Download Full The new histories of international criminal law : retrials first edition tallgren PDF
Visit to download the full and correct content document: https://ebookmass.com/product/the-new-histories-of-international-criminal-law-retrials -first-edition-tallgren/
More products digital (pdf, epub, mobi) instant download maybe you interests ...
Histories of Transnational Criminal Law Neil Boister (Editor)
Chair in International Law, University of Edinburgh
ANTHONY PAGDEN
Distinguished Professor, University of California Los Angeles
BENJAMIN STRAUMANN
Alberico Gentili Senior Fellow, New York University School of Law
In the past few decades the understanding of the relationship between nations has undergone a radical transformation. The role of the traditional nation-state is diminishing, along with many of the traditional vocabularies which were once used to describe what has been called, ever since Jeremy Bentham coined the phrase in 1780, ‘international law’. The older boundaries between states are growing ever more fluid, new conceptions and new languages have emerged which are slowly coming to replace the image of a world of sovereign independent nation-states which has dominated the study of international relations since the early nineteenth century. This redefinition of the international arena demands a new understanding of classical and contemporary questions in international and legal theory. It is the editors’ conviction that the best way to achieve this is by bridging the traditional divide between international legal theory, intellectual history, and legal and political history. The aim of the series, therefore, is to provide a forum for historical studies, from classical antiquity to the twenty-first century, that are theoretically informed and for philosophical work that is historically conscious, in the hope that a new vision of the rapidly evolving international world, its past and its possible future, may emerge.
previously published in this series
Nineteenth-Century Perspectives on Private International Law
Roxana Banu
International Law and Religion
Historical and Contemporary Perspectives
Edited by Martti Koskenniemi, Mónica García-Salmones Rovira, and Paolo Amorosa
The New Histories of International Criminal Law
Retrials
Edited by IMMI TALLGREN and THOMAS SKOUTERIS
Great Clarendon Street, Oxford, OX2 6DP, United Kingdom
Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries
The moral rights of the authors have been asserted
First Edition published in 2019
Impression: 1
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above
You must not circulate this work in any other form and you must impose this same condition on any acquirer
Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland
Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America
British Library Cataloguing in Publication Data
Data available
Library of Congress Control Number: 2018961290
ISBN 978–0–19–882963–8
Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY
Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work.
Foreword
Martti Koskenniemi
After a quarter-century of intense normative growth, professional expansion, and institutional consolidation, international criminal law may presently feel a little exhausted and in need of a break. Finding itself suddenly in the hurly-burly of global politics, the anti-impunity project has begun to re-think its self-image as an intrinsically neutral servant of the values of an ‘international community’. Instead of a world united behind such values, criminal lawyers have encountered political communities, diplomats, and politicians intensely confronting each other, in the dramatic image of Hobbes, ‘in the state and posture of gladiators; having their weapons pointing and their eyes fixed on one another’.1 What does it do to the principles of criminal law that they are applied in the context of deep adversity that is sometimes directed against the criminal process itself? How do those principles appear in the eyes of men and women not already committed to the global institutions that flag them? To answer such questions, it may seem useful to gaze backwards for a change, and to examine the ideological and professional assumptions that have conditioned the anti-impunity project so far. This is the welcome ambition of this book.
As many of the essays below acknowledge, the growth of the discipline was always accompanied by a rather precise historical narrative. Even today, textbooks situate the origins of international criminal law somewhere in the latter part of the nineteenth century, traversing thereafter a number of familiar European locations— Versailles, Nuremberg, and The Hague, with a brief detour to Arusha/Kigali. But the bulk of the activity was concentrated in the 1990s where the anti-immunity project found itself in the company of a other institutional processes abbreviated as ‘globalization’—massive growth of human rights, environmental, and trade law, an expanding sense that the end of the Cold War had unleashed the forces of Whig history; humankind turning from egoistic and dangerous sovereignty towards peace and common values.
As international criminal law now takes a break, and finds itself not only cheered by its supporters but ignored or attacked by detractors, it may need to question this narrative, and those values. Like human rights and free trade the anti-impunity project seeks to reproduce the domestic-liberal values of individualism and rule of law at the international level. The domestic analogy has of course been a powerful source of inspiration for international institution-building throughout the twentieth century. It received a boost with the demise of the Cold War. It is surely no coincidence that only three years separated the establishment of the World Trade Organization
1 Thomas Hobbes, Leviathan (ed with intro J.C.A. Gaskin, Oxford University Press 1996 [1651]) Part I Ch 13 (85).
(WTO 1995) and the International Criminal Court (ICC 1998). But just how those projects relate together may be hard to decipher—at least if one’s horizon is limited by the standard narrative. No doubt, both embody a providential idea about humankind’s development that Immanuel Kant once expressed in the title of his famous 1784 essay—‘idea of universal history with a cosmopolitan purpose’.2 When international criminal lawyers now turn to history, they will have to grapple with that suggestion: is the world ‘united’ and if so, by what? Is there a purpose to history that would be ‘cosmopolitan’—and just what might this mean politically, institutionally?
Many of the key questions about such a history are raised in the essays below. They include putting to question the textbook periodization. Although beginning with the late nineteenth century does seem proper from the perspective of describing international criminal law as part of a professional or disciplinary history that will leave a number of questions about the precise formation of the material scope and intellectual commitments of the profession unanswered. Punishing unjust warriors has always been part of warfare and thinking about the just peace. We find Catholic theologians in the sixteenth century describing the just war in terms of ‘punishment’ and laying out in detail how responsibility was to be distributed between ordinary soldiers and military and political leaders. Those views were predicated upon an elaborate system of ‘virtue’ that bound the proper conduct of violence with a system of justice looking towards secular goodness and supernatural happiness. The just belligerent, Francisco Vitoria wrote in 1539, was also always a judge.3
‘Why and whom to punish’ has been a question that political communities have posed as long as they have existed, and that question has always been extended from petty crimes to civil war and large-scale ‘international’ conflict. For a legal practitioner and publicist such as Hugo Grotius, punishment was just when it was triggered as a response to violation of a right. Just war included punishing the violator and the authority to punish was available not only to the state but also to the individual right-holder whenever formal courts were unavailable.4 Grotius did not advocate the establishment of ‘international’ tribunals—any suggestion of that kind must have sounded in his ears as a wholly anachronistic effort to redeem something like the papacy’s long forgotten mediatory authority. It was for the sovereign to wage just war, and to execute whatever punishment might be appropriate once injustice had ceased and reparations were made. The same principles underlay eighteenthcentury law of nations that envisaged European war as a rather civilized affair under which there was an almost unlimited right to ‘punish’ pirates, cannibals, and other non-European warriors sometimes regarded as ‘enemies of mankind’.5
2 Immanuel Kant, ‘Idea for a Universal History with a Cosmopolitan Purpose’ in Political Writings (ed Hans Reiss, Cambridge University Press 1991) 41–53.
3 Francisco Vitoria, ‘Relectio on the Law of War’ in Political Writings (A Pagden and J. Lawrance eds, Cambridge University Press 1991) § 60 (327).
4 Hugo Grotius, Commentary on the Law of Prize and Booty (ed and intro Martine Julia van Ittersum, Liberty Fund 2006) Ch VIII (127–42).
