By Anita Jelodari, Blog writer

The nature of crime in the human sciences is understood through its conceptual definition, but in criminal law, the process of knowing the nature of a crime comes with the definition of that crime in the criminal code.

As mentioned in the previous article, in general, every crime involves three elements. First, the act or conduct (“actus reus”); second, the individual’s mental state at the time of the act (“mens rea”); and third, the causation between the act and the effect (typically either “proximate causation” or “but-for causation”).

The principle of law-based punishment

The “actus reus” must be defined by criminal code. As long as the criminal code does not define a specific criminal act and impose a punishment for that, the crime will not be recognized by the judges in the courts and, therefore, cannot be sued for. This principle is called the doctrine of law-based punishment, which says that no offense may be punishable by a punishment not provided in law. This is discussed in relation to crimes against humanity. 

The principle of law-based punishment has been criticized in many respects for its practical problem. The inadequacy of this principle shows up where the objection is not always capable to give a complete and convincing definition of crime, and as a result, many immoral and dangerous acts for society lie outside of the law and do not have any specific definition in the criminal code. In this way, the penal code becomes the law of the perpetrators who, knowing their role, commit the crime without fear of punishment.

However, this principle has its advantages too. The criminal policy requires everyone to be aware of the bans. The existence of law before the incidence of criminal act, can be psychologically effective and preventive. In this case, the law is not only punitive but also reformatory. If a judge creates crime and punishment without law, he has violated the lawmakers, since it is only the lawmaker who, paying attention to the geographical location, characteristics and morals of a person’s land, their mental and emotional states and the economic and political circumstances of a society, establishes a proper law and recognizes a crime as a crime.

Crimes against humanity have not yet been codified in a certain law, unlike genocide and war crimes, although there are efforts to do so.

The genocide crime 

The definition of genocide crime is given in Article II of the Convention on the Prevention and Punishment of the Crime of Genocide.

In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

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.

Many jurists have sought to extend the scope of the definition of genocide to that of the Convention and make it more synchronized with the modern world’s status. For instance, in today’s world, genocide is not merely limited to physical damage, and cultural damage is gaining more and more importance.

 The crimes against humanity

 The Definition of the crimes against humanity is given in Rome Statute of the International Criminal Court – Article 7 :

1. For the purpose of this Statute, ‘crime against humanity’ means 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 as defined in paragraph 3, 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.

In contrast with genocide, crimes against humanity do not need to target a specific group. Instead, the victim of the attack can be any civilian population, regardless of its affiliation or identity. Another important distinction is that in the case of crimes against humanity, it is not necessary to prove that there is an overall specific intent. It suffices for there to be a simple intent to commit any of the acts listed, with the exception of the act of persecution, which requires additional discriminatory intent. The perpetrator must also act with knowledge of the attack against the civilian population and that his/her action is part of that attack.

In other words, genocide is a deliberate crime and it is necessary to eliminate all or part of a religious, racial, ethnic or national group. There is no need for such an incentive In the other crimes against humanity (e.g extermination). The perpetrator eliminates the population as a mere human being while eradicating the group’s genocide for belonging to a religion, race, ethnicity, or nationality.

Crimes against humanity have a broader meaning than genocide, and we have observed a lot of its manifestations in history including slavery through forced labor, expulsion of people from their ancestral areas, arbitrary detention or torture of political opponents, widespread rape of defenseless women and so on. Apartheid crime as an institutionalized form of racial discrimination is one of the prominent examples.

 Finally, there is a need for more efforts by lawmakers to codify crimes against humanity in a more precise and better way, so that they can be internationally recognized and litigated, and this may lead to further legal health, justice and less corruption in the whole world. Despite the United Nations’ efforts after World War II to avoid the disaster of war and its problems, still we witness hundreds of wars, whether international or domestic, and devastating casualties which has threatened a stable peace. The recent wars and conflicts are mostly rooted in ethnic and religious crisis which indicates the weakness of the governments to resolve these deep ethnic and cultural obstacles. Prioritizing the human dignity, the right to live and the right to liberty before the government sovereignty, genocide and the crimes against humanity are considered jus cogens, which means that they can not be set aside and are obligatory and no derogation is permitted. This was a great first step towards global peace, and now we can get closer to this goal by trying to incorporate broad instances of these crimes into the law to make them also irrevocable and leave no place for ambiguity or the evasion of law.

To read more about STAND Canada’s policy recommendations, click here!

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