CYIL 2015

PAVEL CABAN CYIL 6 ȍ2015Ȏ other than this Statute”. 40 What are the arguments concerning the alleged differences between the definition of crimes against humanity as contained in the Rome Statute and the definition of this crime under customary international law? For example, according to Jordan Paust, the existence of “State or organizational policy” to commit attacks forming part of crimes against humanity “is certainly not a requirement under customary international law or before the ICTY, ICTR, and Special Court for Sierra Leone”; a similar limitation, which is, according to Paust, not provided for under customary international law, is represented also by the condition [expressed in Article 7(2)(a) of the Rome Statute] requiring “the multiple commission of acts” referred to in Article 7(1) of the Rome Statute ( i.e. a single widespread attack on civilians should be sufficient). 41 In addition, the definitions of certain “acts” in Article 7(2) of the Rome Statute, such as the enforced disappearance of persons [Article 7(2)(i)], do not correspond to and are more limited than the definitions of these crimes adopted later or in other fora (including, in this case, the 2006 International Convention for the Protection of All Persons from Enforced Disappearance). 42 Paust concludes that “if States ever adopt a general or regional multilateral treaty on crimes against humanity as such, definitional elements should not merely reflect those found in Article 7 of the Rome Statute, because they are far too limiting and do not reach all forms of customary crimes against humanity.” 43 However, as mentioned above, it seems that the definition of crimes against humanity in the Rome Statute has already received wide acceptance and “is increasingly seen by international and national courts and tribunals … as codifying the customary international law of crimes against humanity, whether or not it did so in Rome.” 44 Therefore, even if little consensus existed in 1998 in respect of some of the elements of the definition of the crimes against humanity, now the Rome Statute represents a highly authoritative and widely accepted legal framework, which cannot be set aside and which will form the basis for the future development of law in this area. The 40 See further Article 22, para. 3 of the Rome Statute, which, with regard to the principle of nullum crimen sine lege , provides that this article “shall not affect the characterization of any conduct as criminal under international law independently of this Statute”. 41 Jordan J. Paust, The International Criminal Court Does Not Have Complete Jurisdiction over Customary Crimes Against Humanity and War Crimes, 43 J. Marshall L. Rev. 603 (2010), pp. 693-4. 42 Which, it must be added, does not automatically mean that these later definitions reflect customary international law in this area more adequately and precisely than the Rome Statute. 43 Jordan J. Paust, op. cit. sub 41, p. 700. According to J. Paust, there are also other (possible) discrepancies between the (limited) reach of the Rome Statute jurisdiction with respect to war crimes and the scope of these crimes under customary international law; J. Paust, ibid ., p. 700 et seq. 44 Leila Nadya Sadat, Crimes Against Humanity in the Modern Age, The American Journal of International Law, Vol. 107, Apríl 2013, No. 2, pp. 373 and 375 (Leila Sadat also adds that “because the  Rome  Statute embodies jus cogens norms binding on all states, it is increasingly difficult to imagine that a customary international law of crimes against humanity can exist separate and apart from the international law norm of crimes against humanity embedded in the Rome Statute, although it is theoretically possible for that to occur.”; ibid. , p. 373.)

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