OBSERVARE

Universidade Autónoma de Lisboa

e-ISSN: 1647-7251

Vol. 9, Nº. 1 (May-October 2018), pp. 70-87

ON HUMAN RIGHTS – PARTICULARLY CRIMES AGAINST HUMANITY

Daniela Martins

danielamartins1995@gmail.com

Holder of a Law Degree from the Law Faculty of the University of Lisbon (Portugal), currently

collaborating as research assistant to Professor Patrícia Galvão Teles (member of the

International Law Commission). Her research areas focus on International Law, International Law

of the Sea and International Human Rights Law.

Abstract

In today's world of devastation, largely due to armed conflicts and humanitarian tragedies, as

well as to the phenomenon of terrorism - which has plagued societies from the East to the

West - the role of states in fulfilling their obligations towards respecting, protecting and

ensuring the realization of human rights figures prominently. As far as terrorist acts are

concerned, there is no consensus on their possible inclusion in the very concept of "crimes

against humanity", although some authors express their agreement of its inclusion. In view

of the non-existence of a Convention on Crimes against Humanity, such international crimes

- which have jus cogens status - create obligations for States, such as the obligation to

investigate, punish and extradite. In this context, the Responsibility to Protect (or R2P) is also

highlighted, as the state has the prime responsibility to protect the populations from crimes

against humanity.

Keywords

Crimes against Humanity, Human Rights, Terrorist Acts, International Human Rights Law,

International Criminal Law

How to cite this article

Martins, Daniela (2018). "On human rights – particularly crimes against Humanity".

JANUS.NET e-journal of International Relations, Vol. 9, Nº. 1, May-October 2018. Consulted

[online] on the date of last consultation, DOI: https://doi.org/10.26619/1647-7251.9.1.5

Article received on June 30, 2017 and accepted for publication on January 31, 2018

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 9, Nº. 1 (May-October 2018), pp. 70-87

On human rights – particularly crimes against Humanity

Daniela Martins

ON HUMAN RIGHTS – PARTICULARLY CRIMES AGAINST HUMANITY

Daniela Martins

I. Introduction

The definition of crimes against humanity

, not without controversy, has been a source

of uncertainty and fluctuation

, since there is (as yet) no Convention on crimes against

humanity. The United Nations International Law Commission has taken over the draft for

a Convention on Crimes against Humanity to address the gap that appears to exist in the

international legal order. “The most frequently-mentioned candidate for rewriting is the

‘policy element’, which is seen by many scholars and jurists as an unnecessary

impediment to prosecution”

. Indeed, the current multiplication of terrorist acts has

motivated the discussion of the statute of such acts. Terrorism is not included in art. 7

of the Rome Statute of the ICC

. The recent decisions of the International Criminal

Tribunal for the former Yugoslavia (ICTY) and Rwanda (ICTR) have reaffirmed that crimes

against humanity can be disconnected from armed conflict and that the requirement for

state connection is not absolute, provided that an organizational policy can be

established.

Acts prohibited under the Rome Statute of the International Criminal Court concern

violations of fundamental human rights

, such as the right to life and the right not to be

The translation of this article was funded by national funds through FCT - Fundação para a Ciência e

a Tecnologia - as part of OBSERVARE project with the reference UID/CPO/04155/2013, with the aim of

publishing Janus.net. Text translated by Carolina Peralta.

The word war crimes “was selected by U.S. Supreme Court Justice Robert Jackson, the chief U.S. prosecutor

at Nuremberg and the head of the American delegation to the London Conference that framed the Charter.

Jackson consulted with the great international law scholar Hersch Lauterpacht, but they decided to leave

their deliberations unrecorded, apparently to avoid courting controversy. In 1915, the French, British, and

Russian governments had denounced Turkey's Armenian genocide as "crimes against civilization and

humanity," and the same phrase appeared in a 1919 proposal to conduct trials of the Turkish perpetrators”,

David Luban; “A Theory of Crimes Against Humanity”, The Yale Journal of International Law, Vol. 29,2004,

p. 86.

For example, see the concept of "systematic attack" for which there is no convergence, since international

instruments have deferred the following terms: the ICTY statute, adopted in 1993, requires the existence

of armed conflict; the ICTR statute, adopted one year later, waived the requirement of armed conflict but

required a discriminatory motive. The ICC Statute, adopted in 1998, only requires a state or political

organization.

Darryl Robinson; “The draft Convention on Crimes against Humanity: what to do with the Definition”, 2014,

p.3. Available at: http://regnet.anu.edu.au/sites/default/files/uploads/2015-

08/CAH%20What%20to%20Do%20with%20the%20definition%20Robinson%202014%2011%20later%20

revs.pdf.

See UN Doc. A/CONF.183/C.1/L 27, available at:

http://legal.un.org/icc/rome/proceedings/E/Rome%20Proceedings_v1_e.pdf.

Human rights are presented as a legal category. Each human right constitutes a certain type of normative

standard and implies a relationship of public law between human beings and normative authorities with a

view to pursuing the fundamental values and protecting the needs against the interference of the public

authorities (vertical dimension). The typical structure of a Human Right contains a subject, an object and a

content. For further information see Ana Maria Guerra Martins, Direito Internacional dos Direitos Humanos

- relatório, Almedina, 2016, p 83 and following.

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 9, Nº. 1 (May-October 2018), pp. 70-87

On human rights – particularly crimes against Humanity

Daniela Martins

tortured (the latter has as a consequence the prohibition of torture as a guarantee) -

which have the nature of peremptory norms of International Law - as well as other

particular offenses concerning specific human rights (e.g. prohibition of racial

discrimination). As Hans-Peter Kaul

claims, crimes against humanity directly violate

fundamental rights and can indirectly affect the enjoyment of almost all human rights

and freedoms. These crimes are so serious that "a moral and arguably legal duty arises

to end the criminal conduct"

: the states thus have obligations in relation to human rights

and freedoms, such as respect for them and abstention from violating acts, as well as to

protect them

II. Crimes against Humanity as a violation of Human Rights

“Crimes against humanity that are so heinous-so horrible-that are

viewed as an attack on the very quality of being human”

The term crimes against humanity gained momentum after World War II

- in line with

the actual international protection of human rights, which only occurred after that period

"as a reaction to the atrocities and human rights violations committed, in particular, by

the Hitler regime"

. David Luban

points out that the sentence "crimes against

humanity", a concept that we propose to address, suggests that offenses are committed

not only against people and their communities, but against all humanity (regardless of

community). “Humanity means both the quality of being human-humanness-and the

On the difference between human rights and fundamental rights, see Robert ALEXY; “Constitutional Rights

and Constitutional Review”; Lecture given at the Faculty of Law of the University of Coimbra (30 October

2012). Available at: http://www.fd.unl.pt/docentes_docs/ma/jsb_ma_16920.docx. The author explains

that “[t]he importance of constitutional rights stems from the fact that constitutional rights are rights that

have been recorded in a constitution with the – subjective or objective – intention of transforming human

rights into positive law, in other words, the intention of positivizing human rights qua moral rights.”

See Hans-Peter Kaul, Judge and Second Vice-President of the International Criminal Court, at the

international conference “The protection of Human Rights through the International Criminal Court as a

Contribution to Constitutionalisation and Nation – Building»”, 2011. Available at: https://www.icc-

cpi.int/NR/rdonlyres/2C496E38-8E14-4ECD-9CC9-

5E0D2A0B3FA2/282947/FINAL_Speech_Panel1_HumanRightsandtheInternational.pdf.

See, on behalf of all, David Scheffer; “Crimes Against Humanity and the Responsibility to Protect»” in Leila

NADYA SADAT (ed.); Forging a Convention for Crimes Against Humanity, Cambridge, 2011, p. 305.

