On 26 July 1946 a forty-seven-year-old Cambridge professor of international law named Hersch Lauterpacht walked into a small office at the Whewell House on Trumpington Street, sat down at a large oak desk that had been placed against the window, and began drafting the British prosecution’s closing argument at the International Military Tribunal at Nuremberg. He had been working on the draft, in collaboration with the British Attorney General Sir Hartley Shawcross who had requested his assistance, for the previous fortnight. The closing was due to be delivered the next day. The draft Lauterpacht produced over the following twenty-four hours, working into the early hours of 27 July, ran to approximately fifty thousand words. Shawcross delivered substantially the entire draft over the next two court days, 27 and 28 July 1946. The closing has been described, by every subsequent authoritative commentator, as the finest single piece of advocacy delivered at the International Military Tribunal. The substance of the closing was the substance of crimes against humanity as a category of international law. The category had not existed in operational form before its inclusion in Article 6(c) of the London Charter of August 1945. The category had been the subject of sustained legal and political controversy throughout the Nuremberg proceedings. The category was, by the time of Shawcross’s closing, on its way to becoming the foundational legal framework of the postwar international human rights system. The man at the Whewell House desk on the evening of 26 July 1946 was, by any reasonable measure, the principal single architect of that framework. He worked unremarked through the night. The closing he produced went into the trial record. The category he had constructed went into international law.
Lauterpacht’s work on crimes against humanity, considered alongside Raphael Lemkin’s parallel work on genocide, constitutes the doctrinal foundation of modern international criminal law. The two doctrines complement each other. Lemkin’s framework focuses on the destruction of groups; Lauterpacht’s framework focuses on the violation of the rights of individuals. The two frameworks emerged from the same generation of jurists trained at the same prewar Polish-Jewish law faculties (Lemkin had been at Lwów, Lauterpacht at Lwów and Vienna). The two men had met as students. They had, in their later careers, developed in parallel two different but compatible approaches to the same underlying problem: how international law should respond to the systematic killing of populations by states. The current substantive content of international criminal law owes substantially equal debts to both men. The current operational practice of international tribunals draws principally on Lauterpacht’s framework, because crimes against humanity has proved, in practice, to be the more flexible and more frequently applicable category.
The man
Lauterpacht had been born in 1897 at Zolkiew, a small town in eastern Galicia, then in the Austro-Hungarian Empire, now part of Ukraine. His parents were Polish-Jewish merchants. He had grown up in Lwów (Lemberg in German, Lviv in Ukrainian) and had attended the law faculty there from 1916 to 1920. He had moved to Vienna in 1921 to study under Hans Kelsen, the founder of the modern positivist school of international law. He had emigrated to the United Kingdom in 1923 on a scholarship to the London School of Economics. He had spent his subsequent career at the LSE (1928 to 1937) and at Cambridge (1937 to 1955), holding the Whewell Professorship of International Law from 1937. He had become a British subject by naturalisation in 1931. He had been knighted in 1956 and had served on the International Court of Justice from 1955 until his death in 1960.
His personal foundation for his postwar work, like Lemkin’s, was the destruction of his family in the killing of European Jewry. His parents, his sisters, and most of his extended family had been killed at the Janowska camp outside Lwów in 1942 to 1943. He received the news in instalments over the period 1944 to 1947. His son Eli Lauterpacht has documented the family’s history in the 2010 biography The Life of Hersch Lauterpacht, which gives the most thorough single account available of the personal context of the postwar legal work.
The Charter
The London Charter of 8 August 1945, which established the legal framework of the International Military Tribunal at Nuremberg, contained three substantive criminal provisions. Article 6(a) defined crimes against peace (the planning and waging of aggressive war). Article 6(b) defined war crimes (violations of the laws and customs of war). Article 6(c) defined crimes against humanity:
Murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
The provision had been principally drafted by Lauterpacht, working in correspondence with the British negotiating team in London in early August 1945. Lauterpacht had been advising the British Attorney General Sir David Maxwell Fyfe (subsequently Lord Kilmuir) and the wider British team on the legal foundations of the Charter from the spring of 1945 onwards. The substantive innovation in Article 6(c) was the recognition that a state could be held criminally responsible, in international law, for acts committed against its own citizens within its own territory. Before 1945, international law had operated on the principle of state sovereignty: what a state did to its own citizens within its own borders was, in the technical legal sense, an internal matter of that state. The Charter’s Article 6(c) broke that principle. It established that certain acts, committed against any civilian population, were crimes under international law regardless of where they had been committed and regardless of whether the state on whose territory they had been committed had wished to permit them.
The principle established in Article 6(c) was the foundation of the postwar international human rights system. The Universal Declaration of Human Rights of 10 December 1948, the European Convention on Human Rights of 4 November 1950, the International Covenant on Civil and Political Rights of 16 December 1966, and the entire subsequent network of international human rights instruments, all rest on the principle that the relationship between a state and its citizens is, in certain respects, a matter of international rather than purely domestic legal regulation. The principle’s operational source was Article 6(c). Article 6(c)’s substantive author was Lauterpacht.
