A Normative Account
by Larry May
Cambridge University Press, 2005 310 pp
LARRY MAY has written a book on crimes against humanity that provides careful analysis of the core issues for anyone interested in this subject. The book is divided into four parts. In the first two, May explores the philosophical underpinnings of the concept of crimes against humanity and examines some of the most relevant norms of international law. The third and fourth parts are then concerned with issues of application. Although there is much of interest in these later sections of the book, this review focuses on the argument of its first two parts—on the philosophical case the author lays out and the normative principles central to it.
Widely used though the expression now is, “crimes against humanity” is a term of art. The idea that it has come to stand for emerged within international law only during the twentieth century, its meaning is not transparent, and it has no “natural” boundaries. From the beginning the concept has had to find (or, rather, be supplied with) a content that could be coherently justified and defended.
To illustrate the point we may go back to the Nuremberg Trials. They mark the official entry of the offense of crimes against humanity into the instruments of international law, albeit after a long prehistory within the traditions of moral, political, and legal thought. One of the crucial norms taken to have been established at Nuremberg was that there are constraints upon what governments may permissibly do to people under their jurisdiction. As this thought was articulated by Sir Hartley Shawcross, the chief prosecutor for the United Kingdom at Nuremberg:
[I]nternational law has in the past made some claim that there is a limit to the omnipotence of the state and that the individual human being, the ultimate unit of all law, is not disentitled to the protection of mankind when the state tramples upon his rights in a manner which outrages the conscience of mankind… [T]he right of humanitarian intervention by war is not a novelty in international law—can intervention by judicial process then be illegal?
Yet, this principle was initially qualified (and many would say compromised) by the link that the Nuremberg Charter set up between the new offense and the context of war. The illogic in so circumscribing crimes against humanity was already clear to critics at the time. Atrocities against individuals or groups may be more likely in wartime, but they are also perfectly possible outside it. Apart from an exaggerated respect for the principle of state sovereignty, there is no compelling reason why the more...
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