1 I have written the following articles demonstrating these developments: Theodor, Meron, The Case for War Crimes Trials in Yugoslavia , Foreign Aff., Summer 1993, at 122 Google Scholar; From Nuremberg to The Hague, MIL. L. Rev., Summer 1995, at 107; Rape as a Crime under International Humanitarian Law, 87 AJIL 424 (1993); The Normative Impact of the International Tribunal for Former Yugoslavia, 1994 Isr. Y.B. Hum. Rts.. 163; International Criminalization of Internal Atrocities, 89 AJIL 554 (1995); The Continuing Role of Custom in the Formation of International Humanitarian Law, 90 AJIL 238 (1996); Answering for War Crimes: Lessons from the Balkans, Foreign Aff., Jan.-Feb. 1997, at 2.

2 Prosecutor v. Tadić, No. IT–94–1–AR72, Appeal on Jurisdiction, paras. 28–40 (Oct. 2, 1995), 35 ILM 32 (1996) [hereinafter Interlocutory Appeal].

3 Prosecutor v. Kanyabashi, No. ICTR–96–15–T, Decision on Jurisdiction (June 18, 1997), summarized by Virginia Morris in 92 AJIL 66 (1998).

4 Wolfgang Friedmann, The Changing Structure of International Law 168 (1964).

5 See generally Theodor, Meron, Is International Law Moving towards Criminalization? 9 Eur. J. Int’l L. 18 (1998)Google Scholar.

6 Interlocutory Appeal, supra note 2, para. 141.

7 Prosecutor v. Tadić, No. IT–94–1–T, Decision on Form of the Indictment, para. 11 (Nov. 14, 1995).

8 Prosecutor v. Mrksić, Radić & Šljivančanin, No. IT–95–13–R61, Review of Indictment Pursuant to Rule 61, para. 30 (Apr. 3, 1996) [hereinafter Vukovar Hospital Decision].

9 Id.

10 Prosecutor v. Tadić, No. IT–94–1–T, para. 649 (May 7, 1997) [hereinafter Tadić].

11 Id., para. 643.

12 Id. (citing Vukovar Hospital Decision, supra note 8, para. 32).

13 Id., para. 646. See UN Doc. S/25704, para. 48 (1993) [hereinafter Report of the Secretary-General].

14 Tadić, supra note 10, para. 653.

15 Id., para. 654.

16 However, I find less persuasive the Tribunal’s holding that all crimes against humanity, not only persecution, require discriminatory intent. Id., paras. 650, 652. The Tribunal recognized that it was departing from customary law, which did not require such intent. There was no reason for the Tribunal to regard the more restrictive Report of the Secretary-General, supra note 13, para. 48, as gospel. This holding unnecessarily limits the scope of crimes against humanity; a decision to follow the Nuremberg jurisprudence would have been better. Note that in the U.S. proposal on the elements of offenses under the ICC statute that was presented to the Preparatory Committee, the requirement of discrimination is limited to those crimes against humanity that involve persecution. See UN Doc. A/AC.249/1998/DP.11, at 7 [hereinafter U.S. Offenses Proposal]. It would have been better, I believe, to regard inhumane acts against a civilian population, such as murder, extermination, enslavement and deportation, as crimes against humanity and to require discrimination only for persecution on political, racial and religious grounds, as at Nuremberg. I hasten to add that, although I criticize some decisions of the Hague Tribunal on this point and a few others, I believe that the Tribunal and its judges, prosecutors and registrars have been very successful overall. The solid foundation they have built will allow the international community to proceed toward the establishment of a standing international criminal court.

17 See Prosecutor v. Erdemović, No. IT–96–22–A, Appeals Judgment (Oct. 7, 1997).

18 See Interlocutory Appeal, supra note 2.

19 See Theodor, Meron, Classification of Armed Conflict in the Former Yugoslavia: Nicaragua’s Fallout , 92 AJIL 236 (1998)Google Scholar.