As Maria Luísa Piqué points out, in the field of human rights there is a negative obligation that forces states

to respect rights or to refrain from repressing them (obligation to achieve results), while there is another

positive obligation with regard to the states’ action “to ensure rights, or to take measures in order to secure

human rights” (obligation of conduct); “Beyond Territory, Jurisdiction, and Control: Towards a

Comprehensive Obligation to Prevent Crimes Against Humanity” in Morten Bergsmo and Song Tianying

(eds.); On The Proposed Crimes Against Humanity Convention, Torkel Opsahl Academic EPublisher,

Brussels, 2014, p. 143.

See Sean D. Murphy, "New Mechanisms for Punishing Atrocities Committed in Non-International Armed

Conflicts", Melbourne Journal of International Law, Vol. 298, 2015, p. 299.

The protection of human beings under international law took place even before World War II. This protection

includes humanitarian intervention, the inclusion of provisions relating to the protection of certain rights in

certain states, and particular regimes of conventional protection for victims of armed conflict, among other

things. However, the international protection of human rights only came to full fruition after World War II,

when human rights were recognized as global and universal rights – also, the modern notion of human

rights and the development of international justice arose from the barbarism perpetrated by Nazi Germany.

Ana Maria Guerra Martins; Direito Internacional dos Direitos Humanos - relatório, Almedina, 2016, p. 100.

See also Hannah Arendt, who describes the Holocaust as a new crime, a crime against humanity, in the

sense of a crime against the status of being human, against his own nature; Eichmann in Jerusalem: A

report on the banality of evil, 1965, p. 268.

See David Luban; A Theory of Crimes… op. cit. p. 86.

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 9, Nº. 1 (May-October 2018), pp. 70-87

On human rights – particularly crimes against Humanity

Daniela Martins

aggregation of all human beings-humankind

, therefore, crimes against humanity are

an attack on the quality of being a person, a quality that requires from rule of law and

the international community respect, protection and the promotion of an inalienable set

of human or fundamental rights necessarily associated with this existence

The reason for the formulation of this particular offense, for the first time included in

clause c) of art. 6 of the Charter of the Nuremberg Court in 1945

, arises from the

absence in international law of a rule covering crimes against the population itself

. As

opposed to the normative consecration of the crime of genocide, which was developed

through a treaty, until the adoption of the Statute of the International Criminal Court

crimes against humanity were largely the product of customary international law. In this

regard, the establishment of the ICC (universal level) was a key milestone in the

protection of human rights

It should be noted that at regional level it is worth noting the adoption on 27 June 2014,

under the aegis of the African Union, of the Protocol on Amendments to the Protocol on

the Statute of the African Court of Justice and Human Rights

- whose entry into force

See David Luban; A Theory of Crimes… op. cit. pp. 86-87.

The thesis according to which the foundation of human rights is based on the idea of the dignity of the

human person is based on this. Dignity is the quality that defines the essence of the human person, or it is

the value that confers humanity to the subject. The idea of dignity must, therefore, guarantee the freedom

and autonomy of the subject. According to the first paragraph of the Preamble to the UN Universal

Declaration of Human Rights (1948), dignity is understood as being inherent and universal to all members

of the human community. Both the International Covenant on Civil and Political Rights (ICCPR) and the

International Covenant on Economic, Social and Cultural Rights (ICESCR) state in their second preambular

paragraphs that dignity is the foundation of human rights. The Charter of Fundamental Rights of the

European Union also contains the inviolability of the dignity of the human being as a gateway to the system

of fundamental rights of the European Union, in accordance with its art. 1, in which all other rights, such as

the right to life or the prohibition of torture, are anchored. The first historical moment in which the dignity

of the human person was accepted as a constitutional principle was in the Constitutional Charter of the

German Republic of 1949 - from that historical milestone, the constitutionalisation of the dignity of the

human person is present in several contemporary constitutions.

According to Antonio Cassesse, this article aimed at the prosecution and punishment of the most repugnant

atrocities, that is, those acts that could subvert the sense of the principle of the dignity of the human

person; «Genocide». In Antonio Cassesse, P. Gaeta e J. Jones (eds.), The Rome Statute of the International

Criminal Court: A Commentary, Vol. I, Oxford University Press, 2002, p. 335 and following. The requirement

in that article that it had to be an act committed before or during the war served to limit the scope of the

precept (and thus the jurisdiction of the Court).

As a result of this absence, the atrocities committed during World War II by the Nazis against Jews and

other civilians could only be prosecuted as individual or collective offenses under German Criminal Law.

According to Ilias Bantekas e Luzt Oette, “[t]his outcome, however, would have been absurd given that the

Holocaust was much more than simply the accumulation of multiple offences and could not in any way be

left to the devices of ordinary criminal law”; International Human Rights – Law and Practice, Cambridge

University press, 2013, p. 709.

It should be noted that the ICCI has a limited and secondary nature in its intervention because there is no

international jurisdiction reserve for certain crimes (Principle of complementarity and subsidiarity) - the

Court intervenes in a subsidiary capacity when national jurisdiction does not ensure appropriate

investigation and trial.

See Paula Escarameia; "Prelúdios de uma Nova Ordem Mundial: O Tribunal Penal Internacional, Revista

Nação e Defesa”, Instituto da Defesa Nacional, no.104-2

series, 2003, p.25.

See Leila Nadya Sadat, who wrote: "[g]iven the centrality of charges of crimes against humanity to the

successful prosecution of atrocity crimes, the ICC’s treatment of crimes against humanity will therefore be

critically important. Moreover, because the ICC is a permanent court with the capacity to intervene in

ongoing situations (even prior to the outbreak of conflict in some cases), the Court’s prosecutions of crimes

against humanity may assume a preventive role at the ICC that similar prosecutions could never have

assumed at the ad hoc tribunals".

See Leila Nadya Sadat; “Crimes Against humanity in the modern age”;

The American Journal of International Law, Vol. 107, 2013, p. 334.

Available at: http://au.int/sites/default/files/treaties/7804-treaty-0045_-

_protocol_on_amendments_to_the_protocol_on_the_statute_of_the_african_court_of_justice_and_huma

n_rights_p.pdf.

See also Patrícia Galvão Teles e Daniela Martins; “Tribunal Penal Internacional – Desafios Atuais”, Relações

Internacionais, Instituto Português de Relações Internacionais, Vol. 54, June 2017, p. 28 and following.

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 9, Nº. 1 (May-October 2018), pp. 70-87

On human rights – particularly crimes against Humanity

Daniela Martins

is pending. The purpose of this Protocol is to provide that Court with a section on

international criminal law with jurisdiction to prosecute, in particular, crimes against

humanity.

The constraints imposed by the Rome Statute (such as the failure to include the principle

of universality)

make the ICC's task intrinsically difficult. However, the inclusion of the

principle of universality in the new Convention on Crimes against Humanity can constitute

a major step forward in inter-state cooperation in punishing such serious violations of

international law by establishing more effective jurisdiction of the ICC. Indeed, "until the

ICC becomes a truly universal tribunal (if it will ever become one), its 'partial' or

'incomplete' jurisdiction will remain a challenge"

Crimes against Humanity are defined in art. 7 of the Rome Statute of the ICC. According

to paragraph 1 of the precept, "crime against humanity" means any of the following acts,

when committed in the context of a generalized or systematic attack against any civilian

population, with knowledge of this attack: a) Homicide

; b) Extermination; c) Slavery;

d) Deportation or forced transfer of a population; (e) Imprisonment or other serious

deprivation of physical liberty, in violation of fundamental rules of international law; (f)

Torture

; g) Rape, sexual slavery, forced prostitution, forced pregnancy, forced

sterilization or any other form of sexual violence of comparable gravity; (h) Persecution

of a group or community for political, racial, national, ethnical, cultural, religious or

sexually identifiable reasons as defined in paragraph 3, or other criteria universally

recognized as being unacceptable in international law relating to any act referred to in

this paragraph or to any crime within the jurisdiction of the Court; i) Forced

disappearance of persons; j) Crime of apartheid; (k)

