Crimes against humanity in international law
Crimes against humanity are one of the four core crimes that the International Criminal Court (ICC) has jurisdiction to prosecute under the it’s founding treaty, the Rome Statute of the International Criminal Court.
Article 7 of the ICC’s Rome Statute, defines crimes against humanity, comprising the following elements:
(i) the crimes are part of a widespread or systemic attack directed against a civilian population (the “chapeau” or contextual element); and
(ii) the mental element or mens rea, comprising two limbs: first, the underlying crime was committed with criminal intent; and secondly, the accused had knowledge, or took the risk that, the acts were part of the attack directed against a civilian population;
(iii) the following crimes committed in the context of such a widespread or systemic attack, and with the required “mental element”, are crimes against humanity:
d. Deportation or forcible transfer of population;
e. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
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 universally recognized as impermissible;
i. Enforced disappearance;
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.
Many if not most of those crimes would, or should, be punishable crimes under most national laws. It is the contextual and mental elements which are the critical distinguishing characteristics of exceptionally grave criminal acts amounting to crimes against humanity in international law.
A further distinctive feature of crimes against humanity is that, unlike humanitarian law and the laws of war, the law applies equally in armed conflict, and to internal peace-time atrocities further to a systemic attack in furtherance of a state or organised policy against a state’s own population.
Recognition of crimes against humanity in law is a relatively modern concept. That said, the moral notion that barbarous and inhumane acts are universally wrong, and against the common interest of mankind, has deeper roots in political philosophy. But those normative ideas only began to take concrete legal form during the twentieth century.
The first concrete legal reference to a universal understanding that certain crimes could violate “the laws of humanity” is found in the Martens clause of the Hague Convention on the Law and Customs of War on Land of 1899 which provided that:
"Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience."
The Martens clause was adopted in the wake of Ottoman massacres of Armenians in the 1890’s. The historical record is evidence that the Martens clause failed to prevent further atrocities. Ottoman systematic persecutions and massacres against the minority Christian Armenian population continued unabated during the early years of the twentieth century, culminating in 1915-1916 with forced “death marches” to the Syrian desert of ethnic Armenians, primarily from Anatolia and the eastern provinces of the Ottoman empire. It is estimated that well over one million Armenians were tortured, raped, forcibly exiled, forced to convert to Islam, and massacred. These crimes are now widely recognised as genocide (although to this day not acknowledged as such by the Turkish state). The international community condemned in the strongest terms the Ottoman crimes against the Armenians, the atrocities being described as “crimes against humanity and civilisation”. Such condemnation was effectively a statement of moral outrage, appealing to universal moral norms, rather than a statemen of legal principle. Evidently, humanitarian law and the laws of war of the time, including the Martens clause, had been demonstrably impotent in preventing mass atrocities by a state against its own population.
Reflecting the extent and gravity of Nazi atrocities, including the Holocaust or Shoah, before and during the second World War, individual criminal responsibility for crimes against humanity was first established in clear legal terms in the 1945 Charter of the International Military Tribunal at Nuremberg (IMT Charter). Broadly similar provisions were included in the International Military Tribunal for the Far East Charter (IMTFE Charter, or Tokyo Charter).
That realisation in concrete legal form of universal moral opprobrium for individual criminal acts in pursuit of the state’s inhumane attacks on a civilian population is substantially attributable to distinguished international law jurist Hersch Lauterpacht. Lauterpacht maintained that international law and “the laws of mankind” are not merely abstract obligations on “impersonal” state entities, but that the rules of law apply directly to individuals, including officials and functionaries of the state. The IMT Charter clearly established that individuals could not hide behind national laws which purported to give legal authority to acts that amount to crimes against humanity contrary to international law. Lauterpacht’s influence was not merely academic: he was appointed to the British War Crimes Executive in 1944 and played a direct, instrumental role in drafting the IMT Charter. His interest was deeply personal: Lauterpacht’s close and extended family, except for one surviving niece, were persecuted and murdered by the Nazis.
The IMT and the Tokyo tribunal, for the first time ever, provided a supra national jurisdictional space in which individuals could be prosecuted for crimes against humanity, regardless of the nationality of the victims and perpetrators, or whether the acts violated a state’s ordinary criminal laws.
In the years following the Nuremberg and Tokyo trials, crimes against humanity evolved predominantly as a principle of customary international law, not being codified in a dedicated international treaty. In this respect crimes against humanity contrasts with other core international crimes: war crimes were extensively developed and codified in the four Geneva Conventions of 1949, and the Genocide Convention 1948 established state obligations in treaty law to prevent and punish genocide.
In the 1990s the international criminal tribunals for Former Yugoslavia (ICTY) and Rwanda (ICTR) provided further recognition of crimes against humanity as international crimes, whether or not committed during an armed conflict. A substantial body of jurisprudence was generated by those tribunals, providing detailed clarity over the meaning, nature, and extent of the legal elements of the crime (that is, the contextual element: ie the acts constituted a widespread and systemic attack on a civilian population; the mental element, being requisite criminal intent, and knowledge; and the underlying criminal acts).
The work of the ICTY and the ICTR strengthened considerably the normative and customary status of crimes against humanity, which foundational principles grounded the inclusion of crimes against humanity as a core crime within the jurisdiction of the International Criminal Court.
Whilst substantially reflecting the evolution of normative and legal definitions of crimes against humanity described above, Article 7 of the ICC’s Rome Statute expanded the scope of underlying crimes, to include enforced disappearance and certain discriminatory crimes. The contextual element was further refined, requiring that the attack against a civilian population is/was “in furtherance of a State or organizational policy”.
The ICC’s jurisdiction to prosecute individual suspects of crimes against humanity is undoubtedly a monumentally important step towards ending impunity for those crimes.
However, a key gap in international law remains the absence of a specialist treaty setting out states’ positive legal responsibilities, under the jurisdiction of the International Court of Justice (ICJ), to prevent and punish crimes against humanity. As such, the ICJ’s jurisdiction to enforce states’ obligations to prevent crimes against humanity is somewhat limited, in comparison to war crimes (with state obligations codified in the Geneva Conventions 1949) and genocide (with state obligations provided for in the Genocide Convention).
For a number of years, a proposed Crimes Against Humanity Treaty has been under consideration by the UN, the International Law Commission (ILC), and various international working groups. The ILC’s 2019 Draft articles on Prevention and Punishment of Crimes Against Humanity adopts in identical terms the definition in Article 7. The treaty, if adopted and ratified, would provide in detailed and concrete terms for states’ international legal obligations to prevent and prosecute crimes against humanity, including inchoate offences of conspiracy, attempts, and incitement to commit such crimes, by enacting and enforcing appropriate national criminal laws and procedures.
Article 7 Rome Statute of the International Criminal Court
Crimes against humanity
1. 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:
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(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.
2. For the purpose of paragraph 1:
(a) "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;
(b) "Extermination" includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population;
(c) "Enslavement" means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children;
(d) "Deportation or forcible transfer of population" means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law;
(e) "Torture" means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;
(f) "Forced pregnancy" means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy;
(g) "Persecution" means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;
(h) "The crime of apartheid" means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime;
(i) "Enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.
3. For the purpose of this Statute, it is understood that the term "gender" refers to the two sexes, male and female, within the context of society. The term "gender" does not indicate any meaning different from the above.