A crime may be said to be “against humanity” when the very fact that a fellow human being could conceive and commit it demeans all members of the human race, wherever they live and whatever their culture or creed. It not only deserves but demands punishment, irrespective of time (it can never be forgiven) or place – hence a universal jurisdiction arises to hold perpetrators to account. It includes genocide, and mass murder or systematic torture when authorised by a political power, and it imputes liability not only to heads of state and to military or political commanders (irrespective of immunity or amnesty), but to bureaucrats, ideologues, propagandists and others complicit in its commission. It is a crime so outrageous that the international community is obliged by its own law to intervene, irrespective of state sovereignty, to ensure that it is stopped and that its perpetrators are eventually punished.
The crime against humanity now has a 21st Century legal definition, embedded in Article 7 of the Rome Treaty of the International Criminal Court (ICC), which covers any “widespread or systematic attack directed against a civilian population pursuant to a state or organisational policy.” This definition, and other elements and consequences of the crime, have received detailed explication in the judgements of a number of international courts and tribunals, and from regional human rights court and local supreme courts. There have been commentaries from many distinguished jurists, mostly since the 1990’s when the crime shed any necessary connection with war and thus became available for use against states and statespeople who direct internal oppression. One of the great merits of this book, written by and for legal practitioners, is that it accurately analyses all these precedents and works them into a coherent exposition of the international criminal law that has emerged today, seventy years on from the judgement at Nuremberg.
I was, by happenstance, born on the very day of that judgement, so the length of my life is a measure of the time taken so far to fulfil its promise that perpetrators of great crimes will eventually be held to account. This began well enough, with that great post-war human rights triptych of 1948-49 – the Genocide Convention, the Universal Declaration of Human Rights and the Geneva Conventions – followed in later years by the ‘good conventions’ against torture and apartheid and mistreatment of women and of children. But none had enforcement mechanisms – as someone noted when surveying the killing fields of Rwanda, “the road to hell is paved with good conventions.” As a student in the 70’s I joined Amnesty and wrote grovelling letters – which was all you could do – to Amin and Pinochet and other mass-murderers, begging them to desist. The letters were never answered, although a quarter of a century later I did have the satisfaction of filing a brief for Human Rights Watch against Pinochet when he was arrested in London in 1999. This had been made possible by a new interest in global justice, sparked when the UN established criminal courts in 1994 to punish crimes against humanity in the Balkans (the ICTY) and in Rwanda (the ICTR). At the fag-end of a century in which 150 million lives had been lost through war and repression, it was as if the millennium had ushered in a new trend in international affairs – justice, rather than diplomatic expediency. Tyrants who might previously have been induced to leave the bloody stage only with an amnesty in their back pocket and their Swiss bank accounts intact might now face trial in an international court for crimes against humanity
The trend continued into the 21st century, creating precedents and forensic practices as Milošević, Karadžić and Mladić, Charles Taylor and Hissène Habré, and hundreds of their accomplices were indicted at courts in The Hague and elsewhere. The UN court in Sierra Leone, of which I was the first President, decided that recruiting children for war was such a crime, and that prosecution for other crimes against humanity could not be avoided by pleading an amnesty. The ICTR and ICTY became active in fine-tuning the law and extending its liability to accomplices – councillors and politicians and propagandists. Thus the development of international criminal law proceeded at a fast pace (although the trials themselves were slow and laborious). The process seemed, by 2011, to have become established as an element of international peace-keeping: that was when the Security Council unanimously authorised “all necessary means” to stop Colonel Gaddafi from taking further lives of his own people in Libya. This was pursuant to its ‘responsibility to protect’ obligation to protect victims from crimes against humanity being committed by their own government. The ICC prosecutor, after the Security Council referred the situation in Libya, speedily indicted Gaddafi, his son Saif and his spymaster Senussi.
