Crimes against Humanity

by

Beth van Schaack

• LAST REVIEWED: 23 March 2012
• LAST MODIFIED: 23 March 2012
• DOI: 10.1093/obo/9780199796953-0048

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:1020123920538

  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.

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

  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.

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

  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.

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

  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.

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

  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.

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

  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.

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

  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.