1. Introduction
Is denying a person's right of return (to their country) a crime against humanity? This article seeks an answer to this question by using theory. Specifically, it argues that if we understand crimes against humanity as assaulting ‘our character as political animals’,Footnote 1 and if we understand the right of return as justified by the human need to belongFootnote 2 and by the objective of preventing rightlessness,Footnote 3 then there exists a strong connection linking these conceptions together. This connection, in the author's view, is one that justifies at least some attempts to criminalise actions that amount to the denial of return to one's own country.
Although various discussions regarding what might amount to a crime against humanity have been made, there has not yet been one addressing the right of return.Footnote 4 However, the general impression is that international criminal law, and specifically the understanding of crimes against humanity, is expanding.Footnote 5 This article aims to contribute to the current discourse with an understanding of the connection between the right of return and crimes against humanity. In doing so, the discussion will remain at the theoretical level. The aim of the article is not to deal with the doctrinal aspects of criminalising the act of denying the right of return (such as matters of jurisdiction or admissibility), or with other questions arising from its arguments such as the effectiveness of international criminal adjudication, or other means of addressing acts of denial of return.
However, despite the reliance on theory, this question is not only theoretical but has rather become highly relevant in light of recent events. Currently, the Office of the Prosecutor of the International Criminal Court (ICC) is conducting an investigation into the situation in the People's Republic of Bangladesh and the Union of Myanmar (‘Bangladesh/Myanmar’, or alternatively the ‘Rohingya situation’). Before approving the initiation of an investigation, as part of a jurisdiction ruling, Pre-Trial Chamber I of the ICC concluded that interfering with the Rohingya peoples’ right of return (to Myanmar) can amount to a crime against humanity.Footnote 6 Furthermore, the ICC Prosecutor argued in her request from Pre-Trial Chamber III to authorise the commencement of an investigation that there is a ‘reasonable basis to believe that the crime against humanity of other inhumane acts under article 7(1)(k) [of the Rome Statute], based on the violation of the Rohingya's right to return, was committed’.Footnote 7 It seems that what the ICC might eventually conclude (in a final judicial decision) to amount to a crime against humanity at the doctrinal level should also stand on firm theoretical grounds.Footnote 8 Therefore, the article discusses whether or not such a conclusion could be in line with what the author believes is the correct perception of crimes against humanity. Additionally, this question could also be linked to discussions regarding other instances of denial of the right of return. Therefore, albeit using the Rohingya situation as an illustration of its argument, the article aims to reach a general conclusion.
Moreover, if indeed ‘international criminal law has developed more in the writings of scholars than in the practice of states [or the practice of the ICC]’,Footnote 9 there is, in fact, quite an expressive effect in concluding that some actions are to be criminalised as crimes against humanity. Such a conclusion aims not only to ‘deter future human depredations and to enhance the prospects of world peace’, but also to reaffirm ‘the world community's unequivocal condemnation of such crimes’.Footnote 10 Even more importantly, and as hinted above, doctrinal developments should have a sound theoretical basis; otherwise, such developments could easily be challenged. With regard to crimes against humanity, Christopher Macleod argues that ‘without close philosophic scrutiny of the nature of this crime, it seems unlikely that the goal of marrying up the legal to the moral can be met’.Footnote 11 Furthermore, Mahmoud Cherif Bassiouni argues that the tension between ‘what is and what ought to be’ is one that characterises and leads eventually to the growth of ‘all legal systems’.Footnote 12 Bassiouni notes that what might balance this tension is strongly dependent on the values and goals that a legal system aims to achieve.Footnote 13 Most notably, the quest, or rather the effort, in search of this balance is what eventually ‘leads to the growth of law’.Footnote 14 In many ways this article is exactly that: an effort to discuss whether the aims and goals which crimes against humanity are thought to forestall at the theoretical level are in line with what the ‘system’, or more specifically in this case the ICC, aims to achieve. The article holds the view that from these types of discussion a better ‘image’ appears of what the law is, and also what it (might) ‘ought to be’.
The methodology of the article is based on a theoretical analysis of the right of return, tied with a theory of crimes against humanity. The argument proceeds as follows. Section 2 offers a theory of the right of return, drawing on arguments developed by David Miller, according to which the right of return is justified by the human need to belong,Footnote 15 and also drawing on Hannah Arendt's notion of rightlessness and on how the right of return can be justified based on its role in preventing this status.Footnote 16
Section 3 presents David Luban's theory of crimes against humanity, which this article adopts.Footnote 17 This part will discuss the five distinctive legal features that Luban argues that crimes against humanity share;Footnote 18 this is followed by a presentation of Luban's main argument, according to which crimes that share these features ‘violate aspects of humanness pertaining to our political nature’.Footnote 19
Section 4 presents the article's main argument – namely, that a close connection exists between the justifications for the right of return it suggests and the underlying theory of crimes against humanity it embraces. In large, it will be argued that the two characteristics of our ‘political nature’, being sociable and unsociable simultaneously,Footnote 20 are also reflected within the two justifications for the right of return. More specifically, the view presented here is that the ‘need to belong’ justification better reflects our sociable character, while the ‘rightlessness’ justification better reflects our unsociable character (and the fact that crimes against humanity are political crimes). Therefore, when the right of return is denied, it is similarly an assault against the two characteristics of the political animal, which is an assault against humanness as such, consequently rendering such act of denial a crime against humanity. To illustrate this argumentation, this section will then apply it to the Rohingya situation and further build on it.
2. The Right of Return
This section offers a grounding of the right of return based on the human need to belong,Footnote 21 and on the purpose of preventing rightlessness.Footnote 22 It begins with an overview of the right as it appears in different international legal instruments, and then shifts to a theoretical discussion.
2.1. The Right of Return: An Overview
Before discussing theory, or more specifically what grounds the right of return, it is important to present briefly a few doctrinal aspects of this right. This is mostly because, in common with other rights, its meaning should be construed from various sources.Footnote 23 Furthermore, doctrine is important in order to show that the human right of return, defending our human need to belong and preventing rightlessness, is not a negligible idea, but rather is already part of positive international law.
The right of return, a right which most of us ‘take for granted every time we travel abroad’Footnote 24 and that seems ‘uncontroversial’ at first sight,Footnote 25 appears in Article 13(2) of the Universal Declaration of Human Rights, which reads as follows: ‘Everyone has the right to leave any country, including his own, and to return to his country’.Footnote 26 The Universal Declaration of Human Rights is not the only document in which the right of return is mentioned. Similar yet slightly different versions of the right can be found in Article 12(4) of the International Covenant on Civil and Political Rights (ICCPR),Footnote 27 Article 3(2), Protocol 4 of the European Convention on Human Rights,Footnote 28 Article 5(d)(ii) of the International Convention on the Elimination of All Forms of Racial Discrimination,Footnote 29 Article 2(c) of the International Convention on the Suppression and Punishment of the Crime of Apartheid,Footnote 30 Article 22(5) of the American Convention on Human Rights,Footnote 31 and Article 12(2) of the African Charter on Human and Peoples’ Rights.Footnote 32
Despite the fact that the right of return is mentioned in these well-established international legal instruments, Miller notes that ‘international lawyers … are quite conflicted about the meaning and status of the alleged right’.Footnote 33 In contrast, the ICC Prosecutor maintains that despite its delicate nuances, the right of return ‘seems, in at least some core respects, to have been universally accepted. Every UN member state appears to have, by international treaty, accepted at least one material obligation in this regard’.Footnote 34 Moreover, the Prosecutor argues that:Footnote 35
there is a sufficient basis [… to conclude that] a fundamental right [of return] had crystallised in customary international law, at least to the extent that displaced persons have a right to return … to the State of origin with which they have a sufficiently close connection.
