The Western Powers and debates in international law and politics
As news of the Holocaust and Nazi Germany’s other horrendous crimes emerged, it became clear that existing concepts of the law of war and of war of aggression were inadequate to capture the nature of these events. Winston Churchill spoke of a "crime without a name", and Raphael Lemkin coined the term "genocide" to refer to the planned extermination of entire national, ethnic and religious groups. When the Allies began to debate the establishment of an international tribunal to address the crimes committed by the Axis powers, these ideas played a role in their early deliberations, even though the priority remained the punishment of "war criminals."
The definition of what was later called "crimes against humanity" could also draw upon existing concepts in international law. Already in 1915, France, Great Britain and Russia had formally warned the Turkish government that they would hold officials responsible who had participated in “crimes contre l’humanité et la civilization” against the Armenian population of the Ottoman empire, who were Turkish nationals.
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Developments in the UN International Law Commission
Fifteenth session of the International Law Commission, Palais des Nations, Geneva, Switzerland, 27 May 1963, © International Law Commission
Efforts immediately got underway to remedy the failures of the International Military Tribunal. A few days after the end of the Trial of the Major War Criminals at Nuremberg, jurists from 29 countries gathered in Paris to issue a definition of crimes against humanity independent of a wartime context. The French Mouvement national judiciaire hosted the congress, and its president René Cassin indirectly criticized the Nuremberg verdicts in the following words: "Anyone who exterminates or persecutes an individual or a group on the basis of their nationality, race, or their opinions has committed a crime against humanity and will be punished accordingly." However, the newly founded International Law Commission (ILC) initially devoted surprisingly little attention to these issues.
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Four years had passed since the Nuremberg Trials. However, the ILC only recapitulated the IMT’s conceptualization of the Nuremberg Principles and failed to take advantage of the opportunity to solidify their theoretical foundation in light of new developments in international law, the UN charter, the Genocide Convention and its own work. Although many states were satisfied with this outcome, many jurists and scholars were not.
Of the four powers that had presided over the trials at Nuremberg, only France was critical of the continued inclusion of wartime conditions in the definitions of crimes against humanity: "…there is no justification for preserving this link. Prosecuting crimes against humanity is just as important during peacetime as during wartime. In both cases, it is a response to the same demands of universal human conscience."
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After completing its work on the Nuremberg Principles, the ILC was assigned the task of developing a proposal for an international criminal code and an international criminal court to preside over the prosecution of these crimes. […] However, the first draft of the international criminal code that was issued by the Commission in 1954 finally decoupled crimes against humanity from wartime conditions. […] This draft, for the first time, defined crimes against humanity as a separate and distinct international crime, with a compilation of "inhuman acts" and motives. In a reminder of the crimes committed by the SA and other unofficial organizations of Nazi Germany, it emphasized that even private individuals acting on behalf of the state could be charged as perpetrators.
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In 1996, the ILC finally presented its ultimate draft of the international penal code […].
The Celestial Sphere in the Court d'Honneur in Ariana Park, in the background the Assembly Hall of the United Nations Office at Geneva, WikiCommons
Article 18: Crimes against humanity
A crime against humanity means any of the following acts, when committed in a systematic manner or on a large scale and instigated or directed by a Government or by any organization or group:
(a) Murder;
(b) Extermination;
(c) Torture;
(d) Enslavement;
(e) Persecution on political, racial, religious or ethnic grounds;
(f) Institutionalized discrimination on racial, ethnic or religious grounds involving the violation of fundamental human rights and freedoms and resulting in seriously disadvantaging a part of the population;
(g) Arbitrary deportation or forcible transfer of population;
(h) Arbitrary imprisonment;
(i) Forced disappearance of persons;
(j) Rape, enforced prostitution and other forms of sexual abuse;
(k) Other inhumane acts which severely damage physical or mental integrity, health or human dignity, such as mutilation and severe body harm.
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The Rome Statute of the International Criminal Court, which was ratified in 1998, is closely aligned with this legal precedent. Instead of “systematic manner” and "large scale", the Rome Statute refers to "widespread or systematic" attack, a formulation that had already attained common usage in a number of other similar texts. Furthermore, the Rome Statute stipulated that this "widespread or systematic attack" had to be committed "against the civilian population", a phrasing that again echoes the Nuremberg terminology. However, the Rome Statute now clearly assumes that the acts in question do not need to be associated with armed conflict.
