The Development of International Law in Relation to Crimes against Humanity

Global Tides Volume 18 Article 5 April 2024 The Development of International Law in Relation to Crimes against Humanity Nikki Redelijk Pepperdine University, Follow this and additional works at: https://digitalcommons.pepperdine.edu/globaltides Part of the International Humanitarian Law Commons, International Law Commons, and the International Relations Commons Recommended Citation Redelijk, Nikki (2024) "The Development of International Law in Relation to Crimes against Humanity," Global Tides: Vol. 18, Article 5. Available at: https://digitalcommons.pepperdine.edu/globaltides/vol18/iss1/5 This Social Sciences is brought to you for free and open access by the Seaver College at Pepperdine Digital Commons. It has been accepted for inclusion in Global Tides by an authorized editor of Pepperdine Digital Commons. For more information, please contact . Redelijk: Development of International Law Relating to Crimes against Humanity The Development of International Law in Relation to Crimes against Humanity Introduction Throughout history, international law has contended with the intersection of positivist and naturalist legal philosophies. While naturalism contends that international law has to serve the common good of humankind and is already inherent, positivism suggests that law is whatever states decide it is. Concerning these two philosophies, one legal term in particular offers a compelling juxtaposition: crimes against humanity. First juridically applied at Nuremberg, there is no specific convention relating to crimes against humanity, thus resulting in varying definitions. However, as stated in the Preamble of the Rome Statute, there are certain "atrocities that deeply shock the conscience of humanity."1 Thus, if crimes against humanity can "deeply shock the conscience of humanity," how can one discern if there is a collective naturalist conception of humanity’s conscience, or if what constitutes as "shocking" is in the eye of the beholder in power? Hence, this paper will examine the development of international law in relation to crimes against humanity. Starting at Nuremberg and delving into positivist and naturalist interpretations of the definition, this paper will use backward induction to clarify the concept's origins and potential juxtapositions within it. Debut of Crimes against Humanity into Jurisprudence Although actions that constitute crimes against humanity can arguably date back to acts committed before the term's inception, its applicability has remained hindered due to the Westphalian notion of the absolute sovereignty of states.2 In a consent-based system, the idea that certain crimes allowed for erasing territorial jurisdiction directly contradicted the basis of autonomous rule within prescribed boundaries.3 Nevertheless, the magnitude of atrocities committed by Nazi Germany during World War II, and the ensuing collaboration between the Great Powers, allowed for the proper debut of issues like crimes against humanity into jurisprudence. The first introduction of crimes against humanity into the Nuremberg sphere dates to the working relationship between American lawyer Robert Jackson and Zolkiew native-turnedscholar Hersch Lauterpacht. Zolkiew is now a town in western Ukraine, but at the time, it was part of the Austro-Hungarian empire and brewing with World War II tensions. Before becoming chief US prosecutor at Nuremberg, Jackson was attorney general under President Franklin Roosevelt. In this capacity, he first met Lauterpacht, who believed in the power of protecting individual rights from state purview.4 Mistrusting American international lawyers due to potential isolationist biases, Jackson welcomed Lauterpacht’s views on dismissing antiquated notions of preserving neutrality at all costs.5 While this initial meeting was fleeting, this marked the beginning of further collaborations between the two on issues relating to combating “international lawlessness” in the wake of Nazism.6 1 "Rome Statute of the International Criminal Court," opened for signature July 17, 1998, entered into force July 1, 2002, A/CONF. 183/9, United Nations Treaty Series, vol. 2187, no. 38544, Preamble. https://legal.un.org/icc/statute/99_corr/cstatute.htm. [hereinafter Rome Statute] 2 Norman Geras, Crimes Against Humanity: Birth of a Concept (Manchester University Press, 2011), 3, http://www.jstor.org/stable/j.ctt155j74v. 3 Geras, 3. 4 Phillipe Sands, East West Street: On the Origins of Genocide and Crimes against Humanity (Alfred A. Knopf, 2016), 95. 5 Sands, 95-96. 6 Sands, 102. Published by Pepperdine Digital Commons, 2024 1 Global Tides, Vol. 18 [2024], Art. 5 Following the Pearl Harbor attack and the subsequent German declaration of war on America, there was an inter-allied meeting on June 12, 1941, at St. James Palace in London among various Allied governments who believed that German war crimes must be punished.7 The St. James Agreement was formed soon after, which importantly formulated a committee that would later make up the United Nations War Crimes Commission.8Once Roosevelt, Churchill, and Stalin met at Yalta and the UN Charter was formulated, Jackson and Lauterpacht would meet again to brainstorm what would constitute the London Charter and subsequent International Military Tribunal (IMT). 9 Creating the London Charter and IMT had its fair share of challenges. Although there was agreement among the Allied victors on having the tribunal exercise jurisdiction over individuals rather than states, the prominent points of contention mostly revolved around the wording of draft Article 6.10 To avoid the French and the Soviet Union possibly overpowering the wishes of the United States through a newly elected and "sympathetic" British Labour Party, Jackson again sought out Lauterpacht's expertise.11 In this meeting, Lauterpacht suggested introducing titles into the text as a form of compromise and, while doing so, proposed a specific title that addressed cruelty against civilians: crimes against humanity.12 At the time, there was a substantial gap in the laws and customs of war that did not address atrocities in which "the victims and perpetrators possessed either the same nationality, or the respective nationalities of two or more states that were not belligerents, or if the victims were stateless."13 Much of the legal gap regarding the prosecution of civilian atrocities is attributable to the doctrine of absolute sovereignty (and the pursuit of not violating it.) However, when arguing for the introduction of crimes against humanity, Robert Jackson linked the German atrocities to the lack of existing protections for civilians: It has been a general principle of foreign policy of our Government from time immemorial that the internal affairs of another government are not ordinarily our business; that is to say, the way Germany treats its inhabitants... is not our affair any more than it is the affair of some other government to interpose itself in our (...truncated)