5 See Walter Rech, Enemies of Mankind: Vattel’s Theory of Collective Security (Brill 2013).
One of the problems in today’s debates about the punishment for war crimes and atrocities is that they seem so hard to encompass within principles of modern, rational criminal policy. Does one really deter ethnic cleansing in one place by condemning it in another? Does not the intensity of conflicts involving atrocities too easily block utilitarian calculations about the likelihood of one’s ending up one day in the dock of the accused? In the long history of punishment in war prevention’s role has been all but negligible. Instead, punishment has been employed with the assumption that it will redress the scales of justice or avenge the injuries. It has been practised as part of a moral, even theological mission hard to compress within technocratic ideas of rational governance. But do the law and economics of modern punishment really provide adequate expression to the values at stake in something described as a ‘crime against humanity’? How to view the famous tedium that has struck observers from Nuremberg to The Hague? No doubt the distance between professional practices and the vocabularies of (in)justice and virtue that lie just underneath the surface of formal trials may need to be examined more thoroughly than so far has been the case. And this may require taking a perspective going further back into the past than the rise of international institutions in the late nineteenth and twentieth centuries.
The merit of long histories that take us beyond the rise of liberal internationalism in the late nineteenth century lies in the way it would strike at the unthinking assumption that what we now ‘have’ as international criminal justice is what international punishment essentially ‘is’ or has to be. Confronting criminality and victimhood in other periods and locations might enable seeing the contingency and limits of our present choices. It might also remind us of the original justifications we gave to our institutions so as to enable us to take stock of them once again. Why punish individuals? While this may seem natural under one set of (liberal-individualist) ideas, it appears vulnerable in any serious discussion of social causality—and causality cannot be avoided if prevention is the dominant theme. Individuals became who they are, and do what they do, in larger contexts that ought to become visible in any worthwhile treatment of collective violence. For example, the theme of the ‘criminal state’ is surely not exhausted by the fall of real socialism. Of course, you cannot imprison a political party, administration, or a state. But surely this cannot be the last thing to be said about how to deal with the structural determinates of action that we understand as creative of massive injustice. But who knows what attention to such structures might bring to light?
What about ‘show trials’? ‘Showing’ has always been an important part of the legal process, as many of the essays below demonstrate. To display the overriding power of the (good?) power that adjudicates, or the evil one that is being adjudicated upon; to flag common values and a determination to defend them. ‘Apologizing’ for colonization or slavery or in response to the #metoo campaign is to show contrition—or at least that is what the performance is expected to signal. But it is tricky performance—failing, it will strike its audience as detestable hypocrisy that instead of providing relief adds to the sense of violation. ‘Do they think they can get away with that?’ A meaningful demonstration of humility or sympathy ought to be accompanied by tangible compensation. But how to measure such? What items
would go into that calculation and how ought they to be weighed? In addressing such questions, early modern scholasticism was led into a casuistry that finally did away with its credibility. It collapsed partly because it had a mistaken view about the binding character of technical reasoning in a world of incommensurate moral impulses, in part because its extreme complexity produced what seemed not so much pure arbitrariness as its contrary: the same people would predictably win and lose. The question of the criminality of slavery or slave trade, or other aspects of colonial violence that come up in many of the essays below raise these type of questions. With a widening sense of what ought to be properly treated as ‘crime’, new questions about accountability and proof will emerge that will be hard to put within the canons of liberal criminal law.
One of the questions raised by the internationalization of criminal law, especially in the context of the liberal ascendancy of the 1990s, has to do with the justification of international jurisdiction. Of course, the rule is that if efficient domestic remedies are available, international judges should stay aside. But the assumption still is that the meaning of ‘efficient domestic remedies’ is derivative from international standards with which the domestic actors’ perspectives should align themselves— something not always likely to happen.6 The Whig narrative that progress means things becoming more and more international might not seem too problematic were it not the case that what the ‘international’ means in practice has to do with institutions and forms of expert knowledge that have a specific history in which Western viewpoints and interests have predominated—‘empire’, as many of the essays below call it.7 What is it that makes an act stand out as ‘criminal’ as against something that appears only a neutral background? The relative failure of the industrialists’ trials after the Second World War gives some indication as to how the relations between the foreground and the background are understood. And what is it that determines under which legal regime an aspect of reality should be examined? There is always a choice to be made between legal regimes a priori applicable to a situation—alongside criminal law, there are at least human rights law, the law of development and welfare, economic law, and the law of security, with all of their detail and exceptions. In the early 2000s, the concern with such classifications was raised under the topic of the ‘fragmentation’ of international law. It was felt that the rise of special legal regimes might create conflicts of jurisdiction and substantive law—between, say, humanitarian and human rights law, or criminal law and the law of counter-terrorism. Once the choice for examining an aspect of reality under any such vocabulary is made, we usually have a pretty good image of how it will be dealt with. The decision by the then prosecutor of the International Criminal Tribunal
6 See Sarah Nouwen, Complementarity in the Line of Fire: The Catalysing Effect of the International Criminal Court in Uganda and Sudan (Cambridge University Press 2013).
7 Interestingly, in his history of international criminal law, The Birth of New Justice. The Internationalization of Crime and Punishment 1919–1950 (Oxford University Pres 2016), Mark Lewis rightly observes that in the principal international institutions of the twentieth century, including in the preparation of the Geneva Conventions, ‘non-European and non-U.S. ideas were often excluded or given little weight because the European or U.S. victors of the two world wars asserted their interests over those of others’ (at 9).
for Former Yugoslavia not to prosecute the NATO bombing of Serbia in 1999 gave some indication of the underlying priorities of international criminal law at the time. Again, the point about turning to history is less to endorse or condemn action undertaken by present institutions than to open up the infrastructure of ideological justifications that make those institutions operate in the way they do, and thus to enable a reasoned analysis and critique.
Criminal punishment has involved many kinds of policy projects. In the early international world, it was inextricable from the effort of pushing Christianity and civilization, trying to persuade or compel everyone to play by European rules. The men who established international law as a professional discipline in the late nineteenth century thought nothing of differentiating between rules in colonial warfare from those they expected to employ in inter-European conflicts. The native did not have the understanding of the civilized rules, a leading European lawyer opined, which is why it was fine to carry out ‘punitive expeditions’ against natives under which ‘the whole population must suffer’ in order to make the message come across.8 The details of the way the law was associated with the civilizing mission may have been different from those that have to do with the imposition of modernization and ‘development’, but the background set of ideas and hierarchies remains astonishingly stable. The projects that international criminal law seeks to advance include human rights as well as the rights of women and minorities, as a number of the essays below point out, but also more general transformation of the target societies. Again, the point of historical studies is less to condemn such transformative projects offhand than to make visible how they have played out in practice, how alongside foreseeable effects, unintended consequences have been created and are likely to arise also in the future.
In these paragraphs I have paid most attention to what could be called the history of legal thought the analysis of the imagination underlying international institutionbuilding. Of course, that is not the only way to do history. Another would be disciplinary history that would focus on the topic’s inclusion in law teaching and practice, the (internal) development of the principles of the field, and the establishment of professional positions and institutions of expertise. Professional histories might involve Bourdieuan examinations of the habitus of criminal lawyers: where have they been trained, who has taught them, what kinds of professional trajectories they have taken, what kinds of political opinion they have supported? No doubt, both disciplinary and professional histories have their place. To some extent, any study of the intellectual pedigree of criminal law will involve an understanding of such doctrinal and professional factors as well. But it is important to avoid taking international criminal law as a given, something that is naturally ‘there’ and also examine its conditions of possibility and its boundaries, the historical and intellectual trajectories that have made it what it is. This would involve seeing it as the outcome of past struggles some of which may still be alive, pushing it in this way or that. Rather than appearing as a homogenous representative of an ‘international community’, such an
8 John Westlake, International Law, Vol II (Cambridge University Press, 2nd edn, 1910) 59, 87.
approach would depict international criminal law as field of contestable and actually contested choices, a forum for thinking not only about the technologies of punishment but also about the priorities of international concern and the distribution of resources to advance them.
