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This research paper examines and analyzes the evolution of the concept of the laws of humanity, and of the offenses associated with it in the modern era. It traces the varying interpretations on the precise contours of the concept, with particular emphasis on the Martens Clause which ﬁrst appeared in the Preamble to the 1899 Hague Convention II. Although Hague Convention II dealt with the laws and customs of land warfare, the Clause’s underlying notion of transcendental humanitarian principles reﬂected a basic commitment to human dignity and welfare; a commitment which was not conditioned on the status of the individual (combatant or noncombatant) or on the circumstances under which the individual’s rights and responsibilities were to be exercised (peacetime or wartime). This is followed by a discussion of key turning points in the understanding of the term crimes against humanity which encapsulates the range of offenses associated with the laws of humanity. In this context, the paper surveys the debates surrounding the modalities of the international community’s response and action on the aftermath of both World Wars, and the growing intersections between international humanitarian law (laws of war) and international human rights law. In recent years, the concept is being reassessed, as a result of the evolving jurisprudence of the two ad hoc tribunals for the former Yugoslavia (ICTY) and Rwanda (ITR) relating to crimes against humanity and the conﬂict nexus requirement.
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1. The Laws Of Humanity
The term laws of humanity refers to transcendental humanitarian principles which ‘are common to all human communities wherever they may be’ (Pictet 1988). To be sure, the precise list of humanitarian principles shared by all communities irrespective of history, level of development, and cultural traditions is a matter of dispute. Yet the modern era has witnessed—especially since the later Enlightenment— a concerted effort to articulate the normative parameters of a fundamental baseline of welfare consistent with the preservation of human dignity. Ironically, the ﬁrst substantive endeavors in that direction focused in an area of human activity whose very essence is considered the denial par excellence of humanity: warfare. The debates surrounding the attempts to alleviate the worst excesses of armed conﬂict were premised on an understanding of human suffering which transcended borders.
One of the earliest initiatives in the area of codiﬁed humanitarian controls appeared during the US Civil War. The United States Army General Order No. 100, Instructions for the Government of Armies of the United States in the Field (Known as the Lieber Code) expressly protected the civilian population. In addition, paragraph sixteen of the Code stipulated that ‘military necessity does not admit of cruelty—that is, the inﬂiction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in ﬁght’ (Hartigan 1983, Allen et al. 1996). Although the Lieber Code was a piece of domestic legislation issued in the context of a noninternational conﬂict, many of its provisions subsequently inﬂuenced agreements dealing with international conﬂicts. For example, the 1868 St Petersburg Declaration, the ﬁrst major international agreement in which the contracting parties agreed to renounce a particular weapon in warfare, made similar references to unnecessary suffering. In particular, the Declaration recognized that the legitimate object of war (the weakening of the enemy’s military forces) ‘would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable’; and ‘That the employment of such arms would, therefore, be contrary to the laws of humanity’ (Roberts and Guelff 1989, Kalshoven 1987). Thus, causing unnecessary suffering, whether to civilians by failing to observe the combatant noncombatant distinction, or to combatants by the use of certain types of weapons, was clearly perceived as a violation of the laws of humanity.
These concerns were not conﬁned to the so-called Western world. Nobuhiro Sato, a Japanese strategist writing on military issues during the late eighteenth and early nineteenth centuries, argued that there was a clear rule against the killing of prisoners of war, and that its violation constituted an inhuman act. Moreover, he pointed out that ‘in enemy land, coercing inhabitants and plundering their food was inhuman and that violent action was dishonourable’ (Adachi 1988). Likewise, Andres Bello, a Venezuelan jurist who published in 1832 what is considered to be the ﬁrst modern book on international law in Latin America, was a stronger believer in natural law principles. He also advocated that the object of war was the weakening of the enemy, and for that purpose combatants were entitled to use the most effective methods and means ‘provided they are not unlawful or contrary to natural law.’ Concerning the issue of persons wounded in battle, Bello emphasized that it was the victor’s responsibility to assist them, ‘and that the laws of humanity and honour prohibited killing or despoiling them’ (Ruda 1988). Despite these developments, it was not until the 1899 Hague Peace Conference that the Martens Clause, with its reference to the laws of humanity, reaffirmed the continuing relevance of customary law principles in guiding state practice.
1.1 The Martens Clause
The Martens Clause was inserted in the Preamble to the 1899 Hague Convention II with respect to the laws and customs of war on land and read as follows (Scott 1918):
Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages establishes between civilized nations, from the laws of humanity, and the requirements of the public conscience.
