Boston College Third World Law Journal Volume 17 Article 1 Issue 2 International Law and Human Rights Edition 5-1-1997 Crimes Against Humanity Matthew Lippman Follow this and additional works at: http://lawdigitalcommons.bc.edu/twlj Part of the International Law Commons, and the Military, War and Peace Commons Recommended Citation Matthew Lippman, Crimes Against Humanity, 17 B.C. Third World L.J. 171 (1997), http://lawdigitalcommons.bc.edu/twlj/vol17/iss2/1 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College Third World Law Journal by an authorized administrator of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. CRIMES AGAINST HUMANITY MATTHEW LIPPMAN* Crimes against humanity-inhumane acts or persecutions based on racial, religious or political grounds-constituted a revolutionary step in the evolution of international jurisprudence. This principle established that individuals and groups possess international legal per­ sonality and protection and that those who have drastically denigrated human dignity will be considered criminally culpable. The rights of individuals were thus determined to transcend culture and country borders, and public officials could no longer claim immunity for the mistreatment of those within their own or other States. Crimes against humanity provides a potentially potent principle in combating the current escalation of national conflict and strife. Practice, however, often fails to match potential. The turn towards the next century provides an opportunity to diagram the drafting, devel­ opment, and the next required step in the evolution of crimes against humanity. 1 * Professor of Law, University of Illinois at Chicago;].D. American University; LL.M Harvard University; Ph.d. Northwestern University. This is devotedly and lovingly dedicated to Joanne Witzkowski Kalec, a healer of the heart, pathfinder of the spirit and pioneer of love, life and passion. I See generally Matthew Lippman, Conundrums Of Armed Conflict: Criminal Defenses To Viola­ tions Of The Humanitarian Law Of War, 15 DICK.]. INT'L L. 1; Matthew Lippman, The Good Motive Defense: Ernst Von Weizsaecker And The Nazi Ministries Case, (on file with TOURO INT'L L. REv.); Matthew Lippman, War Crimes Prosecutions Of Nazi Health Professionals And The Protection Of Human Rights, 21 T. MARSHALL L. REv. 11; Matthew Lippman, Fifty Years After Auschwitz: Prosecutions Of Nazi Death Camp Defendants, 11 CONN.]. INT'L L. 199 (1995); Matthew Lippman, War Crimes: The Trial Of Nazi Military Leaders, 6 TOURO INT'L L. REv. 261 (1995) ; Matthew Lippman, War Crimes Trials Of German Industrialists: The 'Other Schindlers, ' 9 TEMP. INT'L. & COMPo LJ. 173 (1995); Matthew Lippman, The Nazi Doctors Trial And The International Prohimtion On MedicalInvolvement In Torture, 15 Loy. LA INT'L & COMPo LJ. 395 (1993); Matthew Lippman, They Shoot Lawyers Don't They?: Law In The Third Reich And The Global Threat To The Independence Of The Judiciary, 23 CAL. W. INT'L LJ. 257 (1993); Matthew Lippman, The Other Nuremberg: American Prosecutions Of Nazi War Criminals In Occupied Germany, 3 IND. INT'L & COMPo L. REv. 1 (1992); Matthew Lippman, Nuremberg: Forty Five Years Later, 7 CONN.]. INT'L L. 1 (1991); Matthew Lippman, Nuremberg, 6 Law in Context 28 (1988); Matthew Lippman, The Denaturali­ zation Of Nazi War Criminals In The United States: IsJustice Being Served? 7 Hous.]. INT'L L. 169 (1985); Matthew Lippman, The Trial Of AdolfEichmann And The Protection Of Universal Human Rights Under International Law, 5 Hous.]. INT'L L. 1 (1982); Matthew Lippman, Towards An International Criminal Court, 3 SAN DIEGoJJusT. 1 (1995); Matthew Lippman, Vietnam: A Twenty Year Retrospective, 11 DICK.]. INT'L L. 325 (1993); Matthew Lippman, War Crimes: The My Lai Massacre And The Vietnam War, 1 SAN DIEGo]. JUST. 295 (1993). 171 172 BOSTON COLLEGE THIRD WORLD LAW JOURNAL [Vol. 17:171 The first section of this article will outline the evolution of crimes against humanity, which is rooted in transcendant humanitarian prin­ ciples. The notion that there are transcendant humanitarian principles of international law was suggested in the Hague Convention and dis­ cussed in the debate over whether to punish defeated German military and political leaders following World War 1. This established the foun­ dation for the United States' proposal that the Nuremberg Charter incorporate a prohibition on crimes against humanity. The second section notes that a compromise resulted in the Char­ ter provision penalizing certain inhumane acts against civilians as well as persecutions based upon sectarian animus undertaken in connec­ tion with an aggressive