Assignment on Article Writing

Legal Writing and Legal Research

2BL331

Topic

Crimes Against Humanity: Need for a Coherent Normative Framework

Submitted By: Submitted To:

Yash Kumar Singh Mr. Surendra Kumar

18BAL139

Semester-III; Division-B

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 Contents

INTRODUCTION............................................................................................................................................ 3

Crimes Against Humanity: Need For A Coherent Normative Framework .................................................... 4

Conclusion ........................................................................................................................................................ 7

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 INTRODUCTION

The crimes committed in the two world wars and a growing like-mindedness in the international community,
that certain crimes committed within national borders are also subject to international law and adjudication
resulted in the modern concept of Crime against Humanity. However, until recently – the crimes committed
within national borders did not come under the purview of international law. After the Holocaust, there was
observed to be a rapid development in Human Rights Laws and Criminal Laws at the international level. The
Nuremberg Charter thus provided for jurisdiction not only over war crimes but also over "crimes against
humanity" and "crimes against peace."

Unlike war crimes and genocide, crimes against humanity are not codified in a global convention. Instead, the
law of crimes against humanity has primarily developed through the evolution of customary international law.
Although the statutes of most international and internationalized tribunals contain definitions of these crimes,
there are significant differences among those definitions. For example, the Nuremberg Charter and the Statute
of the International Criminal Tribunal for Former Yugoslavia (ICTY) require that crimes against humanity be
committed in the context of an armed conflict, while the Statute of the International Criminal Tribunal for
Rwanda (ICTR) and the law of the Extraordinary Chambers in the Courts of Cambodia (ECCC) require no
nexus with armed conflict but require an element of discrimination that is lacking in the other definitions.

This article elaborates on the problem that why is there no single treaty to address the crimes against humanity,
unlike the crime of genocide or war crimes. The article would also be answering the question of ‘What Makes
a Crime Against Humanity a Crime Against Humanity?’.

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 Crimes Against Humanity: Need For A Coherent Normative Framework

As the foregoing discussion demonstrates, a significant number of uncertainties remain about the definition
of crimes against humanity under customary international law, and even under the Rome Statute. Thus, the
call Professor Bassiouni issued fifteen years ago for the international community to adopt a specialized
convention addressing these crimes remains important today. Such a convention would assist States in
incorporating the prohibition of crimes against humanity into their national laws and encourage States to
prosecute these crimes. Ideally, a convention addressing crimes against humanity would reflect an
international consensus on the underlying normative framework for this category of crimes. Much of the
scholarly and judicial discussion of crimes against humanity has focused on the doctrine as it has evolved
since Nuremberg, with little attention to the normative underpinnings of these crimes. The concept of crimes
against humanity evolved out of the criminal prohibitions contained in the laws of war. The theoretical
justification for international jurisdiction over war crimes was that the criminal conduct "crossed borders"
because it was committed during international armed conflict. Now, more than ever, the international
community needs to resolve the uncertainties and "schizophrenias" in the law governing crimes against
humanity. Increasingly, States are incorporating crimes against humanity into their domestic law and
prosecuting these crimes in their national courts. Thus, ambiguities in the definition of crimes against
humanity affect not only international tribunals, but also the law applied in individual States. If States are to
understand and fully implement their international legal obligations concerning crimes against humanity a
clear and generally-accepted definition of these crimes will be essential. Such a definition, in customary or
treaty law, would be an essential piece in the development of a consistent and coherent normative framework
of international criminal law.

A significant number of uncertainties remain concerning the definition of crimes against humanity under
customary international law, and even under the Rome Statute. Here, we would try to find out whether there
is a need for such a convention or not.

