ICSPCA definition of the crime of apartheid

Legal status of crimes against humanity in international law

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7. Crimes against humanity

1. Crimes against humanity

2. Crimes against humanity

• Crimes against humanity are certain serious crimes committed as part
of a large-scale attack against civilians. Unlike war crimes, crimes
against humanity can be committed during both peace and war and
against a state's own nationals as well as foreign nationals. Together
with war crimes, genocide, and the crime of aggression, crimes
against humanity are one of the core crimes of international criminal
law, and like other crimes against international law have no temporal
or jurisdictional limitations on prosecution (where universal
jurisdiction is recognized).

3. Crimes against humanity

• The first prosecution for crimes against humanity took place during the
Nuremberg trials against defeated leaders of Nazi Germany. Crimes against
humanity have been prosecuted by other international courts (such as the
International Criminal Tribunal for the former Yugoslavia, the International
Criminal Tribunal for Rwanda, the Special Court for Sierra Leone, the
Extraordinary Chambers in the Courts of Cambodia, and the International
Criminal Court) as well as by domestic courts. The law of crimes against
humanity has primarily been developed as a result of the evolution of
customary international law. Crimes against humanity are not codified in
an international convention, so an international effort to establish such a
treaty, led by the Crimes Against Humanity Initiative, is currently underway.

4. Crimes against humanity

• According to the Rome Statute, there are eleven types of crime that can be
charged as a crime against humanity when "committed as part of a
widespread or systematic attack directed against any civilian population":
"murder; extermination; enslavement; deportation or forcible transfer of
population; imprisonment or other severe deprivation of physical liberty in
violation of fundamental rules of international law; torture; rape, sexual
slavery, enforced prostitution, forced pregnancy, enforced sterilization, or
any other form of sexual violence of comparable gravity; persecution
against any identifiable group or collectivity...; enforced disappearance...;
the crime of apartheid; other inhumane acts of a similar character
intentionally causing great suffering, or serious injury to body or to mental
or physical health."

5. Origins of the term

• The term "crimes against humanity" is potentially ambiguous because
of the ambiguity of the word "humanity", which originally meant the
quality of being human (first recorded in 1384) but more recently
took on another meaning as a synonym of mankind (first recorded in
1450). The context of the term in documents related to the
Nuremberg trials shows that the original sense is intended.

6. Origins of the term

• The term "crimes against humanity" was used by George Washington Williams,
an American minister, politician and historian, in a letter he wrote to the United
States Secretary of State describing the atrocities committed by Leopold II of
Belgium's administration in the Congo Free State in 1890. This was an early but
not, as is often claimed, the first use of the term in its modern sense in the
English language. In his first annual message in December 1889, U.S. President
Benjamin Harrison spoke about the slave trade in Africa as a "crime against
humanity". Already in 1883, George Washington Williams used the same term in
his reflections about slavery in the United States.
• In treaty law, the term originated in the Second Hague Convention of 1899
preamble and was expanded in the Fourth Hague Convention of 1907 preamble
and their respective regulations, which were concerned with the codification of
new rules of international humanitarian law. The preamble of the two
Conventions referenced the "laws of humanity" as an expression of underlying
inarticulated humanistic values. The term is part of what is known as the Martens
Clause.

7. Origins of the term

• On May 24, 1915, the Allied Powers, Britain, France, and Russia, jointly issued a
statement explicitly and for the first time ever charging another government of
committing "a crime against humanity". An excerpt from this joint statement
reads:
• In view of these new crimes of Ottoman Empire against humanity and civilization,
the Allied Governments announce publicly to the Sublime Porte that they will
hold personally responsible for these crimes all members of the Ottoman
Government, as well as those of their agents who are implicated in such
massacres.
• At the conclusion of the war, the Allied Commission of Responsibilities
recommended the creation of a tribunal to try "violations of the laws of
humanity" because the law of war did not cover atrocities committed by a state
against its own nationals or allied persons. However, the US representative
objected to references to "law of humanity" as being imprecise and insufficiently
developed at that time and the concept was not pursued.

8. Nuremberg trials

• After the Second World War, the Nuremberg Charter set down the laws and
procedures by which the Nuremberg trials were to be conducted. The drafters of
this document were faced with the problem of how to respond to the Holocaust
and other grave crimes committed in Germany and German-allied states by the
Nazi regime. Like in World War I, a traditional understanding of war crimes gave
no provision for atrocities committed by a state on its own citizens or its allies.
Therefore, Article 6 of the Charter was drafted to include not only traditional war
crimes and crimes against peace, but also crimes against humanity, defined as:
• 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.

