Putting Peacetime First: Crimes Against Humanity and the Civilian Population Requirement
74 Pages Posted: 9 Sep 2016 Last revised: 14 Sep 2020
Date Written: September 7, 2016
The International Criminal Court is different than the international criminal tribunals that came before it because it may often exercise its jurisdiction in peacetime as well as during armed conflict. Article 7 of the Rome Statute, on Crimes Against Humanity, reflects this development, but does not address how to resolve the interpretive difficulties that flow from it. This Article addresses, for the first time, the meaning of the term “civilian” in Article 7 and argues it should be understood from the perspective of peacetime, rather than as an outgrowth of international humanitarian law. It is the first comprehensive treatment of this issue, analyzing the case law of the ad hoc international criminal tribunals and the ICC, and proposing an interpretation of the “civilian population” requirement of Article 7 using the author’s seven canons of ICC treaty interpretation. The concludes by suggesting a three-part inquiry to establish whether or not an individual or population is “civilian” in character: first, the situation is evaluated depending on whether it involves crimes committed during or outside of armed conflict; second, if the crimes have been committed during an armed conflict, the question arises whether the conflict is international or non-international in nature in which case IHL may apply as a lex specialis to certain issues; finally, the specific situation of the victims must be considered.
Keywords: International Criminal Law, ICTY, International Criminal Court, Crimes against Humanity, Customary International Law, Treaty Interpretation, War Crimes, Armed Conflict, Civilian Population, Human Rights Law, Nuremberg, International Criminal Tribunals, Protected Persons, Principle of Distinction
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