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

by Philippe Sands

Nevertheless, Shawcross drew much from Lauterpacht. There was no question of retroactivity, because all the acts involved—extermination, enslavement, persecution—were crimes under most national laws. The fact that they were lawful under German law offered no defense because the acts affected the international community. They were “crimes against the law of nations,” not mere matters of domestic concern. In the past, international law had allowed each state to decide how it would treat its nationals, but that was now replaced by a new approach: International law has in the past made some claim that there is a limit to the omnipotence of the state and that the individual human being, the ultimate unit of all law, is not disentitled to the protection of mankind when the state tramples upon his rights in a manner which outrages the conscience of mankind. War was just and lawful to prevent “atrocities committed by tyrants against their subjects.” If humanitarian intervention by war was allowed under international law, how could it be said that “intervention by judicial process” was illegal? Shawcross found his stride. He rejected the argument of the defendants that “only the state and not the individual” could commit a crime under international law. There was no such principle of international law, so those who helped a state commit a crime against humanity would not be immune from responsibility; they couldn’t shelter behind the state. “The individual must transcend the state.”