On protective object of the crime against humanity

New appearance of the international law on human rights

Abstract

The legal science has disregarded the issue of protective object of the crime against humanity for a long time. The humanity has been considered as an indisputable and unquestionable category. Since the crimes against humanity include number of different criminal acts, which are per se indisputable and well founded in domestic criminal laws, one may assume that humanity is some kind of a qualitative middle point and the lowest common denominator for protected values of criminal quantities that constitute the content of this type of international crimes. While exploring this possibility the Preamble of Rome Statute has been analyzed, which should serve, as every other non-legal part of the legal act, for interpretation of the used terminology. This scientific task has not succeeded probably because of the lack of consciousness about the role of protective objects in creating incriminations by the founders of the statute of the International Criminal Court. The science was more enthusiastic than international legislator and created more interpretations on humanity as protective object of the crime against humanity, one of them being emphasized in this paper, and that is the most dominant one, which considers humanity as a unique and independent value. If it is considered from the perspective of classical interpretation of protected values in criminal law, which considers them as one of the fundamental human rights and freedoms, it is impossible to avoid a conclusion that humanity does not belong to these categories. Humanity is a principle, similar to legality or legitimacy, and not some kind of special human right that is as such suitable to be protected by the criminal law. The reason for this attitude lies in a strong spread of international law on human rights in the last few decades which exhausted and exceeded all its own mechanisms of application and expansion until then. It had a crucial impact on reaffirmation of the idea about crimes against humanity as a special type of international crimes. The very source of the idea lies in an extreme wish to give a special content to the concept of humanity in order to promote it to the level of independent value. Otherwise it would not be possible to secure international law protection to this concept and if this kind of robust protection could not be provided to it, the crime against humanity would lose its sense. If that would happen, all the efforts of the international law on human rights to acquire a punitive form would fail. The crimes against humanity in their contemporary form are product of attempts that exist in international community to give a punitive dimension to the international law on human right that it misses, and all this in a wrong belief that it will be more efficient. This is certainly a consequence of lack of knowledge about real potentials, implications and impact of the criminal law and absolute belief in 'fatalness' of punishment.