Crimes Against Humanity: Historical Evolution and Contemporary Application (review)

I. Introduction

Crimes Against Humanity: Historical Evolution and Contemporary Application (hereinafter "Crimes Against Humanity") represents the latest valuable tome on the topic of crimes against humanity (hereinafter "CAH") from a giant in the field of international criminal law (hereinafter "ICL") and one of the "leading experts on crimes against humanity."¹ Professor M. Cherif Bassiouni not only is a leading ICL scholar; he also has vast experience in working with and shaping the law of CAH. To name but a few of his accomplishments, after drafting the CAH provision of the International Criminal Tribunal for the Former Yugoslavia (ICTY), Bassiouni tackled that of the International Criminal Court (ICC), as the Vice Chairman of the Ad Hoc Committee for the Establishment of the International Criminal Court and later the Preparatory Committee for the Establishment of an International Criminal Court and finally as the Chairman of the Drafting Committee of the United Nations Diplomatic Conference on the ICC.² Most recently, Bassiouni served as Chair of the Bahrain Independent Commission of Inquiry established pursuant to Royal Order of the King of Bahrain and Chair, as well as member of the United Nations Independent International Commission of Inquiry for Libya.

Crimes Against Humanity offers a comprehensive account of the law and history of CAH. It discusses at length the evolution of the definition and elements of CAH. The book also takes a broader look at the institutions and mechanisms available to address mass atrocity. Crimes Against Humanity distinguishes itself from other works on CAH and, indeed, Bassiouni's own previous book on CAH³ with its discussion of the "jurisprudential developments of CAH, from the post-World War II proceedings to the ICTY, ICTR (the International Criminal Tribunal for Rwanda), the ICC, and the mixed-model tribunals," as well as its extensive survey of national legislation and national prosecution of CAH.⁴

The book, just shy of 850 pages, with tables and indices, is not a quick read. It is replete with lengthy quotes from scholars, prosecutors, judges, and other key players, from the International Military Tribunal at Nuremberg (IMT), the ICTY, and other institutions where the law of CAH has developed. Rather than summarize, Bassiouni appears to make a conscious choice to record the voices from each era of CAH.

II. Overarching Themes

A recurring theme throughout the book— a theme Bassiouni has emphasized in his previous writing on CAH—is the requirement under customary international law that CAH be committed pursuant to a state policy.⁵ According to Bassiouni, this requirement is what makes the crimes international and distinguishes them from other international crimes.⁶ State policy "means unlawful conduct by state actors using public power and resources under color of law to commit harmful conduct against a civilian population."⁷ Bassiouni vehemently disagrees with the decision of the ICTY appeals chamber in Kunarac to jettison the state policy requirement of CAH,⁸ precedent the ICTR followed.⁹

Although Bassiouni contends that, contrary to the ICTY Kunarac decision's, reading of the Statute, the Rome Statute did not extend CAH to nonstate actors, he appears to acknowledge he may be fighting a losing battle on this score. Article 7(2) of the Rome Statute requires the CAH be committed "pursuant to or in furtherance of a State or organizational policy."¹⁰ According to Bassiouni, "organizational policy" means "the policy of an organization within a state," such as policy formulated by the "military, police, or intelligence organs of a state . . . that does not involve the overall policy of the state."¹¹ Still, Bassiouni acknowledges that the decisions of ICC Pretrial Chambers addressing the "state or organizational policy" requirement suggest "that the ICC may interpret the Rome Statute so as to bring nonstate actors groups within the scope of CAH."¹² However, he asserts that "in order for CAH to apply, such nonstate actors groups should have state-like characteristics."¹³

Bassiouni concedes that the world order has shifted...