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.
1 Charter of the United Nations, Art. 1, Para. 3 (1945), available at http://www.un.org/en/documents/charter/index.shtmlGoogle Scholar.
4 “Charter of the International Military Tribunal,” in Trial of the Major War Criminals Before the International Military Tribunal, vol. 1 (Nuremberg: International Military Tribunal, 1947), 11, available at http://avalon.law.yale.edu/imt/imtconst.asp#art6Google Scholar. Also see Control Council Law No. 10, Art. 2 (1945), available at http://avalon.law.yale.edu/imt/imt10.aspGoogle Scholar.
5 My use of the term “episode” should not be misconstrued as minimizing the moral horror of the events to which I refer. By “episode” I mean a particular set of related actions, however numerous, that in their totality constitute mass violence. Accordingly, I write of the Holocaust as one such episode and the Turkish massacre of Armenians as another, and so on.
7 Bassiouni, M. Cherif, Crimes Against Humanity in International Criminal Law 2d rev. ed. (The Hague: Kluwer Law International, 1999), 83Google Scholar.
8 “Charter of the International Military Tribunal,” Art. 6, Sec.(c), in Trial of the Major War Criminals, vol. 1 (Nuremberg: International Military Tribunal, 1947), 11Google Scholar. The first count in the indictment at Nuremberg charges the defendants with having “participated as leaders, organizers, instigators, or accomplices in the formulation or execution of a common plan or conspiracy to commit, or which involved the commission of, Crimes against Peace, War Crimes, and Crimes against Humanity.” Trial of the Major War Criminals, vol. 1, 29.
9 Marrus, Michael R., The Nuremberg War Crimes Trial, 1945–46. (Boston: Bedford Books, 1997), 187Google Scholar.
10 The Martens Clause was named after a Russian delegate to the Hague peace conference of 1899. It read: “Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience.” Convention with Respect to the Laws and Customs of War on Land (Hague, II) (1899), available at http://avalon.law.yale.edu/19th_century/hague02.aspGoogle Scholar. The clause reappears in subsequent international conventions and protocols.
11 Bassiouni, Crimes Against Humanity in International Criminal Law, 62.
12 Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, Violation of the Laws and Customs of War (Oxford: Clarendon Press, 1919), 19Google Scholar. It is noteworthy that the U.S. delegation to the Commission wrote a dissenting report in which it criticized the majority's invocation of the “laws of humanity” and drew a sharp distinction between the laws of war and the laws of humanity: “the laws and customs of war are a standard certain, to be found in books of authority and in the practice of nations … [but] the laws and principles of humanity vary with the individual, which, if for no other reason, should exclude them from consideration in a court of justice, especially one charged with the administration of criminal law.” Violation of the Laws and Customs of War, 64. In other words, the U.S. government insisted on a sharp separation between positive law and morality. In contrast, there was no such insistence by the government during and after World War II, due in part to the influence of Herbert Pell, U.S. delegate to an Allied commission on war crimes. Pell argued that “crimes committed against stateless persons or against any persons because of their race or religion [are] crimes against humanity.” Quoted in Marrus, The Nuremberg War Crimes Trial, 186.
13 Gary Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton: Princeton University Press), 125.
15 “Charter of the International Military Tribunal,” Art. 6, Para. (c), Trial of the Major War Criminals, vol. 1, 11.
17 Convention Respecting the Laws and Customs of War on Land (1907), Art. 46, available at http://avalon.law.yale.edu/20th_century/hague04.aspGoogle Scholar.
18 Fenrick, William J., “Should Crimes Against Humanity Replace War Crimes?” Columbia Journal of Transnational Law 37, 3 (1999): 772Google Scholar.
19 Mendes-Flohr, Paul and Reinharz, Jehuda, eds. The Jew in the Modern World: A Documentary History, 2d ed. (New York: Oxford University Press, 1995), 696Google Scholar. For accounts of Nazi mass murders and persecutions of groups other than Jews, see Berenbaum, Michael, ed., A Mosaic of Victims: Non-Jews Murdered and Persecuted by the Nazis (New York: New York University Press, 1990)Google Scholar.
20 International Law Commission, Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal (1950), available at http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/7_1_1950.pdfGoogle Scholar, and Draft Code of Crimes Against the Peace and Security of Mankind (1996), available at http://untreaty.un.org/ilc/texts/instruments/english/draft%20articles/7_4_1996.pdfGoogle Scholar.
21 Statute of the International Criminal Tribunal for Rwanda (2010), available at http://www.unictr.org/Portals/0/English%5CLegal%5CStatute%5C2010.pdfGoogle Scholar, and Updated Statute of the International Criminal Tribunal for the Former Yugoslavia (2009), available at http://www.icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdfGoogle Scholar.
22 All ICTR cases are available at http://www.unictr.org/Cases/tabid/204/Default.aspx, and all ICTY cases are available at http://www.icty.org/action/cases/4.