Other inhuman acts of a similar

character which intentionally cause great suffering, serious injury or affect mental or

physical health." Unhappy with this definition, Charles Chernor Jallow suggests

reformulating it by an amendment to the Rome Statute

The competence is not universal since it is restricted, in principle, to the states that have ratified the Rome

Statute. The ICC does not prosecute all perpetrators of crimes against humanity: The Treaty of Rome

provides that the jurisdiction of the ICC is limited to crimes committed in the territory of the State Party or

by its nationals. However, in the draft articles that may be part of a future Convention on Crimes against

Humanity, it is proposed that the states exercise jurisdiction not only in relation to crimes committed in

their territories or by their nationals, but also by non-nationals abroad who are within the territory of the

said State Party. This is a major step forward in the process of protecting human rights. DIRE TLADI stresses

"[p]erhaps the central element of the ILC project will be the obligation to prosecute or extradite, a legal

principle known as aut dedere aut judicare. The aut dedere aut judicare obligation, broadly stated, obliges

a state to prosecute offenders present in its territory or, if it is unable or unwilling to do so, to extradite the

offender to a state that is willing to do so”; Complementary and cooperation in international criminal justice,

Assessing initiatives to fill the impunity gap: paper 227, Institute For Security Studies, 2014. Available at:

https://issafrica.s3.amazonaws.com/site/uploads/Paper277.pdf.

See Patrícia Galvão Teles; "O Tribunal Penal Internacional e a evolução da ideia do combate à impunidade:

uma avaliação 15 anos após a Conferência de Roma", Janus.net, Universidade Autónoma de Lisboa, Vol. 5,

no.2, November 2014-April 2015, p. 4.

“Events like the 11th September attacks could be prosecuted under this heading. The acts were multiple

and coordinated, causing the death of thousands of people, in furtherance of Al Qaeda’s terrorist policy

against the United States. Thus, they were ‘systematic’”, Roberta Arnold; The prosecution of Terrorism as

a Crime… op. cit. p. 994

Terrorism can also be covered in this paragraph, since such a provision omits the requirement of connection

“to a public official”. Idem.

See Draft Code of Crimes Against the Peace and Security of Mankind, International Law Commission Report,

1996, p. 47 Available at:

http://legal.un.org/docs/?path=../ilc/documentation/english/a_cn4_l532.pdf&lang=EF: inhuman acts

should be those “which severely damage physical or mental integrity, health or human dignity, such as

mutilation and severe bodily harm.”

See. Charles Chernor Jalloh; "What Makes a Crime Against Humanity a Crime Against Humanity", American

University International Law Review, Vol. 28 No. 2, 2013, p. 435.

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 9, Nº. 1 (May-October 2018), pp. 70-87

On human rights – particularly crimes against Humanity

Daniela Martins

Paragraph 2 of this article presents a set of definitions that have as main purpose the

delimitation of the conducts typified in number 1. Andrew Clapham poses the question

“if such acts are already violations of human rights law, what is the added value of

criminalising them at international level?”

International criminalization makes it

possible for the individual to be tried before an International Court

. But what will justify,

ab initio, the criminalization of such acts? Bassiouni

was one of the first authors to

advance a doctrinal basis for international criminalization. Such offenses, according to

the author, affect internationally significant interests, posing a threat to world peace and

security, with transnational implications. That is why there is universal interest in

repressing these crimes, which results, in principle, in universal jurisdiction.

Crimes against humanity are, therefore, defined as a "generalized or systematic attack

against any civilian population, with knowledge of this attack" (article 7 (1) of the Rome

Statute of the ICC). The concept of "attack" presupposes, in terms of clauses (a), (b),

(c), (d) and (e), that these offenses taken together (that is, cumulative) give form and

existence to a government policy against a target civilian group.

The objective elements of crimes against humanity are defined in clauses. (a) to (k)

of paragraph 1. The offenses are required to be systematic in nature and must be

endorsed by the state, government or entity in charge. At this point, there is

controversy

in the nature of terrorist acts

committed by non-state actors - will they

be considered agents of crimes against humanity? There are two ways in which such

offense (terrorism) can be taken into account as Crime against Humanity: as one of the

subcategories of crimes against humanity or as an "inhuman act" (k). This is the view of

Roberta Arnold

for whom the advantage of including terrorism in one of the

subcategories is that they can be committed by all, including non-state actors and

“[s]econdly, a wide range of victims is covered, including every person who is not

performing de facto combating functions, independently from his or her nationality.”

Michael A. Newton and Michael P. Scharf believe that “[e]xpanding the corpus of crimes

against humanity [to terrorism] could provide a harmonized legal framework applicable

in both times of armed conflict or peace”

. According to Kai Ambos, “[t]he intentional

killing of more than 100 people constitutes the required single act of murder. As a

See. Andrew Clapham; “Human Rights and International Criminal Law” in William SCHABAS, The Cambridge

Companion to International Criminal Law, Cambridge University Press, p. 6.

See Andrew Clapham; Human Rights and International…op. cit. p. 7.

See Cherif Bassiouni; “The Penal characteristics of conventional international criminal law”, Case Western

Reserve Journal of International Law, Vol. 15, No. 1, 1983, p. 30 and following.

See, on this matter, Michael P. Scharf e Michael A. Newton: “Assuming that non-state actors are in fact

legally capable of committing crimes against humanity, the acts of any large-scale group such as the Mafia,

organized drug trafficking or terrorist organization, or even a gang capable of committing ‘widespread or

systematic crimes’ would be sufficiently covered by the specifically listed categories of crimes against

humanity. In such a case, there is no need to list terrorism as a separate crime against humanity; rather,

the specific act is already covered in the crimes against humanity of murder, persecution, or other

identifiable crime.”; Terrorism and Crimes Against Humanity… op. cit. p. 275.

“[T]errorist attacks have usually been defined as serious offences, to be punished under national legislation

by national courts. The numerous international treaties on the matter oblige the contracting states to

engage in judicial cooperation for the repression of these offences. In my opinion, it may be safely contended

that, in addition, at least trans-national, state-sponsored or state-condoned terrorism amounts to and

international crime and is already contemplated and prohibited by international customary law as distinct

category of such crimes.”, Antonio Cassesse; “Terrorism is Also Disrupting Some Crucial Legal Categories

of International Law”; European Journal of International Law, 2001, p. 994.

Roberta Arnold; “The prosecution of terrorism as a crime against Humanity”, ZaoRV, Vol. 64, 2004, pp. 994

and 999.

See Michael A. Newton and Michael P. Scharf; “Terrorism and Crimes Against Humanity” in Leila Nadya

Sadat (ed.); Forging a Convention for Crimes Against Humanity, Cambridge University Press, 2011, p. 272.

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 9, Nº. 1 (May-October 2018), pp. 70-87

On human rights – particularly crimes against Humanity

Daniela Martins

consequence, the ICC has jurisdiction ratione materiae, without being controversial”

In fact, the author points to two bases for the ICC's jurisdiction over such acts: (1) the

active personality principle (it exists for some ISIS members who are nationals of ICC

States Parties, as per clause b) of paragraph 2 of art. 12); 2) the principle of territoriality

(clause a) of paragraph 2 of art. 12) - a certain territorial connection is required from the

state where the offense was committed, it being understood that such a connection exists

when the perpetrator is resident in the same state (part of the ICC Statute). But in the

case of ISIS, the actors have no fixed territory or have a connection to third countries

(such as Iraq, Libya, and Turkey). The author suggests, however, that the requirement

of a sufficient territorial link to a Member State is necessary - as when the act (or its

effects) is produced in a Member State. There are those who argue

that subsuming

terrorism to the category of crimes against humanity would lead to the dilution of lex

specialis into lex generalis, so it would be preferable to establish terrorism as a separate

category of transnational crime. For Bassiouni, the only entities liable to commit acts that

gain the status of crimes against humanity - other than the government - are those that

hold elements of state sovereignty - Gestapo, KGB

. It is thus a narrow view of the term

"political organization" as including only the government, excluding non-state actors

Conversely, an expansion of the scope of universal jurisdiction to such non-state actors

is applauded by some authors, including James Fry

In view of the lack of consensus regarding the inclusion of the crime of terrorism into the

catalogue of crimes against humanity, it should be noted that "[the] fight [against]

terrorism raises two complex problems with regard to human rights: on the one hand,

the right of the civilian population to have its own security strengthened, on the other

hand, the right to the protection of fundamental human rights, which must be ensured

even for the alleged terrorists.

