(Editor’s Note: This is part of a series on a proposed Convention on the Prevention and Punishment of Crimes Against Humanity, due to be considered in discussions that resume on Oct. 13 in the Sixth Committee, the U.N. General Assembly’s primary forum for discussion of legal questions.)

With the work of the International Law Commission (ILC) on the Draft Articles on Prevention and Punishment of Crimes Against Humanity in full swing and with the ball back in the United Nations General Assembly’s (UNGA) court (set in its agenda for this 76th session), it is an opportune time to consider the development of crimes against humanity from the perspective of the International Criminal Tribunals, where it all started, and to examine whether the process is moving forward or marching in place.

Except for a few adjustments, the Draft Articles base the definition of crimes against humanity on the definition contained in the Statute of the International Criminal Court (ICC). This is not surprising considering that the majority of U.N. member States are State Parties to the ICC Statute. In turn, the ICC Statute’s drafters did not formulate these crimes out of thin air; rather, the ICC definition marks the culmination of the work that preceded it.

The Beginning of the Crimes Against Humanity Criminalization Race

The notion of laws of humanity preceded the two World Wars, but the origins of the modern legal formulation, the starting pistol for the race to codify the crime, was in the drafting of the Charter of the International Military Tribunal (IMT). Established in Nuremberg following World War II, the IMT represented a quantum leap in individual criminal responsibility for international crimes. While its jurisdiction was limited and focused on the atrocities of World War II, it provided a unique opportunity to extract the concept of crimes against humanity out of international moral precepts and the cataclysm of the first half of the 20th century.

The crimes listed in the IMT Charter as crimes against humanity are now included in the Draft Articles, namely murder, extermination, enslavement, deportation, persecution, and “other inhumane acts committed against any civilian population.” The Charter of the IMT for the Far East in 1946 followed suit. The ILC’s formulation of the Principles of International Law (the Nuremberg Principles) further cemented this codification.

However, the drafters of the IMT Charter purposefully limited the jurisdiction of the Tribunal, so that it could only adjudicate crimes against humanity that were perpetrated in connection to the war. Interestingly, Control Council Law No. 10, enacted in 1945 to provide the legal basis in Germany for the prosecution of war criminals by the allies in their respective zones of occupation, did not require such a link between crimes against humanity and acts of war. By 1968, this jurisdictional limitation on crimes against humanity was clearly abandoned by the UNGA as well.

Passing the Baton to the International Criminal Tribunals

It took several decades, or a dozen summer Olympics, before international criminal adjudication resurfaced. In 1993, the Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY) and, a year later, the International Criminal Tribunal for Rwanda (ICTR). Both were endowed with primacy over national courts in prosecuting individuals involved in the commission of international crimes, including crimes against humanity, the former with regard to events that unfolded in the territory of the former Yugoslavia and the latter with regard to the genocide committed against the Tutsi in Rwanda. Other courts and tribunals followed suit, as did the ICC.

The contextual element of crimes against humanity

There were subtle differences in the formulation of crimes against humanity in the original two tribunal statutes. The ICTY Statute still contained the war nexus, whereas the drafters of the ICTR Statute in the Security Council clearly dissociated crimes against humanity from any armed conflict. This issue was put to rest conclusively by the ICTY in 1995, in its groundbreaking Tadić case, wherein the Appeals Chamber stated that “[i]t is by now a settled rule of customary international law that crimes against humanity do not require a connection to international armed conflict.”

In addition, the ICTY and ICTR contributed to the conceptualization of crimes against humanity in clarifying the crime’s contextual element. As introduced in the ICTR Statute and stated by the U.N. Secretary-General in his report [para. 48] on the establishment of the ICTY, for crimes against humanity to exist, the specific crimes need to be committed as part of a “widespread or systematic” attack directed against a civilian population. It is their large-scale or systematic nature that elevates the specific crimes (horrific on their own merits) to crimes that shock the conscience of the international community and constitute an affront to the very notion of humaneness.

