I. Introduction
The unconditional defeat of Nazi Germany, with its egregious doctrine of racial superiority and its unspeakable policies of extermination and enslavement, had a profound influence on postwar law and moral thought. The legal documents through which the Allies sought to articulate the values and to establish the institutions of a new international framework explicitly affirmed the moral principle that all humans possess equal and inherent dignity. Thus, the Charter of the United Nations stated that among the purposes of the organization were “promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.”Footnote 1 And the Universal Declaration of Human Rights declared that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”Footnote 2
The principles of human dignity and equality are extremely abstract, and various specifications of them are found in the international human rights agreements that came into force in the decades after the war. But developments in international criminal law also helped to specify and implement the principles by explicitly defining two crimes: genocide and crimes against humanity. Genocide was defined by a postwar international convention in terms of certain acts “committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.”Footnote 3 Crimes against humanity were defined by postwar agreements and enactments in terms of certain “inhumane acts committed against any civilian population … or persecutions on political, racial or religious grounds … whether or not in violation of the domestic law of the country where perpetrated.”Footnote 4 These two categories of crime came to symbolize the Third Reich's most egregious violations of the moral principle affirming the dignity and equality of all humans.
However, there are crucial differences between genocide understood as a violation of the law, on the one hand, and as an episode of mass violence directed at the members of a particular social group, on the other.Footnote 5 Moreover, the term “crimes against humanity” is also ambiguous between legal and nonlegal meanings. The legal and philosophical literature has ignored or glossed over these differences, with the result that a conceptual fog hovers over the discussion of these two categories of crime. The fog is generated in part by the fact that the term “crime” can mean either a violation of the criminal law or, in a somewhat metaphorical sense, a violation of morality—a moral wrong. But the problem is deeper: there is a pervasive failure to adequately distinguish crucial features of the legal concepts of genocide and crimes against humanity from features of the concepts in terms of which we represent moral outrages of historic dimensions such as the Holocaust. Moreover, even if we focus on the legal concepts alone, international lawyers misconstrue the conceptual relation between genocide and crimes against humanity.
The paper proceeds as follows. Section II provides a brief account of the history and current state of the international law of genocide and crimes against humanity. I argue that, despite a widely held view among scholars, genocide is not, under the law, a type of crime against humanity. In Section III, I argue that the question “What is genocide?” can be disambiguated into three questions, each corresponding to a distinct concept of genocide: the existing legal concept, the ideal legal concept, and the moral concept. I show how the conflation of these three genocide concepts has led to various confusions in the literature. Section IV distinguishes two models for understanding genocide, the cultural model and the discrimination model, and argues for the superiority of the latter. In Section V, the legal concept of crimes against humanity is distinguished from the moral concept, and, in Section VI, I argue that the conflation of those two concepts is due to the mistake of regarding the Holocaust as a paradigmatic crime against humanity.
II. International Law
Genocide and crimes against humanity are now among the core crimes of international law. They are prohibited by customary international law and a number of authoritative legal instruments, including the Charter of the International Military Tribunal (IMT—1945) before which the major Nazi war criminals were tried at Nuremberg,Footnote 6 the Statute of the International Criminal Court (1998), and the Statutes of the international criminal tribunals for Yugoslavia (1993) and Rwanda (1994). Additionally, genocide is outlawed by a special international convention.
A. Crimes against humanity
The first legally authoritative document in which the term “crimes against humanity” appears is the London Charter, establishing the IMT and spelling out the categories of crime over which the tribunal had jurisdiction. The Charter was signed by the United States, Great Britain, France, and the Soviet Union and was subsequently acceded to by an additional nineteen states.Footnote 7 The categories of crime it laid out were crimes against peace, war crimes, and crimes against humanity. The Charter also declared that individuals were liable for “participating in … a common plan or conspiracy to commit any of the foregoing crimes.”Footnote 8
It remains unclear why the drafters of the Charter decided to use the exact phrase “crimes against humanity” to refer to its third category of crime. The suggestion to use the phrase seems to have come from the prominent scholar of international law, Hersch Lauterpacht, and to have been advocated by the leading figure in drafting the Charter, U.S. Supreme Court Justice and lead U.S. prosecutor before the IMT, Robert Jackson.Footnote 9
It is reasonable to think that the phrase “crimes against humanity” was an allusion to language that was part of previous international documents concerned with crimes committed during wartime. For example, the phrase “laws of humanity” had appeared in what was called the “Martens Clause” of the Preamble of the 1899 Hague Convention codifying the rules of land warfare.Footnote 10 And the term, “crimes against humanity and civilization,” had been used during the First World War in a declaration issued by Great Britain, France, and Russia, pledging to prosecute the Turkish officials responsible for “new crimes” connected to the massacre of the Armenian population.Footnote 11 Additionally, an international commission on war crimes established by the Paris Peace Conference found that Germany, Austria-Hungary, and Turkey had waged war “by barbarous or illegitimate methods in violation of … the elementary laws of humanity.”Footnote 12
However, Lauterpacht and Jackson would also have been well aware of the fact that efforts to prosecute Turkish and German officials had largely come to naught. Only two, local officials were convicted for crimes connected to the Armenian massacres, a special Turkish court-martial having found them guilty under Islamic jurisprudence for acting “against humanity and civilization.”Footnote 13 And the trials before national courts in Leipzig of a few Germans for war crimes resulted in acquittals or very light sentences.Footnote 14 So while Lauterpacht and Jackson might have wanted to maintain some continuity with language that international lawyers would recognize, the two of them also would have wanted to signal that the Allies would not let the enemy architects of mass atrocities go unprosecuted and unpunished for a second time in scarcely more than a generation. Accordingly, the London Charter set out definitions of the crimes for which leading figures in the Third Reich would be prosecuted, and it constituted the IMT—a kind of international court-martial—to hear the charges.
