CRIMES AGAINST HUMANITY

The notion of Crimes against Humanity inter alia has been emerged as one of the rapidly developing subject of International criminal law during the 20th century. The concept has taken attention of the international community after commission of widespread inhuman acts during and after two world wars. The crime against humanity emerged as a dynamic field within International Criminal Law. Post World War II, national and International developments has crystallized the contents of this very subject of International Criminal law and created very suitable ground for a common understanding regarding the notion of Crimes against humanity. Only after the systematic elimination of different ethnic and religious populations during the World War II, International community have bee successful to categorize international crimes into different categories to ensure the punishment of the perpetrators. Traditionally crimes against humanity considered as one of the part of war crimes. Although the concept of crimes against humanity have been considered as one of the separate categories of the International criminal law since very beginning of the 20th century, it was the post World War II arrangements divorced war crimes and crimes against humanity. However even within the separate category, there are still ambiguities in the definition and the content of the crimes against humanity. These ambiguities in defining concepts, on the other hand, create handicaps for the universal application of law regarding the Crimes against humanity. This essay after analysing the basic foundations and the historical developments of the concept will put forward current uncertainty in this one of the most important institution of International Criminal Law.

INTERNATIONAL CRIMES & UNIVERSALITY PRINCIPLE

International crimes are those crimes regarded as committed against whole international community by which every state has jurisdiction over its perpetrator. Although it is a simple and a very short definition of international crime, it can illustrate the importance of the international crimes under international law. It can be claimed that existence of rules about international crimes under international law gives us an idea about two important characteristics of international law; its scope and its direct applicability. Firstly international rules and norms governing international crimes can be accepted as a sign of universality of international law. Those crimes can be punished by international tribunals and by any state.   Because it is the violation of norms and rules which are vitally important for international community, such violations are universally prohibited by international law and international community has universal jurisdiction over such crimes regardless the authors’ nationality or territory link. Secondly it imposes international criminal responsibility upon individuals. The Nuremberg tribunal explicitly indicated “crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can be the provision of international law enforced.”[1] Furthermore obligations about international crimes also limit the sovereignty of states by banning authors’ of international crimes to claim their immunity from the jurisdiction of international tribunals and other states.  From this perspective the one of the unique example of the Universal dimension and application of International law is the very institution of international criminal law. Universality principle concerns states’ jurisdiction over such international crimes. Shortly obligations about international crimes illustrate the universal dimension of international law by enabling “[a] person to be tried in the national courts of a state for a crime committed outside that state, even where there is no link between the state and the alleged offender such as nationality of the accused or of the victim of the crime.”[2]

CRIMES AGAINST HUMANITY

Inhuman acts toward the civilian population have long been considered within the scope of International law. Developments just after the World War II illustrated the very tendency toward Universal jurisdiction of International Crimes.

The Rome statute of International criminal court listed international crimes in three major categories as the crime of genocide, crimes against humanity and war crimes.[3] For the purpose of this paper, only the controversial nature of crimes against humanity will be dealt.

The question regarding to which types of crimes are exactly considered as the crimes against humanity can be answered only analysing the statues of the International criminal courts. At the Nuremberg Tribunal the crimes against Humanity is defined as;

“namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.”[4]

The ICTY and ICTR also provided some similar definitions with the inclusion of acts as murder, extermination, enslavement, deportation, imprisonment, torture, rape, persecutions on political, racial and religious grounds and other inhumane acts within their statutes.[5] Additionally in the Rome statute provided more detailed definition for the crimes against humanity with the inclusion of enforced disappearance of persons and the crime of apartheid.[6] Additionally list of crimes have been expanded by the further inclusion of gender based persecution as “sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence of comparable gravity”. [7]

The above mentioned acts are considered as a crime with the satisfaction of some necessary conditions. For example in the article 5 of ICTY statute, for the existence of crime against humanity; crime should be ‘committed in armed conflict, whether international or internal in character, and directed against any civilian population.’[8]Additionally according to the statute of the ICTR crime must ‘committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds.’[9] Similarly article 7 of the Rome statute sets such conditions as; crime constitutes crime against humanity ‘when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.’[10]

