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Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2004 A Theory of Crimes Against Humanity David Luban Georgetown University Law Center, [email protected] This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/146 29 Yale J. Int'l L. 85-167 (2004) This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the Human Rights Law Commons GEORGETOWN LAW Faculty Publications January 2010 A Theory of Crimes Against Humanity 29 Yale J. Int’l L. 85-167 (2004) David Luban Professor of Law Georgetown University Law Center [email protected] This paper can be downloaded without charge from: Scholarly Commons: http://scholarship.law.georgetown.edu/facpub/146/ Posted with permission of the author A Theory of Crimes Against Humanity David Luban t I. INTRODUCTION: CRIMES AGAINST HUMANNESS AND CRIMES AGAINST HUMANKIND ................. 86 II. CRIMES AGAINST HUMANITY: THE DISTINCTIVE LEGAL FEATURES ............................................. 93 III. CRIMES AGAINST HUMANNESS AND THE POLITICAL ANIMAL .................................................... 109 A. Aspects ofHumanity ...................... , ................................................................................ 109 B. The Political Animal ....................................................................................................... III C. "Unsociable Sociability" Versus Group Diversity; Crimes Against Humanity Versus Genocide ......................................................................................................................... 114 IV. CRIMES AGAINST HUMANITY AS POLITICS GONE CANCEROUS ................................................... 116 V. SCHMITT'S DEMONIZA TION CRITIQUE: A RESPONSE .................................................................. 120 VI. CRIMES AGAINST HUMANKIND AND THE Locus OF JURISDICTION ............................................. 124 A. The Normative Weakness of "Laws ofHumanity" ......................................................... 125 B. Social Contract Theory and the Domestic Analogy: Rawls ............................................ 131 C. The Failure of the Domestic Analogy ............................................................................. 134 VII. THE VIGILANTE JURISDICTION .................................................................................................... 137 A. The Human Interest in Repressing Crimes Against Humanity ....................................... 137 B. Hostis Humani Generis ................................................................................................... 140 VIII. NATURAL JUSTICE AND JURISDICTIONAL ECLECTICISM .............................................................. 141 IX. AN ILLUSTRATION: CONGO V. BELGIUM ...............................................•.......................••............. 146 A. Judge Bula-Bula 's Separate Opinion ............................................................................. 148 B. The Universal Jurisdiction Opinions .............................................................................. 150 C. Immunity and the End ofPolitics as Usual ..................................................................... 156 X. CONCLUSION: WHAT'S IN A NAME? ............................................................................................ 159 APPENDIX: SOME STATUTORY DEFINITIONS OF CRIMES AGAINST HUMANITY AND GENOCIDE ............... 162 t Frederick Haas Professor of Law and Philosophy, Georgetown University Law Center. I wrote an earlier, by now almost unrecognizably different, version of this paper for a conference on crimes against humanity at Western Ontario University in January 2002. I wish to thank the participants in that conference for their comments, and the conveners, Charles Jones and Richard Vernon, for the initial invitation to think seriously about the subject. I have also received helpful responses to this paper from participants in Georgetown University's faculty research workshop, including written comments from Emma Coleman Jordan and Neal Katyal. My research assistant, Mike Garcia, helped with a detailed critique of an earlier version of the paper, and Kate Kerr provided essential research assistance in preparing the final draft. I presented a later incarnation of the paper at Yale Law School's Schell Center, and received valuable comments and suggestions from many participants, particularly Paul Kahn. Larry May gave me useful comments on a later draft, and I have benefited as well from the opportunity to read the manuscript of his forthcoming book, Crimes Against Humanity: A Normative Account. I also wish to thank participants in a workshop on the paper at the University of Maryland philosophy colloquium. Finally, I want to thank Julie O'Sullivan for encouragement and innumerable insights as we worked through this material for our International Criminal Law class. 