« All we know is that we can neither punish nor forgive such offenses and that they therefore transcend the realm of human affairs and the potentialities of human power, both of which they radically destroy wherever they make their appearance. »[1]

Hannah Arendt harshly stated the extreme difficulty raised by the question of crimes against humanity and genocide. Indeed, the huge controversy that followed her analysis of “the banality of evil”, as she reported the trial of Eichmann, shows the extend of the passion created by that issue and its consequences. 

But even so, justice hardly plays its role.

That is due to the specificity of crimes against humanity and genocide. Firstly, that specificity is quantitative: they are crimes that involve a great number of people (victims as well as torturers). It is also qualitative: those crimes turn the entire humanity into victims. However, as Hannah Arendt explains, placing them out of the scope of humanity does not help giving an efficient answer to the perpetration of such atrocities.

What is more, very often the whole state machinery is responsible for those crimes, making it extremely difficult for justice to operate, internally (weak institutions) as well as internationally (international relations being ruled by the sovereignty of States).

To understand the difficulties raised by crimes against humanity and by genocides, and to find answers to them, we should start with definitions.

Firstly, they differ from war crimes: they can be committed out of any armed conflict. [3] Secondly, crimes against humanity and genocides belong to two distinct crime categories in international law. However, it is commonly accepted that genocide is a specific kind of crime against humanity.  [4]

Crime against humanity consists of a series of very serious crimes (murders, tortures, enforced disappearance …) when committed as part of a widespread or systematic attack against the civilian population. [5]

Genocide is also a series of very serious crimes. Its specificity lies in the fact that the crimes are committed to destroy all or part of a national, ethnic, racial or religious group. [6]

Now that we know what we are talking about, let us ask the following question: which are the possible responses to crimes against humanity and to genocides?

Before answering that questions (II), we should consider the legal framework (I).

I) THE LEGAL FRAMEWORK OF GENOCIDES AND CRIMES AGAINST HUMANITY

The concept of « crime against humanity » has long remained out of the legal field. Indeed, it appeared at the beginning of the 20th century, in the “Martens” clause that was added to the 1899 and 1907 Hague Conventions about the laws and customs of war on land. [7]

It was legally defined later, in 1945: crime against humanity is part of the Charter of the Nuremberg Tribunal. However, it was not yet divorced from the other crimes mentioned by the Charter: war crimes and crimes against peace.

The crime of genocide was invented by the Polish Jurist Raphael Lemkin in 1944 to qualify the mass crimes committed by the German Nazi regime, and those committed against the Armenians in the Ottoman regime in 1915. That notion was used for the first time in the indictment of the Nuremberg Tribunal. It was then consecrated in 1948, as the UN adopted the Convention for the Prevention and the Punishment of the Crime of Genocide on December 9th. From that moment, there was a clear distinction between genocide and other crimes committed in times of armed conflicts. [8]

The legal framework of crimes against humanity and genocides should be addressed at three different levels: international (1), regional (2) and national (3).

1) The international level

The notions of crime against humanity and genocide have the advantage of being acknowledged at an international level.

However, crime against humanity is distinct from genocide: it is mainly based on customary international law and on the definitions given by the satus of the international criminal jurisdictions. [10]

Crime against humanity

Article 7 of the Rome status provides a non-exhaustive list of serious crimes (including murder; rape; persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender grounds; enforced disappearance of persons; the crime of apartheid). They can be qualified as crimes against humanity when committed as part of a widespread or systematic attack directed against any civilian population, with the knowledge of the attack.

In the initial definition produced in Nuremberg, it was required that the crime should be linked to an international? armed conflict. That requirement has been relaxed to include contexts of non international armed conflict, by the statute of the International Tribunal for the Former Yugoslavia (article5). 

The requirement of a context of an armed conflict was eventually abandoned when both the International Criminal Tribunal for Rwanda (article 3) and the Status of Rome about the creation of the International Criminal Court (article 7) were adopted. Thus, a crime against humanity may be committed in all circumstances, in times of war as in times of peace.

What is more, the statutes of the International Criminal Tribunal for Rwanda and the International Criminal Court introduced a new element, that had already been mentioned in the case law of the International Criminal Tribunal for the Former Yugoslavia and in other documents: to be acknowledged as crimes against humanity, the crimes mentioned earlier must have been committed “as part of a widespread or systematic attack”. The criminal should be conscious of that context of a widespread or systematic attack against a civilian population.

