Publication Title

Washington University Global Studies Law Review


There are currently some troublesome issues about the overlaps and gaps between crimes against humanity and genocide as defined and enforced by international, hybrid and national courts.

Up front, of course, we must always keep in mind that the origin of international humanitarian law crimes is different from national crimes. International crimes derive mainly from international customary law and sometimes treaties. Not all treaties, however, qualify as expressions of customary law—especially if they have not been adopted or adhered to by a majority of civilized nations and not all customary law is incorporated in treaties. So, for instance, like Topsy in Uncle Tom’s Cabin, international crimes against humanity have ‘Just growed.” Genocide, however, encapsuled in the Genocide Convention of 1948, and excruciatingly slowly ratified over the next 50 years, has remained textually static though interpretatively somewhat fluid. Unlike national criminal codes, international crimes do not lend themselves so easily to periodic reexamination and codification under the goal of establishing an integrated body of law. The several international and hybrid courts established over the past two decades have been the primary interpreters and enforcers of international criminal law, and I would add the prosecutors in those courts (perhaps to an even greater extent than the judges) have been the primary actors in that process. The drafters of the Rome Statute and its Elements of Crime produced a written document in 2000 which incorporates the best of the ad hoc courts’ interpretations of these two international crimes (but only up to that point in time) and there is a useful document attempting to set out principles of international customary law issued by the ICRC in 2005. Customary law, however, keeps evolving largely through the courts. Because the Rome drafters purported to keep within the bounds of customary law in defining the Elements of Crime, they did not try to do serious redrafting of the scope of the different categories of international crimes to avoid overlap or gaps. Unless and until an international convention on crimes against humanity reviews the state of the art and comes up with recommendations on the scope and definition of that crime, its evolutionary development will almost surely continue in its current judicial mode. Similarly, the definition of genocide in the Genocide Convention, repeated verbatim in the Charters of the international courts, and now recognized as customary law but which is, incidentally, the cause of some concern about its adaptability to post-World War II mass atrocities, is not likely to be altered, because there is fear that if the issue of its scope were opened and proposed amendments entertained either the core itself might be endangered, or it might result in a runaway expansion so as to make it indistinguishable from its country cousin, crimes against humanity. As a result some tension surfaces in international courts about the dividing line between crimes against humanity and genocide.