¹ General information on the conference, as well as the ICC statute, is available at <http://www.un.org/icc>. The statute is reprinted in 37 ILM 999 (1998).

² Charter of the International Military Tribunal for the Trial of the Major War Criminals, appended to Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, Aug. 8, 1945, 59 Stat. 1544, UNTS 279, as amended, Protocol to Agreement and Charter, Oct. 6,1945 [hereinafter Nuremberg Charter]; and Charter of the International Military Tribunal for the Far East, Jan. 19, 1946 (General Orders No. 1), as amended, General Orders No. 20, Apr. 26, 1946, TIAS No. 1589, 4 Bevans 20 [hereinafter Tokyo Charter]. These documents and other relevant documents are reproduced in M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law (1992).

³ The Statute of the International Criminal Tribunal for the former Yugoslavia was adopted by the Security Council acting pursuant to Chapter VII of the UN Charter. SC Res. 827 (May 25, 1993). For the Statute, see UN Doc. S/25704, annex (1993), reprinted in 32 ILM 1192 (1993) [hereinafter ICTY Statute]. The Statute of the International Criminal Tribunal for Rwanda was also adopted by the Security Council acting pursuant to Chapter VII of the UN Charter. SC Res. 955, annex (Nov. 8, 1994), reprinted in 33 ILM 1602 (1994) [hereinafter ICTR Statute].

⁴ Delegations readily agreed that “crimes against humanity” give rise to individual criminal responsibility in customary international law, but found that there was no single authoritative definition of the crime, and that there were inconsistencies among the major precedents on the definition. Given the number of states involved in the negotiations, and the fact that discussions were based on national positions as to the content of current customary international law, one may hope that the definition in the ICC statute will eventually be regarded as more authoritative than previous formulations.

⁵ A different dynamic results not only because of, the number of states involved, but also because of the inclination to demand more rigor where the definition is not simply being imposed on others but is potentially more broadly applicable.

⁶ Much has been written on this question; schools of thought are canvased in Kevin R. Chaney, Pitfalls and Imperatives: Applying the Lessons of Nuremberg to the Yugoslav War Crimes Trials, 14 Dickinson J. Int’l L. 58 (1995); and Joseph Rikhof, Crimes against Humanity, Customary International Law and the International Tribunals for Bosnia and Rwanda, 6 Nat’l J. Const. L. 231 (1995). See also Bassiouni’s major text on the subject, supra note 2.

⁷ The Preamble to the Convention with Respect to the Laws and Customs of War on Land, July 29, 1899, 32 Stat. 1803, 1 Bevans 247, and the Preamble to the Convention Respecting the Laws and Customs of War on Land, with annexed Regulations, Oct. 18, 1907, 36 Stat. 2277, 1 Bevans 631, specify that in cases not included in the Hague Regulations, “the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.”

⁸ The Joint Declaration of France, Great Britain and Russia denounced the massacre of Armenians in Turkey as crimes against humanity and civilization, and warned of prosecution. See United Nations War Crimes Commission, History of the United Nations War Crimes Commission and the Development of the Laws of War 35 (1948); and Egon Schwelb, Crimes against Humanity, 23 Brit. Y.B. Int’l L. 178, 181 (1946).

⁹ Following the First World War, the 1919 Report Presented to the Preliminary Peace Conference by the Commission on the Responsibility Of the Authors of War and on Enforcement of Penalties for Violations of the Laws and Customs of War, excerpted in Bassiouni, supra note 2, at 553–65, recommended the creation of a high tribunal to try persons belonging to enemy countries who were guilty of “offences against the laws and customs of war or the laws of humanity.” However, the U.S. representatives objected to the creation of an international criminal tribunal and to the references to the laws of humanity on the grounds that these had not been sufficiently ascertained. See Annex II to the Report.

¹⁰ See Bassiouni, supra note 2, at 69–86; United Nations War Crimes Commission, supra note 8, at 174–77.

¹¹ Nuremberg Charter, supra note 2, Art. 6(c).

¹² Tokyo Charter, supra note 2; Allied Control Council Law No. 10, Control Council for Germany, Official Gazette, Jan. 31,1946, at 50. The differences among these instruments will be discussed in the analysis below.

