Abstract
This chapter discusses the existing legal theories of crimes against humanity. It breaks the analytical classification into two sub-categories (conceptual and normative) and further proceeds to laying out the conceptual grounds for the proposed theory of humanness . The chapter also explains what the expression “a theory of crimes against humanity” means, i.e., it tries to clarify what key components such a theory has to possess. In this case, those components would be the theory’s “purpose” and “justification”. This chapter furthermore looks at how the relevant criminal law doctrines were or were not used in the considered theoretical normative descriptions, and suggests in which direction they would be better off going, with a view to providing a more comprehensive view. At the end the chapter offers a preliminary assessment of the relationship, or correlation, between the constituent elements of humanness and the individual acts of crimes against humanity as well as the so-called “contextual element” as established in the Rome Statute of the ICC.
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- 1.
deGuzman 2011, p. 128. Unfortunately, deGuzman does not explain in her cited work what she means by a “normative vision”.
- 2.
This description of a legal theory is offered in Lawrence Solum, “Legal Theory Lexicon: Wellfare, Well-Being and Happiness”, 31 May 2009, available at http://lsolum.typepad.com/legaltheory/normative_legal_theory/. Accessed 26 November 2018.
- 3.
Rome Statute of the International Criminal Court , opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) (Rome Statute ), Article 7.
- 4.
- 5.
- 6.
- 7.
Schabas 2008, p. 959.
- 8.
- 9.
Macleod 2010.
- 10.
Dubler 2008, pp. 102–104, 106–107.
- 11.
See for a list of some of those doctrinal questions (what is a systematic attack, is a policy element required, what is a civilian population, etc.), e.g., deGuzman 2011, pp. 130–134. Unfortunately, she does not include in that list an exact protected interest of crimes against humanity’s criminalization which is certainly an open issue in both doctrine and law.
- 12.
- 13.
Renzo 2012, pp. 448.
- 14.
Ibid.
- 15.
Ibid.
- 16.
Ibid., p. 449.
- 17.
- 18.
Ibid., pp. 38–39.
- 19.
Ibid., pp. 50–51, 54, 63.
- 20.
Ibid.
- 21.
See, for example, Werle and Jessberger 2014, p. 333, § 880. Also, this conclusion may appear surprising to those familiar with Geras’ previous work, as it seems to depart from his general ethical and legal political views towards a more liberal vision of international law and human rights. See Atadjanov 2016, p. 228.
- 22.
This is the case with, for example, Massimo Renzo whose proposed theory is analysed further below in the text.
- 23.
Which notion is more systematically used by Renzo in Renzo 2012.
- 24.
- 25.
Atadjanov 2016, p. 228.
- 26.
His emphasis appears to be on the conceptual part of his theory – as human rights argumentation is very important to Renzo, hence the inclusion of it in this section.
- 27.
Renzo 2012, p. 448.
- 28.
Ibid., pp. 448–453.
- 29.
Ibid., p. 450.
- 30.
Ibid.
- 31.
Ibid.
- 32.
Ibid., p. 451.
- 33.
See Chap. 3.
- 34.
Luban 2004, p. 87. Regrettably, Arendt opts to forego the development and expansion of this view.
- 35.
International Military Tribunal 1947, pp. 406–408 (Vol. 5: Proceedings).
- 36.
Cassese 2003, pp. 67–68.
- 37.
Macleod 2010.
- 38.
Ibid., p. 283.
- 39.
Macleod 2010, pp. 283–288. For each of those categories, the author offers a critical view, sometimes easily dismissing it, sometimes paying more serious attention to a particular definition of humanity, for example, crimes against humanity as targeting the human nature of their victims (CAH2), pp. 284–285.
- 40.
Ibid., p. 292.
- 41.
Ibid.
- 42.
Ibid. While it is not so clear why such elements should alter the crime’s quality (one should consider the crime’s qualification, if we want to explain why it ought to raise to the level of an international crime as opposed to a domestic one), Macleod’s reasoning still pointed to a right direction in terms of where to look when responding to the question of distinguishing between domestic and international crimes as well as establishing the threshold of gravity mentioned by Geras in his defense of the “human-status”-based theory.
- 43.
Ibid., p. 293.
- 44.
Ibid., pp. 299–302.
- 45.
Ibid., p. 301.
- 46.
Geras 2011, p. 63.
- 47.
Kuschnik 2010, p. 510. At this point, it might appear that the theory’s author takes an effort to address the normative issue as well, by using the principle of universality. The principle is elaborated in his another work, Kuschnik 2008, p. 230. However, he does not provide a more extensive analysis on this point (i.e., how exactly that principle lays the normative basis for a proper justification of crimes against humanity’s prohibition), thus failing in this theoretical outlook to address the second question – despite offering a rather curious conceptual explanation. The universality principle is quite well presented and explained by Kuschnik in that work (based on hostis humani generis-, or “Feinde der Menschheit”-, view of the perpetrator instead of focusing on the victim’s interest), see Ibid., pp. 231–233, but it is not connected, either there or elsewhere, to his conceptual vision of humanity.
- 48.
Kuschnik 2010, pp. 511–514.
- 49.
Ibid., p. 514.
- 50.
