The Politics of Persecution

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Acknowledgements

In the years spent on researching and writing this book, I incurred many debts that are gratefully acknowledged. Thanks to the Rockefeller Foundation I could spend a month at their Bellagio Centre, and stipends from the Alexander von Humboldt Foundation funded a number of research visits to Germany. Incentive grants from the National Research Foundation of South Africa financed other research trips to foreign universities.

On the domestic front my wife Zelda again gave me the space to indulge my wayward passion for studying unbecoming conduct in the political world. As an information librarian Zelda also provided indispensable assistance in obtaining material for this book. I also acknowledge the generous support provided by my successive research assistants at the University of Johannesburg: Megan Erasmus, Arina Muresan, Sharlene Barnard and Yanoulla Theodosiou.

This, my last sole-authored book, is dedicated to the memory of my son, Niel Geldenhuys (1985 – 2015).

Deon GELDENHUYS ← 15 | 16 →

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Introduction

This book is about the contemporary manifestations of persecution, an age-old form of mistreatment of groups of people by their rulers. ‘Throughout history, across many cultures and civilizations’, the eminent international lawyer Cherif Bassiouni recorded, the words persecute and persecution were taken to refer to ‘discriminatory practices resulting in physical or mental harm, economic harm, or all of the above’. In Western civilization these practices were historically associated with Roman persecution of Christians and with Christian societies’ discrimination against Jewish communities in their midst. More recently persecution became synonymous with Nazi actions against Jews, which went beyond state discrimination and oppression to the physical extermination of a distinct people – the ultimate form of persecution.¹ Because of the atrocities committed by Hitler’s Germany, persecution on political, racial or religious grounds became one among several crimes against humanity. This new generic category of international offences was codified in the Charter of the International Military Tribunal that tried Nazi war criminals in Nuremberg.² Over the next decades the United Nations, in pursuit of its human rights mandate, approved a range of international instruments that condemned and proscribed discriminatory practices associated with persecution. States have, however, continued to commit the international crime of persecution to this day. Nor is this form of gross human rights abuse likely to disappear from state practice any time soon.

For most of the second half of the 20^th century apartheid in South Africa represented an emblematic case of persecution – even if apartheid was seldom explicitly labelled as such. Apartheid clearly met the international law requirements of widespread, deliberate, state-directed discrimination, based in this instance mainly on the assigned racial identities of the target groups. The UN General Assembly chose to declare apartheid a crime against humanity. The International Convention on the Suppression and Punishment of the Crime of Apartheid, adopted by the Assembly in 1973,³ defined apartheid as ‘inhuman acts committed ← 17 | 18 → for the purpose of establishing and maintaining domination by one racial group of persons over any other racial group of persons and systematically oppressing them’. The list of acts falling within the scope of ‘the crime of apartheid’ included murder, torture, arbitrary arrest, discriminatory laws preventing a group’s participation in the political, social, economic and cultural life of the country, racially segregated residential areas, and the imposition of living conditions designed to cause a racial group’s ‘physical destruction’. Although the Convention did not explicitly equate apartheid with persecution, its definition of apartheid corresponded with international law’s treatment of persecution as a crime of humanity ever since the Nuremberg trials.⁴

The 1998 Rome Statute of the International Criminal Court contained the most elaborate legal definition of persecution as ‘the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity’. Persecution can be based on political, racial, national, ethnic, cultural, religious, gender or other grounds. The Rome Statute listed apartheid as a distinct crime, separate from persecution. Both, however, fell under the rubric of crimes against humanity, which consisted of acts ‘committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’.⁵

While drawing on international law in defining persecution (and other crimes against humanity), this is not a study in international law. Instead, as the main title of the book indicates, it deals with the politics of persecution. To adapt a familiar conceptualization of politics, we will determine who persecuted whom, when, where, how, why and to what effect. This means that we need to identify the persecutors or agents (and their motives) as well as their victims; establish the nature of the systematic discrimination; determine the external responses to persecution and the persecutors’ reactions to international criticism of their conduct (if indeed they faced censure); and record the outcomes of periods of persecution. Being a political analysis of an international crime involving egregious human rights violations, it will suffice to provide only prima facie evidence of discriminatory actions on the part of governments – a lighter burden of proof of persecution than a court of law would demand. On this basis 15 case studies, from the 1960s to the present and from different parts of the world, were selected.

