State or organizational policy as a necessary element for qualifying crimes against humanity in international criminal law

During the entire time of the full-scale Russian invasion of Ukraine, which began on February 24, 2022, more than 170,000 war crimes committed by the Russian army were recorded, a significant number of which were directed against civilians. Among these crimes are those that also fall under the characteristics of crimes against humanity provided for in Article 7 of the Rome Statute of the International Criminal Court. In connection with the above circumstances, the need for a detailed study of the specific features of crimes against humanity, the disclosure of the essence of their necessary elements, one of which is the requirement of the existence of the policy of a state or organization, becomes extremely relevant for the modern science of international law. The article provides a comprehensive study of legal approaches to understanding the concept of state or organization policy as a necessary element for the qualification of crimes against humanity. In particular, the differences in the views of scientists regarding the interpretation of the policy element in illegal acts against the civilian population are analyzed. It has been established that one group of scientists considers the policy of the state or organization to be an independent and necessary element of crimes against humanity, which helps to distinguish the latter from isolated and isolated acts of violence, which are covered by the internal criminal legislation of states. Another group of scholars offers a different approach from the first to understanding the element of politics, noting that the politics of a state or organization is not an independent element of crimes against humanity, but rather serves as an evidentiary factor for establishing the systematicity and wide-ranging nature of a criminal act. In addition, the article pays special attention to the analysis of the judicial practice of ad hoc tribunals, in particular the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Tribunal for Rwanda (ICTR), as well as the International Criminal Court (ICC) regarding the interpretation of the concept of «policy of the state or organization». The ambiguity and contradiction of the approaches of judicial bodies to solving this issue is emphasized. It is clarified that the policy of the state or organization does not necessarily have to be directly and clearly formulated, but can be established according to a set of factual circumstances. An equally important issue explored in the article is the role of non-State actors in the commission of crimes against humanity. It has been established that there is no single approach to solving this problem among the scientific community and in judicial practice. Two alternative approaches to the above issue are proposed. The first is that any non-State actors may be considered a «organization» within the meaning of article 7 (2) (a) of the Rome Statute, and the second approach provides that only actors who are affiliated with the State may be considered a «organization» and be responsible for the commission of crimes against humanity. It is concluded that there is an urgent need to form a coherent approach to understanding the policy element of a state or organization in order to ensure the correct qualification of crimes against humanity and, accordingly, increase the effectiveness of international criminal justice.