Where is R2P grounded in international law? Anne-Marie Judson A ...

crimes against humanity, the acts relied on before the outbreak of war must have been in
execution of, or in connection with, any crime within the jurisdiction of the Tribunal. The
Tribunal is of the opinion that revolting and horrible as many of these crimes were, it has not
been satisfactorily proved that they were done in execution of, or in connection with, any such
crime. 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 Charter of the International Military Tribunal for the Far East (IMTFE) also
known as the Tokyo Trials follows closely the description in the Nuremberg Charter.
The Tribunal added, “Leaders, organizers, instigators and accomplices participating
in the formulation or execution of a common plan or conspiracy to commit any of the
foregoing crimes are responsible for all acts performed by any person in execution of
such plan.” This included “ (…), murder, extermination, enslavement, deportation,
and other inhumane acts committed against any civilian population, before or during
the war, or persecutions on political or racial grounds in execution of or in connection
with any crime within the jurisdiction of the Tribunal”. 306
This view includes times of peace as well as war as a category of crimes against
humanity and they also refer to the non-applicability rule of domestic law in relation
to the violations that have taken place. 307 However in both of these cases they failed to
prosecute those responsible under crimes against humanity and under the guise of
peace. They were only able to prosecute when they used the term ‘in addition’ to war
crimes, not as distinct from them. However this leaves crimes against humanity in a
rather precarious position in regards to their legality in international law. For
example, in the report of the Secretary General on the legalities of setting up the
International Tribunal for the Crimes committed in former Yugoslavia states that the
“application principle nullum crimen sine lege requires that the international tribunal
306 The Charter of the International Military Tribunal for the Far East, article ii, jurisdiction and
general provisions, found on http://www.alhaq.org/etemplate.php?id=81 last accessed on 29 th
September 2011
307 Nuremberg Trial proceedings, 8 th August 1945, can be found on line at
http://avalon.law.yale.edu/imt/imtconst.asp last accessed on 29 th September 2011
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