Contextual Elements. Crimes against humanity consist of underlying acts listed in article 7 of the Rome Statute committed as part of a widespread or systematic attack against a civilian population pursuant to or in furtherance of a state or organizational policy.307 No link to armed conflict is required to prove a crime against humanity, meaning that this category of offence could potentially be 304 See Xxxxx (2002), p.500. 305 See Rome Statute, article 6. 306 See The Hostages Trial (Xxxxxxx Xxxx and Others), 8 Law Reports of Trials of War Criminals 66, 66-69 (1948) (“Hostages Trial”). Note that in the context of article 8(2)(b)(iv), these circumstances would potentially preclude responsibility prior to getting to the issue of duress, as the required foresight of excessiveness would not be met. 307 Rome Statute, article 7. The underlying acts are: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health. used to repress serious environmental harm committed during war or peace.308 Prosecuting environmental harm under this framework would first and foremost require the demonstration of an attack on a civilian population. The environmental harm could either constitute the attack in and of itself,309 or occur as part of an attack committed through other means, such as the typical anthropocentric violence seen in previous crimes against humanity cases under international law.310 The anthropocentric focus of crimes against humanity is evident from the reference to humanity in the name itself. For present purposes, it is important that the reference to environmental harm in order to show an attack on a ci...
Contextual Elements. In keeping with the name, war crimes are offences committed during times of armed conflict. These offences generally focus on acts targeting or harming persons and acts against property, and largely reflect the prohibitions set out in the Geneva Conventions of 1949, the Additional Protocols of 1977, and The Hague Regulations of 1899 and 1907. Under the Rome Statute of 351 See Rome Statute, article 7(1)(c) and 7(2)(c). 352 See Rome Statute, article 7(1)(e), 7(1)(f), and 7(1)(g). 353 See, e.g., Xxxxxx Xxxxxx Warrant and Second Bashir Arrest Warrant; Prosecutor v. Xxxx Xxxxxx Xxxxx Xx Xxxxxx, Case No.ICC-02/05-01-09, Case Information Sheet, 6 April 2017, ICC-PIDS-CIS-SUD-02-005/17_Eng (noting that Xx-Xxxxxx is charged with Five counts of crimes against humanity: murder (article 7(1)(a)); extermination (article 7(1)(b)); forcible transfer (article 7(1)(d)); torture (article 7(1)(f)); and rape (article 7(1)(g)); Two counts of war crimes: intentionally directing attacks against a civilian population as such or against individual civilians not taking part in hostilities (article 8(2)(e)(i)); and pillaging (article 8(2)(e)(v)); and Three counts of genocide: genocide by killing (article 6-a), genocide by causing serious bodily or mental harm (article 6-b) and genocide by deliberately inflicting on each target group conditions of life calculated to bring about the group’s physical destruction (article 6-c)). the ICC, war crimes are divided into those committed during international armed conflicts and those committed during non-international armed conflicts.354
Contextual Elements a. Widespread or Systematic Modern tribunals have also ignored the NMTs’ insistence that an attack on a civilian population must be both widespread and systematic to qualify as a crime against humanity. Indeed, in Kordić and Čerkez, the ICTY’s Trial Chamber III summarily rejected a defense claim that, in light of the Justice case, customary international law required a conjunctive test. According to the Chamber, it was “generally accepted that the requirement that the occurrence of crimes be widespread or systematic is a disjunctive one.”82 That claim, however, reflects an unconvincing description of the state of customary international law at the time the ICTY was created. The Chamber justified its position by citing to the trial judgments in Xxxxx and Xxxxxxx, but Xxxxxxx cited no pre- 1993 legal sources in defense of the disjunctive test,83 and Xxxxx cited only one: the IMT’s comment in the judgment that the persecution of the Jews before the war was “a record of consistent and systematic inhumanity on the greatest scale.”84 That statement, however, was not only dicta – as the Trial Chamber itself recognized by quoting the ILC to that effect85 – it is actually phrased conjunctively. In light of the ICTY’s failure to cite a single pre-1993 source of law that actually supports its “widespread or systematic” requirement, it is impossible to defend the Tribunal’s decision to ignore the NMT judgments. After all, the Xxxxxxxx have consistently relied on the judgments in other contexts; the NMTs were the first tribunals to develop the contextual elements of crimes against humanity in a systematic fashion; and in contrast to the split over the nexus requirement, the tribunals uniformly agreed that the test was conjunctive. The Tribunal’s adoption of a disjunctive requirement thus seems to have been driven not by methodological concerns, but by the desire to make crimes against humanity as easy as possible to prosecute – a prototypical example of what Xxxxxx Xxxxxxxx has pejoratively described as the ICTY’s “victim-focused teleological reasoning.”86 The ICC has also adopted the “widespread or systematic” requirement. A small number of delegations, including France and the United Kingdom, favored a conjunctive test at the Rome Conference, but did not object to a disjunctive test once the Conference agreed to adopt a definition of “attack” that included a policy requirement.87 The inclusion of the policy requirement in Article 7(2)(a) means that, as discussed belo...
