The individual constituent acts of crimes against humanity, such as killing a person, expulsion, torture, or rape, are manifestly grave criminal offences. However, pursuant to the legal provisions in Article 7(1) of the Rome Statute of the International Criminal Court (ICC), these individual acts only become crimes against humanity when they are committed as part of a ‘widespread or systematic attack directed against any civilian population’. Based on a distinction that is well known in domestic criminal law doctrine, for example in Germany,Footnote 1 but is not yet fully developed in international criminal procedure,Footnote 2 the following contribution proposes that the context element – also referred to as the ‘chapeau element’ – of crimes against humanity is not an aggravating circumstance in respect of the material facts of the case that define the wrongFootnote 3 of the act (Unrecht) or the offender's blameworthiness (Schuld), but a jurisdictional element which is only a precondition for prosecution. While the former corresponds to the actus reus or mens rea, the latter comprises issues such as jurisdiction ratione loci or ratione temporis.
One of the practical implications of this finding relates to the fact that in contrast to the jurisprudence of the ad hoc tribunalsFootnote 4 and as required by the Elements of Crimes of the International Criminal Court,Footnote 5 the perpetrator's intent (mens rea) does not have to include the perpetrator's act being part of a ‘widespread or systematic attack’ directed against a civilian population; rather, the objective existence of such a link suffices. Even more important, only an appropriate qualification of the context element as a prerequisite for prosecution in the form of a jurisdictional element will, on account of the insight it provides into the distinction between the wrong of the individual act and the overall wrong of crimes against humanity, lead to the establishment of a differentiating doctrinal approach to the various crimes against humanity, which hitherto all too often was precluded by the confusing of the individual offence with aspects of a widespread and systematic attack directed against a civilian population.
1
1.1
In order to establish whether the context of commission of crimes against humanity is a factor aggravating the wrong of the act (Unrecht) or the offender's liability (Schuld), it would seem sensible to begin by comparing the punishment contemplated for certain crimes against humanity with that foreseen for the individual acts that underlie them. However, neither ‘murder’ nor ‘rape’ nor any other constituent acts of crimes against humanity are distinct crimes under international criminal law. In order to carry out such an assessment we therefore have to look at a national jurisdiction that has implemented the Rome Statute, and although several other countries have passed special legislation in order to comply with the principle of complementarity,Footnote 6 Germany might serve as an example here.Footnote 7
Section 7(1) of the German International Criminal Law Code (Völkerstrafgesetzbuch – hereafter ICLCFootnote 8) provides for life imprisonment for whomever ‘kills a person’ in connection with a broad or systematic attack directed against any civilian population, whereas the same act on its own (Totschlag) is subject to a prison term of not less than five years pursuant to section 212 of the German Criminal Code (Strafgesetzbuch – hereafter CCFootnote 9). The major discrepancy in the punishment provided for indicates that the particular context of the perpetration of a killing as a crime against humanity does entail a major increase in the degree of wrong or guilt of the offence.
The same appears to apply to other crimes against humanity, such as the crimes of enslavement (s. 7(1)(3) ICLC), sexual assault (s. 7(1)(6)), or inflicting serious bodily or mental injury (s. 7(1)(8)). While the German Criminal Code does not contain any offence whose elements correspond completely with an individual act of a crime against humanity, the minimum punishment provided for comparable individual acts is considerably milder than what is foreseen in the ICLC. While the crime against humanity of enslavement is subject to not less than five years’ imprisonment, human trafficking for the purpose of sexual exploitation (s. 232 CC) or work exploitation (s. 233 CC) is punishable with a minimum prison term of only six months; the minimum sentence foreseen for kidnapping (s. 234 CC) or abduction (s. 234a CC) is just one year's imprisonment. The crime against humanity of sexual violence (s. 7 (1)(no. 6) ICLC) is subject to imprisonment for not less than five years and is therefore punished far more severely than the comparable offence of sexual assault or rape (s. 177 CC). Similarly, the crime against humanity of inflicting serious bodily or mental injury (s. 7(1)(8) ICLC) is subject to considerably harsher punishment than the offence of serious bodily injury (s. 226 CC), as the perpetrator of the former is subject to a prison term of not less than three years, whereas the perpetrator of the latter is subject to not less than one year's imprisonment.
