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Moir, L --- "Crimes Against Humanity in Historical Perspective" [2006] NZYbkIntLaw 6; (2006) 3 New Zealand Yearbook of International Law 101


Lindsay Moir[*]

I. Introduction

Crimes against humanity, now included in article 7 of the Statute of the International Criminal Court, have been a feature of international law at least since the Nuremberg Trials commenced in 1945. There is a degree of consensus as to the acts covered by the term. Cassese, for example, suggests that crimes against humanity exhibit the following common features:[1]

They are particularly odious offences[,]… part either of a governmental policy, or of a widespread or systematic practice of atrocities tolerated, condoned, or acquiesced in by a government or a de facto authority[,]… prohibited… regardless of whether they are perpetrated in time of war or peace[, and]… the victims [of which] may be civilians or… persons who do not take part (or no longer take part) in armed hostilities [emphasis omitted].

In contrast, the legal basis and evolution of crimes against humanity remains relatively vague. There is, for example, disagreement as to whether crimes against humanity were a complete innovation in 1945, or whether they are, in fact, as old as humanity itself. Likewise, opinions vary as to whether crimes against humanity grew out of the laws of war, or whether they instead reflected an emerging human rights law. Crimes against humanity are increasingly becoming the preferred charge in international criminal trials, and yet are frequently misunderstood. This article therefore seeks to address these issues by reconstructing crimes against humanity within a historical perspective, examining whether they did indeed exist in international law prior to the Nuremberg Charter, and whether — if this is not the case — the crystallisation of other pre-existing offences into a category of crimes against humanity was a natural process of evolution, or an artificial construction.

II. Crimes Against Humanity in Antiquity?

Can a legal basis for, or else recognition of, crimes against humanity be found in early international legal thought? It is perhaps possible to begin such an examination in 1474, with the trial before representatives of the Hanseatic cities of Peter von Hagenbach. A number of scholars argue that these proceedings stand as the forerunner to modern, international, war crimes trials.[2] Schwarzenberger explains, however, that Hagenbach’s crimes, having been committed before the actual outbreak of war between Burgundy and her enemies, were not actually war crimes per se. Rather, they fell: “into the category of what, since 1945, would be termed crimes against humanity”.[3] Nonetheless, they were not tried as such and no mention was made of such a category of offences.

It is certainly true that numerous references to phrases either similar or related to ‘crimes against humanity’ can be found both in historical cases and in the writings of scholars considered pre-eminent in the early development of international law. Paust, for example, has outlined that: [4]

…phrases such as ‘crimes against mankind,’ ‘crimes against the human family,’ and ‘duties of humanity’ appear far earlier in human history [than either 1874 or 1921, when George Curtis and Robert Lansing respectively described slavery as a ‘crime against humanity’].

To what extent, however, did these references coincide with, or reflect, a category of ‘crimes against humanity’ as now commonly understood?

In 1625, Grotius referred to the assertion of the Roman jurist, Pomponius, that certain acts constituted a crime against the law of nations,[5] before proceeding to argue that there are certain “offences, which affect society at large, and which other independent states or their rulers have a right to punish”,[6] a passage translated by the US Attorney-General in 1821 as referring to ‘crimes against mankind at large’.[7] It is far from clear, however, that the substance of such ‘crimes against mankind’, and requiring the surrender of fugitives by a foreign government, equated in any way with what would now be considered crimes against humanity. The precise nature of ‘crimes against mankind’ was not really elaborated, and the Attorney-General himself accepted that Grotius’ stated criterion, whereby demands could legitimately be made only with respect to “crimes which affect the government, and as such are of extreme atrocity [whereas] offences of a nature inferior to those, are not … made the foundation of a demand, unless they have been provided for by treaty”,[8] was “rather vague”.[9] Grotius also stated that: [1]

…where a Busiris, a Phalaris or a Thracian Diomede provoke their people to despair and resistance by unheard of cruelties, having themselves abandoned all the laws of nature, they lose the rights of independent sovereigns, and can no longer claim the privilege of the law of nations. Thus Constantine took up arms against Maxentius and Licinius, and other Roman emperors either took, or threatened to take them against the Persians, if they did not desist from persecuting the Christians.
Admitting that it would be fraught with the greatest dangers if subjects were allowed to redress grievances by force of arms, it does not necessarily follow that other powers are prohibited from giving them assistance when labouring under grievous oppressions.

This clearly refers to the lawfulness of an armed response to gross human rights abuses (although not referred to in those precise terms), however, and probably does more to indicate a concern for the protection of human rights and an acceptance of humanitarian intervention than to indicate the existence of a category of crimes against humanity per se.

In 1758, Vattel wrote of certain acts being a “crime against mankind in general”.[10] These were, however, limited to acts involving “violence to an ambassador, or to any other public minister”.[11] Isolated attacks against individuals — even individuals representing the state, but not committed as part of a widespread, official policy-driven programme of atrocities, would not qualify as crimes against humanity in more modern international law. Likewise, the eighteenth and nineteenth century American cases cited by Paust are less than persuasive in terms of demonstrating the existence of crimes against humanity as a distinct offence.[12] In the 1784 case of Respublica v De Longchamps, for example, Chief Justice McKean found the accused guilty of “a crime against the whole world”.[13] The particular crime, however, had been that of threatening and assaulting the Consul General of France to the US. Henfield’s Case, decided by the Circuit Court in Pennsylvania in 1793, contained reference to a violation of the “duties of humanity”, incumbent upon both states and individuals.[14] The offence at the centre of the case, however, was the participation of citizens of a neutral state (the US) in an attack by one belligerent party (France) against another (Great Britain), thus violating the international law of neutrality. And in the 1814 case of The Julia, Story J referred to “the rights of humanity”, but only in the context of a dispute over the confiscation of a ship and its cargo as a prize of war.[1]

Such cases, and writers such as Grotius and Vattel, are undoubtedly referring to acts which were — and still are — violations of international law.[1] Yet they demonstrate only that certain acts were characterised as criminal under international law, entailing individual responsibility. This does not necessarily mean that they can, or should, be seen as either related to, or the forerunners of, crimes against humanity. They are not. Many acts are criminal in international law, but not all international crimes are crimes against humanity.

It has, however, been claimed elsewhere that jurisprudence from as early as 1841 demonstrates slavery to have been considered a crime against humanity.[16] In truth, such cases are also considerably more equivocal than is suggested. Following the revolt in 1839 of African slaves on the Cuban ship, La Amistad, for example, Spain requested the return of the slaves from the US.[17] Counsel for the Africans, former President John Quincy Adams, had argued for their freedom on the basis of ‘humanity’. Justice Story of the US Supreme Court did indeed rule in the slaves’ favour, but not on the basis advanced by Adams. Rather, he granted the slaves their freedom because Spanish law had abolished the African slave trade in 1820. Similarly, when slaves on board the Creole, sailing from Virginia and bound for New Orleans, mutinied in 1841, forcing the vessel to land at the British port of Nassau, they were freed by the authorities there.[18] The US claim for indemnification from Great Britain was criticised by William Channing as ‘morally unsound’ and in violation of “the law of humanity”.[19] Nonetheless, the umpire, on deciding the dispute, awarded the US $110,330 in compensation. He considered slavery to be “odious and contrary to the principles of justice and humanity”, but did not find it contrary to international law.[20] By 1874, however, influential figures in the American anti-slavery movement, such as George Curtis,[21] were describing slavery as a crime against humanity. Robert Lansing, international lawyer and US Secretary of State from 1915-1920, made the same contention in 1906.[22]

The Nuremberg Tribunal also sought to demonstrate that international concern for crimes against humanity — or at least concern for acts which the Charter categorised as being crimes against humanity — was not a recent phenomenon. In US v Altstoetter (‘The Justice Case’), for example, the Tribunal pointed to a number of interventions and statements by third States in the context of widespread human rights violations.[23] Instances cited included the 1827 intervention of Britain, France and Russia to prevent atrocities during the Greco-Turkish war, President Van Buren’s intervention in favour of the Jews of Damascus and Rhodes in 1840, French intervention to prevent religious atrocities in Lebanon in 1861, and protests made regarding the persecution of religious minorities in Russia, Romania and Turkey. President McKinley had authorised armed US intervention in Cuba in 1898, “[in] the cause of humanity and to put an end to the barbarities, bloodshed, starvation and horrible miseries now existing there”,[24] whilst in the context of Jewish persecution, US Secretary of State Hay had condemned Romania in 1902, “in the name of humanity”.[25] Likewise, in 1903, President Roosevelt stated in the context of the massacre of Jews in Russia that some crimes are “committed on so vast a scale and of such peculiar horror” as to make it incumbent upon the US to show its disapproval. He accepted, however, that the cases in which armed intervention would be acceptable were “necessarily very few”.[26]

