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 HOW CAN A CRIME BE AGAINST
HUMANITY? PHILOSOPHICAL
DOUBTS CONCERNING A USEFUL
CONCEPT

Jonathan Yovel*

This paper offers afresh look at the philosophical tenability of the

concept of crime against humanity as it developed since WWII. Its
interpretative claim is that the concept has existed in a tension be-
tween two approaches to conceptual validity. The first attempts to
take the concept seriously-semantically,metaphorically, and, on a
realist theory of language, ontologically. This approach posits that
the concept signifies a category of the human condition whose treat-
ment in the context of specific historicalmoments allows for a new
normative language, irreducible to that of traditionaljurisprudence.
Examining the approach against the 1984 Barbie trial in France il-
lustrates the tenuous relations between crimes against humanity and
otherjurisprudentialcategories and classificationsof victimization.

The second approach is more comfortable with a language offunc-

Visiting Scholar, Columbia Law School and Senior Lecturer, Faculty of Law, University of
Haifa, Israel. For its gracious hospitality I am grateful to Columbia Law School, where this
work was prepared. Special thanks to George Fletcher, Ruth Gavison, Brian Gibson, and
Kent Greenawalt, as well as to Yaye Ndiaye. For insightful comments I am grateful to Chris-
tian Joerges, Kirsten Schmalenbach, and Eli Salzberger as well to the editors of JILFA.
Background discussions on pragmatism and justification with Richard J. Bernstein and Yir-
miyahu Yovel have inspired and contributed to the analysis in more ways than could be enu-
merated here, and I am grateful to both. An early draft was presented at the international con-
ference "World War II and Its Impact on the Law-60 Years After" at the University of Haifa
in 2005.
 S1I
UCLA J. INT'L L. & FOR. AFF. 39 (2006)

tionalfictions and draws from the legal realism and philosophical

pragmatism schools of thought. Rather than strivingfor metaphysi-
cal validity, this approach examines the usefulness of the concept of
a crime against humanity in promoting the political goals set by a
democratic society and critiques its ideological biases.

The paper traces the two approaches to frameworks offered by

Kant and Nietzsche, respectively. It then examines some doctrines
and institutions of internationalcriminaljustice in order to revisit
Hannah Arendt 'sjurisprudenceofcrimes againsthumanity, setting it
against the Hegelian notion of History. However, studying recent
developments in the international law of crimes against humanity
(including the Rome Treaty, ICC, ICTR, and ICTY) shows that Ar-
endt's conception, developed against the backdrop of the Eichmann
trial, has in fact little current influence on internationallaw in this
area, which is better rationalizedby the legal realist school than by
approachesthat seek metaphysical validation andjustification.

Finally, the study suggests shifting the emphasis from crimes

against humanity to crimes againsthumanness, and offers an initial
marking out of this concept.

To my great friend and mentor, Yitzhak (Isidor) Torchin (1917-2007),

in memoriam.

I. PRAGMATISM AND VALIDITY ........................................................... 40

II. VICTIMIZATION, RECOGNITION, AND PRESTIGE: THE BARBIE CASE
AS D ISCURSIVE PARABLE ................................................................... 42
III. A CRIME AGAINST W HOM'? ............................................................... 45
IV. ARENDT AND THE GLOBAL INSTITUTIONALIZATION OF THE
CONCEPT OF CRIMES AGAINST HUMANITY .................................... 50
V. A CRIME AGAINST HUMANNESS ....................................................... 55
C ON CLU SION ................................................................... 56

I. PRAGMATISM AND VALIDITY

At the outset, we may distinguish between two ways of thinking about
the concept of crime against humanity. One is to try and take the concept
seriously-semantically, metaphorically, and indeed, on a realist theory of
language, ontologically. This means that the concept signifies a category of
How Can A Crime Be Against Humanity?

the human condition whose treatment in the context of specific historical

moments allows for a new normative language, irreducible to that of tradi-
tional jurisprudence.
The other approach would be much easier to grasp for anyone raised on
the traditions of moral pragmatism and American legal realism. Legal real-
ists are used to thinking and indeed are trained to think in terms of functional
fictions. They shy away from metaphysics-at least overtly. The legal real-
ists would simply avoid the question of the philosophical tenability of the
category of crime against humanity and instead look into its usages. They
would treat it like any other legal concept-i.e., property, family, contract,
corporation-examining its usefulness in promoting the political goals set by
a democratic society and critiquing its ideological biases and real-world re-
percussions. In other words, the first approach would ask, "How is the
concept philosophically tenable?" It was Kant's strategy to begin inquiries
with the question, "How is any synthetic a priori sentence-such as a
normative one-possible?" and then move on to the conditions that generate
it.' The second strategy can be traced to Nietzsche: not looking into the
metaphysics entailed by the synthetic a priori but examining categorization
itself in terms of the interests of the will, namely, "What good is talking (and
cogitating) about anything in a certain way, as if it expressed a certain
2
category of reality?' In other words, the first approach to crimes against
humanity would ask, "What makes it true?" while the other would insist that
the first must be avoided at all costs, because the important question isn't the
truthfulness of metaphysical notions but asking, "What use are they?"
In this essay, I claim that the concept of crime against humanity has ex-
isted in tension between these two approaches, possibly from its very incep-
tion in the mid 19th century, certainly so after WWII. This Article therefore
attempts to cursorily delineate both approaches; it begins by asking in what
sense the category of crime against humanity is tenable as such. Later, fol-
lowing certain historical and legal developments mainly in the last fifteen
years, I shall try to look into the legal realist position that sees the category
as a useful, though dangerously manipulable, legal tool of regulating atro-
cious behavior otherwise falling within lacunae of standard legal rules, while
avoiding the questions besetting the former. The former expects the cate-
gory of crime against humanity to tell us something new and revealing about

See IMMANUEL KANT, PROLEGOMENA TO ANY FUTURE METAPHYSICS (Lewis White Beck
trans., Bobbs-Merrill Company 1950) (1783).
2 See Jonathan YoveI, Gay Science as Law: An Outlinefor a Nietzschean Jurisprudence,24

CARDOZO L. REV. 635 (2003), reprinted in NIETZSCHE AND LEGAL THEORY: HALF-WRITTEN
LAWS 23 (Peter Goodrich & Mariana Valvedere eds., 2005).
 11 UCLA J. INT'L L. & FOR. AFF. 39 (2006)

our humanness. The latter simply wishes to promote moral goals through
manipulation of normative language.

