4
point: general international law must into account, at the same time as treaty-based
international law.
10.
Herein lies an element that I believe to be of fundamental importance: acts
that are considered genocide or grave violations of international humanitarian law
under different international treaties and conventions (including the American
Convention) were already prohibited by general international law, even before the
entry into force of those treaties or conventions. The universal recognition of the
above-mentioned principle of humanity can be mentioned in this regard.14
11.
According to the abiding message of a great philosophical jurist, “even if the
laws themselves were not in force, at least their content was in force” before the
atrocities of the twentieth century were committed in different latitudes: “in other
words,” continued G. Radbruch:
“the content of those laws responds to a law which is above the law (...).
From which we see that, following a century of juridical positivism, the idea of a
law which is above the law resuscitates (...). The way towards the solution of these
problems is implicit in the name given to the philosophy of law in the ancient universities
and which, after many years of disuse, has re-emerged today in the name and concept
of natural law.”15
12.
We should not forget that in the Case of J.-P. Akayesu (Judgment of
September 2, 1998), the ad hoc International Tribunal for Rwanda considered that
the concept of crimes against humanity had “already been recognized a long time
before” the Nuremberg trials (1945-1946) (para. 565). The Martens clause
contributed to this (cf. infra). Indeed, expressions similar to the one relating to that
crime, invoking humanity as a victim, “appear much earlier in human history (para.
566). The same International Tribunal for Rwanda indicated in the Case of J.
Kambanda (Judgment of September 4, 1998) that, “in all periods of history,
genocide has inflicted massive losses on humanity,” and its victims are both those
massacred and humanity itself (in both acts of genocide and in crimes against
humanity) (paras. 15-16).16
13.
It is evident that the substance of the condemnation of grave violations of
human rights, acts of genocide, crimes against humanity, and other atrocities, was
already engraved on the human conscience a long time before they were typified or
codified at the international level, either in the 1948 Convention on the Prevention
and Punishment of Genocide, or in other human rights or international humanitarian
law treaties. Nowadays, international crimes are condemned by both general and
treaty-based international law. This development has been fostered by the universal
juridical conscience, which, in my opinion, is the ultimate material source of all law.
14
In this regard, it has already been indicated that: "it is increasingly believed that the role of
international law is to ensure a minimum of guarantees and of humanity for all, whether in time of peace
or in time of war"; J. Pictet, The Principles of International Humanitarian Law, Geneva, ICRC, 1966, pp.
29-30.
15
G. Radbruch, Introducción a la Filosofía del Derecho [Vorschule der Rechtsphilosophie], 3a. ed. in
Spanish, México, Fondo de Cultura Económica, 1965, p. 180.
16
The same considerations can be found in the judgments of the same Court in the Case of J.P.
Akayesu cited above, and also in the Case of O. Serushago (Judgment of February 2, 1999, para. 15).
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