As with the passage quoted above from Grotius,[27] all of these instances tend only to demonstrate an acceptance of international concern for human rights, and of what would now be considered humanitarian intervention. This does not equate with any recognition that crimes against humanity existed as a distinct category in international law. Indeed, the US v Altstoetter judgement makes specific reference to the argument of Sir Hartley Shawcross, British Chief Prosecutor at the trial of Goering, where he claimed that: “humanitarian intervention on behalf of the rights of man trampled upon by a state in a manner shocking to the sense of mankind has long been considered to form part of the recognised law of nations” [emphasis added].[28]

So, what does the preceding discussion demonstrate? In truth, very little. Just as there is a tendency, among lay persons and politicians, to confuse the technical and non-technical uses of the term ‘crimes against humanity’, so there is a certain attraction for academic commentators to identify similar historical phrases such as ‘crimes against mankind’. This is a dangerous and, ultimately, futile exercise. There may well have been a recognition of crimes under international law, and of what are now perceived as human rights, but it is inconceivable that Grotius, Vattel, et al were asserting the existence of the same category of offences as was prosecuted at Nuremberg. Even if it is accepted that slavery might have constituted a crime against humanity — which is by no means certain — it seems unlikely that it would actually have been characterised as such in terms of the particular offence. Rather, the underlying conduct would be considered criminal. Prior to the twentieth century, it would therefore seem that assistance in terms of deciphering the historical evolution of crimes against humanity is minimal.

III. Crimes Against Humanity and World War I

During the course of World War I, and in response to Turkey’s massacre of its own Armenian population,[2] France, Great Britain and Russia issued a Joint Declaration on 24 May, 1915, condemning “those new crimes of Turkey against humanity and civilization”, and pronouncing the individual criminal responsibility for these crimes of “all members of the Ottoman government and those of their agents who are implicated”.[2] Clark sees this as being important for three reasons: [30]

First, [the] idea of crimes against humanity and civilization included killings of a minority ethnic group in a country by the group in political power. Second, although the complaining states were never able to deliver on their promise, they had in mind individual criminal responsibility for those responsible. Third, the crimes involved were distinct from war crimes — they took place within Turkey itself, and there was no serious effort by Britain, France and Russia to link the killings directly to the then world-wide conflict in which Turkey was involved.

Nonetheless, no specific reference to international law was made in the Joint Declaration, and it had no effect on Turkish conduct.[31]

After the War ended, a Commission on the Responsibility of the Authors of the War and the Enforcement of Penalties was established at the Paris Peace Conference in January 1919.[32] The Commission’s Report, published on 29 March 1919, found there to be “abundant evidence of outrages of every description committed on land, at sea, and in the air, against the laws and customs of war and of the laws of humanity. In spite of the explicit regulations, of established customs, and of the clear dictates of humanity, Germany and her allies have piled outrage upon outrage”.[33] The distinction made by the Commission between (a) the laws and customs of war, and (b) the laws of humanity is fundamentally important, and can be seen as reflecting the distinction between war crimes and crimes against humanity at Nuremberg and beyond.[34] The list of offences drawn up — although not regarded as complete and exhaustive — accordingly included acts which were not technically war crimes, i.e. acts carried out by Germany and her Allies on their own territory, and against their own nationals.[35]

Although adopted unanimously, the Commission’s Report was severely weakened by the vehement opposition of the US to a number of aspects, as expressed in dissenting reservations.[36] In addition to opposing the very creation of an international tribunal and the extension of individual criminal responsibility to heads of State, the American representatives — Robert Lansing and James Brown Scott — could not tolerate the proposed (and improper in their opinion) extension of any tribunal’s jurisdiction to include violations of the laws and principles of humanity: [3]

…war was and is by its very nature inhuman, but acts consistent with the laws and customs of war, although these acts are inhuman, are nevertheless not the object of punishment by a court of justice. A judicial tribunal only deals with existing law and only administers existing law, leaving to another forum infractions of the moral law and actions contrary to the laws and principles of humanity. A further objection lies in the fact that the laws and principles of humanity are not certain, varying with time, place, and circumstance, and according, it may be, to the conscience of the individual judge. There is no fixed and universal standard of humanity. The law of humanity, or the principle of humanity, is much like equity, whereof John Selden, as wise and cautious as he was learned, aptly said:

Equity is a roguish thing. For Law we have a measure, know what to trust to; Equity is according to the conscience of him that is Chancellor, and as that is larger or narrower, so is Equity. ’Tis all one as if they should make the standard for the measure we call a ‘foot’ a Chancellor’s foot; what an uncertain measure this would be! One Chancellor has a long foot, another a short foot, a third an indifferent foot. ’Tis the same thing in the Chancellor’s conscience.

This approach stands in stark contrast to that of the US following World War II, although some commentators explain this in terms of the personnel involved.[3] Willis, for example, notes that Lansing strongly opposed the international punishment of war crimes: [3]

…believing observance of the laws of war should be left to the discretion of military authorities of each state. Understandably, he did not generally admit this viewpoint in public. Rather, he stressed the lack of precedent, opposed all innovations, and thus rejected virtually every important proposal offered by the Europeans.

Ultimately, then, Lansing was true to his views on the structure of international relations and international law throughout: [3]

Basic to his conception of international law was the sovereign nation-state, bound ultimately by no rules except those to which it explicitly consented and always free to resort to whatever means its leaders judged necessary to protect and advance its welfare. In the final analysis, Lansing believed that force, not law, governed international relations, and that to pretend or act otherwise was visionary.

Scott and Lansing nevertheless expressed deep regret that they had been criticised for their stand on the laws of humanity, arguing that: “Their abhorrence for the acts of the heads of states of enemy countries is no less genuine and deep than that of their colleagues, and their conception of the laws and principles of humanity is, they believe, not less enlightened than that of their colleagues”.[39] Perhaps surprisingly, some support can be found for this view in an article by Lansing himself, published in 1921 (although apparently written in 1906), according to which piracy was stated to be a “crime against the world”, in contrast to slavery, which was instead a “crime against humanity”.[40]

At any rate, US dissent had such an impact that the recommendations of the Commission found no place in the Peace Treaty of Versailles, which deals in articles 228-230 only with violations of the laws and customs of war. Likewise, the Peace Treaties concluded with Austria (Treaty of Saint-Germain-en-Laye, articles 173-176), Hungary (Treaty of Trianon, articles 157-159) and Bulgaria (Treaty of Neuilly-sur-Seine, articles 118-120) made no mention of violations of the laws of humanity. Only the Peace Treaty with Turkey — the Treaty of Sèvres — contained a further provision under which Turkey was to hand over to the Allies those responsible for massacres committed on Turkish territory.[41] As the UN War Crimes Commission outlined, this was obviously intended to cover those atrocities committed by Turkey against its own Armenian and Greek populations, and accordingly stands as a precedent for article 6(c) of the Nuremberg Charter.[42] The Treaty of Sèvres was never ratified, however, and so never entered into operation. It was instead replaced in 1923 by the Treaty of Lausanne, which contained an amnesty for all offences committed by Turkey between 1 August 1914 and 20 November 1922.[43]

It proved impossible, then, in the aftermath of World War I, to extend criminal responsibility to those guilty of what are now classed as crimes against humanity. As illustrated above in Section II, the phrase ‘crimes against humanity’ was not without precedent when it appeared in the context of World War I. But Clark asserts that: “the episode does not advance the subject much further, except perhaps to solidify the word usage a little. In a vague fashion the concept of a crime against humanity had entered the realm of serious public discourse”.[44] This may be important, however. Irrespective of the precise legal status of crimes against humanity at the time, it does seem possible to argue that such a category of international criminal offences may have been beginning to crystallise at least thirty years prior to the end of World War II.

IV. Crimes Against Humanity and the Nuremberg Charter

Following World War II, the drafters of the Nuremberg Charter were faced with two major problems (at least in the context of this article), first, in determining which crimes were to be prosecuted by the Tribunal, and on what legal basis, and secondly, the precise classification or designation to be given to those crimes.

The Allies agreed that Nazis should face justice for their criminal acts, but which acts in particular were to be included? It was uncontroversial that individuals should be tried for violations of the laws and customs of war, i.e. war crimes. The war crimes committed by Nazis, however, were found to be “only a part of the whole ghastly Hitlerite enterprise”, and the entire enterprise was to be included in the trial.[45] Not only were the Allies keen to impose criminal responsibility for the launching of an aggressive war,[46] they also had a strong desire to punish Nazis for other atrocities committed against German — and, in particular, Jewish — citizens. Many of the egregious acts committed by the Nazis against German citizens may have been “analogous to … war crimes”,[47] but they were not war crimes in the technical sense.[48] The issue of nationality was vital in this respect, in that war crimes were, in terms of international law, acts committed by a state against the nationals of other states, not against its own civilian population. As the UN War Crimes Commission explained: “but for the fact that the victims were technically enemy [i.e. German, in the most part] nationals, such persecutions were otherwise in every respect similar to war crimes”.[49] This nonetheless made it extremely difficult to adopt a Charter imposing individual criminal responsibility for such atrocities.

