Human rights, the crimes against humanity law, and misopathy

The historical event that certain disease populations have faced constitutes a mass human rights violation.

The name of the law

There is a seeming ambiguity over whether the law's name means:

  1. "crimes against human-NESS" and similar, such as alluded to in "inhuman" and "inhumane", or
  2. "crimes against mankind" or related

The first appears to have been intended, but I have seen both on NGO websites, in scholarship, and so on.2 Arguably both can be said to apply.3

The name of the law is plural. The law covers many crimes. A perpetrator only has to commit one of them, in context, to be convicted of CAH.

Basic facts

CAH are human rights crimes. They have been described as "an altogether different order is broken".4

In general, the crimes are not random, accidental, or isolated. There is a bigger picture.

Variation

CAH versions vary, evolve, and are fluid. I will get to that.5

Versions

There are versions of the law at international and national levels. Possibly more than 100 versions. Special UN courts have also been created for specific events.

These typically punish INDIVIDUAL perpetrators. Inter-American Court of Human Rights can rule against STATE perpetrators on CAH. Individuals can make accusations.

That is not to imply that punishment is the only goal of the law. Stopping and preventing the broader event are not lost on the human rights community, including drafters.

National versions

A list of national versions of CAH is at Human Rights Watch. You can click on each country to get the text.

Note that some versions are stricter and some are looser. Denmark has a law that covers CAH. It praises the King in a preamble. The US version requires widespread AND systematic where the UN version requires widespread OR systematic.

You might find that Canada's version, the Crimes Against Humanity and War Crimes Act, covers more than the UN version.

There are many national versions.

Special legal properties

Crimes against humanity has special legal properties that only a small number of laws have.

Non-derogability is one of the special legal properties.

Another special property is that a nation's judicial system can investigate and prosecute crimes against humanity even if they were not committed in its territory.

The idea of this type of jurisdiction is that there is no safe haven for perpetrators.

It has been used by many states, but I don't know whether it has been used for CAH.

With these properties, national versions can become even more potentially interesting.

Can corporate officers be prosecuted?

Can corporate perpetration of genocide, crimes against humanity, and war crimes (atrocity crimes) be investigated and prosecuted before the International Criminal Court (ICC)? The answer is conditionally affirmative with respect to corporate officers responsible for their company’s criminal conduct.

— https://harvardilj.org/2016/07/corporate-liability-under-the-rome-statute/

Please see also: https://www.justsecurity.org/46242/corporate-liability-crimes-humanity/

Rome Statute and ICC

What follows is a bunch of sections on one version of the law.

It probably is not the first version for most victim populations to try, but it is the best-known modern version.

International Criminal Court

One international version of the law is covered by the International Criminal Court (ICC).6

ICC is not the same as the similar-sounding ICJ,7 which is for disputes among nations. There is a myalgic encephalomyelitis definition sometimes called ICC (International Consensus Criteria). I call that MEICC.

The ICC is semi-independent of the UN. Individuals can accuse. There is no death penalty.

ICC jurisdiction

ICC website says:

The ICC is intended to complement, not to replace, national criminal systems; it prosecutes cases only when States do not [sic] are unwilling or unable to do so genuinely.

The ICC has been called a court of last resort.

I will talk about the ICC version, but national versions should not be dismissed. They convict.

Rome Statute

The ICC version is from the Rome Statute (RS). This was adopted in 1998. A bunch of states got together in Rome.

The similar-sounding Treaty of Rome is not the same.

The RS CAH law's best-known sibling laws are war crimes and genocide. We can ignore all sibling laws for this post.

The Rome Statute crimes "shall not be subject to any statute of limitations". However, the ICC does not cover crimes committed before 2002.

Rome Statute law

The RS law can be partly found here. For the full version, try the ICC (PDF).

The framework in this version looks like this:

For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack

Some of the terms are potentially misleading. I will get to that.

Elements document

An elements of crimes (ICC) document was issued to clarify the RS law. I call it the elements document.

It is used in court. It says what you have to prove to convict. There is a general introduction, then you can skip to CAH. I have been told it is convincing.

Politics

The drafting of the Rome Statute was like a cage match. It would make the hair on your neck stand up. States tried to dodge consequences for their actions by making the law weak.

Rights of the accused

The ICC provides impressive rights of the accused.

NGOs push for rights of the accused, just as they push for enforcement. It would be hypocrisy not to.

Thus, perpetrators will be granted their human and democratic rights even though their victims weren't.

Does an attack have to be armed?

