AJIL Symposium: A Plea to Judges – Don’t Make the Policy Element Impossible

[Darryl Robinson is Associate Professor at Queen’s University Faculty of Law]

I am delighted to offer this comment on Leila Sadat’s excellent article on crimes against humanity in the modern age.  Her article makes several important contributions. I agree with her central normative point, which is that ICC jurisprudence has often been too restrictive and too demanding in its interpretation of the policy element.

If we trace the history of academic discourse around the policy element, we see that it has had gone through cycles of ascendance and decline.  For decades after Nuremberg, the policy element seemed fairly generally supported (see eg Keenan, Bassiouni).  In the nineties, following this tradition, it was recognized in the Tadic decision and the ICC Statute.  Around that time, however, the tide of academic opinion turned against it.  Most commentary grew quite skeptical. The nadir for the element was the ICTY’s about-face in Kunarac, which repudiated the element en passant in a highly controversial footnote. Recently, the element has enjoyed a scholarly resurgence, led by thoughtful pieces by Bill Schabas (here) and Claus Kress (here), advocating that a policy element is not only legally required but conceptually required, in order for the law of crimes against humanity to make sense.  I am in a very similar camp to these two scholars, in that I think that some form of policy element has doctrinal support and, more importantly, is conceptually essential. My only caveat was that the element was perhaps at times cast a bit too stringently.

Leila’s article is a leading and welcome example of the latest movement, which is a mildly corrective counter-movement, arguing for a modest threshold. Leila gives arguments based in customary law precedents for an inclusive concept of the type of ‘organization’ that may be behind a crimes against humanity.  In a similar direction, Gerhard Werle and Boris Burghardt give arguments based in the ordinary meaning of the term ‘organization’ (here), and Charles Jalloh has noted the possible Euro-centricism of a rigid concept of organization that does not regard tribal groups as a sufficient form of organization (here). I have also given arguments based in the theory underlying the element (here).  While I acknowledge that the narrower view, requiring a state-like entity, can also be supported by a principled theory (‘betrayal of the responsibility to protect’), I suggested that the essence of crimes against humanity may be humans acting collectively to harm humans.  The purpose of the policy element is simply to exclude the ‘normal’ crime patterns of individuals acting on their own initiatives.  This purpose is satisfied by a modest threshold, encompassing coordination by many types of organization.  I think Leila’s contrast of a ‘traditional’ and a ‘modern’ view of the dangers posed by organizations is another helpful contribution.

In this comment, I wish to expand upon Leila’s thesis, by highlighting the most recent confirmation decision in Gbagbo.  The majority reasoning in Gbagbo illustrates Leila’s point about the dangers of increasingly restrictive interpretation.  It does so even more vividly than any previous decision. The Gbagbo decision came out in June, after the publication of Leila’s article.  The majority held that the Prosecution had not brought sufficient evidence for confirmation of charges against Laurent Gbagbo, the former President of the Ivory Coast.  On closer inspection, some of the gaps noted by the majority are about matters that do not need to be proved for a crimes against humanity case.

For example, the majority requested proof of “how, when and by whom the alleged policy/plan was adopted” and “specific information about meetings at which this policy/plan was adopted” (para 44).  This is exactly what a long line of jurisprudence has said is not required.  The jurisprudence consistently says that the requisite policy ‘need not be formally adopted’, and ‘can be inferred from the manner in which the acts occur.’  Even the draft Elements of Crimes included a proviso that the policy can be inferred from the manner in which the acts occur.  The proviso was removed on the grounds that it was unnecessary and obvious from the case law.

Of course, one sense of the word ‘policy’ in popular usage entails something bureaucratic, formal and official.  But this is not the sense in which it is employed in the authorities, which have looked more broadly for some degree of attribution, instigation, direction or encouragement from a state or organization (see authorities in Tadic, Blaskic, ILC draft Code). It requires some such link in order to exclude random crimes of individuals acting on their own initiative.

The commission of numerous crimes by pro-Gbagbo forces, in multiple incidents and recurring patterns, is by itself sufficient to establish the improbability of random occurrence. Proof of specific meetings at which a criminal policy was ‘adopted’ is not required.  Such a requirement would in many cases entail an unrealistic idea of how crimes against humanity are initiated.  Moreover, even if an organization did formally adopt such plans, it would be extremely difficult to get direct proof of it, unless there were written minutes (unlikely, except in contexts like Nazi Germany) or the Prosecutor has ‘insider’ testimony.  In the absence of insider testimony, a ‘formal adoption’ requirement would make crimes against humanity close to impossible to prosecute.  The focus on inner workings is deeply misguided where the non-randomness of the crimes is already evident beyond a reasonable doubt.

As a second example, the majority also required proof that the perpetrators in general were acting pursuant to or in furtherance of the policy (para 36, 44).  While this is one possible reading of Article 7(2)(a), it is more exacting than is required; the provision should be read with the assistance of the authorities.  First, previous cases have not required proof of the mens rea of the mass of perpetrators other than the accused; they have only required proof of the objective patterns.  Second, it is not required that one is motivated by the policy; participants may have any number of personal motives. Third, even the knowledge requirement is attenuated.  Accused persons only need knowledge of the surrounding general context of crimes; they do not need to correctly infer the policy. (See eg. Tadic, Kupreskic, Blaskic, Taylor, CDF Trial, AFRC Trial, the Elements of Crimes, etc.)  Moreover, the expectation that perpetrators be deliberately implementing a policy does not always reflect how collective action happens.  Persons may have different motives and knowledge.  They may be acting opportunistically or they may just be conforming to the actions of their group.  All that is required is that their acts are objectively connected enough to constitute an ‘attack’.  This requirement of the majority would also undermine the ‘denunciation’ or ‘grudge informer’ cases, in which people did not share in the policy but simply used the persecutory system for their own aims.

As Leila demonstrates, the Pre-Trial Chambers are at times injecting new hurdles into the policy element.  This has the unfortunate effect of making the ‘policy’ element more onerous than ‘systematic’, which turns Article 7 upside down.  Article 7 requires a modest level of both scale and collectivity for an ‘attack’ (multiple acts, plus instigation, direction or encouragement from a state or organization). Then one must prove a high degree of scale (widespread) or collectivity (systematic).  Making ‘policy’ more onerous than ‘systematic’ overturns this structure.

Leila is right to draw attention and concern to these developments, and to urge the Court to hew more carefully to existing precedent and the limited purpose of this modest restriction.  The policy element is a molehill and not a mountain.