II. VICTIMIZATION, RECOGNITION, AND PRESTIGE: THE BARBIE CASE

AS DISCURSIVE PARABLE

Let us begin by examining one of the more controversial instances when

the charge of crime against humanity was invoked. The initial legal question
facing the French courts in the 1984-87 trial of Klaus Barbie, a.k.a. "the
butcher of Lyon," was for what charges he could be prosecuted.3 Barbie may
be characterized as "a poor man's Eichmann": in his role as SS officer and
Gestapo chief, he was responsible for viciously cracking down on French
Resistance fighters, torturing and killing them. In particular, Barbie was ac-
cused of torturing to death the Resistance leader, Jean Moulin. He was re-
sponsible for coordinating deportations to Auschwitz that included captured
R6sistance fighters as well as thousands of French Jews, among them many
orphaned Jewish children. These acts fell under separate definitions in his
Gestapo role, namely overseeing the successful occupation of France on the
one hand, and participating in the policy of the Final Solution, on the other.
Significantly, these actions also fell under different legal categories as ap-
plied by his prosecutors some forty-odd years later.4 The former were ini-
tially deemed war crimes and as such subject to a twenty-year statute of limi-
tations according to French domestic law; 5 Barbie could no longer stand trial

3 See generally LADISLAS DE Hoyos, KLAUS BARBIE (Nicholas Courtin trans., W.H.
Allen,
1985) (1984); CHRONIQUE DU PROCtS BARBIE [CHRONICLES OF THE BARBIE TRIAL] (Paul
Gauthier & Ren&Diaz eds., 1988) [hereinafter CHRONICLES] (including numerous newspaper
clippings regarding the Barbie trial).
4 With U.S. help, Barbie escaped to Bolivia in 1951, from where he was extradited to France
in 1983. See generally U.S. DEP'T OF JUSTICE, KLAUS BARBIE AND THE UNITED STATES
GOVERNMENT: A REPORT TO THE ATTORNEY GENERAL OF THE UNITED STATES (1983); ERHARD
DABRINGHAUS, KLAUS BARBIE: THE SHOCKING STORY OF HOW THE U.S. USED THIS NAZI WAR
CRIMINAL AS AN INTELLIGENCE AGENT (1984); CARLOS T. SORIA GALVARRO, BARBIE-
ALTMANN: DE LA GESTAPO A LA CIA (Editorial Roalva 1986); TOM BOWER, KLAUS BARBIE:
THE BUTCHER OF LYONS (1984).
5 However, the Cour de Cassation saw the matter as involving international legal standards
rather than merely domestic French ones from the very beginning of the case. See Fdrration
Nationale des Dportrs et Intemrs Rrsistants et Patriotes and Others v. Barbie, 78 I.L.R. 126
(Cour de cassation, cass. crim. [highest court of ordinary jurisdiction, criminal chamber]
1983) (Fr.) and 78 I.L.R. 132 (Cour de cassation, cass. crim. [highest court of ordinary juris-
diction, criminal chamber] 1984) (Fr.). For discussion, see TED MORGAN, AN UNCERTAIN
HOUR: THE FRENCH, THE GERMANS, THE JEWS, THE BARBIE TRIAL, AND THE CITY OF LYON,
1940-45 (1990).
How Can A Crime Be Azainst Humanitv?

for those. According to an initial judicial ruling by the Cour d'Appel,6 he

could only be prosecuted for the crime of deportation against the Jews, be-
cause that was a crime against humanity. The ruling appalled French public
opinion and was duly appealed with various Resistance veterans groups pre-
senting their case in court: they, too, wished to be considered victims of
crimes against humanity. 7 As Alain Finkielkraut remarks in La m~moire
vaine,8 an ironic turn occurred: initially, Jews returning to the countries from
which they were deported were received back with little more than con-
tempt, sometimes with open hostility, while underground and R6sistance
fighters were crowned everywhere as heroes. The latter stressed the point
that they chose to fight the Nazis, becoming their enemies out of free choice,
while the Jews incurred the Nazis adversity as a matter of identity or fate-
nothing heroic. 9 Forty years after having denied the victims the status of na-
tional heroes, the national heroes demanded to be recognized as victims. In
the post-war vagaries of prestige, that of the victims eventually outdid that of
the heroes, even when the legal signifier expressing this turn is something as
technical as a statute of limitation. For the R6sistance veterans, any other
ruling would not have made sense. France, to their minds, had not gone to
the lengths it did to extradite Barbie, while running the risk of raising long-
suppressed questions of collaboration and betrayal from within the R6sis-
tance,10 merely to vindicate the deportation of several thousand Jews to
Auschwitz. That would have been unacceptable to the French public, repre-

6 Fd6ration Nationale des Dport6s et Intems R~sistants et Patriotes and Others v. Barbie,
78 I.L.R. 136 (Cour de cassation, cass. crim. [highest court of ordinary jurisdiction, criminal
chamber] 1985) (Fr.) (overturning and summarizing the decision of the Cour d'Appel on Oct.
4, 1985). For information on the course of the trial, preliminary proceedings and the four year
period of legal entanglements preceding it, see generally MORGAN, supra note 5;
CHRONICLES, supra note 3.
7 See also Gilbert Comte, La justice de qui? [Whose Justice?] LE MONDE (Paris) Feb. 10,
1983, at 2; PIERRE VIDAL-NAQUET, ASSASINS OF MEMORY 129-35 (1992); supra text accom-
panying note 6.
8 ALAIN FINKIELKRAUT, LA MEMOIRE VAINE: DU CRIME CONTRE L'HUMANITt [REMEMBERING IN
VAIN: THE KLAUS BARBIE TRIAL AND CRIMES AGAINST HUMANITY] 38-44 (1989).
9 Even during the war, captured Jewish R6sistance fighters were sometimes executed in their
former rather than latter capacity (or perhaps, the combination). See JACQUES GIVET, LE CAS
VERGES 113 (1986).
10The defense alleged that Jean Moulin in fact committed suicide in Barbie's office, having
been informed that his capture was due to betrayal within R6sistance ranks. Jean Moulin s'est
tu6 lui-mdme [Jean Moulin Committed Suicide], LE MONDE (Paris), Feb. 11, 1983, at 8. For
reports of the trial proceedings on these and other matters and partial transcripts of pleadings,
see generally CHRONICLES, supra note 3; PIERRE MtRINDOL, BARBIE: LE PROCtS [BARBIE:
THE TRIAL] (1987); BOWER, supra note 4, at 226-28.
 11 UCLA J. INT'L L. & FOR. AFF. 39 (2006)

sented by several parties civiles who participated in the prosecution." How-

ever, as I will claim shortly, the French court ruling on this matter-allowing
Barbie's treatment of captured Resistance fighters to count as crimes against
humanity-cannot be sanctioned by the Arendtian notion of crime against
humanity. The reason is the existential difference explored above, namely
victimization being entailed by choice and will-the case of the Resistance
fighters and the alleged source of their heroism-not immutable identity, as
was that of the Jews. For the Arendtian and other metaphysical schools this
difference should count; the legal realists and those interested less in phi-
losophical tenability and more in the forms ofjustice exercised in cases such
as Barbie's, 12 would in all probability brush it aside, as the French Cours de
Cassation more or less did. 13 In fact, there is a third way, which to my mind
is more attractive than either. Barbie's actions against the Resistance fight-
ers were indeed war crimes, but in torturing them he committed a crime, not
against humanity, but against humanness, against what it existentially means
to be a human being. I shall return to this point shortly.