It could be objected, however, first, that – except in the case of the crime against humanity of intentional killing – section 7 ICLC does not provide for harsher maximum sentences than the Criminal Code for comparable individual offences, even though a greater degree of wrong or guilt would certainly have made harsher punishment – for example life imprisonment as opposed to a set term – seem quite reasonable.
In addition, it could further be argued that the increase in the degree of wrong or guilt of the individual crimes against humanity, which in comparison with similar offences in the Criminal Code justifies higher minimum sentences, on closer inspection could be justified in the legal definition of the individual acts and not in the context of commission. Here again, the crime against humanity of enslavement may serve as example, insofar as it refers to ‘traffickers in humans, in particular where women or children are involved, or to those who enslave people in other ways and in so doing assume property rights’ (s. 7(1)(3) ICLC). This is because it is precisely the assumption of property rights, which was included in the characterization of the offence on the basis of the relevant international treaty law, which distinguishes between enslavement and the offences of trafficking in humans with a view to sexual exploitation (s. 232 CC) and trafficking with a view to labour exploitation (s. 233 CC), which to that extent require only the taking advantage of a person's being in a state of necessity or helplessness. So if the individual offence constituting a crime against humanity of enslavement is a far graver assault on the freedom and self-determination of the person, then herein lies the increased degree of wrong or blameworthiness which warrants a harsher sentence. The same also applies for the crime against humanity of sexual violence, which includes, alongside sexual assault, rape, or forced prostitution, deprivation of the capacity to procreate, or keeping captive a woman forcefully impregnated with the intent of affecting the ethnic composition of a population (s. 7(1)(6) ICLC). For it is more than apparent that the crime is constituted by far more serious forms of conduct than the comparable offence of sexual assault or rape pursuant to section 177 of the Criminal Code.
Even the constituent elements of the crime against humanity of intentional killing pursuant to section 7(1)(1) ICLC in no way contradict an interpretation to the effect that an increased degree of wrong or guilt is not to be found in the context of commission, but rather in the characteristics of the individual acts. Without prejudice to the issue of whether or not murder under specific aggravating circumstances (Mord), which is subject to life imprisonment (s. 211 CC), constitutes the underlying act for offences involving killingFootnote 10 – and accordingly also the ‘starting point’ of the crime against humanity of intentional killing – the constituent elements of the crime against humanity of intentional killing do not comprise the limitation in section 212(1) CC, whereby only those who kill someone ‘without being a murderer under section 211’ shall be punished for homicide. As a result, the wording of section 7(1) ICLC also covers qualified forms of killing as described in section 211 CC and therefore quite appropriately contains the corresponding penalties.
Insofar as the presence of particular constituent elements offences outside the ICLC assume an increase in the degree of wrong or guilt, as a rule this is based on an additional threat to legally protected interests stemming from the presence of particular circumstances. Such an understanding of the context of commission of crimes against humanity, however, clearly conflicts with the wording of section 7 ICLC.
For the reasons set out above, the review of the relationship between the wording and the system of the law does not provide any clear insight into the legal nature of the context of commission of crimes against humanity.
1.2
No further insight into the legal nature of the context of commission of crimes against humanity can be gleaned from the legislative material regarding the entry into force of the German International Criminal Law Code.
The definition of crimes against humanity first entered German criminal law with the introduction of the ICLC, which went into effect in late 2002. The purpose of that legislative undertaking was to bring the substantive criminal law of the Federal Republic of Germany into line with the Statute of the International Criminal Court,Footnote 11 which was agreed on 17 July 1998 in Rome and entered into force on 1 July 2002 once the agreed number of 60 ratification instruments had been lodged.Footnote 12 Given the purpose of the International Criminal Law Code of bringing the substantive criminal law of Germany into line with the Statute of the International Criminal Court, it is hardly surprising that it follows to a large extent the provisions of the Rome Statute. Accordingly, the definition of crimes against humanity contained, even in the experts’ draft of 22 June 2001,Footnote 13 the exigency of commission of one of the individually listed acts ‘in the context of a widespread or systematic attack directed against any civilian population’, and was thus consonant with the constituent-elements approach of crimes against humanity in the Statute of the International Criminal Court.
