Public PhD defence by Mathias Holvoet - A policy to commit atrocity, understanding the "policy element" for the purpose of defining crimes against humanity

2 Mar 2018 16:00
2 Mar 2018 18:00

The public defence will take place on 2 March 2018 at 16:00 at the Vrije Universiteit Brussels, Promotiezaal.

Promoters: Prof. dr. P. De Hert and Prof. dr. S. Smis


By adopting legal pluralism and a user’s perspective as research viewpoints, this work aimed to gain an in depth understanding of the controversial and contested policy element to define crimes against humanity, which is arguably becoming the ‘crime of choice’ before the International Criminal Court (ICC) and within the realm of international criminal justice in general. Studying the policy element does not consist merely of a legal-technical enterprise, but invites sharp questions regarding the nature, rationale and boundaries of crimes against humanity. The research aims of this PhD were essentially threefold. First, the conceptual value and necessity of a policy as a separate definitional requirement to delineate the concept of crimes against humanity was examined. It was concluded that the inclusion of a policy requirement in every definition on crimes against humanity is necessary to preclude that crimes against humanity becomes a catch all concept for all kinds of random and unconnected crimes, notwithstanding the widespreadness and gravity of these crimes. The second main aim of the PhD was to determine the customary status of the policy element. It was revealed that the pluralist state of the art of ICL has precluded the crystallization of the policy requirement into customary international law. Especially the fact that domestic legislation and jurisprudence on crimes against humanity, which are to be considered as the most significant types of State practice, are very pluralist with regards the policy requirement, will probably mean that the policy requirement will not attain customary status in the foreseeable future. A third part of the PhD elaborated on various substantive features of a policy to commit crimes against humanity. A policy behind crimes against humanity is not to be understood in a formalistic and bureaucratic way and need not be stated expressly, need not be defined precisely and may be inferred from the manner in which the acts occur. A policy can be manifested either through active conduct or deliberate inaction. While historically and archetypically, crimes against humanity are State crimes, the PhD aimed to fill existing gaps in practice and literature, for example by giving specifications as to how a State policy to commit crimes against humanity can materialize concretely, for example if a State directs, controls or instructs the conduct of non-State actors. The extent to which non-State actors are bound by the law of crimes against humanity has proven to be the most contested aspect of the policy requirement. This has unambiguously come to the fore in the ICC jurisprudence interpreting the organizational notion under Article 7(2)(a) of the Rome Statute. Alternate interpretations of the organizational notion were proposed for the individual acts of crimes against humanity in general, as well as for the specific individual acts of apartheid and enforced disappearances. Finally, the nexus that needs to exist both in terms of actus reus and mens rea between the individual acts of crimes against humanity and the State or organizational policy was established.

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