Ship of Fools: Crimes against humanity

Thread: Crimes against humanity Board: Oblivion / Ship of Fools.

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Posted by Starlight (# 12651) on :

"Crimes against humanity" is the name of the international laws which prohibit genocide, slavery, apartheid etc. However they also include, when done on a widespread scale:

quote:
persecution against an identifiable group on political, racial, national, ethnic, cultural, religious or gender grounds;

Scott Lively is currently being prosecuted under the crimes against humanity legislation for his anti-homosexual activities over the past decade and in particular for his role (youtube) in engineering the anti-gay legislation passed by the Ugandan parliament this year. Last year a US judge ruled his prosecution could proceed, ruling:

quote:
widespread, systematic persecution of individuals based on their sexual orientation and gender identity constitutes a crime against humanity that violates international norms.
...
aiding and abetting a crime against humanity is a well established offense under customary international law, and actions for redress of this crime have frequently been recognized by American courts

That ruling is not exactly news, as it was issued over a year ago, although it was clearly news to Vicky Beeching who tweeted it this week. In any case, Scott Lively's case seems on the go-slow, with his trial not being scheduled until next year, and doubtless appeals will then follow. (IMO he is obviously guilty of the charges, but whether he manages to get off on some technicality remains to be seen)

What I want to explore in this thread are two things:
1) To what extent are other anti-gay advocates guilty of breaching the crimes against humanity legislation?
2) Is this legislation a useful tool at all to fight discrimination with, either by bringing to people's attention that what they are doing is illegal, or by actually prosecuting them for it?

I am not a lawyer, but on a casual reading it certainly appears as if being part of a campaign to strip gay people of the right to marry on a national scale fairly clearly constitutes a crime against humanity, as does aiding and abetting such a campaign. For example, recently when we were discussing how the Mozilla CEO was forced out after it came to light that he'd contributed money to the anti-gay Prop 8 campaign in California, I expressed my view that the man was a criminal under international law for aiding and abetting a crime against humanity and that therefore the loss of his job was the least of what he deserved. I would be interested if any of those in the legal profession here would like to weigh in with views on to what extent such "casual" (if we can all it that) anti-gay persecution, like donating money to support a campaign to strip gay people of the right to marry, does or doesn't fall under crimes against humanity from a legal perspective. (Of course, whether or not it is true that they are technically legally guilty of the crime in a strict legal sense, isn't exactly going to change my view that they are morally guilty of a horrendous crime of attempting to seriously harm thousands of people, and commonly succeeding in doing so.)

The notion of, in practice, prosecuting all the people responsible for the persecution of gay people (ie anti-gay activists, those who have donated money towards the persecution of gays, the politicians who have voted against equal rights for gay people, and all the members of the public who have written submissions to their government encouraging them to deny rights to gay people) seems completely implausible. There are just too many guilty people. Trying to prosecute that number of people borders on the absurd, and at that point it becomes not so much a court case as a war. (Of course, in some instances of crimes against humanity it is necessary to fight an actual war - the US Civil War for example to fight those who insisted on slavery.) As a simple matter of practicality, in the present day it is going to be entirely necessary to let the vast vast majority of offenders go unpunished by the judicial system. (Although I could imagine a class-action lawsuit, eg against all prop 8 donors, that asks as punishment that 3 times the amount of money donated to prop 8 be donated to pro-gay charities)

So to my mind, the potential usefulness as a tool of the crimes against humanity legislation lies in (a) bringing it to people's attention, as some anti-gay Christians may well hesitate to campaign for the persecution of gay people on a national scale if they realize that it is a crime against humanity to do so, (b) selective prosecutions of individuals where there is something to be gained by the prosecution. (eg In Australia Tony Abbott comes to mind as a possibility if he continues to deny marriage rights to same-sex couples, or simply prosecute all politicians who vote no when the bill is next raised.)

Thoughts?

Posted by Horseman Bree (# 5290) on :

There's a can of worms being opened if you force politicians to vote according to YOUR conscience, even if the specific case is justifiable.

Who gets to say what is right, when balancing issues and circumstances in the church/state minefield? Only those who are allowed to speak are actually in the argument, so preventing some from speaking is imposing a dictatorship. Which group gets to decide on who speaks?

At present, you can say, as loudly as you like, that someone else is "wrong" or whatever. Would you prefer that the courts determine if you are allowed to speak?

Posted by Starlight (# 12651) on :

quote:
Originally posted by Horseman Bree:
There's a can of worms being opened if you force politicians to vote according to YOUR conscience, even if the specific case is justifiable.

Holding politicians accountable for their actions that are in violation of Crimes Against Humanity law has plenty of precedent. eg the Nuremberg trials, trials for genocide, apartheid etc.