A balance must be struck between the human rights of victims and of terror suspects and

the rights of citizens in general, who can see their fundamental freedoms affected and

restricted by measures taken in the name of the fight against terrorism"

, according to

Patrícia Galvão Teles.

Regarding the subjective elements, it should be noted that according to the general

principles of international law, the subjective element of crimes against humanity can be

divided into two distinct moments: knowledge/awareness of the wider context in which

crime is committed, that is, that these offenses are part of a systematic, widespread and

large-scale policy of abuse; and the need to verify intention with respect to the practice

of the underlying offense. Thus, individual responsibility for crimes against humanity is

not limited to the fact that a person commits crimes of widespread or systematic scope.

On the ICC's jurisdiction over terrorist acts, see Kai Ambos; “The new enemy of mankind: The jurisdiction

of the ICC over members of ‘Islamic State’”; Blog of the European Journal of International Law, 2016,

paragraphs. 2 and 3. Available at: https://www.ejiltalk.org/the-new-enemy-of-mankind-the-jurisdiction-of-

the-icc-over-members-of-islamic-state/.

See Ben SAUL; “Reasons for defining and criminalizing ‘terrorism’ in international law”, The University of

Sydney, Legal Studies Research Paper No. 08/121, 2008, p. 248.

See also William A. Schabas; “State Policy As An Element of International Crimes”, Journal of Criminal Law

and Criminology, Vol. 98, No. 3, 2008, pp. 953, 973.

The Jurisprudence of the International Criminal Tribunal for the former Yugoslavia has accepted the

possibility of non-state actors being tried for crimes against humanity - see, for example, the International

Criminal Tribunal for the Former Yugoslavia, Tadić, 1997, para. 654.

See James Fry; “Terrorism as a Crime Against Humanity and Genocide: The backdoor to universal

jurisdiction”, UCLA Journal of International Law & Foreign Affairs, Vol. 7, 2002, p. 197 and following.

See, for example, Patrícia GALVÃO TELES, “Terrorismo e Direitos Humanos”, Janus.Net, 2003 § 1.

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 9, Nº. 1 (May-October 2018), pp. 70-87

On human rights – particularly crimes against Humanity

Daniela Martins

It is required that the perpetrator be aware of the general context in which the crime was

committed, a knowledge that must be combined with malice. As far as crimes against

humanity are concerned, there is no requirement for intent in the volitional element,

admitting any form of malice (also both the necessary and the possible).

These are international crimes committed directly against the civilian population which

acquire a certain proportion/scale that goes beyond the so-called crime with a purely

private intent and can be committed in the territory of a single state or at the borders.

Finally, the crime concerns the most hateful acts of violence and persecution known to

mankind.

In accordance with the above, the requirements for a crime to be considered as

a crime against humanity are:

i) Acts committed in a generalized or systematic way

- These are alternative

requirements. The notion of attack has been studied in jurisprudence. Examples

include the Nahimara et al. case

, in which the International Criminal Tribunal for

Rwanda cited the Kunerac et al. case in order to concretize the notion that it considers

to be substantiated in the conducts involving committing acts of violence. The Court

concluded that an attack on the civilian population means a violent action against the

civilian population, or some kind of treatment referred to in sub-paragraphs a) to i)

of art. 7.

It is necessary that the attack be generalized to the extent that it interferes with a

large number of people (multiplicity of victims, which excludes isolated acts of

violence). The attack must be systematic, which means that it must be committed

according to a pre-conceived plan whose implementation or policy should result in

the repeated and ongoing commission of inhuman acts.

ii) Acts committed against any civilian population – In fact, the “civilian population”

requirement has been the subject of debate, largely because of the difficulties in

transposing the notions of International Humanitarian Law

. If one agrees to a

human rights approach, this will ensure a range of positive rights for all individuals

regardless of their underlying status. It is particularly debated whether that term

should be interpreted broadly or narrowly - since the Rome Statute is silent on that

point. Leila Nadya Sadat

suggests that the term "civilian population" should have

an autonomous meaning, rather than merely a demarcation of the meaning of

international humanitarian law, since any person is protected against attacks on his

life by the protection afforded to him by the right to life. According to the author, the

It is understood that the requirements are disjunctive. The practice of the ICCI has reaffirmed this– See

Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the

Situation in the Republic of Kenya, Pre-Trial Chamber, ICC-01/09, Mar. 31, 2010, para. 94.

International Criminal Tribunal for Rwanda, Nahimara et al. (Case No. ICTR-99-52-A), Judgement, 28- Nov.

2007, para. 916. Available at: http://cld.unmict.org/assets/filings/90-ICTR-99-52-2079-4-MEDIA-

Nahimara-et-al-appeals-judgement.pdf.

One can read, for example in the Bemba case (The Prosecutor v. Jean-Pierre Bemba Gombo, ICC- 01/05-

01/08) that the civilian population includes all persons who are civilians in opposition to members of the

armed forces and other legitimate combatants.

See Leila Nadya Sadat; “Putting Peacetime First: Crimes against Humanity and the Civilian population

requirement”, Emory International Law Review, Vol. 31, 2017, p. 206.

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 9, Nº. 1 (May-October 2018), pp. 70-87

On human rights – particularly crimes against Humanity

Daniela Martins

Court should not only analyse the formal status of a victim (as a civilian) within the

meaning of international humanitarian law, but take into account the actual situation

of the individual or the population being abused - a position that I endorse and which,

according to Leila Nadya Sadat, ensures the tendential abolition of the artificial

division between protected persons and unprotected people during War and Peace

The notion of "civilian population" must then be interpreted broadly - – “[a]n attack

can be committed against any civilian population, regardless of nationality, ethnicity

or any other distinguishing feature, and can be committed against either national or

foreign populations.”

The notion of civilian population “is much broader than the

four groups enumerated in the Genocide Convention”

. Steven Ratner, Jason

Abrams and James Bischoff believe that such a requirement suggests that even the

most atrocious acts, such as some terrorist attacks, are not crimes against humanity,

even when they are isolated

, which is criticized by the authors as it confines the

scope of crimes against humanity.

iii) Acts deriving from the instigation or direction of the government or of any other

political organization (policy element)

- The International Law Commission decided

to include such a requirement in order to include inhuman acts committed by private

persons without state involvement.

Clause a) of paragraph 2 of art. 7 of the ICC's

Rome Statute expresses this view. Such a provision expressly contemplates the

commission of crimes against humanity by non-state perpetrators. The jurisprudence

of the ICC suggests that the term "political organization" includes “any organization

or group with the capacity and resources to plan and carry out a widespread or

systematic attack.”

Idem, p. 207.

First Report of the Special Rapporteur on Crimes Against Humanity, Sean MURPHY, para. 135.

See Ilias Bantekas and Lutz Oette; International Human Rights… op. cit. p. 710.

In the Kunarac case, the Tribunal said that: “the use of the word ‘population’ does not mean that the entire

population of the geographical entity in which the attack is taking place must have been subjected to that

attack. It is sufficient to show that enough individuals were targeted in the course of the attack, or that

they were targeted in such a way as to satisfy the Chamber that the attack was in fact directed against a

civilian ‘population’, rather than against a limited and randomly number of individuals.”; ICTY Prosecutor v.

