Genocide and Crimes Against Humanity

• Pages: 215-248
• Author: Beth Van Schaack,Ronald C. Slye

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Chapter 8

GENOCIDE AND CRIMES

AGAINST HUMANITY

Genocide and crimes against humanity are the criminal

counterparts of many human rights prohibitions under international

law. Called “atrocity crimes” by some, these two great crimes sit at

the pinnacle of international criminal law (ICL). This chapter

presents the history and scope of genocide and crimes against

humanity, and the relationship between them, with an eye toward

exploring their division of labor in ICL and whether a conceptual

distinction between them should be maintained.

Although an ancient scourge, the concept of genocide as a

distinct international crime arose out of the Nazi Holocaust and

World War II. We think of Nazi crimes as the paradigmatic case of

genocide, but treaty codification of the crime came too late to

prosecute anyone for what has sometimes been called “the crime of

crimes.”

1

The perpetrators of the Nazi Holocaust were instead

prosecuted under the Nuremberg Charter for crimes against

humanity, another international crime that traces its formal origins

to the World War II period. Although genocide became the subject of

a dedicated multilateral treaty in 1948, additional codification of

crimes against humanity beyond the Charters of the two post-World

War II tribunals did not happen until the U.N. Security Council

created the International Criminal Tribunal for the former

Yugoslavia (ICTY) in 1993. The International Law Commission (ILC)

in 2019 adopted Draft Articles on the Prevention and Punishment of

Crimes Against Humanity that have been shared with the U.N.

General Assembly for treaty consideration—a process that remains

ongoing. Given some resistance within the General Assembly, it will

likely take several years for any treaty to be negotiated and then

opened for signature.

In addition to a shared history, the two crimes are also

conceptually similar. Crimes against humanity are a constellation of

acts made criminal under international law when they are

committed within the context of a widespread or systematic attack

against a civilian population with knowledge of that attack. This

crime’s very name captures two important facets of the crime: Crimes

against humanity are considered to be committed against all of

humanity, not just the individual victims or their immediate

1

Prosecutor v. Kambanda, Case No. ICTR-97-23-S, Judgement, ¶ 16 (Sept. 4,

1998).

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communities, and crimes against humanity “violat[e] the core

humanity that we all share and that distinguishes us from other

natural beings.”

2

Genocide involves the commission of one of a set of

enumerated acts against members of a protected group with the

intent to destroy the group, in whole or in part. The goal of genocide

is thus to eradicate a very segment of humanity, defined by race,

ethnicity, religion, or nationality. Like crimes against humanity,

genocide also threatens humanity as a whole, though not by directly

attacking all of humanity but instead by singling out a group for

destruction, and thus threatening to reduce the world’s racial, ethnic,

religious, or national diversity.

Notwithstanding this similarity, there are clear doctrinal

distinctions between crimes against humanity and genocide. First,

genocide requires that the perpetrator have the specific intent to

“destroy” a protected group, in whole or in part, whereas crimes

against humanity do not require any form of specific intent. Genocide

is thus a crime aimed at protecting groups rather than individuals

qua individuals.

3

Second, only acts committed against groups

identified by their race, ethnicity, religion, or nationality may

constitute genocide; conversely, criminal acts committed against any

“civilian population” can qualify as crimes against humanity. Third,

conduct rises to the level of crimes against humanity when the

perpetrator acts within the context of a “widespread or systematic”

attack against a civilian population; there is no similar threshold for

genocide. As a result, a single isolated act (such as the killing of a

handful of members of a protected group) could conceivably qualify

as genocide if the perpetrator acted with the requisite specific intent,

4

whereas a single isolated act against a civilian is unlikely to qualify

as a crime against humanity on its own. Debate exists over whether

proof of a policy is a required element of crimes against humanity in

customary international law; the Rome Statute includes it; other

formulations do not.

2

David Luban, A Theory of Crimes Against Humanity, 29 YALE J. INT’L L. 85,

86 (2004).

