An atrocity crime is a violation of international criminal law that falls under the historically three legally defined international crimes of genocide, war crimes, and crimes against humanity. Ethnic cleansing is widely regarded as a fourth mass atrocity crime by legal scholars and international non-governmental organizations (NGOs) working in the field, despite not yet being recognized as an independent crime under international law.Global Centre for the Responsibility to Protect, Background Briefing: Defining the Four Mass Atrocity Crimes, Publications (Aug. 15, 2018), http://www.globalr2p.org/publications/688 ; Global Action against Mass Atrocity Crimes, Prevention of Atrocities, About GAAMAC, https://www.gaamac.org/web-pages/view/16
Crimes of aggression are considered by some to be mass atrocity crimes and they are included in the jurisdiction of the International Criminal Court. However, most legal scholars do not consider them to be mass atrocity crimes.See, generally, Press Release, International Criminal Court, Assembly activates Court’s jurisdiction over crime of aggression (Dec. 15, 2017), available at https://www.icc-cpi.int/Pages/item.aspx?name=pr1350. While it is certainly a grave violation of international law and frequently the context in which mass atrocity crimes are committed, the crime of aggression is distinguishable because it is an attack on the territory, sovereignty, or political independence of a state rather than on individuals.See, Coalition for the International Criminal Court, The Crime of Aggression, ICC Crimes (2018), http://www.coalitionfortheicc.org/explore/icc-crimes/crime-aggression.
The primary international laws defining mass atrocity crimes are the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the 1949 Geneva Conventions and their 1977 Additional Protocols, and the 1998 Rome Statute of the International Criminal Court. The jurisprudence of the International Criminal Court, ad hoc international criminal tribunals, and the International Court of Justice further define and enforce these laws.
Crimes against humanity
The term "crimes against humanity" has been applied to a wide range of acts and is often seen as broader than the other three mass atrocity crimes. While crimes against humanity can include many acts that also constitute war crimes, genocide, or ethnic cleansing, it bears distinguishing characteristics. Unlike war crimes, crimes against humanity may be committed in times of war or peace and can only be committed against civilian populations.Trial International, What are Crimes Against Humanity?, What We Do, https://trialinternational.org/topics-post/crimes-against-humanity/. Unlike genocide, the acts need not be targeted against a specific group.
Crimes against humanity have not been codified under a dedicated international treaty. The International Law Commission recently submitted a draft convention to the United Nations General Assembly that would include provisions prohibiting, punishing, and defining crimes against humanity.Int’l Law Comm’n, Crimes against humanity: Texts and titles of the draft preamble, the draft articles and the draft annex provisionally adopted by the Drafting Committee on second reading, 71st Sess., Apr. 29-June 7, July 8- Aug. 9, 2019, U.N. Doc. A/CN.4/L.935 (May 15, 2019).G.A. Res. 73/265 ¶ 43, U.N. Doc. A/RES/73/265; MADRE, The International Crimes Against Humanity Treaty: A Call to Action for Advocates (2019), https://www.madre.org/international-crimes-against-humanity-treaty. Despite not being the subject of a dedicated treaty, the prohibition against crimes against humanity is considered customary international law and an established norm, meaning it is binding on all states without exception.United Nations Office on Genocide Prevention and the Responsibility to Protect, Crimes Against Humanity, Definitions, https://www.un.org/en/genocideprevention/crimes-against-humanity.shtml.
The term has a long history of use both in political and legal contexts. Crimes against humanity, and similar terms, were used in the 18th century and early 19th century to describe slavery and atrocities committed as part of colonialism. Its first formal use in international law was a 1915 declaration condemning the Armenian genocide.International Crimes Database, Crimes Against Humanity, Crimes (2013), https://www.internationalcrimesdatabase.org/Crimes/CrimesAgainstHumanity. Since then the term has been used and defined in similar, but variant ways by the Nuremberg Tribunal, Tokyo Tribunal, International Criminal Tribunal for the former Yugoslavia, International Criminal Tribunal for Rwanda, and International Criminal Court.
The Rome Statute reflects the latest consensus of the international community on the definition of crimes against humanity. The statute did not limit the definition to acts occurring in times of armed conflict, included a wider range of sexual violence as prohibited acts, and expanded the grounds on which persecution can be committed. Louise Chappell, The Politics of Gender Justice at the International Criminal Court: Legacies and Legitimacy, 27 Eur. J. Int’l L. 1176 (2017); Brook Sari Moshan, Women, War, and Words: The Gender Component in the Permanent International Criminal Court’s Definition of Crimes Against Humanity, 22 Fordham Int’l L. J. 154 (1998). The statute defines crimes against humanity as 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:
(a) Murder. (b) Extermination; (c) Enslavement; (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender...or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court; (i) Enforced disappearance of persons; (j) The crime of apartheid; (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.
