CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ THE CONCEPT OF CRIMES AGAINST HUMANITY the International Criminal Court (ICC), 1998 (Art. 7) applies irrespective of whether these criminal acts are committed in time of war or time of peace. 8 The explanation of individual criminal items is given by treaties only partially. As far as (sub c) enslavement is concerned, it may be indicated by the Slavery Convention (Geneva, 1926), 9 and Supplementary Convention on the Abolition of Slavery (Geneva, 1956). 10 Also (sub f ), torture, has a treaty for purpose of interpretation, the Convention against Torture (New York, 1984). 11 For the interpretation of (sub i), enforced disappearance of persons, the Convention on Forced Disappearance of Persons (New York, 2006) is used. 12 Finally for (sub j), the crime of apartheid, the Convention on Crime of Apartheid (New York, 1973) is used. 13 In other cases, stated by Art. 7(1) of the Rome Statute of ICC, the available means of interpretation are in collocation, and a single term is used in the given Article. These means of interpretation and the core elements of the crime are established in the same Article 7(2). 14 Nowadays, the fate of a civilian population is not exclusively an internal affair of States as has been the case in the past. This is wholly in compliance with the conclusions of the International Commission on Intervention and State Sovereignty (ICISS), which was established in September 2000 by the Canadian government. According to these conclusions, sovereignty is not an absolute right and States forfeit aspects of their sovereignty when they fail to protect their populations frommass atrocity crimes and human rights violations. This thesis is known under the set phrase Responsibility to Protect (RtoP or R2P). 15 The perpetrator of widespread or systematic attacks directed against any civilian population can only be a person who, as a State-organ, pursues governmental politics or is encouraged by the government. The conduct of these persons is thereafter attributed to the State as such. This attribution is taken into consideration also in the case of de facto organs. 16 As noted 8 See the First report by Sean D. Murphy (note 1, supra), para. 8: “Contemporary case law of the International Criminal Court is refining and clarifying the meaning of such terms. (…)The definition contained in article 7 of the Rome Statute is now widely accepted among States (…).” 9 For text see League of Nations, Treaty Series (LNTS), vol. 60, p. 254; amended by the Protocol (New York, 1953), United Nations, Treaty Series (UNTS), vol. 212, p. 17. 10 For text (full name) Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery (Geneva, 1956), UNTS, vol. 266, p. 3. 11 For text (full name) Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (New York, 1984), UNTS, vol. 1465, p. 85. 12 For text (full name ) International Convention for the Protection of All Persons from Enforced Disappearance (New York, 2006), UNTS, vol. 2716, p. 3. 13 For text (full name) International Convention on the Suppression and Punishment of the Crime of Apartheid (New York, 1973), UNTS, vol. 1015, p. 243. 14 Article 7(2) – For the purpose of paragraph 1: see e.g, – (d) ‘Deportation or forcible transfer of population’ means (…); (g) ‘Persecution’ means (…) ; and so on. See also A/CN.4/698 “Information on existing treaty-based monitoring mechanisms which may be of relevance to the future work of the International Law Commission. Memorandum by the Secretariat”. 15 More at https://en.wikipedia.org/wiki/Responsibility_to_protect. 16 In ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts (2001), Article 8 sets down that 3. The originator of widespread or systematic attacks causing harm to civilian population a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”

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