On 5 December 2003, an Australian MP stated ‘[o]ur government is engaged in a continuing crime against humanity’.1 The statement was made in respect of the Australian government’s policy of mandatory detention of asylum seekers prior to the determination of their claims for asylym. Of course, one may think that this is just another example of the label ‘crime against humanity’ being used as a rhetorical figure of speech and outside its strict or technical meaning in international law. The term has been used to describe terrorist attacks, policies of assimilation, and the destruction of the social safety net.2 It appears the term can be used to describe anything which outrages us.3
Yet, there is often more to it than rhetoric. Australian barrister, Julian Burnside QC, as well as various other academics have made submissions to the International Criminal Court (ICC) that the Australian Government’s policy is in fact a ‘crime against humanity’ as defined in Article 7 of the Rome Statute of the International Criminal Court (ICC Statute).4 By parity of reasoning, then-President George Bush may also have committed crimes against humanity by the United States’ detention of persons at Guantánamo Bay.5 Likewise with the imprisonment of American nationals of Japanese descent during the
Crimes against humanity is a mechanism by which the perpetrators of some of the worst atrocities may be held to account by the international community. At the same time, however, adopting an overly broad and insufficiently rigorous interpretation of crimes against humanity has the potential to delgeitimise the significance of the crime, undermine the confidence that it will be applied correctly by courts and dissuade states from supporting international institutions such as the ICC. Today, this constraint upon leaders of State Parties to the ICC Statute, such as the United Kingdom, France and Australia, would appear to depend upon the proper interpretation of Article 7 of the ICC Statute. Similarly, the constraint upon former state leaders who are not parties to the ICC Statute such as Henry Kissinger or George Bush Senior may depend upon the right of other states to prosecute for committing a ‘crime against humanity’.
One difficulty lies in the fact that, unlike the crime of genocide, for instance, the definition of crimes against humanity is not set out in any one treaty. The crime is one of customary international law that has been implemented differently in different settings. The ICC Statute is one and perhaps the most prominent statute – others include the statutes of the World War II tribunals (the London Charter, the Tokyo Charter, Allied Control Council Law No 10), the statutes of the ad hoc Tribunals created by the UN Security Council (the International Criminal Tribunal for the Former Yugoslavia (ICTY), the Statute of the International Criminal Tribunal for Rwanda (ICTR)) and the statutes of the various other hybrid tribunals including in Sierra Leone, East Timor and Cambodia. Appendix 1 sets out the definitions of the crime in each of these international or ‘hybrid’ instruments and the definition in the ILC 1996 Draft Code. In addition the right to invoke universal jurisdiction over those accused of committing crimes against humanity remains controversial in theory and difficult in practice.
Another difficulty lies in the loose concepts contained in definition of crimes against humanity, such as a ‘widespread or systematic attack directed against any civilian population’ and a ‘State or organizational policy to commit such attack’. Many questions remain: how many victims need to be killed for an attack to be ‘widespread or systematic’, what determines whether a group of people are a ‘population’ or a ‘civilian’ population, and what kinds of actors can have the requisite ‘State or organiszational policy’.
One problem with the approach of the ad hoc Tribunals to the interpretation of crimes against humanity is that they have often done so devoid of a full and proper analysis of the historical foundations of crimes against humanity. The same can be said of the early decisions of the ICC. This is understandable to a large extent.
The approach taken in this work is essentially historical. There are important reasons for taking such an approach.
First, the definitions of the phrase, a ‘crime against humanity’, have not been drafted in a vacuum. Each tribunal appointed to prosecute persons for committing a ‘crime against humanity’ has been influenced by what has taken place before it, the political circumstances of the time and the historical situation sought to be addressed by the Tribunal in question. To understand each definition one has to understand that history. Even at Nuremberg, when the crime first entered positive international law in the London Charter, the roots of the concept could be traced back over the centuries.
One reason why this is signficant is that, for reasons that will be developed throughout the text, the ‘chapeau’ component of crimes against humanity is best understood as having a jurisdictional nature. It is the component that separates out domestic crimes that are within the sole concern of the territorial state and international crimes that are of concern to the international community. And, as will be seen, the consideration of the breadth and content of the chapeau requirement has historically been intertwined with a consideration of the nature of the court or tribunal that will be prosecuting those alleged to have committed the crime.
Secondly, understanding the facts to which crimes against humanity have been applied by the international community allows for a greater understanding of the effect of the authorities and their precedential value.
This work is broadly in two parts. The first 7 chapters trace the historical development of this international crime from the antiquities to the present. This includes both relevant jurisprudence as well as an analysis of the most
Chapter 1 contains an outline of the origins of the concept of crimes against humanity, in its non-technical sense, from classical times up to the Second World War. This history is of significance when it comes to looking at how crimes against humanity came to be defined at Nuremberg after World War 2.
