Crimes against humanity

There were several bilateral treaties in 1814 that foreshadowed the multilateral treaty of Final Act of the Congress of Vienna (1815) that used wording expressing condemnation of the slave trade using moral language. For example, the Treaty of Paris (1814) between Britain and France included the wording "principles of natural justice"; and the British and United States plenipotentiaries stated in the Treaty of Ghent (1814) that the slave trade violated the "principles of humanity and justice".[4]

The multilateral Declaration of the Powers, on the Abolition of the Slave Trade, of 8 February 1815 (which also formed Section XV of the Final Act of the Congress of Vienna of the same year) included in its first sentence the concept of the "principles of humanity and universal morality" as justification for ending a trade that was "odious in its continuance".[5]

Leopold II, King of the Belgians and de facto owner of the Congo Free State, who was the first person accused of crimes against humanity

The term "crimes against humanity" was used by George Washington Williams in a pamphlet published in 1890 to describe the practices of Leopold II of Belgium's administration of the Congo Free State.[6] In treaty law, the term originated in the Second Hague Convention of 1899 preamble and was expanded in the Fourth Hague Convention of 1907 preamble and their respective regulations, which were concerned with the codification of new rules of international humanitarian law. The preamble of the two Conventions referenced the "laws of humanity" as an expression of underlying inarticulated humanistic values.[7] The term is part of what is known as the Martens Clause.

On May 24, 1915, the Allied Powers, Britain, France, and Russia, jointly issued a statement explicitly charging for the first time ever another government of committing "a crime against humanity". An excerpt from this joint statement reads:

In view of these new crimes of Ottoman Empire against humanity and civilization, the Allied Governments announce publicly to the Sublime Porte that they will hold personally responsible for these crimes all members of the Ottoman Government, as well as those of their agents who are implicated in such massacres.[8]

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.[9]

Nonetheless, a UN report in 1948 referred to the usage of the term "crimes against humanity" in regard to the Armenian massacres as a precedent to the Nürnberg and Tokyo Charters. On May 15, 1948, the Economic and Social Council presented a 384-pages report prepared by the United Nations War Crimes Commission (UNWCC),[10] set up in London (October 1943) to collect and collate information on war crimes and war criminals.[11] ^:129 The report was in compliance to the request by the UN Secretary-General to make arrangements for "the collection and publication of information concerning human rights arising from trials of war criminals, quislings and traitors, and in particular from the Nürnberg and Tokyo Trials." The report had been prepared by members of the Legal Staff of the Commission. The report is highly topical in regard to the Armenian Genocide, not only because it uses the 1915 events as a historic example, but also as a precedent to the Articles 6 (c) and 5 (c) of the Nuremberg and Tokyo Charters, and thereby as a precursor to the then newly adopted UN Genocide Convention, differentiating between war crimes and crimes against humanity. By refereeing to the information collected during WWI and put forward by the 1919 Commission of Responsibilities, the report entitled "Information Concerning Human Rights Arising from Trials of War Criminals" used the Armenian case as a vivid example of committed crimes by a state against its own citizens. The report also noted that while the Paris Peace Treaties with Germany, Austria, Hungary and Bulgaria, did not include any reference to "laws of humanity", instead basing the charges on violations of "laws and customs of war", The Sèvres Peace Treaty with Turkey did so. In addition to the Articles 226–228, concerning customs of war (corresponding to Articles 228–230 of the Treaty of Versailles), the Sèvres Treaty also contained an additional Article 230, obviously in compliance with the Allied ultimatum of May 24, 1915 in regard to committed "crimes against humanity and civilization".[11]

Nuremberg Trials. Defendants in the dock. The main target of the prosecution was Hermann Göring (at the left edge on the first row of benches), considered to be the most important surviving official in the Third Reich after Hitler's death.

After the Second World War, the London Charter of the International Military Tribunal set down the laws and procedures by which the Nuremberg trials were to be conducted. The drafters of this document were faced with the problem of how to respond to the Holocaust and the 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 also 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.[12][13]

Under this definition, crimes against humanity could be punished only insofar as they could be connected somehow to war crimes or crimes against peace.[14] The jurisdictional limitation was explained by the American chief representative to the London Conference, Robert H. Jackson, who pointed out that it "has been a general principle from time immemorial that the internal affairs of another government are not ordinarily our business". Thus, "it is justifiable that we interfere or attempt to bring retribution to individuals or to states only because the concentration camps and the deportations were in pursuance of a common plan or enterprise of making an unjust war".[14] The judgement of the first Nuremberg trial found that "the policy of persecution, repression and murder of civilians" and persecution of Jews within Germany before the outbreak of war in 1939 were not crimes against humanity, because as "revolting and horrible as many of these crimes were, it has not been satisfactorily proved that they were done in execution of, or in connection with," war crimes or crimes against peace.[15] The subsequent Nuremberg trials were conducted under Control Council Law No. 10 which included a revised definition of crimes against humanity with a wider scope.[16]

The defendants at the Tokyo International Tribunal. General Hideki Tojo was one of the main defendants, and is in the centre of the middle row.

