VII Semester

International Humanitarian Law

Project Work

INTERNATIONAL HUMANITARIAN LAW & INTERNATIONAL

CRIMINAL LAW: HOW IT ALL BEGAN?

Submitted By:

Roll No.: 2019 B.A.LL.B. 35

Submitted To: Prof. Ayush Jaiswal

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 ACKNOWLEDGEMENT

I take immense pleasure in presenting this piece of project work for it provided me an
opportunity not only to gain in-depth knowledge about the concerned topic but also helped
me in developing research skills.

I would like to express my gratitude to Prof. Ayush Jaiswal, under whose guidance I have
been able to present this project, on the topic, “International Humanitarian Law &
International Criminal Law: How it all began?”

Lastly, I would like to thank my family and friends for giving constant aid and succour
directly and indirectly in preparing the project in trying times like these.

Thank you.

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 TABLE OF CONTENTS

Acknowledgement......................................................................................................................2

Statement of Problem.................................................................................................................4

Research Questions....................................................................................................................4

Hypothesis..................................................................................................................................4

Research Objectives...................................................................................................................4

Introduction................................................................................................................................5

Nuremberg..................................................................................................................................6

ICTY & ICTR............................................................................................................................9

Rome........................................................................................................................................11

Elements of Crimes against Humanity under Rome Statute................................................12

International Humanitarian Law..............................................................................................15

Conclusion................................................................................................................................16

Bibliography.............................................................................................................................17

Review of Literature............................................................................................................17

Statutes.................................................................................................................................18

Other Resources...................................................................................................................18

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 STATEMENT OF PROBLEM

Numerous national and global legal frameworks guarantee the safety of people today. Human
rights issues concerning refugees are usually addressed under Refugee Law, whereas those of
war captives and war criminals are dealt with under International Humanitarian Law and
International Criminal Law, respectively. The focus of this work is on the development of
International Humanitarian Law and International Criminal Law following World War II.

RESEARCH QUESTIONS

 What led to the birth of statutes under International Criminal Law?

 How was the definition for “crimes against humanity” evolved in the international
criminal law system?
 How did Crimes against Humanity affect International Humanitarian Law?

HYPOTHESIS

International Criminal Law and International Humanitarian Law are not related.

RESEARCH OBJECTIVES

 To understand what historical developments led to the formation of ICC after world
war 2.
 To learn about the jurisprudence of the development of the definition “crimes against
humanity” and the statutes and tribunals which make it punishable.
 To learn about the impact the codification of crimes against humanity has had on the
Humanitarian Law through the past decades.

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 INTRODUCTION

The vastness and heinousness of atrocities committed during the two world wars, as well as
the emerging international consensus that it was necessary to commit certain transnational
organized crime to adjudication within international law, all contributed to the development
of international criminal law. In a declaration issued in 1919, the governments of the United
Kingdom, France, and Russia denounced the Turkish government for the purported slaughter
of the Armenian people, marking the first time the phrase "crimes against humanity" was
used on a global scale. Crimes against humanity and civilization for which "all the members
of the Turkish Government would be held guilty together with its agents participating in the
massacres," as stated in the Armenian Memorandum presented by the Greek delegation to the
Commission of Fifteen on March 14, 1919.

It was at the Nuremberg trials 1 where the term was first widely used. There was a need to
define core offenses that reflected behavior that could never be accepted in any political fight
at all, and to codify norms to govern the conduct of people and groups in armed and unarmed
confrontations. The acts that make up crimes against humanity—such as rape, enslavement,
torture, and murder—are all illegal on their own, but they become human rights violations
when perpetrated on a wide scale and directed at civilian populations, as stated above.

The Martens Clause incorporated the idea of "rules of humanity" into customary international
law. "the residents and the rebel factions remain under the security and the rule of the rules of
the law of major countries, as they result from of the usages founded among free peoples,
from the rules of human civilisation, and the dictates of the minds of the public," the Martens
Clause states, referring to situations not encased by the Hague convention 2. Although the
prohibition against such crimes had been recognized far earlier, it was only with the
Nuremberg Charter and Judgment that it was officially acknowledged in solid International
Law.

