An Introduction To The International Criminal Court - Institute for ...

46 introduction to the international criminal court
the acts be done ‘pursuant to or in furtherance of a State or organizational
policy to commit such attack’. But in the Kunarac appeal judgment of July
2002, the Appeals Chamber held that the policy component was not, from
the standpoint of customary international law, an element of crimes against
humanity at all. 74 Echoing earlier pronouncements of the International Law
Commission, the Appeals Chamber set the low end threshold of crimes
against humanity as being more than merely ‘isolated or random acts’. 75
Thus, judges at the ICC will have plenty of encouragement from the ad hoc
tribunals should they wish to stretch the ambit of crimes against humanity.
But they will have to reckon with the plain words of the Rome Statute, which
indicate a more restrictive view, should they attempt to do so. 76
The chapeau of paragraph 1 of Article 7 is followed by a list of eleven
acts of crimes against humanity. At Nuremberg, the list was considerably
shorter. It has been enriched principally by developments in international
human rights law. Accordingly, there are subparagraphs dealing with specific
types of crimes against humanity that have already been the subject of
prohibitions in international law, namely, apartheid, torture and enforced
disappearance. Some terms that were recognised at the time of Nuremberg
have also been developed and expanded. For example, to ‘deportation’ is
now added the words ‘forcible transfer of population’, recognising our condemnation
of what in recent years has been known as ‘ethnic cleansing’,
particularly when this takes place within a country’s own borders. However,
proposals to include other new acts of crimes against humanity, including
economic embargo, terrorism and mass starvation, did not rally sufficient
support.
The most dramatic example of enlarging the scope of the crime is found in
the very substantial list of ‘gender crimes’. The Nuremberg Charter did not
even recognise rape as a form of crime against humanity, at least explicitly,
although this was corrected by judicial interpretation as well as in
the texts of subsequent definitions. The Rome Statute goes much further,
referring to ‘[r]ape, sexual slavery, enforced prostitution, forced pregnancy,
enforced sterilization, or any other form of sexual violence of comparable
74 Prosecutor v. Kunarac et al. (Case IT-96-23 and IT-96-23/I-A), Judgment, 12 June 2002, para. 98.
75 Ibid., para. 96.
76 See the remarks by Antonio Cassese, ‘Areas Where Article 7 is Narrower than Customary International
Law’, in Antonio Cassese, Paola Gaeta and John R. W. D. Jones, The Statute of the
International Criminal Court: A Commentary, vol. I, Oxford: Oxford University Press, 2002,
pp. 375–6.