20 See the following reports by Christopher, Keith Hall: The First Two Sessions of the UN Preparatory Committee on the Establishment of an International Criminal Court , 91 AJIL 177 (1997)Google Scholar; The Third and Fourth Sessions of the UN Preparatory Committee on the Establishment of an International Criminal Court, 92 AJIL 124 (1998); The Fifth Session of the UN Preparatory Committee on the Establishment of an International Criminal Court, id. at 331; The Sixth Session of the UN Preparatory Committee on the Establishment of an International Criminal Court, id. at 548; see also Report of the Intersessional Meeting from 19 to 30 January 1998 in Zutphen, the Netherlands, Preparatory Committee on the Establishment of an International Criminal Court, UN Doc. A/AC.249/1998/L.13.

21 See Theodor, Meron, Rape as a Crime under International Humanitarian Law, supra note 1 Google Scholar.

22 See Theodor, Meron, International Criminalization of Internal Atrocities , supra note 1Google Scholar.

23 U.S. statement submitted to the Preparatory Committee on the Establishment of an International Criminal Court (Mar. 23, 1998) (on file with author).

24 Id.

25 U.S. Offenses Proposal, supra note 16, at 3. The interpretive Report of the Secretary-General, supra note 13, para. 48, states that crimes against humanity are those “committed as part of a widespread or systematic attack against any civilian population” (emphasis added). The report was approved by Security Council Resolution 827 (May 25,1993), 32 ILM 1203 (1993). In the Security Council discussion of Resolution 827, Ambassador Albright stated: Secondly, it is understood that Article 5 applies to all acts listed in that article, when committed contrary to law during a period of armed conflict in the territory of the former Yugoslavia, as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial, gender, or religious grounds.

UN Doc. S/PV.3217, at 16 (1993) (emphasis added).

The disjunctive formula (“or”) was vigorously endorsed by the Hague Tribunal in both the Vukovar Hospital Decision, supra note 8, para. 30, and in Tadić, supra note 10, para. 646. See also Virginia Morris & Michael P. Scharf, An Insider’s Guide to the International Criminal Tribunal for the Former Yugoslavia 79–80 (1995) (who write that crimes against humanity must be committed as part of a systematic plan or general policy, rather than as random acts of violence, without mentioning widespread acts). The Statute for the Rwanda Tribunal upgraded the word “or” to the black-letter law of Article 3 (crimes against humanity): “when committed as part of a widespread or systematic attack against any civilian population.”

Neither the Nuremberg Charter nor Allied Control Council Law No. 10 referred to either widespread or systematic attacks. But the Nuremberg jurisprudence suggests that international law requires a systematic governmental organization and that more than isolated acts must be proved; they must be part of a policy. 6 Law Reports of Trials of War Criminals 80 (United Nations War Crimes Commission, 1948); 15 id. at 136 (1949). In the Justice case decided under Control Council Law No. 10, the Tribunal stated:

We hold that crimes against humanity as defined in C.C. Law 10 must be strictly construed to exclude isolated cases of atrocity or persecution whether committed by private individuals or by governmental authority. As we construe it, that section provides for punishment of crimes committed against German nationals only where there is proof of conscious participation in systematic government organized or approved procedures amounting to atrocities and offenses of the kind specified in the act and committed against populations or amounting to persecution on political, racial, or religious grounds.

3 Trial of War Criminals Before the Nuernberg Tribunals 982 (1951). See also the Altstötter case, 6 Law Reports of Trials of War Criminals, supra, at 40; and Egon, Schwelb, Crimes against Humanity , 23 Brit. Y.B. Int’l L. 178, 191 (1946)Google Scholar.

The summaries prepared by the staff of the UN War Crimes Commission, in pointing out that war crimes could overlap with crimes against humanity, stated that crimes committed in “a widespread, systematic manner” may also constitute crimes against humanity. 15 Law Reports of Trials of War Criminals 134. This expression, which does not clarify the relationship between “widespread” and “systematic,” does not appear in the cases. This summary may have triggered the pertinent language in the 1993 Report of the UN Secretary- General, supra note 13.

26 See U.S. Offenses Proposal, supra note 16.