Crimes Against Humanity: A Category Hors Concours in International Criminal Law?

Amsterdam Law School Research Paper No. 2012-24

Amsterdam Center for International Law No. 2012-06

General Subserie Research Paper No. 2012-03

1 Pages Posted: 17 Feb 2012 Last revised: 17 Apr 2013

Date Written: February 15, 2012

Abstract

This essay argues that the position of the State is pivotal for a clear understanding of crimes against humanity. By either actively oppressing its own citizens, or by blatantly failing to protect them against such systematic violence, the state forsakes its primary duty to protect its nationals and forfeits its sovereign claims. This provides the prime justification for the international community to pierce the sovereign veil and take over powers of criminal law enforcement.

Taking stock of the two principles – security principle and international harm principle – which Larry May has developed to gauge the legitimacy of international interference in the realm of criminal law enforcement, the author argues that the security principle actually encapsulates the international harm principle. The oppression by the state of its own population bereaves that population from a vital capacity – to engage in politics – and arouses the concern of all humanity, because the essential destruction of the political realm reflects upon us all.

Assuming that the international community has a right to intervene in case of crimes against humanity, it still requires explanation why international tribunals should engage in criminal law enforcement. If one is prepared to accept that norm expression is an important aim of international criminal justice, it follows that one should also accept the primacy of international criminal tribunals, at least as far as crimes against humanity are concerned. Norm expression requires that courts write historical accounts and international tribunals are better equipped than domestic courts to do this, as the former are better able to resist the temptation of getting involved in partisan disputes.

Keywords: Crimes against Humanity, security principle, international harm principle, norm expression, history in the courtroom

JEL Classification: K33, K14

Suggested Citation

van der Wilt, Harmen G., Crimes Against Humanity: A Category Hors Concours in International Criminal Law? (February 15, 2012). Amsterdam Law School Research Paper No. 2012-24; General Subserie Research Paper No. 2012-03. Available at SSRN: https://ssrn.com/abstract=2005728 or http://dx.doi.org/10.2139/ssrn.2005728

Harmen G. Van der Wilt (Contact Author)

University of Amsterdam - Faculty of Law ( email )

Amsterdam, 1018 WB
Netherlands

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