DISSENTING OPINION OF JUDGE LOUCAIDES

I am unable to agree with the conclusions of the majority in this case.

I accept the approach of the majority in respect of the concept of crimes against humanity. I consider it useful, however, to add the following thoughts regarding this issue. In its definition of “crimes against humanity” the Charter of the Nuremberg Tribunal included “murder ... committed against civilian populations before or during the war ...”. The Nuremberg Trials applied the Charter and attributed criminal responsibility to individuals for “crimes against humanity”. However, those crimes were linked to the conduct of war. At that time , it was not clearly established that such crimes were part of customary international law, especially where they were not linked to acts of war. Gradually, however, this was indeed established. Resolution 95 (I) of the United Nations General Assembly of 11 December 1946 expressly affirmed “the principles of international law recogni s ed by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal”. This resolution was evidence of the prevailing views of States and of S tate practice with regard to the principles in question and, additionally, provided solid legal support to the claim that these principles were part of customary international law (see, inter alia , Daillier and Pellet, Droit I nternational P ublic , 6th ed n., p. 677). A connection between crimes against humanity and war activities was not considered a requirement for the establishment of such crimes (see “Question of the punishment of war criminals and of persons who have committed crimes against humanity: Note by the Secretary-General”, UN GAOR, 22nd session, Annex Agenda Item 60, pp. 6-7, UN D oc. A/6813 , 1967; see also International Criminal Tribunal for the former Yugoslavia , Tadić case IT ‑ 94-1, § 623). As rightly observed by Lord Millett in the Pinochet (3) judgment of the House of Lords ([1999] 2 Weekly Law Reports 909 et seq . ) :

“[t]he Nuremberg Tribunal ruled that crimes against humanity fell within its jurisdiction only if they were committed in the execution of or in connection with war crimes or crimes against peace. But this appears to have been a jurisdictional restriction based on the language of the Charter. There is no reason to suppose that it was considered to be a substantive requirement of international law. The need to establish such a connection was natural in the immediate aftermath of the Second World War. As memory of the war receded, it was abandoned.”

The view that the Nuremberg principles were customary international law became indisputable after Resolution 3074 (XXVIII) of the United Nations General Assembly of 3 December 1973, which proclaimed the need for international cooperation in the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity. One may add here that it has also been maintained and adopted by judgments of international ad hoc criminal tribunals that “[s]ince the Nuremberg Charter, the customary status of the prohibition against crimes against humanity and the attribution of individual criminal responsibility for their commission have not been seriously questioned” ( Tadić case, op. cit.).

As regards the elements of crimes against humanity, one may take the recent Rome Statute of the International Criminal Court as declaratory of the definition in international law of this crime. In Article 7 of the Statute, we find the following:

“1. ... ‘ 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) m urder;

...

2. For the purpose of paragraph 1:

(a) ’ Attack directed against any civilian population ’ means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack; ...”

Yet even if one is guided only by the concept of “crimes against humanity” that emerges from the Charter of the International Military Tribunal of Nuremberg – the principles of which were affirmed by the United Nations R esolutions mentioned above – and even if the present case is examined only by reference to the minimum requirements of such a concept, there is no difficulty in concluding that the activity for which the applicant was convicted did undoubtedly qualify as a “crime against humanity”. The minimum elements of the offence in question appear to be the following:

(a) murder;

(b) committed against a civilian population; and

(c) systematic or organised conduct in furtherance of a certain policy.

The last element is implied from the combination of elements (a) and (b).