The London Charter defined crimes against humanity as: “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 execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.”Footnote 15 The proviso, ‘in execution of or in connection with any crime within the jurisdiction of the Tribunal’, is sometimes referred to as the “war-nexus requirement.” It meant that an act does not count as a crime against humanity unless there is some connection between the act and a crime against peace or a war crime. On the basis of this requirement, the IMT ruled that it could not “make the general declaration that the [inhumane] acts before [the outbreak of war in] 1939 were crimes against humanity within the meaning of the Charter.”Footnote 16
The war-nexus requirement created a very large overlap between crimes against humanity and war crimes. The Hague Convention (1907) on land warfare had provided that in occupied territory “[f]amily honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected,”Footnote 17 and thus most crimes against humanity—including the Nazi extermination of nearly three million Polish and over one million Russian Jews—counted as war crimes as well.Footnote 18 Moreover, the IMT did little to separate clearly the two categories. The most significant respect in which the two categories were distinct concerned a state's maltreatment of part of its own civilian population; such maltreatment could count as a crime against humanity but would not count as a war crime. War crimes involve only cases in which a state acts against the nationals of an enemy state. Thus, Germany's murder of 170,000 of its 210,000 Jews, who had previously been rendered stateless by Nazi law, was a crime against humanity but not a war crime.Footnote 19
In the years since the Nuremberg trial, several main developments have characterized the international law of crimes against humanity. These developments have come from a combination of sources, including reports of the International Law Commission, which was given the task by the United Nations of codifying the legal principles of the London Charter and the IMT judgments;Footnote 20 the statutes establishing international tribunals to prosecute and decide cases arising out of the Rwandan genocide (ICTR) and the breakup of Yugoslavia (ICTY);Footnote 21 the case law emerging from those tribunals;Footnote 22 and the Rome Statute establishing the International Criminal Court (ICC).Footnote 23 For our purposes, the key development is that “all definitions of crimes against humanity adopted since the ICTR Statute (1994) require a nexus between the individual crime and a widespread or systematic attack against a civilian population.”Footnote 24 In particular, the individual crime must be “part of” such an attack and undertaken with knowledge of the attack.Footnote 25 The requirement of a widespread or systematic attack on a civilian population is referred to as the “contextual element” of a crime against humanity, because it demands that a criminal act—such as murder or rape—take place in a certain context constituted by the conduct of third parties in order for that act to count as a crime against humanity. The particular third parties and their specific offending acts are typically too numerous to identify and do not need to be specified or proven by the prosecution in a case of crimes against humanity. It is sufficient that the prosecution prove that there was a widespread or systematic attack and that the defendant intentionally committed the specific acts attributed to him as part of the attack and with knowledge of it.
Although there is general agreement that a contextual element is needed to distinguish a crime against humanity from murder, rape, and other ordinary crimes, the contextual element carries with it questions about how to specify its meaning. Many of those questions have yet to be authoritatively settled, including whether multiple acts are needed for an attack to count as widespread or systematic, whether such an attack need be the product of a policy, whether the acts constituting the attack must be violent, and whether an attack can count as widespread simply in virtue of the number of victims. It is likely that the answers to these questions will remain unsettled for some time, although the emerging case law of the International Criminal Court is bound to have considerable influence on the eventual answers.
B. Genocide
None of the defendants before the IMT was indicted under a charge of genocide, although the war-crimes charge in the indictment did use the term “genocide” in passing.Footnote 26 There was no distinct crime of genocide until an international convention prohibiting it entered into force in 1951,Footnote 27 several years after the end of the war. The very term, “genocide,” had only appeared in print for the first time in 1944, coined by Raphael Lemkin, a Polish jurist and a Jew, who had fled to the United States in 1939.Footnote 28 Lemkin subsequently explained that he created the term from the Greek genos for tribe or race and the Latin cide for killing.Footnote 29 Elaborating on its meaning, he wrote that genocide “refers to a coordinated plan aimed at the destruction of the essential foundations of the life of national groups so that these groups wither and die…. Genocide is directed against a national group as an entity and the attack on individuals is only secondary to the annihilation of the national group to which they belong.”Footnote 30 But why should the annihilation of a group, over and above the murder of the individual members, be a crime? Lemkin does not tiptoe around this question: “By the formulation of genocide as a crime, the principle that every national, racial and religious group has a natural right of existence is claimed. Attacks upon such groups are in violation of that right to exist.”Footnote 31
After the war, Lemkin campaigned for a treaty that would make genocide an international crime, and in 1948 the UN General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide. The Convention defined genocide as:
any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.Footnote 32
The Convention deliberately omitted any war-nexus requirement, distinguishing (at the time) genocide from crimes against humanity. Moreover, the Convention did not contain any explicit contextual element in its definition of genocide, creating another key difference between genocide and crimes against humanity. The war-nexus distinction between the two categories of crime has been superceded by developments in the definition of crimes against humanity (see section II, subsection A, above). Nonetheless, there is currently debate over whether the legal definition of genocide contains a contextual element, either as an implicit component of the Convention's definition or as a part of a post-Convention development of international law. In this connection, the establishment of the International Criminal Court has proven crucial.
The state parties to the ICC adopted a document, “Elements of Crimes,” intended to guide the Court's interpretation of the definitions of genocide, crimes against humanity, and war crimes contained in the Rome Statute.Footnote 33 According to the “Elements,” genocide involves “conduct [that] took place in the context of a manifest pattern of similar conduct directed against [the] group or was conduct that could itself effect … destruction” of the group in whole or in part.Footnote 34 In other words, in order for an isolated act to count as genocide, it must by itself be capable of destroying in whole or part the targeted group; otherwise an act such as murder or rape would amount to genocide only if it occurred “in the context of a manifest pattern of similar conduct.” This provision thus seems to add a contextual element to the definition of genocide.
However, some courts and theorists deny that the ICC's “Elements” has authoritatively determined that, under international law, genocide has a contextual element. For example, Florian Jessberger contends that the “Elements” does not concern the definition of genocide under international law but merely declares limits on the jurisdiction of the ICC. He argues that “[g]enocide does not require that the individual act be part of a genocidal campaign or part of a systematic or widespread attack on a protected group” and that, in contrast to a crime against humanity, “an isolated act may suffice” for genocide.Footnote 35 The ICTY has taken a similar view, arguing that the “offence of genocide … does not require proof that the perpetrator of genocide participated in a widespread or systematic attack.”Footnote 36 On the other hand, Claus Kress argues that ICC's “Elements” articulates a condition implicit in the part of the legal definition that requires an “intent to destroy” the targeted group. He claims that a genocidal intent must pose “a real danger” for the targeted group.Footnote 37 In almost all actual cases, Kress argues, such a danger requires a context in which there is a “manifest pattern of similar conduct” by many others who are also targeting the group. In a similar vein, the ICC has itself ruled that “the contextual element of the crime of genocide is only completed when the relevant conduct presents a concrete threat to the existence of the targeted group, or part thereof.”Footnote 38
For current purposes, it is not necessary to explore the question of whether there is some contextual dimension to genocide and, if so, exactly what that dimension is. The main point to keep in mind is that, at this stage in the development of international law, the answer is not well settled among the various legal authorities. This situation does not, by itself, entail that there is no determinate legal answer. Perhaps some of the authorities are correct in what they assert to be the law. But it also seems possible that there is no determinate answer at present and that such an answer will only come to exist when the law becomes more settled than it currently is.Footnote 39
