TRC Final Report

Volume 1

Chapter 4

Part Appendix

Subsection 3

Specific acts classified as crimes against humanity

21 The Commission chose to employ for its purposes the most recent definition adopted by the International Law Commission in its 1996 Draft Code of Crimes against the Peace and Security of Mankind⁴⁷. It was satisfied that this definition reflects and incorporates many of the legal developments that have occurred since Nuremberg. Article 18 of the 1996 Code defines crimes against humanity thus:

A crime against humanity means any of the following acts, when committed in a systematic manner or on a large scale and instigated or directed by a government or by any organisation or group: (a) murder; (b) extermination; (c) torture; (d) enslavement; (e) persecution on political, racial, religious or ethnic grounds; (f) institutionalised discrimination on racial, ethnic or religious grounds involving the violation of fundamental human rights and freedoms and resulting in seriously disadvantaging a part of the population; (g) arbitrary deportation or forcible transfer of population; (h) forced disappearance of persons; (i) rape, enforced prostitution and other forms of sexual abuse; (j) other inhumane acts which severely damage physical or mental integrity, health or human dignity, such as mutilation and severe bodily harm.

22 The following brief commentary on the meaning of certain aspects of the definition allows it to be applied with greater certainty.

Systematic violations or violations on a large scale

23 The requirement that crimes against humanity must be committed in a systematic manner or on a large scale excludes acts which, although they are serious violations of human rights, occur in an isolated or random manner. The requirement is framed disjunctively, clearly indicating that it is not necessary for both requirements to be simultaneously satisfied. Simply, acts which occur on a large scale must occur in large numbers, while acts which occur systematically must follow a similar pattern and occur at different times and different places.

24 A question recently raised before the International Criminal Tribunal for the Former Yugoslavia was whether it is possible for a single act to constitute a crime against humanity. In the Tadic judgement, the Tribunal quotes with approval an earlier decision which stated that:

Crimes against humanity are to be distinguished from war crimes against individuals. In particular, they must be widespread or demonstrate a systematic character. However, as long as there is a link with the widespread or systematic attack against a civilian population, a single act could qualify as a crime against humanity. As such an individual committing a crime against a single victim or a limited number of victims, might be recognised as guilty of a crime against humanity if his acts were part of the specific context identified above. ⁴⁸

25 The Commission was in agreement with this ruling.

Crimes committed by a government or by any organisation or group

26 Earlier definitions of crimes against humanity presumed that such crimes could only be committed by a government or those acting on behalf of a government. Implicit in this approach was an assumption that only an institution with the power and resources of a government would have the capacity to commit crimes on the scale necessary to qualify as crimes against humanity. Over the past fifty years, it has become clear that certain organisations or groups outside government are capable of committing crimes on a large scale or in a systematic manner. The Commission therefore endorsed the definition of crimes against humanity contained in the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind which includes acts committed by non-state actors.

Persecution

27 Clause (e) of the definition of the International Law Commission adopted by the Commission reads as follows: persecution on political, racial, religious or ethnic grounds;

28 In the application of this clause, the following definition of ‘persecution’ has been adopted:

Action or policy adopted by a government, organisation or group leading to the infliction upon an individual of harassment, torment, oppression, or discriminatory measures, designed to or likely to produce physical or mental suffering or economic harm, because of the victim’s beliefs, views, or membership in a given identifiable group (religious, social, ethnic, linguistic, etc.) or simply because the perpetrator sought to single out a given category of victims for reasons peculiar to the perpetrator. ⁴⁹

Inhumane acts

29 Clause (j) of the proposed definition reads as follows:

other inhumane acts which severely damage physical or mental integrity, health or human dignity, such as mutilation and severe bodily harm.

30 The Commission has chosen to interpret this clause in the same way in which it interpreted the term ‘severe ill treatment’.