Abstract
According to the received view crimes like torture, rape, enslavement or enforced prostitution are domestic crimes if they are committed as isolated or sporadic events, but become crimes against humanity when they are committed as part of a ‘widespread or systematic attack’ against a civilian population. Only in the latter case can these crimes be prosecuted by the international community. One of the most influential accounts of this idea is Larry May’s International Harm Principle, which states that crimes against humanity are those that somehow ‘harm humanity.’ I argue that this principle is unable to provide an adequate account of crimes against humanity. Moreover, I argue that the principle fails to account for the idea that crimes against humanity are necessarily group based. I conclude by suggesting that the problem with May’s account is that it relies on a harm-based conception of crime which is very popular, but ultimately mistaken. I submit that in order to develop an adequate theory of crimes against humanity we need to abandon the harm-based model and replace it with an alternative conception of crime and criminal law, one based on the notion of accountability.
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Notes
Charter of the International Military Tribunal at Nuremberg, Aug. 8, 1945, Art. 6 (c), 59 Stat. 1544, 82, U.N.T.S. 279.
The ICTY Statute specifies both that the attack should be directed against a civilian population and that the armed conflict can be either international or internal in character.
But see Haque (2005) for an interesting exception.
These include at least genocide and war crimes.
The view that something like the security principle is enough to justify international criminal law is defended in Altman and Wellman (2004).
Of course an obvious reply to this objection is simply to bite the bullet and accept that these crimes are international crimes, but deny that they are crimes against humanity. In other words, whether the objection stands ultimately depends on whether we think that a theory of crimes against humanity should be able to account for crimes like the bombing of Hiroshima. I will not be able to provide an argument to that effect here, nor will this be necessary, as May indeed seems to believe that a good theory should do that. He suggests that his theory can account for this kind of crime by appealing to the second sense in which crimes against humanity are group-based; i.e. to their being committed by a State or by individuals attempting to advance a plan of the State (May 2005, p. 87). I will consider this reply in the text between 7th para and last para of the section “The Consequentialist Interpretation of the International Harm Principle”.
Some here might be tempted to object that this example does not really pose a problem for May’s view, since we could read it as a case of a group-based crime against the group of attractive women. This reply however would miss the point, since clearly the rapist who chooses his victim because of her physical appearance does not intend to target the group of attractive women. Nearly any characteristics can be construed as group-based to some extent, but a genuine group-based crime, in the sense defended by May, is one that is committed as part of a wider attack against the group of which the victim is a member. See 3rd para of section “The Notion of Crimes Against Humanity”.
The other reason why I will not discuss the question of whether risk is a form of harm is that May could easily avoid subscribing to this view by reformulating his position. He could give up the idea that those crimes that risk disrupting the international peace and security harm humanity, and still claim that they are covered by the IHP. This is after all what happens with the domestic version of the harm principle, which is normally used to justify criminalizing not only those crimes that harm others, but also those crimes that risk harming others. For a defense of the view that in addition to having a right not to be harmed, we also have a right not to be exposed to a risk of harm see Oberdiek (2009).
Notice that May agrees that these crimes are justifiably prosecuted internationally (May 2005, p. 7). My objection however is a different one, namely that if we adopt the IHP in its consequentialist interpretation they should be considered crimes against humanity, in spite of their being non group-based. This is a conclusion that May would want to resist.
Some might object here that the Security Principle covers not only those cases in which the political authority actively deprives its members of physical security or subsistence, but also those cases in which the political authority simply fails to protect its members from harm to security or subsistence. This might be thought to explain the sense in which the attack against the small tribes involves a state-like entity: in so far as the local political authorities have failed to protect their members from the attack, crimes committed against the members of the tribes are indeed group-based in the sense suggested by May. However we should remember that the function of the Security Principle is only to explain why states can lose their right to exclusive jurisdiction over what happens within their territory. It is the IHP that “indicates why specifically international prosecutions can legitimately take place for crimes against humanity” (May 2006a, p. 351; see 7th para of section “Group-based Crimes and the International Harm Principle”). And the IHP requires that crimes either target certain individuals because of their group affiliation, or be perpetrated by someone who is “an agent of a State or State-like entity, or is attempting to advance a plan of the State” (see 9th and 10th paras of section “Group-based Crimes and the International Harm Principle”). The crimes in my example do not fall under either of these descriptions.
Although, depending on the degree of culpability this could also become a case of criminal negligence.
This is confirmed by the different way in which cases are brought to court depending on whether they are instances of civil or criminal wrongs. Whereas the former are described as ‘P v D,’ the latter are described as ‘State v D’, or ‘People v D’, or ‘Queen v D.’ Whereas in the former case it is the individual victim that prosecutes the defendant, in the latter it is the whole polity (or the sovereign).