C. Is genocide a crime against humanity?
There is a long train of scholars and international lawyers from the end of World War II to the present who have affirmed that, under international law, genocide is a type of crime against humanity. In 1949, Joseph Dautricourt declared that “genocide is … a crime against humanity and the wickedest of all.”Footnote 40 More recently, Steven Ratner et al. have held that “genocide has typically been regarded as part of the genus crimes against humanity.”Footnote 41 Gareth Evans tells us that genocide “is the most extreme of all crimes against humanity.”Footnote 42 William Fenrick writes, “Genocide [is] the supreme crime against humanity.”Footnote 43 And Ronald Slye maintains that “[t]he crime of genocide falls under the general category of crimes against humanity.”Footnote 44 The idea behind these statements is that genocide is a particular type of attack on a civilian population—an attack distinguished by its specific intent to destroy (in whole or part) a certain kind of group. As Micaela Frulli explains, “The crime of genocide belongs to the class of crimes against humanity, but may now also be considered as a separate crime—itself constituting a category—because of the specific intent it requires.”Footnote 45
Although this view is held by many international lawyers, it is, surprisingly, incorrect. Under the legal definitions, genocide does not count as a type of crime against humanity. One way to see this is by considering a hypothetical case in which a genocide is directed solely against persons who have the status of combatants. Thus, imagine a state in which all soldiers come from a certain religious group, a group different from the religion to which the rest of the population belongs. An enemy state might attack those soldiers, intending to destroy the religious group as such. Under the law, such an attack would be a case of genocide but not a crime against humanity. It would be genocide because the attack was undertaken with the intent to destroy a religious group as such. It would not be a crime against humanity because it was not an attack against a civilian population.Footnote 46 Accordingly, genocide and crimes against humanity are not only distinct legal concepts, the former cannot be correctly considered to be a special case of the latter.
One should also note that, if—as some courts and commentators have argued—there is no contextual element for genocide, then genocide cannot be a type of crime against humanity, because crimes of the latter sort require such an element. Accordingly, one cannot consistently maintain that there is no contextual element to genocide and also assert that genocide is a crime against humanity. Moreover, if no determinate answer yet exists to the question of whether there is a contextual element to genocide, then genocide cannot be a type of crime against humanity, because there is a determinate answer to the question of whether crimes against humanity have a contextual element. In sum, then, it seems that international lawyers are mistaken when they assert that genocide is a type of crime against humanity.
III. Three Concepts of Genocide
The question “What is genocide?” can usefully be disambiguated into three distinct questions: 1) What is the legal definition of genocide? 2) What should the legal definition of genocide be? and 3) What concept of genocide should be used in discussing large-scale episodes of wrongful violence against certain populations? The answer to question (1) gives us the existing legal concept of genocide. The answer to question (2) gives us the ideal legal concept, and the answer to (3) gives us the moral concept. One can regard the ideal legal concept as a kind of moral concept as well, because moral considerations will be among those determining the content of the concept, but I think that characterizing it as an ideal legal concept is more informative than calling it a moral concept.
It is clearly possible that the existing legal concept of genocide is not identical to the ideal legal concept. Many scholars have argued, for example, that the limitation of genocide under current law to acts against four types of groups—national, ethnic, racial, and religious—is arbitrary and should be relaxed.Footnote 47 Other scholars have defended the existing definition as better than the proposed alternatives.Footnote 48 But my concern here is not with taking sides in this debate or with proposing an answer to the question of what the ideal legal definition would be. Rather, my key point is that, whatever legal definition is ideal, the existing legal concept and the ideal one will be different in crucial ways from a concept of genocide appropriate for use in discussing large-scale episodes of wrongful violence, such as the Holocaust or the Turkish massacres of Armenians. The reason is that the function of criminal law categories is quite different from the function of categories meant to capture and make moral judgments about large-scale social phenomena. Criminal law categories are meant to regulate and judge the conduct of individuals under the rule of law and to provide for the punishment of identifiable individuals when they are judged guilty. Accordingly, the categories must be sufficiently precise to provide fair warning to persons and to allow for prosecution by procedures that treat defendants fairly. The criminal law should thus operate with a definition of genocide that enables prosecutors and courts to do their jobs consistent with due process of law.
In contrast, the question of whether the Turkish massacres of Armenians during the First World War amounted to genocide is not primarily a question of categorizing the particular acts of individuals for the purpose of regulating conduct through the threat of legal punishment. Rather, it is a question of morally categorizing a historical episode involving wrongful violence on a massive scale. Whether a genocide occurred in Turkey is different from the question of whether acts were perpetrated there that would have counted as genocide under some legal definition.
My claim, then, is that we should distinguish three concepts of genocide: the concept of genocide as an existing legal category defining a particular kind of act; the concept of genocide as an ideal legal category defining a particular kind of act, and the concept of genocide as a moral category defining a particular kind of large-scale episode of violence in the history of a society. The former two concepts function in proscribing a certain precisely defined act and in making judgments about the actual or hypothetical criminal liability of individuals alleged to have performed such acts. The latter concept functions in making moral judgments, not directly about individual persons and their discrete acts, but about episodes of wrongful violence in which the totality of violent acts reaches a certain scale and intensity not commonly found outside of war.Footnote 49 One way in which ordinary language marks the difference between the moral concept, on the one side, and the two legal concepts, on the other, is that when we use the term “a genocide” (with the indefinite article), we are invoking the moral concept, referring to a totality of related acts involving wrongful violence against a particular population on a massive scale. The problem is that the term “genocide” (without the indefinite article) can be used to refer to a totality of such acts, on the one hand, or to discrete kinds of acts defined as crimes under existing or ideal law, on the other.
One might claim that there is less to my threefold distinction than meets the eye because “a genocide” as a large-scale episode of wrongful violence simply consists of very many related discrete acts that count as genocide under the existing or some ideal legal definition.Footnote 50 Accordingly, it might seem that the only important distinction here is the one between the existing and ideal legal concepts. The distinction between those two concepts, on the one hand, and what I have called the moral concept of genocide, on the other, looks to be without much significance.
