound, in facilities provided by the company for the use of its security forces. Moreover, plaintiffs allege that all of the claims date from 2001, well after Exxon Mobil had specific knowledge of massive human rights violations by its hired guns, and did nothing to change the practices.

Crimes Alleged: The plaintiffs alleged the following violations.

• Murder: A number of the plaintiffs allege that their husbands were murdered by security forces.

• Genocide: Plaintiffs allege that the murders by state security forces were part of a systematic campaign of extermination against their people.

• Torture: A number of the plaintiffs allege they were beaten, burned, shocked with cattle prods, kicked, and subjected to other forms of brutality and cruelty.

• Kidnapping: A number of the plaintiffs allege they were forcibly removed by security forces and detained for lengthy periods against their will.
  

• Cruel, inhuman or degrading treatment: Plaintiffs allege they were subjected to grossly humiliating and debasing treatment at the hands of the security forces.

• Violence Against Women: Female plaintiff alleges she was beaten and sexually assaulted by member of the security forces.

• Torts: Wrongful death, battery, assault, arbitrary arrest and detention, false imprisonment, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence per se, negligent hiring, negligent supervision, conversion, negligent supervision, conversion, aiding and abetting.

Status: Defendants filed a motion to dismiss on October 1, 2001. Plaintiffs' opposition to the motion to dismiss was filed on December 4, 2001 and the defendants' reply filed on December 21, 2001. Oral argument on the motion to dismiss was held on April 9, 2002. On May 10, 2002, at the urging of Exxon Mobil, the court submitted a written request to the Department of State for a nonbinding opinion as to whether the adjudication of this case would impact adversely on the interests of the United States. Following a letter by the State Department that the case may be detrimental to a number of U.S. interests in Indonesia, including specifically its negative impact on U.S. business, the Court allowed the parties to submit an additional briefing. A decision on Exxon Mobil’s motion to dismiss is still pending, including the issue of the legal effect of the State Department’s letter seeking to immunize Exxon Mobil from liability.

9. Sinaltrainal, et. al. v. Coca-Cola Co., et. al.,
Case No: 01-03208 (S.D. Fla. 2001)

Summary: Plaintiffs include the trade union Sinaltrainal and five individual union leaders who were murdered, tortured, and/or unlawfully detained. Plaintiffs allege that the paramilitaries were brought into the bottling plants to use violence to exterminate the trade union with the specific consent of the managers of the Coca-Cola bottling plants. Sinaltrainal asserts that, as a direct result, it sustained heavy losses of leaders who were employed by the company. Plaintiffs also allege that, since at least 1996, Sinaltrainal has been writing letters to Coca-Cola demanding that the targeting of trade union leaders at Coca-Cola bottling plants be stopped, but that Coca-Cola took no action to prevent the open association between paramilitaries and managers of the Coca-Cola bottling plants in Colombia.

Crimes Alleged: The plaintiffs allege the following complaints.

• Murder (ATCA):

• Extrajudicial Killing (TVPA):

• Violations of Violations of the Racketeer Influenced and Corrupt Organizations Act

• Denial of Fundamental Rights to Associate and Organize

• Kidnapping

• Unlawful Detention

• Torture

• Crimes Against Humanity

• Torts: Wrongful death, arbitrary arrest and detention, false imprisonment, battery, assault, negligence per se, intentional infliction of emotional distress, negligent infliction of emotional distress, aiding and abetting.

Status: The complaint was filed on July 20, 2001 in the U.S. District Court for the Southern District of Florida. The court issued a decision on March 28, 2003 dismissing ATCA and TVPA claims against Coca-Cola and its Colombian subsidiary for a lack of subject matter jurisdiction. The court declined to dismiss the same claims against the bottler and plant managers. The court also held that the RICO claims were inapplicable in the case because plaintiffs’ claims did not have a strong enough connection to the United States.

