Prosecution of international crimes
At the end of the Second World War, the victorious powers established the Nuremberg International Military Tribunal to try the 'major war criminals of the European Axis' and the Tokyo Tribunal to try the 'major war criminals in the Far East'. These two Tribunals tried individuals for crimes against peace (aggression), war crimes, and crimes against humanity (in connection with aggression or war crimes). The Nuremberg Tribunal sentenced 12 defendants to death, and five defendants to long sentences of imprisonment. The Tokyo Tribunal sentenced seven defendants to death and 16 received life sentences. For some, the purpose of these trials was to demonstrate that the Allies were better than the Fascists, and to serve an educational purpose. However, the trials can also be seen in other ways. From one perspective, they represented victor's justice: war crimes which may have been committed by the Allies were beyond the jurisdiction of the Tribunals, and the charges of crimes against peace and crimes against humanity seemed to rest on rather uncertain legal ground. From another perspective, the Nuremberg judgment initiated a new way of thinking about international law and its impact on the individual. The defendants were seen as having violated the international law of war, a law that could be gleaned from general principles of justice applied by military courts.
The Tribunal declared: 'This law is not static, but by continual adaptation follows the needs of a changing world.' The Tribunal went on to dismiss any notion that this law was confined to duties for states or that individuals could hide behind traditional notions of state immunity: 'Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.' Furthermore, the development of the category of crimes referred to as 'crimes against humanity' finally cemented the idea that international obligations are owed to individuals because of their human worth, rather than because they are protected abroad by their state of nationality, or are protected through an ad hoc treaty protecting national minorities.
This concept of crimes against humanity in international law can be traced back to a 1915 Joint Declaration by France, Great Britain, and Russia concerning the Armenians. The diplomatic exchanges show that the original Russian draft declaration referred to crimes 'against Christianity and civilization'. The French were, however, worried that care should be taken that the Muslim population living under French and British rule would not conclude that the interests of these two powers led to action only when Christians were threatened.
The British concurred that the phrase could be omitted. The Imperial Russian Foreign Ministry had been appealed to by the Armenian Dachnaksoutiun 'for the love of humanity' to hold the members of the government individually responsible. Rather than omitting the phrase, the Russians successfully proposed to replace 'Christianity' with 'humanity'. The final Declaration referred to specific sites and stated that in view 'of those new crimes of Turkey against humanity and civilization', the Allied governments would 'hold personally responsible' all those 'implicated in such massacres'. In fact, the promise by Turkey in 1920 to hand over those persons whom the Allies considered responsible for the massacres was contained in a treaty that never entered into force, and the later 1923 peace treaty included a declaration of amnesty.
The category of crimes against humanity was used in the 1945 Nuremberg Charter to ensure that the deportation of Germans by Germans to the concentration camps, and their subsequent mistreatment and extermination, could be prosecuted. Under the international laws of war at that time, the way in which a government treated its own nationals (no matter how heinous) was considered by international law as exclusively a matter of domestic jurisdiction, rather than an issue of international concern.
The concept of crimes against humanity was therefore used to include these atrocities as part of the international prosecution. The Allies were, however, careful to ensure that crimes against humanity were included only to the extent they were connected to the war. At the time, this was to ensure the concept could not be easily extended to prosecute those who might be accused of mistreating the inhabitants of the colonies or the United States.
The General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide on 9 December 1948 to remedy the limitations of the concept of crimes against humanity used in the Nuremberg Tribunal. The Convention declares that genocide is a crime under international law whether committed in time of peace or of war. It defines genocide as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
Conceived in the context of the Holocaust by Raphael Lemkin, a determined Jewish lawyer from Poland, the concept of genocide was enshrined in the new Convention to create obligations on states to prevent and punish genocide. Importantly, the Convention makes the individual perpetrator punishable 'whether they are constitutionally responsible rulers, public officials, or private individuals'. The Convention has been central to the work of the ad hoc international criminal tribunals established by the Security Council to deal with crimes committed in the former Yugoslavia and in Rwanda.
The former Prime Minister of Rwanda, Jean Kambanda, was sentenced to life imprisonment for genocide and crimes against humanity. Radislav Krstic, Chief of Staff of the Bosnian Serb Army (Drina Corps), was sentenced to 35 years' imprisonment for aiding and abetting genocide in Srebrenica by allowing military personnel under his command to be used for the murder of about 8,000 men.
Even if crimes against humanity were generally seen as something different from human rights, today genocide and other crimes against humanity are increasingly seen as part of the human rights story. By 1991, the terms were intermingled by the International Law Commission in its draft Code of Crimes against the Peace and Security of Mankind when it used the expression 'systematic or mass violations of human rights' as the title of the article that was to become 'crimes against humanity' in 1996.
