Crimes Against Humanity

Birth of a concept

Norman Geras

• Publisher: Manchester University Press
• Year: 2013
• ISBN:
  9781847797711
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: International Relations
• Index: Politics & International Relations

This book tells the story of the emergence of the concept of crimes against humanity. It examines its origins, the ethical assumptions underpinning it, its legal and philosophical boundaries, and some of the controversies connected with it. A brief historical introduction is followed by an exploration of the various meanings of the term 'crimes against humanity' that have been suggested; a definition is proposed linking it to the idea of basic human rights. The book looks at some problems with the boundaries of the concept, the threshold for its proper application and the related issue of humanitarian intervention. It concludes with a discussion of the prospects for the further development of crimes-against-humanity law.The work serves as a clear and compact introduction for students of politics, philosophy and law, as well as for the general reading public.

1

Origins and development

It is an important principle of the rule of law that there is no crime except under law, that is, except when an action is in breach of some obligatory norm passed or recognized as being one by the body or bodies with proper authority so to pass or recognize it. Most generally this has meant that crimes are crimes under one or another system of municipal law and, since the origin of the modern state, that the definition and the punishment of crime have been seen as being the business of the sovereign authority of the state. It is not a new idea, all the same, that there exist higher, or prior, normative principles limiting the scope of what any sovereign polity may itself lay down or do, principles which even it, and its agents and functionaries, can be in breach of. As Geoffrey Best has written, ‘In however unspecific a form, the notion that rulers could fall below a bearable standard in the handling of their subjects was as ancient as the notion that rulers who became unbearable forfeited the right to remain in charge.’¹

In the history of political thought, conceptions of natural law and natural right constitute an obvious source here, pointing as they do beyond local specificity and variety towards general principles valid for all humankind. In the textbooks of international law as well, from Grotius and Vattel onwards, the view has been widely supported that there are limits to what a sovereign authority may legitimately impose within its own domain, so underwriting an option of humanitarian intervention there, by other sovereign powers, in exceptional circumstances. These circumstances have been variously formulated: ‘[i]f a tyrant … practises atrocities towards his subjects, which no just man can approve’ (Grotius); ‘if tyranny becomes so unbearable as to cause the Nation to rise’ (Vattel); in pursuit of a ‘higher policy of justice and humanity’ (Harcourt); ‘in behalf of a grievously oppressed people, which has never amalgamated with its oppressors as one nation’ (Creasy); ‘when a state … becomes guilty of a “gross violation” of the rights of humanity’ (Engelhardt); ‘where the general interests of humanity are infringed by the excesses of a barbarous and despotic government’ (Wheaton).² Speaking to the notion of crimes against humanity during the trial of the major Nazi war criminals at Nuremberg, the Chief Prosecutor for the UK, Sir Hartley Shawcross, directly referred to this tradition of argument. Though acknowledging as the general position that ‘it is for the state to decide how it shall treat its own nationals’, Shawcross went on to invoke the view of Grotius, among other texts and precedents, asserting:

Yet international law has in the past made some claim that there is a limit to the omnipotence of the state and that the individual human being, the ultimate unit of all law, is not disentitled to the protection of mankind when the state tramples upon his rights in a manner which outrages the conscience of mankind … [T]he right of humanitarian intervention by war is not a novelty in international law – can intervention by judicial process then be illegal?³

Still, even if the universality of natural law and human rights, of justice and humanity, was well established as a theme in political thought and as a current of respected opinion in the literature of international law, until the Nuremberg Trials it had not definitively established itself as the basis of, precisely, judicial process. As Alan Finkielkraut has written, it had ‘never been able to descend from the heights of theory … for it had always collided with another founding principle of modern politics – the absolute sovereignty of the state.’⁴ It was the Nuremberg Trials which marked the official birth of the concept of crimes against humanity, inaugurating its effective, its practical, emergence into the world of law and the law of the world. This chapter outlines some part of its prehistory and subsequent path.