The majority found that the domestic courts had focused their attention in the relevant criminal case on the conduct of the applicant vis-à-vis Tamás Kaszás and they disagreed with those courts that the individual in question could be considered as having “laid down his arms , thereby taking no further part in the fighting”. According to the majority:

“ ... there is no element in the findings of fact established by the domestic courts which could lead to the conclusion that Tamás Kaszás expressed in such a manner any intention to surrender. Instead, he embarked on an animated quarrel with the applicant, at the end of which he drew his gun with unknown intentions. It was precisely in the course of this act that he was shot. In these circumstances the Court is not convinced that in the light of the commonly accepted international law standards applicable at the time, Tamás Kaszás could be said to have laid down his arms within the meaning of common Article 3.” (paragraph 91 of the judgment)

On the other hand, in the relevant findings of fact of the domestic courts on this question we find the following statements:

“The officers were continuously pointing their sub - machine guns at the civilians. István Balázs informed them that they had no weapons. An unknown policeman standing behind István Balázs said at this point that Tamás Kaszás had a pistol on him. István Balázs asked Tamás Kaszás to hand over the weapon if he had one. ... On the other hand, the defendant should have realised that, because of their weapons, the officers ’ force was superior to that of the civilians in the inner yard, and that the conflict at hand could have been resolved without the use of firearms against people.” (Military Bench of the Budapest Regional Court , paragraph 42 of the judgment)

The judgment of the Supreme Court subsequently found:

“However, the findings of fact in the judgment also state that ‘ István Balázs asked Tamás Kaszás to hand over the weapon if he had one. At this point the defendant was facing Tamás Kaszás and there was a distance of only a few metres between them ’ ... From this, it can rightly be deduced that the applicant heard this call. Because it was immediately thereafter that a quarrel broke out between the applicant and the victim and that the victim drew his gun, the correct conclusion concerning what was on the applicant ’ s mind is that he knew that the victim intended to hand over the gun, rather than to attack with it. ... ” (paragraph 44 of the judgment)

I believe that the findings of the domestic courts to the effect that Tamás Kaszás ’ s behaviour in respect of his gun amounted to the gesture of a man attempting to hand over the gun, rather than to attack with it, were not unreasonable, bearing in mind in this respect that Tamás Kaszás , along with his companions , was facing officers who were continuously pointing their sub - machine guns at them and that the officers ’ force was superior to that of the civilians. In the circumstances , any attempt on the part of Tamás Kaszás to use his gun against the applicant would have amounted to suicide. I do not therefore see any reason to overrule the relevant findings of the domestic courts.

In any event, I disagree with the majority ’ s finding that the applicant ’ s conviction was essentially focused on the reaction of the applicant to Tamás Kaszás. I accept the Government ’ s position that “the applicant ’ s conviction was primarily based on his having shot, and ordered others to shoot, at a group of civilians”. The record of the relevant proceedings clearly supports this view. The applicant was charged “with having commanded a military squad in an assignment to regain control of the Police Department building, and with having shot, and ordered his men to shoot at, civilians, causing the deaths of, and injuries to, several persons” (see paragraph 21 of the judgment).

The domestic courts also found, on the basis of the facts, that the applicant was guilty “of multiple homicide constituting a crime against humanity which he had committed as a perpetrator in respect of the killings inside the building and as an inciter in respect of the killing outside” ( see paragraph 38 of the judgment).

Therefore, even if we disregard the incident between the applicant and Tamás Kaszás, I do not see how we can disregard the courts ’ findings that the case against the applicant and his conviction also concerned other civilians, who did not draw guns and were not in any way armed. In this respect it is very important to underline the fact that as soon as Tamás Kaszás drew his handgun, “the applicant responded by resolutely ordering his men to fire. Simultaneously, he fired his sub - machine gun at Tamás Kaszás, who was shot in his chest and abdomen and died immediately. One of the shots fired on the applicant ’ s orders hit another person and three hit yet another person. A further insurgent was shot and subsequently died of his injuries. Two individuals ran out onto the street, where th e other platoon of the applicant ’ s men started to shoot at them. One of them suffered a non-lethal injury to his head; the other person was hit by numerous shots and died at the scene ” ( emphasis added ) (paragraph 15 of the judgment; see also paragraph 42).

To complete the picture, I should also add that, according to the evidence, the applicant and the members of his group “were armed with PPS-type 7.62 mm sub - machine guns and TT pistols” (judgment of the Military Bench of the Budapest Regional Court ). These random shootings with sub - machine guns, directed against unarmed civilians other than Tamás Kaszás, cannot in my view be regarded as anything other than a crime against humanity.