Interestingly, this seems to imply that the Prosecutor has adopted the position according to which the right of return applies also to persons who are or were merely long-term residents of a state, and not only to its nationals.
This last point has already received attention as a result of the differences in the phrasing of the right in the various international legal instruments. By way of example, while the Universal Declaration of Human Rights and the ICCPR refer to a return ‘to his country’, the European Convention on Human Rights, on the other hand, refers to a return ‘to the state of which he is a national’. This could mean that the right under the European Convention ‘excludes people who may have lived in the state and regard it as their home, but are not nationals’.Footnote 36 On the other hand, the phrasing ‘his country’ seems to be understood as also covering those who merely consider a country to be their home, or those who have a strong tie to a country of, for example, a historical, familial or racial nature.Footnote 37 Miller notes that regardless of the phrasing used (‘his country’, ‘a national’), some argue that the right ‘applies to all those who are lawfully present in a country’, whether citizens or not.Footnote 38 Conversely, there are others who suggest that the right should be tied directly to nationality.Footnote 39 As an example, José D Inglés, United Nations Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, held the view that ‘his country’ ‘should be taken to mean the country of which the individual concerned was a national or a citizen’.Footnote 40
It seems artificial to ignore the fact that these differing views reflect how politics are entrenched in international law. However, recourse to theory, in light of the thinness of the doctrine with regard to this matter, could and perhaps also should allow for settling this issue. This article adopts Miller's grounding of the right based on the human need to belong, which seems to reflect a plurality of connections between a person and their homeland. Likewise, it draws on Arendt's concept of rightlessness, highlighting the importance of securing the location of individuals within their political community. Such connections, I believe, are not limited to possession of formal citizenship.Footnote 41 Consequently, through this reasoning, adopting the wider definition of the right (not excluding those who are not citizens or nationals) seems more appropriate.
2.2. The Right of Return as Justified by the Human Need to Belong
Setting aside the doctrinal aspects described above, this part of the discussion aims to present David Miller's argument, according to which the right of return can be grounded and justified by the human need to belong. In general, Miller argues that the right of return reflects an appreciation of the fact that ‘people have a … strong interest in being able physically to return to the place that they regard as their homeland’, a place that can be understood as either ‘a physical location, a return to a social network, or a return to a cultural community’.Footnote 42 After presenting Miller's theory, this section further builds on it.
Miller's basic intuition for a grounding of the right of return based on the human need to belong comes from observations regarding indigenous communities. As an example, Miller builds on the case of the Inuit from Labrador, who were displaced from their traditional hunting grounds, as the case is presented by Margaret Moore.Footnote 43 Moore discusses the difficulties of the Inuit who were outside the pale of their homes, describing how difficult adaptation was for them because of the vast cultural and personal differences within the new context in which the Inuit found themselves.Footnote 44 In her words, ‘people were left without their past cultural resources, unable to adapt to this new, quite different context’.Footnote 45 Miller argues that ‘the fate that befell these peoples seems to provide good grounds for asserting their human right to return’.Footnote 46 Moreover, he contends that when indigenous groups are being removed from their ancestral home, the ‘continuation of a way of life’ that defines such groups is being denied.Footnote 47 Despite this reliance on indigenous communities, it seems to me that the right of return is crucial also in different contexts, such as in neoliberal societies, even if within them there appears to be less of a collective; mainly because it is hard to disregard the fact that we all dread belonging, at least to some extent. Even in its most fluid sense, belonging seems to relate to specific locations, resonating with our past, present and future aspirations.
Similarly, Miller argues that most (if not all) of us share a human need to belong; therefore we all have a right to return to our country.Footnote 48 Miller adopts what he calls a ‘communitarian perspective’, one that acknowledges ‘the special nature of the ties that exist between a person and the country she recognizes as “home” and therefore the importance of having secure and ongoing access to that place’.Footnote 49 What underlies this connection (or close ties) is, in Miller's words, ‘the human need to belong’.Footnote 50 When discussing the question of what exactly it is to which we need to belong, Miller suggests that the idea of a homeland can usually combine certain features. A homeland, of course, can be a physical place, and yet also a cultural way of living, a group of people living together, the place where one's ancestors lived, as well as a political community which involves any of these features.Footnote 51 Generally, these features are interlinkedFootnote 52 in the sense that there is a ‘connection between the physical area of land that constitutes the homeland and the cultural life of the group’.Footnote 53 This connection usually means that the homeland cannot be transported elsewhere. Moreover, the homeland culture also distinctively shapes the local political institutions, based on its specific cultural aspects. This point will be further developed later as part of the discussion of human beings as political animals.
These intuitions seem to be shared by others. By way of example, Bill Frelick, currently Director of the Human Rights Watch refugee programme, argues that the right of return is so fundamental because ‘exile is a fundamental deprivation of homeland, a deprivation that goes to the heart of those immutable characteristics that comprise our personal and collective identities’.Footnote 54 Such support is likely to be the case also through other perspectives: Shelley Mallett, for instance, who comes from a sociological background, notes how home can be understood as an ‘expression of one's … identity and sense of self’, and as a concept that ‘constitute[s] belonging’.Footnote 55
In the last part of his argument Miller deals with the collective right of return or, more specifically, with the relationship between an individual's right of return and the actions of the whole community consisting of individuals who are outside their homeland. Miller contends that in cases in which a ‘whole community is expelled from (or chooses to leave) its homeland’ the task of justifying an individual right of return becomes more difficult.Footnote 56 The problem is that if an entire community is not present in the place which once was its homeland, then what would the individual in question be returning to? As mentioned above, Miller's perception of the need to belong is that it represents a ‘symbiotic relationship’ between land, people, culture and politics.Footnote 57 In cases where no one is left to exercise any of these features, it seems as if returning would not fulfil one's need to belong. Therefore, an individual's exercise of the right of return depends on ‘the willingness of the other members of the relevant group to seize the opportunity to repatriate and reconstitute the homeland’.Footnote 58 Consequently, what also follows is that the right of return should be ‘time restricted’.Footnote 59 This is largely because the need to belong is connected with actual aspects (physical, cultural, political). If no one is left to exercise these homeland features in a given place then the need specifically to belong (and return) to it gradually weakens, and what is left is mostly nostalgia for a place that no longer exists.Footnote 60
However, not everyone would agree with these intuitions. Victor Tadros, for example, argues that Palestinians who have never lived in or even been to Israel/Palestine nevertheless have a strong right to return to it.Footnote 61 His idea rests on his belief that new generations of Palestinians (who were not physically removed from Israel like their ancestors) develop a relationship with the land through the continued justified struggle of their ancestors to ‘restore the fabric of their lives’.Footnote 62 Nonetheless, Tadros does agree that ‘first generation refugees’ probably have a stronger interest in returning than that of later generations, and also that the strength of the interest in returning weakens over time.Footnote 63 Mainly, though, I tend to agree with Miller's intuitions on this matter. I find his view more convincing than that of Tadros because I think it reflects a more nuanced conception of how the need to belong weakens over time (especially in situations in which no one currently exercises the group's homeland features in a given place). Furthermore, as time passes, the need to belong could be fulfilled in a different place through the formation of new connections, undermining the claim to fulfilling this need in a specific place that no longer exists as it used to. This discussion also has some implications regarding a conclusion according to which denial of the right of return can amount to a crime against humanity. It could be argued, for instance, that a denial of return should not amount to a crime against humanity in cases where the need to belong is simply too weak. This issue will be discussed further in Section 4.
