Guest Post: Why the “Contextual Element” in All ICC Crimes?

by Kevin Jon Heller

The following post was written by my friend Mark Osiel (Iowa).  He hopes that readers will provide him feedback on the post, so don’t be shy!  Also make sure to check out Mark’s new book, “The End of Reciprocity: Terror, Torture, and the Law of War.”  It’s superb.

A curious feature of all the major international crimes is that, unlike domestic offenses, they’re defined to include a so-called “contextual” element.  It’s not entirely clear, though, what purpose the ICC drafters, in particular, intended this requirement to serve. Nor is it clear whether or not this purpose is essentially the same across the four offenses.

For war crimes, the defendant’s conduct must have some “nexus” to an armed conflict.  In crimes against humanity, his behavior must be part of “widespread or systematic” attack against a civilian population and reflect a “state or organizational policy.”  Until recent years, a nexus to armed conflict was also necessary. If accused of waging aggressive war, the defendant and his acts must be linked to a state’s policy and official acts of aggression. For genocide, the contextual element would be the defendant’s knowledge of, and/or contribution to similar acts of genocide in the relevant political environment.  (The ICTY’s suggestion to the contrary in Jelisić is poorly reasoned and widely rejected.)

There’s a common intuition that, for all these crimes, no defendant’s acts or intentions could be properly understood and hence legally assessed in isolation from those of other people acting in some relevant relation to him — often kindred spirits, engaged in similarly reprehensible conduct. (There’s an exception here for war crimes that can be conducted by a single person, after all, irrespective of others’ like actions or support. Still, there can be no war crimes without a war, i.e., a context in which much violence surrounding the crime becomes lawful.)

This explanation for the law’s requirement of context is not entirely convincing, however, because the same intuition about shared responsibility already finds ample expression in the doctrinal requirements for modes of participation, e.g., joint criminal enterprise, command responsibility, etc… These rules too seek to capture the ways in which responsibility for certain, large-scale harm is shared with others, and that the defendant’s conduct is otherwise not adequately intelligible. Why, then, require that the fact of shared responsibility be show both in the definition of offenses and in the rules by which the acts of some are then attributed to others? So I’m inclined to think that something else is at work here.

The rationale most frequently adduced for including a contextual element in the definition of international offenses is jurisdictional: international courts should prosecute a defendant only when his individual wrongs are part and parcel of a much larger harm — “the Rwandan genocide of 1994,” for instance — of unequivocal concern to the international community at large. Only the magnitude of such a comprehensive catastrophe could justify the major resource commitments of an international proceeding, on this view. This does not mean that the particular defendant’s contributions to this broader conflagration need necessarily have been terribly great. But if his offenses are entirely detached from it, they simply better belong in national courts and courts martial, on this view.

A difficulty with this account is that the ICC Statute already requires, in Art. 53(1)(b), that any “situation” the Prosecutor chooses to investigate be of sufficient “gravity” to warrant the Tribunal’s jurisdiction[1]. It would therefore be redundant to read the requirement of a contextual element as aimed at establishing the situational gravity of the relevant wrongdoing.

In any event, some commentators (like William Schabas and Kevin Jon Heller, here on Opinio Juris) interpret the contextual element to demand a prosecutorial showing that the defendant was conscious of the broader context to which his conduct was allegedly integral. It is true that the accused will generally have drawn aid and comfort from such knowledge, i.e., have been emboldened by it. The law’s requirement of context would then be substantive, not purely jurisdictional. But support for this view in the drafting history of the Rome Statute or in other pertinent sources, in not strong.

Let me offer another explanation, not inconsistent with these others.

The contextual requirement in core international crimes serves quite different purposes in trials of high-ranking versus lower-echelon defendants.  For “big fish” like Milosevic or Charles Taylor, the pertinent context consists in facts establishing the defendant’s abuse of the powers attendant upon sovereignty.   The rest of the world seeks to hold these people accountable for abuses of the very authority that public international law itself grants to all who exercise sovereign powers. Through their attendant control of the state (and its appendages, e.g., paramilitaries, death squads), these people effectively create or make the very legal and political context that makes possible the sort of wide-ranging harm of greatest concern to the international community.

For smaller fry, the relevant features of sociopolitical context are quite distinct, but no less inculpatory. These defendants do not make the larger context, but rather take it, that is, accept it too readily and unquestioningly. They resign themselves to their immediate normative environment without sufficiently critical reflection; context is what they as take for granted as the relevant background and moral baseline for evaluating their own conduct. Theirs are “crimes of conformity,” i.e., to prevailing norms and societal expectations. Their evil is banal, not radical, for these people do not seek to engineer any transvaluation of national values, employing high public office to disseminate an oppressive ideology and implement it as a political program. More to the point, they do not seek to abuse the particular rights and concomitant power that public international law itself accords to sovereign states and their leaders.