Genocide
At its most essential, "genocide" is acts committed with the intent to destroy a particular group.Raphael Lemkin, Axis Rule in Europe: Laws of Occupation, Analysis of Government – Proposals for Redress, p. 80, New York, NY: Howard Fertig, 1973. This destruction may be achieved by both fatal and non-fatal acts, ranging from slavery to rape and from mass killings to forced sterilizations.Sareta Ashraph, Beyond Killing: Gender, Genocide, & Obligations Under International Law 3 (Global Justice Center 2018), available at https://globaljusticecenter.net/blog/20-publications/briefs-and-white-papers/1009-beyond-killing-gender-genocide-and-obligations-under-international-law. Like crimes against humanity, genocide can occur in times of peace or war.Convention on the Prevention and Punishment of the Crime of Genocide art. 1, Dec. 9, 1948, 78 U.N.T.S. 277. Genocide is characterized, in large part, by its specific intent requirement.Int’l Law Comm’n, Draft Code of Crimes against the Peace and Security of Mankind with commentaries, 48th Sess. p. 44 (1996), available at https://legal.un.org/ilc/texts/instruments/english/commentaries/7_4_1996.pdf. While many of the constitutive acts of genocide are captured by the other atrocity crimes, and in fact were tried under crimes against humanity in the Nuremberg trials,Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal, Aug. 8, 1945, art. 6(c). modern conceptions note that the targeting of a protected group for destruction is unique to genocide.See, generally, Int’l Law Comm’n, Draft Code of Crimes against the Peace and Security of Mankind with commentaries, 48th Sess. p. 44 (1996), available at https://legal.un.org/ilc/texts/instruments/english/commentaries/7_4_1996.pdf
Like crimes against humanity, the prohibition of genocide is customary international law and an established norm, meaning it is binding on all states without exception. In addition, it has been codified and included in the jurisdiction of several international adjudicatory bodies, including the International Criminal Tribunal for the former Yugoslavia,Updated Statute of the International Criminal Tribunal for the Former Yugoslavia, S.C. Res. 827, U.N. Doc. S/RES/827, art. 4 (May 25, 1993) (as amended July 7, 2009). International Criminal Tribunal for Rwanda,Statute of the International Criminal Tribunal for Rwanda, S.C. Res. 995, U.N. Doc. S/RES/955, art. 2 (Nov. 8, 1994) (as amended Oct 13, 2006). and the International Criminal Court.Rome Statute for the International Criminal Court, art. 6, July 17, 1998, 2187 U.N.T.S. 3. In 1948, the United Nations General Assembly adopted the Convention on the Prevention and Punishment of Genocide (also known as the Genocide Convention), a dedicated treaty establishing multilateral obligations to act in the face of genocide.Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277.
Article II of the Genocide Convention defines genocide as "...any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group":
(a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.
War crimes
War crimes are serious violations of the laws and customs governing armed conflict.International Committee of the Red Cross, Rule 156. Definition of War Crimes, Customary IHL, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule156. The definition has evolved over time to include actions that occur not just in war between states, but also internal armed conflicts.Guénaél Mettraux, International Crimes and the Ad Hoc Tribunals (Oxford University Press 2005). War crimes run parallel to international humanitarian law — both contained primarily in the Geneva Conventions. International humanitarian law encompasses a wide range of treatment that different categories of only protected persons are entitled to, such as the humane treatment of enemy civilians under belligerent military occupations and non-discriminatory medical care for the wounded and sickAkila Radhakrishnan, Elena Sarver, & Grant Shubin, Protecting safe abortion in humanitarian settings: overcoming legal and policy barriers, 25 Reproductive Health Matters 40 (2017), available at http://www.globaljusticecenter.net/publications/articles/861-iprotecting-safe-abortion-in-humanitarian-settings-overcoming-legal-and-policy-barriers. or minimum conditions of detention for prisoners of war.International Committee of the Red Cross, Prisoners of War and Detainees Protected under International Humanitarian Law, Protected Persons (Oct. 29, 2010), https://www.icrc.org/en/doc/war-and-law/protected-persons/prisoners-war/overview-detainees-protected-persons.htm Conversely, acts that rise to the level of war crimes are those with a particularly grave effect on persons, objects, and important values that give rise to criminal responsibility.