The need for such a clause, drafted by the Russian delegate de Martens, arose as a result of strong disagreements among convention delegates on the issue of the legal status of resistance ﬁghters in occupied territory. Certain delegates felt that if a very restrictive deﬁnition of the term belligerent were to be adopted, this would be tantamount to the criminalization of legitimate patriotic resistance against the invading forces. On the other hand, several delegates argued that soldiers had a right to be protected from potentially deadly action emanating from ‘apparently peaceable inhabitants’ (Holls 1900).
The Martens Clause broke the deadlock and has since been reaffirmed in all major codiﬁcation efforts. Yet despite the fact that it constitutes the most important statement of humanitarian principles in the corpus of international humanitarian law, its exact signiﬁcance remains a matter of dispute and there is no scholarly consensus on its interpretation. Most analysts seem to agree that the Clause symbolizes the continuing relevance of customary international law norms after the adoption of conventional (treaty-based) law ones (Greenwood 1995). Concerning wider interpretations, some have argued that given the incompleteness of the treaties regulating armed conﬂict, the Clause constitutes the ultimate humanitarian safeguard: namely, a reminder that a certain type of conduct may be proscribed even if it is not explicitly prohibited by a treaty (Ticehurst 1997). The latter interpretation is deﬁnitely consistent with the spirit of the Clause, which points to a fundamental baseline of human welfare, that is to be preserved irrespective of the contextual element, if a commitment to human dignity is to be taken seriously. In such a context, the term laws of humanity (or ‘principles of humanity’ in later versions of the Clause) refers to those norms, which prohibit means and methods not conducive to the attainment of a legitimate military objective. It is an attempt to balance military necessity against the requirements of humanity (Kalshoven 1987).
2. Crimes Against Humanity
Discussion on the laws of humanity resurfaced on the aftermath of World War I, when the victorious Allies created a Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties. The purpose of the Commission was to collect evidence of violations of international law committed by Germany and its Allies, and to suggest a framework for the prosecution of those responsible. After an exhaustive study, the majority of the Commission concluded that the Central Powers carried out the war ‘in violation of the established laws and customs of war and the elementary laws of humanity.’ (The United Nations War Crimes Commission, UNWCC 1948.)
The ﬁrst category of offenses could be classiﬁed as war crimes. The second category was composed of offenses ‘committed on the territory of Germany and her Allies against their own nationals’ (UNWCC 1948). There was an interesting precedent concerning the second category. During the War, when the Turkish Government’s massacre of the Armenian population became known, the Governments of France, Great Britain, and Russia issued a Declaration denouncing these atrocities as ‘crimes against humanity and civilization for which all the members of the Turkish Government will be held responsible, together with its agents implicated in the massacres’ (Schwelb 1946). Thus, it was the latter set of offenses which was characterized as crimes against the laws of humanity, that constituted the precursor to the crimes against humanity provisions of the London and Tokyo Charters. The juxtaposition of these two types of offenses was a potentially major legal development, since, for the ﬁrst time offenses against the laws of humanity could acquire a status under international law that was separate and distinct from war crimes.
The Commission’s recommendations were challenged by the US delegation, which objected to the inclusion in the report of references to the laws of humanity. The American members argued, amongst other things, that there were important differences between the laws and customs of war and the laws and principles of humanity, and that the Commission’s responsibilities lay in the investigation of the former, not the latter, because
The laws and principles of humanity vary with the individual, which, if for no other reason, should exclude them from consideration in a court of justice, especially one charged with the administration of criminal law … . A judicial tribunal only deals with existing law and only administers existing law, leaving to another forum infractions of the moral law and actions contrary to the laws and principles of humanity. A further objection lies in the fact that the laws and principles of humanity are not certain, varying with time, place, and circumstance, and accordingly, it may be, to the conscience of the individual judge. There is not ﬁxed and universal standard of humanity. (UNWCC 1948.)
Thus, in the US view, violations of the laws and principles of humanity were not justiciable, since they constituted moral rather than legal infractions. It was this position which eventually prevailed and, as a result, no reference to crimes against the laws and principles of humanity appeared in the text of the Treaty of Versailles (Van Schaack 1999). However, a very different perspective on this issue was to emerge as a result of the World War II experience.