From Kuschnik’s point of view, human dignity is part of humanity and must be covered by the notion. Ibid., p. 510. In fact, if we distinguish that element as a full-fledged aspect on its own standing – as human right lawyers would have it, then we are even talking about a tripartite vision of humanity: as embodying humaneness, human dignity and humankind.
- 51.
A deserving criticism of this particular interpretation of humanity – as “humanEness” has been offered by Vladimir Tochilovsky who argues that the term “humaneness” is the least appropriate among the several candidates in the English language for use with crimes against humanity (due to the inability of “absence of humanness” to serve as a proper distinguishing characteristic of crimes against humanity from other crimes). He looks at the issue in the context of Russian translation of the term “crimes against humanity” as “crimes against humaneness” (“prestupleniya protiv chelovechnosti”) - precisely the problem noted in Chap. 2 of this book (Sect. 2.1.). In his view, such a translation distorts the whole concept of crimes against humanity and diminishes the gravity of this group of crimes. Tochilovsky 2018. The author of this book in general concurs with this view; interpreting the protected interest of crimes against humanity exclusively in this way does not, indeed, allow to properly capture the true nature of these crimes. It does not mean, however, that they do not attack humaneness. They do but not exclusively. Section 4.3 below addresses the elements attacked by this category of core crimes one of which constitutes humaneness. Also, perhaps the time has come to suggest a new word (term) for humanness in the languages other than English including Russian in the official translations and usages of the phrase “crimes against humanity”. There is nothing impossible in proposing such new terms because, first, the law requires preciseness and specificity in any language and second, language is a dynamic phenomenon which has to be flexible enough to respond to and accommodate the evolving needs of the society which includes proper terminology and translation.
- 52.
Ibid., pp. 519–529.
- 53.
- 54.
Ibid., pp. 352–354.
- 55.
The defendant in this case, Kaing Guek Eav aka Duch, was a former Chairman of S-21, the most important and notoriously known prison of Cambodian Khmer Rouge government. He was found guilty of the killing and torturing of a large number of inmates, and eventually sentenced to forty years of imprisonment for the commission of crimes against humanity. Corrias 2016, at p. 354, n. 14.
- 56.
Ibid., pp. 358–359.
- 57.
Ibid., p. 370.
- 58.
Ibid., p. 352.
- 59.
Ibid., p. 365.
- 60.
Ibid., p. 362.
- 61.
Ibid., pp. 360–362.
- 62.
Ibid., p. 364, citing Arendt 1977, p. 247.
- 63.
Ibid. From this quote it flows out that for Arendt, the two different understandings of humanity – as human status and as humankind, were not so much mutually exclusive as they appear to be for other analysts, e.g., Renzo, Geras, Macleod. But she, unfortunately, does not elaborate on this apparent compatibility in her works.
- 64.
Ibid., pp. 364–365.
- 65.
Ibid., p. 365.
- 66.
Ibid.
- 67.
Corrias concludes his analysis with the following reasoning: “…Most fundamentally perhaps, the work of Arendt may allow one to take one’s cue from legal and political documents to ask one of the most fundamental questions man can ask himself: What does it mean to be human? Indeed, behind the many different purposes for which the concept of humanity is used and the many different meanings it takes, we are ultimately confronted with ourselves and our own (in)humanity.” Ibid., p. 370.
- 68.
They remain normative such conceptual parts notwithstanding as their main purpose is first and foremost to provide an argumentation to justify the criminalization/prohibition/punishment of crimes against humanity, and not to engage only in semantic or reflective exercises.
- 69.
There exist some other theories of crimes against humanity which also have a prevalent normative rationale but they are not included in this chapter. They have been omitted because they have either not become influential as the ones belonging to the three normative groups, or because they simply have not been developed enough to be considered full-fledged theories. See, for example, Vernon 2013 (adopting a rather moralist/philosophical approach and arguing that crimes against humanity are committed exclusively by states); Zysset 2016 (overrelying, again, on the state-focused view of crimes against humanity, it proposes a so-called “normative community”- based view and a new term of “preparatory conditions” of the crimes).
- 70.
Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, Annex, 59 Stat. 1544, adopted 8 August 1945, 82 U.N.T.S. 279 (entered into force 8 August 1945), Article 6(c).
- 71.
- 72.
Ibid., p. 128.
- 73.
Ibid.
- 74.
See, for example, Werle and Jessberger 2014, pp. 33, 333, paras 97–99 and 880.
- 75.
As rightly pointed out by deGuzman in deGuzman 2011, p. 128.
- 76.
- 77.
- 78.
Rome Statute , above n. 3, para 3 (Preamble).
- 79.
See, for example, Dubler 2008, p. 102.
- 80.
Geras 2011, p. 43.
- 81.
Ibid., pp. 43–44. He then admits that just as any ordinary crime under municipal law can be said to contribute its share to undermining respect for the law in the particular community in which it occurs, crimes against humanity anyway jeopardize the peace and security of humankind by breaching some of the established norms of international law. But this admission is not acceptable for Geras in the given context: since here we are discussing a feature, or features, of certain kinds of acts in virtue of which they can be argued compellingly to count as crimes against humanity and so be treated as punishable offences under international law. In Geras’ words, it would beg the question – in the old, and not the ignorant, sense of this expression – to presume their already criminal character under international law [emphasis kept] Ibid. I tend to agree with his reasoning in this particular case as it goes also in line with contemporary concerns in international criminal justice where the question of humanitarian interventions posing a potential or real threat to ongoing peace processes is a recurrent theme.
