AN APPRAISAL OF THE DEVELOPMENT OF LEGAL FRAMEWORK OF CRIMES AGAINST HUMANITY IN INTERNATIONAL LAW
CHAPTER ONE
GENERAL INTRODUCTION
1.1 Background of the Study
The first forty years after the Nuremberg Trial was a period of slow progress in developing international criminal law. There is no doubt that international criminal law has developed as a distinct field of study in recent years. Indeed if international criminal law is defined as the prosecution of individuals for ‗international crimes‘ such as war crimes or Crimes Against Humanity then there was no such law for most of the twentieth century. On the eve of the twentieth century attempts to regulate warfare in The Hague Conference of 1899, and again in 1907, were constrained by notions of State sovereignty. As the Nuremberg judges pointed out the following in 1946, ‗The Hague Convention nowhere designates such practices (methods of waging war) as criminal, nor is any sentence prescribed, nor any mention made of a court to try and punish offenders.‘
The Nuremberg trials established that all of humanity would be guarded by an international legal shield and that even a Head of State would be held criminally responsible and punished for aggression and Crimes Against Humanity. The right of humanitarian intervention to put a stop to Crimes Against Humanity – even by a sovereign against his own citizens-gradually emerged from the Nuremberg principles affirmed by the United Nations.
The awareness of the inadequacy of the law and the willingness to do something to enforce such new principles was slow in coming. The failure of the international community to develop binding norms of international criminal law was glaringly illustrated by the slow pace of various UN committees charged in 1946 with drafting both a code of crimes against the peace and security of mankind and the statutes for an international criminal court.
While the law limped lamely along, international crimes flourished. The horrors of the twentieth century are many. Acts of mass violence have taken place in so many countries and on so many occasions it is hard to comprehend. According to some estimates, nearly 170 million civilians have been subjected to genocide, war crimes and Crimes Against Humanity during the past century. The World Wars led the world community to pledge that ―never again‖ would anything similar occur. But the shocking acts of the Nazis were not isolated incidents, which we have since consigned to history. Hundreds of thousands and in some cases millions of people have been murdered in, among others, Russia, Cambodia, Vietnam, Sierra Leone, Chile, the
Philippines, the Congo, Bangladesh, Uganda, Iraq, Indonesia, East Timor, El Salvador, Burundi, Argentina, Somalia, Chad, Yugoslavia and Rwanda in the second half of the past century. But what is possibly even sadder is that the International Community have witnessed these massacres passively without been proactive. The result is that in almost every case in history, the person responsible for carrying out these atrocities is not punished despite the existence of the constitutive international instruments and the judicial institutions (such as International Criminal
Court) and ad hoc tribunals such as the International Tribunal for Former Yugoslavia and International Tribunal for Rwanda.
Not until the world was shocked by the ethnic cleansing in the former Yugoslavia and the genocide in Rwanda could the UN, no longer paralyzed by the Cold War, take action. Nations that had been unwilling to intervene to block the carnage now recognized that some action was essential. For the first time since Nuremberg, a new international criminal tribunal was quickly put in place on an ad hoc basis by the UN Security Council. Under the impetus of shocked public demand, it became possible for the UN Secretariat to draft the statutes for the International Criminal Tribunal for Yugoslavia in about 8 weeks – the same time it had taken to agree upon the Charter to the International Military Tribunal at Nuremberg. The ICTY began functioning in
1994. It led to the speedy creation of a similar ad hoc tribunal to deal with genocide and Crimes Against Humanity in Rwanda.
Up until the present the international community has been very reluctant to enforce international criminal law. It has only been done a couple of times in history, without doubt due to the specific circumstances and the political climate at the time. The idea of establishing a permanent international criminal court is not new though. Attempts in that direction were taken as nearly as the end of World War I, but the international community never reached agreement on the matter.
The ICC‘s predecessors are primarily the Nuremberg and the Tokyo Tribunals created by the victorious Allies after World War II. These tribunals have been accused of being unfair and merely institutions for ―victor‘s justice,‖ but nevertheless they did lay the groundwork for modern international criminal law. They were the first tribunals where violators of international law were held responsible for their crimes. They also recognized individual accountability and rejected historically used defenses based on state sovereignty. These principles of international law recognized in the Nuremberg Charter and Judgments were later affirmed in a resolution by the UN General Assembly.
The International Law Commission (ILC), a body of distinguished legal experts acting at the request of the General Assembly, completed its draft statute for a permanent international criminal court in 1994. In 1996, the ILC finally completed its draft code of crimes against the peace and security of mankind. This new momentum reflected widespread agreement that an international criminal court, with fair trial for the accused, should be created as an essential component of a just world order under law.
After years of work and struggle, the promise of an International Criminal Court with jurisdiction to try genocide, war crimes and Crimes Against Humanity has become a reality. In 1998, the statute of the Court was approved in Rome and it entered into force on the first of July of 2002, after achieving 60 ratifications . Now, only a few years after ratifications/accessions has risen from 60 to 120.5 The Court holds a promise of putting an end to the impunity that reigns today for human rights violators and bringing us a more just and more humane world.
No record exists of how the term ―crimes against humanity‖ came to be chosen by the framers of the Nuremberg Charter. The term was selected by Justice Robert Jackson of the US
Supreme Court, Chief Prosecutor at Nuremberg and the Head of the American delegation to the London Conference of US (the three constituting those that frame the Charter).
In 1915, the French, British, and Russian governments had denounced Turkey‘s Armenian genocide as ‗crimes against civilization and humanity‘, and the same phrase appeared in a 1919 proposal to conduct trials of the Turkish perpetrators. But the United States objected at that time that the so-called ―laws of humanity‖ had no specific content, and the proposal to try the Turks was scuttled. The phrase ―crimes against humanity‖ has acquired enormous resonance in the legal and moral imaginations of the post-World War II. It suggests, in at least two distinct ways, the enormity of these offences. First, the phrase ―crimes against humanity‖ suggests offences that aggrieve not only the victims and their own communities, but all human beings, regardless of their community. Second, the phrase suggests that these offences cut deep, violating the core humanity that we all share and that distinguishes us from other natural being .
The term ―crimes against humanity first appeared in positive international law in Article 6(c) of the Charter of the International Military Tribunal (IMT), in 1946, which defined crimes against humanity as a constellation of prohibited acts committed against a civilian population.
The Charter further defined crimes against humanity as ―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 domestic law of the country where perpetrated. The category of crimes against humanity was added to the Charter because it was feared that under the traditional formulation of war crimes, many of the defining acts of the Nazis would go unpunished? The crimes against humanity count in the
Nuremberg. The crimes against humanity charge confirmed that citizen‘s are under the
protection of international law even when they are victimized by their compatriots .
Furthermore, the criminality of such acts ―whether or not in violation of the domestic law of the country where perpetrated established the supremacy of international law over municipal law in this way, the prohibition of crimes against humanity at Nuremberg had the potential to irretrievably pierce the trope of sovereignty ―a rule of international law which provides that no state shall intervene in the territorial and personal sphere of validity of another national legal order10.
The definition of crimes against humanity in the Charter of the International Military Tribunal contained a curious limiting principle the Nuremberg Tribunal could assert jurisdiction only over those crimes against humanity committed ‗before or during the war‘ and ‗in execution of or in connection with any crime within the jurisdiction of the Tribunal‖, i.e., war crimes or crimes against the peace . This formulation became known as the ―war nexus‖, and it is apparent that the Charter‘s drafters and the Nuremberg Tribunal itself considered the war nexus necessary to justify the extension of international jurisdiction into what would otherwise be acts within the domestic jurisdiction of a state.