In the Rome Statute, "attack" does not have to be armed. A coalition of states wanted it to be, during drafting, but they lost the debate.

Today's law originated partly in a context of war crimes. It then transitioned to human rights. Older stuff might be more in line with armed conflict.8

Thus, military-sounding words like attack are mostly vestigial.9 CAH can occur in peacetime. Elements document says: "The acts need not constitute a military attack". The law lists non-military acts. And so on.10

What is an attack?

Just skim this section if you are fogged.

The Rome Statute says "'Attack directed against any civilian population' means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack" — http://www.un.org/en/genocideprevention/crimes-against-humanity.html.11

Is that "attack … attack" circular? (I asked Google, Esq., and all the papers came up sideways or upside down. True story.) Proooooobably not. Well, not really. Try replacing the second "attack" with "acts" or "course".12

Policy

"Attack" in the RS CAH law mentions "policy".

UN says "The plan or policy does not need to be explicitly stipulated or formally adopted and can, therefore, be inferred from the totality of the circumstances". — http://www.un.org/en/genocideprevention/crimes-against-humanity.html

"[P]olicy" requires a state or organization to actively promote or encourage.

Knowledge

We are still on the Rome Statute version.

You have to prove knowledge.13

You don't have to prove the perpetrator had knowledge of all characteristics of the attack or the precise details of the plan or policy.

Intent

Having a low bar for intent is a commonly-noted feature of CAH in general, but we are still talking about RS.

UN says "…it is not necessary to prove that there is an overall specific intent. It suffices for there to be a simple intent to commit any of the acts listed, with the exception of the act of persecution, which requires additional discriminatory intent."14

You don't need to share the goal of the attack.

I was just doing my job

There are a lot of things a perpetrator can do to be criminally responsible.

Modern CAH (RS version):

Article 25[^8] - Individual criminal responsibility

…

  1. Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;
  2. Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;
  3. For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;
  4. In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:
    • Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or
    • Be made in the knowledge of the intention of the group to commit the crime;
  5. In respect of the crime of genocide, directly and publicly incites others to commit genocide;
  6. Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person's intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose.

— https://www.icc-cpi.int/resourcelibrary/official-journal/rome-statute.aspx. My numbering.

End of Rome Statute and ICC stuff

We are done with RS now.

Have there been efforts instituted to track down remaining fugitives?

Yes.

States are obligated to protect

States are obligated to protect populations from crimes against humanity.

This is called responsibility to protect.

This entails prevention — INCLUDING protecting from incitement. I.e. governments have the responsibility to stop you from inciting CAH.

This seems to be a developing concept. It might only have political value at this time.

End of CAH-specific stuff

We are done with CAH-specific stuff.

The rest of this post concerns human rights and misopathy.

International community

If you encounter "the international community" in this context, it sometimes means "the human rights community".

It comprises ordinary folk, NGOs, judges, prosecutors, scholars, the UN, and so on.

The ethos is to do the right thing. If you need a lawyer, to be an elite, or to be in a politically favored or fashionable population, then something is wrong.

This ethos is definitely not everywhere, but some take it to heart. I believe it's a question of making good contacts.

UN

Many parts of the UN are relevant. As one example, there is a Special Rapporteur (SR) for crimes against humanity.15

NGOs

List of human rights NGOs on my not-favorite (because misopathy) wiki.

Any given NGO might be occupied dealing with a dictator someplace, but still might have amazing contacts.

I don't know this one and I am therefore not endorsing it. It is a random example just to show you that you don't have a Coke and Pepsi choice: https://cja.org/who-we-are/mission-and-history/.16

A little creativity uncovers more on the periphery. NGOs that do medical work, for example. And NGOs for related topics who might have connections.

Anti-misopathy NGO

There needs to be an NGO specifically to address misopathy.

Misopathy as a category of harm

Organized misopathy is the problem that created the CAH we are talking about.

We need the concept of misopathy and the word, so that we can talk about our enemy. We don't have organized misopathy as a crime of its own yet, but some of its concepts are scattered throughout international law.

Those concepts are being used, but they are not named as the sociopolitical phenomenon that they are.

The status quo is like talking about massing of troops on the border without having a concept or name for war. (Now try to defend your country.)

Misopathy is coherent, stable, and distinct. It is a sociopolitical phenomenon. We can rightfully say it exists like war or racism exist. It is time for the human rights community to directly acknowledge its devastation.

Misopathy as a developed concept

With a name and a concept come a focused body of scholarship, laws, and kitchen-table knowledge about the treatment of disease populations as illegitimate, burdens to society, and subhuman.