9. Nuremberg trials

• Under this definition, crimes against humanity could be punished only insofar as they
could be connected somehow to war crimes or crimes against peace. The jurisdictional
limitation was explained by the American chief representative to the London Conference,
Robert H. Jackson, who pointed out that it "has been a general principle from time
immemorial that the internal affairs of another government are not ordinarily our
business". Thus, "it is justifiable that we interfere or attempt to bring retribution to
individuals or to states only because the concentration camps and the deportations were
in pursuance of a common plan or enterprise of making an unjust war". The judgement
of the first Nuremberg trial found that "the policy of persecution, repression and murder
of civilians" and persecution of Jews within Germany before the outbreak of war in 1939
were not crimes against humanity, because as "revolting and horrible as many of these
crimes were, it has not been satisfactorily proved that they were done in execution of, or
in connection with," war crimes or crimes against peace. The subsequent Nuremberg
trials were conducted under Control Council Law No. 10 which included a revised
definition of crimes against humanity with a wider scope.

10. Types of crimes against humanity

• According to the Rome Statute, there are eleven types of crime that can be charged as a crime against humanity when
"committed as part of a widespread or systematic attack directed against any civilian population":
• Murder;
• Extermination [including "the intentional infliction of conditions of life, inter alia the deprivation of access to food and
medicine, calculated to bring about the destruction of part of a population"];
• Enslavement;
• Deportation or forcible transfer of population;
• Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
• Torture;
• Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of
comparable gravity
• Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as
defined in paragraph 3, or other 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;
• Enforced disappearance of persons;
• The crime of apartheid;
• Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or
physical health.

11. Extermination

• Extermination is a crime against humanity that consists of "the act of killing on a large scale". To
be convicted of this crime, someone must play a role in a sufficiently-large scale killing of civilians,
including those carried out by "the intentional infliction of conditions of life... calculated to bring
about the destruction of part of a population". It was first prosecuted at the International Military
Tribunal in Nuremberg, and was included in the enumerated crimes against humanity in the Rome
Statute.
• Like other crimes against humanity, extermination must be "committed as part of a widespread or
systematic attack directed against any civilian population", but can occur in peacetime as well as
wartime (unlike war crimes). Similar to other international crimes, extermination includes both an
actus reus (an act of large-scale killing) and mens rea (the intent to participate in this action). The
definition of the crime according to the Rome Statute is mostly aligned with that of customary
international law. According to William Schabas and other jurists, the only difference from
customary international law was to specify that the crime of extermination includes "the
intentional infliction of conditions of life, inter alia the deprivation of access to food and
medicine, calculated to bring about the destruction of part of a population"—phrasing that
Schabas argues was inspired by one of the elements of the crime of genocide, "deliberately
inflicting on the group conditions of life calculated to bring about its physical destruction in whole
or in part."

12. Extermination

• Extermination (as well as the crime against humanity of murder) is
similar to genocide, and could cover the same events. Unlike
genocide, extermination as a crime against humanity is not required
to be committed with intent to destroy an ethnic, religious, or
national group. Extermination is a crime committed against
individuals, although on a large scale.
• The same underlying events might support a prosecution for
extermination as well as the war crime of starvation.

13. Enforced disappearance of persons

• Enforced disappearance of persons" means the arrest, detention or
abduction of persons by, or with the authorization, support or
acquiescence of, a State or a political organization, followed by a
refusal to acknowledge that deprivation of freedom or to give
information on the fate or whereabouts of those persons, with the
intention of removing them from the protection of the law for a
prolonged period of time.

14. Enforced disappearance of persons

• Since the establishment of the Working Group on Enforced or Involuntary Disappearances of the
United Nations Commission on Human Rights (CHR) in 1980, the crime of enforced disappearance
has proved to be a global problem, affecting many countries on five continents. It is the subject of
a special follow-up by the HRC which regularly publishes reports on its complaint and situation, as
well as the response and action of the governments concerned.
• The report of the 2009 Working Group recorded a total of 53,232 cases transmitted by the
Working Group to Governments since their inception in 1980 and affecting 82 states. The number
of cases that are still under study due to lack of clarification, closed or discontinuous cases
amounts to 42,600. Since 2004 the Working Group had clarified 1,776 cases. In the previous
report of 2007, the number of cases had been 51,531 and affected 79 countries. Many of the
countries in the cases are affected internally by violent conflicts, while in other countries the
practice of repressive policies towards political opponents is denounced. In other countries,
generally in the western and European hemispheres, there are still historical cases that remain
unresolved and constitute permanent crimes.
• In the official UN report of 2009, of the 82 countries where the cases of missing persons were
identified, the largest number (more than 1000) transmitted were: Iraq (16,544), Sri Lanka
(12,226), Argentina (3,449), Guatemala (3,155), Peru (3,009), Algeria (2,939), El Salvador (2,661)
and Colombia (1,235). Other countries with numerous cases under denunciation (between 1000
and 100) are: Chile (907), China (116), Congo (114), Ethiopia (119), Philippines (780), Honduras
(207), India (430), Indonesia (165), Iran (532), Lebanon (320), Morocco (268), Mexico (392), Nepal
(672), Nicaragua (234), Russian Federation (478), Sudan, Yemen (155) and East Timor (504).

