Crimes Against Humanity

Crimes Against Humanity

• Background
• Customary International Law
• Rome Statute
• Elements
• Current Issues
• The why of CAH

Crimes Against Humanity: Background

• Arguably one of the oldest core crimes – trace 1474
• No specific treaty
• Grew out of IHL but have their own status
• Overlap with war crimes, genocide, and other crimes such as torture
• Overlap with Human Rights and apply outside armed conflict
• Definitional challenges

• Very serious offences constituting serious attack on human dignity / grave

humiliation / serious violation of human rights
In a certain context…
• Part of a widespread or systematic attack
• Directed against a civilian population
Context changes crime to one of international concern

Customary International Law

Classic definition of war crimes did not allow prosecution of states against own population
First defined in the London Charter IMT Art. 6(c):
‘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 law of the country where perpetrated’.
• Any – against own citizens
• Population – scale, no threshold specified
• Nexus to war

• ICTY Statute, Article 5

“[t]he International Tribunal shall have the power to prosecute persons responsible for the
following crimes when committed in armed conflict, whether international or internal in
character, and directed against any civilian population: (a) murder, (b) extermination, (c)
enslavement, (d) deportation, (e) imprisonment, (f) torture, (g) rape, (h) persecutions on
political, racial and religious grounds, (i) other inhumane acts.”
Prosecutor v Tadić, Decision on Interlocutory Appeal on Jurisdiction, IT-94-1-AT72, 2
October 1995, paras 78, 141. – ‘widespread or systematic attack’
• ICTR Article 3 “…when committed as part of a widespread or systematic attack
against any civilian population on national, political, ethnic, racial or religious
grounds”
• However, ICC statute adds forced transfer of population, sexual slavery, enforced
prostitution, forced pregnancy, enforced sterilization, sexual violence, enforced
disappearance and the crime of apartheid. Art 7
• ICC removes links to armed conflict and discriminatory grounds

ICC: CAH
Article 7 of the Rome Statute:
‘1. 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:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation;
(e) Imprisonment or other severe deprivation of physical liberty;
(f) Torture;
(g) Rape and other sexual offences;
 (h) Persecution against any identifiable group or…on political, racial, national, ethnic,
cultural, religious, gender…or other grounds;
(i) Enforced disappearances
(j) Apartheid;
(k) Other inhumane acts…intentionally causing great suffering, or serious injury to body
or to mental or physical health.’

ICC: Other Acts

• “[h]owever much care were taken in establishing all the various forms of infliction,
one would never be able to catch up with the imagination of future torturers who
wished to satisfy their bestial instincts; and the more specific and complete a list tries
to be, the more restrictive it becomes”
Blaškic´ ICTY T. Ch. I 3.3.2000 para. 237, referring to Jean Pictet, Commentary on Geneva
Convention IV (Geneva, 1960) 54.

ICC: Explanatory Memorandum

• Not isolated or sporadic incidents.
• Part of a government policy or of a wide practice of atrocities tolerated or
condoned by a government or a de facto authority.
• Murder, extermination, torture, rape, political, racial, or religious persecution and
other inhumane acts reach the threshold of CAH only if they are part of a
widespread or systematic practice.
• Isolated inhumane acts of this nature may constitute grave infringements of human
rights, or depending on the circumstances, War Crimes, but may fall short of the
stigma attached to the category of crimes under discussion.
“What plainly emerges from tracing the numerous – and disparate – definitions of crimes
against humanity from 1945 to 1998 is that their precise outlines are by no means engraved in
stone: they seem to change with the Zeitgeist.”
Yoram Dinstein, ‘Crimes against Humanity After Tadić’ (2000) 13 LJIL 373, 382

Crimes Against Humanity: Elements

• Common elements
• Certain types of activity e.g. Murder, torture, extermination, enslavement and
similar inhumane acts
• Widespread or systematic – not isolated
 • A civilian population as such – rather than individuals
• Mental elements – requisite MR for specific act + awareness of broader
context
• Challenges
• ‘State or organizational policy…’

‘Widespread or Systematic Attack’

• ‘Or’ = Disjunctive not cumulative
• Individual actions need not be widespread or systematic
• Only the wider attack needs to be widespread or systematic
Bemba (Confirmation of Charges) Pre-Trial Chamber II, 15 June 2009
• An attack is something which is ‘planned, directed or organised’ which
excludes ‘spontaneous or isolated’ acts of violence
1. ‘Widespread’ = Scale of attack and number of victims (Tadić)
• A single attack possible if sufficient magnitude (Blaskić)
• A ‘course of conduct involving the multiple commission’ of acts
2. ‘Systematic’ = Organised or methodical / not random
• Acts must be “part of” or one aspect of the wider attack
• Existence of a “policy” would strongly indicate this

