2 Crimes Against Humanity Under General International Law

This chapter discusses crimes against humanity under international law. Crimes against humanity were first introduced at Nuremberg as a means of criminalizing three sorts of criminality that so far had evaded the sanction of international law: atrocities committed outside the context of an armed conflict or independent of it; crimes committed against fellow nationals or nationals of allied nations; and institutionalized discriminatory violence that resulted in individuals being targeted and mistreated by a state because of their identity. Crimes against humanity seek to protect core attributes of all human beings: their dignity; their humanity; and their fundamental human rights. The notion of crimes against humanity reflects the fact that the protection of those interests and the punishment of serious violations of these interests is a matter of universal concern. It also makes it clear that the protection arising from international law does not depend on the nationality of the victim or his membership in a group, nor on his or relationship to the perpetrator. Instead, it is the sheer humanity of the victim that warrants and justifies the criminalization of such acts. And whilst the notion of genocide and crimes against humanity overlap in part in their efforts to protect these core values, unlike genocide, crimes against humanity seek to protect individuals as such, rather than groups of individuals. The chapter then looks at the relationship between crimes against humanity and other international crimes as well as the process of defining crimes against humanity.

6 Underlying Offences

This chapter explores the underlying offences which can constitute crimes against humanity. Crimes against humanity are composed of two core elements: a chapeau or contextual element and an underlying crime committed in and sufficiently linked to the chapeau. The list of underlying crimes that could, in theory, qualify as crimes against humanity is limited in nature and has not significantly evolved since Nuremberg. The Nuremberg Charter provided for six categories of crimes against humanity: murder; extermination; enslavement; deportation; other inhumane acts; and persecutions on political, racial, or religious grounds. Control Council Law No. 10, which regulated the subsequent prosecution of Nazi war criminals in occupied Germany, provided for the same six categories and added three other crimes to the list: imprisonment, rape, and torture. The chapter then assesses which crimes against humanity form part of customary international law.

4 Immunities, Amnesties, and Statutes of Limitation

This chapter assesses immunities, amnesties, and statutes of limitation in crimes against humanity. The question of whether immunities apply and, if so, to what effect, depend on the circumstances of the case and how the domestic legal regime under consideration orders and ranks its international legal obligations. It is, therefore, not necessarily the case that immunities would prevail in every instance in this sort of scenario regardless of circumstances. Meanwhile, international law does not grant legal force to amnesties; nor does it create enforceable rights for the beneficiaries of an amnesty. Instead, international law provides for a number of basic criteria that national amnesties must satisfy, lest they be regarded as invalid under international law. This means that, aside from amnesties that are per se invalid under international law—i.e., those pertaining to genocide, torture, and grave breaches of the Geneva Convention—the validity of all other categories of amnesties pertaining to international crimes is subject to the discretionary review of the tribunal concerned. Lastly, the 1968 Convention on Non-Applicability of Statutory Limitations provides that no statutory limitations shall apply to crimes against humanity, as do a number of other international instruments, including the International Criminal Court (ICC) Statute.

3 Jurisdiction Over Crimes Against Humanity

This chapter examines the jurisdiction to investigate and prosecute crimes against humanity. There is no international convention providing for a jurisdictional arrangement regarding crimes against humanity similar to the one provided for grave breaches of the Geneva Conventions or genocide. However, the absence of a conventional root did not foreclose the development of a principle of international law pursuant to which states enjoy a right to exercise universal jurisdiction over crimes against humanity. Crimes against humanity are crimes which, by their nature and magnitude, affect the interests of humanity as a whole. Thus, when a nation takes on the responsibility of prosecuting such crimes, it effectively acts on behalf of all nations. The chapter then considers the effect of the right to exercise universal jurisdiction over crimes against humanity. In some jurisdictions, the existence of such a right would provide a valid and sufficient jurisdictional basis on which judicial and prosecutorial authorities could bring such cases to justice. The recognition of the existence of such a right could also be sufficient and provide the necessary support in some jurisdictions to authorize the extradition of an individual suspected of committing crimes against humanity.

5 Chapeau or Contextual Elements

This chapter addresses the chapeau or contextual elements of crimes against humanity. To constitute a crime against humanity, a crime must be committed in the context of and as part of a widespread or systematic attack against a civilian population. This contextual element is the core distinguishing feature of crimes against humanity. It highlights their collective character and excludes isolated or random criminal acts. It also distinguishes crimes against humanity from ordinary crimes and other categories of international crimes. As a matter of customary international law, the chapeau element of crimes against humanity may be divided into five sub-elements: (i) there must be an ‘attack’; (ii) the attack must be ‘directed against any civilian population’; (iii) the attack must be ‘widespread or systematic’; (iv) there must be a sufficient link or ‘nexus’ between the acts of the accused and the attack; and (v) the accused must have known that there was a widespread or systematic attack directed against a civilian population, and he must have known that his acts formed part of that attack.

1 A Short History of Crimes Against Humanity

This introductory chapter provides a background of crimes against humanity. The first formal acknowledgement of crimes against humanity as a separate category of international crimes can be found in the Charter of the Nuremberg Tribunal. However, the view that there are overarching legal principles, sometimes referred to as the laws of humanity, that regulate the conduct of men above and beyond the laws of individual nations long pre-dated this instrument. During the First World War, references to the laws of humanity became increasingly frequent. The notion was generally used to describe a category of violent actions that disturbed the international order and that could be directly imputed not only to people but also to states. Significant to the development of the law of crimes against humanity was the work of the Inter-Allied Commission on the Responsibility of the Authors of the War and Enforcement of Penalties. The chapter then details the drafting of the Charter of the Nuremberg Tribunal as well as its legacy.

7 Crimes Against Humanity and Other International Crimes

This concluding chapter provides an overview of crimes against humanity. Crimes against humanity are characterized by several core features. First, they are crimes of scale insofar as they must involve and form part of a widespread or systematic attack against a civilian population. Second, similar to genocide but unlike war crimes, crimes against humanity may be committed in times of peace or in times of war. Third, the possibility of being a victim to a crime against humanity does not depend on the victim's nationality or on the victim's membership in any particular community or faction in an armed conflict. Fourth, crimes against humanity are intrinsically serious criminal offences and reflect some of the most important human interests protected by international law. Lastly, crimes against humanity are not subject to any statutory limitations as a matter of international law. The chapter then looks at the differences between crimes against humanity and other international crimes. These include war crimes, genocide, aggression, and terrorism.