The suggestion that Nazi persecutors and exterminators had not violated the traditional rules of warfare was, however: “simply impossible for the battered peoples of Europe to accept in 1945”.[5] By 1945, public opinion had become a significant factor in international relations and, as a result, in the development of international law. The evolution of international criminal law was therefore, to a large extent, driven by the particular facts of the situation. The UN War Crimes Commission placed great emphasis during its initial activities on the rule that “narrow legalisms were to be disregarded and the field of the violations of the laws of war extended so as to meet the requirements of justice”,[5] and, as a result, an acceptance evolved of war crimes in a wider, non-technical sense. The eventual outcome was Count Four of the Nuremberg Indictment — ‘Crimes Against Humanity’ — the tool ultimately used by the prosecution “to reform the rules of warfare in order to correspond to the realities of the twentieth century”.[51]

Surprisingly, there is no discernible discussion in the official documentation regarding the classification of those crimes.[52] The phrase ‘crimes against humanity’ failed to appear in any document, until it did so in the revised definition of ‘crimes’ submitted by the US delegation on 31 July 1945.[53] It seems to be broadly accepted that the heading ‘Crimes Against Humanity’ was actually suggested to Jackson by the English international lawyer, Hersch Lauterpacht, although any further detail regarding this is sadly lacking.[54] Throughout discussions leading to the adoption of the Charter, a distinction had been maintained between violations of the laws and customs of war (i.e. war crimes), and “atrocities and persecutions and deportations on political, racial or religious grounds”. This largely represents the distinction between war crimes and crimes against humanity as adopted in 1945, and which remains today. Such atrocities were not commonly referred to by the participants as crimes against humanity, however, although the term had been previously used.

On 16 March 1944, for example, a Resolution proposed to the Legal Committee of the UN War Crimes Commission by US representative, Pell, addressed the atrocities committed by the Nazis against German Jews and Catholics, characterising those “crimes committed against stateless persons or against any persons because of their race or religion” as “crimes against humanity”, contrary to the foundations of civilisation and irrespective whether they violated the laws and customs of warfare.[55] A statement by the US President, also released to the press in March 1944, likewise stated that: “All who knowingly take part in the deportation of Jews to their death in Poland or Norwegians and French to their death in Germany are equally guilty with the executioner. All who share the guilt shall share the punishment. Hitler is committing these crimes against humanity in the name of the German people” [emphasis added].[56] It has also been claimed that Lt. Col. Bernays, US War Department, Personnel Division, proposed an approach in September 1944 whereby “the accused Nazis would be charged with ‘the commission of, and participation in, a conspiracy and common plan to commit crimes against the peace, war crimes and crimes against humanity’”.[57] Close examination of the relevant documentation, however, demonstrates only a concern on the part of Bernays for the prosecution of these atrocities. The phrase ‘crimes against humanity’ does not actually appear.[58]

There can be no doubt that the phrase ‘crimes against humanity’ made its first appearance in positive international law in article 6(c) of the

Nuremberg Charter, signed in London on 8 August 1945.[5] It provides: [5]

The Tribunal established by the Agreement referred to in Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes.

The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:

(c) CRIMES AGAINST HUMANITY: namely, 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.

This was highly controversial, especially the phrase “before or during the war”, which made it possible to prosecute Nazi actions that occurred prior to 1939 (i.e. during peacetime) in Germany, as well as in the territories of Austria and Czechoslovakia, which had been ‘peacefully’ occupied in 1938.[5] In other words, article 6(c) created the possibility of “pre-war ‘war criminals’”.[60] As Smith explains, the core difficulty with this proposition was: [61]

…the fact that there was no code of law or international agreement in existence in 1933, 1939, or even 1944 that made it illegal to persecute religions or to exterminate populations. That is, if one considers only statutory law, the prosecution of pre-war and wartime acts under Count Four was an exercise in ex post facto prosecution.

This is a common criticism. The above discussion has certainly illustrated the difficulty in identifying a similar category of international criminal offences before Nuremberg. If one limits the examination to conventional, or positive, international law, it is difficult to escape the conclusion that the imposition of criminal responsibility for crimes against humanity was indeed ex post facto in nature. There was, after all, no internationally agreed instrument providing for such an eventuality prior to 1945. On what legal basis, then, were crimes against humanity included in the Charter?

V. Crimes Against Humanity at Nuremberg: Ex Post Facto?

In contrast to crimes against peace and war crimes, there was limited discussion of the legal basis for crimes against humanity during the process of adopting the Nuremberg Charter — or else those discussions that did take place were not fully recorded. Bassiouni suggests that there may have been a number of reasons for this, such as feelings of guilt on the part of the Allies for the relative indifference displayed to the commission of many of these atrocities until near the end of the war, for the history of anti-Semitism in Europe and the United States, and for the failure to prosecute similar atrocities following World War I.[62] He concludes that some debate probably did take place, but was simply not recorded — primarily in order to prevent the defence from using any arguments relating to the legal basis of such crimes that would benefit their case.[63]

It will be recalled that international law contained no positive proscription of crimes against humanity pre-Nuremberg. International law is not, however, composed solely of treaties and other inter-state agreements. Customary international law and the general principles of law — or, in the language of the day, “customary usage and belief of the ‘civilized’ people of the world”[64] — are equally valuable in ascertaining international legal norms, and strenuous efforts were made throughout the adoption process to demonstrate that responsibility for crimes against humanity was not an invention of the Nuremberg Charter.[65] Reporting to President Truman, Justice Jackson, for example, made the argument that such acts were: “criminal by standards generally accepted in all civilised countries, and I believe that we may proceed to punish those responsible in full accord with both our own traditions of fairness and with standards of just conduct which have been internationally accepted”.[66] He therefore asserted that, by exercising jurisdiction over those Nazis accused of crimes against humanity, the Allies proposed merely “to punish acts which have been regarded as criminal since the time of Cain and have been so written in every civilized code”.[67]

Most other drafters of the Charter likewise believed that, by 1945, the mass murder of civilians had crystallised into an international crime, and that Count Four was not, therefore, ex post facto.[68] Only the jurisdictional aspect was accepted as innovative in character: [69]

The application of this law may be novel because the scope of the Nazi activity has been broad and ruthless without precedent. The basic principles to be applied, however, are not novel and all that is needed is a wise application of those principles on a sufficiently comprehensive scale to meet the situation. International law must develop to meet the needs of the times just as the common law has grown, not by enunciating new principles but by adapting old ones. [emphasis added]

Chief among the acts covered by crimes against humanity were, after all, the “mass killings of countless human beings in cold blood. [Did] it take these men by surprise that murder is treated as a crime?”[70] In answer to this it could, of course, be argued that, whilst murder is (or was) clearly a crime, and so prosecution for its commission should not be surprising, its inclusion in a category of international criminal offences known as ‘crimes against humanity’ was in no way foreseeable for the accused.[71]

Jackson’s confidence in the existence of crimes against humanity in international law was not shared by all of the drafters of the Charter, and article 6(c) was clearly open to potential attack. Conscious of this, Sir David Maxwell Fyfe, of the UK, stated during one of the Conference sessions that: “What we want to abolish at the trial is a discussion as to whether the acts are violations of international law or not. We declare what the international law is so that there won’t be any discussion on whether it is international law or not”.[72] This was ultimately achieved by two steps. First, it was argued that the Charter was simply a statement of pre-existing international law and not, therefore, ex post facto in nature. Rather than an arbitrary exercise of power on the part of the victorious nations, it was “the expression of international law existing at the time of its creation”.[73] As illustrated above, this is a difficult argument to make. Either the Tribunal itself was involved in the creation of new law, or else the drafters of the Charter were. To suggest otherwise, and that this was simply an exercise in applying existing international law, seems disingenuous.

