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International Law Crimes against Humanity
by
Beth van Schaack

Introduction

Crimes against humanity have both a colloquial and a legal existence. In daily parlance, the term is employed to condemn any number of atrocities that violate international human rights. As a legal construct, crimes against humanity encompass a constellation of acts made criminal under international law when they are committed within the context of a widespread and systematic attack against a civilian population. In the domain of international criminal law, crimes against humanity are an increasingly useful component of any international prosecutor’s toolbox, because they can be charged in connection with acts of violence that do not implicate other international criminal prohibitions, such as the prohibitions against war crimes (which require a nexus to an armed conflict) and genocide (which protects only certain human groups and requires proof of a specific intent to destroy such a group). Although the concept of crimes against humanity has deep roots, crimes against humanity were first adjudicated—albeit with some controversy—in the criminal proceedings following the World War II period. The central challenge to defining crimes against humanity under international criminal law since then has been to come up with a formulation of the offense that reconciles the principle of sovereignty—which envisions an exclusive territorial domain in which states are free from outside scrutiny—with the idea that international law can, and indeed should, regulate certain acts committed entirely within the borders of a single state. Because many enumerated crimes against humanity are also crimes under domestic law (e.g., murder, assault, and rape), it was necessary to define crimes against humanity in a way that did not elevate every domestic crime to the status of an international crime, subject to international jurisdiction. Over the years, legal drafters have experimented with various elements in an effort to arrive at a workable penal definition. The definitional confusion plaguing the crime over its life span generated a considerable amount of legal scholarship. It was not until the UN Security Council promulgated the statutes of the two ad hoc international criminal tribunals—the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda—that a modern definition of the crime emerged. These definitions were further refined by the case law of the two tribunals and their progeny, such as the Special Court for Sierra Leone. All these doctrinal developments were codified, with some additional modifications, in a consensus definition in Article 7 of the Statute of the International Criminal Court (ICC). It is now clear that the offense constitutes three essential elements: (1) the existence of a widespread or systematic attack against a civilian population and (2) the intentional commission of an enumerated act (such as an act of murder or torture) (3) by an individual with knowledge that his or her act would contribute to the larger attack. A renewed effort is now afoot to promulgate a multilateral treaty devoted to crimes against humanity based on the ICC definition and these central elements. Through this dynamic process of codification and interpretation, many—but not all—definitional issues left open in the postwar period have finally been resolved. Although their origins were somewhat shaky, crimes against humanity now have a firm place in the canon of international criminal law.

General Overviews

Scholarship concerning crimes against humanity prior to the establishment of the ad hoc tribunals in the mid-1990s and the subsequent promulgation of their jurisprudence is useful to trace the historical evolution of the crime. For example, M. Cherif Bassiouni—to many the father of modern international criminal law (ICL)—has produced an enormous corpus of work on ICL, including a text devoted to the history of and theory behind crimes against humanity (Bassiouni 1999). Other works of this era, such as Robertson 2006 or Ambos and Wirth 2002, are of limited use for understanding the modern contours of the crime, which underwent significant evolution in the hands of the ad hoc criminal tribunals. Although his work is more descriptive than normative, Matthew Lippman (see Lippman 1997 for an example) is a prolific author in the field and an expert on Nazi Germany; his work on crimes against humanity is true to form. To fully understand the modern contours of the crime and the few remaining doctrinal controversies, it is necessary to refer to more recent works, such as van der Wolf 2011. This work sets forth the essential elements of the crime with reference to the case law, although it is in outline rather than narrative form. Shelton 2005, the Encyclopedia of Genocide and Crimes Against Humanity, offers expansive entries on many aspects of crimes against humanity. Robertson 2006 and Jones 2008 provide less legalistic treatments of the subject appropriate for a general audience.

  • Ambos, Kai, and Steffen Wirth. “The Current Law of Crimes Against Humanity: An Analysis of UNTAET Regulation 15/2000.” Criminal Law Forum 13.1 2002: 1–90.

    DOI: 10.1023/A:1020123920538Save Citation »Export Citation »E-mail Citation »

    This article originated from a legal brief to aid the prosecutor general of the Serious Crimes Investigative Unit of the United Nations Transitional Administration for East Timor. The brief endeavored to capture the then-current state of the law to guide prosecutions before the East Timor Special Panels were established to prosecute crimes committed in the aftermath of the postreferendum violence in East Timor.

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  • Bassiouni, M. Cherif. Crimes Against Humanity in International Criminal Law. 2d ed. The Hague: Kluwer Law International, 1999.

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    This text provides a useful—if now outdated—overview of the history of crimes against humanity culminating in a presentation of some of the early jurisprudence of the ad hoc tribunals concerned with, inter alia, the elements of crimes, experiments with the internationalizing element, particular enumerated acts, forms of responsibility, and defenses. The text combines some theory with a hornbook-style compilation of interesting cases.

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  • Jones, Adam. Crimes Against Humanity: A Beginners Guide. Oxford: OneWorld, 2008.

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    This text, written more for a general audience, cross-references exceptional atrocity scenarios with more quotidian human rights violations, like torture and sex trafficking, under the rubric of crimes against humanity.

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  • Lippman, Matthew. “Crimes Against Humanity.” Boston College Third World Law Journal 17 (1997): 171–273.

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    This article outlines the evolution of the concept of a crime against humanity with reference to transcendent humanitarian principles. It demonstrates the way World War II–era definitional compromises eventually lost their force through domestic and some international jurisprudence. Lippman concludes that the offense is expansively prohibited by customary international law, regardless of particular treaty-based or domestic law formulations.

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  • Robertson, Geoffrey. Crimes Against Humanity: The Struggle for Global Justice. 3d ed. New York: New Press, 2006.

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    Robertson’s eminently readable text embeds the concept of crimes against humanity in the post–World War II human rights movement. He tells the story of the development of crimes against humanity through a series of vignettes spanning the Spanish Civil War, Augusto Pinochet’s Chile, and the wars in the Balkans, culminating in the attacks of September 11.

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  • Shelton, Dinah L., ed. Encyclopedia of Genocide and Crimes Against Humanity. 3 vols. Farmington Hills, MI: Thomson, 2005.

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    This monumental three-volume set provides expansive individual entries for a number of concepts central to crimes against humanity. Each entry includes a bibliography as well as cross-references to related topics. The editor in chief, Dinah L. Shelton, is a noted authority on international law and a member of the Inter-American Commission for Human Rights.

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  • van der Wolf, Willem-Jan, ed. Crimes Against Humanity and International Criminal Law. The Hague: International Courts Association, 2011.

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    Van der Wolf provides an overview of the state of the law as generated primarily by the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). The jurisprudence of the two ad hoc tribunals is presented in outline form by element and subelement. Designed for the litigator or real aficionado of the cases, each entry includes a case citation, pin cite, and a pithy quotation.

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Theoretical Approaches

In addition to a number of jurisprudential treatments, many scholars view crimes against humanity less as a juridical tool than as a philosophical concept. An early example of this can be found in Graven 1950, a collection of lectures (delivered to The Hague Academy of International Law) that eloquently synthesize legal doctrine with moral philosophy. Kuschnik 2010 (cited under Particular Constitutive Acts), Luban 2004, May 2005, Vernon 2002, and Yovel 2006 all endeavor to set forth a modern theoretical foundation for a notion of a crime against humanity in light of the legal, moral, and political questions raised by the movement for international justice. Most of these works endeavor to reconcile the concept of crimes against humanity with the eroding principle of state sovereignty and justify the assertion of international criminal jurisdiction over offenses occurring within the borders of a single state. Because their approach is philosophical rather than strictly legal, many of these authors depart from the legalistic definition of crimes against humanity set forth in the major international treaties. May 2005, for example, criticizes the International Criminal Court’s sprawling definition on the grounds that it lacks any unifying concept and as such risks trivializing a concept that should be reserved for exemplary acts against the very concept of humanness. Vernon 2002 and Luban 2004 assume a state action or policy element, which departs from standard definitions of the crime (see The Necessity of Proof of a Policy). Many of these works, especially May 2005, explore other transitional justice strategies for responding to crimes against humanity besides criminal trials.

  • Graven, Jean. “Les crimes contre l’humanité.” Recueil des cours 76 (1950): 433–605.

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    In this monumental set of lectures (in French), Graven—a Swiss jurist—traces the natural law origins of the prohibition against crimes against humanity and identifies obstacles to its full implementation, including the development of increasingly lethal weaponry, our reliance on bureaucratic institutions that mask individual responsibility, the paucity of international institutions capable of enforcing the law, and the enduring strength of state sovereignty.

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  • Luban, David. “A Theory of Crimes Against Humanity.” Yale Journal of International Law 29 (2004): 85–167.

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    Luban—a prolific law professor and philosopher—argues that crimes against humanity are distinct because they offend not only the particular victims and their own communities but all of humankind. By Luban’s account, because crimes against humanity are inevitably committed by groups representing the state against other societal groups, they subvert and pervert our inherently political nature as well as those institutions necessary to maintain social life.

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  • May, Larry. Crimes Against Humanity: A Normative Account. Cambridge, UK: Cambridge University Press, 2005.

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    Using the term crimes against humanity to mean mass atrocities, May argues that group-based harms, such as those covered by the prohibition on crimes against humanity, justify international prosecutions so long as the individual in question occupied a leadership position. For minor actors, he argues that the law should require a showing of discriminatory intent to justify the assertion of international jurisdiction.

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  • Vernon, Richard. “What Is a Crime Against Humanity?” Journal of Political Philosophy 10 (2002): 231–249.

    DOI: 10.1111/1467-9760.00151Save Citation »Export Citation »E-mail Citation »

    Vernon argues that what sets crimes against humanity apart from other human rights abuses and international offenses is that the offense involves the abuse of sovereign power and resources (military, police, administrative) to organize and implement a policy of violence against a collective group of human beings. Under these circumstances, state sovereignty is suspended, and the power to judge shifts to other members of the international community.

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  • Yovel, Jonathan. “How Can a Crime Be Against Humanity? Philosophical Doubts concerning a Useful Concept.” UCLA Journal of International Law and Foreign Affairs 11 (Spring 2006): 39–58.

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    Yovel situates crimes against humanity between two philosophical positions: a deontological approach dedicated to preserving the diversity of humankind and a legal realist or utilitarian approach, which views crimes against humanity as a useful tool to promote the goals of a democratic society. Yovel proposes a third way embodied in his concept of a “crime against humanness,” which—in his view—goes beyond a notion of human dignity to protect core attributes of humanity.

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Casebooks and Hornbooks

The international community’s revived interest in international criminal accountability has given rise to a number of overview texts concerning international criminal law (ICL)—including American-style casebooks and European-style hornbooks—that are regularly used as reference guides or in law teaching. It is de rigueur to include a substantive chapter on crimes against humanity in these efforts. For casebooks appropriate for pedagogical purposes, see Cassese, et al. 2011; Luban, et al. 2010; Paust, et al. 2007; Van Schaack and Slye 2010; and Wise, et al. 2009. Many of these texts also include useful teacher’s manuals. Cassese 2008; Cryer, et al. 2010; de Than and Shorts 2003; and Slye and Van Schaack 2009 offer hornbooks that endeavor to cover the entire ICL field in a more descriptive and comprehensive fashion than the casebooks. These latter texts are more appropriate for general reference than the casebooks cataloged in this article, which are not necessarily comprehensive in their treatment of the topic.