Kuranac and Others, 2002, para. 63.

Steven R. Ratner, Jason S. Abrams and James L. Bischoff; Accountability for human rights atrocities in

international law – Beyond the Nuremberg Legacy, 3d Edition, Oxford University Press, 2009, p. 79.

In 1995, the International Law Commission discussed the debate on whether acts by non-state actors could

be included as crimes against humanity, which, according to some members, would not be possible.

However, the jurisprudence of the International Criminal Tribunal for the former Yugoslavia has accepted

the possibility of non-state actors being tried for crimes against humanity. - See the Tádic case, 1997 “the

law in relation to crimes against humanity has developed to take into account forces which, although not

those of the legitimate government, have de facto control over, or are able to move freely within, a defined

territory”, para. 654. Darryl ROBINSON identified four theories regarding this requirement. See «Essence

of Crimes Against Humanity Raised at ICC”, Blog of The European Journal of International Law, 2011.

Available at: http://www.ejiltalk.org/essenceof-crimes-against-humanity-raised-by-challenges-at-icc.

Primarily, the International Law Commission defined crimes against humanity as “Inhuman acts such as

murder, extermination, enslavement, deportation or persecutions, committed against any civilian

population on social, political, racial or cultural grounds by the authorities of a State or by private individuals

acting at the instigation or with the toleration of such authorities”; Report of the International Law

Commission on the work of its sixth session, Yearbook of the International Law Commission, 1954, vol. II,

p. 150. Later, it defined it as “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 an organization or group”, ILC Report, 1996,

p. 47.

See First report on crimes against humanity, Sean Murphy, para. 147.

“Such a policy may be made either by groups of persons who govern a specific territory or by any

organization with the capability to commit a widespread or systematic attack against a civilian population.”,

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 9, Nº. 1 (May-October 2018), pp. 70-87

On human rights – particularly crimes against Humanity

Daniela Martins

iv) Knowledge of the attack - the author of the act must commit it with knowledge of

doing it.

Criminalizing this type of behaviour presupposes the states’ obligations to prevent

them (as well as the obligation to punish them). The State

is obliged to protect

all fundamental rights, since, by assuming a monopoly on the use of lawful coercive

force, it is obliged to protect the life, safety, well-being, freedom, and the property

of private individuals. In fact, “the threshold between human rights violations and

crimes against humanity takes on a particular significance in the context of […] the

‘Responsibility to Protect’”.

The "R2P" concept came from the International

Commission on Intervention and State Sovereignty (ICISS).

The State's duty to

protect the dignity and basic human rights of its own population

is essentially

achieved through positive normative or factual actions aimed at the effective

protection of fundamental rights. This duty is essentially carried out through positive

actions but also includes duties of abstention, of no negative affection, which from

the perspective of individuals, translate into both positive and negative rights.

Violation of such an obligation implies the State's responsibility

. Regarding the new

Convention on Crimes against Humanity - a project initiated by the International Law

International Criminal Court, Katanga Case (ICC-01/04-01/07) between the Prosecutor v. Germain Katanga,

2008, para. 396. Available at: https://www.icc-cpi.int/drc/katanga.

States have a duty to respect, protect and fulfil fundamental rights. The fundamental rights legally

guarantee individual access to goods which, due to their importance for the dignity of the human person,

personality development, autonomy, freedom, and well-being of the people, the Portuguese Constitution

(CRP) and the other international instruments understood deserving maximum protection. The

constitutional consecration of fundamental rights has a very precise legal meaning: it always imposes upon

the State, and upon each of its constituted powers, duties of subordination and legal binding, which, in

general, result in corresponding claims and rights of realization for the individuals, whose awareness can

be translated into the ownership of public subjective rights, i. e., rights to be legally claimed in their own

interests to ensure the fulfilment of the respective state’s duties.

The International Community also has a responsibility to use appropriate diplomatic, humanitarian and

other peaceful means, in accordance with Chapters VI and VII of the Charter of the United Nations, to

protect populations from crimes against humanity.

For further information, see Jorge Reis Novais; Direitos Sociais: Teoria jurídica dos direitos sociais enquanto

direitos fundamentais, Coimbra Editora, 2010, p. 256 and following.

Following the widespread and systematic attack against the civilian population by the Libyan regime, the

UN Security Council adopted Resolution 1970 on 26 February 2011 (available at:

http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1970 (2011)), making explicit the

reference to the responsibility to protect. The Security Council has called for an end to violence, “recalling

the Libyan authorities’ responsibility to protect its population”, imposing international sanctions. In

Resolution 1973 (available at: http://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/1970

(2011)), adopted on 17 March 2011, one reads that attacks on the civilian community constitute crimes

against humanity. In the UN Secretary-General Ban Ki-Moon's report on Implementing the Responsibility

to Protect (A/63/677, 2009), three pillars of this obligation are identified. They are: 1) The State has the

primary responsibility to protect the populations from genocide, war crimes, crimes against humanity and

ethical cleansing, as well as their incitement; (2) The International Community has the responsibility to

encourage and assist states in fulfilling such responsibility; (3) The International Community has the

responsibility to use appropriate diplomatic, humanitarian and other means to protect against such crimes.

If a state is manifestly lacking in its obligation to protect, the international community must prepare to take

collective action to protect the population, in accordance with the Charter of the United Nations. (Available

at: https://documents-dds-ny.un.org/doc/UNDOC/GEN/N09/206/10/PDF/N0920610.pdf?OpenElement.

Andrew Clapham; Human Rights and International…op. cit. p. 7.

Such a Commission was called upon to reach an international consensus on humanitarian intervention

following the experience of the 1990s (experiences such as Somalia, Rwanda, Bosnia and Kosovo). It was,

therefore, the responsibility - in the first instance, of the state concerned - to protect its own population.

The concept of responsibility to protect was adopted by the Member States of the United Nations at the

World Summit in 2005.

See ICISS; The Responsibility to Protect, Report of the International Commission on Intervention and State

Sovereignty, 2001, p. 8. Available at: http://responsibilitytoprotect.org/ICISS%20Report.pdf

See articles adopted by the International Law Commission in 2001: Responsibility of States for

internationally0 wrongful acts, Available at:

http://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf.

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 9, Nº. 1 (May-October 2018), pp. 70-87

On human rights – particularly crimes against Humanity

Daniela Martins

Commission in 2014 - Rita Maxwell

believes that it represents an important

opportunity to give a greater meaning to the responsibility to protect insofar as it

consolidates the relationship between this responsibility and the states' obligation to

prosecute crimes against humanity. In that regard, David Scheffer suggests that an

explicit provision should be incorporated in the alleged Convention as to the

responsibility to protect requiring effective action by states

III. Crimes Against Humanity - an integral part of Jus Cogens

“[A]t the individual level, that is, that of criminal liability, it would

seem that one of the consequences of the jus cogens character

bestowed by the international community upon the prohibition of

torture is that every State is entitled to investigate, prosecute and

punish or extradite individuals accused of torture, who are present

in a territory under its jurisdiction […] This legal basis for States’

universal jurisdiction over torture bears out and strengthens the

legal foundation for such jurisdiction found by other courts in the

inherently universal character of the crime. It has been held that

international crimes being universally condemned wherever they

occur, every State has the right to prosecute and punish the authors

of such crime”

The definitions given by the Statutes of the International Tribunals for the former

Yugoslavia and for Rwanda - art. 5 and art. 3 of the Statutes, respectively - made a

decisive contribution to the consolidation of crimes against humanity as jus cogens rules.

Thus, the international community is obliged to ensure universal respect for consecrated

jus cogens norms. Currently, jus cogens is a recognized element of international law.

Part of the doctrine characterizes jus cogens norms as the product of natural law, that

is, jus cogens as emanation “which grew out of the naturalist school, from those who

were uncomfortable with the positivists’ elevation of the state as the sole source of

international law.”