In addition to Miller's views, a further justification for the right of return will be discussed. When the need to belong is compromised (in situations where the right of return is denied), individuals are also at risk of becoming rightless, as per Arendt's formulation of the concept. Therefore, the goal of denying rightlessness serves as a second justification for the right of return. This justification is needed, and mostly relevant, in order to fill the ‘gap’ that Miller's conception of the right leaves in situations in which no one is left to exercise any of the features of a homeland in the territory to which one seeks to return. This form of justification seems also to have appeared, in some way, within Pre-Trial Chamber I's jurisdiction ruling in the situation in Bangladesh/Myanmar. The Chamber noted that following their deportation the Rohingya people found themselves living in ‘appalling conditions’, and that the fact that they were ‘uprooted from their own homes and forced to leave their country’ renders their future ‘even more uncertain and compels them to continue living in deplorable conditions’.Footnote 64 Even more so, as part of her request for authorisation of an investigation, the Prosecutor maintained that denial of the right of return not only results in great suffering, extreme poverty, inadequate conditions and similar, but also in a ‘loss of legal status and associated rights’.Footnote 65
2.3. The Right of Return as Justified by the Goal of Preventing Rightlessness
It seems as if the first to mention the term ‘rightlessness’ was Hannah Arendt in describing people who were welcomed nowhere and could be assimilated nowhere as a result of the two world wars.Footnote 66 Arendt describes this group of people in a way that seems as relevant now (with regard to the Rohingya, for example) as it was then:Footnote 67
Once they had left their homeland they remained homeless, once they had left their state they became stateless, once they had been deprived of their human rights they were rightless, the scum of the earth.
Arendt recognises that the first loss that the rightless suffered was the loss of their homes, which is, in fact, the loss of ‘the entire social texture into which they were born and in which they established for themselves a distinct place in the world’.Footnote 68 This point seems to overlap with Miller's notion of the right of return. When one is in a situation of rightlessness it seems as if their basic need to belong is also compromised (and vice versa). What Arendt describes as the second loss of the rightless is the loss of governmental protection,Footnote 69 eventually leading to a complete ‘loss of political status’.Footnote 70 This last point highlights how the rightlessness justification interacts with Luban's theory, which will be discussed thoroughly in Section 4. Generally, though, understanding denial of the right of return as a crime against humanity will also work towards ensuring that people will not find themselves outside the pale of the political community that ought to protect them, therefore rendering them rightless.
Moreover – and here are two further points that link Arendt, Luban and Miller together – according to Arendt, the ‘calamity’ of the rightless is not that they are deprived of basic rights such as the right of life, liberty, expression and similar, but rather that they ‘no longer belong to any community whatsoever’.Footnote 71 Additionally, Arendt recognises that the right to have rights is the ‘right of every individual to belong to humanity’, and that this right should accordingly be guaranteed ‘by humanity itself’.Footnote 72 Arendt questions whether humanity can, in fact, guarantee such a right. I, on the other hand, consider that criminalising the act of denying the right of return and working towards fulfilling every person's need to belong (and preventing rightlessness) is exactly what has to be done in order for such a guarantee to become part of reality.
It should be noted, however, that Arendt wrote before the advent of international human rights law and international refugee law. Thus, more recent observations of Arendt's work perhaps seem to purpose a different conception of what she described as not belonging to any community whatsoever. Ayten Gündogdu, for example, argues that since Arendt published her work much has changed, and that now our age is ‘the age of rights’.Footnote 73 Whereas in the past, persons who were subject to mistreatment were stateless and had no remedy, nowadays ‘[t]he institutional and normative framework of human rights has introduced a new notion of legitimate statehood based on the protection of individual rights’.Footnote 74 Given these developments, Gündogdu contends, it is tempting to think that the problems described by Arendt ‘have been resolved by the institutionalization and global expansion of human rights’.Footnote 75 This has led scholars such as Jean Cohen to suggest that the relationship between citizenship, rights and sovereignty has changed and has shifted the basis of entitlement to rights from nationality to universal personhood.Footnote 76 With regard to these matters, Audrey Macklin's suggestion – according to which citizenship and statelessness (which leads to rightlessness) are end points on a continuum rather than ‘an “either/or” proposition’Footnote 77 – seems crucial.
Accordingly, two important implications can be drawn. First, even if it is presently more difficult to argue that an individual does not belong to any community whatsoever (as a result of developments in human rights law and the shift to universal personhood), we can still consider some individuals to be rightless, so far as we understand rightlessness as a situation along a continuum. Take, for example, the Rohingya. Human rights law still applies to them, even while they are situated in Bangladesh, albeit, in reality, it seems as if they do not enjoy many rights at all.Footnote 78 Therefore, as long as we recognise that rightlessness is not an ‘either/or’ situation, we can still perceive these people as rightless. This is particularly so because of their location outside the pale of their own political community, which is the one that is typically responsible and ‘willing and able to guarantee [them] any rights whatsoever’.Footnote 79 This lack of protection caused by, among other reasons, the global weakening of international refugee law is what justifies the search for more solutions in the form of accountability efforts and criminalisation of such acts, instead of merely seeking an answer in the current international refugee law regime. Moreover, linking rightlessness to the right of return aims also to facilitate the return of the rightless to the community (in its broader sense) in which they fulfil their basic human need to belong.
Second, if indeed ours is the ‘age of rights’, and there indeed exists a ‘new notion of legitimate statehood based on the protection of individual rights’, there seems to exist an even stronger justification for guaranteeing, through humanity itself, the right of every individual to belong, as proposed by Arendt.Footnote 80 These developments, I suggest, also involve more pressure on international institutions (such as the ICC) to act in order to prevent such situations. Even if these global developments have made the concept of nation-states somewhat more fluid, I believe that denial of the right of return still puts individuals in a state of rightlessness (as mentioned above, this will usually be the case as a result of the global weakening of international refugee law), unable to fulfil their basic need to belong, and placed outside their own actual political community, to which they not only belong but on which they are also dependent. Therefore, the goal of preventing rightlessness serves as a further justification for the right of return.
In conclusion, subsection 2.1 presented an overview of the right of return as it is formulated in various international legal instruments. This was done because the meaning of a right should be derived from various sources, and also in order to show that the right of return is already a part of positive international law. Subsection 2.2 presented David Miller's argument, according to which the right of return is grounded and justified by the basic human need to belong. Miller's argument will continue to accompany this discussion as it is used to connect the concept of crimes against humanity and denial of the right of return. Subsection 2.3 presented a further justification for the right of return: namely, as a means of preventing rightlessness, as understood along the lines of Hannah Arendt's conception of the status. The ‘rightlessness’ justification serves as another intersection, connecting the right of return and the theory of crimes against humanity, which this article has chosen to embrace.
