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Crimes against humanity, as defined by the Rome Statute of the International Criminal Court Explanatory Memorandum, "are particularly odious offences in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings. They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. Murder; extermination; torture; rape, political, racial, or religious persecution and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. Isolated inhumane acts of this nature may constitute grave infringements of human rights, or depending on the circumstances, war crimes, but may fall short of falling into the category of crimes under discussion."[1]


Historical Development

The most significant early use of the phrase "crimes against humanity" came during the first world war when the On May 24, 1915, the Allies of World War I, Britain, France, and Russia, jointly issued a statement explicitly denouncing, for the first time, the commission of a "crime against humanity" in response to the Armenian Genocide and warned of personal responsibility for members of the Ottoman Government and their agents.[2] At the conclusion of the war, an international war crimes commission recommended the creation of a tribunal to try "violations of the laws of humanity". However, the US representative objected to references to "law of humanity" as being imprecise and insufficiently developed at that time and the concept was not pursued.[3]

Nuremberg trials

In the aftermath of the Second World War, The London Charter of the International Military Tribunal was the decree that set down the laws and procedures by which the post-World War II Nuremberg trials were to be conducted. The drafters of this document were faced with the problem of how to respond to the Holocaust and grave crimes committed by the Nazi regime. A traditional understanding of war crimes gave no provision for crimes committed by a power on its own citizens. Therefore, Article 6 of the Charter was drafted to include not only traditional war crimes and crimes against peace, but in paragraph 6.c, Crimes Against Humanity defined as

"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".[4][5]


In the Judgment of the International Military Tribunal for the Trial of German Major War Criminals it was also stated:

The Tribunal therefore cannot make a general declaration that the acts before 1939 were crimes against humanity within the meaning of the Charter, but from the beginning of the war in 1939 war crimes were committed on a vast scale, which were also crimes against humanity; and insofar as the inhumane acts charged in the Indictment, and committed after the beginning of the war, did not constitute war crimes, they were all committed in execution of, or in connection with, the aggressive war, and therefore constituted crimes against humanity.[6]

Tokyo trials

The International Military Tribunal for the Far East (IMTFE), also known as the Tokyo Trial, was convened to try the leaders of the Empire of Japan for three types of crimes: "Class A" (crimes against peace), "Class B" (war crimes), and "Class C" (crimes against humanity), committed during World War II. The first refers to their joint conspiracy to start and wage the war, and the latter two refer to atrocities including the Nanking Massacre.

The legal basis for the trial was established by the Charter of the International Military Tribunal for the Far East (CIMTFE) that was proclaimed on 19 January 1946. The tribunal convened on May 3, 1946, and was adjourned on November 12, 1948.

A panel of eleven judges presided over the IMTFE, one each from victorious Allied powers (United States, Republic of China, Soviet Union, United Kingdom, the Netherlands, Provisional Government of the French Republic, Australia, New Zealand, Canada, British India, and the Philippines).

War crimes charges against more junior personnel were dealt with separately, in other cities throughout Far East Asia, such as the Nanjing War Crimes Tribunal and the Khabarovsk War Crimes Trials.

Apartheid

The systematic persecution of one racial group by another, such as occurred during the South African apartheid government, was recognized as a crime against humanity by the United Nations General Assembly in 1976.[7] The Charter of the United Nations (Article 13, 14, 15) makes actions of the General Assembly advisory to the Security Council.[8] In regard to apartheid in particular, the UN General Assembly has not made any findings, nor have apartheid-related trials for crimes against humanity been conducted.

