Legal Concepts

Most serious international crimes

What is genocide?

Genocide, along with crimes against humanity and war crimes, are considered serious international crimes. Genocide is defined as committing any one or more of five types of acts when the act is done with the intent “to destroy, in whole or in part, a national, ethnic, racial or religious group, as such”.

The five prohibited acts are: 1) killing members of the group, 2) causing serious bodily or mental harm to members of the group, 3) deliberately inflicting conditions of life on the group intended to physically destroy its members in whole or in part, 4) imposing measures that prevent births within the group and 5) forcibly transferring children of the group to another group.

The crime of genocide does not require a plan or policy, though the existence of either may be evidence of the intent to destroy the group. There is no minimum number of victims necessary to establish genocide, but the part of the group targeted for destruction must be significant enough that its destruction will impact the group as a whole.

What is a war crime?

War crimes, along with crimes against humanity and genocide, are considered serious international crimes. A war crime is defined as an act carried out during armed conflict that violates the international rules of war, also known as international humanitarian law. International humanitarian law regulates how wars are conducted. It is based on fundamental principles, including the prohibition of military actions that may cause excessive injury, death or damage in relation to the anticipated military advantage; the distinction between combatants and civilians; and the avoidance or minimisation of harm to the civilian population. An act that violates these principles is a war crime.

War crimes can be committed against civilians, civilian property, combatants and combatants no longer directly involved in fighting during an international or non-international armed conflict. An international armed conflict happens when a state uses force against another state. A non-international armed conflict is a domestic conflict involving one or more armed groups fighting each other or the forces of the state.

What are crimes against humanity?

Crimes against humanity, along with war crimes and genocide, are considered serious international crimes. A crime against humanity is defined as an act committed as part of a widespread or systematic attack on a civilian population in a single location or across a territory. Any act of violence or serious mistreatment of a civilian population can be considered an attack for this purpose.

The attack must be either widespread or systematic. An attack is widespread depending on the scale of the attack and the number of victims, as well as the cumulative effect of the criminal acts or the impact of a single act of extraordinary magnitude. The geographical scale, temporal scope, and number of targeted persons are all relevant in determining if an attack was widespread.

An attack is systematic if it involves organised acts of violence, which did not occur randomly such as when security forces act in a coordinated manner across the country.

What is the crime against humanity of imprisonment?

The crime of imprisonment involves the arbitrary deprivation of a person’s liberty or the detention of a person without due process of law.

Whether the deprivation of liberty is arbitrary will depend on a number of factors such as whether: 1) the detention was based on a valid detention order; 2) the detainee was informed of the reasons for her/his arrest; 3) the detainee was promptly and properly informed of any charges against her/him and/or formally charged; 4) the detainee was informed of her/his procedural rights, including access to a lawyer; and 5) the detainee was brought before a court that is independent, impartial and objective.

Mere “suspicion” is therefore not a lawful basis to justify the deprivation of liberty. Similarly, an individual cannot be detained because she/he is a political activist, a family member or associate of a political activist or affiliated with a certain religion, nationality or ethnicity.

What is the crime against humanity of enforced disappearance?

The crime of enforced disappearance involves the deprivation of a person’s liberty through arrest, detention or abduction, followed by the refusal to give information as to the whereabouts or fate of the person, or to acknowledge that the deprivation of liberty has occurred. Enforced disappearances are carried out by, or with the authorisation, support or acquiescence of, a state or an organisation with state-like powers.

An initially lawful arrest or detention can turn into an enforced disappearance if information about the whereabouts of the detained person is withheld. Giving false information about the whereabouts or fate of a person may also constitute a refusal to provide information. Under such circumstances, a detainee has no access to legal remedies or procedural guarantees and her/his loved ones do not know where the victim is or what has happened to her/him.

What is the crime against humanity of torture?

The crime of torture involves the infliction, by act or omission, of severe pain or suffering upon a person. This can be mental or physical, and does not have to result in permanent harm, but must cause more than temporary unhappiness, humiliation or embarrassment. Whether an act constitutes torture will depend on a number of factors such as: 1) the duration of the suffering; 2) the physical or mental condition of the victim; 3) the effects on the victim; 4) the nature and context of the pain caused; and 5) the manner or method used. Examples of acts that have been found to amount to torture include physical beatings, electric shocks, burnings, deprivation of sleep or food for a long period of time, threats to kill a person’s relatives, and forced witnessing of harm committed against others. Rape and sexual violence are considered, by their nature, to constitute severe pain and suffering.

The definition of the crime of torture can vary depending on the jurisdiction. For example, the Rome Statute of the International Criminal Court requires that the intentional infliction of severe pain or suffering is committed upon a person in the custody or under the control of the alleged torturer. At other international courts, the severe pain or suffering must be carried out in order to attain a certain result or purpose, such as obtaining information or a confession from the victim or for any reason based on discrimination. Some domestic jurisdictions limit the crime of torture to situations where the severe pain or suffering is intentionally inflicted by a public official or a person acting in an official capacity.

What are the crimes of deportation and forcible transfer?

Forcing persons to leave the area where they reside can be a crime against humanity, a war crime or both.

If they occur in the context of a widespread or systematic attack again the civilian population, deportation and forcible transfer are crimes against humanity. Deportation and forcible transfer occur when individuals are forced by expulsion or coercion from the place they were lawfully present, and there was no basis under international law for their displacement. When persons are displaced across an international border, it is called deportation. When such displacement occurs within a national boundary, it is called forcible transfer. Forced displacement does not require physical force and can be caused by the threat of force or coercion, duress or psychological oppression. A person is lawfully present in an area if they have a right under domestic or international law to be there, including refugees and stateless persons. International law allows the involuntary removal of persons only where it is strictly for the security of the persons or for imperative military reasons, but only for as long as the removal is necessary.

Unlawful deportation or transfer can also be a war crime when occurring in the context of an international armed conflict or a non-international armed conflict.