- 82.
See also on this point deGuzman 2011, p. 128.
- 83.
As argued in Ibid.
- 84.
See Dubler 2008, pp. 102–104.
- 85.
Vernon 2002, pp. 245–246.
- 86.
Dubler 2008, p. 103. The theory proposed by Robert Dubler who adheres to the view that crimes against humanity constitute a threat to the peace and security of the world has not been discussed here on purpose: while he offers a rather interesting classification of different existing theories of crimes against humanity (dividing them into three main categories: theories based solely on the laws of humanity, theories based upon there being a threat to international peace, and theories based upon “state policy” element), he does not develop in detail his own doctrinal view. His deserving and logical account tends to be more descriptive rather than argumentative. See Dubler 2008, pp. 96–106. However, some elements of his account are still considered here, to illustrate or support the important points in the peace and security rationale.
- 87.
Ibid., p. 103.
- 88.
Ibid., pp. 103–104. Dubler seems to favor to continue using this rule but in conjunction with another element of crimes against humanity – the involvement of the State. According to him, the scale alone is not sufficient to establish that the criminal enterprise amounts to a threat to world peace. The state policy needs to be considered as well. Ibid., pp. 104–106. Following the classification proposed in this chapter, which differs from Dubler’s description format, that element of state policy is analyzed in the next section.
- 89.
Ibid., p. 107.
- 90.
See also deGuzman 2011, p. 129.
- 91.
Dubler 2008, pp. 85, 104–107.
- 92.
Bassiouni 2011, p. 14.
- 93.
Ibid., p. 47.
- 94.
Schabas 2008.
- 95.
Ibid., p. 982.
- 96.
See Bassiouni 2011, p. 47; Schabas 2008, p. 982. Even if on its face this argumentation concerning non-state actors does seem logical, however, in reality that simply might not be sufficient to hold them to account for the commission of serious human rights violations and crimes against international law. The blatant examples of the atrocities being committed by ISIL and Boko Haram support a more realistic view that even if there are some provisions in the national legislation for punishing non-state actors they get away with impunity – as in the cases of the ongoing armed conflicts in Syria and Iraq.
- 97.
Werle and Jessberger 2014, p. 340, paras 898–899. According to Werle and Jessberger , the formulation of this element was inspired by the 1996 version of the ILC’s Draft Code of Crimes against the Peace and Security of Mankind, where the incitement or support of the crime by a government, organization or a group is a requirement for establishing the criminality of the offence. The intention of the drafters was to make it clear that isolated crimes by individuals were not included in the crime’s definition. See Werle and Jessberger 2014, para 899 and n. 73.
- 98.
For an up-to-date review and useful references to the pertaining case-law of international tribunals on the policy element, see the exemplary analysis in Werle and Jessberger 2014, pp. 340–346, paras 898–911. The authors criticize the traditional view described earlier and maintained by certain scholars such as Schabas and Bassiouni. They reject the view that ‘state-like’ organization must always be involved arguing that there is no support in the text of the Rome Statute for a limited interpretation of the concepts of “organization” and “organizational policy”. Ibid., para 906. Citing the extensive international case-law on the subject, they seem to agree that the existence of a plan or policy may be useful in order to prove the occurrence of a systematic or widespread attack but there is no basis in customary international law – as argued by the courts and tribunals such as the ICTY, ICTR and SCSL, for a limited interpretation of crimes against humanity, i.e., there is no longer a requirement for a plan or policy in order to prove the commission of these crimes. Werle and Jessberger 2014, p. 341, para 900, n. 78.
- 99.
Ibid., pp. 33–35, 333 and 344–345, paras 97–101, 880, 907.
- 100.
Ibid., p. 344, p. 907.
- 101.
Ibid.
- 102.
- 103.
Luban 2004.
- 104.
May 2005.
- 105.
Luban 2004, p. 90.
- 106.
Ibid., pp. 90–91.
- 107.
Ibid., p. 91.
- 108.
Ibid., pp. 93–108, 109–110.
- 109.
Ibid., p. 108.
- 110.
Ibid.
- 111.
Ibid., p. 98.
- 112.
Ibid., p. 105.
- 113.
Ibid., p. 160; see also deGuzman 2011, p. 129, n. 40.
- 114.
Ibid., pp. 91–92, 137–140, 160.
- 115.
Ibid., pp. 91–92.
- 116.
Ibid., pp. 91–92, n. 17. Luban himself makes a careful remark that he uses “…the term “natural justice” rather than “due process” because the latter misleadingly suggests that I am referring only to doctrines of American constitutional law, whereas I mean to refer to the basic minimum standards of fairness in tribunals anywhere and everywhere, not just in the USA. To forestall misunderstanding, let me emphasize that talk of natural justice makes no assumption, pro or con, about the existence or validity of natural law. A legal positivist can accept the moral need for fair and rational adjudicatory process, which is all I mean by natural justice.” Ibid. I suppose that by “legal positivist” he implied not those who adhere to the strict positivism theory but rather to the lawyers and jurists who prefer to stick to the tenets of the so-called “soft positivism” which does recognize some limited role for moral principles and guidelines that may inform the law.