11 See ERNA PARIS, UNHEALED WOUNDS: FRANCE AND THE KLAUS BARBIE AFFAIR (Grove
Press, 1986) (1979).
12Eichmann, to recall, was sentenced to death and remains the only person ever to have been
executed in Israel (Demjanjuk having been acquitted on appeal in 1993). See infra text ac-
companying note 17. Barbie was found guilty in all 340 counts of committing a crime against
humanity for which he stood accused at the Cours d'Assises du R6hn and was sentenced to
life imprisonment. See 78 I.L.R. 148 (1988). He died in Prison in 1991.
13The court's ruling, however, is important enough in the annals of the jurisprudence of
crimes against humanity to merit a lengthy quotation from FdrationNationale des Dbport~s
et Intern~s R~sistants et Patriotes and Others v. Barbie, 78 I.L.R. 137 (Cour de cassation,
cass. crim. [highest court of ordinary jurisdiction, criminal chamber] 1985) (Fr.).
[C]rimes against humanity within the meaning of Article 6(c) of the Charter of
the International Military Tribunal annexed to the London Agreement of 8 Au-
gust 1945, which are not subject to statutory limitation of the right of prosecu-
tion, even if they are crimes which can also be classified as war crimes within
the meaning of Article 6(b) of the Charter: inhumane acts and persecution com-
mitted in a systematic manner in the name of a State practising [sic] a policy of
ideological supremacy, not only against persons by reason of their membership
of a racial or religious community, but also against the opponents of that policy,
whatever the form of their opposition.
Note the restriction to acts pertaining to be "in the name of a State" that initially barred the
prosecution of Vichy officials under this interpretation, unless they were deemed to have
acted at the behest of Germany. That restriction was lifted in France in 1992. See Leila Sadat
Wexler, The Interpretationof the Nuremberg Principles by the French Court of Cassation:
From Touvier to Barbie and Back Again, 32 COLUM. J. TRANSNAT'L. L. 289 (1994).
How Can A Crime Be Against Humanity? 45

Il1. A CRIME AGAINST WHOM?

Unlike Adolf Eichmann's 1961 trial in Jerusalem, the Barbie trial was
attended by no Hannah Arendt, and no Karl Jaspers called for its intemation-
alization. No one seriously advocated delivering Barbie to an international
tribunal to be tried, even if a few rhetorical remnants of Arendt's staunch po-
sition in 1961 echoed still. Nor did anyone seriously deny the Jews and
R~sistance fighters-as well as the French Republic, their proxy of sorts-
the status of rightful victims, nor was there any external challenge to the
moral competence of the French court. Despite intense national coverage
and a high political profile, no serious commentator termed it in disgust a
"show trial" as Arendt famously depicted the Eichmann trial, 14 possibly be-
cause the show was on both sides-the prosecution's as well as the de-
fense's.15 This does not mean that the trial did not face claims of illegiti-
macy, but this time they came from an entirely different quarter, one that
Arendt could not have predicted twenty-six years earlier.
Barbie assembled a defense team very different from that of Eichmann.
Eichmann had been represented by the Cologne-based lawyer, Dr. Robert
Servatius, who earlier had defended Karl Brandt at Nuremberg. 16 Barbie's
defense team consisted of three lawyers, all alleged representatives of the so-
called "Third World" (or "the South," etc.). Jacques Verges, lead counsel,
was a native of Thailand of Vietnamese-French parentage. He was aided by
Jean-Martin Mbemba, who later became Minister of Justice of the Republic
of Congo, and the Algerian, Nabil Bouaita. 17 The defense, spearheaded by

14 See HANNAH ARENDT, EICHMANN IN JERUSALEM: A REPORT ON THE BANALITY OF EVIL 4,

176, 254 etpassim (Penguin Books 1994) (1963).
15See PARIS, supra note 11, at 210 ("[By 1987] the historical show trial originally desired by
both the Resistance and the Jews would probably not take place."). For discussions of these
trials and their far-reaching significance, see generally LEORA BILSKY, TRANSFORMATIVE
JUSTICE: ISRAELI IDENTITY ON TRIAL (2004); LAWRENCE DOUGLAS, THE MEMORY OF
JUDGMENT: MAKING LAW AND HISTORY IN THE TRIALS OF THE HOLOCAUST (2001).
16Brandt was Hitler's physician and chief of the Nazi euthanasia program.
17 It is interesting to compare this with the defense team of John Demjanjuk, allegedly "Ivan
the Terrible" of the Treblinka death camp, tried in Israel in 1987-88 and 1992-93. Demjan-
juk was a naturalized U.S. citizen and initially the defense team included two Ohioan counsel
as well as a local Israeli one; however, the American counsel were gradually edged out while
the defense was joined by a Canadian and an additional Israeli lawyer, the ex-judge Dov Eitan
who committed suicide on the eve of the appeal, won by the defense in 1993 (the main de-
fense was that of mistaken identity-the court ruled that in spite of documentation and the
testimony of eyewitnesses, reasonable doubt existed as to the identification of Demjanjuk as a
notorious Treblinka death camp official). CrimA 347/88 Israel v. Demjanjuk, [1993] IsrSC
47(4) 221. See Andrew David Wolfberg, Israel v. Ivan (John)Demjanjuk; Wachmann Dem-
janjuk Allowed to Go Free, 17 Loy. L.A. INT'L & COMP. L. REV. 445 (1995).
46 11 UCLA J. INT'L L. & FOR. AFF. 39 (2006)

the flamboyant Verges, made many eloquent claims, among which was that
Barbie could not be charged with crimes against humanity because humanity
was not involved in his actions, nor in the Shoa in general. The Shoa was a
European affair, played in the backyard of the white race. Ascribing to it the
status of crime against humanity was part of the old Eurocentric, colonialist
language. And here were representatives of France's ex-colonies in Asia
and Africa explaining that they were humanity by any conceivable notion,
and that whatever the Europeans were inflicting on each other was none of
humanity's concern. In fact, they added, focusing on Europe and the Shoa
served to normalize the terrible affronts that Europeans had inflicted and
continued to inflict on other peoples everywhere, during colonial as well as
post-colonial times. Don't call it a crime against humanity, they argued, as
humanity renounces its victimization by the Nazis; far greater are the af-
fronts committed by liberal-democratic regimes such as France, Britain, the
United States, and Israel all over the non-industrialized world. 18
In order to appreciate Verghs' argument, we must return to Arendt. In
Eichmann in Jerusalem: A Report on the Banality of Evil (1963) and in the
chapters about Jaspers in Men in Dark Times (1968) Arendt considers the
essential characterization of humanity. Her approach is anti-Hegelian: for
Arendt, the essential driving force of humanity is not that of historical pro-
gress. Not only isn't the human condition about the objectification of spirit
in history-the Hegelian ontology-but history has no presupposed direction
at all. Instead, the salient characteristic of the human condition for Arendt is
its potential for, and reality of, diversity.1 9 That persons can be so many
things and partake in so many kinds of existence is, for Arendt, not a feature

