Abstract Under the current rules of international criminal law, for an accused to be found guilty of crimes against humanity, the prosecution must prove multiple contextual elements. While each of these elements have their own interpretive challenges, there is one element that has been quite controversial and subject to inconsistent application: namely, the policy element. The policy element serves a rational purpose; it is intended to prevent crime surges and the acts of lone individuals from being encapsulated under the umbrella of crimes against humanity. However, the policy element, as it currently stands, also creates a gap in the law that prevents the prosecution of widespread prohibited acts committed against a civilian population spontaneously and without encouragement or oversight by a state or organization. This article will assess potential solutions to fill this gap, and will ultimately propose that, to guarantee the protection of humanity from such atrocities, the ‘attack’ element of crimes against humanity should be amended to require either (a) the policy element or (b) a new element, herein referred to as the catalyst element.
Brennan L’Estrange (Tue,) studied this question.