Journal of International Criminal Justice Advance Access originally published online on March 11, 2009
Journal of International Criminal Justice 2009 7(1):5-16; doi:10.1093/jicj/mqp004
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Violence and Massacres — Towards a Criminal Law of Inhumanity?
*Professor of Law, Collège de France, Paris; Member of the Advisory Board of this Journal. The article has been translated from French by Iain L. Fraser. [mdelmas-marty{at}libertysurf.fr]
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Abstract |
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The law's responses to massacres seem to vacillate between two models: (i) the model of the ‘criminal law of the enemy’ inspired by the national criminal law and rendered topical again by the attacks of September 11; (ii) the model of the ‘criminal law of inhumanity’ symbolized by the paradigm of crimes against humanity. The latter model is better suited to take account of the qualitative dimension of massacres, i.e. the fact that they, besides being mass offences (quantitative criterion), also offend against humanity. To establish a ‘criminal law of inhumanity’ as a model with a universal, or universalizable, dimension, three conditions are necessary, which concern (i) the definition of the crimes, (ii) the assignment of responsibility and (iii) the nature of the punishment. As for the definition of the crime, one could implicitly deduce from the list of acts constituting crimes against humanity (Article 7 of the International Criminal Court Statute) that humanity so protected has two inseparable components: the individuality of each human being, not reducible to membership in a group, and the equal membership of each in the human community as a whole. With regard to the second condition, it is not sufficient to hold responsible the de jure or de facto leaders; intermediaries and perpetrators, at all levels of hierarchy, must also be held accountable. As for the third condition, it is not sufficient to content oneself with the watchword of the fight against impunity without bringing up the nature and functions of the punishment; hence the necessity not only to rethink the role ‘criminal’ law can play in a policy of punishment, but also to focus on prevention, reparation and reconciliation. Finally, the author suggests that the proposed model of a ‘criminal law of inhumanity’ must be built through the interplay between municipal law and international law. On the one hand, the wealth of national legal systems — also with regard to penalties and responsibility — should be better integrated into international criminal justice; on the other, national criminal systems should be better adapted to conditions of international law, through the introduction into domestic law of the definitions of the crimes and also the rules for assigning criminal responsibility.