2.1 The Nuremberg Era And Its Legacy
The atrocities committed by the Axis Powers during World War II ensured the rapid transition of the offenses against the laws of humanity from obscurity to prominence. Contrary to its earlier position, the United States did endorse the inclusion of crimes against humanity among the offenses for which the German leaders were to be tried by the International Military Tribunal (IMT) in Nuremberg. Article 6(c) of the Tribunal’s Charter deﬁned the offense as (Roberts and Guelff 1989):
Crimes against Humanity: namely, murder, 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.
Three elements of the deﬁnition clearly stood out: (a) ‘before or during the war;’ (b) ‘against any civilian population’, and (c) ‘whether or not in violation of the domestic law of the country where perpetrated.’
The ﬁrst element clearly implied that certain inhumane acts constituted international crimes not only in time of war but also during peace. This idea coupled with the reference to the irrelevance of whether such an offense constituted a crime under the law of the country where it was committed, meant that perpetrators could be held criminally responsible under an international law, regardless of domestic-law provisions to the contrary. This could pose a very serious threat to the idea of national sovereignty. However, this potentially revolutionary development was grounded by the deﬁnition’s requirement that these acts had to be connected with any crime within the jurisdiction of the Tribunal, i.e., crimes against the peace, and/or war crimes. What came to be known as the war or conﬂict nexus requirement severely limited the scope of crimes against humanity.
The second element meant that any civilian population came under the protection of the provisions relating to crimes against humanity, regardless of its status vis-a-vis the perpetrator, including the civilian population residing in the perpetrator’s country. According to the UNWCC, there are two types of crimes against humanity: ‘crimes of the ‘‘murdertype’’ such as murder, extermination, enslavement, deportation, etc., and ‘‘persecutions.’’ With regard to the latter the provision requires that they must have been committed on political, racial or religious grounds’ (the so-called discriminatory element). Undoubtedly, the reference to any civilian population constituted a subversive of state sovereignty development.
Finally, the third element exempliﬁed—as aforementioned—the growing belief that certain acts violative of elemental notions of human dignity could not enjoy immunity from the international prosecution even if legal under domestic law (UNWCC 1948).
Despite its subsumption under war crimes, and the debates surrounding its conceptual contours, the term crimes against humanity had an immediate effect on the quest for a postwar normative framework. The international community determined—in the words of the UN Charter—‘to reaffirm faith in fundamental human rights, in the dignity and worth of the human person’ speciﬁed one of the United Nations’ goals as the promotion and encouragement of human rights. Any major commitment to the promotion of human rights was inherently subversive of state prerogatives: by subjecting the behavior of national governments towards their own populations to international scrutiny, the international community was challenging the basic parameters of the Westphalian order. The ﬁrst major manifestations of this trend were: (a) the adoption, by the UN General Assembly, of the Universal Declaration of Human Rights (UDHR) without dissenting vote; and (b) the signature of the UN Convention on the Prevention and Punishment of the Crime of Genocide. The former, which is the foundational document of the modern era of human rights, was proclaimed by the General Assembly ‘as a common standard of achievement for all peoples and all nations.’ Although it provided for no enforcement mechanisms, the intrusive nature of the human rights discourse was to signal the beginning of a new era. The latter’s importance went well beyond the fact that it constituted the ﬁrst UN-sponsored human rights treaty. According to Article I of the Convention, the crime of genocide was the ﬁrst crime against humanity to be delinked from the conﬂict nexus requirement (‘… genocide whether committed in time of peace or in time of war, is a crime under international law …’). Moreover, it was the ﬁrst crime against humanity which could be committed by both State and non-State agents. These developments pointed to the importance of the substantive intersection between the laws of war and international human rights law.
3. Recent Developments
The laws of war and international human rights law have traditionally addressed separate sets of issues: the former has been concerned with the treatment of combatants and noncombatants by their opponents in wartime (including the methods and means of warfare), while the latter has been concerned with the relationship between states and their own nationals in peacetime, as well as in cases of public emergency. Yet, despite their differences, both bodies of law share a fundamental commitment to human welfare, irrespective of the circumstances under which challenges to that welfare may emerge, and of the particular identities of the potential victims.
