Preventing and Prosecuting Crimes Against Humanity in the 21st Century

The 20th century was the bloodiest in history. It will be remembered not for its exciting scientific discoveries and technological development.

It will be remembered for the millions of innocent children, women and men who needlessly perished in war. It will be remembered for the manner in which civilians became the intentional targets of warfare.

In the old fashioned days of World War I, armies fought armies. During that war, the number of civilian deaths and injuries was about one-tenth of that suffered by soldiers.

In World War II, the ratio had risen to 1:1. That should come as no surprise when one thinks of the blitz bombing of London and Coventry and the reprisals in the fire bombing of Berlin and Dresden.

And then, there was the use of the atom bomb in Hiroshima and Nagasaki. In the Korean War, the ratio was eight civilians for every soldier. And in the Vietnam War, it was nine civilians for every soldier.

In more than 200 civil wars since 1945, over 90% of the casualties have been innocent civilians. As a result, the second half of the 20th century will be remembered for the manner in which it became state policy to intentionally target civilians in times of war.

Notwithstanding the best efforts of the International Committee of the Red Cross, the laws of war — or humanitarian law, as it has come to be called — have been honored in their breach.

Wars have become synonymous with the commission of the horrible war crimes. So unimaginable have those crimes been that new language had to be found to describe them.

The words “genocide” and “crimes against humanity” were coined because our previously established lexicon was not able to express the horror of those crimes.

When crimes of lesser magnitude are committed within a national state, good governments use their criminal justice system to hunt down and punish the perpetrators.

The domestic crime rate in any country is directly in proportion to the efficiency of policing and the system of criminal justice. The more efficient they are, the lower the crime rate will become.

In any society, there are some criminals who think they will not be apprehended or punished and crimes continue to be perpetrated.

What of prosecuting crimes against humanity? Prior to World War II, war criminals had no reason at all to fear prosecution.
In reality, there was no international criminal justice. That changed with the decision by the victorious nations to hold the German and Japanese war criminals accountable. That nearly did not happen.

Winston Churchill decided that the war criminals should face summary execution by firing squad. It was the United States that insisted on a trial, fair by the standards of the times.

The British were persuaded and agreed to set up a Military Tribunal at Nuremberg — and later one in Tokyo — to try them. In effect, those war crimes tribunals gave birth to international criminal justice. Their legacy has been an important one.

The first legacy is universal jurisdiction for the most serious war crimes. That followed from the recognition in the Nuremberg Charter of “crimes against humanity.”

The idea of crimes against humanity brought with it the consequence that some crimes are so huge that they merit investigation and prosecution not only in the country where they are perpetrated — but in any country having custody of the alleged perpetrator.

In other words, jurisdiction should depend not on where the crime is committed — but on the nature of the offense.

Universal jurisdiction was included in the 1973 United Nations Convention that declared Apartheid in South Africa to be a “crime against humanity”. It is a matter for regret that not a single prosecution ever followed.

However, it was used to more effect in the 1984 Torture Convention that resulted in the arrest of General Pinochet, the former Chilean head of state, in a London clinic at the end of 1998.

More recently, universal jurisdiction has been incorporated in a number of United Nations conventions designed to combat international terrorism.

The second legacy of Nuremberg took longer to emerge. This was the establishment of international war crimes courts.

After Nuremberg, it was assumed that a permanent international criminal court would be established. That assumption appears from the Genocide and Apartheid conventions, in both of which there is a reference to such a court.

During the Cold War, there was no real prospect that such international war crime courts would be set up.

It was only in 1993, in the face of the massive war crimes committed in the former Yugoslavia, that the UN Security Council — as a peacekeeping tool — established the International War Crimes Tribunal for the former Yugoslavia. The Rwanda Tribunal followed in 1994.

The two United Nations tribunals have a number of successes to their credit. The first is the significant advance in international humanitarian law for which they have been responsible.

For example, prior to 1993, systematic mass rape as a weapon of war had largely been ignored. In the circumstances in which it was used during the Rwanda genocide, it was found by the Rwanda Tribunal to constitute genocide. It was found by the Yugoslavia Tribunal to constitute a crime against humanity.

The third legacy of Nuremberg is that judicial proceedings have effectively recorded the history of massive crimes — and in that way stopped fabricated denials of them.

The denials that accompanied the commission of war crimes in the former Yugoslavia and Rwanda have ceased in the face of hundreds of victims who have testified before the tribunals. A similar beneficial result has followed from the work of truth and reconciliation commissions — and especially so in South Africa.

The fourth legacy of Nuremberg has been the success of the United Nations tribunals demonstrating that international criminal courts are able to hold fair trials.

They might appear to be cumbersome and lengthy. Yet, their fairness has not seriously been questioned. These successes fueled the movement to establish the International Criminal Court.

If some would-be war criminals believe that they are likely to be arrested and brought before the ICC, they might well think twice before becoming outlaws.

Already, it has become more difficult for war criminals to travel abroad. International arrest warrants await them at some international airports. I cannot believe that, at least in some cases, this does not act as a deterrent.

In the last 60 years, we have moved from a world with no international criminal justice at all to a world that has begun to shape a sophisticated system for apprehending and prosecuting war criminals.

I would not like to suggest that our world should rely only on legal mechanisms to prevent the commission of these horrendous crimes. What is undoubtedly more important is for the human dignity of all peoples to be recognized and respected.

The commission of massive crimes against ethnic or religious groups is invariably accompanied by the dehumanization of those people.

The organizers of the Rwanda genocide described the Tutsi as “cockroaches.” The Apartheid leaders of South Africa regarded black people as inferior — and, in that way, justified their oppression over centuries.

There are few countries in Africa in which people have not suffered through similar disparagement of their human dignity and through culpable ignorance of their culture and history.

All of that is why the school and university systems of all countries should make concerted efforts to educate their citizens and future leaders to understand their human rights and those of their fellow citizens.

In that way, and only in that way, will we put a stop to the crimes against humanity that plagued the 20th century.

This essay is based on a lecture delivered by the author in Abuja, Nigeria in February 2005 and jointly sponsored by the John D. and Catherine T. MacArthur Foundation, the Nigerian Federal Ministry of Justice and Nigeria’s National Human Rights Commission.