If such lower and middle echelons should be prosecuted in international courts at all, this can only be because the world wishes to communicate — powerfully and unequivocally — that we are all not merely citizens of nation-states. We also citizens of the world who may therefore rightly be held accountable to more universal standards, as enshrined in international criminal law. Conformity with momentary national or subnational/ethnoreligious expectations of the moment, however widespread, is no excuse to a crime “against humanity.”

Here, the pertinent context consists in the very pervasiveness of like conduct by others, as well as of authorization (not necessarily orders) from superiors. Only in this way can the contextual fact that others did much the same serve to inculpate the defendant, rather than attenuating his wrongs. That such people are predictably drab and ordinary is then by no means reason to absolve them from the attention of international criminal courts. Here the aim of international law, in its peculiar concern with and attention to social and political context, is precisely to remind and exhort that our relevant normative environment is never exclusively that of our particular nation-state and its law.

There’s admittedly no more direct support in the ICC drafting history for this interpretation of the contextual requirement than for the others. Mine is simply an effort to read that perplexing requirement in its “best light.” I wonder what problems others might see in this account and whether it’s consistent with what one would find from a close look at the empirical record of litigated cases.

[1] The Tribunal has admittedly shown little interest to date in independently assessing the OTP’s proprio motu decisions in this regard.

6 Responses

  1. Mark,

    It is interesting to examine the sociological justifications for international prosecutions or the definition of international crimes.  I applaud your work.  I am not sure the analysis you offer above considers all relevant aspects of the ICC, and might dismiss some too quickly.  I hope to provide some helpful thoughts.

    If a primary reason for the contextual element is the abuse of sovereign powers, then why is it not limited to those circumstances?  It is beyond dispute that war crimes, crimes against humanity and genocide can be committed by non-state actors.  For example, if one rejects the existence of an armed conflict between the U.S. and al Qaeda, thereby eliminating the treatment of terrorist attacks as “war crimes”, might not some of its attacks be considered crimes against humanity, i.e. an “organizational policy” of “widespread or systemic attack directed against any civilian population”?  For these organizations, the contextual element appears to distinguish between crimes of international concern and those of national concern.  In some cases the organizations committing these crimes aspire to sovereign powers, either de facto or de jure, but not necessarily always (such as al Qaeda).

    In this vein, I think the redundancy of the gravity and contextual requirements is intentional.  As to war crimes, for example, individuals whose conduct is not part of a larger plan or policy are susceptible of the court’s jurisdiction “in particular” as part of the “large-scale commission of such crimes.”  [Article 8.]  The implication (not requirement) is that there are some whose conduct should be dealt with elsewhere, and the gravity requirement reinforces that.  This is necessary, in my view, given that many offenses defined there might apply to very distinct acts involving a single perpetrator with one or few victims.  Not every attack against civilians or abuse of a prisoner is part of a plan or large-scale event.  Some individuals simply make mistakes in the heat of the moment.  Other individuals adopt a different moral perspective as a justification for their conduct at odds with the moral determination underlying the definition of the war crime.

    If the primary goal of the contextual element for “smaller fry” is norm internalization through educating the community of the offender on global responsibilities, as you appear to suggest, then why complimentary jurisdiction with national proceedings?  One would expect national prosecutions to focus on the effects of the conduct from a national perspective.  These crimes “hurt us” either because they damaged our nationals or because the damaged our international standing (because committed by our nationals).  Neither has anything to do with global responsibilities.  Why should not the ICC have primacy jurisdiction as did the ICTY?  Is the justification for the ICTY’s primacy jurisdiction relevant in this context?  Does it support or undermine your thesis?

    There are other utilitarian justifications for international prosecutions, to include those recognized by the Statute itself.  I tend to think that examining how those concerns are reflected at various places in the Statute, perhaps even relating them to the traditional sociology of punishment,  might help to deepen your analysis of the true purpose of the contextual requirements of ICC crimes.

    These are some things that immediately come to mind.  I am sure KJH or others might take issue with certain aspects of this.  At any rate, I look forward to the thoughts of others and humbly submit these for your consideration.

    Best to all,


  2. Mark,
    This is a very thought-provoking post, but isn’t a simpler explanation merely that the drafters of the Rome Statute were seeking to limit the kinds of conduct that would be reached by the Court? There can be illegal conduct that takes place during a time of war but is not strictly speaking associated with the war (hence not a war crime) nor part of a widespread and systematic attack (hence not a crime against humanity).  David Luban has made this point in arguing that the contextual element seems to be largely a means to eliminate cases against so-called free lancers.  Think, for example, of a neighbor who has always wanted the adjoining property of his neighbor and with the breakdown of law and order as part of an armed conflict situation drives the neighbor from the property.  This conduct would be illegal but should not, I think, be within the jurisidiction of the ICC, even if the armed conflict itself were to eventually be investigated by the Prosecutor. 

