Evolving Notions Of Crimes Against Humanity In International Law
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Category: Criminal Law
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EVOLVING NOTIONS OF CRIMES AGAINST HUMANITY
IN INTERNATIONAL LAW
Gauri Malviya, Symbiosis Law School, Nagpur
ABSTRACT
Crimes against humanity are not a new topic to study but since World War I and World War II, the atrocities which were faced by the people at large were quite alarming for the international community. As soon as the wars got over the international community promised “Never Again” to everyone. Before the Nuremberg Charter 1945 crimes against humanity were never formally included in international crimes. During the war, the world witnessed brutal and deadly attacks on the states. And in order to stop the atrocities, the international community started making laws and started prosecuting the individuals. The researcher aims to study the evolving notions of crimes against humanity in deep to understand the crux of international criminal law.
This paper covers the entire evolution from “the Nuremberg Charter and the Tokyo Charter, the statutes of the International Criminal Tribunal of Yugoslavia and the statutes of the International Criminal Tribunal of Rwanda and finally the Rome Statute of International Criminal Court”. These tribunals were established to prosecute criminals for international crimes. Lastly, this paper examines the functioning, challenges and criticisms. Keywords: Crimes Against Humanity, International Crimes, International Criminal Tribunals, Prosecution “INTRODUCTION TO CRIMES AGAINST HUMANITY” It is not clear exactly when a crime against humanity evolved. It is claimed by some scholars1 that crimes against humanity were developed in the 18th century whereas some scholars claim that crime against humanity evolved in the 19th century.
During European colonialism in the countries of Africa, slave trade and slavery were widely observed in the context of crimes against humanity. Leopold II of Belgium committed atrocities against the civilian population in the Congo free state. The scholars2 who pointed out the evolution of crimes against humanity referred to the mass killing of Armenians in the Ottoman Empire in 1915 by the Allied Government (France, Great Britain and Russia). These Scholars claim the evolution of crimes against humanity from this instance and this was labelled under the category of international crimes. Subsequently, through customary international law, the concept of crimes against humanity has evolved.
Many attempts were made to criminalize the atrocities by establishing the jurisdiction under the courts of the International Criminal Tribunal of Yugoslavia (ICTY), the International Criminal Trial of Rwanda (ICTR), etc. Other states have tried to criminalize crimes against humanity under their municipal laws. But still, there are states who are yet to criminalize the atrocities in their municipal laws. There are treaties such as the Geneva Convention3 where atrocities like genocide and war crimes are codified. But crimes against humanity have not been codified under any international treaty though it has been codified in the Rome Statute. There was a turning point for International criminal law when more than 90 states endorsed the Rome Statute of International Criminal Law (ICC).
The establishment of ICC in 1998 aided in an attempt to define all kinds of atrocities and prohibit offence at the global level. ICC has achieved a dominant position in International criminal law for prosecuting criminals for the crimes committed as per the statute. During World War I and, especially, World War II, the world witnessed atrocities against human rights and humanitarian law. When World War I ended, it was supposed to be the end of all conflicts, but within a short amount of time, another war sprang out with a bigger percentage than the previous one. Crimes against humanity were first included in the Nuremberg Charter in 1945 as an egregious sort of war crime used to prosecute huge atrocities against Jews in Germany. Crimes against humanity were later 1 Schabas, William.
Unimaginable Atrocities – justice, politics, and Rights at the War Crimes Tribunals, Oxford University, 2012, pp. 51-53 2 Bassiouni, M. Cherif. Crimes Against Humanity in International Criminal Law, Martinus Nijhoff Publishers, 1999, p. 62 3 United Nation, Office on Genocide Prevention and the Responsibility to Protect, Crimes Against Humanity recognised as an element of international criminal law, with the International Criminal Tribunals for Yugoslavia and Rwanda having jurisdiction over them.
