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Part IV The ICC and its Applicable Law, 28 Crimes against Humanity: A Better Policy on ‘Policy’

Darryl Robinson

From: The Law and Practice of the International Criminal Court

Edited By: Carsten Stahn

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 28 May 2023

Crimes against humanity — International criminal law, evidence — International procedural law — Applicable law — Armed attack

The most interesting and controversial jurisprudence of the ICC on crimes against humanity revolves around the interpretation of the policy element. Most of the literature has focused on the controversy over whether the organization behind a policy must be state-like. This chapter focuses instead on broader problematic trends in the jurisprudence of the ICC, as typified particularly by early decisions in the Gbagbo and Mbarushimana cases. It argues that some early ICC decisions have, in an apparently inadvertent manner, elevated the policy element and infused it with exceedingly formalized requirements. It defends the view taken in later decisions (e.g. Katanga) that ‘policy’ is a lesser threshold than ‘systematic’, that proof of planning is relevant but not necessary, and that policy need not reflect a unified purpose or motive.

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