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        2.0        INTRODUCTION

A historical excursion into the origins or the law of warfare1, will reveal that one of the fundamental questions which agitated the minds of the early lawmakers in this field of study was: “why, in fact, should there be legal limitations to belligerent actions aimed at destroying a foreign foe?” 2 Primarily, one might be tempted to question the rationale of constraints, as it appears to defeat the very purpose of warfare and therefore devoid of any value to the combatants who are to resist an armed attack or who wish to wage war against a foe.


There are mutual benefits to be derived by both parties from observing the rules of constraints in the art of warfare.  These rules seek to limit the suffering and damage inflicted not only upon the victims of the other party but also on one’s own soldiers, civilians, environment and properties of historical and cultural value. Thus this hitherto classic question no longer agitate the minds of political and military leaders to whom the body of international humanitarian law has become a widely accepted, though not always respected framework for the conduct of hostilities.


The question, now, is not whether or not there should be legal restraints to warfare, but rather how effectively can these restrictions be enforced and applied against the perpetrators.


It is against this background that the defining crime under international law, war crimes and the prosecution of war criminals has become so important or vital. It therefore becomes pertinent that the general scheme of repression codified in the four Geneva conventions of August 12, 1949, and in Additional protocol 1, of 1977, which are generally the same, (their point of departure being only  in the nature of breaches to be punished) be examined. The text made a distinction between grave breaches and other” breaches”  the only provision in the international regulations concerning the enforcement of other breaches” is that states should take measures necessary for their prevention and repression3.


An examination of the classification of crimes and breaches under international humanitarian law contained in the Statute of International Criminal Tribunal for former Yugoslavia 4, and the International Criminal Tribunal for Rwanda 5. And the definition of crimes such as genocide, crimes against humanity, war crimes with a view to determining the parameter of the constituents of the offence is countenanced, and finally the landmark development in international criminal justice and administration which the adoption of the Rome statute of the International Criminal Court (ICC) has occasioned. The statute was adopted in Rome on July, 17 1998. A revolutionary institution which has punctured the myth of state sovereignty and subjects state nationals to an international criminal jurisdiction.  The Rome Status came into force on 1st July 2002 with sixty states ratification amidst mixed feelings especially by the United state6. The substantive features of the Rome statute includes a definition of crimes falling within its jurisdiction which is more specific than existing international law.



If “a crime is a human conduct which the state decides to prevent by threat of punishment liability of which is determined by a legal proceedings of a special kind”7 then a crime under international law or rather international crime is a human conduct, which the community of nations decides to prevent by threat of penal responsibility and sanctions for its breaches; which is determined by special legal proceedings.                                                                


The Osborn’s concise law Dictionary defines a crime as an act, default or conduct prejudicial to the community, the commission of which by law renders the person responsible liable to punishment by fine or imprisonment in special proceedings . . . “8 The philosophy of the law of Geneva being the protection of individuals, ensures that those who have been placed hors de combat or who do not take part in hostilities are treated humanely, while the law of Hague restricts the freedom of belligerents to choose weapons and methods of warfare by proscribing method of warfare that causes superfluous damage to man and his environment. These laws prescribes punishment for individuals violates them.


Bringing those individuals who contravene the norms of international law to justice, has a long, albeit inconsistent history.  The fact that individuals were not responsible under international law compounded issues. But development in this field ensured that individuals are now answerable under international law and can be prosecuted for war crimes.


