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The crime of genocide and crimes against humanity were innovations in international law that grew out of the Nuremberg trials. Both crimes were, as legal scholar William Schabas put it, “forged in the same crucible and were used at Nuremberg almost as if they were synonyms.”

In the beginning, both crimes were tied to war and they were closely linked. How did the crimes become separate from war crimes? How did the two crimes become distinct from each other?

War as a Basis for Criminalizing Crimes against Humanity and Genocide

At the end of World War II, there was no basis in international law for prosecuting the atrocities perpetrated by the Nazis against European Jews. Genocide was not a crime under the International Military Tribunal at Nuremberg. “Crimes against humanity” formed the basis for prosecuting the atrocities. But, even here crimes against humanity were only crimes in international law to the extent that they took place in connection with the war.

At issue was the question of state sovereignty and the fact that the Nazis did not hold a monopoly on racially directed crimes (even if the Nazi goal of complete extermination was at the extreme). The great powers faced a quandary. The atrocities of the Nazis had to be punished. The U.S. was lukewarm to the idea of prosecuting Nazis for crimes committed within Germany's borders. As Justice Robert Jackson, head of the U.S. delegation to the London Conference put it in 1945:

“It has been a general principle of foreign policy of our Government from time immemorial that the internal affairs of another government are not ordinarily our business; that is to say, the way Germany treats its inhabitants, or any other country treats its inhabitants is not our affair any more than it is the affair of some other government to interpose itself on our problems. The reason that this program of extermination of Jews and destruction of the rights of minorities becomes an international concern is this: it was part of a plan for making an illegal war.”

Jackson admitted, “We have some regrettable circumstances at times in our own country in which minorities are unfairly treated.” Linking violence against racial or ethnic groups to war kept U.S. actions toward people within its borders out of the question.

The link to an “illegal war” was what made the atrocities perpetrated by the Nazis illegal under international war.

But, even if linking crimes against humanity and genocide to war opened the door to allow these crimes to become part of international law, the problem was that, in 1946, they were still linked. No war no genocide. No war no crime against humanity.

Splitting Off Genocide From War

The necessary link between genocide and war in international law was not tolerated for long. None of the Nazis tried at Nuremberg were found guilty of genocidal acts committed prior to September 1, 1939, the day the war broke out. For many, including jurist Raphael Lemkin who coined the term “genocide,” this was unacceptable.

But, who was to take up the charge? After all, the leading powers had already indicated their reticence to take racial and ethnic persecution as stand-alone crimes since this not only threatened their sovereignty, but also opened the leading powers to possible liability under international law for the treatment of peoples within their borders.

Support for a separate genocide convention was initially lead by India, Cuba and Panama. Within days of the Nuremberg judgments, they proposed a resolution (General Assembly Resolution 96(1)) for what would become the Genocide Convention. As the wording of the convention went through several drafts, representatives from different nations wrangled over the connection between genocide and war. It was the “third world” and not the great powers that worked to give us the convention we now have.

	Unsupportive	Supportive
1947 ECOSOC Draft sent to the Committee on the Progressive Development of International Law and Its Codification.	France: Genocide was just one aspect of crimes against humanity and so was linked to war. Rejected the notion of peacetime genocide.	Panama, India, Cuba: Genocide could be committed in peace time. Therefore, it was separate from “crimes against humanity” which was linked to war.
Draft at the General Assembly, second session	UK: Proposed that the draft of genocide convention should be handled by the International Law Commission (which was working on the Nuremberg principles). This would have linked genocide back to war.	Panama, India, Cuba, Egypt, China: Genocide wasn't simply a variety of crime against humanity, but a distinct form of criminal behavior.
ECOSOC Ad Hoc Committee	France: Put a reference to Nuremberg in the preamble and describe genocide as a crime against humanity.	Lebanon: Nuremberg dealt with crimes against humanity, not genocide. Venezuela: No reference to Nuremberg.
Late 1948 Sixth Committee of the General Assembly	France: prepared a rival draft convention defining genocide as a type of crime against humanity, “[t]he crime against humanity known as genocide...”	UN Secretariat prepared a note insisting on the utility of keeping genocide separate from crimes against humanity to avoid linking genocide with war. Brazil: Genocide was a crime against humanity only in war. Keep genocide separate to avoid confusion. Venezuela: Omit any reference to Nuremberg in the preamble.