The Nuremberg application
The application of Article 6(c) at the International Military Tribunal had been substantively limited by the Charter’s own terms. The Charter had provided that crimes against humanity were within the Tribunal’s jurisdiction only “in execution of or in connection with any crime within the jurisdiction of the Tribunal”, which had been read by the bench as requiring a connection to the war itself or to crimes against peace. The result had been that the German treatment of German Jews in the period 1933 to 1939, before the war began, had been only marginally addressed at the Nuremberg proceedings. The persecution of Jewish citizens of Germany under the Nuremberg racial laws of 1935, the dispossessions of 1937 to 1939, the Kristallnacht pogrom of November 1938, had all fallen substantially outside the IMT’s working jurisdiction.
The limitation had been a political compromise of the Charter’s drafting. The Allied governments had been concerned that an unrestricted version of crimes against humanity might be applied, in subsequent proceedings, to their own treatment of their own citizens. The British government had been concerned about its policies in India and the Mandate territories. The American government had been concerned about its segregationist domestic legislation. The French government had been concerned about its colonial administration. The Soviet government had been concerned about its internal political repression. The compromise had limited the IMT’s application of the category to acts connected to the war.
The limitation has been progressively dropped in subsequent international criminal law. The 1948 Genocide Convention (see the separate page) had not required any war-nexus. The Statute of the International Criminal Tribunal for the former Yugoslavia (1993) had required a war-nexus only in respect of war crimes proper. The Statute of the International Criminal Tribunal for Rwanda (1994) had not required a war-nexus. The Rome Statute of the International Criminal Court (1998), in Article 7, defines crimes against humanity without any war-nexus requirement. The current operational definition of crimes against humanity, as it appears in Article 7 of the Rome Statute, is substantially the definition that Lauterpacht had originally proposed in 1945 before the Charter’s compromise had been negotiated.
The Shawcross closing
Lauterpacht’s most consequential single piece of operational work on the category was the British prosecution’s closing argument at the IMT, delivered by Sir Hartley Shawcross on 27 and 28 July 1946. The closing ran to approximately fifty thousand words and took two full court days to deliver. The closing’s substantive section on crimes against humanity, drafted by Lauterpacht over the previous fortnight, set out the legal foundations of the category in terms that have been quoted in every subsequent serious treatment of the doctrine.
The closing’s most quoted single passage came in the section on individual rights:
The state of mankind, the rights of man, the safety of the world, can be secured only if law and reason replace force and fanaticism in the relations between states. The individual human being, whose protection is the ultimate purpose of all law, must be at the centre of the international legal order, not because the rights of the state have ceased to matter, but because the rights of the state can be defended only if the rights of the individual human beings of which the state is composed are themselves defended.
The passage is the working statement of Lauterpacht’s central thesis. The international legal order, in his framework, is fundamentally about the protection of the individual human being. The state is the operational vehicle through which the protection is principally achieved, but the state is not the end of the analysis; it is the means. When the state itself becomes the threat to the individual human being, international law must intervene. The intervention is the substantive content of crimes against humanity.
The development since Nuremberg
The category has developed substantially since the IMT proceedings. The principal lines of development have been four.
The removal of the war-nexus requirement. The 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity established that crimes against humanity could be prosecuted without temporal limitation. The 1993 ICTY Statute and the 1994 ICTR Statute progressively dropped the war-nexus requirement. The 1998 Rome Statute completed the process. Crimes against humanity is now, in the operational practice of international tribunals, a peacetime offence as much as a wartime offence.
The expansion of the protected categories. The Charter’s original definition had limited persecution to political, racial, and religious grounds. The Rome Statute’s definition extends to persecution on national, ethnic, cultural, religious, gender, or other grounds universally recognised as impermissible under international law. The expansion captures the wider range of identity-based persecutions that the practice of mass atrocity has produced.
The articulation of the contextual element. The Rome Statute and the subsequent jurisprudence of the international tribunals have established that crimes against humanity require a contextual element: the acts must be committed as part of a widespread or systematic attack directed against any civilian population. The contextual element distinguishes crimes against humanity from ordinary crimes. A single murder, however horrible, is not a crime against humanity; a murder committed as part of a widespread or systematic attack against a civilian population is.
The articulation of the policy element. The Rome Statute requires that the widespread or systematic attack be undertaken pursuant to or in furtherance of a state or organisational policy. The policy element distinguishes crimes against humanity from large aggregations of independent crimes. The policy may be a state policy or an organisational policy of a non-state actor (which has been particularly important in the prosecutions of crimes committed by armed groups in conflict zones).