10. Ntzebesa, et. al. v. Citigroup, Inc., et. al.,
02 Civ 4712 (S.D.N.Y. 2002)

Summary: Plaintiffs are citizens of South Africa who allege damages as a result of human rights violations under the system of apartheid. Defendants are U.S.-based corporations that allegedly conducted business in South Africa under apartheid including: Citigroup, UBS AG, Credit Suisse, and several corporate Does including Barclays, Ford, IBM, GM, royal Dutch/Shell and Westinghouse. Plaintiffs assert that by doing business in South Africa during the period of apartheid, defendants enabled the economic and political structure of apartheid to exist, develop, and flourish. Specifically, plaintiffs allege that defendants wrongfully ignored United Nations mandates, such as the UN weapons ban and various divestment programs, for the purpose of continuing to earn profits in South Africa, and knowingly provided funds, technology, systems, equipment, and other support to the apartheid regime. However, unlike the two apartheid cases—Digwamaje and Khulumani—below, this complaint does not allege any specific acts by any defendant company that caused a specific injury to any plaintiff. It appears to be an “investment only” case, and will most likely have difficulty surviving a motion to dismiss. In addition to compensatory and punitive damages, plaintiffs also seek the appointment of an independent international commission, and the creation of affirmative action, education, and training programs in South Africa.

Crimes Alleged: Apartheid and associated crimes.
Status: Unknown.

11. Khulumani, et. al. v. Barclays National Bank, et. al.
Case No. 02-CV5952 (S.D.N.Y. 2002)

Summary: This lawsuit arises out of the extrajudicial killings, torture, forced labor, and arbitrary detentions practiced by the Apartheid regime in South Africa between 1960 and 1993. Plaintiffs seek to hold those businesses that allegedly aided and abetted the apartheid regime and made these wrongs possible. The complaint, unlike the Ntzebesa case above, states with specificity the corporate activities in South Africa responsible for the violations suffered. [The complaint is available at http://www.nyed.uscourts.gov/02cv5952cmp.pdf.] For example, the plaintiffs allege that the mining industry was involved in helping to design and implement apartheid policies. Plaintiffs also allege that IBM and ICL provided the computers that enabled South Africa to create the passbook system used to control the black South African population. Similarly, plaintiffs allege that car manufacturers provided the armored vehicles that were used to patrol the townships, and arms manufacturers violated the embargoes on sales to South Africa, as did the oil companies. Plaintiffs also allege that the named banks provided the funding that enabled South Africa to expand its police and security apparatus, and that all these companies were not only instrumental to the furtherance of the abuses, but were so integrally connected to the abuses themselves that apartheid would probably not have occurred in the same way without their participation.

Crimes Alleged: In particular, the plaintiffs allege that the defendants are liable for the following violations:

• Apartheid

• Forced Labor

• Genocide

• Extrajudicial Killing

• Torture

• Sexual Assault

• Unlawful Detention

• Cruel, Unusual, and Degrading Treatment

• Offenses committed in furtherance of or ancillary to those crimes

Status: Plaintiffs are currently in the process of serving all of the defendants, with many of the twenty-two defendants having already been served.

12. Digwamaje, et. al. v. Bank of America, et. al.
Case No. 02-CV-6218 (S.D.N.Y. 2002)

Summary: This apartheid case names eighty-five companies and one thousand corporate Does, alleging that these companies engaged in business practices that furthered the notorious apartheid regime, and that consequently these companies are liable under the ATCA and RICO. As with the Khulumani case above, it attempts to provide specific corporate practices that served to further the apartheid regime.

Crimes alleged: Apartheid.
Status: Many of the defendants in this case have been served and a preliminary RICO case statement has been filed.

CASES THAT HAVE BEEN DISMISSED—APPEAL PENDING

13. Flores, et. al. v. Southern Peru Copper Corporation
Case No: 00 Civ. 9812 (CSH) (S.D.N.Y. 2002)

Basis of Dismissal: Failure to plead violation of the law of nations.
Summary: The plaintiffs, eight residents of Peru, allege that they and other residents suffered fatal lung disease, chronic asthma, and other illness as a result of environmental pollution caused by Southern Peru Copper Corporation’s mining and smelting operations near the city. The Southern Peru Copper Corporation is a Delaware corporation with an office in New York City. The complaint asserts ATCA claims against Southern Peru Copper based on violations of plaintiffs’ rights to life, health, and sustainable development under international law, because its operations systematically sicken and kill people.

Crime Alleged: The plaintiffs alleged that the defendant’s polluting activities violated their rights to life and health and the duty to assure sustainable development.
Status: The District Court dismissed the case on the ground that environmental pollution within a country’s borders does not violate any well-established norms of international law. The Court also ruled that the case could alternatively be dismissed on forum non conveniens grounds. Plaintiffs have appealed this decision to the Second Circuit Court of Appeals. Argument is scheduled for April 2003.

