Justice: from Nuremberg to the Hague: trying criminals

Crimes against humanity

« Dans tout crime contre l’humanité un homme n’est plus l’égal d’un autre homme. Il est victime d’abord d’interdictions (de mariage, professionnelles, de libre circulation…), puis d’un marquage par une étoile ou un tatouage, enfin d’un parcage. L’homme alors est égal à zéro ; dans un pays où l’assassinat est un crime, il peut impunément être mis à mort. Il n’a plus ce nom que tout être humain reçoit à la naissance et qui lui ouvre l’exercice de tous les droits. Sont exterminés sans décision de justice et sans pouvoir se défendre des êtres humains, hommes, femmes, enfants, dont les corps sans sépultures doivent disparaître par le gaz, le feu ou dans des fosses communes. »

“In any crime against humanity, a man is no longer equal to another man. He is first the victim of prohibitions (professional, marital, free movement, etc.), then he is marked by a star or a tattoo and finally he is detained. The man is then equal to zero; in a country where murder is a crime, he can be put to death with punishment. He no longer has a name that everyone is born with and that allows him to exercise his rights. Humans, men, women and children are killed without a court ruling and without being able to defend themselves. Their bodies, which don’t have graves, must disappear by gas, fire or in mass graves. ”

Pierre Truche, trying for crimes against humanity. 20 years after the Barbie trial, Lyon, ENS Éditions, 2009

Definition: crime against humanity/crime of genocide

Crime against humanity

Crime against humanity is a unique crime. Not every serious mass violation constitutes a crime against humanity. There have been many crimes throughout history but trials for crimes against humanity are rare.

The recent legal definition of a crime against humanity is recognising human rights and the rights of mankind in international law and by a number of States.

The Charter of the Nuremberg Tribunal remains the founding act for defining crimes against humanity. Today, this definition is developed both in international law texts (charters of International Criminal Tribunals for the former Yugoslavia and for Rwanda: ICTY and ICTR, and now for the International Criminal Court) and in certain national laws (Canadian, Finnish, Portuguese, Ivorian and Slovenian Criminal Code, as well as in Articles 212-1 to 212-3 of the French Criminal Code).

National laws that penalise crimes against humanity do not always define them in the same way.
However, an overview of the definition of a crime against humanity can be presented:

Crimes against humanity refer to serious and marked violations of human rights.

For an act to qualify as a crime against humanity, it must have been committed on a large scale or consistently.
However, an individual who commits a crime against a single victim or a limited number of victims may be found guilty of a crime against humanity if their actions take place in the specific context mentioned above (a large-scale attack or consistently acting in this way).

A crime against humanity consists of carrying out inhumane acts against a physical person, including murder, extermination, enslavement, deportation, rape and torture.
In addition to this list, apartheid and enforced disappearances are also included.

Victims

Victims are primarily civilian populations: inhumane acts and persecutions that are consistently or collectively committed against people because they belong to a certain racial or religious community.

Sometimes they are soldiers.

“Anyone who opposes this policy, whatever the form of opposition, should be considered as guilty of a crime against humanity”

(judgement of the Court of Appeal of 20 December 1985, in the case against the FNDIRP [Fédération nationale des déportés et internés résistants et patriotes – National Federation of Deported and Imprisoned Resistance Fighters and Patriots] and Klaus Barbie, before the Barbie trial in Lyon).

Committing a crime against humanity requires individuals to use a state apparatus or means provided to them by large financial groups.
The crime must have been committed because the government, an organisation or group instigated or ordered it.

Racial, national, religious or political motives are inherent in genocide and certain persecutions that constitute crimes against humanity.

Crimes against humanity are not subject to a statute of limitations. The perpetrator can be prosecuted as long as he is alive.

The crime of genocide

Genocide can be considered within the scope of crimes against humanity. This is the case with French law. Not all crimes against humanity are genocides.

Article 211-1 of the French Criminal Code defines the crime of genocide before going on to define other crimes against humanity.

« Constitue un génocide le fait, en exécution d’un plan concerté tendant à la destruction totale ou partielle d’un groupe national, ethnique, racial ou religieux, ou d’un groupe déterminé à partir de tout autre critère arbitraire, de commettre ou de faire commettre, à l’encontre de membres de ce groupe, l’un des actes suivants :
– atteinte volontaire à la vie ;
– atteinte grave à l’intégrité physique ou psychique ;
– soumission à des conditions d’existence de nature à entraîner la destruction totale ou partielle du groupe ;
– mesures visant à entraver les naissances ;
– transfert forcé d’enfants. »

“It is genocide to execute a concerted plan to totally or partially annihilate a national, ethnic, racial or religious group, or a distinct group that is defined on the basis of any other arbitrary criteria, or to facilitate this crime being committed against members of that group, through any of the following acts:
– intentionally threatening life;
– causing serious physical or psychological harm;
– surrendering to conditions of existence that are likely to lead to the total or partial annihilation of the group;
– enforcing measures to prevent births;
– forcing children to be transferred. ”

Genocide is punishable by life imprisonment.

Four crimes against humanity committed in the 20th century have been recognised and qualified as genocide by the courts:

• the Armenian genocide in Turkey
• the genocide of Jews and gypsies by the Nazis
• the genocide against the Tutsi in Rwanda
• the 1995 massacre of thousands of Bosnian Muslims in Srebrenica

Other crimes against humanity are being debated among lawyers and historians as to whether they qualify as genocide: the famine caused by Stalin in Ukraine, the massacres committed by the Khmer Rouge in Cambodia, the situation in Darfur (from 2003 onwards) and others.