Crimes against humanity have been committed and prosecuted all over the world, including in Cambodia, Rwanda, Colombia, Yugoslavia, and in the context of World War II. Yet to this day, there is no standalone international treaty that codifies crimes against humanity and establishes duties to prevent and punish them. In stark contrast, treaties have existed to prevent and punish genocide and war crimes since the 1940s. This legal gap fosters impunity for serious crimes and creates a false hierarchy between equally egregious atrocities.
A new treaty, based on the International Law Commission’s Draft Articles on the Prevention and Punishment of Crimes against Humanity offers an opportunity to fill this gap.
The treaty would deliver tangible benefits for victims and survivors. It would combat the perception that victims of some crimes are more deserving of justice than others. The treaty would also place obligations on states to prevent crimes against humanity in the first place, and allow for states to be held accountable at the International Court of Justice (ICJ) if they failed to uphold their prevention responsibilities.
1. What are crimes against humanity? How are they different from war crimes and genocide?
Crimes against humanity (CAH) are amongst the most serious violations of human rights. They are defined in existing international law as one or more specific acts committed under certain conditions. Crimes against humanity include:
murder; extermination; enslavement; deportation or forcible transfer of population; illegal imprisonment or other severe deprivation of physical liberty; torture; rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; persecution; enforced disappearance; the crime of apartheid; and other inhumane acts.
In order for any of the above acts to constitute crimes against humanity, they must be committed against a civilian population (as opposed to soldiers or other non-civilian populations), and they must be part of a widespread or systematic attack (not singular violations).
In other words, crimes against humanity are distinguished from “ordinary” crimes by how widespread or systematic the violations are, and by who is targeted (civilians). Crimes against humanity are related to war crimes and genocide — each category of crime is considered a “core” international crime, but there are important differences among them.
War crimes, by definition, can only be committed in the context of an armed conflict. They involve grave breaches of the laws of war, committed against people or entities who are protected under those laws (such as civilians and their property) and/or the use of prohibited methods or means of warfare. The acts that can constitute war crimes range from willful killing to pillaging, sexual violence, and declaring that there will be “no mercy” in a military operation. It is possible for the same act to constitute both a crime against humanity and a war crime, or to be only one or the other.
Genocide differs from both of these categories of crimes because it is motivated by a specific intent to destroy, in whole or in part, a national, racial, ethnical, or religious group. Some of the acts involved in genocide (such as killing or sexual violence) can also constitute war crimes and crimes against humanity, but for these acts to constitute genocide, they must be committed with the intent to destroy.
Although these three categories of crimes are different, there is no hierarchy among them. The distinctions between these crimes reflect legal categories designed to accurately describe the nature of the crimes and to capture the distinct motives and methods of perpetrators.