An Altogether Different Order: Defining the Elements of Crimes Against Humanity

Abstract:     
In the wake of the establishment of ad hoc tribunals for the former Yugoslavia and Rwanda in 1993 and 1994 and the July 1998 adoption of the Rome Statute of the International Criminal Court, much has been written on the history and the future of international criminal law. This Article attempts the more modest task of selecting one category of international criminal law - crimes against humanity - and examining the efforts to define the elements of the various offenses encompassed within the category's reach. This task is particularly relevant given the ongoing work of the Preparatory Commission for the Establishment of an International Criminal Court (PrepCom), which is scheduled to prepare a draft text of the elements of crimes against humanity by June 30, 2000. Additionally, this Article attempts to contribute to the jurisprudence of the international criminal tribunals currently in existence, with particular emphasis on the often-overlooked work of the International Criminal Tribunal for Rwanda.

Part II of this Article provides an overview of the three definitions of crimes against humanity elaborated in the statutes of the two ad hoc Tribunals and the Rome Statute. Part III then considers the general requirements that elevate an act to a crime against humanity. Part IV examines the elements of specific offenses, focusing on the three acts that have received particular judicial consideration: murder, extermination, and rape. The Article concludes by observing that the divergent approaches adopted in the three fora under consideration here - the two ad hoc Tribunals and the conferences on the permanent Court - expose distinct and sometimes inconsistent underlying policy goals.

Number of Pages in PDF File: 38

Accepted Paper Series