International practice has identified crimes against humanity as jus

cogens. An example of this is the case opposing Germany to Italy (Jurisdictional

Immunities of the State Case) where the Court suggested that the prohibition of crimes

against humanity constitutes a jus cogens rule

. “The prohibition of genocide […], crimes

against humanity cannot be only internal affairs of a certain state since they reflect the

See Rita Maxwell; “The Responsibility to Protect and to Prosecute: Reflections on the Canadian Experience

and Recommendation for the Proposed Crimes Against Humanity Convention” in Morten Bergsmo e Song

Tianying (eds.); On the Proposed Crimes Against Humanity Convention, Torkel Opsahl Academic EPublisher,

Brussels, 2014, p. 277.

David Scheffer; “Crimes Against Humanity and the Responsibility to Protect” in Leila Nadya Sadat (ed.);

Forging a Convention for Crimes Against Humanity, Cambridge, 2011, p. 306.

International Criminal Tribunal for the Former Yugoslavia (ICTY) – Trial Chamber II, Case Number IT-95-

17/1-T: Prosecutor v. Anto Furundzija; 10 December 1998, para. 156.

See Mark W. Janis; ”The Nature of Jus Cogens”, Connecticut Journal of International Law, Vol.3, 1988, pp.

359, 362. Another part considers the wording of art. 53rd CVDT, focusing on consent as a vital element.

There are also authors who have viewed jus cogens with scepticism and stressed the difficulties of its

definition and concretization, as Jorge Miranda; Direito Internacional Público, Vol. I, Lisbon, 1995, p. 146.

See Concerning Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening), ICJ Reports

2012, 99, at 141 (para 95).

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 9, Nº. 1 (May-October 2018), pp. 70-87

On human rights – particularly crimes against Humanity

Daniela Martins

core values of international society”

, so, “certain human rights do represent jus cogens,

since it brings legal duties of the state to the community as a whole and gives legitimacy

for the legal interest of the community, which was elaborated above in the notion of erga

omnes.”

In 2001, the International Law Commission indicated that the prohibition of crimes

against humanity was a peremptory norm of international law accepted and recognized

Later, in the Belgium v. Senegal case

, the ICJ recognized that some acts, such as the

prohibition of torture, had a jus cogens nature, which made it implicitly recognized that

the prohibition of such a systematic act would also have a jus cogens character. “Among

the principles of general or common international law, there are those that the doctrine

has called jus cogens principles [...] which are principles that do not depend on the

willingness or agreement of wills of subjects of international law; which play an eminent

role in confronting all other principles and precepts; and which have their own legal force,

with inherent effects in the subsistence of norm and contrary acts […] jus cogens is

evolving and susceptible to transformation and enrichment by the addition of new

rules”

. As to the nature of the jus cogentis norms, Mark W. Janis writes that jus cogens

is not a form of customary law, but a form of constitutional law, which forms the basis of

the legal system of the International Community

.The peremptory norms

oblige states

to prevent their violation

. Jus cogens norms override any other rules, including

constitutional rules - jus cogens should be seen as a material limit of constitutional

revision.

As Cherif Bassiouni points out, “certain crimes affect the interests of the world community

as a whole because they threaten the peace and security of humankind and because they

shock the conscience of humanity. If both elements are present in a given crime, it can

be concluded that it is part of jus cogens”

Predrag Zenovic, “Human Rights Enforcement Via Peremptory Norms – A Challenge to State Sovereignty”,

RGSL Research Papers, No. 6, Riga Graduate School of Law, 2012, p. 26.

Idem.

See Draft Articles on State Responsibility, Commentary on Article 26, in Official Records of the General

Assembly, Fifty-sixth Session, and U.N. Doc. A/56/10, 2001, p. 283: “peremptory norms that are clearly

accepted and recognized include the prohibition of […] crimes against humanity”.

See also the Report of the International Law Commission Sixty-Sixth Session, 2014 (5 May – 6 June and 7

July – 8 August). Available at: http://legal.un.org/ilc/reports/2014/english/annex.pdf.

Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), I.C.J. Reports 2012, p.

422, at para. 99; also Prosecutor v. Furundžija, Trial Chamber, Judgment, ICTY Case No. IT-95-17/1, para.

153 (1998); and also Al-Adsani v. United Kingdom, E.Ct.H.R., Judgment, App. No. 35763/97, para. 61

(2001).

See Jorge Miranda. Direito Internacional Público – I, Lisbon, 1995, pp. 143-150.

Mark W. Janis; “The nature of Jus Cogens”, Connecticut Journal of International Law, Vol. 2, 1988, p. 362.

Article 71of the Vienna Convention on the Law of Treaties deals with the consequences of the invalidity of

the treaty which conflicts with a peremptory norm of general international law (under the terms of articles

53 and 64 of the Convention).

Lauri Hannikainen; Peremptory Norms (Jus Cogens) in International Law: Historical Development, Criteria,

Present Status, Helsinki: Finnish Lawyers’ Pub. Co., 1988, p. 722.

Ana Maria Guerra Martins; Direito Internacional dos Direitos Humanos…op. cit. pág. 117.

See also Ana Maria Guerra Martins and Miguel Prata Roque; “A Tutela Multinível dos Direitos Fundamentais

– a posição do Tribunal Constitucional português”; Conferência Trilateral dos Tribunais Constitucionais

Espanhol, Italiano e Português, 2014. Available at:

https://www.tribunalconstitucional.es/ActividadesDocumentos/2014-10-16-00-00/2014-

PonenciaPortugal.pdf.

See Cherif Bassiouni; “International crimes: Jus Cogens and Obligatio Erga Omnes”, Law and Contemporary

problems, Vol. 59, 1998, p. 69.

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 9, Nº. 1 (May-October 2018), pp. 70-87

On human rights – particularly crimes against Humanity

Daniela Martins

As for the concept of jus cogens, the international law doctrine is not unanimous.

Whereas for Eduardo Correia Baptista

jus cogens norms are all norms of customary law

that impose erga omnes obligations, unless there is a customary practice that expressly

removes this "statute", Ana Maria Guerra Martins

believes that not all international

human rights standards are jus cogens; the International Human Rights Law is one of

the fields of privileged application of this type of norms. All intangible rights are jus

cogens (which have been extended by the Human Rights Committee

) – they are related

to the physical and moral integrity of the human person and to freedom. They are

inalienable attributes of the human person and are based on values that express the

value of respect for the inherent dignity of the person.

A jus cogens crime is characterized by state conduct regardless of whether it manifests

itself in an action or an omission. It should be borne in mind that an international crime

that has such status must itself meet the following conditions: existence of legal

instruments that show the prohibition of its practice, the (high) number of states that

have incorporated such a prohibition in their legislations and also the number of national

and/or international legal proceedings related to the same crime. Evidence of general

principles of international law and the role of the doctrine are also pointed out as evidence

of such jus cogens. Some doctrine defends that crimes against humanity have acquired

the status of jus cogens crimes for manifesting the ability of a specific conduct to shock

the conscience of humanity

. Thus, the values and principles protected through the

promotion of peace, security and dignity of mankind are shared by all states and are

universally accepted

International crimes that acquire jus cogens status constitute erga omnes

obligations

that are non-derogable. The origin of the problem of erga omnes obligations with regard

to jus cogens crimes comes from the ICJ's advisory opinion on Reservations to the

Convention on the Prevention and Punishment of Genocide

. It is, however, difficult to

verify the legal obligations arising from the jus cogens nature of international crimes,

Oliver Dorr and Kirsten Schmalenbach are presented as examples: “the duty to prosecute

See Eduardo Correia Baptista; Direito Internacional Público, Lisboa, Vol. I, 1995, p. 432 and following.

Ana Maria Guerra Martins; Direito Internacional dos Direitos Humanos – relatório…op. cit. p. 92 and

following.

