AN APPRAISAL OF THE DEVELOPMENT OF LEGAL FOUNDATION ON THE CONCEPT OF CRIMES AGAINST HUMANITY IN INTERNATIONAL LAW

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AN APPRAISAL OF THE DEVELOPMENT OF LEGAL FOUNDATION ON THE CONCEPT OF CRIMES AGAINST HUMANITY IN INTERNATIONAL LAW

ABSTRACT

This dissertation entitled “An Appraisal of the Development of Legal Foundation on the Concept of Crimes against Humanity in International Law” aimed at examining the various constitutive legal instruments on the field of crimes against humanity in international law visàvis the obligation of states to take practical measures to endure respect for the performance of such obligations under the various constitutive legal instruments. However, the justification for this research is that despite the fact that the term “crimes against humanity” has acquired enormous resonance in the legal and moral imaginations of the postWorld War II which suggested that crimes against humanity are offences that aggrieved not only the victims and their own communities, but all human beings regardless of the community because such violate the very essence of the existence of humanity. Yet while the law limped lamely, the crime against humanity flourishes as if there is no law in existence, particularly of recent where there is an increase in violence at both local and international levels. For example, according to some estimates, nearly 170 million civilians have been subjected to genocide, war crimes and Crimes Against Humanity in the 21st century. In view of these events therefore the objective of this research is to identify the factors responsible for the prevalence of such crimes and to proffer solutions to the lapses identified (if any). In conclusion, it is recommended (among others) that there is the need for a specific international treaty on crimes against humanity which will provide a comprehensive definition of crimes against humanity; and by so doing it will harmonized constitutive elements of each of the crimes against humanity and promote greater certainty and uniformity in the development of the jurisprudence of the law of crimes against humanity. The sources of information relied upon here are relevant text materials, international instruments, domestic instruments, judicial authorities and internet materials

TABLE OF CONTENTS

Table of Statutes

Table of Cases

Abstract

Table of Contents ix

CHAPTER ONE: GENERAL INTRODUCTION

1.1 The Background of the Study

1.2 Statement of Problem

1.3 Literature Review

1.4 The Scope of the Study

1.5 Objectives of the Study

1.6 Significance of the Study

1.7 Research Methodology

1.8 The Organizational Layout

CHAPTER TWO: THE DEVELOPMENT OF THE CONCEPT AND LAW OF

CRIMES AGAINST HUMANITY

2.1 Introduction

2.2 Historical Development of the Concept of Crimes Against Humanity

2.3 Overview of the Evolution of the Concept of Crime Against Humanity

2.4 The Influence of Nuremberg Conception of Crimes against Humanity

On the Development of International Criminal Law

2.5 Evolutionary Development of the Distinctive Elements of the Notions of Crime against Humanity and Genocide: The Jurisprudence of ICTY and ICTR

CHAPTER THREE: ANALYSIS OF LEGAL FRAMEWORK ON THE

CONSTITUTIVE ELEMENTS OF CRIMES AGAINST HUMANITY

3.1 Introduction

3.2 Analysis of the Constitutive Elements of Crimes against Humanity

3.3 Acts Constituting Torture, and Rape and Sexual Abuse as Torture

3.4 Differences between the Rome Statute, ICTY and ICTR statutes on

Crimes against Humanity, Genocide and War Crimes

3.5 Differences in the Contextual Requirement of Crime against Humanity

(CAH)

CHAPTER FOUR: CHALLENGES IN THE PROSECUTION OF CRIME

AGAINST HUMANITY IN INTERNATIONAL LAW

4.1 Introduction

4.2 Challenges Related to International Jurisdiction

4.3 High Burden of Proof

4.4 Challenges of Legitimacy for the ICC

4.5 Intimidation and Withdrawal of Witnesses

4.6 The Capacity to Entertain many cases at a time

4.7 The Challenges of Providing Adequate Funding for the Trials

4.8 Lack of Uniform Legal Regime

4.9 The USA and the ICC

CHAPTER FIVE: SUMMARY AND CONCLUSION

5.1 Summary

5.2 Findings

5.3 Recommendations

5.4 Conclusion

Bibliography

CHAPTER ONE

GENERAL INTRODUCTION

1.1 Background of the Study

The first forty years after the Nuremberg Trial was a period of slow progress in developing international criminal law. There is no doubt that international criminal law has developed as a distinct field of study in recent years. Indeed if international criminal law is defined as the prosecution of individuals for ‗international crimes‘ such as war crimes or Crimes Against Humanity then there was no such law for most of the twentieth century. On the eve of the twentieth century attempts to regulate warfare in The Hague Conference of 1899, and again in 1907, were constrained by notions of State sovereignty.