However, the problem with this plausible objection to the threefold distinction is that it seems possible for the machinery of violence in a genocide (i.e., a large-scale episode) to be such that most of the acts of violence would not count as acts of genocide under the law. To see why this is so, let us assume that something similar to the intent requirement in current law would be included in any viable legal definition.Footnote 51 A genocide could be planned and directed by persons with the specific intent or purpose to destroy, for example, a certain religious group as such, and yet the killings might be carried out by persons who do not have that specific intent but rather the intent to obey orders or to curry favor with the powerful or to seize the property of those whom they kill.Footnote 52 Amidst the killings and other violence in cases of this kind, there might only be a few acts of genocide as defined by (actual or ideal) law, namely, those acts undertaken by the leaders. Their acts would have the purpose of destroying the group as such, and they would be legally (and morally) responsible for the murders that they ordered. Thus, the leaders would be guilty of criminal acts of genocide. But for the totality of the acts of violence in this case to count as a genocide, it is not necessary that the persons who carried out the orders share in their leaders' purpose. In a typical case of genocide, of course, the leaders' purpose is shared by many of those who carry out the violence with their own hands. But in order for there to be a genocide, it is sufficient that the leaders had a genocidal intent and translated that intent into acts of murder, regardless of the intent of those carrying out the murders.
A genocide, then, requires that there be at least some act of genocide. But under the existing legal definition, the converse does not hold: there can be a criminal act of genocide, under the existing definition, without being accompanied by a totality of acts that amount to a genocide. The reason is that the totality of relevant acts can fail to achieve the scale needed to count as a genocide, even if there are individual criminal acts of genocide within the totality. Put another way, the existing legal definition of genocide does not require criminal acts of genocide to be part of an episode of large-scale violence directed at a certain population. Moreover, there is a strong reason for omitting any such requirement: the scale of violence needed for some totality of acts to count as a genocide cannot be specified with the kind of precision that definitions of crime should have. Judging a totality of acts of violence as a genocide inescapably involves relatively vague criteria. The key point here is that the definition of the crime of genocide rightly avoids questions of what makes an episode of violence a genocide and instead sets down precise criteria that provide persons with fair warning but have some appropriate connection to genocide as a large-scale episode of violence. In section IV, I sketch a model for understanding genocide that formulates criteria for genocide as a large-scale episode of violence and delineates the connection between those criteria and a suitable account of the crime of genocide.
The failure to recognize the difference between genocide as an episode of mass violence and genocide as an act contrary to existing (or ideal) law leads to many confusions in discussions and disagreements about genocide. Consider, for example, the U.S. war in Vietnam. In 1966, with the war raging, Bertrand Russell organized a war crimes tribunal in order to address, among other issues, the question of whether there was genocide against the Vietnamese by Americans. In her summary of the evidence and judgments of the tribunal, Arlette El Kaïm-Sartre refers to the “massive bombings” by Americans and other such “infringements on the life and liberty” of the Vietnamese, and she states that the tribunal “wanted to determine if the totality of these acts, committed within a war of aggression, could be classified as genocide.” She then explains that “[t]he legal commission of the Tribunal, in order to answer this question, examined the terms of the International Convention … on Genocide, which defines this crime.”Footnote 53
Kaïm-Sartre (and perhaps the legal commission, as well) has conflated the moral concept of genocide, which categorizes episodes of massive violence, with the legal concept of genocide, which defines a certain criminal act. The Convention on Genocide is of little help in determining whether “the totality of … acts” taken by the United States against the Vietnamese can be “classified as genocide.” Whether it can be so classified is a matter of the moral concept. It is true that the definition given by the Convention helps to answer the question of whether particular U.S. officials or military officers or personnel perpetrated criminal acts of genocide. As we have seen, one cannot have a genocide without some act of genocide. But the question of whether particular Americans perpetrated criminal acts of genocide is much different from the question of whether the totality of the violence perpetrated by Americans during the war could be “classified as genocide.”
The distinction between genocide as an episode of massive violence, on the one hand, and genocide as an act in violation of existing or ideal law, on the other, should make one wary of arguments that move directly from a claim about which historic episodes of violence properly count as genocide to a conclusion about what the legal definition of genocide should contain. For example, Frank Chalk argues that political groups should be added to the list of eligible groups in the legal definition, on the ground that Stalin's mass murders of so-called “class enemies” and “enemies of the people” count as genocide.Footnote 54 But this argument conflates a question about the ideal legal definition with a question about which episodes of large-scale killing count as genocides. Moreover, almost all discussions of the legal definition of genocide are guilty of the same conflation, because they fail to distinguish the use of the term ‘genocide’ to characterize, for example, the Holocaust or the Rwandan killings, on the one hand, and its use to characterize a criminal act, on the other.
One might claim that the contextual element that the ICC has arguably added to the legal definition of genocide undercuts my distinction between genocide as massive violence and genocide as an act that violates existing or ideal law. The argument would be that the contextual element does two things: first, it requires that a criminal act of genocide take place within the context of a genocide, and, second, it provides a standard for determining whether there is a genocide. However, this argument fails because the ICC's contextual element falls well short on both counts.
Recall that the contextual element requires that a criminal act of genocide either a) be accompanied by a “manifest pattern” of similar acts against the members of the targeted group or b) be such that it “could itself effect … destruction” of the targeted group in whole or part. Under the second disjunct, it is clear that a genocide is not needed as the context for a criminal act of genocide. For example, under the disjunct, killing just one person on account of his religion in a failed attempt to use deadly biological materials to kill thousands of persons of the same faith could count as a criminal act of genocide.Footnote 55 Yet, it is clear there is no mass violence of the kind needed for a genocide to have taken place. The act was one that “could itself effect … destruction” of the targeted group, but through the perpetrator's miscalculation or bad luck, the intended destruction failed to materialize.
The first disjunct contains a standard that might look at first glance to provide a criterion that determines when there is a genocide: a “manifest pattern” of acts against members of the targeted group must exist. However, closer inspection shows that the standard is not plausible as such a criterion. A manifest pattern of acts causing serious mental or even physical harm to members of a certain religious group does not, by itself, rise to the level of a genocide. For example, the pattern could be part of a national spike in “hate crimes,” (i.e., crimes committed from some form of prejudice) but not reaching the scale needed for a genocide.Footnote 56 The manifest-pattern standard is meant to exclude from the definition of genocide most isolated acts against the members of a targeted group. (The second disjunct is meant to specify those exceptional isolated acts that would count as genocide). But the exclusion of isolated acts by the manifest-pattern standard does not come close to requiring the scale of violence that is needed for a genocide.