The concept of 'attack' encompasses systematic offences, such as murder, extermination, torture, enslavement, deportation or forcible transfer of population; imprisonment, or other severe deprivation of physical liberty, such as enforced disappearance of persons and apartheid; in addition, it also includes widespread violent sexual violence, such as rape, sexual slavery, enforced prostitution, forced pregnancy, and enforced sterilisation, or any other inhumane acts in An assault is 'widespread' if it affects a vast number of people, but it is ‘systematic' when the acts in issue follow a pattern. The ICC's primary purpose is to act when there is a dispute between states or between the state and the civilian population as a whole as a result of crimes against humanity and other violations.
Prosecutions have grown in importance in nations such as Kenya, Sirya, and Libya, where they are the sole foundation of jurisdiction. “PREREQUISITES OF THE NUREMBERG TRIAL AND DEVELOPMENTS PRIOR TO WORLD WAR I & II” The prosecution of individuals for crimes against humanity was not established from the Nuremberg or Tokyo Charter or after the post-World War II. There was discussion by the Prominent scholars Plato and Grotius on the legality of war and conduct in war for more than thousands of years. Since crimes against humanity have been present throughout ancient history but for a century there have been evolving laws for the same. In the famous historical case, which includes the trial and conviction of Conradin von Hohenstaufen in 1268 for proclaiming an unjust war.
The 1899 and 1907 Hague Conventions, which included the Martens Clause underscoring the protection of civilians and belligerents based on principles of international law and humanity, was the first effort at a global response to cruel crimes. In the year 1915, the word Crimes Against Humanity was the first time used in a document in the Joint Declaration of on Armenian massacres. Though the primary focus was just on punishing for war crimes, despite attempts to create an international convention to combat cruel treatment after World War I. The Joint Declaration of 1915 concerning the killings in Armenia was the first document to use the phrase "crimes against humanity" in a non-technical sense4. During World War I the convention which was introduced was more focused towards war crimes and cruel treatment was not seriously taken into consideration. The War Crimes Commission did
4 Joint Declaration of the Governments of France, Great Britain and Russia, 1915
not contain the “law of humanity” in that commission it just proposed about criminalization of war times crimes. 5 The actual evolution of crimes against humanity took place after World War II because of worldwide atrocities and inhumane acts against civilians. “CRIMES AGAINST HUMANITY UNDER NUREMBERG TRIALS” The Nuremberg Trial marked the downfall of the regime responsible for the Holocaust and marked the first instance in history where an international court handed down prison and death sentences. This landmark event laid the foundation for the International Court of Justice, the Universal Declaration of Human Rights, and the Geneva Conventions6. The Trial also set a crucial precedent by establishing individual accountability for crimes against humanity, making it a pivotal moment in the post-World War II era.
These trials have had a lasting impact on international criminal law and helped shape various legal instruments and advancements. Germany initiated World War II by invading Poland and subsequently launching attacks on numerous countries across the continent. In 1943, the tide of war shifted significantly - the Soviet Union had successfully defended Moscow, St. Petersburg, and Stalingrad while the British thwarted German air raids and expelled Axis powers from Africa. The leaders of the major Allied nations, including Stalin, Roosevelt, and Churchill, convened to plan for a post- World War II world. They met at the United Nations to discuss the D-Day invasion and the division of Germany into four occupation zones. Throughout the war, the Allies discovered the horrific atrocities committed by Germany, including night raids, forced deportations, and mass genocide.
here was a pressing question on everyone's mind after the evil acts committed by the Germans: how could they be punished? Three main answers were considered. The first option was to do nothing and release them, letting the atrocities and death go unpunished. However, this was not feasible as no country would agree to it. The second option was to execute all the perpetrators through a command, regardless of their guilt. This approach was opposed by both the United Kingdom and the USA. Finally, the third option of seeking justice through prosecution was chosen. 7 A foundation was laid down for the trials to be conducted and were ratified. This trial had established the legal framework and the punishment of major war criminals. The London 5 Than, C. and Shorts, E. , International Criminal and Human Rights. London: Sweet and Maxwell, 2003, p. 88
6 Nürnberg Trials," Encyclopædia Britannica, s.v. "Nürnberg Trials
7 Badar, Mahummad Ehsan. “From the Nuremberg Charter to the Rome Statute
Defining the Elements of Crimes against Humanity. ” San Diego International Law Journal Charter of the International Military Tribunal laid out a system where the 4 different legal codes of France, the Soviet Union, the USA, and the UK would be incorporated into a single Tribunal. They formed the International Military Tribunal. From 1945-1946 the trial took place for crimes against peace, crimes against humanity, and conspiracy to commit any forgoing crime8. There were prosecutors and defence attorneys according to British and US laws but the decisions and sentences were imposed by a group of judges, according to French and Soviet legislations.
