The Policy Underlying Crimes Against Humanity: Practical Reflections on a Theoretical Debate

This article argues that the debate concerning the theoretical characterization of the policy requirement as either an element of crime or an evidentiary relevant circumstance for crimes against humanity is deficient. Comparative case law analysis illustrates that this characterization does not fundamentally affect the position, meaning and scope of the policy underlying crimes against humanity in judicial practice. This can be explained by the “open texture” of legal rules and the factor-based character of judicial decision-making. This article aims to initiate a practical debate that evaluates the added value of a policy element on the basis of its application in individual cases.