The concept of crime against humanity is an old concept, but it appears for the first time as a properly legal concept in 1945 in the statute of the international military Tribunal of Nuremberg (art.6, c). This appearance is the consequence of the will to judge the persons in charge of the exceptional atrocities made during the Second world war like the Shoah. This principle will be also retained a few months to later assign top-ranking executives of the mode showa in front of the Tribunal of Tokyo. The concept is thus strongly anchored in a particular historical context.
It however belongs today to the fundamental concepts of the right. Crystallizing of many passions, the definition of this qualification was done only slowly during the forty last years.
Today, the crime against humanity became a criminal charge much broader and better definite thanks to article 7 of the Statut of Rome of the International penal court, but it remains prone to controversies.
The slow emergence of the definition of the crime against humanity and its inscription in the right
An old principle which is essential juridically in 1945
The active concept of crimes against the laws of humanity is old, since as of the end of the nineteenth century, the Declaration for the purpose of prohibiting the use of certain projectiles in time of war made with Saint Petersbourg on December 11th 1868 poses the principle which the use of weapons which “would unnecessarily worsen the sufferings of the men put out of combat or would make their death inevitable” would be “consequently contrary with the laws of humanity”. The Convention of $the Hague in 1907 relating to the laws and habits of war notes that “the populations and the belligerents are under the safeguard and the empire of the law of nations, such as they result from the laws of humanity”. These solemn proclamations did not have any effect and the Traité of Sevres in 1920 making obligation with the Turkey to deliver the authors of the genocide of the Armenians never entered into force.
The crime against humanity is defined by the article 6c statute of the international military Tribunal of Nuremberg and is applied for the first time at the time of the Procès of Nuremberg in 1945. It thus defines the crime against humanity: “assassination, extermination, reduction in slavery, deportation and any other inhuman act made against any civil population, either persecutions for racial or religious reasons”.
Evolution of the concept of crime against humanity and its inscription in the international law and the national rights after the war
International law
The crime against humanity, in spite of its modest beginnings (it explicitly envisaged to apply only to the acts made by the powers of the Axe), little by little was registered in the international legislation and was seen in the passing its specified definition. A resolution of the the United Nations is thus voted in 1948 “confirming the principles of the International law recognized by the statute of the court of Nuremberg and by the stop of this court”.The definition is widened: in 1973, International convention on elimination and the repression of the crime of apartheid qualifies the Apartheid crime against humanity, and in 1992 a resolution qualifies removals of anybody of “crimes concerned with the crime against humanity”.
In addition to the definition, it is the legal status of the crime against the humanity which is also specified: in 1968, Convention on the imprescriptibility of the war crimes and the crimes against humanity declares the imprescriptibility of the latter.
One second stage is reached at the time of the Guerres of Yugoslavia: a resolution of UNO creates in 1993 a International penal court for ex-Yugoslavia (TPIY - resolution 827) with $the Hague which states the qualification of crime against the humanity defined by the statute of the court of Nuremberg. The same step is confirmed on November 8th, 1994 during the creation of the International penal court for Rwanda (TPIR - Resolution 955).
In France
In France, at the end of the war, the qualification of crime against humanity will not be used for the repression of the crimes committed as well by the Germans as by the French. Repression will be carried out by jurisdictions of exception but for crimes of common right. Time passing and the will that the criminals cannot profit from the regulation affirming itself, the law of December 26th, 1964 registers the crime against humanity in the French legal order. It is then a single article of the Penal code which returns to the charter of the international court of 1945 and with the resolution of the United Nations of February 13rd, 1946. He declares these crimes “imprescriptible by their nature”, i.e. they can be judged without any time in time. It is about the only imprescriptible crime of the French right.The open procedures give place to a determining Jurisprudence in the definition of the crime against humanity. For example, on December 20th 1985, a stop of the Court of appeal widens the concept of victim of such crimes to the political victims of discriminations, in addition to the victims of racial discriminations or nun, so that those are judged which persecuted the Jews as well as the resistant ones (in particular Klaus Barbie in 1987 and Paul Touvier in 1992). The same year, the Court of appeal refines the definition again by affirming that these crimes owe to the being “in the name of a State practitioner an ideological policy of hegemony”. Finally, the members of Parliament vote in 1994 a law precisely defining the crime against humanity (articles, and S. of the Penal code) - and fascinating of account the Jurisprudence -. In 1995 and on May 22nd, 1996, French laws extend the scope of the French courts to the crimes concerned with the TPIY and TPIR.
In 2001, France recognizes officially that the Traite blacks and slavery constituted crimes against humanity ().
The result of the definition of the crime against humanity: article 7 of the Statute of Rome of the International penal court in 1998
A definition complete and detailed by article 7 of the Statute of Rome
The article 7définit eleven deeds of partnership of crimes against humanity, when they are made “within the framework of a generalized or systematic attack directed against any civil population and in knowledge of the attack”:
- the murder;
- extermination;
- the reduction in slavery;
- deportation or the forced transfer of population;
- the imprisonment or another form of deprivation engraves physical freedom in violation of the fundamental provisions of the international law;
- torture;
- the rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilization or any other form of comparable sexual violence of gravity;
- the persecution of any group or any identifiable community for reasons of a political nature, racial, national, ethnic, cultural, religious or sexist, or according to other criteria universally recognized like inadmissible in international law, correlation with any act aimed in this paragraph or any concerning crime the competence of the Court;
- the forced disappearance of people;
- the crime of Apartheid;
- of other inhuman acts of nature similar intentionally causing great sufferings or gravely hurts to the physical integrity or physical or mental health.
In the light of article 7 and texts which precede it, three great principles of international law can be released which govern the crime against humanity: it can be made in any time (in time of war external or interior as in times of peace); it is imprescriptible; nobody can escape repression, of the Heads of the State to the executants (article 27 of the Statute
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