That the wording of the definition is closely along the lines of Article 7 of the Rome Statute is further confirmed by the submission to the Bundesrat of 18 January 2002, which explains the approach adopted in the provision:
With respect to the individual offences contemplated, these are mainly provisions relative to conduct which is already punishable as a crime in the Criminal Code. The individual acts assume their character of crimes against humanity – in strict adherence to the Rome Statute – only where they occur ‘in the context of a widespread or systematic attack directed against any civilian population’ and are linked in their function to such an attack. The individual acts must be part of the attack, i.e. of the ‘entire act’.Footnote 14
The only legal definition not replicated by the legislature is that in Article 7(2)(a) of the ICC Statute,Footnote 15 which referred to ‘an attack directed against any civilian population’, where it limited itself to referring to the provisions in the Rome Statute for the purpose of interpreting this characteristic.Footnote 16
Therefore neither the comparison of the punishment contemplated for certain crimes against humanity with that foreseen for the individual acts that underlie them in German criminal law, nor the analyses of German legislative materials, leads to any conclusive outcome as to the nature of the context element of crimes against humanity. As a next step we shall therefore examine the development of crimes against humanity under international law.
2
2.1
The Rome Statute of the International Criminal Court is the first comprehensive international legislation having regard to substantive criminal law. During the difficult deliberations by the Preparatory Committee set up by the General Assembly of the United Nations as well as at the Rome conference itself, there was unity on one point, namely that not every inhumane act constituted a crime against humanity but rather international jurisdiction was justified only where such an offence was part of a broader campaign of atrocities directed against the civilian population.Footnote 17 Accordingly, in Rome the government representatives agreed to the following ‘restriction’ in the definition in Article 7(1) of the ICC Statute of crimes against humanity.
1. For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack . . .
Yet neither the shared view as to the need for such a restriction of the scope of crimes against humanity nor the ways and means subsequently adopted originated in the negotiations on the Rome Statute, but reflect in turn the origin and development of the definition of crimes against humanity which emerged in the middle of the twentieth century.
2.2
Crimes against humanity first gained prominence in the proceedings against the major war criminals before the International Military Tribunal (IMT) in Nuremberg, whose jurisdiction encompassed not only crimes against the peace and war crimes but also crimes against humanity. The corresponding provision in Article 6 of the IMT CharterFootnote 18 contained a reference to the individual acts of murder, extermination, enslavement, and deportation, but it differed markedly, in particular in two points, from the provision in Article 7 ICLC and its model, Article 7 of the ICC Statute.
First, Article 6(c) of the IMT Charter did not require the existence of a widespread or systematic attack directed against any civilian population, but only that one of the individual acts listed by way of example or another inhumane act be perpetrated against a civilian population. And here the reference to ‘any’ civilian population was meant to make it clear that acts against members of one's own population came under that definition. Second, the crimes mentioned entailed criminal responsibility only where they were committed in the course of the execution of or in connection with another crime referred to in the Charter.
So, even in the course of the preparations for the Nuremberg trials, there were doubts as to whether atrocities committed by a government against its own citizens could qualify as an international crime, and apparently the representatives of the four victorious powers participating in the drafting of the charter of the military court could not fully dispel those concerns.
The US draft, which was presented to Eden, Molotov, and Bidault, respectively the British, Soviet, and French foreign ministers, who were present at the founding conference of the United Nations in San Francisco in April 1945,Footnote 19 contained the constituent elements of war crimes and of other crimes in relation to the conduct of war as such (‘invasion by force or threat of force of other countries in violation of international law or treaties’, ‘initiation of war in violation of international law or treaties’, ‘launching a war of aggression’, and ‘recourse to war as an instrument of national policy or for the solution of international controversies’), but there were no provisions in respect of crimes against humanity. However, the draft did foresee the possibility of the victorious powers prosecuting crimes which were punishable pursuant to the respective laws of one of the Axis powers.