Ad hoc International Criminal Tribunals

International Criminal Tribunal for Yugoslavia

International Criminal Tribunal for Rwanda

United Nations

The United Nations has been primarily responsible for the prosecution of crimes against humanity since it was chartered in 1948.[9] The International Criminal Court (ICC) was organized by the Rome Statute and the UN has delegated several crimes against humanity cases to the ICC.[10] Because these cases were referred to the ICC by the UN, the ICC has broad authority and jurisdiction for these cases.[citation needed] The ICC acting without a UN referral lacks the broad jurisdiction to prosecute crimes against humanity, and cannot prosecute many cases, particularly if they occur outside of ICC-member nations. The most recent 2005 UN referral to the ICC of Darfur resulted in an indictment of Sudanese President Omar al-Bashir for genocide, crimes against humanity and war crimes in 2008.[11] The first person to be handed over to the ICC was Thomas Lubanga.[12] His trial has still has not been completed. The ICC still is seeking Joseph Kony.[12] When the ICC President reported to the UN regarding its progress handling this crimes against humanity case, Judge Phillipe Kirsch said "The Court does not have the power to arrest these persons. That is the responsibility of States and other actors. Without arrests, there can be no trials.[13] The UN has not referred any further crimes against humanity cases to the ICC since March 2005.[citation needed]

A report on the 2008-9 Gaza War accused Palestinian and Israeli forces of possibly committing a crime against humanity.[14]

UN Security Council responsibility

UN Security Council Resolution 1674, adopted by the United Nations Security Council on 28 April 2006, "reaffirms the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity".[15] The resolution commits the Council to action to protect civilians in armed conflict.

International Criminal Court

File:K 0261A.jpg

Rayerbazar, Dhaka, Bangladesh, 1971. Historical photograph of the Rayerbazar killing fields in Bangladesh, 1971. It shows the killing of intellectuals as part of 1971 atrocities committed by Pakistan.

In 2002, the International Criminal Court (ICC) was established in The Hague (Netherlands) and the Rome Statute provides for the ICC to have jurisdiction over genocide, crimes against humanity and war crimes. The definition of what is a "crime against humanity" for ICC proceedings has significantly broadened from its original legal definition or that used by the UN,[16] and Article 7 of the treaty stated that:

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:[17]

(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
(h) 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 any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

The Rome Statute Explanatory Memorandum states that crimes against humanity

are particularly odious offenses in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings. They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. However, murder, extermination, torture, rape, political, racial, or religious persecution and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. Isolated inhumane acts of this nature may constitute grave infringements of human rights, or depending on the circumstances, war crimes, but may fall short of meriting the stigma attaching to the category of crimes under discussion. On the other hand, an individual may be guilty of crimes against humanity even if he perpetrates one or two of the offences mentioned above, or engages in one such offense against only a few civilians, provided those offenses are part of a consistent pattern of misbehavior by a number of persons linked to that offender (for example, because they engage in armed action on the same side or because they are parties to a common plan or for any similar reason.) Consequently when one or more individuals are not accused of planning or carrying out a policy of inhumanity, but simply of perpetrating specific atrocities or vicious acts, in order to determine whether the necessary threshold is met one should use the following test: one ought to look at these atrocities or acts in their context and verify whether they may be regarded as part of an overall policy or a consistent pattern of an inhumanity, or whether they instead constitute isolated or sporadic acts of cruelty and wickedness.[1]

Council of Europe

The Committee of Ministers of the Council of Europe on 30 April 2002 issued a recommendation to the member states, on the protection of women against violence. In the section "Additional measures concerning violence in conflict and post-conflict situations", states in paragraph 69 that member states should: "penalize rape, sexual slavery, forced pregnancy, enforced sterilization or any other form of sexual violence of comparable gravity as an intolerable violation of human rights, as crimes against humanity and, when committed in the context of an armed conflict, as war crimes;"[18]

In the Explanatory Memorandum on this recommendation when considering paragraph 69:

Reference should be made to the Statute of the International Criminal Tribunal adopted in Rome in July 1998. Article 7 of the Statute defines rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence of comparable gravity, as crimes against humanity. Furthermore, Article 8 of the Statute defines rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence as a serious breach of the Geneva Conventions and as war crimes.[19]

To fall under the Rome Statute, a crime against humanity which is defined in Article 7.1 must be "part of a widespread or systematic attack directed against any civilian population". Article 7.2.a states "For the purpose of paragraph 1: "Attack directed against any civilian population means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack." This means that an individual crime on its own, or even a number of such crimes, would not fall under the Rome Statute unless they were the result of a State policy or an organizational policy. This was confirmed by Luis Moreno Ocampo in an open letter publishing his conclusions about allegations of crimes committed during the invasion of Iraq in March 2003 which might fall under the ICC. In a section entitled "Allegations concerning Genocide and Crimes against Humanity" he states that "the available information provided no reasonable indicator of the required elements for a crime against humanity," i.e. 'a widespread or systematic attack directed against any civilian population'".[20]