David Nersessian claims that an act of genocide under international law need not involve the infliction of any harm whatsoever. He writes that such an act “becomes an international matter based solely upon the offender's malevolent intent and an underlying act against group members. It can be stopped and punished as soon as it starts; as an inchoate offense, it need not blossom into actual harm.”Footnote 57 An inchoate offense is one that, as with attempted murder or solicitation to murder, need not involve the realization of an actual harm. Such offenses are often characterized as “incomplete,” and a person charged with an incomplete offense (attempted murder of individual A) cannot be simultaneously charged with the completed offense (murder of A). An examination of the acts that can count as genocide under international law lends support for Nersessian's claim. Those acts are: 1) killing, 2) causing serious bodily or mental harm, 3) inflicting on the targeted group conditions of life calculated to bring about its physical destruction, 4) imposing measures intended to prevent births within the group, and 5) forcibly transferring children of the group to another group. The first two types of act, as well as the last, are inherently harmful. But that leaves two other sorts of genocidal act: inflicting conditions calculated to bring about physical destruction and imposing measures intended to prevent births. It is possible that such acts do not cause any harm: conditions calculated to destroy the group might be poorly calculated and fail to harm anyone, and measures intended to prevent births might prove wholly ineffective and harmless. So Nersessian is right to think of genocide as an inchoate crime insofar as two of the five genocidal act-types enumerated in international law do not necessarily involve any harm.
But there is a deeper way in which he is right: genocide is essentially a crime of attempt, even in cases where a harm such as killing or serious injury is achieved by the perpetrators. What is attempted is massive harm against members of a group, and it would be rare that such harm could be accomplished by the hands of a single genocidaire. It typically takes many hands working together. It is true that the acts of those many hands can be attributed to the planners and organizers, and so we can say that those individuals are morally responsible for the massive harm that resulted. But if there is to be a crime of genocide that can be used to prosecute, not just the leaders, but the persons who are perpetrating the violence with their own hands, then the crime cannot be conceived as one that completes or realizes the massive harm that is intended by the leaders. Rather, the crime must be conceptualized as a kind of attempt, in which, for example, killing or forcibly sterilizing forty or fifty or one hundred persons is regarded as a step—but only a step—toward the realization of the massive harm. Accordingly, I think that Nersessian is right to characterize genocide as an inchoate crime, even though some of its elements do involve actual harm.
IV. Genocide: The Cultural and Discrimination Models
When Lemkin coined the term “genocide,” he was trying to capture the moral core of such large-scale episodes of violence as the Turkish massacre of Armenians and the Nazi slaughter of Jews. But he was also concerned with crafting a legal definition of genocide that would criminalize acts undertaken in furtherance of such episodes. Crimes have victims, but if the victims of genocide were individuals, then it seemed to Lemkin that there would be no reason to have a new category of crime. The perpetrators of mass violence were guilty of old-fashioned crimes that victimized individuals, crimes such as homicide, albeit homicide on a vast scale. If his new category of crime was to be justified, Lemkin thought, he needed to show that it had a different sort of victim. He regarded his key insight to be that the victims of genocide qua genocide were not individuals but groups. Although he did not explicitly draw the distinction between genocide as an episode of large-scale violence and genocide as a criminal act, we can construe his insight as follows: genocide as large-scale violence is the killing of a cultural group, and genocide as a criminal act is, roughly, an act intentionally taken in furtherance of such a killing.
For Lemkin, conceiving of the large-scale phenomenon of genocide solely in terms of the mass murder of individuals had two serious flaws. First, it failed to recognize that cultural groups can be killed by means other than the murder of their members. A cultural group depends on a shared form of life that is transmitted from one generation to the next and so can be destroyed by sterilizing its members, forcibly dispersing its children to other groups, outlawing the group's distinctive language or customs and so on. Second, the idea of “mass murder did not convey the specific losses to civilization in the form of the cultural contributions which can be made only by groups of people united through national, racial or cultural characteristics.”Footnote 58 Elaborating on the importance of cultural diversity, Lemkin claimed that “[o]ur whole cultural heritage is a product of the contributions of all peoples” and that genocides constituted a loss to “human culture.”Footnote 59 It was, evidently, this high value that he placed on the cultural diversity of humanity that led Lemkin to claim that groups organized around a distinctive culture have a right to exist.
Ironically, there appears to have been considerable doubt about Lemkin's cultural model of genocide among the parties who adopted the final version of the Convention Against Genocide. An earlier draft of the Convention had contained the category of cultural genocide and defined it as “[d]estroying the specific characteristics of the group.”Footnote 60 Acts counting as cultural genocide under the draft included: prohibiting the use of the group's national language, systematically destroying the group's religious texts or others books written in its national language, and forcibly transferring its children to other groups. However, the category of cultural genocide was voted out of the final draft, although a remaining residue was the inclusion of the forcible transfer of children in the enumeration of the kinds of acts that can count as genocide.
There is good reason to find the cultural model problematic. For example, it is unclear how the model is consistent with the existence of genocide against racial groups, without the assumption that different racial groups have, by their nature, different cultural forms. Genocidaires might believe in such racial essentialism, but there is no reason for our understanding of genocide to rest on the premise that the mass killing of the members of a certain race amounts to genocide only when the racial group has distinctive cultural forms. It would seem that, whether or not the members of a certain race form a distinct cultural group, it is enough to judge that a genocide has occurred that there were mass killings of persons belonging to the race simply because they belonged to the race. Moreover, in those genocides in which there are not only mass killings but also the destruction of the cultural life of a certain group, such as was the case with the Nazi annihilation of Jewish life in Eastern Europe, the moral horror of the genocide stems mainly from the mass killings.Footnote 61 The cultural model thus fails to get to the moral heart of the matter, and Lemkin's rationale for his neologism notwithstanding, a genocide should not be understood as a killing with a cultural group as its victim.
But if Lemkin's model is problematic, what model is better? Unfortunately, the parties who adopted the Convention on Genocide did not explain what alternative to the cultural model, if any, they had in mind, and widespread confusion about the different concepts of genocide has obstructed the development of a sound alternative. My suggestion is that the problems confronting Lemkin's model can be avoided by thinking of genocide as an extreme case of discrimination.Footnote 62
Beginning with genocide as a large-scale episode of violence, it should be understood as a totality of violent acts such that the acts are a) organized, b) guided by the intent or purpose of severely harming the members of a certain social group because they are members of the group,Footnote 63 c) inflicted on a massive scale, and d) taken to the extremes of killing, torture, beatings, and other grave assaults on the fundamental interests of the members of the group. On this model, there is no assumption that some distinctive cultural group has been destroyed, in whole or in part. Instead, there is the idea that large numbers of individuals have suffered severe and wrongful harm on account of an organized campaign against them for belonging to a certain social group. If a distinctive culture is thereby destroyed, then that fact certainly should be taken into account in discussing the things of value that the genocide has destroyed. But the discrimination model does not take the destruction of a cultural group or shared form of life to be the gravamen of genocide. The essential wrong of a genocide consists in wrongs to individuals, and the moral horror of a genocide lies in the scale and the severity of those wrongs as well as their purposeful and organized character.Footnote 64
If genocide is not understood as the killing of a group, should the forcible transfer of children, then, be deleted from the list of genocidal acts? Not necessarily. Such a transfer is a grievous wrong, harmful in the extreme to the parents and often to the children. So the inclusion of forcible transfer in a conception of genocide as an episode of large-scale violence could be justified without invoking the idea that genocide is essentially about cultural group destruction.
