Finalidad de la Ley Orgánica de Defensa del Consumidor

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2.4.4 Judgments of Tribunals and Scholarly Opinions

Judicial decisions are only persuasive authorities. The doctrine of precedent as it is known in the common law tradition does not hold sway in the international legal system.²⁶⁶ The decisions of international tribunals and the opinions of learned scholars are law-determining agents, and not formal sources of law. Judicial decisions are subsidiary means of determination of rules of law.²⁶⁷ International tribunals are not even bound by their own precedents. Article 21 (2) of the Statute of the ICC provides that the court may apply principles and rules of law as interpreted in its previous decisions. Nevertheless, Cassese has advised that judicial decisions in ICL cannot be cursorily dismissed as they may prove to be of crucial importance not only for ascertaining whether a customary rule has evolved, but also as a means to establish the most appropriate interpretation to be placed on a treaty rule.²⁶⁸ For instance, the decisions of the IMT Nuremberg set down significant principles on the crime of aggression and crimes against humanity.

Although the views of legal writers may help in espousing the law; they lack normative force.

61 CHAPTER THREE

THE SUBSTANTIVE LAW OF CRIMES AGAINST HUMANITY 3.1 Introduction

Following our discussion of the status and sources of law of crimes against humanity, this part of the research will now focus on the substantive content of the crimes. The incidence of crimes against humanity is as old as the human race, although analyses of the crimes in the legal literature began only in the post-World War Years. ²⁶⁹ The brutalities of World War II influenced the development of crimes against humanity. There is an early record of a trial for crimes against humanity. In Breisach in the year 1474, Sir Peter of Hagenbach was tried and convicted for rudimentary forms of crimes against humanity, involving murder and rape.²⁷⁰ As a species of mass atrocity crimes, crimes against humanity defy the human rights of a civilian population.

Driven extensively by the human rights crusade, the essence of the crime is the protection of the civilian population from violence. Cassese reflected this idea when he stated that to a large extent many concepts underlying this category of crimes derive from, or overlap with, those of human rights law, the rights to life, not to be tortured, to liberty and security of the person.²⁷¹

For a very long time, crimes against humanity have been recognized as international crimes on account of the threats they pose to humanity and the fundamental values of mankind by the actions of sovereign states, against civilian populations, particularly, their own subjects.²⁷² These egregious crimes are not isolated incidents, but involve large scale and systematic actions,

269 J Graven, ‗Les Crimes Contre I‘Humanite‘ (1950) 76 Hague Recueil, 433.

270 E Greppi (1999), ‘The Evolution of Individual Criminal Responsibility under International Law‘ (1999) No. 835. International Review of the Red Cross.

271 A Cassese, International Criminal Law (2^nd edn, Oxford: Oxford University Press, 2008) p. 99.

272 Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute on the

Authorization of An Investigation into the Situation in the Republic of Kenya, ICC-01/09, 31 March 2010, Dissenting Opinion of Judge Hans-Peter Kaul, para. 59.

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often cloaked with official authority, that shock the conscience of humankind.²⁷³ Their widespread or systematic character implicates or awakens the conscience of the international community as a whole. Crimes against humanity are particularly odious offences in that they constitute a serious attack on human dignity or a grave humiliation or degradation of one or more persons.²⁷⁴ By Article 7 of the Statute of the ICC, ‗crime against humanity‘ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: murder, extermination, enslavement, deportation, imprisonment, torture, rape or sexual slavery, persecution, enforced disappearance, apartheid, and other inhumane acts.²⁷⁵

A high threshold is required for proof of crimes against humanity. The ‗widespread or systematic‘ requirement differentiates crimes against humanity from random acts of violence or the more familiar penal groupings like homicide, sexual offences, assault or grievous bodily harm, and abduction, found in most internal criminal codes.²⁷⁶ Lone inhumane acts may amount to gross human rights violations or war crimes during armed conflicts. Crimes against humanity spin a weird trajectory to which an extreme degree of depravity attaches than to any ordinary crime. Unlike other ‗core international crimes‘ such as war crimes and genocide codified in the Geneva Conventions of 1949; and the Genocide Convention of 1948, crimes against humanity have not been codified in a convention, resulting in inconsistent formulations and reformulations

273 B A Garner, Black’s Law Dictionary (9^th edn, St Paul MN: Thomson Reuters, 2009) p.429.

274 Cassese, op cit, p. 98.

275 For the philosophical foundations of crimes against humanity, see C Macleod, ‗Towards

a Philosophical Account of Crimes Against Humanity‘ (2010) Vol. 21. No. 2. The European Journal of International Law, 282. ‗Different readings of ‗crimes against humanity‘ are routinely employed, without acknowledgement that there is very little agreement as to the substance, and indeed whether there can be said to a substance as distinct from the case law, of this crime. Disagreements of this sort should certainly be of interest to legal theorists and, while their relevance to legal practice may be contested, even to determine whether they are of practical import requires far more analytic attention to the concept than has been thus far given‘.

276 Prosecutor v Akayesu, (ICTR Trial Chamber), 2nd September 1998, para. 579.

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in the crime‘s historiography. It has remained a mutant crime defying legal precision.²⁷⁷ For example, enforced disappearance was included as a crime against humanity, by some international instruments, while others did not.²⁷⁸

A major distinction between crimes against humanity and genocide is that the former need not target a specific group, but a civilian population in general. They are also different from war crimes insofar as the criminal conduct may be directed not only towards the opposing belligerent‘s civilian population, but also against the perpetrator's own population. Furthermore, in contrast to war crimes against individuals, they must be widespread or demonstrate a systematic character.²⁷⁹ The law of crimes against humanity was initially created to fill certain gaps in the law of war crimes, but many parameters were left undefined, until the contours became more clearly shaped by the Statute of the ICC.