Arguably the first international war crimes trial was the prosecution of Peter Von Hagenbach in 1474 for the atrocities committed during an attempt to compel Breisach to submit to Burgandian rule by a tribunal comprising judges drawn from different states and principalities9. Article 227 of the 1919 Treaty of Versailles provided that German Emperor William II should be tried by an international court to answer charges for “flagrant offence against international morality and the sacred authority of treaties”. But since the Netherlands refused to give up the accused, the trial never took place, and Wilhelm II died in exile in Holland in 1941. Articles 228 and 229 of the Treaty providing for the prosecution of the war criminals were applied in a disappointing way in the Leipzig trail. The Nuremberg and Tokyo trial after the second world war undeniably represented progress towards the creation of a body with truly international criminal jurisdiction but they were greatly influenced by their origins and in effect applied the law and justice of the victor rather than those of universal community of states.10 The International Military Tribunal in Nuremberg11 and the International Military Tribunal for the far East in Tokyo12, were set up in 1945 to persecute and punish major Axis war criminals in Europe and Japan. The Military Tribunal at Nuremberg asserted that “crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced 13” Thus by recognizing individual responsibility under international law, it is an important milestone in the development of international criminal justice.


Today the rules governing the prosecution of offenders are principally to be found in the 1949 Geneva conventions, which oblige states to try to extradite individuals responsible for committing or having committed “grave breaches” of the conventions14, and in Article 85 of Additional protocol I.

It should be emphasized that international humanitarian law cannot impose criminal sanctions in the case of an internal armed conflict as “grave breaches” defined in the Geneva conventions and protocol 1 can only occur in international armed conflict.  


Developments in international humanitarian law in recent years have radically changed the situation. Atrocities committed in internal armed conflicts are today punishable as a result of a new approach taken to such acts and the broader definition given to international crimes15.


The Statute of the International Criminal Tribunal for the former Yugoslavia16, and the International Criminal Tribunal for Rwanda17. The statute of International Criminal Tribunal for the former Yugoslavia expressly gives the tribunal jurisdiction over crimes against humanity “when committed in armed conflict, whether international or internal in character, and directed against any civilian population18. Thus the Appeal chamber of the Tribunal in the case of Prosecutor V:  Tadic:  observed that “it is by now a settled rule of customary international law that crimes against humanity do not require a connection to international armed conflict. Indeed . . . customary international law may not require a connection between crimes against humanity and any conflict at all“19. Thus the appeal chamber held on the basis of state practice, that the provision on the statute of the Tribunal dealing with the violations of the laws and customs of war applied to both internal and international armed conflict. 20 


Under International Law after the Nuremberg trials, by creating two criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR), the Security Council took a leap and established beyond any doubt that individuals may now, in respect of international humanitarian law, appear as subject bound by certain legal obligation directly under international law. They can be held individually responsible before an international forum for the violations of these obligations. This is a remarkable development in international law with far reaching implications for inter alia, the concept of state sovereignty.


Subsequently, the International Law Commissions 1996 Draft code of crimes against the peace and security of mankind accepts that certain acts committed in the violation of the laws and customs of war, acts prohibited under common Article 3 of the four Geneva conventions and Protocol II; and severe damage to the natural environment unjustified by military necessity constitute war crimes when committed in internal armed conflict.


The above development has dispensed with the distinction between international and internal armed conflicts for the purpose of what constitutes war crimes and the punishment of offenders. The statute of the permanent International Criminal Court, provisions in Article 8, may be considered retrogressive in the light of the existing law as it make a clear distinction between international and internal armed conflicts.


Nevertheless, the adoption of the Statutes for an International Criminal Court has been widely welcomed as an important milestone in entrenching international accountability. Now that the statute has received the necessary 60 states ratification and has entered into force,21  it is the first time the world has a permanent mechanism for prosecuting genocide, crimes against humanity and war crimes 


The preamble to the Statutes of International Criminal Court eloquently captures what may be referred to as the concept of international crime in these words.


“The state parties to this statute, conscious that all people are united by common bonds, their cultures pierced together in a shared heritage, and concerned that this delicate mosaic may be shattered at any time and mindful that during this century millions of children, women and men have been victims of unimaginable atrocities that deeply shock the conscience of humanity; recognizing that such grave crimes threaten the area, security and well being of the world, affirming that the most serious crimes of concern to the international community as a whole must not go unpunished, and that their effective prosecution must be ensured by taking measure at the national level and by enhancing international cooperation, determined to put an end to impunity for the perpetrators of these crimes and thus contribute to the prevention of such crimes, recalling that it is the duty of every state to exercise its criminal jurisdiction over those responsible for international crimes, re-affirming the purposes and principles of the charter of the United Nations, and in particular that all states shall refrain from the threat of use of force against the territorial integrity of political  independence of any state, or in any other manner inconsistent with the purpose of the United Nations, emphasizing in this connection that nothing in the statutes shall be taken as authorizing any state party to intervene in an armed conflict or in the internal affairs of any state, Determined to these ends and for the sake of present and future generations, to establish an independent permanent international criminal court in relationship with the United Nations system, with jurisdiction over the most serious crimes of concern to the international community as a whole .

