East West Street: On the Origins of "Genocide" and "Crimes Against Humanity"

by Philippe Sands

and new legislation adopted, allowing Hitler’s new government to pass laws that deviated from the constitution.

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On crimes against humanity and the rights of individuals, Shawcross spoke Lauterpacht’s exact words, arguing forcefully that the tribunal should sweep aside the tradition that sovereigns could act as they wished, free to kill, maim, and torture their own people.

Lauterpacht prompted Shawcross to preempt the arguments of the defendants, the prospect that they’d assert that because states couldn’t commit crimes under international law, it followed that the individuals who served them also couldn’t be guilty of crimes. A state could be criminal, Shawcross told the tribunal, and so it was imperative to repress its crimes by means “more drastic and more effective than in the case of individuals.” Individuals who acted on behalf of such a state were “directly responsible” and should have punishments heaped upon them.

“The state is not an abstract entity,”

“Its rights and duties are the rights and duties of men,” its actions those of politicians who should “not be able to seek immunity behind the intangible personality of the state.”

These were radical words, embracing the ideas of individual responsibility, placing “fundamental human rights” and “fundamental human duties” at the heart of a new international system.