Are Crimes Against Humanity More Serious than War Crimes?

Abstract

This paper addresses the question of the relative gravity of crimes against humanity vis-a-vis war crimes. The issue is tackled from a double perspective. First, the categories of genocide, crimes against humanity and war crimes are compared at the general or legislative level. The analysis is mainly based on international treaties and other instruments that consider these crimes from the viewpoint of their diverse nature. The author concludes that it seems possible to infer that genocide and crimes against humanity are considered more serious than war crimes. Secondly, the paper focuses on the judicial and sentencing implications of the determination of the degree of gravity of crimes. In this perspective, it examines Nuremberg and post‐Second World War jurisprudence as well as case law of the International Criminal Tribunals for the former Yugoslavia and Rwanda. The issue of national regulations concerning penalties applicable to the different categories of crimes is then tackled. This section of the paper also confirms that there is room for concluding that crimes against humanity are considered more serious than war crimes. However, the author stresses that, at the present stage of evolution of international criminal law, any possible answer can only be tentative.

Keywords: war crimes, crimes against humanity, genocide, ICTY, gravity, sentencing, hierarchy of crimes