Finally, a note should be made of the way historical understanding may lead into relativization and undermine the necessity of acting now, in view of present injustices. If what we learn from history is the immense complexity of an institutional project such as putting people on trial, does it then not contribute to an altogether blasé attitude towards the international world, the sense that it has always been bad out there and is likely to continue that way, and that nothing can beneficially be done to the world in which some people are just condemned to suffer? This would be an important argument were it the case that the anti-immunity project had scored major successes and was poised for a brilliant future. But now that the Syrian war has lasted for more than five years, bombs fall on Yemen, and violence continues unabated from Afghanistan to East Ukraine, from Central America to Myanmar and South Sudan (to say nothing about the rise of neo-nationalism across Europe and the US)—it is hardly the case that international criminal lawyers are winning. A project needs a strategy, and a good strategist needs to take a break from activism from time to time to measure the path trodden. What has been gained and what lost? It is important to avoid being blinded by all the bureaucratic bustle at The Hague or in Geneva, the daily business of prosecutions, and the burgeoning academic commentary. What history at its best—as recounted in the essays below—provides is critical distance that allows us to examine the present in abstraction from the immediacy of its concerns; to look away from the questions and problems posed by today’s institutions and instead enquire about whether those are the right questions and problems to begin with. Whatever the results of such assessment, it is hoped that it will leave us with a sharper awareness of the strategic choices faced by criminal lawyers when they return to the complex but invaluable business of fighting the world’s injustices.
Table of Contents
Foreword v Martti Koskenniemi
List of Contributors xiii
1. Editors’ Introduction 1 Immi Tallgren and Thomas Skouteris
2. Unprecedents 12 Gerry Simpson
3. Founding Moments and Founding Fathers: Shaping Publics through the Sentimentalization of History Narratives 30 Kamari Maxine Clarke
4. From the Sentimental Story of the State to the Verbrecherstaat, Or, the Rise of the Atrocity Paradigm 54 Lawrence Douglas
5. International Criminal Justice History Writing as Anachronism: The Past that Did Not Lead to the Present 72 Frédéric Mégret
6 Redeeming Rape: Berlin 1945 and the Making of Modern International Criminal Law 90 Heidi Matthews
7. ‘Voglio una donna!’: On Rewriting the History of International Criminal Justice with the Help of Women Who Perpetrated International Crimes 110 Immi Tallgren
8. Writing More Inclusive Histories of International Criminal Law: Lessons from the Slave Trade and Slavery 130 Emily Haslam
9. The ‘Africa Blue Books’ at Versailles: The First World War, Narrative, and Unthinkable Histories of International Criminal Law 145 Christopher Gevers
10. Crimes Against Humanity: Racialized Subjects and Deracialized Histories 167 Vasuki Nesiah
11. Nazi Atrocities, International Criminal Law, and Soviet War Crimes Trials: The Soviet Union and the Global Moment of Post-Second World War Justice 189 Franziska Exeler
12. Theodor Meron and the Humanization of International Law 220 Aleksi Peltonen
13. Histories of the Jewish ‘Collaborator’: Exile, Not Guilt 237 Mark Drumbl Index 253
List of Contributors
Kamari Maxine Clarke, Professor, University of California, Los Angeles
Lawrence Douglas, James J. Grosfeld Professor of Law, Jurisprudence & Social Thought at Amherst College
Mark Drumbl, Class of 1975 Alumni Professor of Law and Director, Transnational Law Institute, Washington and Lee University
Franziska Exeler, Lecturer in History, Free University Berlin; Mellon Postdoctoral Research Fellow, Centre for History and Economics, University of Cambridge
Christopher Gevers, Lecturer, University of KwaZulu-Natal
Emily Haslam, Senior Lecturer in International Law, Kent Law School, University of Kent
Martti Koskenniemi, Professor of International Law, University of Helsinki
Heidi Matthews, Assistant Professor, Osgoode Hall Law School, York University
Frédéric Mégret, Associate Professor and Dawson Scholar, Faculty of Law, McGill University
Vasuki Nesiah, Associate Professor of Practice, New York University
Aleksi Peltonen, LLM, Doctoral Candidate, University of Helsinki
Gerry Simpson, Professor of International Law, London School of Economics
Thomas Skouteris, Associate Professor, Law Department, The American University in Cairo
Immi Tallgren, Senior Lecturer in International Law, University of Helsinki; Senior Visiting Fellow, London School of Economics
1
Editors’ Introduction
Immi Tallgren and Thomas Skouteris
Intrigue
Histories of international criminal law are not protected by the double jeopardy rule. As the title of this volume indicates, we are boldly calling for a retrial, in fact many of them: retrials. We also fully accept that ours shall not remain the final word, the binding judgement. On the contrary, with this collection we are pleading for many more new histories of international criminal law.
On what grounds do we consider the retrials of histories of international criminal law necessary? We are intrigued by the impression that international criminal law has rapidly developed a sort of Whig historiography of its own. What is meant by Whig approaches, in the work of great nineteenth-century historians of England, for example, is a presumption of historical progress and linear development. What is more, in those histories, ‘liberty was readily identifiable, acquired and defended’.1 Our suspicion is that just as in Whig histories which ‘were lauded by readers as justifications of the glorious national present, and, as such sustained the role of the historian as a public intellectual and sometimes as a public moralist’,2 histories of international criminal law at times create a mythological life of past law and its institutions and actors, on which—in the absence of a glorious present to laud—hopes for a shiny new future are built. And we could not exclude that international criminal lawyers were becoming public moralists of a particular sort.
We grew curious about those histories, as well as about what was not in them. What else could be thought and said about the past of whatever was meant by those three words written together for at least a hundred years, ‘international criminal law’? Was it primarily an intellectual project; an ideological thriving; changes of law and politics with continuity and disruption; a series of events, trials, and punishments; or histories of individuals, groups, or nations in a myriad of times and contexts? What was it not, when and where, for whom? We started to share our interrogations with scholars from diverse disciplinary backgrounds, at different stages of their academic lives, and in universities in many corners of the world.
1 Herbert Butterfield, The Whig Interpretation of History (Bell 1931).
2 Richard Whatmore, What is Intellectual History? (Polity Press 2016) 29.
What makes this project useful, in the eyes of the editors, is the unique positions of the authors towards the received historiographical tradition. The temptations and elisions of the linear progressivist account are also very much our own. It is precisely because the Whiggishness of international criminal law history has a future, and not only a past, that its retrial carries specific purposes for the present. Taken as a whole, these essays provide a rich account of the dilemmas, conundrums, and possibilities entailed in writing histories of international criminal law beyond, against, or in the shadow of the master narrative. In the remainder of this introduction, we take the opportunity to position these essays collectively. This positioning, it must be clearly stated, is very much our own and not the product of some consensus among the authors about the existence of a joint intellectual enterprise with a common purpose. It merely discloses the specific intent of the editors.
Context
It is by now commonplace, if not annoyingly platitudinous, to note that during the past twenty years international law has undergone a ‘historical turn’. Aside from the quantitative increase in academic commentary, the term usually refers to the creation of a new discursive space that is charged with explanatory potential and finds no precedent in the history of the field. The historical turn is often rationalized as a long overdue corrective to the linear, progressivist, and Eurocentric accounts that dominate the discipline for the most part. Such a focus of research, or at least an outspoken intention in that direction, currently informs many engagements. The tropes of the turn to history include a focus on a history of ideas (as opposed to doctrines or events); a turn to micro-history (as opposed to singular or unified meta-narratives); a move towards ‘global’ history and substate units of analysis (as opposed to Eurocentric and state-oriented accounts); to ‘provincializing’ the present (as opposed to seeing the present as the inevitable outcome of predetermined sequences); and towards sociological accounts of the international system, the profession, and its professional practices, as well as biographical accounts of its professionals and intellectuals (as opposed to epochal transformations and grand events).