It is well-understood that the International Criminal Court (ICC) does not have jurisdiction over all
international crimes. Article 5(1) of the Rome Statute of the International Criminal Court declares that the
“jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community
as a whole,” and proceeds to list merely four crimes under customary international law (e.g., genocide, crimes
against humanity, war crimes, and the crime of aggression).1 As documented in Article 10, it is also understood
that nothing in Part 2 of the Rome Statute (which includes Articles 5 through 21 and contains definitions

1
Harold Hongju Koh, & Todd F. Buchwald. (2015). The Crime of Aggression: The United States Perspective. The American
Journal of International Law, 109(2), 257-295. DOI:10.5305/amerjintelaw.109.2.0257
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and/or lists of genocide, crimes against humanity, and war crimes) “shall be interpreted as limiting or
prejudicing in any way existing or developing rules of international law for purposes other than this Statute.”2

Under Article 7(1)(k), inhumane acts must either cause "great suffering, or serious injury to body or mental
or physical health."3 It would be completely out of line with trends in judicial decision and general patterns of
expectation concerning the meaning of inhumane or inhuman treatment of human beings to require “great
suffering,” but what saves this provision from being far too restrictive is the fact that inhumane treatment is
necessarily “serious.” The list of war crimes within the jurisdiction of the ICC that is contained in Article 8 of
the Rome Statute is extensive. However, it is well-recognized that every violation of the customary laws of
war is a war crime. Although crimes against humanity are a core part of the Rome Statute, there appears to be
a lack of conceptual consensus on what makes a crime against humanity a crime against humanity as opposed
to a common offense under domestic law. Here, the research will elaborate as to why even the Rome Statute
definition does not resolve the problem. This is also apparent in view of the fact that treaties are to be
interpreted in light of the ordinary meaning of their terms with reference to their object and purpose and
relevant international law. Under customary international law, war crimes do not have to be committed as part
of a plan or policy or large-scale set of crimes and it would be illogical and not policy-serving to impose a
limitation by interpreting the phrase “in particular” differently than its ordinary meaning - in Article 8(1),
which declares: “the Court shall have jurisdiction in respect of war crimes in particular when committed as a
part of a plan or policy or as part of a large-scale commission of such crimes.” “The International Criminal
Court does not have jurisdiction over all international crimes and it is understood that definitions or lists of
crimes that are within the jurisdiction of the ICC are not meant to be exclusive or to limit in any way the
customary definitions of crimes against humanity and war crimes or the reach more generally of customary
international law”4 The distinction between crime against humanity and war crimes is important for several
reasons. For example, if future efforts are made to create a general or regional multilateral treaty proscribing
crimes against humanity, the significant limits with respect to crimes against humanity set forth in Article 7
of the Rome Statute should not simply be copied because they are far too limiting and do not reach all forms
of customary crimes against humanity.

“Extensive debates surrounding the scope of the contextual element of crimes against humanity during the
1998 negotiations leading up to the formal establishment of the permanent International Criminal Court (ICC),
This lack of clarity has persisted throughout the more recent history of international criminal law. Part of the
problem is that, unlike the crime of genocide, which has a widely accepted definition in the 1948 Genocide

2
Rome Statute of the International Criminal Court. (2019). Retrieved 23 October 2019, from
https://childrenandarmedconflict.un.org/keydocuments/english/romestatuteofthe7.html
3
Rome Statute of the International Criminal Court. (2019). Retrieved 23 October 2019, from
https://childrenandarmedconflict.un.org/keydocuments/english/romestatuteofthe7.html
4
Paust, Jordan. (2010). The International Criminal Court Does Not Have Complete Jurisdiction Over Customary Crimes Against
Humanity and War Crimes.
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Convention, or war crimes, which are codified in the 1949 Geneva Conventions and their additional protocols,
there is no single treaty addressing crimes against humanity. Thus, despite the centrality of the offense to
modern international prosecution efforts, various definitions of the crime and its contextual and other elements
have been developed and used in different national and international contexts over the years. Article 5(1) of
the Rome Statute of the ICC declares that the “jurisdiction of the Court shall be limited to the most serious
crimes of concern to the international community as a whole,”. Here, the research will try to answer as to what
exactly these crimes are and why do the Crimes against Humanity not fall under the ICC’s jurisdiction.

