CHAPTER TWO

THE DEVELOPMENT OF THE CONCEPT OF CRIMES AGAINST HUMANITY

2.1     Introduction 

Crimes against humanity, as defined by the Rome Statute of the International Criminal Court Explanatory Memorandum, "are particularly odious offenses in that they constitute a serious attack on human dignity or grave humiliation or a degradation of human beings."[1] They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. Murder; extermination; torture; rape; political, racial, or religious persecution; and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. Isolated inhumane acts of this nature may constitute grave infringements of human rights, or depending on the circumstances war crimes, but are not classified as crimes against humanity.[2]

2.2 Historical Development of the Concept of Crimes against Humanity

In 1860 the American National Republican Convention included in their electoral platform, on which Abraham Lincoln ran for President, the following statement: "... We brand the recent re-opening of the African slave trade, under the cover of our national flag, aided by perversions of judicial power, as a crime against humanity". In 1890, George Washington Williams used the phrase to describe the treatment of Africans in the Congo Free State under King Leopold II of Belgium.[3] Another very significant early use of the phrase "crimes against humanity" came during the I World War when, on May 24, 1915, the Allies, Britain, France, and the Russian Empire, jointly issued a statement explicitly announcing, for the first time, the commission of a "crime against humanity" in response to the Armenian Genocide and warned of personal responsibility for members of the Ottoman Government and their agents.4 At the conclusion of the war, an international war crimes commission recommended the creation of a tribunal to try "violations of the laws of humanity". However, the US representative objected to references to "law of humanity" as being imprecise and insufficiently developed at that time and the concept was not pursued.[4]

2.2.1 Nuremberg trials

In the aftermath of the II World War, the London Charter of the International Military Tribunal was the decree that set down the laws and procedures by which the post-War Nuremberg trials were to be conducted. The drafters of this document were faced with the problem of how to respond to the Holocaust and grave crimes committed by the Nazi regime. A traditional understanding of war crimes gave no provision for crimes committed by a power on its own citizens. Therefore, Article 6 of the Charter was drafted to include not only traditional war crimes and crimes against peace, but in paragraph 6 (c) Crimes Against Humanity, defined as:

Murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where

perpetrated.[5]

In the Judgment of the International Military Tribunal for the Trial of German

Major War Criminals it was also stated:

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.[6]

2.2.2 Tokyo trials

The International Military Tribunal for the Far East (IMTFE), also known as the Tokyo Trial, was convened to try the leaders of the Empire of Japan for three types of crimes: "Class A" (crimes against peace), "Class B" (war crimes), and "Class C" (crimes against humanity), committed during the II World War.

The legal basis for the trial was established by the Charter of the International Military Tribunal for the Far East (CIMTFE) that was proclaimed on 19 January 1946. The tribunal convened on May 3, 1946, and was adjourned on November 12, 1948.

A panel of eleven judges presided over the IMTFE, one each from victorious Allied powers (United States, Republic of China, Soviet Union, United Kingdom, the Netherlands, Provisional Government of the French Republic, Australia, New Zealand, Canada, British India, and the Philippines).

[1] "Rome Statute of the International Criminal Court", United Nations Treaty Collection. United Nations. Retrieved March 22, 2013.

[2] As quoted by Guy Horton in Dying Alive - A Legal Assessment of Human Rights Violations in Burma April 2005, co-Funded by The Netherlands Ministry for Development Co-Operation. See section "12.52

Crimes against humanity", p 201. He references RSICC/C, Vol. 1 p. 360

[3] Hochschild, Adam (1998). King Leopold's Ghost. London: Pan Macmillan. 4 1915 declaration: Affirmation of the United States Record on the Armenian Genocide Resolution 106th Congress,2nd Session, House of Representatives. Affirmation of the United States Record on the Armenian Genocide Resolution (Introduced in House of Representatives) 109th Congress, 1st Session, H.RES.316, June 14, 2005. 15 September 2005 House Committee/Subcommittee: International Relations actions. Status: Ordered to be Reported by the Yeas and Nays: 40–7. See also "Crimes Against Humanity", 23 British Yearbook of International Law (1946) p. 181; Original source of the telegram sent by the Department of State, Washington containing the French, British and Russian joint declaration

[4] Cryer, Robert; Hakan Friman; Darryl Robinson; Elizabeth Wilmshurst (2007).An Introduction to International Criminal Law and Procedure. Cambridge University Press. p.188.

[5] Nuremberg Trial Proceedings Vol. 1 Charter of the International Military Tribunal contained in the Avalon

Project archive at Yale Law School

[6] Judgement : The Law Relating to War Crimes and Crimes Against Humanity contained in the Avalon Project archive at Yale Law School