The legal definition of crimes against humanity and international prohibition of this for the very first time was introduced and was officially articulated by the adoption of the International Military Tribunal (Nuremberg Charter) annexed to the London Agreement in
19459. They aimed to prosecute and try war criminals which included Military Personnel and
high-ranking officials of the European Axis. Nuremberg trials were conducted on offence committed by both allied and Axis powers but only the axis powered countries were prosecuted. There was unequal distribution of powers in London Charter. The incorporation of crimes against Humanity in the Nuremberg Charter was one of the most notable features in the jurisdiction of the Tribunal. These crimes were first time in history acknowledged by positive international law. This incorporation was groundbreaking as it challenged the idea of non-intervention in a state’s internal affairs and expanded the meaning of international law beyond the traditional notions of war crimes. 10 The Tribunal was given the authority to prosecute individuals for war crimes, crimes against humanity, and crimes against peace by virtue of Article 6 of the Nuremberg Charter.
The definitions of these crimes included inhumane acts committed against citizens, based on religious, racial, and political beliefs. However, the charges of “Ex Post Facto” legislation emerged since the legal foundations for crimes against humanity had never been clearly defined before the establishment of the Nuremberg Trials. 11 The Crimes against humanity were categorized by the Nuremberg Charter in 2 forms in Article 6(c)12: persecution for political, religious, or racial reasons, and “Murder Type” for inhumane acts. Article 6 follows as:
8 The Nuremberg Trials
The National WWII Museum: New Orleans
9 Office of the Historian, United States Department of State.
10 Margaret M. deGuzman. “The Road from Rome
The Developing Law of Crimes Against Humanity” Human Rights Quarterly, Vol. 22, No. 335, 2000, p. 345.
11 Nuremberg Charter, Art. 6 (c)
12 International Law Commission, Report of the International Law Commission on its session, 5 June to 29 July 1950, Official Records of the General Assembly, Fifth Session, Supplement No. 12 (A/1316) (1950) “The Tribunal established by the Agreement referred to in 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 organisations, committed any of the following crimes.
The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: - (a) Crimes against peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing: (b) War crimes: namely, violations of the laws or customs of war.
Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of the civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (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.
Leaders, organisers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan. ” However, this categorization made things clearer but did not cover every facet of the crime, so wide interpretation and criticism of the definition is still possible. On top of that, there were restrictions on the crimes committed as the Jurisdiction of Nuremberg’s Tribunal was only for World War II. 13 This Charter was criticized on the grounds that no fair trial was conducted. According to the rules of the charter, there was no right of appeal to the aggrieved party. The 13 Leila N. Sadat. “The interpretation of the Nuremberg Principal by French Court of Cassation: From Touvier to Barbie and Back Again.
” Columbia Journal of Transnational Law, Vol. 32, No. 289, 1994. p. 310 decision of the court was binding on everyone. Also, the principles of natural justice were violated. i. e. no one can be a judge in his own case. “TOKYO TRIALS”14 In the year 1946 the Tokyo Trial took place to prosecute the Japanese Leaders. The International Military Tribunal for the Far East was formed by 11 countries coming together to try the Japanese leaders for the conspiracy to wage and start a war. These trials were introduced under the Tokyo Charter. For these trials, the President was the Australian and the Acting President was from New Zealand. UK judge and the judge of along with the judge of New Zealand wanted to remove the judge of Australia. As these judges did not want the judge of Australia should become the President of Tokyo Tribunal.