The insights of the historical turn in public international law have, until recently, found less resonance in international criminal law, with a few notable exceptions.3 It is no longer quite the case that ‘the field’ would ‘keep on repeating the same narrative arc from “Tokyoberg” to The Hague’, to quote Gerry Simpson’s description from 2013.4
3 See, eg, Kim C. Priemel and Alexa Stiller (eds), Reassessing the Nuremberg Military Tribunals: Transitional Justice, Trial Narratives, and Historiography (Berghahn Books 2012); Kevin John Heller and Gerry Simpson (eds), The Hidden Histories of War Crimes Trials (Oxford University Press 2013); Yuki Tanaka, Tim McCormack, and Gerry Simpson (eds), Beyond Victor’s Justice? The Tokyo War Crimes Trials Revisited (Martinus Nijhoff Publishers 2011); Mark Lewis, The Birth of the New Justice: The Internationalization of Crime and Punishment, 1919–1950 (Oxford University Press 2014).
4 Gerry Simpson, ‘History of Histories’ in Kevin John Heller and Gerry Simpson (eds), The Hidden Histories of War Crimes Trials (Oxford University Press 2013) 3.
Yet historically oriented international criminal law work is often occupied with reassessments of the legacy of the judicial history of international criminal law (Nuremberg, Tokyo, post-war domestic trials, etc);5 appraisals of the history-telling function of international criminal trials;6 and, more recently, the style of the histories of atrocity that come out of criminal law trials.7 Methodological interrogations remain rare.8 Histories typically represent the past of international criminal law in a streamlined ‘light’ version, not unlike a potted ‘Foreign Office International Legal History’.9 Covertly or overtly, they may resonate with a jubilant tone of transhistorical evolution towards the global progress witnessed at present, and the striving for a hopefully ever-brighter future.10 The intertwined evolutions of both jus in bello and jus ad bellum appear as a struggle through times of certain given ‘precursors’ of norms or principles with heterogeneous roots, be they in natural law (first divine and then secularized), in Romano-canonical law or indigenous codes, with variations in what value is assigned to the different ‘roots’.11
Histories of international criminal law also tend to deal with the particular and specific rather than the collective and statistical. They tend to be concerned with individuals, cases, trials, or institutions, not impersonal circumstances or long-term causalities in the spheres of society, politics, economics, demography, climate, technology, and so on. Now this may seem to be fully inevitable, considering the red line in many histories is supposedly the individual criminal responsibility. Yet, histories of international criminal law often embrace themes such as crimes of aggression or genocide, or rather large-scale violence, victimization, and responsibility from before those terms were used. They also could or should embrace, as we suggest, slavery or racism. Zooming in on the particular and the specific in historicizing them is not an insignificant choice. Another characteristic of the ‘off-the-shelf’ histories we
5 See, eg, Gary Bass, Stay the Hand of Vengeance (Princeton University Press 2000); Morten Bergsmo, Cheah Wui Ling, and Yi Ping (eds), Historical Origins of International Criminal Law (Torkel Opsahl Academic Publishers 2014).
6 Such as Richard Ashby Wilson, Writing History in International Criminal Trials (Cambridge University Press 2011); Costas Douzinas, ‘History Trials: Can Law Decide History?’ (2012) 8 Annual Review of Law and Society 273; Lawrence Douglas, The Memory of Judgment: Making Law and History in the Trials of the Holocaust (Yale University Press 2001); David Luban, ‘The Legacies of Nuremberg’ (1987) 54 Social Research 779.
7 See, eg, David Bankier and Dan Mikhman, Holocaust and Justice: Representation and Historiography of the Holocaust in Post-War Trials (Yad Vashem 2010).
8 Overtures in this direction may be found in Gerry Simpson, ‘Linear Law: The History of International Criminal Law’ in Christine Schwöbel (ed), Critical Approaches to International Criminal Law (Routledge 2014); Immi Tallgren, ‘Searching for the Historical Origins’ in Morten Bergsmo, Cheah Wui Ling, and Yi Ping (eds), Historical Origins of International Criminal Law (Torkel Opsahl Academic Publishers 2014).
9 David Bederman, ‘Foreign Office International Legal History’ in Matthew Craven, Malgosia Fitzmaurice, and Maria Vogiatzi (eds), Time, History and International Law (Brill 2007) 46.
10 On the narrative of progress in international law, see Thomas Skouteris, The Notion of Progress in International Law Discourse (TMC Asser Press 2010); Nathaniel Berman, ‘In the Wake of Empire’ (1999) 14 American University International Law Review 1515.
11 See, eg, Jean Pictet, Development and Principles of International Humanitarian Law (Martinus Nijhoff 1985); James Turner Johnson, Just War Tradition and the Restraint of War: A Moral and Historical Inquiry (Princeton University Press 1981); Theodor Meron, War Crimes Law Comes of Age: Essays (Oxford University Press 1998).
were troubled with is the notorious ‘beads in the rosary’ effect. Events are captured and delimited, frozen out of chaotic temporal continuity and spatial contingency, becoming emblems of evolution that are organized chronologically in the search for a coherent story—descriptive rather than analytical—of an order of international law taking shape. The focus on events, dramatic turns of history, and moments of creation culminates in the key roles being accorded to a few tribunals, trials, and criminals.
Finally, we sense a curious paradox in the way international criminal law scholarship both builds on its (glorified) history and at the same time steers clear of its past. Some histories of international criminal law tend to establish a barricade between international criminal law and its past, as if to neutralize the present. Whereas its genealogical maps would point to a strong influence of either religious ideology and transcendence, be it Christian or other religions setting moral limits to conduct in conflict or condemning violence as such, or of political agendas of empire-building by transition of power after wars or other major conflicts, today’s international criminal law is, at times, presented at the very end of a linear evolution. The impression is that it has matured out of those ‘origins’ in religions or political struggles and ultimately liberated from them. The Whiggish accounts underline not only the aspired essence of international criminal law as secular modern public international law but also its role as a model of the future of (the rest of) international law with institutionalized international enforcement mechanisms. International criminal law would thus both approach the fulfilment of international law’s fantasized national analogy and give a face, courtrooms, and prisons for those desiring a new kind of ‘humanity’s law’—carrying the ideas of a stronger legal subjectivity of the individual, the key role of human beings in the values informing changes of international law, and the erosion, if not the end, of state (at least as we know it as a sovereign, territorial, nation-state of a people). Narrated to the current day, the end product of its paradoxical histories is an international criminal law that stands on its own feet, entering the world as a technology and practices rationally and neutrally governed, set to grow even stronger and territorially global in the future.
Objectives
Against this background, this book aspires to intervene by bringing in new voices and fresh approaches. In scholarship as elsewhere, new styles and designs are influenced by trends: research mirrors fashions of the time of its conception. As in historiography in general, in legal histories current trends include interrogations about ‘global history’ or ‘world history’. For the editors, they have a particular salience in this book. International criminal law histories are in many respects histories of how people imagine or have imagined the ‘international’. Despite much talk of universality in the past, international criminal law and its institutional practice have had and still have clear territorial boundaries. There are of course many ways to understand what global history—global intellectual history, global legal history, or global history of international law—means, and many different desires
concerning its future.12 David Armitage defines global history as ‘the history and pre-histories of globalization, the histories of objects that have become universalized and the links between sub-global areas’.13 Other understandings of global point to global as a synonym of ‘not Western’, or at least not only Western. ‘Global’ becomes a tag for progressive histories in that sense. Even more then, the word ‘international’ before ‘criminal law’ cries out for position-taking with regard to what it covers. What does it bring, from Constantinople in 1920s to Helsinki in 1940s or Kigali in 1990s? For the editors, these interrogations are relevant not only in the sense of going against spatial boundaries of histories of international criminal law, but also as a challenge of trying to open up the master narrative. What would it mean that histories we are interested in are ‘global’? At the least, it means that we are engaging with the efforts of breaking the predetermined directions of action: where is ‘criminality’ identified and by whom does the identification take place? As a bare minimum, our intention is to adhere to the efforts that aim for more inclusive histories of international criminal law that respect the diversity of legal, political, and intellectual traditions, as well as the need to pluralize the voices producing histories of international criminal law.
