Crimes against humanity , or crimes against the peace and security of mankind, as defined in the Explanatory Note to the Rome Statute of the International Criminal Court, are “the most hated crimes, since they represent a seriously destructive impact on human dignity, humiliate and cause personality degradation." They are not isolated or isolated cases, but are part of either a single government policy (although the perpetrators should not identify with this policy) or a widespread atrocity that is covered up or justified by the government or de facto authorities. Murder, mass extermination, torture, rape, political, racial or religious persecution and other inhuman acts of behavior reach the critical level of crimes against humanity only if they are part of a widespread or systematic practice. Individual inhumane acts of this kind, and also, depending on the circumstances, war crimes, may constitute serious violations of human rights, but the latter do not fall within the definition of crimes against humanity.
Term
In the Ukrainian language, two parallel translations of the term are accepted - “crimes against humanity” and “crimes against humanity”. For example, in the Ukrainian version of the “Convention on the Non-Application of Statutes for War Crimes and Crimes against Humanity” the word “humanity” is used, and in the text of the “European Convention on the Non-Application of Statutes for Crimes against Humanity and War Crimes” the word “humanity”.
From a philological point of view, both terms are correct, but have slightly different meanings. Thus, “crimes against humanity” are crimes that harm a person - health, well-being, honor. They belong to the criminal category and are punishable by law. This is murder, incitement to suicide, beatings, torture, failure to provide assistance to a person in danger, unlawful imprisonment, hostage-taking, human trafficking, exploitation of children, rape, corruption of minors. But “crimes against humanity” pose a threat not to a specific person, but to the human community, the environment, violating the rules of human coexistence. They are punished not only by the laws of a given country, but also by international law. This is propaganda of war, planning and waging war, the use of weapons of mass destruction, piracy, hooliganism on the street, desecration of a grave, cruelty to animals, environmental pollution, the creation of a criminal organization, banditry, a terrorist act.
Thus, crimes against humanity are also crimes against humanity, but not all crimes against humanity are also crimes against humanity.
Crimes against the person in the Criminal Code
When investigating criminal cases, mandatory elements of an act must be established. For crimes against persons, this list includes:
- guilt in the form of direct or indirect intent, or negligence;
- action or inaction of a guilty person that entailed criminal consequences (for example, leaving a person in danger is accompanied by the inaction of the offender);
- method of committing a criminal act;
- status of the victim (for example, stricter sanctions will follow for a crime against a minor or young citizen);
- the nature of the harm caused;
- mitigating and aggravating circumstances.
To establish the listed signs, various procedural measures will be carried out. For example, confirmation of the nature of harm to health and the presence of a cause-and-effect relationship occurs through examinations.
Historical development
In 1860, the Republican National Convention included in its campaign for Abraham Lincoln's presidential bid: "It is a disgrace to us that the trade in African slaves has recently been re-introduced under the cover of our national flag and through abuses of justice." this constitutes a crime against humanity." In 1890, George Washington used the phrase to describe the treatment of Africans in the Congo Free State by King Leopold II of Belgium. Another very important use of the phrase "crimes against humanity" began after the First World War, when on May 24, 1915, the members of the Alliance - Great Britain, France, and the Russian Empire - jointly issued a statement that for the first time declared the commission of "crimes against humanity" in response to genocide. Armenians and warned about the personal responsibility of members of the Ottoman government. After the war ended, an international war crimes commission recommended the creation of a tribunal to administer justice for "violations of the laws of mankind." However, US representatives refused to refer to the “laws of humanity”, considering them inaccurate and insufficiently blameworthy, and this concept was not followed in the future.
Nuremberg trial
In the post-World War II period, the London Charter of the International Military Tribunal became the document that established the laws and procedures by which the post-war Nuremberg trials were conducted. The drafters of this document were faced with the problem of how to respond to the Holocaust and the grave crimes committed by the Nazi regime. The traditional understanding of war crimes did not contain any provisions for crimes committed by authorities against their own citizens. Thus, Article 6 of the Charter was designed to contain not only traditional war crimes and crimes against peace, but also crimes against humanity, which were defined as:
Murder, massacre, enslavement, deportation and other inhumane acts committed against civilian populations before or during the war, or persecution on political, racial or religious grounds in connection with any crime, are subject to the jurisdiction of the Tribunal, regardless of whether such acts violate domestic legislation of the country in which they were committed.
