Definition of core crimes
The Crimes Against Humanity and War Crimes Act (CAHWCA) provides for the investigation and prosecution of three international crimes: war crimes, genocide and crimes against humanity. In some respects, these crimes have overlapping elements but each one has unique and quintessential elements that distinguish them one from the other. These elements contextualize and differentiate these crimes from each other as well as from regular domestic crimes such as murder in the Criminal Code.
The CAHWCA also provides for the prosecution of breach of responsibility by a military commander or civilian superior.
The definition of each international crime is informed by international statutes and conventions as well as customary international law.
The legal definition of genocide is enshrined in the Crimes Against Humanity and War Crimes Act
Genocide is the commission, in time of peace or during an armed conflict, of prohibited underlying acts (such as murder, sexual violence or the forcible transfer of children to another group) with the specific intent to physically or biologically destroy a national, ethnical, racial or religious group, in whole or in part. The specific aim of genocide is to eradicate the group’s existence.
The targeted group must be identifiable and stable, such as an ethnic, national, racial or religious group.
The specific intent to destroy the group, or part of the group, as such is what differentiates genocide from other domestic and international crimes.
Crimes against humanity
The legal definition of crimes against humanity is enshrined in the Crimes Against Humanity and War Crimes Act.
Crimes against humanity have no requirement of specific intent or the existence of an armed conflict such that crimes against humanity can be committed during times of peace; rather, a crime against humanity entails the commission of prohibited acts in a widespread or systematic attack against any civilian population. The attack can be either widespread or systematic. Although both factors need not be present, in reality, both are often present in any given situation.
The CAHWCA lists 10 specific acts that could constitute an underlying prohibited act for a crime against humanity such as murder, persecution, and other inhumane acts. The underlying act of other inhumane acts is a residual category which can include other acts with comparable gravity to those specifically enumerated and has been found to include acts such as forcible transfer and enforced disappearance.
The legal definition of war crimes is enshrined in the Crimes Against Humanity and War Crimes Act
The commission of specific prohibited act(s) may amount to a war crime when perpetrated during an armed conflict and with a sufficient link to the conflict. An armed conflict can be international or non-international (internal). There is a large number of prohibited acts aimed to protected persons, such as civilians and prisoners of war, and objects, such as buildings dedicated to religion. The use of specific weapons and methods of war can also amount to a war crime.
Breach of responsibility by military commander or superior
The CAHWCA also includes a crime specifically geared to capturing liability for superiors both in a military and civilian context. The crime of breach of superior responsibility occurs when an individual is in a position of superior authority and fails to prevent or punish subordinates who commit genocide, crimes against humanity or war crimes.
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