Given the high level of organization required and because of the magnitude of the crimes, crimes against humanity were often initiated by state policies. But the definition does not keep outside the option of crimes being committed by other entities, such as paramilitaries, guerilla groups, or terrorist organizations.

Genocide

According to the 2nd article of the Convention for the Prevention and Punishment of the Crime of Genocide dating from December 9th, 1948, « genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:  

( a ) Killing members of the group;

( b ) Causing serious bodily or mental harm to members of the group;

( c ) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

( d ) Imposing measures intended to prevent births within the group;

( e ) Forcibly transferring children of the group to another group.”  

The definition is repeated in the statute of the International Tribunal for the Former Yugoslavia (article 4), the International Criminal Tribunal for Rwanda (article 2) and the International Criminal Court (article 6).

The 1915 Armenian genocide (commemoration of its 100th anniversary this year) is one of the four genocides that were acknowledged by the UN institutions, along with the Jewish genocide, the Tutsi genocide in Rwanda in 1994 and the massacres of Srebrenica (in Bosnia and Herzegovina) in 1995.

Genocide is defined by three different elements:

·       the materiel element defines the five following categories of crime: murders, physical and mental harm, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent births within the group,  forcibly transferring children of the group to another group;

·       the intentional element requires that the crime was committed with the specific intent to destroy the protected group, in whole or in part. That implies that the victims are targeted because they belong to that group. However, the intend does not need to be to destroy the totality of the group;

·       eventually, the notion of « group », which corresponds to national, ethnic, racial or religious groups. The first definitions of the crime also included other categories of groups, such as the political or cultural groups. But they were neither selected by the 1948 Convention, nor in the definition stated by the International Criminal Court. [11]

It is a specific fraud that differentiates genocide from crime against humanity [12], namely “the intent to destroy a targeted group in whole or in part”, and discriminatory criteria.

The non-applicability of those crimes against humanity was stated in the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity of the 26th of November 1968. Conventional in nature, this provision is only binding for the states that ratified the Convention.

 

2) The regional level

The international criminal justice suffers from a lack of legitimacy. In that context the regional response to crimes against humanity and against genocide is particularly well suited. Indeed, an advantage of regionalization is to silence the critics of neo colonialism, from which the International Criminal Court suffers. In this study, we are in no position to detail the totality of the existing regional provisions, which is why we will illustrate with an example.     

About that topic, the African example is striking.

The African union [13] played a strong role in the fight against the impunity of crimes against humanity, as the Habré affair clearly showed.

Article 4 (h) of its constituting act defines the right of the African Union “to intervene in a member State in respect of grave circumstances, namely war, genocide and crimes against humanity.” Article 4 (j) further confers “on member States the right to request intervention from the Union in order to restore peace and security.”

More recently, on the 22nd of April 2015, the National Transitional Council (CNT) of the Central African Republic adopted, after a long negotiation process, a new law creating a special Criminal Court in its national legal system, whereas the International Criminal Court had already opened a judicial inquiry into the same facts (namely crimes against humanity). [14]

3) The national level

A statement: different approaches from country to country

As Mireille-Delmas Marty rightly points out, crime against humanity (originally defined by international law) urged the States to include that criminalization into their national legislation. [15]

The comparison of the different national legislations highlights the common basis of the crime’s definition: an act committed within the scope of a generalized or systematic attack launched upon a civilian population. It is the case for most of the states (namely France, Spain and Portugal for Europe). But other states also demand the proof that the author of the crime knows about the attack (Canada, Australia, South Africa, Malta, Bosnia, and Costa Rica). However, most of the states do not demand “the knowledge of the attack” (generalized of systematic), which is stated in the definition of the article 7 of the Status of the International Criminal Court. [16]

Those brief explanations show how eclectic the national definitions of the criminalization are, according to the history, the legal traditions and the political constraints of each country. That heterogeneity lies in the elements constituting an offence and in the jurisdiction of domestic courts and the rules of applicable law. [17] 

Focus on France

Even though crime against humanity immediately had a legal existence at the international level, it was not until 1994 that it was included in the French criminal code in articles 212-1 [18] to 212-3.