15. Persecution

• Persecution is the systematic mistreatment of an individual or group
by another individual or group. The most common forms are religious
persecution, racism, and political persecution, though there is
naturally some overlap between these terms. The inflicting of
suffering, harassment, imprisonment, internment, fear or pain are all
factors that may establish persecution, but not all suffering will
necessarily establish persecution. The threshold of severity has been
a source of much debate.

16. Persecution based on genetics

• Persecution on the basis of albinism is frequently based on the belief
that albinos are inferior to persons with higher concentration of
melanin in their skin. As a result, albinos have been persecuted, killed
and dismembered, and graves of albinistic people dug up and
desecrated. Such people have also been ostracized and even killed
because they are presumed to bring bad luck in some areas. Haiti also
has a long history of treating albinistic people as accursed, with the
highest incidence under the influence of François "Papa Doc"
Duvalier.

17. People with autism

• People with autism spectrum disorders have commonly been victims
of persecution, both throughout history and in the present era. In
Cameroon children with autism are commonly accused of witchcraft
and singled out for torture and even death.
• Additionally, it is speculated that many of the disabled children
murdered during Action T4 in Nazi Germany may have been autistic,
making autistic people among the first victims of The Holocaust.

18. Crime of apartheid

• The crime of apartheid is defined by the 2002 Rome Statute of the International Criminal
Court as inhumane acts of a character similar to other crimes against humanity
"committed in the context of an institutionalized regime of systematic oppression and
domination by one racial group over any other racial group or groups and committed
with the intention of maintaining that regime".
• On 30 November 1973, the United Nations General Assembly opened for signature and
ratification The International Convention on the Suppression and Punishment of the
Crime of Apartheid. It defined the crime of apartheid as "inhuman acts committed for
the purpose of establishing and maintaining domination by one racial group of persons
over any other racial group of persons and systematically oppressing them".
• According to Human Rights Watch and legal scholar Miles Jackson, apartheid is also
prohibited in customary international law although there is still debate as to whether it is
criminalized as well. Legal scholars Gerhard Kemp and Windell Nortje noted that in 2021,
two individuals (former members of apartheid South Africa's security police) became the
first persons ever to be prosecuted for the crime of apartheid under customary
international law.

19. ICSPCA definition of the crime of apartheid

• Denial to a member or members of a racial group or groups of the right to life and liberty of person
• By murder of members of a racial group or groups;
• By the infliction upon the members of a racial group or groups of serious bodily or mental harm, by the infringement of
their freedom or dignity, or by subjecting them to torture or to cruel, inhuman or degrading treatment or punishment;
• By arbitrary arrest and illegal imprisonment of the members of a racial group or groups;
• Deliberate imposition on a racial group or groups of living conditions calculated to cause its or their physical destruction
in whole or in part;
• Any legislative measures and other measures calculated to prevent a racial group or groups from participation in the
political, social, economic and cultural life of the country and the deliberate creation of conditions preventing the full
development of such a group or groups, in particular by denying to members of a racial group or groups basic human
rights and freedoms, including the right to work, the right to form recognised trade unions, the right to education, the
right to leave and to return to their country, the right to a nationality, the right to freedom of movement and residence,
the right to freedom of opinion and expression, and the right to freedom of peaceful assembly and association;
• Any measures including legislative measures, designed to divide the population along racial lines by the creation of
separate reserves and ghettos for the members of a racial group or groups, the prohibition of mixed marriages among
members of various racial groups, the expropriation of landed property belonging to a racial group or groups or to
members thereof;
• Exploitation of the labour of the members of a racial group or groups, in particular by submitting them to forced labour;
• Persecution of organizations and persons, by depriving them of fundamental rights and freedoms, because they oppose
apartheid.
• — International Convention on the Suppression and Punishment of the Crime of Apartheid, Article II

20. Legal status of crimes against humanity in international law

• Unlike genocide and war crimes, which have been widely recognized and
prohibited in international criminal law since the establishment of the Nuremberg
principles, there has never been a comprehensive convention on crimes against
humanity, even though such crimes are continuously perpetrated worldwide in
numerous conflicts and crises. There are eleven international texts defining
crimes against humanity, but they all differ slightly as to their definition of that
crime and its legal elements. In 2008, the Crimes Against Humanity Initiative was
launched to address this gap in international law.
• On July 30, 2013, the United Nations International Law Commission voted to
include the topic of crimes against humanity in its long-term program of work. In
July 2014, the Commission moved this topic to its active programme of work
based largely on a report submitted by Sean D. Murphy (the Special Rapporteur
for Crimes Against Humanity).
• There is some debate on the status of crimes against humanity under customary
international law is. M. Cherif Bassiouni argues that crimes against humanity are
part of jus cogens and as such constitute a non-derogable rule of international
law.