Crime against Humanity
The Conceptualization of Crime Against Humanity
The first “official” international use of the concept of crime against humanity dates back to May 24, 1915. On that day, the governments of France, Great Britain and Russia issued a joint declaration condemning the deportation and systematic extermination of the Armenian population of the Ottoman Empire and denouncing these acts as constituting “new crimes against humanity and civilization” for which all members of the Turkish government would be held responsible together with its agents implicated in the massacres.
A few years later, at the 1919 Peace Conference, the Commission on the Responsibilities of the Authors of War and on Enforcement of Penalties for Violations of the Laws and Customs of War failed to define the new concept. However, the Commission repeatedly used the expressions “crimes-” or “offenses against the laws of humanity” clearly dissociated from “war crimes” or “offenses against the laws and customs of war”: the necessity to create a new legal concept for the designation and the incrimination of a specific form of State criminality, independent of the strict context of war, was undoubtedly recognized. The 1919 Commission’s work thus had a great impact on the making of the Nuremberg Charter, soon after World War II.
The Definition of Crime Against Humanity in the Nuremberg Law
The concept of crime against humanity was finally defined by the Allies in article 6 (c) of the Nuremberg Charter (August 8, 1945) as follows: “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” - be it noted that article 5 (c) of the Tokyo Charter (January 19, 1946) is modeled on article 6 (c) of the Nuremberg Charter. This historical definition is nevertheless disappointing since it considerably narrows the scope of a crime against humanity, connecting it to a war crime or a crime against peace. The Nuremberg judges ended up narrowing the concept even more, hence limiting its application exclusively to acts committed after September 1, 1939 and refusing to take into consideration inhumane acts or persecutions committed against German Jews before World War II.
The war connecting link was then removed from the definition of crime against humanity in article II (c) of the Allied Control Council Law n° 10 for the punishment of German criminals (December 20, 1945). But, on the international level, the concept gained its real autonomy only long after.
The Development of Crime Against Humanity in International Criminal Law
The creation of two new ad hoc International Criminal Tribunals, respectively for the former Yugoslavia (ICTY: May 25, 1993) and Rwanda (ICTR: November 8, 1994) was the occasion for the United Nations Security Council to redefine the notion of crime against humanity. Article 5 of the ICTY Statute maintains a connection between this crime and the existence of an armed conflict but includes the case of internal conflicts as well, and adds to the Nuremberg definition torture, rape and imprisonment as part of acts constituting crimes against humanity (murder, extermination, enslavement, deportation, imprisonment, torture, rape, persecution on political, racial and religious grounds and “other inhumane acts”, “when committed in armed conflict, whether international or internal in character, and directed against any civilian population”). The connection with war or armed conflict is removed at article 3 of the ICTR Statute; instead, the attack upon civilian populations is characterized as “widespread or systematic” and discriminatory (same acts “when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds”).
The concept of crime against humanity is consecrated on a conventional basis in the Statute of the first permanent International Criminal Court (ICC: July 17, 1998) at article 7. The definition elaborated during the Diplomatic Conference held in Rome is the most extensive and precise: it includes new acts (notably sexual violence other than rape, enforced disappearance and apartheid), definitively abandons any connection with war (“when committed as part of a widespread or systematic attack”), and does not provide for any discriminatory intent (“directed against any civilian population, with knowledge of the attack”).
Crime against humanity is one of “the most serious crimes of concern to the international community as a whole” (article 5 of the ICC Statute) – together with the crime of genocide (the most extreme form of crime against humanity according to the jurisprudence of the ICTY and ICTR), war crimes, and the crime of aggression. It is also provided for in the Statutes of the internationalized criminal tribunals (Cambodia, Kosovo, Sierra Leone, Timor Leste). Its definition is to date not codified in any specialized convention.
Conference, 1919, Violation of the Laws and Customs of War (Reports of Majority and Dissenting Reports of American and Japanese Members of the Commission of Responsibilities), Washington D. C.: Carnegie Endowment for International Peace.
Department of State, 1949, Report of Robert H. Jackson United States Representative to the International Conference on Military Trials, London 1945, Washington D.C.: Division of Publications Office of Public Affairs.
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