This chapter discusses the definition of crimes against humanity, its underlying offences, and some of the historical and theoretical issues surrounding the offence. It first outlines the evolution of the legal definition of crimes against humanity, which occurred through the statutes of international criminal tribunals. It then deals with the ‘contextual element’ of the offence; considers the prohibited acts that may form the conduct underlying a crime against humanity, with the exception of the complex crime of persecution; and examines the crime of persecution. Finally, it re-considers the question why there should be a separate category of crimes against humanity.
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9. Crimes against humanity
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13. International criminal law
This chapter examines the fundamental concepts and notions of international criminal law, which is linked to other key areas of international law, particularly human rights, international humanitarian law, immunities, and jurisdiction. In particular, there is a focus on the concept of individual criminal responsibility under international law. The four core crimes are considered; namely, genocide, crimes against humanity, grave breaches of the 1949 Geneva Conventions, and the crime of aggression. Moreover, attention is paid to two unique forms of participation in international crimes, namely, command responsibility and joint criminal enterprise. Finally, the chapter addresses enforcement of international criminal law, particularly through international criminal tribunals, with an emphasis on the International Criminal Court (ICC).
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24. International Criminal Law
Robert Cryer
This chapter examines the material and mental aspects of four offences that are directly criminalized by international law: genocide, crimes against humanity, war crimes, and aggression. The discussions also cover some of the general principles of liability and defences that are of particular relevance to international crimes. Firstly, joint criminal enterprise, co-perpetration, command responsibility, and the defence of obedience to superior orders are considered. The chapter then looks at international and national prosecution of international crimes, including the Nuremberg and Tokyo Trials, the International Criminal Tribunals for former Yugoslavia and Rwanda, and the International Criminal Court. As prosecution is not the only, or predominant, response to international crimes, the chapter concludes with a discussion of alternatives and complements to prosecution, such as amnesties, and truth and reconciliation commissions.
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7. Torture and aggression
Antonio Cassese, Paola Gaeta, Laurel Baig, Mary Fan, Christopher Gosnell, and Alex Whiting
This chapter discusses two classes of international crimes — torture and aggression — that have repeatedly drawn international attention and condemnation but have not been adjudicated as stand-alone crimes. It begins by considering the different reasons for the treatment — in practice, if not always in theory — of these two crimes as outside the ‘core crimes’ involving the most heinous offences: war crimes, crimes against humanity, and genocide. This is followed by discussions of torture as a discrete crime; torture as a war crime and a crime against humanity; the emergence of the notion of the crime of aggression and its falling into lethargy; the elements of the crime of aggression; the need to disentangle criminal liability of individuals from state responsibility; and whether conspiracy to wage aggression is criminalized.
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10. Genocide
This chapter focuses on the crime of genocide. The prohibition against genocide is now found in treaty and customary law, and is universally accepted as being an international crime ‘whether committed in time of peace or in time of war’. Genocide requires that a prohibited act is committed against a member of one of the protected groups, being a ‘national, ethnical, racial, or religious group’. The chapter first considers the definition of the protected groups. It then outlines the legal definitions of the prohibited acts; considers whether there is a ‘contextual element’ required as part of the crime of genocide; and examines the mental element of the crime of genocide and the role of the ‘special intent’ requirement.
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30. International criminal justice
This chapter discusses the development of international criminal law and institutions, international criminal courts and tribunals, and international criminal justice in national courts. These developments respond to but also reflect repeated failures to prevent serious violations of human rights and international humanitarian law. The work of the International Criminal Court, specialized criminal tribunals and ‘hybrid’ tribunals is outlined.
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13. Exclusion from asylum
Gina Clayton, Georgina Firth, Caroline Sawyer, and Rowena Moffatt
This chapter considers the provisions whereby an individual can be excluded from refugee status because of their conduct. These are as laid down in the Refugee Convention and the EC Qualification Directive. These powers were little used in the twentieth century, but now are used increasingly often in the context of the escalation in international action against terrorism. Their interpretation and application are affected by domestic legislation, in the UK, the Nationality Immigration and Asylum Act 2002, the Immigration Asylum and Nationality Act 2006, and the Terrorism Acts of 2000 and 2006, and draw on international criminal law. The chapter discusses up-to-date case law on exclusion from refugee status based on crimes against humanity, serious non-political crimes, and acts against the purpose and principles of the United Nations. It deals with the issue of complicity and the relationship with the UK’s anti-terrorism legislation. It also deals with the situations in which refugees can be removed from the host country.
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26. International Criminal Law
Robert Cryer
This chapter first discusses the overlaps between human rights and international criminal law, focusing on four international crimes: genocide, crimes against humanity, war crimes, and aggression. It then considers prosecutions and non-prosecutorial options, concluding with an analysis of the pros and cons of using international criminal law to protect human rights.
Book
Antonio Cassese and Paola Gaeta
This third edition of Cassese’s International Criminal Law provides an account of the main substantive and procedural aspects of international criminal law. Adopting a combination of the classic common law and more theoretical approaches to the subject, it discusses: the historical evolution of international criminal law; the legal definition of the so-called core crimes (war crimes, crimes against humanity, genocide) plus aggression, torture and terrorism; the forms and modes of criminal responsibility; and the main issues related to the prosecution and punishment of international crimes at the national and international level, including amnesties, statutes of limitations and immunities. The book guides the reader through a vast array of cases and materials from a number of jurisdictions, providing analysis that brings the political and human contexts to the fore. The International Criminal Court and all the other modern international criminal courts are fully covered, both as regards their structure, functioning and proceedings, and as far as their case law is concerned.
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26. International Criminal Law
Paola Gaeta
This chapter describes the characteristics of international criminal law as a branch of international law dealing with the criminal responsibility of individuals for international crimes. It begins by setting out the beginnings and subsequent development of this specialized branch of international law, then focuses on its inherent pluralism, which results from the multiple jurisdictions in which prosecution of individuals responsible for international crimes is possible. The chapter also discusses the main aspects of the definition of the so-called ‘core’ international crimes: aggression, war crimes, crimes against humanity, and genocide. It concludes by presenting the role of national jurisdictions in the prosecution of international crimes, and some of the challenges faced by international criminal courts and tribunals in fulfilling their mandates.
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17. International criminal law
This chapter describes international criminal law. International criminal law represented a fundamental shift for international law. Historically, international law regarded accountability and responsibility almost purely through the lens of the State and contained neither substantive rules nor the requisite institutions to prosecute an individual. Today, there exist several institutions, most prominently the International Criminal Court (ICC), which have given shape both to the substance of the crimes themselves and to the method for their effective prosecution. Through international criminal law, the criminal responsibility and liability of individuals, even if acting in groups, are now addressed internationally. There is a category of indisputable ‘core crimes’ under customary international law: genocide, crimes against humanity, war crimes, and aggression. These are helpfully defined in an ICC document called the ‘Elements of Crimes’, which is intended to guide the Court in the interpretation and application of these crimes.
