Forging a Convention for Crimes against Humanity

INTRODUCTION

It has been debated for some time in the literature whether or not the definition of crimes against humanity includes an element of “policy.” With a view to answering this inquiry, the general question about the existence of that requirement may be subdivided into four separate queries:

Each of these subquestions will be addressed in turn.

WHAT IS THE REQUIREMENT OF “POLICY” SUPPOSED TO MEAN?

The first difficulty that one encounters when discussing this issue pertains to the meaning of “policy.” To the extent that an element of “policy” is put forth as a constitutive requirement of crimes against humanity, one would expect a clear understanding of what that expression is intended to refer to. However, there is little indication in the literature – and even less in existing practice – as to what that requirement exactly means. Nor is it entirely clear whether its supporters all agree on what the concept should encompass. Unless the definitional contours of that expression are sufficiently clear, there is a genuine risk that it will not be understood by all in the same manner. In this context, as in others, “a difference in the mere form of words does in several cases make a difference in law.”