A few weeks ago I attended an event where panelists discussed the Charlie Hebdo attacks. One of the panelists asked the audience this question: “Should terrorism be considered a crime against humanity in the International Criminal Court?” The name of the crime intrigued me. I had heard it countless times before, but for the first time I looked at the name of the crime. The name of a crime is important. Hear the word “genocide” and try not to think of “evil.” The same evil might not have been captured by the word “murder.”
I wanted to know for what, exactly, the name stands—a crime against humanity. One possibility is that a crime is so egregious that its commission harms the very notion of what it is to be human. Thus, the crime is not committed against specific persons, but is instead perpetrated against us all. But who is part of “us all”?
Professor Stanley Fish presented, in the same Hebdo event, on the tension that exists between freedom of religion and freedom of expression. Certain religious beliefs mandate physical violence against certain blasphemous expressions, and thus freedom of religion cannot fully cohere with freedom of expression—the expression of a blasphemy might be actionable under certain religious doctrines. Does the terrorist believe under religious law that he must commit violence against blasphemers to save humanity? If so, can his actions be considered a crime against humanity? Under this rough sketch of Professor Fish’s much more eloquent speech, I only hope to highlight that, to the terrorists of the Hebdo massacre, the crime “against” humanity might have been the Hebdo publication.
All of this is to say that a name like terrorism can be flipped on its head, and that terrorist acts are often justified in the terms of protecting humanity. What is more, I would be surprised to discover that such beliefs are anything but sincerely held. That in no way suggests that each interpretation of what counts as protecting the spirit of humanity is well founded. To the contrary, I argue that the problem with the name “crime against humanity” is that it suggests a universal understanding of what conduct is “against” humanity; as one can infer from Professor Fish’s presentation, that conclusion would be too simple.
I suggest that the best names for crimes are rigid designators—terms that try to speak only to the actions that they prohibit, and only speak in the form of a separate definition. The best names should also attempt to remain silent as to the moral grounding on which such prohibitions are built.
Maybe terrorism is, in fact, deserving of the name “crime against humanity.” If the name is just rhetoric meant to emphasize the horridness of a crime, fine. However, if the name is meant as a description of a prohibited conduct, then the first task would be to understand how an action might attack the basic spirit common to all humanity, and the second task would be to understand how any crime could ever live up to that name.