W. A. Schabas, Preventing Genocide and Mass Killing: The Challenge for the United Nations
In October 1946, only days after the judgment of the Nuremberg Tribunal, Cuba, India, Panama and Saudi Arabia demanded that the first session of the General Assembly correct the limitation on the concept of crimes against humanity that the four great powers had imposed.
They proposed this be done not by redefining crimes against humanity in order to eliminate the nexus with armed conflict but by acknowledging the existence of a cognate concept, the international crime of genocide. There was a price to pay, however, to get the great powers to agree with liability for atrocities committed against their own populations in time of peace, something they had refused for crimes against humanity. The first was the narrowness of the definition of the crime of genocide. The categories contemplated for the crime of genocide were limited to 'national, ethnical, racial or religious' groups, whereas crimes against humanity covered other forms of discriminatory criteria, such as political groups.
This developing recognition that certain violations of human rights could be prosecuted under international law was reflected in the lists of crimes triable before the International Criminal Tribunals for the former Yugoslavia and Rwanda. The UN Security Council established these Tribunals in the 1990s as a rather belated response to the atrocities committed in the former Yugoslavia and Rwanda, respectively. This time the Tribunals were given no jurisdiction over crimes against peace but could try individuals for three types of international crimes: genocide, crimes against humanity, and war crimes.
The International Criminal Court, which came into existence in 2002, now has jurisdiction over certain individuals for a similar set of crimes (including a long list of crimes against humanity). In contrast to the Tribunals mentioned above, where jurisdiction was established due to victorious occupation or a binding decision of the UN Security Council, the International Criminal Court may usually only try individuals who either have the nationality of a state that has accepted to be bound by the Court's Statute, or who have committed their crimes in such a state. There now over 100 such states, including Afghanistan, Australia, Burundi, Canada, Colombia, Democratic Republic of Congo, Germany, Italy, Jordan, Liberia, Nigeria, Peru, Senegal, Sierra Leone, Uganda, and the United Kingdom. Additionally, if the Security Council considers that a situation threatens international peace and security, it can refer that situation to the Court's Prosecutor for investigation and an eventual prosecution of individuals accused of genocide, crimes against humanity, or war crimes. This happened in 2005 with regard to the situation in Dafur (Sudan). At the time of writing, the Prosecutor was also investigating crimes committed in Uganda and in the Democratic Republic of Congo. The first arrest concerned Thomas Lubango Dyilo (allegedly from the rebel group Union des Patriotes Congolois) accused of war crimes including 'enlisting and coscripting children under the age of 15 and using them to particiate actively in hostilities'.
International Criminal Tribunal for the former Yugoslavia Krstic case
By seeking to eliminate a part of the Bosnian Muslims, the Bosnian Serb forces committed genocide. They targeted for extinction the forty thousand Bosnian Muslims living in Srebrenica, a group which was emblematic of the Bosnian Muslims in general. They stripped all the male Muslim prisoners, military and civilian, elderly and young, of their personal belongings and identification, and deliberately and methodically killed them solely on the basis of their identity.
The Bosnian Serb forces were aware, when they embarked on this genocidal venture that the harm they caused would continue to plague the Bosnian Muslims. The Appeals Chamber states unequivocally that the law condemns, in appropriate terms, the deep and lasting injury inflicted, and calls the massacre at Srebrenica by its proper name: genocide. Those responsible will bear this stigma, and it will serve as a warning to those who may in future contemplate the commission of such a heinous act.
It is perhaps too early to see how the International Criminal Court will develop to protect human rights. The important point is that everyone has been put on notice that they could end up as a defendant before this court should they commit, or assist others to commit, certain international crimes that violate human rights.
This has raised awareness in all quarters about what behavior is acceptable, even in times of war. The existence of the Court is clearly not enough to stem the tide of vicious human rights violations - only a handful of people will be tried in the coming years - nevertheless, we must hope that some people in some places are dissuaded from committing human rights violations some of the time.
These international judicial arrangements are not without their critics. On the one hand, the US Government has opposed the International Criminal Court until it can be sure that it will be impossible for the Court to sit in judgment on US citizens. On the other hand, following the publicity given to the International Court's arrest warrants for the leaders of the rebel Lord's Resistance Army in Uganda, some argued that this disrupted the peace negotiations, generated a further round of violence, and exposed potential witnesses to unacceptable risks. A further line of criticism argues that the international tribunals shift the focus away from the communities that need to come to terms with their own history and delay the development of national legal systems that can enjoy the confidence of the people. The decision to try Saddam Hussein in a Baghdad court, however, illustrates how problematic it can be to mount local prosecutions for human rights crimes. Witnesses and lawyers were intimidated and killed; the judges were subjected to political pressure, and Saddam
Hussein was sentenced to be hanged by the neck until dead. The manner of the execution itself attracted the most vehement criticism as the taunting was caught on a mobile phone camera and seen via the internet around the world.
Statute of the International Criminal Court
Article 7 Crimes against humanity
1. For the purpose of this Statute, 'crime against humanity' means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender... 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;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.