Norman Geras: Crimes Against Humanity: Birth of a Concept

The legal definition of crimes against humanity was first explicitly formulated in the London Charter, establishing the International Military Tribunal (IMT) at Nuremberg and forming the basis of the trial of the leading figures of the Third Reich. Geras usefully recounts some of the political and legal history behind the emergence of crimes against humanity in the Charter and insightfully discusses some of the post-Charter evolution of the offence in international law. As he writes, ‘the Nuremburg Trials… marked the official birth of the concept of crimes against humanity, inaugurating its effective, its practical, emergence into the world of law and the world of the law’ (3—italics in original), and, yet, ‘[o]n virtually every dimension of interest [the trial’s] meaning was ambiguous and has been disputed’ (20). The Charter’s provision on crimes against humanity divided such crimes into two main categories: first, ‘murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war,’ and, second, ‘persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal’ (13–14). In its judgment, the Tribunal interpreted the Charter as requiring that a crime against humanity be connected to a state’s preparation for, or execution of, war. Geras thinks that this ‘war-nexus’ requirement was a mistake and notes approvingly that it is no longer in place; he writes that ‘the conditions of war and peace are logically extrinsic to what the offence of crimes against humanity aimed to prohibit. Atrocities against individuals or groups may be more likely in wartime, but they are also perfectly possible outside of it’ (84). Fortunately, in Geras’s eyes, in 1998 the Statute for the International Criminal Court (ICC) did away with the IMT’s requirement of a connection to war, and since then, ‘there has been a steady movement away from the war nexus’ (83). The London Charter did not explicitly impose a state-action requirement on crimes against humanity, but international lawyers and legal theorists have long endorsed the view that only a state or its agents are liable for such crimes. However, this requirement, too, has come under criticism, and many international lawyers now argue that non-state actors can be held liable for crimes against humanity. Geras agrees that the state-action requirement should be jettisoned, arguing, ‘Like war, state delinquency certainly provides a facilitating context for extreme human rights violations; but like war, it is not essential to them’ (85). Any state-action requirement unduly restricts what counts as a crime against humanity. Geras also finds prominent philosophical accounts of crimes against humanity to be unduly restrictive. Larry May, for example, has proposed that the persecution-based crimes enumerated by the London Charter (i.e., the second category under its definition of the offence) can provide a useful model for understanding all crimes against humanity. Thus, May argues that such crimes are essentially offences committed against persons on account of their belonging to some disfavored group. But Geras is unpersuaded: ‘[P]eople can be attacked in their humanity by way of other human characteristics than their group membership’ (88). Persecution on account of group membership is one form that crimes against humanity can take, but Geras contends that it is not the only form. Thus far, Geras’s critical arguments are quite convincing: it is unduly limiting to regard crimes against humanity as essentially involving a war nexus, or state action, or group-based persecution. But his crucial critical argument is yet to come. It concerns the very heart of the legal definition of crimes against humanity, a part of the definition that is found, in one form or another, not only in the London Charter but in the Statute of the ICC and every other legally authoritative statement of what constitutes such a crime. The part in question requires that a crime against humanity be part of a widespread or systemic attack against civilians and so specifies a contextual element for the crime. Let us turn to that element and Geras’s rejection of it.