Prosecutor v Akayesu, Judgment, ICTR-96-4-T, 2 September 1998, para 580

• The concept of ‘widespread’ may be defined as massive, frequent, large-scale
action, carried out collectively with considerable seriousness and directed against a
multiplicity of victims.
• The concept of ‘systematic’ may be defined as thoroughly organised and following
a regular pattern on the basis of a common policy involving substantial public or
private resources.
• There is no requirement that this policy must be adopted formally as the policy of a
State. There must, however, be some kind of preconceived plan or policy
Prosecutor v Kunarac, Kovać and Vuković, Judgment, IT-96-23/1-A, 12 June 2002, para 94
“Widespread refers to the large-scale nature of the attack and the number of victims, while
the phrase ‘systematic’ refers to the organized nature of the acts of violence and the
improbability of their random occurrence”
Blaškic´, it was defined as requiring (1) a plan or objective, (2) large-scale or continuous
commission of linked crimes, (3) significant resources, and (4) implication of high-level
authorities

‘Any Civilian Population’

• ‘Any’ = enemy civilians or own citizens or stateless people – the raison d’être
• ‘Civilians’ = Combatants can be victims, but must be victims of actions which were
directed against civilians
• Civilians must be primary target of attack
• Attacks on legitimate military targets cannot be CAH
• Note troubled relationship with IHL definitions vs. ICL
• does not exclude military personnel who may be caught up in inhumane acts
(sometimes own state government)
• Kupreskić and others Case No. IT-95-16, ICTY, TC 14 January 2000 (para 549)
“the presence of those actively involved in the conflict should not prevent the characterisation
of a population as civilian and those actively involved in a resistance movement can qualify
as victims of crimes against humanity’”
‘Population’ = ‘crimes of collective nature’ (Tadić) but not whole population
Kunarac Appeal, para 90 “the use of the word population does not mean that the entire
population of the geographical entity in which the attack is taking place must have been
subjected to that attack. It is sufficient to show that enough individuals were targeted in the
course of the attack, or that they were targeted in such a way to satisfy the Chamber that the
attack was in fact directed against a civilian population, rather than against a limited and
randomly selected number of individuals”

Mental Element
• The mens rea of the underlying offence e.g. for murder/sexual assault/rape
• Awareness of the existence of a widespread or systematic practice and that actions
were part of such practice.
• Wilful blindness, knowingly taking the risk will suffice (Tadić , 687)
• Knowledge can be inferred from relevant facts and circumstances (ICC Elements
General Intro. para. 3)
• Perpetrator needs to know there is an attack on the civilian population and their
actions comprise part of that attack
 • Tadić, ICTY, AC, 15 July 1999; Kunarac, Kovac and Vokovic, ICTY, AC, 12
June 2002
• Or, perpetrator must have knowledge of the attack and taken the risk his acts were
part of it
• Vasiljevic,  ICTY, TC, 29 November 2002; Blaskić, ICTY, TC, 3 March 2000
• But doesn’t need to know the specific details of the wider attack
• Kunarec, ICTY, TC, 22 February 2001; Krnojelac, ICTY, TC, 15 March 2002;
Al Bashir, ICC Decision on Arrest Warrant, 4 March 2009

Article 30(1) Rome Statute

“Unless otherwise provided, a person shall be criminally responsible and liable for
punishment for a crime within the jurisdiction of the Court only if the material elements are
committed with intent and knowledge.”
• Person means to engage in the conduct.
• Person means to cause consequence or aware that it will occur in the ordinary course
of events ie. predictability / virtual certainty of likely consequences (Art. 30(2)).
• Wilful intent (dolus directus) v recklessness (dolus indirectus)
• See also command responsibility (Art. 28) eg. Commander knew or should have
known that crimes committed by subordinates + failed to act.

‘Policy’
• Crime, even widespread does not form CAH
• Any Policy should be a low threshold
• There needs to be a connection between the incidents to be an ‘attack directed…’
• Kunarac, the ICTY Appeals Chamber held, rather succinctly, that ‘nothing in the
Statute or in customary international law ... required proof of the existence of a plan
or policy to commit these crimes’
• ICC Rome Statute Art 7(2) (a) "Attack directed against any civilian population"
means a course of conduct involving the multiple commission of acts referred to in
paragraph 1 against any civilian population, pursuant to or in furtherance of a State or
organizational policy to commit such attack
• Katanga, ICC TC II, 7 March 2014 (ICC-01/04-01/07-3436-tENG), para 1109. 
• As regards proof of the existence of such a policy, it is important to underline that it is
relatively rare... that a State or organisation seeking to encourage an attack against a
civilian population might adopt and disseminate a pre-established design or plan to
 that effect. In most cases, the existence of such a State or organisational policy can
therefore be inferred by discernment of, inter alia, repeated actions occurring
according to a same sequence, or the existence of preparations or collective
mobilisation orchestrated and coordinated by that State or organisation.
• State-like proved problematic for Kenya investigation (See Kaul in the dissent)
• Often linked to ‘attack’ e.g. an attack cannot be random acts of individuals, as they
need to be directed, instigated or at least actively/passively furthered by some outside
source.
Decision Pursuant to Article 15 of the Rome Statute on the Authorisation of Kenya
Investigation, Pre-Trial Chamber II, 31 March 2010
(i) whether the group is under a responsible command, or has an established hierarchy;
(ii) whether the group possesses, in fact, the means to carry out a widespread or
systematic against a civilian population;
(iii) whether the group exercises control over part of the territory of a State;
(iv) whether the group has criminal activities against the civilian population as a
primary purpose;
(v) whether the group articulates, explicitly or implicitly, an intention to attack a civilian
population;
(vi) whether the group is part of a larger group, which fulfils some or all of the
abovementioned criteria

