12
(2004) cases among others,38 and in a recent essay,39 the State’s international
responsibility and the international criminal responsibility of the individual are
effectively complementary.
3.
The conceptualization of crimes against humanity
40.
A third point of approximation to the intersection between international
human rights law and international criminal law resides in the conceptualization of
crimes against humanity, which they both include. Such crimes are perpetrated by
individuals, but following State policies, with the powerlessness or tolerance or
connivance of society, which does nothing to prevent them; explicit or implicit, State
policy is present in crimes against humanity, which even rely on the use of State
institutions, personnel and resources.40 Such crimes are not limited to a simple
isolated action of deluded individuals. They are coldly calculated, planned and
executed.
41.
The definition of crimes against humanity is a major contemporary victory,
encompassing, in my opinion, not only international human rights law but also
international criminal law, by reflecting the universal condemnation of grave and
systematic violations of fundamental and non-derogable rights; in other words,
violations of jus cogens. Consequently the so-called statutes of limitations typical of
domestic or national legal systems are not applicable.41 The establishment of crimes
against humanity is, I believe, one more manifestation of the universal juridical
conscience; of its prompt reaction to crimes that affect humanity as a whole.
42.
Crimes against humanity are situated at the confluence between international
criminal law and international human rights law. They are particularly grave and
originated in the crimes against humanity linked to armed conflicts; however,
nowadays it is accepted, from a humanist perspective, that they also have
implications in the domain of international human rights law (for example, in cases of
the systematic torture and humiliation of the victims), which deny humanity in
general and seek to dehumanize their victims.42 Crimes against humanity are of a
massive and systematic nature, they are organized and planned as part of a policy of
State crime – as conceptualized in their case law by the ad hoc International Criminal
Tribunals for the Former Yugoslavia and Rwanda43 - they are authentic State
crimes.44
38
.
Cf. also, for example, my separate opinions in the cases of the Mapiripán Massacres (2005) and the
Ituango Massacres (2006), both in relation to Colombia.
39
.
A.A. Cançado Trindade, “Complementarity
Responsibility...”, op. cit. supra n. (27), pp. 253-269.
between
State
Responsibility
and
Individual
40
.
Cf., in this sense, e.g., M.Ch. Bassiouni, Crimes against Humanity in International Criminal Law, 2nd.
rev. ed., The Hague, Kluwer, 1999, pp. 252, 254-257. This is the understanding that underlies the United
Nations Convention against Torture, which criminalizes the conduct of State agents under international law;
ibid., p. 263, and cf. p. 277.
41
.
M.Ch. Bassiouni, op. cit. supra n. (40), pp. 227 and 289.
42
.
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.
43
.
Regarding contemporary international case law on 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.,
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