The decision of the International Military Tribunal in the trial regarding the main German war criminals also established:
In view of the above, the Court cannot generalize that acts committed before 1939 were crimes against humanity within the meaning of the Charter, but since the outbreak of war in 1939, war crimes were committed on a wide scale and were crimes against humanity. And since these inhumane acts charged in the indictment were committed after the outbreak of war and are not war crimes, they were all committed in pursuance of or in connection with a war of aggression, and are therefore recognized as crimes against humanity.
Tokyo trial
The International Military Tribunal for the Far East, also known as the Tokyo Trial, was convened to bring justice to the leaders of the Empire of Japan for three types of crimes: "Class A" (crimes against peace), "Class B" (war crimes), and "Class "(crimes against humanity) committed during World War II. The legal basis for the trial was determined by the Charter of the International Military Tribunal for the Far East, which was proclaimed on January 19, 1946. The Tribunal was convened on May 3, 1946, and adjourned until November 12, 1948. At the meeting of the International Military Tribunal for the Far East, a panel of eleven judges was assembled, one each of the victorious powers (USA, Republic of China, Soviet Union, Great Britain, the Netherlands, the Provisional Government of the French Republic, Australia, New Zealand, Canada, British India, and the Philippines). During the Tokyo Trial there were no suspects for crimes against humanity (“Class C”). Prosecutions related to the Nanjing Massacre were classified as violations of the laws of war. The war crimes for which junior personnel were accused were tried separately in other places throughout Far East Asia - the Nanjing War Crimes Tribunal and the Khabarovsk Trial.
Apartheid
Apartheid is the official policy of racial discrimination, segregation and oppression that was implemented from 1948 to 1991. They were carried out by the ruling circles of South Africa against the local black population, as well as immigrants from Asia. This policy was based on the idea of separate development of the European and non-European populations of South Africa. As a result of the application of apartheid norms, the majority of the South African population was reduced to a powerless position. The colored population (Indians, mestizos) did not have the same civil rights as whites (for example, 23 million blacks did not have the right to vote in parliamentary elections). The United Nations General Assembly recognized this act as a crime against humanity in 1976. The Charter of the United Nations (Article 13, 14, 15) determines that the Consultative General Assembly has the power to recommend measures for the peaceful settlement of any situation to the Security Council. However, regarding apartheid, the UN General Assembly has not yet made any conclusions and has not carried out any trials.
Features of the formation of the concept
According to literary rules and certain legal sources, the concepts of "humanity", "humanity" and "humaneness" are somewhat related. Previously, the norms of public behavior and the specifics of crimes organized against humanity prescribed such acts that do not belong to violations against humanity.
It is for this reason that there is a need to separate the concept of “crime against humanity”.
Initially, specialists who studied the actions performed by the Germans began to work on the content of this concept. Work was carried out on Art. 6 of the official Charter of the Nuremberg Tribunal. A whole list of illegal actions carried out by the Nazis was compiled. Here are the most important of them:
- Murders;
- Extermination;
- Brutality against civilians;
- Persecution on national, racial, religious and political grounds.
After lengthy proceedings, a Diplomatic Conference was held in 1998, in which plenipotentiary representatives took part. This event was supported by UN staff.
Here the Rome status of the ICC was established. It contains a complete description of the categories of illegal acts and their clarification. Criminal actions of this kind can only be recognized as such if two rules are observed:
- The crime was committed on an extremely large scale. These are also systematic actions aimed at the ordinary person.
- Consciousness of the attack.