  • Cassese, Antonio. International Criminal Law. 2d ed. Oxford: Oxford University Press, 2008.

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    This hornbook provides an excellent overview of the field with reference to World War II–era cases to the present. The crimes against humanity discussion culminates in a useful comparison of treaty definitions with Cassese’s view of the customary international law prohibition of the crime, focusing in particular on areas in which the former is narrower than the latter.

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  • Cassese, Antonio, Guido Acquaviva, Mary Fan, and Alex White. International Criminal Law: Cases and Commentary. Oxford: Oxford University Press, 2011.

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    This effort at an American-style casebook compiles short excerpts of historical opinions alongside more modern jurisprudence with some commentary. The lead author was a giant in the field who before his untimely death served as president of the Special Tribunal for Lebanon, which prosecutes acts of terrorism committed in Lebanon.

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  • Cryer, Robert, Hakan Friman, Darryl Robinson, and Elizabeth Wilmshurst. International Criminal Law and Procedure. 2d.ed. Cambridge, UK: Cambridge University Press, 2010.

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    In hornbook style, this text contains a short chapter on crimes against humanity embedded within a larger discussion of the prosecution of international crimes in domestic and international tribunals.

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  • de Than, Claire, and Edwin Shorts. International Criminal Law and Human Rights. London: Sweet and Maxwell, 2003.

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    Chapter 5 of this text is devoted to crimes against humanity, providing hornbook treatment to the then-existing jurisprudence of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). The rest of the text covers the other substantive crimes as well as issues of state immunity, cumulative charging, individual responsibility, and theories of sentencing from a European perspective. Chapter 11 provides a thorough discussion of sexual violence as a unifying example.

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  • Luban, David, Julie R. O’Sullivan, and David P. Stewart. International and Transnational Criminal Law. Austin, TX: Wolters Kluwer, 2010.

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    In addition to case excerpts, this textbook draws on passages from legal scholarship to exemplify the history and main concepts of both international criminal law and transnational law (those crimes that transcend international borders but are defined primarily by and adjudicated under domestic law). The crimes against humanity chapter (chapter 19) covers standard ground and provides a series of problems to test the reach of the International Criminal Court (ICC) definition.

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  • Paust, Jordan J., M. Cherif Bassiouni, Michael Scharf, Jimmy Gurulé, Leila Sadat, and Bruce Zagaris. International Criminal Law: Cases and Materials. 3d ed. Durham, NC: Carolina Academic Press, 2007.

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    This casebook contains materials on crimes against humanity (chapter 9) with excerpts from emblematic domestic cases adjudicating domestic versions of the crime from around the world (mostly stemming from the World War II era) alongside early international jurisprudence from the ad hoc tribunals.

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  • Slye, Ronald C., and Beth Van Schaack. Essentials: International Criminal Law. Austin, TX: Wolters Kluwer, 2009.

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    Chapter 8 of this supplement discusses the interface between genocide and crimes against humanity, particularly the crime of extermination, and queries what the prohibition of genocide adds to ICL in light of the expansive reach of the prohibition of crimes against humanity.

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  • Van Schaack, Beth, and Ronald C. Slye. International Criminal Law and Its Enforcement. 2d ed. New York: Thomson Reuters/Foundation, 2010.

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    This text provides extensive case excerpts of seminal jurisprudence covering all aspects of international criminal law along with commentary, notes and questions, problems, and fact patterns for student analysis and debate. The chapter on crimes against humanity (chapter 7) focuses on the chapeau elements of the offense along with the particular crimes of sexual violence, persecution, and extermination.

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  • Wise, Edward M., Ellen S. Podgor, and Roger S. Clark. International Criminal Law: Cases and Materials. 3d ed. New Providence, NJ: LexisNexis Matthew Bender, 2009.

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    The cases excerpted in this text focus primarily on the domestic prosecution of transnational crimes, such as money laundering, terrorism, and piracy, with an emphasis on procedural challenges, such as extradition and the provision of mutual assistance. A short section addresses substantive international criminal law in the strict sense, including crimes against humanity.

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Historical Accounts

To fully understand the concept of crimes against humanity, it is necessary to trace the origins of the crime. Although crimes against humanity were first prosecuted at the international level after World War II, such trials were contemplated after World War I and even earlier. The crime emerged primarily to address atrocities that did not fall under the rubric of war crimes because they involved violence between compatriots.

World War I and Before

Crimes against humanity are as old as humanity. Pritchard 2003, for example, describes European efforts at the end of the 19th century to redress intercommunal violence between Greek Christians and Turkish Muslims in Crete. These trials were staged following a humanitarian intervention on the island and anticipated later international attempts to hold individuals liable for violations of the “laws of humanity.” The concept of a cognizable offense later surfaced in condemnations of the massacres of the Armenians by what was then the Ottoman Empire and other atrocities committed in World War I. Drawing on the Martens Clause—which can be found in the 1907 Hague Convention Respecting the Laws and Customs of War on Land and subsequent humanitarian law conventions—the Allies invoked the “laws of humanity” after World War I in connection with the proposed trials of war criminals from Germany and its allies. In particular, the Ottoman government’s massacre of the Armenian population prompted the Allied governments of France, Great Britain, and Russia to issue in 1915 a joint declaration to the Ottoman Empire denouncing these acts as “crimes against humanity and civilization for which all the members of the Turkish Government will be held responsible together with its agents implicated in the massacres,” as discussed in Dadrian 1989. Thus the juridical concept of crimes against humanity was born. This manifestation proved short-lived, however, as the Allies—with the United States at the lead—ultimately resolved not to pursue prosecutions for such violations for lack of a legal basis for doing so (as discussed in Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties 1920; see also Schwelb 1946, cited under World War II Scholarship).

  • Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties. “Report Presented to the Preliminary Peace Conference, March 29, 1919.” American Journal of International Law 14 (1920): 95–154.

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    This original source provides a window into early thinking about the concept of crimes against humanity.

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  • Dadrian, Vahakn N. “Genocide as a Problem of National and International Law: The World War I Armenian Case and Its Contemporary Legal Ramifications.” Yale Journal of International Law 14 (1989): 221–334.

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    This exhaustively researched article is the definitive work on the massacres of the Armenian population in Turkey. Although it discusses the origins of the concept of crimes against humanity in this period, it is primarily dedicated to proving that the massacres constituted genocide as that crime was later defined.

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  • Pritchard, R. John. “International Humanitarian Intervention and Establishment of an International Jurisdiction over Crimes Against Humanity: The National and International Military Trials on Crete in 1898.” In International Humanitarian Law. Vol. 1, Origins. Edited by John Carey, William V. Dunlap, and R. John Pritchard, 1–88. Ardsley, NY: Transnational, 2003.

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    Pritchard’s contribution to this edited series features his detailed historical research of the trials held in Crete in the 19th century. Pritchard presents a cynical picture of why these trials were largely overlooked in the post–World War I period, when the Allies concluded that there was no precedent for a concept of crimes against humanity. In Pritchard’s estimation, this false conclusion set international criminal law back for years.

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World War II Treaties and Original Sources

Notwithstanding the World War I antecedents (see World War I and Before), the juridical history of this offense really begins at Nuremberg. The foundational sources governing crimes against humanity are the charters of the Nuremberg and Tokyo tribunals and the judgment of the Nuremberg Tribunal. The term “crimes against humanity” first appeared in positive international law in Article 6(c) of the Charter of the International Military Tribunal (IMT; Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers and Charter of the International Military Tribunal, Aug. 8, 1945). Article 5(c) of the Charter for the Tokyo Tribunal (Special Proclamation by the Supreme Commander for the Allied Powers at Tokyo, Jan. 19, 1946) was substantially the same as Article 6(c) of the IMT Charter, although it omitted reference to persecutions on “religious grounds” and did not require the enumerated acts to be “committed against any civilian population” (IMT Charter). The category of crimes against humanity was added to the Nuremburg Charter, because it was feared that under the traditional formulation of war crimes, many of the defining acts of the Nazis would go unpunished. The crimes against humanity count in the Nuremberg indictment encompassed acts committed by Nazi perpetrators against German victims, who were thus of the same nationality as their oppressors, and against citizens of a state allied with Germany. The charge confirmed that citizens are under the protection of international law even when they are victimized by their compatriots. Furthermore, the criminality of such acts “whether or not in violation of the domestic law of the country where perpetrated,” as stated by the charter, established the supremacy of international law over municipal law. While the crime of aggression—deemed “the greatest menace of our times”—was the centerpiece of the charter and the Nuremberg Trial (which was to be “the trial to end all wars”), the notion of crimes against humanity has proven to be the real legacy of Nuremberg, albeit with chronic definitional confusion. The Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials discusses the negotiations surrounding the Nuremberg Charter. Control Council Law No. 10, drafted to enable the prosecution of lesser war criminals in the Allies’ zones of occupation, generated significant jurisprudence on crimes against humanity as contained in the 1945 Trials of War Criminals compendium (International Military Tribunal 1949–1953). Many of these sources as well as a number of other World War II materials can be found on Yale University’s Avalon Project site.

World War II Scholarship

A lot of great contemporaneous scholarship exists about the legal innovations inherent to the concept of crimes against humanity. These include: Finch 1947 (cited under The War Nexus), Meyrowitz 1960, and Schwelb 1946. Jackson 1949 (cited under World War II Treaties and Original Sources) and Taylor 1992 are insider accounts that provide valuable insights into the origins of this offense. Although the charter governing the Tokyo Tribunal contained a nearly identical definition of the crime, most of the literature of this era concerns the prosecution of crimes against humanity in the European theater. Indeed, the principals of the Tokyo Tribunal paid little attention to crimes against humanity, notwithstanding the assault on Nanjing, the comfort-women system, and Chinese bacteriological experimentation on prisoners of war and civilians, among other atrocities. Commentators have attributed this differential attention to racism (Paik 1986) and to the scope of the crimes as compared to the Holocaust. The Nuremberg and Tokyo tribunals prosecuted only those defendants “whose offenses had no geographical limitation.” The Allies drafted Control Council Law No. 10 (CCL 10) to prosecute the lesser war criminals in their respective zones of occupation. For commentary on these trials, see Heller 2011, a long-awaited book, and Lippman 1995. Clapham 2009 offers English translations of two such cases that provide interesting insights into chargeable forms of responsibility for the commission of crimes against humanity.

  • Clapham, Andrew. “Modes of Participation in Crimes Against Humanity: The Hechingen and Haigerloch Case.” Journal of International Criminal Justice 7.1 (March 2009): 131–154.

