Crimes Against Humanity

A Beginner's Guide

Adam Jones

• Publisher: Oneworld Publications
• Year: 2012
• ISBN:
  9781780741468
• Topic: Politics & International Relations
• Subtopic: Human Rights
• Index: Politics & International Relations

How we can stop the world's worst atrocities In this compelling overview, Adam Jones outlines the history and current extent of key crimes against humanity, and highlights the efforts of popular movements to suppress them. Using examples ranging from the genocides in Darfur and Rwanda to the sex trade of Eastern Europe and the use of torture in the 'war on terror, ' Jones explores the progress made in toughening international law, and the stumbling blocks which prevent full compliance with it. Coherent and revealing, this book is essential for anyone interested in the well-being of humanity and its future.

1

Genesis

Spring 1915. World War I has degenerated into a grim war of attrition. Millions of soldiers are stuck fast in a trench system that snakes from the Belgian coast to the Swiss border.

In an attempt to break the deadlock, the British, French, and Anzac (Australia/New Zealand) forces launched an attack on the Dardanelles straits, seeking to force a way through to Constantinople and to neutralize the Ottoman Empire, a key German and Austrian ally. Partly in response to the crisis, the Ottoman authorities in Constantinople clamped down – not in the Dardanelles, but against the Christian minority populations of the empire: the Armenians, the Assyrians, the Anatolian and Pontian Greeks. What became known as ‘the Armenian genocide’ began with the arrest and eventual execution of hundreds of Armenian notables in the Ottoman capital and elsewhere. Brazen massacres of Armenians, Greeks, and Assyrians erupted across the realm, peaking between 1915 and 1917.

Seeking to assert its historic self-image as protector of Christian minorities in its sphere of influence, Russia called for a declaration by the countries of the Triple Entente alliance stating that the atrocities unleashed against the Armenians and others would be punished after an Entente victory. Great Britain and France were concerned that the Russian declaration, which referred to ‘crimes . . . against Christianity and civilization’, would only provoke further anti-Christian persecution, when the Allies could do nothing practical to assist the targeted populations. Accordingly, they pushed for a revision of the text. Sergei Sazonov, the Russian foreign minister, agreed to change the reference to crimes against Christianity to denounce instead crimes ‘against humanity and civilization’. Thus, the drafters invented a phrase that ‘was to become a powerful concept of international law – the “crime against humanity”’.

‘HOLD PERSONALLY RESPONSIBLE’: THE ALLIED DECLARATION OF MAY 1915

For about a month the Kurd and Turkish population of Armenia has been massacring Armenians with the connivance and often assistance of Ottoman authorities. Such massacres took place in middle April . . . at Erzerum, Dertchun, Eguine, Van, Bitlis, Mush, Sassun, Zeitun, and through Cilicia. Inhabitants of about one hundred villages near Van were all murdered. In that city [the] Armenian quarter is besieged by Kurds. At the same time in Constantinople [the] Ottoman Government ill-treats [the] inoffensive Armenian population. In view of these new crimes of Turkey against humanity and civilization, the Allied governments announce publicly to the Sublime Porte [Ottoman authorities] that they will hold personally responsible [for] these crimes all members of the Ottoman Government and those of their agents who are implicated in such massacres.

Quoted in Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Tribunals (Princeton, NJ: Princeton University Press, 2000), p. 117.

It would be easy to dismiss the Allies’ declaration as merely wartime propaganda – or shameless hypocrisy. After all, as the leading colonial powers of the age, Britain and France had repeatedly slaughtered ‘rebellious’ civilian populations. Russia’s treatment of its Caucasian Muslim population in the latter half of the nineteenth century was little less brutal and destructive than the Ottomans’ campaign against their Christian subjects. It must also be acknowledged that the will to hold perpetrators accountable evaporated after a few trials were held in Constantinople in 1919–20. Nevertheless, the declaration built on centuries of evolving concepts of human rights – a growing sense of what would be called in the contemporary period ‘the responsibility to protect’.

‘Offend against all humankind’

Discussions of crimes against humanity draw on both senses of the word ‘humanity’ – humanity as humanness and humanity as humankind. The central questions for any theory of crimes against humanity are how these deeds violate humanness and why they offend against all humankind.

