Written by: bayushibors
"Inter arma silent leges" -Roman maxim
War and law have had a constant relationship between each other ever since the existence of conflict as a collective phenomenon. The regulation of the state of war, whether stemming from tradition, custom, certain codes of conduct and, ultimately, law, has evolved throughout the centuries together with the notion of war.
The idea of a "Crime of War", or war crime, is not new to the modern legal vocabulary. Unorthodox practices during a war have been branded as war crimes in many scenarios of conflict. However, these war crimes were not in themselves punishable in any international court (mainly due to the practical non-existence of such legal apparatus before the United Nations) and were very much a notion without a consequence, a general concept floating above the aftermath of wars , and not affecting individuals as such but rather relying on the concept of state responsibility. It is only since the development of a doctrine of Human Rights, of fundamental, documented universal principles, that such crimes have materialised into a legal cast due to the development of the notion of "Crimes against Humanity" and its derived breaches. The concept of "Crimes against Humanity" has been a product of very recent historical, political and social developments which has brought war crimes under a different light in international law, and very much under the scope of Human Rights, which have impregnated the law of war as an international, codified phenomenon in many ways. As a provision, it was the initial step which began a whole new approach from part of the international community towards certain abuses against civilians during periods of war and also during peace-time. Certain practices became theoretically "illegal" in a very broad sense within the international community, criminalising governments, collectives and individuals, whether military or civilian, and covering the commission of crimes both in an individual basis as well as in a collective sense. Conventions have arisen after the appearance of this idea, as well as resolutions and other relevant legislation emanating from international bodies and organisms (mainly the UN). The ultimate reason for these provisions to arise, in theoretical terms and laying aside political considerations, has been the protection of the human being as an individual, regardless of geographical, political or social factors and circumstances, and hence has become a "Human Right", so to say, in its own right.
Crimes against Humanity as a new principle saw its birth after the Second World War, as a result of the atrocities committed by the Nazi forces before and during the armed conflict. The establishment of the United Nations in 1945 was in a way the embodiment of the generalised fear for those atrocities ever being committed again , and this institution had a major role in the development of legal doctrines involving concepts such as Crimes against Humanity, appearing for the first time in a legal and conceptual form before the Nuremberg Trial in 1945, during the London Agreement of 1945 and its annexed charter setting the grounds for the establishment of a military tribunal. The Nuremberg Trials were conducted by the victorious powers after the Second World War, and featured the personal criminal liability of individuals held to be responsible for crimes against peace, war crimes, and crimes against humanity. This latter crime was defined as "...murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population, before or during the war, or prosecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal." . Through the coining of this crime, individuals as part of a universal society of man were made depositories of rights, and humanity as a whole became for the first time in international law a recognised entity.
As can be seen the provisions laid down by the Charter are very broad and leave a great margin open to interpretation. In its wording, it categorises murder, extermination, enslavement and deportation as crimes against humanity, yet leaves an open avenue when mentioning "…other inhumane acts committed…". Even though the allied powers took proper care to define these crimes in such a way as not to affect their own practices (such as the mass-bombing of cities with inevitable civilian casualties), Nuremberg still provided options to develop the notion further, should there be any need. These options have been exploited to some degree or other during consequent uses of this crime which has slowly expanded and become an integral part of Human Rights. However, a difficulty arises as to whether Crimes against Humanity are independent to War Crimes as such, and since this difference has not yet been thoroughly clarified (although it has been stated that a distinction would be desirable ) the notion of crimes against humanity is heavily linked to war crimes, mainly due to the fact that the commission of such crimes are almost always perpetrated during times of war. Extensive reference to War Crimes Tribunals must be used in order to trace its development.
During the same year as Nuremberg, the Tokyo Trials were set up by the United States in order to prosecute and bring to justice several Japanese officials involved in war crimes and crimes against humanity. During the Tokyo trials extensive reference was made to Nuremberg and its definition of crimes against humanity. According to several academics, article 6(c) of the Charter drafted in the London Agreement was in a way formulated exclusively with the thought of prosecuting the Nazi leaders held responsible for the atrocities committed against the Jewish people and other targeted groups both inside and outside Germany . The Tokyo trials were not only a proof that the Nuremberg Principles (embodied in the aforementioned charter) allowed a margin of operation for other cases, but also presented the initiation of a series of tribunals which would uphold, under the specific circumstances stated by the treaty (ie, "… committed against any civilian population, before or during the war, or prosecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal." ), the same possibility of prosecution for Crimes against Humanity. Tokyo was the first stepping-stone from Nuremberg which would lead to the universalisation of Crimes against Humanity and its relevant derivations.
