Towards a Single and Comprehensive Notion of ‘Civilian Population’ in Crimes against Humanity

in International Criminal Law Review
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Although an essential element of the definition of crimes against humanity is that a civilian population be targeted, there is no agreement on what ‘civilian population’ means in this context. The notion has been given different meanings depending on whether the crimes are committed in times of conflict or peacetime. In times of conflict, preference is given to a broad approach based on international humanitarian law. More problematic is the attribution of a specific content to the notion in peacetime, where even discrimination has been suggested as a defining criterion. In this article we contend that a single notion of civilian population in crimes against humanity applicable in every circumstance is needed. Hence, we suggest determining the civilian population on the basis of the rules on State responsibility in international human rights law and general international law in order to exclude those endowed with public authority from the civilian population.

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  • 23

    Henckaerts and Doswald-Becksupra note 6 p. 13. Likewise while in the power of the enemy they shall not become pow although they shall be treated as such: ‘They shall however receive as a minimum the benefits and protection of the present Convention’ (Article 33 gciii).

  • 25

    Henckaerts and Doswald-Becksupra note 6 p. 6. Emphasis added.

  • 27

    Henckaerts and Doswald-Becksupra note 6 p. 19.

  • 32

    Wattssupra note 24 p. 148.

  • 36

    Henckaerts and Doswald-Becksupra note 6 p. 19. It adds that ‘most manuals define civilians negatively with respect to combatants and armed forces and are silent on the status of members of armed opposition groups’. A few years later another research of the icrc was a bit clearer: ‘all persons who are not members of State armed forces or organized armed groups of a party to the conflict are civilians and therefore entitled to protection against direct attack unless and for such time as they take a direct part in hostilities’ (Nils Melzer Interpretative Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (icrc Geneva 2009) p. 36).

  • 42

    Meyrowitzsupra note 39 p. 281.

  • 47

    Ambos and Wirthsupra note 40 p. 22.

  • 61

    Werlesupra note 39 p. 222; Ambos and Wirth supra note 40 p. 22.

  • 66

    Werlesupra note 39 p. 222; Bollo Arocena supra note 39 p. 98; Fenrick supra note 46 p. 86.

  • 74

    Werlesupra note 39 p. 223; see also María Torres Pérez La responsabilidad internacional del individuo por la comisión de crímenes de lesa humanidad (Tirant lo Blanch Valencia 2008) p. 127.

  • 96

    Gil Gilsupra note 62 p. 124–125.

  • 112

    As held by the United Nations‘it is clear that the application of human rights standards to non-State actors is particularly relevant in situations where they exercise some ­degree of control over a given territory and population’seeun/unhcrInternational Legal ­Protection of Human Rights in Armed Conflicts (hr/pub/11/01) p. 25.

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