This book tells the story of the emergence of the concept of crimes against humanity. It examines its origins, the ethical assumptions underpinning it, its legal and philosophical boundaries and some of the controversies connected with it. A brief historical introduction is followed by an exploration of the various meanings of the term ‘crimes against humanity’ that have been suggested; a definition is proposed linking it to the idea of basic human rights. The book looks at some problems with the boundaries of the concept, the threshold for its proper application and the related issue of humanitarian intervention. It concludes with a discussion of the prospects for the further development of crimes-against-humanity law.
This chapter sets out the main purpose of the book, which is to develop a concept of crimes against humanity that may be at once clear and compelling. A broader, secondary purpose is to integrate the concept within the old meliorative perspective of the movement for a better world: a world that comes closer to being morally tolerable, decently liveable-in for the generality of its inhabitants. The chapter then focuses on the logic of the ethical conception, on the normative and other philosophical assumptions, underlying the offence in law of crimes against humanity. It attempts to domesticate this concept within the domain of political thought, and by doing this to clarify it for a wider audience. An overview of the subsequent chapters is also presented.
This chapter sketches something of the prehistory of the idea of crimes against humanity up to the end of the Second World War, its official emergence in the Nuremberg Charter and Trial, and some further landmarks in its development. The chapter is essentially preparatory; it may be seen as laying out the raw materials for the conceptual analysis and argument to follow. At the same time as registering some basic facts in the history of a new legal concept, it raises a question to which it does not provide the answer. For it introduces an idea fundamental to the offence of crimes against humanity—namely, that states are not above all law in the way they treat those under their jurisdiction—without explaining in virtue of what they are held to be so constrained by a ‘higher’ law.
This chapter analyzes the meaning of the claim that there are crimes that are said to be against humanity. That meaning is not transparently obvious, and it examines several ways in which it has been construed. It puts forward an adjudication between them—an argument as to which of the construals proffered are the most compelling. It proposes, in doing so, that if such crimes can intelligibly be spoken of as crimes against humanity, it is in part because of the premise that there are fundamental human rights.
This chapter explores the logical consequences of the conceptual underpinning discussed in Chapter 2. It attempts to resolve the issue of how to distinguish between crimes against humanity under international law and ordinary crimes under domestic law. It considers the most important features that have been argued to be—and not to be—defining the jurisdictional requirements of the offence of crimes against humanity: discussing the connection with war, the idea of a crime of state, the would-be requirement of a discriminatory component, the need for a threshold of scale and, throughout, the relation between crimes against humanity and basic human rights. It proposes a conceptualization of the offence of crimes against humanity that is consonant with the reading of ‘against humanity’ given in Chapter 2. It shows that an important problem remains within current crimes-against-humanity law—a contradiction, indeed, between the human-rights basis of this law and the threshold of scale that is standardly held to apply to the definition of the offence. A way of handling the contradiction is suggested.
This chapter considers the relation between crimes against humanity and the idea of humanitarian intervention, and asks, more specifically, if there is a right of humanitarian intervention. The idea of humanitarian intervention is an integral part of the intellectual and legal prehistory of the concept of crimes against humanity, and that is one reason for discussing it here. But a second reason for doing so is that it is a source of much political controversy today, and the questions that are in dispute about it are closely related to the purposes of crimes-against-humanity law.
This chapter looks at a number of issues connected with the state of international humanitarian law as it has evolved to this point, and the prospects of its further development. After considering whether international law is, properly speaking, law, it explores the problem of political agency—that is to say, of how the achievement of a juridical regime targeting crimes against humanity is to be taken forward. To this end, it discusses, in turn, the sort of global community presupposed by such a regime, the nature of the movement needed to bring it about, and the political ethics suitable to such a movement. The chapter—its concern with the ambition ‘to transform international morality into a revolutionary legality’—may be seen as a conclusion that matches the book's opening: having begun with the prehistory of the offence of crimes against humanity, it ends by looking at the global movement to strengthen the framework of crimes-against-humanity law in the future.