18Verges published his views in this regard before, during and subsequent to the Barbie trial.
See, e.g., JACQUES VERGES, JE DtFENDS BARBIE [I DEFEND BARBIE] 175, 176 (1988)
[C]e prochs conduit en son nor laisse l'humanit& bien indiffrente.... [P]our
organiser un prochs comme celui-ci, au nor de la conscience humaine, pour pu-
nir ... des crimes "contre l'humanit", il faut pouvoir parler soi-m~me au nom
de l'humanit6 tout enti~re, du haut d'une vertu irr~prochable qu'aucun soupcon
ne saurait atteindre, avoir les mains pures et la m~moire A jour. Ce n'est pas
notre cas.
[This trial, conducted in the name of humanity, leaves it totally indifferent....
To organize a trial like this one, in the name of human conscience, to punish
crimes said to be "against humanity," one must oneself be able to speak in the
name of humanity in its entirety, above an irreproachable virtue that no suspi-
cion would know how to attain, to have pure hands and undated memory. This
is not the case with us.]
19The Nazis perpetrated "an attack upon human diversity as such, that is, upon a characteris-
tic of the 'human status' without which the very words 'mankind' or 'humanity' would be
devoid of meaning." ARENDT, supra note 14, at 268-69.
How Can A Crime Be Azainst Humanity?

of civilization-which is one category of humanity-but essential to human-

ity itself.20 The acts of the Nazis constituted crimes against humanity in a
new and modernist sense not because they were extremely cruel, or dis-
criminatory, nor due to their magnitude alone. It was the annihilation-the
attempted annihilation-of a comprehensive human way of living, of the
possibility of being a Jew that made the Final Solution a totally new and
unique phenomenon in human history so far. 2 1 That is why, although the
mass homicide was certainly perpetrated against the Jews, the systematic
genocide was a crime against humanity: because it attempted to obliterate
the form of existence which is Jewish, for all people, for all eternity or at
least for as long as humanity should last, not just for the people who hap-
pened to be Jews between 1942 (the Wannsee Conference) and 1945. That
is also the reason why most mass killings prior to the Shoa should not be
considered crimes against humanity: vicious, murderous, barbarous, they
were not intended to rob humanity of one of its own manifestations. In the
strict Hegelian scheme, those who perished in them should consider that
humanity had emerged on top, got over the hump on its serpentine and ironic
path of spiritual progress. People perished; humanity continued, unaffected
and unaffectable. But not so the Shoa, out of which humanity emerged bat-
tered, hurt, vulnerable, and victimized. For the first time, it discovered its
own vulnerability. 22
Arendt's talk of the Shoa as being "a crime against humanity, perpe-
trated upon the body of the Jewish people ' 23 did not always sit well with the
direct victims. Telling a people who have barely emerged from the most aw-
ful ordeal in a history packed with them that, "It wasn't personal" or, "It
wasn't about you, it's about us" or even, as in her coverage of the Eichmann
trial, "Bug off and let us-humanity, the true victim-deal with it," would
be prone to be unpopular. However, and significantly, Arendt also would
not carry much weight with Verges, Barbie's postmodernist lawyer. Con-

20 See id. See also HANNAH ARENDT, MEN IN DARK TIMES 81 (1968) (noting in particular the
chapter on Jaspers). Elsewhere Arendt talks of the "infinite plurality" of human forms of life.
21Another prevailing concept in Arendt's analysis is that the Shoa made humans "superflu-
ous" qua humans. See, e.g., HANNAH ARENDT, THE ORIGINS OF TOTALITARIANISM, 433 (1st
ed. 1951), 457 (3d ed. 1968). This is more extreme than defying the Kantian categorical im-
perative and treating humans as means to ends alone, because the latter denies them their dig-
nity, but the former makes them superfluous as human beings, denies their membership in
humanity and in the world altogether.
22In following Arendt, Finkielkraut goes further and ascribes to humanity mortality, namely
the ontological prerequisite for the ultimate victimization. See FINKIELKRAUT, supra note 8,
at 63. I prefer to remain here on a metaphorical level.
23 ARENDT, supra note 21, at 269.
 11 UCLA J. INT'L L. & FOR. AFF. 39 (2006)

ceivably, Verges' position would be: outside of the immediate European

context, civilization has no great stake, and no one in the world cares much,
whether such a thing as a Jew exists or not, or is possible or not. Other
modes and ways of life were routinely and still are obliterated by the West.
White Europe should solve its internal problems as such, and not inflate its
internal grievances to the level of crimes against humanity. Such acts are
routinely perpetrated by the democratic West, are numerous, unacknow-
ledged, and go unpunished. As Finkielkraut bitterly remarks, in Verges'
world, everybody is a Nazi except for the Nazis. In Fregean terms, Verges'
performance is linguistically significant in that he transforms "Nazi" into a
word with no reference, only a sense. 24 It is, of course, a political move, but
in a sense also a normal performance in the practice of defensive lawyering:
for every defense lawyer wishes to have the court retain the sense-term of
the perpetrator and the act involved (e.g., "Nicole's killer") but refrain from
signification of the particular defendant ("O.J. Simpson") by it.
Verges' argument is bankrupt, and there are several ways to emerge
from it. One is the obvious fallacy of universalization, or more precisely the
lack thereof: if law is to protect both persons and groups of persons or even
humanity itself from abuse and victimization, it must do so for all, evenly. If
humanity were an all-mother, then, according to Verges, she took no interest
in her white children. Where Verges may have a point, however, is in
pointing to the West's scope of attention: that for decades it reserved law in
its domestic and international versions mostly to protect itself, paying little
heed-and even less legal heed-to the victimization of others; indeed, law
has been and still is a tool of oppression and victimization in many, probably
most parts of the world. But that, too, can be explained. The West, after
all-and no wonder-is the part of humanity that developed the categories
of crime against humanity, war crimes and humanitarian law. Not surpris-
ingly, it spent the first decades using these tools for introspection and gov-
erning actions within its own cultural and political scope. The category of
crime against humanity, however, is finally beginning to emerge from the
immediate context of the Shoa towards a global jurisprudence of criminal
liability with the recent globalization of criminal justice with the creation of
the International Criminal Court (ICC) in 199825 as well as the Special Court

24 Gottlob Frege, On Sense and Reference, in PHILOSOPHICAL WRITINGS OF GOTrLOB FREGE

56 (Peter Geach & Max Black eds., Blackwell, 1952).

25 Rome Statute of the International Criminal Court, U.N. Doc A/CONF. 183/9 (July 17,
1998). The Statute entered into force on July 1, 2002. For various materials germane to the
Statute and other international tribunals (going back to the London Agreement of 1945 that
set the Nuremberg Trials), see ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT (3d
How Can A Crime Be Against Humanity? 49

for Sierra Leone (established in 2002 through UN and national coopera-

tion); 26 the International Criminal Tribunal for Rwanda (ICTR), set up by the
UN Security Council and dealing with the 1994 genocide,2 7 which delivered 28
the first-ever judgment on the crime of genocide by an international court;
and the International Criminal Tribunal for Former Yugoslavia (ICTY),29
which Verges considers illegal.3 °

ed. 2002).
26 The Special Court for Sierra Leone is an interesting case of local and international initia-