In this tribunal, the motive of all the judges was to uphold the Nuremberg Trial. The legal framework of these trials was similar to the framework of the Nuremberg Trial but this did not include religious grounds of persecution. There was a mandate between both charters i. e. they required a link between crimes against humanity, crimes against peace, and war crimes. However, later legal reforms expanded the scope and the definition of crimes against humanity and eliminated the need for the connection to armed combat, such as Allied Control Law No. 10 and the 1950 Nuremberg Principles of 195015. Though there were developments, a challenge still remains in defining and prosecuting crimes against humanity. The different interpretations and definitions of these crimes in domestic and international law have resulted from the lack of a comprehensive treaty that particularly addresses them.
Moreover, disagreements continue to exist over whether a connection to armed conflict is required and how far international law progressed in this area. In a nutshell the Nuremberg Trials laid down the legal principles of prosecution of crimes against humanity, marking a turning point in the development of international law. There are still difficulties in guaranteeing responsibility for these egregious human rights breaches, even if later legal advances have built upon this basis. “THE STATUTES OF INTERNATIONAL CRIMINAL TRIBUNAL FOR THE FORMER YUGOSLAVIA”
14 National WWII Museum, Tokyo War Crimes Trial
15 Control Council Law No. 10
Nuremberg Trials Final Report Appendix D: Punishment of Persons Guilty of War Crimes, Crime against Peace and Against Humanity, 1945, Art. II (c) The International Criminal Tribunal for the Former Yugoslavia (ICTY) was the first international tribunal with jurisdiction over war crimes, crimes against humanity, and genocide since the Nuremberg Trial and Tokyo Trials. The ICTY was established by United Nations Security Council in the consonance with UN charter of Chapter VII. In 1993 to address reports of mass atrocities happening in Croatia, Bosnia, and Herzegovina, the United Nations Security Council established ICTY and now situated in Hauge. Over 16116 individuals were accused of their involvement in terrorizing conflicts of the 90s by the ICTY.
These individuals include Prime Ministers, army chief of staffs, interior ministers and many other superior and inferior level political member, etc. These individuals were majorly accused of violation of international law, crimes against humanity, genocide, etc. The jurisdiction of the ICTY was defined under certain articles of the statute, Article 3 deals with violations of war crimes, Article 4 deals with genocide, and Article 5 deals with crimes against humanity. Article 4 of ICTY as follows: “Genocide
1. The International Tribunal shall have the power to prosecute persons committing genocide
as defined in paragraph 2 of this article or of committing any of the other acts enumerated in paragraph 3 of this article.
2. Genocide means any of the following acts committed with intent to destroy, in whole or in
part, a national, ethnical, racial or religious group, as such: (a) killing members of the group; (b) causing serious bodily or mental harm to members of the group; (c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) imposing measures intended to prevent births within the group; (e) forcibly transferring children of the group to another group.
3 The following acts shall be punishable
16Chief Prosecutor Carla Del Ponte, International Criminal Tribunal for the former Yugoslavia. (The figure of
161 indicted individuals is derived from the ICTY website)
(a) genocide; (b) conspiracy to commit genocide; (c) direct and public incitement to commit genocide; (d) attempt to commit genocide; (e) complicity in genocide. ” Article 517 also excludes murder, extermination, enslavement, deportation, imprisonment, torture, rape, and discrimination based on political parties, race, and religion. And on the other hand, Article 5 was linked to armed conflicts whether it may be internal or international.
18 Article 5 follows as: “Crimes against humanity The 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. ” Several challenges were faced by ICTY, one of the major challenges was identifying the traits of the prosecutors in armed conflict as to whether it should be considered international or non-
17 ICTY Statute, Art. 5
18 Meron, Theodor. “War Crimes in Yugoslavia and the Development of International Law.” The American
Journal of International Law 88, no. 1 (1994): 78–87. international. It was important to identify the distinction for the application of certain articles such as grave breaches of Article 219 which is only applicable in cases of armed conflict. And for crimes against humanity, this distinction is not relevant which could be tried regardless of the nature of the conflict.
