[Elies van Sliedregt is the Dean and Professor of Criminal Law at VU University Amsterdam]
In this article Leila Sadat convincingly makes clear that CAH are central to international prosecutions. She points to the importance of CAH at the ICC with its potential to intervene in peace-time. Sadat underscores the importance of CAH as gap-filler; it provides for jurisdiction in the absence of an armed conflict and addresses discriminatory campaigns that do not qualify as genocide. The independent existence of CAH has become clearer over the years. CAH prosecutions capture key social harms and particular patterns of victimization, such as ethnic cleansing or sexual slavery. While CAH have gained importance as an independent category of crimes and according to Sadat “have emerged from the shadow of Nuremberg” (p. 336), we cannot ignore that CAH’s raison d’être is that of solving a jurisdictional problem. This goes back to the period before Nuremberg.
For centuries international law has recognized the enemy of all mankind, the
hostis humani generis. Pirates, who had no allegiance to a state and who committed crimes beyond the jurisdictional control of States, were regarded as the enemy of all mankind. With the interests of ‘mankind’ affected, all nations had a right to fill a jurisdictional void and exercise (universal) jurisdiction. Similarly, the notion of ‘humanity’ justifies intervention by way of criminal law enforcement. When States fail to protect, or are engaged themselves in harm to the security and subsistence of their subjects, they forfeit their privileges as a sovereign entity; other States or an international court may step in. While both ‘mankind’ (for piracy) and ‘humanity’ (for CAH) provide a justification for intervening in domestic affairs, the underlying reasoning and interests differ. Piracy more directly harms the interests of a multitude of States; self-interest prompts the exercise of jurisdiction. CAH, on the other hand, can be confined to one country. They affect the interests of other States in that they shock “the conscious of mankind” (UK prosecutor Shawcross in his opening statement in Nuremberg). They are so egregious that it is in the international community’s interest that they are punished. This is what Arendt meant when she referred to the Holocaust as “crimes against mankind committed on the body of the Jewish people”.
Viewing CAH through the prism of jurisdictional justification makes clear that sovereignty is a concern with CAH. For the international community to intervene, CAH must qualify as an international harm. They must shock the conscience of mankind. While this leaves pertinent questions unanswered, (is there a world community? with a common conscience?) it is clear that CAH must reach a level that distinguishes them from domestic crimes. The contextual elements of CAH, that crimes are committed as part of a widespread or systematic attack pursuant to a State or organizational policy, must ensure that this level is met.
Judge Kaul is sensitive to sovereignty concerns. In his dissenting opinion to the Article 15 Kenya Decision he opines that the policy element is a decisive, characteristic and indispensable feature of crimes against humanity; it distinguishes ordinary crimes from international crimes and should therefore be interpreted narrowly. Sadat criticizes Judge Kaul’s view for denying CAH’s modern meaning, as a residual category of crimes that protect human values, values the ICC was established to protect. ‘Organizational’ in Article 7(2)(a) should include non-State(-like) organizations.
What to think of this disagreement?
