State Policy as an Element of International Crimes
Schabas, William A., Journal of Criminal Law and Criminology
"Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced," reads the judgment of the International Military Tribunal. (1) This off-cited phrase expresses a vital idea, but it may also have contributed to some misconception about the nature of international crimes. The Nuremberg court made the statement in answer to the charge that the Nazi leaders were not responsible for war crimes because they were acting in the interests of the German State. Where the famous pronouncement about abstract entities may mislead is in suggesting that the State's role is irrelevant or even secondary to the discussion about crimes against international law.
Article VI of the Charter of the International Military Tribunal defined the subject-matter jurisdiction of the court. (2) In three distinct paragraphs, it listed the core offenses, namely crimes against peace, war crimes, and crimes against humanity. (3) Here, too, an important element is often overlooked. Article VI begins with a preambular paragraph stating that the offenders must have been "acting in the interests of the European Axis countries." (4) This implies a gloss on the statement that "crimes against international law are committed by men," to the extent that the "men" must be acting in the interest of a State. Even summary perusal of the judgment issued in 1946 makes it clear just how central to the prosecution was the policy of the Nazi state.
In recent years, case law has tended to play down the role of State policy in international crimes. In the first genocide prosecution to come to judgment before the International Criminal Tribunal for the former Yugoslavia (ICTY), the Trial Chamber held that a State plan or policy was not an element of the crime of genocide, and that the offense could be committed by an individual acting alone, without any State involvement. (5) A few years later, the Appeals Chamber of the ICTY reached essentially the same conclusion with respect to crimes against humanity. (6) Underpinning this development in the law may be a concern that the requirement of a State policy as an element of such crimes will make prosecution of so-called non-State actors more difficult.
In practice, however, there have been few if any cases before the international tribunals involving entrepreneurial villains who have exploited a situation of conflict in order to advance their own perverse personal agendas. Essentially all prosecutions have involved offenders acting on behalf of a State and in accordance with a State policy, or those acting on behalf of an organization that was State-like in its attempts to exercise control over territory and seize political power, such as the Republika Srpska. Indeed, in 2005, an expert commission of inquiry mandated by the U.N. Security Council to investigate whether genocide was being committed in Darfur answered the question "whether or not acts of genocide have occurred" (7) not by examining the acts of individual offenders, but by concluding "that the Government of Sudan has not pursued a policy of genocide." (8)
Other factors within the evolving discipline of international criminal law also argue for revival of the role of State policy as an element of international crimes. The Rome Statute of the International Criminal Court (9) and the Elements of Crimes (10) that complements its interpretation suggest a role for State policy that is Somewhat enhanced by comparison with the case law of the ad hoc Tribunals. In addition, with the growing focus on "gravity" as a test to distinguish cases that are deserving of the attention of international tribunals, a State policy requirement may prove useful in the determination of whether genocide has occurred. When the important doctrine of "joint criminal enterprise" is applied to so-called big cases, the State policy element becomes decisive. …