Genocide and crimes against humanity are two concepts in international law; created in response to the atrocities perpetrated by the Nazis against the European Jewry. Hersch Lauterpacht shaped the concept of ‘crimes against humanity’ and Raphael Lemkin coined the term ‘genocide’. But what is the difference between these two?
Raphael Lemkin fabricated the term and concept ‘genocide’ (Greek: genós – race, people/ lat.: caedere – to kill). He introduced the concept of genocide for the first time in his book „Axis Rule in Occupied Europe“, which was published in 1944. Nowadays, genocide is defined as the extermination of a group of people with specific traits and is deemed illegal under international law. Genocide can occur in both wartime and times of peace. Contemporary, genocide is understood as systematic and targeted mass murder, but Raphael Lemkin named eight dimensions of genocide in his original concept: the political, social, cultural, economical, biological, physical, religious and moral destruction of a group.
The concept of genocide puts the protection of groups before the protection of individuals in the context of international law. According to Article 2 of the Genocide Convention, only national, ethnic, racial and religious groups are deemed to be in need of protection. However, these four protected groups are hard to define, particularly in the case of ethnicity and race, both of which consist not of objective characteristics, but of a social construct. One group’s characteristics are always distinct from those of another group. They are therefore not invariable. Hence, the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY) are following a subjective approach and argue that the Genocide Convention can be exerted if the perpetrator(s) or the victims deem a group as existent. The social or cultural destruction of groups is not an element of crime under the Genocide Convention.
Additionally, for an act to be deemed a genocide, the perpetrator must have an explicit intent to completely or partially destroy a group. This is called a dolus specialis (a harm resulting from an act specifically intended to cause that harm) and therefore sets genocide apart from other crimes.
It is, however, very difficult in practice to discern the intent of these acts as it is highly unlikely that any evidence of the official authorization of mass murder exists. Thus, the ICTR follows a somewhat broader interpretation and argues that a perpetrator is responsible for their actions, as he or she knew or must have known of the likelihood that their actions would lead to the destruction of the victim group. The principal process of the judicial courts is to deduce the intent from the aftermath of the act. This is due to the fact that it is not absolutely necessary that the act was coherently and elaborately planned. The courts are able to retroactively discern intent of the act from the following factors: the general context; other grave acts that were committed; the extent of the atrocities; the systematic persecution of particular groups and the repeated use of destructive acts of violence against these groups.
A crime against humanity is a crime under international law, which is an assault against mankind and human dignity. The following acts, amongst others, can be crimes against humanity when they are part of a widespread or systematic attack directed against any civilian population: murder, extermination, enslavement, deportation, torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender or other grounds as well as enforced disappearance of persons and the crime of apartheid.
Hersch Lauterpacht developed the concept of crimes against humanity in the context of the Holocaust and focussed thereby on the protection of the individual within the international law. The first prosecution for crimes against humanity took place at the Nuremberg Trials but the definition advanced since then. For example, there were crimes added to the list of crimes against humanity and the Nexus Requirement was eliminated. The Nexus Requirement determined that a crime against humanity could only be committed in the context of an international armed conflict. Nowadays, a crime against humanity can be committed in times of national and international armed conflict as well as in peacetime.
According to Article 7 of the Rome Statute of the International Criminal Court a crime against humanity are ‘[…] acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.’ Which means the attack must be of an organised nature and must result in a high number of victims. Additionally, the civilian population must be the target of the attack and the perpetrator must have some knowledge that the attack is widespread or systematic. It is the attack itself that must be widespread and systematic and not the specific act with which the accused is charged. Even a single act can constitute a crime against humanity when committed within the appropriate context, but an isolated act cannot.
Genocide: The concept of genocide puts the protection of groups before the protection of individuals in the context of international law. Additionally, an explicit intent (dolus specialis) to completely or partially destroy a group must be given. Raphael Lemkin coined the term.
Crimes against Humanity: The concept of crimes against humanity, coined by Hersch Lauterpacht, is focusing on the protection of the individual in the context of international law.
If you want to learn more about the history and ideas behind these both concepts I want to recommend the book: ‘East West Street. On the Origins of Genocide and Crimes Against Humanity.’ by Phillipe Sands.
 Spencer, P. (2012) Genocide since 1945 – Making of the Contemporary World. London and New York: Routledge. S. 14