What's in a name? A theory of crimes against humanity.

• Author: Dubler, Robert

Abstract

This article considers a theory of crimes against humanity--that is, it attempts to explain the crime's core purpose. The idea offered is that a 'crime against humanity' is a course of conduct which the international community accepts is not only 'criminal', but also threatens world peace. This enlivens the right of international tribunals, such as those created by the Security Council acting under Chapter VII of the UN Charter or the ICC, to try persons irrespective of whether the defendant is a head of state or other state official, any local law or opposition from any state. To keep faith with this core rationale and to permit the crime to keep its special place, a crime against humanity should be limited to flash points of extreme violence which can be linked, either directly or by indirect encouragement, to a state or de facto power.

Introduction

Kate Reynolds MP on 5 December 2003 in respect of Australia's policy of mandatory detention of asylum seekers stated that 'Our government is engaged in a continuing crime against humanity'. (1) 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. Julian Burnside QC, barrister and refugee advocate, has argued, however, 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') and that the members of the Government, including former Prime Minister, John Howard, are liable to prosecution before the International Criminal Court ('ICC'). (2) By parity of reasoning, President George Bush has also likely committed crimes against humanity by the United States' detention of persons at Guantanamo Bay.

Given the indeterminacy of the term, the label, a 'crime against humanity,' has been used by commentators, but less frequently by states, to describe a vast array of different human rights abuses, including terrorist attacks, policies of assimilation and the destruction of the social safety net. (3) It appears the term can be used to describe anything which outrages us.

Part of the difficulty is that 'crimes against humanity' as defined in Article 7 (ICC Statute) contains loose concepts, such as a 'widespread or systematic attack directed against any civilian population' and a 'State or organizational policy to commit such attack.' The meaning of these terms is far from clear in international law. Whilst the ad hoc Tribunals created by the Security Council (the International Criminal Tribunal for the former Yugoslavia ['ICTY'] and the International Criminal Tribunal for Rwanda ['ICTR'] have recently pronounced upon the crime's meaning in the context of their own statutory definitions and factual situations, there is no authoritative case law of the ICC assigning the offence a clear technical meaning. The various statutes defining it--the Nuremberg Charter, the Tokyo Charter, Allied Control Council Law No. 10, the ICTY Statute, the ICTR Statute, the ICC Statute, the Statutes of the hybrid Tribunals of Sierra Leone, East Timor, Kosovo and Cambodia, along with the International Law Commission, all define it differently. Hence, the term's 'correct meaning' under international law remains elusive.

The concept of 'crimes against humanity' cannot be reduced just to a topic of international law. There is a yearning to uncover the essence of the idea, to state why it is that 'crimes against humanity' are important and what the concept aims to protect. There is the belief that it is something more than just the sum of the definitions in treaties, such as Article 7 of the ICC Statute. But is there some overarching theory of crimes against humanity? What is distinctive about crimes against humanity and how are they different from other kinds of evil conduct--such as ordinary domestic crimes or human rights abuses? This article considers these questions.

The first part of the article divides the history of the concept of crimes against humanity into four periods, commencing with the antiquities and ending with the definition in Article 7 of the ICC Statute. Every definition of the phrase, a 'crime against humanity', is a product of its own historical setting. Even though at Nuremberg the crime first entered positive international law in the Nuremberg Charter, the roots of the concept can be traced back over the centuries. The second part of this article examines some of the attempts to arrive at an overarching theory for this international crime.

The idea offered in this article is that the notion of a 'crime against humanity' involves two aspects. The first is the commission of one or more of the various underlying offences that collectively make up a crime against humanity. The other is a threshold requirement of an 'attack' of a certain type. This threshold requirement is best thought of as describing when, as a matter of international custom and practice, it is accepted that a purely internal 'atrocity', without more, threatens the peace, security and wellbeing of the world. It is this feature which both sets the crime apart from others and gives rise to a responsibility on the part of the international community to respond to such attacks.

1. The Four Phases of the Concept of a Crime Against Humanity

The defining, though not exclusive, aspect of the concept of crimes against humanity, in its loose or non-technical sense, is the notion that certain conduct is unlawful and liable to punishment, even when committed by a state towards its own people under the colour of local law or state authority. It is suggested that this loose concept of crimes against humanity has gone through four historical phases.

1. Phase One--The Natural Law Phase

   It is often stated that the notion of crimes against humanity is based upon natural law concepts. As will be explained, this is only partially correct. The tradition of natural law as superior to the written laws of any state can be traced to writers such as Aristotle (384-322 BCE) and Cicero (106-43 BCE). The doctrine remained dominant for centuries. Hugo Grotius (1585-1645), one of the founders of the law of nations, asserted that kings have the right of requiring punishment for acts beyond their borders if they 'enormously violate the laws of nature and nations'. (4)

   The doctrine set some precedents for the notion of a crime against humanity in its loose sense. For example, in 390, St Ambrose (c 339-397), the Bishop of Milan, forced Emperor Theodocius to do public penance in the cathedral of Milan following the slaughter of thousands of civilians by Roman soldiers at Thessalonica. In 1474 in Breisach, Peter von Hagenbach, the town's former Governor, was accused of having 'trampled under foot the laws of God and man' (5) and was tried before a tribunal of 28 judges from allied states of the Holy Roman Empire. (6) In 1649, at the trial of Charles I in England, the Solicitor General John Cooke relied on natural law and the works of Bracton to say that a king always remains under God and the law.

   Natural law notions have retained a place in international law as can be seen in the source known as 'general principles of law recognized by the community of nations' and the phrase 'criminal according the general principles of law recognized by civilized nations' in Article 15(2) of the International Covenant on Civil and Political Rights. Some scholars believe this source was the strongest foundation for crimes against humanity at Nuremberg. (7) 'General principles', as a source for crimes against humanity, featured in Justice Jackson's paper before the 1945 London Conference, which drafted the Nuremberg Charter, (8) in the Indictment at Nuremberg and in the addresses of de Menthon (9) at Nuremberg.

   The difficulty with relying on this precedent on its own is working out how one distinguishes between a 'crime against humanity' and any serious domestic crime.

2. Phase Two--The Rise of Sovereign Immunity and the Doctrine of Humanitarian Intervention

   Following revolutions in America and France in the eighteenth century, an avalanche of criticism fell upon the notion of natural rights. (10) Positivism began to dominate as legal theory over natural law. At the same time, writers on the 'law of nations' came to support the principles of territoriality, sovereign immunity and non-interference in a foreign nation's affairs. An exception developed in the case of manifest atrocities pursuant to the doctrine of humanitarian interventions. The European Powers invoked this principle in the nineteenth and early twentieth centuries, particularly in their disputes with the Ottoman Empire. For example, in 1826-7 in Greece and again in 1860 in Lebanon, the European Powers intervened in response to reports of slaughter of Christians. President Theodore Roosevelt in his famous State of the Union address in 1904 said:

   ... there are occasional crimes committed on so vast a scale and of such particular horror as to make us doubt whether it is not our manifest duty to endeavour at least to show our disapproval of the deed and our sympathy with those who have suffered by it .... [I]n extreme cases action may be justifiable and proper. (12) The link between the doctrine of humanitarian intervention and crimes against humanity was made by Sir Hartley Shawcross, (13) United States ('US') prosecutors (14) and military tribunals (15) at Nuremberg to explain the juridical foundation of crimes against humanity in international law. As Shawcross put it: The fact is that the right of humanitarian intervention by war is not a novelty in international law--can intervention by judicial process then be illegal?' (16)

   The difficulty is that there still remains something of a leap of faith to take from such interventions evidence of an international crime. There were no international trials in the period and the...