The term crimes against humanity has come to mean anything atrocious

committed on a large scale. This is not, however, the original meaning nor
the technical one. The term originated in the 1907 Hague Convention
preamble, which codified the customary law of armed conflict. This
codification was based on existing State practices that derived from those
values and principles deemed to constitute the laws of humanity, as
reflected throughout history in different cultures.

After World War I, the Allies, in connection with the Treaty of Versailles,
established in 1919 a commission to investigate war crimes that relied on the
1907 Hague Convention as the applicable law. In addition to war crimes
committed by the Germans, the commission also found that Turkish officials
committed crimes against the laws of humanity for killing Armenian
nationals and residents during the period of the war. The United States and
Japan strongly opposed the criminalization of such conduct on the grounds
that crimes against the laws of humanity were violations of moral and not
positive law.
In 1945, the United States and other Allies developed the Agreement for the
Prosecution and Punishment of the Major War Criminals of the European Axis
and Charter of the International Military Tribunal (IMT), sitting at Nuremberg,
which contained the following definition of crimes against humanity in Article
6(c):
Crimes against humanity: murder, extermination, enslavement, deportation,
and other inhumane acts committed against civilian populations, 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
perpetrated.
The Nuremberg Charter represents the first time that crimes against humanity
were established in positive international law. The International Military
Tribunal for the Far East, at Tokyo, followed the Nuremberg Charter, as did
Control Council Law No. 10 of Germany, under which the Allies prosecuted
Germans in their respective zones of occupation. Curiously, however, there has
been no specialized international convention since then on crimes against
humanity. Still, that category of crimes has been included in the statutes of the
International Criminal Tribunal for the former Yugoslavia (ICTY) and the
International Criminal Tribunal for Rwanda (ICTR), as well as in the statute of
the International Criminal Court (ICC). In fact, there are eleven international
texts defining crimes against humanity, but they all differ slightly as to their
definition of that crime and its legal elements. However, what all of these
definitions have in common is: (1) they refer to specific acts of violence against
persons irrespective of whether the person is a national or non-national and
irrespective of whether these acts are committed in time of war or time of
peace, and (2) these acts must be the product of persecution against an
identifiable group of persons irrespective of the make-up of that group or the
purpose of the persecution. Such a policy can also be manifested by the
widespread or systematic conduct of the perpetrators, which results in the
commission of the specific crimes contained in the definition.
The list of the specific crimes contained within the meaning of crimes against
humanity has been expanded since Article 6(c) of the IMT to include, in the
ICTY and the ICTR, rape and torture. The statute of the ICC also expands the list
of specific acts. In particular, the ICC statute adds the crimes of enforced
disappearance of persons and apartheid. Further, the ICC statute contains
clarifying language with respect to the specific crimes of extermination,
enslave- ment, deportation or forcible transfer of population, torture, and
forced pregnancy.
To some extent, crimes against humanity overlap with genocide and war
crimes. But crimes against humanity are distinguishable from genocide in that
they do not require an intent to destroy in whole or in part, as cited in the
1948 Genocide Convention, but only target a given group and carry out a policy
of widespread or systematic violations. Crimes against humanity are also
distinguishable from war crimes in that they not only apply in the context of
warthey apply in times of war and peace.
Crimes against humanity have existed in customary international law for over
half a century and are also evidenced in prosecutions before some national
courts. The most notable of these trials include those of Paul Touvier, Klaus
Barbie, and Maurice Papon in France, and Imre Finta in Canada. But crimes
against humanity are also deemed to be part of jus cogensthe highest
standing in international legal norms. Thus, they constitute a non-derogable
rule of international law. The implication of this standing is that they are
subject to universal jurisdiction, meaning that all States can exercise their
jurisdiction in prosecuting a perpetrator irrespective of where the crime was
committed. It also means that all States have the duty to prosecute or
extradite, that no person charged with that crime can claim the political
offense exception to extradition, and that States have the duty to assist each
other in securing evidence needed to prosecute. But of greater importance is
the fact that no perpetrator can claim the defense of obedience to superior
orders and that no statute of limitation contained in the laws of any State can
apply. Lastly, no one is immune from prosecution for such crimes, even a head
of State.
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