Other trends, which influence the retrials of history in this book, can be traced back to postcolonial studies, gender and women’s histories, and critical and postmodern histories. Subaltern studies and postcolonial history inspire us to pay attention to the discursive and institutional interactions—or disconnects—between colonialism and (international) criminal law. Landmark scholarship in those fields of study, such as Edward Said’s analysis of the ‘imaginative geographies’ that differentiate the ‘West’ from the ‘Orient’, imbued with contrasting cultural meanings and political significance14 can be recognized in the essays of the book. The way gender history, women’s history, feminist history—the labels are not important here— interrogate about the social construction of gendered roles, the cultural formation of gendered identities, women’s experience in the past and their place in mainstream historiography, or the politics of sexuality and gender relations are productive for our inquiries in international criminal law. Critical interrogations remind us that the ‘noble dream’ of objectivism15 is not a thing of the past but continues to permeate historical accounts both in the uppercase and the lowercase, including some of our own. And we recall the postmodern mottos16 (pace the contradiction in terms) that
12 See, eg, Samuel Moyn and Andrew Sartori (eds), ‘Approaches to Global Intellectual History’ in Moyn and Sartori (eds), Global Intellectual History (Columbia University Press 2013); Thomas Duve, ‘Global Legal History: A Methodological Approach’, http://www.oxfordhandbooks.com/view/ 10.1093/oxfordhb/9780199935352.001.0001/oxfordhb-9780199935352-e-25; Bardo Fassbender and Anne Peters, ‘Introduction: Towards a Global History of International Law’ in Fassbender and Peters (eds), The Oxford Handbook of the History of International Law (Oxford University Press 2012).
13 David Armitage, Foundations of Modern International Thought (Cambridge University Press 2013) 18.
14 Edward Said, Orientalism (Pantheon 1978) x.
15 Peter Novick, The Noble Dream: The ‘Objectivity Question’ and the American Historical Profession (Cambridge University Press 1988) 1–2.
16 See, eg, Alun Munslow, ‘Preface’ in Keith Jenkins, Rethinking History (Routledge 2001).
history is not the same as the past; that history is always for someone; that history is never innocent; that history is always about power: ‘we no longer have any texts, any past, but just interpretations of them’.17
The volume pursues three objectives. The first is to bring to the fore the structure and function of contemporary histories of international criminal law. By structure we refer broadly to history’s narrative and literary styles, its temporalities, plots, and tropes; and to what may be learned from shifting attention to historical form. By function we understand the role that history/historiography may play in the construction of the disciplinary ‘field’ of international criminal law. Of particular interest here are the exclusions, of what is usually being ‘left out’ in the endless chain of rationalizations that comprise the historian’s craft, and why. How would the ‘field’ look if more inclusive histories became part of its historical consciousness? The second objective is to take issue with the consequences of these histories. Are disciplinary histories most effective in creating knowledge about the past and in giving international criminal law a ‘temporal depth’? Or do they instead construct it as a quasi-natural epiphany with moral and political authenticity, as the writing of the history of modern nations has often done? Among the various modes and tropes of representing the past, Roland Barthes argued that those that deliberately accept that despite the efforts of ‘objective’ history, the ‘real’ can never be more than an unformulated signified—and thus call attention to their own process of production—are less ideological and mystifying than others.18 The book’s third objective is to call for a demystification of international criminal law histories. In international law scholarship, active participation in the progressive strengthening and broadening of law and its institutions has traditionally been a condition of meaningful participation in that scholarly community. That is why the editors believe it is healthy to pay explicit attention to whether history is understood as found or discovered or, on the contrary, as authored, imagined, or invented. Contrary to dominant studies in the field, our retrials aim at keeping inquiry of history separate from activism in favour of international criminal law and its institutions, seeking to ‘strengthen and expand the foundations of this relatively young discipline of public international law’, or pursuing its ‘vertical consolidation’.19 In international criminal law, imbued with violence and suffering, can research of the past be pursued separately from agendas advocating criminal punishment by ‘international’ courts?20 It will be for the readers to judge.
17 Frank R. Ankersmit, ‘Historiography and Postmodernism’ (1989) 28 History and Theory 137–53.
18 Roland Barthes, ‘Le discours de l’histoire’ (1967) 6 Social Science Information 63.
19 The Concept Outline of the Hong Kong Seminar, The Historical Origins of International Criminal Law, https://www.fichl.org/fileadmin/fichl/cvs/140301-02_HOICL_Seminar_I_ concept_and_ programme_ as_of_140302_.pdf
20 On the identifications and agendas in international criminal law, see Immi Tallgren, ‘Who Are “We” in International Criminal Law? On Critics and Membership’ in Schwöbel, Critical Approaches (n 8) 71.
The Essays
The thirteen essays that follow contribute generously towards the stated objectives. We resist the temptation to arrange them under thematic sections or otherwise determined clusters. The sense is that under a gloss of structure, such orderings would dim rather than illuminate the multiple registers of conversation. With the exception of Martti Koskenniemi’s ‘Foreword’, the order of essays is mostly the consequence of intuition and of the inevitable linearity of printed matter. Instead, and as an intellectual map of the volume, we discern a small set of crosscutting preoccupations that persist on the collective level, without prejudice to the inimitability of each paper.
Tropology: Against the backdrop of a long-standing debate on historical tropology,21 several essays confirm that trope/tropics remains a productive and underexploited register for critical interrogation and historiographical renewal. What are the major tropes, plots, and styles of the histories of international criminal law? Do discursive structures generate rather than recount historical truth? What would a ‘tropics’ of criminal law history look like? The veracity of master narratives, it is argued in this book, is symbiotic with their narrative frame; and, new histories may command the deployment of alternative narrative practices. Several distinct lines of enquiry emerge. Kamari Clarke’s contribution on the sentimentalization of history narratives shows that substantively disjunct histories and dissimilar phenomena (eg colonialism and International Criminal Court (ICC) prosecutions of Kenyan leaders) are linked together into new ‘historical lineages’ to mobilize perceptions and political engagement, pro or against criminal justice. Such links may be forged not through actual historical equivalences but through ‘affective transference’ and the production of ‘feeling regimes’, especially evidenced in public performances of justice. Immi Tallgren proposes that the language of stereotypes (in this case, of women perpetrators) occupies an under-appreciated and pivotal role in the discipline’s operational mode, informing the tenacity of biased (in this case gendered) representations of criminality. Christopher Gevers performs a parallel reading of the erasure of the African subjects (and their sufferings) from the field’s history, on the one hand, and literary representations of African suffering, on the other. He concludes that the literary aspects of the histories of international criminal law (eg emplotment) are crucial and not subsidiary elements of their salience. Emily Haslam confronts the methodological challenges of inscribing slavery in the history of international criminal law. She cautions that, while in some cases the task at hand might be clear (eg ‘to place slave-agency at the centre of modernity and produce our histories and philosophies from that vantage point’), the question of what is a politically progressive or emancipatory narrative framing of agency is not
21 Hayden White, Metahistory: The Historical Imagination in 19th-century Europe (Johns Hopkins University Press 1973); Hayden White, The Tropics of Discourse: Essays in Cultural Criticism (Johns Hopkins University Press 1985); Frank R. Ankersmit, History and Tropology (University of California Press 1994).