    DOI: 10.1093/jicj/mqp003Save Citation »Export Citation »E-mail Citation »

    This article provides English translations of two decisions of German courts dealing with participation in crimes against humanity under CCL 10. The cases are interesting in that they deal with culpability for crimes against humanity for those individuals who are not the primary planners or direct perpetrators but rather intermediate participants who operate mid-hierarchy.

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  • Heller, Kevin Jon. The Nuremberg Military Tribunals and the Origins of International Criminal Law. Oxford: Oxford University Press, 2011.

    DOI: 10.1093/acprof:oso/9780199554317.001.0001Save Citation »Export Citation »E-mail Citation »

    This book provides a comprehensive analysis of the twelve trials held in the American zone of occupation pursuant to CCL 10. Chapter 10 is devoted to the treatment of crimes against humanity in these cases.

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  • Lippman, Matthew. “War Crimes Trials of German Industrialists: The ‘Other Schindlers.’” Temple International and Comparative Law Journal 9.173 (1995): 185–206.

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    This article provides an overview of the industrialist cases brought under CCL 10.

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  • Meyrowitz, Henri. La répression par les tribunaux allemands des crimes contra l’humanité et de l’appartenance a une organisation criminelle. Paris: R. Pichon and R. Durand-Auzias, 1960.

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    Although not exactly contemporaneous with the World War II proceedings, this early work (available only in French) was the first to provide a thick description of the corpus of World War II case law. In addition to a discussion of the cases’ jurisdictional bases, applicable forms of participation, and the idea of a criminal organization, it offers a deep exploration of the principle of legality vis-à-vis the concept of crimes against humanity.

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  • Paik Choong-Hyun. “Comments by Paik Choong-Hyun.” In The Tokyo War Crimes Trial: An International Symposium. Edited by Hosoya Chihiro, Andō Nisuki, Ōnuma Yasuaki, and Richard H. Minear, 52–54. Tokyo: Kodansha, 1986.

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    This article, a contribution by a professor at the Seoul National University to a larger edited volume about the Tokyo Tribunal, critiques the Tokyo Tribunal’s blind spot vis-à-vis crimes against humanity.

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  • Schwelb, Egon. “Crimes Against Humanity.” British Yearbook of International Law 23 (1946): 178–226.

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    Taking an element-by-element approach, Schwelb addresses various constitutive offenses and demonstrates the way the offense was linked in the Nuremberg judgment to war crimes and the aggressive war in order to overcome concerns with the principle of legality and ultimately to limit the crime’s reach. Schwelb also discusses the legacy of the Nuremberg proceedings in subsequent cases, treaties, and national legislation.

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  • Taylor, Telford. The Anatomy of the Nuremberg Trials: A Personal Memoir. New York: Knopf, 1992.

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    Unfortunately for our purposes, this volume focuses more on the development of the crimes against the peace concept (the crime of aggression in today’s lexicon) than on crimes against humanity.

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The War Nexus

The term “crimes against humanity” first appeared in positive international law in Article 6(c) of the charter of the International Military Tribunal (IMT), which defined crimes against humanity as consisting of “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.” Although this definition seemed to specifically envision the prosecution of acts committed before the official launch of the war—which is pegged to Germany’s invasion of Poland in 1939—the tribunal controversially interpreted the language “in execution of or in connection with” as requiring a link between any crime against humanity to be prosecuted as either a crime against the peace or a war crime. Finch 1947 offers a contemporaneous critique of this ruling. As discussed extensively in Clark 1990, this formulation became known as the “war nexus.” As Luban 2008 explains, the charter’s drafters and the Nuremberg Tribunal itself considered the war nexus necessary to justify the extension of international jurisdiction into what would otherwise be acts within the domestic jurisdiction of a state and to satisfy the principle of legality given the novelty of the crimes against humanity charge. Until the matter was put to rest with the promulgation of the Statute of the International Criminal Court, some controversy remained as to whether this link to an armed conflict was inherent to the notion of crimes against humanity or a unique feature of the postwar prosecutions. The UN Security Council reproduced a version of the war nexus when it drafted the statute of the ad hoc International Criminal Tribunal for the Former Yugoslavia (ICTY). As Van Schaack 1999 recounts, the appeals chamber of the ICTY, however, affirmed the obiter dicta of the trial chamber when it declared the war nexus to be a jurisdictional element peculiar to the Nuremberg Charter and now to the ICTY statute as opposed to a substantive element of customary international law.

  • Clark, Roger S. “Crimes Against Humanity at Nuremberg.” In The Nuremberg Trial and International Law. Edited by George Ginsburgs and V. N. Kudriavtsev, 177–199. Dordrecht, The Netherlands: Martinus Nijhoff, 1990.

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    Clark, an academic who served on the delegation of Samoa during the Rome Conference, provides a detailed discussion of the history of crimes against humanity since the World War I period with an emphasis on tracing the formulation ultimately included within the Nuremberg Charter and the origins of the so-called war nexus.

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  • Finch, George A. “The Nuremberg Trial and International Law.” American Journal of International Law 41 (1947): 20–37.

    DOI: 10.2307/2193852Save Citation »Export Citation »E-mail Citation »

    This article largely justifies the inclusion of crimes against humanity in the Nuremberg Charter, although it takes issue with the imposition of the war nexus. The majority of the article is more skeptical, however, of the crimes against the peace charge, which was also novel at the time.

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  • Luban, David. “The Legacies of Nuremberg.” In Perspectives on the Nuremberg Trial. Edited by Guénaël Mettraux, 638–672. Oxford: Oxford University Press, 2008.

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    This chapter identifies the crime as one of three legacies of Nuremberg (along with the postconflict imposition of law and the recognition that bureaucracies dilute moral responsibility). Luban notes that by piercing the veil of sovereignty, the crime is in tension with crimes against the peace. The war nexus was the solution adopted to address this, although the doctrine of humanitarian intervention might have served this purpose.

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  • Van Schaack, Beth. “The Definition of Crimes Against Humanity: Resolving the Incoherence.” Columbia Journal of Transnational Law 37 (1999): 787–849.

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    This work focuses on the so-called war nexus, which was invoked in the Nuremberg proceedings to require a link between crimes against humanity charged and war crimes or crimes against the peace. This element, which eventually fell away, allowed the Nuremberg Tribunal to condemn specific inhumane acts of Nazi perpetrators committed within Germany without threatening the entire doctrine of state sovereignty.

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National Prosecutions Stemming from World War II

Because crimes against humanity are not the subject of a multilateral treaty demanding domestic implementation, only a few states included the crime in their domestic penal codes in the period leading up to the establishment of the International Criminal Court (ICC). As such there is only a smattering of domestic precedent invoking crimes against humanity in the Cold War era, as discussed in Cassese 2006 (cited under Modern Domestic Prosecutions). Examples include Fédération Nationale des Déportés et Internés Résistants et Patriotes and Others v. Barbie (France, 1985), Attorney General of Israel v. Eichmann (Israel, 1961), Regina v. Finta (Canada, 1994), Polyukovich v. Regina (Australia, 1992), and Fédération Nationale des Déportés et Internés Résistants et Patriotes v. Touvier (France, 1992). The best English-language discussions of the French precedents can be found in Sadat Wexler 1994 and Binder 1989; Finkielkraut 1992 focuses almost exclusively on the Klaus Barbie trial. Arendt 1963 is essential to understanding the Adolf Eichmann trial.

  • Arendt, Hannah. Eichmann in Jerusalem: A Report on the Banality of Evil. New York: Viking, 1963.

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    Arendt’s seminal work on the Eichmann trial—parts of which were serialized in the New Yorker—engages many potential criticisms of the Israeli proceedings, including the designation of his crimes as against the Jewish people rather than against humanity, the argument that Israel did not exist at the time the crimes were committed, and the concerns with the way Eichmann was brought to Israel.

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  • Attorney General of the Government of the State of Israel v. Eichmann.” International Law Reports 36: 5 (Jerusalem District Court, 1961); aff’d, International Law Reports 36: 277 (Supreme Court of Israel, 1962).

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    Eichmann was prosecuted under the idiosyncratic charge of “crimes against the Jewish people,” which paralleled the international definition of crimes against humanity in some respects.

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  • Binder, Guyora. “Representing Nazism: Advocacy and Identity at the Trial of Klaus Barbie.” Yale Law Journal 98 (1989): 1321–1383.

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    Binder recounts how the Barbie trial became a cultural phenomenon in France, critiquing the way the victim groups involved defined themselves in opposition to their enemy, the Nazis—an “inauthentic and ethically impoverished” enterprise. Binder argues that victims should instead define themselves with reference to their value commitments to act morally.

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  • Fédération Nationale des Déportés et Internés Résistants et Patriotes and Others v. Barbie.” International Law Reports 78 (1988): 125 (Cour de Cassation, France [Criminal Chamber], 20 December 1985).

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    This opinion defined crimes against humanity as “inhumane acts and persecution committed in a systematic manner in the name of a State practicing a policy of ideological supremacy, not only against persons by reason of their membership of a racial or religious community, but also against opponents of that policy, whatever the forms of their opposition.”

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  • Fédération Nationale des Déportés et Internés Résistants et Patriotes v. Touvier.” International Law Reports 100 (1992): 338 (Cour de Cassation, France [Criminal Chamber], 13 April 1992).

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    Similarly to the Fédération Nationale des Déportés et Internés Résistants et Patriotes and Others v. Barbie case, crimes against humanity were conceived of as forming “part of the execution of a common plan performed in the name of a State practicing in a systematic manner a policy of ideological supremacy” and being “committed against persons by reason of their belonging to a racial or religious group, or against opponents of that policy of ideological supremacy.”

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  • Finkielkraut, Alain. Remembering in Vain: The Klaus Barbie Trial and Crimes Against Humanity. Translated by Roxanne Lapidus and Sima Godfrey. New York: Columbia University Press, 1992.

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    Finkielkraut, a French intellectual, critiques the legal and moral basis of the Fédération Nationale des Déportés et Internés Résistants et Patriotes and Others v. Barbie trial, the way the concept was manipulated by all the parties involved, and the competing agendas of the victim groups. He also notes the poignant distinction made between victims of the Resistance—who died because they chose to fight—and deportees—who died because of an immutable part of their identity.

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  • Polyukovich v. Regina. 172 C.L.R. 501 (Austr. 1992).

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    The Australian court upheld the controversial war nexus in this precedent by ruling that “conduct which amounted to persecution on the relevant grounds, or extermination of a civilian population, including a civilian population of the same nationality as the offender, constituted a crime in international law only if it was proved that the conduct was itself a war crime or was done in execution of or in connection with a war crime.”

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    • Regina v. Finta. 1 S.C.R. 701 (Can. 1994).

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      The Finta case can be credited with providing the key for unlocking the dilemma of how to distinguish crimes against humanity from war crimes. The court ruled that a central element of the offense was that the defendant had an “awareness of the facts or circumstances which would bring his or her acts within the definition of a crime against humanity.”