Aside from questions about what kinds of acts can count as genocidal, one might ask why there should be a requirement that a genocide be organized. After all, it does seem possible for there to be a situation in which uncoordinated and independent discriminatory acts of violence against the members of a certain group add up to the scale of violence that is needed for a genocide. Why should such a situation not count as a genocide against the members of the group? The answer is that the requirement of organized violence is needed to capture the central cases of genocide. Cases in which an aggregate of uncoordinated and independent discriminatory acts of violence amount to massive and extreme violence against the members of the targeted group are certainly possible. However, such cases are anomalous, because coordination—even if it is only informal—is ordinarily such a powerful multiplier of the effects of human action, including its harmful effects, and independent action is ordinarily quite meager in what it can accomplish.
Still, one might ask what work the moral concept of genocide really does. We already have the concepts of mass murder, mass atrocity, and so forth. What good is yet another moral concept? The answer is that many of the great evils of history are instances of organized, purposeful, massive, and extreme discrimination directed at the members of various social groups. The concept of genocide, understood in terms of a discrimination model, does a better job of capturing and conveying the character of these evils than does the coarser-grained categories of mass murder and mass atrocity.
Turning to genocide as a criminal act, the main difference between the existing definition and what would be suggested by a discrimination model concerns the intent requirement. The existing requirement bears the marks of Lemkin's cultural group model: “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” This way of understanding genocidal intent makes perfect sense, assuming that the gravamen of genocide is, as Lemkin holds, the effort to contribute to the destruction of a group as such. But the discrimination model regards such an effort as adventitious. The essence of the crime should be delineated, not in terms of the intent to contribute to a group's destruction, but rather in terms of the intent to contribute to organized, massive, and extreme discrimination directed against the members of a group. Accordingly, the law should not refer to the intent to destroy a group as such but rather to the discriminatory intent to severely harm members of the group because they are members; more specifically, the law should define genocide in terms of such intent and the perpetrators' accompanying knowledge that their acts are part of an organized and massive campaign of extreme discrimination against the group. Moreover, it is the knowledge requirement that distinguishes an act of genocide from a hate crime, because the latter does not necessarily occur as a conscious part of an organized and massive campaign of extreme discrimination.
Nothing in my criticism of the Lemkin model should be taken to deny that the existing legal concept has proven to be of value in the effort to prosecute and punish persons who have perpetrated egregious wrongs. But contrary to Lemkin, this value has not derived from finding a special victim of genocide, “the group,” over and above the individual victims. Rather, it has come from the fact that the legal concept solved a practical problem for lawyers: How could the perpetrators of genocidal murders, rapes, and so forth be prosecuted in courts other than the domestic tribunals of the states where those crimes took place? By tradition, murder, rape and other crimes of violence are firmly entrenched within the domestic jurisdiction of states, and even the horrors of World War II could not dislodge those crimes from their domestic homes. But a new crime would not have that jurisdictional limitation if it were declared at the outset to be an international crime within the jurisdiction of international tribunals. It is true that the Convention on Genocide did not go as far as some had hoped in the matter of jurisdiction: it declared that the crime “shall be tried by a competent tribunal of the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.”Footnote 65 Because no such tribunal was established by the Convention, or by any other treaty until the ICC was created some five decades later, the jurisdictional provision of the Convention was seen as something of a toothless tiger. But the Convention had laid down the important principle that genocide was not an ordinary domestic crime, such a murder or rape, but rather a crime that potentially fell within the jurisdiction of an international criminal tribunal. The step to create the tribunals for Rwanda and Yugoslavia, and later the ICC, was long in coming, but, conceptually, it was a short one from the Convention.
Lemkin's cultural model of genocide tried to solve what was essentially a lawyer's problem of jurisdiction by positing that genocide had a special victim that traditional domestic crimes such as murder lacked, namely, the group. But aside from the problems already enumerated in making the group the victim, it is not necessary to do so in order to meet the jurisdiction problem. If a population within a state is subjected to organized, purposive, massive, and extreme violence, and the state is failing to prosecute the perpetrators (perhaps because its agents are among the perpetrators), then there is no good argument that international courts should be barred from exercising jurisdictional authority in the matter. Thus, the discrimination model can dispense with the group-victim idea and still affirm that international tribunals can legitimately exercise jurisdiction in cases of genocide.
As with any conception of genocide, the discrimination model faces the difficult question of which types of social groups should count as genocide-eligible. I leave that question open here. My suspicion, though, is that the answer is connected to the answer to the question of which categories are properly protected by antidiscrimination law. Thus, an examination of the various arguments about protected categories in antidiscrimination law might prove helpful in addressing what seem to be parallel questions regarding the law of genocide.
V. Crimes Against Humanity: The Legal and Moral Concepts
I now turn to the legal and the moral concepts of crimes against humanity. My aim is to show that these are two very different concepts that have been conflated with one another due to the powerful moral resonance of the phrase “crimes against humanity.”
As we have seen in section II above, the legal concept of crimes against humanity refers to a widespread or systematic attack on a civilian population or the persecution of persons based on political, racial, or religious grounds. Notice that there is nothing in the definition that requires an egregiously high toll in the number of persons killed or otherwise severely harmed. A widespread or systematic attack might aim for an egregiously high death toll, or its perpetrators might only aim to kill a handful of civilians as an object lesson to the rest. Of course, even in the latter case, reasonable fear for their safety will be spread among the entire targeted population. The same goes for persecution, where, for example, a few offenders might be tortured as a lesson to the rest. Those who live in reasonable fear for their safety, as well as those who are killed, tortured or otherwise abused are among the victims of crimes against humanity.
However, the moral concept of crimes against humanity extends the scope of victimhood well beyond those who are directly abused and those who live in reasonable fear for their own safety as a result of the direct abuse of others. The moral concept centers on the idea of a wrongful harm done to humanity or humankind.