The Holodomor has been recognized as a crime against humanity by the European Parliament.[21]

See also

References

  1. 1.0 1.1 As quoted by Guy Horton in Dying Alive - A Legal Assessment of Human Rights Violations in Burma April 2005, co-Funded by The Netherlands Ministry for Development Co-Operation. See section "12.52 Crimes against humanity", Page 201. He references RSICC/C, Vol. 1 p. 360 Cite error: Invalid <ref> tag; name "Horton" defined multiple times with different content
  2. 1915 declaration
  3. Cryer, Robert; Hakan Friman, Darryl Robinson, Elizabeth Wilmshurst (2007). An Introduction to International Criminal Law and Procedure. Cambridge University Press. pp. 188.
  4. Nuremberg Trial Proceedings Vol. 1 Charter of the International Military Tribunal contained in the Avalon Project archive at Yale Law School
  5. Nicolas Werth, Karel Bartošek, Jean-Louis Panné, Jean-Louis Margolin, Andrzej Paczkowski, Stéphane Courtois, The Black Book of Communism: Crimes, Terror, Repression, Harvard University Press, 858 pages, ISBN 0-674-07608-7, page 6.
  6. Judgement : The Law Relating to War Crimes and Crimes Against Humanity contained in the Avalon Project archive at Yale Law School
  7. International Convention on the Suppression and Punishment of the Crime of Apartheid dopted and opened for signature, ratification by General Assembly resolution 3068 (XXVIII) of 30 November 1973. Entry into force 18 July 1976, in accordance with article X (10)
  8. Charter of the United Nations
  9. http://daccessdds.un.org/doc/RESOLUTION/GEN/NR0/044/31/IMG/NR004431.pdf?OpenElement
  10. https://archive.is/20120802081720/www.icc-cpi.int/Menus/ICC/About+the+Court/
  11. International Criminal Court, 14 July 2008. ICC Prosecutor presents case against Sudanese President, Hassan Ahmad AL BASHIR, for genocide, crimes against humanity and war crimes in Darfur. Accessed 14 July 2008.
  12. 12.0 12.1 Staff. Q&A: International Criminal Court BBC, 20 March 2006
  13. Judge Philippe Kirsch (President of the International Criminal Court) Address to the United Nations General Assembly (PDF) website ICC, 9 October 2006. P. 3
  14. "UN condemns 'war crimes' in Gaza". BBC News. 16 September 2009. http://news.bbc.co.uk/2/hi/middle_east/8257301.stm. Retrieved 30 April 2010.
  15. Resolution 1674 (2006)
  16. Cherif Bassiouni. "Crimes Against Humanity". http://www.crimesofwar.org/thebook/crimes-against-humanity.html. Retrieved 2006-07-23.
  17. Rome statute of the International Criminal Court Article 7: Crimes against humanity.
  18. Committee of Ministers of the Council of Europe: Recommendation (2002) 5 Paragraph 69
  19. Committee of Ministers of the Council of Europe: Recommendation (2002) 5 Paragraph 100
  20. Luis Moreno Ocampo OTP letter to senders re Iraq 9 February 2006. Page 4
  21. "MEPs recognize Ukraine's famine as crime against humanity". Russian News & Information Agency. 23/ 10/ 2008. http://en.rian.ru/world/20081023/117913361.html. Retrieved 2008-10-23.

Further reading

  • Macleod, Christopher (2010). "Towards a Philosophical Account of Crimes Against Humanity". European Journal of International Law 21 (2): 281–302. doi:10.1093/ejil/chq031.
  • Schabas, William A. (2000). Genocide in International Law: The Crimes of Crimes. New York: Cambridge University Press. ISBN 0521782627.

External links

Template:International Criminal Law

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