Nor were crimes against humanity contemplated in a British memorandum summarizing proposed amendments to the US draft, which was submitted on 28 May 1945 in London to the chief US negotiator and subsequent chief prosecutor Robert H. Jackson. Instead, Jackson's report of 7 June 1945 to President Truman contained the proposal that the court should, ‘in recognition of the principles of criminal law as they are generally observed in civilized States’, also have jurisdiction over ‘atrocities and criminal acts including inhumane acts and persecutions on racial and religious grounds which have been committed since 1933’.Footnote 20 That this is only a variant of the original US proposal, which contained legitimation of the prosecution of crimes pursuant to the respective law of the Axis states, can readily be seen in the revised US draft of 14 June 1945, which was the starting point for the deliberations of the London Four Powers Conference which began in late June. Thus, pursuant to paragraph 12(b) of that revised draft, atrocities and crimes, including inhumane acts and persecution on racial and religious grounds, which had been committed since 1 January 1933 in violation of the law applicable at the place they were committed, were to be subject to proceedings before the Military Tribunal.Footnote 21
The decoupling from the law of the state of perpetration and the subsequent re-linking of the prosecution of atrocities and other punishable acts to the prosecution of other acts punishable under the Statute was contained for the first time in the revised British proposal of 28 June 1945. It was introduced on 11 July 1945 into the draft of the sub-committee, where the characteristics of crimes were summarized in Article 6.
As to the grounds for this accessoriness, in the discussions on 23 July 1945 Jackson explained that since time immemorial US foreign policy had been founded on the principle of non-involvement in the internal affairs of foreign states.Footnote 22 Therefore, as far as the United States was concerned, how Germany or any other state treated its nationals was as little an issue as it would be for other states vis-à-vis the United States. The destruction of the Jews and the persecution of minorities in Germany were of relevance to the international community only insofar as they were part of the planning and conduct of an illegal war. As long as no such nexus existed, there was no possibility of prosecuting such atrocities.Footnote 23
So it was basically recognized that the International Military Tribunal would be breaking new ground with the series of crimes referred to as crimes against humanity and that it could not – unlike the case for war crimes – build on established international law practice or doctrine. The prospect, in particular, that acts which undoubtedly would qualify as war crimes were not to be punished just because they were directed against one's own citizens must apparently have seemed so intolerable that attempts were made to preclude any such preoccupations at all.
Despite all these difficulties, the government representatives meeting in London devoted comparatively little attention to the prosecution of crimes against one's own civilian population, because, besides organizational matters, whose adoption took up considerable time, it was primarily the discussions with regard to the characterization of crimes against the peace and conspiracy which were extensive. It may be telling that the term ‘crimes against humanity’ was first used in a revised draft by the US delegation of 31 July 1945 and that it was adopted during the concluding deliberations on 2 August 1945 following only a brief discussion.Footnote 24
The linkage of prosecution of crimes against humanity with the prosecution of other acts punishable under the IMT Charter and the consequent limitation of the scope of crimes against humanity meant that the International Military Tribunal considered that it was not in a position to condemn as crimes against humanity acts committed before the beginning of the war in 1939.Footnote 25 And it is probably also on account of this linking of crimes against humanity to the prosecution of other acts punishable under the Charter that the International Military Tribunal refrained from drawing a clear demarcation between crimes against humanity and war crimes and from spelling out their respective constituent elements.
2.3
There was no link with war crimes or crimes against the peace in respect of the ‘punishment of persons guilty of war crimes, crimes against the peace or against humanity’ in Article II(I)(c) of Control Council Law 10 (Kontrollratsgesetz Nr. 10 – hereafter CCL 10), which was enacted on 20 December 1945 and which otherwise contained the provisions in Article 6(c) of the IMT Charter regarding crimes against humanity.
