International Criminal Law: From Hostis to Hostia Humani Generis
Larry May’s conception of crimes against humanity is probably the most well known. It describes protective and security principles as underlying the international jurisdiction over the crimes. May’s approach, however, does not really take into account the normative and descriptive elements of the law where ‘humanity’ has both qualitative and quantitative elements. Christopher Macleod (2010) for one identifies a certain ambiguity of the term ‘humanity’ which can refer either to a species or the quality of being humane, that is, humaneness (Macleod: 283).Macleod helpfully reviews eight different conceptions of crimes against humanity in the relevant literature. In the end he favours a definition where ‘an action is a crime against humanity if and only if it is a crime that damages humankind’ (Macleod: 287), very literally, an offence committed against humanity as such (Macleod: 287). This comes at some cost though because the author readily admits to making humanity a metaphysical object (Macleod: 295). How it makes the transition from the metaphysical to the physical is the subject of this chapter. The chapter examines the divergence and convergence of the theory and practice of international criminal justice in order to provide a factual, textual and legal background that sketches out its redemptive sacrificial economy. Synthesizing some common themes encountered in the subject area (including global politics, exemplary trials, community-formation via exclusion and inclusion, secular and religious mystification, symbolism and perpetual promise), this chapter’s thesis is that international criminal law processes embody the international community through iconic presentation. The phrase hostis humani generis or enemy of all mankind has been identified as being at the very beginning of international criminal law. It was used to establish jurisdiction especially over but not necessarily limited
to pirates. A counterpart phrase hostia humani generis or sacrifice for all mankind would have explanatory value indicating as it does that those accused of crimes against humanity are also tried for and on behalf of redeeming all of humanity.