130 circumstances of the case crimes against humanity did not necessarily consist of persecutory or discriminatory actions. 291. It is interesting to note that the necessity for discriminatory intent was considered but eventually rejected by the International Law Commission in its Draft Code of Offences Against the Peace and Security of Mankind. 352 Similarly, while the inclusion of a discriminatory intent was mooted in the Preparatory Committee on the Establishment of an International Criminal Court (PrepCom), 353 Article 7 of the Rome Statute embodied the drafters’ rejection of discriminatory intent. 354 292. This warrants the conclusion that customary international law, as it results from the gradual development of international instruments and national case-law into general rules, does not presuppose a discriminatory or persecutory intent for all crimes against humanity. sentencing the marines to death the members of the court-martial had inflicted an injury upon humanity as a whole. The same broad interpretation of Control Council Law No. 10 may be found, finally, in a Decision of 18 October 1949 (S. StS 309/49) in the H. case (Entscheidungen des Obersten Gerichtshofes für die Britische Zone, vol. II, pp. 231-246). There, the court dealt with a case where a German judge had presided over two trials by a naval court-martial (Bordkriegsgericht) against two officers of the German Navy, a submarine commander, charged in 1944 with criticising Hitler, and the other a lieutenant-commander of the German naval forces, charged in 1944 with procuring two foreign identity cards for himself and his wife. The Judge had voted for sentencing both officers to death (the first had been executed, while the sentence against the second had been commuted by Hitler to 10 years’ imprisonment). The Supreme Court held that the Judge could be found guilty of crimes against humanity even if he had not acted for political reasons, to the extent that his action was deliberately taken in connection with the Nazi system of violence and terror (Entscheidungen des Obersten Gerichtshofes für die Britische Zone, ibid., vol. II, pp. 233, 238). 352 See for instance ILC 1996 Draft Code of Offences Against the Peace and Security of Mankind, Report of the International Law Commission on the work of its 48th session May 6-July 26, 1996, UNGAOR 51st sess., supp. no. 10 (A/51/10), pp. 93-94. 353 While some delegates argued that a conviction for crimes against humanity required proof that the defendant was motivated by a discriminatory animus, others argued that “the inclusion of such a criterion would complicate the task of the Prosecution by significantly increasing its burden of proof in requiring evidence of this subjective element.” These delegates further argued that crimes against humanity could be committed against other groups, including intellectuals, social, cultural or political groups, and that such an element was not required under customary international law as evidenced by the Yugoslav Tribunal’s Statute. (See Summary of the Proceedings of the Preparatory Committee During the Period March 25-April 12, 1996, U.N. Doc. A/AC.249/1 (May 7, 1996), pp. 16-17). 354 Article 7(1) of the Rome Statute provides: “For the purposes of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) murder […].” Article 7(1) of the Statute of the International Criminal Court thus articulates a definition of crimes against humanity based solely upon the interplay between the mens rea of the defendant and the existence of a widespread or systematic attack directed against a civilian population. Case No.: -94-1-A 15 July 1999