South Africa is obviously included. So is Israel, whose founding ideology of Zionism was branded as ‘a form of racism and racial discrimination’ ← 18 | 19 → by the UN General Assembly in 1975 (resolution 3397). Zionism was declared not merely an affront to human dignity, but a manifestation of a practice – racial discrimination – repeatedly denounced and proscribed by the Assembly.⁶ Although the General Assembly revoked the anti-Zionist resolution in 1991, modern Israel has all along persecuted its Palestinian population. Scores of other countries that have been patently guilty of persecuting groups in their societies, also feature in this inquiry. Unlike South Africa, few of the other offenders seriously provoked the ire of the UN or significant numbers of states.

The prevalence of persecution and the hugely divergent international responses to its manifestations are two of the reasons for embarking on the present investigation. Persecution rather than other types of gross human rights violation is chosen for examination because a great deal has already been written in international law and political science on war crimes and genocide (and also ethnic cleansing, even though it is not a legal term). A further motivation is that persecution goes to the heart of the domestic political orders of many states, where power and privilege are distributed in a discriminatory fashion. Persecution can moreover serve as ‘the basis for the commission of other crimes’,⁷ which means that persecution can give rise to or is tied to several other offences in international law. Indeed, persecution generally goes hand in hand with other kinds of human rights abuse like the denial of freedom of association, movement and expression and the imposition of repressive measures such as detention without trial, torture and forced relocation. Genocide, in turn, is usually preceded by state persecution against the group targeted for physical annihilation. As Bassiouni put it, ‘genocide is an extreme and most inhuman form of persecution’.⁸ Persecution can likewise be a cause of internal war, when an oppressed community rises up against its rulers. A related consideration is that the consequences of persecution (and associated misdeeds) can be dire. During the 20^th century, according to estimates, over 170 million deaths had been caused by ‘internal conflicts and tyrannical regime victimization’ (the latter including genocide, crimes against humanity and war crimes).⁹ By the end of 2017, the UN High Commissioner for Refugees reported, an unprecedented 68.5 million people worldwide were forcibly displaced from their homes as a result of war, violence and persecution.¹⁰

Since persecution is in essence a grave violation of international human rights, these rights provide a vital context for our inquiry. The first chapter accordingly sketches the universalization of human rights, especially in ← 19 | 20 → the aftermath of World War II. An important aspect for our purposes is the growth of international concern over the ways in which oppressive rulers mistreated their subjects, accompanied by collective efforts to remedy such situations. The process has given birth to an international human rights regime, which is supposed to deal with persecution among many other human rights transgressions. The components of the regime, set out in chapter 2, form the basis of the analytical framework in terms of which the case studies in subsequent chapters will be conducted.

The grounds for persecution on which the case studies were chosen are mainly race, culture, language and ethnicity. Religion, nationality and political persuasion also feature in a few instances but are not focal points. There is, as suggested, a voluminous literature on religious persecution. Gender-based discrimination practised by states has lately attracted extensive scholarly attention and is excluded from the inquiry.

While there is a strong element of comparison in the study, the comparative method is not strictly applied to highlight similarities and differences between the selected instances of persecution. Instead, we use these cases to explain how the politics of persecution played out in a wide range of countries over more than 50 years – in the face of an international human rights regime that proscribed and criminalized this type of abuse.

Finally, an advisory is in order. The admonition of Jean Louis Rodolphe Agassiz, a renowned 18^th century natural scientist, is taken to heart: ‘The facts will eventually test all our theories, and they form, after all, the only impartial jury to which we can appeal.’ Such a jury is all the more important in an inquiry in which blame for criminal wrongdoing will be apportioned.