For some populations, the enemy is racism. For disease populations, the enemy is misopathy.

I want to ask my readers to consider using the word misopathy where it applies, in order to promote its acceptance and development as a concept.

The next section will give a concrete example of why.

Changes to the CAH law

There is a draft change to the crimes against humanity law in final stages as of 2019. A couple of groups are trying to get changes made to it.

In principle (<— key words), if we had pushed for it early and hard, organized misopathy could be added to the RS CAH law (i.e. an item in the list of acts), or as an RS law, even this year, to make the crime even more explicit.

That also would have entered organized misopathy into jurisprudence and made for enlightened discussion in the international community. Our exact problem would be front and center instead of scattered through law and partial.

When disease populations that are treated as illegitimate, burdens to society, or subhuman engage with the international community on misopathy, they will have more opportunities for getting that community on their side.

The knowledge that only victims have

Often those who have the diseases in question know deeply about the details of the persecution of them. They know about gaps in services. The human rights community does not appear to be aware of this enormous resource.

Human rights channels

Misopathy violates MANY human rights.

There are many human rights concepts, laws, tools, and contacts.

For non-CAH channels:

The right to health (RTH) law, basically covers the highest attainable standard of health without discrimination. It does not mean the right to be healthy.

Factsheet 31 is shortish and readable. It has quotable quotes.

You will find your violated rights in it. But also, those who develop the law need input (section).

Denied a place to lie down at a hospital emergency room despite your severe orthostatic intolerance? A short web form for the Americans with Disabilities Act (ADA) asks for your complaint in the US. Fill and click.

It says "Describe the acts of discrimination".

Canada has a human rights commission. You can make a complaint similar to the ADA one above.

The European Court of Human Rights gets 50,000+ or so applications per year. The link describes what it covers. They will ignore you if you don't dot every i. Individuals can accuse.

Pressure can be applied to enforce the disability treaty. It and many more can be used in CAH as international law. It needs to be more complete on health and misopathy.

Of course all of those also apply to RTH.

Have you emailed WHO? There is an email address for reporting medical human rights violations to the unit that covers exactly that. They likely do not know the scale and scope of the crisis.

National constitutions, such as Article 25 in Japan and something similar in Canada, might offer opportunities.

There are also things like Factsheet 21 on housing. Are health needs sufficiently addressed? The drafters are probably completely unaware of certain diseases.

Laws are developing all the time. Misopathy is grossly insufficiently recognized among those currently developing laws. Those influencing them need input (section).

I strongly oppose truth and reconciliation commissions for misopathic attacks. A clever form of further injustice cannot heal a society, or stop or prevent an attack.

Reparations

Reparations mechanisms exist. A paper at REDRESS might be relevant.

Some perpetrators will re-victimize victims as venal, but:

Reparations for human rights violations are not matters that depend on political will; they are clear legal obligations that emerge from international law, and States must act accordingly with that duty.

— Fabián Salvioli, Special Rapporteur on the promotion of truth, justice, reparations and guarantees of non-repetition to Human Rights Council, according to https://www.ohchr.org/EN/NewsEvents/Pages/ReparationsForVictims.aspx

Perhaps the more those treated as subhuman are acknowledged as human, the more society can address remaining misopathic human rights crises.

Conclusion

Please see disclaimers (section).

If you know smart and informed folk in relevant populations, I hope you will pass along this post.

Samuel

Postscripts

Disclaimers and request for factual corrections

I am not a lawyer. Facts could be wrong. A lot of this stuff could have changed since I began this post long ago (perhaps 16 years ago, but in m.e. time, so not impressive). I was not able to gather this stuff thoroughly.

Some think of human rights in terms of dealing with ongoing emergency victim cases as they arise. That is desperately needed — many victims are completely alone with no support — but not the goal in this post.

This post exists because I could not find anything that was concise, focused on misopathy, and accurate. It is a first pass at a law that, as with many rule of law channels, has potential to address a root cause.17

Please correct any facts by email ("Contact me" link, upper right) or comments. Please make them fog-resistant. For safety, avoid including anything sensitive about ongoing cases. Also don't identify perpetrators.

Mention of CAH and similar terms

Needless to say, I would not throw around such terms casually. All are solemn.

It is rhetorically weak to say that a law applies. This post is not intended to provide talking points. It is just a first pass at conveying basics.

In contrast, what a court says is strong.

However: I believe such terms should not be needlessly avoided. They are needed for stopping existing and incipient attacks, for preventing latent ones, and for making the world more aware and less tolerant of them.

