Anti-slavery and ‘crime against humanity’ in the late nineteenth century: forerunners of twentieth century human rights?
‘Humanity is a casualty here’, [A French officer commenting war atrocities in Saint Domingue around 1803]78
Early in the nineteenth century, some lawyers and abolitionists were campaigning to make the slave trade an international crime according to the law of nations. Looking at the right of visit and the repression of the slave trade in 1842, Henry Wheaton, the influential American lawyer we already referred to in Chapter Four, denounced the slave trade as ‘a traffic so justly stigmatized by every civilised and Christian powers as a crime against humanity’.79 A few years later, in 1846, many important figures of the British abolitionist movement, among which Thomas Clarkson stood prominently, launched a public campaign to protest against the import of slave grown sugar in Britain. These well-known humanitarians published a letter in The Times in which they also labelled slave trading as ‘a crime against humanity’.80 Of course, the expression had absolutely not the signification, whether, on a legal or a historical point of view, it would eventually take at the Nuremberg Trial in 1945. Once again we should be careful not to slip into anachronism so easily.
Even if it is vain to trace the exact genealogy of ‘crime against humanity’, Antaki Mark and Pierre Serna have pointed that Robespierre’s speech at the Convention in 1792 might have been one of the possible starting points. On this occasion, Louis XVI was described as ‘a criminal against humanity’.8’ However, the signification and the impact it had at the time remain obscure. ‘Crime against humanity’ was not such a common expression in the late eighteenth and early nineteenth century. In the British press, the expression only appears 62 times between 1798 and 1839, and 181 times between 1840 and 1849 as far as it was possible to determine thanks to the British Library Newspaper Archives.82 At that time it had no precise legal meaning yet and it was, therefore, more an eloquent moral statement than anything else. Between 1798 and 1849, ‘crime against humanity’ was used in a wide different range of contexts and pictured situations in which the most important principles of ‘the laws of humanity’ had been violated. This could refer to the violation of some key aspects of international law or point that natural law principles had been overlooked. ‘Crime against humanity’ was for instance employed to qualify ‘conspiracy and treason’ during the 1798 Irish Rebellion or to denounce the crimes of Napoleon’s realm during the 1815 Vienna Congress.83 In these two cases the expression refers to a crime against international law - treason was a crime against the State - and a crime against natural law - crimes committed against civilians. However, ‘crime against humanity’ was also mobilised to address humanitarian issues such as the dreadful consequences of evictions during the Great Famine in Ireland (1846-1852) or the ravages of alcoholism viewed by British Tea Totalers.84 In this context the expression was meant to raise the sympathy of public opinion in denouncing crimes perceived as a serious violation of natural law or morality. These few examples also show that ‘crime against humanity’ was not only mobilised to denounce slavery or the slave trade. Nevertheless, the use made by abolitionists possibly was one of the most significant if we consider the tremendous influence the movement had over public opinion in the 1830s and 1840s.85
In the second half of the nineteenth century, ‘crime against humanity’ became a more and more popular expression. Between 1850 and 1899, it appeared in 2,488 cases in the British press, approximately thirteen times more than in the first half of the century.86 Even though more newspapers
Anti-slave trade policies 203 were published during that period, it seems that ‘crime against humanity’ really gained popularity in the press, notably when dealing with the massacre of Christian minorities in the Ottoman Empire. It was for example used to describe the slaughter of the Maronites in Syria and Lebanon in 1860 or the killing of Bulgarian civilians in 1876.87 In the years 1896-1897, it was also mobilised to describe the massacres preceding the genocide of the Armenians during the Great War.88 However, the expression became more and more polysemic as its popularity grew. It was for instance employed to label different sorts of ‘outrage to humanity’, such as the destruction of the ship the Brilliant during the American Civil War in 1862, the massacres committed during the repression of the Parisian Commune in 1871, or the outrageous outbreak of antisemitism during the Dreyfus Affair in 1898.89 Again, anti-slavery was far from having the monopole of the expression. The term was more and more associated with mass killings or extermination of civilians. Yet, the relatively small role played by anti-slavery in this movement does not mean that it was of no importance.