The purpose of CCL 10 was to establish, by implementing the Moscow Declaration of 30 October 1943 and the London Agreement of 8 August 1945, a uniform legal basis for the prosecution in Germany of those war criminals who were not to be tried by the International Military Tribunal.Footnote 26 Accordingly, numerous proceedings were carried out before the courts of the four occupying powers, of which the 12 so-called Nuremberg successor trials before the US military courts became particularly well known. But on the basis of this law German courts, too, could condemn crimes perpetrated by Germans on Germans or on stateless persons. In the US occupation zone, the authorization required to that end pursuant to Article III(1)(d) CCL 10 was granted only on a case-by-case basis, whereas in the BritishFootnote 27 as well as in the French zoneFootnote 28 general authorizations were granted in respect of proceedings initiated for crimes against humanity.Footnote 29
For the German courts authorized to do so, applying CCL 10 involved considerable difficulties. The prime complaint was the boundless breadth of the definition,Footnote 30 which was said to be not even a draft definition but only a guideline,Footnote 31 which the judiciary had to explore further. Problems of adjudication arose on account of the ever recurring objection to a violation of the prohibition of retroactivity.Footnote 32 So, contrary to the intention of the legislator, CCL 10 led to an extensive legal fragmentation.Footnote 33 Reportedly, the law became so unpopular that the lower courts constantly issued acquittals, the Oberster Gerichtshof (Supreme Court of the British zone of occupation) towards the end of its activity refrained as much as possible from applying the CCL, and the Bundesgerichtshof (Federal Supreme Court) finally left all its CCL 10 cases pending until it no longer had to apply it.Footnote 34
Given this background it is hardly surprising that the highest court of the British zone – which, having begun its activities on 9 February 1948, ended them by late September 1950 on account of the establishment of the Bundesgerichtshof – could not give the definition any lasting contours either, even though it had to apply it in over half of its rulings. The Oberster Gerichtshof did establish that all kinds of attacks which entailed injury to people were, or could give rise to, inhumane crimes insofar as the victim's injury embodied a partial or total debasement of the personFootnote 35 – an effect based on the act being related to the Nazi system of violent and arbitrary ruleFootnote 36 – yet it was unable to provide any further guidance on how to render the stipulations more specific.
The difficulties in handling the definition may have been compounded in particular by the fact that the German courts authorized to prosecute did not deem it necessary, in the light of the wording of the provision in Article II(1)(c) CCL 10, to connect the constituent elements of crimes against humanity with war crimes or crimes against the peace, and therefore regularly handed down decisions bearing also on acts which had occurred well before the war.Footnote 37
In contrast, the US Military Court in Nuremberg, in Proceedings v. Friedrich Flick and others – one of the 12 Nuremberg successor trials – ruled that the constituent elements in Article II(I)(c) CCL 10 could, irrespective of the latter's wording, be applied only where the act had been perpetrated as part of or in connection with a war crime or a crime against the peace.Footnote 38 As grounds for doing so the Military Tribunal referred to Article I CCL 10, by which the Moscow Declaration of 30 October 1943 and the London Agreement of 8 August 1945 – and thereby also the Charter of the International Military Tribunal – appended to the latter were made an inseparable part of CCL 10.
Given this jurisprudence, it cannot be assumed that the constituent elements of crimes against humanity had already evolved into a stand-alone definition in connection with the prosecution after the end of the war of National Socialist wrongs.Footnote 39
This conclusion is substantiated by the fact that the seven Nuremberg principles,Footnote 40 as elaborated by the International Law Commission (ILC) and submitted in 1950, contain the link with the prosecution of other international crimes contained in the Charter of the Military Court. Furthermore, the draft submitted by the ILC in 1951 for a Code of Offences against the Peace and Security of MankindFootnote 41 adheres extensively to the Charter of the International Military Tribunal in respect of the definition of crimes against humanity.