References

1 M. Cherif Bassiouni, Crimes against Humanity in International Criminal Law, 2^nd edition, Kluwer Law International, The Hague, 1999, pp.326-7.

2 M. Cherif Bassiouni, Crimes against Humanity in International Criminal Law, p.41.

3 https://treaties.un.org/doc/publication/unts/volume-1015.

4 M. Cherif Bassiouni, Crimes against Humanity in International Criminal Law, pp.195-6.

5 Rome Statute of the International Criminal Court, https://www.icc-cpi.int/nr/rdonlyres. ← 20 | 21 →

6 Bernard Lewis, ‘The anti-Zionist resolution’, Foreign Affairs, Vol. 55, No. 1, 1976, pp.54-64.

7 M. Cherif Bassiouni, Crimes against Humanity: Historical Evolution and Contemporary Application, Cambridge University Press, Cambridge, 2011, p.397.

8 M. Cherif Bassiouni, Crimes against Humanity: Historical Evolution and Contemporary Application, p.401.

9 M. Cherif Bassiouni, Crimes against Humanity: Historical Evolution and Contemporary Application, p.570.

10 UN High Commissioner for Refugees, ‘Forced displacement above 68m in 2017, new global deal for refugees critical’, 19 June 2018, www.unhcr.org/news/press/2018/6/5627c2434/forced-displacement-above-68. ← 21 | 22 →

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SECTION I

HISTORICAL AND THEORETICAL PERSPECTIVES

The two chapters in Section I provide the historical context and theoretical points of reference for the subsequent case studies of persecution. In tracing the evolution of human rights, chapter 1 will highlight why, when and how states’ treatment (or rather mistreatment) of their own subjects gradually became a matter of foreign concern. This process went together with the development of standards of acceptable conduct that states were expected to uphold domestically. The resultant legal rules were codified mainly in international human rights law, but also in two other branches of international law known as international humanitarian law and international criminal law. It is the latter that prohibits and criminalizes a range of actions designated as crimes against humanity; persecution is one of them.

Such has been the progress of states in collectively defining, promoting, protecting and monitoring human rights that a full-fledged international human rights regime has come into existence. The familiar regime components are principled norms, rules and decision-making structures. Set out in chapter 2, these elements will help us to address most of the six research questions tabled in the Introduction: Who are the perpetrators in the various case studies of persecution? Who are the victims? What is the nature of the persecution? How have intergovernmental and nongovernmental organizations and major states responded? Two further questions drive the research agenda: How did the persecutors respond to external censure, and what have been the outcomes of cases of persecution? To investigate the latter two aspects and also delve deeper into international responses to instances of persecution, some additional analytical instruments will be presented in chapter 2. Combined with the regime components, they form the overall framework for the analysis of the politics of persecution. ← 23 | 24 →

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CHAPTER 1

The universalization of human rights

This introductory chapter provides a brief overview of the origins and development of what are today called international human rights. Extending over centuries, the process was marked by two simultaneous trends: on the one hand a conviction among populations that their rulers were not free to treat or mistreat their subjects as they pleased and, on the other, a view that rulers’ abusive conduct at home was of concern to foreign societies. The persecution of particular groups on the grounds of religion or culture has long been regarded by major states as a form of domestic misconduct that required an international response.

The chronological survey will be divided into four successive periods, beginning with the 13^th century Magna Carta and ending with the International Criminal Court (ICC) established in the early 21^st century. The last two periods, covering developments since the Second World War, coincide with the decades into which our case studies of persecution (sections II to VI) will be divided. The interplay between world politics and international law, of which chapter 1 provides many illustrations, is a phenomenon that inevitably features in the case studies too.

