What are the differences between the legal terms “crimes against humanity” and “genocide”? And are both equally useful in punishing mass crimes and facilitating closure?
RFE/RL correspondent Robert Coalson spoke with British lawyer Philippe Sands about his forthcoming book, which explores this issue. Sands is a professor of international law at University College London who frequently works on cases before international tribunals.
He is the author of “Lawless World,” which argues that the 2003 invasion of Iraq occurred in violation of international law. He is currently representing Macedonia in a case against Greece in the International Court of Justice regarding the use of the name “Macedonia.”
RFE/RL: Tell us in a nutshell, if you can, what are the legal concepts of crimes against humanity and genocide?
Phillipe Sands: Crimes against humanity and genocide are two distinct concepts. They became part of international law in the mid-1940s, after the end of World War II, and really around the time of the Nuremburg trials. They were new concepts -- they are relatively recent in that sense. And what I have been doing in a new book that I am working on is tracing their origins.
The basic difference between crimes against humanity and genocide is as follows: Crimes against humanity focuses on the killing of large numbers of individuals. The systematic, mass killing of a very large number of individuals will constitute a crime against humanity. Genocide has a different focus. Genocide focuses not on the killing of individuals, but on the destruction of groups. In other words, a large number of individuals who form part of a single group. And the two concepts in this way have different objectives. One aims at protecting the individual; the other aims at protecting the group.
RFE/RL: Your research traces both concepts back to the Ukrainian city of Lviv, is that right?
Sands: The two issues really hit the headlines in international-law terms in 1945 and 1946, around the time the Allies were preparing the Nuremburg trials and they were deciding what they would charge leading Nazi defendants with at those trials. And there was a big debate about whether to deal with the issue of crimes against humanity or genocide. And in fact, they went with crimes against humanity.
What I'm doing right now in my book is tracing the origins of these two concepts and I have taken them back to two men who were responsible and both studied in the same town. It was called Lemberg and Lwow, and is now called Lviv.
Today it is in Ukraine, on the western outskirts of Ukraine near the Polish border. It is a remarkable city -- it has a remarkable university that is older than Harvard University. It was very famous for mathematics. It was also very famous for law and at that law school between 1915 and 1925, two men studied. Hersch Lauterpacht, who became after that a professor of international law at Cambridge University -- he was really the man responsible for putting crimes against humanity into the Nuremberg Charter. And then a couple of years after him, another man came along, Raphael Lemkin -- he's in fact much more famous. And he is the man who invented in 1943 the word "genocide," meaning the killing of groups. And what struck me as remarkable was that both men studied at the same law school.
RFE/RL: Would it be fair to say that you have criticisms or at least concerns about the legal concept of genocide?
Sands: It's not that I've got concerns or criticisms about one or the other. Frankly, I'm trying to work out in my own mind which of the two ideas I'm most attracted to. I can see both arguments. Basically, Lemkin's view, promoting the idea of genocide, is that people are not killed as individuals. They are killed or harmed because they are members of a group -- a national group or an ethnic group or a religious group. And he says that's the reality and the law has to reflect that reality. No, says Lauterpacht. People are individual human beings and they should be protected as individual human beings, not because they happen to be a member of a group. And the danger for Lauterpacht was that Lemkin's idea of protecting groups would create the very conditions that Lemkin was trying to protect us all from -- namely, it would pit one group against another group. It would set in concrete terms the idea that groups have an identity in law and they should be protected as groups.
So, it is a sort of a major intellectual battle between the two. They don't disagree on what the objective is -- they want to avoid mass killing. What they disagree with is what's the best way to deal with that. And one, in a sense, is more realist -- Lemkin -- and the other is more utopian. And I'm just trying to work out which of the two that I agree with. Of course, what's happened in the meantime, since these ideas came up in 1945, 1946 -- if you fast-forward to the summer of 1998 and imagine yourself in Rome in July 1998 when the governments of the world came together and drafted the document that was the statute of the International Criminal Court (ICC), what they did in that document was they put both genocide and crimes against humanity in. So what has happened subsequently is that both ideas have been given resonance.
RFE/RL: It seems to me that one difference between crimes against humanity and genocide is that the charge of crimes against humanity seems to attach just to the individual who is charged, while a genocide charge attaches not only to that person but to his or her ethnic group as well.
Sands: I think that is exactly right. I think that what the concept of genocide does -- and I can absolutely see why Lemkin came up with it -- but what it does is it requires the person claiming that a genocide has taken place to show that the person who did the act intended to destroy a group. Since the person proving this is often from the group that is the victim group, what it tends to do, I think, is create the sort of condition in which you associate with the alleged perpetrator a sort of bad intent toward another group and it tends to pit the victim group against the perpetrator group.
I think the danger is it tends to reinforce the very conditions that it seeks to prevent. It reinforces the sense that one group is against another group. And that was what Lauterpach was concerned about. He was very concerned that it would do exactly that and I think that is a critique of the concept of genocide. On the other hand, Lemkin is right: People are not killed because they are only individuals.
RFE/RL: In your opinion, is there something that needs to be done? Would it be better to strike off genocide as a legal concept and leave it to historians and sociologists?
Sands: I think that is a huge question, and I'm definitely struggling with it. I'm trying to work out how the law can best assist in these difficult situations. I'm not starry-eyed about the law. I don't somehow think that magically you can come with some sort of a law one way or the other that will stop terrible things from happening. But what the law can do is it can help describe the narrative of what has happened in the past and hopefully -- but the jury's out on this -- also prevent future things from happening.
These are really complex questions that go to the issue of identity. Going into the research for all this, I came across all of the material from the mid-1940s that showed, for example, that in the United States there was very strong opposition to the concept of genocide particularly among southern senators. They didn't like Lemkin's idea because they were worried it was going to be used to deal with issues of discrimination in the southern states in the United States, and in particular that between whites and blacks it would cause further tensions, further difficulties, and that the negroes -- as they were then called -- would use the concept of genocide to attack discriminatory laws in the United States.
I think there is probably not a society in the world that can escape the consequences of these kinds of debates. It just touches all of us and goes to the heart of the human condition, really.
RFE/RL: You are working all this out in a book now. Can you tell us a little about that?
Sands: The book will be published next year. It is going to be published by Knopf in America and hopefully will come out elsewhere. It is a very personal book for me because it focuses on the city of Lemberg/Lwow/Lviv, the remarkable city that all of your listeners really ought to try to visit. But I got into this book by accident because my grandfather had been born in that city at exactly the same time that Lemkin and Lauterpach lived in the city and I was curious about how it was that I had become involved in cases about crimes against humanity and genocide.
I was astonished to discover that my own roots were connected to that same city -- so I wondered what it was that was in the water or in the air of Lemberg/Lwow/Lviv, that had caused different people with different backgrounds to get involved in these same issues. The book will come out next year and I'll be happy to talk in more detail if I've reached a conclusion as to which side of the debate I come out on.