AJIL Symposium: The Humaneness-side of Humanity – CAH’s Modern Meaning

[Elies van Sliedregt is the Dean and Professor of Criminal Law at VU University Amsterdam]

In this article Leila Sadat convincingly makes clear that CAH are central to international prosecutions. She points to the importance of CAH at the ICC with its potential to intervene in peace-time. Sadat underscores the importance of CAH as gap-filler; it provides for jurisdiction in the absence of an armed conflict and addresses discriminatory campaigns that do not qualify as genocide. The independent existence of CAH has become clearer over the years. CAH prosecutions capture key social harms and particular patterns of victimization, such as ethnic cleansing or sexual slavery. While CAH have gained importance as an independent category of crimes and according to Sadat “have emerged from the shadow of Nuremberg” (p. 336), we cannot ignore that CAH’s raison d’être is that of solving a jurisdictional problem. This goes back to the period before Nuremberg.

For centuries international law has recognized the enemy of all mankind, the hostis humani generis. Pirates, who had no allegiance to a state and who committed crimes beyond the jurisdictional control of States, were regarded as the enemy of all mankind. With the interests of ‘mankind’ affected, all nations had a right to fill a jurisdictional void and exercise (universal) jurisdiction. Similarly, the notion of ‘humanity’ justifies intervention by way of criminal law enforcement. When States fail to protect, or are engaged themselves in harm to the security and subsistence of their subjects, they forfeit their privileges as a sovereign entity; other States or an international court may step in. While both ‘mankind’ (for piracy) and ‘humanity’ (for CAH) provide a justification for intervening in domestic affairs, the underlying reasoning and interests differ. Piracy more directly harms the interests of a multitude of States; self-interest prompts the exercise of jurisdiction. CAH, on the other hand, can be confined to one country.  They affect the interests of other States in that they shock “the conscious of mankind” (UK prosecutor Shawcross in his opening statement in Nuremberg). They are so egregious that it is in the international community’s interest that they are punished. This is what Arendt meant when she referred to the Holocaust as “crimes against mankind committed on the body of the Jewish people”.

Viewing CAH through the prism of jurisdictional justification makes clear that sovereignty is a concern with CAH. For the international community to intervene, CAH must qualify as an international harm. They must shock the conscience of mankind. While this leaves pertinent questions unanswered, (is there a world community? with a common conscience?) it is clear that CAH must reach a level that distinguishes them from domestic crimes. The contextual elements of CAH, that crimes are committed as part of a widespread or systematic attack pursuant to a State or organizational policy, must ensure that this level is met.

Judge Kaul is sensitive to sovereignty concerns. In his dissenting opinion to the Article 15 Kenya Decision he opines that the policy element is a decisive, characteristic and indispensable feature of crimes against humanity; it distinguishes ordinary crimes from international crimes and should therefore be interpreted narrowly. Sadat criticizes Judge Kaul’s view for denying CAH’s modern meaning, as a residual category of crimes that protect human values, values the ICC was established to protect. ‘Organizational’ in Article 7(2)(a) should include non-State(-like) organizations.

What to think of this disagreement? 

Judge Kaul’s dissent is premised on CAH’s jurisdictional origins. His concern for CAH not reaching a certain level (for emanating from “amorphous tribal groups”, para 46) is from that point of view perfectly valid. However, two reasons make me disagree with him, First of all, I am not convinced that only through State-like organizational violence CAH will reach the threshold that justifies criminal law enforcement by the ICC. Secondly, his insistence on the jurisdictional threshold is too one-sided; he loses sight of the humaneness-meaning of CAH.

According to Christopher McLeod (here) ‘humanity’ in CAH has a dual meaning. It can be regarded as referring to mankind as a whole, or as referring to human dignity, humanity as humaneness. The latter meaning has gained support over the years and has ‘modernized’ the meaning of CAH. As Van Beers, Corrias, and Werner make clear in their upcoming book on ‘The concept of humanity across International Law and Biolaw’  (here), CAH are increasingly regarded as protecting human dignity. The “conscious of mankind” is shocked by serious intrusions upon human dignity. Adding apartheid and sexual crimes to the list of CAH is a concrete result of that development.

Sadat and the majority in the Kenya case, value the humaneness-meaning of CAH (para 90). At the same time they insist on distinguishing between human rights violations and CAH. Judge Kaul, by adopting a strict interpretation of the policy-element with the view to reaching the jurisdictional threshold (paras 59, 60, 63), adheres to the mankind-meaning of CAH. In my view, modern international law seeks to preserve both and the majority view in the Kenya-case and that of Sadat should therefore be preferred. With Sadat I accept that Judge Kaul’s view of CAH is outdated. Not so much for the insistence on sovereignty-concerns – these concerns are still valid today – but for insufficiently addressing the humaneness-side of CAH.

At the end of the day, the debate on the policy-element might be theoretical. Marjolein Cupido, in a paper favourably pushed by Kevin Heller on this blog (here) makes clear that while the ICC and the ICTY differ in their characterization of the policy element, as either an element of crimes against humanity (ICC) or an evidentiary circumstance (ICTY), the two institutions apply it in a very similar manner. Analysis of ICTY case-law shows that the policy-element is the principal indicator for substantiating the systematic nature of the attack. As Cupido points out: “The critical attitude of the ICTY versus policy as an element of crime has not prevented the Tribunal from placing the policy factor at the core of its evaluation of the systematic attack-requirement” (p. 289).

Cupido’s paper undermines Kaul’s reluctance to rely on ICTY case law with regard to the policy-element. Also for ‘fragmentation-reasons’ this part of Judge Kaul’s dissent warrants critique. As I have argued elsewhere, the ICC’s tendency of Alleingang by creating a self-contained regime through a strict interpretation of Article 21 of its Statute (on sources) is undesirable. With Sadat I wholeheartedly agree: “the ICC cannot be viewed in isolation from the work of the ad hoc tribunals” (p. 375).