Amicus Curiae Observations of Professors Robinson, deGuzman, Jalloh and Cryer

Abstract

This is an amicus curiae brief, submitted to the International Criminal Court Appeals Chamber with permission of that chamber, in the case of Prosecutor v Laurent Gbagbo. The brief raises concerns about unnecessarily stringent approaches to crimes against humanity, as was arguably shown in certain aspects of the Gbagbo Adjournment Decision. The brief argues, inter alia, that ‘multiple’ must not be conflated with ‘widespread’, that ‘policy’ must not be conflated with ‘systematic’, that a policy need not be explicit or formally adopted, and that policy can be inferred from the implausibility of the crimes being unconnected individual action. The brief offers national and international jurisprudence highlighting that ‘attack’ and ‘policy’ are not onerous thresholds. The Appeals Chamber decided not to address those issues in that appeal, which was quite plausible and appropriate given its other findings and the scope of the appeal. Happily, many of the concerns raised and solutions proposed in the brief have been addressed and reflected in subsequent ICC cases, including the Katanga trial chamber judgment and the Gbagbo confirmation decision.