CONCURRING OPINION OF JUDGE LOUCAIDES

I agree with the conclusions set out in the judgment but I would like to explain my own approach regarding the question whether the conduct of the applicants constituted an offence under international law at the material time for the purposes of Article 7 § 1 of the Convention.

The majority found that the applicants were convicted on account of acts which constituted at the material time offences defined with sufficient accessibility and foreseeability by the international rules on human rights protection. In that respect, the majority relied on international law rules on the protection of the right to life and the freedom of movement. As regards the applicants’ individual criminal responsibility for the breaches of those rules, the majority relied on Article 95 of the GDR’s Criminal Code which provided that individual criminal responsibility was to be borne by those who violated the GDR’s international obligations in terms of human rights and fundamental freedoms. In other words, the majority, in deciding whether the conduct of the applicants constituted “a criminal offence under international law”, relied on obligations under international law binding the State of the GDR and, as regards the individual criminal responsibility of the applicants, the majority relied on the domestic law of the GDR. I do not agree with that approach. I believe that when Article 7 speaks about a “criminal offence under international law”, it clearly means an offence which is made criminal directly by international law both as regards the prohibited conduct as well as the individual criminal responsibility for such conduct.

Therefore, one has to see whether, in terms of the rules of international law, as distinct from those of domestic law, the conduct of the applicants did constitute a criminal offence.

I believe that the answer should be in the affirmative. More specifically, I think that the conduct for which the applicants were convicted (as set out in the judgment) amounted to the international law crime known as a “crime against humanity”, which, at the material time, had already been established as part of the general principles of customary international law.

In that connection, I do not find it necessary to go into the whole history of the relevant international law developments regarding the status and concept of crimes against humanity. It is, I believe, sufficient to refer to the following.

The Charter of the International Military Tribunal For the Prosecution of the Major War Criminals of the European Axis (IMT) was the first instrument to define “crimes against humanity” in positive international law.

The Charter included in the definition of “crimes against humanity” “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, this crime was linked to the conduct of war. Furthermore, it was not at the time clearly established that such crime was part of customary international law, especially when it was not linked to acts of war. It was however gradually so established.

Resolution 95 (I) of the United Nations General Assembly of 11 December 1946 expressly affirmed “the principles of international law recognised by the Charter of the Nuremberg Tribunal and the judgment of the Tribunal” and the formulation of those principles was entrusted to the International Law Commission, “in the context of a general codification of offences against the peace and security of mankind, or of an International Criminal Code”. This resolution was evidence of the prevailing views of States and of State practice as regards the principles in question and, for that matter, gave solid legal support to the claim that these principles were part of customary international law [ see, inter alia , Daillier and Pellet, Droit international public , 6th edition, p. 677].

The connection of crimes against humanity with 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 DOC 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.]

“The 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 the position has also been maintained and adopted by judgments of international ad hoc criminal tribunals that “since 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.]. In any event what is important for the purposes of our case is the fact that, at the time when the offences attributed to the applicants were committed, “crimes against humanity” were unquestionably established as offences under customary international law.

As regards the elements of crimes against humanity, one may take the recent Rome Statute of the International Criminal Court as declaratory of the international law definition of this crime and as necessary guidance for its application in our case. 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) Murder;

...

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 organisational policy to commit such attack;

...”

But even if one is only guided by the concept of “crimes against humanity” emerging from the Charter of the International Military Tribunal of Nuremberg – the principles of which were affirmed by the United Nations resolutions mentioned above – and the present case is examined only by reference to the minimum requirements of such a concept, as far as it relates to the facts of the present case, there is no difficulty in concluding that the activities for which the applicants were found guilty did undoubtedly qualify as “crimes against humanity”, of the most serious nature. 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).

For the above reasons, I find that the actions for which the applicants were convicted did constitute at the material time not only criminal offences under the domestic German law but also under international law.