Why fight

The level of misopathy we are talking about constitutes a definite category of human rights violation.

Human rights are the most fundamental rights that society recognizes. You do not lose them when you become sick.

If you have any doubt about the gravity of this topic, please read the following.

He said: Perhaps it's right, these incurably sick people just cost the state money, they are just a burden to themselves and to others. Isn't it best for all concerned if they are taken out of the middle [of society]?

— Then they got rid of the sick, the so-called incurables. Related to the "First they came for" saying.

Acknowledgements

I want to thank Inara and Allele for intelligent conversation, enthusiasm, and encouragement that inspired me to not sit on this post.

Footnotes:

1

You can read "disease" broadly. It includes disease states that are not specific to specific diseases. There are significant attacks on those also.

2

There are also things like the "Draft Code of Crimes against the Peace and Security of Mankind", which was an antecedent to the Rome Statute version of CAH.

3

One argument might go: this type of politics can and does spin out of control, making practically everybody on the planet have an interest in stopping and preventing.

An ordinary health crime can kill, but a health CAH is part of a grave threat to humans globally, who can fall into a large and growing set of targeted sick populations, and collateral damage, at any time or place.

This paper is written clearly and has CAH history and similar arguments near the beginning: https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=1165&context=facpub.

4

The basic point is definable: these are not ordinary crimes. A conviction is taken as saying that society holds so too.

That vindication, in the face of incessant moral inversion, is one reason for victim populations to enter the human rights realm.

5

Also, the deeper you go, the more you might be surprised by confusion, contradiction, and errors.

6

The UN version is probably best not thought of as the same thing as the ICC version. I will treat them as the same in this post, but UN special courts have used different versions of the law.

7

That ICJ link takes you to a FAQ that mentions more organizations that might be of interest. The World Court is the ICJ.

8

Some quotes on attack can be found at Case Matrix Network. ICTY is the special court for Yugoslavia, ICTR for Rwanda, and SCSL for Sierra Leone. Those used different versions of the law. ICTY limited to armed conflict, but this was considered a self-imposed limitation rather than an attempt to define CAH.

A case at the ICC in Kenya might or might not be instructive, as crimes in question were in peacetime.

The non-armed and misopathic Action T4 resulted in at least 16 convictions. The initial charges included CAH. I have not checked whether the convictions were for CAH.

9

Civilian still seems to have power, except for exceptions.

10

I wonder if this has relevance: "An attack may also be non-violent in nature, such as … exerting pressure on the population to act in a particular manner, which may come under the purview of an attack, it [sic] orchestrated on a massive scale or in a systematic manner."
— https://www.casematrixnetwork.org/cmn-knowledge-hub/elements-digest/art-7/common-elements/1/

11

RS version is stricter than some. For example, acting related to a policy is not in all versions. Might even be new with RS.

12

It does get more confusing, even in the elements document, with seeming intricate branching recursion, but nobody seems to care much.

13

Elements document says existence of intent and knowledge can be inferred from relevant facts and circumstances.

14

In the RS version, an act does not have the CAH framework context. RS elements document bakes the context into each item and calls it a CAH.

The UN quote is talking about an ordinary act/crime.

15

In fact, there is one such SR each for several topics relevant to misopathy. For example, the SR on right to health has been presented to on Lyme.

You can think of Special Rapporteurs as something like unpaid international human rights ombudsmen.

There are also non-UN bodies.

16

Another random example: "The main mission of ASF [Avocats Sans Frontières] is to serve the most vulnerable waiting for justice and to contribute to the establishment of institutions and mechanism that allow for access to independent and impartial justice capable of guaranteeing the protection of fundamental human rights."

17

The potential for law to stop and prevent large-scale misopathic attacks is what interests me in this post.

Imagine you are a perpetrator, perhaps one who relies on reputation. When even one colleague, who does exactly the same things you do, is sent to prison for doing those things, you might understand, perhaps for the first time in your life, that the personal risk overrides the personal gain.

In principle, even one conviction could stop an attack globally.

Posted by Samuel Wales
Labels: , ,

No comments :

Post a Comment

I could not ask for a better readership. Your comments are valuable, here and elsewhere. So EMAIL ME if they do not go through! (Click on "Contact me" link in blog sidebar).

Choose any option except Anonymous, as my readers and I want to know if Awesome Comment 1 has the same author as Awesome Comment 2. If the other options don't work for you, try Name/URL to enter your name or handle. URL can be blank.

The point is: we want your comment!

Subscribe to: Post Comments ( Atom )