war. The Nuremberg Tribunal, however, failed to fully differentiate crimes against humanity from war crimes. The Tribunal viewed crimes against humanity as an extension of the hu­ manitarian law of war rather than as an autonomous source of rights. Several American occupation courts departed from this precedent and ruled that crimes against humanity encompassed the systematic commmission of inhumane acts and acts of sectarian persecution, whether committed in periods of war or peace. The third section of the paper observes that the third phase in the development of crimes against humanity affirms that the interna­ tional interest in punishing crimes against humanity takes precedence over considerations of state sovereignty. The debate over the Genocide Convention, as well as various authoritative textual interpretations, support the view that genocide constitutes a crimes against humanity, whether committed in times of peace or war. The early versions of the Draft Code on The Peace and Security of Mankind affirmed that other crimes against humanity also were not required to be connected to crimes against peace. The United Nations subsequently proclaimed that the international interest in punishing crimes against humanity prohibits the application of domestic statutes of limitations. Interna­ tional documents and domestic courts also noted that the catastrophic character of crimes against humanity permits the exercise of universal jurisdiction and excludes such offenses from being considered non-ex­ traditable political offenses. The fourth section notes that recent domestic court decisions have affirmed these general principles. France, however, narrowly construed crimes against humanity so as to immunize World War II collaborators from prosecution. The fifth section surveys the contemporary jurisprudence of crimes against humanity. The development of crimes against humanity culmi- 1997] CRIMES AGAINST HUMANITY 173 nated III the 1989 draft of the International Criminal Code which conceptualizes crimes against humanity as a mechanism for protecting universal human rights rather than as a part of the humanitarian law of war. The draft also limits crimes against humanity to large-scale, systematic acts. The autonomous status of crimes against humanity was confirmed by the fugoslavian war crimes court. The conclusion notes that crimes against humanity remain a cus­ tomary rather than a conventional crime. An international code on the prohibition of crimes against humanity (code of conflict) provides the best safeguard against the dilution of this delict. This would also contribute to the clarification of uncertainties and ambiguities in the definition and scope of crimes against humanity. I. THE MARTENS CLAUSE The history of crimes against humanity begins with the Martens Clause. Fedor Fedorovitch Martens was a principal expert on interna­ tionallaw and representative to the Hague conferences on the law of war. He drafted the so-called Martens Clause which was incorporated into the eighth paragraph of the Hague Convention of 1907. The Clause states that, in cases not covered by the Convention, the "bellig­ erents remain under the protection of the rule of the principles of the laws of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of public conscience."2 The latter language clearly connotes that the principles of humanity extend the compass of the code of conflict to cover "the interests of humanity and the ever progressive needs of civilization."3 The Martens Clause thus recognizes that States possess an obligation to adhere to both the spirit and substance of the humanitarian law of war. The Clause, however, remained an insignificant insertion into the code of conflict until discovered by the diplomats who drafted the Nuremberg Charter's prohibition on crimes against humanity.4 2 Convention (No. IV) Respecting the Laws and Customs of War on Land, With Annex of Regulations, Oct. 18, 1907, Preamble, 36 Stat. 2277, T.S. No. 539,1 Bevans 631 [hereinafter Hague Convention]. 3Id. 4 See Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Powers and Charter of the International Military Tribunal, Aug. 8, 1945, art. 6( c), 59 Stat. 1544,82 U.N.T.S. 279 [hereinafter Nuremberg Charter]. (c) CRIMES AGAINST HUMANITY: namely, murder, extermination, enslave­ ment, deportation, and other inhuman acts committed against any civilian popula­ tion, before or during the war; or persecutions on political, racial or religious 174 BOSTON COLLEGE THIRD WORLD LAW JOURNAL [Vo!. 17:171 European States had long claimed the prerogative to intervene on behalf of national and non-Muslim minorities within