Crimes Against Humanity.

May, Larry

Crimes Against Humanity: A Normative Account is the first of a multi-volume work on the moral foundations of international criminal law. (1) Crimes against humanity raise especially difficult questions in international law, since they are crimes that can be committed completely within one state's borders by members of that state against other members of that same state. The very idea of a crime against humanity challenges the traditional understanding of a state's exclusive prerogative over crimes committed within its borders. I defend a limited scope to international trials for crimes against humanity, arguing that some crimes are so egregious that they harm humanity and thus warrant international prosecutions.

The book is divided into four parts. The first part sets out a theory of sovereignty, and explains why state sovereignty is not absolute, even on a Hobbesian view, and why some norms cross borders. The second part defends two normative principles, the security and the international harm principles, that together justify international criminal trials for crimes that do not themselves cross borders. The third part defends the idea that crimes against humanity involve an intent to participate in a widespread and systematic attack on a population, making it very difficult, although not impossible, for minor players to be successfully prosecuted for crimes against humanity. The fourth part explains why prosecutions for crimes against humanity should be limited in scope, why victims are not owed international prosecutions, and why alternatives such as truth and reconciliation commissions may be acceptable alternatives to international criminal trials. Throughout, I take a moral minimalist and defendant-oriented approach to understanding crimes against humanity.

The book begins by adopting a Hobbesian standpoint, the very standpoint often adopted by realists who claim that there are no moral restraints on a state's sovereign prerogative, especially in criminal law. I argue that a Hobbesian must realize, as Hobbes himself did, that when a sovereign either cannot or will not protect its subjects from serious harm, then the sovereign loses exclusive jurisdiction over such criminal matters, since for Hobbes there are "some rights that no man can be understood ... to have abandoned or transferred." (2) A Hobbesian minimalist can accept certain international prosecutions, since sovereignty is not absolute. Some norms cross borders, as it were. The most important is the norm that people's basic security and subsistence rights should be protected from assault, whether at the hands of individuals or governments. The universal norms in question, sometimes called jus cogens norms, can be supported either from a minimal natural law or a limited positivist position. But such norms are not easily grounded in mere custom or consent. Customary norms cannot ground universal moral prescriptions, such as those against apartheid, slavery, and genocide. But custom can give us good evidence of what are those jus cogens norms. A Hobbesian recognizes that some rights are universal in that they are grounded in the natural need for security that each of us seeks, and that such rights limit state sovereignty.

The normative core of the book is my defense of the security and international harm principles that together ground limited international criminal trials. The security principle expands on my Hobbesian understanding of the limits of state sovereignty. The state can lose its exclusive right to determine what happens within its borders when that state participates in or allows certain human rights abuses--namely, the deprivation of security or subsistence rights of its members. Depriving a state of its right to exclusive jurisdiction over its own members, however, does not yet establish that an international body can cross that state's borders to arrest or remove its members for international prosecution. It must also be shown that there is some international interest in this matter that warrants interference in the internal affairs of the state by the international community. I argue that such an interest is best understood in terms of the international harm principle--that is, when there is some sense in which humanity or the international community has been harmed. International prosecutions for crimes against humanity should only occur if there have been widespread or systematic attacks on a population. I parse this idea to mean that either the victim is singled out for group-based harm or that the perpetrator is group-based in that it is associated with the state, and optimally when both of these group-based considerations are extant. The security principle breaks the exclusive jurisdiction of the state, whereas the international harm principle indicates why specifically international prosecutions can legitimately take place for crimes against humanity.

If one can get over the sovereignty hurdle, the next question is who it is that should be prosecuted for crimes against humanity. Here there is a serious conceptual problem. For crimes against humanity are mass atrocities, but it is individual persons, not states, who will be prosecuted in international trials. I argue that normally it is state leaders, rather than small fish, who should be in the dock, if anyone should. I examine three trials: Dusko Tadic, the first person tried by the International Criminal Tribunal for the former Yugoslavia; Adolf Eichmann, tried in Jerusalem for Nazi atrocities; and Augusto Pinochet, tried preliminarily in the U.K. for crimes against the Chilean people. I use an examination of each trial to discuss what should be the actus reus and mens tea components of crimes against humanity. I argue that in most cases the prosecution should have to prove that the defendant had a discriminatory intent--that is, the intent to assault a person because of that person's group membership--as a way of linking the defendant's state of mind and the atrocity that he or she is being prosecuted for. International prosecutions are justifiable, but in a more limited way than has been recognized so far, and this is true when, and especially when, there is widespread complicity in crimes against humanity.

There is also a good normative question about what defenses and procedures should be used in such trials. The superior orders defense is generally disallowed in international proceedings today, but duress has grown in importance and can be used by many small fry, and perhaps also by some state leaders, in international trials. In addition, there are procedural restraints that should govern such trials, most especially the prohibitions on retroactive prosecutions, selective prosecutions, and disproportionate punishments. I argue strongly for an international rule of law as a basic prerequisite for legitimate international prosecutions. It is not sufficient that victims have had horrible things done to them and that the world wishes to express its moral outrage. Victims are not owed convictions; rather, it is the international community that is the proper aggrieved party in crimes against humanity.

Finally, I ask whether it might be reasonable to hold truth and reconciliation commissions rather than international criminal trials as a response to mass atrocities. It is often the case that criminal trials further enflame ethnic or religious animus among population groups in a society. There is thus at least an initial impetus to think of less contentious ways for civil turmoil to be brought to an end. Indeed, the idea of apology or forgiveness is so foreign to criminal trials that one might wonder why we should have criminal trials at all in such circumstances. In the last chapter, I set out the arguments on both sides of this complicated issue. I argue that in some cases it may be justifiable not to have trials, but only in those cases where amnesty or reconciliation programs call for some kind of serious acknowledgment of wrongdoing along with some kind of remorse on the part of the perpetrators of atrocities. We must be careful not to let the goals of reconciliation swamp considerations of justice.

We stand at a crossroads in the movement for international law and justice. I see myself as squarely in the middle of the debate about which direction to take. On one side are those who argue for cosmopolitan justice; and on the other side are those who urge that we retreat from any kind of international interference in the affairs of sovereign states. In this book, I defend a limited scope for international trials. One of the most important limitations is that we respect the international rule of law and not merely prosecute on the basis of our heartfelt moral outrage in the face of mass atrocities. Some will undoubtedly wish for a wider scope for international criminal law than that which I defend here; still others will think that I have gone too far. Human rights are indeed important and need to be protected, especially when it is a state that seeks to abridge these rights. But it is not as clear as it might seem that individuals should be held legally accountable in international proceedings for each and every human rights abuse. If we limit our scope, we will have a better chance of defending trials for the most egregious of human rights abuses.

(1) Larry May, Crimes Against Humanity: A Normative Account (Cambridge: Cambridge University Press, 2005).

(2) Thomas Hobbes, "Leviathan," in William Molesworth, ed., The English Works of Thomas Hobbes, vol. III (Aalen, Germany: Scientia Verlag, 1966), p. 120.