The “Origins of the Terms Genocide” and “Crimes Against Humanity”

By Keira Cumming

The term ‘genocide’, although coined 1944, was only codified in 1948 under the Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG). ‘Crimes against humanity’, similarly, was created by George Washington Williams in 1890 and has never had a comprehensive convention. Both were an effect of the Nuremberg trials, of which the initial ones were held between November 20th, 1945, and October 1st, 1946, and the trials ultimately led to the formation of the Nuremberg Principles which defined war crimes. But why did it take so long for the terms to be officially recognised? 

Before 1944, various terms including ‘crimes against humanity’, were used in place of the term ‘genocide’ which was created by Raphael Lemkin in his book Axis Rule in Occupied Europe, specifically created as a means of describing the horrific war crimes committed by the Nazis. Lemkin became interested in the concept of genocide after the large-scale murders of Armenians in 1915, and then the mass killings under Nazi-controlled Europe. It was noted in the preamble to the CPPCG that instances of genocide have taken place throughout history, but it was not until the term was coined by Lemkin and the trials at Nuremberg that the crime was defined by the United Nations in international law:

Genocide is a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings; such denial of the right of existence shocks the conscience of mankind, results in great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and the spirit and aims of the United Nations. Many instances of such crimes of genocide have occurred when racial, religious, political and other groups have been destroyed, entirely or in part.

UN Resolution 96(1), 11 December 1946

This definition of genocide is internationally recognised and implemented into national legislation as well as the Rome Statute of the International Criminal Court. The initial draft included political killings, although this was removed following objections from the USSR, a member of the UN Security Council. The USSR, at the time, was under the control of Joseph Stalin who had ordered, from 1936-1938, the Great Purge, a campaign of political repression that resulted in the deaths of between 680,000 to 1,200,000 people. Other nations also feared that including this clause would exacerbate international involvement in domestic affairs. 

‘Crimes against humanity’ is a more ambiguous term, primarily because humanity has multiple meanings; humankind, or all humans collectively; or as a virtue, associated with altruism derived from being human. During the abolition of the slave trade and the many treaties during 1814, wording was used to condemn the slave trade on moral grounds. The Treaty of Ghent (1814) stated that it violated the “principles of humanity and justice” and the Treaty of Paris, drawn up between Britain and France, stated the phrase “principles of natural justice.” The wording ‘crimes against humanity’ was first used by George Washington Williams, an American Civil War soldier, politician, lawyer, Baptist minister and writer, to describe Leopold II of Belgium’s administration and its practices in the Congo Free State (a large Central African state between 1885-1908). In treaty law, the term was first used in the Second Hague Convention (1899) preamble and elaborated upon in the Fourth Hague Convention (1907) preamble; both of which reference the “laws of humanity” in the sense of altruistic, human values. This term was part of the Martens Clause, named after Friedrich Martens, the delegate of Russia at the 1907 conference, and the declaration he read. Martens is nowadays most well-known as a scholar, having edited 15 volumes of Russian treaties, and was repeatedly chosen to act in international arbitrations. During his lifetime, he received honorary degrees from Oxford (1902), Edinburgh, Cambridge and Yale (1901) and was nominated for the 1902 Nobel Peace Prize.

On May 24th 1915, the Allied Powers (Britain, France and Russia) issued a joint statement charging another government, the Ottoman Empire, explicitly for committing a “crime against humanity”. At the end of the war, the creation of a tribunal to prosecute “violations of the laws of humanity”  was recommended by an international war crimes commission; however, this was protested by the US representatives as they believed that the term “law of humanity” was too ambiguous and underdeveloped to be prosecutable. Nevertheless, a 1948 UN report used the term “crimes against humanity” in context of the Armenian massacres. This report was highly topical as not only did it classify the massacres as a historical example, but it also set a precursor for the Nuremberg and Tokyo Charters.

The Nuremberg Charter was created in order to set the legislation by which the Nuremberg Trials would be conducted; it left drafters with the immense task of responding to the horrendous crimes committed by the Nazis both during war and peacetime. Furthermore, the traditional definition of “war crimes” did not allow for the provision of the crimes being committed against the nation’s own people. Article 6 of the Charter was drafted in order to combine all these factors:

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 Nuremberg Charter Article 6 (c), 8th August 1945

This definition provided the limitation that “crimes against humanity” could only be prosecuted if they could be connected to “war crimes” or “crimes against peace.”

Two particular crimes weren’t included in these original definitions:

1. Apartheid or the systematic persecution of one racial group against another, such as in South Africa. It was recognised as a crime against humanity by the UN General Assembly in 1976 but no such trials have been conducted on these grounds.

2. Rape and sexual violence. Although Control Council Law No. 10 recognised rape as a crime against humanity, there were no explicit provisions made for it under the Nuremberg or Tokyo Charters. The ICC was the first international instrument to unambiguously include references to rape and other forms of sexual violence, including forced sterilisation.

However, unlike genocide, there has been no comprehensive convention on “crimes against humanity”, instead there are 11 international texts that each define the term, all in slightly differing ways. The Crimes Against Humanity Initiative was launched in 2008 by Professor Leila Nadya Sadat in order to address this gap in international law as these such crimes are perpetrated worldwide. One topical example is that of the allegations of high rate of hysterectomies at an ICE facility in the USA; this would fall under the sub-group of sexual violence and the attempt to exterminate a minority by removing their ability to reproduce. However, as the USA signed the ICC under the provision that it could not be prosecuted without consent, it is unlikely that this case will ever go to court. On July 23 2013, the UN International Law Commission voted to include the topic of “crimes against humanity” in its long-term programme based on the report of Sean D Murphy.

A particularly topical example of a violation of international law that could be prosecuted under “genocide”, if not “crimes against humanity”, is China’s treatment of the Uyghur Muslims. The allegations of forced sterilisation, with sterilisation surging from fewer than 50 per 100,000 people in 2016 to almost 250 per 100,000 in 2018, leading to outrage at this “genocide”. In July 2019, 22 countries including the UK and USA raised concerns with the UN over the large-scale detention of the Uyghur population and, in the summer of 2020, Adrian Zenz, a German anthropologist, wrote a report calling the atrocity in the region a genocide due to the suppression of birth. In September 2020, it was an announced that an independent UK tribunal, led by prominent human rights lawyer Sir Geoffrey Nice QC, would be investigating the crimes and determining whether they constitute as “genocide”. 

The broad terms of “genocide” and “crimes against humanity” are ones internationally recognised for their grave associated crimes, but it was not until the Second World War that they became part of international law. The development of their definitions is ongoing as the scope of violations under the term broadens and the law is questioned for its ambiguity.