As the Nuremberg judges pointed out the following in 1946, ‗The Hague Convention nowhere designates such practices (methods of waging war) as criminal, nor is any sentence prescribed, nor any mention made of a court to try and punish offenders.‘

The Nuremberg trials established that all of humanity would be guarded by an international legal shield and that even a Head of State would be held criminally responsible and punished for aggression and Crimes Against Humanity. The right of humanitarian intervention to put a stop to Crimes Against Humanity even by a sovereign against his own citizens-gradually emerged from the Nuremberg principles affirmed by the United Nations.

The awareness of the inadequacy of the law and the willingness to do something to enforce such new principles was slow in coming. The failure of the international community to develop binding norms of international criminal law was glaringly illustrated by the slow pace of various UN committees charged in 1946 with drafting both a code of crimes against the peace and security of mankind and the statutes for an international criminal court.

While the law limped lamely along, international crimes flourished. The horrors of the twentieth century are many. Acts of mass violence have taken place in so many countries and on so many occasions it is hard to comprehend. According to some estimates, nearly 170 million civilians have been subjected to genocide, war crimes and Crimes Against Humanity during the past century. The World Wars led the world community to pledge that ―never again‖ would anything similar occur. But the shocking acts of the Nazis were not isolated incidents, which we have since consigned to history. Hundreds of thousands and in some cases millions of people have been murdered in, among others, Russia, Cambodia, Vietnam, Sierra Leone, Chile, the Philippines, the Congo, Bangladesh, Uganda, Iraq, Indonesia, East Timor, El Salvador, Burundi, Argentina, Somalia, Chad, Yugoslavia and Rwanda in the second half of the past century. But what is possibly even sadder is that the International Community have witnessed these massacres passively without been proactive. The result is that in almost every case in history, the person responsible for carrying out these atrocities is not punished despite the existence of the constitutive international instruments and the judicial institutions (such as International Criminal Court) and ad hoc tribunals such as the International Tribunal for Former Yugoslavia and International Tribunal for Rwanda.

Not until the world was shocked by the ethnic cleansing in the former Yugoslavia and the genocide in Rwanda could the UN, no longer paralyzed by the Cold War, take action. Nations that had been unwilling to intervene to block the carnage now recognized that some action was essential. For the first time since Nuremberg, a new international criminal tribunal was quickly put in place on an ad hoc basis by the UN Security Council. Under the impetus of shocked public demand, it became possible for the UN Secretariat to draft the statutes for the International Criminal Tribunal for Yugoslavia in about 8 weeks the same time it had taken to agree upon the Charter to the International Military Tribunal at Nuremberg. The ICTY began functioning in 1994. It led to the speedy creation of a similar ad hoc tribunal to deal with genocide and Crimes Against Humanity in Rwanda.

Up until the present the international community has been very reluctant to enforce international criminal law. It has only been done a couple of times in history, without doubt due to the specific circumstances and the political climate at the time. The idea of establishing a permanent international criminal court is not new though. Attempts in that direction were taken as nearly as the end of World War I, but the international community never reached agreement on the matter.

The ICC‘s predecessors are primarily the Nuremberg and the Tokyo Tribunals created by the victorious Allies after World War II. These tribunals have been accused of being unfair and merely institutions for ―victor‘s justice,‖ but nevertheless they did lay the groundwork for modern international criminal law. They were the first tribunals where violators of international law were held responsible for their crimes. They also recognized individual accountability and rejected historically used defenses based on state sovereignty. These principles of international law recognized in the Nuremberg Charter and Judgments were later affirmed in a resolution by the UN General Assembly.

The International Law Commission (ILC), a body of distinguished legal experts acting at the request of the General Assembly, completed its draft statute for a permanent international criminal court in 1994. In 1996, the ILC finally completed its draft code of crimes against the peace and security of mankind. This new momentum reflected widespread agreement that an international criminal court, with fair trial for the accused, should be created as an essential component of a just world order under law.

After years of work and struggle, the promise of an International Criminal Court with jurisdiction to try genocide, war crimes and Crimes Against Humanity has become a reality. In 1998, the statute of the Court was approved in Rome and it entered into force on the first of July of 2002, after achieving 60 ratifications . Now, only a few years after ratifications/accessions has risen from 60 to 120.5 The Court holds a promise of putting an end to the impunity that reigns today for human rights violators and bringing us a more just and more humane world.

No record exists of how the term ―crimes against humanity‖ came to be chosen by the framers of the Nuremberg Charter. The term was selected by Justice Robert Jackson of the US Supreme Court, Chief Prosecutor at Nuremberg and the Head of the American delegation to the London Conference of US (the three constituting those that frame the Charter).

