Reimagining crimes against humanity : confronting impunity for crimes against migrants in peacetime under article 7 of the Rome statute

Abstract

For over a decade, scholars and civil society actors have argued that violations of migrants’ rights at the borders of, and within, several states of the so-called Global North amount to crimes against humanity under Article 7 of the Rome Statute. Yet, impunity persists, and border violence continues. This thesis critically examines how the legal framework of crimes against humanity can and should respond to the widespread, systematic violence targeting migrants in peacetime. It explores why the International Criminal Court (ICC) has failed to sufficiently engage with such cases, and argues that a combination of historical misinterpretations, structural impunity, and doctrinal gaps has hindered criminal accountability. It then proposes a strategy to overcome barriers to prosecution. A key normative contribution of the thesis is its call to reimagine crimes against humanity. It proposes interpreting Article 7 through the lens of its desired law (lex desiderata) rooted in the pre-1945 vision of universal civilian protection unrestrained by the wartime nexus. This reinterpretation seeks to restore the broader, morally grounded scope originally envisioned for crimes against humanity and to reassert its relevance in peacetime contexts, particularly its potential application to migration governance. This thesis introduces a novel interdisciplinary methodology by applying conceptual frameworks from Peace and Conflict Studies (PCS) to reinterpret crimes against humanity under International Criminal Law (ICL). This interdisciplinary inquiry takes a unique perspective on the crimes’ structural and state policy dimensions, reassessing the scope of Article 7. This PCS-informed lens on violence under Article 7 provides tools to understand crimes against humanity as the norm that criminalises structural violence in legal terms and thereby bridges the gap between the disciplines. Integrating PCS into ICL further enables the reconceptualisation of the so-called ‘migration-crisis’ as a protracted, structural conflict, triggering international legal scrutiny. Drawing on the combined normative and methodological insights, this thesis develops two practical approaches designed to support prosecutorial action by the Office of the Prosecutor (OTP) at the ICC. These approaches aim to overcome legal and operational barriers to prosecution by clarifying the applicability of Article 7 to peacetime contexts and addressing the role of passive state policies and structural impunity in sustaining such violence. The concept of crimes against humanity possesses significant potential for protecting civilians from state or organisational abuse of power at all times. Realising the concept’s full capacity allows it to fulfil its desired scope as a universal legal code ensuring protection during armed conflict and in peacetime, irrespective of the civilians’ nationality or any other characteristic. The findings of this study, although derived from the phenomenon of migration, aim to refine the broader understanding of crimes against humanity and contribute to confronting impunity in all peacetime contexts. By applying an original normative perspective and unique interpretative lens grounded in PCS, this study makes a substantive contribution to the doctrinal development of ICL.