The Origins of Crimes Against Humanity: From Nuremberg to Rome

Sümeyra TEKİN

Although crimes against humanity is as old as the history of humanity, it was not until the adoption of the Nuremberg Charter of 1945 that the acts considered as a crime against humanity were formally included in the category of international crimes and were defined in order to enable prosecutions and convictions. The world has witnessed bloody attacks directed not only to armed forces of the parties of armed conflicts, but also civilians particularly during World Wars I and II. Despite the fact that the Second World War broke out shortly afterwards of the First World War considered as “the war to end all wars”, international community promised: ‘never again’, and has taken action to prosecute and try the perpetrators of international crimes.

In this study, the pre- Nuremberg foundations of definitions of crimes against humanity, the Charters of the Nuremberg and Tokyo International Military Tribunal, the Statutes of the International Criminal Tribunal for the former Yugoslavia, Rwanda and Rome setting a ground for the establishment of tribunals to prosecute the perpetrators of international crimes, and the work of International Law Commission will be examined to reveal the evolution of crimes against humanity in international law.

Crimes Against Humanity, International Crimes, Rome Statute, International Law Commission.

İnsanlığa karşı suçların işlenmesi neredeyse insanlık tarihi kadar eskiye dayansa da, bu kategoriye giren eylemlerin uluslararası suçlar arasına dahil edilmesi Nürnberg Statüsü’ne kadar mümkün olmamıştır. İnsanlık, bilhassa Birinci ve İkinci Dünya Savaşları boyunca kan donduran vahşetlere, insan hakları ve insancıl hukuk ihlallerine şahitlik etmiştir. “Bütün savaşları bitirecek olan savaş” olarak görülen Birinci Dünya Savaşı’ndan kısa bir süre sonra daha büyük ölçekli bir savaşın meydana gelmesi bu iyimser kanının gerçeklikle bağdaşır bir yanının olmadığının en göze çarpan göstergelerinden biri olarak karşımızda dursa da, uluslararası toplum “Bir Daha Asla” sloganıyla, suç işleyenlerin yargılanması amacıyla harekete geçmiştir.

Bu çalışmada, insanlığa karşı suçların tanımlandığı ilk uluslararası metinler, bu suç kategorisine giren eylemleri gerçekleştirenlerin yargılanması maksadıyla mahkemeler kurulmasına zemin hazırlayan Nürnberg, Tokyo, Eski Yugoslavya, Ruanda ve Roma Statüleri ile Uluslararası Hukuk Komisyonu’nun çalışmaları incelenerek insanlığa karşı suçların uluslararası hukuktaki gelişim serüveni ortaya konulmaya çalışılacaktır.

İnsanlığa Karşı Suçlar, Uluslararası Suçlar, Roma Statüsü, Uluslararası Hukuk Komisyonu.

INTRODUCTION

The world has witnessed horrific human rights and humanitarian law violations, particularly during World Wars I and II. Although it was thought that the First World War was “the war to end all wars”,¹ another war of even greater proportions broke out shortly afterwards. Therefore, the international community promised: ‘never again’.The maintenance of global peace and security has been the principal aim of the world community after World Wars. In this regard, In this regard, alongside international organisations dedicated to maintain international peace and security, such as the United Nations (UN)² and the World Peace Council,³ and international instruments adopted to prevent and punish the commission of serious crimes like the1948 Convention for the Prevention and Punishment of the Crime of Genocide,⁴ international tribunals have been set up to bring persons responsible for the atrocities to justice to account for the commission of such crimes.

The first attempt to prosecute the perpetrators of international crimes has been the establishment of the Nuremberg International Military Tribunal (Nuremberg IMT)⁵ and the International Military Tribunal for the Far East (Tokyo IMT) both invested with power to try and punish war criminals responsible for the commission of crimes against peace, war crimes and crimes against humanity.⁶These tribunals were criticised to apply retroactive law as what constituted a crime against humanity or a crime against peace was unknown at the time of the commission of many of the crimes until the adoption of the Charter of the International Military Tribunal where these concepts were defined in a technical sense for the first time. However, a link between the war (World War II) and crimes against humanity was required by both of the IMT Charters. Following the recognition of ‘crimes against humanity’ as a category of international crime, the International Law Commission (ILC) adopted three draft codes in 1954, 1991 and 1996, which made significant contributions to the evolution of the definition of crimes against humanity. These developments include the elimination of a connection with an armed conflict, the introduction of the requirement of the commission of the crime in a systematic manner or on a large scale, and the expansion of the list of acts constituting crimes against humanity.

Nevertheless, “the hope of ‘never again’ became the reality of again and again”.⁷ In the 1990s, the occurrence of inter-ethnic Yugoslav wars where thousands of civilians were killed resulted in the breakup of Socialist Federal Republic of Yugoslavia and the emergence of lots of people whose rights were violated.⁸ In order to prosecute war crimes that took place during the Yugoslav wars which fought from 1991 to 1999 and to try their perpetrators, the International Criminal Tribunal for the former Yugoslavia (ICTY) was created by the UN in 1993. In 1994, it was Rwanda struggling with human rights violations, and therefore, the UN Security Council (UNSC) took action this time for Rwanda pursuant to Chapter VII of the UN Charter and set up the International Criminal Tribunal for Rwanda (ICTR). Following the establishment of the two ad hoc tribunals, the UN created the Special Panels for East Timor and assisted the creation of the Extraordinary Chambers in⁹ the Courts of Cambodia¹⁰ and the Special Court for Sierra Leone (SCSL)¹¹ upon the request of the Governments of Cambodia and Sierra Leone.