The Nuremberg Principles and the conception of crimes against humanity did not only affect the formation of International War Crimes Tribunals. Its impact caused several effects beyond creating a mere term to be used in military tribunals and political purposes. One of these effects was the United Nations Resolution 96(1), drawn up on the 11th of December 1946, stating that "…genocide is a crime under international law, contrary to the spirit and aims of the United Nations and condemned by the civilised world". Deriving from the Nuremberg concept of Crimes against Humanity, and the crimes perpetrated by the Nazis in their total war, this declaration was finally embodied two years later in the Convention on the Prevention and Punishment of the Crime of Genocide of 1948. This Convention criminalised Genocide and related activities in the international sphere, and the convention itself is heavily influenced by many of the Nuremberg Principles . It also extended this crime against humanity beyond periods of war and the specific scenario of the Second World War . The Genocide Convention was not, per se, a major advancement in the upholding of international human rights, especially considering its provision in articles V and VI, which provide that states should regulate their legal systems accordingly to criminalise such acts in the domestic sphere, and that those found guilty of the crime of genocide should be tried in the courts of the country where the acts were committed in absence of a competent international tribunal with consented jurisdiction over the matter, and many academics have shown to be quite sceptical about its practical possibilities . However, on the theoretical arena the Convention against Genocide is a development from the precepts set in Nuremberg, in such a sudden and ad hoc manner, especially where codification of Crimes against Humanity is concerned. The Convention takes the main aspect of these crimes, extirpates it from a broad definition, and narrows it down into one separate and codified principle. Genocide as defined in articles II and III practically cover all those measures taken by the Nazis during their persecution and brutal extermination of certain social, religious and cultural groups: those same atrocities which the Members of the Court dubbed as Crimes against Humanity took concrete form in this Convention.
In 1948 the United Nations issued the Universal Declaration of Human Rights, the first legal document to recognise such rights as binding, and creating the notion of Human Rights as we understand it today. The influence which Nuremberg and to a certain extent the Tokyo trials had upon the formulation and conception of such a declaration cannot be understated. Nuremberg had for the first time in international law traced a definite distinction between jus in bello, a doctrine concerned exclusively on the conduct in warfare, and jus ad bellum, which concerns itself with the justice or legality of the waging of war. By introducing the new principles of Crimes against Peace and crimes against Humanity, Nuremberg effectively fathered a globalized concern towards certain attitudes in war and, by extension, for the rights of all human beings suffering the effects of certain modes of violence. This supposed impact on the Universal Declaration has been backed up by the fact that some academics have stated that the UN Charter itself was almost a product of Nuremberg and the issues raised before, during and after the Trial .
The Vietnam War brought about many issues which reflected the loopholes and problems of the Nuremberg Principles and the Convention on Genocide, reflected mainly on the USA's mild attempt to bring war crimes into the public and international spotlight through the 1971 case concerning Lt. William Calley, allegedly responsible for the massacre of the villagers of My Lai in 1968. The trial was conducted under American Uniform Code of Military Justice in a US Court, in harmony with the precepts set in the Genocide Convention, and yet the inadequacy of the Court's approach towards the crimes allegedly committed didn't fall under any of the provisions of the Convention. The word "genocide" was not mentioned, and whether the case at hand could have fallen under that category is still debatable. However, what the case does show is that prosecution by a state of its own forces is by definition weak and a lenient attitude is to be expected, hence exposing the greatest weakness of the Genocide Convention, echoing the failure of the Versailles Treaty after World War One, where the German state was allowed to try war criminals in their own courts with the result of few and lenient sentences.
