This article is written by Neha Dahiya, a law student at Dr. B.R. Ambedkar National Law University, Sonipat. This article explains the origin, essentials, and various statutes related to crimes against humanity. It also seeks to distinguish between war crimes and crimes against humanity.
It has been published by Rachit Garg.
Table of Contents
Introduction
Crimes against humanity broadly consist of those crimes which are grave in nature that take away human dignity and are committed in the context of a large-scale systematic attack on a particular group or community. From time immemorial, such crimes have been usual in wars and battles when the only motive was to win, regardless of the cost. However, WWII revealed the ghastly nature of such crimes that can degrade a person to the level of a sub-human, taking away his liberties, dignity, and all other fundamental rights. This, along with the emerging concern for human rights protection provided a fertile ground for crimes against humanity to be recognised and regulated by proper laws.
Origin of crimes against humanity
Punishing Napoleon after the Battle of Waterloo
It was after the capture of Napoleon in the Battle of Waterloo in 1815 that the international community for the first time took the initiative to condemn a leader for what could be called ‘Crimes against peace or humanity.’ Originally, Napoleon was outlawed by the Congress of Vienna for having invaded France. However, he escaped from the island where he had retired and re-entered France with an armed force. The Congress of Vienna declared that by doing this Napoleon had put himself out of “civil and social relations and that as enemy and perturbator of the world, he had incurred liability to public vengeance.”
American civil war
In order to curb the crimes being committed against humanity during wars, the first attempt was made to introduce a comprehensive code for the conduct of armies in the field called the Lieber Code of 1863. Promulgated by President Abraham Lincoln during the American Civil War, the code prescribed certain duties of a commander to prevent unnecessary atrocities. However, these regulations were not binding on them.
Brussels Protocol of 1874
The European power also realised the importance of having a code of conduct so that no grave crimes were committed against humanity during wars. It decided to bring the Brussels Protocol in 1874. It was a result of the conference convened by Czar Alexander II of Russia. Its preamble declared “that the progress of civilisation should have the effect of alleviating the calamities of war.” Also, the Institute of international law at Oxford was given the task of preparing the ‘Manual on the Laws of War on Land’.
World War I
During the First World War, the parties involved in the fight used the laws and customs of war to try and punish the members of enemy forces who were captured. The treaty entered into after the war did not talk of mere crimes against international law, but “supreme offence against international morality and the sanctity of treaties.” It indicated the ‘war’ itself was a crime. The Allies stated that “the war is the greatest crime against humanity and the freedom of peoples that any nation calling itself civilised has ever consciously committed. It is a crime committed deliberately against the life and liberties of the people.”
World War II
World War II shook the entire world. The atrocities committed in the Nazi Regime were unspeakable and they sparked international concern about the crimes against humanity. The world felt an urgent need to address this issue. Thus came the Nuremberg Charter which for the first time formally defined what constituted ‘crimes against humanity.’
Defining crimes against humanity
International Criminal Court and the Roman Statute
The UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court adopted the Rome Statute of the International Criminal Court on 17 July 1998. The Statute outlined the jurisdiction of the ICC over crimes against humanity. The Rome conference was instrumental in establishing a universally accepted definition of such crimes.
Article VII of the Rome statute defines ‘crimes against humanity as containing few acts that when committed as a part of a widespread or systematic attack targets a civilian population. Thus, such crimes need not be perpetrated during a war, but also during peacetime like a genocide.
Elements of crimes against humanity
As per Article VII of the Rome Statute, there are three main elements of crimes against humanity. They are:
- Physical element- The definition provides a list of physical acts that can be categorised as crimes against humanity. They are:
- Murder;
- Extermination;
- Enslavement;
- Deportation or forcible transfer of population;
- Imprisonment or any other form of severe deprivation of physical liberty that violates the fundamentals of international law;
- Torture;
- Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence of comparable gravity;
- Persecution (on political, national, racial, cultural, religious, gender, or any other universally recognised grounds);
- Enforced disappearance of persons;
- Apartheid;
- Other similar inhumane acts causing great suffering or injury to the body, or to mental or physical health.