3

For a discussion of the history of the development of the conception of the

two crimes by Hersh Lauterpacht (crimes against humanity) and Rafael Lemkin

(genocide), including the focus of Lauterpacht on centering the individual and Lemkin

on centering the group, see Ana Filipa Vrdolak, Human Rights and Genocide: The

Work of Lauterpacht and Lemkin in Modern International Law, 4 EUR. J. INT’L L. 1163

(2010) and Philippe Sands, EAST WEST STREET: ON THE ORIGINS OF “GENOCIDE” AND

“CRIMES AGAINST HUMANITY” (2016).

4

The Appeals Chamber of the ICTY took this position, although in a single

opinion the facts of which were never replicated. As noted later in this chapter, the

Tribunal concluded that Goran Jelisić was on “a one -man genocide mission, intent

upon personally wiping out the protected group.” See Prosecutor v. Jelisić, Case No.

IT-95-10-T, Judgement, ¶ 108 (Dec. 14, 1999).

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Given the parallels between these two crimes, this chapter

raises the question of whether there is a legal justification for

continuing to distinguish between the two, or whether the notion of

crimes against humanity encompasses the crime of genocide in all

circumstances. In other words, do the unique characteristics of the

crime of genocide warrant preserving the two separate crimes? To

guide our inquiry, this chapter provides the basic history of the two

crimes followed by a discussion of their elemental similarities and

differences.

A. Crimes Against Humanity

Crimes against humanity were first codified in response to the

atrocities of World War II. There were, however, some earlier

references to crimes against the laws of humanity. The U.S. jurist

Henry Wheaton described the slave trade as “a crime against

humanity” in an 1842 treatise.

5

Another early reference to the term

“crimes against humanity” occurred in 1890 in a letter from the

African-American journalist, George Washington Williams, to the

U.S. Secretary of State, James Blaine, describing the atrocities

committed in the Belgian Congo (present-day Democratic Republic of

Congo).

6

The term was also used during the post-World War I period,

when international prosecutions were first contemplated to address

atrocities of global proportions. In particular, the deportation and

massacre of the Armenian population of the Ottoman Empire

prompted the Allied governments of France, Great Britain, and

Russia to issue in 1915 a joint Declaration to the Ottoman Empire

denouncing these acts 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.”

7

The majority of the Allies originally envisioned international trials

against “[a]ll persons belonging to enemy countries, however high

their position may have been, without distinction of rank, including

5

HENRY WHEATON, ENQUIRY INTO THE VALIDITY OF THE BRITISH CLAIM TO A

RIGHT TO VISITATION AND SEARCH 4 (1842). In an important book discussing the link

between legal efforts to combat the trans-Atlantic slave trade and the development of

international human rights law, Jenny Martinez cites to even earlier references to the

similar concept of “laws of humanity.” JENNY S. MARTINEZ, THE SLAVE TRADE AND THE

ORIGINS OF INTERNATIONAL HUMAN RIGHTS LAW (2012).

6

This early use of the phrase has been difficult to track down. Adam

Hochschild in his well-regarded book about the Belgian Congo, KING LEOPOLD’S

GHOSE: A STORY OF GREED, TERROR, AND HEROISM IN COLONIAL AFRICA 112 (2000)

mentions this early use of the phrase. According to Norman Geras, George Washington

Williams wrote to James Blaine, “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.” NORMAN GERAS, CRIMES AGAINST HUMANITY: BIRTH OF A

CONCEPT 4 (2011), citing to FRANÇOIS BONTINCK, AUX ORIGINES DE L’ETAT

INDÉPENDENT DU CONGO: DOCUMENTS TIRÉS D’ARCHIVES AMÉRICAINES 449 (1966).

7

Declaration of France, Great Britain and Russia, 24 May 1915, quoted in

Egon Schwelb, Crimes Against Humanity, 23 BRIT. Y.B. INT’L L. 178, 181 (1946).