The Nuremberg Charter and the post-war passage of an international convention on genocide laid the foundation for a more robust international law of war crimes. The Nuremberg laws may have been passed after the nazi crimes they were meant to address; but no ex post facto problem exists in applying them to deeds done since their passage.
In the last fifty years, the world has witnessed many horrendous massacres of civilian populations, in Cambodia, Bangladesh, and elsewhere, for which the political will was completely lacking to mount a war crimes tribunal. Now for some reason, the international climate supports the creation of the first two war crimes tribunals since Nuremberg, those for Rwanda and Bosnia. Since no tribunal of general jurisdiction exists for the prosecution of such crimes, each of these courts was created by a special resolution of the U.N. Security Council. However, an attempt is being made right now in the U.N. to go one step further and create a permanent war crimes tribunal.
The creation of the two courts raise some interesting legal issues. The Rwandan murders took place in the course of a completely internal discord; how have the laws evolved since World War II, when the regrettable ruling of international law was that a nation had the perfect right to murder its own citizens? The Bosnian massacres took place in the course of an ambiguous conflict; in the period before the separation of Yugoslavia into separate states, and the period after the Yugoslav army pulled out of the war, are we not dealing with a similar problem of an internal civil war? To the extent that we are trying to prosecute actions of the Bosnian Serbs, are we trying to force laws applicable to the behavior of states to accomodate the behavior of insurgent factions? Similarly, can we prove that the behavior of the Serbs was in pursuit of an official program aimed at the extinction of an ethnic population, as in Rwanda?
Post-Nuremberg treaty law has made tremendous progress but is still rife with ambiguities. The Hague and Geneva conventions, which predate World War II, only dealt with the treatment of enemy populations during an international war. The jurisdiction of the Bosnian and Rwandan tribunals is based largely on two documents that are intended to address the treatment of internal civilian populations, the Genocide Convention and the Nuremberg Charter.
A significant issue raised is whether a massacre need rise to the level of an official program of extinction carried out by a state before it offends international law. The latter is founded on the jus gentium, the law of peoples, which holds that certain acts are so offensive to our humanity that anyone committing them makes himself an enemy of humanity. From this perspective, it would seem that the spectacle of thousands of bodies lying in a ditch, in a surrounding in which effective national law does not exist to redress the murders or protect those who have not yet become victims, is enough to compel intervention. There are many other possible crimes against humanity than genocide. The necessity of proving state action, or a planned program of extinction, seem to do more to raise legalistic defenses than to promote our ability to protect human rights. It is hard to see why the international community should only intervene if 100,000 people have been killed because of their race, and not if it can be argued that the same 100,000 were killed to achieve some other purpose.
The London International Assembly which wrote the Nuremberg charter intended to set a minimum standard for mankind the observance of which would be essential for the survival of the human species. Jean Pictet, a leading commentator on Nuremberg and international war crimes law, spoke of "the rudiments of humanity; a minimum applicable at all times, in all places and circumstances....part of the customs of peoples from which none may disengage himself." In other words, the definition of our humanity eliminates all ethical relativism on the issue of mass murder. And we must act on that understanding, in order to be human.