From the Magna Carta to World War I

The notion of human rights originated centuries ago as ‘an instrument of revolt’ against the injustices and indignities people endured under oppressive rulers. In these struggles, demands were made for minimum rights to which all citizens were entitled.¹ Influenced by the doctrine of natural law, claimants insisted that there were laws of God or of nature that were superior to positive law enacted by man (read: kings).² The Magna Carta of 1215 was one of the earliest proclamations of human rights, guaranteeing the people of England freedom from imprisonment and from dispossession of property as well as freedom from prosecution and exile unless by ‘lawful judgment’.³ The Habeas Corpus Acts and the ← 25 | 26 → English Bill of Rights of 1689 established the supremacy of Parliament and enshrined citizens’ rights to free elections, freedom of speech and freedom from cruel punishment.⁴ Drawing on natural rights, the American Declaration of Independence of 1776 boldly proclaimed:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.⁵

The French Declaration of the Rights of Man and the Citizen of 1789 made a similar sweeping statement: ‘The aim of all political association is the conservation of the natural and inalienable rights of man.’ These were listed as the rights to liberty, property, security and resistance to oppression.⁶ One of the earliest efforts to assert human rights internationally was the campaign against slavery, which originated in Britain in the late 1700s and was later spearheaded by the British and Foreign Anti-Slavery Society (founded in 1839).⁷ The movement encouraged several countries to abolish their slave trade and also contributed to the conclusion of over 50 bilateral anti-slavery treaties between 1815 and 1880. At the multilateral level, major European powers assembled at the Congress of Vienna in 1815 issued a forceful condemnation of slavery. The General Act adopted at the 1885 Berlin Conference declared that ‘trading in slaves is forbidden in conformity with the principles of international law as recognised by the signatory powers’ (of which there were 15). Five years later, at the Brussels Conference, an act was signed that not merely denounced slavery but also established enforcement mechanisms to assist states in implementing their obligations to suppress the slave trade in Africa and on the high seas.⁸

Schabas traced international law’s role in protecting religious and other minorities against persecution back to the Peace of Westphalia of 1648, which contained guarantees for religious communities.⁹ Subsequent external attempts to protect religious groups against discrimination focused on the Ottoman Empire. An early instance was the Treaty of Kutchuk-Kainarji, concluded by Russia and Turkey in 1774, which obligated the Turks to protect the Christian religion and churches in the Ottoman Empire.¹⁰ In 1827 Russia, together with France and Britain, intervened militarily in Greece to stop the slaughter of Greek Orthodox Christians by Ottoman forces.¹¹ A tripartite declaration issued in 1830 by the same three powers conditioned their recognition of Greece’s independence on the latter’s observance of non-discrimination in religion.¹² The Treaty ← 26 | 27 → of Paris of 1856, which the Sultan signed under duress, compelled him to uphold ‘the welfare of his subjects… without distinction of religion or race’.¹³ Another round of humanitarian-inspired armed intervention occurred in 1860, when Europe’s five great powers with the agreement of the Ottoman Empire dispatched a large military force to Syria in the wake of the massacre of thousands of Maronite Christians by Muslim Druze. The European powers also set a new precedent by creating an international commission to investigate the causes and extent of the persecution in Syria and they even considered punishing the perpetrators and assisting the victims of the atrocity.¹⁴ The Ottoman authorities’ remorseless persecution of Christians in Bosnia, Herzegovina and Bulgaria incited a popular rebellion in the 1870s. The brutality with which the Sultan’s forces quashed the revolt caused an international outcry. The atrocities in the Balkans encouraged the signatories to the Treaty of Berlin of 1878 to include provisions for protecting the rights of ethnic and religious minorities (including Christians and Jews) in the region.¹⁵ Around that time the rulers of Hungary and Romania also attracted external condemnation of their persecution of religious and ethnic minority groups.¹⁶ International displeasure over Turks’ massacres in Armenia in 1894 compelled the Ottoman government to allow foreign representatives to accompany a commission of inquiry into the events and to accept administrative reforms.¹⁷ Further afield, Russian pogroms against Jews in 1891 and 1905 prompted outrage in Western Europe, evidently persuading Russia to adopt more accommodating policies.¹⁸

Lauren drew a striking parallel between these events in 19^th century Europe and more recent occurrences:

Persecution of minorities within the Ottoman Empire provided a highly visible focal point for international attention, condemnation, and action, much in the same way that the atrocities of the Third Reich in Germany, apartheid in South Africa, and ‘ethnic cleansing’ in Yugoslavia would do in the next century.¹⁹

Collective efforts in the 19^th century to protect persecuted communities contributed to the later development of the theory and practice of humanitarian intervention. This was in turn linked to the emerging legal principle that states had to observe certain fundamental laws of humanity in dealing with their own nationals, thus restricting their freedom of action (or traditional sovereign rights) in this regard.²⁰ ← 27 | 28 →

The moral awakening to persecution and oppression in the 19^th century was not confined to Europe. Consider the situation in the Belgian Congo, where King Leopold’s brutal rule had by the late 1800s attracted sporadic public criticism in Europe. The first wide-ranging indictment appeared in 1890 in the form of an Open Letter addressed to Leopold by a black American historian named George W Williams. Writing while visiting the Congo, Williams was deeply troubled by the gross human rights abuses committed by the colonial power. In a subsequent letter to the American Secretary of State, Williams asserted that ‘crimes against humanity’ were being committed in the Belgian colony²¹ – perhaps the first ever reference to such offences. These expressions of disquiet, together with the Casement Report of 1903-4, contributed to the dispatch of a Belgian commission of inquiry to the Congo. The upshot was the introduction of reforms and a decision by the Belgian government to take over responsibility for the colony from the monarch.²²

Widespread concern over the fate of soldiers and prisoners of war, accentuated by the horrors of the Crimean War (1853-6), encouraged the formulation of stricter rules of war and improved protection for prisoners than found in age-old existing conventions. The revisions to the humanitarian laws of war found expression in the Geneva Convention of 1864 and the 1868 Declaration of St Petersburg and were further codified in the three Hague Conventions of 1899 that declared certain wartime acts as illegal but not criminal per se. The International Committee of the Red Cross, established in 1863, played an indispensable role in setting standards for warfare.²³ The so-called Martens Clause contained in the Hague Convention of 1907 stipulated that ‘the interests of humanity and the ever progressive needs of civilization’ placed states under an obligation to abide by the letter and spirit of the laws of war’.²⁴

On the whole, external intrusions into the internal governance of states (and colonies) were isolated events before World War I and followed no standard rules or procedures. More importantly, a key doctrine of world politics held that the relations between individuals and the states of which they were citizens were determined by the national laws of the countries involved and were hence a matter falling within their exclusive domestic jurisdiction. As Oppenheim put it, the ‘so-called rights of man’ at the time enjoyed no protection under international law because that law dealt solely with relations between states and could not confer rights on individuals.²⁵ ← 28 | 29 →

The period 1914 to 1945

The impunity that international law in effect afforded individuals involved in state-sponsored domestic violations of human rights – based on the notion that state leaders and senior military commanders were, as the personification of the state, entitled to sovereign immunity – began to change in the course of World War I.²⁶ The first formalization of the charge of crimes against humanity in the 20^th century, occurred in 1915. France, Britain and Russia jointly issued the following indictment in the wake of the mass killing of Armenians in the Ottoman Empire:

In view of these new crimes of Turkey against humanity and civilization, the Allied governments announce publicly to the Sublime Porte that they will hold personally responsible [for] these crimes all members of the Ottoman Government and those of their agents who are implicated in such massacres.²⁷

Although the three aggrieved powers failed to take action against Turkey, they had set an important precedent. It was followed up after World War I when a special commission of inquiry, established by the victorious alliance, found that the Central Powers had prosecuted the war ‘by barbarous or illegitimate methods in violation of established laws and customs of war and the elementary laws of humanity’. The nationals of enemy countries who had committed such offences ‘are liable to criminal prosecution’, the commission recommended.²⁸ The specific violations attributed to the losing side included massacre, torture, rape and deportation of civilians.²⁹ The Allies inserted provisions in the Treaty of Versailles to have the transgressors brought to trial before an international military tribunal, but not for crimes against humanity; due to American opposition – based on the view that there existed ‘no fixed and universal standard of humanity’ – the Versailles peace agreement made no reference to crimes against humanity.³⁰ The envisaged proceedings were not held, the Allies instead acquiescing in a handful of trials conducted by the German Supreme Court.³¹ Suspected Turkish war criminals escaped all prosecution thanks to an amnesty provided in the 1923 Peace Treaty of Lausanne (the final peace accord concluding World War I).³²

