2 - Crimes against humanity: a category hors concours in (international) criminal law?  pp. 25-41

Crimes against humanity: a category <i>hors concours</i> in (international) criminal law?

By Harmen van der Wilt

Image View ‹ Previous Chapter ›Next Chapter



Introduction

Crimes against humanity belong to the subject matter jurisdiction of international criminal tribunals and the International Criminal Court (ICC). It is a dubious privilege that they share with war crimes, genocide and – as far as the Rome Statute is concerned – the crime of aggression. Crimes against humanity are particularly heinous crimes, committed as part of a widespread or systematic attack against a civilian population. The perpetrator must have had knowledge of the attack. Although the Nuremberg Charter and the Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY) still required a connection with an armed conflict, this restriction has been dropped in the Rome Statute. The abolition of this “nexus” makes sense, as the category of crimes against humanity has been created especially in order to counter a state’s systematic oppression of its own population, a situation that was not envisaged or covered by the legal concept of “war crimes.” Upholding the connection between crimes against humanity and armed conflict would imply that the oppressed population puts up a level of resistance, reaching the threshold of an internal armed conflict, which is obviously not always the case.

The exact degree of involvement of a state in crimes against humanity is a matter of some controversy. Article 7(2)(a) of the Rome Statute defines “attack” as a “course of conduct . . . pursuant to or in furtherance of a State or organizational policy to commit such attack.” The use of the conjunction “or” immediately clarifies that the violence need not emanate from the state. However, the sheer scale of crimes against humanity arguably requires planning and organization of (human) resources, which is captured by the words “organizational policy.” According to the (majority of the) Pre-Trial Chamber in the Kenya decision, a group does not have to possess state-like features in order to meet the requirement of Article 7(2)(a). Decisive would be its capability to perform acts which infringe basic human values. On the basis of this criterion, the Chamber concluded that “various groups including local leaders, businessmen and politicians associated with the two leading parties, as well as with members of the police force acting at the material time constituted organizations within the meaning of Article 7(2)(a) of the Statute.”

View all references for this book
A. Cassese, International Criminal Law, 2nd edn (Oxford University Press, 2008), 7
Alain Finkelkraut, Remembering in Vain: The Klaus Barbie Trial and Crimes against Humanity (New York: Columbia University Press, 1992), 65.
Andrew Altman and Christopher Wellman, “A Defense of International Criminal Law,” Ethics 115 (2004): 40 and 45.
Claus Kress, “On the Outer Limits of Crimes against Humanity: The Concept of Organization within the Policy Requirement: Some Reflections on the March 2010 ICC Kenya Decision,” Leiden Journal of International Law 23 (2010): 855, 866
David Luban, “A Theory of Crimes against Humanity,” Yale Journal of International Law 29 (2004): 85–167.
Edward M. Wise, “The International Criminal Court: A Budget of Paradoxes,” Tulane Journal of International and Criminal Law (2000): 267.
G. Werle, Principles of International Criminal Law, 2nd edn (The Hague: Asser Press, 2009), 41
Geoffrey Best, War and Law since 1945 (Oxford University Press, 1994), 180.
Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil, rev. edn (Harmondsworth: Penguin Books, 1965), 269.
Ian Buruma, The Wages of Guilt: Memories of War in Germany and Japan (London: Atlantic Books 1994), 149
J. Feinberg, The Moral Limits of Criminal Law, vol. 1, Harm to Others (Oxford University Press 1984).
Judith N. Shklar, Legalism; Law, Morals and Political Trials (Cambridge, Mass. and London: Harvard University Press 1964).
Larry May, Crimes against Humanity: A Normative Account (Oxford University Press 2005)
Lawrence Douglass, The Memory of Judgment: Making Law and History in the Trials of the Holocaust (New Haven, Conn. and London: Yale University Press, 2001), 261.
M. Damaska, “What Is the Point of International Criminal Justice?,” Chicago-Kent Law Review 83 (2008): 329
M. Koskenniemi, “Between Impunity and Show Trials,” Max Planck United Nations Yearbook 6 (2002): 1, 27
Marc Drumbl, Atrocity, Punishment, and International Law (Cambridge University Press, 2007), 175
Mark J. Osiel, “In Defense of Liberal Show Trials – Nuremberg and Beyond,” in G. Mettraux (ed.), Perspectives on the Nuremberg Trial (Oxford University Press, 2008), 704–725
Richard Ashby Wilson, “Judging History: The Historical Record of the International Criminal Tribunal for the former Yugoslavia,” Human Rights Quarterly 27 (2005): 908–942
Steven Lukes and Andrew Scull, Durkheim and the Law (Oxford University Press, 1983), 59–102.
William A. Schabas, The International Criminal Court: A Commentary on the Rome Statute (Oxford University Press, 2010), 40