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      • Sadat Wexler, Leila. “The Interpretation of the Nuremberg Principles by the French Court of Cassation: From Touvier to Barbie and Back Again.” Columbia Journal of Transnational Law 32 (1994): 289–380.

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        Sadat Wexler, who now uses only the surname Sadat, is critical of the French jurisprudence, which added the requirements that the perpetrator be acting on behalf of a state motivated by a hegemonic political ideology in execution of a common plan—two elements aimed toward exonerating the Vichy government from responsibility and limiting the application of the offense to France’s colonial and postcolonial activities in Algeria.

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      More Modern Sources

      Subsequent treaties touching on crimes against humanity include the Convention on the Prevention and Punishment of the Crime of Genocide, the International Convention on the Suppression and Punishment of the Crime of Apartheid, the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, and the International Convention for the Protection of All Persons from Enforced Disappearance. Two treaties, one adopted by the Council of Europe (European Convention on the Nonapplicability of Statutory Limitation to Crimes Against Humanity and War Crimes) and one of universal applicability (Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity), confirm that crimes against humanity are not subject to prescription; neither treaty is well subscribed to. Unlike genocide, torture, and war crimes, crimes against humanity never became the subject of a comprehensive treaty in the postwar period, as discussed by Bassiouni 1993–1994. As such the crime resided in customary international law until the UN Security Council promulgated the statutes of the two ad hoc criminal tribunals for Yugoslavia and Rwanda. With the enactment of the Statute of the International Criminal Court, states are increasingly codifying a prohibition of crimes against humanity in their domestic codes. Leila Nadya Sadat, an expert on international criminal law, has launched a project to promulgate a multilateral treaty on crimes against humanity, which she discusses in Sadat 2011. This initiative is further discussed on the Crimes Against Humanity Initiative website.

      • Bassiouni, M. Cherif. “‘Crimes Against Humanity’: The Need for a Specialized Convention.” Columbia Journal of Transnational Law 31 (1993–1994): 457–494.

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        Identifying a gap in the international criminal law treaty regime, Bassiouni convincingly defends the need for a multilateral treaty devoted to crimes against humanity. In his view, such a treaty would cure defects in the World War II definitions; signal the unequivocal condemnation of the crime; create a system of universal jurisdiction, extradition, and mutual cooperation in prosecution; and ultimately contribute to ending the systemic impunity for crimes against humanity.

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      • Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. G.A. res. 39/46, annex, 39 UN GAOR Supp. (No. 51) at 197, UN Doc. A/39/51 1984, entered into force 26 June 1987.

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        The Torture Convention defines torture as a stand-alone crime, although torture is also listed as a crime against humanity. The treaty allows for the exercise of universal jurisdiction over the offense.

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      • Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity. 754 U.N.T.S. 75, 26 November 1968.

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        This treaty provides that crimes against humanity are not subject to any statute of limitation. Although it has been in force since 1970, it is not well subscribed to. The crime is defined with reference to the Nuremberg Charter as well as the international prohibitions against apartheid and genocide.

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      • Convention on the Prevention and Punishment of the Crime of Genocide.9 December 1948, 78 U.N.T.S. 277, entered into force 12 January 1951.

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        Genocide is often conceived of as a type of crime against humanity, although the elements differ considerably. In particular, a conviction for genocide requires proof that a protected group was targeted for destruction in whole or in part.

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      • European Convention on the Nonapplicability of Statutory Limitation to Crimes Against Humanity and War Crimes. Europ. T.S. No. 82, 25 January 1974.

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        The Council of Europe promulgated this regional treaty when few member states joined the United Nations’ treaty to the same purpose. It defines crimes against humanity largely with reference to the Genocide Convention. It entered into force in 2003. Most domestic laws governing the crime are not subject to prescription. Reprinted in International Law Materials 13 (1974): 540.

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      • International Convention for the Protection of All Persons from Enforced Disappearance. UN Doc. E/CN.4/2005/WG.22/WP.1/Review4, entered into force 23 December 2010.

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        Forced disappearances are often listed as a crime against humanity. This treaty defines this conduct as a stand-alone crime subject to universal jurisdiction when the alleged perpetrator is present in any territory under the prosecuting state’s jurisdiction.

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      • International Convention on the Suppression and Punishment of the Crime of Apartheid. G.A. Res. 3068 (XXVIII), 28 UN GAOR Supp. (No. 30) at 75, UN Doc. A/9030 1974, 1015 U.N.T.S. 243, entered into force 18 July 1976.

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        This treaty declares that the practice of apartheid constitutes a crime against humanity.

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      • Sadat, Leila Nadya, ed. Forging a Convention for Crimes Against Humanity. Cambridge, UK: Cambridge University Press, 2011.

        DOI: 10.1017/CBO9780511921124Save Citation »Export Citation »E-mail Citation »

        This edited volume includes the complete text of a proposed convention on crimes against humanity, which would subject the crime to universal jurisdiction and create a treaty-based obligation to prosecute the crime under national law. Essays within this volume connect the crime to the “responsibility to protect” principle; address issues of amnesty, immunity, and modes of responsibility; and elaborate upon the particular elements of the crime.

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      The Modern International Tribunals

      In promulgating the statutes of the two ad hoc tribunals pursuant to its Chapter VII powers, the UN Security Council revived the concept of crimes against humanity in international criminal law. The Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Former Yugoslavia since 1991, for example, allows for the prosecution of “the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population: (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.” The definition in the Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States is substantially the same, although it also requires proof that a civilian population was attacked on “national, political, ethnic, racial or religious grounds” and omits reference to the war nexus. These definitions served as the starting point for negotiations surrounding the establishment of a permanent international criminal court, as discussed in Bassiouni 1998.

      • Bassiouni, M. Cherif, ed. International Criminal Court: Compilation of United Nations Documents and Draft ICC Statute before the Diplomatic Conference. Rome: No Peace without Justice, 1998.

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        This text compiles some but not all of the predecessor texts to the 1998 Rome Statute with minimal commentary.

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      • Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States. Art. 3, UN Doc. S/Res/955 (1994).

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        The Rwandan statute largely mirrors the International Criminal Tribunal for the Former Yugoslavia (ICTY) statute in defining crimes against humanity. See International Legal Materials (1994) 33: 1598, 1603 1994.

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      • Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Former Yugoslavia since 1991. Annexed to Report of the Secretary-General Pursuant to Paragraph 2 of UN Security Council Resolution 808, art. 5, UN GAOR, 19 May 1993, UN Doc S/25704.

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        The International Criminal Tribunal for the Former Yugoslavia (ICTY) statute was the first modern international instrument to enable the prosecution of crimes against humanity since the World War II era.

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      The International Criminal Court

      The Rome Statute of the International Criminal Court, finalized at a diplomatic conference held in 1998 in Rome, Italy, contains at Article 7 a modern definition of the offense enjoying a broad international consensus. The so-called chapeau elements, which apply to all enumerated acts, are what distinguish crimes against humanity from ordinary crimes. These are (1) the existence of a widespread or systematic attack (formulated in the disjunctive after much negotiation; see Kirsch 2009) (2) against a civilian population (3) by a perpetrator who is acting with knowledge of the attack. This last element reveals that the offense (like many international crimes) has a dual mens rea: the mental state inherent to each enumerated act as well as an overarching mental state of knowledge of the wider context in which the individual is acting—the subject of deGuzman 2000. The definition is also notable in its expansion of enumerated acts as compared even to the statutes of the ad hoc tribunals. Worthy of additional comment is the fulsome and illustrative list of sexual violence crimes—a significant and hard-fought development, as discussed in Bedont and Martinez 1999. Article 7 defines key terms, such as “attack directed against any civilian population,” which is deemed to mean “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 latter definitional element has remained controversial, as anticipated by Hwang 1998 and discussed in Schabas 2008 (cited under The Necessity of Proof of a Policy), which argues for its retention. Robinson 1999 and Robinson, et al. 2001—both penned by Darryl Robinson, a member of the Canadian delegation to the Rome Conference—provide another insider’s look at the negotiating history of the material, mental, and circumstantial elements of crimes against humanity as formulated for the International Criminal Court (ICC). Notwithstanding the ICC statute, crimes against humanity are also prohibited by customary international law, which many scholars (such as in Paust 2010 and Cassese 2008, the latter cited under Casebooks and Hornbooks) argue is broader than the treaty formulation.

      • Bedont, Barbara, and Katherine Hall Martinez. “Ending Impunity for Gender Crimes under the International Criminal Court.” Brown Journal of World Affairs 6 (1999): 65–85.

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        The authors of this text were both members of the Women’s Caucus for Gender Justice, which was formed to infuse a gender perspective into the negotiations surrounding the establishment of the ICC. Their article discusses the obstacles to and strategies behind achieving the expansive provisions addressing gender-based violence in the ICC statute.

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      • deGuzman, Margaret McAuliffe. “The Road from Rome: The Developing Law of Crimes Against Humanity.” Human Rights Quarterly 22 (2000): 335–403.

        DOI: 10.1353/hrq.2000.0023Save Citation »Export Citation »E-mail Citation »

        This article provides a legal, historical, and normative analysis of the elements of crimes against humanity as contained within the ICC statute and its predecessors. The author provides a close analysis of the mental element of crimes against humanity, which supplies the necessary nexus between the individual offense committed and the widespread or systematic attack against the civilian population.

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      • Hwang, Phyllis. “Defining Crimes Against Humanity in the Rome Statute of the International Criminal Court.” Fordham International Law Journal 22 (1998): 457–504.

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        Hwang analyzes the then-newly minted definition against prior articulations of the crime. She provides a close read of the negotiations with an emphasis on the chapeau elements of the crime. She concludes that while many aspects of the definition are to be welcomed (e.g., the disjunctive nature of the widespread or systematic attack), other aspects raise concerns (e.g., the stealth policy requirement).

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      • Kirsch, Stefan. “Two Kinds of Wrong: On the Context Element of Crimes Against Humanity.” Leiden Journal of International Law 22.3 (2009): 525–541.

        DOI: 10.1017/S0922156509990070Save Citation »Export Citation »E-mail Citation »

        With a focus on German law, Kirsch argues that the jurisdictional elements of crimes against humanity (namely, the existence of a widespread or systematic attack against a civilian population) should not operate as an aggravating circumstance for particular crimes against humanity when compared to the sentences that would be accorded to domestic-law analogs to those crimes.

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      • Paust, Jordan J. “The International Criminal Court Does Not Have Complete Jurisdiction over Customary Crimes Against Humanity and War Crimes.” John Marshall Law Review 43 (Spring 2010): 681–714.

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        Paust, a prolific author in the field, discusses various limits on the jurisdiction of the ICC with regard to crimes against humanity and war crimes as compared to the broader reach of customary international law.

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      • Robinson, Darryl. “Defining ‘Crimes Against Humanity’ at the Rome Conference.” American Journal of International Law 93 (1999): 43–57.

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        In this work Robinson identifies the most important compromises and innovations behind Article 7 of the ICC statute.