14. Rabi Abdullahi, et. al. v. Pfizer Inc.
Case No. 01 Civ. 8118 (S.D.N.Y. 2002)

Basis of Dismissal: Forum Non Conveniens
Summary: This ATCA action arises out of the testing of an experimental drug known as Trovan (Trovafloxacin Mesylate) on children suffering from bacterial meningitis during an epidemic of bacterial meningitis, measles, and cholera in Kano, Nigeria. The testing was allegedly conducted by defendant Pfizer Inc. at Kano’s Infectious Disease Hospital, with some level of approval and cooperation from the Nigerian government. Plaintiffs claim that as a result of the tests, children suffered brain damage, loss of hearing and motor skills, and, in some cases, death. Plaintiffs allege that Pfizer treated the children knowing that Trovan had the potential to cause the injuries, and that Pfizer knowingly failed to inform the children or their parents and subsequently failed to conduct any follow-up evaluations.
Crimes Alleged: Plaintiffs allege that Pfizer treated children with knowledge that the drug had the potential to cause serious joint and liver damage, failed to inform the subjects of the risk or seek informed consent, and neglected to evaluate the subjects subsequent to their treatment. Plaintiffs claim that such acts violated the Nuremberg Code, the Declaration of Helsinki, Article 7 of the International Covenant on Civil and Political Rights, FDA regulations, and "other norms of international law."

Status: In a 2002, the District Court denied Pfizer's motion to dismiss, finding that the International Covenant on Civil and Political Rights afforded sufficient evidence of the existence of universally recognized norms applicable to Pfizer's alleged conduct, and that Pfizer’s activities were so interconnected with the Nigerian government so as to constitute state action. However, the court dismissed the action on forum non conveniens grounds, finding that Nigeria, despite acknowledged problems of corruption and bias, afforded an adequate forum. Plaintiffs have appealed to the Second Circuit on the forum non conveniens ruling, and Pfizer has cross-appealed the court’s refusal to dismiss for failure to state a claim. No date has been set for an appellate argument.

15. Sarei et. al. v. Rio Tinto, et. al.
Case No.: CV 00-11695 MMM
221 F. Supp.2d 1116 (C.D. Cal. 2002)

Basis of Dismissal: Forum Non Conveniens and Political Question

Summary: This ATCA class action arises out of claims of environmental and human rights abuses against Rio Tinto and Rio Tinot, Ltd, respectively British and Australian companies, who operate a copper and gold mine on the Papua New Guinea island of Bougainville. Agreements between the mine operators and the PNG government gave 19% of the mine’s profits to the PNG government. Plaintiffs are residents of Bougainville, who assert that they were unlawfully dispossessed of their land; that the defendants caused massive environmental damage; and that, in the effort to keep mining operations open for the Rio Tinto, the PNG central government committed human rights abuses including war crimes, crimes against humanity, and an unlawful medical blockade in response to the civil unrest precipitated by the mine. The medical blockade alone is alleged to have resulted in the death of approximately 15,000 people.

Crimes Alleged: The plaintiffs’ complaint alleges the following violations:

• Crimes Against Humanity: Plaintiffs allege that the medical blockade was an act of torture and genocide.
  

• War Crimes: Plaintiffs allege that during the civil war the PNG government committed the following violations of the laws of war: aerial bombardment of civilian targets (attack on civilians); wanton killing and acts of cruelty; burning of houses and villages (destruction & appropriation of property); making the civilian population and individual civilians objects of attack; outrages upon personal dignity, acts of rape, humiliating and degrading treatment; perfidious use of the Red Cross emblem; and pillage. Plaintiffs also claim that the blockage was a violation of the laws of war because it denied civilians access to medicine.
  

• Violation of the Rights to Life, Health and Security of the Person

• Racial Discrimination in Violation of International Law

• Cruel, Inhuman and Degrading Treatment

• Violations of International Environmental Rights

• Consistent Pattern of Gross Violations of Human Rights

• Torts: Negligence, Private Nuisance, Public Nuisance, Strict Liability, Equitable Relief, Medical Monitoring.

Status: In July 2001, the District Court denied Rio Tinto’s motion to dismiss on grounds of forum non conveniens and failure to state a claim, but left open the issue of justiciability pending receipt of an opinion of the U.S. State Department concerning the effect of the action on U.S. foreign policy interests. In a November 2001 letter, the State Department told the court the continued adjudication of the action would “risk a potentially serious adverse impact on the Bougainville peace process, and hence on the conduct of United States foreign relations” with a friendly country. In March 2002, based on the State Department opinion, the court conditionally dismissed all claims under the political question doctrine. Initially the dismissal was conditioned on the PNG government submitting written consent to allow the claims to be pursued in PNG, but, in June 2002, Judge Morrow removed the condition and made the order final. Plaintiffs have appealed the dismissal to the Ninth Circuit.

