CYIL 2015

301

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.

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.

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.

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

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.

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.

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.

First report,

op. cit.

sub 9, p. 57, 58 and 84.