TOWARDS A NEW CONVENTION ON CRIMES AGAINST HUMANITY: THE WAY FORWARD

*Aditya Raj, National Law University Jodhpur

.GENESIS OF THE CONCEPT

The term “Crimes against Humanity” was first used in 1915 declaration of allied powers condemning the Armenia genocide by Turkish regime and later on, it was used in the Charter of Nuremburg trials or the Charter of International Military Tribunal.[1] There is no international treaty or convention on Crimes against Humanity unlike Genocide and War Crimes. The Rome Statute of 1998 which established the International Criminal Court is the only document dealing with it. Crimes against Humanity as defined under Article 7 of the Rome Statute means ‘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 the 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’.[2]

The jurisdiction of ICC presently covers three categories of crimes, these are war crimes, genocide and crimes against humanity. While the law relating to war crimes and genocide have been codified in 1949 and 1948 respectively, no such specific international convention deals with crimes against humanity. The issue of a proposed convention regarding crimes against humanity has been taken up by International Law Commission in 2014. Drafting a special Convention on crimes against humanity has two key regulatory facets: first is codifying substantive law dealing with crimes against humanity and the second facet is to ensure preventing and punishing crimes against humanity.[3]

The traditional view regarding crimes against humanity is that of an attack inflicted on a civilian population which has been adopted by the Rome Statute of the International Criminal Court. The definition of Crimes against humanity as provided in Tokyo Charter and Nuremberg Charter covers acts which are committed before or during the war.[4] The International Criminal Tribunal for former Yugoslavia confines crimes against humanity to internal or international armed conflict[5] while the Statute of the International Criminal Tribunal for Rwanda restricts the definition to “a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds”.[6] The ICC has rejected both the definitions arguing that linking Crimes against humanity to armed conflict may leave the crime largely redundant since it can be difficult to distinguish between the acts of war crimes and crimes against humanity at the time of trial.[7]

Customary International Law and Crimes against Humanity-

Crimes against Humanity as a concept emerged as a reaction to barbarous acts inflicted on mankind that crossed the limits of civilized behavior, even if a regime commits this crime against its own people on a large scale.[8] During the second half of twentieth century and these two decades of twenty-first century, some particular crimes have taken such a nature that they can neither be dealt with by the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949, because Crimes against Humanity are not committed during period of war, nor can they be dealt under the Genocide Convention of 1948, if they don’t lead to intentional devastation of a particular religious, racial, ethnic or national group. That’s why a need has arisen to draft a specific Convention on Crimes against Humanity.

What will be the Role of the New Convention on Crimes against Humanity-

The codification of Crimes Against Humanity in 1998, with the establishment of International Criminal Court, was a much needed move but not sufficient. One of the limitations of ICC is that its statute applies only to those cases which are to be tried before ICC.[9] Secondly, it does not impose any obligation on the states to adopt legislations governing crimes against humanity.[10] The third limitation is that the statute to ICC doesn’t talks about state responsibility and only provides for individual criminal responsibility and doesn’t require a state to prevent and punish for crimes against humanity unlike Genocide Convention.[11]

The next question which arises is that what would be the scope of such a convention? Crimes against Humanity, as a core crime, forms a part of jus cogens under International Law and by nature is non-derogable and the states are not justified committing it.[12] The proposed convention should endeavor for prohibition of Crimes against Humanity as a fundamental principle of International Law as a grundnorm and give way to Responsibility to Protect Doctrine.[13] The Responsibility to Protect Doctrine is the enabling principle which imposes an obligation on states, and if they fail, then on international community, to protect civilians from crimes against humanity, genocide, war crimes and ethnic cleansing and works on the idea that “sovereignty is not a privilege but a responsibility”[14]

A mechanism should be established solely for the purpose of monitoring situation which is likely to turn bad and later fall upon civilians in the form of widespread and systematic attacks, although such kind of mechanisms exist today, the situation in Syria, Afghanistan, Yemen, the Middle East and North Africa tells us that more work has to be done in this regard.[15] There should be a clear provision prohibiting and punishing incitement and abatement which was not focused during deliberations on ICC statute.[16]

The provisions dealing with responsibility of military commanders and superiors should also be incorporated. The said commander or say a person acting as a commander shall be criminally responsible for crimes committed within his jurisdiction by his forces, either under his explicit command or as a failure to exercise proper authority over his forces, if he knew or had reasons to believe, that the forces are committing or going to commit such act. He should fail to see reasonable measures to prevent such a criminal act. What are the reasonable steps would depend on the prevailing circumstances.[17] It should be made obligatory for every state party to adopt necessary legislation in their particular jurisdiction and territory in order to bring into force effectively the international convention. The signatory states must ensure that their legislations provide adequate provisions to victims for effective and speedy justice and adequate reparations for the injustice meted out to them.[18]