CASES THAT HAVE BEEN DISMISSED—APPEAL DENIED

16. Hamid v. Price Waterhouse, et. al., 51 F.3d 1411 (9th Cir. 1995)
Basis of Dismissal: Failure to plead a violation of the law of nations.
Summary: Plaintiffs, depositors of a failed international bank, brought this class action against seventy-seven individuals, firms, and a foreign nation, Abu Dhabi. The plaintiffs' ATCA claims were based upon their allegations of fraud, breach of fiduciary duty, and misappropriation of funds. Plaintiffs argued that these claims were violations of international banking standards and, therefore, of the law of nations.

Crimes Alleged: The plaintiffs alleged that the acts of fraud, breach of fiduciary duty, and misappropriation of funds committed by the defendants amounted to violations of the law of nations under ATCA.
Status: The U.S. District Court for the Central District of California dismissed the case and the plaintiffs appealed. On April 7, 1995, the Ninth Circuit affirmed the lower court's ruling and held that claims of fraud, breach of fiduciary duty, and misappropriation of funds were not breaches of the law of nations for purposes of the ATCA.

17. Beanal, et. al. v. Freeport-McMoran, Inc., et. al.,
197 F.3d 161 (5th Cir. 1999)

Basis of Dismissal: Failure to plead a violation of the law of nations.

Summary: Plaintiff, Beanal, is a leader of the Amungme Tribal Counsel in Indonesia who filed suit against Freeport-McMoran, which operated an open pit copper, gold, and silver mine situated in the locality where plaintiff resided in Indonesia. The complaint alleged torture, arbitrary arrest and detention, surveillance, destruction of property; the purposeful and deliberate cultural demise of the Amungme culture due to various human rights and environmental violations; and environmental violations from various mining practices, including destruction, pollution, alteration, and contamination of natural waterways, as well as surface and ground water sources; deforestation; and destruction and alteration of physical surroundings. Beanal alleged that Freeport engaged in these abuses through its security guards working at the Freeport plant.

Crimes Alleged: The plaintiffs alleged that they defendants were liable for:

• Genocide and Cultural genocide: Plaintiffs claim they were forced from their homelands because of the defendant’s activities.

• Individual Human Rights Violations: Including surveillance, mental torture, death threats, and house arrest.

• Environmental Torts: Deposit of mine tailings into rivers, diversion of rivers.
  Status: In April 1997, the court dismissed the complaint and subsequently struck plaintiff's second and third amended complaints. On November 29, 1999, the Fifth Circuit affirmed the lower court's dismissal of the complaint, finding that Beanal had failed to state claims under the ATCA and the TVPA for genocide and international human rights violations and that the environmental treaties and agreements cited by the plaintiff were not sufficient sources of international law to support an ATCA claim.

18. Bano, et. al. v. Union Carbide Corp., et. al.
273 F.3d 120 (2d Cir. 2001)

Basis of Dismissal: Prior settlement of claims in India.

Summary: Plaintiffs, victims of the 1984 Union Carbide gas plant disaster at Bhopal, India, filed suit against Union Carbide for violations of international human rights law, environmental law, and international criminal law. Plaintiffs alleged that the leak of poisonous gas from the Bhopal pesticide plant killed over 5,000 people immediately and injured many thousands more, and they sought to hold the corporation accountable for these violations. In addition to the 1984 disaster, the plaintiffs sought compensation for ongoing pollution and contamination at the Bhopal plant. Plaintiffs filed this action in 1999 to obtain further redress in U.S. courts, although litigation in India had already resulted in a partial settlement agreement, which was approved by the Indian Supreme Court in 1991.

Crimes Alleged: The plaintiffs made the following claims under ATCA and New York common law:

• Violations of international criminal law

• Racial discrimination in violation of international law

• Cruel, inhuman, and degrading treatment

• Violation of the rights to life, health, and security of the person

• Violations of international environmental rights

• Torts: Active and constructive fraud, negligence, public nuisance, private nuisance, strict liability, medical monitoring, trespass, and equitable relief to remedy the contamination and spoliation of Plaintiffs' properties, water supplies, and environment.

