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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.)