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SYMPOSIUM

Crimes Against HumanityLarry May

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 interna-

tional law, since they are crimes that can be committed completely within one

states borders by members of that state against other members of that same

state. The very idea of a crime against humanity challenges the traditional under-standing of a states exclusive prerogative over crimes committed within its bor-

ders. 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 sover-

eignty, and explains why state sovereignty is not absolute, even on a Hobbesian

view, and why some norms cross borders. The second part defends two norma-

tive principles, the security and the international harm principles, that togetherjustify international criminal trials for crimes that do not themselves cross bor-

ders. The third part defends the idea that crimes against humanity involve an in-

tent to participate in a widespread and systematic attack on a population,

making it very difficult, although not impossible, for minor players to be suc-

cessfully prosecuted for crimes against humanity. The fourth part explains why

prosecutions for crimes against humanity should be limited in scope, why vic-

tims are not owed international prosecutions, and why alternatives such as truth

and reconciliation commissions may be acceptable alternatives to internationalcriminal 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 states

sovereign prerogative, especially in criminal law. I argue that a Hobbesian must

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


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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 juris-

diction 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 peoples basic security and subsistence rights should be protected from as-

sault, 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

abusesnamely, 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 states

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 principlethat is, when there is some sense in which

humanity or the international community has been harmed. International pro-

secutions 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

2 Thomas Hobbes, Leviathan, in William Molesworth, ed., The English Works of Thomas Hobbes, vol. III

(Aalen, Germany: Scientia Verlag, 1966), p. 120.


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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 indi-

cates 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 con-

ceptual problem. For crimes against humanity are mass atrocities, but it is indi-

vidual 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 exami-

nation of each trial to discuss what should be the actus reus and mens rea com-

ponents of crimes against humanity. I argue that in most cases the prosecution

should have to prove that the defendant had a discriminatory intentthat is, the

intent to assault a person because of that persons group membershipas a way of

linking the defendants 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 interna-

tional 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 interna-

tional 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


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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 interfer-

ence 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 le-

gally 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.


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