¹³ After producing the Report on the Principles of the Numberg Tribunal in 1950, the International Law Commission prepared the draft Code of Offences against the Peace and Security of Mankind in 1954, and followed up with submission of a draft Code of Crimes against the Peace and Security of Mankind in 1991 and another revision in 1996; but these have not been developed into international instruments. See Report of the International Law Commission on the work of its forty-third session, UN GAOR, 46th Sess., Supp. No. 10, at 94, UN Doc. A/46/10 (1991) [hereinafter 1991 draft code]; and Report of the International Law Commission on the work of its forty-eighth session, UN GAOR, 51st Sess., Supp. No. 10, at 14, UN Doc. A/51/10 (1996) [hereinafter 1996 ILC Report].

¹⁴ Convention on the Prevention and Suppression of the Crime of Genocide, Dec. 9, 1948, 78 UNTS 277; Convention on the Suppression and Punishment of the Crime of Apartheid, Nov. 30, 1973, 1015 UNTS 243; Declaration on the Protection of All Persons from Enforced Disappearance, GA Res. 47/133, UN GAOR, 47th Sess., Supp. No. 49, at 207, UN Doc. A/47/49 (1992); Inter-American Convention on the Forced Disappearance of Persons, June 9, 1994, OEA Doc. AG/RES. 1256 (XXIV-0/94), reprinted in 33 ILM 1529 (1994).

¹⁵ See supra note 3.

¹⁶ The ILC commented with respect to its 1996 draft Code of Crimes that “[t] he definition of crimes against humanity in the present article does not include the requirement that an act was committed in rimes of war. … The autonomy of crimes against humanity was recognized in [the instruments subsequent to the Nuremberg Charter] which did not include this requirement.” 1996 ILC Report, supra note 13, at 96. Although constrained by the language of the ICTY Statute (which explicitly requires a nexus to armed conflict), the ICTY appeals chamber correcdy observed that the requirement of a nexus to armed conflict was peculiar to the Nuremberg Charter and does not appear in subsequent instruments. Prosecutor v. Tadić, Appeal on Jurisdiction, No. IT-94-1-AR72, paras. 140–41 (Oct. 2, 1995), reprinted in 35 ILM 32 (1996) (ICTY cases cited in this article are available at <http://www.un.org/icty>). See also, e.g., Theodor Meron, International Criminalization of Internal Atrocities, 89 AJIL 553, 557 (1995); and Rikhof, supra note 6, at 242–44. The Nuremberg Charter stated that crimes against humanity could occur “before or during the war,” but a nexus was indirecdy introduced by the requirement that the crime be connected to war crimes or a crime against peace. This “connection” requirement appeared in the Tokyo Charter but not in the Allied Control Council Law No. 10 or in subsequent instruments. A further discussion of the connection to other crimes appears below in the context of the crime of persecution.

¹⁷ When the 1954 ILC draft Code of Crimes suggested that discriminatory motive was required for all crimes against humanity, it was strongly criticized for misconstruing the Nuremberg Charter in D. H. N.Johnson, Draft Code of Offenses against the Peace and Security of Mankind, 4 Int’l & Comp. L.Q. 445 (1955). Johnson’s article was widely received as expressing the correct interpretation, and the subsequent ILC draft codes have reflected Johnson’s approach.

¹⁸ See Prosecutor v. Tadić, Opinion and Judgment, No. IT-94-1-T, para. 652 (May 7, 1997), excerpted in 36 ILM 908, 944 (1997).

¹⁹ Id., paras. 650–52, 36 ILM at 943–44.

²⁰ These terms are discussed in a recent ICTR decision, Prosecutor v. Akayesu, Judgement, No. ICTR-96-4-T (Sept. 2, 1998), available at <http://www.un.org/ictr>, which held:

The concept of “widespread” may be defined as massive, frequent, large-scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims. The concept of “systematic” may be denned as thoroughly organized and following a regular pattern on the basis of a common policy involving substantial public or private resources.

See id. §6.4. See also 1996 ILC Report, supra note 13, at 94–96; and Tadic Opinion and Judgment, supra note 18, para. 648, 36 ILM at 942–43.

²¹ ICTR Statute, supra note 3, Art. 3 (emphasis added). Likewise, ICTY Trial Chamber II has confirmed that, “[i]n addition to the Report of the Secretary-General numerous other sources support the conclusion that widespreadness and systematicity are alternatives.” Tadic Opinion and Judgment, supra note 18, para. 647, 36 ILM at 942. Oddly, however, the French version of the ICTR Statute uses the conjunctive widespread and systematic test (généralisée et systematique) owing to a translation error. ICTR Statute, supra, Art. 3.