Summary
Very serious offences constituting serious attack on human dignity / grave humiliation /
serious violation of human rights
The violation must:
• Be part of widespread / systematic practice that is the result of some form of policy
• Occur in either armed conflict or peacetime
• Primarily target civilians

Current Issues: A New Treaty?

• Proposed Convention on the Prevention and Punishment of Crimes Against Humanity,
definition tracks Rome Statute – ongoing discussions UNGA
• Create preventive obligation
• Increase state cooperation
 • Oblige national criminalisation
• Limited mandate of ICC (temporal, jurisdictional, practical) makes the issue national
• Crimes not currently covered by treaty incl. mass murder, extermination campaigns
without genocidal intent, or against political, social or other groups, deportation
outside of armed conflict etc.

Syria...
• January 2022, Germany found Anwar R. a former Syrian Intelligence officer guilty of
crimes against humanity in Syria
“killing, torture, serious deprivation of liberty, rape and sexual assault in combination with
murder in 27 cases, dangerous bodily injury in 25 cases, particularly serious rape, sexual
assault in two cases, over a week of deprivation of liberty in 14 cases [and] hostage-taking in
two cases and sexual abuse of prisoners in three cases.”
• Ruham Hawash, Syrian survivor of the al-Khatib Branch and joint plaintiff in the case
against Anwar R, says:
“This day, this verdict is important for all Syrians who have suffered and are still suffering
from the Assad regime’s crimes. It shows us: justice should and must not remain a dream
for us. This verdict is only a beginning and we have a long way to go – but for us affected
people, this trial and today’s ruling are a first step towards freedom, dignity and justice.”

Ukraine...
“Based on a careful analysis of the law and available facts, I have determined that members
of Russia’s forces and other Russian officials have committed crimes against humanity in
Ukraine. Members of Russia’s forces have committed execution-style killings of Ukrainian
men, women, and children; torture of civilians in detention through beatings, electrocution,
and mock executions; rape; and, alongside other Russian officials, have deported hundreds of
thousands of Ukrainian civilians to Russia, including children who have been forcibly
separated from their families.  These acts are not random or spontaneous; they are part of
the Kremlin’s widespread and systematic attack against Ukraine’s civilian population.”
US Secretary of State, Anthony J Blinken, 18 February 2023

Why are CAH a ‘core crime’

• Is it true that the situations in Syria, Yemen, Myanmar, Ukraine are truly crimes
against the whole of humanity? If so, how?
• Impunity
• Would a specific treaty help?
 • Definitional challenges?
• Is it important that CAH are prosecuted as an International crime?
• Does prosecuting them further justice?
Perhaps, the most promising justification “… is their role in norm projection: trials are
expressive acts broadcasting the news that mass atrocities are, in fact, heinous crimes and not
merely politics by other means.” David Luban (p576)

Resources
• Robert Cryer, Håkan Friman, Darryl Robinson and Elizabeth Wilmshurst, An
Introduction to International Criminal Law and Procedure (Cambridge: CUP, 4th ed.,
2019) chapter 11.
• Leila Sadat, ‘Crimes Against Humanity in the Modern Age’ (2013) 107 American
Journal of International Law 334.
• David Lefkowitz, Philosophy and International Law (CUP 2020) Chapter 9
• Yoram Dinstein, ‘Crimes against Humanity After Tadić’ (2000) 13 LJIL 373
• David Luban, “Fairness to Rightness: Jurisdiction, Legality, and the Legitimacy of the
International Criminal Court,” in The Philosophy of International Law, eds. Samantha
Besson and John Tasioulas (Oxford: Oxford University Press, 2010), p. 576
• Darryl Robinson, ‘Essence of Crimes against Humanity Raised by Challenges at ICC’
(September 2011) EJILTalk! at https://www.ejiltalk.org/essence-of-crimes-against-
humanity-raised-by-challenges-at-icc/#more-3782
• ‘Syria trial in Koblenz: Life sentence for Anwar R for crimes against humanity’
(January 2022) ECCHR Press Release at https://www.ecchr.eu/en/press-release/syria-
verdict-anwar-r/
• Leila Sadat, ‘Towards a New Treaty on Crimes Against Humanity: Next Steps’
(September 2021) Just Security at https://www.justsecurity.org/78063/towards-a-new-
treaty-on-crimes-against-humanity-next-steps/
• https://www.hrw.org/news/2019/08/22/myanmar-crimes-against-rohingya-go-
unpunished#
• https://www.state.gov/crimes-against-humanity-in-ukraine/