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Why are war crimes supposed to be presented in front of courts of “civilized people”, a term deeply connected to the horrors of colonialism? Gilad Ben-Nun explores the history of this concept.
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On 23 April 2020 at the regional court of Koblenz, the trial of two Syrian defendants, charged with mass murder, torture, and crimes against humanity commenced. Seeing as the alleged crimes were neither committed by German nationals nor executed upon German soil, the Rhineland-Pfalz prosecution team was all too conscious of the need to hand down a "water-tight" indictment, given its reliance on the legally-delicate principle of universal criminal jurisdiction. Being the first trial of its kind worldwide, the prosecution’s indictment focuses on crimes allegedly committed in breach of the 1949 Geneva Conventions’ Article 3, which applies "at any time and in any place whatsoever". The charges include fifty-eight accounts of murder, several dozen cases of torture, rape, and humiliating and degrading treatment. An additional charge included in the indictment, concerns the fact that the defendants ordered the killing of their victims without affording them the possibility to appear before: "a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized people" (Common Article 3 para. d).

To the average international lawyer, this reference to "civilized people" is anything but new. It appears in the so-called Martens Clause of the 1899 Hague Conventions, which referred to "civilized peoples". In 1919 it entered the statue of the Permanent Court of International Justice (and from there into its successor’s statute – the ICJ). It was crucial to the delicate "Justice Case" where Nazi judges were tried in Nuremberg for breaching the "general principles of law accepted by all civilized nations" in 1947. It entered the Geneva Conventions’ Common Article 3 in 1949, and made its way into the statute of the International Criminal Tribunal for Rwanda (ICTR) in 1994. This so-called "standard of civilization" is part and parcel of international humanitarian law for well over a century now. One would be hard pressed to imagine the history of international criminal law post World War II without it.

The incontrovertible thematic "red thread" which runs through all these references to "civilized peoples" and "civilized nations" concerns the specific conjuncture between "civilization" and the availability of standardized law courts which render their judgments according to equitable judicial principles. To international law, being "civilized" seems to rest upon the conditio sine qua non of pertaining to have "regularly constituted" law courts (à la Common Art. 3).

But where exactly did this association between being "civilized" and having courts originate?

Historians are viscerally suspicious of references towards "civilization". And rightfully so. Too much of the pain and suffering wrought upon the world by western cultures during four centuries of colonialism from the 16th to the 20th centuries, was argumentatively premised upon Kipling’s "burden of the white man" under the guise of his mission civilatrice. From Pizzaro’s 16th century slaughter of native Americans, through two hundred years of the Atlantic slave trade, up until the British "gulags" in Kenya during the 1950s, to claim that western "civilizing" practices did more harm than good to the world’s colonized – would probably be an understatement. Nevertheless, terms also have their histories. And when "jumping" from one academic discipline to another, it might be advisable to examine such histories, before one prejudicially scorns a certain term. This methodological "rule of thumb" also applies to contentious terms such as "civilization".

As the bedrock of all International Humanitarian law, the Geneva Conventions’ Common Article 3, with its associative linkage between courts and "civilized peoples" has by now attained the status of jus cogens. This means that it is an ultimate law, which binds all humankind. It is non-derogable, final, and peremptory (i.e. open neither to appeal nor challenge). In short: it is universal. And this is where Common Article 3’s conjuncture between having courts and being "civilized" comes into play: in the idea that some basic all-binding legal tenets which are shared by all humans indeed do exist. This idea is very old.

Towards late antiquity (1st – 3rd centuries A.D.) at least three of the world’s ancient civilizations (the Stoics, Chinese Confucianism, and Judaism) began to toy with the idea of universal law, or as it was known under different Latin notions as jus cogens, suprema lex, or consultum ultimum. One of the most succinct articulations of what might come under jus cogens’ purview, was articulated by the Jewish sages of the Talmud during the 1st Century. These were called the seven laws of Noah. According to the Talmud, they bound all of that primordial father’s offspring, that is - all humanity:

"seven laws were instructed to the sons of Noah: Courts of law, not to curse god, not to worship idols, not to commit incest, not to murder, not to steal, and not to eat the flesh of an animal while it is living" (Talmud Tractate Sanhedrin 56a).

