Journal of the History of International Law 21 (2019) 299–329 JHIL brill.com/jhil Crimes against the People – a Sui Generis Socialist International Crime? Tamás Hoffmann Centre for Social Sciences Institute for Legal Studies, Magyar Tudomanyos Akademia, Budapest [email protected] Received: 16 March 2018; Revised: 20 July 2018; Accepted: 28 September 2018; published online: 01 July 2019 Abstract Crimes against humanity is one of the core crimes in international criminal law, whose existence is treated as a natural reaction to mass atrocities. This idea of linear prog- ress is challenged by this article, which demonstrates that in post-Second World War Hungary an alternative approach was developed to prosecute human rights violation committed against civilian populations. Even though this concept was eventually used as a political weapon by the Communist Party, it had long-lasting effects on the pros- ecution of international crimes in Hungary. Keywords international criminal law – crimes against humanity – international crimes – Hungary 1 Introduction – Enforcement of Humanity as a Cosmopolitan Value The history of international law is often presented as a linear story of progress where international catastrophes inevitably lead to eventual breakthroughs in © Tamás Hoffmann, 2019 | doi:10.1163/15718050-12340113 This is an open access article distributed under the terms of the CC BY-NC-NDDownloaded 4.0 License. from Brill.com09/24/2021 10:13:16AM via free access 300 Hoffmann legal regulation.1 In this vein, the creation of the category of crimes against humanity is repeatedly portrayed as a natural result of the effort to criminalize crimes committed against civilian populations during World War II. Humanity as the normative idea of the moral unity of mankind has a long pedigree, whose origins can be traced back to the Stoic philosophy of Cicero, and later endorsed by Christian philosophers, such as St. Augustine and Thomas Aquinas. The concept later played a pivotal role in the natural law philosophies of Vitoria, Suarez and Wolff2 and gained prominence in the eighteenth century as a normative-legal idea endorsed by the Enlightenment philosophers.3 By the nineteenth century, the concept of humanity surfaced in internation- al documents usually intertwined with the notion of civilization.4 In 1815, the Congress of Vienna Final Act on the Prohibition of Slave Trade condemned the slave trade as ‘repugnant to the principles of humanity and universal morality’ and declared that ‘the public voice in all civilized countries calls aloud for its prompt suppression’.5 The concept of humanity later became an integral component of the dis- course of the laws of war. The adoption of the 1899 Hague Convention (II) with Respect to the Laws and Customs of War on Land entrenched the notion in jus in bello. The preamble of the Convention that was designed ‘to serve … the interests of humanity and the ever increasing requirements of civilization’ 1 Simpson, Gerry. ‘Linear Law: The History of International Criminal Law’, in Critical Approaches to International Criminal Law: An Introduction, ed. Christine Schwöbel (Oxon: Routledge, 2014), 159–179. 2 See Simma, Bruno. ‘The Contribution of Alfred Verdross to the Theory of International Law’. European Journal of International Law 6 (1995), 33–54, 38–43. 3 Denis Diderot even referred to humanity as ‘the only truly inalienable right’. See Zagor, Matthew. ‘Elementary Considerations of Humanity’, in The ICJ and the Evolution of International Law: The Enduring Impact of the “Corfu Channel” Case, eds. Karine Bannelier, Theodore Christakis and Sarah Heathcote (Oxon: Routledge, 2011), 269. 4 On the ‘civilizing mission’ of international law and its ties to the European imperial project see Koskenniemi, Martti. The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge: Cambridge University Press, 2001). As late as 1950, Graven still emphasized the necessity of a state of civilization for the recognition of laws of humanity. See Graven, Jean. ‘Les crimes contre l’humanité’. Receuil des Cours 76 (1950), 433–607, 463. 5 Final Act of the Congress of Vienna of 8 February 1815, Resolution No. 15, Déclaration du Congrès de Vienne en date du 8 fevrier 1815 au sujet de l’abolition de la traité des nègres d’Afrique ou du commerce des esclaves. http://www.le-prince-de-talleyrand.fr/traitenoirs.html. Zagor, however, points out that the universalistic language actually conceals parochial motives since ‘The world society whose normative voice can be heard in the 1815 Declaration was essentially that of Britain, the emerging hegemon after the Napoleonic wars, where an or- ganized and politicized public had demanded international action’. Zagor, ‘Elementary Considerations’ 2011 (n. 3), 270. Journal of the History of InternationalDownloaded Law 21 from (2019) Brill.com09/24/2021 