GENOCIDE AND CRIMES AGAINST HUMANITY: DISPELLING THE CONCEPTUAL FOG
Published online by Cambridge University Press: 14 December 2011
Genocide and crimes against humanity are among the core crimes of international law, but they also carry great moral resonance due to their indissoluble link to the atrocities of the Nazi regime and to other egregious episodes of mass violence. However, the concepts of genocide and crimes against humanity are not well understood, even by the international lawyers and jurists who are most concerned with them. A conceptual fog hovers around the discussion of these two categories of crime. In this paper, I draw a number of distinctions aimed at clarifying the concepts. I distinguish three concepts of genocide, two legal and one moral, and two concepts of crimes against humanity, a legal and a moral one. I criticize the current legal concept of genocide and, using the idea of discrimination, propose a model for developing a more adequate legal concept and for better understanding the moral concept. I also criticize the moral concept of crimes against humanity, which many thinkers have conflated with the legal concept of such crimes.
- Research Article
- Social Philosophy and Policy , Volume 29 , Issue 1 , January 2012 , pp. 280 - 308
- Copyright © Social Philosophy and Policy Foundation 2012
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39 In the context of domestic law, Ronald Dworkin famously argues that virtually all questions of law have a legally correct answer, even when there is substantial disagreement among the legal authorities on what the answer is. I bracket the question of whether his right-answer thesis plausibly applies to international criminal law. See Dworkin, Ronald, Taking Rights Seriously (Cambridge: Harvard University Press, 1978)Google Scholar.
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51 The existing intent requirement is widely accepted, but it is problematic, beyond its limitation of genocide-eligible groups to four. The deeper problem is that it bears the marks of Lemkin's group-based model of genocide, a model which I reject in Section IV below. The model that I defend, a “discrimination model,” reformulates the intent requirement, but for the time being, I will use the existing formulation. The argument I give here goes through on either formulation.
52 Cf. Lee, “The Moral Distinctiveness of Genocide,” 355.
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55 One can suppose that, in the hypothetical case described in the text, the only one harmed by the attack is the one person who was killed.
56 I accept the idea that there is an analogy between hate crimes and crimes of genocide, as my discrimination model of genocide will make clear, but there are also differences that will become clear. Also see Lee, “The Moral Distinctiveness of Genocide,” 346.
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63 For there to be a genocide, someone must have the intent described in (b), and the intent must guide the mass violence referred to in (c) and (d). However, it is not required that each agent of the violence, or even most of them, have this discriminatory intent; only the leaders might have it.
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87 I do not mean to take a stand here on whether or not the legal category of crimes against humanity was retroactively applied to Nazi atrocities. The atrocities fit the legal definition of such crimes, even assuming that the legal category needed to be applied retroactively.
88 Larry May holds that the Holocaust is a paradigmatic case of the concept of genocide but that understanding the concept requires us to take account of other examples. See his Genocide, 80–81. If May means that the Holocaust is an incontestable case of the legal and moral concepts of genocide, then I agree with him. But if he means that the Holocaust is a good model for understanding those two concepts of genocide, then I disagree: it is not a good model for either concept.