Perhaps the first philosophers to discuss the moral concept were Karl Jaspers and Hannah Arendt.Footnote 66 Shortly before the trial of Adolf Eichmann (1961), Arendt and Jaspers exchanged letters on the proceedings and on the Holocaust. Jaspers wrote to Arendt, “what was done to the Jews was done not only to the Jews but essentially to humankind…. From the very beginning we have been in complete agreement on the main point: the Eichmann case concerns humankind and should not be reduced to an Israeli issue.”Footnote 67 Subsequently, Arendt wrote in her account of the Eichmann trial that she and Jaspers agreed that the Nazi genocide was a crime against humanity because “the crime against the Jews was also a crime against mankind.”Footnote 68
More recently, many scholars have given voice to the moral concept that Jaspers and Arendt discussed. Thus, Larry May argues that, while domestic crimes harm a particular national community, acts that are punished under the law as crimes against humanity “must be shown to be in some sense assaults against humanity, not merely against the domestic State.”Footnote 69 Alain Finkielkraut writes of the crimes for which Klaus Barbie was prosecuted that they “attack, as their name indicates, all of humanity.”Footnote 70 Margaret deGuzman asserts that crimes against humanity “violate not only the individual victim but all of humanity.”Footnote 71 And former Canadian foreign minister, Lloyd Axelworthy, claims that “some crimes are so horrific, so offensive, that they are perpetrated not only against their victims but against humanity.”Footnote 72
Courts have also employed the moral concept of crimes against humanity in their explanation of the legal concept. Thus, the International Criminal Tribunal for Yugoslavia (ICTY) has written that “it is … the concept of humanity as victim which essentially characterises crimes against humanity.”Footnote 73 And in the Klaus Barbie case, the French Court of Cassation has declared that, unlike murder, in a crime against humanity “there is not merely a single victim but humanity.”Footnote 74
Additionally, there are many contemporary thinkers who employ the moral concept of crimes against humanity to characterize the crime of genocide. Thus, Raimond Gaitra contends that genocide is a “crime against the constituency of humankind as that is represented in the community of nations.”Footnote 75 And Adam Jones poses the rhetorical question, “… if the crime [of genocide] is not against human beings on a massive and systematic scale—therefore, in the contemporary understanding, a crime against all humanity—then what is?”Footnote 76
It is not immediately obvious just what is involved in the thought that crimes against humanity (or criminal acts of genocide) victimize humanity or humankind. Perhaps, the idea is that such crimes, as defined by the law, constitute wrongful harms against all or almost all human beings. But little explanation is offered to clarify or make credible the claim that humanity is the victim. If someone were deliberately to start a nuclear war, resulting in high amounts of radiation spreading across the globe and the attendant calamitous consequences for the entire human race, then the idea that such a persons was guilty of a crime that victimized humankind would be reasonable: the crime would result in severe harm for virtually every human being. But no crime against humanity (as defined by the law) that has so far been perpetrated has even remotely approximated such a calamity.
One might argue that the Nazi extermination of Jews, which was tied to the global calamity of World War II, would fit the bill for a crime that victimized humanity. However, the calamitous collapse of the global political and economic structure was the product of German aggression against other states and not the result of the extermination of Jews. This understanding of history is reflected in the fact that the IMT regarded the Third Reich's crimes of peace (i.e., its aggression), and not its crimes against humanity, as the “supreme crime.”Footnote 77 Moreover, even if the Nazi exterminations were, in their totality, correctly thought of as resulting in a global calamity, few other genocides or crimes against humanity, if any, could be plausibly said to have had harmful effects on the same order of magnitude.
The skeptical assertions of certain scholars reflect the suspicion that no crime against humanity, as the law defines it, actually victimizes humanity. In discussing the sentencing of persons found guilty of crimes against humanity in the former Yugoslavia and Rwanda, Allison Danner criticizes the suggestion that courts should be guided by the idea that the guilty parties have victimized humanity. Danner writes that “it is hyperbolic to assert… that the defendant's act has affected humanity as a whole,” and she argues that basing sentences on the exaggeration “that humanity is a victim … weaken[s] international criminal justice.”Footnote 78 David Nersessian is even more blunt:
The notion of “humanity” as a victim is more rhetorical flourish than legal substance. As horrible as atrocities in Yugoslavia and Rwanda were, it is doubtful that people in Central China or New York (equal members of “humanity”) were legitimate “victims” of those tragedies. Exactly the opposite is true. It is demeaning to suggest that a woman who lost her husband and sons in Srebrenica and was herself raped somehow is on equal footing with a London resident who read about Serbian atrocities in the newspaper.Footnote 79
These skeptical remarks of Danner and Nersessian are well taken. I do not mean that the remarks settle the issue, but they do raise doubts about whether there is some plausible account of how humankind or humanity is literally victimized by acts that meet the legal definition of crimes against humanity.Footnote 80 Larry May aims to provide such an account, arguing that, “because of the shared interests in peace and basic human rights protection, on the part of all humans in all political communities, there is enough solidarity among humans to speak nonmetaphorically about the human or international community …. Even though the community that is humanity is not a political community, it is a community that can be harmed.”Footnote 81 But even if May is right that humanity is a community that can be wrongfully harmed, it does not follow that a crime against humanity, as defined by law, actually does wrongfully harm humanity.
Arendt once suggested that a crime against humanity is “an attack upon human diversity as such, that is, upon a characteristic of the ‘human status’ without which the very words ‘mankind’ or ‘humanity’ would be devoid of meaning.”Footnote 82 The meaning of this suggestion is obscure. She might be gesturing at Lemkin's idea that the destruction of a religious or national group deprives the rest of humanity of the distinctive cultural contribution of that group (see section IV, above). But even if Lemkin's idea is true, it would only apply in those few cases in which a group was completely destroyed. Moreover, it would also need to be shown that the rest of humanity has a right to the contribution of the group, not merely that the destruction of the group is against the interests of the rest of humanity. For otherwise, humanity would not be wrongfully harmed and so it would be inaccurate to characterize humanity as a victim.
