Codify Crimes Against Humanity to End the Era of Impunity for Perpetrators of Mass Atrocities
Dr. Nadia Ahmad, PMU College of Law
Global governance hinges on cooperation and collaboration between states to tackle international problems that cannot be managed by nation states alone. International law can be considered the vehicle to achieve this coordination between states. Strengthening these norms can increase the impact global governance mechanisms have in dealing with increasingly complex challenges. As human rights are under attack at every level across the world, one of the biggest problems the global community faces must address right now is how to protect civilian lives and hold accountable those who commit atrocities against them. This post will outline the ways a widely ratified convention on crimes against humanity can enhance the architecture for achieving this form of global justice at the International Criminal Court.
Crimes against humanity are considered one of the four “core international crimes,” along with war crimes and genocide.[1] While the latter two are dealt with in dedicated conventions, crimes against humanity are not covered by a similar international treaty. Consequently, a broad range of crimes, including widespread murders committed against civilian populations in peacetime, are falling through this treaty gap. A comprehensive treaty on the broad spectrum of actions that amount to crimes against humanity could provide legal certainty in international criminal law,[2] and contribute to preventing and punishing their commission around the world.
The effort to codify a convention on the crimes against humanity has gained prominence again, as representatives at the United Nations General Assembly begin negotiations over provisions drafted by the International Law Commission in 2019.[3] For the last three years, a few states have delayed these discussions, and in the previous year alone, crimes against humanity have been perpetuated against civilians in Ukraine and Ethiopia.[4]
Crimes against humanity are considered those that are so “odious in nature that their commission was not just an assault on the victims involved, as with war crimes, but an offense against all humanity.”[5] They were recognized and applied for the first time in 1945, in Article 6(c) of the Charter of the International Military Tribunal (hereinafter “IMT”).[6] After that, crimes against humanity were incorporated into statutes governing the prosecution of civilians related to crimes committed in Former Yugoslavia, Rwanda, Sierra Leone, and Cambodia.[7] Despite this, there was no codified definition of the crime or consolidated treaty for it, until crimes against humanity were included in the Rome Statute of the International Criminal Court in 1999 (Rome Statute).[8]
Covered by Article 7 of the Rome Statute,[9] the four elements of crimes against humanity are based on the precedent and law established in either the ad hoc tribunals or national courts.[10] Unfortunately, little guidance was provided to the International Criminal Court in terms of defining key terms, interpreting the law, and applying crimes against humanity to individual situations, and the burden fell on the International Criminal Court’s Prosecutor in the first instance.[11]
The trajectory to criminalize genocide was different. Even though the new offence of genocide was prosecuted as a type of crime against humanity during the Nuremberg Trials,[12] it was recognized as a separate crime altogether and defined in the Convention on the Prevention and Punishment of the Crime of Genocide, adopted in 1948.[13] Given that genocide was originally considered a form of crime against humanity, the lack of a convention on the latter was glaring and resulted in a misunderstanding of its gravity in relation to genocide. What made this omission even more disappointing was the importance of crimes against humanity charges in holding individuals accountable in the various ad hoc tribunals they were included in.[14]
Currently, there is no obligation on states to prevent and punish crimes against humanity. This is especially important, because states are considered the “first line of defense against impunity” with regards to them.[15] Additionally, national courts are lacking the investigatory tools that would help them hold accountable citizens who committed these offenses in their own territory or in others. Many of these international law gaps can be bridged by a standalone treaty on crimes against humanity. Firstly, states would become obligated to incorporate the definition of crimes against humanity in their domestic laws, as well a list of crimes that come under this umbrella. The Genocide Convention places a similar obligation on states.[16] This would strengthen domestic courts and enhance the complementarity principle of the ICC.[17] Secondly, a standalone treaty on crimes against humanity could facilitate inter-state cooperation for prosecuting offenders and extraditing them when national proceedings are not possible.[18] Under the Rome Statute, state parties are expected to cooperate with the ICC, but there is no corresponding duty on states to cooperate with one another in terms of prosecuting crimes against humanity, whereas cooperation for many other transnational crimes is already in place.[19] Lastly, a standalone treaty could establish a body of experts that could both develop the body of law on crimes against humanity and monitor the treaty’s enforcement.[20]
There are arguments that there is no need for another convention on international criminal law, since the Rome Statute already criminalizes the main crimes, including crimes against humanity. It follows that state parties have incorporated the crime into their domestic laws. However, in reality only a handful of countries have a national law on crimes against humanity, and those that do, have a less thorough law than that in the Rome Statute.[21] The absence of an international convention is resulting in lackluster and disparate domestic legislation, and crimes against humanity are falling into a void. The void gets even bigger, as mass atrocities committed during peacetime do not trigger obligations under most core international criminal laws. Crimes against humanity are not dependent on conditions of war.[22]
It is at this crossroads that the leading institution on global governance, the United Nations, will begin considering the International Law Commission’s draft on a convention against crimes against humanity after an interminably long wait. The future of an effective and meaningful convention that prohibits and punishes crimes against humanity, strengthens inter-state cooperation on protecting civilians against global injustice, and reinforces global governance, rests on the results of the upcoming negotiations. Eventually, the aim is to not only have a widely accepted convention on crimes against humanity, but one that is applied meaningfully and comprehensively to prevent mass atrocities.