1
Research “Handbook on International Criminal Law, Bartram S. Brown, ed., Edgar Elgar Publishing, 2011;
Egon Schwelb, Crimes Against Humanity, 23 Brit. Y.B. Int’l L. 178, 181” (1946).
2
“France and Ors. v. Göring (Hermann) and Ors. Judgment and Sentence”, (1946) 41 AJIL 172.
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 NUREMBERG

On August 8, 1945, the United States, the United Kingdom, France, and the Soviet Union
signed the "Agreement for the Prosecution and Punishment of Major War Criminals of the
European Axis" in London. This agreement is also known as the "London Agreement."
Attached to it was the "Charter of the International Military Tribunal," which established the
Tribunal for the conduct of the Nuremberg trials and laid out the law for what became known
as the "Nuremberg Charter." With this provision, crimes against humanity finally have
consequences. However, "additional inhumane acts perpetrated against any civilian
population" were included in the broad definition of the offense. There was a blurring of the
lines between war crimes and crimes against humanity, which are both punishable by
international law but fall under different national jurisdictions.

A number of offenses are listed in Article 6 of the Charter 3 as crimes against peace: "(a)
Crimes against peace: planning, preparation, initiation, or fighting a war of a conflict of
aggression or a war in breach of international treaties, agreements, or assurances, or
involvement in a coherent framework or conspiracy for the accomplishment of any of the
aforementioned;

War crimes include, but are not limited to, the following: murder, ill-treatment, or deportation
to slave labor or for any other purpose of the civilian population of or in occupied territory;
murder or ill-treatment of prisoners of war; murder of persons on 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.

Murder, extermination, enslavement, deportation, and other horrific offenses done against
any civilian population, prior to or during war, or repressions on political, racial, or religious
grounds, in execution of, or in connection with, any crime within the the Tribunal's
jurisdiction whether or not in infraction of the household law of the country where
perpetrated."

3
Retroactive Law and Proactive Justice: Debating Crimes against Humanity in Germany, 1945-1950; Devin O.
Pendas.
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The Nuremberg Charter4, from which we take our cues here, comprised three main
components. We start with Section 6, which specified the types of wrongdoing that would
result in the court's sanction. As stated in Section 7; conversely, the government's actions are
no longer cloaked in the appearance of legitimacy. The ideas of Individual Criminal
Responsibility were first articulated in International Criminal Law in Section 8.Some may be
wrong in thinking that the Nuremberg Trials were the only watershed moment in the
development of international law. It marked the first serious attempt to implement the law of
the land in a wide swath of society, including limited application to crimes committed within
the country other than war. According to the Moscow Declaration from 1943, all Nazi war
criminals who committed crimes in a specific region shall be tried there. Because of this idea
of territorial integrity, thousands of Nazi war criminals were tried in courts across Western
and Eastern Europe. Following the war, about 20,000 people were found guilty of Nazi-
related crimes by German tribunals; 6,495 by courts in the Western occupied territories and
the Federal Republic of Germany; and at least 12,776 by courts in Soviet occupied Germany.
The majority of these rulings were made in the years 1945–1949. 4,419 in the West and 8,059
in the East were found guilty. These earlier German trials addressed the whole scope of Nazi
crimes against persons and property, in contrast to the later West German trials, which
focused solely on homicide due to the statute of limitations. The Allies saw a gap in the body
of positive international law, which is why crimes against humanity were included in the IMT
Charter. Civilians were afforded some protection during wartime by the Hague and Geneva
Conventions, but only if they were citizens of a state that was either at war with or occupied
by the aggressor. These tools did not reveal atrocities committed against State citizens or ally
populations. The inclusion of humanity's crimes in the Charter was, thus, a radical step that
challenged long-standing norms stating non-interference of "civilized states" with each other,
perhaps paving the road to the phenomenon of interventionism. The idea of "nullum crimen
sine lege" has been called into question due to the lack of a legal precedent for crimes against
humanity and Individual Criminal Responsibility. It appears that the Allies reached a
consensus that, while the Charter's clause on crimes against humanity represented a
significant advance in international law, it was grounded in broad principles of international
law and did not violate the norm of legality. The introduction of the against humanity
provision has been described as a "jurisdictional extension" of the restriction against war
crimes by prominent scholars like M. Cherif Bassiouni. Since "behavior which constitutes

4
Hague Convention (IV), with Respect to the Laws and Customs of War on Land, 29 July 1899.

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serious war crimes when victims and violations are not of the same national cannot be
declared lawful solely because the nationality of plaintiffs and violators is the same," he
reasoned that this "extension" was reasonable.

