Case Explained: A (very) short history of Crimes Against Humanity – EJIL: Talk! – Legal Perspective

This is a post in our Joint Symposium on “Negotiating a Treaty on Crimes Against Humanity” run in partnership with Just Security. 

Understanding the history of a legal concept can help illuminate its normative content, and explain what it stands for, why it is defined in a particular way, and how it relates to connected legal concepts. In the case of crimes against humanity, the history of that notion can be divided roughly into four main stages.

First, there is a sort of ‘pre-history’ to the notion, a time when the phrase crimes against humanity started being used as a lay rather than legal notion. The beginning of that era can be traced back to the mid-18th century. In a book published in 1748, with the pleasant title of “Guerre à mort aux intrigans, aux fripons et aux assassins” (“War to death against schemers, scoundrels and assassins”), the republican Melletier said:

You recognized and agreed that there were men who saw in the revolution only a means of shifting fortunes, to enrich themselves by stripping and slaughtering others; that there were crimes and offences against humanity that called for national vengeance.

 In 1807, discussing the treatment of Haitian revolutionary Toussaint Louverture by Napoleon Bonaparte, James Stephen similarly noted: 

When we add to this want of every generous and elevated sentiment, the numberless positive crimes against humanity, justice, and honour, by which Napoleon is disgraced, it seems astonishing, and is truly opprobrious to the moral taste of the age, that he should still find any admirers.

At the time, the phrase ‘crimes against humanity’ described in non-legal terms a particular type of affronts to public or national interests that were considered particularly grave. But at that stage, the notion still stewed in the grey world between moral and law.

The second phase commences at the point at which the notion of crimes against humanity started being used in a normative sense. That point can be placed somewhere in the second half of the 19th century. It grew and developed principally in three areas: one, the anti-slavery and anti-slave trade context. In 1838, for instance, Agenor de Gasparin wrote:

So there are supporters of slavery. But, thank God, there are no longer supporters of the slave trade. The slave trade which led Mr. Canning to say that a slave ship had been found to contain, in the smallest possible space, the greatest mass of crimes against humanity; the slave trade, guilty of the atrocities it provokes as well as those it commits, and whose ignoble commerce can only be fueled by violence and treachery.

Second, the notion also appeared during that time in the context of writings opposing colonial practices and associated evils carried out by Western states. Third, references to ‘crimes against humanity’ also featured in legal discussions of the principle of non-intervention and as an exception thereto. Frederick Charles Hicks thus wrote: 

The present tendency among publicists is certainly toward the acceptance of the principle of nonintervention as the correct and normal or every-day rule of international law and practice; but to admit intervention as a legitimate exercise of sovereign power in extreme or exceptional cases on high moral or political rather than purely legal grounds, as, for instance, in case of great crimes against humanity (Greece, Armenia, and Cuba) or where essential and permanent national or international interests of far-reaching importance are at stake (Ottoman Empire, Mexico, or Panama). (Hershey, “The Calvo and Drago Doctrines/” American Journal of International Law, Jan., 1907, p. 42.) [citation in the original]

By the mid-19th century, the notion of crimes against humanity was taking clearer normative shape. And perhaps the first consciously normative use of the notion was made by Johann Caspar Bluntschli, a prominent legal scholar and a Swiss. In his seminal 1868 work Das Moderne Völkerrecht der Civilisirten Staaten (The Modern International Law of Civilized States), Bluntschli used the phrase to describe, in effect, a criminalised sort of systematic violations of human rights (translated from German):

Today’s human rights law rejects the idea of ​​enslavement as a contradiction of the natural right of man. [..] Formerly, trade in black slaves, in particular, was considered permissible, and as recently as the Peace of Utrecht in 1713, England expressly granted Spain the right to import a certain number of black slaves annually into Spain. Since then, modern human rights have branded this trade a crime against humanity.

From that point on, lawyers started relying on the concept of crimes against humanity as a legal notion. It was a way, for instance, to describe barbarities not tolerated by international law. Discussing the duties of the General Staff, Major-General Brousart von Schellendorf thus wrote:

In Bulgaria the conduct of the regular troops has been controlled by strict discipline ; and we willingly believe that the horrible atrocities committed on the Mohammedan population, of which there is but too ample evidence, may be chiefly attributed to the Cossacks and the Bulgarians themselves, who turn out to be mere savages. But the Russian generals cannot, in some instances, be acquitted of monstrous crimes against humanity and the laws of civilised warfare. The expulsion of 2,000 wounded Turkish prisoners from Kars on the road to Erzeroum in the coldest season of the year was a gross violation of the Geneva Convention.