This appears to be the case in the context of the East African and transSaharan slave trade in the time preceding the 1890 Brussels Conference. Sending on 10 August 1888 an official resolution of the British and Foreign Anti-Slavery Society (BFASS) to the British Prime Minister Lord Salisbury, Charles H. Allen, head of the organisation and son of the famous Dublin abolitionist Richard Allen, solemnly asked the head of the British government to ‘unite [with all European powers] in proclaiming the slave trade a crime against humanity and a violation of the law of nations’.90 In this letter, Allen urged Britain to take the initiative to launch a new international conference on the East African and trans-Saharan slave trade - the future 1890 Brussels Conference studied in Chapter Seven. Allen and the BFASS wanted Britain and the European Concert of Nations to take the occasion of this new conference to officially declare the slave trade as ‘a crime against humanity’. Alien’s proposition was a legal revolution and could easily have been used to interfere with the sovereignty of any nations across the globe. It meant that no state or individual would be able to escape international law when engaging the nefarious traffic. Even though the concept had absolutely not the historical and legal meaning it would eventually take at the 1945 Nuremberg trials, such a proclamation, if it had been made, would have established that certain crimes - here the slave trade - would be sanctioned by international law. The expression would not just reflect a vague concept that philosophers had grounded in natural law but a precise legal concept that could be sanctioned by positive law.91 The reaction of the Foreign Office was rather cold. Salisbury replied dryly to Allen that only the suppression of domestic slavery could lead to the extinction of the slave trade in East Africa and he, instead, proposed the abolition of the legal status of slavery in Zanzibar.92 Allen and the BFASS could not be but disappointed. In times of colonial expansion and rivalry, Britain now preferred to defend the sovereignty of State whereas she had alwaysadvocated a ban in international law against the slave trade since 1807. Had Britain changed her mind because she now feared that making the slave trade an international crime before the law of nations could lead to foreign intervention into her colonial sphere? This question cannot be so easily answered and would certainly require new and long researches in the archives. Meanwhile, Allen’s letter demonstrates that the East African slave trade and Zanzibar mattered to the making of the history of international law and international relations.
With this reference to ‘crime against humanity’ in mind, some historians came to the conclusion that the anti-slave trade societies and policies undoubtedly played a key role in the history of human rights if one looked at it on the longue durée. Lynn Hunt, for instance, pointed that ‘the Universal Declaration [the 1948 United Nations Organization Universal Declaration of Human Rights] crystallized 150 years of struggle for rights’ and insisted on the prime role played by ‘the Quaker-inspired societies founded to combat the slave trade and slavery’.93 She, indeed, described the struggle against slavery as ‘an early triumph for the idea of the “rights of man” or even “human rights’”.94 Another scholar, Jenny Martinez, even went further arguing that abolitionists had laid early and important foundations for the Nuremberg trials and twentieth century international human rights law.95 These statements, of course, sparked great controversies among scholars around the world. One of them, Samuel Moyn, dismissed Hunt’s work as a ‘glaring confusions in the search for “precursors” of human rights’ and argued that they only became important in international relations after the 1970s.96 Another, Philip Alston criticized Martinez’s ‘claim that human rights discourse played a central role in motivating and framing the abolitionist movement’.97 Even though Moyn and Alston are right in pointing that twentieth century conception of human rights should not be mistaken with nineteenth century humanitarian concerns, Hunt and Martinez make a very strong point when they stress the historical importance of the anti-slavery experience for the ‘progressive institutionalization of international law’ as well as the universal recognition of some unalienable rights - freedom - and international crimes such as the slave trade.98
Of course, we can easily slip into anachronism again in creating a superficial historical continuity between nineteenth century anti-slavery and twentieth century human rights, a deadly trap which Marc Bloch wittily denounced as the ‘idols of the origins’.99 In fact, it is not enough to note the recurrence of the expressions ‘rights of humanity’, ‘cause of humanity’ or ‘crime against humanity’, in the context of anti-slavery to understand their meaning or their importance in that era as well as their future historical developments. However, as Robert Dubler and Matthew Kalyk noted ‘it would be wrong ... to conclude that [“crime against humanity”] has no genealogy’ since it ‘draws heavily upon the tradition of natural law - the tradition that a sovereign is always answerable to a higher law’.100
