Abstract

Since early in her career as an international legal scholar, Leila Sadat has been studying crimes against humanity. In the 1980s and 90s, she introduced English-language academic literature to the French Holocaust trials through publications about the cases of Klaus Barbie, Paul Touvier, and Maurice Papon. Along with the Eichmann case in Israel and the Finta case in Canada, these were very much the pioneering judicial determinations of international criminal justice in the post-Nuremberg era. Today, this body of jurisprudence is little more than a historical footnote given the rich material generated since then by the international criminal tribunals, whose emergence began with the establishment of the International Criminal Tribunal for the former Yugoslavia in 1993. The French cases dealt directly or indirectly with the Holocaust—the attempted extermination of the Jews of Europe perpetrated by the Nazi regime and its accomplices in the countries it occupied. These cases were the continuation of the tremendous international trial at Nuremberg in 1945 and 1946, and of the subsequent proceedings held by the United States in that same courtroom. In these judgments, the legal characterization of the Nazi atrocities was “crimes against humanity.” Today, the Holocaust is generally referred to with another term: genocide. In 2005, when the United Nations General Assembly adopted a resolution on Holocaust remembrance, it referred to “genocide” and made no mention of the fact that the perpetrators had been convicted of an offence with a different label, “crimes against humanity.” These days universities host research centers and programs devoted to Holocaust and Genocide Studies; legislatures adopt resolutions and statutes recognizing historical events as genocide. The same cannot be said of crimes against humanity. When mass atrocities other than the Holocaust are discussed by human rights organizations, scholars, and international law experts, there is often a sense that “crimes against humanity” is an inadequate label—the second- best (or rather, second worst) characterization—and that nothing less than describing them as genocide will suffice. Those who question the appropriateness of the term genocide and suggest that crimes against humanity is a more fitting identifier are sometimes denounced as deniers, even if they have no quarrel with the factual description of such atrocities. What seems so striking in returning to Leila’s writings of the 1990s on the French trials is that, at the time, nobody seemed troubled with prosecuting the Holocaust within the framework of crimes against humanity. Indeed, there were no complaints that the French had somehow depreciated the Holocaust by prosecuting only crimes against humanity rather than genocide.