2.4
The first stand-alone version of a definition of crimes against humanity – that is, one free of a link to offences against the peace or war crimes – was contained in the revised draft Code of Offences against the Peace and the Security of Mankind which was adopted by the International Law Commission in 1954.Footnote 42 However, the Commission deemed it necessary to establish, in order not to characterize each and every act by an individual as an international offence, that such acts constituted international offences only where they had been perpetrated under the instigation or with the toleration of the authorities.Footnote 43
The dispensing of the link with the perpetration of other crimes originated in a proposal by Hsu, a Chinese Commission member at the 267th meeting on 13 July 1954,Footnote 44 which was accepted by the narrowest possible majority – of six votes to five, with one abstention.Footnote 45 But at the subsequent meeting of the Commission on 15 July 1954 a debate arose over the fact that the flat dropping of the link would mean that the elements constituting a crime against humanity no longer differed from the individual criminal offences in national legal systems, and that it was therefore unclear why these were to be considered international offences. As a result, the Commission decided, with no votes against and just two abstentions, to reconsider the decision to forego a link.Footnote 46 When the discussion resumed, it was once again Hsu who made the proposal which in the end was adopted, that such acts constituted international offences when they were perpetrated under the instigation or with the toleration of the authorities.Footnote 47
2.5
The work on a draft Code of Offences against the Peace and Security of Mankind and on the Statute of the International Criminal Court was interrupted during the Cold War and only resumed in the 1980s. However, even before the work of the International Law Commission could be concluded, events in the former Yugoslavia and subsequently also in Rwanda attracted attention and led to the establishment of two ad hoc tribunals by the UN Security Council. In doing so, the Security Council did not have the authority to lay down substantive criminal law and it therefore restricted the jurisdiction of the courts to the application of existing international law.Footnote 48
For this reason the definition of crimes against humanity in Article 5 of the Statute of the International Tribunal for the former Yugoslavia (ICTY), established in May 1993, notwithstanding the wording proposed in the interimFootnote 49 and a further draftFootnote 50 from the International Law Commission, largely followed the example of the Statute of the International Military Tribunal in Nuremberg and reduced the link to the perpetration of other offences mentioned in the Statute, to the extent that the act in question had only to be in relation to an armed conflict.
Contrary to the wording of the provision, the case law of the ICTY does, however, take it that crimes against humanity, in the light of the now established customary international law, do not require any connection with any particular conflict,Footnote 51 and holds the view that the requirement of the existence of an armed conflict was merely a jurisdictional element,Footnote 52 which was already met if at the time of the act there had been an armed conflict in the place where it had been committed.Footnote 53
That said, also according to the ICTY's case law, the presence of the physical elements constituting a crime against humanity does require that the individual acts be part of a widespread or systematic attack against the civilian population.Footnote 54 This unwritten requirement was developed by the ICTY on the basis of the requirement of an act directed against ‘any civilian population’ in order to exclude from crimes against humanity individual or isolated crimes.Footnote 55
To that end the tribunal could rely on newly proposed wordingFootnote 56 as well as on a further draft of the International Law Commission from 1996, which likewise circumscribed crimes against humanity with the requirement that there be widespread or systematic perpetration under the instigation of a government or another organization or group.Footnote 57 The same holds for the definition of crimes against humanity in Article 3 of the Statute of the International Criminal Tribunal for Rwanda (ICTR), which was set up in November 1994; the Statute does not contain the requirement of a connection with an armed conflict, but rather requires a ‘widespread or systematic attack’.
Just like the ICTR Statute, the Rome Statute of the International Criminal Court foregoes any requirement of a link with an armed conflict when defining crimes against humanity, and stipulates that the act in question must be part of a ‘widespread or systematic attack’. The definition follows to a large extent the understanding of crimes against humanity as interpreted and applied by the ad hoc tribunals. Only the crime of persecution in Article 7(1)(h) of the ICC Statute requires a connection with a crime coming under Article 7(1) or with any other crime coming under the Court's jurisdiction, whereby it follows the original approach of the Charter of the IMT.Footnote 58
2.6
For the reasons set out above, the genesis of ‘crimes against humanity’ does not corroborate the assumption that the element of context is a characteristic which increases the wrong or guilt of the objective constituent elements.