But 2011 was the high-watermark of humanitarian intervention. The International Criminal Court’s actions against Gaddafi created over-optimistic expectations for international justice, exemplified by the first peaceful protestors in Damascus, with their banners reading “Assad to The Hague”. After his brutal forces had killed 800 of them in the first few months I wrote an article for The Independent urging that the situation in Syria should be referred to the ICC by the Security Council. Of course it was not – the Russians threatened to veto, anxious to protect their naval base in the Mediterranean, and by now 450,000 have been killed while half of Syria’s people are internally or externally displaced. Assad has gotten away with it, and the message is all too clear: no perpetrator with big-power support in a pole-axed Security Council will be sent for trial at an international court any time soon. As for the intervention in Libya, that country has gone from bad under Gaddafi to worse under his violent and warring successors: it has not passed without notice, in North Korea and elsewhere, that had the Colonel developed weapons of mass destruction, and in particular a nuclear bomb, NATO would have been reluctant to intervene.
The cause of international justice is not helped by the resurgence of support for state sovereignty, reflected in the rhetoric of Donald Trump, the UK vote for Brexit, and the election of inward-looking nationalist parties in Poland and Hungary. Nor has it been assisted by all the African states – Chad, Malawi, the Congo, South Africa, Uganda, Djibouti and Kenya – which have thumbed their nose at the ICC by welcoming Omar-Al-Bashir, head of state of the Sudan, despite his indictment for genocide and crimes against humanity. The authors of this book carefully explain the ICC reaction (p.224 et seq) but their work has gone to press before the latest Bashir travel embarrassment: on 23rd November 2017 he was welcomed in Sochi by President Putin, who actually sent a Russian VIP plane to bring him into the country to sign an agreement to purchase a Russian nuclear power station. This was the first real defiance by a ‘Big 5’ power, and it demonstrates all too clearly the current lack of respect for the Court.
Notwithstanding the current travails of international criminal courts, the crime against humanity is an important concept which judges and diplomats, journalists and politicians must understand. It is not only a basis for international prosecution, but an argument for extradition of perpetrators as it is an argument for asylum made on behalf of persons likely to be subjected to it. It is a matter for policy-makers always to take into account in international relations. The popular reversion to notions of sovereignty will not affect demands for Magnitsky laws (adopted so far in the US, Canada and several European countries) under which individuals implicated in crimes against humanity are denied entry, have their bank accounts frozen and (in some models) are refused entry for their parents to go to hospitals or their children to have private schooling. Magnitsky laws must be passed by national parliaments and applied by a national tribunal so they, do not involve international criminal jurisdiction, but make use of its principles and precedents in order for the state to sanction those believed to have abetted international crimes.
There will, then, be many occasions for determining whether a crime against humanity has taken place, and given the looseness of the political rhetoric in which the phrase is frequently to be found it will be important to adhere to the definitions and qualifications in what is now a developed customary law. There are still “grey areas” of course – does the requirement of an “organisational policy” include ISIS (at least when it has territory) but not the mafia? … and so on. But the full scope of the law, and most of its questions, are settled coolly and comprehensibly in a book which will be of great assistance to practitioners. The authors are right to survey the pre-Nuremberg history and to analyse some of the lesser Nuremberg cases – involving Nazi judges and industrialists and propagandists, which remain important precedents. The fin-de-siècle story, of how liability for crimes against humanity was extracted from its war context in the Nuremberg charter and developed as a free-standing rule of international criminal law, is well told.
The authors’ warning that the rule is one of international law, and should respect its requirements of sufficient state practice and juristic approval, is important at a time when international justice must inch its way forward against populist suspicion of being an incursion on sovereignty. Those appointed as international judges, especially if they have a human rights background, can be all too willing to extend the law to cover behaviour which is appalling but was not criminal by international standards at the time it was committed. My appeal court in Sierra Leone had to decide in 2004 whether it was an international crime in 1996 to recruit children for front-line fighting. At that time there was no state practice to make it a crime, and indeed the defendant, Hinga Norman, had himself been recruited by the British army at the age of 14. My colleagues, over-concerned that it should be a crime held (mistakenly, as later cases have shown) that it was indeed a crime by 1996. I dissented, pointing out that state practice was only sufficient by 2002, when the ICC statute outlawing child recruitment came into force. I was described – correctly if not always favourably – as a “moderate positivist”. Moderate positivism is, I believe, the way forward for international criminal law, and this book will greatly assist that process, by its systemic analysis of all the precedents we can now be positive about.
Geoffrey Robertson QC
Doughty Street Chambers
January 2018