United Nations
The United Nations was founded in 1948 and was primarily responsible for prosecuting crimes against humanity. Based on the Rome Statute, the International Criminal Court (ICC) was established, to which the UN delegated authority to decide several crimes against humanity. The ISS, acting without UN advice, lacks broad powers to investigate crimes against humanity, and cannot pursue cases, especially if the crimes were committed outside the ISS member countries. The recent UN appeal to the ISS, launched by Darfur in 2005, led to the indictment of Sudanese President Omar al-Bashir for genocide, crimes against humanity and war crimes in 2008. The first person whose case was referred to the ISS was Thomas Lubanga. He was convicted on March 14, 2012 and was sentenced to 14 years in prison on July 10, 2012, pending appeal. The ISS is still looking for Joseph Kony. When the President of the ISS reported to the UN about the success of these cases against humanity, Judge Philip Kirsch stated: “The court has no power to arrest these individuals. The state and other entities are responsible for this. There can be no trials without arrests.” As of March 2005, the UN has not addressed the ISS with other crimes against humanity. In a message about the wars of 2008-2009. In Gaza, Richard Goldstone accused Palestinian and Israeli forces of possibly committing crimes against humanity. In 2011, Goldstone said he no longer believed that Israeli forces directed civilians or themselves committed a crime against humanity.
Responsibility for crimes against the person
For these acts, almost all types of sanctions provided for by law are applied. Let us highlight the key points that will be taken into account to bring the perpetrators to justice:
- the most severe punishment is imposed for murder (Article 105 of the Criminal Code of the Russian Federation) - even in the absence of aggravating or qualifying features, a prison term of 6 to 15 years will be imposed, and for part two, life imprisonment may be imposed;
- for certain offenses, imprisonment is not used - for example, for slander only a significant fine or various types of work are imposed;
- The age at which prosecution occurs will also differ for different crimes - for example, children over the age of 14 can be prosecuted for murder.
The choice of article of the Criminal Code of the Russian Federation, as well as the type and amount of punishment, will be influenced by mitigating and aggravating factors, the status of the victim or culprit, and the nature of the harm to health.
UN Security Council
The UN Security Council Resolution, adopted by the United Nations Security Council on April 28, 2006, “reaffirms paragraphs 138 and 139 of the 2005 World Summit Outcome on the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity.” The resolution commits the Council to act to ensure the protection of civilians in armed conflicts. In 2008, the UN Security Council adopted resolution 1820, in which Fr.
International Criminal Court
In 2002, the International Criminal Court (ICC) was created in The Hague (Netherlands). The Rome Statute provides that the ISS has the power to try cases of genocide, crimes against humanity and war crimes. The definition of "crimes against humanity" for the ISS has become significantly broader than its original legal definition or that used by the UN. Article 7 of the treaty states that:
For purposes of this Charter, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack against any civilian population, when such attack is carried out knowingly: (A) murder; (B) mass extermination of people; (B) enslavement; (D) deportation or forcible transfer of population, (E) imprisonment or other cruel deprivation of physical liberty in violation of fundamental rules of international law; (E) torture; (E) rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilization or any other form of sexual violence of similar severity, (G) persecution of any identifiable group or entity based on political, racial, national, ethnic, cultural, religious, gender, as defined in paragraph 3, or other grounds generally recognized as impermissible under international law, in connection with any acts referred to in this paragraph or any crimes within the jurisdiction of the Court; (C) forcible kidnapping, (I) the crime of apartheid, (I) other inhumane acts of a similar nature intentionally causing great suffering or serious bodily injury, or those which would cause adverse effects on mental or physical health;
The Explanatory Note to the Rome Statute establishes that crimes against humanity are:
the most hated crimes, as they represent a serious destructive impact on human dignity, humiliate and cause degradation of the individual. They are not isolated or isolated cases, but are part of either a single government policy (although the perpetrators should not identify with that policy) or a wider pattern of atrocities that is covered up or justified by the government or de facto authorities. However, murder, mass extermination, torture, rape, political, racial or religious persecution and other inhumane acts of behavior reach the critical level of crimes against humanity only if they are part of a widespread or systematic practice. Individual inhumane acts of this kind, and also, depending on the circumstances, war crimes, may constitute serious violations of human rights, but the latter do not fall within the definition of crimes against humanity. On the other hand, a person may be guilty of crimes against humanity even if she commits one or two of the crimes mentioned above, participates in the commission of one of those crimes against just a few civilians, if these offenses are part of a persistent pattern of misconduct persons related to the offender (for example, because they are involved in hostilities on the same side or because they are participants in a joint plan or any similar reason.) So, when one or more persons are not accused of planning or carrying out an inhumane policy behavior, but are simply accused of committing specific acts of atrocity or vicious behavior, in order to determine whether their critical level occurs, the following should be used: a person must look at these atrocities or his individual acts in their context, check whether they can be considered as part of a general policy or continuous practice of inhumanity, or they constitute separate or isolated acts of cruelty and wickedness.