The legal underpinnings of the newly constituted crimes against humanity were seldom
touched upon during the Nuremberg proceedings. The legislation regarding crimes against
humanity was only addressed in one paragraph of the Judgment. The IMT centered its
analysis on the phrase "in execution of or in connection with any offence within the
jurisdiction of the Tribunal" found in the Charter's definition of crimes against humanity.
Since "no universal determination that the acts before 1939 constituted Crimes against
humanity within the sense of the Charter" was reached, the Tribunal ruled that "the acts
before 1939 were not Crimes against humanity." Crimes against humanity were determined
to have been committed by the Tribunal despite not meeting the threshold for war crimes
since they "were all perpetrated in execution of, or in conjunction with, the aggressive
conflict." The Tribunal was able to avoid making a distinction between these two categories
of crime later in the Opinion because to this wide finding. Consequently, it is challenging to
draw many conclusions about the nature of crimes against humanity from the Nuremberg
Trials. To be sure, the IMT Charter was the first attempt to define crimes against humanity,
and it has served as a precedent for later formulations of these crimes.

The second instrument of international law to include a clause concerning "crimes against
humanity" was Control Council Law No. 10 (hence referred to as CCL No. 10). To ensure
that "war criminals and other similar offenders, other than those dealt with by the
International Military Tribunal," were all held accountable in the occupied zones, this law
was passed in 1945. Legal systems in the occupied territories of the United States, France,
and the Soviet Union all used CCL No. 10. Even in the French, British, and Soviet sectors,
German courts followed CCL No. 10. The term "crimes against humanity" is defined
somewhat differently in CCL No. 10 than it is in the IMT Charter. One, it expands the list of
inhumane treatment to include imprisonment, torture, and rape. The second clarification
comes from CCL No. 10, which states that "the mentioned actions are exemplary and not
exhaustive of the inhumane acts that constitute as crimes against humanity." Last but not
least, CCL No. 10 eliminates the necessity that the illegal conduct be related to that of war.

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 ICTY & ICTR

There was a court of law established by the United Nations to investigate and prosecute war
crimes committed during the Balkan conflicts of the 1990s called the International Criminal
Tribunal for the former Yugoslavia (ICTY). During its mandate from 1993 to 2017, it gave
victims a platform to share their accounts of atrocities and proved that those accused of
having the strongest responsibility for crimes committed during armed conflicts could be
brought to justice, permanently changing the perspective of international humanitarian law.

To "prosecute persons accountable for genocide and other substantial breaches of

international humanitarian law engaged in the territory of Rwanda and neighboring States,
between 1 January 1994 and 31 December 1994," the United Nations Security Council
established the International Criminal Tribunal for Rwanda (ICTR). Since its establishment in
1995, the Tribunal has brought charges against 93 people for serious violations of
international humanitarian law committed in Rwanda in 1994. People in high positions of
government and military, as well as in business, religion, the media, and the militia, have all
been found guilty.

Both the ICTY legislation and the ICTR statute represent significant new codifications of the
concept of human rights crimes. Incorporating several significant revisions to the law since
the IMT Charter, the ICTY definition of Crimes against Humanity is progressive but not as
far-reaching as the 1996 ILC Draft Code. As a first step, the ICTY Statute explicitly lists rape
as a crime that can be prosecuted by the tribunal. Second, while the concept does require
some connection to armed conflict, it is not necessary that it be international armed conflict.
Finally, hostile intent is only required for harassment, rather than other cruel behaviors, as the
ICTY interpretation makes clear.