DEVELOPMENT OF CRIME AGAINST HUMANITY AS A DIFFERENT CATEGORY OF INTERNATIONAL CRIME

This notion before the adoption of UN charter considered as the inhumane acts against minorities. 1899 and 1907 Hague conventions for the first time evaluated the notion within the war crimes. The preamble of the 1907 Hague Convention provided that;

“[t]he inhabitants and the belligerents shall remain under the protection of and subject to the principles of the law of nations, as established by the usages prevailing among civilized peoples, by the laws of humanity, and by the demands of public conscience.”[11] [Emphasis added.]

This phrasing is in fact continuance and slightly modified version of the so called Martens clause in the preamble of 1989 Hague Convention on “Laws and Customs of War on Land.”[12] Although after the World War I, there had been some initiatives for the punishment of perpetrators of such crime[13], these efforts were not be successful until the Nuremberg Tribunal.  Before the Second World War, it is difficult to find a common definition to the crimes against humanity. The term firstly on 28 May 1915 has found its place within the joint declaration for so-called Armenian Genocide.[14] Although within this declaration the crimes against humanity considered as different area other than war crimes, the joint declaration on the crimes against civilisation and humanity, never been part of peace treaties after the World War I. Just after the World War I, Preliminary Peace Conference
1919 Commission established for the investigation of the responsibilities of the authors of the war. Commission proposed establishment of a high tribunal for the punishment of offences against “laws and customs of war” and “laws and principles of humanity”[15]. However two US members of the commission, Robert Lansing and James Scott, rejected the proposal for the punishment of the crimes against humanity on the grounds of such inclusion would be an [u]nacceptable departure from law and a venture into morality.’[16]  This development often considered as a missing opportunity and a way of sacrificing justice for the politics by some authors.[17] However at the Nuremberg the Crimes of Humanity has placed as another category of International criminal law. Thus it was the first time in the Statute of the Nuremberg tribunal, the notion of Crimes against humanity attempted to be defined in a proper and concise way. It is first international legal document that has a definition of crimes against Humanity.  Nuremberg tribunal discussed the crimes against humanity within two categories; first the crimes committed against to the civilian population and the second one political, religious and racist foundations of the crime. Similarly the Tokyo tribunal also handle such cases within the same categories. However such efforts to define Crimes against humanity during the International criminal Tribunals established after the Second World War couldn’t find an exact dividing line between the war crimes and crimes against humanity. Although IMT charter freed the crimes against humanity from the very scope of the war crimes, it is still ambiguous if the crimes against humanity are in reality seen as a different category. At this point Georg Schwarzenberger convincingly recognizes the overlaps between the war crimes and crimes against humanity whereas he demonstrated the intention of the authors of the IMT charter in applying crimes against humanity in conjunction with the wartime crimes.[18] In deed non-applicability of the article 6(c) to the crimes committed before the 1939 is another illustrator of this fact.[19] Thus post world war adoption of the crimes against humanity as an extended version of war crimes to prevent Nazis to escape from punishments. The very dividing line between the war crimes and the crimes against Humanity is then, while the former one is considered as a crime when committed against to the nationals in another country, the latter one committed against to the civilians in the same country with the perpetrators.[20]  The international developments in post Nuremberg period especially after the post cold war, in the terms of increasing importance given to the moral values and human rights by international community, no doubt, has very positive effect in the developing of norms on the crimes against humanity. Establishment of International Criminal Tribunal for the former Yugoslavia and Rwanda (ICTY and ICTR) and establishment International criminal court with the adoption of Rome statute at 1998, strengthened the international criminal law. However ambiguity in the definition of Crimes against humanity could not overcame. In the next part of the paper, this ambiguity will be analysed.

