Crimes Against Humanity

Crimes Against Humanity, term taken to include “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 ... ”. This definition is taken from the August 1945 Charter of the International Military Tribunal for the trial of major war criminals. The tribunal, established by the United States, the Soviet Union, the United Kingdom, and France, conducted war crimes trials at Nuremberg in Germany between October 1945 and October 1946. The International Military Tribunal for the Far East carried out similar functions in Tokyo between May 1946 and November 1948.

The Nuremberg and Tokyo tribunals dealt with three categories of crime: violations of the law and customs of war, crimes against peace, and crimes against humanity. Alleged violations of the law of war were in many respects the least contentious aspects of the various trials. There already existed a body of international law, particularly the Hague Conventions of 1907, against which the conduct of combatants could be tested. Crimes against peace were somewhat more difficult to prove, and the attempt to do so was thought by some to be an example of retroactive legislation. Nevertheless, with the Kellogg-Briand Pact of 1928 and other treaties and resolutions, there were sufficient grounds to try acts of aggression as infringements of international law. The war crimes tribunals were at their most adventurous where crimes against humanity were concerned, and it was here that accusations of ex post facto (retroactive) legislation were strongest.

Since crimes against humanity could be committed “before or during the war”, and since “any civilian population” (including, therefore, that of the offending state) was henceforth to be protected against such crimes, the Nuremberg and Tokyo tribunals tried a new and very broad category of offences. Furthermore, the tribunals represented a serious challenge to the traditions of state sovereignty and non-interference; previously, a state had been more or less entitled to treat its citizens as it wished. Those on trial for crimes against humanity argued that these new developments in international law could not logically or fairly be applied to actions and events that had already taken place. However, leaving aside the safety of retroactive legislation, the Charter of the Nuremberg Tribunal had already addressed this problem by restricting the definition of crimes against humanity to actions that were “in execution of or in connection with” war crimes or crimes against peace. In other words, the category of crimes against humanity was subordinated to the other, less equivocal, types of crime.

If there were some uncertainty, in legal circles, as to the prosecution of crimes against humanity, there was no doubt that World War II had seen appalling murders, persecution, and “other inhumane acts” carried out against civilian populations, the most notorious being the systematic extermination of several million people (mainly Jews) in Nazi Germany’s death camps. There was general determination that those responsible should be brought to justice and that any future atrocities should also be punished. The Nuremberg and Tokyo processes both invigorated the post-war development of international criminal and humanitarian law, and prompted wider efforts to clarify the future prosecution of acts of inhumanity. In December 1946 the General Assembly of the United Nations (UN) unanimously adopted the key “principles” of the Nuremberg Tribunal. Two years later, the UN Convention on Genocide came into force and in the 1950s the UN’s International Law Commission began its long-running attempt to establish a “Code of Offences Against the Peace and Security of Mankind”. More broadly still, the post-war development of human rights is also, in part, attributable to Nuremberg.

With the Cold War preventing consensus on how—or whether—to proceed against the perpetrators, the Nuremberg principles did little to prevent or punish the numerous atrocities carried out around the world after 1945. However, the precedent that crimes against humanity could be tried internationally had at least been established, and with the ending of the Cold War the Nuremberg principles and definitions were reinvigorated. In May 1993 the UN Security Council established an International Criminal Tribunal for the former Yugoslavia. The tribunal, based in The Hague, began to prepare indictments for war crimes and in April 1995 an alleged Bosnian Serb war criminal became the first occupant of a new UN detention centre while awaiting trial. In mid-1995 Radovan Karadić, the Bosnian Serb leader, and several senior officials were also indicted for crimes against humanity. By mid-1996 some 52 indictments had been issued for crimes committed in the former Yugoslavia, and in May 1997 a Bosnian Serb, Dusan Tadic, was found guilty of crimes against humanity and of breaching the Geneva Conventions (see Red Cross), the first such conviction since the Nuremberg and Tokyo trials. Moves have also been made to establish a second tribunal to deal with atrocities carried out in Rwanda in 1994. Given the accusations of “victor’s justice” that war crimes trials provoke, and the fragility of the peace in the former Yugoslavia, the political commitment to the tribunals, and their outcome, is uncertain. Whatever the outcome of the remaining trials, it can now be said that the prosecution of crimes against humanity is firmly part of the post-Cold War international agenda.