In the interwar years, international concern over the actual or potential mistreatment of foreign populations began to be expressed ‘in a permanent and institutionalized form’ centred on the new League of Nations.³³ While it is often noted that the League’s Covenant made no specific mention of human rights, it nonetheless ‘emphasized the ← 29 | 30 → principle of the primacy of human dignity over the interests of States in a number of areas’.³⁴ The first example concerns the rights of minority groups in countries where they were dominated by other nationalities, notably in the states emerging from the dismembered Austro-Hungarian and Ottoman empires. Through a set of treaties and declarations involving on the one side the Allied powers and on the other Poland, Finland, Czechoslovakia, Yugoslavia, Romania, Greece, Hungary and Turkey, among others, minorities in these countries were given the right to equality before the law in matters of civil and political rights, freedom of religion, the right to use their own languages, and to maintain their own educational and religious institutions.³⁵ The peacemakers assembled in Paris had crafted ‘an international system that included history’s first collective human-rights treaties under the guarantee of the League of Nations’, thus presenting a model for future international efforts at ‘defending the rights of others’, to quote Fink.³⁶ By so doing, the League engaged in one of the very first attempts ‘to lay down explicit and institutionalized restraints on the rights of sovereign governments over their own subjects’.³⁷ Another major human rights-related innovation of the League was its mandates system. Former German and Turkish colonies were assigned to specific member states to be administered on behalf of the League. The guiding principle, according to the Covenant (article 22), was that ‘the well-being and development of such peoples form a sacred trust of civilization’; mandatory powers accordingly (article 23) undertook ‘to secure just treatment of the native inhabitants of territories under their control’. The Permanent Mandates Commission, charged with supervising these powers’ fulfilment of their duties towards their international wards, can be regarded as a forerunner of the monitoring mechanisms the UN would subsequently create in terms of its human rights treaties.³⁸

The League of Nations undertook several other human rights initiatives. It helped to bring slavery to a conclusive end through the work of its Slavery Commission and the adoption of the 1926 International Convention on the Abolition of Slavery and the Slave Trade.³⁹ The League’s Advisory Committee on the Traffic in Women and Children acted to curb human trafficking.⁴⁰ Children received further protection by means of the Geneva Declaration on the Rights of the Child drawn up by the League’s Child Welfare Committee⁴¹, while the plight of refugees was relieved by the exertions of the League’s Commission for Refugees headed by the High Commissioner for Refugees.⁴² To secure fair and humane labour conditions ← 30 | 31 → for men, women and children, the International Labour Organization (ILO) (founded in 1919) adopted a series of international conventions and supervised their national implementation.⁴³

To summarize, the interwar years witnessed several multilateral initiatives aimed at establishing and protecting the rights and interests of both collectivities and individuals within states. This meant that international law was now, in contrast to what Oppenheim had asserted at the turn of the century, concerning itself not merely with relations between states but also with the status and treatment of individuals within states. Yet this held true for only a small number of issue-areas (slavery, minorities, refugees and some other humanitarian matters), and individuals still had very limited opportunities to pursue their rights at the international level. The question of the international enforcement of state obligations had ‘barely been touched’.⁴⁴ This is because the idea of general or universal human rights, ‘to which all were entitled and which all could appeal to an international body to protect’, had not yet been accepted.⁴⁵ By the same token, there was no acknowledgement among states (not even the democracies in their ranks) of a general duty or right to secure respect for human rights in fellow-states; such rights remained essentially matters of domestic concern.⁴⁶ The Westphalian quaternity of state sovereignty, non-interference in states’ domestic affairs, and head-of-state immunity and impunity, was still largely intact. This is what Sikkink called the ‘no-accountability model of human rights regulation’.⁴⁷ In conformity with this model – the oldest of its kind in the area of human rights – the League of Nations failed to take determined action to protect the rights of peoples under the heel of tyrannical governments in Germany, Italy, Spain and the Soviet Union.⁴⁸

