60 years after the UN Convention - Dag Hammarskjöld Foundation

do we need an alternative to the concept of genocide? 147
populations, before or during war; or persecutions on political,
racial or religious grounds in execution of or in connection with
any crime within the jurisdiction of the Tribunal, whether or not
in violation of the domestic law of the country where perpetrated
(Quigley 2006: 5-6).
Owing to the general historical context of the Nuremberg process of
identifying the mass crimes of the Nazi regime, the concept of ‘crimes
against humanity’ was associated with the more established categories
of ‘war crimes’ and ‘crime of waging aggressive war’. Thus whereas
the (unforeseen) outcome of the court statute was ‘that crimes against
humanity legally required the background of an international armed
confl ict’, the Genocide Convention did not. This is one reason why
during the post-war era crimes against humanity became increasingly
assimilated to the mass crimes associated with the Genocide Convention.
However as Quayle also argues, under the jurisdiction of the International
Criminal Court (ICC), ‘that link with international war is
no longer needed’, and peacetime atrocity is consequently ‘no longer
beyond the reach of the law’ (Quayle 2005: 371).
Reviewing recent tribunal case histories Quigley notes that despite
a certain amount of conceptual overlap, the tribunals have generally
treated crimes against humanity and genocide as separate off ences.
Their proceedings, moreover, have not treated either crime as an aggravated
form of the other:
As one international tribunal said, ‘where the culpable conduct was
part of a widespread and systematic attack specifi cally against civilians,
to record a conviction for genocide alone does not refl ect the
totality of the accused’s culpable conduct’. In that circumstance, a
genocide conviction for a crime against humanity alone would not
refl ect the large number killed. On the other hand, a conviction for a
crime against humanity alone would not refl ect the intent to destroy
the group of which the victims were members (Quigley 2006: 13).
In other words crimes against humanity, such as ‘murder’, ‘persecution’
21 and ‘extermination’, 22 involve a widespread attack against
a large civilian population without the intent to destroy a group as a
separate and distinct entity. Moreover, the crimes against humanity
21 In terms of paragraph 2 (g) of the Rome Statute: ‘Persecution means the intentional
and severe deprivation of fundamental rights contrary to international law by reason of
the identity of the group or collectivity’.
22 Paragraph 2 (b) of the Rome Statute: ‘“Extermination” includes the intentional infl iction
of conditions of life, inter alia the deprivation of access to food and medicine,
calculated to bring about the destruction of part of a population’.