. . . “22  

Article 5, of the statute limits the jurisdiction of the court to the most serious crimes of concern to the international community as a whole. Which are the crimes of genocide, crimes against humanity, war crimes and the crime of aggression when the exact parameter has been agreed upon in accordance with the provision of Articles 121 and 123 of the statute.


         2.2.1          INTERNATIONAL CRIMES

Considering that jurisdiction of the International Criminal Tribunal for former Yugoslavia23 (ICTY) and the International Criminal

Tribunal for Rwanda (ICTR) 24 were established on 11 February 1993 and 8 November 1994 respectively by the Security Council to prosecute persons responsible for flagrant violations of international humanitarian law, the aim of the Security Council is to put an end to such violations and to contribute to the restoration and maintenance of peace and the establishment of ad hoc tribunals as a signal to the perpetrators and to the victims that such conduct will not be tolerated. 


The conferment of jurisdiction on ICTY over the following crimes: (a) grave breaches of the Geneva conventions of 1949; (b) violations of the laws or customs of war; (c) genocide, and (d) crimes against humanity. While the ICTR has jurisdiction over:  (a) genocide (b) crimes against humanity; and (c) violations of Article 3 common to the 1949 Geneva conventions and of Additional protocols 1. Coupled with the fact that the Rome Statute of the International Criminal Court (ICC) 25 with jurisdiction over all serious violations of the law of war, in civil conflicts and international engagement as well as crimes of genocide.26 even when they occur outside a state of war. In essence, the ICC will be a permanent institution, with automatic jurisdiction over the crimes of genocide, crimes against humanity, war crimes and aggression  (once it is defined)27  

It is proposed to attempt a definition of the crimes against humanity, war crimes, the exact parameter of the crime of genocide and the crime of aggression.


         2.2.2           CRIMES AGAINST HUMANITY

When establishing the Yugoslavia Tribunal, one view expressed by the secretary General was that ‘the application of the principles nullem Crimen Sine lege required that the international tribunal apply rules of international humanitarian law which are beyond any doubt part of customary law”. 29  Therefore, although the ICTY has jurisdiction to prosecute crimes against humanity, which are generally recognized as being covered by customary international law, the question is whether the definition adopted in the statute of ICTY and in that of the Rwanda Tribunal (ICTR) reflects customary international law.


Unlike grave breaches of the 1949 Geneva conventions on genocide, crimes against humanity have not been defined in a treaty, and throughout the relatively short history of the use of the term “crimes against humanity” the definition has developed inconsistently. It is therefore difficult to substantiate any claim that the definition reflects customary international law.  This will be illustrated by looking at the development of the concept with particular emphasis on the Nuremberg Trials, Control Council law No. 10 (CCL), the International Law Commission’s attempt at codification, national decisions and the statute of the ICTR and ICTY.


Concept of crimes against humanity before world war 11

The term “crimes against humanity” and cognate expression received little attention prior to World War II. The 1868 St. Peters burg Declaration limited the use in times of war, certain explosives or incendiary projectiles, since they were declared to be contrary to the laws of humanity. In 1907, the well known martens clause, provided as follows: Until a more complete code of the laws of war has been issued,…the inhabitant and the belligerents remain under the protection and the rule of the principles of the law of nations as they result from usage among civilized peoples, from the laws of humanity and the dictates  of public conscience.30  


The expression “ crimes against humanity” was used in the 1915 Declaration by the governments of France, Great Britain and Russia denouncing the massacre of Armenians taking place in Turkey.


