CYIL 2015

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GAPS IN THE LEGAL REGIME OF INTERSTATE COOPERATION IN PROSECUTING CRIMES

opinion that the definition of the crimes against humanity contained in the Rome

Statute should remain untouched and be adopted (or referred to)

verbatim

in any

possible future international instrument on international cooperation in prosecution

of this crime, is also held by the

authors of the joint intergovernmental initiative

mentioned above and was adopted by the Commission’s Special Rapporteur in his

First report, as well as by the drafters of the Proposed International Convention

for the Prevention and Punishment of Crimes against Humanity (described in the

following chapter)

and by states in the discussions on the work of the International

Law Commission. Thus, it seems to be a settled issue that any future convention

on cooperation with regard to crimes against humanity will refer to or take over the

exact definition of the crimes against humanity in Article 7 of the Rome Statute (and,

when appropriate, the definitions of other relevant crimes under the Rome Statute).

This does not mean that the relationship between the definition in the Rome Statute

and the customary international law is definitively settled: on the one hand, the

decisions of the International Criminal Court concerning the scope of Article 7 are

likely to have a significant impact on the development of customary international law

in this area; on the other hand, customary international law, to the extent it might

differ from the legal regime of the Rome Statute, will remain relevant and should be

taken into account when interpreting Article 7 of the Rome Statute (of course within

the limits of the text of Article 7 of the Rome Statute and relevant provisions of the

Elements of Crimes). The interpretation of some aspects of the definition in Article

7 (such as the question whether the “organizational policy” element encompasses any

organization capable of committing a widespread or systematic attack on a civilian

population, or whether only “state-like” organizations may commit such a crime)

is not a settled issue, and the interaction with the customary international law may

stabilize these controversial aspects of the definition of crimes against humanity

under the Rome Statute.

This conclusion was also “virtually unanimously” supported by the participants of the experts‘ meeting in

Geneva in May 2014 organized by the Crimes Against Humanity Initiative on the topic of the Proposed

International Convention; see Washington University in St. Louis School of Law, Crimes Against

Humanity Initiative, Fulfilling the Dictates of Public Conscience: Moving Forward with a Convention

on Crimes Against Humanity, May 16-17, 2014, Villa Moynier, Geneva, Switzerland, Report of July

17, 2014, p. 10; see

http://law.wustl.edu/harris/documents/Final-CAHGenevaReport-071714.pdf

(visited on 17 June 2015).

For the description of this controversy see Leila N. Sadat,

op. cit.

sub 44, p. 368

et seq.

; Gerhard Werle,

Boris Burkhardt, Do Crimes Against Humanity Require the Participation of a State or a ‚State-like‘

Organization?, Journal of International Criminal Justice, Volume 10, 2012, Issue 5, p. 1151

et seq.

;

see also R. Cryer, H. Friman, D. Robinson, E. Wilmshurst, An Introduction to International Criminal

Law and Procedure, 2nd edition, Cambridge University Press, 2010, pp. 239-240 (who point to the

fact that it is not settled whether the State or an organizational policy element formed a necessary

component of crimes against humanity before the adoption of the Rome Statute).

Furthermore, as noted in the doctrine, the list of specific acts in Article 7, paragraph 1 (a) to (j) of the

Rome Statute “may not be complete and it is possible that other acts will be recognized as crimes against