CYIL 2015

GAPS IN THE LEGAL REGIME OF INTERSTATE COOPERATION IN PROSECUTING CRIMES to the definition of crimes against humanity, since, until the adoption of the Rome Statute, no generally accepted, consistent definition of these crimes existed. 37 Crimes against humanity, according to a definition in the Rome Statute (Article 7), consist of multiple acts (such as murder, deportation or forcible transfer of population, torture, enslavement, rape or enforced disappearance of persons) when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack and pursuant to or in the furtherance of a State or organizational policy to commit such acts. In comparison to earlier definitions of this crime, the Rome Statute definition does not contain the nexus to an armed conflict (which formed the basis of the definition in the Nuremberg Charter of the International MilitaryTribunal and was included also in Article 5 of the Statute of the International Criminal Tribunal for the Former Yugoslavia), nor the discriminatory motive (based on national, political, ethnic, racial or religious grounds) that characterized the definition in Article 3 of the Statute of the International Criminal Tribunal for Rwanda. 38 As mentioned in the First report by the Commission’s Special Rapporteur, the wording of Article 7 of the Rome Statute has very broad support among States as the most widely accepted definition of crimes against humanity and as settled international law; nevertheless, the Special Rapporteur also points to the fact that sometimes views are expressed that Article 7 of the Rome Statute might be improved and disagreement may exist regarding whether it reflects customary international law or what constitutes the best interpretation of some of its aspects. 39 The assumption that the definitions of crimes against humanity in the Rome Statute are (only) intended to be applicable before the International Criminal Court (and does not necessarily have to reflect customary international law) is supported by the inclusion of the phrase “for the purposes of this Statute” in the defintion of the crimes against humanity in Article 7, and expressly by Article 10 of the Rome Statute, which provides that “[n]othing in this Part [ i.e. Part II concerning the jurisdiction, including the definitions of crimes, as well as rules on admissibility and applicable law] shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes 37 The definition of the crime of genocide in the Rome Statute adopts verbatim the wording of relevant provisions of the Genocide Convention and, thus, reflects customary international law. As regards war crimes defined in the Rome Statute, it is recognized that “the drafters of Article 8 as well as the war crimes elements generally intended to reflect established humanitarian law” and that the final text of relevant provisions of the Rome Statute “can be perceived … as indicating the opinio iuris of a high number of states as to the current state of the customary international law relating to war crimes”; Otto Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court: Observers‘ Notes, Article by Article, C. H. Beck Hart – Nomos, 2nd ed., 2008, p. 290. 38 The fact that, under customary international law, the crimes against humanity no more require a connection to international armed conflict was firmly settled already in the 1990s, as confirmed i.a. in the definition of crimes against humanity in the Article 18 of the 1996 draft Code of Crimes against the Peace and Security of Mankind, elaborated by the International Law Commission. 39 First report, op. cit. sub 9, p. 57, 58 and 84.

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