What took the notion of crimes against humanity from the margins of international law into its core were the First and Second World Wars. The First World War was, to a large extent, a normative disappointment as far as the law of crimes against humanity was concerned. While the shortcomings of the laws of war and the need for new legal concepts was apparent to most legal commentators, new categories of criminal offences were not developed or enforced during that era. During that period, however, the use of phrases referring to ‘humanity’ as a legally protected interest multiplied, with frequent references to ‘the law of humanity’, ‘outrages against humanity’, ‘crimes against humanity’ or crimes against the laws of humanity. For instance, in a Joint Declaration of 28 May 1915, France, the United Kingdom, and Russia condemned the mass killing of Armenians by the officials of the Ottoman Empire and characterized those acts as ‘new crimes [. . .] against humanity and civilization’. In a note of 24 November 1918 regarding crimes committed by Germans troops, the French Government referred to ‘stipulations of a moral nature’ that called for ‘a solemn repudiation of the violations of the law of nations and of the crimes against humanity’.

The third phase of development of the notion of crimes against humanity is one that starts during the Second World War. It is a period of crystallization of the notion as a separate category of international crimes and of actual criminalization and enforcement of these prohibitions. Even more perhaps than the First World War, the Second World War evidenced the fact that international law lagged far behind the sort of criminality that it was expected to combat and address. In particular, it was readily apparent that the laws of war and the associated notion of war crimes, as existed at the time, were not fully adequate to cover all types and categories of criminality which the Allies were minded to sanction. In particular, there were three main identifiable accountability gaps that became apparent when superimposed with Nazi criminality:

1. Crimes committed before the war or during the war but unrelated to the war; 

2. Crimes committed against individuals who were not ‘enemy nationals’ (e.g.,. German nationals, including German Jews; stateless individuals; and nationals of co-belligerents);

3. The laws of war criminalized too narrowly, in particular, failing to sanction ‘collective’ types of criminality and crimes focused on the identity of victims;  

And so when the Charter of the Nuremberg Tribunal was drafted, the four Allied nations (USA; USSR; Great Britain; and France) came up with a new list of crimes that would supplement the notion of war crimes, and listed the following offences: murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds. In the final stages of the drafting of that document, surely well-aware of the existence of the notion, Hersh Lauterpacht suggested to the American chief drafter, Justice Robert H. Jackson, that he could use a shorthand phrase to describe these new crimes: ‘crimes against humanity’. Challenged by the Soviet Delegate (Aron Trainin) to explain the presence of that phrase in the draft Charter, Jackson explained it thus: 

I think that it is a very convenient designation. I may say it was suggested to me by an eminent scholar of international law. It would be a very convenient classification, and I think it would help the public understanding of what the difference is.

The fourth stage of development of the notion and law of crimes against humanity is one of refinement and polishing up of the notion. It occurred principally in two locus: in the caselaw of the ad hoc Tribunals for Yugoslavia and Rwanda, and in the process of drafting of the ICC’s Statute. In particular, the combined jurisprudential work of the two ad hoc Tribunals (and other jurisdictions of that time) contributed in at least five ways to the notion of crimes against humanity:

(i) first, they were important enforcers and implementers of that law, bringing many charges and handing many convictions in respect of acts amounting to crimes against humanity;

(ii) second, they contributed significantly to defining or refining the definition of each category of crimes against humanity and their common chapeau or contextual element;

(iii)  third, they confirmed and further ascertained in their caselaw the status of these crimes – as crimes under customary international law and as norms of jus cogens;

(iv) fourth, they helped draw up the normative boundaries between this notion and the associated concepts of war crimes and genocide;

(v) fifth, they set out a detailed evidential map of what fact(s), factor(s) and circumstance(s) that could be evidentially relevant to establishing each of the elements of this category of crimes (e.g., what evidence is relevant to establishing the existence of a ‘widespread’ or ‘systematic’ attack against a civilian population). 

It is apparent from the above that crimes against humanity were intended to serve three principal prosecutorial functions. First, they were intended to broaden the scope of conduct that was regarded as criminal under international law: by criminalizing conduct unrelated to an armed conflict; by criminalizing discriminatory types of violence (in particular, through the offences of persecution and apartheid); by criminalizing conduct irrespective of the nationality of victims and perpetrators (and thus allowing, in particular, for the criminalization of acts carried out by nationals against fellow nationals); by providing a ‘residual’ category of crimes (‘other inhumane acts’) that captures much criminality not expressly falling within the scope of the other listed offenses. Second, the notion of crimes against humanity serves an important stigmatizing function, pointing to a sort of criminality that because of its magnitude, nature or scale ranks somewhere between war criminality and acts of genocide. Third, the notion of crimes against humanity can serve an important narrative function, describing in one phrase an organised, large-scale and/or systematic sort of criminality not necessarily captured by other categories of international crimes.

The views are those of the author only, speaking in his personal capacity.