Considering the ambiguity surrounding the definition of crimes against humanity in customary international
law leading up to the Rome Conference, and the incorporation of a version of the offense retaining a State or
organizational policy requirement as codified in Article 7, the most effective reformulation of the concept
would be through an amendment to the Rome Statute. It allows for a more principled approach to the
development of international criminal law. Keeping in mind such a theory, while not by itself sufficient to
resolve the specific question considered in this research, does help to advance the conversation for States on
what purpose an international offense like crimes against humanity should serve for them and the rest of
humanity as human rights moves more and more to the center stage in shaping global responses to international
insecurity."5

A critical number of vulnerabilities stay with respect to the meaning of crimes against humanity under standard
worldwide law, and even under the Rome Statute. Here, we would try to find out whether there is a need for
such a convention or not. Despite the fact that crimes against humanity are a centerpiece of the Rome Statute,
there exists a certain kind of doubt on what exactly is a crime against humanity rather than a typical offense
under local law. Here, the research will intricate with respect to why even the Rome Statute definition doesn't
resolve the issue.

One of the key objectives of this research is to discuss the need for a normative framework to address the issue
of crime against humanity and whether such a framework would assist states in prohibiting such crimes. It is
also important to discuss that, despite its frequent invocation in contemporary legal and popular discourse,
why is it not entirely clear what is the distinguishing characteristic or feature of a crime against humanity that
moves it from the realm of the domestic to the international, such that its commission would attract the interest
and condemnation of the international community as a whole. Questions posed in the article and issues stated
are important to address and the researcher has tried to find the appropriate solution and responses to the same.
If all the countries understand and completely execute their legal duties, that they owe towards the
international community, in terms of crimes against humanity – a universal kind of definition of these
violations will be fundamental.

5
Jalloh, C. (2019). What Makes a Crime against Humanity a Crime against Humanity, Retrieved 23 October 2019, from
https://www.questia.com/library/journal/1P3-3107732711/what-makes-a-crime-against-humanity-a-crime-against
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 Conclusion

Humanitarian crime laws have evolved significantly in response to certain terrifying historical situations,
including the Holocaust, the ethnic cleansing of former Yugoslavia, and the genocide of Rwanda. This
definition was developed to allow the international community to pursue these crimes while respecting the
principle of legality. Even the definition of the Roman Code, which was theoretically developed to respond to
unexpected future situations, reflects political commitment, not a consistent and integrated normative
framework. As a result, the norms governing crimes against humanity remain ambiguous in many ways.
Example: Do you need a policy? If so, should it be a state policy? What should the author know about politics?
Should the author really know the relationship between his actions and further attacks, or is he sad enough?
Can crimes against humanity attack soldiers during peacetime? Can a single act of many victims be considered
a crime against humanity? What persecutions and “other inhumane acts” reach the level of crime against
humanity?

The concept, as codified in Article 7, taking into account the ambiguity of the definition of crime against
humanity in customary international law prior to the Roman Conference and the inclusion of a version of
crime that supports the requirements of national or organizational policies. The most effective reorganization
of the Roman regulations is to amend the Convention. This solution has several advantages, but only a few of
them can be highlighted here. First, it enables a more basic approach to the development of international
criminal law. The difficulty of ICTR, ICTY, and ICC judges coordinating inconsistent and unsupported
assessments of criminal requirements for humanity based on customary international law and its specific
means stresses the need for an international position on, The language used is still somewhat ambiguous, so
judges need some discretion to define an accurate outline of crimes against humanity (and other international
crimes) The recent International Criminal Court decision After the election in Kenya, there is a lot of confusion
in the definition of the Roman Code. This uncertainty has resulted in inconsistent analysis among judges,
scientists, and experts due to the exact nature of the root cause and lack of normative consensus on the
perimeter of crime. Recently, this contradiction has led to confusing standards for assessing the needs of the
organization, as defined in Article 7 of the Roman Code, according to both the majority and disagreement of
the Roman Code decision. Kenyan approval and calling. This leads to inconsistent conclusions about the exact
nature of the organization, but the majority and disagreement suggest an unclear standard that appears to be
open to a broad interpretation. A thorough examination of both standards leads to linguistic confusion that
never solves the fundamental problem of what is the main reason for crimes against humanity. In a sense,
confusion and ambiguity can be viewed as a natural evolutionary process of customary international law when
you return to a broader perspective, The role of the judiciary is to expand or contract the definition or role of
crime against humanity as the purpose of the court and its Contracting States change. The lack of conclusion
that an influential seemingly final assessment was submitted, such as the decision of the organization or state