Just as the International Law Commission did earlier, the ICTY also considered that the requirement that the act had to be part of a widespread or systematic attack against a civilian population was necessary for the sole purpose of excluding individual or isolated offences from the scope of crimes against humanity. But giving such a function to the context element is manifestly unrelated to the wrong or guilt of the individual act, because just as the degree of wrong or guilt of an individual offence of day-to-day crime – such as pickpocketing – is changed little by its being committed on a massive or systematic scale, it is changed just as little in the case of crimes against humanity.
Though it is evident that the massive or systematic killing of parts of the civilian population seen as a whole may be regarded as a ‘greater wrong’ than an individual act of killing, such a macro approach must not be equated with the consideration of an individual act within a widespread or systematic attack.Footnote 59 Such an estimation could only be envisioned if crimes against humanity could be regarded as leadership crimes, where the intent was to identify as perpetrators only those who by means of their authority could be held to bear overall responsibility for the massive or systematic perpetration of grave crimes.Footnote 60 Such an understanding of crimes against humanity is not consistent, however, with either the way they are defined or how they originated. Rather, the constituent elements in the ICLC define – as do the constituent elements in other areas of criminal law – individual acts which enable individual responsibility to be ascribed precisely, not a context or background. In fact, they do not amount to anything more ‘than the systematic perpetration for political motives of ordinary crimes, such as theft, looting, ill-treatment, enslavement, homicide and murder, crimes which are considered to be and are punished as such under the criminal law of all civilized countries’.Footnote 61
Against this backdrop, even considerations relative to legally protected interests cannot establish a sufficient link between the context of commission and the wrong or guilt. For when it is said, with a view to a universally protected interest transcending the individual offence, that crimes against humanity constitute ‘a threat to peace, security and the well-being of the world’Footnote 62 through the systematic or widespread attack ‘on the fundamental human rights of a civilian population’,Footnote 63 it is apparent that the argument is a circular one. So what is really decisive, therefore, is that the notion of cumulation underlying this line of reasoning culminates in responsibility for the wrongdoing of third parties, something which conflicts with the principle of blameworthiness (Schuldprinzip).Footnote 64
3
However, the determination alone that the function of the context element is to exclude from the scope of crimes against humanity acts which are not part of a broader context, leaves open what the purpose of such a function is.
Some indications as to addressing the question can once again be found in the origin of the constituent elements of crimes against humanity. For, as outlined, the requirement of a widespread or systematic attack against a civilian population is not only similar in structure to the requirement contained in the Charter of the International Military Tribunal that the crime be committed ‘in the execution of or in connection with another crime referred to in the Charter’ – indeed, reference could be made to that extent to a special ‘context element’ – but even replaced the latter in the course of its evolution into a stand-alone definition.
So the context element finds its justification – as did its predecessor, the linking of crimes against humanity with the perpetration of other international crimes in the Charter of the Nuremberg Military Court – alone in the necessity to justify ‘international’ jurisdictionFootnote 65 in respect of crimes which were already punishable pursuant to the law obtaining at the place where they were committed and where none of the conventional connecting factors which would justify the corresponding jurisdictionFootnote 66 are extant, a factor emanating from the international-law principle of non-interference in the affairs of a foreign country. For no matter how the connecting factor establishing legitimacy for intervention in extraterritorial affairs in conjunction with such ‘international’ jurisdiction is crafted – be it from the angle of ‘humanitarian intervention’ or the enforcement of the principle of ‘universal jurisdiction’ – ultimately it is solely the overall wrong as emerging in the overall context of commission which deeply ‘shocks the conscience of humankind’Footnote 67 and ‘affects the international community as a whole’Footnote 68 and thus justifies interfering in the affairs of a foreign state.
