Back to p. 1 – RESISTING DEHUMANIZATION

The irreducible human element

Resisting dehumanization presupposes the possibility to locate human evolution at the crossroads of the two processes of hominization and humanizationthrough criteria that enable us to define what former United Nations Secretary-General, Boutros Boutros-Ghali, called the “irreducible human element”.

If we consider the law to be the detector of the prohibitions that could signal this irreductible human element, we are to begin on the one hand with the “absolute” prohibitions, that is to say, the ones characterizing international human rights law, which prohibits States from carrying out inhumane and degrading treatment, such as torture or enslavement; on the other hand, we have the crimes that have no statute of limitations, that is, crimes under international criminal law, which prohibits natural persons – including Heads of State – from committing crimes against humanity and the other international crimes listed under the Statute of the ad hoc International Criminal Tribunals and the International Criminal Court (ICC). In addition to the diversity of national laws, this new international law would thus implicitly recognize two principles that I have had the opportunity to highlight during the course: singularity and equal belonging to the human community. These are two universal principles, or at least universalizable, because they originate from our double evolution: hominization and humanization.

Let us consider the first principle: singularity. By declaring equal dignity among all human beings, Art. 1 of the Universal Declaration of Human Rights prohibits depersonalizing or treating a human being as “incomplete”, reducing him/her to his/her belonging to a category. The principle of singularity, which is a biological fact and, at the same time, a historical-cultural fact, represents the core of the crimes against humanity: I get killed not because of my deeds, but because I belong to a specific group, be it ethnic, religious or political.

The second principle, inseparable from the first one, i.e., equal belonging of every human being to the human community, consists simultaneously of a biological fact – we belong to one species – and a cultural one – that the Universal Declaration of Human Rights addresses in its preamble as the “human family”. Darwin too was aware of this dualism when he wrote “As man advances in civilisation […], the simplest reason would tell each individual that he ought to extend his social instincts and sympathies to all members of the same nation […]” (Darwin 1881, pp. 100). He also added: “This point being once reached, there is only an artificial barrier to prevent his sympathies extending to the men of all nations and races” (ibid.).

It is precisely this expansion of the perspective of sympathies – to experience emotions for others, followed by empathy (or, as Alain Berthoz states “sympathy is to feel emotions for others while remaining oneself […] Empathy consists in feeling emotions for others by getting into their skin”) (Berthoz 2010) – what expresses the belonging to a single human community, and it is precisely this empathy what is denied to the victims of torture or crimes against humanity.

However, the two principles are not sufficient when we take into consideration the prohibition of eugenic selective breeding or cloning: the true ratio behind the criminalization of the offence pertains in the first place to the risk of creating new categories of population and, therefore, new discriminatory treatment, but also – I believe – to questioning the principle of non-determinism.

A third principle, which we might thus call the “principle of non-determinism” brings forth the exceptional relevance, from the biological point of view, of epigenetic variation. This is obviously, as Jean-Pierre Changeux told us, a “necessary principle for the survival of the species” since it nurtures creativity and adaptability (Changeux 2010). At the same time, non-determinism fuels the sense of freedom. Now, this feeling is what defines the human being as such in his/her dignity and what underlies the principle of responsibility. For this reason, we should not separate, contrary to what the French criminal code does, the crime against “humanity” from the crime against the “human species”.

To resist dehumanization, the typical offence of “crime against humanity” should thus prohibit not only destruction – genocide, enforced disappearance, murder – but also degrading treatment – enslavement, apartheid, discrimination, and also the incomplete human, the depersonalized human – as well as, lastly, the predetermination of the human being, whether s/he was labelled as “dangerous” as a precaution or created through technological means such as eugenics or cloning.

Clearly, the point is not to criminalize everything. The crime against humanity, the most emblematic one, still remains exceptional. It presupposes the violation of the principles of singularity, equal belonging or non-determinism, and it brings about acts of a “widespread and systematic” nature – as provided for by the Statute of the ICC. Thus, it must be the result of collective action: this is not a crime that can be committed individually. The individual act can be relevant from the perspective of national law, not international law. A State or an organization that intends to commit one of these acts can intervene through a political, religious or criminal group but also, for instance, through a pharmaceutical company. This demonstrates the importance of the process that enables responsibilizing all the holders of global power who can bring about dehumanizing practices.

The rise of the crime of ecocide
From dehumanization, we are reaching denaturation. At the time of the Anthropocene, regardless of the protection of humanity, we are envisaging punishing the various threats to the ecosystem balance that could lead to a complete collapse of our planet. From a philosophical point of view, “ecocide […] is not the ultimate crime in addition to all the others, it is the first one, the transcendent crime that would end the very conditions of habitability on Earth” (Bourg 2016). It pertains to the respect for the “concrete universality of the requirements for life on Earth, that is, the respect for the planetary boundaries” (ibid.).
Various pathways are under exploration: to expand upon the provisions already provided for by the Statute of the International Criminal Court, but limited to severe environmental damages committed during armed conflicts, or to provide for an independent crime of attack to the safety of the planet, or ecocide. Symmetrically to genocide, ecocide could be inserted both within the domestic legislation of each State and within international law. It announces a three-folded transformation of criminal law in terms of: a universalized disapproval, yet graduated according to criteria of gravity; an international repression, yet differentiated through diversity criteria; an anticipated responsibility, yet modulated through tolerance criteria (Delmas-Marty 2015; see also Fouchard et al. 2018).