tive: it was established by Agreement between the UN and the Government of Sierra Leone
on January 16, 2002 following Security Council resolution 1315 of August 14, 2000. Agree-
ment Between the United Nations and the Government of Sierra Leone on the Establishment
of a Special Court for Sierra Leone, U.N.-Sierra Leone, Jan. 16, 2002, availableat
http://www.sc-sl.org/scsl-agreement.html. It should be noted that the preamble to Res. 1315
refers also "very serious crimes committed . . . against ... United Nations and associated per-
sonnel." S.C. Res. 1315, at 1, U.N. Doc. S/Res/1315 (Aug. 14, 2000). The court handed
down its first verdicts against three defendants on charges of murder, rape, and enlisting child
soldiers on June 20, 2007. 3 Sierra Leone Rebels Found Guilty In First Verdicts by War Tri-
bunal, N.Y. TIMES, June 21, 2007, at A4. Ironically, the New York Times headline still re-
flects the older bias of regarding these primarily as war crimes, whereas Article 1.1 of the
Special Court for Sierra Leone agreement uses the general language "serious violations of
international humanitarian law and Sierra Leonean law."
27 S.C. Res. 955, U.N. Doc. S/RES/955 (Nov. 8, 1994).
28 Prosecutor v. Akayesu, Case No. ICTR 96-4-T, Judgment, 569, (Sept. 2, 1998) (quoting
the definition of crime against humanity used by the French court in the Barbie case). As of
June 2006, ICTR has convicted twenty-five out of twenty-eight indicted defendants for the
crime of genocide, crimes against humanity, sexual violence and other crimes committed dur-
ing the 1994 atrocities. INT'L CRIMINAL TRIBUNAL FOR RWANDA, FACT SHEET NO. 1, THE
TRIBUNAL AT A GLANCE, available at http://69.94.11.53/ENGLISH/factsheets/1 .htm (last vis-
ited Mar. 1, 2007). The ICTR sits across the Rwandan border in Arusha, Tanzania. See also
L. J. VAN DEN HERIK, 53 THE CONTRIBUTION OF THE RWANDA TRIBUNAL TO THE DEVELOPMENT
OF INTERNATIONAL LAW (Dev. in Int'l Law, 2005).
29 S.C. Res. 827, 2, U.N. Doc. S/RES/827 (May 25, 1993). See generally S.C. Res. 1166,
U.N. Doc. S/RES/1166 (May 13, 1998); The Secretary-General, Report of the Secretary-
General on Aspects of Establishing an InternationalTribunalfor the Prosecutionof Persons
Responsiblefor Serious Violations of InternationalHumanitarianLaw Committed in the Ter-
ritory of the Former Yugoslavia, delivered to the Security Council, U.N. Doc. S/25704 (May
3, 1993), reprinted in 32 I.L.M. 1159 (1993). ICTY transcends the borders of Western
Europe but can still, in Verges' terms, be considered part of the West's preoccupation with
itself-as opposed to the case with ICTR. Indeed, much of the public discourse in Western
Europe noted with horror that the atrocities were "here" or "at our doorstep." See Susan Son-
tag, Why Are We In Kosovo? N.Y. TIMES, May 2, 1999, § 6 (Magazine), at 52.
30Verges' argues that dispensing justice is a prerogative reserved to sovereign states and was
never accorded to the Security Council by the UN Charter; as the ICTY was created by the
Security Council rather than by international treaty, it functions "hors-la-loi" ("outside law").
Presumably the same would apply to the ICTR. JACQUES VERGES, JUSTICE POUR LE PEUPLE
50 11 UCLA J. INT'L L. & FOR. AFF. 39 (2006)

IV. ARENDT AND THE GLOBAL INSTITUTIONALIZATION OF THE

CONCEPT OF CRIMES AGAINST HUMANITY

Ironically, the globalization of the concept of crime against humanity

through the creation of international law and international tribunals-which
Jaspers and Arendt had envisioned during the Eichmann trial-has all but
pulled the carpet from under the Arendtian metaphysics. The reason is that
the crimes these modem tribunals wrestle with would not fall under Arendt's
definition. In the former Yugoslavia, ethnic cleaning, while brutal and hor-
rible, was part of a national-ethnic struggle and not of a plan of annihilation.
As far as conflicts go, it was a "pre-modem" one. Even the genocide in Bia-
fra and more recently in Sudan-sometimes committed by "criminal states,"
sometimes by militia or paramilitary gangs, sometimes by both-are con-
flicts and atrocities that fall under the traditional categories of war crimes.
This is unlike the Shoa, for which the category was invented, and that al-
though it was a historical precursor to subsequent atrocities, in itself it was a
unique event in history indeed. This claim centers not on the victimization
but on the perpetration. 3 I It was unique in that it employed some of the high-
est achievements of civilization to an end not simply of destruction but of
annihilation. It employed the entire bureaucracy of a modem technological
state: all the structures of progress that, since the enlightenment, were con-
sidered means to benefit humankind. But not just in its means, also in its
ideology and structure of legitimization, it employed parallel devices. The-
ory was its weapon, although it required an almost unimaginable level of vi-

SERBE: LA PLAIDOIRIE QUE J'AURAIS PRONONCEE DEVANT LE TRIBUNAL PENAL INTERNATIONAL

87-97, 109-13 (2003). Verges quotes a learned opinion asserting that since the Council is not
itself a judicial body (which no one contests), a strict distinction exists between the Council's
mandate for keeping "peace" and anything to do with "justice." Id. at 109-13. This formal
distinction between political and legal functions is well grounded in French tradition of con-
struction. See Sandra Szurek, La Charte des Nations Unies: Constitution Mondiale? [The
United Nations Charter:Constitution of the World?], in 1 LA CHARTE DES NATIONS UNIES 29,
59-60, 39 (Jean-Pierre Cot & Alain Pellet, eds., 3d. ed. 2005). Where a common law inter-
preter may proceed by analogy or functional interpretation of "maintaining peace," the civil
lawyer sees no lacuna to justify such a liberal approach.
31This emphasis on the role of a political regime seems to be Saul Friedlander's perspective
as well. See Saul Friedlinder, Reflexions sur / 'historisationdu National-Socialisme [Reflec-
tions on the Historicization of National-Socialism], 16 VINGTIME SIICLE, REVUE D'HISTOIRE,
Oct.-Dec. 1987, at 43, 45 (Fr.). As for victimization, Ricceur envisions a representative func-
tion within the entire category rather than a separate one. "Les victimes d'Auschwitz sont,
par excellence, les d~l~gu~s aupr~s de notre m~moire de toutes les victimes de l'histoire."
["The victims of Auschwitz are, par excellence, the delegates closest to our memory of all the
victims in history."] PAUL RICCEUR, TOME Ii, TEMPS ET RECIT: LE TEMPS RACONTt 273
(1985).
How Can A Crime Be Against Humanity? 51

ciousness to implement. For the idea of annihilating an entire race or ethnic

group from the face of the earth-a race whose existence accompanied
Western civilization since its inception-is not just evil, not merely radical,
but a deep idea. The Shoa was not a huge-scale pogrom. It was not a logical
conclusion of anti-Semitism or racism or discrimination, although all these
certainly maintain causal links with it. It proceeded from a system of
thought.
This claim runs in contrast to Arendt, who moved away from her dis-
cussion of "radical evil" in The Origins of Totalitarianismto claim that evil
"never possesses depth .... It is 'thought-defying,' as I said, because thought
tries to reach some depth ... the moment it concerns itself with evil, it is
frustrated because there is nothing. That is its 'banality'. 32 But of course,
for evil to be deep, it need not function as an object for profound thought.
Evil need not be approached as the object which the reflexive subject
("thought") examines, for herein lies the blunder: it is not thought that thinks
evil (and which, according to Arendt, cannot do this in any profound sense);
it is evil that thinks, cogitates, categorizes, acts, arranges the world and posi-
tions itself in the world and contra the world. The evil of the Shoa is deep
and at some of its corners still inscrutable. The gray, bureaucratic people
who operated its vast machinery did not conform to the romantic archetypes
of evil, the "satanic greatness, '33 but that is exactly what makes the evil they
were steeped in more dangerous, complicated and enigmatic, not banal at all.
In denying evil's traditional aesthetic and mythical characteristics, Arendt
has exorcised not evil nor its profoundness nor its horrible hold on the hu-
man imagination, but simply a set of romantic representations going back to
the Nibelungenlied, Faust and Fritz Lang's Metropolis.34 These have quickly