Article 2 follows as: “Grave breaches of the Geneva Conventions of 1949 The International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949, namely the following acts against persons or property protected under the provisions of the relevant Geneva Convention: (a) wilful killing; (b) torture or inhuman treatment, including biological experiments; (c) wilfully causing great suffering or serious injury to body or health; (d) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; (e) compelling a prisoner of war or a civilian to serve in the forces of a hostile power; (f) wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial; (g) unlawful deportation or transfer or unlawful confinement of a civilian; (h) taking civilians as hostages.
” An attempt to impose restriction on the means and means of conflict in the past was observed in the ICTY’s emphasis on war crimes prosecution. However, the societal harm that victims experienced – particularly in relation to sexual violence, religion, and ethnicity- was not appropriately charged. In order to amend this, genocide counts were included in many indictments; however, it frequently led to acquittals of individuals. Instead, accusations of persecution on the basis of ethnic origin in crimes against humanity proved more effective in portraying the horrific scope of the battle. A crucial role in defining all the offences by the ICTY’s rulings on crimes against humanity was based on customary international law. Departing from the Nuremberg case, the Tadic case
19 ICTY Statute, Art 2
established that there was no need for an armed conflict nexus in order to prosecute crimes against humanity. The “discriminatory intent” requirement was also rejected; however, it reappears in the case of persecution being proven as a crime against humanity. 20 The ICTY made it very clear that proving a crime against humanity did not require proof of a plan of action or policy to commit such crimes, as compared to national case laws. The ICTY and ICC statutes differed in that ICC had a policy requirement while ICTY did not. The ICTY determined in the proceedings of crimes against humanity that “Civilian” is defined as a person who is not a part of the armed forces which excludes those who were involved in organised armed resistance.
Nevertheless, in the situations where the attack targeted the civilian population as a whole, casualties who were hors de Combat were included in the protected class. 21 Atrocities committed during the conflicts in the former Yugoslavia, the ICTY was crucial in the prosecution of the individuals who were responsible for it. The primary focus of ICTY was on crimes against humanity, crime wars, and genocide, as well as key interpretations pertaining to armed conflict, discriminatory intent, policy requirements, and civilian population. Though at the end this tribunal was criticized firstly, there was always delay in justice. Secondly, it was considered that this trial was too expensive. And lastly, the tribunal was to bureaucratic.
THE STATUTES OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA (ICTR): In 1994 to prosecute the criminals responsible for genocide and violation of international humanitarian law committed in Rwanda and other neighbouring states, the United Nations Security Council established ICTR. It created major Jurisprudence on war crimes, crimes against humanity, and genocide, and ICTR indicted 93 individuals. The International Criminal Tribunal for Rwanda (ICTR) has been a trailblazer in the development of a credible international criminal justice framework, generating a significant body of jurisprudence concerning crimes against humanity, war crimes, genocide, and forms of collective and individual accountability.
20 Prosecutor v. Dusko Tadic, Case No. IT-94-1, Opinion and Judgment, 7 May 1997, para. 542-544.
21 Martic ́, Case No. ICTY-IT-95-11-A, para 306.
The official closing of the ICTR is set to take place concurrently with the receipt of the ruling from the Appeals Chamber in its most recent appeal. The International Criminal Tribunal for Rwanda (ICTR) will persist in utilising a combination of legal, outreach, and capacity-building strategies to put an end to the impunity of those responsible for the Genocide until the verdict is returned in 2015. The International Committee of the Red Cross (ICTR) aims to prevent future genocides by enforcing justice for the victims of the genocide. This will be accomplished via the implementation of several initiatives. 22 There are parallels and differences between the customary law of the ICTY and ICTR statute. Both statutes go beyond the earlier framework by enumerating a wide variety of actions that constitute crimes against humanity.