  3. I share your fascination with these under-theorized aspects of international criminal law. Your post makes some very interesting points. I am particularly interested in your suggestion that the contextual elements serve different purposes for perpetrators at different levels in the political and/or military hierarchy. While I tend to agree with John that CAH and genocide can be committed without a State policy (or that of a state-like organization) we are in the minority on that issue. As you’ll remember from the CAH meeting at Wash U in April, the majority view (see e.g., Bassiouni, Schabas and the Rome Statute definition) is that CAH do require such a policy. If you take that view, your argument about the contextual element serving to hold actors accountable for abuses of sovereign powers makes sense. I tend to think, however, that your argument undervalues the role of gravity in providing the conceptual (and jurisdictional) underpinning for these crimes. I think (like John) that article 53(1)(b)’s gravity threshold was intended to be somewhat redundant. That is, the drafters were aware that the contextual elements would mostly take care of their gravity-related jurisdictional concerns but wanted the court to have an additional “out” in the event something inappropriate slips through. I discuss some of the relevant legislative history in my article Gravity and the Legitimacy of the International Criminal Court, 32 Fordham Int’l L.J. 1400 (2009). Also, neither of our accounts explains the inclusion within the ICC’s jurisdiction of war crimes that are not widespread or pursuant to a policy. Although the Court is to exercise jurisdiction “in particular” over crimes that meet that threshold it retains jurisdiction over small-scale isolated war crimes. I suspect that the inclusion of small-scale war crimes in the Court’s jurisdiction is at least in part a historical accident. The ICC is a legacy of the Nuremberg Tribunal, which used the international law already on the books (and made up some new law – CAH) to respond to crimes that were undeniably massive and horrific. I look forward to hearing more from you on these issues.

  4. I am pleased that Meg agrees with me in certain respects.  I was not at the CAH conference as Wash U in April.  However, I fail to find a state policy requirement for CAH either in the text of the Rome Statute, as Meg indicates, or in its Elements of Crimes.  I thought the issue fairly well settled by the language of the statute and the ICTR.

    Art. 7(2) of the Statute says “”Attack directed against any civilian population” means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack” (emphasis added)

    Likewise, the Elements of Crimes state:

    “Attack directed against a civilian population in these context elements is understood to mean a course of conduct involving the multiple commission of acts referred to in article 7, paragraph 1, of the Statute against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack. The acts need not constitute a military attack. It is understood that policy to commit such attack requires that the State or organization actively promote or encourage such an attack against a civilian population.” (emphasis added)

    I am happy to be wrong, or in the minority, even in this very public forum.  I see the use of “or” as distinguishing the policies of oraganizations from those of states.  “State” would be understood, in its natural use and meaning, to include any organ (not organization) of the state.  Both the Statute and the Elements were, of course, adopted by the states party to the statute and are the best indication of what is within the scope of the offense.

    I am aware that there is much case law addressing this point, and some of it indicates that a private group or organization must find support for their misdeeds in a state policy.  Those cases are best read in their context.  In any event, the drafters of the Statute were not bound by them, and are believed to have expanded the scope of any customary international law regarding CAH in other ways (see e.g. the discussion in Cassese, “International Criminal Law” on this point).  Further, to impose that requirement on the text of the Statute seesm to strain a natural reading of the language.  If that were the intent of the Statute, it should have said something like “in furtherance of a state policy to commit such attack, whether pursued by an organ of the state or other organization.”  This might be why Liesbeth Zegveld adopted my understanding of this text in “The Accountability of Armed Opposition Groups in International Law” (citing the ICTR, Sierra Leone and ICC statutes, as well as ICTR and ICTY decisions).

    My thanks to Meg for making me relook my basis of understanding on this point.  I suppose I shall have to read Schabbas, et. al. to come to grips with my confusion, or perhaps Meg will do the honors.

    Best to all again!

  5. John,

    I think you are very much in the majority concerning the meaning of “state or organizational policy.”  As far as I know, the only scholars who believe that CAH (and genocide) can only be committed by states — or, slightly more generously, states and non-state actors who are essentially equivalent to states in their degree of organization and control of territory — are Bassiouni (responsible for drafting the provision on CAH), Schabas, and myself.   Most scholars simply assume, in my view uncritically, that any rebel group qualifies as an “organization” capable of committing CAH.

  6. John,

    You and Kevin are of course correct that the majority view (reflected in the Rome Statute etc.) is that a policy is required but that it need not be that of a state or state-like organization.  What I meant to say is that I am in the minority in thinking that CAH should not require any policy at all.  Many participants at the Rome conference shared this view and felt that the disjunctive “widespread or systematic” was undermined by the addition of the policy requirement.  Defining CAH to include acts that create widespread harm would underscore the importance of gravity as the primary normative justification for jurisdiction. In contrast, it seems to me that the inclusion of the policy requirement lends support to the view that CAH are primarily about abuses of power – usually, if not always, by state actors.

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