32 RICHARD BERNSTEIN, HANNAH ARENDT AND THE JEWISH QUESTION 138-39 (Polity Press
1996) (1996) (quoting a passage from a 1964 letter to Gershom Scholem, a loyal friend and
fierce critic of Arendt's thesis of the banality of evil).
33 The nature of evil occupied both Arendt's thinking and her correspondence (notably with
Gershom Shalom and Karl Jaspers) throughout the post-war decades. See generally HANNAH
ARENDT/KARL JASPERS CORRESPONDENCE 1926-69, at 62, 69 (Lotte Kohler & Hans Saner
eds., 1992) (alluding to the problem of "Satanic greatness" in Arendt's prior writings). See
also Richard Bernstein, Did Arendt Change her Mind: From Radical Evil to the Banality of
Evil? in HANNAH ARENDT TWENTY YEARS LATER (Larry May & Jerome Kohn eds., 1996).
34 It would be interesting to compare these artifacts with a recent visual work that aspires to
mythical representations, the cinematic fantasy trilogy Lord of the Rings (New Zealand 2002-
04), adapted by director Peter Jackson from J.R.R. Tolkien's monumental series of books by
the same name published in the decade following WWII. While in these films less significant
minions of evil are gruesomely and meticulously depicted through very effective special ef-
fects, that is not the case with the most awful horrors of them all. The Balrog was an ancient
creature of evil whose very presence in its vicinity drove the prospering civilization of Moria
 11 UCLA J. INT'L L. & FOR. AFF. 39 (2006)

been replaced by Orwellian aesthetics. Bureaucratic structures that divide

personal responsibility into tiny bits that leave no one with a sense of moral
responsibility are a modem corporate structure used in many "normal" con-
texts. The silent film documenting the persons acting within such systems
will show us banal behavior; but the product of the system need not be, and
many times is not banal at all. Many systems of production work this way,
producing science and art and law. Arendt's important point is therefore not
about evil itself, but about its perpetrators: it is a project of demystification,
of positioning the acts of the Nazis in this world and not, in the words of
Yiddish author and Shoa survivor Yehiel Dinur (a.k.a. Katzetnik), "planet
Auschwitz" (Katzetnik later retracted the dictum). Arendt provided us with
useful clues to understand how modem structures facilitate the perpetration
of evil. This provides, to my mind, more of a structural analysis of modem
bureaucracies than a philosophical thesis about evil itself.
Where, then, does the concept of crime against humanity go from here?
For the pragmatists and legal realists, the answer is simple: unconcerned
with the collapse of the Arendtian category (as it makes little sense to create
a legal category with no ex-ante function, pertaining to a unique event in his-
tory), they find the concept useful to broaden, little by little, the rule of law
over atrocious acts that previously were subject to no legal discourse and ex-
isted only in the realm of r~alpolitique. If the Nuremberg trials represent
the "law of the victors," as some critics claim (but this "critique" has little
content and seems almost tautological-for whose law should we expect the
victors to install? Isn't that what "victory" means, except according to
Nietzsche's ironic critique?), 35 well then, it would only be expected that the

to desperate demise and destruction. Visually, it is a total artistic failure-almost a farce of a

monster. By 2002, even the most talented visual artists simply lost the ability to convey to us
the aesthetics of great evil, the "satanic genius." Even more tellingly, the lord of the rings
himself, the fearsome Sauron-bent on world domination and the submission of civilizations,
nations and races to slavery and death-is never visually depicted, nor did the clever Tolkien
provide as much as a hint as to his appearance. Which, of course, only renders him (or "it?")
scarier. Evil never became banal, but certainly-as Arendt shows-it has become much more
difficult to locate and portray, let alone account for. Camus' Peste remains, after all, invisi-
ble, inexplicable, and yet omnipresent.
35 Nietzsche's notion of "slave morality" is a structure whereby weaker entities (e.g. a culture
or a nation) that have lost out in a struggle to a more powerful one may eventually dominate it
through moral imposition. A parable he offers is Christianity, the ethical system by which the
vanquished Judea seduced and eventually imposed itself on Rome through the creation of bad
conscious (a term of art in Nietzsche's philosophy) and ressentiment, that in turn "becomes
creative and gives birth to values." FRIEDRICH NIETZSCHE, ON THE GENEALOGY OF MORALS,
pt. 1, paras. 10-13 (Walter Kaufmann trans., 1974) (1887). See also GILLES DELEUZE,
NIETZSCHE AND PHILOSOPHY 124-33 (Hugh Tomlinson trans., 1983). References to
How Can A Crime Be Against Humanity?

victors should require a jurisprudence to organize the post-WWII world. For

myself, I can see the usefulness of this pragmatic approach. It is, however,
risky. The risk is that the category of crimes against humanity, because it
rides the aftermath of the Holocaust to the status of the most blatant of-
fenses, will be used to harbor too many types of offensive behavior. "Too
many" is not an exact measure. The concern is that the rhetorically ominous
and useful category would become both abused and trivialized. Indeed, even
today, international treaties, not wishing to deny any potential group the
status of victims, have broadened the category of crimes against humanity to
include offenses that draw further away from the particular parameters that
made civilization so invested in the concept of crime against humanity in the
first place. Article 7 of the Rome Statute, which established the permanent
International Criminal Court in The Hague, identifies the following as
crimes against humanity, all when committed as part of a widespread or sys-
tematic attack directed against any civilian population:
(a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation or
forcible transfer of population; (e) Imprisonment or other severe dep-
rivation of physical liberty in violation of fundamental rules of inter-
national law; (f) Torture; (g) Rape, sexual slavery, enforced prostitu-
tion, forced pregnancy, enforced sterilization, or any other form of
sexual violence of comparable gravity; (h) Persecution against any
identifiable group or collectivity on political, racial, national, ethnic,
cultural, religious, gender as defined in paragraph 3, or other grounds
that are universally recognized as impermissible under international
law, in connection with any act referred to in this paragraph or any
crime within the jurisdiction of the Court; (i) Enforced disappearance
of persons; (j) The crime of apartheid; (k) Other inhumane acts of a
similar character intentionally causing great suffering, or serious in-
jury to body or to mental or physical health.
It is not my intention to discuss here the justification for the inclusion of
any of these acts in the definition of crime against humanity, nor to raise the
concern of over-inclusion. It is clear, however, that the Arendtian definition,
working from the category of diversity, cannot rationalize the lot. There
barely seems to be any unifying concept here-which, for the realist-
pragmatist, glad to be rid of metaphysical complications, can only be inter-
preted as a benefit.
Another relevant, emerging approach to the global institutionalization of
the concept of crime against humanity can be characterized as victim-