DIFFERENT APPROACHES IN DEFINING CRIMES AGAINST HUMANITY

Although post Nuremberg developments are major turning points in the development on the rules and norms regarding crimes against humanity, such developments, nevertheless did not prevented traditional ambiguity in the definition of crimes against humanity. The very problem in defining the very concept of Crime against humanity is inherited in the wide interpretation of the term. That is the term already and inevitably includes overlapping elements of war crimes and genocide. Such ambiguity is seen in the statues of the International criminal courts in the definition of crime against humanity.  The most specific difference between the statutes of ICTY and ICTR regarding the nature of crimes against humanity is on its relatedness with the armed conflicts. According to article 6 (c) of the Nuremberg Statute, the jurisdiction of the tribunal is limited to those crimes committed ‘during or before the War. ’[21] The statute of the ICTY has limited its jurisdiction to those crimes against humanity when committed in armed conflict.[22] As also mentioned above both ICTR and ICC do not have such limitation in their statues. The question of connectedness of the armed conflict and the crimes against Humanity is actually originated [i]n both IMT Charter and the traditional tendency of states to focus upon human rights abuses during armed conflict.’[23] At this point Ratner and Abrams clearly indicated that IMT refused to characterise the pre-1939 acts as per se crimes against Humanity.[24] However statutes of both ICC and ICTR do not provide any clue for the connectedness of the armed conflict and the crimes against humanity. In other word, the existence of an armed conflict is neither necessary nor a sufficient condition for the existence of crimes against humanity.

One another difference in the statues of International Criminal Courts is between the statues of ICTR and ICTY. In the former statue while the crimes against humanity is conditioned to those ‘[c]rimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds’[25], there is no such conditions within the statue of the ICTY. Moreover the condition of widespread or systematic attack is also can be seen within the statue of the statute of ICC.

DEFINING CRIMES AGAINST HUMANITY

By considering these three differences on the statues regarding the Crimes against humanity, for an act to be considered as a crime against crime against humanity an act should have the following conditions.

  1. It should involve a widespread or systematic attack
  2. Civilian population should be targeted

 “Systematic or widespread attack” is one other condition for the existence of the crime against humanity. At this point Chesterman pointed out that ‘widespread refers to number of victims, whereas systematic refers to existence of a policy or plan.’[26] Thus the crimes against humanity is differentiated from the coincidence but only can be considered within the intentional acts. On the other hand widespread act put a numeric threshold for the existence of crimes against humanity.  Ratner and Abrams convincingly argues that;

“The notion that a crime against humanity must be committed against a population has generally interpreted as the qualifying nature of the atrocities in one of tow ways; either in terms of their scale-namely that they be against a large number of civilians; or alternatively, in terms of their method- namely, they be committed in a planned, systematic manner insofar as they are directed against a specific population   and not merely random population.”[27]

A very clear definition of systematic and widespread given in the Prosecutor vs. Jean-Paul Akayesu judgement of ICTR as;

“The concept of widespread’ may be defined as massive, frequent, large scale action, carried out collectively with considerable seriousness and directed against a multiplicity of victims. The concept of systematic’ may be defined as thoroughly organised and following a regular pattern on the basis of a common policy involving substantial public or private resources. There is no requirement that this policy must be adopted formally as the policy of a state.”[28]

The term attack, on the other hand, has been approached differently in the statutes of ICTR and ICTY. Within the statue of ICTY attack is connected with the armed conflict, on the other hand in the statue of the ICTR, as also mentioned above, there is no such connection. However the most interesting approach to this term is developed with the adoption of Rome Statute. Article 7(2)(a) of the Statute reads that;

“Attack directed against any civilian population” means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.”[29] (Emphasise added)

At this point there must be multiple acts however as Margaret Guzman asks, it is unclear that whether this act refers to [s]ingle act of denoting a nuclear bomb that kills thousands would not be considered “multiple acts?” Or would each resulting murder be considered an “act?”.[30]

