In the history of International laws, the foundation of the term “crime against humanity” can be said to be weak. The concept of the term has also been changing overtime. The term has also been interpreted differently through generations. The confusions and the unresolved principle of the crime were burdened by its features common to war crimes. Aside from that, traditional laws were controlling and perceived as the most applicable law during war times. However, through the development of war, crime against humanity has finally been clarified through the several laws adopted and cases decided during the period of wars.
Hence this paper will present crimes against humanity, its origin, elements, and its development. Body The term “crime against humanity” was created as a result of the mass killings perpetrated against Armenian in 1915. The massive killings in the Ottoman Empire were strongly condemned by the governments of Russia, British, and France by branding the acts as “crime against Christianity” (Cassese, 67). However, such term was perceived to be discriminatory as it implies excluding Muslim. Eventually, the term “crime against humanity”, which was suggested by French Minister Delcasse was adopted (Cassese, 67).
However, the problem with the term was its implication as it does not specify clearly the meaning humanity, if it refers to human being or to the philosophical concept of humanity. Eventually, an international tribunal was established primarily to hear and try offences in violation of the laws of humanity. Crime against humanity was, however, confused with war crimes under the customary laws because of several similarities. Some of the common features include odious offences constituting as a serious attack on human dignity or “grave humiliation of one or more human beings” (Cassese, 64).
In addition, the events of killing were systematic or sporadic. More importantly, such acts should be punished even if perpetrated in time of peace (Cassese, 64). Furthermore, the victims should be civilians and does not necessarily include military men. Despite the initiative to punish crimes which are perceived as inhumane, many still committed barbaric acts and acts that are strictly prohibited by the traditional international law for political and racial reasons (Cassese, 68).
As a result, the 1945 London Agreement, embodying the International Military Tribunal Charter, strengthened the campaign against commission of crimes against humanity (Cassese, 69). Interestingly, elements of the crime against humanity were established. The subjective elements of the crime include murder, extermination, enslavement, deportation or forcible transfer or population, imprisonment, torture, sexual violence, persecution, enforced disappearance of person and other inhuman acts of similar character and gravity.
Meanwhile, persecution is defined as “gross or blatant denial, on discriminatory grounds, of a fundamental right, laid down in international customary or treaty law, reaching the same level of gravity as the other prohibited acts” (Cassese, 80). Crime against humanity has also subjective elements which are necessary to be established in order to make the perpetrator liable. The first element is intent which refers to the perpetrator’s intention of committing such act. Second element is the perpetrator’s awareness of the serious consequences of his acts (Cassese, 81).
Third element is the agent’s awareness of the relationship between his misconduct and a policy or systematic practice (Cassese, 81). Last element is that the perpetrator must possess a racist or inhuman mind. Underlying these elements is mens rea which is the intent and awareness of the inhuman act and its consequences in a broader context (Cassese, 82). Furthermore, the intent must be criminal, specifically discriminating, harassing or causing the victim or a religious, political or cultural group to suffer serious injury.
Notably, an individual acting in his own private capacity may commit crime against humanity. However, it is necessary that the act has been done in unison or is supported by a general state policy (Cassese, 83). The crime can also be perpetrated by state officials in their own private capacity but should be supported by an “explicit or implicit approval or endorsement by state or governmental authorities” (Cassese, 83). On the other hand, victims are traditionally civilians.
Meanwhile, civilian refers to “persons other than lawful combatants, whether or not such person were civilians fighting alongside enemy military forces” (Cassese, 86). However, through development, military men were also considered as victims of the crimes against humanity. It is also noteworthy 1949 Geneva Convention included unarmed military combatant due to injury or imprisonment under the concept of victim of crimes against humanity (Cassese, 90). Furthermore, the inclusion of the military combatant as victims is applicable even during time of peace.
The reason behind it is because military combatant are merely protected by the international laws of warfare but are not protected from the abuses acts from individuals or state authorities. Hence, the protection afforded by the law on crime against humanity should extend to civilians, including military combatants and even in time of peace. Additionally, through the adoption of international treaties protecting human rights and prohibiting crimes that amount to violation of rights. Through the laws adopted by the United Nations, crimes such as torture, apartheid, and genocide, has already been proscribed and made strictly punishable.
With regard to element of mens rea, crimes against humanity must be coupled with knowledge of the attack and that it must be part of the widespread attack on civilian population (Cassese, 93). As to the requisite of attack, customary law requires that an attack against civilian should be promoted actively by the state. But under the new law, the requisite has been narrowed down because an attack that has been condoned or tolerated by the state does not automatically become an attack amounting to crimes against humanity. The attack should also involve multiple commissions.
Interestingly, the concept of persecution has also been narrowed by the new law. Under the new law, persecution will only fall as a crime against humanity if such would result in the egregiously violate the basic human right, part of widespread or systematic practice, and if discriminatory intent is involved. It can be observed that several drastic changes had been made in the crimes against humanity. Conclusion The historical development of crimes against humanity shows that the term has been established on a weak foundation.
Apart from that, the purpose of the term was merely to define the mass killings committed by the Ottoman Turks against Armenia. The statement was originally use for the purpose of defining such crime. But then, changing “Christianity” into “Humanity” has complicated several international laws. However, through the weak foundation of the “crime against humanity” a stronger law to proscribe inhuman, illegal, and lawless actions by private individuals and government authorities has been established.
It is also noteworthy that in order for an act to fall as a crime against humanity, several essential elements. It noteworthy that despite customary laws governing the acts of states and people during wartime, the massive killings were not prevented. However, it is also worth noting that the Allies were vigilant enough to act on the abuses committed, especially by Germans. Today, the historical background of crime against humanity and its principle itself has been serving relevant role in the international law. Work cited Cassese, Antonio. International Criminal Law. London: Oxford University Press, 2003.
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