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      • Robinson, Darryl, Georg Witschel, and Wiebke Rûckert. “The Elements of Crimes Against Humanity.” In The International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence. Edited by Roy S. Lee, 57–108. Ardsley, NY: Transnational, 2001.

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        This chapter provides a paragraph-by-paragraph description of the negotiating history of the ICC’s elements of crimes for crimes Against humanity with reference to philosophical debates among drafters, textual alternatives, and major compromises. It also offers a relatively positive analysis and assessment of the final text.

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      • Rome Statute of the International Criminal Court. UN Doc. A/CONF.183/9, 17 July, 1998.

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        Subsequent to the promulgation of the treaties, the international community also promulgated elements of crimes to guide in the interpretation of the treaty. They are available at Elements of Crimes.

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      • Triffterer, Otto. Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article. 2d ed. Portland, OR: Hart, 2008.

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        This legislative history of the ICC statute contains several contributions on Article 7 of the statute governing crimes against humanity that have been revised by Christopher Hall of Amnesty International, who chaired the nongovernmental organization working group on substantive law at the Rome Conference.

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      International Jurisprudence

      To understand the modern jurisprudence of crimes against humanity, one starts with the seminal Prosecutor v. Tadić case, the first modern case in which an international tribunal grappled with a number of international criminal law (ICL) concepts for the first time since the World War II period. The Prosecutor v. Kupreškić case provides a useful overview of key concepts. Prosecutor v. Akayesu is significant in ICL for a number of key holdings, including the first conviction for rape as a crime against humanity. Askin 2005 argues that the Rwandan Tribunal has not implemented the full reach of the Akayesu judgment in terms of gender justice. Prosecutor v. Kunarac and Prosecutor v. Semanza built on this precedent and address the practice of cumulative charging before the International Criminal Tribunal for the Former Yugoslavia (ICTY). Because the International Criminal Court (ICC) has yet to issue a final judgment, it remains to be seen to what degree that court relies upon this prior jurisprudence in interpreting its own statute. A hint to the court’s approach is visible, however, in the Article 15 opinion in the Situation in the Republic of Kenya. There the court granted the prosecutor’s request to open an investigation into postelection violence in Kenya. This required a conclusion that those events rose to the level of crimes against humanity, a ruling that provoked a lengthy dissent from Judge Hans-Peter Kaul, who argued that there was an insufficient showing that the crimes were committed pursuant to a governmental or institutional policy. Most important cases have emerged from the international and quasi-international criminal tribunals. Day 2004, however, discusses a case before the United Nations’ International Court of Justice that determined that sitting foreign ministers are entitled to immunity from suit for crimes against humanity in domestic courts.

      • Askin, Kelly. “Gender Crimes Jurisprudence in the ICTR.” Journal of International Criminal Justice 3 (2005): 1007–1018.

        DOI: 10.1093/jicj/mqi061Save Citation »Export Citation »E-mail Citation »

        Askin, an expert on gender, critiques the International Criminal Tribunal for Rwanda (ICTR) for not building on the gender justice precedent set in Prosecutor v. Akayesu.

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      • Day, Adam. “Crimes Against Humanity as a Nexus of Individual and State Responsibility: Why the ICJ Got Belgium v. Congo Wrong.” Berkeley Journal of International Law 22 (2004): 489–512.

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        The International Court of Justice has held that an incumbent minister of Foreign Affairs for the Democratic Republic of Congo enjoyed immunity from prosecution for crimes against humanity before Belgian courts. In his student note, Day argues that elements of the court’s treatment of immunity contradict the scope of immunity as established in customary international law.

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      • Prosecutor v. Akayesu. Case No. ICTR-96-4-T, Judgement (2 September 1998).

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        In Akayesu an international tribunal defined rape under international law for the first time, recognizing the crime as a predicate to both crimes against humanity and genocide, as discussed in Askin 2005. The opinion also discusses the crime of extermination, which dovetails with the crime of genocide, with particular reference to the question of what quantity of deaths triggers a finding of extermination versus the crime against humanity of murder.

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        • Prosecutor v. Kunarac. Case No. IT-96-23/1-A, Judgement (12 June 2002).

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          This case is credited with a number of important rulings, including the inapplicability of a policy element to crimes against humanity and also the recognition that acts of rape may be cumulatively charged as the crime against humanity of torture.

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          • Prosecutor v. Kupreškić. Case No. IT-95-16-T, Judgement (14 January 2000).

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            In addition to providing a useful nuts-and-bolts discussion of the elements of all crimes against humanity, Kupreškić also provides a detailed discussion of the particular crime of persecution.

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            • Prosecutor v. Semanza. Case No. ICTR097-20-T, Judgement and Sentence (15 May 2003).

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              The Semanza case involved acts of sexual violence charged as the crimes against humanity of rape, torture, and persecution.

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              • Prosecution v. Tadić. Case No. IT-94-I-T, Decision on the Defence Motion (10 August 1995), rev’d in part and aff’d in part, Prosecutor v. Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal in Jurisdiction (2 October 1995); Prosecutor v. Tadić, Case No. IT-94-1-T, Opinion and Judgement (7 May 1997).

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                In this set of decisions the ICTY identified the modern foundation for the offense by, inter alia, rejecting the war nexus, confirming that crimes against humanity may be committed for purely personal motives, ruling that only the crime against humanity of persecution requires proof of discriminatory intent, expanding upon the definition of “civilian population,” and identifying the mens rea of the offense as the internationalizing element.

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                • Situation in the Republic of Kenya. ICC-01/09-19-Corr, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya (31 March 2010).

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                  This opinion, which allows the prosecutor to commence an investigation into postelection violence in Kenya, sets forth the ICC’s approach to crimes against humanity with reference to the chapeau elements of the crime.

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                Modern Domestic Prosecutions

                Upon ratifying the International Criminal Court (ICC) statute, many states harmonized their domestic penal codes with the substantive provisions of the treaty in order to be able to enjoy the privilege of complementarity (see the Library of Congress’s compilation of these statutes in Law Library of Congress 2010). States demonstrate varying degrees of fealty to the ICC definition of the crime in this process. In two works, for example, Fannie Lafontaine (Lafontaine 2010, Lafontaine 2009) discusses the way Canada has implemented the ICC statute. Wanless 2009 discusses corporate liability under the Canadian statute. Ambos 2011 describes a domestic case adjudicating crimes against humanity in Peru. The United States, not a party to the ICC statute, has produced some draft legislation criminalizing crimes against humanity that has yet to be enacted, as discussed in Singh 2010. Cases brought under statutes that postdate the acts in question have been the subject of legality challenges, as discussed in Cassese 2006. Zoller 1993—which predates the promulgation of the ICC statute—discusses amendments to the French Penal Code that modernized the definition of crimes against humanity.

                • Ambos, Kai. “The Fujimori Judgment: A President’s Responsibility for Crimes Against Humanity as Indirect Perpetrator by Virtue of an Organized Power Apparatus.” Journal of International Criminal Justice 9 (2011): 137–158.

                  DOI: 10.1093/jicj/mqq059Save Citation »Export Citation »E-mail Citation »

                  The article gives a brief overview of the background of the Fujimori case in Peru and then analyzes Alberto Fujimori’s responsibility from national and international criminal law perspectives, focusing in particular on the evidentiary issues and the five requirements of Organisationsherrschaft (the ability of a leader to dominate an organizational apparatus) set out by the Peruvian Supreme Court.

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                • Cassese, Antonio. “Balancing the Prosecution of Crimes Against Humanity and Non-Retroactivity of Criminal Law: The Kolk and Kislyiy v. Estonia Case before the ECHR.” Journal of International Criminal Justice 4.2 (May 2006): 410–418.

                  DOI: 10.1093/jicj/mql016Save Citation »Export Citation »E-mail Citation »

                  This article addresses claims before the European Court of Human Rights (ECHR) that a domestic prosecution violated the principle of legality. The ECHR determined that the acts in question were unlawful under “general principles of law” even if not specifically penalized domestically. The author criticizes the court’s reasoning on the necessity of the war nexus (see The War Nexus), the nonprescriptability of crimes against humanity, and the sources of law relied upon.

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                • Lafontaine, Fannie. “Parties to Offences under the Canadian Crimes Against Humanity and War Crimes Act: An Analysis of Principal Liability and Complicity.” Les cahiers de droit 50 (September/December 2009): 967–1014.

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                  This article provides an analysis of whether and how Canadian law may be adapted to address the uniquely collective nature of international crimes in light of principles developed in international criminal law (ICL) with respect to individual responsibility.

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                • Lafontaine, Fannie. “Canada’s Crimes Against Humanity and War Crimes Act on Trial: An Analysis of the Munyaneza Case.” Journal of International Criminal Justice 8.1 (2010): 269–288.

                  DOI: 10.1093/jicj/mqq002Save Citation »Export Citation »E-mail Citation »

                  This article concerns the first case under Canada’s war crimes and crimes against humanity statute and focuses on two issues, namely, the definitions of offenses, which rely heavily on customary international law and on the ICC statute, and the sentencing scheme provided by the act. The short section on crimes against humanity raises the debate over whether a policy is an element of the offense under customary international law.

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                • Law Library of Congress. Crimes Against Humanity: Statutes and Criminal Code Provisions. 2010.

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                  This useful guide provides citations and links to national laws penalizing crimes against humanity.

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                • Singh, Hansdeep. “Crimes Against Humanity Draft Bill of 2009: The International Implications of Addressing Impunity through National Legislation.” ILSA Journal of International and Comparative Law 17 (Fall 2010): 23–42.

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                  This article notes the lack of a comprehensive liability regime in US domestic law and compares the draft crimes against humanity act of 2009 with international norms. Singh recommends that the act be passed so the United States can exercise jurisdiction over its own citizens, prevent impunity more broadly, and gradually bring the United States into conformity with Rome Statute and general international norms.

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                • Wanless, W. Cory. “Corporate Liability for International Crimes under Canada’s Crimes Against Humanity and War Crimes Act.” Journal of International Criminal Justice 7 (2009): 201–221.

                  DOI: 10.1093/jicj/mqp006Save Citation »Export Citation »E-mail Citation »

                  Canada was the first country to implement the Rome Statute through its Canadian Crimes against Humanity and War Crimes Act. The statute is unique in that it expanded the definition of “persons” to include corporations, who may now be held liable for crimes against humanity under domestic Canadian law.

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                • Zoller, Elisabeth. “La définition des crimes contre l’humanité.” Journal du droit international 3 (1993): 549–568.

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                  Zoller’s text (in French) discusses the way French legislators updated the definition of crimes against humanity employed in the Barbie and other cases. Zoller critiques, among other changes, the elimination of the crime of persecution as an enumerated offense and the addition of a policy element. In tracing the history of the offense, the article also discusses French contributions to the Nuremberg proceedings.

