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16 Melb. J. Int'l L. 1 (2015)

handle is hein.journals/meljil16 and id is 1 raw text is: 








              BANAL CRIMES AGAINST HUMANITY:
         THE CASE OF ASYLUM SEEKERS IN GREECE

                    IOANNIS KALPOUZOS * AND ITAMAR MANNt

In recent years, Greece has inflicted widespread inhuman and degrading treatment on asylum
seekers. The European Union border agency Frontex has knowingly exposed asylum seekers to
such treatment in Greek detention centres. This article argues that acts of Greek and Frontex
agents may lead to individual responsibility for crimes against humanity under Rome Statute of
the International Criminal Court arts 7(1)(e), (h) and (k). Investigation of such acts remains
unlikely, not due to the relevant doctrine, but due to a popular imagination of crimes against
humanity as radically evil acts. But international criminal law should not only aim to punish
radically evil acts. Equally important is seemingly banal violence that appears as an inevitable
by-product of global social and economic structures. Such is the violence currently wielded
against asylum seekers. Confronting the latter category requires the International Criminal
Court Prosecutor to realise the political nature of his or her judgement.

                                    CONTENTS

I    In tro d u ctio n  ............................................................................................................... 1
II   The Inhuman and Degrading Treatment of Asylum Seekers in Greece ............... 5
III  Crim es against H um anity ......................................................................................  9
       A    A Widespread and Systematic Attack Directed against Asylum Seekers.. 10
       B    Through Unlawful Imprisonment, Persecution
            and Other Inhum ane A cts .......................................................................  14
               1   Im prisonm ent .............................................................................  14
               2   Persecution ..................................................................................  16
               3   Other Inhum ane A cts .................................................................  18
               4   Some Observations on Mens Rea ............................................... 20
       C    W ith the Complicity of Frontex ..............................................................  21
IV   G rav ity  .................................................................................................................... 2 4
V    C o n clu sio n  .............................................................................................................. 2 8


                               I     INTRODUCTION

      '[I]t is in the nature of a wrong not to be established by consensus'.1
   The International Criminal Court ('ICC') prosecutes spectacular examples of
'radical evil'.2 In such prosecutions political violence is paradigmatically

  • LLB (Athens), LLM, PhD (Nottingham); Lecturer in Law, City Law School, City
    University London.
  t LLB (Tel Aviv) LLM, JSD (Yale), National Security Law Fellow, Georgetown Law Center.
    The authors would like to thank Robert Cryer, Anna Dolidze, Kate Grady, Kevin Jon Heller,
    Jaya Ramji-Nogales, Isobel Roele, Shira Shmu'ely, the participants of the summer faculty
    workshop at Georgetown Law Center (May 2014), the participants of the Critical
    Approaches to International Criminal Law workshop at the Harvard Institute for Global Law
    and Policy (June 2014) and the two anonymous reviewers for constructive comments and
    criticism. Simon Cox, Bill Frelick, Giota Massouridou, Andreas Schtiller and Rupert
    Skillbeck were incredibly helpful in brainstorming sessions during the early research that
    led to this article. Usual caveats apply.
  1 Jean Franqois Lyotard, The Differend: Phrases in Dispute (University of Minnesota Press,
    1988) 56.

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