Norway's own domestic legislation may be sufficiently large that such acts are covered. To the extent that it is drawn from international law sources, the issue will be the source.
If the Norwegian legislation follows the text of the Rome Statute, it would seem unlikely that the recent atrocities fit within the definition. Not only does article 7 of the Rome Statute require that the crimes be part of a 'widespread or systematic attack on a civilian population', the attack must be 'pursuant to a state or organizational plan or policy'.
It might be argued that Breivik was acting pursuant to the plan of some organization. That, in turn, raises the issue of the nature of the organization. Last year, a Pre-Trial Chamber of the International Criminal Court divided on this issue. The majority interpreted the concept broadly enough so that it could encompass the post-electoral violence in Kenya. In dissent, Judge Hans-Peter Kaul reviewed the historical sources and held that the 'organization' in question must be affiliated with a State or State-like entity.
If the Norwegian legislation departs from the text of the Rome Statute and has no reference to State or organizational policy, the issue will remain as to whether the State or organizational plan or policy is a requirement that is implied within the general notion of crimes against humanity. The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia has said that it is not. See Kunarac, para. 98, fn. 114.
But the discussion of this issue by the Appeals Chamber in Kunarac is decidedly unsatisfactory. It lists several sources that it says support such a conclusion. But on examination, these sources do not bear out the interpretation given by the Appeals Chamber. For example there is an inaccurate reference to the International Law Commission report of 1954. The Appeals Chamber said it provided support for the exclusion of a policy component. In fact, after lengthy consideration, the Commission decided to include such an element. The Chamber also invokes an Australian precedent. But the Australian precedent does nothing more than cite an academic journal article published in 1946 that apparently explains the fallacy of a judgment issued in 1948. I don't know how that could happen.
In my opinion, the better view is that crimes against humanity under general international law should be applied in a manner consistent with the Rome Statute, rather than in the broader approach taken by the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia. In other words, unless the Norwegian legislation expressly rejects the policy element, which seems unlikely, then Norway's judges should read this into the definition.
Such a result is likely to disappoint some, who will be excited at the idea that an insane, neo-fascist terrorist is being prosecuted for crimes against humanity. And I'll not be surprised if someone writes me in the next day or two asking if it might be genocide. After all, the perpetrator seems to have been intending to destroy his political opponents. Last week, in Buenos Aires, I heard a judge explain that genocide was really meant to encompass political groups as well as national, ethnic, racial and religious groups, and for that reason he had issued a ruling that condemned torturers in the Argentinian military for genocide. As a fallback argument, weren't all of the victims Norwegian? So he was trying to destroy a national group 'in part'.
But as explained above, rather than search for technical literal interpretations that generate extravagant results, we are better to interpret the definitions of international crimes in their context, and with an eye to their origins. Above all, we should consider the purpose of international criminalization.
A good test in this respect is to question whether there will be impunity. When crimes are committed as a result of state policy, generally there is impunity, and for obvious reasons, unless there has been a change in regime. Of course, crimes like those perpetrated in Norway will certainly not go unpunished. There will be no need for universal jurisdiction, or international tribunals, or truth commissions, or labels like jus cogens and erga omnes, or joint criminal enterprise or co-perpetration. They are multiple murders and I am sure that the perpetrator will go to jail for a very long time. Unless of course he is deemed to be insane, which is not entirely improbable. In that case, he'll be put in secure confinement until he has recovered. Justice will be done, and without the need for international law. My advice to the Norwegian prosecutor would be to stick to the ordinary criminal code, which has everything that is needed to deal with this tragic situation.
Thanks to Evelyne Schmid.