2. Contextual element- These acts must be committed in the context of a widespread or systematic attack against any civilian population.
3. Mental element- The perpetrator must commit these acts with the knowledge of the attack on the particular group and that his act/action is a part of that attack.
Lacunas in the definition of crimes against humanity given by the Roman Statute
- The perpetrator must act with the knowledge of the attack. But here the elements of specific intent and mens rea have not been clarified. It is not clear whether these crimes require a specific intent
- It is also not certain whether these crimes should involve a policy element as including the policy element can affect the court’s jurisdiction. Also, the difference between ‘policy’ and ‘systematic attack’, if any, has not been included.
- The attack is supposed to be targeted against a specific civilian population. But what categories together constitute the ‘civilian population’ is not clear.
Salient features of the notion of crimes against humanity
David Luban, in his article ‘A Theory of Crimes Against Humanity’, published in the Yale Journal of International Law, outlined four salient features of the notion of crimes against humanity. They are as follows:
- Particularly odious offences- The offences that can be categorised as crimes against humanity are usually so barbarous that they violate the human dignity of the victims. For example, the concentration camps in the Nazi regime kept the Jews under abysmal conditions with no proper facilities for sanitation, food, or water. They were forced into gas chambers in herds and killed mercilessly. In such conditions, they were stripped of their identity as humans and were made to live like sub-humans. Thus, these crimes can be called crimes against humanity.
- International crimes- These crimes transcend the borders and no longer remain the concern of the domestic community only. They trigger international conventions and thus permit the international community to forgo the concept of the sovereignty of individual states. As is often repeated, “injustice anywhere is a threat to justice everywhere.”
- Policy element- These crimes are most often committed, abetted, or at least tolerated by the state, a de facto authority, or a politically organised group. In most cases, the ruling authorities commit such crimes under the pretext of protecting the national interests of the majority population, inflicting suffering on the minority.
- Collective element- In such crimes, people are attacked not in their individual capacity. Rather, they are targeted by the virtue of being a member of a particular group or community. Individual crimes rarely form a part of crimes against humanity. It is usually a particular race, ethnic group, nationality, or religion that is targeted.
Main approaches to study crimes against humanity
Orthodox view
As per the orthodox view, the collective and policy element of the crimes is what distinguishes them from other crimes. This is what makes these crimes serious and particularly odious as they are not isolated or sporadic events. Rather, they form a part of a larger chain of systematic attacks that target people based on their identity as a part of a particular group. This is what makes them international crimes and why they cannot be left unpunished when domestic courts fail to take notice of them. These crimes are so repugnant because of the mere fact that they are committed by the state’s power over the people it is supposed to protect.
Modern view
The modern view considers the irony of the collectivist nature of these crimes against humanity because of the common understanding pertaining to human rights. It is accepted universally that human rights are supposed to protect the dignity of each and every individual human. These are universal and inalienable rights that cannot be taken away even by the state. But these rights are guaranteed to each individual human so that he/she is able to lead a minimally decent life. Thus, the modern view believes that crimes against humanity ought to be punished not because they target a particular group and that is an international concern, but because they are individual humans possessing certain human rights that ought to be protected.
Difference between war crimes and crimes against humanity
- War crimes particularly are committed during times of war, be it a civil war or interstate wars. These usually happen when the established protocols, set by international agreements are breached. Crimes against humanity, on the other hand, are crimes that attack human dignity causing degradation or humiliation of humans.
- War crimes can include things like summary execution, damage to private property, torture, and deporting people against their will. As per Article 147 of the Geneva Convention, these acts, when committed during the times of war constitute war crimes. Crimes against humanity usually include crimes like deliberate persecution of civilians based on factors like race, ethnicity, political beliefs, culture, or religion. They are usually committed by government officials resulting in acts of sexual violence, extermination, imprisonment, and enslavement.
- War crimes are basically committed in a conflict situation witnessing massive violations of humanitarian law. However, crimes against humanity can take place during peacetime when a specific group is targeted.
