In Search of the Meaning, the Scope and the Outer Limits of the Concept of 'Organizational' for the Purpose of the Definition of Crimes Against Humanity in the ICC-Statute


The truly opaque features of the definition of crimes against humanity in the ICC-Statute are the references to the terms ‘State’ and above all, ‘organizational’. While there seems no debate that State actors can commit crimes against humanity, the exact meaning and scope of the term ‘organization’ is controversial and has been extensively debated. Two different views on what an organization should be like in the context of a policy of committing crimes against humanity, can roughly be discerned.

The first theory, which I call the ‘historical-teleological’ theory, argues for a very narrow interpretation of the term ‘organization’. For the ‘historical-teleological’ theory, only ‘State-like’ organizations could be considered as organizations for the purposes of crimes against humanity. Bodies like the Republika Srpska, the FARC, the Palestinian Authority and the government of Taiwan are given as examples of State-like actors. The ‘historical-teleological’ theory refers to the origins of the crime, in the atrocities committed by the Nazi German Regime, and this historical context in crimes against humanity developed cannot be overlooked. Over the decades, they argue, a principal rationale for prosecuting crimes against humanity as such has been the fact that such atrocities generally escape prosecution in the State that normally exercises jurisdiction, under the territorial or active personality principles, because of the State’s own involvement or acquiescence. Crimes against humanity in particular were created so that such acts could be punished elsewhere so that impunity could be addressed effectively. For the ‘historical-teleological’ theory, we do not have the same problem of impunity with respect to non-State actors. Most States are both willing and able to prosecute the terrorist groups, rebels, mafias, motorcycle gangs, serial killers, drug traffickers who operate within their own borders. At best, international law is mainly of assistance here in the area of mutual legal assistance. For example, there is little real utility in prosecuting terrorist organizations under the rubric of crimes against humanity, because States where the crimes are actually committed are willing and able to prosecute. Usually, States have difficulty apprehending the offenders. However, in the view of the ‘historical-teleological’ theory, this problem should be addressed through international cooperation rather than prosecuting them for crimes against humanity. The ‘historical-teleological’ theory argues that if any type of entity can be considered as an ‘organization’ for the purposes of crimes against humanity, the scope of these crimes could be extended to encompass any situation where mass atrocities haven taken place. In addition to the financial and logistical constraints and difficulties that the ICC would face, diluting the concept in this way may expand the range of possible situations within ICC jurisdiction, which undermines the message emphasized in the preamble and fundamental provisions of the Rome Statute, such as article 17, that the ICC was intended to be a court of last, not first, resort that supplements, instead of supplants, national jurisdictions.

This theory is firmly opposed by what I call the ‘progressive-modernist’ approach. By requiring that the organization is either a State or ‘State-like’, it would exclude situations of mass atrocities committed by other organizations and ignore the evolution of the definition of crimes against humanity over the decades following the Nuremberg judgment. The ‘progressive-modernist’ approach argues that what really should matter is the fact that organizations have the capacity to direct crimes against humanity, whether in the context of a State structure or a private group or network – and are able to put into practice ‘a course of conduct involving the multiple commission’ of serious violent acts undermining the protection of basic human values. Applying a too rigid ‘State-like’ standard could thereby lead to impunity and create loopholes.

In its emerging jurisprudence, the ICC follows the ‘progressive-modernist’ approach. Indeed, in the Decision to authorize an Investigation in the Kenya Situation, the majority of judges of the relevant Pre-Trial Chamber held that “formal nature of a group and the level of its organization should not be the defining criterion”. Instead, as others have convincingly put forward, a distinction should be drawn on whether a group has the capability to perform acts which infringe on basic human values. The majority of the Pre-Trial Chamber thus included purely private organizations that are capable of setting up and carrying out a policy to commit attacks in the crimes against humanity concept. This interpretation of ‘organizational’ remains, however, highly controversial. In a dissenting opinion for example, Judge Kaul of the Pre-Trial Chamber competent for the situation in Kenya opted for the ‘historical-teleological’ approach, by limiting ‘organizational’ to ‘State-like’ organizations.
While both the ‘historical-teleological’ and ‘progressive-modernist’ approaches have their merits, neither of them present entirely convincing criteria for how to approach the requirement of a State or organizational policy in article 7(2)(a) ICC-Statute.

The main problem with the ‘historical-teleological’ is that it imports too much of a State-orientation from a human rights law understanding of mass violence where only the State or ‘State-like’ organizations are seen as capable of adopting and implementing policies to carry out crimes against humanity. This view neglects that in many countries, and in particular poor countries with ineffective or illegitimate State structures, individuals with access to resources may organize and implement atrocities on a scale often similar to the kind of State-sponsored violence that gave birth to the notion of crimes against humanity to begin with. Besides Kenya’s post-election violence, atrocities in the Democratic Republic of Congo (DRC), Northern Uganda, Somalia, the Central African Republic and other places are all testimonies of how in the absence of efficient and legitimate State structures, rebel groups, clan leaders and other non-state actors – and sometimes State agencies acting on behalf of particular leaders, rather than according to a policy of the State – may organize extremely serious abuses against the civilian population.

The ‘progressive-modernist approach’, as followed by the jurisprudence of the ICC up to date, seems overly broad and elusive. Isn’t almost any group capable of performing acts that infringe basic human values? If the ‘progressive-modernist approach’ is applied, many organizations could be thought of to have committed crimes against humanity. At the extreme, this takes crimes against humanity to mean all organized acts that are not random. Why, for instance, couldn’t those who were involved in the London riots in 2011 be prosecuted as perpetrators of crimes against humanity if we apply the ‘progressive-modernist approach’?

It seems clear to me that the concept of organization for the purpose of crimes against humanity needs a more refined, nuanced and sophisticated approach. An approach that is too State-oriented seems outdated in a century where non-state actors have the capability to commit crimes on widespread or systematic scale. However, if the current ‘progressive-modernist approach’, as followed by the jurisprudence of the ICC is uncritically followed, a lot of organizations could be thought of as having committed crimes against humanity and potentially be prosecuted before the ICC. It doesn’t seem to me that this is the function of the ICC, nor does it have the capability, and thus it risks to undermine the legitimacy of the Court.

The central research question of my PhD-research would thus be: What is the meaning, the scope and what are the outer limits of the concept of ‘organizational’ in art. 7(2)(a) ICC-Statute?