Crimes against humanity are certain crimes committed as part of a large-scale attack against civilians. Unlike war crimes, crimes against humanity can be committed during both peace and war and against a state's own nationals as well as foreign nationals. Together with war crimes, genocide, and the crime of aggression, crimes against humanity are one of the core crimes of international criminal law and, like other crimes against international law, have no temporal or jurisdictional limitations on prosecution (where universal jurisdiction is recognized).
The first prosecution for crimes against humanity took place during the Nuremberg trials and subsequent Nuremberg trials against defeated leaders of Nazi Germany and collaborators. Crimes against humanity have been prosecuted by other international courts (such as the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, the Extraordinary Chambers in the Courts of Cambodia, and the International Criminal Court) as well as by domestic courts. The law of crimes against humanity has primarily been developed as a result of the evolution of customary international law. Crimes against humanity are not codified in an international convention, so an international effort to establish such a treaty, led by the Crimes Against Humanity Initiative, has been underway since 2008.
According to the Rome Statute, there are eleven types of crimes that can be charged as a crime against humanity when "committed as part of a widespread or systematic attack directed against any civilian population": "murder; extermination; enslavement; deportation or forcible transfer of population; imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; torture; rape, sexual slavery, enforced prostitution, forced pregnancy, forced abortion, enforced sterilization, or any other form of sexual violence of comparable gravity; persecution against any identifiable group or collectivity...; enforced disappearance...; the crime of apartheid; other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health."
Origins of the term The term "crimes against humanity" may cover one or both meanings of the word "humanity": the quality of being human and humans as a whole. In the context of the Nuremberg trials, documents suggest the former sense was primarily intended, being parallel to the concept of "crimes against peace", although scholars have also noted that the second meaning was sometimes present as well.
The term is first attested in 1883, when American minister, politician and historian George Washington Williams used it in his reflections about slavery in the United States. In his first annual message in December 1889, U.S. President Benjamin Harrison also spoke about the slave trade in Africa as a "crime against humanity". The term "crimes against humanity" was used again by Williams in a letter he wrote to the United States Secretary of State describing the atrocities in the Congo Free State committed by Leopold II of Belgium's administration in 1890. This is often popularly cited as the first use of the term in its modern sense in the English language, despite Williams' earlier usage.Hochschild, A. King Leopold's Ghost: A Story of Greed, Terror and Heroism in Colonial Africa. Houghton Mifflin, 1999. pp. 111–112.
In treaty law, the term was first used in the Second Hague Convention of 1899 preamble and was expanded in the Fourth Hague Convention of 1907 preamble and their respective regulations, which were concerned with the codification of new rules of international humanitarian law. The preamble of the two Conventions referenced the "laws of humanity" as an expression of underlying, unarticulated humanistic values. The term is part of what is known as the Martens Clause.
On 24 May 1915, the Allied Powers, Britain, France, and Russia, jointly issued a statement explicitly and for the first time ever charging another government with committing "a crime against humanity". An excerpt from this joint statement reads:
At the conclusion of the war, the Allied Commission of Responsibilities recommended the creation of a tribunal to try "violations of the laws of humanity" because the law of war did not cover atrocities committed by a state against its own nationals or allied persons. The US representative subsequently objected to references to the "law of humanity" as being imprecise and insufficiently developed at that time, so the concept was not pursued.
A UN report in 1948 referred to the usage of the term "crimes against humanity" regarding the Armenian genocide as a precedent to the Nuremberg and Tokyo trials. On 15 May 1948, the Economic and Social Council presented a 384-page report prepared by the United Nations War Crimes Commission (UNWCC), set up in London (October 1943) to collect and collate information on war crimes and war criminals. The report was in compliance with the request by the UN Secretary-General to make arrangements for "the collection and publication of information concerning human rights arising from trials of war criminals, quislings, and traitors, and in particular from the Nuremberg trials and Tokyo Trials." The report had been prepared by members of the Legal Staff of the commission. The report is highly topical regarding the Armenian Genocide, not only because it uses the 1915 events as a historic example but also as a precedent to Articles 6 (c) and 5 (c) of the Nuremberg and Tokyo Charters, and thereby as a precursor to the then newly adopted UN Genocide Convention, differentiating between war crimes and crimes against humanity. By referring to the information collected during WWI and put forward by the 1919 Commission of Responsibilities, the report titled "Information Concerning Human Rights Arising from Trials of War Criminals" used the Armenian case as a vivid example of crimes committed by a state against its own citizens. The report also noted that while the Paris Peace Treaties with Germany, Austria, Hungary and Bulgaria did not include any reference to "laws of humanity", instead basing the charges on violations of "laws and customs of war", the Sèvres Peace Treaty with Turkey did so. In addition to Articles 226–228, concerning customs of war (corresponding to Articles 228–230 of the Treaty of Versailles), the Sèvres Treaty also contained an additional Article 230, in compliance with the Allied ultimatum of 24 May 1915 regarding "crimes against humanity and civilization".