- 117.
This is illustrated in Luban’s following explanation: “…[f]irst, discussions of crimes against humanity take the term seriously and at face value, treating “humanity” as an operative concept with intelligible, normative content, and not just a placeholder in a legal term of art.” Ibid., p. 90. I completely agree with this point as this was one of the objects to be proven in the preceding chapter (see Chap. 3, Conclusions). “Second, discussions of crimes against humanity draw on both senses of the word “humanity” - humanity as humanness and humanity as humankind. The central questions for any theory of crimes against humanity are how these deeds violate humanness, and why they offend against all humankind.” Ibid. In this part, the restrictive reading of what humanity constitutes and how it is limiting for a theory to be inclusive, shows up. As I am arguing above, in order for a theory of crimes against humanity to be satisfactorily successful in managing to provide a comprehensive and fair vision of crimes against humanity, it must answer (1) a conceptual question of how one should understand the notion of crimes against humanity, and (2) a normative question of what exactly justifies the international prosecution of those who commit the crimes. See Sect. 4.2.1.
- 118.
Ibid., p. 111. Luban uses the Kantian idea of “Unsociable Sociability”, or “ungesellige Geselligkeit”. Ibid., p. 112, nn. 94, 98.
- 119.
Ibid., pp. 111–113.
- 120.
For an instructive account of human mind’s features, see Hauser 2009, pp. 44–51. Hauser notes Charles Darwin’s reasoning that a continuity of mind exists between humans and other animals, a view that subsequent scholars have supported. However, he then argues that mounting evidence, in fact, indicates towards a large mental gap which separates us from our fellow creatures on Earth. Hauser identifies four unique aspects of human cognition: generative computation, promiscuous combination of ideas, mental symbols and abstract thought. The origin and evolution of these distinctive mental traits remain largely mysterious, but clues are emerging slowly. Hauser 2009, pp. 44–51.
- 121.
See Dubler 2008, p. 97. He brings in a good example: “When rebel forces in 1999 attacked Freetown in Sierra Leone leading to the indiscriminate abduction of thousands of children so that they could become child soldiers or sex slaves, it just does not capture the essence of the atrocity to say that it was an attack against ‘our character as political animals ’.” Ibid., n. 60, citing SCSL, Prosecutor v Brima, Kamara and Kanu, Judgment (Trial Chamber II), 20 June 2007, SCAL-04-16-T, p. 253.
- 122.
Aristotle 2004, pp. 3–22 (Book I).
- 123.
Descartes 1988, pp. 73–122.
- 124.
Ibid., p. 109.
- 125.
As one might infer from Luban’s reference to Judeo-Christian notion of the man created in God’s image – notion coming the religions which hugely influenced the evolution of the Western culture in general. Such universality indicates once more towards the global appeal of the idea of humanity supported by the people’s common desire to be informed by it and actually be guided in their way of life.
- 126.
In order to make such an inter-disciplinary analysis, a legal historical method was necessary to undertake as carried out and explained in the preceding chapter. See also Lesaffer 2011, pp. 133–152. Lesaffer describes the method as one of the three main types of major studies of law and history, titling it “law in history”. Lesaffer 2011, pp. 136 et seq.
- 127.
Luban 2004, p. 117.
- 128.
Luban recognizes this danger himself. See Ibid., p. 91.
- 129.
See Chap. 5 for the discussion of the concept of international community .
- 130.
Rome Statute , above n. 3, Preamble, para 3: “…the most serious crimes of concern to the international community as a whole must not go unpunished”.
- 131.
Luban 2004, pp. 91, 160.
- 132.
Ibid., p. 126.
- 133.
Ibid., p. 139.
- 134.
See May et al. 2006, pp. 349–402.
- 135.
For example, a curious analysis of the Hobbesian approach to the international rule of law. May 2005, pp. 216–219. May assumes what he calls a “moral minimalist” stance as to the scope of ICL thereby being conservative on the possible expansion of the list of international crimes. He argues against those “cosmopolitan” lawyers who aspire to add new crimes into the list (such as terrorism, environmental damage, destruction of cultural monuments, etc.). May 2005, p. 93; also, May et al. 2006, p. 353.
- 136.
His main book on the matter is divided into four parts. The first part sets out a theory of sovereignty, and explains why state sovereignty is not absolute, even on a Hobbesian view, and why some norms cross borders. The second part defends two normative principles, the security and the international harm principles, that together justify international criminal trials for crimes that do not themselves cross borders. The third part defends the idea that crimes against humanity involve an intent to participate in a widespread and systematic attack on a population, making it very difficult, although not impossible, for minor players to be successfully prosecuted for crimes against humanity. The fourth part explains why prosecutions for crimes against humanity should be limited in scope, why victims are not owed international prosecutions, and why alternatives such as truth and reconciliation commissions may be acceptable alternatives to international criminal trials. Throughout, May takes a moral minimalist and defendant-oriented approach towards understanding crimes against humanity. May 2005; May et al. 2006, p. 349. It is the second part of his book that is of most relevance for this monograph, i.e., the one where the principle of security and, most importantly, the so-called “international harm principle”, are used. May titles these two concepts as “principles of ICL.” May 2005.