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There are some discrepancies between the ICTY definition and the ICTR Statute. The ICTR
Statute does not change the enumerated offenses, but it does require that they be "committed
as part of a broad or systematic onslaught against any innocent civilians on national, political,
ethnic, racial, or religious grounds." According to this clause, persecution and other forms of
inhumanity are not considered crimes against humanity unless they are motivated by some
form of discrimination. The definition takes a significant step backwards because of the need
for discriminatory motivation or discriminatory justification. The ICTR concept is more
developed than the ICTY5 definition in one key respect, though. Because the armed conflict
is not mentioned in the ICTR definition, war crimes are no longer associated with
international law in the eyes of the international community. The inconsistencies between the
two laws are indicative of the international community's continued lack of clarity on many
aspects of international crimes.

Crimes under international law are some of the most serious and elusive to define, although
the jurisprudence of the International Criminal Tribunal for the Yugoslavia (ICTY) and the
International Criminal Tribunal for Rwanda (ICTR) have made significant contributions.
Despite this precedence, there is still a lot of room for interpretation when it comes to these
types of crimes because of the enormous uncertainty they involve, especially with regards to
their scope and severity. In light of this, the precedents established by the ICTY and the ICTR
may have limited bearing in other contexts.

ROME

On July 17, 1998, the United Nations Diplomatic Conference approved the Rome Statute
establishing the International Criminal Court. At the Conference, only seven countries out of
the 160 that participated voted against the ratification of the Statute. According to Article 7 of
the Rome Statute, the International Criminal Court has the authority to investigate and
prosecute crimes against humanity. Due to differences in the definitions provided by the
ICTR and the ICTY Statute as well as those created due to the decisions of the Nuremberg
trials and the 1907 Convention, the concept of crimes against humanity remained one of the
most controversial issues mentioned at the entrance of the Rome Conference on 15 June
1998.

5
UN Security Council, Security Council Resolution 955 (1994) [Establishment of the International Criminal
Tribunal for Rwanda], 8 November 1994, S/RES/955 (1994).
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After much debate, the following was agreed upon as the definition of human rights crimes at
the Rome Conference:

When performed as part of a large-scale or systematic attack against another civilian

population, with understanding of the attack, the following acts are considered crimes against
humanity for the purposes of this Statute (Article VII, Paragraph 1):

a) Homicide; 

b) Extermination 

b) Extermination  Abolition of Freedom;

This includes (d) population deportation or forceful relocation;

(e) Detention in prison or other severe confinement in violation of international law's most
fundamental principles;

f) Torture;

(g) Sexual assault in any form, including but not limited to rape, sexual slavery, forced
prostitution, forced pregnancy, and forced sterilization;

In connection with any act referred to in this paragraph or any offense within the jurisdiction
of the court, (h) "persecution against any organized group or social organization on political,
racial, national, ethnic, cultural, religious, gender as described in paragraph 3,"

Elements of Crimes against Humanity under Rome Statute

1. Nexus with War-

The need in some international agreements that crimes against humanity be linked to an
international or local armed conflict is the most hotly debated aspect of these atrocities. It
would be misleading to downplay the significance of this issue. Crimes against humanity
need not have been committed during the military conflict for there to be a need to
describe such crimes during the so-called "peace." Human rights abuses committed on a
vast scale by tyrants like Chile's Augusto Pinochet and the South African government
during the apartheid era may also be left out.

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 2. Against Civilian Population-

Crimes against humanity are defined in many ways across different legal systems, but
they always have one thing in common: they are always perpetrated against civilians.
However, there is no consensus on what this component actually means. For an act to
qualify as a crime against humanity, "the culprit must act with awareness that his or her
act is related to a widespread or started utilizing against a civilian population." Therefore,
the guilty mens rea for these offenses depends on how the word "civilian population" is
used. In this context, the term "civilian population" can be broken down into two subsets:
There are two requirements for this to be considered a terrorist attack: 1) the casualties
must mostly consist of civilians, and 2) the number of victims must be substantial.

War crimes include any atrocities committed against members of opposing military
forces, whether they be from opposing nations or competing factions within a single one.
The laws of war, which have been refined throughout the years, spell out in great detail
what soldiers are and are not allowed to do on the battlefield. In the context of military
operations, certain actions that would be considered crimes against humanity if
committed against civilians are legal. Massacres and mass incarceration of the enemy are
two glaring instances. Including the word "civilian" sets crimes against humanity apart
from such legal military actions.