I must add that I also find that there was sufficient evidence to the effect that the shooting in question formed part of a widespread and systematic attack on the civilian population. In this respect I take into account the judgment of the Supreme Cour t which found as follows:

“ ... it is common knowledge that, from 23 October 1956 onwards, the central power of the dictatorship made use of its armed forces against the unarmed population engaged in peaceful demonstrations and against armed revolutionary groups whose organisation was in progress. During this time, the armed forces employed significant military equipment, such as tanks and aircrafts, and their activities against the population opposed to the regime spread over the whole country. In practical terms, they waged war against the overwhelming majority of the population. The same is confirmed by the orders issued in this period by the dictatorship ’ s Ministers of Defence.

Having regard to all this, it can be established that an armed conflict of a non-international character was in progress in the country from 23 October 1956 onwards, for such time as the armed forces of the dictatorship were acting against the population, and until the country was occupied by the army of the Soviet Union on 4 November, from which time the conflict became international . ” (paragraph 34 of the judgment)

In fact, the armed oppression and attack on the civilian population which resisted the dictatorship in Hungary at that time was internationally known.

I cannot agree with the finding of the majority that the Supreme Court “ did not address the question whether the particular act committed by the applicant was to be regarded as forming part of this State policy, such as to bring it within the sphere of crimes against humanity, as this notion was to be understood in 1956” ( see paragraph 84 of the judgment).

The Supreme Court ’ s statement was made in relation to the question that was before it, namely the incident for which the applicant was convicted. Where a situation such as that described by the Supreme Court prevailed, it was to be expected that several separate incidents such as that under consideration would inevitably take place as part of the armed forces ’ organised activities against the population. One should not lose sight of the fact that the applicant, in confronting and shooting Tamás Kaszás and the group near him, was acting as an agent of the dictatorial regime which was attempting to suppress by force those civilians, such as the victims of the applicant ’ s attack, who were opposing that regime. In short, the use of force by the applicant was on behalf and for the purposes of that regime. In the circumstances , I do not see how we can disassociate the incident for which the applicant was found guilty from the general systematic attack by the military and the relevant S tate policy against the civilian population.

For all the above reasons I find that the applicant ’ s conviction for a crime against humanity under international law is not in any way inconsistent with the provisions of Article 7 of the Convention and , therefore , I find that there has been no violation of that Article.

[1] 1. Report of the Secretary-General of the United Nations pursuant to paragraph 2 of Security Council Resolution 808 (1993), presented 3 May 1993 (S/25704).

[2] 1. Hatályos anyagi büntetőjogi szabályok hivatalos összeállítása (Official collection of rules of substantive criminal law in force in 1952).

[3] 1. This Article appears, with identical wording, as Articles 3 of Convention (I) for the Amelioration of the Condition of the Wounded and Si ck in Armed Forces in the Field; Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea ; and Convention (III) relative to the Treatment of Prisoners of War ; all adopted in Geneva on 12 August 1949.

[4] 1. See, for example, the conflicts in Rhodesia/Zimbabwe in 1979, Bosnia and Herzegovina in 1992, Rwanda in 1994 or Afghanistan in 2001.

[5] 2. Jean-Marie Henckaerts and Louise Doswald-Beck (ed s .), Customary International Humanitarian Law , ICRC , Cambridge , 2005, v ol. I, pp. 164-70 .

[6] 1. According to one approach , persecution is an essential element only for the sub-class “ acts of perse cution” ( ICTY , Prosecutor v. Kupres ki c et al. , IT-95-16, ju dg ment of 14 January 2000, §§ 616-27). From another standpoint, crimes against humanity may be committed even in peacetime ( ICTY , Prosecutor v. Tadic , IT-94-1, d ecision of 2 October 1995 on the defence motion for interlocutory appeal on jurisdiction , § 141) , and some writers maintain that as far back as the early 1950s, customary international law envisaged the notion of crimes against humanity and did not require a link with an internal or international armed conflict (A. Cassese , International Criminal Law , Oxford University Press, Oxford, 2nd ed n ., 2008, pp. 101-09).