Why a United Nations treaty on genocide but not on crimes against humanity?
(Editor’s note: this article is part of a series on a draft convention on the prevention and punishment of crimes against humanity, to be considered in the discussions that will resume on October 8 in the Sixth Committee, the main forum for discussion of the United Nations General Assembly on legal matters.)
It is a matter of historical curiosity that the United Nations General Assembly adopted the Genocide Convention in 1948 without a corresponding treaty for crimes against humanity. Unlike the new crime of genocide at the time, crimes against humanity had already been recognized in 1945 in Article 6 (c) of the Statute of the International Military Tribunal (“IMT”), which applied to the trials of Nuremberg against the main Nazi leaders, and Article II (1) (c) of Control Council Law No.10, which applied to subsequent prosecutions. The term “genocide” had been introduced by Raphaël Lemkin a year earlier in 1944 in his book “Axis Rule in Occupied Europe”. It was even more a description of Nazi crimes than a legal definition. The IMT tribunal did not recognize the neologism in the Nuremberg judgment of 1946. It was only mentioned in passing through the US military tribunal during the Nuremberg “court trial” in 1947 as “the main illustration of a crime against humanity ”.
Fifty years later, in the 2000s Kupreškić judgment, a Trial Chamber of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) reiterated that “persecution as a crime against humanity is an offense belonging to the same kind as genocide. … [W]When the persecution escalates to the extreme form of deliberate and deliberate acts aimed at destroying a group or part of a group, such persecution may be considered to amount to genocide. From this perspective, a codification of crimes against humanity in a UN convention with the addition of the new crime of genocide as a species of persecution would have been more logical in 1948. So why was a treaty on genocide it been adopted without the one for crimes against humanity? ?
Crimes against humanity were a revolutionary concept in 1945. Unlike war crimes, which are generally committed against the nationals of an adversary, these crimes could be committed against “any civilian population”, regardless of their nationality. The concept fulfilled a gap which placed Holocaust victims belonging to European Axis states beyond the scope of international criminal law. Article 6 (c) of the IMT Charter limited the jurisdiction of the Tribunal to crimes against humanity committed “in execution of or in connection with” crimes against peace or war crimes. Unrelated to war, the IMT Charter would have criminalized peacetime human rights violations – an unprecedented and unacceptable encroachment on sovereignty at the time. Thus, although the Nuremberg Tribunal concluded that “[t]he policy of persecution, repression and murder of civilians in Germany before the war of 1939… the execution of, or in connection with, war of aggression or war crimes.
Shaped by limitation
The proposal to adopt a genocide convention was shaped by this limitation of the definition of crimes against humanity under the IMT Charter. It was dissatisfaction with the Tribunal’s inability to exercise jurisdiction over pre-1939 persecution that prompted some to propose the criminalization of “peacetime genocide” in a treaty. Supporters of this initiative have pointed out that less serious peacetime offenses – such as piracy, trafficking in women and children, drug trafficking, etc. – were already recognized as international crimes. Others, however, opposed the genocide as “unnecessary and dangerous neologism”, insisting that it was simply a form of crimes against humanity.
This debate shaped the decision to separate the two crimes. Thus, General Assembly resolution 95 (I) called for the codification of the Nuremberg Principles into an “International Criminal Code” – including the definition of Article 6 (c) with a link to war – while that resolution 96 (I) called for the drafting of a genocide convention which, when adopted in 1948, defined genocide as an international crime “whether committed in time of peace or in time of war” . If Article 6 (c) had not required a link to an armed conflict, genocide would probably have been covered by the Nuremberg Principles without a separate treaty.
It is remarkable that in 1995 – exactly 40 years after the ICTY Charter – the ICTY Appeals Chamber met in Tadić case that the link requirement in Article 6 (c) “was specific to the jurisdiction of the Nuremberg Tribunal” and that “[i]It is now a well-established rule of customary international law that crimes against humanity do not require a link to an international armed conflict. This was later confirmed by the authoritative definition in article 7 of the Statute of the International Criminal Court (“ICC”) adopted at the Diplomatic Conference in Rome in 1998.
The absence of a treaty on crimes against humanity is not without consequence. The ICC Statute does not meet the obligation of states to prevent and punish crimes against humanity. The “principle of complementarity” simply means that a true national procedure renders a case inadmissible before the ICC; Unlike the provisions of the 1948 Genocide Convention, the ICC Statute does not establish any obligation for states parties to prosecute international crimes in their national courts. A treaty on crimes against humanity could fill this gap. In addition, without a treaty, there is no arbitration clause allowing the execution of such obligations before the International Court of Justice (“ICJ”) with regard to crimes against humanity. On the other hand, Article IX of the Genocide Convention allowed important procedures such as the Application of the Genocide Convention case initiated by The Gambia against Myanmar in 2019 (see our series of forums here).
Filling a visible gap
The need for a treaty on crimes against humanity is all the more evident when one considers that an isolated war crime of murder or a crime of torture in peacetime triggers obligations of repression under the Conventions. of Geneva 1949 and the 1984 Convention against Torture, respectively, while – to give just one example – the crime against humanity of widespread or systematic murder against a civilian population in peacetime falls within the invalidity of a treaty. As a ‘catch-all’ crime spanning a wide range of atrocities, a treaty on crimes against humanity would fill this obvious gap and make a significant contribution to consolidating and streamlining disparate international criminal law treaties.
Some might argue that it is not important to have a convention on crimes against humanity because the genocide convention already deals with the “crime of crimes”. It is a misconception, however, that crimes against humanity are somehow a lesser offense than genocide under international law. First, the exclusion of political and social groups from the protections of the Genocide Convention means, for example, that the systematic murder, slavery and starvation of “class enemies” by the Khmer Rouge qualify as crimes against the human race. humanity but not genocide. It cannot be said that these heinous atrocities are somehow less serious just because the label of genocide does not apply.
Second, we cannot say in the abstract that just as murder is categorically more serious than aggression in national laws, genocide is necessarily more serious than crimes against humanity. For example, because genocide requires an intention to physically or biologically destroy a group, the murder of a hundred members of an ethnic group by a militia leader in a small village could qualify as genocide while deportation mass of one million members of the same group (i.e. with no intention to destroy the group) by a head of state could only qualify as a crime against humanity. We cannot say that the first is inherently more serious than the second. The practice of sentences of international criminal tribunals suggests that genocide is no more serious than crimes against humanity only when it is applied to the same perpetrator for the same acts. Discourse that relegates any mass atrocity that does not qualify as genocide to a “second-best” black hole remains oblivious to the compelling historical legacy and gravity of crimes against humanity.
It is time for the UN to reconcile the genocide with its kind by concluding a parallel treaty. The draft Convention of the International Law Commission (“ILC”) on the prevention and punishment of crimes against humanity presented to the United Nations General Assembly offers a unique opportunity to finally remedy this glaring omission in the architecture of global justice.