Nineteenth century humanitarianism - especially anti-slavery - actually mattered to twentieth century lawyers involved in the defence of human rights and international law. For them, it was both a source of reflection and inspiration. This case is best exemplified by Hersch Lauterpacht (1897-1960) who successfully proposed the United States Attorney-General Robert Jackson to make ‘crime against humanity’ enter international law at the 1945 Nuremberg trials.101 Lauterpacht had read most of the nineteenth century legal literature dealing with anti-slavery, war crimes, and the protection of minorities or individuals. As Martti Koskenniemi pointed this literature belonged to the Victorian tradition which Lauterpacht admired.102 We know as well for a fact that Lauterpacht promoted ‘the notion of international law as a whole system of law reigning over states and individuals alike’, following L. F. L. Oppenheim’s works of which he was an eminent specialist.103 Lauterpacht criticized, to take his own words, ‘the mystical sanctity of the sovereign State’ when having to sanction or prevent crimes against individuals.104 Like Hall, Arntz, Rougier, Oppenheim, and other nineteenth century lawyers mentioned earlier in this chapter, Lauterpacht defended the ‘Humanitarian Intervention Theory’ mentioned earlier. He argued that ‘if the fundamental rights of human personality [are] part of the international system ... then humanitarian intervention is both a legal and a political principle of the international society’.105 In his 1945 International Bill of the Rights of Man, Lauterpacht added that ‘international law has contributed in a more direct way to the maintenance of the rights of man and the protection of his welfare by the hesitating and infrequent, but significant, practice of humanitarian intervention, such as that on behalf of the Greek people in 1827 and subsequently of the oppressed Armenians and Christians in Turkey;... by the long series of treaties of a humanitarian character, ranging from slavery conventions to the imposing structure of international legislation concluded under the aegis of the International Labour Organization’.106 Here it might be important to consider ‘the community of spirit’ or thinking which existed between Lauterpacht and most of the nineteenth century humanitarian movements - among which anti-slavery was prominent - in their effort to subdue the sovereignty of States to international law in order to protect the most fundamental rights of men and women.
As humanitarians - like Lord Byron in Greece for instance - calling for intervention to prevent minorities from being slaughtered or as abolitionists pressing to rescue save slaves at sea, Lauterpacht, attacked the ‘sanctity of the sovereign State’ to promote humanitarian intervention as a mean to defend the rights of the individuals. This question had long tormented scholars. Professor Arntz had already brought up this thorny issue at the time of the ‘Bulgarian atrocities’ in 1876 when writing: ‘[What if] in the middle of Europe a petty monarch acted like a tyrant, tortured people, condemned them to the gallows, burned them in pyres for the most ridiculous offence up to the point that the smoke of their corpses would almost scorch the eyes of the neighbouring countries? Would we let him do it?’.107
In the aftermath of the Second World War Arntz’s words had taken a most terrifying meaning. The Nuremberg and the Tokyo trials finally gave an answer to this old legal, moral, and political, dilemma that the fathers of international law - Alberico Gentili (1552-1608), Francisco de Victoria (1480-1546), Hugo Grotius (1585-1645) - had all repeatedly addressed in their own times.108 Thanks to the works of the Allied Commission on the Punishment of War Crimes Criminals and the London International Conference on Military Trials - no to mention the full engagement of the US prosecutor Robert Jackson as well as his British counterpart Sir Harley Shawcross with which Lauterpacht had decisive exchanges - the article 6 of the Charter of the International Tribunal included a paragraph (c) inscribing Crimes Against Humanity in international law for the first time.109 If enforced by the international community, through the setting of ad hoc tribunals, no single state nor individual should hereafter escape international law and judgement when conducting ‘murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds’.110
In the meantime, Lauterpacht also continued to support the ‘Humanitarian Intervention Theory’ to prevent such crimes showing that in his view crime against humanity and humanitarian intervention were the two sides of the same coin.111 This is certainly a central point of international relations as it is reflected by the recurrent debates around humanitarian intervention, the right or the duty to intervene and the ‘responsibility to protect’ - R2P -since the end of the Cold War, particularly in the aftermath the genocides in Rwanda (1994) and Bosnia-Herzegovina (1995).112 Today, with the ongoing conflict in Syria and the numerous evidence of crimes against humanity and war crimes, the launching of a humanitarian intervention remains one of the most crucial issues for the international community to deal with.113
To a certain extent, contemporary ‘crime against humanity’ and humanitarian intervention had been the tools that anti-slavery campaigners had fought for throughout the nineteenth century as this book hopes to have demonstrated. To a certain extent we can argue that there is a certain ‘community of spirit’ between twentieth century lawyers like Lauterpacht and Victorian abolitionists like Allen. Indeed, ‘crime against humanity’ had a deep historical resonance that jurists like Lauterpacht did not ignore. Reading nineteenth century lawyers as closely as he did, Lauterpacht knew very well the important contribution which anti-slavery had made to the promotion of international law. They were his forefathers in the sense that they had themselves attempted to make the slave trade enter international law as a universal crime and supported the ‘Humanitarian Intervention Theory’, in order to protect the rights of the individual. This ‘community of spirit’ was clearly acknowledged by Lauterpacht’s International Bill of the Rights of Man (1945) in which he stressed that ‘the efforts to abolish the slave trade constitute one of the most impressive humanitarian chapters in history’.114