It would seem that the interest which the International Community has shown towards the processes concerning the Yugoslavian and Rwandan conflicts demonstrates a development from the attitude taken during the Vietnam war by the USA and UN members. Even previous to these two major conflicts, the UN has made certain attempts to intervene legally and to prosecute certain members of states involved in extreme violations of Human Rights through the means of International Tribunals . In the case of Yugoslavia, it was not until 1993 that the UN took steps to begin with proceedings related to the formation of an International Tribunal. Once again, the emphasis on the reasons for the setting up of such a tribunal were continuous reports of violations of "International Humanitarian Law" (ie, any breach of the Universal Declaration and by extension any Crimes against Humanity as part of this "Humanitarian Law"). In the UN's Resolution 808 (1993) and 827 (1993), it announces its intention to set up an international tribunal for war crimes in the former Yugoslavia, spanning events since 1991 to the end of the war. The Report of the Secretary General under Resolution 808 establishes the legal basis and the competence and jurisdiction of this future tribunal, which eventually merged into the 1993 Statute of the International Tribunal for the Former Yugoslavia , probably one of the most comprehensive, concise and complete of all statutes governing War Crimes. It features the relevant breaches of the 1949 Geneva Conventions (including unnecessary damage to property and persons, torture, taking of hostages, etc) , violations of the laws and customs of war (which focus on the use of weapons calculated to cause unnecessary suffering, wanton destruction of populated areas, bombardment and attacks on undefended settlements and structures, and the damaging of institutions which have no interests in the conflict) , genocide (using the Convention against Genocide of 1948 as main source), and finally devoting a whole article to Crimes against Humanity. This article provides that the Tribunal shall attain jurisdiction for prosecutions if found guilty of the following crimes committed in armed conflict: murder, extermination, enslavement, deportation, imprisonment, torture, rape, persecutions on racial, political and religious grounds, and other inhumane acts. Article 5, not surprisingly, is almost a carbon-copy of the definition of Crimes against Humanity given during the Nuremberg trial , with the addition of imprisonment, torture and rape. The Statute effectively separates and enumerates the specific crimes towards civilians which are considered in international law as Crimes against Humanity. More importantly, it is presented under a UN Statute, giving it a legal status in the ambit of international law. It adds three new categories and also leaves the final provision ("Other inhumane acts") as an avenue for continuity, an open margin for future interpretation. The Statute itself, as stated in its preamble, labels the Tribunal as the "... International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia... ". It incorporates breaches of the Geneva Conventions, violations of the laws or customs of war, genocide and Crimes against Humanity under one same heading: serious violations of International Humanitarian Law. Hence, by implication, all of the aforementioned breaches are in themselves breaches of Human Rights, and are so considered by the UN and its organisms.
A "Crime against Humanity" was initially viewed as a very wide and uncertain concept, a "watered-down" charge conveniently pulled out of the victorious powers' sleeve at the end of a tremendous war which proved to be the most devastating and bestial confrontation in the history of man. It arose as a result of specific and particular circumstances, it was a product of history and of social revulsion. However, it developed, and proved to be one of the most important cornerstones in the development of International Human Rights. Professor Best describes it as a "... canny, cautious half-way house to human rights" . Its most complete expression as an integral part of Human Rights is represented in its inclusion in the UN Statute establishing the competences of the International Tribunal for the Former Yugoslavia. Starting off as a cocktail composed of legal and political ingredients, it has followed a process of crude refinement within which it has began to shake off any political considerations which had initially affected its formulation. Crimes against Humanity have developed intensely in the international law scene in very little time, keeping its pace with a parallel development of generalised and universal set of Human Rights with which it has conceptually merged.
However, it is extremely hard to legislate war. War by definition is the antithesis of law, the ultimate breakdown of relationships and the resort to violence and strength, regardless of rights or laws. In a way, it is somewhat naive to attempt to regulate an act which is in itself the maximum expression of lawlessness. That is why in practical terms the matter differs strongly from the theory. Nuremberg and Tokyo presented scenarios where the defeated powers were completely subjugated to the victors, enabling rapid arrest, judgement and retaliation. Considering the situation of the international community at this point of history it is very unlikely that these circumstances of total defeat will repeat themselves. Partial victories lead to compromising peace treaties, and extradition has always been major black dogs in international contentions. Coupled with the fact that those who take refuge under their states after being branded war criminals were following the orders of the state they served, voluntary and frequent extradition seems highly unlikely. Additionally, the ad hoc setup of International Tribunals have led to certain degrees of subjectivity in judgements, and political considerations, for good or for bad, have come into and tainted the legal aspects of these Tribunals. To avoid these problems and the all too familiar situation where the vanquished is judged by the victor, it seems that the need for a permanent War Crimes Tribunal would be an invaluable contribution both to the development and to the effectiveness of the notion of crimes against humanity. Proposals have been made by academics, most of them arguing for a UN-based permanent court to deal with these cases of brutality in times of war. The final result remains yet to be seen.