In the Munich speech we saw Harris at her most forceful, laying out a prosecutorial argument against a vile criminal regime. This was one of a number of substantive activities she has undertaken since being inaugurated—activities all too easily overlooked due to the nature of the vice presidency.
Harris listed the broad categories of offenses that Russian forces, under Putin’s command, carried out against civilians—not soldiers, just regular people in Ukraine trying to survive an invasion and a war the likes of which Europe has not seen in almost a century. She spoke of civilians being murdered, raped, and tortured, of adults being forcibly deported and, even worse, children being ripped from their families—all to be sent away to live in Russia. Then the vice president got specific:
We’ve all seen the images of the theater in Mariupol, where hundreds of people were killed.
Think of the image of the pregnant mother who was killed following a strike at a maternity hospital, where she was preparing to give birth.
Think of the images of Bucha. Civilians shot in cold blood. Their bodies left in the street. The jarring photograph of the man who was riding his bike.
Think of the 4-year-old girl who the United Nations recently reported was sexually assaulted by a Russian soldier. A 4-year-old child.
Drawing on her extensive experience as a prosecutor—she served as the district attorney for San Francisco for seven years—and as California’s attorney general, Harris described how the U.S. made its finding regarding crimes against humanity after gathering facts and evidence of the crimes committed in Ukraine by the Russian military. Then she spoke directly to the criminals themselves: “And I say to all those who have perpetrated these crimes and to their superiors who are complicit in these crimes: You will be held to account.”
war crimes versus crimes against humanity
To clarify, there is a legal distinction between war crimes and crimes against humanity. A full year ago, Secretary of State Antony Blinken announced the U.S. government’s determination that Russia had committed war crimes in Ukraine. You can also review reports from Human Rights Watch—whose Europe and Central Asia Director, Hugh Williamson, spoke of “unspeakable, deliberate cruelty and violence against Ukrainian civilians”—and PBS’ “Frontline,” among others, that have independently documented these war crimes.
After a Russian S-300 missile hit a museum of local history in Kupiansk—leaving two women dead and 10 others wounded—Ukrainian President Volodymyr Zelenskyy summed up in a Telegram post how the attacks against civilians look from his country’s perspective: “The terrorist country is doing everything to destroy us completely. Our history, our culture, our people.”
War crimes are individual acts of violence committed during wartime that violate international legal standards. As bad as they are, crimes against humanity represent evil of an even higher order. That charge refers to a “widespread or systematic attack upon a civilian population”—planned with intent. Such crimes need not happen in the context of a formal war; a government or other organization can inflict crimes against humanity on members of its own population.
As Blinken declared in a statement put out the same day Harris spoke in Munich, “we reserve crimes against humanity determinations for the most egregious crimes.” President Joe Biden, speaking in Poland upon returning from a surprise visit to Ukraine that took place only two days after the vice president had spoken in Munich, echoed this most grave of charges against Putin.
To return to Harris’ remarks, she made clear the stakes of bringing to accountability those who commit crimes against humanity: “No nation is safe in a world where one country can violate the sovereignty and territorial integrity of another, where crimes against humanity are committed with impunity.” Finally, she spoke about the roots of the concept itself, which go back to “rules and norms” established at the end of World War II, and which have long “provided unprecedented security and prosperity not only for the American people, not only for the people of Europe, but people around the world.”
the connection to germany
It is all too fitting that the vice president made these remarks not only in Germany, but in Munich specifically. That is the city where, in 1923, Adolf Hitler made his first attempt to seize control of the German government. This was the so-called Beer Hall Putsch—a moniker that makes this event sound much less serious than it really was, namely a violent insurrection that culminated in 3,000 Nazis marching to the center of the provincial capital of Bavaria before battling with police officers, who ultimately defeated them by force. In the end, 16 Nazis and four policemen were killed.
During the Nuremberg Trials—after Hitler’s rise to absolute power, and his ultimate defeat and death by his own hands—the term “crimes against humanity” became part of the world’s public consciousness. These proceedings, which took place in Germany in the first months and years following the end of the war, saw high Nazi officials prosecuted and held accountable for their crimes. These crimes beggared description and so, due to their vast and comprehensive nature, required a new legal category that recognized the specific kind of horror they represented.
Prior to the Nuremberg Trials, there was no formal international statute that included a concept such as crimes against humanity. Tragically, mass killings were not invented by the Nazi regime, and in fact the genocide committed by the Ottoman Empire against Armenians during World War I did lead to a desire to prosecute the offenders. However, without a foundation in international law—prior treaties on war crimes did not cover such actions—the effort went nowhere.
