Larry May's Crimes Against Humanity

...Those who are seized even for something they have done (like reading a "prohibited" work) or who are seized randomly, for no fathomable reason at all, and then subjected to prolonged and brutal torture from which, assuming they survive it, they will probably never fully recover, are also assaulted in their humanity...

...First, there is a presumption that individualized or small-scale versions of these crimes do not generally need the intervention of the international community because they fall within the province of domestic law and would usually be dealt with under it...

...In the conclusion to Crimes Against Humanity, May points to the need for good philosophical work in the area of international criminal law...

...or else this is done to several people but not for reasons of the group identity of any one of them...

...DISSENT / Winter 2007 • 135...

...They mark the official entry of the offense of crimes against humanity into the instruments of international law, albeit after a long prehistory within the traditions of moral, political, and legal thought...

...Note the "in a sense...

...But is it not equally obvious that a person can be attacked in his or her humanity by way of other human characteristics than group membership or identity...

...Yet, this principle was initially qualified (and many would say compromised) by the link that the Nuremberg Charter set up between the new offense and the context of war...

...As this thought was articulated by Sir Hartley Shawcross, the chief prosecutor for the United Kingdom at Nuremberg: [I]nternational law has in the past made some claim that there is a limit to the omnipotence of the state and that the individual human being, the ultimate unit of all law, is not disentitled to the protection of mankind when the state tramples upon his rights in a manner which outrages the conscience of mankind...

...Notwithstanding the small scale of these incidents, as I have described them, and their unrelatedness to any shared racial, ethnic, religious or political identity as motive, it makes no philosophical sense to treat them as not assaulting the humanity of the victims...

...As he says again in the same place, however, "[t]his is a pragmatic point," and it is puzzling why he doesn't leave it as just that, but tries instead to find a philosophical underpinning for it...

...I have elsewhere argued for a similar threshold of seriousness or moral gravity myself...

...His books include The Contract of Mutual Indifference: Political Philosophy after the Holocaust and Solidarity in the Conversation of Humankind...

...You only have to scan the list of recognized crimes against huDISSENT / Winter 2007 • 133 BOOKS manity to see how many of them are ordinary municipal crimes as well...

...To be murdered or tortured because you are black or a Jew or a Muslim is to be attacked in one of your quintessentially human qualities, in your "human status...

...The idea that it has come to stand for emerged within international law only during the twentieth century, its meaning is not transparent, and it has no "natural" boundaries...

...This points to the need for international criminal law as a source of protection for those individuals who are either attacked by their States, or whose States fail to protect them from other individuals or groups [emphasis added...

...If we ask why it is that humanity (or the international community) is implicated for May only when the crime is directed against social groups, we will find a logical consequence opposite to the one he wants to derive...

...This is central to the meaning of the international harm principle in that, for May, it is only the "group -based" nature of an offense that makes it an offense against humanity, under the meaning of "humankind" or of "the international community" Hence, For an act to be so heinous as to be called a "crime against humanity," that crime must be directed not merely against individuals but against social groups and, in a sense, the whole of humanity...

...And here he explains why the first of his two principles, the security principle, is not alone sufficient to justify prosecuting individuals: This is because international criminal prosecutions risk loss of liberty to the defendants, a loss that is of such potential importance that it should not be risked unless there is also a harm to the international community...

...BEFORE I GET to what I believe to be the background reason for this undermining of the security principle by the international harm principle, I want to highlight another argument that May makes in formulating the second of these that I find philosophically uncompelling and morally arbitrary...

...One of the primary responsibilities of just states, after all, is the defense of the security and subsistence rights whose violation sends us looking for another source of protection— which we find in a prima facie responsibility of the community of nations...

...and so forth...

...For this is what he tells us: If an individual person is treated according to group-characteristics that are out of that person's control, there is a straightforward assault on that person's humanity...

...To illustrate the point we may go back to the Nuremberg Trials...

...For such a utopian world we would need to know which are the most egregious offenses, the ones we assign to the ethically minimum core, those offenses breaching a recognized security principle...