Furthermore, they define a victim as “any civilian population” and demand that these individuals be attacked widely or methodically. 23 Analysing both the statutes i. e. ICTY and ICTR one of the most significant differences is between Article 5 of ICTY and Article 3 of ICTR. Article 3 which follows as:24 “Crimes against humanity The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds: (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.
” This article does not go beyond customary international law and explicitly calls for affiliation with an armed conflict. The article 5 of ICTY is totally in contrast with this article. Furthermore, according to Article 3 of ICTR, there is a requirement of discriminatory intent
22 International Residual Mechanism for Criminal Tribunal, ICTR.
23 The Statute of the International Criminal Tribunal for Rwanda, 1994, Art. 3
24 The Statute of the International Criminal Tribunal for Rwanda, 1994, Art. 3. Supra
based on national, political, ethnic, racial, or religious grounds, whereas Article 5 of ICTY concentrates on these grounds primarily for the crime of persecution, political, and racial. Irrespective of the legal developments which took place, the political factors however make it more challenging for the United Nations Security Council to enforce justice uniformly. In countries like Syria25, these situations are very evident, where the interest of the strong states causes resolutions to be vetoed. Under Chapter VII the enforcement power of UNSC, the permanent members are provided with powers and this can lead to unequal disparate responses and similar events emphasising the hardships in attaining widespread responsibility for mass atrocities.
“CODIFICATION OF CRIMES AGAINST HUMANITY IN ROME STATUE: ICC’s LATEST DEVELOPMENT” There was no post-Nuremberg multilateral treaty definition of Crimes against humanity, the codification took place in the Rome Statute. The International Criminal Court (ICC) is the first permanent body with the jurisdiction to prosecute individuals. When ICC was established in the late 1990s and early 2000s it marked a significant achievement in the field of international criminal justice. The international community faced serious hardships in dealing with the atrocities and international crimes promptly and adequately through ad hoc tribunals, the establishment of ICC marks a crucial step towards improving accountability for the most serious offences which are the major concern of the international community.
26 A substantive international document regarding to the prosecution and punishment of Crimes against humanity and other grave offences, the Rome Statute of ICC governs the court proceedings. A variety of offences of crimes against humanity have been defined under Article
7 of the Rome statute which as follows:
“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;
25 Security Council Report, UN Documents, Draft Resolution s/2014/348
The situation in Syria.
26 Horovitz, S., Noam, G. and Shany Y., The International Criminal Court. In
Shany, Y. , Assessing the effectiveness of international Courts. New York: Press, 2011, P.
223 (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
”27 Under the Rome Statutes, there are a number of preconditions which must satisfied in order to be charged with crimes against humanity. The crime is committed with the knowledge of the attack and is part of a larger, systematic attack against any segment of the civilian population. The statute emphasises certain specific grounds which include national, political, ethnic, racial, or religious elements and constitute crimes against humanity. Under Article 7 of the Rome Statute, 4 prerequisites have been set forth for the prosecution of crimes against humanity. Firstly, it deals with that there must be an attack. Secondly, the targeted civilian population. Thirdly, the knowledge of the attacker of the attacks. Lastly, a course of conduct being pursued or state or organizational policy. These elements may cause some controversy but they have been widely accepted.
The 4th element is a bit controversial among these. While discussing the aspects and the norms in defining crimes against humanity there were arguments and discussions over it which led to the birth of the Rome Statute. In the Rome Statute, the definition of the offences which have been mentioned are aimed to be distinguished from the other ordinary definitions of crimes and along with this there was guaranteeing responsibility for systematic and organized atrocities. These additions were criticized for compliance with customary international law. For the application of Article 7 of
27 The Rome Statute of the International Criminal Court, 1998, Art. 7 (1)
the Rome Statute, some additional guidelines were provided by the ICC’s Elements of Crime for better interpretation. These guidelines draw attention to the seriousness of such offences within the meaning of the International legal framework and emphasise the deeper meaning of the word crimes against humanity. There are several terms, and concepts in the statute which have not been defined and are kept for open interpretation by the Judiciary. These words are “Systematic Attacks”, “Civilian Population”, “Widespread” etc. Though the Rome Statute was successfully established for the betterment of society but there are challenges and controversies in relation to some topics of the statute. However, the ICC’s main motive of establishing this statute to identify the perpetrators whose acts are crimes against humanity and to hold them accountable for their acts.