While Article 7 of the ICC Statute incorporated this contextual formulation, the negotiation process added a potential caveat: the attack has to be executed “pursuant to or in furtherance of a State or organizational policy to commit such attack.” Some States were concerned that the formula of “widespread or systematic” might classify crime waves by common criminals as crimes against humanity. This policy element was incorporated verbatim into the Draft Articles as well. The fear of States of being accused of committing crimes against humanity for actions beyond their control might have given a free pass to any rogue State that, for example, acquiesces or tolerates a widespread rape in a territory under its effective control. The policy requirement is also at odds with the definition of “enforced disappearance” as a specific crime of crimes against humanity (both in the ICC Statute and the Draft Articles), which includes abduction of persons with the acquiescence of a State.

It is possible that the right balance between these concerns has yet to be found. At least, in the case of the ICC, a footnote in its Elements of the Crimes clarifies that the “policy” requirement may be fulfilled, in exceptional circumstances, “by a deliberate failure to take action, which is consciously aimed at encouraging such attack.” The inclusion of this important issue in a footnote speaks volumes. One may hope that the Draft Articles will grapple directly with this matter or, at the very least, will clarify it in its future commentary.

Finally, the contextual element of crimes against humanity refers to a widespread or systematic attack directed against any “civilian population.” This phrase was introduced in the IMT Charter and persevered until today. However, the ICTY and ICTR have construed it liberally to include non-civilians, such as incapacitated soldiers. Considering the contextual element of crimes against humanity and its clear detachment from armed conflicts, we might need to rethink this phrase. Whereas the torture of one soldier constitutes a war crime, the systematic or widespread torture of soldiers could also be considered a crime against humanity, regardless of whether the civilian population was targeted.

The specific crimes

Recognizing the categories of crimes that may be considered crimes against humanity, if committed in a widespread or systematic manner, was more linear. As already mentioned, the drafters of the IMT Charter did most of the heavy lifting and identified a non-exhaustive list of crimes, including murder, extermination, enslavement, deportation, and persecution.

The ICTY and ICTR Statutes further recognized the uncontroversial crimes of imprisonment, torture, and rape (also to be found in Control Council Law No. 10 of 1945). The drafters of the ICC Statute, in addition to developing, clarifying, and expanding these established categories of specific crimes (by, for example, adding forcible transfer to deportation, or sexual slavery to rape), included the crimes of apartheid and enforced disappearance of persons. These two additional crimes are also not disputed as such, and both even have a dedicated convention.

Following in the ICC footsteps, the Draft Articles reproduced the list of crimes that may constitute crimes against humanity if committed in a widespread or systematic manner, subject to some minor changes. While this is a pragmatic approach, its added value must be questioned. For example, the definition of the crime of enforced disappearance in the 2006 convention that is dedicated to such acts and was drafted almost a decade after the ICC Statute, is arguably broader than the one in the current Draft Articles, as the definition of enforced disappearance in the convention is not limited to the acts of “arrest, detention or abduction” and includes “any form of deprivation of liberty.” Hence, it might have been wiser to depart from the convenience of adopting a formulation that was negotiated in 1998 and revisit the specific crimes along with their definition in other conventions and in customary international law.

While the Draft Articles clarify that their definition of crimes against humanity is “without prejudice” to any broader definition (provided for in any international instrument, in customary international law, or in national law), it is regrettable that member States did not seize the opportunity to take the extra step and recognize advancements in the law that have been made in the last 20 years.

The Finish Line

Since the drafting of the IMT Statute, the ILC and the Sixth Committee have been in a 70‑year relay race, passing the crimes against humanity baton from one to the other. At times the baton was dropped, as with the first versions of the Draft Code of Offences against the Peace and Security of Mankind; at other times, drafters successfully overcame the hurdles in the process, as with the ICC Statute.

The race for the codification of crimes against humanity is not over, but a potential finish line is in sight. The only question is whether the race will end with a new world record, presenting a progressive codification of crimes against humanity, or whether all contestants will go home with a 20-year-old consolation prize.

IMAGE: A Bosnian Muslim signs a book in a makeshift memorial for Bosnian Muslim victims on Nov. 22, 2017 in The Hague, The Netherlands. The International Criminal Tribunal for the former Yugoslavia sentenced former commander of the Serbian forces Ratko Mladic to life imprisonment for war crimes and genocide he committed during the 1992-1995 Bosnian war. (Photo by Pierre Crom/Getty Images)