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From genocide to a new global human rights crime … crimes against humanity

What happens when widespread atrocities are committed on a general population that cannot be identified by race, religion, ethnicity or nationality?

The International Criminal Court shown in a December 15, 2022, image.
The International Criminal Court shown in a December 15, 2022, image.
Sem van der Wal/Pool via REUTERS

Genocide is defined in the United Nations Genocide Convention as “the deliberate intent to exterminate, in whole or in part, a national, ethnic, racial, or religious group.”

In 1948, the United Nations ratified this convention. When a convention is ratified by the UN, it creates legally binding international obligations for the member states that have ratified it.

The Genocide Convention has been ratified by 152 states around the world, including the U.S. This means that those states all have a legal obligation to prevent genocide and to punish perpetrators.

This convention is being used today to hold Vladimir Putin accountable at the International Court of Justice, the International Criminal Court, in domestic courts in Ukraine, and in courts throughout Europe for his deliberate intent to exterminate the Ukrainian people.

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The legal crime of genocide, through the Genocide Convention, has been used to convict and punish perpetrators of genocide in Cambodia, Rwanda and former Yugoslavia, where ethnic groups were targeted for mass atrocities and extermination.

But what happens when widespread atrocities are committed on a general population that cannot be identified by race, religion, ethnicity or nationality? Clearly, perpetrators can’t be prosecuted for genocide if the definition of genocide does not apply.

Yet in many places throughout the world, brutal violence is carried out against large numbers of innocent people, and justice must be sought to honor the victims, punish and deter further crimes and to implement the rule of law.

To that end, a new crime is being proposed for a convention at the United Nations: crimes against humanity. This is not “new” in international human rights law. What is new is the effort to create an internationally-agreed-upon definition that will be enforceable like the Genocide Convention.

International laws have established the background for creating a convention for crimes against humanity.

The International Criminal Court is the world’s first permanent court established to prosecute individuals for four core international human rights crimes: genocidecrimes against humanitywar crimes and the crime of aggression. The Rome Statute, the foundational document of the court, specifies definitions for these crimes that are used in proceedings throughout the world.

Crimes against humanity are described in the Rome Statute. They include 15 egregious offenses such as murder, rape, imprisonment, enforced disappearances, enslavement – particularly of women and children – sexual slavery, torture, apartheid, and deportation. These atrocities can occur during genocides as well, but the critical difference is that in crimes against humanity, the atrocities are carried out against a widespread and general population, not against an identifiable group.

Legal expert Leila Nadya Sadat, Washington University law professor, wrote in “Just Security” that “although the Rome Statute considerably advanced the work of defining crimes against humanity, it did not fill the legal gap in regard to their prevention and punishment.”

Why is a new convention necessary? Sadat explains it as “A new treaty on crimes against humanity could dispel the notion that only genocides deserve international sanction and attention. A new treaty can shift the conversation away from the crime of genocide – which is very difficult to prosecute and prove – to crimes against humanity.”

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By comparison, a convention on crimes against humanity could hopefully bring an end to impunity for widespread atrocities occurring in Myanmar, China, Syria, Ethiopia, and elsewhere – offenses that could be prosecuted as crimes against humanity.

For three years, however, China and Russia have thrown up obstacles at the UN to moving this process forward because of their complicity in most of today’s atrocities.

That changed in October 2022. A coalition of eight smaller UN nations plus the US and UK, led by Mexico, Gambia, and Bangladesh, maneuvered a successful end-run around Beijing and Moscow in the UN’s Sixth Committee, which considers legal questions.

Foreign Policy magazine reported that instead of following a ponderous procedure, Mexico and its allies immediately introduced the draft resolution into the committee, assigned coordinators from the outset, and set a timetable for debating the resolution before Moscow and Beijing could mount any opposition.

Russia and China’s UN envoys were outraged. They wrote to the Sixth Committee chairperson in protest in a letter co-signed by UN envoys from North Korea, Iran, Belarus, Syria, Venezuela, Cuba, Eritrea and Nicaragua.

Ellen J. Kennedy
Ellen J. Kennedy
But what Mexico did was aboveboard. The Sixth Committee chair replied, “The procedures and practices of the Sixth Committee are being followed and honored.”

Support for the crimes against humanity initiative exploded from there. Today there are 86 co-sponsoring member states, according to Richard Dicker, senior legal advisor for Advocacy at Human Rights Watch.

It will likely be several years before this crime becomes codified into law, but the most important steps have begun. Russia and China are losing this battle, and it is hopeful that they will lose impunity for their crimes as well.

Ellen J. Kennedy, Ph.D., is the executive director of World Without Genocide and adjunct professor of Law at Mitchell Hamline School of Law