as self-evident. Vasuki Nesiah performs a tropological reading of the histories of the nineteenth-century Mixed Commissions (established to enforce the prohibition of slave trade). Per Nesiah, the seemingly race-neutral grammar of the progress narrative of international criminal law (‘juridification’ and ‘moralization’) renders invisible the racialized subtext of a discipline that purports to hold racism to account. Aleksi Peltonen taps into another under-theorized aspect of historiographical technique, the problem of scale. Through the performance of the trope of lifework (in his case, of Theodor Meron), Peltonen argues that shifting the scale of analysis to the micro level may, under certain conditions, offer a productive counterpoint to the prevailing macrohistorical style. For Frédéric Mégret, the ‘relatively breezy birds eye view of major events’ that comprises the mainstay of the current historiographical genre is possible because of its propensity to use anachronism to conveniently emphasize certain ‘breaks’ in the course of history, at the expense of discontinuities; or, conversely, to selectively focus on continuities at the expense of discrete and fundamental breaks.
Inclusion/exclusion: It is may be trite nowadays to remark that contemporary histories of atrocity and justice display an uncanny uniformity in the manner in which they describe certain historical facts, agents, and truths, while notoriously excluding others. It is also widely acknowledged that such histories are often written from a Eurocentric, gendered, and racialized (or other) perspective. What are the exiled, hidden, unthinkable, or counter-histories of international criminal law? How does historiography naturalize its practices of exclusion? And how does one go about including the excluded? Infamous exclusions, under-representations or misrepresentations, such as slavery and the slave trade (Emily Haslam; Vasuki Nesiah), women (Immi Tallgren; Heidi Matthews), colonial atrocities in Africa (Christopher Gevers), the contribution of illiberal states to the development of international criminal law (Franziska Exeler), examined in this volume, provide productive starting points to examine the strategies that legitimize exclusion or, alternatively, enable more inclusive historiography. Per Immi Tallgren, imagining what exclusion might mean for the construction of a disciplinary field (why would one not want to know something) is as urgent an intellectual concern as writing more inclusive histories. Gerry Simpson explains this very well: ‘unprecedenting’ (ie actively forgetting; un-remembering) is routine rather than exceptional in the field’s historiographical practice. The ‘screening out’ of embarrassing antecedents (of unpunished atrocities; anti-impunity calls; show trials) is essential for a field that ‘imagines itself to be constructed around one point in time i.e. the “never before, never again” moment’. Thus Christopher Gevers suggests that the exclusion of atrocities in Africa was/is not the product of benign archival failure or ‘unthinkability’ but rather a matter of choice and ‘instrumentalization of silence for ends’. For Heidi Matthews, the resilient historical perception that the International Military Tribunal (IMT) ‘failed’ to prosecute rape may be partly ascribed to the exclusion of the perspective of a crucial constituency, namely women who survived rape in Berlin, and the alternative historical explanation that the inclusion of their voices may lead to. Several essays grapple with the challenges (methodological and substantive) of inclusion. Inclusion, it is argued, is never fully attainable and is riven with emancipatory possibility and the danger of
appropriation for other ends. The pushback of inclusion may originate from unexpected quarters (Immi Tallgren; Heidi Matthews). New histories, especially those that contest the existence of a single point of origin for international criminal law (Christopher Gevers), ‘do not easily lend themselves to the same linear organicist representation of the evolution of the field’. They often require un-narrating and new literary tropes and styles; or exploring new ‘(anti-)monumentalist’ forms of remembering (Gerry Simpson). For Emily Haslam, writing a history of international criminal law inclusive of slavery requires engaging with memory (‘the sites and processes of collective remembering and forgetting’) and a re-authorization of the excluded (‘relocating the figure of the slave from the silent victim to the eloquent critic’). Strategies of re-authorization and recognition of the agency of the excluded (victim, perpetrator, or an amalgam of both, such as in the case of the Nazi collaborator or women in armed conflict) are also examined by Heidi Matthews, Vasuki Nesiah, Christopher Gevers, Kamari Clarke, and Mark Drumbl.
Historical function of the criminal trial: Does the international criminal trial reinforce dominant historical accounts of atrocity and justice? What kind of hierarchies of violence and suffering does it establish? In dialogue with an established line of enquiry22 Mark Drumbl turns to the less frequented and ‘tabooified’ context of post-war Jewish collaborator trials in Israel. For Drumbl such trials incubate two sorts of histories. First, a microhistory of ‘what happened’, which proves discursively inadequate, as it reduces the stark moral choices implicated in the desire to rescue Jews and survive into a ‘granular’ and ‘stylized’ legal choice between victim and villain. Second, macrohistories of what to remember and celebrate, which ‘serve a didactic role as engines to purify the past, project what to remember, and identify what to neglect’. On an entirely different front, Franziska Exeler relies partly on recently released archives to reassess the historical significance of domestic Soviet show trials during and after the Second World War. Exeler documents how Stalin’s Soviet Union instrumentalized and conjoined domestic and international trials as part of a rhetorical strategy designed to make it appear as a leading force during the Second World War’s founding ‘global moment of justice’. Despite its performative engagement with criminal justice, Exeler finds that a state with an illiberal legal system, such as the Soviet Union, may form (and has formed) an integral part of the early history of international criminal law.
Victim/criminal: The victim and the criminal are pivotal figures in histories of atrocity and justice. How do histories of international criminal law represent the victim and the criminal? Several essays in the volume, for example, explore the idea that essentialization and stereotyping are common discursive moves in histories of international criminal law. The constructed figures—the victim and the perpetrator—Kamari Clarke argues, are ‘key components of the anti-impunity movement as they provide the aesthetic icons through which the victim and the perpetrator of violence are sentimentalized and new practices instrumentalized’. How essential, for example, is ‘victim purity’ or the ‘ideal victim’ for ideologies in
22 See, eg, Wilson, Writing History (n 6); Heller and Simpson, Hidden Histories (n 4).
the field? What about the ‘right to the image’23 of victims, and even perpetrators? And how does the contemporary idea of the criminal relate to historical archetypes as evidenced in literature, pop culture, and historiography? Some essays propose that the reduction of individual agency into the binary logic of innocent victim or villain perpetrator (which is central but not exclusive to trial-produced histories) has helped to produce comforting and homogeneous stories about who to glorify and who to shame. Such is the ‘conspiracy story’ of the IMT, which cast the German people ‘less as accessories than as victims of the criminal clique that led their country’ (Lawrence Douglas); the story about the ‘failure’ of the IMT to prosecute rape assumes that that ‘all reasonable women who experienced wartime sexual violence would have, if given the opportunity, chosen to have their voices heard through the prosecution of their rapists’ (Heidi Matthews); or the courtroom histories of heroism or betrayal, which fail to account for the ‘cipher’ of ‘strange’ character of the victim-victimizer (Mark Drumbl). As Emily Haslam remarks, the ‘ideal victim’ is typically positioned as an a-political subject. Victim essentialization may be crucial for the mobilization of consensus. As Kamari Clarke suggests, feelings of anger and resentment ‘are made real’ through an emotional ‘victim to be saved’ discourse that works to align like-minded participants. The ‘ideal perpetrator’, to paraphrase, may be equally instrumental. The construction/representation of exceptional criminality via stereotypes (Immi Tallgren) may function akin to a ‘moral lighthouse’, satisfying a ‘need for concrete parameters, personifications on which articulations of value are dressed’. Other essays suggest that victim voices may need to be under-represented, marginalized, or even excluded entirely for a progressivist account of international criminal law to be possible. Christopher Gevers’ essay describes the ‘conditions of erasure’ of the African victim from disciplinary history. And the assumption that the transatlantic slave trade is a matter of the past demonstrates, per Emily Haslam, that the focus of international criminal histories is the perspective of the perpetrator and not that of the victim.