- 137.
May et al. 2006, p. 350.
- 138.
Ibid., pp. 350–351.
- 139.
May 2005, p. 83.
- 140.
Ibid. It needs to be noted here that May appears to be supporting a State-centered view of crimes against humanity: in his understanding, the perpetrator must be “an agent of a State or State-like entity, or … attempting to advance a plan of the State”. Ibid., p. 89. While in his definition of the harm principle collective entities other than the state can commit crimes against humanity, May stresses out that that they can do so only when they are attempting to advance a plan of the state or when “the State in some way actively participates in the harm, thereby making the harm systematic”. Ibid., p. 81.
- 141.
For major criticizing argumentation against May’s view on both crimes against humanity and ICL and justice which range from the scope of ICL, significance of state sovereignty , the requirement of fairness to defendants, “harm to humanity”, international harm principle, group-based character of international crimes and so on, as well as May’s own response to that criticism, see May et al. 2006, pp. 353, 361, 367 and 373. For the sake of space and the scope of review, I will limit my focus only to the two main points of May’s account which are most relevant for the chapter: the group-based nature and the principle of international harm.
- 142.
May 2005, p. 83.
- 143.
Ibid., p. 85.
- 144.
May et al. 2006, p. 369.
- 145.
May 2005, p. 82.
- 146.
For further development of this point see May et al. 2006, pp. 370–371.
- 147.
Renzo’s argumentation is key to my own working hypothesis as it critically analyses one normative doctrine in order to justify the response/prohibition/repression of crimes against humanity: principle of international harm. This principle flows out of a fundamental legal doctrine of harm, or harm principle, found in the Anglo-American common law system of criminal law. That is clear even if May himself does not discuss the origins of his version of international harm principle, or its connection to the common law doctrines. The doctrine of harm is juxtaposed to another alternative, its counterpart in the continental criminal law system, i.e., the doctrine of the protection of legal interest (Rechtsgutstheorie) stemming from German criminal law. This latter doctrine is the one advanced by my book. It is thus important here to consider critically, albeit briefly, the harm principle. We will take a closer look at it in Chap. 5, along with yet another alternative proposed by Renzo himself: his so-called accountability model based on a criminal law doctrine developed by Antony Duff. See Renzo 2010, pp. 267–282.
- 148.
Ibid., pp. 271–272, 274; May 2005, pp. 85–86, 374.
- 149.
- 150.
Renzo 2010, pp. 275–276.
- 151.
Ibid., p. 276. A specific example is used to illustrate that point: “…the case of a gang of diamond traffickers that attacks a group of small tribes living nearby a diamond mine, torturing, raping and enslaving their members. Once again, the tribes members in this case are not targeted because of their group identity, but simply because, in Luban’s words, “they are in the way.” Moreover, imagine that these crimes are committed in spite of the efforts made by the government of the tribes to stop them. The consequentialist interpretation of the IHP seems to suggest that only if these crimes are likely to threaten international peace and security should they be considered crimes against humanity. For example if the tribes live in a remote area, with no other populations living nearby, so that we are sure that the attack will produce no risks of spill-over effects, these should not be considered crimes against humanity. On the contrary, if the exact same kind of attack, involving the exact same number of crimes, is launched against the members of tribes living in a less remote area, with a higher risk of spill-over effects, they should. While coherent, this view seems to me unsatisfactory, in that the nature of the crimes committed in both cases is the same. The reasons why the consequences produced are different only depend on the contingent fact of the geographical position of the tribes. Therefore we should either consider the crimes committed in both cases as crimes against humanity, or consider them domestic crimes in both cases.” Ibid. See also May et al. 2006, p. 360. This reasoning is convincing – so long as we agree with the logic that if certain criminal acts are very similar in nature and the key elements necessary to qualify them as a particular type of international crimes are present (e.g., contextual elements), we cannot qualify one of those as crimes against humanity and another one as domestic ones. Simply spontaneous factors, or as Renzo call them, contingent facts, are not sufficient or exclusive to qualify the crimes properly.
- 152.
- 153.
- 154.
For example, two cases are cited by David Luban: “…a civilian population does not have to be a national, ethnic, racial, or other identity group. The Sierra Leonean rebels committed atrocities against civilian populations, but their aim was to get to the diamond mines, just as the Congolese warlords attacked civilian populations to get to the coltan mines. The victim groups were butchered not (primarily) because of their group identity, but because they were in the way. Thus, their attackers may have had no discriminatory intent — but these were still crimes against humanity.” May et al. 2006, p. 360; also, Renzo 2010, p. 272. The non-consequentialist approach might also not explain some other cases such as, e.g., the bombing of Hiroshima and Nagasaki, where no discriminatory intent based on the group characteristic of the victims could be traced down; rather, the attacks were motivated by military strategy. Renzo 2010, p. 272.
- 155.
