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The ‘Crime of Crimes’? Dirk Moses and the Problems of Genocide The Problems of Genocide: Permanent Security and the Language of Transgression , by Dirk Moses, Cambridge, Cambridge University Press, 2021, 598 pp., £26.99, ISBN: 9781107103580
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This book is the first of a four-volume compendium, which is a detailed and authoritative account of the law of international crimes. The volume provides a unique blend of academic rigour and an insight into the practice of international criminal law. The compendium is un-rivalled in its breadth and depth, covering almost a century of legal practice, dozens of jurisdictions (national and international), thousands of decisions and judgments and hundreds of cases. It discusses in detail the law of all four core international crimes (genocide, crimes against humanity, war crimes, aggression), their definitions, elements, normative status, and relationship to one another. It provides an exceptional and un-surpassed review of the relevant jurisprudence and material, making it a must-have for any practitioner or scholar in the field.
The 1948 Genocide Convention has become a vital legal tool in the international campaign against impunity. Its provisions, including its enigmatic definition of the crime and its pledge both to punish and prevent the 'crime of crimes', have now been interpreted in important judgments by the International Court of Justice, the ad hoc Tribunals for the former Yugoslavia and Rwanda and various domestic courts. The second edition of this definitive work focuses on the judicial interpretation of the Convention, relying on debates in the International Law Commission, political statements in bodies like the General Assembly of the United Nations and the growing body of case law. Attention is given to the concept of protected groups, to problems of criminal prosecution and to issues of international judicial cooperation, such as extradition. The duty to prevent genocide and its relationship with the emerging doctrine of the 'responsibility to protect' are also explored.
The 1949 Geneva Conventions are the most important rules for armed conflict ever formulated. They continue to shape contemporary debates about regulating warfare. But their history is often misunderstood. For many observers, the drafters behind these treaties were primarily motivated by liberal humanitarian principles and the shock of the atrocities of the Second World War. This book tells a different story. It shows how the final text of the Conventions, far from being an unabashedly liberal blueprint, was the outcome of a series of political struggles among the drafters. It also concerned a great deal more than simply recognizing the shortcomings of international law as revealed by the experience of war. This book, based upon meticulous archival research and critical legal methodologies, argues that a better way to understand the politics and ideas of the Conventions’ drafters is to see them less as passive characters responding to past events than as active protagonists trying to shape the future of warfare. In many different ways, they tried to define the contours of future battlefields by deciding who deserved protection and what counted as a legitimate target. Outlawing illegal conduct in wartime did as much to outline the silhouette of humanized war as to establish the legality of waging war itself. Although they did not seek war as such, drafters prepared for it by means of weaving a new legal safety net in the event that their worst fear should materialize—a specter still haunting us today.
Genocide is not only a problem of mass death, but also of how, as a relatively new idea and law, it organizes and distorts thinking about civilian destruction. Taking the normative perspective of civilian immunity from military attack, A. Dirk Moses argues that the implicit hierarchy of international criminal law, atop which sits genocide as the 'crime of crimes', blinds us to other types of humanly caused civilian death, like bombing cities, and the 'collateral damage' of missile and drone strikes. Talk of genocide, then, can function ideologically to detract from systematic violence against civilians perpetrated by governments of all types. The Problems of Genocide contends that this violence is the consequence of 'permanent security' imperatives: the striving of states, and armed groups seeking to found states, to make themselves invulnerable to threats.
The international crime of "crimes against humanity" has become integral to contemporary political and legal discourse. However, the conceptual core of the term—an act against all of mankind—has a longer and deeper history in international political thought. In an original excavation of this history, The Humanity of Universal Crime examines theoretical mobilizations of the idea of universal crime in colonial and post-colonial contexts. Sinja Graf demonstrates the overlooked centrality of humanity and criminality to political liberalism's historical engagement with world politics, thereby breaking with the exhaustively studied status of individual rights in liberal thought. Graf argues that invocations of universal crime project humanity as a normatively integrated, yet minimally inclusive and hierarchically structured subject. Such visions of humanity have in turn underwritten justifications of foreign rule and outsider intervention based on claims to an injury universally suffered by all mankind.