Chapter 2 examines the emergence of crimes against humanity as a norm of customary international law at Nuremberg after World War 2 (the so-called ‘Nuremberg Precedent’). Significantly, the original definition required that crimes be connected with an international armed conflict (the ‘war nexus’). Given that the crime effectively emerged as a crime after the time in which it was alleged to have been perpetrated, this chapter also investigates the tension between the principle of nullum crimen sine lege and a prosecution for a ‘crime against humanity’ irrespective of local law. This discussion is relevant to later discussion on similar issues in the context of state prosecutions since Nuremberg.
Chapter 3 is entitled ‘From Nuremberg to the Hague’. It chronicles the development of the concept of crimes against humanity in the period from 1946 to 1993. This covers the work of the post Second World military tribunals after Nuremberg in the American, British and Russian areas of occupation, international sources, including the work of the International Law Commission (ILC) and state practice (its legislation and case law). The chapter discusses the uncertainty that surrounded the definition leading up to the ICTY, ICTR and ICC statutes and addresses the significance of various sources often relied upon by courts and commentators – in particular the work of the ILC.
Chapter 4 analyses the key sources that constitute the shedding of the war nexus from Nuremberg and the emergence of the modern definition of crimes against humanity: the drafting of the statutes of the ICTY and ICTR; the ICTY decisions in the Tadic case; and the Rome Conference and ICC Statute. This chapter tracks through these sources and extracts what state practice and opinio juris may be drawn from them as well as what material may be relevant to the interpretation of the ICC Statute by way of travaux preparatoires.
Chapter 5 analyses the treatment of crimes against humanity in the ad hoc Tribunals and the ‘hybrid’ tribunals. These include the more well known tribunals such as the Special Court for Sierra Leone and the Extraordinary Chambers
Chapter 6 analyses the the treatment of crimes against humanity by the ICC. Again, this includes the historical context in which the prosecutions have emerged as well as a summary of the key jurisprudence. As the ICC remains in its early stages, the ICC’s current state investigations and preliminary trial work is also discussed.
Chapter 7 looks at the most relevant state practice concerning crimes against humanity since the Rome Conference of 1998. It does that by examining the legislation and jurisprudence in all states that have actually confronted the issues of prosecuting persons for crimes against humanity (as well as a small number of other states to present a representative view of all major regions in the world). The chapter dicusses the historical context of any relevant prosecutions, the definition of crimes against humanity and any restrictions on the right to try persons for crimes against humanity. Particular focus is placed on the extent to which states have incorporated Article 7 of the ICC Statute into domestic law.
Chapter 8 (headed ‘Crimes Against Humanity and Threats to International Peace and Security’) draws together the historical analysis conducted in chapters 1–7 and seeks to set out a coherent framework for understanding and interpreting crimes against humanity, that is consistent with its history and its raison d’etre. The chapter examines the way in which the replacement of the war nexus with the modern definition of crimes against humanity has dovetailed with the emerging practice of the Security Council since 1991 to intervene in purely domestic atrocities on the basis that such atrocities constitute a threat to international peace and security under Chapter VII of the UN Charter. It is suggested that this practice provides the important context and a yardstick by which the contours of the modern concept of crimes against humanity may be understood and progressed.
The conclusion reached in this chapter is that the chapeau component of crimes against humanity seeks to balance two competing objectives: first, the protection of human rights by bringing to justice the perpetrators of atrocities that ‘shock our conscience’; and secondly, the protection of state sovereignty by ensuring that only matters that are of international concern (as opposed to purely domestic concern) warrant the intervention by the international community in matters that are ordinarily within the sole purview of that state.
Chapters 9 and 10 set out a comprehensive summary of the specific elements of the offence of crimes against humanity both under customary international
Chapter 11 considers a number of issues concerning the prosecution of crimes against humanity in domestic courts, where jurisdiction must be considered carefully and distinguished from the jurisdicition exercised by a tribunal created by the UN Security Council (the ICTY and ICTR), treaty (the ICC) or a hybrid tribunal. The issues considered include extraterritorial or universal jurisdition, immunities and the duty to prosecute or extradite. The conclusion reached is that, outside of Security Council or treaty authorisation, the right of state courts to exercise criminal jurisdiction over foreign nationals alleged to have committed crimes against humanity which have no link to the prosecuting state remains unclear in international law and difficult in practice in the face of opposition by the suspect’s state of nationality. Conclusions are also offered as to the duty of states to prosecute suspects, including in the face of local amnesties or local statutes of limitation.
Chapter 12 offers a short conclusion about crimes against humanity moving forward. This includes a consideration of the form of international prosecutions of crimes against humanity (e.g. the creation of further regional or hybrid tribunals, such as a permanent international criminal tribunal for Africa to be administered jointly by the United Nations and the African Union) and whether it is necessary that the offence be codified in the form of a treaty on crimes against humanity as some authors have suggested.
Ultimately, the jurisprudence on crimes against humanity is now likely to focus on the ICC. Whilst the judges of the ICC will have a wealth of material to draw upon when construing Article 7, they will also be faced with a number of choices as to how to interpret its meaning. As David Luban has remarked in 2004: ‘The concept [of crimes against humanity] is still in the childhood of its legal development, and those wrestling with the appropriate codification are in very much the same position as mathematicians in the early stages of a new field’.7 While matters have certainly advanced since 2004, there is still some way to go.