What are crimes against humanity?

Almost 70 years ago, in the Nuremberg Palace of Justice, for the first time in world history, sentences were pronounced against high-ranking officials who were personally accused of what the state had committed.

One of the new crimes that the Nazi leadership was accused of committing was crimes against humanity, which were included in the Charter of the Nuremberg Tribunal.

Because of Russia’s war against Ukraine, crimes against humanity are once again becoming relevant. What the Russians are committing against civilians makes us remember the Nazi atrocities on this same land more than 80 years ago.

But what does this term actually mean, and why do we need to use it separately from war crimes and the crime of genocide?

“Crime against humanity” was formally mentioned in 1915: the Entente countries accused the government of the Ottoman Empire of committing it in connection with the massacres of Armenians. However, it was only a political declaration that could neither stop the atrocities nor bring the perpetrators to justice.

Thanks to Hersch Lauterpacht, an Austrian and English lawyer of Jewish origin who studied at the Faculty of Law of Lviv University from 1915 to 1919, crimes against humanity were able to get into the Charter of the Nuremberg Tribunal and subsequently gain a foothold at the level of international criminal law.

Lauterpacht had a close relationship with Robert Jackson, a U.S. Supreme Court justice who was appointed representative and later chief prosecutor for the United States at the Nuremberg trials.

Representatives of the allies could not reach a consensus during the discussion of the future tribunal due to their states’ different legal systems. During lively discussions, Lauterpacht suggested that Jackson introduce a new term into international law that would cover crimes exclusively against civilians — Soviet and American jurists could not agree on this issue. He proposed calling atrocities committed against civilians, as individuals, crimes against humanity.

Jackson heeded the proposal.

Genocide and crimes against humanity: a struggle of concepts

Another graduate of the Lviv Law Faculty, Rafal Lemkin, the author of the term “genocide,” also sought to introduce a new crime into international law. However, Lemkin wanted to protect not people as a whole but individual groups: the word “genocide” itself is an amalgam of the Greek root genos (tribe, race) and the Latin cide (murder).

Lemkin was encouraged to create his own concept by the already mentioned massacres of Armenians in the Ottoman Empire. Lemkin was outraged that the state could treat its own population so cruelly without taking any responsibility for its actions.

Gersch Lauterpacht spoke rather coldly about Lemkin’s concept of genocide: it seemed to him that highlighting crimes against a separate group would reduce the significance of the life of an individual person. In addition, he pointed out that it would be objectively challenging to prove the intention to destroy a particular group (and he was not mistaken in this).

Subsequently, both genocide and crimes against humanity became part of international criminal law. However, we still do not have a separate convention for crimes against humanity, although it is likely that one will eventually be adopted.

Already after World War II, crimes against humanity were found in the texts of a number of international criminal trials — for example, in the statutes of the International Tribunal for the Former Yugoslavia and the International Tribunal for Rwanda.

Nowadays, a separate article 7 of the Rome Statute is devoted to crimes against humanity. It suggests that eleven acts could be considered crimes against humanity if committed as part of a deliberate, widespread, or systematic attack directed against any civilian population:

1. murder
2. extermination
3. enslavement
4. deportation or forced population transfer
5. imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law
6. torture
7. rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilization, or any other severe form of sexual violence
8. persecution of any identifiable group or community on political, racial, national, ethnic, cultural, religious, gender, or other grounds generally recognized as unacceptable under international law in connection with any acts referred to in this paragraph or any crimes that are subject to the jurisdiction of the International Criminal Court
9. forced disappearance of people
10. crime of apartheid
11. other inhumane acts of a similar nature intentionally causing great suffering or grievous bodily harm or serious harm to mental or physical health

Why do we need this term, and it is not enough to condemn only war crimes? It is essential that crimes against humanity are not limited to events of armed conflict. Political regimes do not always need a war to terrorize their own population, and this terror is not always directed against a specific group — and even if so, the process of proof will give any lawyer nightmares, as Gersch Lauterpacht warned about.

The idea of “crimes against humanity” is to protect civilians, while most war crimes can affect both civilians and military personnel. Few would say that international law offers impeccably reliable protection, even with another legal term in its arsenal. However, one could not even hope for this a hundred years ago.

A Kharkiv Human Rights Protection Group has submitted a communication to the Office of the Prosecutor of the International Criminal Court regarding enforced disappearances in the context of the Russian invasion of Ukraine.

Editor: Denys Volokha