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Crime Against Humanity: A Defence of the “Subsidiarity” View

Published online by Cambridge University Press:  20 July 2015

Richard Vernon
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Extract

“Subsidiarity” views of crime against humanity propose that state crime is at the core of the idea, thus necessitating a further level of authority. That proposal can be given a strong moral justification in terms of the enormous risks that arise from a state’s authority and territorial control. Discussions of crime against humanity by Larry May and Norman Geras, however, offer different views of the idea, May proposing that it be seen as group-based crime (in one or both of two senses), Geras proposing that it be seen as a serious violation of human rights. Those views are questioned on the basis of their fit with either the nature of the crimes involved or the moral basis of their condemnation, and the subsidiarity view is restated.

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Discussion
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Canadian Journal of Law & Jurisprudence , Volume 26 , Issue 1 , January 2013 , pp. 229 - 241
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2013 

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References

Thanks to Massimo Renzo for comments on an earlier draft, and to Valerie Oosterveld for advice on an important point.

1. Vernon, Richard, “What is Crime Against Humanity?” (2002) 10 J Pol Phil 231 CrossRefGoogle Scholar and Luban, David, “A Theory of Crimes Against Humanity” (2004) 29 Yale J Inťl Law 85 Google Scholar. Neither article, it should be noted, employs the term “subsidiarity” that is adopted here as a label.

2. May, Larry, Crimes Against Humanity: A Normative Account (Cambridge: Cambridge University Press, 2005)Google Scholar and Geras, Norman, Crimes Against Humanity: Birth of a Concept (Manchester, UK: Manchester University Press, 2011).CrossRefGoogle Scholar

3. Meron, Theodore, “War Crimes in Yugoslavia and the Development of International Law” (1994) 88 Am J Inťl Law 78 CrossRefGoogle Scholar at 85.

4. Geras, supra note 2 at viii, 90, 132.

5. A valuable survey is Føllesdal, Andreas, “Survey Article: Subsidiarity” (1998) 6 J Pol Phil 190 CrossRefGoogle Scholar. See also Gosepath, Stefan, “The Principle of Subsidiarity” in Føllesdal, Andreas &Pogge, Thomas, eds, Real World Justice: Grounds, Principles, Human Rights, and Social Institutions (Dordrecht: Springer, 2005) 157.CrossRefGoogle Scholar

6. http://cprr.org/Museum/Ephemera/Republican_Platform_1860.html. I am indebted to Charles Clark of Pasadena for this reference.

7. Discussed in Geras, supra note 2 at 4.

8. Schlink, Bernhard, Guilt About the Past (Toronto, ON: Anansi, 2009) at 28.Google Scholar

9. Disapprobation of the crime itself is always powerful even if, as argues, Mark Drumbl (Atrocity, Punishment, and International Law (New York: Cambridge University Press, 2007) at 29–35 Google Scholar), some of those who commit it may be less personally culpable than some perpetrators of domestic crimes. Thanks to Massimo Renzo for pointing out the need for this distinction.

10. This theme is explored in Vernon, Richard, Cosmopolitan Regard: Political Membership and Global Justice (Cambridge: Cambridge University Press, 2010).CrossRefGoogle Scholar

11. I except the power to prevent people from leaving, which is only de facto. But of course, the effective power to leave depends on other states’ permission to enter, and that is de jure, as the law stands. The well known and horrific story of the MS St Louis surely brings home the importance of this point.

12. Vernon, supra note 1 at 249.

13. Luban, supra note 1 at 116.

14. Massimo Renzo, while rejecting the restrictiveness of the view offered here, accepts that it is “largely convincing as an account of the legal notion of crimes against humanity as it has developed since Nuremberg”; “Crimes Against Humanity and the Limits of International Criminal Law” (2012) 31 Law & Phil 443 at 446. For a further comment on his article, see infra note 30.

15. The former term is adopted by Vernon, “What is Crime Against Humanity?” and the latter by Luban, “A Theory”, supra note 1.

16. Locke, John, Second Treatise of Government in Laslett, Peter, ed, Two Treatises of Government (Cambridge: Cambridge University Press, 1960) at 350–51Google Scholar (ss 124-26).

17. Ibid at 332-33 (ss 98-99).

18. Ibid at 272 (s 8).

19. Géras, supra note 2 at 95.

20. May, supra note 2 chs 4 and 5.

21. Fisher, Kirsten, Moral Accountability and International Criminal Law: Holding Agents of Atrocity Accountable to the World (Abingdon, UK: Routledge, 2012) at 15–16 Google Scholar.

22. Geras, supra note 2 at 131-49.

23. Todorov, Tzvetan, Voices from the Gulag: Life and Death in Communist Bulgaria, translated by Zaretsky, Robert (University Park: Pennsylvania State University Press, 1999) at 133–64Google Scholar.

24. May, supra note 2 at 85.

25. Ibidat 90.

26. See, for example, Todorov, supra note 23 at 17: “the purpose of the camps was ... to terrorize the population by their indiscriminate use.”

27. Géras, supra note 2 at 39.

28. Ibid at 46.

29. Ibid at 53-54.

30. Géras, supra note 2 at 76-77. In this regard, crime against humanity is “against humanity” in the sense that it amounts to a violent practical denial of some status that humans have, a status that appropriately forms the basis of a right. Since the publication of Geras’s book, Massimo Renzo has ably defended the “status” view: see supra note 14. Renzo argues that some crimes “are so serious as to deny the status of human beings to their victims” (467). Renzo accepts, however that there could be reasons not to adopt the label of “crime against humanity” for all crimes that are “against humanity” in the sense that he advocates (464). This article tries to articulate and reinforce those reasons.

31. Ibid at 95.

32. Géras, supra note 2 at 81-85.

33. Ibid at 97.

34. Ibid at 85.

35. Here I note again the imperfect but in my view sufficient analogy between crimes against a state’s own population and crimes against the invaded or colonized. I think it is clear that none of the theories examined here is as adequate in its penumbra as it is at its core.

36. Geras, supra note 2 at 92.