...They are shocking crimes, even if not as shocking as larger-scale ones, and whatever practical reasons there may be, as things stand, for not prosecuting them as international crimes, there is nothing to be said for denying the outrage they represent to the code of universal human rights that May embodies in his secu134 n DISSENT / Winter 2007 rity principle, and to the humanitarian conscience at large...

...For "what sets paradigmatic international crimes apart from domestic crimes is that, in some sense, humanity is harmed when these crimes are perpetrated...

...Thus, he writes, I will defend a moral minimalist position in international law where the limit of toleration [that is, toleration of "societal differences .. . in setting moral standards and making and enforcing laws"—NG] and sovereignty is reached when the security of a State's subjects is jeopardized...

...But that there is such a practical distinction does not itself assure this...

...One can, however, respect this constraint within the scope of the security principle taken on its own—trying people in international tribunals for, say, enslavement, murder, torture, severe deprivation of physical liberty, and not for interfering with someone's right to a paid annual holiday (May's example, taken from the UN Charter of Human Rights...

...In these circumstances, the international courts could act as courts of higher authority, and courts of appeal, even for smallerscale cases in which a putative offense had not been properly dealt with by the domestic law of some particular state...

...And, There are obvious pragmatic reasons why States would be uncomfortable thinking about international crimes in this [individualized] way, since then State sovereignty about internal criminal matters might be threatened...

...Perhaps we should and perhaps we should not...

...May makes the same point also as a political argument, speaking of the need to weaken opposition to the ICC from "those who fear usurpation of domestic tribunals, and hence of State sovereignty...

...Picture an individualized crime as follows: a policeman kidnaps someone off the street and over several days in some remote place tortures him or her to death...

...What should be regarded as making up the moral minimum will inevitably be the subject of debate and of possible disagreement at the boundary...

...The book is divided into four parts...

...Although there is much of interest in these later sections of the book, this review focuses on the argument of its first two parts—on the philosophical case the author lays out and the normative principles central to it...

...And for egregious offenses of relatively small scale, domestic systems of law should for the most part suffice...

...I will argue here that, in a crucial and damaging way, May's own conception of crimes against humanity is tied too closely to the actual state of international law, and he is therefore pressed toward defending assumptions that are morally and philosophically arbitrary...

...May writes, for example, that crimes against humanity are "crimes committed by individuals against other individuals that are so egregious as to harm all of humanity and hence to call for international prosecution...

...Because respect for human rights by states would be a much more widespread phenomenon, and state delinquencies more rare, the need for intervention by international courts might be less than at present...

...May is insistent on this...

...We should be very reluctant to countenance international tribunals prosecuting individualized crimes rather than those concerning groups of people and protected classes of people...

...If for pragmatic reasons crimes falling short of a scale-threshold cannot today be prosecuted internationally, these reasons have nothing to do with the intrinsic nature of the acts themselves or with some supposed lesser violation of the integrity of the human person that those acts represent...

...According to him, the same basic human rights that justify state sovereignty as an institutional necessity in providing people with the elementary protections and provisions of life also explain the limits to state sovereignty: Rights that are grounded in the moral minimum are crucial for explaining both the authority of sovereigns and the limitation on sovereignty that occurs when sovereigns cannot, or choose not to, protect basic human rights...

...Why does May permit the apparent (human rights) content of his security principle to be undermined by the international harm principle...

...This group-based aspect of the international harm principle May connects to "the idea that international crimes are those that are widespread or systematic," and there is no question that in doing so he faithfully mirrors an important component of the law on crimes against humanity...

...THERE IS NO difficulty in seeing what is being said here...

...May calls his principle that I have just summarized here the "security principle...

...Still, there is likely to be a substantial measure of agreement on its core...

...As he writes: If international crimes are not cast in groupbased terms it will be very difficult to draw a distinction between international and domestic crime...

...It relates to his distinction between "individualized crimes" and "those concerning groups . . . and protected classes...

...This is a desire to build into the philosophical notion of crimes against humanity some difference between a crime under ordinary municipal law and a crime under international law...

...The problem is that he thinks this principle insufficient and so produces a second one to complement it...

...And not all serious harm to individuals [italics mine] should be prosecuted as a violation of international law...