23 Rome Statute of the International Criminal Court (2002), available at http://untreaty.un.org/cod/icc/statute/english/rome_statute%28e%29.pdfGoogle Scholar.
24 deGuzman, Margaret M., “Crimes Against Humanity,” in Brown, Bartram S., ed., Research Handbook on International Criminal Law (Northampton, MA: Edgar Elgar Publishing, forthcoming, 10; available at http://ssrn.com/abstract=1745183Google Scholar. Other developments include the elimination of the war-nexus requirement and the addition of rape, torture, enforced disappearance and apartheid to the list of underlying criminal acts. Ibid., 9 and 18.
25 See Rome Statute of the International Criminal Court, Article 7, Para. 1. The knowledge requirement has been variously interpreted by international tribunals. See deGuzman, “Crimes Against Humanity,” p. 17.
26 Trial of the Major War Criminals, vol. 1, 43.
27 The Convention was adopted by the UN General Assembly in 1948 but did not enter in force until it was ratified by the requisite number of states, which occurred in 1951.
29 Lemkin, Raphael, “Genocide—A Modern Crime,” (1945), 1, available at http://www.preventgenocide.org/lemkin/freeworld1945.htmGoogle Scholar.
32 Convention on the Prevention and Punishment of the Crime of Genocide, Art. 2. The term “in part” is interpreted as meaning “in substantial part.”
33 Rome Statute of the International Criminal Court, Art. 9.
34 “Elements of Crimes,” (2002), Art. 6 (a), Element 4, available at http://www.icc-cpi.int/Menus/ICC/Legal+Texts+and+Tools/Google Scholar.
35 Jessburger, Florian, “The Definition and the Elements of the Crime of Genocide,” in Gaeta, Paola, ed., The UN Genocide Convention: A Commentary (Oxford: Oxford University Press, 2009), 95Google Scholar.
36 Prosecutor v. Krstić. (IT-98-33-A), Appeals Chamber (19 April 2004), Sec. 223, available at http://www.icty.org/x/cases/krstic/acjug/en/krs-aj040419e.pdfGoogle Scholar.
37 Kress, Claus, “The Crime of Genocide and Contextual Elements,” Journal of International Criminal Justice 7, vol. 2 (2009): 302Google Scholar.
38 Decision on the Prosecution's Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir (ICC-02/05-01/09), Pre-Trial Chamber I, (4 March 2009), Sec. 124, available at http://www.icc-cpi.int/iccdocs/doc/doc639096.pdfGoogle Scholar. Kress regards the “concrete threat” requirement laid down by the Court as excessively demanding. See “Crime of Genocide and Contextual Elements,” 306.
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.
40 Dautricourt, Joseph Y., “Crime Against Humanity: European Views on Its Conception and Its Future,” Journal of Criminal Law and Criminology 40, vol. 2 (1949): 173Google Scholar.
41 Ratner, Steven R., Abrams, Jason S., and Bischoff, James L., Accountability for Human Rights Atrocities in International Law 3rd ed. (New York: Oxford University Press, 2009), 27Google Scholar.
42 Evans, Gareth, The Responsibility to Protect (Washington D.C.: Brookings Institution Press, 2008), 20Google Scholar.
43 Fenrick, “Should Crimes Against Humanity Replace War Crimes,” 780.
44 Slye, Ronald C., “Apartheid as a Crime Against Humanity,” Michigan Journal of International Law 20, no. 2 (1999): 297Google Scholar.
46 It should also be noted that international courts have held that persons can be prosecuted and punished under charges of both genocide and crimes against humanity for the same act. If genocide were, legally speaking, a crime against humanity, a conviction for the more specific criminal violation, in this case, genocide, would cancel any liability for crimes against humanity. See Nersessian, David L., “Comparative Approaches to Punishing Hate: The Intersection of Genocide and Crimes Against Humanity,” Stanford Journal of International Law 43, no. 2 (2007): 251Google Scholar.
47 Among the critics of the legal definition's limitation of genocide to just four types of groups are Charny, Israel W., “Toward a Generic Definition of Genocide,” in Andreopoulos, George J., ed., Genocide: Conceptual and Historical Dimensions (Philadelphia: University of Pennsylvania Press, 1994), 64–94Google Scholar, and Shaw, Martin, What Is Genocide? (Malden, MA: Polity, 2007), 98–99Google Scholar.
49 I am not suggesting that a war-nexus is essential for a genocide but only that the scale and intensity of the violence is on the order that one characteristically finds in war but not outside of it.
50 Cf. Lee, Steven, “The Moral Distinctiveness of Genocide,” Journal of Political Philosophy 18, no. 3 (2010): 354–55Google Scholar. Lee holds that “a genocide is composed of a large number of genocidal harms” (355).
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.