²² Some delegations would have preferred not to use the term “attack” or to refer to “civilian” populations. Rather, they favored the formulation “widespread or systematic commission of such acts.” However, reliance on the term “attack directed against any civilian population” was an essential aspect of the compromise and is adequately supported by existing authorities.

²³ The UN War Crimes Commission noted that the term “population” “appears to indicate that a larger body of victims is visualized and that single or isolated acts against individuals may be considered to fall outside the scope of the concept.” United Nations War Crimes Commission, supra note 8, at 193.

²⁴ Prosecutor v. Tadić, Form of the Indictment, No. IT-94-1-T, para. 11 (Nov. 14,1995) (emphasis added).

²⁵ Tadić Opinion and Judgment, supra note 18, para. 644, 36 ILM at 941.

²⁶ The “acts referred to in paragraph 1” are the enumerated unlawful acts, such as murder, enslavement and torture. The somewhat awkward phrase “multiple commission of acts” was adopted instead of “commission of multiple acts” because several delegations were concerned that the latter formulation might be erroneously construed as requiring more than one kind of unlawful act.

²⁷ Prosecutor v. Akayesu, supra note 20; see also 1996 ILC Report, supra note 13, at 96.

²⁸ The terms “course of conduct” and “multiple commission” were regarded by delegations as presenting a considerably lower threshold than the “massive, frequent, large-scale” action connoted by “widespread.” The latter terms, loosely derived from Tribunal jurisprudence, were chosen to rule out isolated or single acts. On the somewhat awkward phrase “multiple commission of acts,” see supra note 26.

²⁹ Article 7, paragraph 1 of the Rome statute affirms that a crime against humanity means “any of the following acts when committed as part of a widespread or systematic attack.” This is consistent with existing authorities. See, e.g., the Tadić Opinion and Judgment: “Clearly, a single act by a perpetrator taken within the context of a widespread or systematic attack against a civilian population entails individual criminal responsibility and an individual perpetrator need not commit numerous offences to be held liable.” Tadić Opinion and Judgment, supra note 18, para. 649, 36 ILM at 943. However, it does not necessarily follow that the ICC will choose to be seized of cases where the accused committed only a single murder (albeit as part of a widespread or systematic attack); in some cases the court may decline jurisdiction where the gravity of the case does not justify that it take further action. See ICC statute, supra note 1, Art. 17(1)(d).

³⁰ See, e.g., the excerpts of the Nuremberg Judgment quoted by the United Nations War Crimes Commission, supra note 8, at 194–95; and Bassiouni, supra note 2, at 756–66.

³¹ See, e.g., the decision of the U.S. Military Tribunal in Nuremberg in the Altstottercase, regarding “proof of systematic governmental organisation of the acts as a necessary element of crimes against humanity.” 6 Law Reports of Trials of Major War Criminals 1, 79–80 (UN War Crimes Commission, 1948). See also the Flick decision in 9 id. at 1, 51.

³² 1996 ILC Report, supra note 13, at 93, 95–96.

³³ Id. at 96.

³⁴ Tadić Opinion and Judgment, supra note 18, para. 644, 36 ILM at 941.

³⁵ Virginia Morris & Michael P. Scharf, An Insider’s Guide to the International Criminal Tribunal for the Former Yugoslavia 79–80 (1995). Similarly, much earlier authorities such as Joseph B. Keenan & Brendan F. Brown, Crimes Against International Law 117 (1950), noted that crimes against humanity are

inhumanities which result from policy decisions made on the highest plane of civil or military authority. They are the effects of a definitely criminal State policy. They are not the isolated and casual atrocities and inhumanities which are perpetrated by soldiers, in the heat of battle, on their own responsibility. … [C]rimes against humanity would be impossible without the active direction, or acquiescence, of leaders … in a position to coordinate that power over a wide area of operation ….

Citations omitted.

³⁶ Bassiouni, supra note 2, at 244, 247.

³⁷ Barbie, Cass, crim., Dec. 20,1985, 1985 Bull. Crim., No. 407, at 1053; Touvier, Cass, crim., Nov. 27, 1992, 1992 Bull. Crim., No. 394, at 1085. The stringent policy element adopted in these cases is criticized in Leila Sadat Wexler, The Interpretation of the Nuremberg Principles by the French Court of Cassation: From Touvier to Barbie and Back Again, 32 Colum. J. Transnat’l L. 289 (1994). Wexler persuasively questions both the requirement of state action and the requirement that the state be one “practicing a hegemonic political ideology.” Id. at 360.

³⁸ Public Prosecutor v. Menten, 75 ILR 362, 362–63 (1981).