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                Torts Against Humanity

                Crimes against humanity are normally prosecuted as crimes. They may also constitute torts, giving rise to a right to reparations among victims, as argued by Curran 2008. In Sosa v. Alvarez-Machain, 542 US 692 2004, the US Supreme Court ruled that the Alien Tort Claims Act provides for federal jurisdiction over a limited number of international law violations that give rise to individual liability. Doe v. Saravia compiles US cases considering the prohibition of crimes against humanity under international law to be sufficiently specific, universal, and obligatory to be actionable under the Alien Tort Statute. These precedents suggest a way to hold corporate entities and principals liable for abusive practices under international law, as discussed in Jacobson 2005.

                • Curran, Vivian Grosswald. “Globalization, Legal Transnationalization, and Crimes Against Humanity: The Lipietz Case.” American Journal of Comparative Law 56 (Spring 2008): 363–402.

                  DOI: 10.5131/ajcl.2007.0010Save Citation »Export Citation »E-mail Citation »

                  Decided in June 2006, the Lipietz case was the first tort action the French legal system alleging complicity in crimes against humanity. Curran argues that the challenges illustrated by Lipietz—all characteristic of globalization—include identifying the presence and effects of legal transnationalization as well as developing needed adaptations without undermining fundamental national legal values.

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                • Doe v. Saravia. Findings of Fact and Conclusions of Law, 348F. Supp. 2d 1112 (E.D. Ca. 2004).

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                  This case, involving the assassination of Archbishop Oscar Romero in El Salvador, confirmed that the assassination of a public figure can constitute a crime against humanity under international law.

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                  • Jacobson, Kyle R. “Doing Business with the Devil: The Challenges of Prosecuting Corporate Officials Whose Business Transactions Facilitate War Crimes and Crimes Against Humanity.” Air Force Law Review 56 (2005): 167–231.

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                    This article engages the question addressed in tort litigation of whether and under what circumstances a corporate official can be held liable for facilitating the commission of crimes against humanity. The author argues that any criminal prosecution should be based on a decision regarding criminality by the UN Security Council or other authoritative international body rather than at the initiation of the ICC prosecutor.

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                  Elements of the Offense

                  The main elements of crimes against humanity are largely settled in the law, thanks to the work of the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) and the drafters of the International Criminal Court (ICC) statute. Crimes against humanity are characterized by three primary elements: (1) the existence of a widespread or systematic attack against a civilian population and (2) the intentional commission of an enumerated act (such as an act of murder or torture) (3) by an individual with knowledge that his or her act would contribute to the larger attack. The existence of a larger attack and the perpetrator’s knowledge thereof are what separate ordinary acts of murder or assault from the crimes against humanity of murder and torture. Notwithstanding this apparent consensus, some lingering areas of definitional confusion and controversy remain. Areas of confusion include what constitutes a “civilian” population when combatants are present and whether it is necessary to show that the widespread or systematic attack is pursuant to a state or organizational policy to commit crimes against humanity. In addition, scholars and advocates continue to push for an expansion of the particular constitutive acts that deserve to be condemned as crimes against humanity.

                  Combatants as Potential Victims of Crimes Against Humanity

                  The definition of crimes against humanity is premised on an attack against a civilian population, as explained in Cerone 2008. This terminology distinguishes crimes against humanity from operations targeting military objectives and the regrettable collateral damage that often accompanies such attacks—harm that is lawful under international humanitarian law (or the law of armed conflict). There is precedent from the Special Court for Sierra Leone (SCSL) to the effect that the population under attack need only be predominantly civilian; the presence of combatants and other lawful targets does not divest a population of its civilian status (Prosecutor v. Fofana), as discussed by Eboe-Osuji 2008. There is also some indication that military personnel who are hors de combat may also be the victims of crimes against humanity, as discussed in Prosecutor v. Martić. In any case, an attack on prisoners of war or the wounded or shipwrecked would also constitute a war crime. This set of rulings is a legacy of the Barbie case (see National Prosecutions Stemming from World War II), in which the French courts—relying on an idiosyncratic definition of the offense—ruled that members of the Resistance could be the victims of crimes against humanity. These doctrinal developments reveal the convergence of the laws of war and crimes against humanity, as addressed more fully by Akhavan 2008 (cited under Normative Redundancy).

                  • Cerone, John. “The Jurisprudential Contributions of the ICTR to the Legal Definition of Crimes Against Humanity: The Evolution of the Nexus Requirement.” New England Journal of International and Comparative Law 14 (2008): 191–201.

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                    Cerone discusses the International Criminal Tribunal for Rwanda (ICTR) contributions to the development of international criminal law, especially with respect to the requirement that there be a nexus between the defendant’s act and a widespread or systematic attack against a civilian population. Cerone argues that this consideration is critical for assessing criminal liability for attacks against civilians that do not rise to the level of an armed conflict.

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                  • Eboe-Osuji, Chile. “Crimes Against Humanity: Directing Attacks Against a Civilian Population.” African Journal of Legal Studies 2 (2008): 118–129.

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                    The author, former prosecutor with the International Criminal Tribunal for Rwanda (ICTR), engages the Prosecutor v. Fofana decision and argues that the case manifests an undue preoccupation with the meaning of “primary” in relation to the attack on the civilian population. He argues that the inquiry should instead focus on whether the civilian population was “intentionally” targeted in the attack, notwithstanding that the primary object of the attack may have been a militant group.

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                  • Prosecutor v. Fofana. Case No. SCSL-04-14-A, Judgment (28 May 2008).

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                    The SCSL confirmed that an attack can provide the predicate for crimes against humanity charges even where the objective of the fighting force legitimately aimed at responding to aggressors. The court warned against confusing the purpose of the attack with the object or target of the attack and ruled that there may be parallel attacks directed against both a civilian population and opposing forces.

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                  • Prosecutor v. Martić. Case No. IT-95-11-A, Judgement (8 October 2008).

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                    In Martić the International Criminal Tribunal for the Former Yugoslavia (ICTY) ruled that combatants who were hors de combat could be the victims of crimes against humanity. The ICTY confirmed that the chapeau element of crimes against humanity requires that the widespread or systematic attack be against a civilian population but not necessarily that every victim be a civilian.

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                    The Necessity of Proof of a Policy

                    Crimes against humanity are committed within the context of a widespread or systematic attack against a civilian population. Some controversy remains as to whether a prosecutor must also show the existence of a state or organizational policy to commit crimes against humanity in order to convict someone of the crime. Although the existence of a policy seems implicit in the idea of a systematic attack against a civilian population, a widespread attack may not involve such a predetermined policy. The jurisprudence emanating from the ad hoc tribunals has generally held that it is not necessary to demonstrate the existence of a policy, although such proof may be valuable as an evidentiary matter. The International Criminal Court (ICC) statute, however, seems to require such a policy as part of its definition of “attack” in Article 7(2)(a), as discussed in Hwang 1998 (cited under The International Criminal Court), Luban 2004 (cited under Theoretical Approaches), Schabas 2008, and Zoller 1993 (cited under Modern Domestic Prosecutions). Regardless, the threshold for proving the existence of such a policy seems rather low in those authorities that do require such a showing.

                    • Schabas, William A. “State Policy as an Element of International Crimes.” Journal of Criminal Law and Criminology 98 (2008): 953–982.

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                      Schabas, an expert on international criminal law generally and genocide in particular, argues for the inclusion of a state policy element in the definitions of crimes against humanity and genocide, notwithstanding that this would make prosecution of nonstate actors more difficult. He is concerned that neglecting this element is distorting the law and leading to a preoccupation with prosecuting low-level individuals rather than the architects of mass violence.

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                    Particular Constitutive Acts

                    The definition of crimes against humanity has always included an illustrative list of constitutive offenses. Although all international law formulations of the offense are open-ended, the list of enumerated acts constituting crimes against humanity has expanded considerably since the World War II era. To a certain degree, the catchall “other inhumane acts” ensures that no matter how detailed the definition of the crime becomes, some room for expansion and interpretation remains, as discussed in Kuschnik 2010. Given that this approach may run afoul of the principle of legality, however, the International Criminal Court (ICC) has expressed some discomfort with this conclusion, as exemplified in Prosecutor v. Katanga/Chui. Bernhard Kuschnik, a legal officer with the Special Prosecution Office in Kosovo, argues that the term “inhumane” applies to acts involving serious injuries to collective and/or individual human dignity (including acts of debasement) and critiques the ICC for adopting a more narrow approach to the offense in Katanga/Chui.

                    • Kuschnik, Bernhard. “Humaneness, Humankind, and Crimes Against Humanity.” Goettingen Journal of International Law 2 (2010): 501–530.

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                      The author explores what the interdisciplinary concept of “humanity” adds to the offense of crimes against humanity. Using the catchall concept of “other inhumane acts” and a close parsing of the ICC definition of the crime, Kuschnik explores the outer reach of crimes against humanity with reference to a gravity threshold and the interpretive principle of ejusdem generis (of the same kind).

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                    • Prosecutor v. Katanga/Chui. Case No. ICC-01/04-01/07-717, Decision on the Confirmation of Charges (30 September 2008).

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                      The catch-all concept of “other inhumane acts” encompasses “serious violations of . . . the basic rights pertaining to human beings . . . which are of a similar nature and gravity” to other enumerated acts in Article 7 of the treaty. Unlike the approach of the ad hoc tribunals, the ICC did not mention violations to human dignity as constituting an inhumane act actionable before the ICC.

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                      Persecution

                      The Nuremberg definition distinguished between two categories of crime, inhumane acts and persecutory acts, as discussed in Schwelb 1946 (cited under World War II Scholarship) and Zoller 1993 (cited under Modern Domestic Prosecutions). Over time this distinction has largely fallen away, and persecution now constitutes an enumerated act in and of itself. Persecution is distinguished from other crimes against humanity by the requirement that the underlying acts be motivated by a discriminatory animus, as discussed in Prosecutor v. Kupreškić (cited under International Jurisprudence). Under general international criminal law (ICL), acts of persecution are independently punishable. Before the International Criminal Court (ICC), however, the crime of persecution was subject to some additional subelements. In particular, Article 7(1)(h) provides that acts of persecution are only actionable if they are committed in connection with other crimes within the jurisdiction of the ICC. The jurisprudence has not fully identified the outer reach of the concept of persecution, as discussed in Badar 2004 and Blinderman 2009. Prosecutor v. Tadić and Prosecutor v. Kupreškić (both cited under International Jurisprudence) establish that the actus reus (guilty act) of persecution can cover acts enumerated elsewhere in the International Criminal Tribunal for the Former Yugoslavia (ICTY) statute acts as well as nonenumerated acts, so long as the special intent is present. We know that the concept of persecution need not have a physical element; as such it can cover property crimes, which rise to the level of crimes against humanity when they are committed on discriminatory grounds, the subject of Blinderman 2009. It remains to be seen to what extent the crime against humanity of persecution also covers other human rights violations, such as the discriminatory denial of a right to work or to education or to speak a mother tongue.

                      • Badar, Mohamed Elewa. “From the Nuremberg Charter to the Rome Statute: Defining the Elements of Crimes Against Humanity.” San Diego International Law Journal 5 (2004): 73–144.

