인도에 반한 죄의 구성요건과 유형에 대한 고찰

An Inquiry into Elements and Types of Crimes against Humanity

This paper seeks to examine the elements and types of crimes against humanity. Unlike its predecessors such as the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, the International Criminal Court (ICC) enjoys the advantage of referring to the Elements of Crimes officially authorized by the Assembly of State Parties. As Article 9 of the ICC Statute provides, the purpose of the Elements of Crimes is to assist the court in its interpretation and application of the crimes under its jurisdiction. Drawing on the substantive law framework established by the ICC Statute, in particular article 30 thereof, and the Elements of Crimes, this paper explains the legal requirements to be proven by the ICC prosecutors in their investigation and prosecution of crimes against humanity. In so doing, its discussion centers around the concepts of material element, mental element, chapeau element and elements for each underlying act. In the next section, the paper considers the types of crimes against humanity. Firstly, after examining the scholarly discussions of the⋅murder-type⋅and the⋅persecution-type⋅ crimes against humanity, it argues that classifying crimes against humanity into the two categories of ‘individual act-type’ and ‘collective campaign-type’ would better serve the enhanced understanding of each underlying offences of crimes against humanity.