I

The first use of the term ‘crimes against humanity’ which I have come across occurs in a letter of 15 September 1890 from George Washington Williams to the then US Secretary of State, James G. Blaine. Williams was an African-American with a chequered career as soldier, religious minister, journalist and public speaker. He served for one term as a member of the Ohio state legislature and was the author of a well-regarded early history of black people in the USA. In 1890 he visited the Belgian Congo and wrote an open letter to Leopold II and a report to US President Harrison, detailing the conditions and practices he had witnessed there. In the open letter to Leopold II, Williams appealed to ‘the Powers, which committed this infant State to your Majesty’s charge … the great States which gave it international being and whose majestic law you have scorned and trampled upon’; and he called for an international commission to investigate the charges ‘preferred herein in the name of Humanity, Commerce, Constitutional Government and Christian Civilization’.⁵ In his letter to Blaine a few weeks later, he wrote: ‘The State of Congo is in no sense deserving your confidence or support. It is actively engaged in the slave trade and is guilty of many crimes against humanity’.⁶

The slave trade is a central reference point, too, for another early usage, this one by Robert Lansing. In an article of 1906 on the subject of world sovereignty, and affirming the genuinely legal status of the law of nations, Lansing (who was a prominent American international lawyer) gave as illustrations of what he called the collective will of the world ‘the universal declaration that piracy is a crime against the world … [and] the right and duty of all states to suppress the slave-trade, which is a crime against humanity’. He also alluded in this connection to the motif of the pirate as hostis humani generis – an enemy of humankind.⁷ The motif is standardly associated with a principle giving states jurisdiction over a certain limited range of offences regardless of where those offences occur or of the nationality of the offenders or the victims. Because piracy is directed against the vessels and nationals of the countries of the world more or less randomly, it threatens a common interest. As a matter of universal concern, it has come to be subject to universal jurisdiction.⁸ Lansing’s was possibly the first use of the term ‘crime against humanity’ in the English-language legal literature.⁹ In view of the next appearance he will make in this story, it may seem surprising that he did so use it.

In any case, the decisive point of entry into the actual instruments of international law of part of the thinking behind crimes against humanity, if not of the expression itself, is the Martens Clause in the Hague Conventions of 1899 and 1907. The author of that clause was Fyodor Martens, a Russian diplomat and jurist, and its apparent purpose was to cover for possible omissions from, or deficiencies in, the text of the Conventions with respect to the norms of warfare. As contained in the 1907 Hague Convention, the Martens Clause reads:

Pending the preparation of a more complete code of the laws of war, the high contracting parties deem it opportune to state that, in the cases not provided for in the rules adopted by them, the inhabitants and the belligerents shall remain under the protection of and subject to the principles of the law of nations, as established by the usages prevailing among civilized peoples, by the laws of humanity, and by the demands of public conscience.¹⁰

Some authorities hold that a consequence of the Martens Clause was to add the said ‘laws of humanity’ to the recognized sources of international law. Antonio Cassese has challenged this understanding of its significance, however. The clause was formulated, he argues, as a diplomatic move to break a deadlock at the 1899 Hague Peace Conference, and it cannot be treated as having raised either the laws of humanity or the dictates of public conscience to the status of fully fledged sources of law. Even Cassese, though, allows that the clause may be of legal import. Standards of humanity and public conscience, according to him, might be used as an aid in interpretation where a rule of international humanitarian law leaves room for doubt on some point. They may be taken as lending what is called opinio juris – roughly, the prevailing wisdom about the state of legal obligation on a particular issue – greater force in application specifically to this branch of international law than would more generally be allowed to it.¹¹ I am in no position to offer a judgement on the matter. But, one way or another, the content of the Martens Clause, the notion in particular of there being laws of humanity, is recognized in the legal scholarship as having established a normative presence within international law, even if its exact standing there is assessed in conflicting ways.

