Using Custom to Reconceptualise Crimes Against Humanity

JUDICIAL CREATIVITY AT THE INTERNATIONAL CRIMINAL TRIBUNALS, S. Darcy, J. Powderly eds., Oxford University Press, pp. 80-105, 2010

23 Pages Posted: 23 Jan 2012

Date Written: January, 22 2012


The concept of crimes against humanity as it has emerged over the years is succinctly set out in Section II of this essay, following which the case law of the ad hoc tribunals is scrutinized with regard to three chapeau elements that have at some point been deemed critical for the conceptualization of the crime. The analysis focuses specifically on the evidence adduced to determine the existence of a given customary norm relating to these three elements. The three chapeau requirements are: the armed conflict requirement (Section III); the policy requirement (Section IV); and the requirement that the act be part of an attack against a civilian population (Section V). The impact of the ad hoc tribunals’ statutes and jurisprudence relating to these elements on the definition adopted by the Rome Statute has been varied. The ICTR statutory definition and the ICTY case law on the first element, the armed conflict requirement, or rather the absence of such a requirement, have been reaffirmed in the Rome Statute. In contrast, the Statute apparently deviates from the tribunals’ case law on the second chosen element, the policy requirement. Whereas this element is not required pursuant to the tribunals’ approach, the Rome Statute ostensibly reintroduces it. In relation to the third element, the attack on a civilian population, and in particular the interpretation of the word ‘civilian’, it is not yet clear whether the ICC will adopt the same approach that the ad hoc tribunals have taken.

Although the tribunals articulated that all their findings were grounded in customary international law, it remains the case that whereas some findings have been reaffirmed in the Rome Statute, others have not. It may well be that the Rome Statute deviates from customary international law, or alternatively, that the tribunals were too expansive in their articulations that certain findings were merely in line with customary international law. In this overview, the assertions of the tribunals in relation to customary international law are examined and in particular some insights are provided into the nature and contents of the evidence relating to custom that underlies some of their crucial rulings on crimes against humanity. The ad hoc tribunals’ identification of customary international law and their overall contribution to reshaping crimes against humanity as an international crime is appraised finally in Section VI.

Keywords: International Law, international criminal law, crimes against humanity, ICTR, ICTY, armed conflict, judicial creativity, international criminal tribunal, International Criminal Court, customary law

Suggested Citation

van den Herik, Larissa, Using Custom to Reconceptualise Crimes Against Humanity (January, 22 2012). JUDICIAL CREATIVITY AT THE INTERNATIONAL CRIMINAL TRIBUNALS, S. Darcy, J. Powderly eds., Oxford University Press, pp. 80-105, 2010, Available at SSRN:

Larissa Van den Herik (Contact Author)

Leiden University ( email )

Postbus 9500
Leiden, Zuid Holland 2300 RA

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