Finally, at the General Assembly on December 9, 1948 the Genocide Convention was adopted with no reference to Nuremberg or to crimes against humanity.

Genocide was now defined as a separate crime that could be committed in a time of peace. The price of its separation, however, was that the definition of genocide was very narrow. Much too narrow, according to its critics. After all,

• Genocide was limited to racial, ethnic, national and religious groups. What about political groups? Masses of people could be murdered because of their political beliefs but this would not count as genocide.

• Genocide was limited to situations in which there was the intent to destroy a group in whole or in part. What if there was no obvious intent to destroy the group, only to subjugate them, but the killing reached massive levels?

Even if genocide was separate, it was limited. Either the notion of genocide needed to be broadened, or another concept for atrocities in peace time needed to be put in place.

Splitting Off Crimes against Humanity from War

Though they have had ample opportunity, states have never shown any interest in changing the definition of genocide as it is set out in the Convention. At the Rome Conference in 1998, only Cuba argued for an amendmnent to the Genocide Convention that would expand the definition to include social and political groups.

But, what concept was to be used in international law to address the peace-time atrocities that fell outside the Genocide Convention?

As it turns out, the category of crimes against humanity was used to fit the bill, but only after about a half century of development.

Like genocide, crimes against humanity entered into international law through the link to war. Unlike genocide, it remained tied to war. So, in order for crimes against humanity to stand on its own it needed to be made distinct from genocide and not limited to war situations.

1945: Control Council: Law No. 10 was adopted by the Allies to prosecute crimes within Germany. In this case, atrocities did not have to be linked to the war in order to be prosecuted. But, the Allies could make the separation of crimes against humanity from war because they believed that they were enacting national law applicable to Germany rather than international law.

1950: Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal (adopted by the UN International Law Commission) recognized that crimes against humanity could take place in times of peace, but only insofar as they took place “before a war in connexion with crimes against peace.”

1951: International Law Commission it the first draft of the Code of Offenses Against the Peace and Security of Mankind included both genocide and crimes against humanity, but distinguished them. While genocide need not be connected in any way to war, it was limited to certain defined groups. Crimes against humanity was connected to war or crimes against peace, but was not limited to the groups defined in the genocide convention.

1954: International Law Commission it the 1954 draft of the Code of Offenses Against the Peace and Security of Mankind replaced war as the context in which crimes against humanity were defined with quite a different criteria. Crimes against humanity were committed “by the authorities of a State or by private individuals acting at the instigation or with the toleration of such authorities.”

1995: Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia declared that crimes against humanity did not have to be linked with armed conflict. In fact, the court said that making such a link was inconsistent with customary law.

So, while it had taken much longer than it had for genocide, crimes against humanity had finally shed the association to war.

Bottom Line

But, where does this leave us in our understanding of the relationship between genocide and crimes against humanity?

From the beginning, some viewed genocide as either synonymous with or just a special type of crimes against humanity (perhaps the most extreme type). After Nuremberg, genocide was distinguished from crimes against humanity specifically to split genocide off from a war context. However, once crimes against humanity were no longer tied to a war context, the differences between the two concepts lessened. William Schabas suggests that if it had not been for the link that genocide and crimes against humanity had to war in the beginning, then there would likely have been no need to define genocide as a distinct international crime.

If this brings the meanings of genocide and crimes against humanity closer, it is, according Schabas, a return to how the terms were originally used. The only legal consequence of labeling an atrocity a genocide rather than a crime against humanity is that it provides relatively easy access to the International Court of Justice offered under article IX of the Genocide Convention. Certainly, there are important symbolic differences to calling something a “genocide” versus a “crime against humanity.” But, says Schabas, if someone thinks that labeling an atrocity a “crime against humanity” somehow lessens the severity of the crime, they might remember that this was the term (and not genocide) that was applicable at the time to the Jewish and Armenian genocides.