Humanness as a Protected Legal Interest of Crimes Against Humanity. Conceptual and Normative Aspects (FM) (original) (raw)
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Humanness as a Protected Legal Interest of Crimes against Humanity - Chapter 1 - Introduction
Humanness as a Protected Legal Interest of Crimes Against Humanity. Conceptual and Normative Aspects, 2019
It is difficult to find a more ambiguous and multifaceted category than the concept of humanity. There are several definitions of the term; however, no integral comprehensive interpretation of the concept exists in law. There can hardly be more topical an area in the conceptual realm of “humanity” than the question of its role and influence on the legal theories of crimes against humanity. This chapter introduces the main problem analyzed in the book: absence of the exact definition of what exactly constitutes the central protected interest of crimes against humanity, i.e., humanity. The chapter poses several substantive questions, notes some etymological issues related to humanity, formulates the main purposes of the monograph and briefly describes the main points of the discussion in each subsequent “substantive” chapter. It points out one of the monograph's key aims which is to re-examine and assign to the notion of humanity its proper place within the contemporary understanding of crimes against humanity, and propose a comprehensive conceptual and normative concept of humanity, in light of German Rechtsgutsheorie and social contract doctrine.
Humanness as a Protected Legal Interest of Crimes Against Humanity. Conceptual and Normative Aspects, by Rustam Atadjanov, T.M.C. Asser / Springer, 2019
This chapter discusses the existing legal theories of crimes against humanity. It breaks the analytical classification into two sub-categories (conceptual and normative) and further proceeds to laying out the conceptual grounds for the proposed theory of humanness. The chapter also explains what the expression “a theory of crimes against humanity” means, i.e., it tries to clarify what key components such a theory has to possess. In this case, those components would be the theory's “purpose” and “justification”. Chapter 4 furthermore looks at how the relevant criminal law doctrines were or were not used in the considered theoretical normative descriptions, and suggests in which direction they would be better off going, with a view to providing a more comprehensive view. At the end the chapter offers a preliminary assessment of the relationship, or correlation, between the constituent elements of humanness and the individual acts of crimes against humanity as well as the so-called “contextual element” as established in the Rome Statute of the ICC.
Humanness as a Protected Legal Interest of Crimes Against Humanity. Conceptual and Normative Aspects, by Rustam Atadjanov, T.M.C. Asser / Springer, 2019
A theory of crimes against humanity needs to consist of both conceptual and normative foundations as argued in the preceding chapter. This chapter deals with the normative part of the theory of humanness. It considers the major relevant aspects and consequences flowing out of the application of the doctrine of Rechtsgutstheorie including its functions in the law. It further contains a consideration of the past and ongoing criticism of the Rechtsgutstheorie in legal literature as well. Then, the abovesaid elements of the doctrine, namely, its relevant aspects, functions and consequences are reviewed on the matter of whether the definitional scope of the doctrine allows for the inclusion of “humanity” in the normative list of Rechtsgüter (i.e., legal interests). The reasons why the answer here would be “yes” are explained within the analytical exercise in the last section of the chapter. That exercise consists of two main parts: the analysis of humanity as a Rechtsgut and review of legal consequences of Rechtsgutstheorie in terms of the theory of humanness. Finally, the chapter is not limited to the argumentation in support of normatively justifying the criminalization of the gravest attacks against humanity as crimes against humanity at the domestic state level; it also contains the initial reasoning on such justification at the international level using the fundamental premise of the Rechtsgutstheorie as a social contract doctrine.
Humanness as a Protected Legal Interest of Crimes Against Humanity: Chapter 7 - Conclusion
Humanness as a Protected Legal Interest of Crimes Against Humanity. Conceptual and Normative Aspects, by Rustam Atadjanov, T.M.C. Asser / Springer, 2019
“Crimes against humanity are as old as humanity itself.” This rather well-known phrase has been in popular use by those who research issues related to crimes under international law. It demonstrates, once more, the long-lived nature of the essential concepts dealt with here in the present book such as humanity and crimes against humanity. Obviously, what Graven meant here by “crimes against humanity” was not a strictly legal denomination of the type of crimes as we know it in law but rather what another author titled a “moral concept”. But it is precisely the first connotation that has been of interest to me in this book, i.e., the “crimes against humanity” as a legal category.
