In s.7.2, I averred that if one kind of wrongdoing warrants punishment, human rights violations certainly do. In this section, I offer an account of which war- related wrongdoings ought to be regarded as criminal offences in the limited sense (at this juncture) that their perpetrators are liable to some form of punishment.

According to international criminal law, whose foundational texts are the judgements reached by the International Military Tribunal at Nuremberg and the 1998 Rome Statute establishing the International Criminal Court, the following four categories of wrongdoings fall within the remit of war crime tribunals: ad bellum crimes against peace, in particular the crime of unwarranted aggression against a political community’s territorial integrity and sovereignty; violations of the laws of war in bello, notably the deliberate killing, torture, and rape of innocent civilians and prisoners of war, and the use of weapons of mass destruction; crimes against humanity committed in the course of the war; genocide.[1]

Crimes against peace and crimes against the laws of war have proved relatively easy to define, but crimes against humanity have resisted consensual treatment. According to the Rome Statute, a crime against humanity is an act, such as murder, torture, rape, or enslavement (including sexual slavery) which is ‘committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack’ (art. 7.1). The widespread or systematic attack, in turn, must be ‘pursuant to or in furtherance of a state or organised policy to commit [it]’ (art. 7.2(a)). Some crimes against humanity, such as religious persecution or the crime of apartheid, are attacks on individuals in virtue of their group membership; others, such as forced population displacements, are not. Some are committed by the state or a political organization, or with the acquiescence thereof, whilst others, such as enslavement in general and sexual slavery in particular, need not be. Finally, whereas violations of the laws of war are war-related crimes by definition, crimes against humanity can be carried out within or outside a war.

In the face of such eclectic categorization, it is hard to get a sense of what it means to commit a crime against humanity. As a first cut, these are crimes which ought to shock the conscience of all human beings (for short, humankind) because they destroy, or at any rate seek to destroy, that which is specifically and nobly human in their victims (notably, their self-respect and dignity) and are committed in defiance of that which is or at any rate ought to be specifically human in their perpetrators. As such, they embody a failure to respect and protect that in us which separates us from non-human animals and which we should cherish—namely, the capacity of rational and moral agency, the ability reflectively to engage in social relationships of various kinds, the ability reflectively to experience both positive and negative emotions such as anger, jealousy, hatred, empathy, and kindness, and to decide whether and when it is appropriate to act on those emotions. Murder, torture, persecution, rape, enslavement, indeed severe and persistent abuse, as well as deliberate failure to save lives out of callous indifference, at best seriously impair and at worst wholly destroy their victims’ ability reflectively to direct their life in morally and emotionally appropriate ways; in their sheer horror, moreover, they display a failure in their perpetrators to do what humans are uniquely (as far as we know) capable of doing, namely choose to treat one another with reflective compassion and kindness.

So construed, crimes against humanity are not crimes which perpetrators commit, not just against their victims directly, but against the whole of humankind. Rather, they are crimes against humanity understood as that which is specifically human.[2] [3] If this is correct, we should endorse a more expansive account of crimes against humanity than are found in recent literature. In particular, the dehumanizing treatment of combatants, be it by their own leaders or the enemy, also counts as a crime against humanity. In fact, some categories of combatants are already re-classified as ‘civilians’, such as unarmed prisoners of war and peacekeeping forces (see, esp. art. 7.2 of the Rome Statute) and it makes sense, therefore, to regard them as victims of crimes against humanity if that which is done to them is similar to treatment meted out to civilians and condemned as such a crime. My larger point, however, is that if dehumanization is at the core of a crime against humanity, whether the crime targets an agent in uniform who is still fighting or someone who is not is irrelevant: what matters is what the crime actually does to him.n

If this is correct, we should not stipulate by definitional fiat (as extant works are sometimes wont to do) that such crimes can only be committed by or with the acquiescence of political organizations; nor should we stipulate that they constitute rights-violations on groups of individuals; nor should we define them as attacks against individuals on the basis of some group feature or other. On my account, thus, Soviet officials, to the highest level, repeatedly committed crimes against humanity when they seized crops from Ukrainian farms in the late 1920s—early 30s, as a result of which millions died. On one interpretation of the famine, the Soviet authorities intended to exterminate the kulaks as a class. On another interpretation (which many would regard as excessively generous), the Soviet authorities regarded those deaths as a side effect of a policy meant to speed up the industrialization of the USSR thanks to grain exports. Either way, they showed at best extraordinarily callous disregard for individual suffering as such and it is that which makes their wrongdoing a crime against humanity. It is in virtue of that very same feature that those officials can also be charged with crimes against humanity for sending people to the gulag merely for having the audacity to think for themselves.^

In sum, and to put the point in the language I used in s.1.2, crimes against humanity are violations of basic human rights, period. This does not occlude the fact that there is a morally relevant difference between, e.g., a belligerent using rape as a systematic policy of terror, as in Bosnia, and a platoon of combatants gang- raping civilians of their own initiative—any more than regarding a one-off killer and a serial killer as both guilty of murder occludes the fact that there is a morally important difference between them. But it does have the merit of not drawing arbitrary distinctions between civilians and combatants, and between victims of state policy and victims of combatants acting randomly.