By an obvious logic, if there are laws of humanity then there can be acts in violation of them: infractions or offences; crimes. This logic begins to take a firm hold at the time of the First World War. The most well-known occasion of its doing so was in a diplomatic statement by France, Great Britain and Russia about the Turkish genocide against the Armenians. On 28 May 1915, the governments of these three countries issued a statement condemning the killings of Armenians as ‘crimes against humanity and civilization for which all the members of the Turkish Government will be held responsible together with its agents implicated in the massacres’.¹² After the end of the war, in January 1919, the Paris Peace Conference set up a Commission on the Responsibility of the Authors of the War and on the Enforcement of Penalties – also known as the Commission of Fifteen – whose remit was to look into breaches of the norms of war committed by Germany and its allies. The Commission’s report was presented on 29 March 1919.¹³ While it did not include the term ‘crimes against humanity’ – though this was used by at least one delegate in the course of the Commission’s deliberations¹⁴ – the report concluded that ‘[t]he war was carried on by the Central Empires, together with their allies, Turkey and Bulgaria, by barbarous or illegitimate methods in violation of the established laws and customs of war and the elementary laws of humanity’. It referred also to ‘offences against the laws and customs of war or the laws of humanity’, stating that such offences would be ‘liable to criminal prosecution’.¹⁵ A communication from the Allied powers to Germany during the Paris Peace Conference spoke, similarly, of ‘offences against humanity’.¹⁶

Annexed to the Commission of Fifteen’s report, however, there was a dissenting memorandum from its two American members, the aforementioned Robert Lansing and James Brown Scott. Their dissent was on a point of some philosophical interest. They wrote:

[T]he report of the Commission does not, as in the opinion of the American representatives it should, confine itself to the ascertainment of the facts and to their violation of the laws and customs of war, but, going beyond the terms of the mandate, declares that the facts found and acts committed were in violation of the laws and of the elementary principles 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. 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.

Again:

[T]he laws and principles of humanity are not certain, varying with time, place, and circumstance, and according, it may be, to the conscience of the individual judge. There is no fixed and universal standard of humanity.¹⁷

Following this difference of opinion in the Commission, and even though the dissenting viewpoint was a minority one, the Treaty of Versailles would contain nothing about laws of humanity or any liability to prosecution for their breach. The Treaty of Sèvres with Turkey did so, if only by implication, but it was never ratified; it was replaced by the Treaty of Lausanne, which carried an amnesty clause instead.¹⁸ In a general way, nevertheless, a notion of crimes or offences against humanity had by now ‘entered the realm of serious public discourse’.¹⁹ Talking about reparations in a speech during the General Election campaign of December 1918, Lloyd George had insisted that the primary consideration of the Allies would be the interests of those on whom Germany had made war, and ‘not the interests of the German people who have been guilty of this crime against humanity’.²⁰ In the interwar period, an international agreement – signed at Nyon on 14 September 1937 – declared attacks on merchant ships in the Mediterranean not belonging to either side in the Spanish civil war to be in breach of international law and to ‘constitute acts contrary to the most elementary dictates of humanity’.²¹ In December 1938 US Secretary of the Interior, Harold Ickes, speaking to the Cleveland Zionist Society, referred to Hitler as someone who ‘counts that day lost when he can commit no new crimes against humanity’.²²

The theme then gathered pace during the Second World War in reaction to the horrors inflicted by Germany on the Jews and other peoples of Europe. On 20 October 1943 a United Nations War Crimes Commission was established.²³ At a meeting of its Legal Committee the following March the US representative, Herbert Pell, argued that atrocities by Germany against its own nationals or against stateless persons, and offences committed on grounds of race or religion, were ‘crimes against humanity’ and justiciable; for they were crimes against the very foundations of civilization, irrespective of where or when they occurred and of whether or not they were in violation of the laws of war. Some of the other representatives on the Committee objected that Pell’s proposal meant going beyond the terms of reference of the War Crimes Commission. Offences by Germany against Germans – by a state against its own nationals – did not come within the definition of war crimes. All the same, in May 1944 after further deliberation, the Legal Committee submitted a draft resolution to the...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Introduction
• 1 Origins and development
• 2 Why against humanity?
• 3 A jurisdictional threshold
• 4 Humanitarian intervention
• 5 Utopia into law
• Appendix: Review of Larry May
• Bibliography
• Index
• Footnotes