Crime de droit commun
- 1 The slow emergence of the definition of crimes against humanity and its place in the right
- 1.1 A principle of ancient origin which is legally binding in 1945
- 1.2 The evolution of the concept of crimes against humanity and its place in international law and national laws after the war
- 2 The culmination of the definition of crimes against humanity in Article 7 of the Rome Statute of the International Criminal Court in 1998
A crime against humanity is a ‘disgrace and a deliberate violation of fundamental rights of an individual or group of individuals inspired by political, philosophical, racial or religious group’. However, ‘there is not, for crimes against humanity, generally accepted definition.
The concept of crimes against humanity is a complex category of crimes punished internationally and nationally by a set of texts that combine several offenses.
The International Criminal Court with 110 member states is the main permanent court to punish crimes against humanity. Article 7 of the Rome Statute sets out the list, even if it is not exhaustive:
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 on grounds of political, racial, national, ethnic, cultural, religious or gender (..) or based on 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, crimes of apartheid and other inhumane acts of a similar character intentionally causing great suffering or serious injury to body or to mental or physical health.
This definition will be challenged at the Review Conference of the Rome Statute in Kampala, Uganda to be held from May 31 to June 11, 2010. The review may also, but not exclusively, on the list of crimes contained in Article 5 namely the crime of genocide, war crimes and the crime of aggression.
The slow emergence of the definition of crimes against humanity and its place in the right
The concept of crimes against humanity appears for the first time as a strictly legal concept in 1945 in the Charter of the Nuremberg Military Tribunal, established by the London Charter (Article 6, c). This appearance is the result of the desire to try those responsible for atrocities committed during the great World War II as the Holocaust. This principle will also be held a few months later to assign senior regime leaders showa before the Tokyo Tribunal. The concept is strongly rooted in a particular historical context.
Yet today it belongs to the fundamental concepts of law. Crystallizing many passions, the definition of that characterization has been slow during the years after World War II.
Today, the crime against humanity has become one of the counts much larger and better defined by Article 7 of the Rome Statute of the International Criminal Court, but remains controversial.A crime against humanity is a crime including murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population.
A principle of ancient origin which is legally binding in 1945
The concept of war crimes is as old as the laws of war are found both among ancient peoples than among primitive peoples. The law of war was part of international law, that law common to all nations, whether in war or not.
In the late nineteenth century, the Declaration to the effect of prohibiting the use of certain projectiles in wartime made in Saint Petersburg December 11, 1868 seems to introduce for the first time the concept of laws of humanity Recalling the principle that the use of weapons which ‘uselessly aggravate the sufferings of men knocked out or render their death inevitable’ would ‘therefore contrary to the laws of humanity’.The word humanity here seems to refer to the fact behave with humanity, moral sense, that is to say, considering that the enemy is a human being.
A little later, in 1899, the international debate in The Hague of the ‘Martens clause’ concerning the ‘laws of humanity’ in the Preamble of the Hague Convention in 1907 on the laws and customs war. It notes that ‘populations and belligerents are under the protection and the rule of law, as they result from […] the laws of humanity […].’ The word humanity here seems to be taken as equivalent to the term Latin people, which traditionally refers to all the nations of the world, ie the collective name for all humans, regardless of their nations belonging .
Crime against humanity is defined by section 6c of the Statute of the International Military Tribunal at Nuremberg and applied for the first time at the Nuremberg trials in 1945. It defines the crime against humanity ‘murder, extermination, enslavement, deportation and other inhumane acts inspired by political, philosophical, racial or religious groups and organized in pursuance of a concerted plan against a group of civilian population. ‘
The evolution of the concept of crimes against humanity and its place in international law and national laws after the war
Crime against humanity, despite his humble beginnings (he explicitly stated to apply only to acts committed by the Axis powers), has gradually been included in international law and having regard to the passage its definition specified. A UN resolution passed in 1948 is thus ‘confirming the principles of international law recognized by the Charter of the Nuremberg court and the decision of this court.’
The definition is extended:In 1973, the International Convention on the Suppression and Punishment of the Crime of Apartheid calls apartheid a crime against humanity, and in 1992 a resolution describes the abduction of one of ‘crimes of crimes against humanity’ .
In addition to the definition, the legal status of a crime against humanity which also states: In 1968, the Convention on the Limitation of war crimes and crimes against humanity said the limitations of these .
A second milestone was reached during the wars of Yugoslavia: A UN resolution in 1993 creating the International Criminal Tribunal for the Former Yugoslavia (ICTY – ) in The Hague takes up the qualification of crimes against humanity defined by the Statute of the Nuremberg Tribunal. The same approach was confirmed 8 November 1994 when creating the International Criminal Tribunal for Rwanda (ICTR – Resolution 955).
In France, at the end of the war, the qualification of crimes against humanity will not be used for prosecution of crimes committed by both Germans and the French. Punishment will be made by special courts, but for common crimes. As time passed and the will that criminals can not benefit from asserting the limitation, the Act of 26 December 1964 recorded crimes against humanity in the French legal system. Then a single article of the Penal Code which refers to the charter of the international tribunal in 1945 and the UN Resolution of 13 February 1946. It says these crimes ‘inalienable by nature’, that is, they can be tried without delay in time. This is the only crime of limitations in French law.
Open procedures give rise to case law in determining the definition of crimes against humanity.For example, December 20, 1985, a decision of the Supreme Court broadened the concept of victim of such crimes to victims of political discrimination, in addition to victims of racial or religious discrimination, that are considered those who persecuted the Jews also although resistant (including Klaus Barbie and Paul Touvier in 1987 in 1992). The same year the Court of Cassation further refines the definition by saying that these crimes must be ‘on behalf of a State practicing a policy of ideological hegemony.’ Finally, the parliamentary vote in 1994 a law defining precisely the crime against humanity (Articles 211-1, 212-1 et seq of the Criminal Code) – and taking into account the jurisprudence -. On 22 January 1995 and May 22, 1996, French law extending the jurisdiction of French courts for crimes within the ICTY and ICTR.
Despite the ratification by France of the Rome Statute of the International Criminal Court June 9, 2000, no legislation has yet been passed by the French Parliament which would establish universal jurisdiction of French courts to hear crimes within the jurisdiction of the Court: genocide, war crimes and crimes against humanity.
In 2001, France officially recognizes the slave trade and slavery were crimes against humanity (Act No. 2001-434).
The culmination of the definition of crimes against humanity in Article 7 of the Rome Statute of the International Criminal Court in 1998
A complete definition and detailed in section 7 of the Rome Statute