...He writes, for example, of the need to distinguish between human rights that are relevant to international criminal law and those that are not, and goes on: Failure to make this distinction means that people will be tried, and will risk serious deprivation of their liberty rights, even though their acts did not cause a corresponding deprivation of liberty rights, or their moral equivalent, for their victims...

...CRIMES AGAINST HUMANITY: A NORMATIVE ACCOUNT by Larry May Cambridge University Press, 2005 310 pp $25.99 paper LARRY MAY has written a book on crimes against humanity that provides careful analysis of the core issues for anyone interested in this subject...

...Being himself aware of the point, May makes it clear in other passages that the concern for the interests of defendants entails a more demanding requirement than mere gravity of the harm to the victim: [S]ince significant harm is risked to the defendant in a criminal trial such trials should only he conducted when the defendant is accused of causing similarly serious harm to others...

...The assault implicates something they share with the entirety of the human species, a vulnerability to extreme pain...

...True, as the law stands, for crimes against humanity there is also a threshold of scale...

...The reason appears, at first, to be a concern for the interests of defendants in crimes-against-humanity trials...

...It will bear repeating that if individualized and relatively small scale, but nonetheless horrific, assaults on human beings cannot, for pragmatic reasons, be prosecuted under current crimes-against-humanity law, then the central ambition that the idea of that law is so commonly said (including by Larry May) to have announced—the ambition of offering protection for individuals under attack by their own states, or under attack with the complicity or owing to the negligence of those states— is not adequately embodied in the law, and is betrayed by it...

...One of the crucial norms taken to have been established at Nuremberg was that there are constraints upon what governments may permis130 n DISSENT / Winter 2007 sibly do to people under their jurisdiction...

...From the Nuremberg Charter to the Rome Statute of the International Criminal Court, crimes against humanity have been codified as acts committed or directed BOOKS "against any civilian population," rather than as acts against individuals...

...For imagine, now, a more lawful world than our own, one in which the great majority of states were rights-respecting rather than rightsviolating, and in which there was all but universal recognition among them for courts that deal with offenses under crimes-against-humanity law...

...Second, even where they are not, the international community and its recognized courts could not realistically handle every case of individualized or small-scale (even if egregious) rights violation across the planet...

...Unless some good reason can be given for this, the stipulation appears merely arbitrary...

...And even were there to be a good reason for it, it has knocked a serious hole in the security principle, as the lastquoted passage plainly shows...

...But it is not clear why the possibility of an injustice to defendants has to be matched by "a correspondingly important injustice to the international commu132 n DISSENT / Winter 2007 pity," rather than just a correspondingly important injustice to the victims...

...The illogic in so circumscribing crimes against humanity was already clear to critics at the time...

...HOWEVER, THE practical need for a threshold of scale does not in itself establish that we also need a philosophical distinction marking some fundamental difference in kind between grave assaults directed against "any civilian population" and grave assaults against individuals...

...Humanity is implicated, and in a sense victimized, when the sufferer merely stands in for larger segments of the population who are not treated according to individual differences among fellow humans, but only according to group characteristics...

...His blog is at http://normblog.typepad.com/normblog...

...Restating elsewhere, he says, "International prosecutions are conducted .. in order to signify the importance or magnitude of the offences for all of humanity...

...May calls this second principle the "international harm principle," and what it says, in a nutshell, is that for an offense to qualify as a crime against humanity it must constitute a harm to all humanity or (as he mostly seems to mean by this) to the international community...

...A longer version of this article has appeared in the online journal Democratiya...

...Apart from an exaggerated respect for the principle of state sovereignty, there is no compelling reason why the more grievous assaults against people by governments or other political organizations should not be treated as criminal where their context is civil conflict or political repression rather than a war between states...

...There are violations of the rights of human beings that are so severe, so harmful, so outrageous, that the normal—and necessary—claims of state sovereignty cannot justify them...

...The scale of the infraction may be part of an operational threshold...

...But that scale does not inscribe itself as any sort of metaphysical presence in the individual assaults against persons of which mass human crimes are always made up...

...This—though not only this— among crimes against humanity is about as egregious as egregious gets, and to withhold from it the description "assault on that person's humanity" because the person in question is not "being treated as a mere representative of a group" while being tortured, would be a piece of the purest arbitrariness...

...but the second principle subverts part of what the first was supposed to defend...