3. Crimes Against Humanity
After a thorough discussion of the right of return, with emphasis on its theoretical foundations, this section will now present David Luban's theory of crimes against humanity.Footnote 81 The purpose of this part is not to undermine Luban's theory, but rather to build on it. I do so mostly because I find Luban's theory convincing, especially within the current theoretical discourse, which has paid ‘very little consideration … to the nature of crimes against humanity’.Footnote 82 Even more so, Luban's theory seems to resonate with the broad, rather common, understanding of international law through the lens of constitutionalism; another view that I find convincing.Footnote 83 Further, it is also among the most central formulations of crimes against humanity in current legal scholarship, in what seems to be a ‘starting point’ embraced and discussed by many.Footnote 84
This section begins by presenting a short introduction to, and a few basic doctrinal aspects of, crimes against humanity. These aspects are key to understanding Luban's theory, which tries to explicate the doctrine. The focus of this part then shifts to Luban. First, the five distinctive legal features which he argues that crimes against humanity share will be presented.Footnote 85 These features characterise the law of crimes against humanity.Footnote 86 Luban's main argument is then presented, according to which crimes that share these five features ‘violate aspects of humanness pertaining to our political nature’.Footnote 87 Generally, and before diving into specifics, Luban's main argument is composed of his understanding that the word ‘humanity’ in the phrase ‘crimes against humanity’ refers to our nature as political animals; hence, these crimes ‘pose a universal threat that all humankind shares an interest in repressing’.Footnote 88
3.1. Crimes Against Humanity: An Overview
Article 7 of the Rome Statute of the International Criminal Court lists a number of acts that will amount to a crime against humanity when ‘committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’.Footnote 89 The idea behind this provision – namely, that ‘some elementary principles of humanity should be adhered to in all circumstances’Footnote 90 – had surfaced in the past, some time before the drafting of the Rome Statute.Footnote 91 As an example, Bassiouni notes that the prohibitions that are part of the notion of crimes against humanity ‘originate in norms applicable to the international regulation of armed conflicts’.Footnote 92 More specifically, ‘the legal basis for crimes against humanity can be found in the Preambles of the 1899 and the 1907 Hague Conventions’.Footnote 93 In contrast, the Rome Statute was approved on 1 July 1998 and entered into force as of 1 July 2002.Footnote 94
The first use of the term ‘crimes against humanity’ in a manner that resembles today's understanding of it can be dated to events that occurred during the First World War. In a joint declaration made by the governments of France, Great Britain and Russia, a denunciation of Turkey's actions against its Armenian population was made:Footnote 95 the three governments declared that Turkey had committed ‘crimes against civilization and humanity’.Footnote 96 Later, and following the Second World War, the Charter of the International Military Tribunal (also known as the Nuremberg Charter) was drafted,Footnote 97 Article 6(c) of which defined crimes against humanity as:Footnote 98
Murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the law of the country where perpetrated.
A similar formulation of crimes against humanity was incorporated into the Tokyo CharterFootnote 99 and the Allied Control Council Law No 10.Footnote 100 More recently, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) were established by the Security Council.Footnote 101 Their statutes both contain a definition of crimes against humanity which largely matches that of the Nuremberg Charter.Footnote 102 There are, of course, some differences between the two statutes: for example, the ‘ICTY Statute suggests that a nexus to armed conflict is required, whereas the ICTR Statute suggests that a discriminatory motive is required’.Footnote 103
Finally, despite recent attempts to draft a convention aimed solely at the prevention and punishment of crimes against humanity,Footnote 104 Article 7 of the Rome Statute contains the most recent formulation of these crimes to have been incorporated into a binding international legal instrument.Footnote 105 Generally, there are four important features of crimes against humanity under the Rome Statute. In short, there no longer is a requirement for an armed conflict to be present, a discriminatory motive is no longer a requirement, a crime has to be committed as part of a ‘widespread or systematic attack’ and, finally, the perpetrator of the crime must have knowledge of the attack (mens rea).Footnote 106 Largely, though, it seems as if the various legal instruments discussed above do not differ widely from one another. Luban, for example, on whose theory I draw here, mentions that although he refers mostly to the Nuremberg Charter, the features of crimes against humanity that he extracts from it are prominent and apparent in ‘all its subsequent embodiments’.Footnote 107 Sigrun Skogly notes that although the definitions have mostly ‘evolved over time’ and ‘included kinds of crimes that were not included in the earlier instruments’, their ‘starting point’ is the same.Footnote 108 Furthermore, Darryl Robinson adds that the Rome Statute is simply a ‘more precise and regulative approach than … previous instruments’, also regarding it as a ‘modernized and clarified definition of crimes against humanity’.Footnote 109
Essentially, it seems that international criminal law is slowly growing and being carefully refined, but the differences, at least today, between the ‘older’ and ‘newer’ legal instruments are minor. Consequently, this implies that ‘old’ ambiguities are still present, some of which have not yet been fully resolved. As an example, the crime against humanity of ‘other inhumane acts’ appears in the Rome Statute and also in its major preceding documents (such as the Nuremberg Charter, the ICTY Statute and the ICTR Statute).Footnote 110 The prohibition on the perpetration of ‘other inhumane acts’ quite obviously has an ‘open-ended nature’, which was even considered by some delegations during the drafting of the Rome Statute as ‘inappropriate in a criminal law instrument’.Footnote 111 The Rome Statute imposes limitations on what might amount to an ‘other inhumane act’ (the act has to be of a similar character to the other acts mentioned in the Statute, and must also intentionally cause ‘great suffering, or serious injury to body or to mental or physical health’).Footnote 112 However, even with these limitations the wording is still somewhat vague. These ambiguities seem to call for a deeper inquiry into their meaning. Because denial of the right of return is not listed among the prohibited acts in the Rome Statute (or any other preceding instrument), and because organs of the ICC suggest that such conduct falls within the prohibition of ‘other inhumane acts’,Footnote 113 resorting to theory and to core questions, such as what crimes against humanity actually are, is necessary.
Before inquiring into the underlying meaning of crimes against humanity, it is also imperative to note that the ICC has already accepted, at least to some extent, the criminalisation of a form of conduct not enumerated in the Rome Statute, regarding forced marriage as falling within the ambit of ‘other inhumane acts’. It was the decision on the confirmation of charges against Dominic Ongwen in which Pre-Trial Chamber II reached this conclusion. The Chamber's reasoning rested, inter alia, on the finding that the right to family represents a distinct value, different from the values protected by other crimes in the Statute.Footnote 114 The fact that this was done does not set aside the much-needed recourse to theory. It could, however, highlight that practice already acknowledges the possibility of adopting ‘new crimes’ via the ‘other inhumane acts’ clause.
