Crimes Against Humanity at the Extraordinary Chambers in the Courts of Cambodia: Is a Connection with Armed Conflict Required?

Abstract:     
This article traces the development of crimes against humanity from the late 19th century up to the creation of the Rome Statute in 1998. In particular, it tries to determine when the jurisdictional requirement of a nexus with an armed conflict disappeared from the customary international law definition of crimes against humanity. It does this through a close look at the practice of states with respect to crimes against humanity, particularly in the period between the International Military Tribunal at Nuremberg in 1946 and the establishment of the International Criminal Tribunal for the former Yugoslavia in 1993. Ultimately, it concludes that a general practice among states coalesced around a definition of crimes against humanity that did not require a nexus with an armed conflict sometime between 1968 and 1984. Unfortunately, the paucity of state practice with regards to crimes against humanity during the Cold War makes it impossible to pin down the date of the change more exactly.

Number of Pages in PDF File: 76

Keywords: custom, customary international law, opinio juris, practice, crimes against humanity, Martens Clause, Cambodia, armed conflict, ECCC, Khmer Rouge

JEL Classification: K14, K33

Accepted Paper Series