Starting to include the right of all persons deprived of their liberty to be treated with humanity and respect,

the prohibition of hostage-taking, the prohibition of deportation or forced transfer of persons, the prohibition

of incitement to racial, religious or national hatred.

See Faustin Z. Ntoubandi, Amnesty for Crimes Against Humanity Under International Law, Martinus Nijhoff

Publishers, Leiden, Boston, 2007, p. 218.

Markus Petsche begins by defining values as constituting “the underlying foundation of the normative

system of any given society or community […] and are, therefore, more ‘fundamental’ than norms.”, «Jus

Cogens as a Vision of the International Legal Order». Penn State International Law Review, Vol. 29, No.2,

2010, p. 258. Such fundamental values can be created either through state practice or by acquiring

"fundamental" status by inherence, irrespective of the acceptance and/or recognition of the International

Community. For Cancado Trindade, such fundamental values “do not emanate from the inscrutable ‘will’ of

the states, but rather […] from human conscience”; «Jus Cogens: The determination and the Gradual

expansion of its material contents in contemporary international case-law», Course 3, 2008, p. 6.

Erga omnes obligations are international obligations that bind through the same rule one state in relation

to all other states, which in turn are in the same legal situation. The jus cogens norms have a close

connection with erga omnes obligations. All the jus cogens rules impose obligations of this kind, since they

protect common interests. In the Barcelona Traction case (ICJ, 1970), the distinction between erga omnes

effects (obligations of states vis-à-vis the international community as a whole) and vis-à-vis obligations

(those arising with respect to another state) the ICJ’s definition of erga omnes refers to an obligation

assumed before all.

Reservations to the Convention on the Prevention and Punishment of the crime of genocide, Advisory opinion

of 28 May 1951. Available at: http://www.icj-

cij.org/docket/index.php?sum=276&p1=3&p2=4&case=12&p3=5.

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 9, Nº. 1 (May-October 2018), pp. 70-87

On human rights – particularly crimes against Humanity

Daniela Martins

or extradite, the non-applicability of domestic laws limiting the criminal responsibility or

prosecution for such crimes (amnesty) and the universality of (mandatory) jurisdiction

[…] The jus cogens nature of international core crimes is believed to generate all legal

obligations necessary to bring to justice persons who are guilty of these crimes.”

IV. Final considerations

“There is no doubt that the recent development of international

criminal law corresponds to the development of international human

rights.”

International law crimes (core crimes) were significantly codified when the Rome Statute

of the International Criminal Court was adopted. “[P]arts of international criminal law

have developed […] to respond to egregious violations of human rights in the absence of

effective alternative mechanisms for enforcing the most basic of humanitarian

standards.”

The prohibition of crimes against humanity ascended to the status of jus

cogens norm. The perpetration of such acts constitutes an attack on the quality of being

a person, a quality that requires respect, protection and promotion of an inalienable set

of human rights from the rule of law and from the international community. The

criminalization of this type of serious offenses under international law was accompanied

by "timidity and ambiguity in the face of political constraints.”

Fundamental rights

imply, by nature, limits to public authorities and, in turn, to so-

called state sovereignty (the concept of sovereignty itself is in crisis, in its classic aspect)

- human rights treaties arise precisely to obviate situations in states that cannot

guarantee people's rights.

The Convention on Crimes against Humanity, still missing, appears to be an important

piece in the field of International Human Rights Law, since “[e]nding impunity for mass

crimes is a common responsibility of humanity as a whole and

justice for victims of such serious crimes should never be sacrificed at the altar of political

expediency”

See Oliver Dorr and Kirsten Schmalenbach; Vienna Convention on the Law of Treaties: A commentary,

Springer, 2012, p. 933.

Predrag Zenovic, “Human Rights Enforcement Via Peremptory Norms – A Challenge To State Sovereignty”,

RGSL Research Papers, No. 6, Riga Graduate School of Law, 2012, p. 40.

Robert Cryer, Hákan Friman, Darryl Robindson, and Elizabeth; Wilmshurst; An introduction to international

criminal law and procedure – 2nd ed., Cambridge University Press, New York, 2010, p. 13.

Jorge Miranda; Direito Internacional Público… op. cit. p. 310.

It should, however, be clarified that "human rights" (international plan) and "fundamental rights" (internal

constitutional plan) differ in the legal sphere because they are different realities. Regarding the distinction,

see on behalf of all Alexandre Melo Alexandrino; “Hermenêutica dos Direitos Humanos”, Conference given

at the "Protection of Human and Fundamental Rights" course organized by the University of Lisbon Law

Faculty under the Framework Agreement for cooperation with the University Centre of Euripedes (UNIVEM)

and University of Northern Paraná (UENP), between January 11 and 13, 2011. Available at:

http://www.fd.ulisboa.pt/wp-content/uploads/2014/12/Alexandrino-Jose-de-Melo-Hermeneutica-dos-

Direitos-Humanos.pdf.

President Song, Prosecutor Bensouda and ASP-President Intelmann: “Humanity is bound together in a

common quest to end impunity”, ICC-CPI-20140910-PR1038, Press Release: 10/09/2014. Available at:

https://www.icc-cpi.int/legalAidConsultations?name=pr1038

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 9, Nº. 1 (May-October 2018), pp. 70-87

On human rights – particularly crimes against Humanity

Daniela Martins

It is important to clarify the notion of "crimes against humanity", especially as regards

the interpretation of the concept of "civil population". In addition, expanding the range

of agents of crimes against humanity could have the advantage of "opening a door" to

non-state actors - an increasingly assertive presence in the globalised world - by adopting

a broad vision of the term "political organization" in clause a) of paragraph 2 of art. 7 of

the Rome Statute. Regarding the agents of this type of criminal offense, the inclusion of

the crime of terrorism in the catalogue of crimes against humanity seems an important

point to consider in this legal debate.

References

Alexandrino, José Melo (2011). «Hermenêutica dos Direitos Humanos». Conference given

at the Protection of Human and Fundamental Rights course organized by the University

of Lisbon Law Faculty under the Framework Agreement for cooperation with the

University Centre Eurípedes de Marília (UNIVEM) and the University of Northern Paraná

(ERNP) between 11 and 13 January 2011. Available at: http://www.fd.ulisboa.pt/wp-

content/uploads/2014/12/Alexandrino-Jose-de-Melo-Hermeneutica-dos-Direitos-

Humanos.pdf

Alexy, Robert (2012). «Constitutional Rights and Constitutional Review». Lecture given

at the Faculty of Law of the University of Coimbra (30 October 2012). Available at:

http://www.fd.unl.pt/docentes_docs/ma/jsb_ma_16920.docx

Arendt, Hannah (1965). Eichmann in Jerusalem: A report on the banality of evil, New

York: Viking Press

Arnold, Roberta (2004). «The prosecution of terrorism as a crime against Humanity».

ZaoRV, Vol. 64: 979-1000

Bantekas, Ilias; Oette, Lutx (2013). International Human Rights Law and Practice,

Cambridge University Press

Baptista, Eduardo Correia (1998). Direito Internacional Público, Vol. I, Lisbon

Bassiouni, Cherif M. (2010). «Crimes Against Humanity: The Case for a Specialized

Convention». Washington University Global Studies Law Review, Vol.9, No. 4, 2010: 575-

593

Bassiouni, Cherif M. (1998). «International Crimes: Jus Cogens and Obligatio Erga

Omnes”». Law and Contemporary problems, Vol. 59: 63-74. Available at:

http://scholarship.law.duke.edu(cgi/viewcontent.cgi?article=1016&context=lcp

Bassiouni, Cherif M. (1983). «The penal characteristics of conventional international

criminal law». Case Western Reserve, Vol. 15, No. 1: 27-37

Clapham, Andrew (2015). «Human Rights and International Criminal Law». In William

SCHABAS (ed.). The Cambridge Companion to International Criminal Law, Cambridge

University Press

Cassesse, Antonio (2001). «Terrorism is Also Disrupting Some Crucial Legal Categories

of International Law». European Journal of International Law: 993-1001

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 9, Nº. 1 (May-October 2018), pp. 70-87

On human rights – particularly crimes against Humanity

Daniela Martins

Cassesse, Antonio (2002). «Genocide». In Antonio Cassesse, P. Gaeta, J. Jones(eds.).