More persuasive are arguments based on natural justice and equity, that ex post facto laws are only prohibited in order to protect those who uphold and rely upon the law — they should not be a shield for the perpetrators of such atrocities. According to this view, the imposition of individual criminal responsibility for crimes against humanity was just and necessary, irrespective of whether or not the Tribunal was, in reality, applying law retroactively. Kelsen, for example, accepted that the Nuremberg Charter provided for the punishment of individuals for acts which may not have been punishable (under either international law or the relevant domestic law) when committed, but argued that the actions of those Nazis tried at Nuremberg were illegal under existing international law, whether or not they were criminal: [7]

A retroactive law providing individual punishment for acts which were illegal though not criminal at the time they were committed, seems … to be an exception to the rule against ex post facto laws. … Since the internationally illegal acts for which the London Agreement established individual criminal responsibility were certainly also morally most objectionable, and the persons who committed these acts were certainly aware of their immoral character, the retroactivity of the law applied to them can hardly be considered as absolutely incompatible with justice. Justice required the punishment of these men, in spite of the fact that under positive international law they were not punishable at the time they performed the acts made punishable with retroactive force. In case two postulates of justice are in conflict with each other, the higher one prevails; and to punish those who were morally responsible for the international crime of the Second World War may certainly be considered as more important than to comply with the rather relative rule against ex post facto laws, open to so many exceptions.

Jackson, likewise, was unable to “subscribe to the perverted reasoning that society may advance and strengthen the rule of law by the expenditure of morally innocent lives but that progress in the law may never be made at the price of morally guilty lives”.[7] Perhaps understandably, however, this was not an argument advanced by the Tribunal itself.

The second method of avoiding questions as to the legitimacy of article 6(c) was by significantly limiting the scope of crimes against humanity in the Charter. They were restricted to acts which took place in the execution of, or in connection with, any other crime within the Tribunal’s jurisdiction.[7] Jackson explained that the acts of governments towards their own citizens were ordinarily beyond the interference of third states: [75]

The [only] reason that this program of extermination of Jews and destruction of the rights of minorities becomes an international concern is this: it was part of a plan for making an illegal war. Unless we have a war connection as a basis for reaching them, I would think we have no basis for dealing with atrocities.

Professor Gros, of the French delegation, felt that the consequent obligation — to prove that persecutions were inflicted in pursuit of aggression — would be a difficult burden since, even in the Nazi plan against the Jews, there was no apparent aggression against other nations.[76] The other drafters nevertheless believed that such proof would be possible,[77] and proceeded on this basis. This did not mean that acts committed prior to 1939 were not considered relevant where this was felt to be warranted. In convicting Julius Streicher of crimes against humanity under Count Four, for example, the Tribunal made reference to a number of acts committed by the accused in Germany, against German nationals, both before and after 1939.[7] The restrictive interpretation outlined above was also applied less stringently in the cases of non-German victims. Thus, crimes against humanity committed prior to 1 September 1939 against Austrian and Czech nationals were simply found to have been committed in execution of, or in connection with, aggressive war (i.e. a crime against peace), so that the Tribunal was able to exercise jurisdiction.[7]

The limitations placed upon the Tribunal’s treatment of crimes against humanity make it virtually impossible to ascertain with any certainty their status in international law prior to 1945. They certainly did not exist in positive international law, and the Tribunal found its jurisdiction so constricted as to prevent a clear statement of whether or not crimes against humanity existed under any of the other sources of international law. A number of individuals thought that such a category of offences could be extrapolated from general principles of law recognised by civilised nations, but the issue received virtually no consideration by the Tribunal, bound as it was by the definition of ‘crimes against humanity’ contained in the Charter it had been asked to interpret and apply.[79] In its judgment, the Tribunal found that the commission of atrocities before 1939 was clearly established. Nonetheless: [80]

To constitute crimes against humanity, the acts relied on before the outbreak of war must have been in execution of, or in connection with, any crime within the jurisdiction of the Tribunal. The Tribunal is of the opinion that revolting and horrible as many of these crimes were, it has not been satisfactorily proved that they were done in execution of, or in connection with, any such crime. The Tribunal therefore cannot make a general declaration that the acts before 1939 were crimes against humanity within the meaning of the Charter, but from the beginning of the war in 1939 war crimes were committed on a vast scale, which were also crimes against humanity; and insofar as the inhumane acts charged in the Indictment, and committed after the beginning of the war did not constitute war crimes, they were all committed in execution of or in connection with, the aggressive war, and therefore constituted crimes against humanity.

By concentrating on the narrow question of the relationship between pre-1939 atrocities and the waging of an aggressive war,[81] the Tribunal’s statement falls some way short of a pronouncement on the existence of a category of crimes against humanity prior to the Nuremberg Charter.[82] The Tribunal denied neither that it was involved in the creation of new law, or that it had jurisdiction to examine the legality or otherwise of the Charter’s constitution.[83] Marrus therefore concludes that the treatment of crimes against humanity at Nuremberg — given the extent to which they were circumscribed by the Charter — was “hardly a ringing announcement to the international community of a new category of offenses against mankind”.[84] With minimal discussion, only two of the seventeen defendants indicted under Count 4 were acquitted, but the judgment of the Tribunal offers little, if anything, in terms of examining the theoretical underpinnings or legal basis of the crimes against humanity charge.

VI. Crimes Against Humanity and Human Rights

It is argued that international criminal law is the “ultima ratio modality of protection” of human rights,[85] and a number of authorities suggest that the legal basis for crimes against humanity can actually be found in international human rights law. Indeed, it has been suggested that: “The Nuremberg Charter applied a customary international law of human rights in charging the Nazi war criminals … with ‘crimes against humanity’”.[86] The recognition of crimes against humanity, i.e. a category of international criminal offences which could be committed against one’s own nationals, and distinct from war crimes, may accordingly be seen as acknowledgement of a pre-existing body of individual rights in international law. As Lauterpacht explains: [8]

… the [Nuremberg] Charter and the judgment of the Tribunal, in so far as they recognise in principle crimes against humanity, have a direct bearing on the question of recognition, in the international sphere, of fundamental rights of the individual. … To lay down that crimes against humanity are punishable is, therefore, to assert the existence of rights of man grounded in a law superior to the law of the State.

Whether this means that ‘Nuremberg law’ can actually be considered a part of, or as based in, international human rights law is unclear. Paust cites a number of authorities in support of just such a contention, including Newman. In his declaration in support of the defendants in People v Wylie, et al, a case concerning a number of nuclear protestors who argued that US nuclear policy — and in particular the Trident II missile — was contrary to international law, Newman initially suggested that this was indeed the case (referring to “human rights law, including Nuremberg law”).[8] He went on to argue, however, that: “In construing California statutory and constitutional law, international human rights law provides an accepted source of guidance … The Nuremberg rules supply an additional source of guidance … in cases involving conduct reasonably believed necessary to help prevent Nuremberg offenses”.[88]

Human rights are, of course, applicable during both peacetime and times of armed conflict.[89] The Nuremberg Tribunal, however, acted only in relation to crimes against humanity committed in the context of aggression and war crimes, avoiding any general findings on crimes against humanity committed prior to 1939, and thus any findings based on human rights per se rather than violations of the laws of war. Indeed, it has been claimed that it was the very failure of the Nuremberg Tribunal to accept jurisdiction over crimes against humanity committed during peacetime that led to the adoption of the Genocide Convention in 1948.[9]

As outlined in Section II above, an examination of crimes against humanity in the context of human rights prior to 1945 provides little support for the existence of a category of crimes against humanity in international law. Slavery was considered by some to be a ‘crime against humanity’ by the late nineteenth century, although this was certainly not a technical, legal characterisation. Beyond slavery, even the historical precedents relied upon by the Tribunal itself provide evidence only of international concern for human rights, and an acceptance of humanitarian intervention when faced with massive human rights violations (although how widespread even this acceptance was beyond the US, Great Britain, France and Russia is open to question). To a large extent, the development of international human rights law has taken place since 1945. Of course, there was concern before then for the individual and for matters now squarely within the human rights sphere, but the absence of a significant body of human rights law and the insistence of the Nuremberg Charter that crimes against humanity had to occur in connection with war make it extremely difficult to argue that the legal basis for crimes against humanity can be found in human rights.

VII. Crimes Against Humanity and the Laws of War

Bassiouni asserts that crimes against humanity “originated as an extension of war crimes and by analogy thereto”.[9] There was certainly an acceptance that Nazi atrocities must not go unpunished simply because they happened to fall outside the particular scope of war crimes as perceived in 1945. As explained above, however, such an extension of criminal responsibility was required precisely because these atrocities, committed against non-enemy civilian populations, were not war crimes — they were something different. War crimes have an entirely separate legal history, and raison d’être. Accordingly, whilst on this view crimes against humanity may have somehow evolved from war crimes, war crimes per se cannot be the legal basis for crimes against humanity.

Many authors argue instead that the acceptance of crimes against humanity as different from war crimes, and yet as a direct outgrowth of the laws of war, can be traced more specifically to references to the “laws of humanity” contained in the famous Martens Clause of 1907. As Jackson explained to President Truman in June, 1945: [9]

Our people were outraged by the oppressions, the cruellest forms of torture, the large scale murder, and the wholesale confiscation of property which initiated the Nazi regime within Germany. They witnessed persecution of the greatest enormity on religious, political and racial grounds, the breakdown of trade unions, and the liquidation of all religious and moral influences. … Our people felt that these were the deepest offenses against that International Law described in the Fourth Hague Convention of 1907 as including the “laws of humanity and the dictates of the public conscience”.

