By Nicholas Gelston
DOI: 10.57912/25612740
Crimes Against Humanity and the Definition
Over the last several months, civilians in Darfur, Sudan have been subjected to mass killings, ethnic cleansings, and other crimes against humanity at the hands of both Sudanese Armed Forces (SAF) and the Rapid Support Forces (RSF), a paramilitary group located inside of Sudan. One of the main victims of RSF violence appears to be Masalit civilians, a non-Arab ethnic group located in both Chad and Sudan. Estimates have put the death toll between 800 and 1,300 people, along with photos surfacing on the internet showing streets crowded with corpses. An analysis conducted by Reuters found that at least 1.8 square kilometers of destruction have resulted from the mass killings, equivalent to 444 acres. On February 14, United States Senators Scott, Risch, Cardin, and Booker introduced a resolution to officially recognize the mass killings as a genocide. Senator Risch released a statement, saying:
“For the last 10 months, the RSF have carried out unspeakable horrors in Sudan, including the elimination of non-Arab peoples in Darfur. Twenty years ago, the U.S. Congress was the first body to recognize the genocide in Darfur committed by the government of Sudan and its proxy Janjaweed militia. Tragically, history repeats itself and now we must do the same.”
In addition to the horrors of the Sudanese conflict, the Russian invasion of Ukraine, the October 7th attack on Israel by Hamas, and the Israeli response to such attacks have all raised alarms about mass killings and crimes against humanity targeting innocent civilians. These ongoing atrocities should remind the international community that crimes against humanity are pervasive, and must be addressed.
The most recent and comprehensive definition of crimes against humanity was established through the 1998 Rome Statute, an international treaty which outlines what acts constitute a crime against humanity if part of a widespread or systematic attack directed against a civilian population. The Statute also declares that crimes against humanity do not have to be linked to conflict, and can occur in peacetime. The statute goes on to define three specific elements to crimes against humanity: physical, contextual, and mental.
For the physical element to be met, one of the acts listed in the statute must have been committed. These include murder, torture, and crimes of apartheid. The contextual element stipulates that crimes against humanity must involve either large-scale violence in relation to the number of victims, or extension over a broad geographic area (widespread), or a methodical type of violence (systematic). This excludes random, accidental, or isolated acts of violence. The mental aspect of the statute determines if knowledge of the attack was present.
While the statue does define crimes against humanity, it was not ratified in the United States and a number of other countries. In 2002, the United States Congress passed the American Service Members Protection Act, which limits the ability of the United States to cooperate with the International Criminal Court. Due to lack of American cooperation and the fact that the ICJ does not prosecute individuals, those responsible for the genocide are often not being held accountable for their crimes. This lack of prosecution in the international system creates an environment where these crimes are more likely to occur, making the need for a new international treaty on crimes against humanity critical in the effort to prosecute individuals and prevent crimes against humanity from occurring.
The Missing Link to Prosecuting Crimes Against Humanity
The Rome Statute is, at this moment, the only avenue for prosecuting crimes against humanity. The International Criminal Court (ICC) was created by the Rome Statute, whose jurisdiction is limited to the most serious crimes of concern for the international community. These crimes include genocide, crimes against humanity, war crimes, and the crime of aggression. The court has indicted more than forty individuals, but has only convicted ten of them since its creation.
The UN Articles on Prevention and Punishment of Crimes Against Humanity would fill the missing link when it comes to prosecuting individuals responsible for such crimes. The draft articles were first adopted by the International Law Commission in 2019 and were submitted to the General Assembly. If passed by the General Assembly, the treaty would finally lay the groundwork for sufficiently prosecuting crimes against humanity. The treaty would obligate states to prevent, investigate, and punish crimes against humanity. This would require domestic criminal laws in UN member states to include these crimes. The treaty would also obligate states to cooperate with other states and intergovernmental organizations, prohibit states from refoulement of people to other states where there are substantial grounds for believing they would be in danger, and obligate states to grant extradition in accordance with their laws and treaties.
Final Steps
As it stands, there are few options when attempting to hold individuals accountable for crimes against humanity. A generally recognized international framework and agreement among states is essential in order to prosecute those responsible for such crimes. The United Nations should pass the Articles on the Prevention and Punishment of Crimes Against Humanity. In addition to the points contained within the Articles, any effective agreement should also include procedures for resolving extradition issues and quickly bringing defendants before a court. It is important for the United States to ratify this treaty once it is passed so that it becomes domestic law. Without ratification, the treaty will face the same fate as the Rome Statute and the missing link of prosecution will persist. It is important for the United States to stand with the international community and take the lead in holding accountable those who commit crimes against humanity.
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