Let's imagine that some people were advocating for stripping Jews of the right to marry. Persecuting Jews has been an old staple of various religious conservatives and xenophobes over the millennia. And our society has come to the view that that sort of thing is Wrong. Not wrong as in my own conscience personally tells me it's wrong, but Wrong with a capital as in it's recognized under international law as being a very serious crime to do that type of thing.

Or lets say that some people wanted to stop black people from getting married. Because they felt that black people ought not to be allowed to get married. That's a thing that's happened before. It's a position people have defended in the past. And again, the weight of opinion since that time has judged it to be wrong, very very wrong. A serious and heinous crime.

And so we have the crimes against humanity declarations, which say that there are some types of things that are heinous wrongs that go above and beyond ordinary wrongs and inflict deliberate harms on large groups of people, and that doing such things is very wrong indeed.

It seems to me that stripping gay people of the fundamental right to marry is as serious and heinous a crime as stripping Jews or blacks of that right, and that all three acts are clearly covered by the Crimes Against Humanity conventions and make the doer of such acts or anyone who aids or abets them a criminal under international law. Such issues are not ones of "conscience" where one person may validly have one opinion and another person may validly have another. When it comes to the question of is it okay to persecute a minority group, the clear answer of history and of international law is "no", and anyone advocating an answer of "yes" is both wrong and criminal.

Posted by Bostonman (# 17108) on :

One issue with what you've said is that people hoping to enter into a same sex marriage/having already entered into one, or even the set of men who have sex with men/women who have sex with women are not "an identifiable group on political, racial, national, ethnic, cultural, religious or gender grounds." Are they?

Posted by orfeo (# 13878) on :

It depends what you mean by 'persecution'. I'm not aware of whether there is international law on the subject.

But is being unable to marry what is meant by widespread and systematic persecution? I doubt it. My daily life isn't exactly beset by mistreatment. I think it's a bit of a stretch to treat my inability to marry as being even remotely on the same level as the fact that homosexuality carries the death penalty in some places. The Ugandan laws were extremely draconian, not only criminally punishing homosexuals but attempting to force anyone who knew a homosexual to report them.

Frankly, if you're going to label my situation as a crime against humanity, it utterly trivialises the gross human rights abuses that are occurring to other people. I'm one of the most privileged people on the planet.

[ 26. August 2014, 13:21: Message edited by: orfeo ]

Posted by la vie en rouge (# 10688) on :

It also depends on the definition of marriage. Playing devil’s advocate for a moment, if you define marriage as a binding legal contract *between two people of opposite sexes*, then saying that homosexual people can’t marry isn’t persecution, it’s just stating that they can’t do something that you’ve declared by definition impossible.

Furthermore, there is no internationally agreed standard on what constitutes a legal marriage, even a heterosexual one. Over in All Saints, I have been whingeing about how bloody much my consular authorities are charging me for a piece of paper that confirms that my country will recognise the legal validity of a marriage that I am planning to contract in another country. The necessity for such bits of paper comes from the fact that marriage law is not uniform everywhere (aside same-sex marriage, I think the main differences between jurisdictions have to do with parental consent requirements if one or both parties is a legal minor).

Posted by orfeo (# 13878) on :

Starlight,

Oh dear. I'm now reading the wikipedia article carefully, and particularly the definition in relation the International Criminal Court.

You have completely misread it, by missing out a crucial part.

The relevant text says this (emphasis mine):

quote:
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

In other words, you CANNOT have a crime against humanity simply from persecution. Persecution is capable of being a crime against humanity if it occurs in connection with the other things on that list: murder, extermination, enslavement, deportation, imprisonmnent, torture and so on.

Sorry, but an anti-gay marriage campaign doesn't even come close.

When dealing with laws always, ALWAYS read to the end of the sentence. Cutting and pasting a phrase out of context leads to disaster.

Posted by orfeo (# 13878) on :

ADDENDUM: Starlight, my apologies, as I can see that the other link manages to cut out the crucial words. So it is not the case that you misread it, but that one of the sources completely misled you.

It's rather sad that the ICC's own website should simplify the text of the definition in that way. But it has.

Also, they haven't told you that the statute defines persecution as: "the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity".

[ 26. August 2014, 13:54: Message edited by: orfeo ]

Posted by orfeo (# 13878) on :

Also, in relation to the ruling allowing the prosecution against Scott Lively to continue, the judge explicitly refers to several different levels of harm: discrimination, persecution, and crimes against humanity.

The judge notes that the UN Human Rights Committee has defined 'discrimination' as:

quote:
[A]ny distinction, exclusion, restriction, or preference based on certain motives . . . that seeks to annul or diminish the acknowledgment, enjoyment, or exercise, in conditions of equality, of the human rights and fundamental freedoms to which every person is entitled.

For 'persecution', the judges uses the definition I've mentioned in my last post. The judge has then noted that persecution can rise to the level of a crime against humanity, if part of a widespread and systematic attack, but doesn't otherwise.

[ 26. August 2014, 14:06: Message edited by: orfeo ]

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