TY - JOUR

T1 - No Crimes Against Humanity During the Maydan Protests in Ukraine? Or the ICC Prosecutor’s Flawed Interpretation of Crimes Against Humanity?

AU - Marchuk, Iryna

PY - 2017

Y1 - 2017

N2 - The Article takes a fresh look at the definition of crimes against humanity and its applicability in the International Criminal Court (“ICC”) by analyzing the ICC Prosecutor’s decision not to proceed with the investigation of the Maydan crimes in Ukraine, based on her evaluation of the “widespread or systematic” requirement. It argues that the ICC Prosecutor did not correctly apply the systematic requirement of crimes against humanity to the factual circumstances surrounding the Maydan events that were supportive of the requirement. The ICC Prosecutor’s finding appears to stem from the lack of clarity in International Criminal Law as to how the systematic requirement is applied on a stand-alone basis as well as how it interacts with the policy element. By deciding not to forward with the investigation into the situation of Ukraine, the ICC Prosecutor denied the judges an opportunity to decide whether the Maydan crimes would satisfy the systematic requirement of crimes against humanity despite its earlier finding on the existence of a State policy, which serves as an important indicator of the systematic requirement. This Article criticizes the ICC Prosecutor’s overly narrow approach towards the interpretation of a “widespread or systematic” attack in the context of crimes against humanity and analyzes implications the prosecutorial discretion of not requesting the authorization of the investigation in Ukraine may have for the future direction of the Court with respect to the interpretation of crimes against humanity.

AB - The Article takes a fresh look at the definition of crimes against humanity and its applicability in the International Criminal Court (“ICC”) by analyzing the ICC Prosecutor’s decision not to proceed with the investigation of the Maydan crimes in Ukraine, based on her evaluation of the “widespread or systematic” requirement. It argues that the ICC Prosecutor did not correctly apply the systematic requirement of crimes against humanity to the factual circumstances surrounding the Maydan events that were supportive of the requirement. The ICC Prosecutor’s finding appears to stem from the lack of clarity in International Criminal Law as to how the systematic requirement is applied on a stand-alone basis as well as how it interacts with the policy element. By deciding not to forward with the investigation into the situation of Ukraine, the ICC Prosecutor denied the judges an opportunity to decide whether the Maydan crimes would satisfy the systematic requirement of crimes against humanity despite its earlier finding on the existence of a State policy, which serves as an important indicator of the systematic requirement. This Article criticizes the ICC Prosecutor’s overly narrow approach towards the interpretation of a “widespread or systematic” attack in the context of crimes against humanity and analyzes implications the prosecutorial discretion of not requesting the authorization of the investigation in Ukraine may have for the future direction of the Court with respect to the interpretation of crimes against humanity.

M3 - Journal article

VL - 35

SP - 39

EP - 68

JO - Boston University International Law Journal

JF - Boston University International Law Journal

SN - 0737-8947

IS - 1

ER -