It needed the ‘moral shock’⁴⁹ of Nazi Germany’s unprecedented wartime brutalities to galvanize the world of states into devising a global system for the protection of human rights everywhere. A new era of international regulation – ‘making, implementing, monitoring, and enforcing of rules’ relating to human rights⁵⁰ – was about to dawn.

From the end of World War II to the end of the Cold War

A watershed event in the evolution of international criminal law – the branch of international law that proscribes particular types of conduct and renders the perpetrators criminally liable⁵¹ – occurred in the wake of the ← 31 | 32 → Second World War. The Allies realized that some of the most egregious acts of barbarity perpetrated by the Germans were not proscribed under existing international law. The laws of war prohibited only certain actions taken against enemy forces and civilians, whereas Nazi Germany had resorted to widespread and systematic abuse against its own citizens and other people not covered by these laws. At that time the persecution of people on political or racial grounds, even civilians in occupied territories, was not banned under international law.⁵² The Allied powers decided to address both these transgressions and the deficiencies in traditional international law by creating the novel International Military Tribunal for the Prosecution and Punishment of the Major War Criminals of the European Axis (IMT). Here, for the first time, a set of substantive and procedural rules were adopted to criminalize and prosecute behaviour amounting to gross human rights violations.⁵³ The Four-Power London Agreement of August 1945 (to which the Charter of the IMT was annexed) stipulated that three crimes, ‘for which there shall be individual responsibility’, came within the Tribunal’s jurisdiction: crimes against peace (starting or waging a war of aggression), war crimes, and crimes against humanity. In so doing the Charter proclaimed two new crimes under international law, namely crimes against peace and crimes against humanity, while restating war crimes.⁵⁴ Similar provisions were written into the Charter of the Iinternational Military Tribunal for the Far East, which tried Japanese war criminals in Tokyo, and in Control Council Law No 10 adopted by the four victorious powers to allow them to prosecute or oversee German prosecution of Nazi leaders in their respective zones of occupation in Germany.⁵⁵

The IMT Charter enumerated the following crimes against humanity:

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 connexion with any crimes within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.⁵⁶

This formulation points to two distinct classes of crimes against humanity that were specifically prohibited: inhumane acts like murder, extermination, enslavement and deportation (note the similarity to the charges levelled against the defeated Central Powers of the First World War); and persecution based on political, racial or religious considerations. The first category contained offences commonly designated as such in national legal systems, whereas the various forms of ← 32 | 33 → persecution listed may not have been outlawed under national legislation; in fact, the Nuremberg Charter contained the first legal recognition of the concept of persecution.⁵⁷ The Nuremberg Tribunal identified the following acts, arranged according to progressive severity, as constituting persecution: deprivation of rights to citizenship, to practice professions, to access education and to marry freely; arrest and incarceration, assaults, mutilation and torture; confiscation of property; forced relocation to ghettoes; slave labour; and physical liquidation.⁵⁸

The prosecutor at the Nuremberg trial provided ample evidence of Adolf Hitler’s persecution of Jews and other groups in Germany before the war, but no convictions flowed from these acts because the Tribunal was precluded from adjudicating crimes not committed in association with the Second World War. This controversial link between crimes against humanity and the other two offences meant that where gross abuses of the kind listed in the IMT Charter were perpetrated by agents of states outside the context of war and aggression, they would not have constituted crimes against humanity.⁵⁹ Still, the Nuremberg Tribunal convicted 32 high-raking Nazi officials of war crimes, crimes against peace and crimes against humanity. Only two defendants charged with crimes against humanity had not been indicted for war crimes too.⁶⁰

