Abstract
Three core crimes have emerged as a part of the jurisdiction of international criminal tribunals: war crimes; genocide; and crimes against humanity. Only two of these crimes (war crimes and genocide) have been addressed through a global treaty that requires States to prevent and punish such conduct and to cooperate among themselves toward those ends. Yet crimes against humanity may be more prevalent than either genocide or war crimes, and are a recurrent feature in non-international armed conflicts (NIACs).As such, a global convention on prevention, punishment, and inter-State cooperation with respect to crimes against humanity appears to be a key missing piece in the current framework of international humanitarian law, international criminal law, and international human rights law. Such a convention could help to stigmatize such egregious conduct, could draw further attention to the need for its prevention and punishment, and could help to harmonize national laws relating to such conduct, thereby opening the door to more meaningful inter-State cooperation on the investigation, prosecution, and extradition for such crimes. In July 2014, the International Law Commission embarked on the drafting of such a convention, in the hope of presentation to the U.N. General Assembly within the next five years. These remarks were the opening address at a conference on ‘Non-International Armed Conflicts (NIAC): Developments and Challenges’ held at Melbourne Law School, Australia, on 17 March 2015.
Highlights
I CRIMES AGAINST HUMANITY AND NIACS ‘Crimes against humanity’ are crimes that are so heinous — so horrible — that they are viewed as an attack on the very quality of being human
Inter-American Court of Human Rights[26] and the European Court of Human Rights.[27]. In light of such historical developments, it is well-settled that, under international law, criminal responsibility attaches to an individual for committing crimes against humanity, including those occurring in NIACs
Let me conclude by noting that, when one looks across the globe at various areas of conflict, it is disheartening to see that crimes against humanity appear to be occurring in many places, most notably in NIACs
Summary
The seeds were sown for such prosecutions in the aftermath of World War II. The 1945 Charter of the International Military Tribunal established at Nürnberg (‘Nürnberg Charter’)[6] included ‘crimes against humanity’ as a component of the Tribunal’s jurisdiction. In 1994, the UN Security Council established the International Criminal Tribunal for Rwanda (‘ICTR’).[13] Article 3 of the Statute of the International Tribunal for Rwanda (‘ICTR Statute’) established ‘crimes against humanity’ as part of the tribunal’s jurisdiction.[14] art 3 retained the same list of proscribed acts as existed for the ICTY, the chapeau’s language abandoned any nexus to armed conflict. Inter-American Court of Human Rights[26] and the European Court of Human Rights.[27] In light of such historical developments, it is well-settled that, under international law, criminal responsibility attaches to an individual for committing crimes against humanity, including those occurring in NIACs. As the ICTY Trial Chamber in the Tadić case indicated, ‘since the Nürnberg Charter, the customary status of the prohibition against crimes against humanity and the attribution of individual criminal responsibility for their commission have not been seriously questioned’.28
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