War crimes are perpetrated mainly by armies and soldiers. But crimes against humanity are perpetrated by the regional or national governments.
| War Crimes | Crimes against humanity |
| Usually occur in conflict situations or military confrontations. | They can occur both in times of peace as well as during conflict situations. |
| They can be committed against another nation or the citizens of one’s own country. | They are committed against a particular group identity. |
| This is not a systematic attack. | This is a systematic attack. |
| They are committed during a war when there is friction between nations. | They are committed because of enmity or hatred towards a particular group or community. |
The Nuremberg Charter
Post the Second World War, the International Military Tribunal, also known as the ‘Nuremberg Tribunal’ was established by the US, Great Britain, the Soviet Union, and France through an agreement to prosecute and punish the war criminals of the European Axis. It was intended to punish the criminals for four major categories of crimes and ‘Crimes against humanity’ (which shocked the conscience of humankind by their magnitude).
The charter listed the following acts as ‘crimes against humanity’:
- Murder;
- Extermination;
- Enslavement;
- Deportation;
- Other inhumane acts done against any civilian population;
- Persecutions on political, racial, or religious grounds;
- When such acts are done in connection with any crime against peace or any war crime.
The influence of the Nuremberg Trials on International Criminal Law
- Subsequent to the coming of the Nuremberg Principles, the UN passed Resolution 96(1) on December 11, 1946, which stated that “genocide was a crime as per the International Law, against the spirit and objectives of the UN and was condemned by the civilized world”.
- The world for the first time took notice of the urgency of laws regarding barbarous crimes committed against humans in wars and the need to provide justice to the victims.
- The first General Assembly of the UN unanimously affirmed that “aggression, war crimes and crimes against humanity were punishable crimes, even for the head of the state.”
- Recognising the universal importance of the protection of human rights, the UN issued the Universal Declaration of Human Rights in 1948.
- In response to the Nuremberg principles, the Convention on the Prevention and Punishment of the Crime of Genocide of 1948 came into existence.
The Genocide Convention
The Convention on the Prevention and Punishment of the Crime of Genocide of 1948, also known as the Genocide Convention was a major milestone in upholding international human rights and holding accountable the violators. It criminalised genocide and other related activities in the international sphere. It defined ‘genocide’ as “certain acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” The Convention formulated that the states should also regulate their legal structures and laws to criminalise these acts in the domestic sphere and the ones found guilty should be tried by the courts of law of the respective countries. Thus, the crimes against humanity finally took a concrete form in the provisions of this Convention.
Why should crimes against humanity be punished
- Accountability- It is based on the relational notion of responsibility as answerability. Thus, being responsible for something means being answerable for that. In even domestic laws, such laws are considered ‘public’ and hence the person who has committed a crime must be brought to answer for his crime and should be punished for it.
- Breach of moral obligation- We all have a moral obligation to refrain from breaching the rights or harming other human beings. This obligation operates even in the absence of a state or a social structure prohibiting such acts.
- Sanctity of human rights- Human rights are inalienable, inviolable, and universal rights. As per the Universal Declaration of Human Rights, we have been provided with certain fundamental human rights that cannot be taken away even by the state. These rights are sacred for humans and must be protected at any cost. When such crimes are committed against humanity, they strip a person of dignity as a human. The offenders of human rights must be punished.
Conclusion
Ever since World War II ended and the horrors of the Nazi regime came forward, there has been a global concern for the crimes committed against humanity. The Nuremberg Charter became the lighthouse for directing the regulations on this issue. After this, several statutes like the Genocide Convention and the UN Resolution came to punish the offenders. However, we still lack a concrete and comprehensive framework that can punish the violators and provide justice to the victims. The concern for human rights has risen and so have its violations. It is the right time for the international community to strengthen the laws and protect the sanctity of humanity and human rights.
References
- Leslie C. Green, “War Crimes, Crimes against Humanity, and Command Responsibility”, 50 Naval War College Review 26-68 (1997).
- Margaret McAuliffe deGuzman, “The Road from Rome: The Developing Law of Crimes against Humanity “, 22 Human Rights Quarterly 335-403 (2000).
- Massimo Renzo, “Crimes Against Humanity and the Limits of International Criminal Law”, 31 Law and Philosophy 443-476 (2012).