This shared commitment is best encapsulated in the aforementioned Martens Clause, and has deepened primarily as a result of the exponential growth of human rights law in the post-1945 period. A good example is Article 3, common to the 1949 Geneva Conventions. This research paper refers to a minimum set of humanitarian standards applicable to noninternational conﬂicts. It stipulates that people who, for a variety of reasons, are not involved in the conﬂict ‘shall in all circumstances be treated humanely, without any adverse distinction’ of any kind. In some of its key provisions, the inﬂuence of the human-rights perspective is clearly in evidence. The references to unconditional humane treatment reﬂect Article 2 of the UDHR; the references to the prohibition of cruel treatment and torture, as well as those relating to outrages upon personal dignity, reﬂect Article 5 of the UDHR; and the references to all indispensable judicial guarantees reﬂect Article 10 and Article 11, Section 1 of the UDHR (Allen et al. 1996).
After genocide (itself an offspring of the crimes against humanity provision of the Nuremberg Charter), no other concept is more ﬁrmly anchored in both bodies of law than crimes against humanity. Recent developments have only served to strengthen these connections. The serious violations of international humanitarian law witnessed in the territories of the former Yugoslavia and Rwanda prompted the international community into action. For the ﬁrst time since the Nuremberg and Tokyo Tribunals, the international community established ad hoc international tribunals to deal with these types of offenses. The United Nations Security Council established the ICTY and the ITR with resolutions 827 (1993) and 955 (1994) respectively. Although both Tribunals have jurisdiction over crimes against humanity, and both list the same prohibited acts, there are substantive differences in the language used. In the ICTY Statute, crimes against humanity are the enumerated acts ‘when committed in armed conﬂict, whether international or internal in character, and directed against any civilian population’; while in the ITR Statute, they are the same acts ‘when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds.’
As these passages indicate, the concept has evolved considerably since the Nuremberg Trial. Three issues clearly stand out: ﬁrst, that there is no international war nexus requirement; crimes against humanity can occur during noninternational conﬂicts (ICTY Statute). Second, that crimes against humanity can occur during peacetime situations (ITR Statute). Third, that the widespread or systematic attack requirement is considered as a key element of the offense, but the discriminatory aspect is considered as a requirement for all crimes against humanity, not those of the persecution type alone (ITR Statute) (Meron 1998, Fenrick 1999). Moreover, the evolving jurisprudence of the two Tribunals has clariﬁed important rules of customary international law. For example in the Tadic case, the ICTY stated that ‘It is by now a settled rule of customary international law that crimes against humanity do not require a connection to international armed conﬂict. Indeed … customary international law may not require a connection between crimes against humanity and any conﬂict at all.’
Yet not all judicial pronouncements have been well received by the scholarly community. While the delinking of crimes against humanity from the war nexus requirement was widely considered as long overdue, the ICTY has been criticized on other fronts. In particular, the Tribunal has been faulted for its view that the discriminatory element was a requirement for all crimes against humanity, instead of being conﬁned solely to the persecution-type of offenses (Meron 1998, Fenrick 1999).
The recently adopted Rome Statute of the International Criminal Court (July 1998) constitutes the latest development in this situation. It is the ﬁrst treaty text which provides a rather comprehensive treatment of the term. Article 7 of the Statute deﬁnes crimes against humanity as ‘any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.’ The list of prohibited acts includes all those listed in the ICTY ITR Statutes (with some further reﬁnements), and two additional offenses: the enforced disappearance of persons, and apartheid. At this stage, what is emerging from the Rome Statute’s deﬁnition is a conﬁrmation of both the severance of the term from any type of conﬂict, and of the discriminatory element’s association with persecution-type of offenses only.
4. Concluding Remarks
The controversy surrounding the conceptual contours of crimes against humanity continues. Some analysts have argued that the way to deal with the conceptual ambiguities and the decreasing differentiation between crimes against humanity and war crimes, is to replace the latter term with the former (Green 1997 98). This view has been criticized on several grounds, the most important being that in war, death or injury of civilians is not unlawful, if occurring in the context of an attack against a legitimate military objective (Fenrick 1999). Yet, the fact that such a view is seriously proposed is indicative of the way in which the term has evolved in the modern era. It is a development which can not be fully understood or appreciated, save in the context of the growing inﬂuence of international human rights law. After all, the term laws of humanity refers to transcendental humanitarian principles not dependent on particular circumstances. It is a message reﬂected in the reconceptualization of crimes against humanity, the generic term encompassing the offenses against the laws of humanity. It is both promising and slightly ironic that the more the term evolves, the more it seems to reconﬁrm the need to transcend contextual factors, and reaffirm the international accountability of perpetrators of inhumane acts.
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