Crimes Against Humanity: A Better Policy on 'Policy'
Carsten Stahn, ed, The Law and Practice of the International Criminal Court (Oxford University Press), 2014
29 Pages Posted: 7 Dec 2013 Last revised: 23 Feb 2018
Date Written: December 5, 2013
Most of the recent scholarly attention on crimes against humanity has gone to the controversy over whether organizations must be ‘state-like’. But less noticed are other trends in early ICC jurisprudence which, if uncorrected, will impair the viability of the ICC as a forum for crimes against humanity cases. These trends include equating “policy” with “systematic”, requesting proof of formal adoption of policy, and incorporating concepts of ulterior purpose. As a result, some cases have already been faltering despite evidence from which other courts would easily infer policy.
I show the modest purpose of the policy element and how it fits in a theory of crimes against humanity. I show that under national and international authorities, a policy can be inferred from the improbability that the crimes were coincidental individual initiatives. I show that this approach avoids creating an internal contradiction within Article 7. These arguments should resonate with you regardless of your position on the customary law status of the policy element. The ICC must take better cognizance of the purpose of the policy element, national and international authorities, and the structure of Article 7.
Keywords: crime against humanity, policy element, Article 7
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