GENOCIDE VS. CRIMES AGAINST HUMANITY

Nuremberg

     Crimes Against Humanity

     Genocide    

Both legal concepts were born at Nuremberg during the prosecution of Nazi criminals.  I read East West Street: The Origins of “Genocide” and “Crimes Against Humanity,” by Phillippe Sands, and learned this fact and more.

OK, let’s start with the difference between these two legal terms.

Crimes Against Humanity is “the killing of individuals, if part of a systematic plan.”

Genocide is “killing of the many with the intention of destroying the group of which they were a part.”

“For a prosecutor today,” Sands explains, “the difference between the two was largely the question of establishing intent: to prove genocide, you needed to show that the act of killing was motivated by an intent to destroy the group, whereas for crimes against humanity no such intent had to be shown.”[1]

Before and during the Nuremberg trials, there was an undeclared war between Hersch Lauterpacht and Rafael Lemkin over which legal term would win out.

Hersch Lauterpacht, a professor of international law at Cambridge University, was a scholar who advocated the creation of an International Bill of Rights for the Individual. He called for “governments to embrace the ‘revolutionary immensity’ of a new international law that would protect the fundamental rights of man.”[2]  He coined the term – “crimes against humanity’.  He was on the British prosecution team at Nuremberg and was successful in getting this crime listed in Article 6 of the Nuremberg Charter, which was used to prosecute 24 German defendants.

Lauterpacht was aware of the Lemkin’s concept of Genocide, but felt that this misplaces the focus.  If genocide is a crime, it will reinforce negative feelings towards both the perpetrators and the victims, creating an “us” versus “them” scenario.  By pitting groups against each other, it will make reconciliation difficult and exacerbate the negative situation.[3]  Better to focus on the human rights of individuals, Lauterpacht felt, and not pit groups against each other.

Rafael Lemkin, a lawyer, who fled Poland in 1939, settling in America, worked with the American prosecution team.  But Lemkin was not invited to be in the group of lawyers that tried the case in Nuremberg.  Lemkin was disappointed that genocide was not included in Article 6 of the Nuremberg Charter.  But he tried in myriad ways to slip genocide into the proceedings.  His main success was that genocide was included in count 3 of the crimes – under “war crimes.” So, both crimes against humanity and genocide were included in the trial, but genocide did not gain traction during the proceedings and was not in the judgment issued at the end of the trial.  Lemkin was devastated.

In contrast, “crimes against humanity got a central place in the judgment and for the first time in history, were recognized to be an established part of international law.  The courtroom listened in silence to the narrative: murder, ill-treatment, pillage, slave labor, persecutions, all giving rise to international criminality.”[4]

But all was not lost for Lemkin.  In December of 1946, after the trial was over, the United Nations General Assembly passed two resolutions.  First, Resolution 95, the General Assembly affirmed that “crimes against humanity” were part of international law.  But second, Resolution 96 was adopted, overruling Nuremberg and affirming that genocide is “a crime under international law.”[5]  Lemkin had done it.   The General Assembly adopted the Convention on the Prevention and Punishment of the Crime of Genocide, “the first human rights treaty of the modern era.”[6]

The author of the book, Phillipe Sands, is a barrister of international law and someone who prosecutes both genocide and crimes against humanity.  He was surprised to learn that both Lemkin (born 1900) and Lauterpacht (born 1897) were raised in Lvov (also known as Lemberg).  Both great legal minds came from the same city and attended the same university.  He was especially interested because his own grandfather, Leon Buchholz, was also born in Lvov in 1904.

The book traces the lives of these three men – Lauterpacht, Lemberg and Sand’s grandfather Leon, searching for truths that are buried in the dust of history.   He weaves these stories in an artful narrative of the lives of three men from Lvov.  His search for facts about his grandfather reminded me of my own journey into the lives of Sam and Esther.  As an attorney, I found the lesson on Nuremberg and the development of modern international laws of human rights to be fascinating.

Sands fundamentally agrees with Lauterpacht that prosecuting the crime of genocide, which emphasized the group, pits “us” against “them” and is not the best way to heal our fractured world.   But he accepts that fact that humans are born into groups and as the biologist Edward O. Wilson wrote: “group-versus-group was a principal driving force that made us what we are.”[7]  “It seems,” Sands continues, “that a basic element of human nature is that ‘people feel compelled to belong to groups and, having joined, consider them superior to competing groups.’”[8]

In this “us versus them” world, we each must work hard to find each person’s humanity and respect each as being created in the image of God.  Yes, we are members of groups, but we are also members of the biggest group – the human race.

 

 

[1] Sands, Phillippe, East West Street: On the Origins of “Genocide” and “Crimes Against Humanity” at 11.

[2] Id. at 104.

[3] See id. at 365.

[4] Id. at 351.

[5] Id. at 361.

[6] Id.

[7] Id. at 365.

[8] Id.

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