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Crimes Against Humanity

THE scope and horror of the atrocities committed during the two world wars, as well as a growing worldwide consensus that some crimes committed within national borders are appropriate subjects of international law and adjudication, are what gave rise to the current idea of crimes against humanity.

Crimes against humanity are not covered by an international treaty, in contrast to war crimes and genocide. Instead, the development of customary international law has played a major role in the development of the law of crimes against humanity. Although these offences are defined in the laws of the majority of international and internationalized tribunals, there are notable discrepancies between the definitions.

Additionally, there has been some nonlinearity in how the definition of crimes against humanity has changed over time in various international instruments: Later definitions vary from being more inclusive to being more restrictive than their predecessors. Because of this, the prohibition on crimes against humanity continues to be the subject of more debate than the prohibitions on genocide and war crimes.

The importance of comprehending the precise nature of these offences cannot be overstated, given the extremely significant legal repercussions that result from labelling an offence as a crime against humanity as well as the increased moral censure that the name involves.

The scope and horror of the atrocities committed during the two world wars, as well as a growing worldwide consensus that some crimes committed within national borders are appropriate subjects of international law and adjudication, are what gave rise to the current idea of crimes against humanity.

The idea of crimes against humanity was simply an expansion of the laws of war when it first emerged. These laws, which have a long history, aim to reduce the destruction caused by armed conflict, among other things by making specific actions taken by citizens of one State against citizens of another illegal. On the other hand, up until very recently, crimes committed within national borders were not thought to fall under the ambit of international law.

The Holocaust served as a turning point in the development of international law, catalyzing both the quick growth of international human rights legislation and the parallel development of international criminal law. Thus, the Nuremberg Charter established jurisdiction over "crimes against humanity" and "crimes against peace" in addition to war crimes.

A discussion of crimes against humanity should begin with the term included in the Rome Statute of the International Criminal Court (Rome Statute). The Rome Statute represents the consensus of the majority of States in the world regarding the definition of crimes against humanity as of July 1998, despite the fact that it does not attempt to codify customary international law and expressly rejects the idea that it crystallizes such law for the future.

The Rome Statute defines Crimes against Humanity as follows:

  1. For the purpose 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:
    1. Murder;
    2. Extermination;
    3. Enslavement;
    4. Deportation or forcible transfer of population;
    5. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
    6. Torture;
    7. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
    8. Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or nay crime within the jurisdiction of the Court:
    9. Enforced disappearance of persons;
    10. The crime of apartheid;
    11. Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
    Crime against humanity is committed when:
    The accused violates the law:
    • The act is a part of an "attack"
    • Which is "widespread or systematic" and
    • Directed against any civilian population;
  2. There is a connection or "nexus" between the accused's actions and the assault.
    The ICTY Statute requires that the attack be committed in the context of an armed conflict and the ICTR Statute requires that the attack have a discriminatory element. Neither of these elements are required by the definition of crimes against humanity under customary international law. At the ICC neither of these additional elements is required.

Contextual Elements
A crime against humanity entails the conduct of specific unlawful acts as part of a broad or organized assault on a civilian population. When committed under this situation, a domestic offence like murder that would have otherwise been considered "regular" becomes a crime against humanity.
  1. An Attack

    The Rome Statute, ICTY, ICTR, and legal precedent all stipulate that an act or victims must be "multiple" in number in order for it to qualify as an assault on a civilian population. The acts may be similar or dissimilar in nature.
  2. Directed Against Any Civilian Population

    For an attack to be considered "directed against," the civilian population must be the attack's main objective and not merely a side target.

    "Any" emphasizes the fact that CAH can be committed both against and by citizens of an enemy country.

    Non-combatants are described as "civilians."

    A bigger group of victims and crimes that have a collective element are referred to as "population."
    1. Relationship Between Any Civilian Population And Combatants

      People who are not actively participating in the hostilities are considered members of the civilian population. The population does not lose its civilian nature because there are some people living there who do not fit the criteria of a civilian. The general nature of the population is described by the term "civilian population." Even when there are armed police or lone troops present, a population is still seen as "civilian." The majority of the population must be civilian.

      Who are the non-civilians? Civilians and civilian populations are defined in Article 50 of Additional Protocol I to the Geneva Conventions (AP I), which is used to identify who is a civilian and the civilian character of populations for CAH purposes. Its provisions "may essentially be understood as reflecting customary law."

      People who are taken out of the line of fire are still considered members of the armed forces of the aggressor party and are not considered civilians. Even when unarmed or engaged in battle, personnel of the armed forces and volunteers who serve in their militias or volunteer corps are not eligible to claim civilian status.
  3. Widespread Or Systematic

    "Widespread or systematic" characterizes the attack's nature, particularly in terms of its scope.

    "Widespread" can refer to a big, regular, large-scale activity that is carried out collectively with great seriousness and is targeted at several victims.