Renzo 2010, p. 273. This could be one of the most important conclusions made by Renzo. It goes along well with his own suggested conceptual theory of crimes against humanity, which – if reader recalls, is centered on the view that our humanity is something inherent in every human being, i.e., it is our human status (see the conceptual part of the discussion in this chapter). In a curious way, it could be played as another argument in the analysis of Luban’s theory of humanity as a feature representing our nature of being “political animals ” who cannot survive without a politically organized social structure. That theory necessarily implies a collective feature of human beings – which is exactly the central element of the group-based view. In this regard, “humanness”-view incorporates both collective and individual characteristics of the people.
- 156.
Renzo 2010, pp. 273–274.
- 157.
The alternative proposed by Renzo to the international harm principle is the so-called “principle of accountability”, a criminal law doctrine elaborated by Antony Duff. It was done in response “…to the question of how should we explain the fact that while the victims of civil wrongs are free to decide whether to pursue the case or not, the prosecution of criminal wrongs (at least in principle) is not for the victim to decide, but is carried out instead in the name of the polity? In addressing it Duff himself has developed an alternative account of the idea that crimes are public wrongs. Rather than being public in the sense that they harm the public, crimes are public wrongs in the sense they are the kind of wrongs that properly concern [original emphasis preserved] the public. This means that those who commit these wrongs should be called to account by the polity as a whole, rather than just by the individual victim.” Ibid., pp. 278–279.
- 158.
- 159.
Ibid.
- 160.
- 161.
Renzo 2010, pp. 269–270.
- 162.
Certainly, to call that content “material” would be misleading since we are discussing here the constituent elements of a concept which is not legal in nature – despite the influences it has had onto the legal developments. But they are nevertheless revealed and studied displaying throughout history a consistent tendency to make up the conceptual core of humanness, and they were constantly used to describe it.
- 163.
Such as Gierhake, see Chap. 3, Sect. 3.2.3.2.
- 164.
Translated from German by the author and taken from Gierhake 2005, quoted literally in n. 783, p. 273.
- 165.
Renzo 2012, p. 450.
- 166.
Radbruch 1947, p. 131.
- 167.
United Nations General Assembly 1948, p. 71.
- 168.
Bauman 2000, p. 2. An alternative description of Humanitas was also offered defining it as “…a civilized attitude towards all people and a cultural background appropriate to that attitude”. It was used by Bauman to explain the origin of the “notion of human rights” in ancient Rome. Ibid. See also Bauman 1996, p. 14.
- 169.
Radbruch 1947, p. 132. However, this is not the basic premise of major conceptual theories of crimes against humanity which sustain that they attack mankind as such (see Sects. 4.2.2.2 and 4.2.2.3). But it still does not mean that they cannot attack both “humanness” and “mankind”. The notion of humanness is not exclusive and as discussed below it can also cover other definitions such as humankind.
- 170.
Pictet 1979, p. 143. We can also replace “mankind” by “fellow human beings” as it would not radically change the basic meaning of the concept of humaneness.
- 171.
For the discussion of their contributions, see Sect. 3.2.4.1, Chap. 3, where considerations of humanity in the evolution of LoAC are considered.
- 172.
This aspect is discussed at the end of Chap. 3. This author also agrees with Geras that while all crimes against humanity can be said to be inhumane, not every act which is inhumane in nature may be said to be rising to the level of crimes against humanity.
- 173.
It does not matter whether the person is in the physical condition of being able to actually employ that capability or not. In other words, if the victim concerned is a psychologically impaired person, she or he continues to be entitled to a full recognition of her humanness as is the case with all other people. Also, it is not to be interpreted that non-human creatures, e.g., animals, can not or should not be treated with humaneness (of course, they should!) or that they cannot be free. It only means that the element of humanness cannot be attributed to them simply because they do not possess a mind, and therefore they have no ability to reason .
- 174.
See for example, Charter of the United Nations, opened for signature 26 June 1945, 1 U.N.T.S. XVI (entered into force 24 October 1945), Preamble; United Nations General Assembly 1948, Preamble, p. 71; Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 U.N.T.S. 277 (entered into force 12 January 1951), Preamble, and others.
- 175.
On the other hand, the elements of freedom and dignity will always be values which are attributable only to the victims because the perpetrator’s freedom and dignity are not affected by the commission of the crime. Thus, one might argue that some elements are attacked or threatened in a practical sense while others (reason or civilized attitude) are undermined in a more conceptual or theoretical sense. Also, a plausible argument can be made that the civilized attitude and humaneness do “belong” to the perpetrator as she/he shows no remorse and does not demonstrate any civilized behavior in and by the commission of crimes against humanity.
- 176.
“Fellow human beings” also indicates towards members of mankind, i.e., a collectivity, making the construct a more collectivity-oriented one.
- 177.
Or “considerations of humaneness”, see Chap. 2.
- 178.
- 179.
For example, Macleod very principally distinguishes between “mankind” and “human nature ”. See Macleod 2010. But along with Kuschnik he confuses the two notions of humanness and humaneness essentially mixing them into one and the same idea which they are clearly not. However, there is a link between these two which is demonstrated in the preceding section. Geras is more progressive in this sense as he states that “inhumane acts” may be subsumed under “inhuman acts ” which are more severe in their nature. In other words, crimes against humanity represent inhumane acts of a certain threshold of gravity or seriousness, or they are simply inhuman acts . This reasoning indicates that he felt the connection between humaneness and humanness, implying that the latter is a broader category which may include the former in itself. Geras 2011, pp. 50–51.