Council of Europe
On April 30, 2002, the Committee of Ministers of the Council of Europe issued a recommendation to member states on the protection of women from violence. In the section “Additional measures relating to violence in conflict and post-conflict situations”, paragraph 69 states that Member States must: “punish rape, sexual slavery, forced pregnancy, forced sterilization or any other form of sexual violence of similar gravity, violations will not be tolerated human rights as crimes against humanity and, when they occur in the context of armed conflict, as war crimes." The explanatory note on this recommendation in paragraph 69 states:
You should refer to the Statute of the International Criminal Tribunal adopted in Rome in July 1998. Article 7 of the Charter defines rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilization or any other form of sexual violence of similar gravity as crimes against humanity. In addition, Article 8 of the Charter defines rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilization or any other form of sexual violence as a serious violation of the Geneva Conventions and as war crimes.
According to the Rome Statute, crimes against humanity, as defined in Article 7.1, must be “part of a widespread or systematic attack against any civilians.” Article 7.2.a) states that "Attack against any civilians means a course of conduct, including the repeated commission of the acts specified in paragraph 1, against any civilians in furtherance of a State or organizational policy in carrying out such attack." This means that a specific crime in itself, or even a series of such crimes, are not covered by the Rome Statute unless they were the result of government or organizational policy. This was confirmed by Luis Moreno Ocampo in an open letter in which he outlined his findings regarding allegations of crimes committed during the March 2003 invasion of Iraq that may fall within the jurisdiction of the ICC. In a section entitled “Provisions Relating to Genocide and Crimes Against Humanity,” he states that “the information available does not provide a reasonable definition of the necessary elements of a crime against humanity,” that is, “a widespread or systematic attack against any civilian population.”
The Holodomor was recognized as a crime against humanity by the European Parliament.
Composition of a crime against humanity
The corpus delicti of a crime against humanity is defined as a set of objective and subjective characteristics established by sources of international criminal law that characterize the act as a crime against humanity under international criminal law. Thus, the scheme of corpus delicti in international criminal law coincides with the scheme of corpus delicti generally accepted in the theory of criminal law: object, objective side, subject, subjective side.
An object
The main object of crimes against humanity is the personality of a person, the totality of basic inalienable morals and freedoms of a person, other rights and freedoms established by international humanitarian law and the corresponding norms and principles. An additional object of each act from the group of crimes against humanity is a specific benefit, a social relationship, which is encroached upon by such an act in a particular case, including taking into account national legislation.
Objective side
From the objective side, crimes against humanity are committed mainly in the form of active actions or in the form of inaction, in the context of the commission of specific acts. One of the forms of committing such crimes is facilitating their commission by subordinates as a result of the superior’s failure to exercise proper control or failure to take measures to prevent or suppress their commission (Article 28 of the Rome Statute of the ICC).
A necessary feature of the objective aspect (contextual element) of crimes against humanity is the context of large-scale or systematic attack against the civilian population in which they are committed or of which they are part. It does not matter whether crimes against humanity are committed in the context of an international armed conflict, a non-international armed conflict, or outside such circumstances.
Subject
Crimes against humanity in practice are usually committed by representatives of the state or organization associated with the crime. However, from the point of view of current international criminal law, the subject of a crime against humanity can be any sane individual who has reached the age of 18. A typical example of crimes committed by private individuals is the surrender of people to the authorities, leading to imprisonment or death of the victims.
Subjective side
The subjective side of crimes against humanity is characterized by direct or indirect intent (Article 30 of the Rome Statute of the ICC). The latter, in particular, refers to the qualification of the actions of commanders and superiors, under whose leadership or with the connivance of which a crime against humanity was committed (Article 28 of the said Statute). By virtue of Art. 33 of the Rome Statute of the ICC, orders to commit the crime of genocide or crimes against humanity are clearly illegal, which excludes the possibility of exemption from criminal liability for the perpetrator - the person who committed such an act in pursuance of a lawful and binding order or instruction.
