The Definition of Crimes Against Humanity in the Rome Statute of the International Criminal Court: Endorsing and Furthering or Merely Having Knowledge of the State or Organizational Policy?

Abstract

In recognition of the consensus that the category of crimes against humanity is 'among the most serious crimes of concern to the international community as a whole', the international community has or had restricted the reach of this crime to the most serious crimes committed with the specific intent to endorse and further the policy of a State or some organization, until arguably at least 1996 in the view of the ILC when it so recognized in its Draft Code of Crimes Against the Peace and Security of Mankind, or until the adoption of the Rome Statute of the International Criminal Court (Rome Statute) in the view of some scholars who seem to believe that the Rome Statute has relaxed the mens rea requirement, at least to some extent, or even now in my own view which holds that the Rome Statute has effected no such relaxation. In this chapter I shall attempt to outline my arguments on this aspect of the definition of crimes against humanity in the Rome Statute, without discussing other aspects in detail.

In so doing, I shall primarily rely upon a fair interpretation of the language of Article 7 and other relevant provisions in the Rome Statute, without dwelling upon the status of the concept outside the Rome Statute, such as under customary international law. I do this for several reasons. First, Article 21 of the Rome Statute directs the Court to give priority to the Statute, and treating fairly the text and context of a treaty is the main part of the task of treaty interpretation in general.

Secondly, the drafting documents relating to the Rome Statute are not easy to work with, the unhappy result of a monumental drafting undertaking of the international community. Thirdly, definitions of crimes are supposed to be accessible to the ordinary person who should not be required to be able to carry a law library with him, not to mention to consult the voluminous compilations of the various proposals lumped together without any collectively and officially endorsed explanations putting these proposals into a coherent whole.

I will also discuss the relevant provisions in the Elements of Crimes adopted, under Article 9 of the Rome Statute, to assist the interpretation and application of the definitions of crimes. But the commands of the Rome Statute cannot be overridden by provisions in the Elements of the Crimes which, as mandated by Article 9 of the Statute, 'shall be consistent with the Rome Statute'.

Finally and more importantly, Article 22(2) of the Rome Statute directs that 'The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favor of the person being investigated, prosecuted or convicted.' In my view, this provision prevents any creative, tangentially arguable interpretations inspired by policy considerations or a cavalier assessment of the status of the crime under customary international law.

After an analysis, I conclude that the language of the definition of crimes against humanity in Article 7 of the Rome Statute, read as a whole and together with the command in Article 22(2) to resolve ambiguity in favor of the defendant, supports the argument that for a defendant to be convicted of a crime against humanity, he must have endorsed and intended to further the policy of the State or organizational policy to conduct an attack against a civilian population. The phrases in the definition, “committed as part of … attack” (which delineates the voluntary, affirmative actions of the defendant) and “pursuant to or in furtherance of a … policy” (which delineates a necessary component of the attack) can be given effect only by adopting this interpretation. These phrases together show that the separate constituent acts of a crime against humanity only become constituted as a crime against humanity when the defendant has affirmatively intended his acts to form, and committed them as, part of the attack, therefore endorsing and furthering the built-in policy element. The phrase “with knowledge of the attack” was included, according to the drafters, out of an abundance of caution, and, in any event, may be given effect in some situations so as to ensure that the defendant’s constituent acts did in fact form part of such an attack. Accordingly, the specific intent standard should apply to the policy element in the definition of the crimes against humanity. This interpretation fits well with the current developments in international human rights law and international political and philosophical thought that have put individual autonomy on the pedestal and used it as the basis for individual responsibility.

Keywords: crime against humanity; specific intent school; knowledge school