“ Crime against humanity and civilization for which the members of the Turkish Government will be held responsible together with the agents implicated in the massacres”. 31  But in the 1919 report of the Commission on the Responsibilities of the Authors of war and on Enforcement of penalties for violations of laws and customs of war.32  The majority of the members concluded that the German empire and its allies carried out the war “by barbarous or illegitimate methods in violation of the established laws and customs of war and the elementary laws of humanity” and “all persons belonging to enemy countries… who have been guilty of offences against the laws and customs of war or the laws of humanity, are liable for criminal prosecution”.33


Concept of Crimes against Humanity Following World War II

The most important developments regarding the concept of crimes against humanity have taken place since World War II.  A number of declarations were made during the war, by several allied governments expressing the desire to investigate, try and punish not only war criminals in the narrow sense, i.e.

perpetrators of the violations of the laws and customs of war on allied territory or against allied citizens, but also those responsible for the atrocities committed on Axis territory against nationals of non-allied countries.34


On 8 August 1945, the four allied powers (France, Great Britain, the USSR and the United States) concluded the London Agreement. Annexed to it was the Charter of the International Military Tribunal for the prosecution and punishment of the major criminals of the European Axis, article 6 of which provides that the tribunal had the power

“… to try and punish who, acting in the interest of the European  Axis Countries, whether as individuals or as members of organisation, committed any of the following crimes:


  1. War crimes: namely, violations of the laws and customs of war. Such violations shall include, but not be limited to, murder, illtreatment or deportation or slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or of persons of the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;


  1. Crimes against humanity;  namely murder, extermination, enslavement, deportation or other inhuman 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”.


As a result, the Nuremberg Tribunal on charges of crimes against humanity pronounced convictions.  Nonetheless the concept of crimes against humanity remained vague, often overlapping with that of war crimes.  The former was used as an accessory crime and almost exclusively to protect inhabitants of a foreign country from the authorities of the occupying power.  The tribunal interpreted article 6(c) in such a way that these crimes fall under the definition of crimes against humanity only when they are committed in execution of, or in connection, with a crime against peace or a war crime. 35 This does not mean that any crime committed before 1939 could not come under the category of crimes against humanity but rather that link (casual nexus) had to be found between one of the acts enumerated in article 6(c) and the war.  Thus, the tribunal considered not only the nationality of the victims and the country where the crimes were perpetrated, but also the connection with crimes against peace or traditional war crimes, to be essential element.


Control Council Law No. 10

Control Council Law No. 10 (CCL) was enacted on 10 December 1945 by the acting legislative body for all Germany (the Allied Control Council for Germany) consisting of the commanders of the four zones.36 The law was created for the punishment of persons guilty of war crimes, crimes against humanity, crimes against peace.  Each zone commander was responsible for its

implementation.  Although the London charter was made an integral part of the CCL, the definition of crimes against humanity are defined in the following terms:

“Atrocities  and offences, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape or other inhumane acts committed against any civilian population or persecutions on political, racial or religious groups, whether or not in violation of the domestic laws of the country were perpetrated”.


The differences from article 6(c) of the London charter are noticeable:

  1. The expression “atrocities and offences, including but not limited to”, under the CCL the list of atrocities and offences is inclusive rather than exclusive as it was under article 6(c);


  1. The addition to the list of offences and atrocities of “imprisonment”, “torture” and “rape”;37 the removal of the necessary connection

between the specific crimes listed in Article II (c) and crimes against peace and war crimes; and (3) the CCL does not include the words “before or during the war”.


Accordingly, in interpreting the CCL, the tribunal were nor restricted to the narrow interpretation which evolved from he jurisprudence of the Nuremberg proceedings.  For example, in the Einsatzgruppen case the tribunal specifically declared that it was no longer limited by the nexus requirement with, or link between, crimes against peace and war crimes, neither was it restricted by the nationality of the victim or of the accused, nor for the location where the crimes were committed. 38

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