Van Schaack on The Definition of Crimes Against Humanity

Beth Van Schaack, Santa Clara University School of Law, has posted an article, The Definition of Crimes Against Humanity: Resolving the Incoherence. It appeared previously in the Journal of Transnational Law & Policy. Here's the abstract:

This Article discusses the contours of the prohibition of crimes against humanity with reference to proceedings before the International Criminal Tribunal for the Former Yugoslavia (ICTY) and deliberations at the Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (ICC). Because the contemporary status of this offense under international law cannot be understood or appreciated without reference to its history, this Article traces the evolution of the concept of crimes against humanity with particular reference to the genesis and re-interpretation of the war nexus requirement. A recurrent theme in this narrative is the search for an element of the offense sufficient to distinguish crimes against humanity from “ordinary” municipal crimes (e.g., murder, assault or false imprisonment) and to justify the exercise of international jurisdiction over inhumane acts that would otherwise be the subject of domestic adjudication. As this Article reveals, the war nexus originally served this purpose for the Nuremberg architects, although the time-honored doctrine of humanitarian intervention could have provided adequate precedent for the international prosecution of crimes against humanity.

The ICTY devised an ingenuous solution to the problem of delimiting international jurisdiction and distinguishing crimes against humanity from “ordinary” crimes. The Trial Chamber did not require proof of a substantial link between the defendant's inhumane act and a state of war. Rather, the Chamber defined crimes against humanity in terms of the mens rea of the defendant and the existence of a widespread or systematic attack against a civilian population. However, at the same time, a Trial Chamber of the Tribunal added additional elements to the definition of crimes against humanity that further complicate the definition and the Prosecution's burden of proof. The Article argues that these elements should be eliminated on appeal. [N.B. The Appeals Chamber did overturn the Trial Chamber in this regard in the Tadić case.]

Most recently, members of the international community drafting the Statute for the permanent ICC drew upon the ICTY Statute and the work of the Tribunal in drafting a consensus definition of crimes against humanity that will govern prosecutions before the new court. Fortunately, these drafters stopped where the Trial Chamber should have. They defined crimes against humanity with reference only to the existence of a widespread or systematic attack against a civilian population and the mental state of the individual defendant. In so doing, they recognized that once the abuse of civilians surpasses a particular threshold, the prescriptions of international law are activated and individual perpetrators can be held internationally liable for their acts of murder, assault, rape, or unlawful detention.

The evolving definition of crimes against humanity since the Nuremberg era provides an example of the way in which the principles guiding the contemporary codification of international criminal law are dramatically shifting. Such norms were previously drafted with an eye toward fortifying, or at least defending, state sovereignty. Over time, however, these guiding principles have become more concerned with condemning injurious conduct and guaranteeing the accountability of individuals who subject others, including their compatriots, to inhumane acts.