Crimes against humanity in international criminal law

The crime against humanity is provided for in Article 7 of the Rome Statute. The particularity of this crime against humanity is that it can be committed in time of war, but it can also be committed outside of war and have absolutely no connection with the conflict. Just as war crimes must be linked to war, crimes against humanity do not have to be linked to war. It can be committed outside the context of an armed conflict. In this case, and as a general rule, it is committed in the context of an armed conflict, whether it is an inter-state war such as the one we are dealing with between Russia and Ukraine or an armed conflict, but this is not a constitutive element of the crime. What characterizes this crime against humanity? Article 7 details a whole series of crimes – murders, assassinations, deportation of populations, torture, etc. – but the particularity is that it is a crime against humanity. -But the particularity is that this crime can only be directed against the civilian population, i.e. a combatant cannot be the victim of a crime against humanity, and the civilian population must be attacked. That is, the crime is committed within the framework – and this is really the terms of Article 7 – within the framework of a general or systematic attack against the civilian population, and this attack must be carried out within the framework of a State policy against the civilian population. It is general or systematic: the two criteria are not cumulative. The criterion of generality is deduced from a set of indicators: the territory, the size of the territory, the number of victims, the means deployed. The systemicity of the crime is much more a qualitative assessment. Do we really have a pattern in the way the crimes are committed, the recurrence of the means of attacking people, do we identify chains of authority, etc.? And proving the attack is not enough, we have to prove that this attack is linked to a state policy, a state policy that really planned this attack. So it’s really a planned crime where the victims are targeted as victims, and it’s usually to terrorize them, to force them to flee. We don’t ask for proof of a formal plan, that is to say that in writing, we find the plan of this policy. Not at all. This attack can be deduced from a cluster of clues and the assessment is evolutionary, that is to say that something that might not have existed at the beginning of the conflict can, as the conflict unfolds, appear. And at the moment, it is precisely this cluster of clues that could lead to say that at the moment, when we see the devastation of Marioupol, of the city of Marioupol, when we see the systematic shelling of the cities, I think that today effectively, in view of the way things are going, I think that we are indeed in the midst of crimes against humanity that are currently being committed.