    The term "systematic" alludes to the organized form of the violent crimes and the regular recurrence of such criminal activity. It entails "a methodical plan or pattern" that is "completely ordered and follows a regular pattern."

    It is disjunctive to require that the attack be "widespread" or "systematic"�only one needs to be demonstrated. A crime against humanity can therefore be committed as part of a massive assault on a civilian population that claims many lives or as part of ongoing, deliberate violence or crimes that claim fewer lives.
  4. Policy/Organizational Requirement

    The ICTY has ruled that it is not necessary to demonstrate that the attack was carried out as part of a policy or plan because this is a matter of customary law. A policy or plan's presence may be important in proving that an attack was widespread, systematic, or targeted at a civilian population.

    On the other hand, the ICC requires that the attack be carried out "pursuant to or in furtherance of a State or organizational policy to perpetrate such assault" and that "the State or organization actively promote or support such an attack against a civilian population." Policies enacted by regional or local state organizations may suffice; the highest level of the state is not necessary in order for them to be effective.
  5. Nexus

    The accused's actions must "be part of" the widespread or systematic assault against a civilian population, not just "occur" with it. With the exception of extermination, the underlying crime need not be committed against several victims in order to qualify as a CAH. Therefore, assuming it is a part of a large or systematic attack against a civilian population, an act that targets a small number of victims, or even just one victim, may be sufficient.

    Two components of the nexus criterion are up for trial:
    1. The performance of an action that, due to its results or very nature, is likely to have the effect of escalating the attack
    2. The accused was aware that a civilian population was being attacked and that his behavior was a part of that attack.
  6. Mens Rea/ Knowledge Of The Attack

    In addition to having the intent to commit the primary offence (such as murder, persecution, or torture), an accused person must also be aware of the larger context in which his actions occur and more specifically:
    • He must be aware of the attack against the civilian population
    • He must know that his criminal act is a component of that attack, or at the very least be willing to accept the possibility that it is.
  7. Mens Rea In Relation To Discriminatory Grounds

    Discrimination is only a prerequisite for CAH in cases of persecution, according to the ICTY Appeals Chamber. According to the ICTR Statute, CAH must have been committed for discriminatory reasons. The ICTR Appeals Chamber, however, has determined that the prohibition on discriminatory grounds in the ICTR Statute solely applies to that court and is not a necessity under customary international law.

Historical Evolution

The first crimes against humanity trials did not take place until after World War II. The entire world was rattled by World War II. International outrage over the crimes against humanity was brought on by the horrible atrocities carried out under the Nazi regime. The necessity to solve this problem was believed to be urgent. As a result, the Nuremberg Charter was created, which for the first time legally defined "crimes against humanity as:

Murder, extermination, enslavement, deportation, other inhumane acts committed against any civilian population, persecutions on political, racial or religious grounds and when such acts are done in connection with any crime against peace or any war crime.

Similar definitions were incorporated into the legislation to try Japanese war criminals as well as Nazi war criminals in the various Allied-occupied zones of Germany.

Influence Of The Nuremberg Trials On The International Criminal Law

  • Following the adoption of the Nuremberg Principles, on December 11, 1946, the UN adopted Resolution 96(1), which said that "genocide was a crime under international law, against the spirit and goals of the UN, and was denounced by the civilized world."
  • For the first time, the need of laws addressing the barbaric crimes against people committed during war and the need to bring the victims justice came to the attention of the world.
  • Aggression, war crimes, and crimes against humanity were punishable crimes, even for the head of state: the UN's inaugural General Assembly overwhelmingly declared.
  • The UN published the Universal Declaration of Human Rights in 1948 after realizing the need of human rights protection on a global scale.
  • The 1948 Convention on the Prevention and Punishment of the Crime of Genocide was created in reaction to the Nuremberg principles.

The Genocide Convention

The Genocide Convention, also known as the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, was an important turning point in the defence of global human rights and the pursuit of justice for those who violate them. It made genocide and other comparable acts illegal on a global scale. "Specific acts committed with the goal to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such," was how the term "genocide" was defined.

The Convention established that the states should also regulate their legal frameworks and laws to make these activities illegal at home, and those found guilty should face legal proceedings before the courts of their respective nations. Thus, the terms of this convention served as the final, actual manifestation of crimes against humanity.

Why Should Crimes Against Humanity Be Punished

  • Accountability:
    It is founded on the relational idea of responsibility. Being accountable for anything entails taking responsibility for it. Even in domestic law, such laws are seen as "public," and as a result, the individual who committed the offence must be held accountable and punished.
  • Breach of moral duty:
    We all have a duty to uphold the rights of others and to treat them with respect. Even in the absence of a governmental or societal framework that forbids such actions, this commitment nevertheless applies.
  • Sanctity of human rights:
    Human rights are unalienable, unbreakable, and essentially universal rights. We have been granted a number of essential human rights that, according to the Universal Declaration of Human Rights, cannot be taken away by the government. Humans hold these rights in high regard, and they must be safeguarded at all costs. People lose their dignity as humans when such crimes against humanity are committed. Punishment is required for those who violate human rights.