In 1915, the French, British, and Russian governments had denounced Turkey‘s Armenian genocide as ‗crimes against civilization and humanity‘, and the same phrase appeared in a 1919 proposal to conduct trials of the Turkish perpetrators. But the United States objected at that time that the so-called ―laws of humanity‖ had no specific content, and the proposal to try the Turks was scuttled. The phrase ―crimes against humanity‖ has acquired enormous resonance in the legal and moral imaginations of the post-World War II. It suggests, in at least two distinct ways, the enormity of these offences. First, the phrase ―crimes against humanity‖ suggests offences that aggrieve not only the victims and their own communities, but all human beings, regardless of their community. Second, the phrase suggests that these offences cut deep, violating the core humanity that we all share and that distinguishes us from other natural being6.

The term ―crimes against humanity first appeared in positive international law in Article 6(c) of the Charter of the International Military Tribunal (IMT), in 1946, which defined crimes against humanity as a constellation of prohibited acts committed against a civilian population. The Charter further defined crimes against humanity as ―murder,

6Richard Vemon (2005), What is a Crime Against Humanity?, 10 Journal of Political Philosophy, pp.231,

242-45

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. The category of crimes against humanity was added to the Charter because it was feared that under the traditional formulation of war crimes, many of the defining acts of the Nazis would go unpunished? The crimes against humanity count in the Nuremberg.

The crimes against humanity charge confirmed that citizen‘s are under the protection of international law even when they are victimized by their compatriots .

Furthermore, the criminality of such acts ―whether or not in violation of the domestic law of the country where perpetrated established the supremacy of international law over municipal law in this way, the prohibition of crimes against humanity at Nuremberg had the potential to irretrievably pierce the trope of sovereignty

―a rule of international law which provides that no state shall intervene in the territorial and personal sphere of validity of another national legal order10.

The definition of crimes against humanity in the Charter of the International Military Tribunal contained a curious limiting principle the Nuremberg Tribunal could assert jurisdiction only over those crimes against humanity committed ‗before or during the war‘ and ‗in execution of or in connection with any crime within the jurisdiction of the Tribunal‖, i.e., war crimes or crimes against the peace . This formulation became known as the ―war nexus‖, and it is apparent that the Charter‘s drafters and the Nuremberg Tribunal itself considered the war nexus necessary to justify the extension of international jurisdiction into what would otherwise be acts within the domestic

jurisdiction of a state.

Against the above backdrop, therefore, a statement of problem is hereby

established in relation to the wider nature of the meaning of the phrase ―Crimes against humanity‖ and the extents of their compatibility with various national constitution (with particular reference to Nigeria) having regard to the fact that even the definition offered by Art. 7 of the Rome Statute of the International Criminal Court (ICC Statute) contains loose concepts such as a ‗widespread or systematic attack directed against any civilian population‘ and a ‗State or organizational policy to commit such attack‘. The meaning of these terms is far from clear in international law. Whilst the ad hoc Tribunals created by the Security Council (the CTY and the ICTR) have recently pronounced upon the crime‘s meaning in the context of their own statutory definitions and factual situations, there is no authoritative case law of the ICC assigning the offence a clear technical meaning, and the various statutes defining it the Nuremberg Charter, the Tokyo Charter, Allied Control Council Law No. 10, the ICTY Statute, ICTR Statute, the ICC Statute, the Statutes of the hybrid Tribunals of Sierra Leone, East Timor, Kosov and Cambodia-along with the international law Commission, all define it differently. Hence, the term‘s ‗correct meaning‘ under international law remains elusive. This has prompted many wide and varied claims as to what amounts to a crime against humanity. For example, Kate

Reynolds in respect of Australia‘s policy of mandatory detention of asylum seekers stated that ‗Our government is engaged in a continuing crime against humanity. It is indeed, this state of confusing levels of the law on one hand and its different interpretation by the tribunals and court on the other hand that generates the writers interest in this field of research with the objective of identifying the reasons for such differences in international law and also to proffer solution to the existing practice by suggesting among others that the domestication of the Rome Statute within the state national legislation will be an essential way forward as it will serve as a customary rule of uniform understanding.

1.2 Statement of the Problem

Crimes against humanity were conceived to fill the gap in international criminal law, the formation of the idea arose from the need to justify the prosecution of atrocities and end the horrific international offences in order to protect the largest number of victims. Crimes against humanity comprised of two categories of specific Punishable behaviour, the first, such as murder, extermination, enslavement, and inhumane acts, correspond generally to crimes under virtually all domestic criminal law systems, and cover such offences as killing, assault, rape, and kidnapping or forcible confinement. The second, persecutions on discriminatory grounds, run afoul of antidiscrimination laws in many countries but fall short of criminal behaviour. What elevates these acts to crimes against humanity, as held by the courts, is their commission as part of a widespread or systematic Attack on a civilian population, although this is not stated explicitly in the Nuremberg Tribunals definitions; 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 grounds whether or not in violation of the domestic laws of the country where perpetrated.

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