Histories of doctrines: How did transnational crimes become divorced from those recently canonized as ‘core crimes’ in the statutes of international criminal tribunals? What factors underpin the field’s fixation on the corporeal violence of militarized conflict, and neglect of the structural violence of inequality? Again, a number of essays comment on historical transformations of the field and the ways they are represented. Lawrence Douglas, for example, looks closely at one of the most under-analysed of transformations, the move from the IMT ‘aggression paradigm’ (‘the sentimental story of the state’) to the dominant ‘atrocity paradigm’ (alias ‘the humanitarian turn’). Douglas provides a historical explanation
23 The Syrian crisis has triggered an animated discussion in the visual arts about the right of victims to a dignified image. See, eg, the debate initiated by Abunaddara, a collective of Syrian movie directors, in Abunaddara, ‘A Right to the Image for All: Concept Paper for a Coming Revolution’, http:// post.at.moma.org/ content_ items/ 719- a- right- to- the- image- for- all- concept- paper- for- a- comingrevolution. In international criminal law, images of victims have been discussed by, eg, Immi Tallgren, ‘Come and See? The Power of Images and International Criminal Justice’ (2017) 17 International Criminal Justice Review 259; Christine Schwöbel-Patel, ‘Spectacle in International Criminal Law: The Fundraising Image of Victimhood’ (2016) 4 London Review of International Law 247.
for the shift (revolving around the jurisprudential vexation following the Nazi ‘Verbrecherstaat’). He goes on to explain that the atrocity paradigm erased fundamental distinctions of the ‘sentimental story’ (enemy/criminal; war/policing), volatilizing analytical categories and paradoxically making war more palatable, legitimate, and possibly more likely. Further, Frédéric Mégret speaks of three transitions naturalized in today’s historical accounts: from transnational law of criminal cooperation to a supranational criminal law (and the emphasis on so-called ‘core crimes’); from state to individual criminal responsibility; and from aggression to atrocity. In all three, transitions are based on anachronistic and selective readings of past events, self-servingly constructing a progress narrative that explicates the present as the telos of past events. The shift to the atrocity/humanization project is also central in Peltonen’s investigation of the value of microhistory in understanding long-term intellectual shifts. By drawing uncanny parallels between Ted Meron’s towering career and the synchronous consolidation of the humanization project, Peltonen pencils careful interfaces between individual dispositions and doctrinal development. Emily Haslam explains that the exclusion of slavery in international criminal law is casualty of a progress narrative that focuses on abolition instead of perpetration, thus reducing the historical significance of the slave trade to a moment of positive institutional development. Yet, as Vasuki Nesiah suggests, situating the origins of international criminal law in the ambition of race neutrality (eg in post-abolition trials; the emergence of crimes against humanity) suggests a synergy between the progressive narrative of human rights and the repression of the memory of race in the category of humanity/human. Such (monumentalist) celebrations of the abolition can serve as a decoy from the myriad ways in which international law continues to sustain slavery, justice, and inequality.
The essays that follow discern several other registers on which the received historiographical tradition must be retried, in fact, too many to properly detail: the relationship between history and memory; the ideologies that are entwined in master narratives; the multiple links between international criminal law and particular hegemonic theories; the role of myths and mythology in disciplinary histories, are some among many. Breaking rank with the conventions of a discourse, writing ‘new’ histories, is always a giddy experience: partly because it is by definition ephemeral and partly because it requires stepping into the unknown. This collective work originates from the suspicion that the history of international criminal law remains, and shall always remain, such unknown territory. Its ‘retrials’ are invitations to explore new paths and not the final destination, the story. One way to do this is by writing besides, against, or in the shadow of the master narrative; and by foregrounding the idea of history as representation and performance. We hope that this volume modestly contributes in this direction.
Before we leave it to the essays, we express our heartfelt thanks to the authors for trusting us with their work and for otherwise embracing this collective project with affection. The final word of appreciation goes to our publishers, John Louth and the Oxford University Press team, for their professionalism and support.
Immi Tallgren and Thomas Skouteris Helsinki and Cairo, May 2018
2
Unprecedents
Gerry Simpson
The history of international criminal law has been a largely stylized affair. Landmarks and projects are remembered, misremembered (Nuremberg), and sometimes barely remembered at all (Tokyo, Versailles, Moscow 1937, the post-war critique of criminalization); there are ellipses (periods, say from 1948 to 1993, in which, it was said, nothing much happened); and there is an—often perfunctorily rendered— pre-history (von Hagenbach (recruited by Telford Taylor to show that prosecution of defeated enemies before international tribunals ‘was almost but not wholly unprecedented’), Leipzig, maybe Napoleon on Elba).1 Meanwhile, in its judicial-doctrinal life, the establishment of an international criminal law has necessitated a sometimes half-hearted search for a history of largely inadequate ‘precedents’ in the context of the punishment of acts that are also said to be ‘unprecedented’ or absent from history, and in the shadow of a suspicion that the criminalization of such acts is itself ‘unprecedented’.
Putting all of this together, we might say that what we have is a law of unprecedentedness to which it could be useful to apply a counter-history of unprecedents or unprecedenting or, even, re-precedenting. This idea of ‘unprecedents’ (a neologism that some people will be find unattractive), then, ought to make visible some pathologies, elisions, repressions, around—in one instance a possibility inherent in—international criminal law.
When German artists scanned history for monumental forms that could be revived or recuperated in the attempt to memorialize the Holocaust, they experienced past monuments as perpetually disappointing or incommensurable.2 In a similar vein, the idea of international criminal law (indeed law itself) as a somehow anti-climactic response to atrocity goes back at least to Karl Jaspers (in his correspondence with
1 More recently, the historiographical wave has washed over this most a-historical of fields, eg K. Heller and Gerry Simpson (eds), The Hidden Histories of International Criminal Law (Oxford University Press 2013). Telford Taylor, Nuremberg and Vietnam: An American Tragedy (Bantam 1971) 82.
2 Julia Kristeva captures some of this sense in Black Sun: Depression and Melancholia (Columbia University Press 1989): ‘As if overtaxed or destroyed by too powerful a breaker, our symbolic means found themselves hollowed out, nearly wiped out, paralysed’ (at 223).
Arendt) and the idea that the Holocaust ‘exploded the limits of the law’. In the first section (‘ “Before”: Precedent as Bathos’) of this chapter, then, I ask what it might mean to build precedent on the unprecedented; or to ground the unprecedented on precedent. Here, international criminal law can be understood as a discipline performed in the style of bathos.
The second set of unprecedents encompasses historical events, legal processes, or critical writings that are written out of the official or semi-official histories of international criminal law (Section : ‘ “Never Before”: Unprecedenting’). In the case of prior atrocity, these can precede (sometimes immediately) ‘unprecedented’ atrocity, and are occluded by the juridical memorialization of the later atrocities. There is, in this instance, not so much a quest for precedents that must always seem deficient but instead an effort to manoeuvre past the historical precedents that do exist but are uncomfortably close (historically, politically) to that which is being claimed as ‘unprecedented’. Here the problem is not bathetic incongruity but politically unappealing continguity. In the case of legal proceedings that might act as the wrong sort of precursors, acts of unprecedenting ensure that these are either seen as illegitimate siblings or are ignored altogether. Finally, there are those writers whose early critical scholarship has been actively ‘unprecedented’ by the rush to find the right sorts of precedents rather than the wrong sort of critique.