David Luban

Human beings have a highly developed capacity for empathy: the power to apprehend and commingle emotionally with another. This tends to be strongly focused at the epicenter of social organization, however – family, tribe, now extended to nation-state – and weaker with regard to those more remote or alien from the individual or subgroup. Our finely tuned sense of boundaries and territoriality makes us highly prone to intraspecies alienation, as evidenced by our ability to inflict campaigns of barbarism and extermination upon out-group populations.

Human beings have instituted norms and rules from the earliest period of recorded history to govern interactions among this peculiarly sociable, particularly volatile species. A broad conception of solidarity has governed intragroup (familial/tribal) organization. A vision of universal solidarity also came into being at a fairly early point. It usually took religious form: a concept of universal fraternity within a community of worship. In Greco-Roman and other traditions one may also discern the seed of a secular conception of individual rights – for example, citizenship and property rights. This mix of religious and civic values, in the Western tradition at least, provided the foundation for whatever more extensive concept of solidarity could be established when circumstances permitted.

The story of the modern era – from approximately the fifteenth century on – is in great part one of circumstances permitting. The growing extensiveness of human communication occurred in the context of what we know today as globalization. Western explorers charted the world, and Western imperial authorities followed in their train. The result was destruction on an unprecedented scale, beginning with the mass death of indigenous peoples across huge swaths of the Americas and Australasia, and the imposition on survivors of Western systems of philosophy, religion, and socioeconomic organization. However, the modern period also marks the onset and development of a genuinely cosmopolitan vision of international affairs: one that took the old Greco-Roman model of citizenship and extended it to a supranational or even global scale. (Immanuel Kant’s Towards Perpetual Peace, written in 1795, is generally considered the foundational text.) In the last century or two, ‘the notion that the individual is a citizen of the world and, indeed, that the world might become his or her polis’, or primary political unit, has ‘materialized into reality’ with the growing number of people ‘able to travel and find out about the world’ combined with ‘the economic expansion and the assertiveness of mass society’ (Daniele Archibugi).

Lest this paint an overly rosy portrait of travelers and wayfarers spreading cosmopolitan norms worldwide, we must again stress that norms and international ‘regimes’ have usually been established as part and parcel of imperial expansion and hegemonic imposition. The nineteenth-century superpower, Great Britain, engineered the abolition of international slavery by devoting the resources to its suppression that Britain, and only Britain, could supply. United States sponsorship was essential in both the post-World War I and post-World War II periods to the formation of key international regimes, including the League of Nations and United Nations systems.

However, ideas and norms are not established in international society merely as projections of hegemonic power. First, they often result from actions taken in opposition to prevailing authority. Intraelite conflict – the rebellion of aristocrats against the King – produced the Magna Carta in the thirteenth century. The workers’ and women’s movements of the nineteenth and twentieth centuries established important benefits and protections for ordinary people in the Western world and beyond. And the twentieth century’s greatest social movement – for decolonization and national liberation – entrenched the much-proclaimed, hitherto little-practiced norm of self-determination, along with prohibitions against colonial domination and forced racial segregation that are today among the most forceful of global prohibition regimes.

The movements that advanced these regimes were driven predominantly by nongovernmental actors, and in both the global South and the global North, such actors have sought to deepen and diversify bonds of human solidarity (and sometimes to undermine them through campaigns of hatred and political extremism). Nongovernmental organizations (NGOs) lobby, persuade, and shame states and other actors (e.g. multinational corporations) into compliance. They have also provided the expertise, especially scientific and legal, that underpins most of the international regimes currently extant.

Contemporary conceptions of human rights and ‘crimes against humanity’ center on the physical integrity of the individual. Violations of that integrity, particularly violent assaults, often evoke visceral empathy. Prohibition regimes against certain violations of rights are more likely to be sponsored and effectively regulated where they arouse widespread revulsion among publics and policymakers. When norm entrepreneurs can persuasively establish a connection between the practice and a serious physical violation, the requisite revulsion is most likely to be generated. This is the historical function of the diagram of the slave ship Brookes (chapter 4) or film footage of the Nazi concentration camps. In both cases, national and international opinion was shocked into institutional innovation in the field of human rights and (in the latter instance) ‘crimes against humanity’.