“PREVENTION OF ATROCITIES” There’s a special body formed i. e. United Nations Special Advisers who are there to prevent the atrocities in society and mobilize the actions of the perpetrators who create havoc in the surrounding. Their primary reason for the prevention is to preserve human life because humans are the ones who are affected at large. The prevention of atrocities is so important because it causes significant loss of human life, which can be both physical as well as mental trauma and damage. There are several factors which lead to atrocity, one of the major reasons levels of instability and crisis in a particular region. In such regions or countries, atrocity or crimes tends to occur. But from time-to-time measures is taken to maintain peace, stability, and harmony.
Whenever a country is being attacked or there is an atrocity there is a spillover effect in the other neighbouring countries. E. g. the Russia-Ukraine war. Russia supplies fuel to India but due to the war Russia could not provide the same and this resulted hike in the prices of fuel in India. When there is a gross violation of International Humanitarian Law it constitutes a threat to international peace and security. The peace, security and well-being of the world is affected gets affected at large when someone tries to threaten it. The constitution of the Rome Statute of the International Criminal Law also states the same. Once the atrocity has been committed it will cost a hefty amount to regain every minute thing instead of that, protecting the country and using the money for the protection will cause less amount of money.
Rebuilding a nation after a humanitarian crisis or war requires high and sustained levels of international support which will go on for years.
Lastly, States uphold their sovereignty and lessen the need for more invasive responses from other States or international actors by implementing steps to avoid atrocity crimes and carrying out their fundamental duty to protect. As the Secretary-General of the United Nations has highlighted, the Responsibility to Protect concept is intended to support sovereignty rather than to erode it. One further way that States execute their sovereign obligations is by their efforts to prevent atrocity crimes from occurring within their borders. Each and every state has the responsibility to protect its own states from the atrocities. The process of prevention is challenging but better than the facet of the atrocities. For prevention, lots of efforts are required by nations to put in.
Firstly, this is an ongoing process which the capacity of society to tolerate atrocity crimes by maintaining the rule of law and ensuring that every human right is equally protected Prevention is an ongoing process that requires constant development; via the establishment of reputable and legitimate national institutions; the eradication of corruption; the constructive management of diversity; and the promotion of a vibrant and diverse civil society and pluralistic media. A state may foster an atmosphere conducive to atrocities if it fails to offer its citizens such assurances and safety. In these situations, prevention entails making an effort to halt the expected trajectory of events. Terror crimes are rarely singular, irregular events. Rather, they usually follow a dynamic process that serves as a springboard for preventative measures.
The UN Secretary-General underlined that upholding this idea is an obligation that supports sovereignty rather than undermines it. Criminals require time to acquire the skills necessary to commit violent crimes at the level associated with them, gather the necessary resources, and carry out specified acts to further their objectives. This does not imply that crimes are always planned out in detail from the start. For instance, in a number of earlier genocide instances, the initial purpose to exterminate the tribe eventually turned into a crime. However, there are indicators or warning signals that horrible crimes are occurring since they are procedurally based. This is particularly true in the case of genocide and crimes against humanity.
Therefore, we may propose preventative actions that governments and the international community can take if we can pinpoint the underlying causes and antecedents of these crimes as well as the risk factors that may promote or enable their occurrence. This is particularly valid in cases of genocide and crimes against humanity. Therefore, if we can identify the underlying causes and antecedents of these crimes as well as the risk factors that may promote or enable their commission, we may propose preventative steps that governments and the international community can adopt. The earlier risk variables are identified, the more options there are for early prevention. Over time, preventative measures become more difficult and expensive.