Against this background, he was able to characterise the charges against the leading Nazis as including: “(b) Atrocities and offenses, including atrocities and persecutions on racial or religious grounds, committed since 1933. This is only to recognize the principles of criminal law as they are generally observed in civilized states. These principles have been assimilated as a part of International Law at least since 1907”.[91]

Clark asserts that the intellectual antecedents to crimes against humanity are to be found in the laws of warfare, and specifically, “in the Martens clause of the Fourth Hague Convention of 1907”,[92] while Sadat states that the distinction between war crimes and crimes against humanity is “usually traced to the Martens Clause of the 1907 Fourth Hague Convention”.[93] Such reliance on the Preamble of the 1907 Hague Conventions is puzzling, however, for a number of reasons, not least because the Martens Clause was not actually an innovation in 1907. The provision, in fact, made its first appearance in the Preamble to Hague Convention II of 1899.[94] Did the Martens Clause really play such a pivotal role in terms of its impact on international law and the category of crimes against humanity?

Cassese states that the principal achievement of the Martens Clause was:[95]

… that it approached the question of the laws of humanity for the first time not as a moral issue but from a positivist (or, to put it more accurately, from an apparently positivist) perspective. … The Martens Clause proclaimed for the first time that there may exist principles or rules of customary international law resulting not only from state practice, but also from the laws of humanity and the dictates of public conscience.

Whether this is absolutely true is questionable. First, mention of the laws of humanity was not an innovation, even in 1899. Bassiouni is similarly mistaken in his assertion that: “Prior to the [Nuremberg] Charter, the words used in the preambles of the two Hague Conventions were the only references in conventional international law which resembled the term ‘crimes against humanity’”.[96] In fact, thirty-one years previously, the 1868 St. Petersburg Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight[97] had also provided that the employment of such weapons would be “contrary to the laws of humanity”. Secondly, it is doubtful that Martens actually intended to transform humanity and the dictates of public conscience into new sources of international law. Indeed, Cassese suggests that Martens may well have been unaware of such an outcome,[98] and that: “In reality, the famous clause was not proposed by Martens with a humanitarian goal in mind. It was viewed, instead, as an expedient way out of a diplomatic deadlock”.[99] Given the background to its adoption, this view seems inescapable.

This does not preclude the possibility that the Clause could have — and certainly has — had a significant impact on humanitarian law by responding to a “deeply felt and widespread demand in the international community: that the requirements of humanity and the pressure of public opinion be duly taken into account when regulating armed conflict”.[100] In terms of its continuing legal significance, it serves as a guiding principle for the interpretation of international humanitarian rules, requiring them to be construed in conformity with standards of humanity and the public conscience, and thus having an impact on the traditional sources of international law.[101] Nonetheless, the Clause neither envisaged, nor brought about, the birth of two new autonomous sources of international law distinct from the customary process.[102] The Martens Clause demonstrates with some certainty that there was a concept in international law of the laws of humanity by the late nineteenth century, probably encompassing such principles as the prohibition of unnecessary suffering. In contrast, it offers little — if any — evidence of a category of crimes against humanity. It provides “no explanation of what was meant by the ‘laws of humanity’, making even less clear what would constitute a criminal violation of such laws”.[103] The UN War Crimes Commission would accordingly seem to be on relatively firm ground in concluding that:[104]

All such references to ‘humanity,’ ‘interests of humanity’ and ‘laws of humanity,’ as appear in [the Fourth Hague Convention of 1907] and in the other documents and enactments of that period, are used in a non-technical sense and certainly not with the intention of indicating a set of norms different from the ‘laws and customs of war,’ the violations of which constitute war crimes within the meaning of Article 6 and Article 5 of the Charters of the International Military Tribunals at Nuremberg and Tokyo respectively, and Article II of the Control Council (for Germany) Law No. 10.

VIII. Conclusions

It has been asserted by a number of commentators that crimes against humanity are “as old as humanity itself”.[105] It may well be true that crimes against humanity as they are now recognised — or, at least, the component or underlying criminal acts — have indeed been committed throughout history.[106] That does not mean, however, that a category of criminal offences called ‘crimes against humanity’, and similar to that existing today, necessarily existed in antiquity. This article has hopefully demonstrated that not to be the case.

Ratner and Abrams suggest that: “Since the earliest days of international law, scholars and statesmen have referred to fundamental notions of humanity as governing the conduct of states”.[107] That much is inescapable. But — as the same authors accept — these notions of humanity were used to justify intervention on behalf of persecuted minorities, and to regulate the conduct of states during armed conflict.[108] The existence of a concept of ‘humanity’, and of the laws or rights of humanity, was not necessarily the forerunner to a modern category of crimes against humanity involving individual criminal responsibility for the commission of certain systematic and widespread atrocities. Early scholars such as Grotius and Vattel, and a number of judicial decisions and opinions do undoubtedly make reference to concepts such as ‘crimes against mankind’, ‘crimes against the whole world’ and the ‘duties of humanity’. These even involved the criminal responsibility of individuals for certain violations of international law. Such violations, however, consisted of acts such as attacks upon ministers and other representatives of foreign states, or violations of the laws of neutrality, etc. They are quite different from crimes against humanity. To suggest that these historical references, although similar in character, are referring to what are now crimes against humanity is unsustainable.

Likewise, references by a number of academics and diplomats to forcible action in response to the widespread persecution and oppression of minorities within states — even if this was explicitly based on the notion of humanity — does little more than demonstrate a concern for human rights significantly pre-dating the United Nations, and provide support for the historical acceptance of humanitarian intervention or assistance (at least on the part of some states). This may well represent interest on the part of the international community in the types of widespread human rights abuses which would now be considered crimes against humanity, but there was no real suggestion that such persecution would — or should — entail criminal responsibility for those individuals involved in such abuses. Persecution was not even termed a ‘crime against mankind’ in the way that acts against individual state representatives were.

One particular type of human rights violation was considered by some to be a crime against humanity, certainly by the late nineteenth century — that of slavery. The phrase had also appeared during World War I, when, in 1915 France, Great Britain and Russia described Turkey’s massacre of its Armenian population in those terms. Attempts were even made following the end of hostilities in 1918 to impose criminal responsibility upon individuals who had violated not only the laws and customs of war, but also the ‘laws of humanity’. These were unsuccessful. References to the ‘laws of humanity’ occur in a number of agreements regulating the conduct of hostilities, and dating back to 1868, although whether criminal responsibility for their violation was envisaged is not entirely clear, and it seems unlikely that either of the phrases ‘crimes against humanity’ or ‘laws of humanity’ were being used in a technical sense, and with particular legal consequences attached, at this particular time.

The prior existence of crimes against humanity as an independent category of offences in international law was therefore difficult for the Nuremberg Military Tribunal to accept. Instead, a nexus was required between crimes against humanity and other crimes within its jurisdiction. This may have been a cautious and narrow approach to the issue, not replicated in other trials following World War II, and considered unnecessary in current international law. Nonetheless, the inability of either the Nuremberg Charter or Tribunal to point to the legal basis of such a crime in international law rendered it necessary. It is impossible to demonstrate the existence of crimes against humanity per se in positive, or conventional, international criminal law prior to their ex post facto inclusion in Article 6(c) of the Nuremberg Charter. Many of the underlying offences now contained within crimes against humanity were criminal long before 1945. Even the acceptance that certain activities, in terms of gross and systematic persecution of civilian populations, and irrespective of the nationality of the victims, offended the conscience of the international community existed long before 1945. Crimes against humanity, as a distinct category of international criminal offences, did not.

[*] Professor of Law, University of Hull, UK. Research for this article was generously funded by the British Academy and the Nuffield Foundation, and primarily carried out while the author was a Visiting Fellow at the International Human Rights Law Institute (IHRLI), DePaul University College of Law, Chicago. Sincere thanks are due to Professor M. Cherif Bassiouni, Professor Brian Havel, and to all IHRLI and DePaul staff for their kind assistance.

[1] Antonio Cassese, International Criminal Law (Oxford University Press, 2003), 64. See also art 7 of the International Criminal Court Statute, 37 International Legal Materials (1998) 999, at 1004-1005. There is, however, no complete correlation between art 7 and customary international law — see Cassese, regarding the position of enemy combatants.