The Rome Statute of the International Criminal Court: A Commentary, Vol. I, Oxford

University Press

Cryer, Robert; Fridman, Hákan; Robidson, Darryl; Wilmshurst, Elizabeth (2010). An

Introduction to international Criminal Law and Procedure, 2nd Edition, Cambridge

University Press, New York

Dorr, Oliver; Schmalenbach, Kirsten (2012). Vienna Convention on the Law of Treaties:

A commentary, Springer

Duarte, Maria Luísa (2014). Direito Internacional Público – e a ordem jurídica global do

século XXI, Coimbra Editora

Escarameia, Paula (2003). «Prelúdios de uma Nova Ordem Mundial: O Tribunal Penal

Internacional, Revista Nação e Defesa». Instituto da Defesa Nacional, no.104-2nd series

Fry, James (2002). «Terrorism as a Crime against Humanity and Genocide: The backdoor

to universal jurisdiction». UCLA Journal of International Law & Foreign Affairs, Vol. 7,

2002: 170-199

Greppi, Edoardo (2001); I crimini di Guerra e Contro L’Umanità nel Diritto Internazionale,

Turin

Holvoet, Mathias; Mesma Medlir (2015). «The International Criminal Court and the

responsibility to protect». In Daniele FIOTT e J. KOOPS (eds.); The Responsibility to

Protect and the Third Pillar: 21-38

Jallow, Charles Chernor (2013). «What Makes a Crime Against Humanity a Crime Against

Humanity». American University International Law Review, Vol. 28 No. 2: 381-441

Janis, Mark (1988). «The nature of Jus Cogens». Connecticut Journal of International

Law, Vol. 3

Kaul, Hans-Peter (2011). “The protection of Human Rights through the International

Criminal Court as a Contribution to Constitutionalization and Nation – Building»”.

Available at: https://www.icc-cpi.int/NR/rdonlyres/2C496E38-8E14-4ECD-9CC9-

5E0D2A0B3FA2/282947/FINAL_Speech_Panel1_HumanRightsandtheInternational.pdf

Luban, David (2004). «A Theory of Crimes Against Humanity». Yale Journal of

International Law, 29: 85-167

Martins, Ana Maria Guerra (2016). Direito Internacional dos Direitos Humanos – relatório,

Almedina

Martins, Ana Maria Guerra; Roque, Miguel Prata (2014). «A Tutela Multinível dos Direitos

Fundamentais – a posição do Tribunal Constitucional português»; Conferência Trilateral

dos Tribunais Constitucionais Espanhol, Italiano e Português, 2014. Available at:

https://www.tribunalconstitucional.es/ActividadesDocumentos/2014-10-16-00-

00/2014-PonenciaPortugal.pdf

Maxwell, Rita (2014). «The Responsibility to Protect and to Prosecute: Reflections on the

Canadian Experience and Recommendations for the Proposed Crimes Against Humanity

Convention». In Morten Bergsmo and Song TIANYING (eds.); On the Proposed Crimes

Against Humanity Convention, Torkel Opsahl Academic EPublisher, Brussels: 275-301

Miranda, Jorge (1995). Direito Internacional Público, Vol. I

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 9, Nº. 1 (May-October 2018), pp. 70-87

On human rights – particularly crimes against Humanity

Daniela Martins

Murphy, Sean D. (2015). «New Mechanisms for Punishing Atrocities Committed in Non-

International Armed Conflicts». Melbourne Journal of International Law, Vol. 298.

Available at: https://ssrn.com/abstract=2707722

Novais, Jorge Reis (2015); A dignidade da pessoa humana – Dignidade e direitos

fundamentais, Vol. I, Almedina

Ntoubandi, Faustin Z. (2007). Amnesty for Crimes Against Humanity Under International

Law, Martinus Nijhoff Publishers, Leiden, Boston

Piqué, María Luisa (2014). «Beyond Territory, Jurisdiction, and Control: Towards a

Comprehensive Obligation to Prevent Crimes Against Humanity». In Morten Bergsmo e

Song Tianying (eds.); On the Proposed Crimes Against Humanity Convention, Torkel

Opshal Academic EPublisher, Brussels

Ratner, Steven; Abrams, Jason; Bischoff, James (2009). «Accountability for human rights

atrocities in international law – Beyond the Nuremberg Legacy», 3d Edition, Oxford

University Press

Robinson, Darryl (1999). «Defining Crimes Against Humanity». The American Journal of

International Law, Vol. 93, No. 1: 43-57

Sadat, Leila Nadya (2017). «Putting Peacetime First: Crimes Against Humanity and the

civilian population requirement». Emory International Law Review, Vol. 31: 199-263

Sadat, Leila Nadya (2013). «Crimes Against humanity in the modern age». The American

Journal of International Law, Vol. 107: 334-377

Saul, Ben (2008). «Reasons for defining and criminalizing ‘terrorism’ in international

law». The University of Sydney, Legal Studies Research Paper No. 08/121, 2008.

Available at:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1291567&rec=1&srcabs=12915

71&alg=1&pos=1

Schabas, William (2008). «State policy as an Element of International Crimes». Journal

of Criminal Law and Criminology, Vol. 98, No. 3: 953-982

Scheffer, David (2011). «Crimes Against Humanity and the Responsibility to Protect». In

Leila Nadya Sadat (ed.); Forging a Convention for Crimes Against Humanity, Cambridge:

305-322

Sharf, Michael P.; Newton, Michael A. (2011). «Terrorism and Crimes Against Humanity».

In Leila Nadya Sadat (ed.). Forging a Convention for Crimes Against Humanity,

Cambridge University Press: 262-278

Teles, Patrícia Galvão; Martins, Daniela (2017). «O Tribunal Penal Internacional: Desafios

atuais». Relações Internacionais, No. 54: 27-43. Available at

http://www.scielo.mec.pt/scielo.php?script=sci_arttext&pid=S1645-

91992017000200003&lng=pt&nrm=iso

Teles, Patrícia Galvão (2015). «O Tribunal Penal Internacional e a evolução da ideia do

combate à impunidade: uma avaliação 15 anos após a Conferência de Roma». Janus.Net,

Universidade Autónoma de Lisboa, Vol. 5, nº2: 1-15. Available at:

http://observare.ual.pt/janus.net/pt/números-anteriores/89-portugues-pt/v-5,-n-2-

2014-novembro-abril/artigos/275-o-tribunal-penal-internacional-e-a-evolução-da-ideia-

do-combate-à-impunidade-uma-avaliação-15-anos-depois-a-conferência-de-roma

JANUS.NET, e-journal of International Relations

e-ISSN: 1647-7251

Vol. 9, Nº. 1 (May-October 2018), pp. 70-87

On human rights – particularly crimes against Humanity

Daniela Martins

Teles, Patrícia Galvão (2003); “Terrorismo e Direitos Humanos”. Janus.Net, Universidade

Autónoma de Lisboa: 1-6. Available at:

https://www.janusonline.pt/arquivo/2003/2003_2_2_4.html

Trindade, Cançado (2008). «Jus Cogens: The determination and the Gradual expansion

of its material content in contemporary international case-law». Curso 3: 5-29. Available

at: http://www.oas.org/dil/esp/3%20-%20cancado.lr.cv.3-30.pdf

Zenovic, Predrag (2012). «Human rights enforcement via peremptory norms – a

challenge to state sovereignty». RGSL Research Papers, No. 6, Riga Graduate School of

Law. Available at: http://www.rgsl.edu.lv/uploads/files/RP_6_Zenovic_final.pdf