85 HeinOnline -- 29 Yale J. Int'l L. 85 2004 86 THE YALE JOURNAL OF INTERNATIONAL LAW [Vol. 29: 85 I. INTRODUCTION: CRIMES AGAINST HUMANNESS AND CRIMES AGAINST HUMANKIND No record exists of how the term "crimes against humanity" came to be chosen by the framers of the Nuremberg Charter. The term was selected by U.S. Supreme Court Justice Robert Jackson, the chief U.S. prosecutor at Nuremberg and the head of the American delegation to the London Conference that framed the Charter. Jackson consulted with the great international law scholar Hersch Lauterpacht, but they decided to leave their deliberations unrecorded, apparently to avoid courting controversy. In 1915, the French, British, and Russian governments had denounced Turkey's Armenian genocide as "crimes against civilization and humanity," and the same phrase appeared in a 1919 proposal to conduct trials of the Turkish perpetrators. But the United States objected at that time that the so-called "laws of humanity" had no specific content, and the proposal to try the Turks was scuttled. Apparently, Jackson saw no reason to invoke a precedent to which his own government had earlier objected on rule of law grounds and concluded that the less said, the better. 1 Cherif Bassiouni, who chronicles these events, nevertheless finds the crimes-against-humanity terminology "most appropriate," and, aside from worries to be considered below that the term runs the danger of demonizing those who commit such crimes, it is hard to disagree.2 The phrase "crimes against humanity" has acquired enormous resonance in the legal and moral imaginations of the post-World War II world. It suggests, in at least two distinct ways, the enormity of these offenses. First, the phrase "crimes against humanity" suggests offenses that aggrieve not only the victims and their own communities, but all human beings, regardless of their community. Second, the phrase suggests that these offenses cut deep, violating the core humanity that we all share and that distinguishes us from other natural beings. 3 This double meaning gives the phrase potency, but also ambiguity-an ambiguity we may trace back to the double meaning of the word "humanity." "Humanity" means both the quality of being human-humanness-and the 1. M. CHERIF BASSIOUNI, CRIMES AGAINST HUMANITY IN INTERNATIONAL CRIMINAL LAW 17-18 (2d ed. 1999). See also LAWRENCE DOUGLAS, THE MEMORY OF JUDGMENT: MAKING LAW AND HISTORY IN THE TRIALS OF THE HOLOCAUST 44-46 (2001); KRIANGSAK KITTICHAISAREE, INTERNATIONAL CRIMINAL LAW 85-86 (2001). For further discussion of the origin of the legal notion of crimes against humanity, see ANTONIO CASSESE, INTERNATIONAL CRIMINAL LAW 67-74 (2003). The term "crimes against humanity" appeared in some Latin American penal codes in the 1920s, and the states that employed it asserted universal jurisdiction over such crimes. Harvard Research Project on Criminal Jurisdiction, 29 AM. J. INT'L L. 435, 571 (Supp. 1935) (citing penal codes of Costa Rica and Venezuela). 2. BASSIOUNI, supra note 1, at 17,62-63. The worry about demonization comes out with particular clarity in CARL SCHMITT, THE CONCEPT OF THE POLITICAL 54 (George Schwab trans., 1996) ("To confiscate the word humanity, to invoke and monopolize such a term probably has certain incalculable effects, such as denying the enemy the quality of being human ...."). See the illuminating discussion of Schmitt in MARTT! KOSKENNIEMI, THE GENTLE CIVILIZER OF NATIONS: THE RISE AND FALL OF INTERNATIONAL LAW 1870-1960, at 415-436 (2001). I discuss Schmitt's argument infra at Part V. 3. Here and elsewhere my argument overlaps with Richard Vernon, What Is a Crime Against Humanity?, 10 J. POL. PHIL. 231, 242-45 (2002). Vernon notes the distinction presented here. Id. at 238- 40. I shall note other points of overlap (as well as disagreement) when they arise. HeinOnline -- 29 Yale J. Int'l L. 86 2004 2004] A Theory of Crimes Against Humanity 87 aggregation of all human beings-humankind.4 Taken in the former sense, "crimes against humanity" suggests that the defining feature of these offenses is the value they injure, namely humanness. The law traditionally distinguishes between crimes against persons, crimes against property, crimes against public order, crimes against morals, and the like. Here, the idea is to supplement the traditional taxonomy of legally protected values-property, persons, public order, morals-by adding that some offenses are crimes against humanness as such.
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