Status: The Southern District of New York granted the defendants' motion to dismiss and denied plaintiffs' cross-motions on August 28, 2000, finding that plaintiffs’ claims were fully litigated and settled in India. The court did not address defendants' arguments that Indian law deprived the plaintiffs of standing to seek remedies for the disaster, or that the complaint had failed to allege a violation of well-established norms of international law. Plaintiffs appealed to the Second Circuit Court of Appeals and, on November 15, 2001, the Second Circuit vacated the District Court's dismissal of the environmental claims, but upheld the District Court's dismissal of the plaintiffs' ATCA claims. On March 18, 2003, the Southern District of New York dismissed the remainder of the plaintiffs’ claims as untimely and directed at the improper parties. The court ruled that Union Carbide had met its cleanup obligations and that it no longer had connection to or authority over the Bhopal plant.

19. Bigio, et. al. v. Coca-Cola, et. al.,
239 F.3d 440 (2d Cir. 2001)

Basis of Dismissal: Failure to plead an international law violation.

Summary: Plaintiffs claim that in 1962 their property in Egypt was unlawfully seized and nationalized, in violation of international law, by the Egyptian government because the plaintiffs were Jewish. Plaintiffs allege that in 1993 Coca-Cola purchased or leased the plaintiffs' property, with the knowledge that the property had been nationalized by the Egyptian government. The plaintiffs argued that because the Egyptian government seized their property as part of a national program of religious persecution, the seizure violated international law. Plaintiffs' sole allegation against Coca-Cola was that it acquired or leased the property with knowledge that it had been expropriated in violation of international law. The U.S. District Court found that the complaint failed to plead a violation of international law by Coca-Cola and, therefore, the court did not have jurisdiction over plaintiffs' ATCA claims.

Crime Alleged: The plaintiffs allege that Coca-Cola purchased or leased Egyptian property with full knowledge that the property had once been owned by the plaintiffs and then confiscated from the plaintiffs by the Egyptian government, on the basis of plaintiffs’ religion.
Status: On December 7, 2000, the Second Circuit upheld the dismissal of plaintiffs' ATCA claims, but determined that the lower court had other bases for jurisdiction and remanded the case to theDistrict Court for further proceedings.

20. Aguinda v. Texaco, Inc.,
303 F.3d 470 (2d Cir. 2002)

Basis of Dismissal: Forum Non Conveniens

Summary: This case is a class action involving alleged human rights violations and environmental damages in Ecuador. Plaintiffs allege that from 1964 to 1992, a subsidiary of Texaco improperly disposed of waste while extracting oil from the Ecuadoran Amazon, resulting in environmental damage.

Crimes Alleged: Plaintiffs claimed that they had or would suffer property damage, personal injuries, and increased risk of disease as a result of environmental damage caused by exploration and extraction activities. Damages and equitable relief were sought under theories of negligence, public nuisance, private nuisance, strict liability, medical monitoring, trespass, civil conspiracy, and violations actionable under the ATCA. In particular, the plaintiffs alleged that the defendants dumped toxic drilling by-products into local rivers contrary to standard industry practice of pumping the materials back into the emptied wells; and improperly disposed of toxic substances by burning, dumping directly into landfills, and spreading them on local dirt roads. The plaintiffs also alleged that the defendants’ oil pipeline leaked large quantities of petroleum into the environment.
Status: The district court originally dismissed the lawsuit in 1996 on the grounds of international comity and forum non conveniens that favored Ecuador as the proper alternative forum. In 1998, the U.S. Second Circuit Court of Appeals reversed the lower court ruling and remanded the case to the trial court for reconsideration, holding that dismissal on grounds of forum non conveniens and comity was erroneous in absence of a condition requiring the oil company to submit to jurisdiction in Ecuador. However, in 2001, the trial court again dismissed the lawsuit, finding that Ecuador and/or Peru were adequate alternate forums despite an Ecuadorian law that precluded bringing suits that have already been filed in other jurisdictions. The Court also ruled that the presence of claim under Alien Tort Claims Act did not preclude dismissal. Plaintiffs undertook another appeal to the Second Circuit. In 2002, however, the Second Circuit upheld the District Court’s latter dismissal on forum non conveniens grounds. Plaintiffs have since begun the process of re-filing the claims in Ecuador.

ACTIVE & RECENTLY SETTLED LITIGATION

21. Makhetha, et al v. Credit Commercial De France, et al.

Summary: Plaintiffs filed suit against thirteen French and Swiss banks and other financial institutions, alleging them to be responsible for aiding and abetting the apartheid regime in South Africa. The suit alleges that these banks provided the funding that enabled South Africa to expand its police and security apparatus.
Crimes alleged: Apartheid.
Status: Plaintiffs filed suit on Friday, March 28, 2003, in federal court in the Eastern District of New York.

