Crimes against humanity is a term that came into prominence at the Nuremberg Trials in 1946. It includes crimes such as slavery; genocide; mass deportations or displacement of a group of people; the cultural or physical extermination of a group of people due to their race, religion, or political affiliation; and rape and torture. It is a crime that is committed as a result of government policy or enacted by those in power in a widespread and systematic way. The term first appeared in 1907 under the Treaty of the Hague. This treaty addressed “the laws of humanity” that defined how armed conflicts should transpire. After World War II, representatives from the Allied forces initiated the Nuremberg Trials, where Nazi leaders were tried for acts of genocide, an event commonly known as the Holocaust. These trials were initiated by the London Charter of the International Military Tribunal. This charter laid out the rules in which Nazi leaders would be tried in Nuremberg. Part of the charter provided legal terms and definitions, including “crimes of peace.” Crimes against humanity took on the meaning of inhumane acts exerted upon a civilian population. The shift in terminology from crimes of war to crimes of peace established a transfer from the focus of how military members acted toward one another to how military personnel directed and addressed civilians.
All incidents of crimes against humanity are under the jurisdiction of international law. This means that the jurisdiction is universal. Crimes, therefore, can be prosecuted anywhere, not just where they occurred. This is important as few victims of these crimes have opportunities to exert legal standing where they were victimized. Just because a conflict ended, this does not mean that the displaced persons can return or would be welcomed as equal or full citizens under the law. Additionally, often the perpetrators are those who are in positions of power, high-level officials within the government, courts, or military. It is improbable that those responsible for crimes against humanity would be tried within the same political framework that allowed these crimes to occur. Those responsible for orchestrating large-scale crimes against civilians are not likely to face trial where the crimes took place unless there is a complete change in the government’s policy and personnel.
The Nuremberg Trials established critical elements within international law. One of those elements is that nations have a legal and moral obligation to provide evidence and assistance to the prosecution of offenders of crimes against humanity. Additionally, declaring that one is not responsible for criminal actions because they were sanctioned or ordered by a superior is no longer an acceptable defense. Crimes against humanity laws have no statute of limitations and all persons can be subject to their application, including national leaders and rulers.
While trials such as those that occurred in Nuremberg are important to recount historical facts and provide a venue for the victims to declare the offenses imposed upon them, they also serve to establish culpabilities and legal precedents for international leaders. Unfortunately, these trials do not address what caused the acts of aggression against civilian populations and do not restore a safe haven for the displaced or targeted individuals to return. In all likelihood, the causes and political environments that stimulate such egregious acts do not dissipate due to court trials. The international court officers depart once the trial is over, leaving the local population to struggle with reconciliation or peaceful resolution.
It is exceedingly difficult for the international community to agree to set up a war crimes tribunal. The process is lengthy and there are many competing interests within the various personnel that constitute such a far-reaching, temporal court. By the time the court is established, and an agreement is reached as to the goals of the trial and what the potential punishments would be for targeted perpetrators, it is several years after the crimes occurred. These factors create a diminished possibility of deterrence toward other political groups or leaders who would misuse their power to commit crimes against humanity.
Republic of South Africa
In the case of the Republic of South Africa, a Truth and Reconciliation Commission was able to take place within the country because the African National Congress (ANC) took power away from the National Party that was run by the Afrikaners who instituted apartheid. Apartheid is a crime against humanity as it displaced and deprived rights to a group of people based on their race. The National Party of South Africa was run by the Afrikaners, a group of European—primarily Dutch—descendants. The Afrikaners forced the black Africans to live separately from the whites, forbade them from obtaining work within the government, limited their ability to own or work on the land as sharecroppers, and denied them basic human rights such as the ability to obtain citizenship or study in their own languages. The National Party ruled from 1948 to 1994. During this time the minority Afrikaners had absolute power and controlled 80 percent of the land even though they accounted for only about 10 percent of the population. Black Africans were forcibly removed from their property and forced to live on “reserves,” which separated them from other populations within the country. Apartheid exacerbated and enhanced poverty and diminished opportunities for the populations to overcome their political restrictions.
The deprivation of rights was only part of the apartheid policies. The gravest portion was instigation of violence and murder to ensure that the policies would not shift and the Afrikaners would maintain their position of power. As a minority, the Afrikaners had to work consistently to perpetuate discriminatory policies. This included the targeted killing of anti-apartheid activists, the instigation of political instability within the ANC, and the provocation of violence between different ethnic groups which composed the black African population. Both the leaders of the National Party, through the presidents of South Africa as well as through the national police force, which was exempt from oversight or restriction, pursued any violent method they could to oppress the local populations. Government officials spoke freely about enacting whatever strategies they could to preserve white rule. This worked for the National Party until the 1990s, when the international media began to report heavily on the brutal and racist actions and events that were taking place in South Africa.