Nuremberg trials
After the Second World War, the Nuremberg Charter set down the laws and procedures by which the Nuremberg trials were to be conducted. The drafters of this document were faced with the problem of how to charge the men at the Nuremberg Trial with committing the Holocaust and other state-sanctioned atrocities committed in Germany and German-allied states by the Nazi regime. As far as German law was concerned, the men had committed no crime but only followed orders. In Nazi Germany, not following orders was a crime punished severely. The problem in trying the individuals responsible for the German atrocities lay in the fact that, like in World War I, a traditional understanding of war crimes gave no provision for atrocities committed by a state on its own citizens or its allies.
To solve this problem and close the loophole, Article 6 of the Charter was drafted to include not only traditional war crimes and crimes against peace, but also crimes against humanity, defined as:
Under this definition, crimes against humanity could be prosecuted and punished, even as ex post facto infractions, only insofar as they could be connected somehow to war crimes or crimes against peace. The jurisdictional limitation was explained by the American chief representative to the London Conference, Robert H. Jackson, who pointed out that it "has been a general principle from time immemorial that the internal affairs of another government are not ordinarily our business". Thus, "it is justifiable that we interfere or attempt to bring retribution to individuals or to states only because the concentration camps and the deportations were in pursuance of a common plan or enterprise of making an unjust war". The judgement of the first Nuremberg trial found that "the policy of persecution, repression and murder of civilians" and persecution of Jews within Germany before the outbreak of war in 1939 were not crimes against humanity, because as "revolting and horrible as many of these crimes were, it has not been satisfactorily proved that they were done in execution of, or in connection with", war crimes or crimes against peace."Judgement : The Law Relating to War Crimes and Crimes Against Humanity" contained in the Avalon Project archive at Yale Law School. The subsequent Nuremberg trials were conducted under Control Council Law No. 10 which included a revised definition of crimes against humanity with a wider scope.
Tokyo trial
The International Military Tribunal for the Far East (IMTFE), also known as the Tokyo trial, was convened to try the leaders of the Empire of Japan for three types of crimes: "Class A" (crimes against peace), "Class B" (war crimes), and "Class C" (crimes against humanity), committed before and during the Second World War. The legal basis for the trial was established by the Charter of the International Military Tribunal for the Far East (CIMTFE) that was proclaimed on 19 January 1946. The tribunal convened on 3 May 1946, and was adjourned on 12 November 1948.
In the Tokyo Trial, Crimes against Humanity (Class C) was not applied for any suspect. Prosecutions related to the Nanking Massacre were categorised as infringements upon the Laws of War. A panel of eleven judges presided over the IMTFE, one each from victorious Allied powers (United States, Republic of China, Soviet Union, United Kingdom, the Netherlands, Provisional Government of the French Republic, Australia, New Zealand, Canada, British India, and the Philippines).
Types of crimes against humanity The definition of a crime against humanity varies both between and within countries and it also varies on both the international and domestic levels. Isolated and inhumane acts of a certain nature which are not committed as part of a widespread or systematic attack may constitute grave infringements of human rights, or – depending on the circumstances – war crimes but they are not classified as crimes against humanity.As quoted by Guy Horton in Dying Alive – A Legal Assessment of Human Rights Violations in Burma April 2005, co-Funded by The Netherlands Ministry for Development Co-Operation. See section "12.52 Crimes against humanity", p. 201. He references RSICC/C, Vol. 1 p. 360
According to the Rome Statute, there are eleven types of crimes that can be charged as crimes against humanity when they are "committed as part of a widespread or systematic attack directed against any civilian population":Rome Statute article 7
Apartheid
The systematic persecution of members of one racial group by members of another racial group, such as the persecution which was practiced by the South African apartheid government, was recognized as a crime against humanity by the United Nations General Assembly in 1976.International Convention on the Suppression and Punishment of the Crime of Apartheid adopted and opened for signature, ratification by General Assembly resolution 3068 (XXVIII) of 30 November 1973. It entered into force 18 July 1976, in accordance with article X (10) The Charter of the United Nations, Articles 13, 14, 15 makes actions of the General Assembly advisory to the Security Council. In regard to apartheid in particular, the UN General Assembly has not made any findings, nor have apartheid-related trials for crimes against humanity been conducted.