As for genocide, it is defined in article 211-1 of the criminal code.

What is more, the Court of First Instance of Paris created, in January 2012, a specialized entity to fight against crimes against humanity, war offences and war crimes.

Its leading role enabled the holding of the first trial of genocide in France, before the Paris assize court from February 4th to March 14th 2014, whereas the complaint had been lodged in 1995. The trial of Pascal Simbikangwa, a person close to the Rwandan President who led the country when the genocide occurred, was the first trial to be based on extraterritorial jurisdiction that took place in the presence of the defendant. Pascal Simbikangwa was arrested in 2008 in Mayotte, investigated in 2009, and was transferred to the Assize Court after a long investigation for complicity in genocide and crimes against humanity in Rwanda. Defense counsels Alexandra Bourgeot and Fabrice Epstein argued that the case did not meet the requirements of a fair trial, and that the media pressure was detrimental to the defendant. [19] In its report on that first genocide trial, the International Federation for Human Rights noted the need for: the knowledge of the crime contextualization by the jury, a specialization of the judges, and cooperation between the States and the international institutions involved. [20]

Thus, through the exercise of extraterritorial jurisdiction, Criminal justice is used to fight against the impunity of those crimes against humanity and genocides. We shall now give more details on the repressive responses (judicial and quasi-judicial) as well as on the preventive responses.  

II) THE ANSWERS TO GENICIDE AND CRIME AGAINST HUMANITY

In his book Crimes that can neither be punished nor forgiven, Antoine Garapon too underlines how difficult it is to find an adequate answer to those crimes against humanity and to genocide. And yet, justice should be done.

The response given to crimes against humanity and genocide is to be found in two contradictory and yet complementary imperatives: the fight against impunity by criminal justice (1), and the need of reconciliation (2). But at the threshold of the 21st century, as we still witness those crimes throughout the world, responses after the events are no longer enough. Prevention should also be developed through education to human rights (3). 

 

1)    Criminal justice

To confront the horrors of the Nazi regime, the international community wanted to respond with a strong symbol. The Nuremberg military Tribunal and the International Military Tribunal for the Far East [21] paved the way towards international criminal justice. The creation of other ad hoc tribunals followed: the International Criminal Court for the former Yugoslavia (1993) and the International Criminal Tribunal for Rwanda (1994).

For genocides that were acknowledged by the UN, criminal justice was the privileged response, except for the Armenian genocide, against which no criminal proceedings were brought.

Regarding the different crimes against humanity, international criminal justice then turned into internationalized national tribunals. That happened to the Special Court for Sierra Leone (2002), the Iraqi Special Tribunal (2004), the Khmer Rouge Special Tribunal in Cambodia (2004), the Special Tribunal for Lebanon (2007), and lately the African Extraordinary Chambers in Senegal (2013).

However, the international criminal justice requires a strong political will and considerable financial resources, which is why the concept of universal competence became the way to fight against the impunity of mass crimes with the Pinochet case (cf. the article THE GL, SUPER LAWYER?)

Several times, criminal trials were organized within the very countries in which the crimes were committed. And in Rwanda for instance (cf. the article about the gacaca courts in LE GL EXPLORE), justice started to operate at different levels (national and international).

However, criminal justice does not always enable to bring out the truth, nor national reconstruction.

The enforcement of civil rights court proceedings to widespread crimes such as crime against humanity is not safe. The first risk is not to rise to the occasion; the second one is to undergo criticism of cultural domination, as we consider that the occidental concept of a trial is universal. And according to Antoine Garapon, that is the reason why we should not consider the form of a fair trial as universal, but its function: “the one that enables reconciliation, which is neither peace, nor criminal justice”. [22]

That is how some countries chose reconciliation and neglected the fight against impunity.

2) The Truth and Reconciliation commissions

The main alternative to criminal trial is the Truth and Reconciliation commission, which aims at finding a substitute to punishment and at enabling reconciliation.

