The illegal use of force (other inhumane act) as a crime against humanity : an assessment of the case for a new crime at the International Criminal Court

Ben Ferencz, the last surviving Nuremberg-era prosecutor, has recently proposed that the illegal use of force should be prosecuted not as aggression at the International Criminal Court (ICC), but instead as a crime against humanity, namely, as an other inhumane act. In his view, persons responsible for the illegal use of armed force in violation of the United Nations Charter, which unavoidably and inevitably results in large numbers of civilian deaths, should be subject to punishment for the perpetration of a crime against humanity. After identifying various gaps and loopholes associated with the ICC’s aggression definition and its associated jurisdictional provisions as per the 2010 Kampala Amendments – which may justify Ferencz’s alternative – this Chapter subjects a slightly modified version of his proposal to scrutiny. This is done in accordance with international criminal law on other inhumane acts, and in particular, in light of the ICC’s crimes against humanity jurisprudence. It concludes that although, in theory, a case can be made along the lines of Ferencz’s proposal, there exist policy and legal impediments that would likely make the recognition of a ‘new’ crime – that would be both wider and narrower in scope than aggression – unpalatable to ICC prosecutors and judges.