...THE PROBLEM May's second principle creates for his first principle may be stated succinctly thus: if a violation of individual human rights has to rise to the level of harming the international community or all humankind before it comes within the compass of the law on crimes against humanity, then (returning to the words of Shawcross) "the individual human being, the ultimate unit of all law" will often be "disentitled to the protection of mankind" when his or her most important rights are violated, however "egregious" (May's generic description) the "crimes cornDISSENT / Winter 2007 •13I BOOKS mitted by individuals against other individuals" are...

...In its general structure, I have argued, the conception he puts forward is indeed apt...

...Or again: This view holds that there is a basic minimum of individual rights that States must protect if their subjects are to owe the State obedience to law...

...It might, of course, just happen to be that there is some deep philosophical distinction mapping neatly on to the practical distinction between domestic and international crimes that May is concerned to preserve...

...Atrocities against individuals or groups may be more likely in wartime, but they are also perfectly possible outside it...

...I will come back to this...

...She or he is being treated, or mistreated, as a member of the largest human group there is, humankind: being robbed, either temporarily or permanently, of their connection to everything human (the ability to think, to hope, to enjoy, to love, to choose, and to ever be at ease again) by the exploitation of a universal human vulnerability...

...or they are subjected to appalling sexual violence and/or physical mutilation...

...Not just any infraction of rights will fit the bill...

...As May himself notes, in the evolution of international law, the "war nexus" set up by the initial definition of crimes against humanity has progressively fallen away...

...Thus, from the Rome Statute: murder, torture, rape, enforced prostitution, enslavement, severe deprivation of physical liberty, enforced disappearance of persons, and so on...

...But there are different ways of trying to integrate this legal fact into a justificatory theoretical conception...

...The third and fourth parts are then concerned with issues of application...

...T]he right of humanitarian intervention by war is not a novelty in international law—can intervention by judicial process then be illegal...

...Even for the world as it is, we need no more than a minimum code of universal rights, the infraction of any of which is always a crime against humanity...

...The severity is germane...

...This is contained in the words "any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population...

...The type of act constituting a crime against humanity is fixed by him in terms of its severity as a violation of individual human rights...

...From the beginning the concept has had to find (or, rather, be supplied with) a content that could be coherently justified and defended...

...NORMAN GERAS is professor emeritus in politics at the University of Manchester...

...His own book contributes to this by its effort to adumbrate a philosophical conception apt to the present law on crimes against humanity...

...It will then not be true that, in May's words, "there are rights that people have by virtue of being human, and . . . certain of these rights cannot be waived...

...But the "fit" it achieves with contemporary legal realities comes at the cost of arguments and distinctions that are open to question...

...Widely used though the expression now is, "crimes against humanity" is a term of art...

...We would not need an extra international harm principle—except insofar as the global community in this lawful world BOOKS might have declared that violating the fundamental rights of any of its inhabitants would be taken ipso facto as a harm against itself...

...Better to preserve the normative idea as a critical tool for improving that law than to seek to reflect the legal practicalities within the idea, thereby rendering it a more conservative one...

...May himself specifies the general nature of this core in holding that when a state "deprives its subjects of physical security or subsistence, or is unable or unwilling to protect its subjects from harms to security or subsistence," it loses its right to prevent international bodies from crossing its borders for remedial purposes...

...I come now to what I earlier referred to as the background reason for May's willingness to subvert the security principle with the international harm principle...

...Shawcross's argument that there are limits to the omnipotence of the state finds early and BOOKS repeated expression in May's book...

...To be targeted for some form of grave assault simply on the basis of your group identity is to be attacked in your very humanity since everyone has some such identity merely in virtue of being human...

...There are reasons to doubt it, not only by inference from the strains and stresses in his argument, but also of a general kind...

...It is as if the individuality of the person were being ignored, and the person were being treated as a mere representative of a group that the person has not chosen to join...

...I can think of at least two reasons for having that threshold...

...Here it is again: Humanity is a victim when the intentions of individual perpetrators or the harms of individual victims are based on group characteristics rather than on individual characteristics...

...In the first two, May explores the philosophical underpinnings of the concept of crimes against humanity and examines some of the most relevant norms of international law...