Lacunas In The Roman Statute's Definition Of Crimes Against Humanity

  1. Attack knowledge must be present for the offender to act. However, the definitions of particular intent and mens rea have not been made clear in this case. It is unclear if these offences require a specific motive.
  2. Furthermore, it is uncertain whether these offences should have a policy component because doing so could limit the court's ability to hear the case. Additionally, if there is one, the distinction between "policy" and "systematic attack" has been omitted.
  3. The intended target of the attack is a particular civilian population. However, it is unclear which groups collectively make up the "civilian population.

Features Of The Notion Of Crimes Against Humanity

Four key aspects of the concept of crimes against humanity were defined by David Luban in his paper "A Theory of Crimes against Humanity," which was published in the Yale Journal of International Law.
  1. Particularly heinous offences:
    The offences that count as crimes against humanity typically undermine the victims' dignity as human beings. For instance, Jews were imprisoned in appalling conditions in Nazi concentration camps that lacked adequate sanitary, food, or water supplies. They were herded into gas chambers and brutally murdered. They were forced to live in such conditions, stripped of their humanity, and forced to behave like lower animals. Therefore, these offences qualify as crimes against humanity.
  2. International crimes:
    These offences do not stop at national borders and are now of concern to the entire world. They cause international agreements to take effect, allowing the international community to do away with the idea of national sovereignty. "Injustice everywhere is a threat to justice everywhere," as is frequently said.
  3. Policy element:
    The majority of the time, the state, a de facto authority, or a politically organized group is involved in these crimes, either directly or indirectly. Most often, these crimes are committed by the ruling elite while the minority suffers under the guise of defending the national interests of the majority.
  4. Collective element:
    In these crimes, victims are not attacked on an individual basis. Instead, they are singled out for attack because they belong to a certain community or group. Rarely do individual offences belong to crimes against humanity. Typically, a specific race, ethnicity, nationality, or religion is the target.

In particular, the Holocaust, ethnic cleansing in the former Yugoslavia, and the genocide in Rwanda were horrifying historical events that greatly influenced the development of the legislation against crimes against humanity. Definitions were developed to allow the prosecution of such crimes by the international community while seeking to uphold the legality concept.

Even the definition of the Rome Statute, while theoretically designed to address unforeseeable future events, reveals political compromises rather than a cogent and comprehensive normative foundation. Consequently, the standard outlining crimes against humanity is still ambiguous in a variety of ways.

Furthermore, it is still unclear how crimes against humanity and genocide are related. The indispensable element for genocide is the perpetrator's intent to destroy, in whole or in part, a national, ethnic, racial, or religious group. The Genocide Convention prescribes essentially the same fundamental conduct as the law of crimes against humanity, but this time there is no requirement for a connection with a more extensive attack on a civilian population.

There has been an international concern for the crimes against humanity ever since World War II ended and the horrors of the Nazi dictatorship came to light. The Nuremberg Charter was used as a compass to guide the laws regarding this matter. Following this, various laws were passed to punish the culprits, including the Genocide Convention and the UN Resolution.

But we still need a thorough and real framework that can both punish offenders and compensate victims. Both human rights violations and awareness of them have grown. The moment has come for the international community to bolster legal protections and uphold the dignity of people and their rights.

  1. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, art. 6, 8 Aug. 1945, Annex, 59 Stat. 1544, 82 U.N.T.S. 279, reprinted in 39 AM. J. INT'L L. 257 (Supp. 1945) [hereinafter Nuremberg Charter].
  2. The Rome Statute was adopted on July 17, 1998 by a vote of 120 States in favor, 7 against and 21 abstentions.
  3. Rome Statute of the International Criminal Court, art. 10, July 17, 1998, 2187 U.N.T.S. 90 [hereinafter Rome Statute] ("Nothing in this Part shall be interpreted as limiting or prejudicing in any way existing or developing rules of international law for purposes other than this Statute.").
  4. Charter of the International Military Tribunal for the Far East, art. 5(c), Jan. 19, 1946, 4 Bevans 20, TIAS No. 1589.
  5. Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes against Peace and Against Humanity, art. 2(1)(c), Dec. 20, 1945, available at
  6. Leslie C. Green, "War Crimes, Crimes against Humanity, and Command Responsibility", 50 Naval War College Review 26-68 (1997).
  7. Margaret McAuliffe deGuzman, "The Road from Rome: The Developing Law of Crimes against Humanity ", 22 Human Rights Quarterly 335-403 (2000).
  8. Massimo Renzo, "Crimes against Humanity and the Limits of International Criminal Law", 31 Law and Philosophy 443-476 (2012).
Written By: Apoorv Saini, Manav Rachna University, B.A. LL.B, 5th Year, X Semester

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