Noteworthy is the fact, that of the seven laws, six are proscriptions ("Verbote") yet one is a duty ("Pflicht"). To the Talmudic sages, the only affirmative duty which bound all humans was the performative establishment and maintenance of courts of law. Maimonides, Jewish law’s 11th century religious supreme authority and its foremost legal codifier explained that "the sons of Noah are bound by the duty to instil judges and arbitration-magistrates ( דיינים ) in every region and in every town across the earth". He also stressed that:

"Any person who takes to abide by the seven laws…he therefore is a righteous amongst the gentiles (מחסידי אומות העולם) and merits salvation in the afterword…yet he who performs the seven laws out of logical compulsion is not merely a righteous amongst the gentiles – but is rather of their wisest" (Maimonides, Mishne Torah, Book of Judges, laws of kings and wars, 8 / 11).

It is noteworthy that to this day, the term applied by the Israeli authorities and its holocaust memorial Yad Vashem to non-Jews who put themselves in harm’s way so as to save Jewish lives during the Nazi holocaust, reverts to this very passage and uses this very term: righteous amongst the gentiles -- חסידי אומות העולם.

Maimonides’ appeal to universality, via the all-encompassing requirement for the maintenance of courts of law, was certainly not new to Christianity. Several of the "Noahide laws" already appeared in the New Testament’s early texts such as The Acts of the Apostles (Ch. 15). Nor was it new to Islam, which as early as the 9th century under Shafi’s Rizala demanded permanent access of all Muslim societies (and any non-Muslims residing there amongst) to standing courts of law. From Thomas Aquinas, through Bartolomé de Las Casas, and from Spinoza to Montesquieu, the establishment and maintenance of courts of law had thus become a signal trait of any society’s standard of civilization. This was long before the term "civilization" had acquired its negative association with the vile practices of occidental colonialism.

Surprisingly, at the heart of this nexus between civility and the existence of courts lies not the punishment of the offenders but rather – their protection. Asked in 1949, during the Geneva Conventions’ Travaux préparatoires why he insisted upon having sentences served by "a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized people", the delegate of the Holy See stressed that this was the only true and long-standing guarantee "against the lynching of alleged war criminals". The US delegate in that session simply asserted that his country was extending the principle already laid down by Justice Jackson, the US prosecutor in Nuremberg, who back in 1946 demanded that the Allies "stay their hand of vengeance". In this, both delegates reiterated almost verbatim Maimonides’ logic as to why courts of law were so indispensable to humanity. For in their absence, in instances such as the captivity, rape and violation of Dinah (Genesis 34), the retribution executed by her brothers Levi and Simon as they lynched their sister’s violator Hamor of Shechem (and his entire clan) could not be condemned. Absent courts of law, "Homo homini lupus est" said Hobbes. Personal vendetta is the primitive and naked logical opponent of civilly-socialized judicial due process. In Nuremberg in 1946, Alfred Rosenberg was found guilty and was hanged. Yet Hjalmar Schacht was acquitted and set free.

During the 1980s, it was Dan Diner who first spoke of Zivilizationsbruch: the condition whereby the holocaust and war-crimes committed during World War II signalled a fracture and dramatic cesura in mankind’s general historical progression. That today, of all places, it is in Germany’s courts of law that foreign war criminals stand trial for the vicious crimes against humanity which they might have committed, and that for all degrees and measures – not a single voice has come forward to question the integrity, impartiality or objectivity of the German court’s criminal process, denotes the rather remarkable reinstatement of "civilization" in the exact same place where it came crashing down some eight decades earlier.


Gilad Ben-Nun is lead researcher at ReCentGlobe’s EU-awarded PREVEX Consortium project. His most recent monograph is The 4th Geneva Convention for Civilians: The History of International Humanitarian Law (London: Bloomsbury Books 2020).