State policy as an element of international crimes

Schabas, William A. ORCID: https://orcid.org/0000-0002-7462-4284 (2008) State policy as an element of international crimes. Journal of criminal law and criminology, 98 (3) . pp. 953-982. ISSN 0091-4169 [Article]

Abstract

Recent case law of the international criminal tribunals has tended to focus on the individual mental element of offenders, and dismissed any relevance for State policy as a component of the analysis. It is posited that an individual deviant, acting alone, can commit genocide or crimes against humanity, to the extent that he or she aspires to destroy an ethnic group or
to persecute civilians in a widespread or systematic manner. This has led to a distortion in the law, partially explained by a focus on low-level perpetrators in early trials of the International Criminal Tribunal for the former Yugoslavia, but also by mistaken analysis of previous authority. This Article argues for revival of state policy as an element of such crimes.

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