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 the Second World War.

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.

In the Tokyo Trial, Crimes against Humanity (Class C) was not applied for any suspect.[17] Prosecutions related to the Nanking Massacre were categorised as infringements upon the Laws of War.[18]

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).

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.[20] The Charter of the United Nations (Article 13, 14, 15) makes actions of the General Assembly advisory to the Security Council.[21] 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.

Neither the Nuremberg or Tokyo Charters contained an explicit provision recognizing sexual and gender-based crimes as war crimes or crimes against humanity, although Control Council Law No. 10 recognized rape as a crime against humanity. The statutes of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda both included rape as a crime against humanity. The ICC is the first international instrument expressly to include various forms of sexual and gender-based crimes – including rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, and other forms of sexual violence – as both an underlying act of crimes against humanity and war crime committed in international and/or non-international armed conflicts.[22] As an example, the events of the Baku pogroms, the Sumgait pogrom, the Shusha massacre,[23] the Siege of Stepanakert, and the Khatyn can be shown that the world strongly condemns. International institutions have asked for a ransom to avoid such incidents. There are hundreds of massacres, thousands of prisoners and wounded in these incidents.

In 2008, the U.N. Security Council adopted resolution 1820, which noted that "rape and other forms of sexual violence can constitute war crimes, crimes against humanity or a constitutive act with respect to genocide".[24]

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".[42] The resolution commits the Council to action to protect civilians in armed conflict.

In 2008 the U.N. Security Council adopted resolution 1820, which noted that "rape and other forms of sexual violence can constitute war crimes, crimes against humanity or a constitutive act with respect to genocide".[24]

According to the United Nations Security Council resolution 1970 (2011) concerning Libya, any direct or indirect trade of arms to the Libyan Arab Jamahiriya, in the form of supply, transfer, or sale should be prevented by the member nations. The arms embargo restricts the supply of arms, weapons, military vehicles, spare parts, technical assistance, finances, along with the provision of armed mercenaries, with origins of a country other than the one providing.[43] [44]

However, the United Nations claimed in its November 2019 report that the United Arab Emirates, Jordan and Turkey are violating the arms embargo imposed on Libya under the 1970 resolution.[45] An airstrike on the migrant detention center in Tripoli in July 2019, believed to have been carried out by the United Arab Emirates, can be amounted as a war crime, as stated by the United Nations. The airstrike was deadlier than the 2011 militarized uprising that overthrew the regime of Muammar Gaddafi.[46]

In 1993, the UN Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY), with jurisdiction to investigate and prosecute three international crimes which had taken place in the former Yugoslavia: genocide, war crimes, and crimes against humanity. Article 5 of the ICTY Statute states that

The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population:[48]

(a) murder;

(b) extermination;

(c) enslavement;

(d) deportation;

(e) imprisonment;

(f) torture;

(g) rape;

(h) persecutions on political, racial and religious grounds;

(i) other inhumane acts."

This definition of crimes against humanity revived the original ‘Nuremberg’ nexus with armed conflict, connecting crimes against humanity to both international and non-international armed conflict. It also expanded the list of criminal acts used in Nuremberg to include imprisonment, torture and rape.[48] Cherif Bassiouni has argued that this definition was necessary as the conflict in the former Yugoslavia was considered to be a conflict of both an international and non-international nature. Therefore, this adjusted definition of crimes against humanity was necessary to afford the tribunal jurisdiction over this crime.[49]

The UN Security Council established the International Criminal Tribunal for Rwanda in 1994 following the Rwandan genocide. Under the ICTR Statute, the link between crimes against humanity and an armed conflict of any kind was dropped. Rather, the requirement was added that the inhumane acts must be part of a "systematic or widespread attack against any civilian population on national, political, ethnic, racial or religious grounds."[50] Unlike the conflict in the former Yugoslavia, the conflict in Rwanda was deemed to be non-international, so crimes against humanity would likely not have been applicable if the nexus to armed conflict had been maintained.

Headquarters of the ICC in The Hague

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.[51] Essentially, the Rome Statute employs the same definition of crimes against humanity that the ICTR Statute does, minus the requirement that the attack was carried out ‘on national, political, ethnic, racial or religious grounds’. In addition, the Rome Statute definition offers the most expansive list of specific criminal acts that may constitute crimes against humanity to date.

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:[52]

(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.[53]

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'".[54]

The ICC can only prosecute crimes against humanity in situations under which it has jurisdiction. The ICC only has jurisdiction over crimes contained in its statute – genocide, war crimes and crimes against humanity – which have been committed on the territory of a State party to the Rome Statute, when a non-party State refers a situation within its country to the court or when the United Nation Security Council refers a case to the ICC.[55] In 2005 the UN referred to the ICC the situation in Darfur. This referral resulted in an indictment of Sudanese President Omar al-Bashir for genocide, crimes against humanity and war crimes in 2008.[56] When the ICC President reported to the UN regarding its progress handling these 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.[57]