The Road from Rome: The Developing Law of Crimes Against Humanity

I. Introduction

At the dawn of the new millennium, the international community is proclaiming a renewed and invigorated commitment to international criminal justice. More than ninety countries have signed the Rome Statute of the International Criminal Court (ICC), and five states have already ratified the treaty. ² Two ad hoc international tribunals sit in judgment of international crimes committed in Rwanda and the former Yugoslavia. Efforts to pursue justice for international crimes in domestic courts are also gaining momentum. A number of countries have requested the extradition from Britain of General Augusto Pinochet for crimes of international concern committed in Chile. These are heady times for the international criminal lawyer--important challenges abound in this increasingly significant area of international law.

This article tackles one such challenge--the definition of the category of international crimes known as "crimes against humanity." The definition of crimes against humanity is notoriously elusive. Scholars, judges, and diplomats addressing this issue since 1945 have reached various conclusions regarding its required elements. ³ This article, with the benefit of the recent ICC deliberations and the case law of the two ad hoc tribunals, analyzes the current state of the definition under international law. In particular, the latter part of the article analyzes the mental element, an aspect of the definition that has been virtually ignored in the literature and jurisprudence.

This clarification of the elements of crimes against humanity is particularly timely on the eve of the establishment of the ICC for several reasons. First, in order for the ICC or other national or international judicial bodies to exercise jurisdiction over crimes against humanity, it is essential that they accurately and consistently identify situations in which these crimes have been committed. Second, for judicial bodies to attribute individual criminal responsibility for such crimes without violating the principle of legality, they must have clear guidance. Third, in order for states to justify humanitarian intervention based on the commission of crimes against humanity, the scope of these crimes must be clearly defined. Finally, projects such as this one can play a meaningful role in the ICC Preparatory Commission's ongoing efforts to elaborate "Elements of Crimes." ⁴ This article, therefore, seeks to address an exigent need in international criminal law by presenting a legal, historical, and normative analysis of the elements of crimes against humanity.

The analysis is composed of four main parts. First, a short discussion of the philosophical underpinnings of international criminal law sets the stage for the normative analysis of the definition of crimes against humanity. Second is a discussion of the historical evolution of the definition from the Nuremberg Charter and Judgment to the ICC Statute. This section establishes the historical framework for the rest of the article. The third section evaluates the elements of crimes against humanity that have been included or proposed in various international documents, cases, and scholarly works. These elements include a nexus with armed conflict, a targeted civilian population, discriminatory intent, state action or policy, and a requirement of widespread or systematic action. The analysis demonstrates that the only chapeau elements ⁵ currently required under international law are (1) the existence of a widespread or systematic attack (2) against a civilian population. The final section of the analysis focuses on a facet of international criminal law that has been largely neglected by scholars, in particular with respect to crimes against humanity: the mental element. Individual criminal responsibility for crimes against humanity requires some nexus between the individual offense committed and the chapeau elements of these crimes. This article demonstrates that the required nexus is supplied by the individual's knowledge that a widespread or systematic attack is being committed and that there is some relationship between his or her act and that attack.

The chapeau of crimes against humanity serves two primary functions. First, it establishes a jurisdictional regime under which crimes of a particular gravity--crimes...