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JAVID GADIROV
In international criminal law, a reverse sequence is proposed — intention of a
perpetrator is first confabulated, and only then, an attributed intention is said to
be shared by a multitude of agents.
When suggesting that crimes in question involve interpretation by a perpetrator
of the lawfulness of imputed acts, I do not propose any general concept of law,
or that an inhuman or immoral conception of a normative order can count as
a concept of law. Perpetrator’s explanation of his or her acts would only suit a
parochial, immoral, and depraved conception of reality supplied by a totalitarian
ideology and could hardly be acceptable as a conventional or even common-sense
account of law or legal system.
Nor do I suggest that perpetrators are committing an ordinary mistake of law. A
perpetrator may be wrong or right about actual legal provisions in force that apply
to his or her acts. Neither is such reinterpretation a sufficient condition for a crime
to constitute a crime against humanity. If that were a case, a disturbed murderer
with an individual, or private, conception of justice could qualify as having
committed a ‘core crime’ under international law. Rather the understanding of
the rectitude of acts that motivate a perpetrator would be part of a social practice.
Let me briefly refer to three examples that I will use to illustrate the case in
point. First one involves Oskar Groning, who was convicted in 2015 for being
an accessory to murder of more than 300,000 Jews at Auschwitz death camp.’
The ‘Auschwitz bookkeeper’ agreed with genocide, considering it a part of the
ongoing war and calling it “a tool of waging war. A war with advanced methods”.?
According to him, it did not really matter exactly how the killing takes places, as
an extermination is something that does happen in a war.*
Another example is that of a communist judge, who sentences an opponent
of the totalitarian regime to death penalty. As Supreme Court of Czech Republic
explained in a 1999 decision", conviction and death penalty of a knowingly
innocent person for opposing communist regime, even when imposed by a judge,
amounts to a murder. Czech Court arrives to this view by explaining that there
are “fundamental ethical requirements...applicable to the notions of justice and
fair judgement that are not subject to...temporal conditions”.
2 BBC News, ‘Auschwitz book-keeper’ Oskar Groening sentenced to four years, BBC News
(15 July 2015), www.bbc.com/news/world-europe-33533264.
3 Matthias Geyer, An SS Officer Remembers: The Bookkeeper from Auschwitz, Der Spiegel
(09 May 2005), www.spiegel.de/international/spiegel/an-ss-officer-remembers-the¬
bookkeeper-from-auschwitz-a-355188-2.html.
4 Laurence Rees, Auschwitz: A New History, New York, NY, Public Affairs, 2006, 139.
5 Supreme Court decision no. 7 Tz 179/99 of 7 December 1999, quoted from Polednova v.
Czech Republic, Admissibility Decision of 21/06/2011, European Court of Human Rights,
Application no. 2615/10, http://hudoc.echr.coe.int/eng?i=001-105985.
Id., page 16.
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