The Concept of Humanity in International Criminal Law
Authors: Atadjanov Rustam 
Published: August 2022

The Concept of Humanity in International Criminal Law

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.