Can We Compare Evils? The Enduring Debate on Genocide and Crimes Against Humanity

A look back at the twentieth century reveals that the most critical steps in the criminalization of mass human rights constituted the academic work of Raphel Lemkin and his conceptualization of genocide; the International Military Tribunal Charter’s criminalization of crimes against humanity and the trials that followed; and the conclusion and broad ratification of the Genocide Convention. The Convention was the first treaty since those of slavery and the “white slave traffic” to criminalize peacetime actions by a government against its citizens. Since that time, customary international law has recognized the de-coupling of crimes against humanity from wartime. The result of this process has been two separate international criminal proscriptions—one through custom, one through treaty—covering slightly different sets of atrocities against civilians. The three key differences between genocide under the Genocide Convention and crimes against humanity (under multiple definitions, including that of the Statute creating the International Criminal Court (ICC Statute)) are the inclusion in the former only of three elements: (a) the intent to destroy a group in whole or in part; (b) a limited set of groups against whose members the relevant acts are criminal, i.e., racial, religious, national, or ethnic; and (c) a limited list of grave underlying acts focusing on physical extermination.1 Why should we care if international law recognizes two different crimes? Domestic law frequently criminalizes different acts as different crimes—if the difference between libel and battery makes perfect sense to us, or that between homicide and manslaughter, why not just see this as part of same issue? The short answer is that reality will not let us—that governments, NGOs, and the public see genocide and crimes against humanity not simply as distinct crimes, but that the former is worse than the latter—and, moreover, that a determination that a state or group has committed the former should trigger more serious consequences against the violator than should the latter. Inversely, governments, both those committing atrocities and those responding to them, refuse to use the term genocide because they fear that their publics will demand some kind of action to stop it. These divergent outcomes represent a challenge for international human rights insofar as the protection of human rights demands responses to both and prosecution of both