[2] See, e.g. Georg Schwarzenberger, International Law as Applied by International Courts and Tribunals (Stevens and Sons, 1968), Volume II, 462-466; Leslie Green, The Contemporary Law of Armed Conflict (Manchester University Press, 2nd ed, 2000), 288; Hilaire McCoubrey, ‘War Crimes Jurisdiction and a Permanent International Criminal Court: Advantages and Difficulties’ (1998) 3 Journal of Armed Conflict Law 9, 11. Schwarzenberger, however, also argues in ‘The Judgment of Nuremberg’ (1947) XXI Tulane Law Review 329, 330, that the first war crimes trial “in the technical sense of the term, that is to say, of violations of the laws or customs of war’” was that of William Wallace in 1305.

[3] Schwarzenberger, International Law as Applied by International Courts and Tribunals, ibid, 466.

[4] Jordan Paust, ‘Threats to Accountability After Nuremberg: Crimes Against Humanity, Leader Responsibility and National Fora’ (1995) XII New York Law School Journal of

Human Rights [5]47, 549. See discussion of Curtis and Lansing’s statements below n 23, 24 and 45, and accompanying text.

5 Hugo Grotius, De Iure Belli Ac Pacis edited by P C Molhuysen, (AW Sijthoff, 1919), Book II, Chapter XVIII, §VI, 341: “Si quis legatum hostium pulsasset, contra ius gentium id commissum esse existimatur, quia sancti habentur legati, inquit Pomponius”. See Jordan Paust, ‘Human Rights in U.S. Courts’ (1989) 10 Michigan Journal of International Law 543, 547, note 11. This passage does not, however, appear in the majority of translated editions, such as that edited by A C Campbell (M Walter Dunne, 1901), 210.

[6] Hugo Grotius, The Rights of War and Peace (edited by A C Campbell), ibid, Book II, Chapter XXI, §III, at 258.

[7] 1 Opinions of the Attorney-General (1821) 509, at 513. See Paust, above n 5. The Attorney-General also considered Vattel’s consideration of “crimes of this nature” when referring to piracy, and to “poisoners, assassins, and incendiaries by profession” [Emmerich de Vattel, The Law of Nations (edited by J Chitty, 1834), (Gaunt, 2001 reprint) Book I, Chapter XIX, §233, 109] to be “crimes against the human family”. The phrase was not, however, used by Vattel himself. See 1 Opinions of the Attorney-General (1821) 509, at 515.

[8] 1 Opinions of the Attorney-General (1821) 509, at 513.

[9] Ibid.

[10] Grotius, above n 6, Book II, Chapter XXV, §VIII at 288-289.

10 Vattel, above n 7, Book IV, Chapter VII, §81, 464.

[11] Ibid.

[12] Above n 4.

[13] 1 US [1784] USSC 3; (1 Dall) 111, 116.

[14] 11 Fed Cas 1099, 1107.

[1]6 12 US [1814] USSC 27; (8 Cranch) 181, at 193.

15 Even earlier writers expressed similar views in such areas. Ayala, for example, wrote in 1582 that pirates and brigands were guilty of violating international law, and thus ‘the common enemy of all’. See Balthazar Ayala, Three Books on the Law of War and on the Duties Connected with War and on Military Discipline, Trans J P Bate, (Carnegie Institute of Washington 1912), 59.

[16] Leila Sadat Wexler, ‘The Interpretation of the Nuremberg Principles by the French Court of Cassation: From Touvier to Barbie and Back Again’ (1994) Columbia Journal of Transnational Law 289, 296-297.

[17] US v Amistad [1841] USSC 27; 40 US 518.

[18] For a discussion of the incident (and limited discussion of the Amistad incident), see Howard Jones, ‘The Peculiar Institution and National Honor: The Case of the Creole Slave Revolt’ (1975) XXI Civil War History 28.

[19] Ibid, 43. Sadat, above n 18, 297, n 15, points out that the Creole was also discussed by Professor Edelman in the context of the Barbie case, decided by the French Court of Cassation in 1985. See 1986 Journal du Droit International 143, 147, where he states that, ‘C’eût été pécher contre l’humanité que de livrer un noir — fût-il criminel, encore qu’on eût pu s’interroger sur le crime consistant à supprimer un négrier — à un Etat esclavagiste, qui l’eût considéré comme une chose. Les principes généraux du droit s’opposaient à les faire juger par une cour qui lui aurait dénié, au nom de ses propres lois, la qualité d’homme.’

[20] John Bassett Moore, ‘Decision in the Case of the Creole’ (US Government Printing Office, 1906) Digest of International Law, Vol. II, 358-361.

[21] George William Curtis, ‘Charles Sumner: A Eulogy Delivered before the Legislature of Massachusetts, in the Boston Music Hall, June 9, 1874’ in C E Norton (ed), Orations and Addresses of George William Curtis, Vol. III (Harper and Brothers, 1894), 199, 208.

[22] Robert Lansing, ‘Notes on World Sovereignty’ (1921) 15 American Journal of International Law 13, 25. See also below n 45, and accompanying text.

[23] US v Altstoetter (‘The Justice Case’), in Trials of War Criminals Before the Nuernberg Military Tribunals under Control Council Law No. 10, October 1946—April 1949, Volume III (1950-1951), 981-982. See also US v Ohlendorf (‘The Einsatzgruppen Case’), in Trials of War Criminals Before the Nuernberg Military Tribunals under Control Council Law No 10, October 1946—April 1949, Volume IV (1950-1951), 497-498.

[24] President’s Special Message of 11 April 1898, see US v Altstoetter, ibid.

[25] US v Altstoetter, above n 25, at 981.

[26] President’s Message to Congress, 1904, ibid.

[27] Above n 10, and accompanying text.

[28] US v Altstoetter, above n 25, at 982.

31 Estimates as to the number of casualties vary, although the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties at the Paris Peace Conference in 1919 asserted that over [2]00,000 had perished. See James Willis, Prologue to Nuremberg (Greenwood Press, 1982), 157. For a detailed examination of the Armenian massacres, see Vahakn Dadrian, ‘Genocide as a Problem of National and International Law: The World War I Armenian Case and its Contemporary Legal Ramifications’ (1989) 14 Yale Journal of International Law 221.

29 Joint Declaration by France, Great Britain and Russia (24 May 1915, Paris, London & Petrograd). The full text of the Declaration is available in Papers Relating to the Foreign Relations of the United States, 1915, Supplement (1928), 981.

[30] Roger Clark, ‘Crimes Against Humanity at Nuremberg’, in G Ginsburgs & VN Kudriavtsev (eds), The Nuremberg Trial and International Law (Martinus Nijhoff, 1990), 177, 178.

[31] See Willis, above n 31, 27. Cassese suggests, above n 1, 67-68, that the three States were simply intent on solving a short-term political problem, and that they were “neither aware of, nor interested in, the general philosophical implications of the phrase they had used”.

[32] Its membership consisted of two representatives each from France, Great Britain, Italy, Japan and the United States, and one each from Belgium, Greece, Poland, Romania and Serbia. It is accordingly commonly referred to as the ‘Commission of Fifteen’. On the Commission generally, see United Nations War Crimes Commission, History of the United Nations War Crimes Commission and the Development of the Laws of War (HMSO, 1948), 32-41 and Willis, above n 31.

[33] Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, Report Presented to the Preliminary Peace Conference, 29 March 1919, 14 American Journal of International Law (1920) 95, 113.

[34] See Egon Schwelb, ‘Crimes Against Humanity’ 23 British Yearbook of International Law (1946) 178, 181 and United Nations War Crimes Commission, above n 35, 36. The UNWCC warned, however, that it is not known whether the Commission of Fifteen, “in using the term ‘crimes against the laws of humanity’, had in mind offences which were not covered by the other expression ‘violation of the laws and customs of war’, nor whether the Commission considered that crimes against any civilian population fall within the former category”. This seems an unnecessarily cautious approach.

[35] Report of the Commission on Responsibility, above n 36, 114-115 (Annex I of the Report, giving further particulars of the offences was not reproduced in the American Journal of International Law). See also UN War Crimes Commission, above n 35, 35 and Schwelb, above n 37, 181.

[36] Report of the Commission on Responsibility, Annex II, Memorandum of Reservations Presented by the Representatives of the United States to the Report of the Commission on Responsibilities, 4 April 1919, above n 36, 127-151. It should be noted that the Japanese delegation also expressed reservations as to responsibility of heads of state, responsibility for omissions, and whether it could be “admitted as a principle of the law of nations that a

high tribunal constituted by belligerents can, after a war is over, try an individual belonging to the opposite side, who may be presumed to be guilty of a crime against the laws and customs of war. It may further be asked whether international law recognizes a penal law as applicable to those who are guilty”. Ibid, 151-152.