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                        In addition to an exhaustive discussion of the history of crimes against humanity, the trend toward severing the connection between crimes against humanity and armed conflicts, and the debate over the policy element, this article focuses on the enumerated act of persecution and the then-current state of the law vis-à-vis the crime’s mental and material elements.

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                      • Blinderman, Eric H. “The Conviction of Saddam Hussein for the Crime Against Humanity of ‘Other Inhumane Acts.’” University of Pennsylvania Journal of International Law 30 (Summer 2009): 1239–1264.

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                        Blinderman’s piece discusses Saddam Hussein’s conviction for the catchall crime against humanity—other inhumane acts—in connection with the excessive destruction of property. By not relying on the crime of persecution to convict Saddam Hussein for these destructive acts, the Iraqi High Tribunal circumvented the mens rea requirement for the crime of persecution and effectively added a tenth enumerated act to crimes against humanity.

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                      Gender-Based and Sexual Violence

                      Crimes of sexual violence appear prominently in modern formulations of the crime, an important development in light of their prior invisibility in international criminal law, as detailed by Askin 2005 (cited under International Jurisprudence), Oosterveld 2006, and Moshan 1998. The Special Court for Sierra Leone (SCSL) in Prosecutor v. Brima recognized the crime of forced marriage as an “other inhumane act” as distinct from the enumerated crimes of rape, sexual slavery, and forced pregnancy, as discussed in Gong-Gershowitz 2009, Jain 2008, and Toy-Cronin 2010.

                      • Gong-Gershowitz, Jennifer. “Forced Marriage: A ‘New’ Crime Against Humanity?” Northwestern University Journal of International Human Rights 8 (Fall 2009): 53–76.

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                        This article distinguishes between wartime “forced marriages” resulting in enslavement and the peacetime “arranged marriages” found in many cultures. Gong-Gershowitz recommends that the International Criminal Court (ICC) should recognize forced marriage as a form of sexual slavery but that arranged marriages should be addressed by international human rights law, which can better accommodate cultural and legal change over time.

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                      • Jain, Neha. “Forced Marriage as a Crime Against Humanity: Problems of Definition and Prosecution.” Journal of International Criminal Justice 6.5 (2008): 1003–1032.

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                        This article analyzes whether forced marriage can be distinguished from arranged marriages, on the one hand, and sexual slavery, on the other, with reference to Sierra Leone and Cambodia. While sexual assault is almost always present in forced marriage cases, the author argues that forced marriage is distinguishable from sexual slavery in that its crucial element is the mental and moral trauma resulting from the forced association with the perpetrator.

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                      • Moshan, Brook Sari. “Women, War, and Words: The Gender Component in the Permanent International Criminal Court’s Definition of Crimes Against Humanity.” Fordham International Law Journal 22 (1998): 154–184.

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                        This student note discusses the origins of the treatment of gender within the ICC statute and argues that while the inclusion of various forms of gender-based violence as prosecutable crimes against humanity is a welcome development, the statute contains flaws that will limit the reach of these provisions. In particular, Moshan takes issue with the way the various gravity thresholds limit the range of prosecutable gender violence.

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                      • Oosterveld, Valerie. “Gender, Prosecution, and the International Criminal Court: Refugee Law’s Relevance to the Crime Against Humanity of Gender-Based Persecution.” Duke Journal of Comparative and International Law 17 (Fall 2006): 49–89.

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                        Oosterveld, an expert on gender-based violence, argues that because there is little international criminal law (ICL) precedent, the ICC should rely on refugee law to interpret this provision of its statute. Fundamental violations that lead to gender-based persecution may involve acts that seem “private” or personal but are in fact “public,” such as targeting women who believe in gender equality, targeting homosexuals, or targeting men as potential combatants.

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                      • Prosecutor v. Brima. Case No. SCSL-2004-16-A, Judgement (22 February 2008).

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                        This innovative opinion recognizes the new crime against humanity of forced marriage.

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                      • Toy-Cronin, Bridgette A. “What Is Forced Marriage? Towards a Definition of Forced Marriage as a Crime Against Humanity.” Columbia Journal of Gender and Law 19 (2010): 539–590.

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                        This article critiques the SCSL’s rulings on forced marriage against the appeals chamber’s stated aim of “enriching the jurisprudence of international criminal law” and argues that the crime of forced marriage should be limited the conferral of the status of marriage and the ongoing effects of that status on the victim. Other crimes that occur within the marriages should not be collapsed into the prosecution of forced marriage.

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                      Other Potential Crimes Against Humanity

                      Notwithstanding the expanded list of enumerated crimes against humanity within the International Criminal Court (ICC) statute, scholars and advocates continue to argue for additions, such as child labor (Camastra 2008) or child abuse (Grover 2006); abuses by the church (Groome 2011); terrorism (Proulx 2004); corruption (Bantekas 2006, Smith 2009); denying humanitarian assistance (Ford 2010; Kraemer, et al. 2008); hate speech (U.N. Tribunal Finds That Mass Media Hate Speech Constitutes Genocide and Crimes Against Humanity 2004); and environmental damage (Wattad 2009). Conceptualizing certain practices as crimes against humanity opens the door to universal jurisdiction before national courts in addition to ICC prosecutions.

                      • Bantekas, Ilias. “Corruption as an International Crime and Crime Against Humanity: An Outline of Supplementary Criminal Justice Policies.” Journal of International Criminal Justice 4.3 (2006): 466–484.

                        DOI: 10.1093/jicj/mql025Save Citation »Export Citation »E-mail Citation »

                        This article provides a background on the international regimes governing corruption and explores whether acts of corruption can be conceptualized as crimes against humanity. Bantekas ultimately concludes that some forms of bribery—such as when a corporation contracts with a corrupted government in a developing country to bar access to essential services—can meet the elements of the crime by amounting to “an attack on a civilian population.”

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                      • Camastra, Emily. “Hazardous Child Labor as a Crime Against Humanity: An Investigation into the Potential Role of the International Criminal Court in Prosecuting Hazardous Child Labor as Slavery.” Georgetown Journal on Poverty Law and Policy 15 (Summer 2008): 335–357.

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                        This student note asserts that the ICC should interpret slavery expansively so as to include extreme economic exploitation and enable hazardous child labor to be prosecuted as a crime against humanity. This approach would provide an antidote to the current lack of enforcement of labor laws, notwithstanding international and national proscriptions against hazardous child labor.

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                      • Ford, Stuart. “Is the Failure to Respond Appropriately to a Natural Disaster a Crime Against Humanity? The Responsibility to Protect and Individual Criminal Responsibility in the Aftermath of Cyclone Nargis.” Denver Journal of International Law and Policy 38 (Spring 2010): 227–276.

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                        Using Cyclone Nargis as a case study, this article explores whether an inadequate response to a natural disaster can constitute a crime against humanity and trigger the “responsibility to protect” doctrine. The author argues that using international criminal law (ICL) to trigger the responsibility to protect doctrine may help prevent crimes ex ante (before the event).

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                      • Groome, Dermot. “The Church Abuse Scandal: Were Crimes Against Humanity Committed?” Chicago Journal of International Law 11 (Winter 2011): 439–503.

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                        Using the Ryan Commission’s investigation into the Christian Brothers, a religious organization operating many of Ireland’s primary schools, this article calls for a reexamination of the elements of crimes against humanity, including whether nonstate organizations can commit such crimes and the mens rea required for the congregations’ leaders to be held liable.

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                      • Grover, Sonja. “The Systemic Persecution of Street Children as a Crime Against Humanity: Implications for Their Right to Asylum.” Journal of Migration and Refugee Issues 1.4 (2006): 118–130.

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                        This article argues that the systematic persecution of street children in some societies should be treated as a crime against humanity. Victims of such policies should be granted political asylum on grounds of being considered persecuted members of a social or political group.

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                      • Kraemer, John D., Dhrubajyoti Bhattacharya, and Lawrence O. Gostin. “Blocking Humanitarian Assistance: A Crime Against Humanity?” Lancet 372 (October 4–10, 2008): 1203–1205.

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                        Taking a public health perspective premised on a right to health, this article argues that the denial of humanitarian assistance can amount to a crime against humanity, thus triggering a right of intervention by the international community.

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                      • Proulx, Vincent-Joël. “Rethinking the Jurisdiction of the International Criminal Court in the Post-September 11th Era: Should Acts of Terrorism Qualify as Crimes Against Humanity?” American University International Law Review 19 (2004): 1009–1089.

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                        Proulx argues that acts of international terrorism qualify as crimes against humanity under the Rome Statute. As a case study, the author applies the elements found in Article 7 to September 11. The article concludes that pursuant to the principle of complementarity, where genuine national prosecutions prove illusory, the ICC could assert jurisdiction over acts of international terrorism.

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                      • Smith, Jennifer M. “Note: An International Hit Job; Prosecuting Organized Crime Acts as Crimes Against Humanity.” Georgetown Law Journal 97 (April 2009): 1111–1154.

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                        In this student note the author argues that organized crime—which encompasses human trafficking and related violence—satisfies all the elements of crimes against humanity under international criminal law (ICL) and should be prosecuted internationally as such. Smith argues that international prosecutions targeting these acts will help remove three means of survival for organized crime groups: economic power, self-defense, and political and social influence.

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                      • “U.N. Tribunal Finds That Mass Media Hate Speech Constitutes Genocide and Crimes Against Humanity—Prosecutor v. Nahimana, Barayagwiza, and Ngeze (Media Case), Case No. ICTR-99-52-T (Int’l Crim. Trib. for Rwanda Trial Chamber I Dec. 3, 2003).” Harvard Law Review 117 (June 2004): 2769–2776.

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                        In this law journal staff summary of the International Criminal Tribunal for Rwanda (ICTR) “media case” against high-level officials in Rwandan media outlets, the authors explore to what extent hate speech not prosecutable as incitement to genocide may constitute a crime against humanity. They criticize the tribunal’s treatment of causation as vague and assert that it presents some risk of improper malleability, particularly with regard to print media.

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                      • Wattad, Mohammed Saif-Alden. “The Rome Statute and Captain Planet: What Lies between ‘Crimes Against Humanity’ and the ‘Natural Environment?’” Fordham Environmental Law Review 19 (2009): 265–285

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                        Part of a symposium on climate change, this article explores whether damaging the natural environment should constitute an international crime in accordance with the provisions of the Rome Statute. The author asserts that criminalization through crimes against humanity is essential, because it reflects the international community’s disgust and condemnation at outrageous practices that undermine the well-being of humankind and endanger our very existence.

