Concept of Crimes against Humanity


The concept of crimes against humanity dates back to the mid-19th century, although the first list of such crimes was drawn up at the end of the First World War, they were not enshrined in an international instrument until the Charter of the Nuremberg Tribunal was drafted in 1945.


The crimes against humanity identified in this Charter were recognised the following year as part of international law by the UN General Assembly and were included in subsequent international instruments, such as the statutes of the international criminal tribunals for the former Yugoslavia and Rwanda.


Crimes against humanity were first defined in an international treaty when the Rome Statute of the International Criminal Court was adopted on 17 July 1998 and signed by Venezuela.


The Statute distinguishes ordinary crimes from crimes against humanity over which the Court has jurisdiction, on the basis of the following criteria:


  1. Acts that constitute crimes against humanity, such as murder, must have been committed as part of a widespread or systematic attack. However, the term ‘attack’ does not denote military aggression, but can apply to laws and administrative measures such as deportation or forcible transfer of population.
  2. Crimes against humanity must affect a civilian population. Isolated acts or acts committed in a scattered or random manner are therefore excluded. The presence of soldiers among the civilian population is not sufficient to deprive the civilian population of its civilian character.
  3. Their commission will be the result of the policy of a State or an organisation. The perpetrators may be agents of the state or persons acting at its instigation or with its consent or acquiescence, such as so-called ‘death squads’. These organisations include rebel groups.


Among the subjective elements of crimes against humanity, the Rome Statute of the International Criminal Court does not provide for a sui generis discriminatory element, in the sense that the attack or harmful act is directed at a civilian population on national, political, racial or religious grounds, which has been confirmed by the jurisprudence of the International Criminal Court, which has ruled that there is no need for a discriminatory element as an essential aspect of the mens rea of crimes against humanity, as well as the irrelevance of the motives for their commission.


However, this element is necessary in the specific case of the crime contemplated in Article 7(1)(h), which provides for the persecution of a group or collectivity with its own identity based on political, racial, national, ethnic, cultural, religious or defined gender grounds.


It also requires, for its proper subsumption as a crime against humanity, the so-called specific intentionality that presupposes its commission with knowledge of an act or acts against the protected legal right, for example, life, physical and moral integrity, hence a greater degree of moral gravity is attributed to them, i.e., what transforms an individual act into a crime against humanity is its inclusion in a broader framework of criminal conduct, so that the personal motives that could encourage the perpetrator to commit it are irrelevant.


Finally, crimes against humanity are common crimes of the utmost gravity, characterised by the fact that they are committed in a biased and premeditated manner, with the aim of destroying, in whole or in part, a specific human group, for reasons of culture, race, religion, nationality or political conviction. They are also recognised for being continuous crimes that can be externalised on a massive scale.


Concept of Crimes against Humanity according to the Supreme Court of Justice (TSJ)


The Constitutional Chamber of the Supreme Court of Justice of Venezuela ruled on crimes against humanity that affect the legal sphere of human rights in judgment number 315 of 6 March 2008, in which it established the following:


The State shall be obliged to investigate and legally punish crimes against human rights committed by its authorities.


Actions to punish crimes against humanity, serious human rights violations and war crimes are not subject to any statute of limitations. Human rights violations and crimes against humanity shall be investigated and tried by the ordinary courts. Such crimes are excluded from the benefits that can lead to impunity, including pardon and amnesty.


The aforementioned mandate, of irrefutable transcendence, contains several rules that must be distinguished in order to avoid terminological imprecision.


The first of these is in the heading: the state's duty to investigate and legally punish crimes against human rights committed by its authorities.


Strictly speaking, the precept does not disregard the intrinsic duty of the state to investigate and punish any crime, but rather reaffirms its special obligation to investigate crimes against human dignity committed by its authorities, who are precisely those who must watch over the security and integrity of citizens.


Thus, the reading of the precept, and it cannot be otherwise, is that the State must investigate and punish crimes against human rights, whoever the authority - its official - who has committed them may be.


In development of this idea, it should be said that, as is well known, human rights are the concrete expression of respect for the human condition, which demand indispensable conditions from the State in order to raise human dignity to its maximum expression; this explains why all systems of protection of these rights hold governments responsible for possible violations.


It follows that it is persons in authority who, in principle, can be responsible for violating human rights, since it is the official's position, his or her power, which is the connecting thread between the agent's action and the responsibility of the state; however, such an affirmation is subject to exceptions as a result of the exceptions to the rule of law,


However, this affirmation is subject to exceptions resulting from acts that violate human dignity committed by persons who lack authority but who do, in some way, have the backing or simple tolerance of the state.


In these cases, under similar parameters, the rules that the national legal system has stipulated for the protection of human rights and even the rules of the international system for the protection of human rights apply to those persons who are not civil servants but who act under the incentive, acquiescence, tolerance or acceptance of the government, since in both cases the essence is the same: by action or omission there is a deviation of public authority, a distortion of the state's role, which is supposed to be at the service of the human being.


It is essential to be clear about this, because in social constitutionalism there is a tendency to make an expansive inscription of human rights in the Constitutions, which has led to a growing and, therefore, increasingly real juxtaposition between fundamental rights (positivised human rights) and human rights; our Constitution of the Bolivarian Republic of Venezuela is an example of this.


Title III of the Fundamental Text, which includes the Bill of Rights, is entitled ‘On Human Rights and Guarantees, and Duties’, while the precept contained in Article 22 - located in that title - extends human rights beyond those contained in our Constitution and in international instruments when it indicates that


‘The enunciation of the rights and guarantees contained in this Constitution and in international human rights instruments should not be understood as a denial of others which, being inherent to the person, do not expressly appear in them’;


However, the maximum example of this is provided by Article 23, eiusdem, when it states that:


‘[t]he treaties, covenants and conventions relating to human rights, signed and ratified by Venezuela, have constitutional hierarchy and prevail in the internal order, to the extent that they contain norms on their enjoyment and exercise that are more favourable than those established in this Constitution and in the laws of the Republic, and are immediately and directly applicable by the courts and other organs of the Public Power’.


The above-mentioned precepts illustrate that the dividing line between human rights and constitutional rights, a former expression of the tensions and tensions between the different philosophical foundations of human rights, is becoming a thing of the past.


Between us, they start from the same foundation to the point of confusion, except that the transgression of human rights by persons without authority (although in these cases it is more appropriate to speak of the transgression of fundamental or constitutional rights), would imply a civil, criminal or administrative offence, etc., except in the case of conduct sponsored, endorsed or tolerated by the government.


Thus, although Title III of the Constitution of the Bolivarian Republic of Venezuela classifies all constitutional rights as human rights, not every violation of those rights, for the purposes of determining the applicability of Article 29 eiusdem, can be considered a violation of human rights; only transgressions of those same rights committed by authorities of the Venezuelan State and based on their authority, or by persons who, although not necessarily authorities, act with the consent or acquiescence of the State, which excludes any crime committed by an official without using his or her power of authority, that is, as a private individual, will be considered a transgression of human rights.