- 180.
Rome Statute , above n. 3, Article 7(1).
- 181.
Assembly of States Parties 2002 Available at https://www.icc-cpi.int/resource-library/Documents/ElementsOfCrimesEng.pdf. Accessed 26 November 2018.
- 182.
Cryer et al. 2010, p. 246.
- 183.
Assembly of States Parties 2002, above n. 180, Article 7(1)(a), para 1, n. 7.
- 184.
ICTY, Prosecutor v. Kupreškić, Judgement, 14 January 2000, IT-95-16-T, para 702.
- 185.
Bauman 2000, p. 2.
- 186.
See also Ambos 2014, p. 84. The deprivation of access is only an example of such living conditions.
- 187.
Ibid. The group members here need not share the same common characteristics (e.g., religion, nationality, etc.) as is the case for genocide. The crime of extermination is also different from the previously considered individual act of murder because of its “massive” character (mass killings, mass destructions).
- 188.
Other human rights affected by this form of crime against humanity include such social and economic rights as the right to food, right to health and health care, and right to water and sanitation.
- 189.
- 190.
Cryer et al. 2010, p. 247.
- 191.
Ibid.; ICTY, Prosecutor v. Kunarac et al., TC Judgment, 22 February 2001, IT-96-23, para 539.
- 192.
Assembly of States Parties 2002, above n. 180, Article 7(1)(c), para 1, fn. 11; ICTY, Prosecutor v. Kunarac et al., TC Judgment, 22 February 2001, IT-96-23, paras 732–742; ICTY, Prosecutor v. Krnojelac et al., TC Judgment, 15 March 2002, IT-97-25-T, paras 193–195; Ambos 2014, p. 85; Cryer et al. 2010, pp. 247–248.
- 193.
Cryer et al. 2010, p. 248.
- 194.
Ambos 2014, p. 85.
- 195.
Cryer et al. 2010, p. 249.
- 196.
Ibid.; Assembly of States Parties, above n. 180, Article 7(1)(d), para 1, n. 12; Ambos 2014, p. 87.
- 197.
Assembly of States Parties, above n. 180, Article 7(1)(e), paras 1 and 2. The applicable case law of the ad hoc tribunals (ICTY) mainly consists of ICTY, Prosecutor v. Kordić et al., Judgment, 17 December 2004, IT-95-14/2A, paras 279, 301–302, and ICTY, Prosecutor v. Krnojelac et al., TC Judgment, 15 March 2002, IT-97-25-T, paras 111–114.
- 198.
Cryer et al. 2010, p. 249.
- 199.
Ambos 2014, p. 87.
- 200.
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), Article 10, para 1.
- 201.
Ambos 2014, p. 89. However, even if the victim is treated reasonably well and she does not suffer from inhumane or degrading treatment the crime would still attack humanness because her freedom is denied as a result of arbitrary and unlawful deprivation of liberty .
- 202.
- 203.
Rome Statute , above n. 3, Article 7(2)(e).
- 204.
Assembly of States Parties 2002, above n. 180, Article 7(1)(f), n. 14.
- 205.
ICTY, Prosecutor v. Kunarac et al., TC Judgment, 22 February 2001, IT-96-23-T, para 496; Ambos 2014, p. 90.
- 206.
Ambos 2014, p. 92.
- 207.
Assembly of States Parties 2002, Article 7(1)(f), para 2.
- 208.
Cryer et al. 2010, p. 249; EHCR, Ireland v. United Kingdom, 18 January 1978, A25 (1978) ECHR 1, para 167.
- 209.
Rodley and Pollard 2009, p. 15.
- 210.
Rome Statute , above n. 3, Article 7(1).
- 211.
Assembly of States Parties 2002, above n. 180, Article 7(1)(f)1–6.
- 212.
Sexual violence can be defined as “any violence, physical or psychological, carried out by sexual means or targeting sexuality”; it “covers both physical and psychological attacks directed at a person’s sexual characteristics”. Final Report on Systematic Rape, Sexual Slavery and Slavery-like Practices During Armed Conflict, UN Doc. E/CN.4/Sub.2/1992/13 (1998), paras 21–22; Cryer et al. 2010, p. 258, n. 195.
- 213.
Ambos 2014, p. 93.
- 214.
Ibid. According to Ambos, while in national law there is a clear tendency to qualify sexual violence as offences against sexual integrity or autonomy, the respective conduct is often still subsumed under offences against dignity. See also Ibid., ns. 363 and 367.
- 215.
Nussbaum 1999, pp. 41–42.
- 216.
This definition of reproductive rights has been formulated by the World Health Organization and is available at https://web.archive.org/web/20090726150133/http://www.who.int//reproductive-health/gender/index.html. Accessed 26 November 2018.
- 217.
Cryer et al. 2010, p. 256.
- 218.
See in general Marshall 2009.
- 219.
Ambos 2014, p. 93, n. 365.
- 220.
Which in no way means that other underlying acts are to be considered less serious in terms of gravity and intensity of the acts committed, or in terms of their consequences.
- 221.