3.2. Five Distinctive Legal Features of Crimes Against Humanity
In order to classify which crimes amount to crimes against humanity, Luban maintains that one should start by asking which are those crimes that offend against humanness and that implicate the interests of all humankind.Footnote 115 To begin with, and in what he refers to as the first step in answering this question, one has to classify the features that characterise these crimes.Footnote 116 Luban's theory thus starts with his attempt to develop ‘what might be thought of as the “common law” of crimes against humanity – a single set of underlying ideas given varying specifications by different statutes and jurisdictions’.Footnote 117
The first distinctive feature of crimes against humanity, as Luban understands them, is that such crimes ‘are typically committed against fellow nationals as well as foreigners’.Footnote 118 Violations against fellow nationals are the ‘pure case’ of crimes against humanity because they are merely civilian crimes and not also war crimes.Footnote 119 However, this should not imply that crimes against humanity can be committed only against fellow nationals; in fact, they can be committed against any person whatsoever.Footnote 120 The various legal texts that criminalise crimes against humanity refer to their direction against ‘any civilian population’Footnote 121 without specifying whether this is of a domestic or foreign nature.Footnote 122 Also, and this point has some implications regarding the doctrinal aspects of human rights law and specifically the right of return, ‘the human rights that the law aims to defend apply with equal force at home and abroad’.Footnote 123 Chiefly, though, the central aspect of this feature of crimes against humanity is that it highlights the criminalisation of the ‘unique evil’ of the twentieth century – ‘politically organized persecution and slaughter of people under one's own political control’.Footnote 124
The second distinctive feature of such crimes, according to Luban's framing, is that ‘[c]rimes against humanity are international crimes’.Footnote 125 This feature, in large, ‘represents an incursion against state sovereignty’.Footnote 126 It also seems in line with some observations on the nature of international criminal law as such. For example, Miriam Gur-Arye and Alon Harel take an approach to what they call ‘robust internationalism’, according to which ‘the goods of international criminal law and the values it promotes can only be provided by international entities’.Footnote 127 Additionally, Renzo describes this feature as one that embodies the fact that these crimes are those that concern the international community as a whole and not just the domestic political community.Footnote 128 Respectively, Luban argues that this feature is what justifies overriding state sovereignty, therefore turning crimes against humanity into international crimes.Footnote 129
The third distinctive feature, based on Luban's analysis, is that ‘[c]rimes against humanity are committed by politically organized groups acting under color of policy’.Footnote 130 This is what was traditionally regarded as a ‘nexus to state acts’.Footnote 131 However, over time the state action requirement has weakened, mainly because of the need to criminalise acts not committed directly by state officials (such was the case, for example, in the internal conflict in the former Yugoslavia).Footnote 132 Consequently, the Rome Statute adopted a broad view of this issue. What used to be the state action requirement ‘has metamorphosed into a broader “widespread or systematic attack” element, linked with a state or organizational policy’.Footnote 133 This shows that what these requirements have in common is that crimes against humanity are committed ‘through political organization … [a]lthough perpetrated by individuals, they are not individual crimes’.Footnote 134 This distinctive feature of crimes against humanity therefore can be addressed briefly as the requirement of ‘organizational responsibility’.Footnote 135 Thus, the definition of such crimes is one that ‘emphasizes the collective character of the perpetrator’.Footnote 136
The fourth distinctive feature of crimes against humanity, as Luban understands them, is that they ‘consist of the most severe and abominable acts of violence and persecution’.Footnote 137 Severity appears to be the most important distinctive feature of such crimes as they should reflect only the worst offences.Footnote 138 However, as limiting as this may sound, the list of actions that constitute a crime against humanity has expanded over time.Footnote 139 Consequently, this list is likely to continue to grow as we do not have a precise equation according to which we can decide which offences should be regarded as the worst. In Luban's words, ‘[t]he atrocities and humiliations that count as crimes against humanity are, in effect, the ones that turn our stomach, and no principle exists to explain what turns our stomachs’.Footnote 140
Finally, the fifth distinctive feature, according to Luban's theory, is that ‘[c]rimes against humanity are inflicted on victims based on their membership in a population rather than their individual characteristics’.Footnote 141 Put differently, this feature of such crimes aims to show that they are directed towards individuals but on a ‘non-individualized’ basis (or a collective basis).Footnote 142 Essentially, victims become victims for reasons that have nothing to do with their individual characteristics; consequently, this means that victims become such because of their belonging to a specific population (which can be any identifiable group).Footnote 143 Thus, an action will count as a crime against humanity when it is part of an attack on a population, disregarding the individuality of its members.Footnote 144 Similarly, Renzo calls this feature the ‘collective element’, which means that crimes against humanity ‘target victims qua members of a group’.Footnote 145 Importantly, a group (constituting a population) can be small; therefore, even small-scale attacks or persecutions can amount to crimes against humanity.Footnote 146
In sum, crimes that are the most severe international crimes, committed by politically organised groups, which act through policy, and are aimed at individuals based on their membership of a population rather than their individual characteristics are crimes against humanity. What follows now is the second part of Luban's theory, according to which crimes that share these five distinctive features express the notion of ‘politics gone horribly wrong’,Footnote 147 because they ‘violate aspects of humanness pertaining to our political nature’.Footnote 148
3.3. Crimes Against Humanity and Our Character as Political Animals
In this subsection, Luban's articulation of how crimes against humanity violate the image of humanness embedded within them is presented. The question, fundamentally, is which image of humanness do these crimes reflect. Instead of seeking an answer in external sources, Luban suggests that the correct image of humanness (for the purpose of crimes against humanity) should be found within the law of crimes against humanity itself.Footnote 149 Consequently, he identifies that the image of humanness captured by the five features of such crimes presented above is our character as ‘political animals’.Footnote 150
Luban begins by describing the ‘double nature’ of human beings.Footnote 151 Contrary to individuals with an unsociable nature, who need to be bound by political and not natural bonds, sociable individuals can (but do not need to) be bound by political bonds. Luban, as mentioned above, asserts that human beings reflect both by having a double nature (both a sociable and unsociable character, rendering us concurrently as individualists and collectivists).Footnote 152 Building on the concept of human beings as ‘political animals’ is simply Luban's way of recognising our double nature.Footnote 153 This double nature underlines a fundamental fact of our living: namely, our need to live in groups. However, groups also pose a threat to our individual character; therefore ‘human existence involves a perpetual negotiation over the terms of our own belonging to society – a belonging that we need and dread’.Footnote 154
Crimes that consist of the five distinctive features mentioned above violate the core of what it means to be a human being: namely, that we all are political animals. Consider, for example, the feature according to which crimes against humanity are inflicted on victims based on their membership of a population. To recall, being a political animal means having two interrelated characteristics: being an individualist, but also part of a group at the same time. Therefore, the first aspect of being a political animal is our individualistic nature. When an attack is directed towards a group rather than towards its individuals, the individuals are being attacked not for who they are but rather for the group to which they belong. What follows is that our individualistic nature is being compromised by such crimes, simply because our individuality is not taken as a factor by the perpetrator.Footnote 155 Attacks directed towards groups not only violate our individualistic character, but also our sociable character, reflected through the understanding according to which ‘to be human is to live in groups with other humans’.Footnote 156 Luban argues that our need for living in groups is inevitable; therefore, when groups are attacked, humanity is violated just as much as it would have been if human beings were attacked simply because they are alive.Footnote 157 Essentially, because crimes against humanity attack individuals based merely on their group affiliation and target groups through their individual members, these crimes assault humanness as such (that is, of course, as much as we understand humanness in this context as reflecting our nature as political animals).Footnote 158
Consider another distinctive feature of crimes against humanity, namely, that crimes of this nature are committed by states or state-like organisations.Footnote 159 When crimes are committed by groups or organisations they become not just crimes, but rather political crimes: ‘crimes of politics gone cancerous’.Footnote 160 In that sense, crimes against humanity are those that represent a perversion of politics, a situation in which governments that are supposed to protect the people who live in their territory go the other way around, ‘transforming their homeland from a haven into a killing field’.Footnote 161 The remaining distinctive features of crimes against humanity all reflect the same intuitions with regard to the political animal; therefore going over them in depth, within the confines of this article, is unnecessary.