Moreover in order to speak about existence of crime against humanity, such crime should be committed against civilian population. This condition although in different formats finds its very existence in all the statutes. Chesterman at this point puts forward ‘the inclusion of the word “civilians” reflects the origins of the expression crimes against humanity’[31] However although one can not actually imagine the crime against humanity committed against to the combatants, the inclusion of ’civilian’ does not actually clarify the definition.[32] From this perspective Chesterman goes to categorise the term of civilian into the different categories in the International Humanitarian law by referring additional protocols of Geneva Convention. Accordingly the civilian in the context of international armed conflict refers to “[a] person who is not member of the armed forces of any party to the conflict”[33]. In the context of non-international armed conflict, civilian refers to “[a] person who is not taking a direct part or ceased to take part in hostilities”.[34] It is seen that in the Kayishema case the Rwanda Tribunal has been provided that “Non-civilians would include, for example, members of the FAR, the RPF, the police and the Gendarmerie Nationale”[35] Thus in any case, even there is no armed conflict, by relying on the definition of the civilians, other forces else than a state’s armed forces such as paramilitary forces or police are excluded from the definition of crimes against humanity. In regard to civilian, statutes of the ICTR and ICTY have terminological differences. Whereas the statute of ICTY refers to civilian population, in the wording of the statute of the ICTR, there is no such condition. Clearly inclusion of population puts some numeric threshold to the crime. Whereas in conjunction with the widespread attack, the population refers to large scale of victims, it is sure it does not refer to entire population. This fact is underlined in the Tadic decision of the ICTY when the court stated that;

“The requirement that the prohibited acts must be directed against a civilian “population” does not mean that the entire population of a given State or territory must be victimised by these acts in order for the acts to constitute a crime against humanity. Instead the “population” element is intended to imply crimes of a collective nature and thus excludes single or isolated acts which, although possibly constituting crimes under national penal legislation, do not rise to the level of crimes against humanity.”[36]

At the last point there is one more diversity in the definition of crime against humanity. Is there any requirement for the discrimination on the national, political, ethnic, racial or religious grounds? For instance while ICTY statute, for the existence of crime against humanity; there is no explicit language for the discrimination, the statute of the ICTR crime requires that a  ‘committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds.’[37] Article 7 of the Rome statute, on the other hand implies the importance of intention by referring “with knowledge of the attack.’[38] Within this ambiguity, especially with the existence of an explicit wording of ICTR, limiting a massive attack to the discriminatory grounds may not actually address the moral grounds for the existence of crimes against humanity. At this point Margaret Guzman convincingly catches that;

“Under this definition (definition in the ICTR statute) widespread or systematic persecutions based on such characteristics as age, class, disability, sexual preference or social or cultural status remain outs the scope of crimes against humanity”[39]

It may be claimed that the notion of Crimes against humanity is developing concept within the flexible boundaries. After its first introduction in the Hague convention, such concept gained importance during the pre WWII period and applied as a different type of international crime during the Nuremberg Tribunal. Today the Crime against Humanity finds its very place as a different type of International crime in the statutes of the leading international criminal tribunals.  Although the notion of crimes against humanity does not have a common definition within the legal documents, the common point in all these documents is the attribution of enumerated crimes as crimes against humanity when they are committed systematically and in a widespread way against civilian population due to some political, ethnic, religious or racist differences.  However lack of a common definition regarding the content and the scope of the crime against humanity and its ambiguous dividing line with the war crimes, provides handicaps in the universal application of international criminal law on the crimes against humanity.

[1] Nazi Conspiracy and Aggression, Judgement of the Nuremberg International Military Tribunal, 1

October 1946, Trial, Vol. I. P. 41-42

[2] Chatham House, Universal Jurisdiction for International Crimes, A Summary of the Chatham House International Law Discussion Group, meeting held on 9 October 2008. Available at < http://www.chathamhouse.org.uk/files/12483_il091008.pdf> accessed on 10 Jan. 2009

[3] Article 5, Rome Statute of International Criminal court, Available at <http://www.icc-cpi.int/library/about/officialjournal/Rome_Statute_120704-EN.pdf> accessed on 10 January 2009. The statute lists further crime of aggression. However because of lack of common agreement on the definition of aggression, there is currently no impact of such crime.