Importantly, not all war-related crimes are crimes against humanity: some war-related crimes consist in violating non-basic human rights (for example, as when a bombing campaign causes economic hardship and brings civilians below the sufficiency threshold, but does not result in starvation). One may wonder what hinges, normatively speaking, on the classification of a crime as a crime against humanity. In international criminal law, crimes against humanity by definition may be prosecuted by international institutions. However, as we shall see in s.7.6, [4]

all war-related crimes fall within the jurisdiction of humankind as a whole, via the requisite institutions. Accordingly, the notion of crime against humanity—whether construed widely as I do here or narrowly as does orthodoxy—does not have distinctive jurisdictional mileage. All that it does is identify the most grievous of possible crimes, which, other things equal and taking into account considerations of (e.g.) feasibility, would warrant the harshest punishment. That really is all there is to it.

Whether a war-related crime ought to be classified as a crime against humanity or not, a comprehensive account of such crimes needs expanding in the light of the just war requirements. A war is just, you recall, if and only if (a) it has a just cause, where a just cause consists in the violation, backed by the threat of lethal force, of some party’s human rights; (b) it is a proportionate response to the injustice which the belligerent has suffered; (c) it is not fought and won through the deliberate and indiscriminate targeting of innocent non-combatants; (d) it stands a reasonable chance of succeeding by military means which do not breach the requirements of proportionality and discrimination; and (e) it is the only way to pursue the just cause. Those requirements yield the following account of war-related crimes.

First, consider breaches of the just cause requirement. A party has a just cause for war in so far as its members are subject to violations of their human rights backed by lethal force or the threat thereof. The crime of aggression is the paradigmatic case of such a breach. However, those breaches also include acts committed by a regime against its own people—which provide third parties with a just cause for a war of humanitarian intervention—and failures to respect subsistence rights—which provide rights-holders with a just cause for waging a subsistence war. Turning to intrastate violations, there is every reason to regard them as a crime of aggression when they threaten a people, or subset thereof, in their communal integrity. To claim, on the contrary, that this regime would be guilty of the crime of aggression if it attacked a foreign political community but is not guilty of that crime if it attacks a subset of its population is to confer on political borders a normative weight which they do not have at the bar of cosmopolitan morality.[5] Moreover, even if it is inappropriate to regard intrastate violations of human rights as constituting a crime of aggression, it is certainly appropriate to regard them as a war-related crime, which at first sight warrants punishment. As for violations of subsistence rights, some might think that they are not to be classified as war-related crimes—unlike acts of unwarranted military aggression—since they do not take a military form. But this would be too quick: for to the extent that such rights violations consist in or are backed by lethal force, and to the extent that they can be described as tantamount to an aggression (as I argue in CW s.3.2.2), there is no reason to exclude them from the category of war-related crimes in general.

Second, consider the requirements of proportionality (d) and necessity (e). Suppose that although B’s leadership and military threatened, with lethal force, the human rights of citizensA, diplomatic routes were available to A; or suppose that the war inflicted disproportionate harm both to combatantsB and citizensB. Ex hypothesi, A had a just cause but acted wrongly towards those individuals. At the very least, its combatants and leaders violated the rights of those of B’s members who were innocent of their own regime’s wrongdoing, and are thus liable to punishment—even though members of B who did commit the wrongdoings which provided A with a just cause for war are also liable.

Third, we saw in ch. 2 that continuing at t2 with a war which one was justified in starting at t1 is sometimes unjust. If so, it constitutes a wrongdoing whose perpetrators areprima facie liable to punishment. For if unwarrantedly starting a war of aggression at t1 is a crime, so is continuing with a war which is now unjust at t2, since at t2, that war has now become a war of unwarranted aggression. To claim otherwise is tantamount to allowing the timing of an unjust aggression (as being unjust ab initio, or as becoming unjust) to determine aggressors’ liability to punishment, which is morally arbitrary.

Fourth, in ch. 3, we examined peacekeeping operations and military occupation in the transition from war to peace. Human rights violations which are regarded as war-related crimes if committed before or during hostilities should be similarly regarded if they are committed by or against peacekeeping and occupying forces qua such forces, or by belligerent parties notwithstanding the presence of peacekeepers, or by local agents who collaborate with unjust occupiers. The point is worth stressing in the light of the exactions committed by occupying armies during the Second World War, the US-led coalition in Iraq, UN forces in some of their missions, or the Israelis in Gaza and the West Bank.[6] [7] Moreover, continuing with an unjust occupation should also be regarded as a war crime, in just the same way as an unwarranted aggression.

Fifth, suppose that (as I argued in CW, ch. 5), some party is under a duty to wage a war of humanitarian intervention yet fails to do so. One may wonder whether that failure should be regarded as a crime of war. If (as I also argue else- wherei5) morally wrongful failures to provide assistance ought, under some circumstances, to be turned into criminal offences, then so should a morally wrongful failure to go to war.