In conclusion, after presenting an overview of several doctrinal aspects of crimes against humanity, this section has examined the five distinctive features of such crimes according to Luban's understanding of them. It then presented the image of humanness which Luban contends is violated by such crimes and which is reflected by the law of crimes against humanity itself. The image of humanness discussed here is that of human beings as political animals. As discussed in depth above, crimes against humanity offend against the two characteristics of the political animal through the perversion of politics. First, they assault our individualistic character, or our inherent unsociability; second, they assault our group character, or our inherent sociability.
4. Discussion
After thorough consideration of the right of return in Section 2 and crimes against humanity in Section 3, this part presents my main argument. I will argue that as much as we understand the right of return as justified by the human need to belong and by the objective of preventing rightlessness, there exists a strong connection linking these justifications with the nature of human beings as political animals that is reflected in the law of crimes against humanity. The section starts with a discussion of the two defining characteristics of the political animal, our ‘double nature’ as human beings, which I believe are echoed through the justifications presented for the right of return. In essence, I consider that the human need to belong best captures our inherent sociable characteristic, while the goal of preventing rightlessness best captures our inherent unsociable characteristic. What follows is that, generally, denying the right of return is similarly an assault against human beings as political animals, which is an assault against humanness as such, thus rendering such conduct a crime against humanity. I then address a few contentions raised against my conclusion, and consider the Rohingya situation as an illustration of my argument.
4.1. Denial of the Right of Return as an Assault on the Double Nature of Human Beings
First, let us recall the ‘double nature’ of human beings. As mentioned above, we all reflect a double nature: we are individualistic (or unsociable), but at the same time are also group members (or sociable). This double nature is referred to by Luban in his formulation of human beings as political animals. It is within the nature of the political animal to live in groups; however, groups also pose a threat to the political animal's individualistic character. Therefore, human beings are constantly negotiating the terms of belonging to a society, simply because they cannot act otherwise and because to ‘be human is to live in groups with other humans’.Footnote 162 Crimes against humanity offend against these two characteristics of the political animal through the perversion of politics.
If I am correct, each of these characteristics is also reflected within the two justifications for the right of return. Therefore, when the right of return is denied, these characteristics are usually compromised as well, turning such denial into a crime against humanity. I believe that both justifications work in tandem – the two of them echoing both of our characteristics: our sociable and unsociable character. However, it seems as if the ‘need to belong’ justification better reflects our sociable character, while the ‘rightlessness’ justification better reflects our unsociable character.
Importantly, however, not every individual whose right of return has been denied was the subject of a crime against humanity. Reasonable and lawful decisions resulting in such denial do not entail criminal responsibility.Footnote 163 In contrast, those denials of return that represent a perversion of politics, committed by a government against the same people it ought to protect, acting through policy and aimed at individuals based on their group affiliation rather than individual characteristics, are those that should be criminalised. As Theodor Meron puts it, resonating with Luban's theory, an act would be a crime against humanity so much as it is ‘the unique result of the criminal exercise of state sovereignty’.Footnote 164
The human need to belong is, in Miller's words, one that reflects the ‘special nature of the ties that exist between a person and the country she recognizes as “home” and therefore the importance of having secure and ongoing access to that place’.Footnote 165 The concept of a ‘home’ to which we need to belong can combine some features. Apart from being a physical place, it can also be a cultural way of living, a political community, or yet simply a group of people living together. Moreover, Miller also highlights the relationship between an individual's right of return and the actions of the whole community consisting of individuals who are currently outside their homeland. In sum, if no member of a community is left in a given place, the relationship comprising the need to belong between land, people, culture and politics is no longer exercised there.Footnote 166 In such situations, as much as an individual has the desire to return, she depends on the other members of her group, because if they do not (or cannot) also go back she simply will not be able to exercise by herself her need to belong.Footnote 167 Therefore, when attacks are directed towards groups (a distinctive feature of crimes against humanity), such as through denial of the right of return based on group affiliation, this assaults our sociable nature. Simply put, because our need to belong is inevitable, and is usually also tied with the actions of the community surrounding us, such denial prevents human beings from exercising their basic sociable nature. This sociable nature, as already mentioned, can usually only be exercised in a specific place (hence, the seeking of return).
The second characteristic of the political animal, our unsociable nature, seems to be reflected in the objective of preventing rightlessness as a justification for the right of return. The ‘rightlessness’ justification also highlights the political nature of crimes against humanity. Let us look back at Arendt's notion of the rightless. Arendt recognises that the first loss to be suffered by the rightless was the loss of their homes, which is what she understands as the loss of the place in which they ‘established for themselves a distinct place in the world’.Footnote 168 The loss of a home, or of one's distinct place in the world, echoes our individualistic nature. Think of Frelick's observation, according to which the crucial aspect of the right of return is based on the fact that when one is deprived of her homeland, to which she belongs, such deprivation goes to the heart of her ‘immutable characteristics’, which comprise her personal identity.Footnote 169 Similarly, recall Mallett, who argues that for many a home is an expression of ‘identity and sense of self’.Footnote 170 These observations highlight the individualistic aspect of the right of return, rooted also in Arendt's understanding of the rightless.
Moreover, Arendt recognises a second loss of the rightless: namely, their loss of governmental protection leading to a complete ‘loss of political status’.Footnote 171 The loss of political status is a situation that interacts both with our unsociable character (one is denied her status) and with our sociable character (reflecting the inevitability of our need to live in groups). Recall here that through groups we create politics and through politics human beings constantly negotiate the terms of their belonging to a society. What follows, I believe, is that through our individualistic needs (to have our distinct place in the world and to enjoy political status), and through negotiations we make over the terms of our living in a society, we create distinct homelands made up of physical and cultural aspects. Both of these aspects are closely linked, as there is a relationship between the land which makes up a homeland and the cultural life of the group that lives within it. For instance, over time a group ‘will typically have imprinted the land with its own distinctive culture’.Footnote 172 This explains why human beings seek return to a specific place, and not just to any place. Most importantly here, when attacks are directed towards groups rather than towards individuals (as is the case with crimes against humanity) our individual rights and needs, comprising our individualistic nature, are being compromised. That is simply because our individuality, reflected here by the notion of rightlessness, is not considered a factor by the perpetrator, which sees us merely as members of the group of which we are part.Footnote 173 This is how denial of the right of return, understood through the rightlessness prism, assaults the second characteristic of the political animal.
Our sociable nature is also reflected in the ‘rightlessness’ justification. When we are denied return, we face the risk of becoming rightless because we are left outside the pale of our group, which is usually the one that is ‘willing and able’ to guarantee our rights,Footnote 174 and which living within is also an inherent human need. Moreover, the ‘calamity’ of the rightless is not the deprivation of their individual rights (such as the right of expression or liberty), but rather the fact that they no longer belong to any community whatsoever.Footnote 175 Therefore, as much as we are able to exercise our sociable character, we protect ourselves from becoming rightless.
Also, even if several members of the group are currently living together outside their state, their sociable character can still be at stake. This, I suggest, is because of the interaction between the ‘rightlessness’ justification and the ‘need to belong’ justification. As much as the homeland culture (at the place to which return is sought) – comprising various elements to which individuals share a need to belong – indeed shapes the local political institutions (which reflect our sociable character),Footnote 176 then even exercising some of our sociable aspects might not be enough to satisfy our group nature if we do so outside the place to which we belong. When we understand rightlessness as a situation on a continuum rather than ‘an “either/or” proposition’,Footnote 177 it makes even more sense to regard group members living together outside their state as rightless. This is because even if nowadays we all belong to some form of a community (such as the international community), we can still be regarded as rightless so far as we no longer understand rightlessness only as an either/or proposition. This, once more, highlights how denial of the right of return, justified by the goal of preventing rightlessness and by the need to belong, assaults the sociable character of the political animal.
