War crimes, crimes against humanity and the death penalty.

• Author: Schabas, William A.
• Position: Conceptualizing Violence: Present and Future Developments in International Law

1. INTRODUCTION

   There can be no more dramatic evidence of the progress and evolution of human rights norms than in the fact that the first international war crimes tribunals, created in the aftermath of the Second World War, made widespread use of the death penalty and that their successors, created by the Security Council in 1993 and 1994, prohibit it. Over the forty-nine years that transpired between the trials at Nuremberg and those at The Hague and Arusha, States throughout Europe, Africa, Asia and the Americas gradually limited the scope of the death penalty and, ultimately, abolished it in peacetime and wartime. In mid-1995, the Secretary-General of the United Nations concluded, in his quinquennial report on capital punishment, that "there has been a considerable shift towards the abolition of the death penalty both de jure and in practice."(1) In the same year, Amnesty International reported that the death penalty had been abolished, either de jure or de facto, in a majority of States.(2)

   This evolution in criminal law practice was accompanied by developments in human rights norms. Article 2 of the European Convention on Human Rights, the first binding human rights norm dealing with the death penalty, expressly authorized capital punishment as an unqualified exception to the right to life.(3) Subsequent texts, however, limited its scope by excluding certain categories of individuals from the death penalty, prescribing that it could only be imposed for the most serious crimes and insisting on the most rigorous procedural safeguards.(4) By the 1970s, full-fledged abolitionist norms, in the form of protocols to the conventions, were already being drafted and adopted by the relevant international organizations over the course of the next decade.(5) As of May 1993, when the Security Council ruled that the International Criminal Tribunal for Yugoslavia would not impose the death penalty, these instruments had rallied nearly fifty States.

   The general subject of the abolition of the death penalty in international law has been the subject of other works.(6) This Article seeks only to examine the issue of the death penalty in relation to what are undoubtedly the most serious crimes--i.e., international crimes that are broadly grouped within the rubrics of war crimes and crimes against humanity. Yet against this background, valuable conclusions about the spread of universal human rights norms and their evolution shall be drawn.

2. POST-SECOND WORLD WAR TRIALS

   When the argument nullum crimen nulla poena sine lege was invoked by the Nazi defendants, the Nuremberg Tribunal replied that the infractions charged had been defined in such instruments as the Regulations annexed to the fourth Hague Convention of 1907.(7) Even if these instruments were not necessarily applicable to the conflict in a technical legal sense, they had achieved the status of customary law. However, although the Hague Regulations set out many norms comprising the laws and customs of war, they did not establish a scale of sanctions or set a maximum punishment. Thus, they respect the norm of nullum crimen but fall short when it comes to nulla poena. There was some authority for the notion that international law had already recognized the death penalty as a maximum sentence in the case of war crimes, and therefore no breach of the rule prohibiting retroactive punishments had occurred.(8) It was said at the time that "[i]nternational law lays down that a war criminal may be punished with death whatever crime he may have committed."(9) The 1940 United States Army Manual Rules of Land Warfare declared that "[a]ll war crimes are subject to the death penalty, although a lesser penalty may be imposed."(10) A post-war Norwegian court, in answering a defendant's plea that the death penalty did not apply to the offense charged because it had been abolished for such a crime under domestic law, found that violations of the laws and customs of war had always been punished by death under international law.(11) Nevertheless, in several of the war crimes trials held subsequent to the First World War, the heaviest sentence imposed, pursuant to Articles 228-230 of the Versailles Treaty,(12) was four years' imprisonment and most defendants were let off with little more than tune served in preventive detention.(13)

   The post-Second World War tribunals sought to judge offenders not only for war crimes but also for less well-established concepts such as crimes against peace and crimes against humanity.(14) Unlike the case for war crimes, there was no authority to suggest that recognized sanctions had already been established by international law, even though most of the component or predicate offenses comprising the category of crimes against humanity were punishable--generally with the death penalty--in most, if not all, domestic legal systems. In August 1945, crimes against humanity were first set out in the Charter of the International Military Tribunal, where they were 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.(15) The Tribunal also had subject matter jurisdiction for crimes against peace.(16) Controversial at the time, it has remained so ever since. There was no suggestion that the ad hoc tribunals for Yugoslavia and Rwanda, which have subject matter jurisdiction for war crimes and crimes against humanity, also have jurisdiction in the case of crimes against peace.(17) Recent attempts to establish an international criminal tribunal, while relatively unanimous on the issue of war crimes and crimes against humanity, have stumbled on whether to punish "aggression," an offense that overlaps with its predecessor, crimes against peace.(18)

   The International Military Tribunal at Nuremberg was authorized to impose upon an individual convicted of crimes against humanity the sanction of "death or such other punishment as shall be determined by it to be just."(19) In the Trial of the Major War Criminals, three of the accused were acquitted, while seven were sentenced to prison terms, and eleven were sentenced to death by hanging.(20) The four judges were deadlocked in the case of Albert Speer, but a last-minute change of heart by Francis Biddle saved his life; he was sentenced to twenty years' imprisonment.(21) Julius Streicher was found guilty of one count of crimes against humanity for which he was sentenced to death and executed;(22) all others condemned were found guilty of war crimes as well as crimes against humanity.(23) No defendant at Nuremberg was sentenced to death for crimes against peace.(24) Hess, who was found guilty of crimes against peace but acquitted of war crimes and crimes against humanity, was sentenced to life imprisonment.(25) The executions were carried out, within weeks of the conviction, in the Nuremberg prison gymnasium by an American hangman whose technical mastery was criticized, and which undoubtedly brought about superfluous suffering to the condemned criminals.(26) Their heads struck the platform as the scaffold's trapdoor opened, and rather than breaking their necks, they probably "died of slow strangulation."(27)

   The sentencing provisions of the Charter of the International Military Tribunal for the Far East (the Tokyo Tribunal) were similar to those adopted for Nuremberg.(28) Six of the accused were sentenced to death, while sixteen received life imprisonment.(29) Mamoru Shigemitsu, in whose case mitigating factors were found, received a seven-year sentence from the date of arraignment, while Shigenori Togo was sentenced to twenty years.(30) Judge Delfin Naranilla drafted a concurring opinion charging that "a few only" of the sentences imposed, which he did not specify, were "too lenient, not exemplary and deterrent, and not commensurate with the gravity of the offence or offenses committed."(31) The President of the Tribunal penned a separate opinion, in which he examined the sentencing practice at Nuremberg and found it to be equivocal on the issue of crimes against peace.(32) He concluded that "no Japanese accused should be sentenced to death for conspiring to wage, or planning and preparing, or initiating, or waging aggressive war."(33) AB for those convicted of war crimes and crimes against humanity, he seemed to favor life imprisonment:

   It may well be that the punishment of imprisonment for life under

   sustained conditions of hardship in an isolated place or places outside

   Japan--the usual conditions in such cases--would be a greater

   deterrent to men like the accused than the speedy termination of

   existence on the scaffold or before a firing squad.(34) Judge Roling, although clearly not opposed to the death penalty in principle, challenged its use in cases where the accused were found guilty of crimes against peace, which he believed should not be considered a capital crime.(35)

   Subsequent prosecutions in post-war Germany by allied military commissions and tribunals, as well as by German courts, were held pursuant to Control Council Law No. 10. Its definition of crimes against humanity was slightly different than that of the Charter of the Nuremberg Tribunal, dispensing with the nexus with war: "Atrocities and offenses, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated."(36) As in the Charter of the International Military Tribunal, Control Council Law No. 10 provided that war crimes, crimes against peace and crimes against humanity...