History of the term
The term "crimes against humanity" is potentially ambiguous because of the ambiguity of the word "humanity", which can mean humankind (all human beings collectively) or the value of humanness. The history of the term shows that the latter sense is intended.
Abolition of the slave trade
There were several bilateral treaties in 1814 that foreshadowed the multilateral treaty of Final Act of the Congress of Vienna (1815) that used wording expressing condemnation of the slave trade using moral language. For example, the Treaty of Paris (1814) between Britain and France included the wording "principles of natural justice"; and the British and United States plenipotentiaries stated in the Treaty of Ghent (1814) that the slave trade violated the "principles of humanity and justice".
The multilateral Declaration of the Powers, on the Abolition of the Slave Trade, of 8 February 1815 (Which also formed ACT, No. XV. of the Final Act of the Congress of Vienna of the same year) included in its first sentence the concept of the "principles of humanity and universal morality" as justification for ending a trade that was "odious in its continuance".
The term "crimes against humanity" was used by George Washington Williams in a pamphlet published in 1890 to describe the practices of Leopold II of Belgium's administration of the Congo Free State. In treaty law, the term originated in the Second Hague Convention of 1899 preamble and was expanded in the Fourth Hague Convention of 1907 preamble and their respective regulations, which were concerned with the codification of new rules of international humanitarian law. The preamble of the two Conventions referenced the “laws of humanity” as an expression of underlying inarticulated humanistic values. The term is part of what is known as the Martens Clause.
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". An excerpt from this joint statement reads:
In view of these new crimes of Ottoman Empire 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, as well as those of their agents who are implicated in such massacres.
At the conclusion of the war, an international war crimes commission recommended the creation of a tribunal to try "violations of the laws of humanity". However, the US representative objected to references to "law of humanity" as being imprecise and insufficiently developed at that time and the concept was not pursued.
Nuremberg Trials. Defendants in the dock. The main target of the prosecution was Hermann Göring
(at the left edge on the first row of benches), considered to be the most important surviving official in the Third Reich
In the aftermath of the World War II, the London Charter of the International Military Tribunal was the decree that set down the laws and procedures by which the post-War Nuremberg trials were to be conducted. The drafters of this document were faced with the problem of how to respond to the Holocaust and grave crimes committed by the Nazi regime. A traditional understanding of war crimes gave no provision for crimes committed by a power on its own citizens. Therefore, Article 6 of the Charter was drafted to include not only traditional war crimes and crimes against peace, but also Crimes Against Humanity, defined as
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 in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
This definition was notable in its subjugation to the other two categories of offences defined in Article 6 of the Charter. The jurisdictional limitation was explained by the American chief representative to the London Conference, Robert H. Jackson, who pointed out that it "has been a general principle from time immemorial that the internal affairs of another government are not ordinarily our business". Thus, "it is justifiable that we interfere or attempt to bring retribution to individuals or to states only because the concentration camps and the deportations were in pursuance of a common plan or enterprise of making an unjust war". In the Judgment of the International Military Tribunal for the Trial of German Major War Criminals it was stated:
The Tribunal therefore cannot make a general declaration that the acts before 1939 were crimes against humanity within the meaning of the Charter, but from the beginning of the war in 1939 war crimes were committed on a vast scale, which were also crimes against humanity; and insofar as the inhumane acts charged in the Indictment, and committed after the beginning of the war, did not constitute war crimes, they were all committed in execution of, or in connection with, the aggressive war, and therefore constituted crimes against humanity.
The defendants at the Tokyo International Tribunal. General Hideki Tojo
was one of the main defendants, and is in the centre of the middle row.
The International Military Tribunal for the Far East (IMTFE), also known as the Tokyo Trial, was convened to try the leaders of the Empire of Japan for three types of crimes: "Class A" (crimes against peace), "Class B" (war crimes), and "Class C" (crimes against humanity), committed during the Second World War.
The legal basis for the trial was established by the Charter of the International Military Tribunal for the Far East (CIMTFE) that was proclaimed on 19 January 1946. The tribunal convened on May 3, 1946, and was adjourned on November 12, 1948.
In the Tokyo Trial, Crimes against Humanity (Class C) was not applied for any suspect. Prosecutions related to the Nanking Massacre were categorised as infringements upon the Laws of War.
War crimes charges against more junior personnel were dealt with separately, in other cities throughout Far East Asia, such as the Nanjing War Crimes Tribunal and the Khabarovsk War Crimes Trials.
A panel of eleven judges presided over the IMTFE, one each from victorious Allied powers (United States, Republic of China, Soviet Union, United Kingdom, the Netherlands, Provisional Government of the French Republic, Australia, New Zealand, Canada, British India, and the Philippines).