论《罗马规约》规定的危害人类罪的前提要件

On the Contextual Elements of Crimes Against Humanity Stipulated in the Rome Statute

“广泛或有系统地对平民人口实施攻击”是危害人类罪成立的前提要件。所谓“广泛”,应从攻击行为的规模和受害人的数量两个方面来界定;所谓“有系统”,只要揭示出其“组织性”的特征即可,不能包含“政策”的要素;界定“对平民人口的攻击”时,应注意攻击与政策的关联性和攻击的持续性。在确定受害者是否为平民时,必须考虑犯罪实行时该人所处的特定境遇,而不仅仅是其身份。《罗马规约》删去了危害人类罪定义中的“武装冲突”要件,这实际上是降低了归属于国际刑事法院管辖的核心犯罪的入罪门槛,显然违背了国际刑事法院成立的宗旨,进而为粗暴地干涉一国主权留下隐患。

The phrase ＂broadly or systematic attack directed against a civilian population＂ is the contextual dement of crime against humanity. ＂Broadly＂ shall be defined from two aspects： the scale of attack and the number of victims. As far as the word ＂systematic＂ concerned, it is enough to reveal its feature ＂organized＂, including not element of ＂policy.＂ In defining the words ＂attack directed against a civilian population＂, we shall pay attention to the relationship between attack and policy as well as the continuity of attack. As for whether victims are civilian, we shall consider the specific situation the person is in at the time of crime, rather than merely his status. When Rome Statute deletes ＂armed conflict＂ from definition of crime ,against humanity, thereby practically reducing the criminalizing threshold of the crime fallen within the jurisdiction of the International Criminal Court, it obviously deviates from the mission of ICC and leaves a hidden trouble for wantonly interfering with a country＇s sovereignty.