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RECETAS PARA TORPES
Crimes against humanity is one of the four international crimes that are often cited as core crimes. Much like genocide, there had been developments before the world war II, but the heinous crimes done by the Nazi regime during the war and the subsequent Nuremberg trials were really a turning point in this regard.127 During the war the Allied powers noticed that the atrocities done by the Nazi regime were not prohibited in customary international law.128 In the Nuremberg Charter article 6(c), crimes against humanity were described as
124 Schabas 2009, p. 370. Schabas has stated this in relation to the Arrest Warrant case. He notes that even
though the official capacity may be irrelevant before international courts this may not be the case before national courts “that are not entitled to exercise jurisdiction over foreign heads of State”. It must be noted that the subject of the Arrest Warrant case was immunity of incumbent head of state, not former head of state, when the case may be different. Also, this statement is a bit vague, since it does not differentiate be- tween jurisdiction and immunity strictly enough. When interpreting the phrasing of the Genocide Conven- tion, it very much suggests that it has relevance regarding head of state immunity without making any dif- ference between types of courts, since, as shown, genocide is subject to universal jurisdiction (the article 6 is also understood this way). See also the Arrest Warrant case 2002, para 58 - 61.
125 This has been stated in the Pinochet III 1999 judgment as well. Lord Phillips of Worth Matravers said that
the article 3 in the Genocide Convention is an express statement of removal of immunity ratione materiae.
126 For example, in over 20 years that the ICC has been in operation, it has convicted or acquitted only 7
people. See ICC Web Sites - Cases, visited on November 7, 2019.
127 Before the Nuremberg trials the term “crimes against humanity” was used for the first time in connec-
tion with the mass killings of the Armenians in the Ottoman Empire, in 1915. See Cassese 2013, p. 84.
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“murder, extermination, enslavement, deportation, and other inhumane acts committed
against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpe- trated. Leaders, organisers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are re- sponsible for all acts performed by any persons in execution of such plan.”
There is no existing convention covering all the crimes against humanity, which could be applied in national courts, as there is the Genocide Convention. However, it must be noted, that like genocide, also crimes against humanity are part of customary international law.129 Currently, the ILC is preparing draft articles on crimes against humanity for a future con- vention on the prevention and punishment of crimes against humanity and the work is still in progress.130 The draft articles are focused especially on the obligation of prevention.131 In May 2019, the Drafting Committee introduced the draft articles as they currently exist. These articles must be taken as an important expression of an opinion of the current state of crimes against humanity, even though they are not yet in force. The formation of the articles has been a long process and has included many rounds of comments by govern- ments and international organizations and reports of the Special Rapporteur.132 This must be interpreted as a certain level of consensus on the subject. The draft articles contain sim- ilar provision as the Genocide Convention regarding the irrelevance of official capacity of the perpetrator. The draft article 6 is stating the view suggested by the Special Rapporteur “on the irrelevance of a person’s official position for purposes of substantive criminal re-
sponsibility in the context of allegations of the commission of crimes against humanity”.133 The draft article 6 states that “Each State shall take the necessary measures to ensure that,
under its criminal law, the fact that an offence referred to in this draft article was committed by a person holding an official position is not a ground for excluding criminal
129 Heller 2017, p. 24. See also Cassese 2013, p. 90 - 92. However, there are several multilateral conventions
covering at least part of crimes against humanity.
130 See UN International Law Commission - Crimes Against Humanity, visited on October 15, 2019. See also,
Frulli 2018 and Schabas 2018.
131 Schabas 2018, p. 705. The obligation of prevention is also in the centre of the Genocide Convention. 132 See UN International Law Commission - Crimes Against Humanity, visited on October 9, 2019. 133 A/CN.4/SR.3377, August 18, 2017, p. 3 - 4.
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responsibility.”.134 More importantly, however, the draft article 7 states on the establish-
ment of national jurisdiction135 and the article 10 includes also the obligation to prosecute or extradite, aut dedere aut judicare.136 Together these articles would allow a prosecution of a foreign official, who have committed alleged crimes against humanity, when the official is present in the territory of a state trying to prosecute him or her. This is a powerful state- ment against according immunity to heads of state as well.
Prohibition of crimes against humanity is considered to be part of jus cogens norms, the highest norms in international legal order.137 Like genocide, also crimes against humanity are subject to universal jurisdiction.138 This means that all states have an interest to prose- cute perpetrators committing crimes against humanity and they have the possibility to do so, even if there is no nexus between the crime or the perpetrator with the state asserting jurisdiction.