For instance, if the reason is found early enough, a state or the international community might make preparations to neutralise and counteract rising acts of violence against a certain group. There are, however, very few alternatives to atrocity crimes, and when other peaceful means fail, forceful actions like force may be required. 28 “COUNTRIES THAT HAVE FACED ATROCITIES DURING THE WAR”:
1. “SECOND CONGO WAR (1998-2003)”29
The Second Congo War is considered one the deadliest wars in the 21st Century. The Genocide of Rwanda, the assassination and death of the Zairean President Mobutu Sese Seko, and racial tensions between Hutu and Tutsi citizens all had a direct role in this war. In the year 1997, Mobutu was assassinated by the rebel leader Laurent Kabila. Zaire was renamed as the Republic of the Congo (DRC). The easternmost part of DRC was the most affected one. The entire area was made a battleground which is quite comparable to the World War I western front. Around 9 nations militaries and other militaries were associated and destroyed the entire countryside. In the area of the battleground, mass rapes were reported. In this war around three million civilians were killed because of a lack of resources, hunger, and damages happened because of fighting.
There is an ongoing investigation of the ICC for this war. This war is one of the examples where the atrocities took place at large.
2. “AFGHANISTAN WAR”30
The United States of America started conducting air strikes against the Taliban Regime in Afghanistan in 2001. Nearly, 30,000 Afghan Troops and police and nearly 31,000 civilians were killed between the period of 2001 and 2016. Understanding this war, it can be inferred that whenever there is a dispute between the nations and then that dispute turns into a war the civilian population at large is affected because of the atrocities. And then the role of the ICC comes into the picture so that all war criminals can be punished together for what offence they have done.
CONCLUSION
In today's time also the concept of evolving notions of crimes against humanity in international 28 Framework of Analysis for Atrocity Crimes, United Nations, Doc.49, U.N. GAOR, 66th Sess., Agenda Item 72, U.N. Doc. A/66/L.53 p.2
29 The Democratic Republic of Congo, Ilebo, Encyclopaedia Britannica
30 Afghanistan War, Ilebo Encyclopaedia Britannica
law is still growing and it’s a debatable and evolutionary topic. The definitions and concept of crimes against humanity are still considered under the formative stage. Though the definition of crimes against humanity is still in the developing stage from the key doctrinal stage but the crimes against humanity are defined under the Rome Statute of International Criminal Law. The more and more complications are arising in the law of crimes against humanity as it is getting more sophisticated corpus of criminal law and other diverse spectrum of underlying offences. The concept of “Universal Crime” was incorporated by the idea of the historical engagement of political liberalism to crimes against humanity. The foreign power was justified and the interference was based on claims of hurt suffered by all mankind. The concept of crimes against humanity was never novel.
Recently the legal definition was developed under the Rome statute. The term crimes against humanity were condemned at the very beginning of the 20th century when the Ottoman Empire was allegedly responsible for the Armenian massacres, but at that time the legal meaning was removed. In dealing with the atrocities at different stages different organizations defined the term crimes against humanity. The first one Nuremberg Charter followed by the Tokyo Charter, the ICTY, the ICTR, and the Rome Statute. Through development, the doors of progress have opened by removing the link to violent conflict. It is considered the traditional connection has continued to break down, although the Nuremberg Charter, the Tokyo Charter and the ICTY established a connection between crimes against humanity and armed conflict.
The definition of armed conflict is broadened in the ICC statute which requires this relationship of internal armed conflict. The ICTY considered the mandatory criterion “outdated” and argued that “there is no logical or legal basis for this requirement”. It was perceived that ICTR and the Rome Statute broke the connection and there was much significant progress achieved in the field of crimes against humanity if the current trends in international law are observed. The adoption of knowledge standards to demonstrate the mental element, the elimination of nexus with an armed conflict, and the expansion of the list of acts constituting crimes against humanity as well as the discriminatory grounds required for persecution are the few notable indicators of progress. The entire research paper aimed to demonstrate the evolution of the 20th century in the context of crimes against humanity.
This paper also aimed to include the world’s community efforts to prosecute criminals along with their trials and punishments for international crimes.