In 1994, the ANC negotiated a peaceful resolution with the National Party. This remarkable event transpired because of international political pressure exerted on the National Party to end apartheid. The United States and Europe initiated economic sanctions against South Africa as a result of their own population’s disgust over apartheid policies. The economic sanctions and trade embargoes enacted by various European states and the United States began to compromise the financial stability of South Africa. Eventually, the National Party leaders and President F. W. de Klerk, when confronted by mounting economic troubles and internal revolts, decided to hold an election and allow the black population the right to vote. The election was held in 1994 and ANC leader Nelson Mandela was elected as the first black president of South Africa. This ended apartheid policies and led to the establishment of the Truth and Reconciliation Commission, which allowed victims of crimes against humanity to come forward and declare to the court what had happened to them. The victims outlined murder, violence, and kidnappings. The perpetrators, members of the security police of South Africa, came forward to request amnesty. Very few received amnesty, but those who did were able to truthfully recount the orders they were given to execute civilians. It was not a trial like Nuremberg; it was several committee hearings held in various locations throughout South Africa so that the truth could be told about what happened as a result of 50 years of brutal apartheid policies. The goal of the commission was to gather the most accurate account it could for the people of South Africa. The Afrikaners had denied the extent of their brutality and their role in the oppression of the African people. The commission enabled accuracy and a safe venue for the voices of victims to be heard. Many in South Africa felt vindicated by the removal of the National Party from the leadership of their country and the rights afforded by full citizenship given to all people within the country.
In contrast to South Africa, Cambodia, which was ruled by Pol Pot between 1975 and 1979, eventually held trials with much less desirable results. Pol Pot was the leader of the Khmer Rouge, a socialist agrarian party, which exerted totalitarian policies and disallowed challenge or democracy within the country. Under Pol Pot, the Khmer Rouge forced citizens who lived in the Cambodian cities to move to rural areas where they were compelled to work on farms or other projects. Work camps were established where individuals were forced to complete hard labor while being denied enough nutrition to sustain themselves. Those who contested or spoke against the government’s policies were executed. The policies of the Khmer Rouge included the elimination of “enemies” within the state; this meant that those who were considered a threat to the new policies or government would be targeted for torture and execution. One of the first groups to be targeted were those who were considered intellectuals, that is, those who were educated or even wore glasses. Other enemies included those who had any contact or affiliation with a foreign country or government, including ethnic Chinese, Thai, or Vietnamese and Buddhist monks. All of these persons were targeted by the Khmer Rouge for execution. The executions were conducted through the use of pickaxes. There are mass grave sites throughout Cambodia where the remains of those executed can be seen. These areas came to be known as “the killing fields.”
It is believed that between 2 and 3 million civilians were killed by the political leaders of the Khmer Rouge either directly through genocide or through starvation. The Khmer Rouge began to collapse in 1979 when Vietnamese forces took Phnom Penh. Pol Pot took refuge along the Thai border and provoked and maintained insurgencies that left Cambodia in a state of instability for the decades that followed. The instability and consequences of war left the Cambodian people with scant resources to address the genocide and horrors they suffered collectively under Pol Pot.
Between 1991 and 1995, the United Nations led a peacekeeping mission in Cambodia to end violence and establish stability in the country. In 1998, Pol Pot died. The same year two leaders within the Khmer Rouge turned themselves over to the newly elected government of Cambodia in exchange for amnesty. This led one leader, Ta Mok, to be detained by the new government to be tried for crimes against humanity.
Pol Pot placed several of his family members in high positions within his government. Eventually some of them would come to trial to account for actions taken by the Khmer Rouge. Unfortunately, the trials did not occur until 2006. By then many of those most responsible for the crimes waged against Cambodian civilians were aged, infirm, or dead. A total of four people were put on trial for crimes against humanity. The trial, referred to as the Extraordinary Chambers in the Courts of Cambodia, found one person guilty, Kaing Khek. Khek was convicted of crimes against humanity and was sentenced to 35 years in prison. Khek ran a prison, Tuol Leng, which was known as a place where civilians were tortured. His sentence was adjusted to life imprisonment even though at age 67, it seemed implausible that he would have outlived his original sentence. Ieng Sary, one of the cofounders of the Khmer Rouge, died in the hospital at age 87 while he was awaiting sentencing. Nuon Chea and Khieu Samphan, both former leaders of the Khmer Rouge were charged with genocide and crimes against humanity, but have not yet been sentenced.