The chapter ends on a more hopeful, impressionistic, note by calling international criminal law to a reckoning with those unadvertised or self-effacing acts of remembrance that could nonetheless be understood as part of the field of international criminal law. Here the chapter offers a shadow history of an international criminal law that didn’t happen through trials. These unprecedents become something else altogether: not so much a hidden history of obscure trials, then, but a buried history of non-trials that might help reveal the conditions of possibility for the trials we do have (Section: ‘Re-precedenting’).
It was a characteristic of early international criminal law that a search for precedents coexisted alongside obsessive declarations of ‘unprecedentedness’. The ‘unprecedented’ provided a juridical and political ground for the invention of the field and its various novel doctrines. It is unprecedented outrage that engages—perhaps establishes the existence of—a ‘conscience of mankind’ so central and essential to the spirit of the original tribunals. ‘Crimes against humanity’ (as legal category) are more or less unheard of before the twentieth century because, the story goes, crimes against humanity (as sequence of heinous acts), too, were unheard of before that point. The German invasion of Belgium in 1914 was the first ‘crime against peace’ because it was understood to be (or reconstructed as) the first invasion to violate an existing politico-legal code prohibiting undeclared, out-of-the-blue, acts of war.
But in an uncertain, bootstrapping move, the atrocity that has never been experienced before must, at the same time, be situated in a trajectory of juridical activity in relation to analogous historical acts. And so international criminal law is dotted
‘Before’: Precedent as Bathos
with a quest to discover precedents for the unprecedented.3 This search for analogy becomes, I argue, a form of bathos but it exists alongside various pronouncements on the absence of any need for such precedents in the case of violence imagined as ‘sublime’.
In literary theory, of course, bathos is used to describe a falling off, or a mismatch among various acts included in the same category but not quite belonging (or belonging in the same way) to that category, or a ‘descent from the sublime to the ridiculous’.4 This is usually intended to produce an ironic effect where the outlier is revealed as inadequate to the concept being illustrated or is comically incongruous: thus the T-shirt that lists the great cities of the world alongside the wearer’s own small town: ‘London-New York-Paris-Glenfinnan’, or a verse that combines an injunction to the Gods to ‘annihilate space and time’ with a winking side-request that they also ‘make two lovers happy’. This latter is from Alexander Pope who is said to have first discoursed on the idea of bathos in his Peri Bathous, or the Art of Sinking in Poetry (1727), where he explores depth and depthlessness through a series of vicious reviews of his contemporaries whose striving for the sublime but lack of profundity produces unintentionally ridiculous consequences.
The sublime here refers to a literary reckoning with the vast and existential; a reckoning that exceeds the rules and constraints of hitherto existing literatures.5 These are the terms under which the engineers of international criminal law envisaged their role. Sublime atrocity did away with need for the old limitations. The Preliminary Peace Conference at Versailles begins, in this vein, with a speech by the President of the French Republic, Raymond Poincaré. War, for Poincaré, was a ‘cataclysm’ that had ‘overwhelmed the universe’.6 At the Imperial War Cabinet, too, Lloyd George is impatient with the existing norms: ‘. . . with regard to the question of international law, well, we are making international law . . .’. Meanwhile, at Nuremberg we have Article 19 of the IMT Charter warning that:
The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and non-technical procedure, and shall admit any evidence which it deems to be of probative value.
But if this sublime violence provokes an absence of restraint—a requirement that the existing order be abolished—at the same time it gives rise to a falling off, a search for norms unequal to the task of capturing sublimity: the search for set of precursors always threatening a toppling over into anti-climax.
This combination of sublime violence and depthless evil is a signature of commentary on the Eichmann Trial where Adolf Eichmann’s shallow wrongdoing provokes in Arendt a sense that the whole proceeding is ‘stinknormal, indescribably
3 Sometimes these are literary: see, eg, Shakespearian precedents in Antonio Cassese, ‘On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law’ (1998) 9 European Journal of International Law 2; Theodor Meron, ‘The Humanization of Humanitarian Law’ (2000) 94 American Journal of International Law 239 at 243.
4 Diana Birch (ed), The Oxford Companion to English Literature (Oxford University Press 2009) 103.
5 Ibid. 962.
6 Papers Relating to the Foreign Relations of the United States (Heinemann 1919) at 159.
inferior, worthless’. Indeed, in her New Yorker essays, Arendt contrasts Eichmann’s thoughtlessness with the baroque evil of a Richard II or the imaginative, cunning will to destroy of someone like Iago. Eichmann is the very embodiment of bathos. He enters the District Court of Jerusalem with the audience gasping in expectation of the monster’s entrance. Instead, ‘everyone’s next door neighbour’7 arrived. Arendt is confronted with a ghost who ‘minute by minute fades in substance’.8 Indeed, Eichmann’s personification of bathos is given a spectral twist in Arendt’s writing. He becomes more and more ghostly, his presence more and more anti-climactic: the effort to implicate him in the cold-blooded murder of a Hungarian Jewish boy the last gasp of this effort.9
But if Eichmann is a disappointment, his precursors are even more so. Unprecedentedness haunts the pages of Arendt’s book on Eichmann. As Ayça Çubukçu has pointed out, Arendt was determined to think of the Holocaust as utterly unprecedented: a system of atrocity in relation to which existing precedents were ‘incompetent’.10 For Arendt, the assault on the Jewish people in Europe was part of an effort to remove a race of human beings from the earth. This was not simply a quantitative matter of scale and intensity (it was not about the six million dead) but rather a qualitative leap into a system in which human status itself was threatened and violated.11
This was the essence of the crime that was not a crime.12According to Arendt, the precedents for such crimes could be found neither in existing international law (its ‘well-known coins’ of superior orders and act of state were manifestly not up to the task (135)) nor in general criminal law either (these were not ‘ordinary’ crimes). The Holocaust was for law, then, a Badiouesque event, exploding its epistemological and juridical surroundings and demanding new law.
But both at Nuremberg and in the Eichmann Trial, the respective courts initiated a bathetic search for precedent. At the International MilitaryTribunal (IMT), genocide is collapsed into wartime excess or is wrapped into crimes against peace (a crime containing ‘the accumulated evil of the whole’). So, the Tribunal is concerned to pluck precedents from history in order to support the application of crimes against humanity - or the crime of aggression - to the defeated Nazis. Later, in Jerusalem the unprecedented is buried by the District Court ‘under a flood of precedents’ (263).13
The precedents themselves seem measly and strained: inadequate to the task, bathetic gestures towards commensurability. The abduction of Eichmann is set alongside some US Supreme Court decisions in which suspects are snatched from Illinois by troopers based in Michigan. Pirates, too, are plucked out of a history of pain and human misery in order to represent ‘enemies of mankind’. The District Court of Jerusalem conjures an image of Adolf Eichmann as a Jolly Roger who happened to
7 David Cesarini, Eichmann: His Life and Crimes (2004) 257.
8 Ibid.
9 Hanna Yablonka, The State of Israel v Adolf Eichmann (Schocken Books 2004) 240.
10 Ayça Çubukçu, ‘On the Exception of Hannah Arendt’ (2015) Law, Culture and Humanities
11 Ibid.
12 Eichmann was no ‘ordinary criminal’, the Holocaust no ‘ordinary crime’, Hannah Arendt, Eichmann in Jerusalem (Penguin 1994) at 246.