³⁹ Regina v. Finta, [1994] 1 S.C.R. 701, 814.

⁴⁰ Mark R. von Sternberg, A Comparison of the Yugoslav and Rwandan War Crimes Tribunals: Universal Jurisdiction and the “Elementary Dictates ofHumanity,” 22 Brooklyn J. Int’l L. 111 (1996), argues that the suggestion of the UN Commissions of Inquiry (for former Yugoslavia and for Rwanda) that an “official policy of discrimination” is required would add a difficult evidentiary hurdle. He suggests replacing this test with a new element, “the degree to which the misconduct … has become repugnant in the public conscience.” While philosophically useful, this test is too vague for use in a criminal law instrument. See also supra note 37, describing Wexler’s criticism of French decisions.

⁴¹ Tadić Opinion and Judgment, supra note 18, para. 654, 36 ILM at 944.

⁴² Prosecutor v. Nikolić, Review of the Indictment Pursuant to Rule 61, No. IT-94-2-R61, para. 26 (Oct 20,1995).

⁴³ Tadić Opinion and Judgment, supra note 18, paras. 654–55, 36 ILM at 944–45. Rikhof, supra note 6, at 255–62, helpfully canvases the authorities, including national tribunals and international military tribunals, supporting the conclusion that a state policy is not needed and that a policy of a nonstate organization will suffice. See also 1991 draft code, supra note 13; and Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, Nov. 26, 1968, Art. 2, 754 UNTS 73, reprinted in Bassiouni, supra note 2.

⁴⁴ Although the 1954 ILC draft code required the involvement or acquiescence of public officials, the ILC subsequently expanded this to include instigation by a “State, organization or group” in the 1991 draft Code of Crimes. The solution reached in Rome was to refer only to a state or organization, as it was agreed that using the term “organization” would sufficiently capture the present state of customary international law. The term “organization” is fairly flexible, and to the extent that there may be a gap between the concepts of “group” and “organization,” it was considered that the planning of an attack against a civilian population requires a higher degree of organization, which is consistent with the latter concept.

⁴⁵ Prosecutor v. Akayesu, supra note 20, §6.4; see also Tadić Opinion and Judgment, supra note 18, para. 648, 36 ILM at 942–43; and 1996 ILC Report, supra note 13, at 94.

⁴⁶ The phrase “policy to commit such attack” in subparagraph 2(a) was deliberately chosen instead of “policy to commit such acts,” in order to overcome the concern that the latter formulation would be too restrictive. The Women’s Caucus for Gender Justice (an NGO) raised the concern that, in the case of rape, it might have been argued on the latter formulation that it was necessary to prove a policy to commit rape specifically. See Women’s Caucus for Gender Justice, Priority Concerns about Crimes Against Humanity: Informal on Part II (July 1, 1998) (on file with author). Delegations therefore agreed to adopt the phrase “policy to commit such attack” in order to make clear that what is required is proof of a policy to commit an “attack,” as generally defined in subparagraph 2(a).

⁴⁷ Tadić Opinion and Judgment, supra note 18, para. 653, 36 ILM at 944.

⁴⁸ Id. It remains to be seen whether the ICC will adopt this approach.

⁴⁹ See United Nations War Crimes Commission, supra note 8, at 193.

⁵⁰ Some states and nongovernmental organizations would have preferred to expand the definition to include “any population,” but the term “civilian” was retained as part of the compromise, since the term is well established in the precedents. Moreover, widespread or systematic attacks against military personnel remain a legitimate and inescapable aspect of warfare.

⁵¹ For example, the Tadić Opinion and Judgment refers to a “predominandy” civilian population, and gives an expansive interpretation to the term “civilian” in this context. The Tadić Opinion and Judgment also refers to the comments in the Barbie case that the members of an armed resistance could be victims of crimes against humanity in appropriate circumstances. See Tadić Opinion and Judgment, supra note 18, paras. 638–42, 36 ILM at 939–41.

⁵² ICC statute, supra note 1, Art. 7, para. 1.

⁵³ Woolmington v. Director of Public Prosecutions, 1935 App. Cas. 462 (H.L.).

⁵⁴ As noted above, a single inhumane act (for example, a murder) by the accused can suffice to establish a crime against humanity, provided that the requirements of the chapeau are met. See supra note 29.

⁵⁵ A similar conclusion was reached by the Supreme Court of Canada in the Finta case, following a review of relevant jurisprudence:

These cases make it clear that in order to constitute a crime against humanity … there must be an element of subjective knowledge on the part of the accused of the factual conditions which render the actions a crime against humanity.