Of course, this does not mean that he was directly influenced in his works by the abolitionist themselves but only that the philosophy of the abolitionist movement was a source of inspiration for those like him defending human rights in the twentieth century. This nuances the view, defended by Mazlich, Moyn, Alston, and others, according to which abolitionism did not play any role at all in the historical development of contemporary international law.115
If Lauterpacht, and other lawyers like him, were influenced by the past they were also under the spell of their present - our past - when they reflected upon humanitarian intervention and crimes against humanity. In the first half of the twentieth century ‘crime against humanity’ kept gaining popularity and was used 5,296 times.116 In 1905, a British journalist denounced the Boer War (1899-1902) as ‘a crime against humanity’.117 It was also employed by E. D. Morel to denounce the ‘Congo atrocities’ at the height of the Congo Reform Movement between 1904 and 1913.118 During the Great War - when Lauterpacht was between 17 and 21 - the term reached a new peak of popularity with 1,579 occurrences.119 In 1914, a Member of Parliament, Sir Joseph Walton, ‘addressing a crowded town’s meeting ... described war [WWI] as the greatest crime against humanity that the world had ever known’.120 On 11 November 1918, the British Prime Minister, David Llyod George, solemnly used the expression in a public speech to describe Germany’s responsibility in the Great War.121 By contrast, a French socialist journal dismissed, in July 1919, the Treaty of Versailles and described it as ‘a crime against humanity’.122 During the inter-war period the concept remained popular under the pen of journalists or politicians in many different kinds of situations. In 1929, ‘the horrors of gaz warfare’ were described as ‘a crime against humanity’ while peace movements in Britain mobilised the expression in 1933 to denounce the arms race between European states.123 In 1936, ‘crime against humanity’ was both employed to alert public opinion of the dangers of a new world war and to qualify Italy’s Abyssinian campaign.124 In 1937, it was employed to condemn massacres of civilians perpetrated by the Japanese troops in China.125 In 1938, it was ominously used to describe ‘the sufferings which the Jews of Germany and Austria [were] undergoing’.126 This undoubtedly must have had a great influence upon lawyers such as Lauterpacht who lived through that era. Nevertheless, if ‘crime against humanity’ was widely used by journalists and politicians alike before the Nuremberg trials, it was rarely employed in legal treaties or official declarations with the exception of the 1915 British, French, and Russian Joint Declaration denouncing the ‘Armenian massacres’ not yet acknowledged as a genocide in the sense this expression took after 1945.127 In the early 1900s, the father of international law, L. F. L. Oppenheim, preferred the expressions of ‘crimes against the law of nations’ - ‘acts of individuals against foreign States’ -or ‘International Crimes’ - ‘piracy on the high sea or the slave trade’ - to ‘crime against humanity’.128
Highlighting that ‘crime against humanity’ became a common place in the British press between the 1850s and the 1930s is an interesting historical fact only because it contrasts with the exceptional legal status that it took at the Nuremberg trials after the Jewish Genocide. Even though ‘crime against humanity’ meant to describe something that was beyond description in 1945, it drew, consciously or not, upon a long and rich tradition that had flourished throughout the nineteenth century. Anti-slave trade policies - East African ones in particular as this book pointed - show that abolitionism was among the historical forces which contributed to the popularity of ‘crime against humanity’ in the press during the Victorian age and beyond. As this chapter highlighted, the abolitionist movement also favoured the emergence of humanitarian intervention in international law and international relations. However, as we have seen, abolitionists failed to make ‘crime against humanity’ and humanitarian intervention enter international law with a precise meaning. Above all, the work of Hersch Lauterpacht stresses that a certain ‘community of spirit’ existed between nineteenth and twentieth century lawyers when it came to defending international law, the rights of the individuals, and humanitarian interventions. Above all, this shows that twentieth century scholars promoting the reign of international law and opposing ‘the sanctity of sovereignty of States’ could draw their inspiration, among other historical currents, from nineteenth century abolitionism. In fact, anti-slavery campaigners had not only argued that some crimes required that states or individuals should not escape international law. They also advocated that interventions were legal and necessary providing that the international community would earnestly enforce them without diverting them from their original aim: ‘the interests of humanity’.129