The major operational uses
Crimes against humanity has been the most frequently applied category of international criminal law since 1945. The IMT’s twelve major defendants convicted on Counts Three and Four (war crimes and crimes against humanity); the Subsequent Nuremberg Proceedings’ 142 convictions, most of which included crimes against humanity counts; the Eichmann trial’s conviction (1961); the Cambodian tribunal’s convictions (Duch, 2010; Nuon Chea and Khieu Samphan, 2014 and 2018); the ICTY’s approximately 90 convictions; the ICTR’s approximately 60 convictions; the Special Court for Sierra Leone’s 9 convictions; the Cambodian-Vietnamese cases; the international and national prosecutions of senior Yugoslav, Rwandan, Sierra Leonean, Liberian, Congolese, Sudanese, Syrian, and Myanmar figures; and the substantial body of national prosecutions in Western European states under universal jurisdiction frameworks; have all relied principally on the crimes against humanity framework.
The category has been applied operationally to a wider range of situations than the genocide framework. Genocide requires the proof of specific intent to destroy a group as such, which is a substantial evidentiary threshold. Crimes against humanity requires only the proof of acts committed as part of a widespread or systematic attack against a civilian population, which is generally a lower evidentiary threshold. The aggregate convictions under the crimes against humanity framework therefore substantially exceed the aggregate convictions under the genocide framework.
The Lauterpacht-Lemkin complementarity
The relationship between the two doctrines has been the subject of sustained academic debate. The principal question has been whether the doctrines are complementary or competing. The historical record indicates that they were originally developed as complementary frameworks: Lemkin’s focus on the destruction of groups and Lauterpacht’s focus on the violation of individual rights addressed different but related dimensions of the same underlying problem.
The operational practice of international tribunals has confirmed the complementarity. The Eichmann judgment, the Cambodian tribunal’s judgments, the ICTY judgments on Srebrenica, and the Rwandan tribunal’s judgments all apply both frameworks in parallel. The defendant is typically charged with both genocide and crimes against humanity. The conviction under both frameworks reflects the dual character of the relevant acts: they are both an attack on the targeted group as such (genocide) and an attack on the individual rights of the members of the targeted group (crimes against humanity).
The personal relationship between Lauterpacht and Lemkin was, on the documentary record, less close than the parallel of their work might have suggested. The two men had met as students at Lwów in the early 1920s. They had not maintained close contact in their subsequent careers. Lemkin had been substantially based in the United States from 1941 onwards; Lauterpacht had been substantially based at Cambridge. They had corresponded occasionally on academic matters but had not been operational collaborators. Lauterpacht had been more academically successful; Lemkin had been more publicly consequential. The two careers had run on parallel tracks without substantial intersection.
The current law
The current operational definition of crimes against humanity is in Article 7 of the Rome Statute of the International Criminal Court. The article defines the crime as any of eleven enumerated acts (murder, extermination, enslavement, deportation, imprisonment, torture, sexual violence, persecution, enforced disappearance, apartheid, and other inhumane acts) when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. The definition has been adopted, in substantially identical terms, in the statutes of the various ad hoc and hybrid tribunals established since 1998.
The International Law Commission has been working since 2014 on a draft Convention on Crimes Against Humanity that would, if adopted, give the category the same convention-based treaty foundation that genocide has had since 1948. The draft Convention has been substantially completed and is currently before the General Assembly’s Sixth Committee. The expected timeline for adoption is the late 2020s. The adoption of the Convention would complete the legal framework that Lauterpacht had begun to construct in 1945.
What Lauterpacht produced
The crimes against humanity framework is, by some measures, the most consequential single category of postwar international law. It established that the relationship between a state and its citizens is not, in all respects, a purely internal matter of the state. It established that certain acts committed by a state against its own citizens are crimes under international law regardless of the domestic legal authorisation of the acts. It established the foundation on which the postwar international human rights system has been built.
The framework’s substantive author was Hersch Lauterpacht. The author worked, throughout his career, as an academic lawyer rather than as a public figure. He did not seek the popular recognition that would have been available to him for the work. He did not write a popular book. He did not give popular interviews. He held the Whewell Chair at Cambridge for eighteen years. He served on the International Court of Justice for five. He died in May 1960 at the age of sixty-two from a sudden heart attack while walking to a meeting at the British Foreign Office. He left behind a substantial academic record. The substantive content of his work, embedded in the operational practice of the postwar international legal order, was the larger record. He had not made it widely known. The work was the legacy. The legacy was substantial.
See also
- Raphael Lemkin Who Coined the Word Genocide
- The Nuremberg Trials
- Sir Hartley Shawcross
- Adolf Eichmann
- Sir David Maxwell Fyfe
- Raphael Lemkin
Sources
- Hersch Lauterpacht, An International Bill of the Rights of Man, Columbia University Press, 1945
- Hersch Lauterpacht, International Law and Human Rights, Stevens and Sons, 1950
- Elihu Lauterpacht, The Life of Hersch Lauterpacht, Cambridge University Press, 2010
- Philippe Sands, East West Street: On the Origins of Genocide and Crimes Against Humanity, Weidenfeld and Nicolson, 2016
- M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law, Kluwer, 2nd edn, 1999
- Charter of the International Military Tribunal, 8 August 1945, Article 6(c)
- Rome Statute of the International Criminal Court, 17 July 1998, Article 7
- International Military Tribunal, Trial of the Major War Criminals, vol XIX (Shawcross closing), Nuremberg, 1947