They manifest themselves in different forms: para-political forms such as the Sabato Commission in Argentina, or nearly-legal forms such as in South Africa. They may simply state the facts and evaluate the number of victims, go public or remain confidential. And while some of them are implicated in legal proceedings (by making links possible between uncovering and charges), others complement criminal justice (as they did in Sierra Leone), or even act as a substitute to criminal justice by blocking proceedings against witnesses. [23]

The South African Truth and Reconciliation Commission is extremely interesting: it made it possible for a new kind of justice to emerge, which is both personal and collective, legal and historical, and which looks equally at the past and at the future. To do so, it had to find its way through the principle of strict criminal legality and political negotiation. It distinguishes itself from the others (South American Commissions): it has the power to grant amnesty in return for thorough and accurate confession. Antoine Garapon describes it as “the most achieved form of reconstructive justice, and no longer a substitute for justice”. However, it is not without critics: religious influence, no questioning of the versions offered by those asking for amnesty, lack of financial compensation for the victim’s families, and abdication in the face of politics. [24]   

 

3) A preventive response: education to human rights?

We considered judicial and quasi-judicial responses to crimes against humanity and genocides.

But those responses given after the events do not truly address the root of evil. And current events keep reminding us how history is prone to amnesia. The real challenge is to write tomorrow’s history, and to prevent fresh crimes from occurring.

It is crucial to favor education to human rights, to develop greater openness to other cultures, and to fight against intolerance.

In Europe, le 27th of January is a European day dedicated to the memory of genocides and to the prevention of crimes against humanity in schools. [25] That initiative was decided by European Education ministers in 2000. [26]

Those initiatives must be encouraged and generalized.

It is essential to respond rightly to those crimes against humanity and to genocides. The way in which we approach things is what will remain tomorrow as part of History. Consequently, we must bear our entire responsibility when addressing them.

Obviously, media, politics and justice greatly impact the cause as they deal with the different genocides and crimes against humanity. We should not forget that the entire humanity is a victim, regardless of the ethny, the religion, the race, or any other identity of the group that was stigmatized. And that is how we should talk about it, it is our duty! 

Our journey through the history of crimes against humanity and genocides highlights the fact that belonging to the human race is not what prevails in human relationships. Indeed, hating the “other person” is focusing on a single identity, in which he or she is trapped: that is what Maalouf calls “killing identities”. Belonging to humanity becomes secondary, which enables to isolate a limited group to its killing identity.

Unable to remember, History repeats itself, victims and torturers borrowing each other’s masks. Only the times and the regions change. The current events that occur throughout the world and the situation in France (raise of the communitarian conflict) can only keep that into our minds.

True, we may not find the way to punish or forgive those crimes against humanity and genocides in a satisfactory and absolute way. However, we still have the power to be conscious of how absurd they are, and to use education so that crimes against humanity and genocides never happen again!

 