The ‘rightlessness’ justification also highlights the political aspect of crimes against humanity. According to Luban, crimes against humanity are such because they are committed through ‘organizational responsibility’. This, in turn, is what makes them political crimes: ‘crimes of politics gone cancerous’.Footnote 178 Such an understanding of crimes against humanity reflects the intuition according to which they represent a perversion of politics, a situation in which a government uses its force against the very people it ought to protect.Footnote 179 When a government denies the right of return, it leaves the individuals denied outside the pale of their political community, a community to which they not only belong but on which they are also dependent. Therefore, such acts render individuals rightless because the political organisations responsible for them use their powers to leave them outside the boundaries of the community that is normally the one ‘willing and able’ to guarantee their rights.Footnote 180 This, I believe, is exactly the situation that represents a perversion of politics, a politically organised attack rather than protection.
To conclude, after showing how the two justifications for the right of return represent the two characteristics of the political animal, and after showing how a denial of return assaults these characteristics, I will now address one important implication deriving from my argument. As discussed in Section 2, Miller argues that the right of return weakens over time and therefore should be ‘time restricted’.Footnote 181 Broadly, this is because the need to belong is connected with actual physical, cultural and political aspects. If too long of a time has passed, the need to belong to that place gradually weakens and what is left are mostly memories of a place that may once have existed but no longer does.Footnote 182 Additionally, over time it makes sense that at least some individuals will have exercised their need to belong in the place in which they currently reside. This is all to say that this time restriction means that a denial of return will not always amount to a crime against humanity. Substantially, this will be the case in situations in which the need to belong is simply too weak (therefore, not assaulting our nature as political animals).Footnote 183 The ICC Prosecutor seems to understand this intuition also, arguing that a violation of the right of return occurs inasmuch as it happens ‘sufficiently close in time to the victim's initial displacement’.Footnote 184
On the contrary, it could be argued that, as far as the ‘rightlessness’ justification stands on its own, if denial renders an individual rightless, albeit that the need to belong is not sufficiently strong, it might still amount to a crime against humanity. I assume that Miller would also agree that if no other place is willing to accept a person, the need to avoid statelessness (resulting in rightlessness) might be enough to establish a link between that person and a specific place (even when the need to belong is too weak).Footnote 185 I believe, however, that because the two justifications for the right of return are so closely interlinked, they affect one another in a way that will usually not turn denial of the right in such situations into a crime against humanity. However, this also depends, to some extent, on the actions or inactions of the state in which the individuals denied of return currently reside.
Finally, this conclusion is not contradicted by the fact that under international criminal law the passage of time since the commission of a crime is irrelevant. Those who had a sufficient connection with the place to which they were denied return are to be regarded as victims of a crime against humanity even if a long period has passed, and even if they currently no longer have a physical place to which to return. In this sense, even if their former homeland has disappeared, their current inability to exercise their right of return does not mean that criminalisation should be abandoned. Again, that is the case so long as when return was possible, what was then the state they called home denied their entry. However, the need of their descendants to belong might not be sufficiently strong to justify acknowledging them as victims of the same crime. Similarly, they are likely to be under the protection of a new political community of which they are now part. Long-term refugee situations could potentially undermine this last point. Nevertheless, in such instances the right of return seems to be less relevant, as it is not only the interest in a specific place that is missing but also its existence. This, however, does not mean that in such scenarios other violations of international norms will not take place. Be that as it may, to resolve this issue fully is beyond the scope of this article.
4.2. On Some Contentions
It is necessary to point out and discuss some contentions to the view I have presented above. Most importantly, why criminalise acts that amount to denial of a person's right of return to their country? In this sense, some commentators might be hesitant in accepting that the adoption of a ‘new’ crime against humanity is the plausible reaction to the specific type of suffering caused by denial of the right of return. It could be argued, for instance, that if we overly broaden the concept of crimes against humanity, the concept will lose its significance under international law. This view seems to resonate with the fear of at least some states during the drafting process of the Rome Statute that ‘the law of crimes against humanity was too ambiguous and might be used by activist judges not simply to deal with atrocities but as a tool of “social engineering”’.Footnote 186 While this fear did not eventually result in a closed list of crimes against humanity (as a result of the ‘other inhumane acts’ clause), it may be reflected in the general caveat according to which the jurisdiction of the ICC ‘shall be limited to the most serious crimes of concern to the international community as a whole’.Footnote 187 Therefore, generally, even if denials of the right of return are of international concern, this does not necessarily imply that international criminal responsibility is the desirable solution.
This argument should be taken seriously, as adopting new crimes should be undertaken with caution. Nevertheless, this does not mean that we should refrain from doing so; international law should be able to adapt to respond to the suffering of individuals and groups.Footnote 188 More specifically, acknowledging violation of the right of return as a crime against humanity does not mean that all violations of human rights should be criminalised. Furthermore, the desire to limit the concept of crimes against humanity does not undermine the moral intuitions presented in this article. However, a possible safeguard against over-expansion is to differentiate between basic and non-basic rights, regarding the former as those required in order to enjoy all other rights.Footnote 189 Thus, we can claim that only those rights that are crucial in order to enjoy other rights, such as the right of return (shielding us from becoming rightless), are to be criminalised when violated. This also seems to be rooted in the requirement that ‘other inhumane acts’ are only those of a ‘similar character’ to the enumerated crimes against humanity in the Rome Statute.Footnote 190 However, as much as this view might be important to ensure that the concept of crimes against humanity will not be overly expanded, it still does not fully account for why criminality is needed in this specific context.
One argument in favour of criminalisation could be based on deterrence. While research on the deterrence effect of international criminal law is not conclusive,Footnote 191 there certainly appear to be good reasons to regard the ICC as an institution with a stigmatising effect, which is likely to have contributed to a decline in certain types of violence since its formation.Footnote 192 States tend to go a long way in order to avoid ICC intervention and the stigma that its operation entails.Footnote 193 Be that as it may, there are other reasons in favour of criminalising the act of denying an individual's right of return. For instance, labelling an act a crime against humanity ‘might help to build respect for a norm against it’.Footnote 194 This is an important aspect and justification for international criminal law as a means to bolster respect for international norms.Footnote 195 In this sense, regarding an act as a crime against humanity serves at least as a baseline that reaffirms our condemnation of the crime.
Finally, a further related contention might be that the ICC itself is not the most appropriate body to deal with these situations, whether as a result of its flaws or lack of universal support, or because the return of large populations should be regulated by means of diplomacy rather than the courts. While this might be true to some extent, the moral intuitions underlying an understanding of an act as a crime against humanity should not be affected by the body which is likely to become involved in a case involving the crime. Further, that an act is a crime against humanity does not necessarily mean that it should be prosecuted by the ICC, as states themselves can bring a prosecution and the ICC is a court of last resort.Footnote 196 However, there seem to be certain benefits that accompany the ICC's involvement in a situation, specifically important in the context of the right of return. A good example would be the opportunity for victims to enjoy monetary or other forms of reparation via the relevant ICC mechanisms.Footnote 197 This seems specifically compelling in situations in which victims cannot currently return to their homeland (or where such homeland no longer exists), as they nevertheless deserve a form of compensation and closure for their suffering.