The government of Cambodia claims that the lengthy delays in trial and sentencing were due to the inability to procure funds to run the court. Cambodian government officials have received substantial donations, including those from both the Japanese and French embassies located in Cambodia. Some claim that Prime Minister Hun Sen, a former Khmer Rouge officer, purposefully created delays in the courts and has declared that he doesn’t want to try other Khmer Rouge representatives who took part in the work camps or executions. Prime Minister Hun Sen stated that he thought it was time to “dig a hole and bury the past.”
The Rwandan president Juvenal Habyarimnana, a Hutu, was assassinated on April 6, 1994, by having his plane shot down. This led to an outburst of violence across Rwanda that resulted in the killing of an estimated 800,000 Tutsis in just over a three-month period. By July 1994, over 2 million Hutus fled Rwanda and became refugees in the Democratic Republic of the Congo as the Tutsi-based militia took over the capital city of Kigali. Some of these refugees would be implicated years later as perpetrators of the mass killings.
In 1995, the international community established the International Criminal Tribunal for Rwanda (ICTR). The ICTR indicted 93 suspects and arrested 83, as some of those they sought to arrest had fled the jurisdiction of Rwanda and were seeking exile or an existence in anonymity elsewhere. Of all of those who appeared before the tribunal, nine pled guilty, 10 were acquitted, and 75 were convicted and sentenced. The tribunal was successful in its application of international criminal jurisprudence in that it convicted individuals of genocide, as well as of rape as an act of genocide. Notable was the conviction of three individuals for using the media to incite violence and racial hatred. Radio stations were used by the Hutus to declare Tutsis the enemy and a deficient race. While an Appeals Chamber overturned some of the conspiracy charges and reduced sentencing, it demonstrated both the complexities of the crime and the court’s willingness to confront convoluted issues such as free expression versus incitement of violence.
The court’s overall accomplishments are difficult to assess and indicate the problems faced by all courts that seek to address crimes against humanity. One is that a small group of people are targeted for trial. In the case of Rwanda, only members of the Rwandan government and their affiliated militias were sought for justice. Members of the Rwandan Patriotic Front, a Tutsi-led militia that initiated conflict in what was to become a civil war in 1990, were not tried. The fact that representatives from this group now govern Rwanda was not lost on the victims. Additionally, financiers of the war who supported and provided ammunitions to the original Rwandan government were never investigated for their role. Those who perpetuated the war financially were representatives from France. However, no one from a European country was sought for prosecution for their role in the war. This was due in part to the limitations of jurisdiction of the ICTR, but it is an issue that plagues all war crimes tribunals. The victors are not tried for their crimes. This was true from the start of war crimes tribunals in Nuremberg and continues to be true today.
The tribunal of Rwanda marked other striking concerns with the international community’s attempts at peaceful resolution. The tribunal’s success in making several people accountable to rape and genocide was commendable; however, it did nothing to end the violence between the Hutus and the Tutsis. Although rampant genocide in Rwanda concluded as a result of a United Nations peacekeeping mission and the tribunal, Hutu militias formed within the Congo and led to years of conflict within the Congo that resulted in approximately 5 million civilian deaths. The Tutsi based leadership that now governs Rwanda has invaded the Congo twice claiming that the Rwandan government wants to eliminate the Hutu militias that fled to the Congo. The Tutsi rebels that reside in the Congo continue to operate as they claim that if they were to cease their aggression, they likely would be killed by the Hutus. The efforts of the United Nations peacekeeping forces have failed to secure a peaceful Rwanda or Democratic Republic of the Congo.
The international criminal tribunals have been limited in their ability to effect long-term change in a country whose leaders seek to destroy groups within its borders. Nations are reluctant to intervene within the boundaries of another sovereign nation. Even when justice is achieved, its scope is too inadequate to create deterrence.
- Brecher, K, J. Cutler, and B. Smith. In the Name of Democracy: American War Crimes in Iraq and Beyond. New York: Metropolitan Books, 2005.
- Brinkley, Joel. Cambodia’s Curse: The Modern History of a Troubled Land. Philadelphia: Perseus Books, 2011.
- Byers, Michael. War Law: Understanding International Law and Armed Conflict. New York: Atlantic Books, 2006.
- Davis, Greg. Judgment Before Nuremberg: The Holocaust in the Ukraine and the First Nazi War Crimes Trials. New York: Pegasus Books, 2012.
- Higgins, Andrew. “Justice Slow to Come to Victims of Khmer Rouge.” Washington Post (September 28, 2012).
- Khan, Shaharyar M. The Shallow Graves of Rwanda. New York: St. Martin’s Press, 2000.
- Leval, Pierre N. “The Long Arm of International Law: Giving Victims of Human Rights Abuses Their Day in Court.” Foreign Affairs, v.92/2 (2013).
- Temple-Raston, Dina. Justice on the Grass: Three Rwandan Journalists, Their Trial for War Crimes and a Nation’s Quest for Redemption. New York: Free Press, 2005.