War: A Crime Against Humanity

Today is the 28th of July. It was on this day, 100 years ago, that Austria-Hungary declared war on Serbia after Serbia rejected the conditions of an ultimatum sent by Austria on 23rd July, 1914, following the assassination of Archduke Franz Ferdinand. It would have been a quotidian moment in the infinite history of the universe had this act not proven to be the spark that kindled the mother of all modern international conflicts: The First World War. A hundred years have filled in the vacant lots of time since then but the geopolitical realm of today appears to be quite similar to what it was at the turn of the 20th century; ridden with conflicts over time and space. Among these, two conflicts stand out in that in both of them, recently, the parties involved have tried to draw upon the concept of “crime against humanity” to prosecute another within the juridical framework of international law: One is the conflict between the state of Israel and Hamas (a political organization which has been governing the Gaza strip of Palestine since 2007) spearheaded by Operation Protective Edge launched by the Israel Defence Forces (IDF) on 8th July, 2014; and the other is the conflict between the state of Ukraine and pro-Russian insurgents leading a separatist unrest in the eastern and southern parts of the country.
On 9th July, the Palestinian representative to the United Nations Human Rights Council, Ambassador Ibrahim Khraishi, created a diplomatic stir by stating, in an interview with PA TV, that “each and every” Palestinian missile “now” being launched against Israeli civilian centres constitutes “a crime against humanity whether it hits or misses, because it is directed at civilian targets”. He said, “we never warn anyone about where these missiles are about to fall or about the operations we carry out.” By contrast, Israel’s actions, he opined, follow the “legal procedure” since the IDF warns civilians in Gaza to evacuate the areas they would bomb. And therefore, he said that Palestine is at a relative disadvantage to Israel if it were to appeal to the International Criminal Court (ICC). Ironically, it was during World War I that the seeds of conflict between Palestine and then-nonexistent Israel were sown, when Great Britain actively supported the Zionist Movement, exemplified by the Balfour Declaration of 1917.

In the latter case, however, after the downing of Malaysia Airlines flight MH17 over a rebel-controlled area in the Donetsk Oblast on 17th July, 2014, condemnation of the conflict by multiple states has emerged from the ashes of that ill-fated flight. Apart from Ukraine’s Prime Minister, Arseniy Yatsenyuk, labelling the “attack” on MH17 as a "crime against humanity”, the President of the Bar Council of Malaysia, Mr. Christopher Leong, has told The Rakyat Post that “It may possibly be categorised as a crime against humanity”.
What is most striking in all of these statements is that all of the speakers have implicitly assumed that crime in itself is not something against humanity. Rather, for them, a crime against humanity is something quite different from an ‘ordinary’ crime; something unique. The question, then, is: What is that differential factor which makes a crime against humanity different from all other crimes?

Interestingly, it was during the First World War that for the first time in history, governments cited the phrase “crime against humanity” against another country following the extermination of a million Armenians by the Ottoman Empire. On 24th May, 1915, the governments of Russia, Britain and France issued a joint statement that explicitly accused the Ottoman government of perpetrating a crime against humanity.

As per the Rome Statute of the International Criminal Court, crimes against humanity are "particularly odious offenses in that they constitute a serious attack on human dignity or grave humiliation or a degradation of human beings."
These may include any of the following acts “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”: murder; extermination; enslavement; deportation or forcible transfer of population; imprisonment; torture; rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity; persecution against an identifiable group on political, racial, national, ethnic, cultural, religious or gender grounds; enforced disappearance of persons; the crime of apartheid; other inhumane acts of a similar character intentionally causing great suffering or serious bodily or mental injury.
However, isolated or sporadic events of the kind mentioned above are not considered to be crimes against humanity. Rather, only those events are considered to be crimes against humanity which are “part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority.”
Hence one may enumerate seven differential factors which determine whether an event qualifies to be called a crime against humanity or not: (a.) The nature of the attack relative to other crimes; (b.) The will behind the attack; (c.) The consciousness of the attacker; (d.) The scope of the attack; (e.) The target of the attack; (f.) The attacker; (g.) The role of the state.

For an event to be classified as a crime against humanity, all of these factors must be considered. If the evidence fails to establish the presence of the requisite criteria, it cannot be called a crime against humanity.

This proposition has major implications for the human subject: (a.) The idea of inhumanity of crime in itself evaporates; (b.) Humanity is defined not as the essence of the individual human subject but as a collective noun signified by numbers involved; (c.) Justice loses its moral edifice since the individual human subject is reduced to the status of a subject of the state; (d.) Justice is dissociated from its subject as the eyes of international law focus not on the individual but the state or the agency involved; (e.) The intent behind the crime is relegated to the background while the eventual effects and political implication(s) of the crime are given primacy; (f.) Systematic and widespread crime is seen as special while the sporadic and isolated crimes are considered banal.

These implications reflect the eternal “Human versus Political” binary – a dialectical conflict which reached its zenith during World War I, in which ancient schisms between the human and the political were obscured and modern schisms were invented. This clash between the human and the political manifested itself most intimately in the form of “shell shock”, a form of neuropsychological trauma that profoundly afflicted soldiers during the Great War as a result of their ghastly war experiences. By the end of it, the British Army had dealt with approximately 80,000 cases of shell shock. Four-fifths of such cases were never able to return to military duty. In the words of Professor Joanna Bourke of the University of London, medical symptoms “ranged from uncontrollable diarrhoea to unrelenting anxiety. Soldiers who had bayoneted men in the face developed hysterical tics of their own facial muscles. Stomach cramps seized men who knifed their foes in the abdomen. Snipers lost their sight. Terrifying nightmares of being unable to withdraw bayonets from the enemies' bodies persisted long after the slaughter”. The sufferers found it increasingly difficult to resume ‘normal’ civilian life even years after the war. Consequently, the sufferers were greeted with jeers back at home and even within the military circles. They were termed “cowards”, and “emotionally weak men”. Moreover, initially, the psychological nature of the affliction was recognized by neither the military nor the medical authorities. Instead, such victims were believed to be suffering from either direct physical effects of shell blasts or a form of monoxide poisoning. After all, how could ‘civilized’ empires encouraging and training their men to bayonet that unknown foreign soldier understand that, contrary to the hypothetical imagery of the rational political agent, the human mind is not a machine, and beyond a certain threshold of enforced inhumanity, it ‘dies’? These soldiers were real human individuals collapsing under the burden of the crime they were being compelled to commit: The crime of inflicting an injury on another human being, thus ravishing the humanity of that individual subject. Thus, each stab of the bayonet was a crime against humanity. Yet, these self-defeating murders by millions of soldiers were never considered as such. Britain, which called the murder of Armenians a crime against humanity, itself, fired bullets worth 4 million pounds in a certain 24-hour period in September 1918. This clearly illustrates the dual nature of morality witnessed during war: A morality which sees one crime as inhuman and overlooks another as something quite banal.

This systematic dissection of humanity into two faces – the human and the political – is, arguably, the singular defining characteristic of the First World War in particular and modernity in general. The shell shock which paralyzed a generation of soldiers is symbolic of the tragedy of the modern man caught in the whirlwind of this binary. Today, 100 years after that unknown soldier fell to an anonymous, impersonal, inhuman bullet in some distant no-man’s-land, it’s time that we, as members of the human race, realized that the most abhorrent crime against humanity is war itself: War which carries a thousand banalities in her all-engulfing and ever-reproducing womb.