Therefore, and even if the current reparations regime is not yet flawless, I argue that the mere possibility of receiving reparations is a strong point in favour of the conclusion to this article. When we acknowledge denial of the right of return as a crime against humanity, we open the door to the ICC for victims of such acts, offering them an important form of relief for their suffering. As stated above, this is even more crucial in those tragic situations in which victims cannot (now or ever) go back to the place to which they seek return. Finally, through reparation orders, the ICC also ‘gives public acknowledgement to the suffering which the grave crimes committed by the convicted person caused to the victims’.Footnote 198 This, I believe, is yet another example of the benefits that accompany ICC involvement.
4.3. The Rohingya Situation
This section addresses the Rohingya situation as an illustration of the discussion above. In this regard it is key to note that the main thesis of this article is not limited to this particular situation. However, this case is specifically relevant because, as part of the proceedings related to it, arguments in favour of criminalising the act of denying the right of return were put forward. These arguments, I believe, call for a deeper observation such as that offered in this article.
In short, the Rohingya is an ethnic minority group of predominantly Muslim faith, residing mostly in the Rakhine state situated in the west of Myanmar.Footnote 199 The Rohingya people have suffered ‘decades of particularly severe discrimination by the Myanmar Government’.Footnote 200 As reported by the UN International Fact-Finding Mission on Myanmar, the Rohingya are subject to an absence of legal status, which results in numerous human rights violations,Footnote 201 all of which make their lives gradually ‘more and more untenable’.Footnote 202 Over the past decade, the Rakhine state has suffered from waves of violence which have deeply affected the Rohingya population residing within the region. Consequently, by September 2018 there were over a million Rohingya from Myanmar living in refugee camps in Bangladesh.Footnote 203
According to the report of the UN International Fact-Finding Mission on Myanmar, the Rohingya situated in these camps are ‘entirely dependent on humanitarian aid’.Footnote 204 Moreover, despite the increased vulnerability caused by these dire conditions (‘in particular for women and girls’),Footnote 205 and despite other forms of abuse and human rights violations that are currently under investigation by the ICC Office of the Prosecutor, what is also apparent is the desire by many Rohingya to return to Myanmar, where they feel they belong.Footnote 206 This is despite the fact that the authorities in Myanmar allegedly detain those who attempt to return,Footnote 207 and have also made ‘active efforts to prevent this return, through the consolidation of the destruction of Rohingya villages, through … erasing every trace of the Rohingya communities’, and more.Footnote 208
In this sense, it is not only the likelihood of renewed persecution or other abuses that await the Rohingya upon their return. Rather, the authorities in Myanmar are directly engaged in acts designed to render the Rohingya's return impossible. For instance, in addition to destroying their villages, authorities in Myanmar allegedly construct on their lands ‘houses for other ethnic groups’, as well as ‘[o]ther infrastructure projects appropriating Rohingya lands, including new roads and mines’.Footnote 209 These acts were not conducted only in order to coerce the Rohingya into leaving but have rather continued to take place after they left.Footnote 210 Further, in 2017 the Prime Minister of Bangladesh expressed horror at the alleged laying of landmines along the border between the states in order to prevent the Rohingya from returning to Myanmar.Footnote 211 Finally, Myanmar's Minister for Social Welfare, Relief and Resettlement stated that there is a need to follow legislation that allows for the government to nationalise burnt land.Footnote 212 As this would allow the government to appropriate burnt Rohingya lands, this further demonstrates that return is not only unlikely but is also deliberately being acted against.Footnote 213
Even if some of the acts that make the return of the Rohingya to Myanmar practically impossible could be treated as crimes against humanity on their own, this does not mean that an act which principally denies the right of return cannot meet the requirements to be regarded as such a crime in itself.Footnote 214 In the context of the Rohingya, such an act seems to be in line with the distinctive features of crimes against humanity. It is among the most severe international crimes and, while no clear principle exists to define severity, it seems as if the scale, duration and persecutory nature of the act deem it to be of sufficient severity. Moreover, the act of denying return in this context is committed by politically organised groups, acting through policy (together with other actsFootnote 215 aimed at attacking and erasing the Rohingya's presence), and directed towards individuals based on their membership of a group rather than their individual characteristics.
Crimes consisting of these features are those that assault our double nature as political animals; therefore, they are crimes against humanity. When the right of return is denied this double nature of ours is also echoed through its justifications. To conclude, I present and build on a quote by Gu Dar Pyin, a Rohingya refugee, who was interviewed by the UN International Fact-Finding Mission on Myanmar, and whose words seem to highlight just how important is the right of return and why denying it in such situations should amount to a crime against humanity:Footnote 216
If the Government would accept us I would go back. I want the same rights as all other Myanmar citizens. I love my country so much. My father and mother are buried there. I have my paddy fields. Here in the camps it's difficult. I do not want to spend my life sitting in this camp. I want to work.
Gu Dar Pyin wishes to exercise his need to belong, one that is strongly connected with his sociable nature. When his right of return is denied as part of an attack directed against the group of which he is a member, and simply because of that, his need to belong (to return to the country he loves and to the place where his ancestors are buried), comprising his sociable nature, is compromised. Such is also the case because the denial of his right of return interferes with his inherent need to live within a group. Similarly, Gu Dar Pyin wishes to protect himself from becoming rightless, a desire strongly connected with his unsociable nature, which is also being compromised. He can only fully exercise his unsociable nature within Myanmar because Myanmar is where distinct political institutions that reflect the Rohingya culture, among others, are present. Therefore, by being left outside Myanmar he is also left without political status; he is no longer in the distinct place he regards as his home, and he is outside the pale of the political community that is usually willing and able to guarantee his rights. Therefore, Gu Dar Pyin is in a situation of rightlessness. This situation highlights how Myanmar's government is perverting politics by attacking the Rohingya through denial of their right of return instead of protecting them. This is why I consider that the intuitions according to which denying the right of return could amount to a crime against humanity are correct, and that theory also supports this recent doctrinal development.
5. Conclusion
This article offered a theoretical rationalisation of and justification for a recent doctrinal development, according to which denial of the right of return could amount to a crime against humanity. To make its case, the article began by presenting two justifications for the right of return. These justifications were then analysed in conjunction with David Luban's theory of crimes against humanity. This analysis, I believe, demonstrated that the basic human interests reflected through the justifications for the right of return are likewise those reflected by the image of humanness embedded within the law of crimes against humanity (human beings as political animals). Consequently, it is this connection that justifies understanding denial of the right of return as a crime against humanity. Such is the case because generally this connection renders acts of denial of the right of return as assaults against human beings as political animals, which in turn are also assaults against humanness as such. Assaults against humanness as such are those that should be regarded as crimes against humanity.
Apart from illustrating its main thesis, the aim of the article is also to contribute to the ever-growing theoretical discourse on crimes against humanity. Furthermore, I believe that concluding that some acts are to be regarded as crimes against humanity not only expresses revulsion of them, but also supports the growth of the international criminal justice system. Nonetheless, some issues deriving from the conclusions drawn in this article are yet to be resolved. For instance, what most likely requires further attention is a thorough discussion of the time restriction of the right of return (if such restriction, at all, exists). A limiting time-restriction approach will result in a narrower interpretation of the crime against humanity of denying return (and vice versa). Be that as it may, time will also tell if and how the ICC will ultimately address the right of return, whether in the Bangladesh/Myanmar situation or in other future situations.