Humanness as a Protected Legal Interest of Crimes Against Humanity. Conceptual and Normative Aspects, by Rustam Atadjanov, T.M.C. Asser / Springer, 2019
This chapter deals with comparing the protective scope of crimes under international law (genocide, war crimes and aggression) with protected legal interests of crimes against humanity. The aim here is try to reveal the problematic areas in that scope, and analyze whether and how the conceptual theory of humanness offered in Chap. 4 could be instrumental – or not – in clarifying those problematic elements. In that vein, the chapter first looks at the basic differences between crimes against humanity and other core crimes as those inevitably affect their respective protective scopes. It then moves on to reviewing the exact protected values of each group of core crimes: genocide (three dimensions of interests), war crimes (considerations of humaneness and other values) and the crime of aggression (peace, security and well-being of the world), and to how the proposed conceptual view of humanness helps in clarifying, or otherwise, the protective scopes of crimes under international law.
Humanness as a Protected Legal Interest of Crimes Against Humanity. Conceptual and Normative Aspects, by Rustam Atadjanov, T.M.C. Asser / Springer, 2019
This chapter introduces the explanations of the substantive meanings that the term “humanity” contains, with a view to avoiding etymological complications and to be clear from the beginning. It then proceeds to assigning the most relevant definitions for the purposes of this book. The working definitions for the following key terms are offered: “humanity”, “laws of humanity” and “principle of humanity”. That allows to compare more precisely the related basic concepts regularly figuring in the following chapters and to serve as a starting point in describing the major differences and important links between them. Additionally, I attempt to clarify such terms as “humanitarian considerations”, “fundamental standards of humanity” as well as the “principle of humanity” as a guiding principle of humanitarian action. Moreover, the abovesaid comparison is instrumental in laying out the working hypothesis that will subsequently undergird the whole monograph. Eventually, the chapter explains why analyze the concept of humanity as a constituent element of the law of crimes against humanity in the first place.
Humanness as a Protected Legal Interest of Crimes Against Humanity. Conceptual and Normative Aspects, by Rustam Atadjanov, T.M.C. Asser / Springer, 2019
This voluminous chapter looks at relevant conceptual developments in major civilizations and societies in human history, attempting to determine what exact content was ascribed to the meaning of “humanity” as understood in those cultures, and also how it evolved over time. It then discusses whether “laws of humanity” can be considered as an independent source of law in their own right and whether or not there is an already existing autonomous legal rule flowing out of that source. The main focus is on how and with what content the idea of humanity has become established in international law. Chapter 3 is divided into two parts, with the first one focusing on the developments before the first true codification of crimes against humanity in the Nuremberg Charter, and the second one concentrating on the most important evolution stages of the international law of crimes against humanity after the adoption of the Charter. The humanitarian considerations informing the principle of humanity as concerns the law of war are also briefly described. The conclusion summarizes the main results of the historical overview which will then serve as the basis for the theory laid out in the subsequent chapters of the monograph.
