CYIL vol. 12 (2021)

CYIL 12 (2021) THE NUREMBERG PRINCIPLES AS THE BASIS OF INTERNATIONAL CRIMINAL Law to be held since not all states are parties to all treaties concerning e.g. prohibition of certain weapons; nevertheless, they at least adopted art. 8 para. 2 letter xx) allowing the adoption of completing amendments. 105 Finally, what is very important in relation to war crimes within the Rome Statute as a milestone in the development of international criminal law, the jurisdiction of the Court is limited by a qualitative and quantitative factor expressed in art. 8 when requiring a connection with a plan or large scale commission of war crimes, although only in particular when there is such a connection. 106 Third, crimes against humanity, are crimes under international law that have gone through probably the biggest development. Crimes against humanity was a term related to law of humanity and dictates of public conscience 107 that was used by the Charter, and although it allowed the prosecution of perpetrators of crimes against humanity that had been committed even before the war and for that reason the common law legal institute of common plan and conspiracy was adopted, the Tribunal actually only convicted defendants for those crimes against humanity that had been committed during the war. 108 Nevertheless, the connection with war was also upheld by the Commission when formulating the Nuremberg Principles and in the ICTY Statute. It was the later Commission work on the Code of Crimes against the Peace and Security of Mankind where the systematic and mass violation term was introduced, 109 and, in a legally binding way, adopted in the ICTR Statute. 110 The Rome Statute confirmed this approach in which the widespread and systematic attack of organisational character is required to achieve the threshold of a crime against humanity. The requirement of an attack against any civilian population has been present in all the documents mentioned here, as it is in the draft convention on the prevention and punishment of crimes against humanity that was adopted by the Commission in 2017 to fill the gap in the international legal framework since crimes against humanity were the only core crime under international law that had only been criminalized by international customary law. 111 Finally, the crime that is expressly included in the Statute but not even mentioned in the Charter: the crime of genocide. Genocide as a crime under international law was first defined in the Convention on the Prevention and Punishment of the Crime of Genocide that was adopted by the UN General Assembly on 9 December 1948 as General Assembly Resolution 260 and entered into force on 12 January 1951. This definition was firstly analysed by judicial bodies in the Yugoslavian and Rwandan context. Although there were various interpretative efforts by ad hoc tribunals, 112 the essence of this crime was not challenged 105 Provided they are of a nature to cause superfluous injury or unnecessary suffering or are inherently indiscriminate in violation of the international law of armed conflict. 106 The Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such (italics added) crimes. 107 See MERON, T., The Martens Clause, Principles of Humanity, and Dictates of Public Conscience, in American 109 Not already in the 1954 Draft but during the ILC meeting in 1991, although it was presented in relation to systematic or mass violations of human rights. See Report of the International Law Commission on the work of its forty-third session (29 April–19 July 1991), A/46/10, p. 103. 110 The ICTR Statute requires also a discriminatory motive. 111 First report on crimes against humanity by Sean D. Murphy, Special Rapporteur, ILC, 67th session, A/ CN.4/680, para. 10. 112 ICTR, The Prosecutor v. Akayesu , Judgment, 2 September 1998, ICTR-96-4-T. Journal of International Law , 2000, vol. 94, p. 78. 108 Nuremberg Judgment, para. 468, see supra note 2.

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