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                      Modern and Historical Examples of Crimes Against Humanity

                      A large amount of scholarship exists—see Kang 2006, Muhammad 2004, and Schabas 2006 as examples—that applies existing law to abusive situations around the world, both current and historical. Guarino 2010 provides an example of the latter by applying the law governing crimes against humanity to abuses committed in Francisco Franco–era Spain. Likewise, Daly 2007 discusses the creation of a 19th-century leper colony to explore whether disease containment policies might rise to the level of crimes against humanity. Ron Slye, an expert on South Africa and transitional justice, published his legal brief arguing that apartheid should be considered a crime against humanity (Slye 1999). The International Criminal Court (ICC) statute at Article 7(1)(j) now lists apartheid—defined in the “Elements of Crimes” as an “institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups”—as a crime against humanity. Nicolai 2006 (cited under Duties to Prevent and Prosecute Crimes Against Humanity) argues that contemporary conditions in Zimbabwe constitute a crime against humanity, giving rise to a right of intervention by the international community.

                      • Daly, Matthew. “Medical Necessity as a Defense for Crimes Against Humanity: An Examination of the Molokai Transfers.” Arizona Journal of International and Comparative Law 24 (Fall 2007): 645–699.

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                        This article starts with the premise that it is conceivable that a state might respond with extreme measures when confronted with the threat of a natural or man-made biological catastrophe. Incidents of forced transfer, imprisonment, torture, enforced sterilization, and persecution in a 19th-century leprosy colony on Hawaii provide a backdrop for examining crimes against humanity according to contemporary instruments in light of modern containment policies.

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                      • Guarino, Angela M. “Chasing Ghosts: Pursuing Retroactive Justice for Franco-Era Crimes Against Humanity.” Boston College International and Comparative Law Review 33 (Winter 2010): 61–85.

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                        This student note analyzes the jurisdictional obstacles to retroactive prosecution of Francisco Franco and his henchmen in Spain for crimes against humanity. The article explores whether international law provides a method to overcome these obstacles, such as Spain’s 1977 law giving regime members amnesty.

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                      • Kang, Grace M. “A Case for the Prosecution of Kim Jong Il for Crimes Against Humanity, Genocide, and War Crimes.” Columbia Human Rights Law Review 38 (Fall 2006): 51–114.

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                        Applying known facts from North Korea to the legal framework for prosecuting crimes before the ICC, the article concludes that there is a reasonable basis to believe that Kim Jong Il and his cadres are individually liable for crimes against humanity, genocide, and war crimes. Despite the difficulty of enforcement, the article recommends that the UN Security Council refer the situation to the ICC.

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                      • Muhammad, Patricia M. “The Trans-Atlantic Slave Trade: A Forgotten Crime Against Humanity as Defined by International Law.” American University International Law Review 19 (2004): 883–947.

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                        Through a rich examination of the transatlantic slave trade, the author concludes that the exploitation of Africans through the slave trade constituted a crime against humanity according to legal principles set forth in the international criminal tribunals, the Rome Statute, and the Slavery Conventions.

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                      • Schabas, William A. “Genocide, Crimes Against Humanity, and Darfur: The Commission of Inquiry’s Findings on Genocide.” Cardozo Law Review 27 (February 2006): 1703–1721.

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                        Schabas here turns his attention to the civil war in Darfur and explores whether crimes perpetrated there are more accurately categorized as ethnic cleansing, genocide, or crimes against humanity.

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                      • Slye, Ron. “Apartheid as a Crime Against Humanity: A Submission to the South African Truth and Reconciliation Commission.” Michigan Journal of International Law 20 1999: 267–300.

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                        This article originated as a brief filed before the Truth and Reconciliation Commission in South Africa and makes the argument that apartheid constitutes a crime against humanity.

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                      Duties to Prevent and Prosecute Crimes Against Humanity

                      It is tempting to focus on judicial remedies for crimes against humanity. However, the commission of massive human rights violations also implicates the “responsibility to protect” doctrine, as outlined by Aronofsky 2007 and Crane 2009. This doctrine is the result of a project to address the historic failure of the international community to intervene to prevent serious human rights violations that rise to the level of crimes against humanity or genocide. Several authors (for example, in Williams and Stewart 2007) argue that once atrocities rise to the level of crimes against humanity, a right—if not a duty—of intervention arises. Nicolai 2006 applies this framework to a massive internal displacement that took place in Zimbabwe under President Robert Mugabe.

                      • Aronofsky, David. “The International Legal Responsibility to Protect Against Genocide, War Crimes, and Crimes Against Humanity: Why National Sovereignty Does Not Preclude Its Exercise.” ILSA Journal of International and Comparative Law 13 (Spring 2007): 317–319.

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                        This is a text of a speech arguing that international law imposes a legal duty on all nations to protect and to prevent atrocities, that national sovereignty does not bar the exercise of this duty, that states may act unilaterally or multilaterally, and that the duty to protect must be exercised effectively rather than merely symbolically.

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                      • Crane, David M. “A Wrong on Humanity: Prevention of Crimes Against Humanity.” University of Pennsylvania Journal of International Law 30 (Summer 2009): 1265–1280.

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                        In addition to discussing crimes Against humanity from historical and future perspectives, Crane—former chief prosecutor of the Special Court for Sierra Leone (SCSL)—offers new models of prevention in contrast to the “reactive” paradigm.

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                      • Nicolai, Jeff. “Operation Murambatsvina: A Crime Against Humanity under the Rome Statute?” American University International Law Review 21 (2006): 813–844.

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                        This article argues that the international community should collectively intervene for the sake of Zimbabwe’s civilian population. A UN Security Council referral of the matter to the International Criminal Court (ICC) would deter other states from engaging in the forced displacement of their citizens and would further international peace and security.

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                      • Williams, Paul R., and Meghan E. Stewart. “Humanitarian Intervention: The New Missing Link in the Fight to Prevent Crimes Against Humanity and Genocide?” Case Western Reserve Journal of International Law 40 (2007): 97–110.

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                        The authors offer a discussion of humanitarian intervention as a means to prevent crimes against humanity, notwithstanding its indefinite legal framework and five obstacles to its implementation.

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                      Normative Redundancy

                      International criminal law (ICL) is characterized by a high degree of normative redundancy. At times the same underlying conduct can be charged as a war crime (if committed against a protected person within the context of an armed conflict), an act of genocide (if committed with the specific intent to destroy a protected group), and a crime against humanity (if committed within the context of a widespread and systematic attack against a civilian population with knowledge of that attack). Indeed, genocide is often considered a subset of crimes against humanity that is distinguished by its specific intent and the limited number of protected groups. The attack on a civilian population—the condition precedent to crimes against humanity—may also constitute a war crime. A number of works—such as Fenrick 1998, Green 1997–1998, Luban 2006, Nersessian 2007, Ratner 2007, and Schabas 2006 (cited under Modern and Historical Examples of Crimes Against Humanity)—endeavor to delineate the boundaries between and areas of overlap of, the range of international offenses. As revealed in other cases cited in this article and Prosecutor v. Erdemović and Prosecutor v. Gotovina, prosecutors in the ad hoc tribunals often charge the same conduct as both a war crime and a crime against humanity if the chapeau elements for each crime are satisfied. The 2007 Gotovina decision is the subject of Akhavan 2008. Payam Akhavan, a former legal adviser to the International Criminal Tribunal for the Former Yugoslavia (ICTY) now serving on Ante Gotovina’s defense team, addresses the question of whether conduct consistent with the law of war could constitute a crime against humanity and critiques the ruling by the trial chamber that forced displacement of civilians that would not constitute the crime of deportation under the law of armed conflict (which penalizes deportations only from occupied territory) could nonetheless be charged as the crime against humanity of deportation.

                      • Akhavan, Payam. “Reconciling Crimes Against Humanity with the Laws of War.” Journal of International Criminal Justice 6.1 (2008): 21–37.

                        DOI: 10.1093/jicj/mqn001Save Citation »Export Citation »E-mail Citation »

                        Akhavan highlights the tensions between the concept of military necessity in humanitarian law and the humanitarian impulse behind crimes against humanity. Akhavan argues that the Yugoslavia Tribunal effectively diluted humanitarian law by criminalizing incidental suffering inherent to war and put military members at risk for prosecution in good-faith combat situations.

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                      • Fenrick, William J. “Should Crimes Against Humanity Replace War Crimes?” Columbia Journal of Transnational Law 37 (1998): 767–785.

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                        Fenrick, another former ICTY senior legal adviser, argues that crimes against humanity can only be charged where there is an attack on a civilian population pursuant to a state or organizational policy to mistreat civilians. As such not every war crime committed against civilians or in violation of the rules governing the conduct of hostilities will necessarily constitute a crime against humanity.

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                      • Green, L. C. “‘Grave Breaches’ or Crimes Against Humanity?” United States Air Force Academy Journal of Legal Studies 8 (1997–1998): 19–33.

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                        Green, who prosecuted war crimes trials in the 1940s and was on the faculty of the Naval War College, suggests that given the difficulty of conflict classification, prosecutors should rely more heavily on crimes against humanity than war crimes charges in situations in which it is unclear which rules of international humanitarian law apply. He argues that the International Committee of the Red Cross and other norm entrepreneurs should move the law in this direction.

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                      • Luban, David. “Calling Genocide by Its Rightful Name: Lemkin’s Word, Darfur, and the UN Report.” Chicago Journal of International Law 7 (2006): 303–320.

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                        In this article, written in the wake of the UN Commission of Experts’ report concluding that the government of Sudan was not engaged in a policy of genocide in Darfur, Luban notes that in the public mind genocide and crime against humanity are largely conflated. As such the concept of extermination should be employed more readily to address situations of mass violence.

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                      • Nersessian, David L. “Comparative Approaches to Punishing Hate: The Intersection of Genocide and Crimes Against Humanity.” Stanford Journal of International Law 43 (Summer 2007): 221–264.

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                        Nersessian compares the legal elements of and interests protected by the crimes of persecution and genocide. He argues that political groups are not sufficiently protected under the crime against humanity of persecution and that a lacuna exists within international criminal law.

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                      • Prosecutor v. Erdemović Case No. IT-96-22-A, Joint Separate Opinion of Judge McDonald and Judge Vohrah (7 October 1997).

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                        One of the first cases to be adjudicated by the ICTY, Erdemović ended with a guilty plea. The separate opinions debate the question of whether there is a hierarchy of crimes in international criminal law (ICL), with the cited opinion concluding that crimes against humanity are more serious than war crimes.

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                        • Prosecutor v. Gotovina. Case No. IT-06-90-PT, Decision on Several Motions Challenging Jurisdiction (19 March 2007).

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                          This case reaches a conclusion that the displacement of the civilian population in an armed conflict situation may amount to crimes against humanity.

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                          • Ratner, Steven R. “Can We Compare Evils? The Enduring Debate on Genocide and Crimes Against Humanity.” Washington University Global Studies Law Review 6 (2007): 583–589.

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                            In this short article the author—a noted academic who has served on expert investigative panels for Cambodia and Sri Lanka—addresses the question of whether there is a hierarchy of crimes between genocide and crimes against humanity. After identifying and critiquing four responses to this question found in the literature, Ratner insists on the moral equivalence of the crimes while also accepting their legal distinctions.

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                          LAST MODIFIED: 03/23/2012

                          DOI: 10.1093/OBO/9780199796953-0048

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