[1] Charles C. Jalloh, The International Law Commission’s First Draft Convention on Crimes against Humanity: Codification, Progressive Development, or Both?, 52 Case W. Res. J. INT’l L. 331, 344 (2020).
[2] Id. at 345.
[3] Richard Dicker & Paloma van Groll, At the UN: New Moves to Speak Up for a Crimes Against Humanity Treaty, Just Security (2022), https://www.justsecurity.org/83408/at-the-un-new-moves-to-speak-up-for-a-crimes-against-humanity-treaty/.
[4] Id.
[5] Patricia M. Wald, Genocide and Crimes against Humanity, 6 Wash. U. GLOBAL Stud. L. REV. 621, 624 (2007).
[6] Charter of the International Military Tribunal—Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis (“London Agreement”), (1945), https://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.2_Charter%20of%20IMT%201945.pdf.
Article 6 provides:
“The Tribunal established by the Agreement referred to m Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes […]
(c)CRIMES AGAINST HUMANITY: namely, 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.
[7] Leila Nadya Sadat, Crimes against Humanity in the Modern Age, 107 107 AM. J. INT’l L. 334 334, 337 (2013).
[8] Id. at 351.
[9] Rome Statute of the International Criminal Court, (1998).Article 7 provides:
“For the purpose of this Statute, ‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
For the purpose of paragraph 1:
[10] Sadat, supra note 7 at 352.
[11] Id. at 355.
[12] Wald, supra note 5 at 623.
[13] Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 102 Star. 3045, 78 U.N.T.S. 277.
[14] Sadat, supra note 7 at 355.
[15] Jalloh, supra note 1 at 345.
[16] Convention on the Prevention and Punishment of the Crime of Genocide, supra note 13.Article II outlines actions that amount to genocide and Article V provides:
“The Contracting Parties undertake to enact, in accordance with their respective Constitutions, the necessary legislation to give effect to the provisions of the present Convention, and, in particular, to provide effective penalties for persons guilty of genocide or any of the other acts enumerated in article III.”
[17] Jalloh, supra note 1 at 345.
[18] Id. at 345.
[19] Id. at 345.
[20] Q&A: Towards a Crimes Against Humanity Treaty, , Human Rights Watch (2022), https://www.hrw.org/news/2022/10/06/qa-towards-crimes-against-humanity-treaty#Q2.
[21] Sean Murphy, Toward a Convention on Crimes against Humanity?, 7 La Revue des droits de l’homme 1, 2 (2015).The Human Rights Clinic at George Washington Clinic looked at 83 countries that claimed they had national laws on crimes against humanity. Of the 83, only 34 really had a law on the books that was related to crimes against humanity, instead or some other international crime. Fifty-eight of the 83 countries were state parties to the Rome Statute and only 28 of them had a national law on crimes against humanity. From those who had domestic laws, only ten countries had a law that mirrored the Rome Statute. The remaining were either too broad or considerably different.
[22] Rome Statute of the International Criminal Court, supra note 9, Art. 7.
18-Dec-2022