The International Criminal Tribunal for the former Yugoslavia (ICTY) and the
International Criminal Tribunal for the former Yugoslavia (ICTR) 6 have provided the
most recent judicial interpretations of this term. The ICTY Trial Chamber in the Tadic
case found that "a wide definition of civilian population... is justified" after looking at a
variety of legal literature on the topic. Even if some people living in a civilian area may
not meet the strict definition of "civilian," the ICTR Trial Chamber ruled in Akayesu that
"the presence of such people does not strip the civilian population of its civilian
character."

3. Organizational Policy and State Actors-

6
UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998.
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The need of "State or organizational policy" in the definition of crimes against humanity is
unique to the ICC Statute as an international legal instrument. Since the Nuremberg trials,
however, scholars and legal authorities have questioned whether or not "crimes against
humanity" must include official action or policy. State activity as a required prerequisite of
"crimes against humanity" would have a tangible impact on the quality of international
criminal justice by putting non-state actors outside the reach of international justice. This is a
growing concern because, as time goes on, non-state actors are becoming increasingly
important in upholding and subverting the international legal order through the commission
of large acts of inhumanity. Systemic failures in countries like the former Yugoslavia and
Rwanda highlight the urgent need for international criminal justice bodies to expand their
purview to include non-state actors.

However, it is more debatable whether or whether the crimes were the outcome of a
"organisational policy," as required under the ICC Statute. It is not evident from the wording
of this policy provision whether it serves a legal function or is merely supplementary to the
mens rea. To commit a "crime against humanity," one must believe (in line with or support
of) the policy, if this consideration is deemed to constitute mens rea. As a result, this
requirement can serve as a deterrent to high-level offenders by effectively limiting the scope
of prosecution. As a result, ICC's influence will be severely limited.

Incorporating the "policy" aspect into the definition of "crimes against humanity" was a
compromise reached at the Rome Conference to appease the few UN member nations, like
France, that insisted such atrocities must be systemic and pervasive to be considered "crimes
against humanity." Human rights groups that aren't part of the government were not happy
with this diplomatic compromise. Adding the policy component

INTERNATIONAL HUMANITARIAN LAW

The primary goals of international humanitarian law, a body of customary and treaty-based
international positive law, are to restrict the use of excessive force in battle and to provide
protection for civilians caught in the crossfire. Serious violations of its norms amount to war
crimes, which might result in criminal prosecution at the hands of independent governments.
In the event that a state does not desire to or is unable to bring charges, international criminal
tribunals established by treaty or by a final agreement of the United Nations Security

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Council7 can try the cases. However, it does not describe the output of a single day's efforts.
Instead, it's the result of a growing realization among nations that, in light of the terrible
consequences of war and the unfathomable suffering inflicted upon humanity over the ages,
there needs to be limits to violence, and that such limits must be created by the law and the
responsible punished to deter future guilty parties from exceeding them.

The International Committee of the Red Cross has been working to aid victims of war and
conflict since its founding in Geneva in 1863. This is achieved through the organization's
global direct action, as well as through its advocacy for the growth of IHL and its promotion
of respect for this legal framework among governments and all holders of lethal force. For
land conflicts, the states came together in 1907 to create the Hague Convention No. IV and its
accompanying Regulations, which defined the laws and customs of war. However, the terms
of the 191918 Treaty of Versailles, which ended World War I, stated that Kaiser William II of
Germany, whom it publicly accused for a supreme sin against world morals and the sanctity
of treaties, and those who had carried out his instructions were personally liable for violations
of the Convention. As a result, it validated the Allies' and their associates' ability to set up
military tribunals to try those suspected of committing war crimes. As a result, the notion of
responsibility was enshrined in international law, making it possible for international
tribunals to be set up for the prosecution of serious violations of international humanitarian
law.” 9

7
8
Prosecutor v. Dusko Tadic Case Number IT-94-1, App. Ch.,238-305 (ICTY 15 July 1999).
9
The relationship between international humanitarian law and the international criminal tribunals, Hortensia D.
T. Gutierrez Posse, International Review of the Red Cross, Vol 88 No. 861 (2006).
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 CONCLUSION