In the summer of 1945, delegates from the U.S., the U.S.S.R., Britain, and France met in London and drafted a document, signed Aug. 8 and known as the London Charter & Agreement, authorizing the International Military Tribunal to put accused Nazi war criminals on trial. It laid out three separate offenses: crimes against peace, war crimes, and crimes against humanity. It defined the latter as:
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 in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
That’s the key to this new statute: It no longer mattered if a government wasn’t violating its own laws, its officials would now be judged based on a universally applicable moral code. The document also stated that for all three crimes: “leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.” Later that year, the allies amended the charge of crimes against humanity to include torture and rape.
crafting new instruments of international law
Two figures played a pivotal role in crafting these new instruments of international law. One was U.S. Supreme Court Justice Robert Jackson, sent by FDR to London, and then on to Nuremberg to serve as chief prosecutor on the U.S. team. To his credit, Jackson acknowledged that our own country was far from blameless when it came to large-scale crimes against members of the American population. In Korematsu v. United States in 1944, in which a 6-3 majority of the Supreme Court somehow found that mass wartime internment of Japanese Americans did not constitute a violation of our Constitution’s prohibition against racial discrimination, Jackson authored a blistering dissent. He denounced the order creating the camps as representing “the legalization of racism.” At Nuremberg, he hoped to begin building a better future for all of humanity.
Another key figure at the London Conference was British. His name was Hersch Lauterpacht, and he was perhaps the preeminent international law scholar of the 20th century. His background gave him a personal connection to the crimes for which these legal instruments were created. Lauterpacht was born and raised in a small town, Zolkiew, in the eastern part of the province of Galicia, in the last years of the Austro-Hungarian Empire. He studied law at the nearby University of Lviv (then known by its German name, Lemberg, and which is now in western Ukraine). However, it is likely he was unable to finish his law degree—he couldn’t take his final exams at the close of World War I because, as he wrote, “the university has been closed to Jews.”
Lauterpacht left Galicia, which passed to Poland in 1919, and became Soviet at the end of World War II. After a brief stay in Vienna, he had settled in London by 1923 and resumed his legal studies, which culminated in his work on crimes against humanity. The Nazi regime murdered the family Lauterpacht left behind in Eastern Europe.
The legacy of the Nuremberg Trials and the legal instrument of crimes against humanity has been far-reaching, albeit incomplete in its application. Nevertheless, the standard it laid down has great meaning:
The Nuremberg trials established that all of humanity would be guarded by an international legal shield and that even a Head of State would be held criminally responsible and punished for aggression and Crimes Against Humanity. The right of humanitarian intervention to put a stop to Crimes Against Humanity – even by a sovereign against his own citizens – gradually emerged from the Nuremberg principles affirmed by the United Nations.
The initial proceedings, known as the Trial of the Major War Criminals, began on Oct. 18, 1945, and consisted of 22 officials standing trial before the IMT. The verdicts came down on Sept. 30 and Oct. 1 of the following year. Twelve were given death sentences, three received life sentences, four got sentences of 10 to 20 years, and three were found not guilty.
President Harry Truman, upon the conclusion of these trials, wrote in a letter to the top American judge at Nuremberg, Francis Biddle: “An undisputed gain coming out of Nuremberg is the formal recognition that there are crimes against humanity.” Additionally, as Jackson himself put it: “these standards by which the Germans have been condemned will become condemnation of any nation that is faithless to them.”
crimes against humanity since the holocaust
There have been numerous tribunals and convictions for crimes against humanity committed all over the world since the Holocaust, including one last year of a Syrian official who had been arrested, tried, and sentenced to life imprisonment in Germany. Also regarding Syria, the U.S. ambassador for war crimes said in 2022 that Syrian President Bashar al-Assad should face trial for crimes against humanity. Separately, in 2006 Saddam Hussein was tried in Iraq and executed for crimes against humanity by an Iraqi government that had clear U.S. backing.
As to how Russia’s crimes against humanity could actually be prosecuted today, the most likely arena is the International Criminal Court, which in March issued an arrest warrant for Putin on the charge of war crimes. (A March UN report stated that Russian forces may have committed crimes against humanity.)
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Article 7 of the International Criminal Court’s Rome Statute lays out an expansive definition of crimes against humanity that builds on what was developed for the International Military Tribunal. Although the U.S. is not formally a member of the International Criminal Court and does not recognize its jurisdiction over U.S. officials, the Biden administration has significantly improved our government’s working relationship with the court compared to what it was under The Man Who Lost an Election and Tried to Steal It. Some have urged the U.S. to strengthen that relationship even further, in particular to facilitate the prosecution of Russia’s crimes against humanity in Ukraine.
As Biden, Harris, and Blinken, among others, have made clear, the United States of America is on record as having recognized that the atrocities committed by Russian military personnel in Ukraine, as part of an organized plan ordered by Putin, constitute crimes against humanity. There is no more serious charge, and of its veracity there can be no doubt. The only question is whether anyone will ever be brought to justice.
Ian Reifowitz is the author of The Tribalization of Politics: How Rush Limbaugh’s Race-Baiting Rhetoric on the Obama Presidency Paved the Way for Trump (Foreword by Markos Moulitsas)
