The Challenge of Human Rights
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The Challenge of Human Rights

Past, Present and Future

Edited by David Keane and Yvonne McDermott

The Challenge of Human Rights takes a detailed and exploratory approach to topics across the field of human rights, and seeks to map a path for future research and policy development.
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Chapter 8: Forging a Convention for Crimes Against Humanity

Leila Nadya Sadat


Leila Nadya Sadat During the trials of the German and Japanese leaders by the Allies following World War II, crimes against humanity emerged as an independent basis of individual criminal liability in international law. Although the so-called ‘Martens Clause’ of the 1907 Hague Convention Respecting the Laws and Customs of War on Land referenced the ‘laws of humanity, and . . . the dictates of the public conscience’1 as protections available under the law of nations to human beings caught in the ravages of war, this language was too uncertain to provide a clear basis for either state responsibility or criminal liability under international law.2 Subsequently, crimes against humanity were specifically included in the Charters of the International Military Tribunals at Nuremberg3 and Tokyo4 to address depredations directed by the State against civilian populations – including those within their own borders. Indeed it was in many ways the most revolutionary of the charges upon which the accused were convicted, given that its foundations in international law were so fragile.5 Following the trials, the Nuremberg Principles embodied in the IMT Charter and Judgment were adopted by the General Assembly in 1946,6 and codified by the Convention (IV) Respecting the Laws and Customs of War by Land [1910] UKTS 9, annex, preamble. 2 See, for example, Leila Nadya Sadat, ‘The Interpretation of the Nuremberg Principles by the French Court of Cassation: From Touvier to Barbie and Back Again’ (1994) 32 Columbia J. Transnat’l L. 296. 3 Agreement for the Prosecution and Punishment of Major War...

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