C. Crimes against Humanity Defined

1. Rome Statute of the International Criminal Court

‘Crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

(a) Murder;

(b) Extermination;

“Extermination" includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population.

(c) Enslavement;

"Enslavement" means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.

(d) Deportation or forcible transfer of population;

"Deportation or forcible transfer of population" means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law.

(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

(f) Torture;

"Torture" means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions.

(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

“Forced pregnancy" means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy.

(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
"Persecution" means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.
(i) Enforced disappearance of persons;

"Enforced disappearance of persons" means the arrest, detention, or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.

(j) The crime of apartheid;
"The crime of apartheid" means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

2. International Criminal Tribunal for the Former Yugoslavia (ICTY), International Criminal Tribunal for Rwanda (ICTR), Statute of the Tribunal of the Special Court for Sierra Leone

Note: The enumerated offenses are the same for each of these tribunals/courts. The prefatory language, however, differs.

Article 7 of the ICTY Statute
The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population.

Article 5 of the ICTR Statute
The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds:

Article 2 of the Statute of the Special Court for Sierra Leone
The Special Court shall have the power to prosecute persons who committed the following crimes as part of a widespread or systematic attack against any civilian population.

Enumerated Offenses

(a) murder;
(b) extermination;
(c) enslavement;
(d) deportation;
(e) imprisonment;
(f) torture;
(g) rape;
(h) persecutions on political, racial and religious grounds;
(i) other inhumane acts.

3. Charter of the Military Tribunal for the Far East

5(c) Crimes against Humanity:

Namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political or racial grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any person in execution of such plan.

4. Control Council Law No. 10 Punishment of Persons Guilty of War Crimes, Crimes against Peace and Against Humanity.

II (1)(a) Crimes against Humanity. Atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.

5. Additional notes on attack directed against any civilian population

• ‘Attack directed against any civilian population’ means a course of conduct involving the multiple commission of acts against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.

• ‘Attack directed against a civilian population’ in these context elements is understood to mean a course of conduct involving the multiple commission of crimes against humanity against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack. 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. A policy, which has a civilian population as the object of the attack, would be implemented by State or organizational action. Such a policy may, in exceptional circumstances, be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack. The existence of such a policy cannot be inferred solely from the absence of governmental or organizational action.

• The last two elements for each crime against humanity describe the context in which the conduct must take place. These elements clarify the requisite participation in and knowledge of a widespread or systematic attack against a civilian population. However, the last element should not be interpreted as requiring proof that the perpetrator had knowledge of all characteristics of the attack or the precise details of the plan or policy of the State or organization. In the case of an emerging widespread or systematic attack against a civilian population, the intent clause of the last element indicates that this mental element is satisfied if the perpetrator intended to further such an attack.

6. Statute of Limitations: Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, United Nations, entry into force, November 11 1970, Art. 1(b), Art. 2.

No statutory limitation shall apply to the following crimes, irrespective of the date of their commission:

• Crimes against humanity whether committed in time of war or in time of peace, as they are defined in the Charter of the International Military Tribunal, Nuremberg, of 8 August 1945 and confirmed by resolutions 3 (I) of 13 February 1946 and 95 (I) of 11 December 1946 of the General Assembly of the United Nations, including eviction by armed attack or occupation and inhuman acts resulting from the policy of apartheid, and the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, even if such acts do not constitute a violation of the domestic law of the country in which they were committed.

If any of the crimes mentioned in article I is committed, the provisions of this Convention shall apply to representatives of the State authority and private individuals who, as principals or accomplices, participate in or who directly incite others to the commission of any of those crimes, or who conspire to commit them, irrespective of the degree of completion, and to representatives of the State authority who tolerate their commission.

7. International Voluntary Guidelines making reference to Crimes Against Humanity

Draft Norms of Responsibility of Transnational Corporations and Other Business Enterprises with Regard to Human Rights

• Right to Security of Persons: (3) Transnational corporations and other business enterprises shall not engage in nor benefit from war crimes, crimes against humanity, genocide, torture, forced disappearance, forced or compulsory labor, hostage-taking, other violations of humanitarian law, and other international crimes against the human person as defined by international law.
  Commentary
  

• Transnational corporations and other business enterprises, which produce and/or supply military, security, or police products/services, shall take stringent steps to prevent those products and services from being used to commit human rights or humanitarian law violations and to comply with evolving best practices in this regard.
  