Nietzsche's works follow the standard citation to aphorism or paragraph number, not to page
number.
 11 UCLA J. INT'L L. & FOR. AFF. 39 (2006)

oriented rather than focused on the victimization as such. The point of such
a perspective-crucial, in my view-is to provide, rather than merely cate-
gories and a language of victimization, types of claims and redresses avail-36
able to victims against perpetrators: restitution, damages, rehabilitation.
Such an approach-sanctioned by the Treaty of Rome-would unshackle
legal proceedings from the confines of "memory trials," and afford victims
(who, at Nuremberg, were confined to the role of witnesses) true legal ven-
ues and instances. This, too, is a legal-realistic approach, as well as a liberal
one. A concrete victim is at the focal point, not the question of how human-
ity was wronged through the act of victimization, nor how humanity (or any
community thereof) may make use of the victimization for purposes of its
collective memory. 37 This position maintains a mixed relation to Arendt's
jurisprudence in Eichmann. She would probably approve of the growing re-
sistance to using justice for ideological purposes; however, she would be
challenged by the notion that the victims proper (or survivors when this is
impossible) have the truest quarrel with the perpetrators; that it is, in the fi-
nal count, about them at least as much as it is about "humanity."

36
See, e.g., Pierre Truche, Juger demain les crimes contre l 'humanit [To Judge Tomorrow
Crimes Against Humanity], Epilogue to BARBIE, TOUVIER, PAPON.. DES PROCES POUR LA
MEMOIRE [BARBIE, TOUVIER, PAPON ... TRIALS FOR THE MEMORY] 157, 165 (Jean-Paul Jean &
Denis Salas, eds., 2002) [hereinafter BARBIE, ToUViER, PAPON].
37 For the central role of the generation, manipulation, and edification of memory in what I
term "memory trials," see Denis Salas, La justice entre histoire et mmoire [Justice Between
History and Memory], in BARBIE, TOUVIER, PAPON, supra note 36, at 20-22. See also PARIS,
supra note 11; BILSKY, supra note 15; DOUGLAS, supra note 15. However, professional
prosecutors sometimes resist this function as inherently offensive to justice (possibly influ-
enced by Arendt's critique of the Eichmann trial). According to Marc Robert, a prosecutor in
the 1995-98 trial of high-ranking Vichy official Maurice Papon for crimes against humanity,
[J]e disais aux jur~s que le proc~s intent6 contre Maurice Papon n'avait pas pour
but de g~n&rer de l'histoire et de fabriquer la m~moire, mais simplement de juger
un homme.
Cette ide fixe ... [,] la 1kgitimit& m~me du proc~s en d~coulait, [et] la libert6
des juges en d~pendait.
[I have told the jury that the goal of the trial against Maurice Papon was not to
generate history nor to create memory, but simply to judge a man. This fixed
idea ... is required for the very legitimacy of the trial, [and] the independence of
the judges depends on it.]
Marc Robert, Soutenir l 'accusationdans un procds de crime contre l 'humanit6 [To Support
the Accusation in a Trial of a CrimeAgainst Humanity], in BARBIE, TOUVIER, PAPON, supra
note 36, at 38.
How Can A Crime Be Against Humanity?

V. A CRIME AGAINST HUMANNESS

When surveying the development of the legal category of crime against

humanity since the Eichmann trial and on to the Rome statute-and indeed
following Arendt-an essential notion of what we are trying to protect does
indeed emerge. The unifying concept, though, is not that of humanity, but
rather that of humanness. In regulating against rape, humiliation, persecu-
tion and torture, we are attempting to protect not humanity or one of its cate-
gories, but the essential humanness carried by each and every person. Kant-
ians and natural law theorists would talk about humanness in terms of human
dignity or "an end in itself," but that is not necessarily the concept here. In-
fringing on human dignity is one thing; denying humanness is another. The
former is ethically wrong, but the latter-crime against humanness-negates
the very being in the world as a human being.38 Certainly protecting dignity
is a compelling concern. In liberal ethics, human dignity is a predominant
ethical category of the human condition, but it is still one single category
among several (it maintains, for instance, relations with other existential
categories such as will). Criminal law, constitutional law, and in some con-
texts, other branches of law such as civil law, are well-versed in dealing with
offenses against human dignity. Extreme offenses deny the victim dignity
altogether; she is then, either for a duration or permanently, a human being
whose dignity has been denied or even destroyed; but a human nonetheless,
whose other aspects of humanness may not be so traumatized. The crime
against humanness obliterates (permanently or temporarily) or attempts to
obliterate the person qua human. It treats her as an object-as property or an
obstruction that requires removing, etc.-as something that does not have
and cannot have any place in this world as a human. Slavery, genocide, and
forced pregnancy all seem obvious acts where more than dignity is being
violated.
The immediate challenge, of course, would be to distinguish between
acts and contexts that fall under traditional law from those that fall under the
new category; this would also require dealing with the jurisdictional "divi-
sion of labor" between an internationalized regime of criminal justice and
the several domestic systems. I would not attempt to deal with these topics
in the framework of this paper. I think an attractive theoretical model-a
fiction-would be to consider humanity (or the "world community" as op-
posed to the "international community") as directly having all humans in its
38 See BERNSTEIN,supra note 31, at 97, 139-43 (discussing, inter alia, Arendt's typification
of totalitarian domination-the salient characteristic of the totalitarian state, expressed in its
most extreme manifestation in the concentration camps-as that of rendering persons super-
fluous as such); see also ARENDT, supra note 21, at 433 (1st ed. 1951), 457 (3d ed. 1968).
 11 UCLA J. INT'L L. & FOR. AFF. 39 (2006)

care and under its protection, and delegating powers and obligations to the
several states under doctrines of jurisdiction, while the original, direct rela-
tion is never severed. And so humanity, through its agent, the international
community, may step in and mete justice directly, either when no one else is
doing so, presumably because one or more of the sub-agents, the separate
states, is failing in this respect; or because certain types of offenses-
typically, crimes against humanness-it retains for its own jurisdiction as its
own business. What I see attractive in this model is that we do not lose sight
of the fact that the crimes we consider are perpetrated against persons rather
than against humanity. We do not create an imagined totem, Humanity, with
interests and categories and concerns of its own, separate from those of per-
sons, and proceed to protect it. Of course, the model (or metaphor) of world
order I imagine here is truly very far removed from that which sustains the
current international order, where sovereign states form the basis for an in-
ternational regime founded on treaties-a sort of global social contract
among states (whereas I see a global contract among all persons, if the con-
tractual metaphor is to be retained at all, and it might very well not). Elabo-
rating and defending such a concept in any detail is too removed from the
immediate topic of this work and must be undertaken elsewhere.

