The classification of crimes against humanity is a great contemporary victory,
which encompasses, in my view, not only International Human Rights Law, but also
International Criminal Law insofar as it reflects the universal condemnation of gross and
systematic violations of fundamental and irrevocable rights, i.e. jus cogens violations;
hence the non-applicability, in the event of their occurrence, of the so-called statutes of
22
limitations in national or domestic legal systems.
The category of crimes against
humanity, in my opinion, is yet another expression of the universal juridical conscience,
of its immediate reaction against crimes that affect humanity as a whole.
Crimes against humanity stand at the confluence of International Criminal Law
and International Human Rights Law. Crimes against humanity of exceptional gravity
were, in their origins, connected with armed conflicts, but nowadays, from a humanistic
perspective, it is recognized that crimes against humanity have an impact on
International Human Rights Law (e.g. in cases of systematic torture and humiliation of
victims) insofar as, in seeking to dehumanize their victims, they negate humanity in
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general.
Crimes against humanity are massive and systematic in nature; they are
organized and planned as a matter of State criminal policy, -as conceptualized in their
precedents by the ad hoc International Criminal Tribunals for the Former Yugoslavia and
24
25
Rwanda, - they are clearly State crimes.
Organized and orchestrated by the State, in the upper echelons of government,
State crime is carried out by several individuals in furtherance of the criminal policy of a
given State, thus constituting actual crimes of the State, resulting in international
liability of such State (under International Human Rights Law) and of the individuals that
26
perpetrated the crimes.
Hence, the importance of prevention, given the severity of
these crimes, as well as the guarantee of non-repetition” (paras. 40-43).
27.
The Inter-American Court addressed this issue as part of its reasoning in the
Judgment rendered in this Case of Almonacid-Arellano et al. v. Chile. As an indication
of jurisprudential cross-fertilization, the Court evokes the case law of the ad hoc
International Criminal Tribunal for the Former Yugoslavia (ICTY, Trial Chamber) in
the sense that a single act in gross violation of human rights by a perpetrator may
constitute a crime against humanity, taken within the context of a systematic
practice, if it is the product of “a political system based on terror and persecution”
(Case of Tadic, May 7, 1997, para. 649). What is at stake is the conduct of the State,
the existence of a “policy element” (Case of Kupres[ki], January 14, 2000, paras.
550-551). Isolated acts by a perpetrator, if planned by the State, as part of a
“systematic” practice in furtherance of a “State policy,” constitute crimes against
humanity (Case of Kordic, February 26, 2001, paras. 176-179).
28.
In my recent General Course on Public International Law delivered at The
Hague Academy of International Law (2005), I pointed out that, in fact, at the dawn
of International Law, basic principles of humanity were applied to govern the conduct
of the States. What in time became known as “crimes against humanity” derived,
22
.
M.Ch. Bassiouni, op. cit. supra n. (21), pp. 227 and 289.
23
.
Y. Jurovics, Réflexions sur la spécificité du crime contre l'humanité, Paris, LGDJ, 2002, pp. 21-23,
40, 52-53 and 66-67 and cf. E. Staub, The Roots of Evil – The Origins of Genocide and Other Group
Violence, Cambridge, University Press, 2005 [reprint], pp. 119, 121 and 264.
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.
On contemporary international case law regarding crimes against humanity, cf. J.R.W.D. Jones,
The Practice of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, 2nd. ed.,
Ardsley/N.Y., Transnational Publs., 2000, pp. 103-120 and 490-494; L.J. van den Herik, The Contribution
of the Rwanda Tribunal to the Development of International Law, Leiden, Nijhoff, 2005, pp. 151-198.
25
.
Ibid., pp. 93, 183, 192, 199, 228, 278-279, 310, 329-331, 335, 360 and 375.
26
.
Cf. ibid., pp. 375-377, 403, 405-407, 441 and 447-448.