This is not to say that the same conduct cannot be wrong in both senses. Indeed, the same conduct can constitute both a criminal and a civil wrong; which is why the victim often has the possibility of bringing a civil case for damages in case of failed prosecution or in case of a decision not to prosecute.
See also Lamond (2007).
For a defense of the idea that the notion of responsibility should be understood in terms of accountability see also Gardner (2003).
Of course, many domestic crimes, such as theft and fraud, also cut across jurisdictions, but only insofar as they are included in the criminal statues of each jurisdiction.
Although I did hint at some point at the idea that crimes against humanity involve a kind of humiliation and degradation such that the humanity of their victims is in some sense ‘denied.’ I develop this idea in my manuscript ‘Crimes Against Humanity and the Limits of International Criminal Law’.
References
Altman, A. (2006). The persistent fiction of harm to humanity. Ethics and International Affairs, 20, 367–372.
Altman, A., & Wellman, C. H. (2004). A defense of international criminal law. Ethics, 115, 35–67.
Bassiouni, M. C. (1992). Crimes against humanity in international criminal law (2nd ed.). The Hague: Kluwer Law International.
Becker, L. (1974). Criminal attempts and the theory of the law of crimes. Philosophy & Public Affairs, 3, 262–294.
Blackstone, W. (1765–1969). Commentaries on the laws of England. Oxford: Clarendon Press, 4 volumes.
Drumbl, M. A. (2007). Atrocity, punishment and international law. Cambridge: Cambridge University Press.
Duff, R. A. (2001). Punishment, communication, and community. Oxford: Oxford University Press.
Duff, R. A. (2007). Answering for crime: Responsibility and liability in the criminal law. Oxford: Hart.
Duff, R.A. (2008). Theories of criminal law. In E. N. Zalta (Ed.), The Stanford encyclopedia of philosophy (Fall 2008 Edition). http://plato.stanford.edu/archives/fall2008/entries/criminal-law/.
Duff, R. A. (2010). Authority and responsibility in international criminal law. In S. Besson & J. Tasioulas (Eds.), The philosophy of international law (pp. 589–604). Oxford: Oxford University Press.
Finkelstein, C. O. (2003). Is risk harm? University of Pennsylvania Law Review, 151, 963–1001.
Gardner, J. (2003). The mark of responsibility. Oxford Journal of Legal Studies, 23, 157–171.
Haque, A. A. (2005). Group violence and group vengeance: Toward a retributivist theory of international criminal law. Buffalo Criminal Law Review, 9, 273–328.
Hohfeld, W. E. (1923). Fundamental legal conceptions as applied in judicial reasoning. New Haven, CT: Yale University Press.
Kittichaisaree, K. (2001). International criminal law. Oxford: Oxford University Press.
Lamond, G. (2007). What is a crime? Oxford Journal of Legal Studies, 27, 609–632.
Luban, D. (2004). A theory of crimes against humanity. Yale Journal of International Law, 29, 85–167.
Luban, D. (2006). Beyond moral minimalism. Ethics and International Affairs, 20, 353–360.
Marshall, S. E., & Duff, R. A. (1998). Criminalization and sharing wrongs. Canadian Journal of Law and Jurisprudence, 11, 7–22.
May, L. (2005). Crimes against humanity. A normative account. New York: Cambridge University Press.
May, L. (2006a). Crimes against humanity. Ethics and International Affairs, 20, 349–352.
May, L. (2006b). Humanity, international crime, and the rights of defendants. Ethics and International Affairs, 20, 373–382.
Nozick, R. (1974). Anarchy, state and utopia. Oxford: Basil Blackwell.
Oberdiek, J. (2009). Towards a right against risking. Law and Philosophy, 28, 367–392.
Perry, S. R. (1995). Risk, harm, and responsibility. In D. G. Owen (Ed.), Philosophical foundations of tort law (pp. 321–346). Oxford: Clarendon Press.
Robertson, G. (2006). Crimes against humanity. The struggle for global justice (3rd ed.). London: Penguin.
Vernon, R. (2002). What is crime against humanity? Journal of Political Philosophy, 10, 321–349.
Acknowledgment
Many thanks to Alejandro Chehtman, Antony Duff, Joanna Kyriakakis and Larry May for their helpful comments.
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Renzo, M. A Criticism of the International Harm Principle. Criminal Law, Philosophy 4, 267–282 (2010). https://doi.org/10.1007/s11572-010-9098-1
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DOI: https://doi.org/10.1007/s11572-010-9098-1