40 Ibid, 144-145. For excellent criticism of the US argument, see Lord Wright, ‘War Crimes Under International Law’ (1946) 62 Law Quarterly Review 40, 48-49, where he responds that: “They [Lansing and Scott] said that there was no fixed and universal standard of humanity, but that it varied with time, place and circumstance, and, it may be, the conscience of the individual judge. They referred to the place of equity in the Anglo-American legal system and to John Selden’s definition of equity as a roguish thing. But, if I may also take the parallel from Anglo-American law, equity has established itself as a regular branch of that legal system. Equally it might be said that negligence is too indeterminate to constitute a legal head of liability, but we all know that in the Anglo-American law of tort it has become one of the widest and most comprehensive and most important categories of liability”.

37 Justice Robert Jackson, Chief Counsel for the US at Nuremberg, explained in 1945, however, that, “sentiment in the United States and the better world opinion have greatly changed since Mr James Brown Scott and Secretary Lansing announced their views as to criminal responsibility for the first World War”. See Report of Robert H. Jackson, US

Representative to the International Conference on Military Trials to the President of the USA (US Government Printing Office, 1949), Document XXXVII, Minutes of Conference Session of 19 July, 1945, 295, at 299. M. Cherif Bassiouni, Crimes Against Humanity in International Law (Kluwer Law International, 2nd revised ed, 1999), 18, argues that the US attitude in 1919 made the inclusion of war crimes in the Nuremberg Charter more difficult.

42 Willis, above n 31, 69.

38 Ibid, 74.

[39] Report of the Commission on Responsibility, Annex II, above n 36, 149.

[40] Lansing, above n 24. An editorial note at the beginning of the article states the date of writing to have been 1906. Clark believes this to be the first use of the phrase in English-language legal writing. See above n 33, 179, n.7.

[41] Art 230. Art 226-228 of the Treaty dealt with violations of the laws and customs of war.

[42] United Nations War Crimes Commission, above n 35, 45. See also Schwelb, above n 37, 182.

[43] United Nations War Crimes Commission, ibid. As Bassiouni points out, above n 41, 68-69, however, “Such a clearly politically motivated decision did not… alter the fact that criminal responsibility had been recognized, though actual prosecution of individual offenders was foregone. Moreover, it is noteworthy that an amnesty can only be for a crime. Clearly, the fact that a crime was not prosecuted does not negate its legal existence”.

[44] Clark, above n 33, 179. Bassiouni argues that this is the “specific origin of the term “crimes against humanity” as the label for a category of international crimes”, above n 41, 62.

[45] See Jackson’s Report, above n 41, Document V, American Memorandum of Proposals for the Prosecution and Punishment of Certain War Criminals and Other Offenders Presented at San Francisco, April 30, 1945, 28, 36.

[46] Indeed, Bassiouni, above n 41, 17, suggests that this was the primary aim of Stalin, Churchill and Roosevelt, but that there was no real legal basis in support. Consequently, a great deal of time and effort was devoted to the question of crimes against peace and their legal basis — largely at the expense of similar considerations regarding crimes against humanity. The issue of aggression, or crimes against peace, has generated much debate, but necessarily falls outside the scope of this article. See, generally, Jackson’s Report, above n 41; Bradley Smith, The American Road to Nuremberg: The Documentary Record 1944-1945 (Hoover Institution Press, 1982); and, more particularly, United Nations War Crimes Commission, above n 35, 232-261; Bradley Smith, Reaching Judgment at Nuremberg (Basic Books, 1977), 16-17; Michael Marrus, The Nuremberg War Crimes Trial 1945-1946 (Bedford Books, 1997), 122-148; William Schabas, ‘Origins of the Criminalization of Aggression: How Crimes Against Peace Became the “Supreme International Crime”’ in M Politi and G Nesi (eds), The International Criminal Court and the Crime of Aggression (Ashgate Publishing Ltd, 2004), 17.

[47] United Nations War Crimes Commission, above n 35, 170.

[48] It could therefore be argued that they did not violate international law at all. The extent to which they violated German domestic law was also open to question. See Jackson’s Report, above n 41, Document I, Memorandum to President Roosevelt from the Secretaries of State and War, and the Attorney-General, 22 January 1945, 5.

[49] United Nations War Crimes Commission, above n 35, 174.

[5]5 Smith, Reaching Judgement, above n 51, 14.

50 United Nations War Crimes Commission, above n 35, 174.

[51] Smith, Reaching Judgment, above n 51, 14.

[52] There are no official transcripts of the proceedings leading to the adoption of the Charter. The best documentary record is probably Jackson’s Report, above n 41. As Bassiouni explains, above n 41, 4, however, this consists of a transcript of edited summaries of the meetings made by Jackson’s secretary, and not verbatim records.

[53] Jackson’s Report, above n 41, Document LVI, 395. Evolution of the crimes against humanity provision can be traced throughout Jackson's Report, and is summarised by Clark, above n 33, 181-192.

[54] See Clark, ibid, 189-190; Smith, Reaching Judgment, above n 51, 59; Jacob Robinson, ‘The International Military Tribunal and the Holocaust: Some Legal Reflections’ (1972) 7 Israel Law Review 1, 3; Bassiouni, above n 41, 17.

[55] United Nations War Crimes Commission, above n 35, 175.

[56] Statement by the President (released to the press by the White House, March 24, 1944), reproduced in Jackson’s Report, above n 41, Document I, 13.

[57] Robert Wolfe, ‘Flaws in the Nuremberg Legacy: An Impediment to International War Crimes Tribunals’ Prosecution of Crimes Against Humanity’ (1998) 12 Holocaust and Genocide Studies 434, 437.

[58] NA RG 107, Office of Secretary of War, Office of Assistant Secretary of War, 107.4, Decimal File 000.51, War Crimes, January 1943-December 1944, ‘Trial of European War Criminals’. Reprinted in Smith, American Road to Nuremberg, above n 51, Document 16, 33.

6[5] Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, 8 August 1945, Charter of the International Military Tribunal, 82 UNTS 279, 284.

66 This is the text of Article 6(c) as amended by the Protocol to the Agreement and Charter of October 6, 1945. See Jackson’s Report, above n 41, Document LXI, 429. The comma after “before or during the war” had originally been a semicolon in the French and English texts, but a comma in the Russian text. For a discussion of the significance of this alteration, see Bassiouni, above n 41, 25-30.

59 Smith, Reaching Judgment, above n 51, 14.

[60] Ibid. The Tribunal did not, in fact, convict anybody in relation to crimes committed only before the war. From an evidentiary point of view, however, it did refer to certain events which occurred prior to it.

[61] Ibid.

[62] Bassiouni, above n 41, 17-18.

[63] Ibid, 31.

[64] Smith, Reaching Judgment, above n 51, 15.

[65] For an excellent treatment of the ex post facto issue, see Bassiouni, above n 41, 123-166. He concludes that Article 6(c) was “substantially valid”, thanks to the required nexus between crimes against humanity and war crimes, and the argument that the principles of legality in international criminal law can be represented by the maxim nullum crimen sine iure, rather than the maxim nulla poena sine lege.

[66] Jackson’s Report, above n 41, Document VIII, Report to the President by Mr Justice Jackson, June 6, 1945, 42, 48.

[67] Ibid, 50. As Bassiouni explains, above n 41, 41-42: “The facts that gave rise to ‘crimes against humanity’ were too barbarous and too momentous to foresee, thus, no specific positive international criminal law existed which specifically covered all of the terrible deeds that were committed… Because they were so unlawful in nature, the law had simply not referred to such atrocities specifically. Indeed, the law seldom anticipates the unthinkable”.

[68] Smith, Reaching Judgment, above n 51, 15.

[69] Jackson’s Report, above n 41, Document V, 28, 37.

[70] Opening Statement for the US by Robert Jackson, Chief of Counsel for the United States at the Palace of Justice, Nuremberg, Germany, November 21, 1945, reproduced in The Nürnberg Case as Presented by Robert H. Jackson (Cooper Square Publishers, 1971), 30, 82.

[71] Although see Bassiouni, above n 75.

[72] Jackson’s Report, above n 41, Document XVII, Minutes of Conference Session of June 29, 1945, 97, 99.

[73] Schwelb, above n 37, 199, citing Speeches of the Chief Prosecutors at the Close of the Case against the Individual Defendants, Cmd. 6964, 38. Sir Hartley Shawcross, Chief Prosecutor for the UK at Nuremberg, argued in his opening statement that: “There is thus no substantial retroactivity in the provisions of the Charter. It merely fixes the responsibility for a crime already clearly established as such by positive law upon its actual perpetrators. It fills a gap in international criminal procedure. There is all the difference between saying to a man, ‘You will now be punished for what was not a crime at all at the time you committed it’, and in saying to him, ‘You will now pay the penalty for conduct which was contrary to law and a crime when you executed it, although, owing to the imperfection of the international machinery, there was at that time no court competent to pronounce judgment against you’. It is that latter course which we adopt, and if that be retroactivity, we proclaim it to be most fully consistent with that higher justice which, in the practice of civilised states, has set a definite limit to the retroactive operation of laws.” See Trial of the Major War Criminals Before the International Military Tribunal, Nuremberg, 14 November 1945—1 October 1946, Volume 3 (1947), 106.