[1] Hannah Arendt, Condition de l’homme moderne, Calmann-Lévy, 1961
[2] Hannah Arendt, Eichmann à Jérusalem, Rapport sur la banalité du mal, Gallimard, 1963
[3] Article 8 du Statut de Rome du 17 juillet 1998 portant création de la Cour pénale Internationale
[4] TPIY, Le procureur C/ Dusko tadic, IT-94-1, Jugement, 7 mai 1997, §622 : « D’autres codifications du droit international ont également confirmé le caractère de droit coutumier de l’interdiction des crimes contre l’humanité ainsi que 2 de ses manifestations les plus infâmes : génocide et apartheid ».
[5] Article 7 du Statut de Rome du 17 juillet 1998 portant création de la Cour pénale Internationale
[6] Article 6 du Statut de Rome du 17 juillet 1998 portant création de la Cour pénale Internationale
[7] M. Delmas-Marty, I. Fouchard, Emanuela Fronza, Laurent Neyret, Le crime contre l’humanité, Ed. Que sais-je, 2013, p. 11
[8] Cf. l’analyse de William A. Schabas, Genocide in international law : The crime of crimes
[9] M. Delmas-Marty, I. Fouchard, Emanuela Fronza, Laurent Neyret, Le crime contre l’humanité, Ed. Que sais-je, 2013, p. 10
[10] M. Delmas-Marty, I. Fouchard, Emanuela Fronza, Laurent Neyret, Le crime contre l’humanité, Ed. Que sais-je, 2013, p. 8
[11] En application du décret-loi n°1 du 15 juillet 1979 pris par le Gouvernement de la République révolutionnaire du Cambodge, un procès contre Pol Pot et Ieng Sary, pour crime de génocide, a été engagé devant le Tribunal populaire révolutionnaire du Cambodge. La notion de génocide prise en compte dans le procès inclut les motifs politiques et s’étend à toute la population du Cambodge.
[12] M. Delmas-Marty, I. Fouchard, Emanuela Fronza, Laurent Neyret, Le crime contre l’humanité, Ed. Que sais-je, 2013, p. 9
[13] L’union africaine est une organisation d’Etats africains qui a été créée en 2002 en application de la Déclaration de Syrte du 9 septembre 1999. Les principaux objectifs étaient notamment d’éliminer les derniers vestiges du colonialisme et de l’apartheid, de renforcer l’unité et la solidarité des Etats africains, de coordonner et d'intensifier la coopération en faveur du développement de défendre la souveraineté et l’intégrité territoriale des Etats membres, et de favoriser la coopération internationale, dans le cadre des Nations Unies. Cf.  HYPERLINK "http://www.au.int/fr/about/nutshell" http://www.au.int/fr/about/nutshell
[14] « La Cour pénale spéciale centrafricaine ou le défi d’un mécanisme hybride en Centrafrique », Elise Le Gall, 4 mai 2015,   HYPERLINK "https://chroniquesinternationalescolla.wordpress.com/2015/05/04/la-cour-penale-speciale-centrafricaine-ou-le-defi-dun-mecanisme-hybride/" https://chroniquesinternationalescolla.wordpress.com/2015/05/04/la-cour-penale-speciale-centrafricaine-ou-le-defi-dun-mecanisme-hybride/
[15] M. Delmas-Marty, I. Fouchard, Emanuela Fronza, Laurent Neyret, Le crime contre l’humanité, Ed. Que sais-je, 2013, p. 46-47
[16] Ibid., p. 47
[17] Ibid., p.78
[18] L’article 212-1 a été modifié par la loi n°2013-711 du 5 août 2013 portant adaptation à la convention internationale pour la protection de toutes les personnes contre les disparitions forcées, adoptée à New York le 20 décembre 2006.
[19] « Retour sur la conférence DUOJPI sur le premier procès pour génocide en France »:  HYPERLINK "https://afpcu.wordpress.com/2015/05/16/retour-conference-duojpi-sur-le-premier-proces-pour-genocide-en-france/" https://afpcu.wordpress.com/2015/05/16/retour-conference-duojpi-sur-le-premier-proces-pour-genocide-en-france/
[20] « Procès de Pascal Simbikangwa: Retour sur un procès emblématique »:  HYPERLINK "https://www.fidh.org/IMG/pdf/rwanda_proces_simbikangwa.pdf" https://www.fidh.org/IMG/pdf/rwanda_proces_simbikangwa.pdf
[21] Le Tribunal militaire pour l’Extrême-Orient est né le 2 septembre 1945 et formalisa ma volonté des forces alliés telle qu’exprimée dans la Déclaration de Postdam du 26 juillet 1945. Il était chargé de poursuivre les responsables majeurs de crimes contre la paix, crimes de guerre et crimes contre l’humanité commis depuis le début des invasions japonaises, le 1er janvier 1928.
[22] Antoine Garapon, Des crimes qu’on ne peut ni punir, ni pardonner, pour une justice internationale, Ed. Odile Jacob, 2002, p. 271 et s.
[23] Antoine Garapon, Des crimes qu’on ne peut ni punir, ni pardonner, pour une justice internationale, Ed. Odile Jacob, 2002, p. 282-283
[24] Antoine Garapon, Des crimes qu’on ne peut ni punir, ni pardonner, pour une justice internationale, Ed. Odile Jacob, 2002, p. 285
[25] HYPERLINK "http://eduscol.education.fr/cid45608/memoire-des-genocides-et-prevention-des-crimes-contre-l-humanite.html" http://eduscol.education.fr/cid45608/memoire-des-genocides-et-prevention-des-crimes-contre-l-humanite.html
[26] HYPERLINK "http://www.coe.int/t/dg4/education/historyteaching/Source/Results/AdoptedTexts/KrakowDeclaration_fr.pdf" http://www.coe.int/t/dg4/education/historyteaching/Source/Results/AdoptedTexts/KrakowDeclaration_fr.pdf