The Draft Convention on Crimes Against Humanity: What to Do with the Definition?

Abstract

A centrally important and influential feature of the Draft Convention on Crimes Against Humanity will, obviously, be its definition of the crime. It is most likely that the Draft Convention will use the definition from Article 7 of the Rome Statute. There are however significant legitimate concerns about aspects of Article 7, most particularly the “policy element”. This chapter proposes that commentary to the Draft Convention can mitigate the concerns by highlighting key points from pertinent authorities. The proposed commentary draws on national jurisprudence and other authorities, as well as the logical structure of Article 7, showing that the policy element is simply an in limine filter screening out situations of unconnected ordinary crimes. The current debate has neglected valuable national judicial contributions that help harmonize the seemingly fractured international sources, and they do so in a way that promotes a workable definition.

Keywords: crimes against humanity, policy element, fragmentation, widespread, systematic

JEL Classification: K14, K33