The so-called Nuremberg principles ‘reconfigured the relationship between the individual, state, and international community’. Certain crimes considered jus cogens – including crimes against humanity – were subject to universal jurisdiction, placing a legal obligation on all states to investigate and prosecute such crimes either by local courts or by an international judicial institution.⁶¹ The enactment of crimes against humanity, Lauterpacht noted in 1950, ‘constitutes the recognition of fundamental human rights superior to the law of the sovereign State’.⁶² Lippman portrayed the introduction of crimes against humanity as ‘a revolutionary step in the evolution of international jurisprudence’: it established the principle that individuals and groups possessed international legal personality and required protection ‘and that those who have drastically denigrated human dignity will be considered criminally liable’.⁶³ States’ exclusive domestic jurisdiction, which had traditionally allowed them to treat or mistreat their populations as they chose, was indeed being circumscribed by international law.⁶⁴

The newly created United Nations (UN) built on the Nuremberg formula when the General Assembly in February 1946 adopted a resolution on Extradition and Punishment of War Criminals. Taking ← 33 | 34 → note of the definition of war crimes, crimes against peace, and crimes against humanity contained in the IMT Charter of August 1945, the Assembly recommended that member states of the world body ‘take all the necessary measures to cause the arrest of those war criminals who have been responsible for or have taken a consenting part in the above crimes’ and to hand them over for trial in the countries where ‘their abominable deeds were done’. In December 1946 the Assembly passed a resolution affirming ‘the principles of international law’ recognized in the Charter of the IMT as well as the judgment of the Tribunal. Four years later the International Law Commission released its elaboration of the principles in the IMT Charter and the Nuremberg verdicts, staying true to the language of that Charter in defining crimes against humanity.⁶⁵ In another important development, the IMT Charter’s insistence on a link between crimes against humanity and war was dropped. Control Council Law No 10 (1945) had already abandoned the nexus, as did the 1948 Convention on the Prevention and Punishment of the Crime of Genocide and subsequent international conventions.⁶⁶ These moves confirmed that crimes against humanity had soon after the war become a category of crimes in their own right, separate from war crimes and crimes against peace (i.e. aggression).⁶⁷

The UN’s concern with human rights of course went far beyond earlier Nazi atrocities. Instructively, the Preamble to the UN Charter (adopted in June 1945) acknowledged a link between war and the gross violation of human rights. Hence the solemn undertaking of the founding member states

to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women.

It was the first international treaty ever to recognize universal human rights, although these were not defined in the Charter.⁶⁸ Articles 1(3) and 55 of the Charter placed the UN as an institution under an explicit obligation to encourage ‘respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion’. That respect was in turn the very foundation for the UN’s achievement of its purposes, the first of which was the maintenance of international peace and security.⁶⁹ By establishing a link between human rights violations and threats to world peace and security, the Charter provided ← 34 | 35 → a justification for international intervention, as a final resort, in the domestic affairs of seriously errant states.⁷⁰ Less drastically, article 55(c) of the Charter equipped the UN with the powers and methods of study, examination and recommendation to enable the organization to promote ‘universal respect for, and observance of human rights’. As for member states, article 56 of the Charter obliged them ‘to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55’ – which included respect for human rights.⁷¹

There was of course a counterweight in the UN Charter to wholesale interference in states’ internal arrangements in the name of promoting human rights (or whatever other cause). Article 2(7), containing the last of seven principles guiding the UN, enshrined an established tenet of inter-state relations and one that is a corollary of state sovereignty featured as the very first principle on the list:

Nothing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State or shall require the Members to submit such matters to settlement under the present Charter.

Then followed a qualification of ‘nothing’: the principle of non-interference ‘shall not prejudice the application of enforcement measures under Chapter VII’. In practice the UN from the very beginning took a narrow view of article 2(7)’s limitations on its powers.⁷² In November 1946 the General Assembly adopted resolution 103(1) which declared that it was ‘in the higher interests of humanity to put an immediate end to religious and so-called racial persecution and discrimination’ – thus serving notice on states that they were no longer free to follow such policies and practices and get away scot-free in the name of sovereignty and non-interference.