NCJ Number
226173
Date Published
2008
Length
30 pages
Annotation
This article argues for the revival of state policy as an element of international crimes such as genocide and crimes against humanity.
Abstract
The rulings of the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) declare that as a matter of customary international law, a state policy is not an element of either genocide or crimes against humanity. The conclusion that a state plan or policy is not a required element is apparently a results-oriented political decision rather than an insightful analysis of the history of the two crimes or of their theoretical underpinnings. The ICTY has also apparently ignored the drafting histories of the crimes as well as subsequent developments such as the work of the International Law Commission. Instead of insisting upon a state plan or policy, the context for crimes against humanity depends solely on their “widespread or systematic” nature, but this has the potential to make crimes against humanity applicable to serial killers, mafias, motorcycle gangs, and small terrorist bands. This was not intended by the United National War Crimes Commission, the London Conference, and the International Military Tribunal when the category of crimes against humanity first received legal definition at the end of World War II. The introductory paragraph of Article VI of the Charter of the International Military Tribunal specifies that accused persons must have been “acting in the interests of the European Axis countries, whether as individuals or as members of organizations.” The Nazi plan and policy to wage aggressive war and to exterminate the Jews of Europe underpinned the entire case. In practice, prosecution of genocide cases involves identifying a state plan or policy and then prosecuting those most responsible for its implementation. Anyone else can be tried for homicide by ordinary courts. 121 notes