[4] Charter of the International Military Tribunal, Available at http://avalon.law.yale.edu/imt/imtconst.asp accessed on 10 January 2009

[5] Article 5 , Statute of International Criminal Tribunal for the Former Yugoslavia. September 2008. Available at  <http://www.icty.org/sid/135> accessed on 10 January 2009, Article 7, Statute of International Criminal Tribunal for the Former Yugoslavia. September 2008. Available at  <http://www.icty.org/sid/135> accessed on 10 January 2009

[6] Supra Note 3. Article 7

[7] Ibid.

[8] Article 5, Statute of International Criminal Tribunal for the Former Yugoslavia. September 2008. Available at  <http://www.icty.org/sid/135> accessed on 10 January 2009

[9] Article 3, Statute of International Criminal Tribunal for Ruwanda. Available at  < http://69.94.11.53/ENGLISH/basicdocs/statute/2007.pdf > accessed on 10 January 2009

[10] Supra Note 3. Article 7

[11] 1907 Hague Convention, Laws and Customs of War on Land, October 18, 1907. 1899 Hague convention was  also including a similar phrasing. Bassiouni, M. Cherif. Crimes against Humanity in International Law, 2d ed. The Hague, London, and Boston: Kluwer Law International, 1999. P.61

[12] 1899 Hague Convention, Laws and Customs of War on Land, July 29, 1899

[13] Supra Note 11.  P.61

[14] France, Great Britain and Russia made a declaration, on 28 May 1915, denouncing them as “crimes against humanity and civilization” for which all the members of the Turkish Government would be held responsible, together with its agents implicated in the massacres. See Supra Note 11. pp. 62-63

[15] William A. Schabas United States Hostility to the International Criminal Court: It’s All About the Security Council, European Journal of International Law 2004 15(4):701-720; p.705

[16] Ibid.

[17] Supra Note 11. PP.62-67

[18] Schwarzenberger’s main concern was on the phrase of “before or during the war” in the article 6(c) of the Charter. See  Supta Note 11. P. 77

[19] Supra Note 11. P. 78, Ginsburg, George & V. N. Kudriavtsev (eds.), The Nuremberg Trial and International Law Dordrecht: Nijhoff, 1990. P. 198

[20] Supra Note 11. P. 86

[21] Supra Note 4.

[22] Supra Note 5. Article 5.

[23] Ratner, Steven R. and Jason S. Abrams. Accountability for Human Rights Atrocities in International

Law: Beyond the Nuremberg Legacy. New York: Oxford University Press, 2nd ed., 2001. p.50

[24] Ibid. P.51

[25] Supra Note 5 Article 7

[26] Chesterman, Simon,An Altogether Different Order: Defining the Elements of Crimes Against Humanity. Duke Journal of Comparative & International Law, Vol. 10, No. 2, Spring/Summer 2000. p. 315

[27] Supra Note 23

[28] The Prosecutor v. Akayesu, Case No. ICTR-96-4-T, 2 September 1998.

[29] Supra Note 3

[30] DeGuzman, Margaret M.,The Road from Rome: The Developing Law of Crimes against Humanity(May 01, 2000). Human Rights Quarterly, Vol. 22, No. 335, 2000. p. 365

[31] Supra Note 26 P. 322

[32] Supra Note 30. P.361

[33] Protocol Additional to the Geneva Conventions of Aug. 12, 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature June 8, 1977. See also Supra Note 26. P.324

[34] Protocol Additional to the Geneva Conventions of Aug. 12, 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature June 8, 1977. See also Supra Note 26. P.324

[35] Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Para. [127]

[36] Prosecutor v. Tadic, No. IT-94-1-T, Para 644

[37] Supra Note 5. Article 3

[38] Supra Note 3

[39] Supra Note 30. p.368

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