The International Court of Justice in Bosnia vs. Serbia case in the aftermath of Bosnian war also recognized the need for a separate convention as the court acknowledged that violation of laws of armed conflict and crimes against humanity were committed by Bosnian forces but the court was able to convict the accused only for genocide because of limitation of the jurisdiction of court[19], crimes other than genocide were not under the court’s jurisdiction and they slipped off the table.[20] An estimated of 2,00,000 deaths and 50000 rapes have been proved to have occurred and a confirmed displacement of 2.2 million people took place as a result of Serb ethnic cleansing campaign.[21] The only genocide which took place during this event was the genocide of an estimated 8000 Muslims in the town of Srebrenica in 1995. The number 8000 is nothing in front of a total of 2,00,000 deaths, 50,000 rapes and 2.2 million people’s displacements. What was missing was only a convention on crimes against humanity.

While discussing all this, an important area which has not been touched by me regarding this convention is protection of human rights of the accused. No accused should be devoid of fair trials.

Following are some suggestions regarding provisions for a fair trial-

Every person shall be treated equally before the authority which would be set up by the convention.[22] Principles of Natural Justice should be taken wholly into consideration. He should be informed in detail about the charges levelled against him. Strict privacy should be maintained regarding interaction of the accused with his counsel. He should be allowed to examine all the witnesses himself or on his behalf. He shall be communicated with in the language which he understands and there should be no ambiguity regarding any matter. He should not be forced for self-incrimination and should have all the rights of remaining silent and such silence should not be deemed to be a confession of his guilt.[23]

Individual states also need to understand their responsibility in the prevention of Crimes against Humanity. If a state engages itself in some military activity, it needs to train its personnel not to inflict attacks on civilian population. Many countries already contain a training programme for their forces but not all the countries. There should be a uniform sensitization programme for all countries which should be exhaustive in itself to tackle these inhumane crimes.


[1] Farhad Malekian, “CRIMES AGAINST HUMANITY.” In Principles of Islamic International Criminal Law: A Comparative Search, p. 213-24. LEIDEN; BOSTON: Brill, 2011. http://www.jstor.org/stable/10.1163/j.ctt1w8h3dt.18.

[2] Rome Statute of the International Criminal Court, art. 7.

[3] Morten Bergsmo and Song Tianying, On the Proposed Crimes Against Humanity Convention, 2014, p.2.

[4] Charter of the International Military Tribunal for the Far East, 1946, art. 5(c) and Charter of the International. Military Tribunal, 1945, art. 6(c).

[5] Statute of the International Criminal Tribunal for former Yugoslavia, 1991, art. 5.

[6] Statute of the International Criminal Tribunal for Rwanda, 1994, art. 3.

[7] Darryl Robinson, “Defining Crimes Against Humanity’ at the Rome Conference”, American Journal of International Law, 1999, vol. 93, no. 1.

[8]  David Luban, “A Theory of Crimes Against Humanity”, Yale Journal of International Law, 2004, vol. 29, p. 90.

[9] Supra note 3.

[10] ICC Statute, Preamble, para. 6.

[11]  Arturo J. Carrillo and Annalise K. Nelson, “Comparative Law Study and Analysis of National Legislation Relating to Crimes Against Humanity and Extraterritorial Jurisdiction”, in George Washington International Law Review, 2014, vol. 46.

[12] Supra note 9.

[13] Hugo A Relva, Three Propositions for a Future Convention on Crimes Against Humanity: The Prohibition of Amnesties, Military Courts, and Reservations, Journal of International Criminal Justice, 2018, Volume 16, Issue 4, pp.857-875.

[14] United Nations Regional Information Centre for Western Europe, Responsibility to Protect, at https://www.unric.org/en/responsibility-to-protect?layout=default.

[15] Leila Nadya Sadat, Forging a Convention for Crimes against Humanity, Cambridge University Press, (2011).

[16] Supra note 13.x

[17] Washington University School of Law Whitney R. Harris World Law Institute, Proposed International Convention on the Prevention and Punishment of Crimes Against Humanity, (2010).

[18] Matthew Lippman, Crimes Against Humanity, Boston College Third World Law Journal, Vol. 17, Issue 2 (1997).

[19] Convention on the Prevention and Punishment of the Crime of Genocide, 1948, Art. 9.

[20] Supra note 15.

[21] Amnesty International, Bosnia & Herzegovina: ‘Whose justice.’ :The women of Bosnia and Herzegovina are still waiting, (2009).

[22] Article 21 of International Criminal Tribunal for Yugoslavia contains similar provisions.

[23] ICC Charter, Art. 67.

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