Foregrounding the "political productivity" of universal crime, the book traces the intellectual history of the rise, fall, and reappearance of notions of universal crime in political theory over time. It looks particularly at the way European theorists have deployed the concept in assessing the legitimacy of colonial rule and foreign intervention in non-European societies. The book argues that an "inclusionary Eurocentrism" subtends the authorizing and coercive dimensions of universal crime. Unlike much-studied "exclusionary Eurocentrist" thinking, "inclusionary Eurocentrist" arguments have historically extended an unequal, repressive "recognition via liability" to non-European peoples. Overall the book offers a novel view of how claims to act in the name of humanity are deeply steeped in practices that reproduce structures of inequality at a global level, particularly across political empires.
This article argues that the narratives told about the Great War helped to establish the bombardment of civilians during World War II as an ethical, military and legal possibility. It shows that the literary representation of the Great War was antagonistic towards civilians, suggesting that a fairer war would affect the entire nation. Military strategists accepted this premise and planned for a future war that would be directed against civilian populations. International lawyers also adopted this narrative and, constrained by it and their disciplinary conventions, found it hard to posit any strong legal or ethical objections to aerial bombardment.
Post-Cold War history has witnessed a transformation in the relationship of law to violence in global politics. The normative foundations of the international legal order have been shifting their emphasis from state security to human security: the security of persons and peoples. Increasingly, courts, tribunals, other international bodies, and political actors draw from this new framework to assess the rights and wrongs of conflict; determine whether and how to intervene; and impose accountability and responsibility on state and non-state actors. The result of this shift is the law of humanity - a framework that spans the law of war, international human-rights law, and international criminal justice. The author explores the humanity-law phenomenon by looking to its historical roots, its contemporary tendencies, and its effect on the discourse of international relations. Humanity law's framework is most evident in the jurisprudence of the tribunals - international, regional and domestic - adjudicating disputes often spanning issues of internal and international conflict and security. Yet because most international legal scholarship focuses on individual regimes or tribunals, it is easy to miss the evolution of a jurisprudence connecting the rulings of diverse tribunals and institutions. This jurisprudence tends to expand rights and responsibilities to encompass wider circles of conduct; sweep in additional actors within conflicts; increase the legal responsibilities of states, even for the behavior of non-state actors; and exhibit less deference to the traditional sovereign prerogatives of states, where doing so would interfere with the overriding goal of protecting persons and peoples.
This article questions the conventional histories of international humanitarian law, which view international humanitarian
law as the heir to a long continuum of codes of warfare. It demonstrates instead that the term international humanitarian
law first appeared in the 1970s, as the product of work done by various actors pursuing different ends. The new idea of an
international humanitarian law was codified in the 1977 Additional Protocols to the Geneva Conventions. Nevertheless, many
of the provisions of the Protocols remained vague and contested, and their status, together with the humanitarian vision of
the law they outlined, was uncertain for some time. It was only at the end of the 20th century that international lawyers,
following the lead of human rights organizations, declared Additional Protocol I to be authoritative and the law of war to
be truly humanitarian. As such, this article concludes that international humanitarian law is not simply an ahistorical code,
managed by states and promoted by the International Committee of the Red Cross. Rather, it is a relatively new and historically
contingent field that has been created, shaped and dramatically reinterpreted by a variety of actors, both traditional and
unconventional.
This article considers a theory of crimes against humanity – that is, it attempts to explain the crime's core purpose. The idea offered is that a 'crime against humanity' is a course of conduct which the international community accepts is not only 'criminal', but also threatens world peace. This enlivens the right of international tribunals, such as those created by the Security Council acting under Chapter VII of the UN Charter or the ICC, to try persons irrespective of whether the defendant is a head of state or other state official, any local law or opposition from any state. To keep faith with this core rationale and to permit the crime to keep its special place, a crime against humanity should be limited to flash points of extreme violence which can be linked, either directly or by indirect encouragement, to a state or de facto power.
The answer I offer in this Article is that crimes against humanity assault one particular aspect of human being, namely our character as political animals. We are creatures whose nature compels us to live socially, but who cannot do so without artificial political organization that inevitably poses threats to our well-being, and, at the limit, to our very survival. Crimes against humanity represent the worst of those threats; they are the limiting case of politics gone cancerous. Precisely because we cannot live without politics, we exist under the permanent threat that politics will turn cancerous and the indispensable institutions of organized political life will destroy us. That is why all humankind shares an interest in repressing these crimes. The theory that I aim to defend here consists of two propositions: (i) that "humanity" in the label "crimes against humanity" refers to our nature as political animals, and (ii) that these crimes pose a universal threat that all humankind shares an interest in repressing.
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