The aftermath of the Holocaust that was officially sanctioned by the Nazi regime was
shocking to the entire world. There was another world war because of the Nazi regime's vast
atrocities, and it ended with two atomic bombs being dropped on Japanese cities. Many
millions more were impacted by the Holocaust and its aftermath, including the nearly 6
million killed in the genocide, the approximately 1.1 million killed by atomic bomb blasts,
and the millions more who were displaced or injured throughout the two world wars. As a
result of the losses incurred during this time period, prominent nations throughout the world
agreed to work together to prevent another catastrophe of this scale from ever happening
again. In 1945, the League of Nations, which had been formed after World War I, was
officially disbanded, and the United Nations Organisation was established in its place. In an
effort to build global peace, battle competing issues, human rights violations, etc., a number
of countries banded together to form an organization.

The term "crimes against humanity" was first fully defined in the IMT Charter. There have
been numerous international legal documents that have either codified or made reference to
the term "crimes against humanity" since then. The scope of "crimes against humanity" has
expanded dramatically from the Nuremberg Charter to the Rome Statute in response to the
needs of our evolving global community. The International Criminal Tribunal for the former
Yugoslavia and the International Criminal Tribunal for the Rwanda Genocide were both
established as ad hoc tribunals to try and prosecute war criminals. Hundreds of war criminals
and people responsible for crimes against humanity have been sentenced by these
international criminal justice tribunals.

The International Criminal Court (ICC) currently serves as the world's permanent Court of
Justice. The Rome Statute is an international law that all UN members must follow to ensure
that no country violates the human rights of its own citizens or those of any other country.

Given that both International Criminal Law and International Humanitarian Law address
violations of human rights on a global scale, it is fair to say that they complement one another
to provide adequate protection for people around the world.

BIBLIOGRAPHY

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 Review of Literature

 International Law by Malcolm N. Shaw (2008)

When it comes to teaching and learning about this rapidly growing academic discipline, there
is no substitute for Malcolm Shaw's International Law. The signature writing style gives a
lively account that piques students' interest and encourages them to learn more about the
topic, all without sacrificing depth of analysis or scholarly rigor. Students' ability to think
critically is stretched by the text's in-depth study.

 Retroactive Law and Proactive Justice: Debating Crimes against Humanity in

Germany, 1945-1950 by David O. Pendas.

Source: Central European History, Vol. 43, No. 3 (September, 2010) pp. 428-463.

Cambridge University Press produced a book by David Pendas in which he discusses the
legitimacy of the Nuremberg trials and seeks to present an impartial view of both the
proceedings and their critics. He also makes an effort to address the critiques of the
Nuremberg trials voiced by other distinguished academics, such Bassouni. In addition, he
analyzes how the concept of "Crimes Against Humanity" has changed over time.

 The Road from Rome: The Developing Law of Crimes against Humanity by Margaret
McAuliffe deGuzman

Source: Human Rights Quarterly;Vol. 22, No. 2 (May, 2000), pp. 335-403.

Margaret deGuzman, author of a book on crimes against humanity published by John

Hopkins Press, primarily discusses the evolution of criminal law from the 1907 Hague
Convention to the 2000 Rome Statute. Her discussion centers on how this concept has
developed over time, the core elements of Crimes Against Humanity as outlined in the Rome
Statute, and the way forward.

Statutes

 Charter of the International Military Tribunal, 1945

 Control Council Law No. 10, 1945
 Statute of the International Criminal Tribunal for the Former Yugoslavia, 1993
 Statute of the International Criminal Tribunal for Rwanda, 2007
 Rome Statute of the International Criminal Court, 17 July 1998.
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 Other Resources

 The relationship between international humanitarian law and the international

criminal tribunals by Hortensia D. T. Gutierrez Posse, International Review of the
Red Cross (2006)
 Prosecutor vs. Dusko Tadic Case Number IT-94-1, App. Ch.,238-305 (ICTY 15 July
1999)
 Prosecutor vs. Akayesu, Case No. ICTR-96-4-T, T. Ch. (ICTR 02 September 1998)
 France and Ors. v. Göring (Hermann) and Ors. Judgment and Sentence, (1946) 41
AJIL 172.

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