Another effort to explain how crimes against humanity are literally wrongful harms to humankind is provided by Christopher Macleod. He begins by distinguishing humankind as the collection of all humans from humankind as a “singular body,” or “grand-etre,” as he calls it (borrowing from Comte).Footnote 83 Macleod's argument is intended to make plausible the idea that “[h]umanity, thought of as one entity, can be said to have … interests on its own terms.” The core of the argument appeals to ordinary ways in which we talk about humanity and humankind, outside of the context of international criminal law. Thus, Macleod writes that “we describe human-kind (sic) as having achievements, interests, and goals” when we are not talking about crimes against humanity, and he points out that there is nothing amiss in saying that “human-kind has landed on the moon … [,] is trying to create a peaceful and just world … , and needs to find a sustainable form of energy.” Additionally, “[w]e often treat universities, nations, and clubs as having attitudes and objectives which do not seem in any clear way identical to those of the persons who make them up. Talking of humankind in this way is merely to talk of another group.”Footnote 84 And just as other groups have interests which can be set back, Macleod asserts that so does humanity as a singular body: “Human-kind … can be plausibly said to have interests and to be capable of damage as one agent.” Crimes against humanity count as wrongs, according to Macleod, in virtue of the fact that, “[w]hen … a state massacres a population, damage is done to the grand-etre because its interests are seriously violated.”Footnote 85
MacLeod's argument circumvents the problem that virtually no actual crime against humanity seems to harm all or almost all humans. However, it suffers from the problem that humankind—the grand-etre—is not plausibly represented as an agent. It is true that the human species has a kind of overall structure, segmented into various political units and legal associations. But the structure is not one that could ground the literal truth of claims to the effect that humanity has performed a certain action or otherwise exercised agency. The United States can act, and NATO can act. But humanity has no institutional structure through which it can act. Even if one day some altered form of the UN could act for humanity, the current UN falls far short on that score, containing as it does many authoritarian states that cannot even be said to be the agents of their own people. And the assertion that humankind has landed on the moon is simply a way of saying that certain members of the human species conceived, organized, and successfully carried out a moon landing. Those members and their associations, not humankind, are the relevant agents. The rest of us humans might stand in the reflected glory, but it is reflected glory: we do not merit credit for the impressive achievement of sending some humans to the moon.
It might turn out that there is some plausible way to explain how crimes against humanity victimize humanity. However, no actual crime against humanity seems to come close to harming all or most humans, and no actual crime against humanity seems to come close to seriously damaging the global political or economic structure of humanity. At best, a large question mark hangs over the oft repeated claim that crimes against humanity literally have humanity as their victim. Accordingly, it is not clear that the moral concept of crimes against humanity sheds any light on the criminal actions and historical episodes to which it has been applied.
VI. Crimes Against Humanity: Sources of Confusion
The conflation between the legal and moral concepts of crimes against humanity derives from the combination of two ideas. First is the idea that the enormities for which the Nazis were prosecuted at Nuremberg were so great that they wronged humankind. Second is the assumption that those enormities are paradigmatic cases of the legal category of crimes against humanity. Putting these two ideas together, one naturally—but unsoundly—infers the conclusion that crimes against humanity, in the legal sense, are wrongful harms to humankind. Let us examine more closely the two ideas.
It is understandable that many people have sympathy for the idea that the Nazi enormities wrongfully harmed humankind. The scale and horror of those enormities are staggering to anyone with a remotely adequate sense of justice. But we have seen that it is questionable to claim that crimes against humanity (or genocides) literally victimize humanity. My own view is that characterizing Nazi atrocities as crimes that victimize humankind is best understood as a metaphor that helps to emphasize how morally outrageous the crimes were.Footnote 86 In other words, by so characterizing the atrocities, one is saying that, in their totality, they were so massively wrong that it is as though the Nazis grievously wronged billions of innocent humans. But even if I am mistaken in this view and Nazi atrocities were so vast and egregious that they did wrongfully harm humankind in some literal sense, it would still be a mistake to think that crimes against humanity under the law are crimes that wrong humankind. The reason is that, in virtually every case, crimes against humanity, as defined by the law, are crimes involving wrongful harms that are of a much lower order of magnitude than the crimes perpetrated by the Nazis. Thus, even if the Nazi crimes wronged humankind, the same cannot be plausibly said of most other legal cases of crimes against humanity.
One might argue that, if it is conceded that Nazi atrocities wrongfully harmed humankind, then the conclusion can be drawn that the typical crime against humanity, in the legal sense, also does wrongful harm to humankind, because the Nazi atrocities are paradigmatic crimes against humanity, in the legal sense. But it is a mistake to take the Nazi crimes as paradigmatic crimes against humanity, i.e., it is incorrect to treat Nazi crimes as a standard case of crimes against humanity. The mistake is understandable in light of the strong psychological association between the term ‘crimes against humanity’ and the enormities perpetrated by the Third Reich. But it is a mistake: although Nazi crimes are incontestable instances of the legal category of crimes against humanity, they are also extreme cases.Footnote 87 Extreme cases make bad paradigms because they are idiosyncratic and have morally important features that typical cases lack. Accordingly, one cannot infer that crimes against humanity, in the legal sense, typically do wrongful harm to humanity from the assumption that Nazi crimes against humanity did such harm.Footnote 88
VII. Conclusion
Over the past sixty years, international criminal law has played an increasingly important role in efforts to translate the moral lessons that emerged out of the ruins of the Second World War into the concrete realities of political and social life. That it has not been effective in deterring large-scale atrocities or even ending impunity for such events goes without saying. That greater effectiveness is something for which one should hope would be questioned only by a few. At least in the short term, greater effectiveness does not depend on greater conceptual clarity about the law but rather on better institutions at the national and international levels. Still, over the long run, increased conceptual clarity might play some modest role.
In this paper, I have tried to put two of the core categories of international criminal law—genocide and crimes against humanity—into sharper conceptual focus. I have argued that scholars, lawyers, and judges have widely misunderstood these categories, in large part because they have conflated the legal concepts of genocide and crimes against humanity with the moral concepts. This conflation is not the same kind about which legal positivists complain when they charge that natural law thinkers confuse law and morality, and my concern has not been the positivist one relating to the conditions under which a norm has legal validity. Rather, the concern has been to clarify the concepts that scholars, lawyers, and judges are deploying when they seek both to grasp the moral significance of episodes of large-scale violence and to prosecute and punish persons for their involvement in such violence. A conceptual division of labor is needed for these two jobs—moral concepts for the former task and legal ones for the latter.
The legal concept of crimes against humanity has done valuable work in bringing a small measure of justice to men who organized and participated in some of the worst atrocities of the past century. But I have tried to cast some doubt on the value of the moral concept of crimes against humanity, suggesting that it does not literally apply to the acts and episodes that it is meant to capture. The legal concept of genocide has also done valuable work in bringing some measure of justice to those who richly deserve punishment for their complicity in large-scale violence. And I have argued that the moral concept of genocide, unlike its counterpart for crimes against humanity, does valuable work in capturing a kind of extreme discrimination that humans perpetrate against one another with dismaying regularity.
