Putting Peacetime First: Crimes Against Humanity and the Civilian Population Requirement

Unlike the ad hoc international criminal tribunals, the International Criminal Court (ICC) may often exercise its jurisdiction in peacetime as well as during armed conflict. Article 7 of the Rome Statute, on Crimes Against Humanity, reflects this development, but does not address how to resolve the interpretive difficulties that flow from it, particularly as regards the requirement that the crime requires an attack directed against a 'civilian' population. This Article analyzes Article 7's 'civilian population' requirement, and argues it should be understood from the perspective of peacetime, rather than as an outgrowth of international humanitarian law (IHL). It is the first comprehensive and systematic treatment of this issue.

The Article rejects ICC Chambers' reliance upon Article 50 of Protocol I as the relevant test and instead proposes a three-part inquiry to establish whether or not an individual or population is 'civilian' in character.