• Transnational corporations and other business enterprises shall not produce or sell weapons that have been declared illegal under international law. Transnational corporations and other business enterprises shall not engage in trade that is known to lead to human rights or humanitarian law violations. U.N. Doc. E/CN.4/Sub.2/2003/XX, E/CN.4/Sub.2/ 2003/WG.2/WP.1
  

• Proyectos del III Milenio, UNESCO (http://www.valenciatercermilenio.org/espanol/intro.html)
  

• Amnesty International: Human Rights Guidelines for Companies (http://www.amnesty.org.uk/business/pubs/hrgc.shtml)

D. Elements of Enumerated Crimes

1. Crime against Humanity of Murder

Article 7(1)(a) of the Final Draft Text of the Elements of Crimes, Report of the Preparatory Commission of the International Criminal Court.

1. The perpetrator ‘killed’ or ‘caused the death’ of one or more persons.
2. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
3. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack against a civilian population.

2. Crime Against Humanity of Extermination

Article 7(1)(b) of ICC Elements:

1. The conduct constituted, or took place as part of, a mass killing of members of a civilian population. The term ‘as part of’ would include the initial conduct in a mass killing.
2. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
3. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

3. Crimes Against Humanity of Enslavement

Article 7(1)(c) of ICC Elements

1. The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty. It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labor or otherwise reducing a person to a servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children.
2. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
3. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

4. Crime against Humanity of Deportation or Forcible Transfer of Population

Article 7(1)(d) of ICC Elements

1. The perpetrator deported or forcibly transferred, without grounds permitted under international law, one or more persons to another State or location, by expulsion or other coercive acts. The term ‘forcibly’ is not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment. ‘Deported or forcibly transferred’ is interchangeable with ‘forcibly displaced’;
2. Such person or persons were lawfully present in the area from which they were so deported or transferred;
3. The perpetrator was aware of the factual circumstances that established the lawfulness of such presence;
4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population;
5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

5. Crime against Humanity of Imprisonment or other Severe Deprivation of Physical Liberty in Violation of Fundamental Rules of International Law

Article 7(1)(e) of ICC Elements:

1. The perpetrator imprisoned one or more persons or otherwise severely deprived one or more persons of physical liberty;
2. The gravity of the conduct was such that it was in violation of fundamental rules of international law;
3. The perpetrator was aware of the factual circumstances that established the gravity of the conduct;
4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population;
5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

6. Crime against Humanity of Torture

Article 7(1)(f) of ICC Elements:

No specific purpose need be proved for this crime.

1. The perpetrator inflicted severe physical or mental pain or suffering upon one or more persons.
2. Such person or persons were in the custody or under the control of the perpetrator.
3. Such pain or suffering did not arise only from, and was not inherent in or incidental to, lawful sanctions.
4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

7. Crime Against Humanity of Rape

Article 7(1)(g)(i) of ICC Elements:

1. The perpetrator invaded the body of a person by conduct resulting in penetration, however slight, of any part of the body of the victim or of the perpetrator with a sexual organ, or of the anal or genital opening of the victim with any object or any other part of the body. The concept of ‘invasion’ is intended to be broad enough to be gender-neutral;
2. The invasion was committed by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or another person, or by taking advantage of a coercive environment, or the invasion was committed against a person incapable of giving genuine consent. It is understood that a person may be incapable of giving genuine consent if affected by natural, induced or age-related incapacity;
3. The conduct was committed as part of a widespread or systematic attack directed against a civilian population;
4. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

8. Crime Against Humanity of Sexual Slavery

Article 7(1)(g)-2 of ICC Elements:

Given the complex nature of this crime, it is recognized that its commission could involve more than one perpetrator as a part of a common criminal purpose.
1. The perpetrator exercised any or all of the powers attaching to the right of ownership over one or more persons, such as by purchasing, selling, lending or bartering such a person or persons, or by imposing on them a similar deprivation of liberty. It is understood that such deprivation of liberty may, in some circumstances, include exacting forced labor or otherwise reducing a person to a servile status as defined in the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery of 1956. It is also understood that the conduct described in this element includes trafficking in persons, in particular women and children;
2. The perpetrator caused such person or persons to engage in one or more acts of a sexual nature;
3. The conduct was committed as part of a widespread or systematic attack directed against a civilian population;
4. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

9. Crime Against Humanity of Enforced Prostitution

Article 7(1)(g)-3 of ICC Elements:

