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

should apply rules of international humanitarian law which is beyond doubt part of
customary law, so that problems of adherence of some but not all states to specific
conventions does not arise. This would appear to be particularly important in the
context of an international tribunal prosecuting persons responsible for serious
violations of international humanitarian law”.
He includes the Nuremberg Tribunal Charter, the Hague Convention (1907) and the
Geneva Conventions (1949), (1977) as well as the Genocide Convention (1947) as part
of humanitarian law. He does not consider crimes against humanity as being distinct
from these and therefore does not choose to set up the tribunal under this jurisdiction
or description. Instead he adds that crimes against humanity were first recognized in
the Charter and Judgment of the Nuremberg tribunal as well as law No 10 of the
Control Council for Germany. He does not outline that crimes against humanity in
these cases were unsuccessful in the prosecution of individuals. Instead he says that
crimes against humanity are aimed at any civilian population and are prohibited
regardless of whether they are committed in an “armed conflict international or
internal in character”. Article 5 clarifies this when it restricts the prosecution of crimes
against humanity to “crimes when committed in armed conflict”, and no mention is
given to times of peace. 308
Security Council Resolutions 764 (1992), 771 (1992) and 780 (1992) showed that the
matters constituted “widespread violations of international humanitarian law
occurring within the territory of the former Yugoslavia, including (…) mass killings
and the continuation of the practice of ethnic cleansing”. 309 The Secretary-General
said that the Security Council had “determined that the situation posed by continuing
reports of widespread violations of international humanitarian law (…) constitutes a
threat to international peace and security”. Once again there was no mention of
crimes against humanity as being an international law that could constitute
prosecutorial procedures on the people or the state, on its own.
In a similar vein the International Criminal Tribunal for Rwanda was set up under
the Genocide Convention (1947). It was also established under Resolution 935 (1994).
308 United Nations. (1993). Report of the Secretary-General pursuant to paragraph 2 of the
Security Council Resolution 808. United Nations . (SC/25704)
309 See articles 10 and 25
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