Sixth, according to what one may call the orthodox account of punishment for war-related crimes, killing combatants who fight for an unjust cause is legally and morally permitted, and thus not a punishable offence. But the neoclassical ethics of war killing which inform this book prescribes a radical departure from orthodoxy. For on the neoclassical account, combatants who participate and fight in an unjust war or phase of war are liable to be killed, whereas combatants who participate and fight in a just war or phase of war are not liable. In keeping with the orthodox account, killing or maiming unjust combatants should not be deemed a criminal offence; at variance with it, however, killing just combatants should—in just the same way as in domestic contexts killing someone without justification should be a criminal offence.

  • [1] Larry May’s three volumes provide a useful map of what has become an enormous body of literature. See L. May, War Crimes and Just War (Cambridge: Cambridge University Press, 2007); L. May,Crimes against Humanity: A Normative Account (Cambridge: Cambridge University Press, 2005);L. May, Aggression and Crimes Against Peace (Cambridge: Cambridge University Press, 2008). Theterm ‘crime against humanity’ appears as early as the eighteenth century, notably in Voltaire’sDictionaire Philosophique (in the entry ‘Crimes and Offenses’), and was used in the context of warduring the Second World War (in condemnation of Germany’s war of aggression, and of the Armeniagenocide). See Bass, Stay the Hand of Vengeance, chs. 2—3, and Schabas, Unimaginable Atrocities, 6—7,51—2; Voltaire, Philosophical Dictionary. ed. J. Morley and T. Smollett (New York: E.R. DuMont,1901 [1764]).
  • [2] Or, as Massimo Renzo puts it, against humanness. I use the word ‘humanity’ to denote ‘humanness’ and the word ‘humankind’ to refer to all human beings. He too develops an expansive accountof the notion of crimes against humanity, with which I am very much in agreement. See M. Renzo,‘Crimes Against Humanity and the Limits of International Criminal Law’, Law and Philosophy 31(2012): 443-76.
  • [3] See, e.g., the case of Argentinian conscripts who were tortured by their own officers during theFalklands War, and demands that this should be regarded as a crime against humanity. See http://news.bbc.co.uk/1/hi/8373942.stm (accessed on 16/12/14). I am grateful to A. Chehtman for drawingthis case to my attention.
  • [4] On the Ukrainian famine, see, e.g., R. Conquest, The Harvest of Sorrow (London: Hutchinson,1986). On the Gulag, see A. Applebaum, Gulag—A History (London: Penguin Books, 2004). For aclassic account of crimes against humanity, see Arendt, Eichmann in Jerusalem. For more recentaccounts, see, e.g., D. Luban, A Theory of Crimes against Humanity’, Yale Journal of InternationalLaw 85 (2004): 85—168; R. Vernon, ‘What is a Crime Against Humanity?’, Journal of PoliticalPhilosophy 10 (2002): 231—49; M. A. Drumbl, Atrocity, Punishment, and International Law(Cambridge: Cambridge University Press, 2007). The main difference between Lubans and Vernon’saccounts on the one hand, and mine on the other hand, is that they believe that a crime againsthumanity must by definition be committed by a state or a political institution, or agents acting onbehalf thereof and pursuant to their plans. On their view, what separates out this particular kind ofcrime from others, such as war-related crimes, is that it represents a perversion of what states, or political institutions, are meant to do—to wit, exercising their power to protect people, not to dehumanizethem. Dumbl, for his part, argues that crimes against humanity are sui generis and require a differentpenology.
  • [5] The point applies not simply to rights violations which give rise to just causes for war, but towar-related crimes in general. It is in tension with article 8 of the Rome Statute of the InternationalCriminal Court, which differentiates crimes committed in an international conflict and crimes committed in a civil war.
  • [6] For exactions committed by the German forces in Europe during the Second World War, pickany account of the war. One of the worst examples of exactions committed by American combatantsin Iraq is the Abu Ghraib scandal of 2004, where combatants on duty at the prison tortured, abused,and humiliated Iraqi detainees (see, e.g., http://edition.cnn.com/2013/10/30/world/meast/iraq-prison-abuse-scandal-fast-facts/ accessed on 15/01/2016). For examples drawn from Israel’s occupationof the West Bank and Gaza, see, e.g., https://www.amnesty.org/en/countries/middle-east-and-north-africa/israel-and-occupied-palestinian-territories/ (accessed on 15/01/2016). For UN cases, notablyinvolving sexual exploitation and abuse of civilians in the Central African Republic, see, e.g., http://www.un.org/News/dh/infocus/centafricrepub/Indepen dent-Review-Report.pdf (accessed on15/01/2016).
  • [7] C. Fabre, Whose Body is it Anyway? Justice and the Integrity of the Person (Oxford: OxfordUniversity Press, 2006), ch. 2.
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