The Concept of Humanity in International Criminal Law
Central Asian Yearbook of International Law and International Relations, 2022
It is difficult to find a more ambiguous and multifaceted category than the concept of humanity. This is all the more striking considering its widespread appearance and countless invocations in legal, political, ethical, social and cultural spheres, expressly or otherwise. Among the words several different connotations are mankind, humaneness, human dignity and human nature. But there is no explicit or accepted definition of the term “humanity” in international legal documents or in relevant case law. Often used in the legal literature, first of all with reference to the famous Martens’ Clause, the concept of “humanity” does not yet have a comprehensive formulation in international criminal law or in other relevant branches of law, for that matter. To tackle the issue, the present article argues that in order to properly assess the role of such a multifaceted but subjective notion in the law dealing with international crimes, it first needs to be considered from a wider perspective, i.e., from the point of view of international law, so as to facilitate its analysis from a more focused perspective, namely, with a view to better understanding a particular category of crimes under international law. After a very brief study, several conclusions are offered. One of them is that the notion of humanity found itself constantly reinstated in different civilizations and societies under various formulations and sometimes containing starkly differing elements but always embodying the same fundamental and basic values, or humanitarian sentiments. Another conclusion concerns the legal aspects of the concept: neither humanity nor its related notions (“principle of humanity”, “laws of humanity”) carry a strictly legal nature – in the sense of understanding a legal norm, rule or principle. But the so-called elementary considerations of humanity belong to certain general and well-recognized principles, which are exacting both in peacetime and war and upon which the state obligations are to be based. Finally, no other category of crimes is so closely related to the idea of humanity as the category of crimes against humanity. They are harmful to human beings’ most fundamental interests. Therefore, to describe them as the umbrella concept encompassing all those interests has to be fundamental and comprehensive, too. The article offers such a concept: “humanity” under the context of international criminal law and the law of crimes against humanity should be understood as “humanness”, or the status/quality of being human. Crimes against humanity attack humanity as such; hence, their title is justified and needs no replacement. Moreover, this interpretation not only encompasses all sub-elements of humanness but, furthermore, makes it possible to develop a holistic theory of crimes against humanity that reflects and explains these crimes’ unclear protective scope. That theory preliminarily labelled “the theory of humanness” (and laid out by the author in more detail elsewhere) enables us to answer not only the conceptual question of “what is humanity?” but also the normative one, i.e., why crimes against humanity must be criminalized and prosecuted.
Rustam Atadjanov, "Humanness as a Protected Legal Interest of Crimes against Humanity: Conceptual and Normative Aspects" (International Criminal Justice Series), T.M.C. Asser Press / Springer, 2019
This splendid book began in December 2013, over a cup of tea at my friend Rustam Atadjanov´s apartment in Tashkent. At the time, both of us were legal advisers at the ICRC Regional Delegation in Central Asia, I just defended my Dr. iur. thesis on the crime of aggression in international criminal law (ICL), and Rustam was contemplating a doctorate. As we were discussing gaps in ICL, in search for a possible thesis topic for Rustam, there emerged a number of questions: what exactly is this "humanity" against which "crimes against humanity" are directed? Why include a philosophical notion in a central concept of ICL, which must be sufficiently specific, by virtue of the principles of legality and legal certainty? What to do about the multiplicity of meanings of the word "humanity"? Which of those distinct meanings is implied in the concept of crimes against humanity? Why did the authors of the term not opt for an alternative, more "measurable" term for example, "crimes against the civilian population"? What is the relationship between "crimes against humanity" and "the laws of humanity" referred to in the Martens Clause? As the discussion progressed, it became quite clear that Rustam did identify a topic for his future thesis. Next year, both of us left the ICRC, with an interval of four months: I assumed my current academic position at KIMEP University in Almaty, and Rustam embarked, with his natural curiosity and hard-working attitude, on a challenging academic journey, which would result in this book.
Crimes Against Humanity: Global Justice and the Human Rights Discourse
Vniversitas, 2014
The human rights discourse has been justified by the need to move pastthe restrains and impunity that arose from nationalism and citizenshiprights. Although international criminal law has recently been imaginedas the scenario or theatre to reinforce the existence of a ‘political communityof justice’ based on our common humanity, it has not been ableto displace the concept of state sovereignty. This shows how our ‘naturalindifference to others’ is not overcome by the simple use of language,by the subscription of covenants or by the creation of institutions andmechanisms for the adjudication of justice.