… [T]he mental element of a crime against humanity must involve an awareness of the facts or circumstances which would bring the acts within the definition of a crimes against humanity.

Regina v. Finta, [1994] 1 S.C.R. 701, 819. The same approach was adopted by the ICTY in the Tadić Opinion and Judgment, supra note 18, paras. 658–59, 36 ILM at 946.

⁵⁶ Murder, extermination, enslavement, deportation, persecution and other inhumane acts appeared in the Nuremberg and Tokyo Charters. Rape, imprisonment and torture were added in Control Council Law No. 10 to form a list that has been accepted as reflecting customary international law; that same list appears in the ICTY and ICTR Statutes. Enforced disappearance and the crime of apartheid were added to recognize particular types of inhumane act that have been identified by the international community as such, as is discussed below.

⁵⁷ Article 21 of the ICC statute specifies that the court shall apply (a) in the first place, the statute, the “Elements of Crimes” (to be adopted by the Assembly of States Parties) and the Rules of Procedure and Evidence; (b) in the second place, applicable treaties and principles and rules of international law; and (c), failing that, general principles of law derived from national laws of legal systems of the world.

⁵⁸ Either of these activities must be “in violation of fundamental rules of international law.” ICC statute, supra note 1, Art. 7, subpara. 1(e). This qualifier was necessary because imprisonment simpliciter is carried out quite legitimately by all states (for example, the imprisonment of persons convicted after a fair trial).

⁵⁹ Id., subparagraph 2(b) notes that “extermination” includes the “intentional infliction of conditions of life … calculated to bring about the destruction of part of a population.” This language is borrowed from the Genocide Convention. Subparagraph 2(b) notes as an illustration “the deprivation of access to food and medicine,” but several other examples exist. This illustration was included at the request of Cuba. Cuba also attempted to have economic embargoes recognized as crimes against humanity, but this proposal received little support.

⁶⁰ Id., subparagraph 2(c) specifies that “enslavement” means “the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.”

⁶¹ Id., subparagraph 1(d) encompasses “deportation or forcible transfer of population,” which, under subparagraph 2(d), is defined as “forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law.”

⁶² Id., subparagraph 2(e) defines “torture” as “the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions.” This definition is based on Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment, Dec. 10, 1984, 1465 UNTS 85, except that the definition in the ICC statute is not limited to acts of public officials, since crimes against humanity can be committed at the behest of states or nonstate actors (see the discussion in text at notes 42–44 supra on the policy element).

⁶⁵ The inclusion of the crime of “forced pregnancy” has been the subject of considerable misunderstanding. This term does not create a universal right to abortion and does not in any way restrict the ability of states to regulate in this sensitive area on the basis of their own constitutional or philosophical principles. The term is included to recognize a particular harm inflicted on women, particularly during armed conflict, and to affirm the agreements reached in UN Dep’t of Pub. Info., Platform for Action and the Beijing Declaration: Fourth World Conference on Women, Beijing, China, UN Sales No. E.DPI/1766 (1996). ICC statute, supra note 1, subparagraph 2(f) specifies that “forced pregnancy” has. three elements: (1) unlawful confinement, (2) of a woman forcibly made pregnant, and (3) with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. Subparagraph 2(f) further specifies that this provision “shall not in any way be interpreted as affecting national laws relating to pregnancy.” Thus, the crime of “forced pregnancy” captures situations where women are forcibly impregnated and confined to force them to bear children of a conquering ethnic group, or for other purposes in grave violation of international law, such as medical experimentation.

⁶⁴ See 1996 ILC Report, supra note 13, at 102–03; Theodor Meron, Rape as a Crime under International Humanitarian Law, 87 AJIL 424 (1993); Amnesty International, The International Criminal Court: Ensuring Justice for Women (AI Index No. IOR 40/06/98, 1998).

⁶⁵ ICC statute, supra note 1, Art. 7, subpara. 2(g). The ICTY noted in the Tadić Opinion and Judgment that, “although often used, the term has never been clearly defined in international criminal law,” and concluded that it requires discrimination intentionally resulting in a denial of fundamental human rights. Tadić Opinion and Judgment, supra note 18, para. 694, 36 ILM at 955.

⁶⁶ The Tokyo Charter omitted “religious” grounds, apparendy because there was litde evidence of persecution on religious grounds in mat conflict.

