“Inter arma silent leges”
War and law have had a constant relationship between each other ever since the existence of conflict as a collective phenomenon. The regulation of the state of war, whether stemming from tradition, custom, certain codes of conduct and, ultimately, law, has evolved throughout the centuries together with the notion of war.Order now
The idea of a “Crime of War”, or war crime, is not new to the modern legal vocabulary. Unorthodox practices during a war have been branded as war crimes in many scenarios of conflict. However, these war crimes were not in themselves punishable in any international court (mainly due to the practical non-existence of such legal apparatus before the United Nations) and were very much a notion without a consequence, a general concept floating above the aftermath of wars , and not affecting individuals as such but rather relying on the concept of state responsibility.
It is only since the development of a doctrine of Human Rights, of fundamental, documented universal principles, that such crimes have materialised into a legal cast due to the development of the notion of “Crimes against Humanity” and its derived breaches. The concept of “Crimes against Humanity” has been a product of very recent historical, political and social developments which has brought war crimes under a different light in international law, and very much under the scope of Human Rights, which have impregnated the law of war as an international, codified phenomenon in many ways. As a provision, it was the initial step which began a whole new approach from part of the international community towards certain abuses against civilians during periods of war and also during peace-time. Certain practices became theoretically “illegal” in a very broad sense within the international community, criminalising governments, collectives and individuals, whether military or civilian, and covering the commission of crimes both in an individual basis as well as in a collective sense. Conventions have arisen after the appearance of this idea, as well as resolutions and other relevant legislation emanating from international bodies and organisms (mainly the UN). The ultimate reason for these provisions to arise, in theoretical terms and laying aside political considerations, has been the protection of the human being as an individual, regardless of geographical, political or social factors and circumstances, and hence has become a “Human Right”, so to say, in its own right.
Crimes against Humanity as a new principle saw its birth after the Second World War, as a result of the atrocities committed by the Nazi forces before and during the armed conflict. The establishment of the United Nations in 1945 was in a way the embodiment of the generalised fear for those atrocities ever being committed again , and this institution had a major role in the development of legal doctrines involving concepts such as Crimes against Humanity, appearing for the first time in a legal and conceptual form before the Nuremberg Trial in 1945, during the London Agreement of 1945 and its annexed charter setting the grounds for the establishment of a military tribunal. The Nuremberg Trials were conducted by the victorious powers after the Second World War, and featured the personal criminal liability of individuals held to be responsible for crimes against peace, war crimes, and crimes against humanity. This latter crime was defined as “…
murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population, before or during the war, or prosecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal.” . Through the coining of this crime, individuals as part of a universal society of man were made depositories of rights, and humanity as a whole became for the first time in international law a recognised entity.
As can be seen the provisions laid down by the Charter are very broad and leave a great margin open to interpretation. In its wording, it categorises murder, extermination, enslavement and deportation as crimes against humanity, yet leaves an open avenue when mentioning “other inhumane acts committed”. Even though the allied powers took proper care to define these crimes in such a way .