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
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:
- 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
Crime against humanity is committed when:
- Deportation or forcible transfer of population;
- Imprisonment or other severe deprivation of physical liberty in
violation of fundamental rules of international law;
- Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable gravity;
- 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:
- Enforced disappearance of persons;
- The crime of apartheid;
- Other inhumane acts of a similar character intentionally causing great
suffering, or serious injury to body or to mental or physical health.
The accused violates the law:
- The act is a part of an "attack"
- Which is "widespread or systematic" and
- Directed against any civilian population;
- There is a connection or "nexus" between the accused's actions and the
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.
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.
An AttackThe 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.
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."
Relationship Between Any Civilian Population And CombatantsPeople 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
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
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
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.
Policy/Organizational RequirementThe 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.
NexusThe 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:
- The performance of an action that, due to its results or very nature, is
likely to have the effect of escalating the attack
- The accused was aware that a civilian population was being attacked and
that his behavior was a part of that attack.
Mens Rea/ Knowledge Of The AttackIn 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.
Mens Rea In Relation To Discriminatory GroundsDiscrimination 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
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
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
- 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
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
- 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.
- 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.
- The intended target of the attack is a particular civilian population.
However, it is unclear which groups collectively make up the "civilian
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.
- 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.
- 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
- 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
- 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
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.
Written By: Apoorv Saini,
- 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
- The Rome Statute was adopted on July 17, 1998 by a vote of 120 States in
favor, 7 against and 21 abstentions.
- 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
- Charter of the International Military Tribunal for the Far East, art.
5(c), Jan. 19, 1946, 4 Bevans 20, TIAS No. 1589.
- 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 http://avalon.law.yale.edu/imt/imt10.asp.
- 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).
Manav Rachna University, B.A. LL.B, 5th
Year, X Semester