CONCLUSION

I am not certain when the term "crime against humanity" began to make
the circles of normative discourse. The Unitarian minister, Theodore Parker,
used it in a flamboyant sermon rendered in his hometown of Boston in the
context of abolitionist politics in 1854. 3 9 The preamble of the 1907 IV Hague
Convention is usually-and imprecisely-credited with the term's first ap-
pearance in an international document.40 Lenin famously used it to describe
the continuation of WWI in his peace decree of 1917. 4 1 The first attempts to
involve the concept judicially may have been British indictments of Turkish
officials that took place in Malta during 1919-20;42 however, these instances
39
THEODORE PARKER, THE NEW CRIME AGAINST HUMANITY 13 (1854).
40 The linguistic string "crime against humanity" appears nowhere in the preamble or in the
body of the Hague Convention. The preamble mentions "the interests of humanity" and
"laws of humanity." Convention (IV) Respecting the Laws and Customs of War on Land
pmbl., Oct. 18, 1907, 36 Stat. 2279, 2280, availableat http://www.icrc.org/ihl.nsf/FULL/195?
OpenDocument (last visited Mar. 2, 2007).
41 VLADIMIR 1. LENIN, REPORT ON PEACE (Oct. 26, 1917), reprintedin 2 V. I. LENIN: SELECTED
WORKS 229 (Lawrence & Wishart 1947).
42 Articles 226-30 of the Treaty of Svres (1920) (a peace treaty between the Entente and as-

sociated powers and the Ottoman Empire following World War I) required trial for parties
guilty of committing acts against "the laws and customs of war"; the treaty never came into
How Can A Crime Be Against Humanity?

did not quite separate the concept from the general category of war crimes.
Nor did the concept emerge into its full strength in the Allied joint "Declara-
tion of German Atrocities" in 1943 ("The Moscow Declaration"); 43 that set
the stage for the Nuremberg trials whose constitutive document finally uses
the category of "crimes against humanity" as separate from war crimes. 4 As
a philosophical concept, distinct from other breaches of legal norms, it is
thus very much a post-World War 1I notion, admittedly not gaining in clarity
as much as losing in obscurity; for some critics, it remains "very unstable. 4 5
Re-invoking Arendt's notion of banality-but aesthetic rather than moral or
existential-one notes that crimes against humanity sometimes seem to get
lost in the complexities of legal procedure. When an army general or civil
official or ex-head of state is held responsible for the rape, torture, deporta-
tion and mass murder of tens of thousands, going one witness by one cross-
examination at a time-the necessary rituals of due process-seems almost
bizarre. The cool, solemn surroundings of courthouses, the cleansed lan-
guage, the formal talk that Humanity has in some sense been victimized and
is now being vindicated is a sobering transformation of the horror, shame
and disgust we feel (as well as our mortification from the permutations of
wrongdoing to which we ourselves are subject as a matter of moral luck).46

force (it was superseded by the Treaty of Lausanne, 1923). Nevertheless, the British had
brought up 118 suspects in the crime of massacre to stand trial in front of a military tribunal in
Malta. The indictments dragged on-presumably due to insufficient evidence-and the trials
never came to a close. Some of the detainees were sentenced to death in absentia by Turkish
courts. See GARY J. BASS, STAY THE HAND OF VENGEANCE: THE POLITICS OF WAR CRIMES
TRIBUNALS 106-46 (2000). For background and further references, see Cherif M. Bassiouni,
World War I: 'The War to End All Wars' and the Birth of a Handicapped International
Criminal Justice System, 30 DENy. J. OF INTN'L L & POL'Y 244 (Summer 2002); JAMES F.
WILLIS, PROLOGUE TO NUREMBERG: THE POLITICS AND DIPLOMACY OF PUNISHING WAR
CRIMINALS OF THE FIRST WORLD WAR (1982).
43The declaration, signed by Churchill, Roosevelt and Stalin, refers to "atrocities, massacres

and cold-blooded mass executions which are being perpetrated by the Hitlerite forces ...."
Declaration of German Atrocities, U.S.-U.K.-U.S.S.R., Oct. 30, 1943, DEP'T ST. BULL. Nov.
1943, 310, available at http://www.mazal.org/archive/nmt/06/NMT06-FOIO.htm (last visited
Mar. 2, 2007).
44Charter of the International Military Tribunal art. 6(c), Aug. 8, 1945, reprinted in U.S.
DEP'T OF STATE, PUBL'N No. 3080, INTERNATIONAL CONFERENCE ON MILITARY TRIALS 423
(1949), available at http://www.yale.edu/lawweb/avalon/imt/proc/imtconst.htm (last visited
Mar. 2, 2007) (following the allied 1945 Agreement for the Prosecution and Punishment of
the Major War Criminals of the European Axis).
45Michel Mass&, L ' volution de la notion de crimes contre I'humanit6 [The Evolution of the
Notion of CrimesAgainst Humanity], in BARBIE, TOUVIER, PAPON, supra note 36, at 122.
46 How would we act? How could we act? No amount of philosophical reassurances gener-
ated by a critique of the validity of such counterfactual speculations seems to drive the ques-
 11 UCLA J. INT'L L. & FOR. AFF. 39 (2006)

The matters of the visibility and aesthetics of Justice then play out in inti-
mate conjunction with its other established functions.
Towards the conclusion of Melville's moving and important novella,
Bartleby the Scrivener,47 the benevolent, impotent, respectable lawyer-
narrator, who has taken a certain liking to the awkward, annoying
Bartleby-whose only mode of resistance in the face of a technocratic world
that he can neither accept nor defy is passivity-witnesses Bartleby's demise
and death in prison. The lawyer-or perhaps Melville-ends the story with
an exclamation: "Oh Bartleby! Oh Humanity!" Both parts ring true.48 As
idiosyncratic as he was, Bartleby's lot was one related to his part and mem-
bership in the human condition. And as general a concept as humanity may
appear to be, it is, in the final count, not larger than Bartleby. I propose to
critically and responsibly continue to make use of the concept of crime
against humanity in the pursuit of justice, but let us keep the language of
proxy and not imagine that we are serving a different agent than simply peo-
ple. I do not want to abandon Bartleby, nor to erect some conceptual god-
dess or totem called humanity which could never be dearer to my heart, nor
protected by our norms and concerns any more than all of its Bartlebies.

tion away. That moral luck becomes acute in our efforts to know ourselves and consider our-
selves as moral agents seems to me irrefutable, albeit recent arguments to the contrary. See
Bernard Williams, Moral Luck, 50 PROCEEDINGS OF THE ARISTOTELIAN SOCIETY 115-36
(Supp. 1976), reprintedinBERNARD WILLIAMS, MORAL LUCK 20 (1981).
47 Herman Melville, Bartleby the Scrivener: A Story of Wall-Street (1853), reprinted in A.
WALTON LITZ, MAJOR AMERICAN SHORT STORIES 169 (1975).
48 Nietzsche, who admired Melville and was a harsh critic of the new technocratic culture that
destroyed Bartleby, appropriated and paraphrased the famous exclamation: "Oh humanity!
Oh idiocy!" FRIEDRICH NIETZSCHE, BEYOND GOOD AND EvIL 35 (Helen Zimmem trans.,
Boni & Liveright 1886).