53 El Kaïm-Sartre, Arlette, “A Summary of the Evidence and the Judgments: An Introduction,” in Sartre, Jean-Paul, On Genocide (Boston: Beacon Press, 1968), 50Google Scholar. In its judgment, “the Tribunal unanimously declared the United States guilty of the crime of genocide” (53). For the tribunal's rationale for its finding, see Jean-Paul Sartre, On Genocide, 57–85. Sartre was the executive president of the tribunal.
54 Frank Chalk, “Redefining Genocide,” in Andreopoulos ed., Genocide: Conceptual and Historical Dimensions, 50.
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.
57 Nersessian, “Comparative Approaches to Punishing Hate,” 263.
58 Lemkin, Raphael, “Genocide as a Crime under International Law,” American Journal of International Law 41, no. 1 (1947): 147Google Scholar.
59 Lemkin, “Genocide—A Modern Crime,” 9–10.
60 Convention on the Prevention and Punishment of the Crime of Genocide, Secretariat Draft, Article I, Sec. II, Para. 3. (1947), available at http://www.preventgenocide.org/law/convention/draftsGoogle Scholar.
62 Discrimination is sometimes divided into two main forms: direct (intentional) and indirect (structural). It is the direct form that I am using here as the model for understanding genocide. On the difference between direct and indirect discrimination, see Altman, Andrew, “Discrimination,” The Stanford Encyclopedia of Philosophy (Spring 2011 Edition), Zalta, Edward N. (ed.), forthcoming, ⟨http://plato.stanford.edu/archives/spr2011/entries/discrimination/⟩Google Scholar. My discrimination model of genocide shares much with the account offered in Lee, “The Moral Distinctiveness of Genocide.” However, I do not accept his explanation of which groups are “genocide-eligible,” (336) and I think that his account would be strengthened by including the threefold distinction that I draw among concepts of genocide and by more explicitly taking discrimination as a model for understanding genocide in its legal and moral senses.
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.
64 Critics of antidiscrimination law might balk at using the idea of discrimination in an account of genocide. However, most such critics aim at those antidiscrimination laws that apply to private persons and groups, rather than laws prohibiting discrimination by public entities. See, for example, Epstein, Richard, Forbidden Grounds (Cambridge: Harvard University Press, 1992)Google Scholar.
65 Convention on Genocide, Art. VI.
66 Arendt sometimes gives the credit to Francois de Menthon, French prosecutor at Nuremberg, who spoke at the trial of “crimes against human status (la condition humaine)” and their violation of both human dignity and “the permanence of the human being considered within the whole of humanity.” Trial of the Major War Criminals, vol. V, 406 and 408. However, I find de Menthon's remarks about “the whole of humanity” to be obscure.
67 Kohler, Lotte and Saner, Hans, eds., Hannah Arendt, Karl Jaspers, Correspondence (New York: Harcourt Brace Jovanovich, 1992), 420, 424Google Scholar.
69 Larry May, Genocide (Cambridge: Cambridge University Press, 201), 12.
70 Finkielkraut, Alain, Remembering in Vain (New York: Columbia University Press, 1982), 9Google Scholar.
72 Axelworthy, Lloyd, “Afterword: The Politics of Advancing International Justice,” in Macedo, Stephen, ed., Universal Jurisdiction (Philadelphia: University of Pennsylvania Press, 2004), 260Google Scholar.
73 Prosecutor v. Erdemovic (IT-96-22-T), Trial Chamber (29 November 1996), Sec. 28, available at http://www.icty.org/x/cases/erdemovic/tjug/en/erd-tsj961129e.pdfGoogle Scholar.
74 Court of Cassation, Judgment of 20 December 1985, quoted in Frulli, “Are Crimes Against Humanity More Serious Than War Crimes,” 347.
75 Gaitra, Raimond, “Refocusing Genocide: A Philosophical Responsibility,” in Roth, John K., ed., Genocide and Human Rights (New York: Palgrave MacMillan, 2005), 164Google Scholar.
76 Jones, Adam, Crimes Against Humanity: A Beginner's Guide (Oxford: Oneworld, 2008), 19Google Scholar.
79 Nersessian, “Comparative Approaches to Punishing Hate,” 259.
80 In addition to the discussions of crimes against humanity cited above, important contributions to the argument are made by Luban, David, “A Theory of Crimes Against Humanity,” Yale Journal of International Law 29, no. 1 (2004): 82–167Google Scholar, and Vernon, Richard, “What is Crime Against Humanity?” Journal of Political Philosophy 10, no. 3 (2002): 231–49CrossRefGoogle Scholar.
82 Arendt, Eichmann in Jerusalem, 268–69.
86 Vernon holds that the phrase “crime against humanity” “is a figure of speech.” See his “What is Crime Against Humanity?” 232. He does not make it clear, though, exactly how it is a figure of speech or why he thinks that it is a fitting figure of speech.
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.