⁶⁷ These three additional grounds appear in the chapeau of the ICTR Statute’s definition, where they would apply to all crimes against humanity (unlike the ICC statute; see the discussion above of “discriminatory grounds”). “Gender” is defined in Article 7, paragraph 3 of the ICC statute as referring to “the two sexes, male and female, within the context of society.”

⁶⁸ ICC statute, supra note 1, Art. 7, subpara. 1(h).

⁶⁹ In fact, the Berlin Protocol of October 6, 1945, amended the English and French texts of the Nuremberg Charter, making clear that such a connection would be required for all crimes against humanity, not just persecution. The Berlin Protocol is discussed in the authoritative article by Schwelb, supra note 8, at 187–88, 193–95. By removing a semicolon in the English text and rewording the French text, it was clarified that a connection to other crimes in the Nuremberg Charter (war crimes or crimes against peace) was a prerequisite for a crime against humanity.

⁷⁰ Indeed, the ICTY has held that “it is not necessary to have a separate act of an inhumane nature to constitute persecution.” Tadić Opinion and Judgment, supra note 18, para. 697, 36 ILM at 956. In dlis respect, the compromise reached at the Rome Conference appears to be more restrictive than the law applied by the ICTY.

⁷¹ Bassiouni, supra note 2, at 318.

⁷² ICC statute, supra note 1, Art. 7, subpara. 1(f).

⁷³ The interpretation of this provision must, of course, be subject to the principle of ejusdem generis, and therefore restricted to acts of a character and gravity similar to those of the other enumerated acts; see the discussion of “other inhumane acts” in text following note 76 below.

⁷⁴ The crime of apartheid is identified as a crime against humanity in Article 1 of the Convention on the Suppression and Punishment of the Crime of Apartheid, supra note 14; as well as in other instruments, such as the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, supra note 43, Art. 1(b) (definition of crimes against humanity); and numerous General Assembly resolutions, e.g., GA Res. 48/89, UN GAOR, 48th Sess., Supp. No. 49, at 192, UN Doc. A/48/49 (1993). In ICC statute, supra note 1, Article 7, subparagraph 2(h), the crime of apartheid is defined as “inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.” While the explicit reference to “inhumane acts of a character similar to those referred to in paragraph 1” underscores the fact that this crime would have already fallen within subparagraph 1(k) (other inhumane acts), specific acknowledgment of this crime was considered desirable in order to demonstrate the international community’s disapprobation, and to provide a specific label for prosecution of such acts.

⁷⁵ Enforced disappearance is recognized as a crime against humanity in the UN Declaration on the Protection of All Persons from Enforced Disappearance, supra note 14, and in the Preamble to the Inter-American Convention on Forced Disappearance of Persons, supra note 14, which “reaffirm[s] that the systematic practice of the forced disappearance of persons constitutes a crime against humanity.” The ILC, noting these pronouncements, put forward “forced disappearance of persons” as a crime against humanity in its 1996 draft Code of Crimes, 1996 ILC Report, supra note 13. Subparagraph 2(i) of Article 7 of the ICC statute, supra note 1, defines enforced disappearance as

the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.

This definition is loosely based on the Preamble to the UN Declaration on the Protection of All Persons from Enforced Disappearance, supra.

⁷⁶ The view that enforced disappearance clearly constitutes an “inhumane act” that would have fallen within previous definitions of crimes against humanity (all of which included “other inhumane acts”) is bolstered by the fact that the Nuremberg Tribunal found that the Nazi practice of enforced disappearance constituted a crime against humanity:

On 7 December 1941 Hider issued the directive since known as the “Nacht und Nebel Erlass” (Night and Fog decree), under which persons who committed offenses against the Reich … were to be taken secretly to Germany …. After these civilians arrived in Germany, no word of them was permitted to reach the country from which they came, or their relatives; even in cases when they died awaiting trial the families were not informed, the purpose being to create anxiety in the minds of the family of the arrested person. Hider’s purpose in issuing this decree was stated by the Defendant Keitel in a covering letter, dated 12 December 1941, to be as follows:

“Efficient and enduring intimidation can only be achieved either by capital punishment or by measures by which the relatives of the criminal and the population do not know the fate of the criminal.”

12 Trial of the Major War Criminals Before the International Military Tribunal 475–76 (1948) (which must be read in conjunction with p. 498).

⁷⁷ See Bassiouni, supra note 2, at 320. Bassiouni observes that the category “other inhumane acts” must be carefully circumscribed if it is not to violate the principle of legality.