Selective amnesia in international justice, as list of atrocities grows

If perpetrators of the post-election violence do eventually find their way to the Hague and Louis Moreno-Ocampo’s International Criminal Court, one of the charges they are likely to face is “crimes against humanity.”

The Rome Statute describes crimes against humanity as “particularly odious offences in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings.”  

It would seem that the nature of these crimes demands that we collectively stand in defence of our common humanity, affording no quarter to any who are found guilty. However the sorry history of the selective application of international law betrays a far lesser degree of outrage.

The term “laws of humanity” originates from the 1907 Hague Convention, which codified the customary law of armed conflict.

The charge of “crimes against humanity” was first articulated in reference to the Armenian Genocide of 1915-18.

On May 24, 1915, the Allied Powers, Britain, France, and Russia, jointly issued a statement explicitly charging for the first time ever another government of committing “a crime against humanity.”

This joint statement declared: “[i]n view of these new crimes of Turkey against humanity and civilisation, the Allied Governments announce publicly to the Sublime Porte that they will hold personally responsible for these crimes all members of the Ottoman Government, as well as those of their agents who are implicated in such massacres.”

After World War I, the Allies, in connection with the Treaty of Versailles, established in 1919 a commission to investigate war crimes that relied on the 1907 Hague Convention as the applicable law.

Despite the commission’s finding that Turkish officials committed “crimes against the laws of humanity” for killing Armenian nationals and residents during the period of the war, the Turks were never formally prosecuted.

Interestingly, the United States and Japan both strongly opposed the criminalisation of such conduct on the grounds that crimes against the laws of humanity were violations of moral and not positive law.

The failure to hold the Turks to account paved the way for the Holocaust.

In 1939, just before the Nazi invasion of Poland and the beginning of the Second World War, Adolf Hitler told his generals, “The aim of war is not to reach definite lines but to annihilate the enemy physically. It is by this means that we shall obtain the vital living space that we need. Who today still speaks of the Armenians?”

Following the war, the victorious allies, led by the US, organised war crimes trials at Nuremberg and in Tokyo to prosecute the surviving Nazi and Japanese leaders.

One of the charges they faced was, ironically, crimes against humanity.

Chief Prosecutor Robert Jackson described them thus: “Four great nations, stung with injury, stay the hand of vengeance and subject their captive enemies to the judgment of the law … one of the most important tributes that Power has ever paid to Reason.”