82 Hans Kelsen, ‘Will the Judgment in the Nuremberg Trial Constitute a Precedent in International Law?&#821[7] (1947) 1 The International Law Quarterly 153, 165. Kelsen had also previously argued, in ‘Collective and Individual Responsibility in International Law with Particular Regard to the Punishment of War Criminals’ (1943) 31 California Law Review 530, 544, that, where an act is morally, if not legally wrong, attaching an ex post facto sanction to it would only be wrong from a legal, and not from a moral point of view: “Such a law is not contrary to the moral idea which is at the basis of the principle in question. This is in particular true of an international treaty by which individuals are made responsible for having violated, in their capacity as organs of a State, international law. Morally they were responsible for the violation of international law at the moment when they performed the acts constituting a wrong not only from a moral but also from a legal point of view. The treaty only transforms their moral into a legal responsibility. The principle forbidding ex post facto laws is — in all reason — not applicable to such a treaty”. Smith, likewise, felt that concerns over the possible ex post facto nature of crimes against humanity were misplaced, arguing that “the crime charged involves so many elements of criminality under the accepted laws of war and the penal laws of all civilised states that the incorporation of the additional factors in question does not offer the type of threat to innocence which the prohibition of ex post facto laws is designed to prevent”. See American Road to Nuremberg, above n 51, 84, 86.

83 The Nürnberg Case as Presented by Robert H. Jackson, above n 78, 85. As he stated, ibid, 81-82: “It may be said that this is new law, not authoritatively declared at the time they did the acts it condemns, and that this declaration of the law has taken them by

surprise. I cannot, of course, deny that these men are surprised that this is the law; they really are surprised that there is any such thing as law. These defendants did not rely on any law at all. Their program ignored and defied all law… International law, natural law, German law, any law at all was to these men simply a propaganda device to be invoked when it helped and to be ignored when it would condemn what they wanted to do. That men may be protected in relying upon the law at the time they act is the reason we find laws of retrospective operation unjust. But these men cannot bring themselves within the reason of the rule which in some systems of jurisprudence prohibits ex post facto laws. They cannot show that they ever relied upon International Law in any state or paid it the slightest regard”. For further discussion of the relationship between law and morality at Nuremberg, see Bassiouni, above n 41, 107-118.

74 See Bassiouni, above n 41, 19-32 and 69-82. This requirement of a nexus between crimes against humanity and aggression or war crimes was not, however, retained by the Allies in Article II(1)(c) of Control Council Law No. 10. Although it was apparently reintroduced by Article 5 of the Statute of the International Criminal Tribunal for the Former Yugoslavia, it is not part of contemporary international law. See Lindsay Moir, The Law of Internal Armed Conflict (Cambridge University Press, 2002), 148-149.

[75] Jackson’s Report, above n 41, Document XLIV, Minutes of Conference Session of July 23, 1945, 328, 331.

[76] Ibid, Document XLVII, Minutes of Conference Session of July 24, 1945, 360, 361.

[77] See, for example, Sir David Maxwell Fyfe, ibid, 361-362.

88 International Military Tribunal (Nuremberg), Judgment and Sentences, 1 October 1946, (194[7]) 41 American Journal of International Law 172, 293-296. None of the defendants were actually convicted of crimes against humanity based solely on acts committed prior to 1939. See Schwelb, above n 37, 205.

78 Schwelb, ibid. See, for example, the Tribunal’s judgments in the cases of Frick, von Schirach, and von Neurath, ibid, 291-293, 309-311 and 324-326 respectively.

[79] Schwelb, above n 37, 199, citing Cmd. 6964, 64.

[80] Nuremberg Judgment, above n 88, 249.

[81] Clark, above n 33, 195.

[82] Ibid, 195-199.

[83] Schwelb, above n 90.

[84] Marrus, above n 51, 189.

[85] M Cherif Bassiouni, ‘The Proscribing Function of International Criminal Law in the Process of Protection of Human Rights’ (1982) 9 Yale Journal of World Public Order 193, 193.

[86] Louis Henkin, Richard Pugh, Oscar Schachter and Hans Smit, International Law (West Publishing Co, 2nd ed, 1987), 986.

9[8] Hersch Lauterpacht, International Law and Human Rights (Stevens and Sons, 1950), 36.

87 See Frank Newman and David Weissbrodt, International Human Rights (Anderson Publishing Company, 1990), 663.

[88] Ibid, 664-665.

[89] Or, at least, human rights remain relevant and useful during times of armed conflict. See The Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion (1996) ICJ Rep, 35 ILM 809, para 25; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, (2004) ICJ Rep, 43 ILM 1009, para 105-113; Lindsay Moir, ‘Decommissioned? International Humanitarian Law and the Inter-American Human Rights System’ 25 (2003) Human Rights Quarterly 182, 182-185.

102 Myres McDougal, Harold Lasswell and Lung-chu Chen, Human Rights and World Public Order (Yale University Press, 1[9]80), 355.

90 Bassiouni, above n 41, 48.

104 Jackson’s Report, above n 41, Document VIII, Report to the President by Mr Justice Jackson, June 6, 1[9]45, 42, 48-49.

[91] Ibid, 50.

[92] Clark, above n 33, 178.

[93] Sadat, above n 18, 297.

[94] Documents from the First Conference are, however, usually quoted in the form as amended in 1907, so that the 1899 Conference has, “in a way been absorbed by its successor”. See Vladimir Pustogarov, ‘Fyodor Fyodorovich Martens (1845-1909): A Humanist of Modern Times’ (1996) 312 International Review of the Red Cross 300, 313. Bassiouni does refer to both, when he states, above n 41, 42, that: “The prohibitions contained in ‘crimes against humanity’ appear in the instruments for the international regulation of armed conflict. More specifically, the legal basis for ‘crimes against humanity’ can be found in the Preambles of the 1899 and 1907 Hague Conventions”. For background as to the adoption of the Martens Clause, see Arthur Eyffinger, The 1899 Hague Peace Conference (Kluwer Law International, 1999) and James Brown Scott, The Proceedings of the Hague Peace Conferences, Translation of the Official Texts (William Hein & Co, reprinted 2000).

[95] Antonio Cassese, ‘The Martens Clause: Half a Loaf or Simply Pie in the Sky?’ (2000) 11 European Journal of International Law 187, 188-189.

[96] Bassiouni, above n 41, 61.

[97] Reproduced in Adam Roberts and Richard Guelff (eds), Documents on the Laws of War (Oxford University Press, 3rd ed, 2000), 53.

[98] Cassese, above n 109, 188.

[99] Ibid, 193. As Cassese explains, ibid, 197-198, the clause “appears to be a typical diplomatic ploy to paper over strong disagreement between states by skilfully deferring the problem for a future discussion”. In addition, he points out, ibid, 199-200, that: “Martens himself ― a man ready to extol his own merits ― never took pride in the clause. In his numerous books and writings he instead emphasized other contributions of his which he regarded as major accomplishments… The fact that his fame should be linked to something which was during his lifetime not regarded by him or others as significant is perhaps not so striking… The fact remains, however, that in Martens’ lifetime, no one paid any attention whatsoever to the clause and he himself — in spite of his evident and repeated boasting of other diplomatic successes — did not look upon it as a major achievement nor even as a notable contribution to the Peace Conference”.

[100] Ibid, 212.

[101] Ibid, 212-214. On the continuing importance of the Martens Clause, see also Theodor Meron, ‘The Martens Clause, Principles of Humanity, and Dictates of Public Conscience’ (2000) 94 American Journal of International Law 78, and Rupert Ticehurst, ‘The Martens Clause and the Laws of Armed Conflict’ (1997) 17 International Review of the Red Cross 125.

[102] Cassese, above n 109, 211.

[103] Sadat, above n 18, 297.

[104] United Nations War Crimes Commission, above n 35, 26.

[105] See Steven Ratner and Jason Abrams, Accountability for Human Rights Atrocities in International Law (Oxford University Press, 2nd ed, 2001), 46, referring to Jean Graven, ‘Les Crimes Contre l’Humanité’ (1950-I) 76 Recueil des Cours 427, 433.

[106] Although even this is uncertain, given the suggestion at Nuremberg that international law had made no specific provision for them precisely because they were so egregious as to be unforeseeable at that time. See above n 75 and accompanying text.

[107] Ratner and Abrams, above n 119, 46.

[108] Ibid.

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