Assembly of States Parties 2002, above n. 180, Article 7(1)(f)1, 2, 3, 6.
- 222.
Rome Statute , above n. 3, Article 7(1)(h).
- 223.
Ibid., Article 7(2)(g).
- 224.
Assembly of States Parties 2002, above n. 180, Article 7(1)(h).
- 225.
- 226.
See, for example, ICTY, Prosecutor v. Kupreškić et al., Judgement, 23 October 2001, IT-95-16-A, para 98; Ambos 2014, p. 105 and n. 450.
- 227.
ICTY, Prosecutor v. Tadić, Judgment, 7 May 1997, IT-94-1-T, paras 704–710; Ambos 2014, p. 105 and n. 451.
- 228.
Ambos 2014, p. 106.
- 229.
As the reader remembers, Article 1 of the Declaration states: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.”
- 230.
Rome Statute , above n. 3, Article 7(2)(i). The definition of enforced disappearance in the Statute has been characterized as complying with minimum standards of legal certainty. Ambos 2014, p. 108.
- 231.
Assembly of States Parties 2002, above n. 180, Article 7(1)(i), paras 1–8.
- 232.
Ibid., n. 23. The crime typically involves many actors. See Cryer et al. 2010, p. 263.
- 233.
Cryer et al. 2010, p. 264.
- 234.
Ambos 2014, p. 111.
- 235.
Assembly of States Parties 2002, above n. 180, Article 7(1)(i), fn. 26.
- 236.
For the listing of relevant jurisprudence see Ambos 2014, pp. 108–109, ns. 480–482.
- 237.
Ibid., p. 109.
- 238.
Rome Statute , Article 7(2)(h).
- 239.
See also Ambos 2014, p. 114.
- 240.
Assembly of States Parties 2002, above n. 180, Article 7(1)(j)4–5.
- 241.
See in more detail Cryer et al. 2010, pp. 264–265.
- 242.
Rome Statute , above n. 3, Article 7(2)(h); Assembly of States Parties 2002, above n. 180, Article 7(1)(j)1.
- 243.
Rome Statute , above n. 3, Article 7(2)(k).
- 244.
Assembly of States Parties 2002, above n. 180, Article 7(1)(k).
- 245.
Ibid., ns. 29 and 30.
- 246.
See for further analysis and brief discussion of the relevant tribunal case law Ambos 2014, pp. 115–116.
- 247.
Ambos 2014, pp. 115–116, citing ICTR, Prosecutor v. Akayesu, Judgment, 2 September 1998, ICTR-96-4-T, para 697 and ICTY, Prosecutor v. Kordić et al., Judgment, 26 February 2001, IT-95-14/2-T, para 270.
- 248.
Ambos 2014, p. 116, also, n. 529. One the other hand, ad hoc tribunals treated some acts not listed in their Statutes’ respective definitions of crimes against humanity and also not found in article 7 of the Rome Statute as “inhumane acts”: for example, mutilation, severe bodily harm, inhumane or degrading treatment, forced nudity, forced marriage and others. See Cryer et al. 2010, pp. 265–266, ns. 235–236 referring to the pertaining key jurisprudence.
- 249.
Ibid.
- 250.
ICC, Prosecutor v. Germain Katanga and Ngudjolo Chui, Decision on the Confirmation of the Charges, 30 September 2008, ICC-01/04-01/07-717, para 448.
- 251.
Rome Statute , above n. 3, Article 7(1) and (2)(a); Assembly of States Parties, above n. 180, Article 7, para 1.
- 252.
- 253.
ICTY, Prosecutor v. Tadić, Opinion and Judgment, 7 May 1997, IT-94-1-T, para 648; ICTR, Prosecutor v. Kayishema et al., Judgment and Sentence, 21 May 1999, ICTR-95-1-T, para 206. No numerical limit exists; thus the issue must be decided based on individual facts of each case. Cryer et al. 2010, p. 236. Typically “widespread” refers to the cumulative effect of numerous inhumane acts, it may also be satisfied by a single but massive act of extraordinary magnitude. Id., n. 33.
- 254.
Ambos 2014, p. 60, ns. 109–110, citing relevant case-law.
- 255.
Which are themselves of a very sophisticated nature each, with varying and sometimes even contradictory definitions existing in legal, philosophical, political, etc., literature.
- 256.
It is the understanding of this author that trying to describe in detail in what ways the humanness elements are threatened/undermined by each crime against humanity in one section is not enough since in most cases such analysis will require an exhaustive review of all the human rights subjected to attack by eleven individual acts starting with murder and ending with other inhumane acts (that is also because each element represents either fundamental values or serves as foundational concept for those values, with all of them inherently linked to their “relevant” human rights and freedoms that are supposed to ensure and protect those values). The pertaining international case law and practice needs to be fully taken into account. A comprehensive review necessarily requires a separate major analysis. Hence why the scrutiny in Sect. 4.4 represents a preliminary review at this point.
- 257.
As compared to “ordinary” crimes.
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Atadjanov, R. (2019). “Humanity” Within the Contemporary Context of International Law Dealing with Crimes Against Humanity. In: Humanness as a Protected Legal Interest of Crimes Against Humanity. International Criminal Justice Series, vol 22. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-299-6_4
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