299–329 10:13:16AM via free access Crimes against the People 301 introduced the so-called Martens clause (named after the head of the Russian delegation),6 which pronounced that: the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of public conscience. The repeated inclusion of this clause with essentially the same wording in international conventions has anchored the idea that the laws of war have moralistic foundations,7 but these conventions failed to establish individual criminal responsibility for breaches of the laws of humanity. In 1915, the British, French and Russian governments issued a joint declara- tion, publicly denouncing the massive and widespread deportation and exter- mination of hundreds of thousands of Armenians by the Ottoman government as ‘crimes against humanity and civilisation’.8 The Allied Powers endeavoured to give effect to the declaration through the Sèvres Peace Treaty concluded be- tween Turkey and the Allied Powers but it was eventually not ratified, and the final Lausanne Peace Treaty omitted any reference to criminal prosecution.9 In similar vein, the 1919 Final Report of the Commission on the Responsibil­ ity of the Authors of the War and on Enforcement of Penalties asserted that Germany and its Allies had committed numerous acts in violation of 6 On the Martens Clause see Giladi, Rotem. ‘The Enactment of Irony: Reflections on the Origins of the Martens Clause’. European Journal of International Law 25 (2014), 847–869. 7 Inter alia, it was included in the 1907 Hague Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907; 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict. The Hague, 14 May 1954; 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. 8 ‘In view of these new crimes of Turkey against humanity and civilisation, the Allied gov- ernments announce publicly to the Sublime Porte that they will hold personally responsi- ble [for] these crimes all members of the Ottoman Government and those of their agents who are implicated in such massacres.’ Quoted in United Nations War Crimes Commission. History of the United Nations War Crimes Commission and the Development of the Laws of War (London: His Majesty’s Stationery Office, 1948) 35. 9 Nevertheless, an Ottoman State Special Military Tribunal did initiate criminal proceedings against some of the perpetrators. See Balint, Jennifer. ‘The Ottoman State Special Military Tribunal for the Genocide of the Armenians: “Doing Government Business”’, in The Hidden Histories of War Crimes Trials, eds. Kevin Jon Heller and Gerry Simpson (Oxford: Oxford University Press, 2013), 77–100. Journal of the History of International Law 21 Downloaded(2019) 299–329 from Brill.com09/24/2021 10:13:16AM via free access 302 Hoffmann established laws and customs of war and ‘the elementary laws of humanity’10 – raising the prospect of potential prosecution of crimes committed against the Central Power’s own citizens.11 However, both the United States and Japan held the view that ‘laws of humanity’ are not part of positive international law but natural law therefore any attempted prosecution based on that jus- tification would be tantamount to ex post facto law-making.12 Consequently, the Versailles Treaty failed to include any reference to criminal proceedings for crimes committed against a country’s own civilian population. The unprecedented atrocities of the Second World War resurrected the no- tion of legal accountability for crimes committed against the civilian popu- lation. On 20 October 1943, seventeen Allied nations established the United Nations War Crimes Commission (UNWCC), an organization specially tasked with the mandate of establishing the legal framework of prosecuting war criminals.13 From the beginning, most of the representatives of the UNWCC have sup- ported the extension of punishment beyond war crimes.14 The Czechoslovakian delegate, Bohuslav Ečer, argued that the concept of war crimes should en- compass crimes committed on the grounds of race, nationality, religion, or political beliefs invoking the Martens clause15 and was supported by the in- fluential secretary of the UNWCC, Egon Schwelb.16 Criminalization of crimes committed against the civilian population was also endorsed by the American representative, Herbert C. Pell, who repeatedly referred to these atrocities as ‘crimes against humanity’17 even though the idea was very controversial within 10 Commission on the Responsibilities of the Authors of War and on Enforcement of Penalties. ‘Report Presented to the Preliminary Peace Conference’. American Journal of International Law 14 (1920), 95–154, 121–125. 11 See Boot, Machteld. Genocide, Crimes against Humanity, War Crimes: Nullum Crimen Sine Lege and the Subject Matter Jurisdiction of the International Criminal Court (Antwerp: Intersentia, 2002), 458. 12 Bassiouni, Cherif M.