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policy in Nuremberg, and an influential seemingly final assessment, is the court's opinion on this issue Shows
that. Be exposed. In order to avoid potentially unproductive and endless legal and academic disputes on this
issue, the Roman Code must be amended. This is particularly useful in the early days of the ICC to take a
strong position on the role and function of the permanent court at the first glance of the international criminal
justice system. Secondly, the changes introduced by the amendments to the Roman Code provide for a more
consistent development of the law. In this way, the parties can explore the potential benefits and impacts of
policy changes, regardless of their pros and cons to the requirements of the organization or government policy.
Although this review of the impact of the expansion of jurisdiction of the International Criminal Court in the
event of negative votes in the judiciary and academia, the amendments to the Roman Code allow for a more
democratic and participatory and comprehensive process became. Advisory and dynamic. Eventually more
about the principle. A process involving parties that are ultimately responsible for implementing them through
national prosecution. Third, it also recognizes the nature of the separation of authority stipulated in national
and international law between the judge as the interpreter of the law and the state as the legislator of all
applicable laws. The agreement on the importance of state organizations or policy requirements is particularly
useful in situations that have occurred after post-election violence in Kenya, at least not initially showing
evidence and demonstrating its existence. Or the lack of state policies that commit crimes against humanity.
This decision is often difficult and problematic to establish a strong link between state officials and state
policies, or impossible in the future, or in a particular permutation. It shows that there is. For example, Kenyan
police were involved in post-election violence. However, the police acted under the direction of the state or
its agency, or under its command, acted independently as a rented firearm for politicians acting for private
purposes, or worse, in particular, the ethnicity seems to be upset by agreement with the militia organization.
The amendment to the Roman Code will guide future situations such as Kenya by establishing a policy to set
crime targets against humanity and, if so, by seeking international consensus on what is more important. Who
should request what policy? The controversy over the majority's will in Kenya's approval decision to interpret
the threshold of crimes against humanity as widely as possible in order to capture purely private, freely
structured groups of irregularities Emphasizes the need for a clear legal definition of “organizational policy”.
In other words, for clarity, you may need to give these terms a specific meaning and answer predictive
questions about the nature, type, and characteristics of entities that you consider appropriate. It may be.
Restriction of criminal activity prohibited for all humanity. Finally, it goes far beyond the limited discussion
of the definition of crime against humanity at the ICC, the subject of this article, and the solution to the problem
of redefining crime against humanity. For example, Professor May presented international safety and harm
principles as substantial evidence of crimes against humanity. According to him, the state's participation in
the commission of crimes against its own citizens must intervene to protect the victims, or other interests that
must intervene to provide relief for the criminal damage It is based on safety principles as the foundation of
the countries concerned. International This is also consistent with the direction taken by extensive support for
the doctrine of responsibility that the international community protects. According to the May international
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damages principle, abuse against the group is a kind of damage that deserves international prosecution and
helps clarify lawsuits that require action at the national level.

More than ever, it is more important for the international community to eradicate uncertainty and
"schizophrenia" of the Crime Act against Humanity. The state is increasingly incorporating crimes against
humanity into domestic law and prosecuting these crimes in national courts. Therefore, the ambiguity of the
definition of crime against humanity affects not only international courts but also various state laws. In
addition, states are increasingly seeking universal jurisdiction for crimes against humanity, calling on states
to accept defendants, surrenders, or prosecutors of such crimes. In order for a state to understand and fully
enforce its obligations under international law related to crimes against humanity, a clear and generally
accepted definition of such crimes is essential. Such a definition in common law or conventional law will be
an essential element in the development of a consistent legal framework for international criminal law.

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