In the light of broadly identical arguments, the context element of war crimes, which requires a ‘connection with an international or non-international armed conflict’Footnote 69 pursuant to sections 8 to 12 ICLC, is accordingly a characteristic justifying jurisdiction.
4
After all, there are good reasons for assuming that the context element of crimes against humanity is not a characteristic that increases the wrong or guilt according to the physical elements, but is a prerequisite for prosecution in the form of a jurisdictional element.Footnote 70
The consequences of this finding include the insight that it need not be the perpetrator's intent (mens rea) – unlike as assumed by the jurisprudence of the ad hoc tribunals and as required by the Elements of Crimes of the International Criminal Court – to have his or her act be part of a ‘widespread or systematic attack’ directed against a civilian population, but that the objective existence of such a link suffices. According to Article 9 of the ICC Statute the Elements of Crimes are meant to facilitate the interpretation and application of the definitions of crimes in the Statute. However, despite the ambiguous wording in Article 21 of the Statute, they are not binding.Footnote 71 This conclusion, however, should have few practical implications, for a perpetrator whose offence is considered objectively to be part of an attack on a civilian population will hardly succeed in pleading ignorance thereof.
More significant in terms of practical consequences could be the conclusion that a decision as to the presence of a context element might be taken by simplified means of evidence, such as accepting affidavits or calling a public authority for an official statement, instead of witness interrogation. For the example of the ad hoc tribunals goes to show that it is precisely the taking of evidence concerning the presence of an overall context of perpetration which is often extremely time-consuming, whereas a relaxed evidential procedure regarding this jurisdictional element could lead to a significant reduction in the evidence to be produced at trial. However, unlike, for example, German criminal procedure, the international tribunals have not yet started to develop different evidential standards as to the material facts of the case that define the wrong of the act or the offender's blameworthiness on the one hand and jurisdictional elements on the other.Footnote 72
Therefore by far the most significant outcome of this analysis is that only an understanding of the context of perpetration decoupled from the constituent elements of crimes against humanity makes it possible to distinguish between two kinds of wrong in relation to the crimes already mentioned.
The punishable wrong of crimes against humanity, which is the sole subject of an individual charge of guilt vis-à-vis an accused, lies exclusively in the individual acts which justify the application of the term ‘crimes against humanity’, and such an individual act must be ascribable to the perpetrator for a guilty verdict to be handed down. Granted, the task is far from easy in the light of Jäger's determination, which is still valid, that criminal acts perpetrated en masse or in groups are influenced by collective dynamics whose modus operandi has been little studied,Footnote 73 in particular as to the complex lines of responsibility of authority, overeager obedience, and ‘organized irresponsibility’; emerging international law will have to meet this challenge.
A second kind of wrong to be distinguished from the wrong of the offence itself in connection with crimes against humanity lies in the overall context of the commission of innumerable or planned individual offences ‘which shock deeply the conscience of humankind’ and ‘affect the international community as a whole’. It is only this overall image of wrong which forms the legitimizing link for intervention in extraterritorial affairs and which thus justifies the ‘international’ jurisdiction for the prosecution of crimes against humanity.
The appropriate qualification of the context element as a prerequisite for the prosecution in the form of a jurisdictional element has many implications on account of the insight it provides into the distinction between the wrong of the act and the overall wrong of crimes against humanity, as it allows for the establishment of a differentiated doctrinal approach of the individual crimes against humanity. This distinction was all too often precluded by the confusing of the individual offence with aspects of an attack directed against a civilian population. To that extent it should also contribute to the development of an appropriate international-law doctrine on participation, in that it refers problems of participation to where they belong, namely to a well-founded doctrine on participation, rather than taking the easy way out, as did the ad hoc tribunals, by making the overlap between the individual act and the context element invisible by claiming that joint criminal enterprise (JCE) was a form of perpetration established under customary international law.Footnote 74
Finally, the insight into the twofold wrong of crimes against humanity should entail a more rational handling by criminal law of subjects which – however hard to handle they may be – have been inadequately dealt with so far by the prevailing predilection for seeing them as affecting humankind as a whole.