In today’s world, globalized communications are combined with a rich tapestry of international networks and institutions (both governmental and nongovernmental), and with an ever more cosmopolitan framing of human rights and physical integrity. Yet despite clear victories, many prohibition regimes to suppress particular crimes against humanity remain rudimentary at best. This is especially true when the cases are geographically and culturally distant from the Westernized center of the global order. The international community fiddles while genocide and ethnic cleansing sweep Darfur. One of the most vicious and systematic campaigns of mass rape ever recorded rages in Congo, provoking little more than occasional press reports and half-hearted peacekeeper interventions. Torture, established as an unusually potent prohibition regime by Western states in the nineteenth century, resurges in the ‘war on terror’, and the regime erodes.

Today, solidaristic/universalist/cosmopolitan perspectives contest the field with particularist/exclusivist conceptions. ‘Crimes against humanity’ is one of the most ringing expressions of the solidaristic view. There are grounds for believing that its progressive entrenching in international legal practice and public debate speaks to a relative increase in the human capacity for empathy and solidarity – though evidence for such general judgments is probably impossible to amass. Crimes against humanity are in essence crimes against one’s fellows, viewed in a universal context. Human beings seem always to have been capable of feeling injury to one’s fellow as an injury to oneself. We demonstrate a capacity to extend this empathy in communities of obligation that radiate outward from the self and core social unit, in circles of ever-greater inclusiveness. In their most contemporary and cosmopolitan conception, they encompass all of humanity – a humanity apprehended through unprecedentedly extensive webs of contact and channels of communication. The concept of crimes against humanity can therefore be expected to wax or wane in close connection with the broader appeal of a solidaristic conception and organization of human affairs.

Crimes against humanity in international law

By 1915, the notion of international human rights was well enough established that the Allies’ declaration, however seriously intended, could land on receptive ears. The declaration at least serves as a marker of the evolution of ‘human rights’ from, and towards, a universal norm. In particular, it capped decades of mounting concern for the plight of religious and ethnic minorities in Ottoman-controlled south-eastern Europe.

The Martens Clause in the preamble of the 1899 Hague Conventions marked the first reference to ‘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 the public conscience’ (emphasis added). Elsewhere, the Hague Conventions of 1899 and 1907 prohibited acts ‘that “shock” the conscience of mankind. Or they “outrage” or “offend” the conscience, or the moral judgment, of mankind. Or they are “repugnant in the public conscience” or “intolerable from the point of view of the entire international community”; or they represent a challenge to the “imperatives”, or the “law”, or the “code”, of “universal conscience”’.

These groundbreaking agreements paved the way for an impressive expansion of a universal rights discourse in the twentieth and twenty-first centuries. Before they did, however, human rights would be flouted on an unprecedented scale. In World War II, tens of millions of people were obliterated – as many as 40 million in the Soviet Union alone. By contrast with World War I, where mass atrocities against civilians were the exception rather than the rule, World War II established (or reestablished) the principle of targeting the civilian population as a means of annihilating an implacable enemy. The Nazis genocided Jews, Roma (Gypsies), and Polish and Soviet Slavs. At home, and even before the war started, they targeted individuals according to political belief, physical or mental disability, and homosexuality, to cite just a handful of victim categories. The Japanese dropped plague bacilli on Chinese cities, and perpetrated numerous direct massacres. The Allies committed their own range of mass crimes against civilians, notably their indiscriminate bombing of urban areas. Germany and Japan had pioneered the practice; but it was discreetly left off the charge-sheet of the postwar tribunals, since the Allies had responded in kind with a ferocity – including atomic bombing – that dwarfed the original Axis assaults.

Among the victor’s spoils claimed by the Allies at the onset of the postwar era was the right to try Nazi and Japanese leaders for war crimes and crimes against humanity. The result was the Nuremberg and Tokyo tribunals of 1945–7. Each proceeding, but especially Nuremberg, was among the most famous trials in history, a watershed in international jurisprudence, and a landmark toward accountability for perpetrators of mass atrocity. It was also at these trials that the concept of ‘crimes against humanity’ first found formal expression and codification, in language that has shaped interpretations ever since.

THE NUREMBERG CHARTER: GENERAL PRINCIPLES (8 AUGUST 1945): ARTICLE 6

[. . .] The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:

(a) Crimes against peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.

(b) War crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose, of civilian populations of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity.

(c) Crimes against humanity: namely, 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.

Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plans.

As the Box opposite outlines, ahead of crimes against humanity, Nuremberg’s charter emphasized ‘crimes against peace’ – the wars of conquest that the Nazis waged – and the more widely accepted notion of ‘war...