1. The perpetrator caused one or more persons to engage in one or more acts of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such persons or persons incapacity to give genuine consent.
2. The perpetrator or another person obtained or expected to obtain pecuniary or other advantage in exchange for or in connection with the acts of a sexual nature.
3. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
4. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

10. Crime Against Humanity of Forced Pregnancy

Article 7(1)(g)-4 of ICC Elements:

1. The perpetrator confined one or more women forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law;
2. The conduct was committed as part of a widespread or systematic attack directed against a civilian population;
3. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

11. Crime Against Humanity of Sexual Violence

Article 7(1)(g)-6 of ICC Elements:

1. The perpetrator committed an act of a sexual nature against one or more persons or caused such person or persons to engage in an act of a sexual nature by force, or by threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power, against such person or persons or another person, or by taking advantage of a coercive environment or such person or persons incapacity to give genuine consent;
2. Such conduct was of a gravity comparable to the other offences;
3. The perpetrator was aware of the factual circumstances that established the gravity of the conduct;
4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population;
5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

12. Crime Against Humanity of Persecution

Article 7(1)(h) of ICC Elements:

1. The perpetrator severely deprived, contrary to international law, one or more persons of fundamental rights;
2. The perpetrator targeted such person or persons by reason of the identity of a group or collectivity or targeted the group or collectivity as such;
3. Such targeting was based on political, racial, national, ethnic, cultural, religious, gender as defined in the Statute, or other grounds that are universally recognized as impermissible under international law;
4. The conduct was committed in connection with any act referred to in the Statute or any crime within the jurisdiction of the Court;
5. The conduct was committed as part of a widespread or systematic attack directed against a civilian population;
6. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population. It is understood that no additional mental element is necessary.

13. Crime Against Humanity of Enforced Disappearance of Persons

Article 7(1)(i) of ICC Elements:

Given the complex nature of this crime, it is recognized that its commission will normally involve more than one perpetrator as a part of a common criminal purpose.

1. The perpetrator:
(a) Arrested, detained, including a perpetrator who maintained an existing detention, or abducted one or more persons; or
(b) Refused to acknowledge the arrest, detention or abduction, or to give information on the fate or whereabouts of such person or persons. It is understood that under certain circumstances an arrest or detention may have been lawful;
2. (a) Such arrest, detention or abduction was followed or accompanied by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of such person or persons; or
(b) Such refusal was preceded or accompanied by that deprivation of freedom;
3. The perpetrator was aware that:
(a) Such arrest, detention or abduction would be followed in the ordinary course of events by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of such person or persons; (It is understood that, in the case of a perpetrator who maintained an existing detention, this element would be satisfied if the perpetrator was aware that such a refusal had already taken place), or
(b) Such refusal was preceded or accompanied by that deprivation of freedom;
4. Such arrest, detention or abduction was carried out by, or with the authorization, support or acquiescence of, a State or a political organization;
5. Such refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of such person or persons was carried out by, or with the authorization or support of, such State or political organization;
6. The perpetrator intended to remove such person or persons from the protection of the law for a prolonged period of time;
7. The conduct was committed as part of a widespread or systematic attack directed against a civilian population;
8. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

14. Crime Against Humanity of Apartheid

Article 7(1)(j) of ICC Elements:

The perpetrator committed an inhumane act against one or more persons:

1. Such act was an act referred to in article 7, paragraph 1, of the Statute, or was an act of a character similar to any of those acts. ‘Character’ refers to the nature and gravity of the act;
2. The perpetrator was aware of the factual circumstances that established the character of the act;
3. The conduct was committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups;
4. The perpetrator intended to maintain such regime by that conduct;
5. The conduct was committed as part of a widespread or systematic attack directed against a civilian population;
6. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.

See also International Convention on the Suppression and Punishment of the Crime of Apartheid, Adopted and opened for signature, ratification by General Assembly resolution 3068 (XXVIII) of 30 November 1973, entry into force 18 July 1976.

15. Crime Against Humanity of Other Inhumane Acts

Article 7(1)(j) of ICC Elements:

1. The perpetrator inflicted great suffering, or serious injury to body or to mental or physical health, by means of an inhumane act;
2. Such act was of a character similar to any other act referred the Statute. ‘Character’ refers to the nature and gravity of the act;
3. The perpetrator was aware of the factual circumstances that established the character of the act;
4. The conduct was committed as part of a widespread or systematic attack directed against a civilian population;
5. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack directed against a civilian population.